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6
THE DIVISION COURTS ACT
AND
AMENDMENTS THEKETO.
THE
IVISION COURTS ACT
I AND AMENDMENTS THERETO.^J^ ''
i — — — > ^^"^
loMPRISING R.S.O. (1887). CAP. 51; «^ ^KH^ CAP^ 1^; 5. VICT., CAP. 12 ; AND
• 55 VICT., CAP. 11 ; TOGETHER WITH
THE GENERAL RULES AND FORMS (1893).
FULLY ANNOTATED. WITH ADDITIONAL FORMS OF PROCEEDINGS
FULLY ^^""^*^pp'j^i(,^BLE TO DIVISION COURTS.
KmrK-nVT> as AND BIDING A COMPLETE CONSOLIDATION OF THE WORKS
"^^"""^^H^L^J^SINCLAIR, ESQ., Q.C ON DIVISION COURT LAW.
BY
JAMES BICKNELL,
Of Osgoode Hall, Barrister -at-Law,
AMD
EDWIN E. SEAGER,
Joint Author of " A Conc.se Treat.se on the Law of Landlord and Tenant," and
JOIN! rtujMUK ^^^^^ Liquor License Act of Ontario.
Volume I.
Containing the Statutes and Notes thekeon, and a Note on
Claims B and Against Married Women.
TOBONTO
THE GOODWIN LAW BOOK
AND PUBLISHING COMPANY (LTD.),
1893.
^. D
%
1/
4
toter^ .fording to Aot ol lb= P.,ll.„eM ol C.n.d.. 1« the ye.r one thom.nd
Seaoeb. io tb, offloo of tbe Minl.t,, „( Agtloulturo 1«nE3t
year one thousand
id Edwin Ernest
TO THE HONOL'KABLE
JOHN MORISON GIBSON, Q.C.,
Provincial Secretary for Ontario.
THIS WORK •
IS, WITH HIS PERMISSION,
RESPECTFULLY DEDICATED.
PREFACE.
SINCE the year 1879 no complete annotation of The
Division Courts Act has been published. In the
meantime many important amendments have been intro-
duced, and prior to the consolidation of the Act in 1887 no
fewer than four works had been published by His Honor the
late Judge Sinclair, dealing with these amendments, in each
of which frequent references were made to his original work
of 1879. After the consolidation of the statutes, another
edition was issued containing the Consolidated Act with
annotations, but as these latter consisted largely of refer-
ences to the notes contained in the various works pre-
viously published by him, tlieir value was greatly lessened
in the cases of those practitioners who did not possess an
entire set of his works, some of w^hich were out of print
and, therefore, unobtainable. In his lifetime the late Judge
Sinclair had contemplated a complete consolidation and revi-
sion of all hjp works on Division Court law. At his death
the present e^v tors, who had assisted him during his life-
time, undertook the work. It was then expected that the
new rules of practice, which had been in contemplation for
some years, would be published during the summer of 1892,
and the publication of the present work was delayed in
the hope that these expectations would be realized. In
the meantime frequent enquiries were made for the work,
and complaints were made of the delay in issuing it.
It was thereupon determined to issue the work containing
the rules then in force and a complete collection of forms.
When the printing of the Act and the annotations w^as com-
pleted and a large number of the rules were in type, the
• • •
VIU
rUEFACE.
editors leained that the work of coinpletinji^ new rules was
about to be actively prosecuted by the Bcmrd of County
Jud;;es, and it was then detennined to publish the Act and
annotations thti-eon as a tirst volume, and to issue the new
rules with the forms as a second volume. The two volumes
will be so arranged that they will form one complete
work, but each volume will also be complete in Hs' If.
It is expected that the second volume will be published
in a few months.
While the present work has for its foundation the
several works of the late Judo'e Sinclair, and contains, it
is believed, all that was of value in those works, the notes
have in many instances been entirely recast and rewritten ;
so that althou^'h the results of fourteen years of legislative
activity and judicial exposition are to be found in the
following pages, the bulk of the original work has been
but slightly increased, and, as compared with the bulk of
all the works, a saving of several hundreds of pages has
been effected.
A note has been appended on the subject of claims by
and against married women, which, in view of the fact
that the Ontario legislation has been at various periods in
advance of and different from that of the Imperial Parlia-
ment, will, it is hoped, be found of service in assisting the
solution of many difficult questions occurring almost daily.
Special care has been paid to the table of contents and
the index, which are the work of Mr. Seager, and to the
list of abbreviations and the table of cases, which were
compiled by W. D. Card, Esq., barrister, of Gait, Ont.
The editors desire to express their thanks to His Honor
Judge Flughes, of St. Thomas, and to J. Dickey, Esq.,
Inspector of Division Courts, for valuable suggestions.
Hamilton : )
May loth, 1893. [
\v rulos WHS
of County
l»o Act and
mo the new
\vo volumes
e eonipleto
in its' !f.
publislied
lation tile
contuin.s, it
s, the notes
rewritten ;
le^rj.slative
ind in the
i^ has been
he bulk of
pages has
claims by
f the fact
periods in
■ial Parlia-
sisting the
nost daily,
tents and
nd to the
lich were
3alt, Ont.
[is Honor
cey, Esq,
iions.
I
TABLE OF CONTENTS OF VOL. I.
Bhort Title
iNTEIirnETATION
Constitution of Couiuh
Page.
1
1
2
Nature of and number in each Connty 2, ))
Process
Not Courts of Recokd
Effect of Judoment
Time and Place of Holding Courts
Toronto courts ."
Holding courts in cities
Accommodatiou
Use of court house
Lieutenant-Governor to rej^ulate
Alteration of divisions and establishment of new divisions
Establishment by Jud{»e in townships
Establishment on separation of united counties 12
10,
Judges
Powers and liability of 17,
Appointment of deputy
Adjournment of court when Judge does not arrive in time. . . .
Clerks and Bailiffs, etc
Executive officers
Appointment of
Practising as a solicitor
Removal or suspension
Leave of absence and appointment of deputy 21,
Security by
Act Respecting Public Officers 20,
Scope of the covenant and liability of officers and sureties. ... 27
Approval of covenant
Covenant to be filed
And to be available to suitors
Proof of covenant
Death or withdrawal of surety
Liability of former sureties
H
H
r>
(>
(i
7
I)
!)
11
11
■ 10
17
18
19
L'l
21
22
22
22
23
25
20
31
30
31
31
32
32
33
35
X CONTENTS.
Pagb.
Cleuk's Duties 36-39
Disposnl of books and papers when clerk changed 40
Duties of Bailiff 41, 42
Duty of constable 43
Fees of Clerks and Bailiffs 44-49
To be paid by 44
Fees of appraisers 44
What is a proceeding 45
Right of bailiff when action settled 46
Not to collect on commission 47
Disposition of, by clerks 48, 49
Inspector 60
Duties 50, 51
Clerks and bailiffs to report to 52
Returns to be made to 53
Jurisdiction of Courts 53-55
Prohibition 55-64
Mandamus 64
Gambling debt 65
Spirituous or malt liquors 66
Tavern or ale-house 67
Illegal promissory notes 68
Actions for recovery of land 68-70
Hereditaments, toll, custom, franchise 70, 71
Validity of devise, etc 71
Malicious prosecution 71
Libel, slander, criminal conversation 72
Seduction, breach of pi-omise of marriage 73
Actions against justices of the peace 73
Cases in which court has jurisdiction 73
In actions against absconding debtors 74, 78
Combining causes of action , 74, 78
Personal actions 75
Actions on contract, etrj 75
Where claim ascertained by signature 75
Judge may make orders agreeable to equity and good consci-
ence 78
Judgment for payment in money 79
In replevin 79-83
Proceedings in replevin 83-85
Replevin bond 86-87
Powers of Courts 88
Injunctions and Receivers 88-95
Relief against penalties, etc 88-91
Equitable claims 88-8D
CONTENTS.
XI
Page.
.. 30-39
40
.. 41,42
43
.. 44-49
44
44
45
46
47
. 48,49
50
. 50,51
52
53
. 53-55
. 55-64
64
65
66
67
68
, 08-70
70, 71
71
71
72
73
73
73
74,78
74,78
75
75
75
78
79
79-83
83-85
86-87
88
88-96
88-91
88-8D
Faob.
Powers of Covms— Continued.
Sequestration 90-95
Attachment 91
Defence and counter-claim 91, 96-97
Belief against third parties 98
Where defence involves matter beyond jurisdiction 98-99
No privilej^e to exempt from jurisdiction 99
Minors may Sue for Wages 99
Master and servant 100-101
Splitting causes of action 102-106
Gertiokari 106-108
Process and Procedure 109
Division in which actions to be tried 109-116
Changing place of trial 116-120
When action entered in wrong court 120-122
Actions by and against clerks or bailiffs 123, 124
Actions by and against Judge or stipendiary magistrate 125
Trial by consent 125
Service of papers in other divisions 126
Notices to be in writing 126
Entry of cl.im, service, etc 127-128
Service of summons 129-132
General Provisions 133
Substitutional service 133-135
Service on corporations firms or individuals not resident in
Ontario 136-138
Postage 138
Service of process at a distance 138, 139
Affidavits of service 139
Mileage 140
Partners and Joint Debtors 140-145
Adding Parties 142-145
Judgment by Default 145
Where specially indorsed summons 145
Setting aside judgment 148
Where defendant does not appear , 150
Motion for Judgment 153
Plaintiff's affidavit 155
Notice of motion 157
Setting up defence '. 158
Examination of defendant 160
Leave to defend 161
Withdrawal of defence 162
Notices by Clerk 162
Xll
::ONTENT.S.
I
I!
j;:
Page.
TuiAL 1G2
Nonsuit 1(54
Order of trial 164
Agreement not to appeal 165
Proceedings in case defendant does not appear 166
Adjourn ent 167
in jury cases 1 61)
Who may appear as agent 170
Tendeb and Payment into Court 171-176
Payment into Court in satisfaction of claim 176-177
Set-off and Statutoby Defences 179
Set-off 179
Statutes of Limitations 180-187
Evidence of set-off 187
Provision if set-off exceeds plaintiff's claim 187
Witnesses and Evidence 1 88
Subpcena 188
Penalty for disobedience to 193
Expenses to be paid witnesses out of county 194
CoMMisstoN TO Take Evidence 195
Power to issue commission 195
When commission to issue 199
Examination of witnesses whose attendance at trial cannot
be obtained 199
Examination of witnesses residing at a distance 203
Rules of High Court applicable. 204
Return of commission 206
Costs of commission 206
Books of Accounts, Affidavits, Etc., as Evidence 207
Judge's Decision 208
New Trial 212
Appeals 216
Stay of proceedings on 222
Security 224
Agent for service 227
Certifying evidence 228
Setting down 229
Judgment in 230
Costs 231
Juries.
.232-243
Garnishment of Debts
Debts attachable
Claims not attachable
244
246
248
CONTENTS.
Xlll
Page.
1G2
104
1G4
1G5
100
107
109
170
.... 171-176
.... 17G-177
179
179
... 180-187
187
187
188
188
193
194
'l95
.... 195
199
I cannot
199
203
204
200
206
207
208
212
216
222
224
227
228
229
2m
231
232-243
244
246
24»*
Page.
Garnishment of Besis— Continued.
Rights of other parties 251
Debts clue for wages 259
Saving clause as to certain debts 253
Attachment of debts due for wages, etc 256
Memorandum on summons 258-
Attaching orders, where claim is a judgment 259
Payment by garnishee 260
Effect of order 260
Payment to any but primary creditor void 262
Primary creditor may summon garnishee 263
Servise on corporation when head office out of Ontario 264
Mode of service 265
Judgment at hearing 266
When claim not a judgment 207
Judgment in such cases 269
General provisions 270
Service to bind debt 273-274
Costs 275
Summons, etc., to be filed 276
Discharge of debt 27ft
Security from primary creditor 277
Adverse claims 278
Adjournment of proceedings 282
Debt attachment book 282
Arbitration 283
Confessions of debt 288
Costs 288
Counsel fees 290^
Proceelinos Not to be Set Aside for Matter of Form 292
Judgment and Execution 292
Execution 293-305
Transcript of judgment 305
Transcript to County Court 310
Sale of equity of redemption 314
Money and securities 315
Sale of goods 319
Sheriff may intervene 319'
Examination op Judgment Debtors 320
Consequences of refusal or neglect to attend 325
Commitment 330
Execution of warrant 333
Return of commitments 335
Absconding Debtors 335.
XIV
CONTENTS.
1
Page.
Claims of Landlords and others in respect to Goods Seized. . . . 355
Interpleader proceedings 356-305
Provisions in relation to rents due to landlords 365-369
Offences and Penalties 369
Resisting officers, assaulting bailiff 272
Misconduct of officers 373
Extortion 374
Negligence of bailiffs 374, 375
Fines, How Enforced 377
Protection of Officers Acting Under Warrants 378
Demand of perusal and copy of warrant 378
Flea of not guilty by statute 381
General Provisions as to actions for things done under this
Act 382
Distress not to be unlawful by reason of defects 382
Limitation of actions 383
Notice of action 383
Tender of amends 386
Costs where verdict under $10 386
Disposal of Fines 387
Disposal of Moneys Paid into Court 3S7
Unclaimed moneys 38S
General Bulks and Orders 389
Board of county judges, appointment and powers of 390-392
Expenses provided for 393
Practice of High Court applicable Division Courts 393, 394
Claims By and Against Married Women 394
Right to sue and be sued 394
Separate estate 395-399
Restraint on anticipation 399
Death of husband or wife 400
Disputes between husband and wife 400
Judgment and execution 401
Injunctions 402
Security for costs 402
Schedule 403
Covenant by officers 403
Page.
iZED,... 355
356-305
365-369
369
272
373
374
....374, 375
377
378
378
381
DKn THIS
382
382
383
383
386
386
387
3S7
38S
389
....390-392
393
. . . 393, 394
...". 394
.... 394
...395-399
.... 399
.... 400
.... 400
.... 401
.... 402
.... 402
.... 403
.... 403
1
TABLE OF CASES CITED.
A.
Abbeyleix Guardians v. Sutcliff, 33
Abbott V. Andrews, 188
Aberys twith Pro. Pier Co. v. Cooper,
112
Abley v. Dale, 328
Abra ham v. Newton, 201
Abrath v. N. E. Ry. Co., 351
Ackermann v. Ehrensperger, 28
A'Court V. Cross, 184
Adam v. Townend, 144
Adams, In re, 303
Trusts Ee, 398
V. Ackland, 19
V, Blackwell, 358
V. Corfield, 196
V. Gillem, 248
V. G. W. Ey. Co., 112, 137
Addison v. Gray, 286
Adey v. Deputy Master of Trinity
House, 68
Adkin v. Frind, 104
Ahrens v. McGiliigat, 61, 112, 113,
137, 257, 260, 268, 393
Ainsworth v. Creeke, 309
Aitcheson v. Mann, 152
Aitkin v. Dunbar, 97
Alanson v. Walker, 156
Alcock V. Royal Exch. Ass. Co., 197
Alden v Beckley, 144, 149
V. Boomer, 247
Aldred v. Constable, 319
V. Hicks, 130
Aldrich v. Aldrich (Addenda), 56
Aldridge v. Harper, 8T
V. Medwin, 256
Alexander v. Brown, 173
V. Dixon, 190
V. Jones, 111
Allan V. Livemool, 254
V. McTavish, 4, 181
Allcockv. Hall, 215
Allen V. Bussey, 147
V. Carey, 164
V. Fairfax Cheese Co., 147
Allen V. Geddes, 256
V. Gibbon, 358
qui tarn v. Jarvis, 19
V. Mathers, 168
V. McQuarrie, 383
V. Yoxall, 189
Allison, Re, 27, 378
V. Frisby, 186
Allman v. Kensell, 151, 208
Alpha Oil Co. v. Donnelly, 85
Alsept V. Eyles, 333
Alston V. Trollope, 187
AUwright v. Perks, 384
Amend v. Murphy, 301
Ames V. Birkenhead, 95, 252
Amey v. Long, 191
Amor V. Fearon, 101
Amos V. Smith, 186
Ancketill v. Baylis, 254
Ancona v. Marks, 157
Anderson v. Anderson, 200
V. Bank of B. C, 192
V. Barber, 30, 278, 282
V. Calloway. 358
V. Grace, 383, 384
V. Hamilton, 83
V. Hay (Lady), 399
V. Jellett, 71
V. McEwan, 82
V. Shaw, 164, 175
V. Titmas, 214
Anderton v. Johnston, 148, 149
Andrews v. Marrs, 18, 291
V. Russell, 344
V. Sharp, 375
Angell V. Baddeley, 221
Anglehart v. Rathier, 332
Anglin v. Minis, 81
Anglo-American v. Rowlin, 362
Anglo-Indian Bank v. Davies, 94
Anlaby v. Prrotorius, 150
Apothecaries Co. v. Jones (Addenda),
22
Appleby v. Baker, 19, 20
V. Franklin, 72
Applegarth v. Graham, 81, 384
XVi
CASES CITED.
I ■
Appleton V. Leppor, -218, 'Ml
Apthorpe v. Apthorpo, 240, 250, 258
Archer v. Arclier, 94
V. English, 177
V. Hale, 87
Archibald v. Hubley, 119
V. McLareu, 3u2
Aria v. Orchard, 111
Armour v. Walker, 196
Armstrong v. Douglas, 246, 251
V. Milburn, 182
Arnitt v. Garnett, 367
Arnold v. Hamilton, 84
V. Higgins, 82, 345
Arnott V. Bradly, 332, 333, 3&j
Arpin v. Reg., 167
Ash V. Dawnay, 305
Ashby V. Sedgwick, 231
Ashcroft, In re, 119
Ashley v. Harrison, 382
Ashley v. Taylor, 144
Ash worth v Outram, 49
Askew V. Hayton, 108
V. Manning, 11
Aspey V. Jones, 379
Astley V. Weldon, 96
Astor V. Merritt, 300
Atkins V, Kilby, 379, 380
Atkinson v. Third Equitable Bene-
fit, etc., Society, 180
Atkyns v. Kinnier, 114
Attack V. Bramwell, 245
Attenborough v. London * St.
Katharines Dock Co., i35'i)
Attorney-General v. Cast Pl^ .
Glass Co, 44
Attorney-General v. Churchili, ? ?
V. Davison, 197,207
V. Gooderham, 196
Attorney-General v. Leathersellers
Co., 190
V. O'Reilly, 389
V. Rogers, 214
V. Sillem,
V. Toronto, 43
V. Walker, 182
Attwood V. De Forrest, 301
Atwood V. Chichester, 131, 135, 149,
150
V. Miller, 98
V. Taylor. 210
Augustien v. Challis, 367
Auster v. Holland, 317
Austin V. Dowling, 72
V. Mills, 3, 5. 292
Avards v. Rhodes, 59
Awberry v. McLean, 98
Aykroyd, lie, 104
Aylesfdid V. G. W. Rv. Co., 322,
f.94, 401, 402
B.
Babcock v. Mun. Council of Bed-
ford, 119
Haby v. Ross, 227
Backhouse v. Bright, 60, 212
Bacon v. Cresswell, 284
V. Langton, 86
Badcock v. Cumberland Gap Park
Co., 113
Baddeley v. Gilmour, 201
Badeley v. Consolidated Bank, 251
Baggalay v. Borthwick,
Bagge V. Whitehead, 315
Baggett V. Meux, 399
Bahia & San f rancisco Ry. Co., In
re, 274
Baildon v. Walton, 186
Bailey v. Bailey, 5, 147
V. Bryant, 112
V. Macaulay, 237
i Baillie v. Goodwin, 114
I Bain v. Gregory, 118, 256
Baines v. Bromley, 179
Baird v. Almonte, 59
i V. Nolan, 248
V. Story, «16, 328, 370
i Baker Re, 223
j V. Bradley, 399
V. Cave, 20
V. Coghlan, 132
V. Dening, 77
i V. G. T. Ry. Co., 163
V. Jockson, 201
V. Wait, 112
■ Baldwin v. Benjamin, 151
V. Kingstone, 263
\ Bales V. Wingfield, 319
Balfour v. Ellison, 212, 301
• Balke, lie, 491
Ball V. G. T. Ry. Co., 69
i V. Parker, 187
Ballard, In re. Lovell v. Forester, 182
Balsom v. Robinson, 398
Bamford v. Clewes, 375
Bank v. Vankoughnet, 216
Bank of Bengal v. Fagan, 219
Bank of B. N. A. v. Eddy, 2.32
V. Strong, 351
Bank of Hamilton v. Durrell, 302
V. Isaacs, 213
V. Stark, 168
Bank of Minnesota v. Page, 158, 159
Bank of Montreal v. Cameron, 323
m
CASES CITED.
XVll
V. Ry. Co., 322,
Council of Bed-
ht, 60, 212
I, 284
86
rland Gap Park
ur, 201
ated Bank, 251
ivick,
td, 315
Cisco Ry. Co., In
. 186
,147
L12
/, 237
,114
18, 256
, 179
59
8
5, 328, 370
399
132
77
. Co., 163
201
!
lin, 151
me, 263
, 319
212, 301
Ic, 69
11 V. Forester, 182
u, 398
,376
oet, 216
Fagan, 219
. Eddy, 232
. Strong, 351
V. Durrell, 302
V. Isaacs, 213
V. Stark, 168
V. Page, 158, 159
r. Cameron, 323
V.
V.
Bank of Toronto v.
V.
V.
V.
Bank of Montreal v. Douglass, 288
V. Gilchrist, 69
V. Little, 361
V. Munroe, 294,
298
V. McFaul, 29
V. McTavish, 315
V. Poyner, 56, 57
V. Statten, 165,
220, 221
v.Yarrington,275
Bank of New South Wales v. O'Con-
nor, 175, 277
Bank of Nova Scotia v. Ward, 352
Bank of Ottawa v. Johnston, 159
V. McLaughlin, 75,
91, 157, 158,
219, 393
Smith, 29, 46
Wade, 58, 208
Burton, 147,248
Hall, 295
McDougall, 65
Wilmott, 29
Bank of Upper Canada v. Wallace,
252
Bank of Whitehaven v. Thompson,
136
Banks v. Self, 261
Banner v. Berridge, 183
Barber v. Bingham, 143
V. Blaiberg, 98
V. Daniel, 293
V. Russell, 159
V.Wood, 189, 190
Barclay v. Sutton, 82
Bardeli v. Miller, 147
Baring and Doulton, In re, 285
Barker v. Furlong, 353
V. Palmer, 118, 129, 220, 222,
233, 296
v. Westover, 395
Barneds Banking Co. (Ltd.) v. Rey-
nolds, 181
Barnes v. Cox, 107, 108
V. Marshall, 103, 110
V. Metcalfe, 185
V. Williams, 190
Barnesdall v. Stretton, 226
Barnum v. Turnbull, 211
Barr v. Clarke, 221
Barrack v, McCullough, 397
Barrett v. Deere, 172
v. Long, 237
Barrie Gas Co. v. Sullivan, 100
Barringer v. Handley, 135
Barrow v. Capreol, 339
Barry v. Barclay, 201
D.C.A. — b
Bartholomew v. Rawlings, 98
Bartlett v. Wells, 27
Barton v. DeGros, 385
Barwick v. De Blaquiere, 119, 323
Baskerville v. Vose, 387
Bateman v. Pinder, 185
Bates V. Chisholm, 214
V. Mackev, 85, 86
V. Walsh,' 385
Bath V. White, 68
Bathard v. London Sewers Co., 114
Baxter v. Nurse, 100
Bayley v. Rimmell, 101
Baylis v. Dinley, 27
Bayly v. Borne, 212
Bazett v. Morgan, 219
Beach v. Odell, 197
Beal v. South Devon Ry. Co., 204
Bean v. Wade, 182
Beard v. Knight, 367
v. Steele, 197
Beasley v. Honey, 398
Beaty v. Fowler, 39, 49
v. Hackett, 251, 252, 265, 280
Beatty v. Maxwell, 227
v. Rumble, 299
Beauchamp v. Cass, 119
Beaupre's Trusts, lie, 398
Beebe, in re, 332
Becher v. McDonald, 99
Beck v. Mordant, 149
Becker v. Hall, 86
Beckett v. Tasker, 399, 400
Beckitt v. Wragg, 224
Beemer v. Oliver, 402
Beeston v. Collyer, 100
Beeswing, The, 222
Begg v. Cooper, 155
Belcher v. Goodered, 120
Belhouse v. Mellor, 274
Bell, Re. Lake v. Bell, 187
v. Black, 2
V. Lamont, 212
v. Manning, 29
v. Oakley, 379
v. Riddell, 395
Bell Telephone Co. and Minister of
Agriculture, 55
Bellamy v. Hoyle, 375, 394
V. Jones, 200, 201
Belmont v. Aynard, 359
Belt V. Lawes, 214
Benedict v. Boulton, 164
Bennett v. Bayes, 304
V. Brumfit, 59, 77
V. Davis, 398
v. Parker, 174
v. Potter, 148
XVlll
CASES CITED.
ii!
Bennett v. Powell, 293, 327
V. White, 188, 387
Bentley v. Vilmont, 83
Berdan v. Greenwood, 177, 196, 200,
218
Beresford v. Armagh (Arahbishop),
401
Beresford-Hope v. Sandhurat, 170
Berkeley v. Elderkin, 5
V. Thompson, 137
Berridge v. Berridge, 30
V. Fitzgerald, < 18
Berrington v. Phillips, 210
Berry v. Exchange Trading Co., 231
V. Zeiss, 157
Berryman v. Wise, 13
Beswick v. Boffay. 217 *.
Bethell, Re. Bethell v. Bethell, 184
Betteley v. McLeod, 190
Betterbee v. Davis, 173
Bettes V. Farewell, 210
Betts V. G. T. Ry. Co., 192
Bevans v. Rees, 174
Bice V. Jarvis, 248
Bickford v. Welland Ry. Co., 93
Bidder v. Bridges, 200
Biddlecombe v. Bond, 33
Biddleson v. Whitel, 4
Biddulph V. Gray, 156
Bigelow V. Bigelow, 19
Bilbie v. Lumley, 263
Bingham v. Allport, 172
V. Cabbot, 69
Birch, Re, 60
V. Birch, 249
Bird V. Barstow, 160
V. Brown, 309
Birdsall v. Corp. of Asphodel, 11
Birk V. Guy, 184
Birnie v. Marshall, 70
Bishop, Ex parte, 209
V. Holmes, 322
Bissell V. Williamson, 55
Bissicks V. Bath Colliery Co., 294
Black V. Allen, 174
V. Smith, 172, 173
V. Wesley, 107
Blades v. Arundale, 359
V. Lawrence, 18, 31
Blake v. Beech, 36, 158, 378
V. Shaw, 100
V. Walsh, 157
Blakeley v. Blaase, 189
Bland v. Andrews, 60, 247
V. Bland, 134
V. Rivers, 59, 212, 861, 864
Blaney v. Hendricks, 209
Blencarn v. Hodge's Distillery Co.,
101
Blenkairne v. Statter, 224
Bletcher v. Burn, 84, 86
Blewitt V. Gordon, 149
Bloor V. Huston, 362
Bloxam v. Sanders, 82
Blyth V. Birmingham, W. W. Co.,
239
Blyiu V. Fledgate, 181, 182
Poast V. Frith, 101, 326
Boddy V. Leyland, 226
Bodenham v. Purchas, 277
V. Ricketts, 56
Boelan v. Melladew, 11)8
Boice V. O'Loane, 4, 181
Boileau v. Rutlin, 4
Bold'B Bail, 225
Bolton V. Williams, 39()
Bolton Partners v. Lambert, 309
Bonaker v. Evans, 36
Bonar v. Macdonald, 29
Bond V. Conmee, 381, 385
Bongard v. McWhirtier, 62
Bonner v. Lyon, 396
Bonser v. Cox, 27
Book V. Ruth, 95
Boorman v. Nash, 245
Booth V. Clive, 18, 383
V. Preston and Berlin Ry.
Co., 360
V. Trail, 246, 247, 249
V. Turle, 231
V. Vicars, 122
Bordier v. Burrell, 232
Borough of Freeport v. Marks, 59
Borradaile v. Nelson, 136
Borthwick v. Walton, 110
Boston Deep Sea Co. v. Ansell, 101
Boswell v. Roberts, 130
Bouch V. Sevenoaks, 247
Bouchier v. Patton, 149
Boughner v. Meyer, 66
Boultbee v. Burke, 185
Boulton V. Smith, 298
Bowden, Re. Andrew v. Cooper, 187
Bowen, Re, 61, 69
v. Evans, 108
v. Webber, 68
Bowerman v. Phillips, 301
Bowes v, Fenwick, 124
v. Caustic Soda Syndicate
(Addenda), 159
Bowie, Re, 111
Bowles v. Johnson, 189
Bowman t. Bowman, 247
Bown, Re. O'Hallerau v. King, 399
V. Child. 201
Box v. Green, 104, 372, 377
Boyce, In re, 328, 335
CASES CITED.
XIX
er, 224
)4, 86
149
52
,82
am, W. W. Co.,
181, 182
,326
226
ms, 277
itts, 56
^ 108
I, 181
1, 396
Lambert, 309
36
d, 29
81, 385
irtier, 62
)6
245
383
and Berlin Ry.
5, 247, 249
1
!2
232
rt V. Marks, 59
m, 136
on, 110
!o. V. Ansell, 101
, 130
8. 247
,149
,66
185
298
w V. Cooper, 187
)8
68
ips, 301
124
Soda Syndicate
la), 159
189
n, 247
ran v. King, 399
J72, 377
15
Boyd V. Btander, 223
V. Hayes, 95
V. Haynes, 147, 248, 250
Boyle V. Bettwa Coll. Co., 96
V. Ward, 339
Boys V. Simpson, 249
V. Smith, 84
Boyse, Re. Crofton v. Crofton, 196
Brackenbury v. Laurie, 358
Bradbury, Ex parte, 326
Bradlaugh, Ex parte, 108
Bradley v. Baylis, 254
V. Chamberlyn (Addenda),
155, 161
V. Fisher, 59
Bradshaw v. Duffy, Re, 69
Bradt v, Bradt, 203
Brady v. Jones, 173
Braham v. Sawyer, 156
Braine v. Hunt, 358
Bramstein v. Lewis, 394
Bramston v. Robins, 277
Brandon v. Hibbert. 66
Brandt v. Craddock, 7 1
Branscombe v. Scarborough, 245
Branwhite, Ex parte, 97
Brash, qui tarn, v. Taggart, 147
Breed, Re, 255
Breedon v. Capp, 62
Brega v, Hodgson, 168
Brenan v. Morrisey, 249
Breslauer v. Barwick, 97
Brett V. Smith, 119
BreuU, Ex parte, 111
Brice v. Bannister, 128
Bridge v. Branch, 312
Bridger v. Savage, 65
Bridges v. Douglas, 112
Brigden v. Heighes, 68
Briggs V. Briggs, 8
V. Evelyn, 383
Brigham v. Smith, 180
Brighton Arcade Co, v. Dowling,
316
Brindley, Ex parte, 258
Briscoe v. Stephens, 56
British Industry Life Ass. Co. v.
Ward, 220
Britton v. Rossiter, 102
Broad v. Ham, 352
V. Perkins, 56
Brock V. McLean, 164
Bromley, Ex parte. In re Redfearn,
230
Brook V. Hook, 309
Brookfield v. Brooko (School Trus-
tees), 65
Brooks V. Aylmer, 159
BroBB V. Huber, 388
Brown v. Blackwell, 170
V. Cinqmars, 288
V. Cocking, 61, 69
V. Croft, 101
V. Gossage, 141
V. Gugy, 228
V. London & N. W. Ry. Co.
113
V. Merrills, 247
V. Muller, 245
V. Murray, 169
V. McGuffin, 251
V. Nelson, 97, 303
V. Overbury, 66
V. Paxton, 28
V. Ruttan, 866
V. Rutherford, 182
V. Sage, 93
V. Shaw, 220, 233, 290
V. Wright, 28
V. Wildboro, 166
V. Zimmerman, 81
Browne v. Smith, 152
Bruce v. Hunter, 209
Brune v. Thompson, 177
Brunaden v. Humphrey, 3, 104
Brunskill v. Powell, 103
Bryce v. Kinnee, 357, 361
V. Salt, 167
Brydges v. Fisher, 195, 201
Bryson v. Glandinan, 164
Bubb V. Yelverton, 65
Bucoleugh (Duke) v, Eden, 184
Buchanan v. Frank, 293
Buck V. Hunter, 385
Buckley v. Cooke, 202
V. Ham, 111, 113
Buckmaster v. Russell, 182
Buffalo & Lake Huron Ry. Co. v.
Brooksbanka, 809
Buffalo & Lake Huron Ry. Co. v.
Hemingway, 57
Buffington v. Gerriah, 82
Buggin V. Bennett, 56
Building & Loan Assn. v. Heimrod,
91, 143, 394
BuUen v. Moodie, 86, 45, 54, 194, 828
Bullock V. Caird, 144
V. Dunlap, 292
Bunbury v. Fuller, 61
Bunnell v. Whitelaw, 197
Burgeaa v. TuUy, 808, 310, 311, 812
318
Burke v. Glover, 87, 288
V. McWhirter, 82
Burling v. Harley, 888
Burlinson v. Hall, 128
XX
CASES CITED.
:.:!
m
Burn V. Belcher, 84, 212
Burnell v. Hunt, 141
Burnet v. Hope, 101
Buruham v. Hall, 332
Burns v. Butterfleld, 04
V. Rogers, 77
Burr V. Marsh, 05
V. Munroe, 83
Burrowes, In re, 57, 02, 100, 108, 208,
220
Bursill V. Tanner, 402
Burstall v. Beyfus, 78
V. Fearon, 217
Burton v. Roberts, 240, 247
Buse V. Roper, 125
Bush V. Fry, 82
V. Pimlott, 82
Bushell V. Moss, 01, 08, 09
Bussche V. Alt, 319
Bustros V. White, 192
Butler V. Ablewhite, 112
Butler V. Butler, 394, 401
V. Ford 13
V. Knight, 170, 245
V. Rosenfeldt, 337
Butt, V. Newman, 379
Butters Ex parte, 155, 221
Butterworth v. Walker, GO
Button V. O'Neill, 208
V. Thompson, 100
V. Woolwich Building Socy,
231
Byrne v. Knipe, 321
c.
C's settlement, 399
Cadman v. Lubbock, 173
(3aine v. Coulton, 277
Caird v. Fitzell, 151
Cains v. Ottawa (Water Comrs.),
182
Caisse v. Tharp, 250
Calcutt V. Ruttan, 84
Calder v. Halkett, 18, 383
Caledon (Trustees) v. Caledon (Tp.)
375
Caledonian Ry. Co. v. Lockhart,
280
Calverly v. Smith, 294
Calvert v. Moggs, 381
Cambefort v. Chapman, 4
Cameron v. Allen, 154, 217, 270, 279
V. Campbell, 138, 182,
324
V. Hoighs, 157
V. Rutherford, 157
V. Wait, 118, 152, 241
Campbell v. Barrie, 007, 308
V. Beamish, 213
V. Cole, 398
V. Coulthard, 304, 318,
344, 353
V. Cushman, 359
V. Davidson, 290
V. Lepan, 82
V. Madden, 32, 313
V. Peden, 147, 250
Canada Central Ry. Co. v. Murray,
3
Canada Cotton Co. v. Parmalee, 95,
247, 200
Canada Farmers M. Ins. Co. v.
Welsh, 115
Canada Guarantee Co. v. Milne, 30
Canada Southern Ry. Co. v. Geb-
hard, 111
Canada West F. M. & S. Ins. Co.
V. Merritt, 28
Canadian Bank of Commerce v.
Crouch, 2.''>2
Canadian Bank of Commerce v.
Gourlay, 08
Canadian Bank of Commerce v.
Northwood, 90
Canadian Bank of Commerce v.
Tasker, 362
Canadian 13ank of Commerce v.
Woodcock, 157
Canadian Land & Emigration Co.
V. Dysart, 5, 208
Canadian Pacific Ry. Co. v. Grant,
303
Candy v. Maughan, 358
Cannan v. Wood, 277
Canniff v. Bogart, 80, 87
Cannon v. Toronto Corn Exchange,
15,59
Cappeleus v. Brown, 98
Carey v. Lawless, 148, 257
Carlill V. Carbolic Smoke Ball Co.,
05
Carlisle v. Orde, 150, 157
Carmarthen & Cardigan Ry. Co. v.
Manchester and Milford Ry.
Co., 37
Caron v. Graham, 81, 342, 345, 348,
361
Carpenter v. Mason, 329
V. Pearce, 361
V. Vanderlip, 182
Carr v. Bay croft, 202
Carroll v. Lunn, 309
V. Potter, 342
Carruthers v. Graham. 190
V. Reynolds, 295
liiilH
CASES CITED.
XXI
trie, 307, 308
|imish, 213
s, 398
[ultliard, 304, 318,
I'l, 353
Ihman, 359
Viclson, 290
|ian, 82
iden, 32, 313
Ben, 117, 250
|Ry. Co. V. Murray.
to. V. Parmalee, 95,
[s M. Ins. Co. V.
lee Co. V. Milne, 30
n Ry. Co. v. Geb-
M. & S. Ins. Co.
of Commerce v.
of Commerce v.
of Commerce v.
96
of Commerce v.
of Commerce v.
57
& Emigration Co.
208
I Ry. Co. V. Grant,
in, 358
. 277
t, 80, 87
to Corn Exchange,
wn, 98
, 148, 257
3 Smoke Ball Co.,
156, 157
irdigan Ry. Co. v.
and Milford Ry.
, 81, 342, 345, 348,
on, 329
•ce, 361
derlip, 182
262
09
342
ham. 196
nolds, 295
Carsley v. Fiskir. 110
Carter v. Smith, 60
V. Stewart, 362
Carveth v. Fortune. 285
V. Greenwood, 84
Cartwrif?ht v. Gray, 92
V. Hinda, 111, 310
Cams Wilson's Case, 369, 370
Caspar v. Keachie, 13, 45, 181
Castelli v. Groom, 200
Castle V. Ruttan, 297, 298
Caston's Case, 3
Castrique v. Imrie, 83
Caswell V. Catton, 86
Cataraqui Cemetery Co.v.Burrowes,
108
Cathcart v. Haggart, 185, 186
Caton V. Rideout, 401
Catton V. Gleason, 382
Caudle v. Seymour, 339, 377
Cavendish v. Greaves, 97
Cazenove v. Vaughan, 202
Chabot V. Morpeth, 55
Chadd V. Meagher, 214
Chadwick v. Ball, 257
Challie v. York, 209
Chambers v. Chambers, 108
V. Green, 62
Chamberlain v. King, 383
V. Macdonald, 398
Chandler v. Grieves, 101
V. Sanger, 349
Chapman v. Auckland Union, 384
V. Biggs, 94, 249
V. Davis, 189
V. Knight, 165
V. Speller, 296
V. Withers, 221
Chard v. Jervis, 327
V. Rae, 4, 182
Charles v. Branker, 177
Charlton v. Charlton, 232
Chasemore v. Turner, 182, 183
Chatfield v. Comerford, 351
Chatterton v. Watney, 249, 261, 262,
281
Cheese v. Scales, 3
Cheshire v. Bm-lington, 255
Cheslyn v Dalby, 183
Chew V. Holroyd, 62, 69
Chichester v. Gordon, 41, 327
Chinn v. Bullen, 393
Chisholm v. Doulton, 239
V. Morse, 4
v. Oakville, 61, 62
v. Prov. Ins. Co., 316
Chivers v. Savage, 60, 71
Christie v. Unvvin, 54
Christmas, Re, 70
V. Eick, 131
Christopher v. Croll, 118
Christopherson v. Lotinga, 119, 323
Churcher v. Stringer, 209
Churchill v. Siggers, 293
Churchward v. Coleman, 18, 362
Citizens Ins. Co. v. Parsonu, 24
City of Kingston v. Brown, 132
v. Shaw, 360
Clark V. CuUen, 145
V. Woods, 349
Clarke, In re, 54
v. Barron, 164
V. Cookson, 234
V. Brad laugh, 296
V. Davey, 379
V. Easton, 299
V. Fuller, 157
V. Garrett, 308
V. McDonald, 91, 98, 157,
158. 246. 257, 393
V. Roche, 220
V. Uuttan, 84
V. Saffery, 191
V. Skipper, 234
V. Union Ins. Co., 3
V. Woods. 379, 380
due d V. Thompson, 189
Clarkson v. Musgrave, 218, 384
V. Severs, 297
Clay Com. Telephone Co. v. Root,
102
Cleave v. Jones, 186
Cleghorn v. Munn, 57
Clement v. Kirby, 337
Clements, lie, 371
Clerk v. Withers, 319
Clifton V. Davis, 362
Clinton v. Peabody, 196
Close V. Phipps, 349
Clough V. London & N. W. Ry. Co.,
83
Coates, Ex parte. In re Skelton, 338
Cobb V. Charter, 349
Cobbett V. Hudson, 170
Cock V. Allcock, 196
Cochrane v. Hamilton Pro. & Loan
Society, 4
V. Moore, 314
Cockerell v. Van Dieman's Land
Co., 160
Codrington v. Lloyd, 148
Codd V. Cabe, 380
Coe v. Coe, 59, 61
Coehn v. Waterhouse, 225, 226
Coffin V. Dyke, 366, 372
Cohen v. Hale. 246, 251
zxu
CASES CITED.
Coke V. Jones, 212
Cole V. Davis, 291
V. Miles, GS
V. Sherard, 296
Colebrooke v. DobbH, 108
Coleman, In re, 9
V. G. E. Ry. Co., 128
V. Glanville, 95
V. Kerr, 81
Colin Campbell, In re, 180
Collie, In re, 126
Collinge v. Heywood, 181
Collingridge v. Paxton, 315
Collins V. Collins, 316
V. Niokon, 169
V. Rose, 380
Collis V. Groom, 147
V. Lewis, 221, 361
V. Stack, 183
Colloden v. McDowell, 361
Colonial Bank of Australasia v.
Willan, 60
Colvin V. Buckle, 180
V. Rich, 248
Combined Weighing & Ad. M. Co.,
Re, 261, 262, 281
Comfort V. Betts, 128
Commercial Bank v. Hughes, 164
V. Jarvis, 249
V. Wilson, 301
V. Woodruff, 288
Commins v. Scott, 18
Commissioner of Railways v.Brown,
163 213
Comstock V. Burrows, 197
V. Galbraith, 198
V. Harris, 189
V. Tyrrell, 198
Concha v. Concha, 3
Congrieve v. Evetts, 366
Conmee v. C. P. Ry. Co., 60, 159,
192, 284, 285
Connan, Re. Ex parte, Hyde, 261
Connecticut Mut. Fire Ins. Co. v.
Eavanagh, 219
Connecticut Mut. Life Ins. Co. v.
Moore, 164, 230
Connell v. Hickock, 357
Connelly v. Bremner, 21
Connors v. Birmingham, 92
V. Darling, 377
Connebeare t. Farries, 231
Consumers Gas Co. v. Kissock, 156
Cook V. Allen, 358
V. Birt, 331
V. Cook, 365
V. Dey, 136
V. Fowler, 81
Cook V. Grant, 182, 187
V. Palmer, 319
Cooke V. Gill, 110
V. New River Co., 15
Cool V. Mulligan, 82
V. Switzer, 27
Cooloy V. Smith, 213
Coolican v. Hunter, 18, 64
Cooper, Ex parte. In re Baum, 296
V. Brayne, 262
V. Cooper, 231
V. Lawson, 262
V. Macdonald, 397
V. Wandsworth District, 36
Coore V. Callaway, 174
Copeland v. Blenheim, 138
Copeman v. Hart, 103
Copping v. McDonell, 108
Co(]uillard v. Hunter, 81
Corbett v. Johnston, 81
V. The General Steam Nav.
Co., 114
Coren v. Barnes, 259
Cork* Bandon Ry. Co. v. Goode, 352
Corlett v. Roblin, 108
Cormick v. Ronayne, 252
Cornforth v. Smithard, 183
Cornish v. Abington, 166
Cornwall v. The Queen, 378
Cornwell v. Sanders, 68
Corp. of Haldimand v. Martin, 140
Ontario v. Paxton, 29
Rawdon v. Ward, 28
Vespra v. Look, 140
Welland v. Brown, 33
Corsant r^ui tarn v. Taylor, 5
Cotes V. Davis, 170
Cotton V. Cadwell, 379
V. Mitchell, 182
v. Vansittart, 252
Couling v. Coxe, 190
Coulson v. O Connell, 70
v. Spiers, 221
Court V. Scott, 132
V. Sheen, 159
Cousins v. Bullen, 128
v. Lombard Bank, 218
Cowan, Ex parte, 58
v. Carlill, 261
V. McQuade, 394
V. O'Connor, 110
Cowing v. Vincent, 182
Cowley v. Local Board, 236
Cox V. Balne, 358, 367
V. Bennett, 401
V. Brain, 171
T. Hamilton Sewer Pipe Co. 385
Coyne v. Broddy, 187
CASES CITED.
XXIIl
l 187
lU
Ir Co., in
12
13
, 18, 64
n re Baum, 2!)fl
2(12
231
202
lid, 397
orth District, 3(1
174
ei.li, 138
103
ell, 108
ter, 81
n, 81
leral Steam Nav.
U
59
Co. V. Goode, 352
108
ue, 252
tiard, 183
)n, 166
ueen, 378
ra, 68
id V. Martin, 140
. Paxton, 29
. Ward, 28
Cook, 140
'. Brown, 33
Taylor, 5
379
182
rt, 252
10
Bll, 70
221
128
i Bank, 218
i
61
), 394
■, 110
182
ard, 236
67
ver Pipe Co. 385
17
Crabtree v. Mensersmith, 70
Craig V. Crai«, 294, 859, 860
V. Milne, 30
Crampton v. Ridley, 286
Cranclall v. Crandall, 180
Crawford v. Beattie, 292, 827, 877,
382
V. Crawford, 135
V. Seney, 01, 70
V. Thomas. 82
Credits Gerundeiise v. Van Weede,
359
Creen, Re, 208
Cremetti v. Crom, 247
Crippen v. Ogilvy, 200
Croft V. Boite, 382
Crombie v. Davidson, 178
Crompton v. Hutton, 190
Cronshaw v. Chapman, 299
Crooks V. Stroud, 320
Croome v. Branvford, 2
Cropper v. Warner, 294, 359
Cross V. Watts, 68
V. Wilkins, 134
V. Williams, 226
Crossman v. Shears, 126
Crowe V. Price, 94, 247
Crowther v. Appleby, 191
V. Eljiood, 327
V. Thorley, 113
Crozer v. Pilling, 172
Crozier v. Cundcy, 379
Cruickshank v. Corbey, 284
V. Rose, 67
Crump V. Cavendish, 160
Crush V. Tnrner, 220
Cuckson V. Stones, 101
Cullmm V. Love, fj6, 87
Colloden v. McDowell, 238, 294, 298
Culverhousev.Wickins, 201,262,274
Culverson v. Melton, 381
Cuming v. Toms, 385
Cummings v. Usher, 211
Cundy v. Lindsay, 83, 320
Cunliflf V. Whitehead, 197
Curling v. Robertson, 202
Currie v. Hodgins, 29
Currey, Re. Gibson v. Way. 399
Curry, Re, 285
Curtis V. Norris, 250, 207
v. Williamson, 4
Curwen v. Milburn, 183
Cutler V. Morse, 188
V. Wright, 203
D.
Daby v. Gehl, 311, 313
Dakins, Ex parte, 322, 328, 333, 335
Dalby v. Hiimphrev, 210
Dale V. Cool, 383, 3'si
V. Heald, KiH
Dalling v. Matchett, 11
Dallow V. Garrold, 252, 280
Dame v. Carberry, 359
V. Siater, 27, 897
Danaher, v. Little, 70
Daniel v. Charsley, 224
V. Ferguson, 93
v. Fitzell, 342
V. James, 220
V. Sinclair, 210
Danks, Ex parte, 123
Darngh v. Dunn, 300
Darby v. Waterlow, 359
Darcy v. Carragher, 248
Dark v. Huron and Bruce, 8
Darling v. CoUatton, 358, 300
v. Darling, 196
V. Rice, 395
Dartmouth College v. Woodward,
264
Dartnell & Quarter Sessions of
Prescott, 45, 192
Davidson v. Belleville & N. H, Ry.
Co., 4
V. Douglas, 252
V. Grange, 294
v. Reynolds, 300
V. Taylor, 248
V. Q. S. of Watfiloo, 375
Davies, Re, 371
Davies v. Edwards, 180
V. Westmacott, 150
Davies Brewery & M. Co. v. Smith,
302
Davis V. Canada F. M. Ins. Co., 170
V. Flagstaff Silver Mining
Co., 99
V. Freethy, 251, 280
V. Lovell, 190
V. Lowndes, 201
V. Moore, 299, 304, 334
V. Pearce, 132, 151
V. Spence, 159 '
V. Walton, 71
Davy, Doe d. v. Haadon, 13
Davy V. Johnston, 28, 138, 304
Davys v. Richardson, 171
Dawson v. Coleman, 54
V. Moffatt, 398
v. Remnant, 07
Day v, Carr, 371
Dayfoot v. Byrens, 323
Deadman v. Kwen, 19
Deakin v. Lakin. Re Shakespeare,
394
Deal v. Potter, 81
m
M
XXIV
CASES CITED.
Deal V. Schofieia, 68
Dean v. James, 173
Dear v. Sworder, 98
Dearmer. Re. James v. Dearmer,
398
Death, Ex parte, 55
Death v. Harrison, 363
Debenham v. Wardroper, 327
De Bussche v. Alt, 274
De Cadaval v. Collins, 349
De Forrest v. Bunnell, 119
De Francesco v. Barnum, 93
De Habar v. Portugal (Queen), 56,
62, 269
Delafield v. Jones, 132
V. Tanner, 149
Delaney v. Moore, 340
Delesdernicr v. Burton, 100
Dempsey v. Caspar, 362
V. Dougherty, 386
Dennis v. Seymour, 161
V. Whetham, 294
Dennison v. Knox, 108, 316
Denton v. Marshall, 56, 57
V. Strong, 285
Do Pothonier v. De Mattes, 317
De St. Martin v. Davis, 362
Derry v. Peek, 245
Devanney v. Dorr, 284
Devonshire v. Foote, 58
Dewar v. Carrique, 293
v. Sparling, 27, 30
De Winton v. Brecon, 248
Dews v. Riley, 13, 37, 264, 328
Dick V. Tolhausen, 147
Dickenson v. Shee, 172, 173
Dickson v. Jarvis, 180
v. Neath & Brecon Ry. Co.
322
v. Renter's Tel. Co., 245
Diggle V. Higgs, 66
Dillaree v. Doyle, 295
Dillon v. Cunningham, 327
Dimes v. Grand Junction Canal Co.,
19
Dingley v. Robinson, 249
Dingman v. Austin, 397
Dixon, Re Dixon v. Smith, 401
V. Lee, 190
V. Snarr, 61
Dean V. Michigan Cent. Ry. Co.,
381
Dobie V. Lemon, 148, 149, 150, 158,
180
Dobson V. Festi, 137, 144
Dodd V. Drummond, 156
Doe V. Derby, 202
V. Kelly, 191
Doe V. Pattisson, 196
V. Ross, 191
Doer V. Rand, 362
Dolby V. lies, 177
Dollery v. Whaley, 384, 387
Dolphin v. Layton, 248
Dominion, etc., Co. v. Stinson, 202
Dominion Bank v. Bell, 203
Dominion Sav. & Inv. Co. v. Kilrov,
233
Donaldson v. Haley, 385
Donnelly v. Donnelly, 94, 400
V. Hall, 359
v. Stewart, 5, 147, 2Si
Donovan v. Brown, 229
Donovan Re. Wilson v. Beatty, 4
Dooby v. Watson, 182
Doran \. Toronto Suspender Co.,
233, 358
Doswell v. Impey, 18
Dougall v. Cline, 181
V. Leggo, 60, 105, 106
Dougherty v. Williams, 213
Douglas V. Hutchinson, 107 399
V. Patrick, 172
Dowdell V. Australian Steam Nav,
Co., 190
Dover v. Child, 292
Dowling v. Miller, 83
Downe v. Fletcher, 395
Downey v. Patterson, 214
Doyle v. Kaufman, 296
V. Lasher, 233, 360, 364
Dresser v. Johns, 146, 147, 248, 336
Drinkwater v. Clarridge, In re, 55,
128
Duberly v. Gunning, 168
Dublin, Wicklow & Wexford Ry.Co.
V. Slattery, 168
Duck V. Bates, 170
V. Braddyll, 365
V. Mazen, 30
Duddin v. Long, 358
Duff V. Barnett. 29
Duffill V. Erwin, 82
Duff us V. Creighton, 299, 366
Dufresne v. Dufresne, 400
Duggan V. Kitson, 295
Duignan v. Walker, 114
Duke of Beaufort v. Crawshay, 201
V. Ashburnliam
(Earl). 202
Duke of Newcastle, In re, 255
Dulmage v. Judge of Leeds and
Grenville, 18
Duncan v. Cashin, 357
V. Fees, 323, 358
Duncan doe t1. v, Edwards, 3
s
CASES CITED.
XXV
i84, 387
248
ly. Stinson, 202
ieU, 203
'<^- Co. V. Kilroy,
385
ly, 94, 400
r
. o, 147, 2Si
'22!)
V. Beatty, 4
Suspender Co.,
, 105, 106
ms, 213
ion, 107 39i)
172
m Steam Nav.
3
1, 214
!96
, 360, 364
), 147, 248, 330
idge, In re, 55,
168
/■exfordRy.Co.
299, 366
^,400
5
14
Jrawsliay, 201
ABliburnlmm
1 re, 255
f Leeds and
r
158
brds, 3
Duncombe v. Brighton Club and
Norfolk Hotel Co., 209
Dnndas (Town) v. Gilmour, 98
V. Johnson, 213
Dunlap V. Babany, 86
Dunlop V. Higgins. 34
Dunn V. Salter, 338
Dunnett v. Harris;, 159, 161
Dunston v. Paterson, 43, 112
Durrell v. Evans, 77
Durrell v. Pritchard, 93
Durrant v. Ricketts, 157
Dutens v. Itobson, 60
D wight V. Macklam, 190
Dyce V. Sombre, In re, 19
Dye V. Dye, 398
Dyke v. Stephens, 217
E.
Earl of Lisburne v. Davies, 115
Earle v. Stoker, 16
Early v. Bowman, 177
V. McGill, 200
East & "West India Dock Co. v.
Kirk, 285
East End Building Society v. Slack,
321
iiastern Counties Ry. Co. v. Mar-
riage, 141
East India Co. v. Naish, 201
Eastwood V. Miller, 124
Easy, In re, 135
Ebberts v. Brooke, 4, 55, 336
Ecclestone v. Jarvis, 83
Eddie v. Davidson, 295
Eddy V. Ottawa City P. Ry. Co ,
231
Eden v. Weardale Iron & Coal Co
217
Edgar v, Magee, 182, 384
V. Watson, 177
Edmonds v. Pearson, 189
V. Wallingford, 849
Edward v. Cheyne, 401
Edwards v. Edwards, 95
V. English, 361
V. G. W. Ry. Co., 210
V. Yates, 174
Eggington v. Litchfield, 27
Eisdell V. Cunningham, 252
Elliott V. Biette, 58, 59, 77
V. Capell, 247
V. C. P. Ry. Co., 201
V. Norris, 110, 306
Ellis V. Fleming, 62
V. Loftus Iron Co., 246
V. Watt, 60
Elmsley v. Cosgrave, 201
Elphinstone v. Monkland Iron &
Coal Co., 96
Elston V. Rose, 61
Elwell V. Jackson, 249, 251
Ely V. Moule, 211, 293
Emanuel v. Bridger, 261
V. Smith, 270
Emerson v. Brown, 131, 135
Emery v. Barnett, 69
v. Wase, 286
Emes V. Emes, 181, 185
Emma Silver Iklining Co., In re, 191
Emmerson v. Heelis, 78
England v. Marsdeu, 349
English V. Mulholland, 61, 69
Enraght v. Penzance, 61, 69
Erichsen v. Last, 113
Erickson v. Bx-and, 352
Erwin v. Powley, 130
Escott V. Gray, 145
Esdaile v. Visser, 327
Eureka Woolen Co. v. Moss, 219
European Central Ry. Co , Me, 211
Evans, Ex parte, 62, 95
V. Bremridge, 29
V. Brick, 98
V. Gill, 149
v. Hoare, 77
V. Matthews, 230
V. O'Donnell, 181
v. Roe, 100
V, Sutton, 61, 212
v. Wills, 329, 3?5
Evelyn v. Lewis, 95
Everard v. Watson, 256
Everitt v. Paxton, 396
Eversfield v. Newman, 69
Every v. Wheeler, 149
Ewart V. Latta, 141
Ewing V. Thompson, 108
Exchange Bank v. Barnes, 376
V. Springer, 29, 87
V. Stinson, 92
Eyles V. Ellis, 277
Eyre v. Hughes, 97
P.
Fair v. Bell, 251
V. McCrow, 69
Fairman v. Oakford, 100
Farden v, Richter, 148, 161
Farley v. Graham, 191
v. Lincoln, 83
Farr v. Robins, 5, 312
v. Ward, 209
Farrant v. Thompson, 29 i
XXVI
.CASES CITED.
Fan-ell v. Stephens, 196, 198
Fanow v. Tobin, 363
V. Wilson, 101
Faveiell v. Eastern Counties Jiy.
Co., 283
Fawcett v. Cash, 100
Fearnside v. Flint, 181
Fearon v. Norvall, 55
Featherstone v. Smith, 93
Federal Bank v. Hope, 159
Fee V. Mcllhargey, 60, 140, 212
Fell V. Whittaker, 245, 382
V. WiUiams, 159
Fellows V. The Lord Stanley, (own-
ers), 391
V. Thornton, 249, 259
Fenwick v. Laycock, 358, 360
V. Schmalz, 352
Ferguson v. Carman, 183, 251, 265
V. Corp. of Howick, 59
V. Earl of KinnouU, 257
V. Elliott, 120
V. Sampey, 107
Fergusson v. Davison, 179
V. Fyffe, 210
Fern v. Lewis, 184
Ferris v. Eyre, 284
V. Fox, 99
Field, lie, 77
V. Bennett, 135
V. Evans. 399
V. McArthur, 395
V. Rice, 60, 04, 248
Fieldhouse v. Croft, 315
Figg V. Wilkinson, 229
Finch V. Boning, 172
V. Brook, 173
V. Miller, 174
Findlay v. Peden, 191
Finlay v. Chirney, 382
V. Miscampbell, 236
Finlayson v. Howard, 107, 361
Firth V. Bush, 133
Fischer v. Hahn, 200
Fisher v. Berrell, 200
v. Izataray, 196
v. Keane, 8, 15, 120
V. Mowbray, 27
v. SuUey, 341
v. Waltham, 65
Fiskin v. Brooke, 94
v. Chamberlin, 200
Fitzgibbon v. Blake, 396
Fitzhugh V. Lee, 201
Fitzsimmons v. Mclntyre, 58
Flamank, Re. Wood, v. Cock, 401
Fliurty v. Odium, 249
Flatt a-nd Prescott, He, 30
Flatt V. Waddell, 219
Flegg V. Prentice, 94
Fleming v. Livingston, 61
Fletcher, In re, 330
Fletcher v. Baker, 176, 234
V. Calthrop, 45, 336, 378
v. London* N.W. Ry. Co.,
164, 213
v. Noble, 362, 393
v. Wilkins, 384
Flett V. Way, 70, 303
Flint V. Corby, 92
Flitters v. Allfrey, 292
Florence v. Drayson, 210
Flower v. Allen, 134
V. Lloyd, 220
V. Low Ley ton (Local Bd.),
384
Foat V. Margate (Mayor), 384
Foley V. Moran, 59, 212, 361, 364
Folger V. McCallum, 119
V. Minton, 80, 384
Foord V. Noll, 174
Foot v. Baker, 65
Forbes v. Michigan Cent. Ry. Co.,
208
V. Wells, 196
Ford V. Baynton, 358
v. Crabb, 64
v. Harvey (Addenda), 159
v. Spafford, 187
V. Taylor, 232, 234
Fordham v. Akers, 80
Forfar v. Climie, 76
Forrester v. Thrasher, 296
Forsdike v. Stone, 41, 371
Forster, Re, 62
Foster v. Emory, 218
v. Geddes, 3
v. Glass, 298
v. Green, 219
V. Reeves (Addenda), 75, 91
V Smith, 298
V. Temple, 60
V. Usherwood, 125
V. Van Wormer, 323, 320
V. Weston, 209
Foulger v. Taylor, 367
Foulkes, Ex parte, 333
Founders v. Fitzgeorge, 158
Fowler v. Roberts, 247
V. Vail, 181
Fox v. Symington, 222, 363, 364
v. Toronto and Nipissing Ry.
Co., 152, 176, 195
Foxall's Bail, 226
Fradenburgh v. Haskins, 214
France v. Campbell, 315
CASES CITED.
XXVll
9
on, 61
76, 234
, 45, 336, 378
&N.W.Ry.Co..
62, 393
384
292
,210
)on (Local Bd.),
ayor), 384
212, 361, 364
1, 119
0, 384
Cent. Ry. Co.,
6
58
Idenda;, 151)
r,
,234
80
6
ler, 296
41, 371
18
t
d
Lddenda), 75, 91
8
d, 125
ner, 323, 320
09
167
33
rge, 158
J47
222, 363, 304
Nipissing Ey.
6, 195
kins, 214
, 315
France v. Dutton, 78, 318
Francis v. Brown, 341, 342
V. Dowdeswell, 223
V. Steward, 56
Frank v. Carson, 197, 198
V. Edwards, 29
Franklin v. Gream, 28
Fraser v. Burrowes, 217
V. Gore Dist. M. F. Ins. Co.,
28
V. North Oxford and West
Zorra Plank Boad Co.,
212
Fray v. Blackburn, 18
Frederici v. Vanderzee, 118, 323
Freehold Loan & S. Co. v. McLean,
210
Freeland v. Brown, 216
Freeman v. Cook, 274
V. Ontario and Quebec
Rv. Co., 284
V, Read, 181, 386
V. Tranah, 175
Freeport (Borough) v. Marks, 59
French v. Lewis, 250
Freston, Re, 191
Frey v. Aultman, 338
V. Blackburn, 18, 60
V. Wellington M. Ins. Co., 24
Friel v. Ferguson, 383
Friend v. London, Chat, and Dover
Ry. Co. 192
Friendly v. Needier, 57
Fritz V. Hobson, 231
Frontenac (License Com'rs) v.
Frontenac (County), 390
Fry V. Moore, 135
Fuggle V. Bland, 94
Fuller V. Alexander, 159
V. Cleveley, 231
V. Mackay, 111
V. Prentice, 189
V. Richmond, 92
Furber v. Cobb, 16
Furlong v. Reid. 230
Furness v. Booth, 96, 98
V. Mitchell, 397
Furnival v. Saunders, 75
G.
Gadsden v. Barrow, 358
Gage V. Collins, 362
Galbraith v. Fortune, 366, 367
Gallagher v. Bathie, 107
Gallant, lie, 384
Gallant v. Young, 59
■Galliard v. Laxton, 380
Galligar v. Payne, 255
Galloway v. Key worth, 200
Galmoye v. Cowan, 249
Games, Ex parte, 317
Gardiner v. Juson, 308
V. Simmons, 231
Gardner v. Burgess, 95
V. Green, 156
Garland v. Omnium Securities Co.,
Ill
V. Thompson, 215
Garner V. Coleman, 18
Garrett v. Roberts 100, 165, 219,
231
Garton v. G. W. Ry. Co., 108
Gates V. Smith, 298
Gault V. Murray, 93
Gay V. Matthews, 380, 384
Gayton v. Bayman, 384
Geddes v. Morley, 92
Gegg V. Adams, 108, 219
Gemmell v. XJolton, 184
V. Garland, 378
Gendron v. McDougall, 230
General Horticultural Co., lie, 251,
260
Genge v. Freeman, 261
Gerrard v. Clowes, 277
Gerrie v. Chester, 225
Gesner, Ee, 331
Gibbings v. Strong, 155
Gibbons v. Chadvick, 57, 63
V. Farwell, 294
Gibbs V. Cruickshank, 83, 245, 292
V. Guild, 180, 389
V. Southam, 29
Giblin v. McMullen, 348
Gibson v. McDonald, 20
V. People, 150
V. Wilson, 134
Gidley v. Palmers ton (Lord), 250
Gilbert v. Gilbert, 103
Gilchrist, Ex parte. Re Armstrong,
399
V. Conger, 81
Gilding v. Eyre, 293
Giles V. Hemming, 131, 135
Gill V. Woodfin, 155
Gillespie v. Nickerson, 169
Gillett V. Rippon, 30
Gillies V. Wood, 81
Gilmer, Re, 295, 315
Gilmour v. Buck, 81, 84
Gilpin V. Rendle, 67
Ginn v. Scott, 55
Giraud v. Austen, 169
Girdlestone v. Brighton Aquarium
Co., 212, 293
XXVlll
CASES CITED.
ii'
Girvan v. Grepe, 159
V. Burke, 319
Gladstone v. Padwick, 255, 294, 318
Gladwell v. Blake, 379
Glanville, Re. Ellis v. Johnson, 401
Glass V. Cameron, 296, 301
Glascott V. Day, 173
Glasspoole v. Young, 43
Glaascn v. Williams, 191
Glover, lie, 77
V. Coles, 84
G. N. Ey. Co V. Mossop, 167, 212,
224 225
Goddard v. Hapgood, 250, 267
Godolplun V. Tudor 24
Godson V. City of Toronto, 55
Goff or Gough v. Mills or Miller,
189, 190
Gogi^s V. Huntingtower, 130, 131
Golding V. Bellnap, 86, 87
Goodes V. Cluff, 219
Goodland v. Blewith, 171
Goodman v. Boyes, J 85
V. Robinson, 259
V. Sayers, 11
Goold V. Rich (Addenda), 314
Gordon v. Jennings, 253
V. O'Brien, Be, 103
V. Rumble, 366, 372
Gorringe v. Terrewest, 134
Gorslett v. Harris, 112
Goslin V. Tune, 360
Gosset V. Howard, 54
Gouge's Bail, 226
Gough or Goff v. Miller or Mills,
189, 190
Gould V. British Am. Ass. Co., 214
V. Close, 97
V. Hope, 282, 315
V. White, 297
Government of Newfoundland v.
Newfoundland Ry. Co., 97
Gowanlock v. Mans, 147
Grace v. Walsh, In re, 103, 104
Graham v. Campbell, 93
v. Devlin, 324, 326
v. Furber, 296
v. McArthur, 32
V. Smart, 18, 64, 291
v. Spettigue, 69
V. Stewart, 198
V. Tomlinson, 75, 76, 77,
257
Grand Hotel Co. v. Cross, 71
Grand Junction Canal Co. v. Dimes,
19
Grand River Nav. Co. v. Wilkea,
156
Grant, Ex parte, 30
v. Aldrich, 128
V, Anderson, 114, 137
v. Easton, 148
V. Grant, 397, 398
V. G. W. Ry. Co. 230
V. Holland, 118
V. McAlpine, 303
V. McDonald, 180
V. McDonell, 251
V. Peoples Loan & Deposit
Co., 210
V. Shaw, 250, 267
V. Young, 78
Grantham v. Bishop, 190
Grass v. Allen, 57^ 60, 62
V. Austin, 359
Grassett v. Carter, 218
Gratham v. Powell, 182
Gray v. Ingersoll, 27
v. McCarty, 339
v. Richford, 219
V. Webb, 179
V. Wilson, 286
Great Northern Committee v. Inett,
290
Great Western Ry. Co., Ex parte,
108
Greaves, In re, 24
V. Fleming, 175
Green, Re, 260
v. Black, 110
V. Brown, 357
v. Duckett, 349
V. Humphries, 184
V. Penzance, 266
V. Ponton. C7
V. Hamilton Pro. Loan Co.,
147
V. Stevens, 359
Greene v. Harris, 97
V. Wood, 354
Greenizen v. Burns, 59
Greenough v. Eccles, 191
Greenshields Doe d. v. Garrow, 295
Greenwood v. Sutcliffe, 174
Greer v. Hunter, 97
Gretton v. Mees, 174
Greville v. Stultz, 196
Grey, Re. Acason v. Greenwood, 399
Grieve v. Molson's Bank, 213
Griffin, Ex parte, 303
v. Coleman, 224
v. Dickenson, 169
v. Patterson, 396
Griffith V. Blake, 93
v. Hodges, 174
V. Taylor, 384
CASES CITED.
XXIX
8
114, 137
398
Co. 230
18
303
180
251
oan & Deposit
267
190
62
18
182
9
9
mittee v. Inettj
Co., Ex parte,
,175
I
7
•19
8, 184
266
Pro. Loan Co.,
59
59
, 191
V. Garrow, 295
ffe, 174
6
ireenwood, 399
lank, 213
1
224
1, 169
396
74
)4
Griffiths V. Grantham (Municipal-
ity), 11
V. Ystradyfodwg (School
Bd.), 175
Grill V. General Iron Screw Co., 198,
203, 204
Grimbley v. Aykroyd, 102, 103
Griswold v. Buffalo, Brantford &
G. Ry. Co., 146, 250
Grogan v. London & M. Ins. Co., Ill
Groom v. Kathbone, 159
C. -.-e V. Young, 201
Grundy v. Townsend, 110, 111
Grymes v. Bowern, 294
G. T. R. Ry. Co. v. Credit Valley Ry.
Co., 92
V. Ontario & Quebec
Ry. Co., 224
Guess V. Perry, 131
Gunn V. Burgess, 296, 314
Gunther v. McTer.r, 200
Gurney v. Atlantic, etc., Ry. Co.,353
V. Small, 161
Gutierrez, Ex farte. In re Gutierrez,
337
Gutteridge v. Smith, 164
Guy V. G. T. Ry. Co., 36, 57, 92, 132,
137, 155, 260, 393
G. W. Ry. Co. V. Braid, 213
V. Chadwick, 84
V. Miller, 285
V. McEwan, 81
Gwynne v. Rees, 248
Gyles V. Hall, 174
H.
Haacke v. Marr, 81
V. Markham (Municipality),
Hackett v. Bible, 361
Hadley v. Green, 4
Hagerty v. G. W. Ry. Co., 340
Haggart v. Kernahan, 80
Haggin v. Comptoir d'Escompte de
Paris, 113
Hagle V. Dalrymple, 110
Haigh V. Sheffield, 124
Haines v. East India Co., .333
Haldan v. Beatty, 118, 362
Hales V. Stevenson, 185
Hall, Ex parte. In re Townsend, 297
V. Badden, 367
V. Brown, 169
V. Curtain, 106
V. Gowanlock, 191
V. Goslee, 295
283
Hall V. Kennedy, 167
V. Kissock, 360
V. Pritchett, 247, 249
V. Scotson, 136
V. Thompson,* 29
Hallack v. Cambridge, 58
Hallet V. Hears, 190
Hambridge v. De La Crou6
Hamer v. Giles, 252
Hamilton v. Bouek, 297
V. Brogden, 95
V. Cousineau, 352
V. Dennis, 2
V. Massie, 43
Hamilton P. & L. Co. v. Campbell,
359
Hamilton P. & L. Socy. v,. McKim,
256
Hamlyn v. Betteley, 36, 55, 221,
232, 234
Hammerton v. Honey, 71
V. Harrison, 359
Hammond v. McLay, 81
V. Schofield, 4, 140
V. Stewart, 190
Hampden v. Walsh, 66
Hancock v. Smith, 252
Hand v. Hall, 365
Handley v. Franchi, 839
Hands v. Clements, 119
V. Upper Canada Fuiniture
Co., 202
Hanna v. McKenzie, 297
Hannagan v. Burgess, 85
Hanns V. Johnston, 156, 347, 384,
385
Hansard v. Leth bridge, 31, 341t
Hansen v. Maddox, 361
Hanvey v. Stanton, 250
Harding v. Barrett, 267
V. Davies, 173
V. Knust, 191
V. Wrc 1, lie, 284, 286
Hardy v. Pickard, 231
V. Ryle, 384
Hare v. Milne, He, 285
Hargrave v. Spink, 83
Hargreav38 v. Haves, 62
V. Meyers, 87, 107, 108
V. Scott, 38
Harmer v. Cornelius, 101
V. Cowan, 361
Harper v. Davis, 177
V. Phillips, 180
V. Scrimegeour, 327
V. Young, 68
Harpman v. Child, 256
Harrington v. Edison, 11, 228
n
XXX
CASES CITED.
•B'
Harrington v, McMorris, 261
V. Rainsay, 58
Harris v. Amery, 113
V. Andrews, 161
V. Gamble. 96, 98
V. Harper, 248
V. Jeniis, 67
V. Slater, 3-2(», 330
Harrison, lie, 155, 221
V. Barry. 365
V. Bottenheim, 131)
V. Douglas, 177
V. Good, 124
V. Harrison, 141, 295, 394,
399
V. Paynter, 315
V, Smith, 148
V. Wright, 57
Harvey v. Croyden Union Rural
Sanitary Authority,
155, 169
V. McNeil, 302
Hart V. Denny, 177
V. Reynolds, 298, 366
V, Ruttan, 151, 208, 339
Hartland v. General Exch. Bank,
245
Haskius v. St. Louis & S. E. Ry.
Co., 11, 228
Hastelow v. Jackson, 66
Hastings, Re Lady. Hallett v. Hast-
ings, 400
Hatfield's Bail, 226
Hatton V. Fish, 212
V, Haywood, 255
Hausberg v. People, 66
Hawke v. Brear, 284, 290
Hawkins, Ex parte, 281
In re, 19
V. Gethercole, 252
V. Rutter, 70
Hawley v. North Staffordshire Ry.
Co., 11
Haworth v. Fletcher, 227
Hay V. Hunt, doe, 197
Haydon v. Crawford, 295, 359
Hayes v. Eeene, 330
Hayley v. Grant, 168
Hayman v. Governor's of Rugby
School, 19
Hays V. Armstrong, 156
Haythorn v. Bush, 358
Havward v. Hague, 174
Hazlett V. Hall, 294
Heaman v. Seale, 162
Heath v. Long, 111
V. White, 131
Hedley v. Closter, 86
Heenan vj Dewar, 92
Hefford v. Alger, 87
Heineman v. Hale, 137, 145
Heintzman v. Graham, '_'13
Heley v. Couisins, 8(1, 87
Helmore v. Smith, 141, 295
Help V. Lucas, 108
Heming v. Wilton, 4
Hemming v. Blanton, 220
V. Williams, 220
Henchett v. Kimpson, 365, 366
Henderson v. Brown, 97
V. Dickson, 313
V. Henderson, 147
V. Preston, 333
V. Sills, 80
V. Squire, 245
Hcnly V. Lyme (Mayor), 257
Hennell v. Davies, 177
Henney v. Scott, In re, 55
Henricks v. Henricks, 102
Henry v. Armitage, 27
v. Cook, 82
Hepburn v. Patton, 92
Herbert v. Park, 231
Hermann v. Seneschal, 383
Hermitage v. Kilpin, 332
Hernaman v. Smith, 110
Herr v. Douglass, 120
Herring v. Wilson, 349
Herchfeld v. Clarke, 119, 523
Hesketh v. Fawcett, 171
Hesketh v. Flemming, 135
Hesse v. Buffalo, B. & G. Ry. Co
267
Hessin v. Coppin, 93
Hewat v. Davenport, 251
Heyland v. Scott, 198
Heymann, Ex parte, 371
Hey worth v. London (Mayor), 5
62
Hibbitt v. Schilbroth, 58, 135
Hicks. In re, 328
Hicks V. Faulkner, 352
Higginbotham v. Moore, In re, 10
346
Higgins V. Barton, 83
V. Brady, 337, 339
V. Sargent, 209
V. Willes, 286
Higham v. Braddely, 174
V. Ridgeway, 407
Hill, Ex parte, 128, 135
Hill, Re, 58
and HvmanB, Ex parte, 265
V. Foxi 68
V. Managers of Met. Asylu
Dist. 69, 291
ai
CASES CITED.
XXSl
a
Dewar, 92
Alger, 87
V. Hale, 137, 115
I V. Graham, "J 13
ouisins, 8(1, 87
Smith, 141, 295
ticas, 108
Wilton, 4
V. Blanton, 220
V. Williams, 220
V. Kimpson, 305, 366
V. Brown, 97
V. Dickson, 313
V. Henderson, 147
V. Preston, 333
V. Sills, 80
V. Squire, 245
Lyme (Mayor), 257
. Davies, 177
. Scott, Iti re, 55
V. Henricks, 102
Armitage, 27
Cook, 82
V. Patton, 92
. Park, 231
V. Seneschal, 383
ie V. Kilpin, 332
n V.Smith, 110
)ouglass, 120
V. Wilson, 349
i V. Clarke, 119, 323
V. Fawcett, 171
V. Flemming, 135
Buffalo, B. & G. Ry. Co.,
Coppin, 93
Davenport, 251
V. Scott, 198
1, Ex parte, 371
1 V. London (Mayor), 67,
. Schilbroth, 58, 135
re, 328
Faulkner, 352
bham v. Moore, In re, 105
'. Barton, 83
'. Brady, 337, 339
'. Sargent, 209
'. Willes, 286
7. Braddely, 174
V. Ridgeway, 407
larte, 128, 135
)8
Hymans, Ex parte, 265
ox, 68
'anagers of Met. Asylum
Diet. 59, 291
Hill v. South Staffordshire Ry. Co.,
209, 210
Hilliard v. Smith, 135
Hills V. Mesnard, 277
V. Renny, 363
Hiilyard v. Royal Ins. Co., Re, 286
Hincks v. Sowerby, 318
Hiud V. Brett, 18
Hindlay v. Haslam, 97
Hindle v. Blades, 87
Hirsch v. Coates, 251
llitchman v. Stewart, 209
Hoare v. Niblett, 4, 396
Hobbs V. Midland Ry. Co., 124
V. Scott, 326
Hobern v. Fowler, 191
Hobson V. Thelluson, 28, 245, 376
Hobson, Re. Webster v. Rickards,
398
Hodge V. The Queen, 24, 391
Hodges V. Cobb, 198
Hodgson V. Gascoigne, 365
V. Graham, 59
V. May, 119
V. Lynch, 28
V. Towning, 331
V. Williamson, 400
Hodsoll V. Baxter, 4, 147
Hoey V. McFarlane, 17, 19, 20, 24
Hogan V. Sterrett, 254
Hogg V. Brooks, 156
Holbird v. Anderson, 279
Holden v. Langley, 364
Holland v. Phillips, 174
Hollingshead, Re. HoUingshead v.
Webster, 186
Holm V. Booth, 226
Holme V. Guy, 13
Holmes v. C. P. Ry. Co., 198, 200
V. Millage (Addenda), 94
V. Reeve, 107
V. Russell, 131
v. Service, 135
Holt, In re, 189
V. Collyer, 67
V. Frost, 358
V. Jarvis, 13
Holtby V. Hodgson, 18, 248, 896,
400, 401
Holton V. Guntrip, 358
Home, Ex parte. Re Home, 400
V. Camden, 60, 78
Hong Kong <Sr Shanghai Banking
Co. V. Java Agency Co., 161
Honsinger v. Love, 141
Hood V. Cronkite, 208, 338
Hooka V. Ind, Coope & Co., 859
Hooper v. Christoe, 167
Hooper v. Keay, 67
Hoover v. Craig, 85, 304
V. Zavitz, 87
Hoorigan v. Driscoll, 81, 84
Hopcraft v. Hickman, 286
Hope V. Evered, 352
V. Graves, 312
V. Hope, 200
Hopkins v. Abbott, 316
V. Hopkins, 400
V. Ware, 277
Hopper, Re, 284
Hopper V. Warbuifon, 59
Hopton V. Robertson, 148, 161
Hornick v. Romney (Tp.), 38, 191
Horner v. Kerr, 395, 397, 398
Horton, Re, 22
Hoskins v. Knight, 366
Hough V. Edwards, 252
Houghton V. Howarth, 184
Houlden v. Smith, 17, 18, 64
House V. House, 183, 186
Household F. Ins. Co. v. Grant, 24
Howard, In re, 119
V. Clark, 352
Howe V. Smith, 96
Howell V. Metrop. Dist. Ky. Co.,
247, 249
Howell V. Listowel Rink Co., 88, 173
Howes V. Barber, 152, 176, 190
Howkins v. Baldwin, 196
Howland v. Rowe, 389
Howlett V. Tarte, 4
Howlley v. Young, Re, 64
Hoye V. Bush, 379
Hubbard v. Goodley, 75
Hudon Cotton Co. v. Canada Ship-
ping Co., 171
Hudson V. MacRae, 68
v. Tooth, 118, 129
Huffv. Cameron, 288
Buffer v. Allen, 21,2
Hughes v. Buckland, 883
V. Can. P. L. & S. Bocy., 102
v. Field, 169
v. Griffiths, 118
v. Stirling, 226
v. Towers, 867
Hughson V. Gordon, 169
Holme V. Tenant, 395, 402
Hume V. Peploe, 171
Hunt V. Blaquiere, 226
Hunt V. Hunt, 395
V. Round, 88
V. Great Northern Ry. Co., 70
V. North Staffordshire Ry.
Co., 71
Hunter v. Caldwell, 312
xxxu
CASES CITED.
Hunter v. Greensill, 248, 249
V. G. T. Ry, Co., 108
Huntsworth, lie, G9
Hurrell v. Wink, 81
Hurst V. Sheldon, 357
Huskinson v. Lawrence, 83
Hutchings to Burt, Re, 399
V Nunes, 309
Hutchinson v. Gillespie, 148
V. M. B. & R. Ry. Co.,
136.
Hutson V. Valliers, T-"), 222
Hutt V. Gilleland, 87
V. Keith, 87
Huttman v. Boulnois, 100
Hutton V. Federal Bank, 211
V. Fowke, 59
I.
I. V. K.,94
Ibbottson V. Henry, 85, 383, 384
Ibotson V. Phelps, 156
Ide, Ex parte, lie Ide, 145
Imperial Bank v. Dickey, 323
Imperial Gas Co. v. London Gas
Co., 180
Indigo Co. V. Ogilvy, 144
Inglis V. Wellington Hotel Co., 147,
210.
Ingram v. Barnes, 253
V. Little, 217
V. Taylor, 359
Ings V. Lond. & S. W. Ry. Co., 179
Innes v. East India Co., 249
Insley v. Jones, 59, 75, 130
International Wrecking Co. v. Lobb,
230
Ireland v. Pitcher, 73
Irvine, Be, 247
Irving V. Askew. 5, 208, 220, 224. 391
V. Morrison, 97
V. Veitch, 18')
V. Wilson, 384
Irwin V. Freeman, 185
Isaac, lie, 402
Isreal v. Benjamin, 177
Ives V. Ives, 181
Ivory V. Cruickshank, 91
J.
Jackson v. Barry, Ry. Co., 285
V. Beaumont, 58, 110
V. Cassidy, 250
V. Copeland, 59
Jack?on v. Everett, 4
V. Grimley, 111
V. Jacob, 173
V. Litchlield, 144
V. Wooley, 186
Jacobs, lie, 326
V. Humphrey, 319
Jacomb v. Henry, 1;M), 312
V. Turner, 61
James v. Barrand, 394
V. James, 285
v. Newton, 128
V. S. W. Ry. Co. 58, 313
V. Vane, 179
Jameson's Bail, 226
V. Jones, 203
V. Kerr, 82
Jamieson v. Wiiklns, 134
Jay V. Johnstone, 181
V. Robinson, 400, 401
Jeff Davis, The, 252
Jeffery v. Bastard, 87
Jeffs v. Day, 316
Jenkins v. Cook, 23
v. Kerbv, 5
v. Miller, 61, 73
v. Morris, 213
Jenkyns v. Brown, 172
V. Gaisford, 77
Jennings v. G. T. Ry. Co., 381
V. Willis, 128, 277
Jephson v. Greenaway, 201
Jervis v. Peel, 248
Jewell v. Hill, 212
Johnson, Ex parte, 292
Re, 44, 370
V. Credit Lyonnaise Co.,
12(5, 274
V. Crook, 255
V. DeVeber, 131
V. Diamond, 245, 246, 247,
249
v. Disney, 134
V. Evans, 141
V. Gallagher, 397
V, Hogg, 294
V. Lakeman, 216
V. Leigh, 331
V. Moodv, 252
V. McKenna, 293
V. Parke, 86, 87
V. Provincial Ins. Co., 163
V. Small wood, 135
V. Therrien, Re, 63, 64,
260, 270, 273
V, Wardle, 167
Johnstone v. Browne, 402
Jolliffe V. Wallasey Local Bd., 384
CASES CITED.
XXXIU
Jonas V. Adams, 230
Jones, In re, 132, 220
In re. Ex parte Kelly, 252,
274
In re. E.v parte Lloyd, 253
V. Brown, 183, 260
V. Cook, 84
V. Currie, 71
V. Gibbons, 79
V, Gooday, 386
V. Grace, 385, 393
V. Harris, 107, 396
V. James, Re, 56
V. Jones, 208
V. Macdonald, 31, 226, 349
V. Owen, 56, 125
V. Paroell, 222
V. Paxton, 308, 310
V. Scottish Accidental Ins.
Co., 112
V. Ttompson, 146. 247, 248,
249, 336
V. Tobin, 200
V. Tuck, 219
dem, Griffiths v. Marsh, 156
(Trustees) v. Gittens, 59
Jordan, Re. Kino y. Pickard, 399
V. Marr, 55, 59
V. Jones, 164
Joselyn, Ex parte. Re Watt, 261, 281
Joseph V. Henry. 61
V. Miller, 66
Joule V. Taylor, 384
J. E, V. North Curry, 111
Judge of Elgin, Re, 64
Niagara District, In re, 19,
108
Northumberland and Dur-
ham, Re, 56, 105
Division Court Toronto,
Re, 370
Julius V. Oxford (Bishop), 254, 255,
291
Jupp V. Powell, 184
K.
Kaitling v. Parkin, 82
Kalar v. Cornwall, 380
Kavanagh v. Kingston (Corp.), 147
Kay V. Marshall, 219
Keane v. Steadman. 362
Kearsley v. Cole, 27
Keena v. O'Hara, 218, 308
Keenahan & Preston, In re, 224
Kehoe v. Brown, 313
Keighley, Maxstead & Co. v. Bryan,
Durrant & Co., 284, 287
D.CA. —
Keightley v. Birch, 319
Kelly r. Ottawa St. Ry. Co. 231
V, Isolated Risk F, F. Ins. Co.,
147
V. Wade, 120
Kemble v. Farren, 96
V. McGarry, 385
Kemp, Ex parte, 245
V. King, 191
V. Neville, 18
V. Owen, 110
Kempson, Ex parte, 223
Kempton v. Willey, 56
Kendall v. Hamilton, 4, 140, 143,
246
Kennedy v. Hale, 384
v. Patterson, 299
V. Purcell, 148
Kennett v. Westminster Improve-
ment Com'rs., 250
Kenney v. May, 344
Kennin v. Macdonald, 87, 854
Kennington, Ex parte, 220
Kenny v. Hutchinson, 120
Kent v. Jones, 156
v. Kent, 397
V. Tomkinson, 262
Kenyon v. Eastwood, 152, 32J, 370
Kepp v. Wiggett, 27
Ker, In re, 65
Kerby v. Cahill. 83 •
Kerkin v. Kerkin, 58
Kernot v. Bailey, 64
Kero v. Powell, 28, 304
Kerr v, Cornell, 108
v. G. T. Ry. Co.. 168
V. Haynes, 112
V. Kinsey, 298
Kersterman v. McLellnn, 337.
Keyser v. Mitchell, 252
Kidd v. O'Connor, 327
v. Perry, 196, 20Q>
V. Walker, 177
Kiely v. Massey, 16&
Killens v. Street, 132
Kimberley v. AUeyne, 135
Kimbray v. Draper, 392
Kimpton v. Willey, 103
Kincaid v. Kincaid, 94
V. Reid, 94. 95
King V. Burrell, 239
V. England, .S20
V. Farrell, 110
V. Hoare, 3, 140, 246
V. Macdonald, 298, 342
V. Norman, 27
V. Simmonds, 169
King's College v. McDougall, 184
XXXIV
GASES CITED.
Eingsford v. Merry, 83
Kingsley v. Dunn, 158
Eingsmill v. Millard, 115
Kingston Election, In re. Stewart v.
Macdonald, 290
Kingston (City) v. Brown, 132
V fcliaw, 866
Kingstown Commissioners, Ex
parte, 55
Kinnaird v. Webster, 67
Kinning, Ex parte, 328
V. Buchanan, 328
Kinnear v. Blue, 187
Kinsey v. Roche, 76
Kirk V. Burgess, 94
Kirkendall v. Thomas, 87
Kirkpatrick, lie. Kirkpatrick v.
Stevenson, 182, 209
Kirton v. Braithwaite, 171, 172
Kitohen v. IVlurray, 214
V. Shaw, 216
V. Wilson, 134
Klein v, Klein, 212
Knight, He, 69
In re. Knight v. Gardiner,
252
V. Egerton, 245, 317
V. Lee (Addenda), 65
V. Medora (Tp.), Be, 86, 69,
107, 257
Knowles v. Holden, 56, 57
Knox V. Gye, 182
V. Porter, 168
Kormann v. Tookey, 88
Kraemer v. Gless, 336
Kraus v. Arnold, 173
Krehl v. Great Central Gas Co., 296
Kyle V. Barnes, 337
L.
La Bangne Jacques Cartier v. La
Banque D'Epargne, etc., 126
La Banque Jacques Cartier v.
Strachan, 128
Labatt v. Chisholm, 63, 306, 818
Labouchere v. Wharncliffe, 15
Ladonceur v. Salter, 42, 111, 181
Laird v. Briggs, 855
Lake v. Biggar, 81
Lambe, Ex parte, 16
Lambert's Estate, Ee. Stanton v.
Lambert, 897
Lamley v. East Retford (Mayor),
885
Lamond v. Eiffe, 387
Lament v. Crook, 190
V. Soutball, 384
Lampman v. Davis, 184
Landman v. Crooles, 209
Lane, In re. Ex parte. Gaze, 187
v. Capsey, 95
V. Glenny, 187
v. Isaacs, 149
Langen v. Tate, 196, 200
Langford v. Kirkpatrick, 386
Lannan v. Audley, 175
La Pointe v. G. T. R. Co. 31
Laughtou v. Thompson, 92
Law V. Redditch (Local Bd.), 98
v. Thompson, 180
Lawford v. Partridge, 69, 70, 290
Lawless v. Radford, 85
v. Sullivan, 49
Lawrence v. Willcocks, 210
Lawrenson v. Hill, 3.S0
Law Society v. Macdougall, 22
V. Waterlow, 22
Lawson v. Hutchinson, 286
V. Laidlaw, 27, 895, 398
V. Vacuum Brake Co., 196
Lea V. Charmington, 852
V. Facey, 383
V. Parker, 253, 328
Leah v. Order of Chosen Friends, 30
Leak v. Driffield, 396
Leaming v. Woon, 250
Leath v. Vine, 68
Leatherdale v. Sweepstone, 173
Le Blanch v. Wilson, 80
Lecky v. McDermott, 88
Lee V. Bude Ry. Co. , 5
v. Dangar, ^64, 373
V. Howes, 295
V. Hopkins, 395
V. Morrow, 312, 843
V. Parker, 828
V. Rapelje, 141
V. Wilmot. 183
Lees, Ex parte, & C. C. Judge of
Carleton, 238, 369
V. Carleton (County), 8, 9
Leete v. Hart, 383
Legarie v. Canada Loan and Bank<
ing Co.. 75, 78, 147, 246
Leibes v. Ward, 20
Lemay v. McRae, 284, 285
Lemoine, doe, v. Raymond, 197
Lemon v. Lemon, 326
V. Summers, 400
Leslie v. Emmons, 19
Le Taileur v. S. E. Ry. Co., 113
Lett V. Morris, 128
Levasseur v. Mason, 95
Levy v. Champneys, 858
V. Morden, 871
CASES CITED.
XXXV
Levy V. Wilson. 148
Levy's Bail, 226
Lewis V. Blurton, 156
V. Calor, 118
V. Graham, 113
V. Holdinti, 362
V. Old, 58, 234, 240
V. Teale, 80, 84. 384
V. Thompson, 226
Lexden v. Southgate, 60
Leys v. McPherson, 398
Life and Fire Ins. Co. v. Wilson,
60
Liffiu V. Pitcher, 122
Light V. Anticosti, 200
V, Lyons, 103
Liley v. Harvey, 69
Lilley v. Elwin, 100, 101
Lilly V. Smales, 78
Linden v. Buchanan, In re, 37, 64,
120, 224, 301 •
Lindus v. Bradwell, 170
Lindsell v. Phillips, 181
Linsell v. Uonsor, 185, 186
Lintott, Ex parte, 210
Lipscombe v. Holmes, 177
Liquor License Act, 1883, Re, 24
Lisburne (Earl) v. Daviea, 115
Lister, In re, 65
v. Perrvman, 351
v. Stub»>8, 101
V. Wood, 212
Liverpool Gas Light Co. v. Everton
(Overseers), 61
Livingstone v. Gartshore, 214
Lizars v. Dawson, 181
Llado V. Morgan, 173
L. Lime Co. v. Baker, 112
Lloyd v. Henderson, 201
V. Jones, 68, 70
V. Key, 195
V. Maund, 185
V. Walker, 177
V. Wallace, 218, 249
Ite. Allen v. Lloyd, 95
Lloyd's Banking Co. v. Ogle, 155,
159
Lockart v. Gray, 247, 315, 366, 867
Locke V. McConkey, 366
Lockridge v. Lacey, 173, 174
Lockwood v. Bew, 197
Lodge V. Thompson, 198
Logue v. McCuish, 68
Lomax v. Berry, 291
London Chartered Bank of Aus-
tralia V. Lempriere, 397
London Discount Alliance Co. v
Kerr, 395
London & Blackwell Ry. Co. v.
Cross, 92
London & Canadian L. & A. Co. v.
Morphy, 141
London & Canadian L. & A. Co. v.
Meritt, 95
London (Mayor) v. Cox, 55, 66, 57,
58, 60, 61, 63, 261, 269, 379
London & N. W. Ry. Co. v. Grace,
228
London & N. W. Ry. Co. v. Lindsay,
19
London & N. W. Ry. Co. \. Whin-
ray, 29
London, Chatham & Dover Ry. Co.
V. S. E. Ry. Co., 147, 209
London & Suburban Land Co. v.
Field, 67
London & S. W. Ry. Co. v. Black-
more, 123
London Universal Bank v. Clan-
carty, 210
Long, In re. Ex parte Cuddeford, 47,
311
V. Long, 173
Longford, The, 384
Long Point Co. v. Anderson, 60, 61,
69
LonguSuil V. Cushman, 214
Lord V. Hall. 170
Lord Wellesley's Case, 191
Lossing V. Jennings, 299, 366
Lough V. Coleman, 383
Louis, iifi. Ex parte Incorporated
Law Society (Addenda), 22
Love V. Culhara, 87
Lovegrove v. White, 170
l.ovell V. Newton, 49
V. Wardroper. 362
Lovely v. White, 266
Low V. Blackmore, 261
Lowden v. Martin, 159
Lowe V. Fox, 16
V. Owen, 256
Lowia V. Ruraney, 187
Lowson V. Canada Farmer's M. Ins.
Co., 296
Lowter v. Radnor, CO
Lucas V. Dickson, 77
T. Elliott, 75
V. Harris, 94, 249
V. Ross, 148
V. Tarleton, 382
Lumb V. Teal, 221
Lumley.v. Gye, 196
V. Wagner, 92
Luxon, Ex parte, 118
Lydall v. Martinson, 168
n
XXXVl
CASES CITED.
Lyell V, Kennedy, 19'2
Lyman v. Bretliron, 11'.)
V. Sheriff, H(i
Lynch v. O'Hara, 82
V. Wilaon, 210
Lyon V. Tiffany, 183
V. Tomkies,317
V. Weldon. 844
Lyons v. Goldin^, 380
Lyster v. Boulton, D'J
M.
Maber v. Maber, 186
Macara v. Dines. (58, 69
V. MorriBh, Oil
Macaulay v. BunibHli, 251
Macbeth v. Ashley, 255
Macbeath v. Haldimand, 250
Macdonald.^e, 141
V. Anderson, 94, 249
V. Crombie, 277, 296
V. Macdonald, 111
V. Tacquah Gold Min-
ing Co., 251
V. Worthington, 163,
213
Macdonell v. Baird, 284
V. Blake, 391
Macdougall v. Knight, 219
V. Paterson, 111, 152,
161,241
Macfie V. Hutchinson, 60, 253
V. Hunter, 296, 359, 364
V. Pearson, 347
Macgregor v. Galsworthy, 385
Mack V. Ward, 248, 249
Mackinley v. McGregor, 82
Mackonochio v. Lord Penzance, 63
Maclean v. Anthony, 359
Maclure, Ex parte, 101
Macnee v. Ontario Bank, 394
Macrae v. Clarke, 245, 876
Maddison v. Alderson, 102
Maddocks v. Holmes, 149, 180
Magrath v. Todd, 312, 343
Magurn v. Magurn, 4
Mahon v. Inkster, 220, 225
Malcolm v. Leys (Addenda), 75
V. Malcolm, 114
Malcolmson v. Hamilton P. & L.
Socy, 213
Manby v. Manby, 182
Manchester S. ife L. Ry. Co. v.
Brooks, 96
Mandeville v. Welch, 128
Manning v. Ashall, 219
Manning v. Lunn, 174
Moriarty, l.")5
Manoque v. Mason, IGO
Manson v. Gurnett, bO
Manufacturers A Mer. M. Ins. Co.
V. Campbell, 77, 267
Margate Pier Co. v. HannaD, 13, 20
Marplea v. Hartley, 247
Marquis of Salisbury v. Ray, 47, 311
Marriott v. Hampton, 4
Marsden v. Wardle, 67, 62, 69
Marsh v. Conquest, 112
V. Dews, 68
Marshall v. Jnrnieson, 78, 79
V. Lamb, 13
V. McRae, 36
V. Poole, 2J9
V. Whitesii j, 177
Marston v. Allen, 111
Marter and Gravenhurst, In re, 64
Martin,*£a: parte, 90
V. Andrews, 189
V. Bannister, 90, 160, 201,
371
V. Corbett, 214
V. Hendricksou, 382
V. McCi.ailes, 119, 169
Martins v. Upcher, 385, 380
Mason v. Farnell, 126
V. Johnson, 82
V. Kensington Vestry, 385
V. Mogridge, 145
V. Morgan, 108. 859
V. Muggeridge, 260
V. Wirrall Highway Bd., 217
Massey v. Burton, 112
V. Sladen, 371
Massie v. Toronto Ptg. Co., 214, 247,
249
Massy v. Rowen, 397
Matheson v. Kelly, 172, 173
Matthewman's Case, 396
Matthews v. Munster, 170
Maund v. Monmouthshire Canal
Co., 381
Maunsell v, Ainsworth, 189
Maw V. Jones, 100, 101
V. Ulyatt, 216
Maxwell v. Scarfe, 16
May V. Standard Fire Ins. Co., 294
Mayer v. Burgess, 375
V. Farmer, 220
Mayhew v. Herrick, 245
Mayor of Durham v. Fowler, 29
Mayor of London v. Cox, 55, 56, 57,
58, 60, 61, 63, 261, 269, 379
Mayor of London v. London Joint
Stock Bank, 263
CASES CITED.
XXXVU
74
i:,ri
ICO
•0
er. M. Ins. Co.
•257
llannac, 13, 20
217
y V. Ray, 47, 311
n,4
67, 62, 69
112
)n, 78, 79
3
3t}
I.J1)
ii 3, 177
11
lurst, In re, 64
3, 189
er, 90, 160, 201,
214
ksou, 382
les, 119, 169
385, 380
26
82
on Vestry, 385
>, 145
108, 359
Ige, 260
lit^hwayBd.,217
112
371
'tg. Co., 214, 247,
97
172, 173
36, 396
ter, 170
Duthahire Canal
orth, 189
, 101
i)
,16
Fire InB. Co., 294
375
220
k, 245
V. Fowler, 29
V. Cox, 65, 56, 57.
261,269,379
V. London Joint
63
^1_
Mead v. Creary, 36, 188, 249, 257
Medwin, Kx parte, 19, 59
Moek V. Hcobell, 68
Mein v. Hall. 298
Melliach v. Lloyds, 215
Mellish V.' Buffalo, B. & G. By. Co.,
250
Moloche V. Ileaume, 45, 86, 87
Melville Mnt. M. & F. Ins. Co. V.
Driacoll, 198
Meneiily v. McKenzie, 298
Mercer v. Graves, 252, 303
Merchants' Bank v. Bell, 400, 402
V. Herson, 233.
301, 304
V. Lucas, 77, 214
V. Van Allen, 30,
57, 98, 132
Merchants' Express Co. v. Morton,
92
Merchants' Hhipping Co. v. Arini-
tat^'e, 209
Meredith v. Whithingham, 60 .
Mersey Docks Board v. Lucas, 49
Metrop. Bd. of Works v. Steed, 160
Metrop. Loan & Sav. Co. v. Mara,
322, 394
Metrop. By. Co. v. Wright, 163, 213
Meyer v. Bell, 72
Meyers v. Baktr, 80, 87
v. Maybee, 86
v. Wonnacott, In re, 11, 343
Meyerstein v. Barber, 84
Michie v. Reynolds, 209, 300
Middlefield v. Gould, 33, 37
Middlesex v. Smallman, 27
Middleton v. Brewer, 171
V. I'ollock, 152
Midland Banking Co. v. Chambers,
219
Midland Ry. Co. v. Witbington
Local Bd., 383
Mildmay v. Methuen, 210
Miles V. Roe, 238, 329
Millar v. Nolan, 358
Millard v. Baddeley, 159
Miller, Re, 400
V. Beaver M. F. Ins. Ass.,
308
V. Caldwell, 184
v. Confederation Life Ass.
Co., 214
V. Corbett, 29
V. Dell, 181
V. Huddlestone, 217
V. Mann, 124
V. Miller, 182
V. Mynn, 247
Miller v. Salomons, 194
V. Tiffany, 296
V. Tunis, 31, 32
Miller's Tanning Extract Co. v.
Horton, 86
Millet V. Coleman, 64
Milligan v. G. T. Ry. Co., 197
Mills V. Welbank, 196
V. Mills, 199
Milner, Kx parte, 64
Milltown V. Buardman, 374
Milson V. Day, 181)
Minet v. Morgan, 192
Minor v. L. & N. W. Ry. Co., 113
Miron v. McCabc, ()2, 63, 105
Mitchell V. Foster, 118
V. G. W. Ry. Co., 286
V. Hender, 113
V. Lee, 247
V. Mulholland, 212
V. Scribner, 64, 339, 352
Mittleborger v. Moi ritt, 63, 64
Mo£fatt V. Carieton Place Board of
Education, 114 >
V. ParsonH, 172
V. Prentice, 200
Mogul Co. V. McGrej,'or, 41
Molony v. Cruise, 248
Molsons Bank v. Dillabaugh, 120,
150
V. McMeekin, 212,
297, 310
Monks V. Jackson, 318
Montagu v. Harrison, 190
Montefiore v. Lloyd, 28
Montreal Ass. Co. v. McCormick,
263
Moody V. Canadian Bank of Com-
merce, 303
V. Tyrrell, 172, 172
Moone v. Rose, 332
Moor V. Roberts, 175
Moore v. Denn, 70
V. Gamgee, 56
V. Gidley, 339, 343, 385
V. Gurney, 214
V. Hicks, 214
V. Jackson, 394, 395, 397
V. Knight, 187
V. Wallace, 61, 279, 281, 341
Moot V. Gibson, 94
Moran v. Palmer, 384
Moretou v. Holt, 293
Morgan, Ex parte. In re Simpson,
234
V. Daviea, 165
V. Eyre, 322. 402
V. Hughes, 339
mmmmm
xxxvm
CASES CITED.
Morgan v. Mather, 16
V. Palmer, 383, 384
V. Rowlands, 185, 186
V. Thomas, 354
Morley v. Bank of B. N. A., 120
Morphett, In re, 11
Morphy, Re. Morphy v. Niven, 95
iLorrell v. Cowan, 27
V. Frith, 184, 185
Morris v. Cameron, 75
V. Coles, 131, 135
Morton v. Palmer, 254
Moses V. Moses, 76
Moss, Ex parte, 128
Mbstyn v. West Mostyn Coal &
Iron Co., 97
Mouflet V. Cole, 114, 265
Mountcashell v. O'Neill, 378
Mountroy v. Collier, 09
Mowatt V. Londesborough, 210
Moxham, The, 196
V. Day, 83
Moxon V. London Tramways Co.,
60, 212, 213
Muckle V. Ludlow, 198
Muckleston v. Smith, 358, 361
Mullane u. Ahern, 94
Mnllett V. Hunt, 189
Mulligan v. White, 198
Mulvaney v. Hopkins, 86
Mulvihill V. Lachance, 225
Mumford v. Hitchcocks. 118
Mungean v. Wheatley, 84, 107
Munsie v. McKinley, 70, 233, 279
Munster v. Cox, 144, 284
V. Lamb, 18
Murphay v. Guardians Benmullet
Union, 248
Murphy v. Green, 247
Murphy v. ISolan, 156
Murray v. Black, 79
V, Earl of Stair, 278
V. G. W. Ry. Co., 156
V. Simpson, 247
Murtagh v. Barry, 213
Muskoka and Gravenhurst, lie, 59
Myerhofif v. Froelich, 182
Myers v. Baker, 107
V. Defries, 188, 290
Myles V. Burton. 396, 397
V. Thompson, 78
Mc.
McAllister v. Bishop of Rochester,
217
V. Gushing, 231
McArthur v. Cool, 28, 29, 360
McArthur v. Southwold, 232
McCallum and School Sec. 6, Tp.
of Brant. 64
V. Cookson, 221
V. Gracey, 111
V. McCallum, 398
V. Provincial Ins. Co.,
156
London & N. W. Ry.
McCance v.
Co., 177
McCaun v.
Co., 175
McCargar v.
McClevertie
Waterloo F. M. Ins.
McEinnon, 49
V. Massie, 299
McClive, Re, 210
McColl V. Waddell, 219, 220
McCombie v. Anton, 202
McConnell v. Wilkins, 215
McCormack v. Berzey, 184
V. Park. 251
MoCorquodale v. Bell, 192
McCracken v. Creswick, 76
McCraney v. McLeod, 250
McCrea v. Waterloo M. F. Ins. Co.,
24, 175, 215, 350
McCullis V. Allen, 83
McCullough V. Sykes, 5 •
McDermid v. McDermid, 75, 76
McDermott v. Ireson, 214
McDonagh v. Jephson, 295, 302
McDonald, Re, 30
V. Burton, 148
V. Cameron, 318
V. Cleland, 151,208,293
V. Elliott, 181
V. Field, 170
V. Forrestal, 82
V. Hollister, 249
V. Lane, 84
V. McDonald, 316
McDougall V. Robertson, 285
V. Waddell, 294, 296
McDowell V. McDowell, 233, 294,
315, 361
McEdward v. Ogilvie Milling Co.,
101
McElheran v. London Masonic Ben.
Ass., 30, 282
McFee, Ex parte, 58
McGarry v. White, 402
McGee v. Bainea, 358
V. Baird, 212
McGill V. McLean, 149
V. Walton, 352
McGivern v. McCausland, 298
McGlinchy v. Winchell, 250
McGowan v, Middleton, 97
McGrath v. Cox, 212
CASES CITED.
XXXIX
?old, 232
ool Sec. 6, Tp.
•ant, 64
on, 221
y.iii
Hum, 398
ncial Ins. Co.,
n & N. W. Ry.
loo F. M. Ins.
nnon, 49
38ie, 299
, 219, 220
n, 202
ins, 215
■zey, 184
•k. 251
Jell, 192
jwick, 76
eod, 250
30 M. F. Ins. Co.,
50
83
kes, 5 •
)ermid, 75, 76
son, 214
lison, 295, 302
•ton, 148
neron, 318
land.151, 208, 293
iott, 181
Id, 170
■restal, 82
Ulster, 249
le, 84
Donald, 316
oertson, 285
,ddell, 294, 296
jDowell, 233, 294,
f^ilvie Milling Co.,
iidon Masonic Ben.
, 58
t,e, 402
,358
212
m, 149
a, 352
Causland, 298
inchell, 250
idleton, 97
,212
McGregor v. Gaulin, 211
V. Hawke, doe d., 181
V. Harris, 149
V. McNeil, 83
V. Norton, Ji^ll, 59, 126,
175,178,234,323,366,
374
McGuin V. Benjamin, 156
V. Fretts, 95
McGuire v. McGuire, 398
McHardy v. Hitchcock, 201
Mclnnes v. Hardy, 326
Mcintosh V. G. W. Ey. Co., 201,
209
Mcintosh V. Jarvis, 27, 106
V. Mcintosh, 357
Mclntyre v. Canada Co., 149
V. Hockiu, 100
y. Stata, 298
McKay v. Cummings, 384
V. Fee, 210
V. Howard, 349
V. Martin, 77, 392
V. Palmer, 60
V. Tait, 246
McKelvey v. McLean, 8G, 87, 354
McKenna v. Everett, 200, 201
McEenzie v. Bussell, 339
V. Harris, 130, 147
V. Keene, 107, 212
V. Ryan, 105, 346, 391
V. Stewart, 169
McKillop V. liOgan, 280
McKindsey v. Armstrong, 250, 270.
McKinnell v. Ilobinson, 65
McLaren V. Canada Central Ry. Co.,
211
McLay v. Sharp, 98
McLean v. Allen. 94, 95, 265, 291
V. Bradley, 3, 339
V. Bruce, "94, 259
V. Hamilton St. Ry. Co., 97
V. Jones, 141
V. Pinkerton, 33, 158, 237
V. McLeod, 60, 212, 252,
282
V. Slid worth, 249
Mclieish v. Howard, 28, 29, 384
McLellan v. McClellan, 227
McLeod V. Chetwynd, 220
V. Emigh, 63, 322, 328, 330,
333, 394, 401
V. Fortune, 299
V. Paarson, 225
V. Sandle. 86
V, Torrence, 197
McMahon v. Spencer. 5
McManus v. Cooke, 93, 102
McMartin v. Hurlburt, 300, 386
McMichael v. Wilkie, 396
McMillan v. Byers, 81
V. Gore Dist. M. F. Ins.
Co., 214
V. McDonald, 168
V. McMillan, 202
McMurray v. Northern Ry. Co., 292
V. Wright, 55
McMyn, In re. Lightbown v. Mc-
Myn, 30, 141
McNab V. Taylor, 92
V. Wagstaff, 164
V. Howland, 83
McNair v. Boyd, 387
McNamara v. McLay, 313
McNaughton v. Webster, 246, 262,
295, 315
McNeill V. Haynes, 68
McPhadden v. Bacon, 337
McPhatter v. Leslie, 340, 385
vVIcPherson v. Forrester, 5, 147, 291
V. McPhee, 208
V. Tisdale, 246, 248
McRae v. Clarke, 28, 333
V. Lemay, 287
V. Robins, 103, 104, 105
McRobbie v. Torrence, 76
McWhirter v. Bongard, 62, 115
V, Learmouth, 361
N.
Naef V. Mutter, 135
Nagle-Gillman v. Christopher, 324
Nash V. Dickenson, 294
V. Hodgson, 186
V. Lucas, 332
V. Pease, 248, 249
Natal Inv. Co.. // •, 317
Nathan v. Cohen, 119
Nathans v. Giles, 250, 267
National Alliance Co., Re. Axworth's
Case, 97
National Prov. Bank of England v.
Jackson. 3
Neads v. McMillan, 69
Neale v. Ellis, 103
V. Withrow, 198
Nedley v. Buffalo, B. & G. Ry. Co.,
267
Negus V. Jones, 397
Neill V. McMillan, 383
Neilson v. Jarvis, 24, 282, 296, 308,
310
Nelson v. Baby, 28
V. Couch, 4, 106
V. Thorner, 157, 159, 219
xl
CASES CITED.
Nerlich v. Clifford, 56, fi4
V. M alloy, 28, 257
Nesbitt V. Armstrong, 157
Ness V. Stevenson, 254
Ness V. Saltfleet (Mmi.)-. H
Nevill, In n; 295
Newcombe v. De Roos, 110
Newell V. Jones. 209
V. Nat. Pro. Bk. of England,
97
V. VanPraagh, 327, 328
Newfoundland (Govt.) v. Newfound-
land Ky. Co., 97
New Haven Saw .Mill Co. v. Fowler,
146
Newman's Bail, 226
Newman, Re, 96
Newman v. Merriman, 303
V. Rook, 2(i0
Newton, In re, 218
V. Chaplin, 170
V. Harland, 189
V. Newton, 92
Nichall V. Cartwriglit, 288
Nichol V. Thompson, 209
NichoU's l^ail, 226
I^ichoUs V. Cumniings, 36, 194
V. Jones, 192
V. Lundy, 290
V.Morgan, 401
V. NichoUs, 212
Nicholson v. Brooke, 170
Nicol V. Ewin, 342
Nightengale v. Bank of Montreal,
277
Nisbet V. Cock, 119
Nixon V. Nannov, 378
Noble V. Clinc, 110
Nohro, Exjmrte, 108
Nolan V. Crook, 250, 267
Noonan v. Bank of B. N. A. 168,
169
Norburn v. Hilliam, 233
Nordheimer v. McKillop, 196
V. Robinson, 82
Norman v. Hope, 29, 87
V. Ricketts, 277
Normanby v. Jones, 120
Norris v. Carrington, 60, 224
North V. Fisher, 5, 181
v. McDonald, 338
V. Stewart, 252
Northcote v. Brunker, 67, 378
Nortliern By. Co. v. Lister, 130,
147
North London Ry. Co. v. Great
Northern Ry. Co. 92
North Ontario Election, Re, 874
North Perth, Re. Hessin v. Lloyd,
62
North Victoria Election, 42
Northwood v. Rennie, 245
Norton v. Ellam, 171
Norton v. Melbourne, 196, 200
v. London & N. W. Ry. Co.,
224, 229
v. Turvill, 400
Notman v. Crooks, 185
Nott V. Gordon, 286
v. Nott, 285
v. Sands, 247
Nowlan v. Ablett, 100
Noxon v. Holmes, 110
Noyes v. Crawley, 182
Nugee V. Swinford, 134
Nugent v. Chambers, 108
Nutter v. Accrinaton Local Bd of
Health, 43.
0.
Oaires v. Morgan, 164
Ober.iier v. Robertson, 3S4
O'Erioa v. Tvviiig, 75
v. Welsh. 108
O'CpJlaghan v. Cowan, 358
OT'ea v. Hickman, 384
OdelL Ex parte. In re Walden, 296
O'Donchuo v. Wiley, 24, 110
O'Donovan v. Dillon, 260
Offay v. Offay, 152. 154, 337, 340
Official Receiver, Ex parte, 333
Ogden v. Craig. 360
Ogle v. Knipe, 316
Ohlsen v. Terrero, 202
Oldham, B. cfe M. Co. v. Heald, 112
Oldham v. Ledbetter,248
v. Ramsden, 05
O'Leary v. Stewart, 104
Oliphant v. Leslie, 292, 385
Oliver v. Dickey, 200
V. Newhouse, 295
v. White. 300
Olmstead and Errington, 62, 64, 110
Omnium Sec. Co. v. Richardson, 185
O'Neill, Ex parte, 330
v. Cunuingliam, 247
Ontario Bank v, Burke, 159
v. Harston, Re, 55
v. Kerbv, 310
v. Mitchell, 323
v. Smith, 196
Ontario Glass Co. v. Swartz, 36,
134, 137, 200. 269
Ontario Loan & Deb. Co. v. Hobbs,
365
CASES CITED.
xli
isin V. Lloyd,
on, 42
245
196, 200
'^. W. Ry. Co.,
15
U
108
Local Bd of
{
ill, 3S4
8
.11, 358
J84
; Walden, 296
,24.110
,200
154. 337, 340
parte, 333
02
). V. Heald, 112
[•, 248
, 05
104
92, 385
)
295
^ton, 62,04,110
Richardson, 185
am, 247
rke, 159
raton, lie, 55
•bv, 310
:cliell, 323
ith, 196
V. Swartz, 36,
9
. Co. V. Hobl«,
Ontario V. Quebec, Re, 11, 16
Ont. Salt Co. v. JNIercliants Salt Co.
3, 339
Oram v. Brearey, 257
Ormerod v. Todmorden Co., 254
Ormichuiid v. Uaiker, 194
O'Rourke v. Lee, 82
Orr V. Barrett, 64
O'Shea V. Wood, 192
Osgood V. Nelson, 374
Osier V. Mutter, 300
Ostler V. Bower, 858
O'Sullivan v. Lake, 230
Otis V. Bossin, 132
Outhwaite v. Hudson, 164
Overend, Gurney & Co., lie, Barron's
Case, 210
Overseers of Everton, Ex parte, 63
Owen V. Hurd, 283
V. Wolley, 184
Owens V. Bull, 295
V. Shield, 247
Pacaud v. McEwan, 86
Paquette, lie, 9, 55
Padwick v. Scott, 97, 98
Page V. Austin, 165
V. Newman, 209
Paine v. Layton, 191
V. Pri'tchard, 210
Palk V. Kenney, 384, 387
Palliser v. Gurney, 270, 395
Palmer v. Bate, 250
Caledonian Ry. Co., 112
Fahnestock, 78
Forsvlh, 108
Lovett, 251, 279
Temple, 4
Palomares, Re, The, 372
Pappa V. Rose, 60
Pardee v. Glass, 383
Paris Manufacturing Co. v. Walls,
358
Park, doe, v. Henderson, 197
V. Willcock, 289
Parker v. B. & E. Ry. Co., 107
V. Bland, 152, 159
V. Gossage, 33
V. Howe, 246, 247, 250, 262
V. Kelt, 24
V. .McKeiina, 245
V. Roberts, 288
Park Gate Iron Co. v. Coates, 168,
223, 224, 226, 229
Paiks V. Davis, 23, 30, 31, 64, 267
Parminter v. Parminter, 185
V,
V.
V.
V.
V.
Parnell v. Walker, 108
Parrett v. Lortie, 94
Parsons v. Crabbe, 22, 372
Parton v. Williams, 379
Partridge v. Elkington, 384
V. Mcintosh, 295
Passraore v. Harris, 197
Pater, Ex parte, 309, 370
Paterson v. Todd, 318
Paton V. Scram, 342
Patten v. Wood, 101
Patterson v. Fuller, 84, 8f), 87
. V. McKellar, 298
V. Richmond, 247, 249
Pattison v. Mills, 110
Pattypiece v. Mayville, 218
Paul V. Joel, 250
Pawson V. Hall, 119
Paxton V, Baird (Addenda), 161
Payne, Ex parte, 54
V. Newberry, 157
Peacock v. The Queen, 290
Pearce v. Chaplin, 230
V. Foster, 101
V. Walker, he, 402
Pearse v. Rogers, 237
Pearson v. C. P. Rv. Co., 113
V. Essery, 322, 394
V. Glazebrook, 69
V. Rattan, 29, 30, 31, 141,
379, 384
Pease v. Chaytor, 61
Peck and Peterborough (Corp.), Re,
64
V. McDougall, 321
Peckham v. Depotty, 102
Pedley v. Davis, 330, 379 •
Peers v. Carrall, 295
Peirse v. Bowles, 174
Pell V. Dauberry, 190
Pelton V. Harrison, 157, 394, 399.
400, 401
Penton v. G. T. Ry. Co., 227
Peppercorn v. Hoffman, 380
Pering v. Keymer, In re, 11
Perkins v. Dangerfield, 215
Perks v. Mylrea, 401
Perlet v. Perlet, 100
Perras v. Keefer, 279
Perren v. INIonmouthshire Ry. &
Canal Co., 177
Perrin v. Bow^s, 301
Perry v. Dickerson, 104
V. Gibson, 191
V. Newcastle, 263
Peters v. Beers, 198
Petit V. Ambrose, 130
Peto V. Blades, 296
r.
'J'
xlii
CASES CITED.
Petre v. Buncombe, 30, 209
Pevvtress v. Harvey, 63
Phelpa V. St. Catharines & N. C.
tty. Co., 251
Phillips V. Austin, 250
V. Canterbury, 319
V. Dixon, 141
V. Foxall, 100
V. Henson, 254
V. London ili S. W. Ry. Co.,
214
V. Phillips, 182, 232
Philpott V. Jones, 07
V. Lehain, 4
Phipps V. In^^ram, 285
Pickard v. Banks, 6(5
Pickering v. Ellis, 102
Picton, The, 218
Pidsley. I/ire, 118
Pierpoint v. Brewer. 22G
Pigeon V. Uruce, 130
Pigg V. Clarke, 255
Piggott V. Birtles, 340
Pike V. Fitzgibbon, 157
Pilgrim v. Knatchbu 1, 112
Pilkington v. Rilev, 385
Piller V. Roberts, 217
Pilley V. Robinson, 143
Pillow V. Roberts, 3
Pimm V. Gx-eville, 174
Pindar v. Robinson, 402
Pineo V. Gavaza, 85
Pinhorn v. Tulkington, 209
Pirie v. Wild, 2i>, 185
Pitcher v. King, 189
Pitt V. Coomes, 349
Piatt V. G. T. Ry. Co., 219, 231
Playfair V. Musgrave, 305
Pleiffer v. Midland Ry. Co., 230
Plummer v. Price, 359
Polak V. Everett, 126
Pole V. Bright, 217
Polgiass V. Oliver, 172
Pollard, He. 133, 194, 265, 37J
Pond V. Dimes, 201
Ponsford v. O'Connor, 191
Poole V. Gould, 132, 190
V. Tumbridge, 171, 174
Poor V. Hudson Ins. Co., 255
Pope, Re, 95
Popple V. Sylvester, 112
Porter v. Flintoff, 359
V. Stevens. 270
Portman v. Patterson, 68
Postlethwaite v. Gibson, 879
Pott V. Flather. 245
Potter V. Carroll, 341
V. Knapp, In re, 15, 285
Potter V. Pickle, 148, 288
Potts V. Leask, 141
Pousett and the Q. S. of Lambton, 17
Powell V. Appolo Candle Co., 391
V. Peck, 210
V. Williams, 233
Powers, In re, 181
Powley V. Whitehead, 59, 290
Poyser v. Minors, 391
Preble and Robinson, Re, 286
Prentice v. Consolidated Bank, 218
Prescott Election, Jn re, 233
Preston v. VVilmot, 28, 304
Price, Re. Stafford v. Noble, 400
V. Bower, 134
V. Howard, 191
V. Messenger, 379
V. Plummer, 359
V. Thomas, 131, 156, 296
V. Torrington, 207
V. Wade, 5, 181
Prichard v. Nelson, 180
Prickett v. Gratrex, 385
Priddee v. Cooper, 131
Prideaux v. Warne, 83
Priestman v. Bradstreet, 101
Prince v. Lewis, 309
V. Samo, 202
Prine v. Beesly, 226
Pritchard v. Bagshawe, 180
Pritchard's Claim, 248
Proctor V. Jarvis, 293
V. Williams, 286
Prout V. Gregory, 249
Provincial Ins. Co. v. Shaw, 132
Provisional Corp. of Bruce v. Cro-
mer, 30
Prudhomme v. Lazure, 108
Pryce v. Hole, 384
Prynne, Re, 395
Pryor v. Citv Office's Co., 98, 157,
163, 214,"'394
Public School Trustees Nottawasaga
V. Nottawasaga, 106, 346
Pugh v. Kerr, 138
Purdy, Ex parte, 328
Purser v. Bradburne, 70
Putnam v. Price, 342
Pybus v. Gibb, 25, 29
Pyke, Ex parte, 65
Pyne v. Kinna, 250
Q.
Quackenbush v. Snider, 339
Quebec Bank v. Radford, 157
Queen v. Hession, 98
Quincey v. Sharpe, 183, 184
CASES CITED.
xliii
J, 288
.ofLambton, IT
andle Co., 391
233
ad, 59, 290
>yi
Dii, Re, 286
dated Bauk, 218
7k re, 233
•28, 304
V, Noble, 400
i4
191
V, 379
', 359
131, 156, 296
311, 207
181
n, 180
ex, 385
•, 131
le, 83
dstreet, 101
309
02
226
shawe, 180
a, 248
,293
ms, 286
249
Jo. V. Shaw, 132
». of Bruce v. Cro-
lazui'e, 108
S4
ffice'a Co., 98, 157,
jstees Nottawasaga
iga, 10f», 346
(8
328
urne, 70
1,342
!.->, 29
io
!50
Q.
Snider, 339
Radford, 157
n, 98
PC 183, 184
E.
Race V. Anderson, 284
Rackham v. Blowers, 219
Radcliffe v. Bartholomew, £3, 118,
212, 386
Railway Sleepers Supply Co., Jn re,
122, 129, 386
Ralph V. G. \V. Ry. Co.. Ill
Randall v. Bri^jham, 59
V. Lith^ow, 248, 261, 262,
272
Rapelje v. Finch, 349
Rastall V. Attorney-General, 32
Rathbone v. Munu, 220
Ravenscroft v. Wise, 177
Rawlin's Bail, 226
Rawstone v. Preston Corp., 192
Rawstorne v. Gandell, 317
Ray V. Barker, 158
Read v. Anderson, 65
V. Brown, 102, 110, 111
V. Goklring, 171
V. \Ved<.e, 105
Redhead v. Mid. Ry. Co., 245
Readinjj v. London School Bd., 30,
282
Reddick v. Traders' Bank, 75, 147
Redding, Re, 77
Redmond v. Redmond, 102
Redpath v. Williams, 130
Reece v. Miller, 69
Reed v. Fairless, 190
Reeves v. Butcher, 181
Reford v. McDonald, 197, 203
Regan v. McGreevy, 328
Reid V. Dickons, l77
V. Gowans, 302
V. McDonald, 82, 222, 358. 360
V. McLeod, 246
V. McWhinnie, 378
V. Ramsay, 230
V. Reid, 398
R. V. Aberdare Canal Co , 122
V. Allan, 118
V. All Saints, Southampton, 54
V. Armytage, 343
V. Assessment Com. of St. Mary
Abbotts, 170
V. Arkwright, 69, 61
V. Badger, 329
V. Beard, 67
Bembridge, 22
Benson, 252, 253
Berkshire (Justices), 122
Bittle, 226
Borron, 22
Brent, 41
V.
V.
V
V.
V.
V.
R. V. Brcmptcn Co. Ct. Judge, 327,
330
V. Burah, 391
V. Cambridge, 19
V. Canterbury (Archbishop), 36
V. Cashioburv (Justices), 218
V. Chapman," 60, 380
V. Cheshire (Justices), 27
V. Cheshire Lines Com., 8, 36, 150
V. Collegeot Physicians and Bur-
geons, 8, 36
V. Collins, 8, 59, 338
V. Court of Revision Cornwall,
11, 223
V. Cowptr, 77, 318
V. Crouch, 158
V. Cummings, 338
V. Davies, 41
V. Davidson, 69, 337
v. Davis, 22
v. D' Eon, 168
v. Doty, 168, 360, 3G2, 364
V. Eli, 60
v. Ellis, 336, 353
V. Essex, 45, 55, 211, 297
V. Everett, 68, 70
V. Farmer, 5i23
v. Farrant, 60
V. Fee, 13, 17, 20
V. Fenn, 190
V. Fick, 213
Ex rel., Flannigan v. McMahon,
36
V. Fletcher, 37, 38, 63, 64, 120,
224, 301
V. Frost, 238
V. Gamble, 99
V. Gibson, 166
V. Gordon, 119
V. Gould, 32, 313
V. G. W. Ry. Co., 148. 167
V. Greenwich (Judge), 60
V. Halifax (Judge), 71
V. Hall, 158
V. Hammond, 111
V. Hampshire, 71
V. Handsley, 59
V. Hanson, 218
v. Harden, 69
V. Hart. 169
V. Hartley, 378
V. Harvey, 44
V. Harwood, 232
v. Hazzell, 378
V. Heflernan, 158
v. Helling, 54
V. Henry, 327
V. Hickling (Inhabitants), 378
I
#
! f ,
XllV CASES
CITED.
R. V. Hill, 12
R. V. Palmer, 68
V. Hodge, 24, 41
V. Paulett, 15, 391
V. Hodges, 124
V, Peckham, 375
V. Howard, 13
V. Potter, 315
V. Hiiddersville (Inhabitants),
V. Price, 136
201
V. Priest, 69
V. Hughes, 153, 1(5G, 323, 839, 377
V. Raffles, 67
V. Huntingdonshire (Justices),
V. Rand, 19
125, 221
V. Riall, 108
V. Hyde, 27
V. Richards, 64
V. lyswich (Recorder), 218
V. Richardson, 6(), 219, 378
V. Johnson, 338
V. Ridgway, 378
V. Jones, 318, 378
V. Rowland, 13, 37, 2'34
V. Jordan, 329, 332, 371, 372, 378
V. Sainsburv, 22, 125
V. Kemp, 60
V. Salop (Justices), 20, 221
V. Kent (Justices), 77, 230
V. Sandford, 6'J
V. Kenyon, 108
V. Savage, 238
V. Kings Lynn (Recorder), 378
V. Severn, 24
V. Law, 8, 120
V. Shavelear, 20
V. Lambeth, 329, 331
v. Shaw, 158, 343, 377
V. Lancashire (Judge), 219
V. Sheffield (J uage),9'>l
V. Langford, 60
v. Sherlock, 43, 332
V. Langridge, 120, 224
V. Shropshire (Judge), 122, 335,
V. Lee, 59
375
V. Leeds (County), 129
V. Smith, 25, 36, 67, 153, 23S
V. Leeming, 30
V. Southampton (Judge), 64
V. Lefroy, 238, 370
V. Staunton, 27
V. Leominster. 157, 190
V, Stimpson, 62
V. Lightfoot, 137
V. Stock, 218
V. Lincolnshire (Judge), 61, 90, 91
V. Stone, 158
(Justices), 125, 221
V. Stonor, 328
V. Local Govt. Board, 33
V. Stretch, 190
V. Lock, 126
V. Stubbs, 220
V. London (Bishop), 254
V. St. Albans (Bishop), 16
V. Lord Mayor, 62
V. Suffolk (Justices), 19
V. London Chatham & Dover Ry.
V. Surrey (Judge), 370
Co., 13, 45
V. " (Justices), 20, 122, 125
V. Ludmore, 319
V. " (Sheriff), 119
V. Malty, 301
V. Sussex, 122
V. Marsh, 378
V. Sutton, 237
V. MaryleboneC. C, 155, 170, 255
V. Sweney, 229
V. Mason, 41, 236
V. Taylor, 68
V. Menary, 377
V. Tisdale, 22, 373
V. Meyer, 18, 219
V. Middlesex (Justices), 33, 230
V, Tomb, 151
V. Totness, 54
V. Milledge, 59
V. Twiss, 58
V. Murray, 118. 148, 167
V. Verelst, 13
V. McFarlane, 2)0
V. Vreones, 287
V. Newcastle-on-Tyne (Justices),
V. Wellard, 43
230
V. Wellings, 201, 326
v.Nichol, 12'), 221,230
V. Wells, 224
V. North Curry, 31
V. West Houghton, 230
V. Nortli Riding of Yorkshire
V. Westmoreland Co Ct., 58
(Justice), 156
V. Widdop, 158
V. Oxford, 32-J
V. VVigan, 17
V. " (Bishop), 9, 15, 20,
V. Wintersett, 101
59, 118, 241
V. Wyat. 22
V. Pah-Mah-Gay, 194
V. Yorkshire (W.R Justices), 229
ii), 219, 378
37, 2'34
125
es), 20, 22 L
id, 377
332
Judge), 122, 335,
5, 67, 158, 284
11 (Judge), 64
■M
Bishop), 16
tices), 19
«e), 370
ces), 20, 122, 125
if), 119
373
II. 326
iton, 230
nd Co Ct., 58
>
101
iT. R Justices), 229
CASES CITED.
xlv
Rennie v. Ratcliffe, 111
Republic of Costa Ric<\ v. Strous-
berg, 323
Republic of Peru v. Weguelin, 161
Rettinger v. Macdougall, 100
Revett V. Brown, 164
Reynolds v. Allan, 173
V. Barford, 366
V. Gallihar Gold Mining
Co., 149
V. Streeter, 295
Rhoades v, Selsey, 209
Rhodes v. Liverpool Com. Inv. Co.,
218, 220
V. Rhodes, 209
V. Smethnrst, 180
Rhymney Ry Co. v. Rhymney Iron
Co., 147, 210
Rice V. Fletcher, 337
V. Howard, 202
V. Jones, Ex parte, 323
Rich V. Cockell, 398
V. Stark, 202
Richards v. Cullerne, 90, 160, 201,
371
V. Jenkins, 233, 358
V. Martin, 103
Richardson v. Buswell, 300
V. Can. West Farmers'
Ins. Co., 237
V. Davies, 2o2
V. Elmit, 249
V. Howell, 149
V. Jackson, 174
V. Shaw, 57, 169
V. Silvester, 220, 230
V. Willis, 9
Richmond v. Proctor, 288
.Ridgway v. Cannon, 135
Ridley v. Sutton, 202
V. Tullock, 107
Riley v. Hirst, 251
V. Warden, 253
Rishton v. Grissell, 209
Riseley v. Ryle, 365
Ritchie v. Smith, 67
Ritchie, Ee. Sewery v. Ritchie, 102
River Steamer Co., In re. Mitchell's
Claim, 185
Rivers v. Griffiths, 174
Rix V. Elliott, 246
Robb V. Murray, 77, 105. 143
Roberts v. Booth (Addenda), 97
V. Corp. of Toronto, 249
V. Dawson, 94
V. Death, 252
V, Humby, 56
V. Lucas, 4
Roberts v. Orchard, 388
Robertson, In re, 119
V, Corn well, 57
V. Coulton, 62, 337
V. Fortune, 298, 367
V. Jenner, 100
V. Laroque, 157, 398
Robins v. Bridge, 190
V. Coffee, 85
V. Empire Ptg. Co. , 196
Robinson, lie, 249
V. Cook, 173
V. Davidson, 101, 326
V. Davies, 197, 203, 285
v. Emanuel, 245
v. Gell, 211, 293
V. Harman, 177
V. Hindman, 101
V. Lenaghan, 132
V. Nesbitt, 251, 265
V. Pickering, 92, 402
v. Piece, 315
V. Rapelje, 214
V. Roland, 187
v. Shistel, 102
V. Waddington, 118
Roblin v. McMahon, 183
v. Rankin, 248
Robson v. Waddell, 312 '
v. Worswiok, 192
Rochfort V. Rynd, 384
Rodger v. Comptoir D'Escompte De
Paris, 317
Rodgers v. Parker, 382
Rodman v. Munson, 146
Rodway v. Lucas, 130
Rodwell v. Phillips, 296
Roe v. Roper, 359
Rogers v. Dutt, 257
v. Highland, 296
v. Hunt, 147
V. Kennay, 358
V. Manning, 197
V. Ontario Bank, 294
V. Quinn, 185
V. Whitely, 247, 261
Rossier v. Westbrook, 148
Roland v. Gundy, 83
Roife V. Learmonth, 113,
Rolker v. Fuller, 301
Rolt V. Gravesend (Mayor, etc.), 293
Ronald v. Brussels, 223
Rooda V. Gun & Shot & Griffin's
• Wharves Co., 362
Rooko's Case, 5
Root V. Woodward, 214
Roper, Re. Roper v. Doncaster, 397
Rorke v. Errington, 61
xlvi
CASES CITED.
Rosier, IL'. Jonaa v. B.irfcliolomaw,
158
Ross, Re, 182, 293, 327
V. Buxton, 93
V. Farewell, 45
V. Grange, 163, 2)3, 319, 318
V. Hamilton, 29S
V. MoLay, 313, 384
V. Perrault, 211
Rotherham v. Priest (Addenda), 159
Rourke v. Short, 65
Routledge v. Rimsay, 185
Rowan v. MoDonell,333
Rowbotham v. Daprea, 149
Rowe V. G. T. Ry. Co., 214
V. Jarvis, 294, 2J8
Rowland v. Vitzstelly, 156
Rowlett V. Lane, 270
Rowley v. Biglow, 82
V. Unwin, 401
Royal Can. Bank v. Matheson, 336
V. Mitchell, 398
Rucker v. Hannay, 180
Rudd V. Frank, 192
Rumbalow v. Whalley, 177
Rumohr v. Marx, 315, 353
Runnaoles v. Me3(|aita, 155, 153
Rush, Re, 9
V. Smith, 191
Russell V. Cambefort, 137, 144
V. (>. W. Ry. Co., 196
V. Williams, 107
Rutherford v. Walls, 64
Ruttan V. Short, 86
Ryan v. Davereux, 232
V. McCartney, 312
V. Ryan, 218
V. Simonton, 223
Ryder v. Towusend, 174
Ryley, Re, 333
Rymill v. Wandsworth, 267
S.
Saggers v. Gorden, 223
Salaman v. Donovan, 217
Salford (Mayor of) v. Lever, 320
Salisbury v. Sweetheart, 156
Salt V. Cooper, 94
Salter v. Mo Leo 3, 312
Samis v. Ireland, 297, 313
Sampson v. Saaton & Baer R" Co.,
267
Sams V. City of Toronto, 123,
Samuel v. Payne, 43
Sanders v. Malsbury, 39 7
V. Stuart, 245
Sanderson v. Ashtiald, 13 8
Sanderson v. Bell, 172
V. Coleman, 383
Sandilands, Re, 3
Sandiman v. Breach, 216
Sandon v. Jervis, 332
Sandys v. Louis, 98
Sangster v. Kay, 113
Sanson v. Sinson, 247
Sargant v. City of Toronto, 81
Sargent v. Wedlaka, 317
Sartoris v. Sartoris, 95
Sato V. Hiibbird, 248, 259, 279, 323
Saunders v. Graham, 172
V. Pitman, KiS
S'lunddrson v. Baker, 374
Savage v. Hall, 226
Sixon V. Ciistle, 2.)3
Soales V. Sar^eson, 361
Schamehoni v. Traske, 361
Soane v. Coffey, 337
V. Duckett, 187
Scanlan v. Usher, 231, 232
Scarf V. Jai-dine, 4, 145
Scarth, Re, 248
Schaffer v. Dumble, 81
Schneider v. Agnew, 41, 326
v. Norris, 77
Schofield v. Bull, 149
Schofleld and wife. Re, 398
Scholes v. Hilton, 189, 190
School Trustees, Hamilton v. Neil,
13
Schregar v. Garden, 177
Schroeder v. Hanrott, 357
Schultz V. Wood, 168
Scott V. Carveth. 294
V. Lewis, 360
V. McRae, 81
V. Mitchell, 151, 208
V. Morley, 270, 322, 401
V. Shephard, 75
V. Stansfield, 18
V. Uxbridge&Rickmansworth
Ry, Co. 174
V. Wve, 157
Sear v. Webb, 158
Searle v. Choat, 95, 251
Searles v. Sadgrave, 172
Seaton v. Fenwick, 149
Seaward v. Williams, 361
Secor V. Sturgess, 104
Segsworth v. Meridan S. Plating Co.
362
Selraes v. Judge, 383
Serjeant v. Dale, 54, 58, 118
Senoka v. Kattenburg, 395
Serverance v. Civil Service Supply
Assn., 394, 402
CASES CITED,
1««
Vll
172
an, 383
ih, 216
32
3
13
247
Toronto, 81
,317
8, 95
248, 259, 279, 323
m, 172
nil, 1()S
ker, 374
10
93
1, 301
raske, 361
37
, 187
, 251, 232
4, 145
)le, 81
ew, 41, 326
ris, 77
149
Ee, Re, 398
I, 189, 190
Hamilton v. Neil,
len, 177
nrott, 357
, 168
.294
too
81
I, 151, 208
270, 322, 401
rd, 75
)ld, 18
^e & Rickmansworth
]o. 174
57
58
, 95, 251
•ave, 172
ick, 149
liama, 361
58, 104
sridan S. Plating Co.
3,383
6,54,58,118
Bnburj^, 395
3ivil Service Supply
402
Sewell V. Jones, 69
Seymour v. Cooper, 255
Shakespeare, lie. Deakin v. Lakin,
394
Shanley v. Moore, 247. 249, 250
Sharp V. Matthews. 338
Sharpe, In re, 151, 208, 224
V. Fortune, 366, 367
V. Leitch, 295, 315
Shaver v. Hart, 231
Shaw V. Jersey, 93
V. McCreary, 395
V. McKenzie, 337, 352
V. Morley. 124
V. Nickerson, 109
V. Shaw, 245
V. The Corp. of Manvers, 11
Shelford v. L. & E. C. Ry. Co. 151
Shepley v, Hurd, 29
Sheppard,!*! »•«?. Atkins v.Sheppard,
94
V. Gilmour, 93
Sherburne v. Middleton, 231, 232
Sherwood v. Cline, 50, 69
Shields v. G. N. Hy. Co., 112, 113
Shingler v. Holt, 359
Shippey v. Grey, 252
Shoppee v. Nathan & Co., 373
Shorey, In re. Chief Superintendent
V. Thresher, 1 1
Shorsberry v. Oemaston, 352
Shropshire v. Glascock, 66
Shultz V. Reddick, 318, 382
Sibbald v. Roderick, 81
Sibeth, Ex parte. Re Sibeth, 398
Siddall, Re, 113
V. Gibson, 60, 61, 62
Sifton V. McCabe, 184
Siggers v. Evans, 126
Sillence, In re, 371
Sills V. Hunt, 80
Simmons v. Storer, 38
V. The Corp. of Chatham,
In re, 1 1
Simms v. Henderson, 196
Simpson v. Chase, 95, 223, 246, 248,
260. 264, 268, 273
V. Hutchinson, 95
V. Ingham, 67
V. London &N. W. Rv. Co.,
245
Sims V. Kelly, 61
V. Prosser, 119
Sinclair v. Baby, 30
V, Sinclair, 217
Sinden v. Brown, 383
Singer v. Williams Manfg. Co., 197
Sisdell V. Cunningham, 273
Sisted V. Lee, 149
Six Carpenter's Case, 382
Skeet V. Lindsay, 183, 184
Skirving v. Ross, 179
Slade's Bail, 225
Slaght V. West, 299, 301
Slater v Mosgrove, 186
Sleeman v. Barrett, 253
Sloan V. Creasor, 29
Slocum V. Sims, 60
Sloman v. Walter, 90
Sly V. Stevenson, 379
Small V Nairne, 197
Smalley v. Gallagher, 81, 84
Smalpage v. Tonge, 296
Smart v. Hntton, 29
V. Miller, 247, 251, 259
V. Niagara* Detroit Rv. Co.,
130, 147, 151
and O'Rielly, Re 57, 220
Smith V. Anderson, 113
V. Antipitzky, 305
V. Aubrey, 81
V. Babcock. 197
V. Baker, 218, 245
V. Baniham, 238, 329
V. Bernie, 293
V. Blundell, 149
V. Burn, 182
V. Campbell, 114
V. Clarke, 250, 267
V. Cobourg ife Peterboro' Rv.
Co., 294
V. Cowell, 94
V. Critchfield, 222, 349, 358,
359, 363
V. Dart, 213
V. Day, 93
V. Douglas, 220
V. Durant, 231
V. Edwardes, 159
V. Everett, 128
V. Fleming, 286
V. Goff, 287
V. Grant, 76
V. Greey, 195, 196, 200
V. Hallen, 198
V. Hill. 1.34
V. Keal, 299, 361
V. Lancaster, 254
V. Lawlor, 92
V Muirhead, 230
V. NichoUa Co., 108
V. Poole, 183
V. Pritchard, 384
V. Bedford,
V. Russell, 3
V. Smith, 837
xlviii
CASES CITED.
Smith V. Spurr, 156
V. Tliompson, 101
V. Thome, 185
V. Truscott, 189
V. West Derby Bd., 384
V. Whitlock, 401
V. Wintle, 130, 131
Snarr v. Baclenach, 210
Sneary v. Abdy, 47
Snelfj'rove v. Stevens, 191
Snider v. Hrown, 383
Snow V. Hill, 124
Society Generalo de Paris v. Tram-
ways Union Co.. 158
Solicitor, In re, A, 156
Solomon v. Howard, 168
Sorenson v. Smart, 4
Soules V. Little, Re, 57, 212
V. Soules, 147
Southam, Re, 16
South Australia Ins. Co. v. Randall,
295
Southwark & Vauxhall Water Co.
V, Quick, 192
Spain V. Arnott, 101
Spalding v. Parker, 182
Sparks v. Barrett, 196
V. Young, 246
Speck V. Phillips, 177
Speeding v. Young, 200
Speers v. G, W. Ry. Co. , 168
Spellman v. Spellman, 191
Speuce V. Hector, 209
Spicer v. Todd, 317
Spigener v. State, 877
Spong V. Wright, 183, 184
Sprague v. Nickerson, 102
Spry V. McKenzie, 81
Spurr V. Hall, 177
Spybey v. Hide, 174
Squair v. Fortune, 295, 314
Squire v. Mooney, 81
V. Wheeler, 329
Stafford v. Clark, 4, 177
Staley v. Bedwell, 362
Stamford, Spauldingtfe Boston Bkg.
Co. V. Smith, 186
Standard Bank v. Frind, 144, 145
Stanley v, Stanley, 249
Stansfeld v. Hellawell, 87
Stanton v. Lambert, 397
V. Styles, 180, 293
Staples V. Accidental Death Ins.
Co. 107
V. Staples, 251
State V. Bishel, 66
V. Clark, 136
V. Giersch, 67
State V. Oliver, 67 .
St. Dennis v. Baxter, 214
Stebbins v. Anderson, 197
Steele v. Savory, 192
Steinkeller v. Newton, 202
Stephen v. Donnie, 134
Stephens v. Cousins, 84
V. Laplanto, 61
T. Stapleton, 385
Stephenson v. Dallas, 159, 160, 200
V. Baine, 70
Stevens v. Clark, 339
V. Esling, 167
V. Hounslow Burial Bd.,
176
V. Pennock, 299
V. Phelips, 247
Stevenson v. Hodder, 180
v. Rae, 197
V. Watson, 60
Stewart v. Cowan, 379, 383
V. Forsyth, 77
V. jage, 180
V. iilacdonald, 48, 320
V. Moore, 212
V. Richard, 160
V. Rounds, 215
Stewartson Loan Co. v. Daly, 155
Stikeman v. Dawson, 27
Still V. Booth, 60
Stimson v. Farnham, 28
Stinson v. Scollick, 214
Stirling v. Maitland, 101
St. .John v. Rykert, 210
Stanford, Ex p. In re, Barber, 378
Stoeser v. Springer, 83
Stockton Malleable Iron Co., Re, 245
Stogdale v. Wilson, 106
Stogdon V. Lee, 394, 395, 399
Stokes v. Latham, 170
Stokoe v. Cowan, 315
Stone v. Dean, 223
Stoness v. Lake, 36, 158, 377
Stonor v. Fowle, 327, 330
Stooke V. Taylor, 179, 188, 290
Story, Ex parte, 58
V. Fini^, 177
Stourbridge Canal Co. v. Wheeley,
70
Strauss v. Francis, 170, 283
Street v. Glover, 97
Strekert v. East Saginaw, 59
Stringer v. Hudderstield, 67
Stringham v. Supervisors, 146
Strong v. Harvey, 172
Strutton V. Hawkes, 156
V. Johnson, 13, 261
Stuart V. Branton, 169
CASES CITED.
xlix
r, 214
n, ly?
2
on, 202
134
te, 61
on, 385
s, loO, 160, 200
e, 70
J9
167
)W Burial Bd.,
299
247
er, 180
197
on, 60
379, 383
1,77
80
aid, 48, 320
212
S, 100
I, 215
uo. V. Daly, 155
Jon, 27
am, 28
[,214
ad, 101
t, 210
I re, Barber, 378
)r, 83
eIronCo.,iie,245
1,106
H, 395, 399
,170
315
3
10, 158, 377
J27, 330
179, 188, 290
8
7
,1 Co. V. Wheeley,
8, 170, 283
97
Saginaw, 59
erstield, 67
jervisors, 146
,172
Lea, 156
ion, 13, 264
1,169
Stuart V. Gladstone, 168
V. Grough, 94, 95, 246, 248,
252, 262, 263
Stumore v. Campbell, 96, 246, 250,
267
Sturch V. Clarke, 379
Sturgess v. Claude, 357
Sugg V. Silber, 234
Sullivan V. Corp. of Barrie, 182
V. Francis, 165, 220, 221,
222, 228, 315
Suite V. Three Rivers, 24
"Summerfeldt v. Worts, 56, 65, 68
Summers, Ex parte, 60, 107, 360
V. Morphew, 250
Sun Fire Office v. Hart. 352
Sunbolf V. Alford, 83. 315
Sunderland Local Marine Bd. v.
Frankland, 247
Superintendent of Schools Re v.
Sylvester, 62
Supervisors v. United States, 241
Surman v. Wharton, 397, 400
Surr V. Walmsley, 202
Sutherland v. Durable, 132
Sutton V. Sutton, 181
Sutton Coldfield Gram. School Re,
282
Swain, Re. Swain v. Bringeman, 187
V. Stoddart, 362
Swarm v. Sowell, 184
Sweetland v. Neville, 397
Sweetman v. Gosfield, Re, 118
Sweetuam v. Lemon, 262
Sweny v. Smith, 174
Swift V. Jewsbury, 245
V. Jones, 151, 208
Swinburne v. Carter, 226
Switzer v. Brown, 41
Sykes' Brewery Co. v. Chadwick,
157
Sykes' v. Brockville & Ottawa Ry.
Co., 261, 262, 274
Sykes v. Sacerdote, 97
Symmington v. Symmington, 218
Symonds v. Dimsdale, 108
V. Hellett, 400
V. Knox, 180
Synod v. De Blaquiere, 214
T.
Tait V. Harrison, 150
Talbot V. Poole (Addenda^, 70, 71
Tancred v. Delagoa Bay Co., 128
V. Leyland, 293
Tanner v. Smart, 182, 185
Tapp v. Jones, 246, 267, 276
D.C.A — d
Tarrant v. Baker, 384
Tasker v. Sheppard, 101
Tate V. Bodfleld, 149
V. Corp. of Toronto. 248, 331,
260, 261, 262, 342
Taylor, Re, 5
V. Addyman, 55
V. Ainslie, 309
V. Ayhton, 218
V. Cook, 322
V. Crowland Gas Co., 112
V. Holt. 209
V. Laird, 100
V. Lanyon, 366
V. Meads, 397
V. Parnell, 99, 181
V. Phillips, 132
V. Wood, 217
Teal V. Clarkson, 79
Temperance Col. Scy. v. Evans, 195
Temple v. Toronto Stock Exchange,
15, 33
Templeman v. Reed, In re, 11, 1&
Tennant v. Manhard, 145
V. Ri;-'-'ings, 233
Tench's Trusts, Re, 398
Tetley v. Griffith, 395
Thackoorseydass v. Dhoudmull, 65
Tharsis Sulphur Co. v. Loftus, 60
Thayer v. Sherman, 251
The Credits Gerundeuse (Ltd ) v.
Van Weede, 359
Thellusson v. Rendlesham, 19, 231
Thelwall v. Yelverton, 136
Theobalf't v. Ry. Passengers Ass.
Co.. 245
Third National Bank of Chicago v.
Cosby, 78
Thomas, Re, 113
V. Brown, 166
V. Evans, 172
V. Exeter, etc. Co., 212, 283.
V. Harrop, 11
V. Hilmer, 59, 218
V. Hudson, 1ft.
V. Peak, 303
V. Pearce, 13ft'
v. Storey, 200*
Thompson, Re, 402
V. Farr, 37ff
V. Gibson, 41
V. Hay, Re, 56,60, I M.
122
V. Ingham, 61, 69
V. Kaye, 87
V. Lack, 27
V. McLean, 29
V. Mosley, 191
'-^tMUMiMBHl
CASES CITED.
Thompson v. Pariah, 210
V. Pheney, 131
V. Rose, 83
V. Ward, 254
V. \\ ri^ht, 858
Thornburn v. Barnes, 30, 120, 133,
194, 205
Thornweli v. Wigner, 220
Thorpe v. Brown, 328
V. Burgess, 174
V. Gisborne, 189
Threfall v. Wilson, 402
Thockmorton v. Crowley, 803
'Thurgood v. Richardson, 366
"Thurlow V. Sidney, 285
Tibbs V. Wilkes, 100
Tisdale, Re, 286
Tiffany v. Bullen, 119, 246, 823
'Tildesley v. Harper, 144
Tiley V. Courtier, 172
trilk V. Parsons, 382
Till V. Till, 397
Tilt V. Jarvis, 299
Timson, Re, 124
Tindall, Ex parte, 292
Tinkler v. Hildor, 67, 861
Tinsley v. Porter, 190
Tipling V. Cole, 208
Tippett, Re. Newbold's Contract, 399
Tobey v. Wilson, 174
Todd V. Robinson, 48, 820
Toft V. Rayner, 60
Tomkins v, Jones, 70
Tomlinsr av. Ooatley, 138, 260, 265
V. Jarvis, 366, 867
V. Land & Fin. Corp. ,362
Toms V. Camming, 379
V. Luckett, 254
V. Wilson, 371
Toppin V. Buckerfield, 359
Topping, Ex parte, 186
Toronto Brewing & M. Co. v. Blake,
98
Toronto Dental Man. Co. v. Mc-
Laren, 4, 140
Toronto, Re Judge of Division Ct.,
370
Toronto Savings Bank v. Canada
Ass. Co., 210
Torrence v« McPherson, 230
Totten V. Bowen, 398
Toalmin v. Miller, 215, 230
Toward, In re. 128
Town of Dundas v. Gilmour, 98
Townsend v. Croudy, 263
Township Clerk of Euphrasia, Re,
64
Towsley v. Wythes, 209
Traders' Bank v. Kean, l(;o
V. McConnell, 281.
298
Trainor v. Holcombe, 64, 08
Trelevan v. Bray, 98
Trent v. Hunt, 318
Trevor v. Wilkinson, 110
Trice v. Robinson, 182
Trimble v. Hill, 66
Trimble v. Miller, Re, 58, 59, 70
Tronson v. Dent, 230
Trotter v. C --mbers. 398 •
v. *" .of Toronto, 182
Truax v. ] 277, 387
Truman \ . . ^rave, 96
Trust & Loan Co. v. Cuthbert, 298
V. Dickson, 21
v. Gorsline, 94,
249
V. Jones, 156
V. Lawrason, 365
Trustees of Nottawasaga v. Notta-
vasaga, 104
Tubby v. Stanhope, 13, 37, 264
Tucker v. CoUinson, 36
Ex parte, 8, 120
Ik re, 8, 120
Re. Emanuel v. Parfitt, 398
v. New Brunswick, 93
Tuckett V. Eaton, 293. 305
Tuffts v. Mottashed, f. .
Tullett v. Armaiioag, 899
Tully v. Glass, 107
Tunbridge Wells Local Bd. v. Ak-
royd, 8
Turley v. Williamson, 180
TurnbuU v. Foreman, 157, 892
V. Robertson, 251, 261
Turner, In re, 378
V. Bridgett, 303
V. Burkinshaw, 209
V. Goldsmith, lul
V. Hednesford Gas Co., 90
98
V. Imperial Bank, 221
Jones, 201, 267
Lucas, 162
Mason, 101
Meryweather, 107
Patterson, 293. 295
Robinson, 100
Wilson, 309
Turney v. Dodwell, 186
Turquand v. Dawson, 167
Tyler v. Carlisle, 65
V. Jones, 285
CASES CITED.
u
209
in, 11)0
sConnell, 281.
)8
, G4, 08
110
2
r. 58, 59, 76
398 •
oronto, 182
387
95
Cuthbert, 298
Dickson, 21
Gorsline, 94,
249
Jones, 156
Lawrason, 365
asaga \. Notta-
13, 37, 264
,36
120
tl V. Parfitt, 398
nswick, 93
!93. 305
/-■
ig, 899
jQcal Bd. V. Ak-
lon, 180
an, 157, 392
son, 251, 261
t, 303
ihaw, 209
ith, 101
ford Gas Co., 96
il Bank, 221
.,267
2
(1
iher, 167
, 293. 295
,100
)9
1,186
son, 167
[>5
>
u.
Union Bank v. Neville, 47
Union F. Ins. Co. v. Fitzsimraons,
24
United Eng. & Scot. Ins. Co., Jif,
247
U. 8. V. Lancaster, CO
Upton V. McKcnzie, 131
Valpy V. Manley, 349
Van Allen v. Wigle, 104
Vance v. Ruttan, 3(56
Vanderlinden, Ex parte, 292
Vanderlip v. Smyth, l.')7, 309
Vanderwaters v. Horton, 77
Van Every v. Grant, 83
Ross, 233, 361
Buffalo & L. H.
Ry.
V,
Vannatter v.
Co. 381
Van Staden v. Van Staden, 362
Varden v. Wilson, 226
\ardon v. Vurdon, 170, 185
Vashon v. East Ilawkesbury, Re, 59
Vavasseur v. Krupp, 97
Veley v. Burder, .58
Venning v. Steadman, 383
Vontriss v. Brown, 292
Verratt v. McAulay, 24, 27, 28, 384
Vestris's Bail, 226
Vestry of Bermondsey v. Bamsev,
140
Victoria M utual v. Bethune, 248, 270,
272, 278
V. Davidson, 29, 33
v. Thompson, 81
Villeneuve v. Wair, 161
Vinall v. De Pass, 259
Vindin v. Wallace, 364
Vineberg v. Guardian F. & L. Assce.
1.0. , 287
Vines v. Arnold, 104, 106
Virtue v. Hayes, 219
Vogel v. G. T. Ry. Co., 239
Vyse v. Brown, 251, 279
w.
Waddell v. Robertson, 224
Waddington v. Palmer, 134
Wade V. Dowling, 16
V. Simeon, 149
Wadsworth v. Spain (Queen), 62,
269
Wagner v. Mason, 238
WagHtafT v. Jacobowitz, 157
Wamman v. Kynmau, 186
Wait v. Hager, 302
Wakefield v. Bruce, 387, 839
Walker v. Butler, 186
v. Friol, 92
V. Hyman, 82
v. McMillan, 170
v. Olding, 361
v. Rawson, 177
v. Rooke, 144, 246, 268
V. S. E. Ky. Co.. 351
V. Wi'sher, 185
Walker's Bail, 225
Wallace v. Allen, 63
V. Eraser, 126, 166
Waller v. Andrews, 277
V. Joy, 168
V. Lacy, 183, 186
V. Smith, 96
Walley v. McConnell, 132, 321
Wallingford v. Mutual Society, 15S,
169
Wallis V. Harper, 313
Walsh, lie, 110
V. Elliott, 77
V. lonides, 58
V. Walley, 100
Walter. Be, Clara, 401
Walters v. Coghlan, 224
Walton V, Apjohn, 198
V. Jarvis, 298
Wambold v. Foote, 231
Warburton v. Heyworth, 100
Ward, Re, 124
V. Armstrong, 818
V. Dncker, 108
V. Freeman, 18
V. Nat. Bk. of New Zealand,
27
V. Proctor, 161
V. Raw, 158, 224
V. Vance, 46, 120, 156, 260
V. Wilkinson, 168
Wardrope v. C. P. Ry. Co., 262, 275
Warner v. Mosses, 200, 201
V. Murray, 400
V. Riddiford, 228
Warre v. Calvert, 27
Warren v. Deslippes, 32
V. Twining, 98
Warren's Settlement, 399
Warwick v. Bacon, 156
V. Foulkes, 245
Washburn v. N. Y. V. M. Co., 270
Washington v. Webb, 361
Waterhouse v. Keen, 383
Hi
CASES CITED.
Waterloo Bridge Co. v. Cull, 20
Waters, Ex parte, 371
V. Handley, 115, 132
Waterton v. Baker, 223
Watkins v. Scottish Imp. Ins. Co.,
112
V. Vince, 138
V. Washburn, 183
Watsou V. Ambergate, etc., Ry. Co.,
220
V. Bodell, 18
V. Heatherington, 172
V. Henderson, 295, 3(50
V. Lillico, C2
V. Lindsay, 182
V. MidvvalesRy. Co., 316
V. McDonald, 197
V. Ont. Supply Co , 322
V. Wolverton, 66, 121
Watt V. Barnett, 135. 136, 149
V. Clark, 170
V. Ligertwod, 216, 370
V. Van Every 110
Watts V. Anderson, 190, 197, 198
V. Beemer, 131
V. Howell, 233, 294, 361
V. Jefferyes, 315
Waugh V. Conway, 105
V. Cope, 186
Weatherfield v. Nelson, 391
Weatherly, In re, 41
V. Calder, 113
Webb V. East, 192
V. Page, 189
V. Stenton, 94, 245, 246, 248,
249, 250
Webber, Ee, 247
V. McLeod, 352
Webster v. British Empire M. L.
Ass. Co.. 210
V. Freideberg, 163, 213
V. Gage, 270
V. Haggart, 284
V. Overseers, As h ton-
under-Lyne, 266
and Registrar of Brant,
Re, 313
V. Webster, 245, 246
Weeks v. Lalor, 82
V. Wray, 136
Weldon v. De Bath, 400
V. Winslow, 394
Weller v. Wallace, 130
Wellesley v. Mornington, 93
V. Withers, 125
Wellington v. Chard, 128
(County) V. Wilmot
(Tp.), 209
Wellington v. Whitechurch, 111
Welsh V. O'Brien, 86
Wenlock v. River Dee Co., 51
West, Re. Ex parte, Clough, 277
WiBstbury v. Twigg, 319
Westinghouse v. Mid. Ry. Co., 192
Westley v. Jones, 130
West of England & 8. W. Dist.
Bank, Re, 97
Westbrook v. Cala,4han, 343
v. Miller, 24
Wast Jewell Tin Mining Co., In re,
Little's Case, 230
Westmoreland v. Huggins, 196
Western Assce. Co. v. McLean, 173
Western Fair Assn, v. Hutbinson,
60
Western Nat. Bank v. Perez, 144
Western of Canada Oil Lands, &c ,
Co. In re, 202
Western Wagon, Ac, Co. v. West,
249
Westhead v. Riley, 94
Westlake v. Abbott, 149
Westlev V. Jones, 189
Westloh V Brown, 126, 309
Westoby v. Day, 251, 261
Weston V. Sneyd, 73, 107
V. Thomas, 308
Westover v. Turner, 112, 113, 137,
268
Westwood V. Cowne, 344, 382
Wharton v. Naylor, 366
Wheeler v. Atkins, 197
v. Gibbs, 175
v. La Marchant, 192
Whidden v. Jackson, 107
Whiley v. Whiley, 148
Whimsell v. Giffard, 255, 318
Whipple V. Manley, 180, 181
Whistler v. Hancock, 233
Whitaker v. Izod, 191
White, Ex parte, 295
v. Brown, 214
V. Galbraith, 5, 59, 64, 78,
106, 346, 394
v. Garden, 83
v. Milne, 221, 364
v. Sharp, 11
v. Steele, 68
V. White,-252
Whitehead v. Burt, 111
\ . Fothergill, 132
White Sewing Machine Co. v. Bel-
fry, 77
Whitehouse, Ex parte, 260
V. Wolverhampton Ry.
Co. 282
CASES CITED.
liii
rch, 111
o.,51
gh, 'i77
ly. Co.,192
. W. Dist.
343
I Co., In re,
ns, 196
kIcLean, 173
Huthinson,
Perez, 144
Lands, &o ,
Co. V. West,
,309
!61
07
112, 113, 137,
144, 382
)6
7
mt, 192
107
)
J55, 318
BO, 181
233
5, 59, 64, 78,
394
364
11
;iH, 132
ne Co. V. Bel-
,260
irbamptoQ Ky.
Whit-
Hard-
Whitehouse v. Simons, 134
Whitely v. MacMalien, 284
Whitely Partners, lie, 78
Whitling V. Sharpies, 69
Whittaker, Re. Christian v.
taker, 397
V. Kershaw, 394
Whittoii, Ex parte, 24
Whitwood Chemical Co. v.
man, 93
Wickham v. Lee, 69, 103
Wicks V. Wood. 360
Widmeyer v. McMahon, 69, 76, 395
Wigens v. Cook, 179
Wilberforce v. Sowton, 220, 223
Wilcoxon V. Searby, 364
Wilde V. Sherridan, 110
Wilding V. Bean, 135
Wiley V. Crawford, 245
Wilhelmi v. Hafner, 218
Wilkes V. Buffalo, B. & G. By. Co.
151
Wilkins v. Casey. 277
V. Peatman, 362
Wilkinson v. Harvey, 299, 361
Willcock V. Terrell, 247
Willcocks V. Howell, 140
Williams, Ex parte, 209
V. Burgess, 118
V. Crow, 80
V. Kvans, 165, 220
V. Grey 320, 359
V. Griffiths, 184
V. G. W. Ry. Co. 237
V. .lones, 219
V. Macdonald, 296
V. Mostyn, 245
V. Piggott, 135
V. Price, 386
V, Reeves, 247, 249
V. Richardson, 363
V Sibley. 97
Williamson v. Harvey, 299
V. McCrary, 339
V. Mog>»s, 135
Willing V. Elliott, 92, 393
Willis V. Ball, 135
V. Bull, 131
V Grippe, 8
V. Mac Eachlan. 60
Willoughby v. Willoughby, 11
Willows V. Ball, 315
Wills V. Hopkins, 361
Wilmot V. Maitland, 92
V. Smith, 172
V. Wadsworth, 197
Wilson V. Brett, 204
V. De Coulon, 196
Wilson V. Corp. of Huron and Bruce,
170, 250, -283
V. Dundas, 250
V. Gabriel, 317
V. Hector, 120
V, Hutton, 208
V. McDonald, 199
V. McGuire, 20
V. Mun. Council of Port
Hope, 149
V. Quarter Sess. of Huron
and Bruce, 377
V. Rastall, 353
V. Reid, 86
V. Roger, McLay & Co. 144
V. Rykert, 185
V. The Corp of Middlesex,
81
V. Uphill, 175
V. Vo^t, 295
V. Wallani, 31
Wiltsie V. Ward, .58, 76, 107
Winfield v. Fowlie, 233, 358
Winger v.Sibbald, 104, 106, 148, 231
Wingrove, Ite, 77
Winks V. Holden, 327
Winn V. Ligilby, 294
Winnipeg Water Wka. Co. v. Win-
nipeg St. Ry. Co., 225
Winsor v. Dunford, 68, 60
Winter v. Garlick, 286
Wintle v. Williams, 272
Wismer v. Wismer, 1C2
Withrow, Re, 248
Wolfe, Ex rel., v. Butler, 253
Wolmershausen v. Wolmershausen,
30, 184
Wolton V. Gavin, 13
Woltz V. Blakely, 41, 62, 327
Wood V. Dixie, 279
V. Dunn, 2i)l, 272, 277
V. Foster, 19
V. Jones, 182
V. Joselin, 261, 279, 281
V. McAlpine, 128
T. Perry, 103
V. Bowcliff, 92
V. Wood, 8, 295, 315
Wood & Ivery (Ltd ) v. Hamblet,
232
Woodgate v. Godfrey, 296
V. Knatchbull, 374
Woodhams v. Newman, 106
Woodruff v. McLennan, 155
Woods V. Bennett, Re, 64
Woolen V. Wright, 299
Wooltord's Est. (Trustees) v. Levy,
819
liv
CASES CITED.
I I
WoosterCoal Co. v. Nelson, 148, 149
Working Men's Mat. Socy., In re,
189, 193
Workman v. Brady, 70
V. Robb, 49
Worley v. Glover, 130
Worsley v. Bissett, 168
Worthington v. Jeffries, 62, 63
Worts V. Worts, 16
Wright V. Arnold, 56, 102
V. Chard, 396
V, Court. 43
V, Hale, 392
V. McGuffie, 168
V. Mills, 150
V. Read, 172
V. Wilkin, 202
Wyslon V. Dunn, 78
Y.
Yates V. Palmer, 58
Yatea v. Kutledge, 365
Yea V. Lethbridge, 29
Yeatman v. Dempsey, 190, 245
Yorke v. Smith, 220
Yorkshire Banking Co. v. Beatson,
160, 215
Young, Ex parte, 144
He, 9, 46, 55, 144, 145, 278
d,nd Harston, Re, 136, 238,
329, 371
V. Brornpton, 228
V. Buchanan, 295
V. Bulman, 11
V. Higgon, 24, 42, 215, 239,
350. 384, 385, 386
V. HoUoway, 192
V, Kitchin, 97
V. Leng, 151
V. Morden, 59, 77
V. Parker, 145, 322
V. Proby, 28
V. Taylor, 166
z.
Zaritz v. Mann, 58, 129
Zavitz V. Hoover, 216
Zilliax V. Deans, 311
Zimmer v. G. T. Ry, Co., 241
Zohrab v. Smith, 60, 132
Zouch V. Empsey, 122
V. Beatson,
, 145, 278
le, 136, 238,
8
)5
2, 215, 239,
>, 386
322
3o., 241
32
LIST AND EXPLANATION OF ABBREVIATIONS.
A.
(1891) A. C— Appeal Cases, Law Reports (England), 1891, etc.
Add. on Con. — Addison on Contracts, 9th Ed.
A & E.— Adolphus & Ellis's Reports, K. B., 1884-1840.
Ala. — Alabama Reports.
Alb. L. J.— Albany Law Journal.
Ambl.— Ambler's Reports, Chancery, 1737-1784.
Am. St. R. or Am. R. — American State Reports.
Anst. — Anstruther's Exchequer Reports, 1792-1797.
And. or Anderson — Anderson's Reports C. F., 1664-1665.
App, Cas. — Appeal Cases, English H. L. and, Privy Council, 1875-1890]
A. R. — Appeal Reports, Ontario, 1876 to date.
B,
B. & Ad.— Barnwell and Adolphus's Reports, K. B., 1830-1834.
B. & Aid. or A.— Barnewall and Alderson's Reports, K. B., 1817-1822.
B. N. A. Act— British North American Act.
B. & B.— Ball & Beatty, Irish Chancery Reports, 1807- 1814.
B. & C— Barnewall and Cresswall's Reports, K. B., 1822-1830.
Bao. Abr. Prohib. — Bacon's Abridgment, Title, •' Prohibition.."*
Barb. — Barbour's Reports, New York Supreme Court.
Barnes. —Barnes' Notes, Common Pleas, 1732-1756,
Beav.— Beavan's Reports, Rolls Courts, 1838-1866.
Bang.— Bangham's Reports, C. P., 1822-1834.
Ring. N. C— Bingham, New Cases, 0. P., 1834-1840.
Biss.— Bissell's United States Circuit Court Reports.
B. & P.— Bosanquet and Puller, Common Pleas, 1796-1807.
B. N. P.— Buller's Nisi Prius.
Bro. C. C— Brown's Chancery Reports, (Eden or Belt).
Brod. A Bing.— Broderick and Bingham, Common Fieas Reports, 1819.
1822.
B. A S.— Best & Smith's Reports. Q. B., 1861-1870.
Buller's N. P.— Buller's Nisi Prius.
Bulstr.— Bulstrode's Reports, K. B., 1609-1639.
Bunb.— Bunburys Reporst, Exchequer, 1713-1742.
Burbidge's Crim. Dig.— "Burbidge's Criminal Digest, 1890.
Burr.— Burrov,, Q. B. 1757-1771.
0.
C. A. — Court of Appeal.
Camp.— Campbell's Reports, Nisi Prius, 1808-1816.
C. B.— Common Bench Reports or Manning, Granger & Scott's Reporti?,
1845-1856.
Ivi
ABBREVIATIONS.
C. B. N. S. — Common Bench Reports, new series, 1850-1865.
Cal.— California Supreme Court.
Cald. — Caldecott's Reports, Magistrate's Cases, 178G-1800.
Car. & M.— Carringtou & Marshman's Reports, Nhi Friun, 1840-1842.
C. & J. — Crompton & Jervis' Reports Exchequer, 1830-1832.
Cent. L. J.— Central Law Journal.
1891, 1 Ch. — Chancery Division Law Reports (England), 1891 etc. ■
Cham. R. — Chambers Reports, Upper Canada, 1851-1852.
Ch. Cham. — Chancery Chambers Reports, Upper Canada, 18.52-1801.
Ch. D. — Chancery Division, Law Reports (England), 1875-1890.
Chitty— Chitty's Reports, 1820-1823.
Chitt. Stats. — Chitty's Statues of Practical Utility.
C. & E.— Cababe & Ellis' Queen's Bench Reports, 1882-1885.
C. 4 K.— Carrington & Kirwan, Nixi Prius, 1840-1850.
CI. & F.— Clark & Finnelly's House of Lords Reports, 1831-1846.
C. L. J.— Canada Law Journal, 1865 to date.
C. L. R.— Common Law Reports (English), 1815-1865.
C. L. T. — Canadian Law Times (occasional notes), 1880 to date.
C. & M. — Crompton it Meesou's Reports, Exchequer, 1832-1834.
C. M. & R.— Crompton, Meeson & Roscoe, Ex., 1834-1836.
C. P. — Common Pleas Reports, Upper Canada, 1850-1881.
C. & P.— Carrington and Payne Reports, N. P., 1813-1841.
C. R. — Consolidated Rules of Practice.
Col. — Colorado Supreme Court of Appeals.
Conn. — Connecticut Supreme Court. ' •
•Cranch — Cranch, United States Supreme Court, 1801-1815.
«Cro. Car. — Croke's Reports during reign of Charles I.
Cromp. & J. — Crompton and Jervis' Reports, Ex , 18301832.
Cromp. & M. — Crompton and Meeson's Reports, Ex., 1831-1834.
C. S. U. C. — Consolidated Statutes of Upper Canada, 18.06.
Curt. — Curtis' United States Circuit Court, First Circuit.
Gushing— Cushing's Reports, Massachusetts Supreme Court Reports.
D.
D. C. A. — Division Courts Act.
Dears. C. C— Dearsley's Crown Cases, 18521850.
D. F. & J.— DeGex, Fisher & Jones, Chancery, 1851-1801.
Deg. & S. — DeGex and Smale's Reports, Chancery, 184()-1852.
D. & L. — Dowling and Lowndes, Bail Court Reports, 1816-1849.
Den. C. C— Denison's Crown Cases, 1850-1852.
Divl. Ct. — Divisional Court.
Dowl.— Dowling's Practise Cases, 1830-1840.
Dowl. N. ^.- Dowling, new series, 1841-1842.
Doug.— Douglas' Reports, K. B., 1778-1784.
D. M, & G. — DeGex, Macnaghten & Gordon's Reports, Chancery, 1853-
1864.
D. & R.— Dowling and Ryland, K. B., 1821-1827.
Dra.— Draper's K. B. Reports, Upper Canada, 1829-1831.
Duv. — Duvall's Kentucky Court of Appeals.
Dwar. — Dwarris on Statutes.
Dow & Clark — Dow & Clark's House of Lords Cases.
Dra. — Draper's Reports, Upper Canada, 18291-831.
E.
Fast- East's Reports, K. B., 1801-181«.
11. A A. — Error and Appeal Reports, Upper Canada, 1840-1806.
ABBREVIATIONS.
Ivii
E. & B.— Ellis & Blackburn's Reports, Q. B., 1852-18i38.
E. B. & E.— Ellis, Blackburn & Ellis's Reports, Q. B., 1818.
East, P. C— East's Pleas of the Crown, 1803.
E. it E.— Elliti & Ellis, Q. B., 185(i-18G0.
E. T.- Easter Term.
Esp.— Espinasse, Nisi Prins, 1703-1807.
Evans Prin. & Agt. — Evans on Principal and A-;ont.
Ex.--Exchequer Pieports, 1847-185G.
Ex. D. — Exchequer Division, Law Reports (England), lb'751S80.
Farr. — Farresley (7 Modern Reports).
F. & F. — Foster and Finlason's Reports, Nisi Prius 185818i;5.
F. R. — Federal Reporter.
Ga. — Georgia Supreme Court Reports.
Giff.—Giffard's Reports, Chancery, 1800-1871.
Gow.— Gow, Nisi Prius, 1818-1820.
Gr. — Grant's Chancery Reports, Upper Canada, 18'19-1881.
H.
Hale, P. C— Hale's Fleas of the Crown.
Har. & W.— Harrison v. Wollaston's Reports K. B., 1835, 1831).
Hare — Hare's Report, Chancery, 1841-1853.
H Bl.— Henry Blackstone's Reports, 1788-1796
H. & C. Hurlestone v. Coltman's Reports, Exche-iuer, 18G2-18(j(i.
H. L. Caa — House of Lords Cases (New Series), 1847-1865.
H. & M.— Hemming & Miller's Chancery, 1862-1865.
H. & N.— Hurleston's and Norman's Reports, Ex. 1856 1861.
Hodge's. — Hodge's Reports, Common Pleas, 1835-1837.
Hodgins' E. C— Hodgins' Election Cases, 1871- 1878.
Howard, Miss. — Howard's Mississippi Reports. 1834-18 i3.
Humphrey's — Humphrey's Tennessee Supreme Court Reports.
Hun. — Hun's RapjrCs, Naw York Suprema Con.'t.
I.
111. — Illinois Reports.
Inst. — Coke's Institutes of the Laws of Englaud.
Iowa, R.— Iowa Supreme Court.
Ir. Chan. — Irish Chancery Reports, 1850-1866.
Ir. C. L.— Irish Common Law Reports, 1850 1866.
Ir. Eq.— Irish Equity Reports, 1838-1850.
Ir. L. R.— Irish Law Reports, 1838-1850.
Ir. R. C. L.— Irish Reports, Common Law Series, 1866, 1877.
Ir. R. Eq.— Irish Reports, Equity, 1866-1877.
J.
Jac— Jacob's Reports, Chancery, 1821-1828.
J. A. Rule— Rules of tiie Ontario Judicature Act, 1881.
Johns. — Johnson's lleports. Chancery, 1859.
Jur.— Jurist Reports, 1837-1854.
m\
1 ••'
Iviii
ABBREVIATIONS.
Jur. N. S.— Jurist, New Series, 1855-1866.
J. P. — Justice of the Peace.
J. W.— Jacob Walker's Reports. Chancery, 1819-1821.
K.
K. & J. — Kay and Johnson's Reports, Chancery, 1854-1858.
Kansas — Kansas Supreme Court Re^iorts.
L.
La. An. — Louisiana Annual, Supreme Court.
L. &. C — Leigh and fave's Crown Cases. 1861-1865.
L. C. G. — Local Courts Gazette, Upper Canada, 1865-1872.
L, J. Bky. — Law Journal, Bankruptcy, 1832 to date.
L. J. Chan. — Law Journal Chancery, (England), 1832 to date.
L. J. Ex. — Law Journal, Exchequer, 1832 to date.
L. J. M. 0. — Law Journal, Magistrate's Cases, 1832 to date.
L. J. N. S.— Canada Law Journal, New Series, 1865 to date.
L. J. Q. B.— Law Journal, Queen's Bench, 1832 to date.
L. J. N. — New Jersey Supreme Court Reports.
L. M. P.— Loundes, Maxwell and Pollock's Rep. Bail Court, 1850-18>L
L. R. A. & £. — Law Reports, Admiralty and Ecclesiastical.
L. R. C. C. — Law Ueporta. Crown Cases Reserved.
L. R. Ch. — Law Reports, Chancery Appeals.
L. R. C. P.— Common Pleas Law Reports. (England), 1865-1875.
L. R. Eq. — Equity Cases, Law Reports (England), 1865-1875.
L. R. Ex.— Exche(iuer Law Reports (England), 1865-1875.
L. R. Ir. L. — English and Irish Appeals, House of Lords.
L. R. Ir. — Law Reports, Ireland, 1878 to date.
L. R, Q. B.— Queen's Bench Law Reports (England), 1865-1875.
L. R. P. C. — Law Reports, Privy Council Appeals.
L. R. P. & D. — Law Reports, Probate and Divorce.
L. R. 8c. App. — Law Reports, Scotch Appeals.
L. T. N. S. — Law Times, New Series (English).
L. T. O. S.— Law Times, Old Series (English).
L. T. Jour. — Law Times Journal, 1843 to date.
Lush's Pract. -Lush's Practice.
M.
McClel. & Y.— McCleland & Younge, Exchequer Reports, 1825.
Mac. A,. G. — Macnaghten and Gordon's Reports, Chancery, 1840-1851.
Macq. — McQueen's House of Lords' Cases, Scotch Appeals, 1851 1865..
Maine— Maine Reports Supreme Court.
Man. L. R. — Manitoba Law Reports, 1884 to date,
Marsh.— Marshall's Repor>^s. C. P., 1813-1816.
Mass. — Massachusetts Supreme Court Reports.
M. & G.— Manning and Granger, C. P., 1840- 1844.
M. & Sc— Moore & Scott's Reports, Common Pleas, 1831-1834.
M. T. — Michaelmas Term.
Mich. — Michigan Supreme Court Reports
Mod.— Modern Reports, 1793-1796.
Moo. & M.— Moody and Malkin's Reports, N. P., 1827-1830.
Moo. P. C— Moore's Privy Council Cases, 1836-1861.
Moo. P. C. N. S.— Moore's Privy Council Cases, New Series, 18G2-1S73.
Moo. C. C— Moody's Crown Cases, 1824-1844.
ABBREVIATIONS.
lix
ate.
e.
te.
rt, 1850-18U.
al.
5-1875.
875.
5-1875.
Moore— Moore's Reports, C. P., 1817-1827.,
M. & Rob.— Moody and Robinson's Reports, C. P., 1831-1844.
M. & S.— Mauie and Selwyn's Reports, K. B., 1813-1817.
Morris— Morris on Replevin.
Mun.— Municipal Act.
Mun. Man.— Harrison's Municipal Manual, 5th Ed.
M. & W.— Meeson & Welsby's Reports, Ex., 1836-1847.
N.
N. B. Reps.— New Brunswick Reports, 1825 to date.
N. C— North Carolina Supreme Court.
N. H. — New Hampshire Superior Court.
N. R. — New Reports by Bosanquet and Puller.
N. S. Reps.— Nova Scotia Reports, 1802 to date.
N. & M.— Neville & Manning's Reports, K. B., 1882-1836.
N. W. Rep.— North Western Reporter (N. S.), 1879-1886.
N. Y. — New York Court of Appeals.
N. Y. Supr. Ct.— New York Supreme Court Reports.
New Eng. Rep. — New England Reporter.
0.
Ohio — Ohio Supreme Court Reports.
O. R. — Ontario Reports, 1882 to date.
O. S.-Old Series of King's and Q.B. Reports, Upper Canada, 1831-1844.
P.
(1891) P.— Probate Division Law Reports, England, 1891.
Pa. — Pennsylvania Supreme Court Reports.
P. D.— Probate Division Law Reports, England, 1875-1890.
Peake.— Peake's Reports, Nisi Priut, 1790-1812.
Penn. — Pennington's New Jersey Supreme Court.
Peters.— Peters' United States Supreme Court, 1827-1842.
Pick. — Pickering's Massachusetts, Supreme Court Reports.
P. R. — Practice Reports, Ontario, 1850 to date.
Porter. — Alabama Supreme Court Reports.
Price. — Price's Exchequer Reports, 1814-1824.
P. Wm's.— Peere Williams' Reports, 1695-1735.
I, 1825.
ry, 1840-1851.
als, 1851 1865,
$1-1834.
830.
3erie3, 1832-H73.
Q, B.—Adolphus & Ellis, Queen's Bench Reports.'New Series, 1841 1852.
(1891) 1 Q. B.— Queen's Bench Law Reports, England, 1891, etc.
Q. B. D.— Queen's Bench Division, Law Reports, England, 1876-1890.
Q. B. Div. Ct.— Queen's Bench Divisional Court.
B.
R. & J.— Robinson & Joseph's Digest (Ontario).
Rep.— Coke's Reports, 14 Eliz. to 13 James I.
Roscoe's Crim. Evi.— Rosooe's Criminal Evidence, 11th Ed.
Rose.- Rose's Bankruptcy Reports, 1810-1816.
R. R.— Revised Reports, 1785-1850 (current).
R. S. C— Revised Statutes of Canada, 1886.
R. 8. O.— Revised Statutes of Ontario, 1887.
Russell —Russell on Arbitration, 7th Ed.
Ry. & M.— Ryan <fr Moody, Nisi Prius, 1823-1826.
Ix
ABBREVIATIONS.
s
Salk.— Salkeld's Reports, Q.B., 1689-1712.
Sayer,— Sayer's lieports, K.13., 1751-1756.
S.C. — Same Case.
S.C.R. — Supreme Court Reports, Canada, 1875 to date.
Scott. — Scott's Reports, Common Pleas, 1834-1840.
Sc. N. R.— Scott's New Reports, C. P., 1840-1845.
Selwyn'sN. P.— Sewlyn's Nisi Prius.
Shortt. — Shortt on Mandamus.
Sim — Simon's Reports, Chancery, 1826-1850.
SirT.Raymond.— Sir Thomas Raymond's Repott,1661-1684.
Smiths L. C. — Smith's Leadin^^ Cases, 9th Ed.
Sol. J. — Solicitor's Journal, 1857 to date.
S. P. — Same point.
S. & R. — Serjeant and Rawle's Pennsylvania Supreme Court Reports.
S. & S. — Simon's and Stuart's Reports, Chancery, 1822-1826.
Stark.— Starkie, Nisi Prius, 1815-1822.
Step. Com. — Stephen's Commentaries.
Stephen's Dig. Ev. — Stephen's Dij^est of Evidence, 2nd Ed.
Str. or Strange.— Strai.ge's Reports, K. B., 17161747.
Stroud. — Stroud's Judicial Dictionary.
Sw. & Tr. — Swabey »& Tristaiij's Reports, Probate and Divorce.
T •
Taunt.— Taunton, C. P., 1808-1819.
Tay. R.— Taylor's Reports, Upper Canada, 1824-1828.
Taylor on Evid. — Taylor on Evidence, 8th Ed.
Texas. — Texas Supreme Court Reports.
T. L. R.— Times Law Reports, 1884 to date.
T. R.— Term Reports (Durnford & East), K. B., 1785-1800.
T. T.— Trinity Term.
Tyr.—Tyrwhitt'a Reports, Exchequer, 1830-1835.
U.
U. C. L. J. — TTpper Canada Law Journal (Old Series), 1855-1864.
U. C. R. — Queen's Bench Reports, Upper Canada, 1844-1881.
r. S. or U. S. Sup. Ct,— United States Supreme Court Reports, 1790
to date.
V.
Vern. — Vernon's Report's, Chancery, 1681-1720.
Ves. — Vesey's (Sen.), Reports, Chancery, 1746-1755.
Ves., Jr. or Jun. — Vessey's (Junior) Reports, Chancery, 1789-1816.
Vt. — Vermont Supreme Court Reports.
w.
Wallace— Wallace's (U.S.) Supreme Court Reiwrts, 1863-1874.
W. Bl.— William Blackstone, K.B., 1746-1780.
West. L. T. — Western Law Times.
Whar. — Wharton's Reports, Pennsylvania Supreme Court.
Wharton. — Wharton's Law Lexicon.
ABBREVIATIONS.
Ixi
1874.
•t.
Wheat.— Wheaton. United States Supreme Court, 1827-1842.
Willes.— WillcB's Reports, K. B. and C. P., 173Z-1758.
Wils.— Wilson's Reports, K. B., 1742-1774.
Wilson's Jud. Acts.— Wilson's Practice of the Supreme Court of Judi-
cature, 7th Ed.
Wis. — Wisconsin Supreme Court Reports.
W's Saund. — Saunder's Reports (Notes by Williams).
W. N.— Weekley Notes, England, 1865 to date.
W. R.— Weekley Reporter, in all the Courts, 1853 to date,
W. Va. — West Virgipia Supreme Court of Appeals.
4.
Y.
Reports.
:ce.
;5-1864.
181.
Reports, 17!)0
89-1816.
Y. & C— Younge and CoUyer, Exchequer Reports, 1834-1842.
ADDENDA ET CORRIGENDA.
Page 12, line 15, for section 14, read section 8.
Page 22, at foot of page add reference to Re Louis. Ex parte, Incorpor-
ated Law Society, (1891), 1 Q. B. (>41, held, that a person does not act as
a solicitor by merely settling an affidavit for a person in his employ, and
Apothecaries Co. v. Jones, (1893), 1 Q. B. 89, where it was held that the
words " act or practise " were directed against an habitnal or continuous
course of conduct.
Page 29, line 12, for " legal fees," read " illegal fees,"
Page 34, line 18, for section 37, read section 35.
Page 34, line 26, for section 37, read section 35.
Page 47, note to section 56 (a). 3 per cent, would be allowable under
the tariff to the bailiff in case of settlement, but nothing on an assign-
ment: Re Ludmore, 13 Q. B. D. 417. A sheriff is in a better position
under C. R. 1233 : Smith v. Antipitzky, 10 C. L. T. 368.
Page 65, line 25, add see Aldrich v. Aldrich, 13 G. L. T. 146, where it
was held the Division Courts have jurisdiction upon a final judgment of
the High Court, and may entertain a suit for 9100 in respect of costs of
an alimony suit, the plaintiff expressly abandoning the excess of the
taxed costs.
Page 56, line 4 from bottom, Re Thompson v. Hay, is reported at 22
O. B. 583, and has since been affirmed in appeal.
Page 57, line 32, for " in," read " on."
Page 59, line 39, Re Trimble v. Miller, is reported at 22 O. B. 500.
Page 65, line 14 from bottom, add Knight v. Lee (1893), 1 Q. B. 41.
Page 69, lino 36, for " proper," read *' paper."
Page 69, line 10 from bottom, in an action for taxes no question of pro-
hibition can arise unless the defendant cannot be held liable without
trying the question of title: Re Municipality of South Norfolk v. Warren,
12 C. L. T. 612.
Page 70, line 19, add Talbot v. Poole, 15 P. R. 99.
Page 71, line 7, in Talbot v. Poole, 15 P. R. 99, the Court of Appeal
held that what is meant by custom is some legal custom by which the
right or title to properly is acquired or on which it depends.
Page 72, line 6 from bottom, for "Divisional," read "Division."
Page 75, line 16. The Division Court has no jurisdiction in an action
for rent dependent upon the enforcement of an executory agreement for a
lease, as the equitable doctrine, that a person who enters under an execu-
tory agreement for a lease is to be treated as in under the terms of the
agreement, can only be applied where the court in which the action is
ADDENDA ET CORRIGENDA.
1 ' • •
1X111
)A.
arte, Incorpor-
koes not act as
ia employ, and
held that the
or continuous
illowable under
3, on an assign-
setter position
r. 146, where it
al judgment of
pect of costs of
9 excess of the
I reported at 22
12 O. R. 500.
I), 1 Q. B. 41.
question of pro-
. liable without
ffolk V. Warren,
Jourt of Appeal
m by which the
ids.
Division."
ion in an action
agreement for a
under an execu-
he terms of the
sh the action ia
brouKht has concurrent jurisdiction in law and equity : Foster v. Reeves,
(1892), 2 Q. B. 2)5.
Page 75, line 3G. add Malcolm v. Leys, 15 P. R. 75.
Page 76, line 47, in reference to Trimble v. Miller, for "entitled,"
read " enured."
Page 77, line 36, for "42 L. J. U. C," read " 42 L. J. M. C."
Page 87, line 27, add. Kennin v. McDonald, 22 O. R. 484.
Page 91, line 11, add see Foster v. Reeves, (1892), 2 Q. B. 255.
Page 94, line 9, from bottom, after Trust and Loan Co. v. Gorsline, ad(^ ,
" In Holmes v. Millage. 9 T. L. R. 217, a receiver was appointed oi
unearned salary of the Paris correspondent of tlie London Daily Chron-
icle, but this has been reversed on appeal: 9 T. L. R. 331, W. N.
(1893) 43
Page 97, line 20, add, see Roberts v. Booth, (1893), 1 Ch. 52.
Page 98. line 32, for "Town of Dunnas " read "Town of Dundas.''
Page 110, line 29, after "them," add, Pattison v. Mills, and after
" 342," add, at page 363.
Page 113, line 40, for " Coleridge, C.J.," read " Coleridge, J."
Page 113, line 45, for " where " read " when."
Page 121, lines 31 and 44, Thompson v. Hay is reported at 22 U. R. 583.
Page 121, line 40, add, see 22 O. R. 586 (n.).
Page 122, line 6, Thompson v. Hay is reported at 22 O. R. 583.
Page 136, line 22, for "L. J. N." read "N. J. L."— New Jersey Supreme
Court.
Page 155, line 35, see Bradley v. Chamberlyn, 9 T. L. R. 201; (1893), 1
Q. B. 439.
Page 155, line 36, for " had," read "has."
Page 157, line 22, for " Nelson v. Thomer," read " Nelson v. Thorner."
Page 157, line 35, for " no," read " not."
Page 159, line 25, add reference to Ford v. Harvey, 9 T. L. R. 328,
where leave to defend was given unconditionally though a doubtful
counter claim the only defence.
Page 159, line 34, add reference to Bowes v. Caustic Soda Syndicate,
9 T. L. R. 328, where leave to defend given unconditionally though
defence was merely the proper construction of an agreement to pay.
Page 159, line 42, for " 305," read " 304."
Page 159, line 54, after Girvin v. Grepe, add " In Rotherham v. Priest,
49 L. J. C. P. 104, an affidavit in reply was allowed.
Page 161, line 19, for "issuing," read " borrowing."
Page 161, line .SO, but a motion may be made after amendment : Pax-
ton V. Baird, (1893), 1 Q. B. 139 ; Bradley v. Chamberlyn, 9 T. L. R. 201 ;
(1893), 1 Q. B. 439.
Page 170, line 3 from bottom, add R. v. Marylebone C. C. 34 Sol. J. 459.
Page 171, line 13 from bottom, for " Huson," read "V. Hudon."
Page 177, line 22, after Archer v. English, add Hennell v. Daviea
(1893), 1 Q. B. 367.
Page 191, line 2, for " Re Freshton," read " Re Freston."
Page 191, line 13, for "Howick," read " Hornick."
Page 191, line 14, for " Harding v. ivraust," read " Harding v. Knust,"
15 P. R. 80.
Ixiv
aude:
L'V COUUKJENDA.
Pago 191, line Ifi, for " by the evidence," •' by other evidence."
Paf^e 1!)1, lino li), for " version,'" read "occasion."
Paf«e 200, line 2 from bottom, for "judiciously" read "judicially."
Pii«u '2)9, lino 17, add " unless sworn out of the province, when they
may be sworn before any of the persona enumerated in R. S. O. c. 61,
8. 34."
Pago 208, line 7 from bottom, Forbes v. Michigan Central Ry. Co. is
reported in 22 O. R. TjCS. lie Wilson v. Hutton is noted in 13 C. L. T.
43, and reported 23 O. R.
Page 208, lino 6 from bottom. Be Wilson v. Hutton is noted 13 C.
L. T, 43.
Page 221, line 39 for "Angel v. Braddeley" read " Angell v. Bad-
deley."
Page 239, line 21, for " presented" read " prescribed."
Page 219, line 9 from bottom, for "direction" read " discretion ''
Pago 255, line 2, after "siyjra" add R. v. Marylebone, C. C. 34 Sol.
J. 459.
Pago 2G1, at foot. Be Hanna v. Coulson, 4th May, 1893, it was
expressly held that a garnishee was examinable on judgment summons.
Page 268, line 25, read " Formerly the wages of, etc."
Page 279, line 13, Re Perras v. Keefer, is reported 22 O. R. 672.
Page 282, line 10, Gould v. Hope was reversed on appeal, 13 C. L. T.
134.
Page 289, line 2, add, " but in Parke v. Willcock, Feb. 16th, 1893, it
was held that a confession of judgment in a Division Court came within
the express terms of R. S. O. c. 124.
Pago 299, lino 18, for " Williamson" read " Wilkinson'
Page 303, note to section 212 (h). The fees would not ir lude i .1-
age : Be Ludmore, 13 Q. B. D. 417.
Page 314, line 38, add " a sale of the equity r
tion only of the goods mortgaged is void : Goold v.
Page 315, line 3, Gould v. Hope, was reversed
134.
Page 373, at foot of page, add " In Clarke v.
390, it was held that seizing exempted goods was misconduct entitling the
debtor to recover damages from the bailiff under this section.
Page 384, at foot of page for " Cherrier" read " Obernier."
Page 385, line 7 " Mason v. Kensington Vestry" road " Madden v. Ken-
sington Vestry."
Page 393, line 8 from bottom, add " but see Wood v. Leetham, 61 L. J.
Q. B. 215, where it is said the practice of the High Court of Justice is to
be followed where not inconsistent.
ption in a po*-
,iCh. Chamb. '.
ippeal, 13 C. L. T.
Moore, 'j . L. T. Jour.
THE DIVISION COURTS ACT
OF THE PROVINCE OF ONTARIO,
BROUOHT INTO FORCE ON THE SlsT DAY OF DECRMnER, 1887,
And Amenihiients thereto.
CHAPTER 51.
An Act respecting the Division Courts.
[31st December, 1887.]
TTER MAJESTY, by and with the advice and consent ^^J^"^
-^-*- of the Legislative Assembly of the Province of
Ontario, enacts as follows :
1. This Act may be cited as " The Division Courts short title.
Act" R. S. O. 1877, c. 47, s. 1.
The Division Courts Act.— By the Statute of 4 and 5 Vic. c. 53,
what was then known and used as a means of collecting small debts, the
Court of Requests, was abolished, and was supplanted by what has
since been known as the Division Court.
2. In the construction of this Act, " County " shall J^\*fJP""
include two or more counties united for judicial purposes ; "County."
and in any form or proceeding the words " United Coun-
ties " shall be introduced where necessary. R. S. 0. 1877,
c. 47, 8. 2.
D.O.A.— 1
UiW
2 LIMITS AND NUMBER OF COURTS.
Sections This is in effect a repetition of s. 8, c-s. 12, R. S. 0. 1887, (" Inter-
2-6 pretation Act ").
" County " means a portion of territory set apart for municipal not
electoral purposes : R. v. Shavelear, 11 O. R. 727.
THE COURTS.
Courts con-
tinued.
S. The Division Courts, and the limits and extent
tliereof existing at tl o time this Act takes effect, sliall
continue until altered by law. R. 8. O. 1877, c. 47, s. 3.
This Act came into iorze on Slst Doc, 1887, by proclamation under
the provisions of " An Act respecting the Revised Statutes of Ontario,
1887," 50 Vic. c. 2.
As to the alteration of the limits of Division Courts in any county or
union of counties, see sections 13, 14, 15 of this Act.
Number of 4_ There shal^ not be less than three or mort than
Courts in
dtiM*and ^'^elve Division Courts in each county, of which Division
towns. Courts there shall be at least one in each city and county
town. R S. O. 1877, c. 47, s. 4.
In each county. — Or union of counties, as the case may be. Sliould
there be a city in any county, other th i that in which the Court house
is situated and the Assizes are held (The Mun. Act, s. 2, s-s, 0), a court
would necessarily have to be established there. The word "city" here
mif^ht be considered as equivalent to " County Town," but it is submitted
that its meaning should not be so restricted. There must be not less
than three Division Courts in any county. There cannot possibly be more
than twelve even under section 14. Whatever the number may be there
must be one in each city and one in each county town.
Designa-
tion cf
Court.
Each Court
to have a
seal.
Si. The Court in each division shall be called " The
First Division Court in the County of ," (of
as the case may he). R. S. O. 1877, c. 47, s. 5.
As the case may be. — Usually numbered consecutively, commenc-
ing with that in the County Town as Number One : 7 U. C. L. J., 147.
6. Every Division Court shall have a seal with which
all process of the Court shall be sealed or stamped, and
such seal shall be paid for out of the Consolidated Revenue
Fund. R. S. O. 1877, c. 47, s. 6.
A Seal. — " The ommon law intended by a seal, an impression
upon wax or paper or some other tenacious substance capable of beinj,'
impressed," per Kent, C. 4, Coram. 9th Ed., 452.
•' Neither wax, paper nor other adhesive substance is now required,"
Re Bell & Black, 1 O. R. 125, 126.
" There must, I take it, still be something! affixed to or impressed
upon the document denoting that it is intended as a seal," per Spragge,
V.C., Hamilton v. Dennis, 12 Gr. 328 ; He Croome & Brantford, G O. K..
NOT COURTS OF RECORD.
188. See also Foster v. Geddes, 14 U. C. R. 239 ; lie Sandilands, L. B, Sections
6, C. P. 411 ; National Prov. Bank of England v. Jackson, 33 Ch. D. 1; 6-7
McLean v. Bradley, 2 S. C. R. 535 ; Clarke v. Union F. Ins. Co., Caston's
Case, 10 P. R. 339 ; The Canada Central Railway Co. v. Murray, 8 8. C. R. ,
313. The above authorities have also reference to corporations : Pillow
V. Roberts, 13 Howard, 472. The seal of a court with the words,
" Sealed with the seal of the Court," proves itself, and will be taken
judicial notice of : Doe d. Duncan v. Edwards, 9 A. & E. 554.
The fceals usually adopted by Division Court clerks, by which an im-
pression is madiB on the process issued from their courts, shewing the
number of the court and county in which. it is, without any wax or
other foreign substance, are no doubt valid and within this clause of the
statute: Ont. Salt Co. v. Merchants Salt Co., 18 Gr. 551.
Process. — " Process " means in the interpretation of the Rules of
Court, " any summons, writ or warrant issued under the seal of the
court or Judge's summons or order," Rule 2. But in this section it
c;i'.inot properly be applied to Judge's summons or orders. That which
may be done without the aid of the court is not a " Process :" Stroud,
618.
Sealed or Stamped. — Without a seal the process would be irregu-
lar and liable to set aside {see Smith v. Russell, 1 Cham. R. 193), unless
an amendment were allowed, which should be done as a matter of course ;
the mistake being a misprision of the clerk : Cheese v. Scales, 10 M. &
W. 488 ; see also Rule 118.
Consolidated Revenue Fund. — Applications for seals should be made
to the Inspector of Division Courts, by whom accounts are certified and
sent to the Provincial Treasury for payment.
7. The Division Courts shall not be held to constitute Not to be
Courts of Record, but the judgments in the said Courts ^'**'"''^-
shall liave the same force ii'id eti'ect as judgments of Courts
of Record. R. S. O. 1877, c. 47, s. 7.
Courts of Record. — Courts of Record are defined to be those "where
the judicial acts and proceedings are enrolled for a perpetual memorial
and testimony ; which rolls are called records of the court, and are
of such high and super-eminent authority that tlieir truth is not to be
called in question :" Wharton, 020.
Effect of Judgment.
Res Judicata. — Every judgment is conclusive proof as against parties
and privies of facts directly in issue in the case actually decided by the
court and appearing from the judgment itself to be the ground on which
it was based, unless evidence was admitted in the action in which the
judgment was delivered, which is excluded in the action in which that
judgment is intended to be proved : Stephen's Dig. Ev. Art. 41. All that
was essential to the deciaiou may be taken to be conclusively determined :
Concha v. Concha, 11 App. Cas. 541. A judgment in a Division Court
is a bar to an action on the same subject matter in any other court :
Austin V. Mills, 9 Ex. 288, but the causes of action must be the same as
if a judgment be recovered for personal injuries, it is no bar to an action
for injury to property, real or personal, arising out of the same act:
Brunsden v. Humphrey, 14 Q. B. D. 141.
A judgment against one of two or more debtors or joint contractors is,
though unsatisfied, a bar to any action brought against others upon the
joint contract or for the joint debt : King v. Hoare, 13 M. & W. 494 ;
EFFECT OF JUDGMENT.
Section Kendall v. Hamilton, 4 App. Cas. 504; Cambeport v. Chapman, 19
7 Q, B. D. 229 ; Hammond v. Schotield, (1891) 1 Q. B. 453, and this is so
even though one of the contractors is a married woman liable only in
respect of her separate estate : Hoare v. Niblett, (1891) 1 Q. B. 781 ; and
a judgment against an agent would be a bar to an action against the
principal in respect to the same debt: Scarf v. Jardine, 7 App. Cas. 345 ;
Cui*tis V. Williamson, L. R. 10, Q. B. 57, and in such a case the court
will not allow the plaintiff to vacate his judgment : Toronto Dental Mfg.
Co. V. McLaren, 14 P. R. 89.
But if a judgment be given for the defendant in whole or in part, the
Tight to succeed in a new action depends upon the course of the former
fiction. If that action should have been discontinued or dismissed for
want of prosecution, it would form no bar : Roberts v. Lucas, 11 P. R. 3.
If the plaintiff offered no evidence on the prior action on a particular
part of his claim, then a new action may be brought for such part ; but
if he does offer evidence and fails, he is prevented from bringing a fresli
action : Stafford v. Clark, 2 Bing. 377 ; Hadley v. Green, 2 Cromp. & J. 376.
If the action sliould have failed because prematurely brought, or for want
of privity, it would form no bar to recovery in the second action : Chis-
holm V. Morse, 11 C. P. 589 ; Heming v. Wilton. 5 C. & P. 54; Palmer
V. Temple, 9 A. & E. 508 ; Re Donovan. Wilson v. Beatty, 29 Gr. 280;
but, subject to exceptions, the general rule is, that where the cause of
action is the same and the plaintiff has an opportunity in the former
suit of recovering that which he seeks to recover in the second, the
former recovery is a bar to the latter action : Nelson v. Couch, 15 C. B.
N. S. 108; Davidson v. Belleville & North Hastings Ry. Co., 5 A. K.
315.
A defendant against whom a judgment is recovered is estopped from
•denying the indebtedness found to be due by the judgment: Boileau v.
Rutlin, 2 Ex. 665. The defendant must take every defence open to him
in the action, and if he omits to do so before judgment, he cannot do so
afterwards : Howlett v. Tarte, 10 C. B. N. S. 813 ; Cochrane v. Hamilton
Prov. & Loan Socy., 15 O. R. 128 ; and if money be paid under compul-
sion of legal process, it cannot be recovered back : Marriott v. Hampton,
.3 Smith's L. C. 1686 ; 4 R. R. 439, even by showing that a sum had been
paid for which no credit was given : Sorenson v. Smart, 5 O. R. 678.
But if the judgment has been obtained by an untrue statement of
facts : i.e. by fraud, it is not a valid judgment: Magurn v. Magurn, 11
A. R. 178; gee 6 C. L. T. 157, " Fraudulent and Collusive Judgments."
Interest. — A judgment of a Court of Record bears interest, R. S. O.
c. 44, s. 88 ; and, therefore, a judgment of a Division Court, under this
section, also bears interest. The decision in R. v. Cy. Ct., Judge of
Essex, 18 Q. B. D. 704, deciding that County Court judgments in Eng-
land do not bear interest, is, therefore, inapplicable in this Province.
Action. — A judgment creates a specialty debt, and is enforceable by
action : Hodsoll v. Baxter, E. B. & E. 884 ; and a judgment of a higher
•Court may be enforced by action in the Division Court : Eberts v. Brooke,
11 P. R. 296. Actions on judgments are not to be favored as there is
another remedy for enforcing them : Biddleson v. Whitel, 1 W. Bl. 507;
and costs will not be allowed : Philpott v. Lehain, 35 L. T. N. 3. 855 ;
-unless other and distinct causes of action are added : Jackson v.
Everett, 1 B. & S. 857.
Limitation. — An action is not maintainable upon a judgment over
twenty years old without a payment or acknowledgment in the mean-
time : R. S. O. c. 60. SB. 1 and 8 ; Chard v. Rae, 18 0. R. 371 ; but the
rights of the plaintiff are not barred until twenty years have elapsed:
Allan v. McTavish 2 A. R. 278; Boice v. O'Loane, 3 A. R. 167; and
TIME A\J) PLACE OF HOLDING.
a revivor gives a new starting point to the statute : McCullough v. Sykes, Sectiona
11 P. R. 337. 7-8
If execution is issued on the judgment within eix years, there is no '
necessity of revival within twenty years : Jenkins v. Kerby, 2 L. J. N. S.
164 ; but if no execution be issued within such period, an application to
the Judge is necessary for leave, unless a payment has been made within
twelve months before issue of execution : xee Rule 15(5. Such leave will
not be given, unless the application be made within twenty years:
McMahon v. Spencer, 13 A. R. 430 ; even though an execution may in
the meantime have been issued thereon : Price v. Wade, 14 P. R. 351.
Upon a foreign judgment an action must be brought within six years:
North v. Fisher, 6 O. R. 20(5.
It was held, in Berkeley v. Elderkin, 1 E. & B. 805, and Austin v.
Mills, 9 Ex. 288, th^t no action was maintainable in a Superior Court on
an English County Court judgment. The authority of these cases was
recognized by the English Court of Appeal in Bailey v. Bailey, 13 Q. B.
D. 855 ; R. v. Cy. Ct. Judge of Essex, 18 Q. B. D. 706. They were fol-
lowed in McPherson v. Forrester, 11 U. C. R. 362, and Donnelly v.
Stewart, 25 U. C. R. 398, where our Court of Queen's Bench held tliatno
action would lie in any Superior or County Court on a Division Court
judgment. The last case was decided in 1866. At that time the section
simply enacted that Division Courts should not be held to constitute
Courts of Record : C. S. U. C. c. 19, s. 5 ; but the concluding words of
the section were introduced in 1869. If the same point were again to come
up for decision the result might, therefore, very well be different.
It seems clear that a Division Court is not a Court of Record not-
withstanding Corsant qui tain v. Taylor, 10 L. J. N. S. 320; see Farr v.
Robins, 12 C. P. 35. A judgment may be recalled and a term imposed
or a cluinge made at any time before a judgment found is entered : Cana-
dian Land & Emigration Co. v. Dysart, 9 O. R. 495, 512 ; but after the
Judge has entered a judgment, he cannot alter same, except by consent
or on an application for or after a new trial ; Irving v. Askew, L. R. 5
Q. B. 208.
8. A court shall bo liolden in each division once in Time and
1)1 ace of
every two months, or oftener in tlie discretion of theJio'^^iuR
. _ Courts-
senior or the acting County Judge ; and the Judge may
a})point and from time to time alter the times and places
within such divisions, when and at which such courts
shall be holden. R. S. O. 1877, c. 47, s. 8.
Each division. — Except in cities where there are two Division
Courts, the sittings of the court and the clerk's office must be icithin
the division.
Every two months. — A substantial compliance with this section
would be the holding of a sitting in each division six times during the.
year, as nearly as possible at regular intervals. See section 12, ;>o«f.
Discretion means "according to the rules of reason and justice,,
not private opinion " : Lee v. Bude Ry. Co., L. R. 6 C. P. 576 ; Rooke's
Case, 5 Rep. 10 J (a) ; "not capriciously, but on judicial grounds and for
substantial reasons" : per Jesse), M.R , re Taylor, 4 Ch. D. 160 ; Stroud,
216. See also notes to section 175, j;o«t, " opinion of the Judge."
The Judge cannot be compelled by viundavim to exercise his discretion
to permit an amendment : In re White v. Galbraith, 8 C. L. T. 309.
If
: k
'i-
6
COURTS IN CITIES.
Sections
8-9
HoldinR
Courts ill
cities.
In cities and towns there are usually required more than six sittings
a year, and any additional number which the business may render
■ necessary is left to the discretion of the Judge.
Within such divisions. — See note on " each division," supra. It
may be found necessary for the Judge to alter the time and place of
liolding a court. The place of holding the court should be changed as
seldom as possible, as questions of jurisdiction may frequently arise
which have to be determined by reference to the place of sitting. Sec
section 82.
" In determining, then, where the sittings of the court are to be held,
it becomes necessary to ascertain what building accommodation can be
secured for the decent and orderly conduct of business, If a town or
township council chamber, school house, or other public building in a
division, will be placed at the disposal of the officers of the court on
court days, lighted and warmed as occasion requires, it should be chosen.
The appointment of two places in a division for holding the court alter-
nately seems warranted by the very broad language used in section (5 (now
section 8). And although such an arrangement tends to produce errors
and confusion in the business, cases may occur where the public
convenience can possibly be served by shifting the places of sitting from
one place to anotlier and back again. It will be seen from the foregoing
consideration that no general rule can be proposed as to the place where
the sittings of a court should be held in a division ; the question as it
arises in each case must be settled with reference to the particular cir-
cumstances involved" : 7 U. C. L. J. 312.
Toronto. — By 54 Vic. c. 15, s. 3, it is provided : —
3. There shall be in each of the courts of the two divisions of the City
of Toronto, known as the First and Tenth Division Courts of the County
of York, at least weekly sittings, except during the month of August, for
the trial of causes ; and in each of the said two Division Courts at least
n.onthly sittings for the hearing of judgment summonses ; and also
sittings at least every two months for the trial of cases where juries have
been demanded. The Judges or any two of them, of whom the senior
judge shall be one, may appoint additional sittings for any of the above
purposes ; and the Lieutenant-Governor in Council also shall have
authority to appoint other sittings for any of the said purposes.
O. Notwithstanding anything contained in this Act, or
any of the general rules in force in the Division Courts of
this Province, in any city in which two Division Courts
are established or held, all or any of tlie sittings of both
of such Courts may be appointed and held in any of such
<livisions, and both clerks of such Courts may, with the
approval of the Lieutenant-Governor in Council, have and
keep their offices in the same division in such city. 43 V.
c. S, s. 41.
The Municipality ! See sec. 8. — In cities where two courts are estab-
lished, the court house was found to be the most convenient place
in which to hold division as well as other courts. This clause, there-
fore, allows both courts to he held in one place, but it is not compulsory.
The clerks may also, with the approval of the Lieutenant Ciovernor in
Council, have their offices in the same divis'ijii. The sittings of such
ACCOMMODATION,
•courts may be held in either division. Should the sittings of any
other court at the court house interfere with the holding of the Divi-
sion Court there, it could be held at any place either in that or the
other division, as might be found most convenient.
lO. (1) The municipality in which a Division Court
is held shall furnish a court room and other necessary
acconnnodation for holding said Court, not in connection
with an hotel.
(2) In case a proper court room, and other necessary
accommodation for the holding of the Division Court are
not furnished by the municipality in which the Court is
lield, the Judge may hold the Court in any suitable place
in the division, or in any other division of the County in
which suitable acconnnodation is provided ; and the owner,
lessee or tenant of the building in which the Court is so
held, shall be entitled to receive from the municipality
wliose duty it was to provide proper accommodation for
the Court, the sum of ?5 for every day on which the Court
is held in the building. R. S. O. 1877, c. 47, s. 0.
(3) Where a municipality, not being a town or city,
furnishes a court room and other necessary accommodation
for a Division Court as aforesaid, or pays any owner, lessee
or tenant for the use of any building, it shall be entitled to
recover from any other municipality, wholly or partly,
within the division for which such Court is held, such
reasonable share of the cost of providing acconnnodation
for holding the Court as shall in that behalf be decided
and ordered by the Judge of the said Court, to be paid
and contributed by the latter municipality ; and in every
such case the total cost of providing such acconnnodation
for holding the Court shall be deemed to be $5 for every
day on whicli the Court is held. 48 V. c. 14, s. 12.
The Municipality.— See " The Municipal Act," R. S. O. c. 184, s 7.
Necessary accommodation. — What is " necessary accommodation "
cannot be particularly declined, for in a city better accommodation would
be expected than in a thinly-settled part of the country ; but it might in
general terms be said that proper and becoming provision for tlie comfort
and convenience of those attending court, winch, under the particular
circumstances of a municipality, its council would be expected to pro-
vide for that purpose. It includes heating and lighting and suitable
Sections
9-10
Division
Courts
accom-
luodation.
If there be
no proper
Courtroom
etc., the
Judge may
liold Court
in auy suit-
able place.
Expenses
for rent.
Judge to
apportion
cost in
certain
cases.
I
Pif
8
ACCOMMODATION.
Section accommodation for seating the officers of the court, professional gentle-
10 men, litigants and others attending court.
An hotel. — The propriety of this provision is evident. Probably a
Judge would feel warranted in holding that not only does the section
prohibit the holding of courts at licensed houses, but at all taverns,
inns, or houses of public entertainment.
In which the Court is held. — Where one division comprises more
than one municipality there was originally no provision for making any
other than that in " which the court is held ' contribute a share of the
expenses. But this omission has been supplied by sub-section 3, which
now makes provision for such a case.
Accommodation is provided.— This is an exception to the rule
requiring courts to be held within their division, according to section 8.
Sub-section 3 provides for payment by each municipality, wholly or partly
within the division for which the court is held, of its share of the cost of
providing accommodation for holding the court, but it does not apply
when the court is held tcUhout the division. Without this provision, the
only course to compel a delinquent municipality to fulfil its duty in this
respect would be by mandamus : Dark v. Municipal Council of Huron and
Bruce, 7 C. P. 378. Where a statute compelled a municipality to afford
suitable accommodation to a County Attorney and Clerk of the Peace, it
was held that an action was maintainable for the expenses he incurred in
consequence of the default of the Municipal Council : Lees v. The Cor-
poration of the County of Carleton, 33 U. C. R. 409.
$5 for every day. — The right being statutory no more than this
sum could, under any circumstances, be recoverable: 33 U. C. R. p. 41!).
Day on which the Court is held.— .SVe notes to sub-section 2, supra.
Sub-section 3. — Provision is here made by which each municipality
forming part of a division may be compelled to bear a fair and proper
share of the expense of furnishing the requisite accommodation for
holding the sittings of the court in the division. The section does not
apply to city or town municipalities. Before the municipality seeking
contribution under the statute for money disbursed by it, from the other
or others, the expenses should be first paid. Anything short of that
would not give the right of action. The payment, too, must be made to
the owner, lessee, or tenant of the building in which the court is held.
What a " reasonable share" of the cost of providing the accommoda-
tion is, must depend on circumstances. The Judge of the court is to
determine this, and to make his order accordingly. It could not be done
ex parte. The municipality which is called upon to contribute would
have the right to be heard, and to show cause why it should not pay the
claim preferred : see notes to sections 133, 141, 147, and 183. Refe-ence
may also be made to Willis v. Gripps, 5 Moo. P. C. 379 ; R. v. Cheshire
Lines Committee, L. R. 8 Q. B. 344 ; Wood v. Woad, L. R. 9 Ex. 170 ;
R. V. Collins, 2 Q. B. D. p. 36 ; Fisher v. Keane, 11 Ch. D. 353; Ex p.
Tucker. In re 'J ucker, 12 Ch. D. 308; R. v. College of Physicians and
Surgeons, 44 U. C. R. 140 ; Tunbridge Wells Local Board v. Akroyd, 5
Ex. D. pp. 201, 204, 211; Briggs v. Briggs, o P. D. 163; R. v. Law,
27 U. C. It. 200.
The outside limit which all of the municipalities would be called
upon to pay as the total cost is $5 per day, but part of a day would count
as one, no provision being made for a fractional part of a day. The sum
which each would have to pay would be small, yet the proportion should,
if possible, be settled upon some principle of fair contribution. It is
submitted that the population and assessed value of the whole or parts.
of the respective municipalities within the division would be a fair basis-
on which to estimate the reasonable share of each.
USE OF COURT HOUSE.
<>
Use of
Court
House.
No particular mode of collecting the amount due by the delinquent Sections
municipality is prescribed, and in the absence of such, it would seem 10-12
that the proper proceeding would be an action in the Division Court :
Lees V. Corp. of Carleton, 33 U. C. R. 409, and authorities there cited :
Richardson v. Willis, L. R. 8 Ex. 69. The order of the Judge is not the
order of the court; he is merely persona dctshjnata : lie Pacquette, 11
P. R. 463 ; lie Young, 14 P. R. 303 ; lie Rush, 10 C. L. T. 184.
11. The sittings of the Division Court in a county
town may be held in tlie county court house, and in tlie
cases of cities and towns separated from the county, the
use of the court house for such purpose may be taken into
account in settling the proportion of the charges to be paid
by the city or town for the maintenance of the court
house. 43 V. c. 8, s. 42.
County Court House. — This section gives the riijht to the Judge to
hold the sittings of any Division Court in the county town at the
court house : Maxwell on Stats. ; R. v. Oxford (Bishop), 4 Q. B. D,
at p. 553. The right could not be held to interfere with tl e sittings of
courts of higher jurisdiction.
Maintenance of the Court House. — As to the manner of settling
such differences, see Harrison's Mun. Man., p. 342 and following pages,
12. If the Justices of the Peace for any County, in
General Sessions assembled, certify to the Lieutenant-
Governor that in any Division of the county, from the
amount of business, remoteness or inaccessibility, it is ex-
pedient that the court should not be held so often as once
in every two months, the Lieutenant-Governor in Council
may order the court to be held at such periods as to him
seems meet, and may revoke the order at pleasure, but a
court shall be held in the Division at least once in every
six months. C. S. U. C. c. 19, s. 7 ; 38 V. c. 12, s. 1.
In General Sessions assembled.— That is the sittings " commencing
on the second Tuesday in the months of June and December respectively
in each year," R. S. O, o. 48, s. 4. It must be done during the Sessions :
111 re Coleman, 23 U. C. R. (515. Three things must be established to
tlie satisfaction of the Lieutenant-Governor in Council to justify his
acting under this section : (1) The amount of business; (2) remoteness;
(3) inaccessibility of the Division Court. See notes to sec. 138 post.
" If, then, the particular locality would furnish only a few cases in the
year, or is far away from tlie business part of the county, or from want
of roads or other causes, is accessible by the ordinary modes of convey-
ai)ce only in midsummer or in sleighing time, these or any one of these
facts would form grounds for a certificate under the section, and two or
all three of them prevailing, would shew the inexpediency of holding
more than two courts in the year. To occupy the Judge's time in hold-
ing such courts, would be to provide for the possible accommodation of
The Lieu-
tonant-
Oovenior
may, in
certain
cases,
regulate
lidding, of
Courts.
W' i ■
10
ALTERATION OF NUMBER.
Sections
12-13
the few at a certain loss to the many. The power conferred on the
Justices under this section, like all powers in law, must be duly executed
~ at the time, and in the manner, and to the extent prescribed by the
statute, and Maj^istrates have no authority out of the Act in respect of
tiie Division Courts. So tliat if the power be not duly followed up in
any act or order of Session, it would be without authority, and so void:"
7 U. C. L. J. 177-178.
I St. (1) The County Judge, tlie sherifT, the warden of
the County, and the Division Court inspector may, subject
to the restrictions in this Act contained, appoint, and from
time to time alter, the number, limits and extent of every
division, and shall number the divisions, beginning at num-
ber one, but no resolution or order made under the pro-
visions of this section shall be altered (^r rescinded, unless
public notice of the intention so. to alter or rescind, or that
application will be made to alter or rescind is made and
proclaimed in open Court at the next previous sittings of
the General Sessions of the Peace.
(2) The Judge shall cause the sheriff, warden and
inspector to be notified of any application, and of the time
and place at which the same will be considered. 49 V.
c. 15, s. 1.
[(3) In Provisional Judicial Districts the powers con-
ferred upon the County Judge, the sheriff, the warden of
the County and the Division Court inspector, under section
13 of The Division Courts Act, shall be exercised by tlu-
District Judge, the sheriff and the Division Court inspectoi-
for all the purposes referred to in the said section. 52 V.
c. 12, s. 3.]
Formerly any alteration in the number, limits, and extent of any
Division Court, could only be made by the Justices of the Peace for eacii
county in General Sessions assembled. The power is comniitted by this
section to those officers named in the section.
At first sight, it may seem that the tribunal here created may make
one change without the necessity of making proclamation of the inten-
tion at the next previous sittings of the General Sessions of the Peace.
It will be observed that the provisions as to notice more particularly
refers to a " resolution or order made under the provisions of this
section."
Whatever doubt ihere may be in respect to the necessity for " public
notice of the intention to alter or rescind " being given, questions should
be saved in all cases where the limits and extent of divisions are already
established, by adopting the safer course and re(iuiring it to be done ; and
there can be no doubt that the spirit of the law will be best observed by
ESTABLISHMENT OF COURTS.
11
the tribunal here constituted requiring evidence of the public notice Sections
liaving been given by proclamation, before acting under this section. 13-14
When all preliminary requirements have been observed, the Judge
Hhonld cause notices to be given to the other members of the tribunal, of
tlie time and place at which any application will be considered. Parties
making the application, and those opposing it, should be duly notified of
the time and place of hearing. See notes to s. 10, s-s. 3. It is submitted,
too, tliat in all cases there should also be public notice so that all parties
interested or affected, or that might be affected by the proposed change,
Hlioiild have an opportunity of being heard before any decision is arrived
at. Where the statute requires notice to be given of the proposed change
mentioned in tliis section, any decision in respect to the same would be
invalid in tlie absence of such notice: In re Birdsall v. The Corp. of
Asphodel, 45 U. C. R. 149 ; R. v. Court of Revieion of Cornwall, 25
U. C. n. 280; lie McGregor v. Norton, 13 P. R. 223.
The giving and proclamation of notice are conditions precedent to the
making of any resolution or order affecting the limits and extent of any
(iiv)sion : In re Meyers and Wonnacott, 23 U. C. R. (Ill ; Griffiths v. The
ISInuicipality of Grantham, 6 C. P. 274 ; Shaw v. The (!orp. of Manvers,
HI U. G. R. 288; \shcw v. Manning, 38 U. C. R. 349. The notice sliould
set out particularly the changes or alterations proposed, and tlie " limits
and extent " of each division to he affected by it : Haacke v. The Munici-
pality of Markliam, 17 U. C. R. 5()2 ; In re Simmons v. The Corp. of
Chatliani, 21 II. C. R. 7."> ; The Chief Superintendent, In re Shorey v.
Thrasher, 30 U. C. R. 504.
The notice and its proclamation should be carefully entered by the
Clerk of the Peace in a book to ho kept by him, so that in the event of
any change being made there would be a record of what was done,
also that tliere might be proper evidence of a compliance with the terms
of the statute. The order making the alteration proposed need not recite
the iiutice : In re Ness and The Mun. of Saltlieet, 13 U. C. R. 40H, but it
Avoiild be better to do so. The order should follow the notice in defining
" tlie limits and extent " of the divisions affected by it.
The decision of a majority of the members of the tribunal would be
good : R. S. O. c. 1, s. 8. s-s. 31 ; In re Ontario and Quebec, 6 L. J. N. S.
212 ; but in order to justify a decision by less than the whole number
who heard the question, there should first be an opportunity for a full
discussion and a final refusal to agree : Goodman v. Sayers, 2 .J. tt W.
249 ; Dalling v. Matcliett, VVilles, 215 ; In re Morphett, 2 D. & L. 9(57 ;
Young v. Bulman, 13 C. B. ()23; White v. Sharp, 12 M. & W. 712;
Thomas v. Harrop, 1 S. & S. 524; In re Pering v. Keymer, 3 A. & E.
245 ; In re Templeman and Reed, 9 Dowl. 9(i2 ; Hawley v. North Staf -
fordsiiire Ry. Co., 2 DeG. & S. 33; Willoughby v. Willoughby, 9
Q. B. 923.
Neither one could delegate his authority: Harrington v. Edison, 11
U. C. R. 114; Haskins v. St. Louis and S. E. Ry. Co., 109 U. S. Sup.
Ct. 10(5.
14. (i) The Judge of a County Court may, in his '^stabjish-
^ ^ ^ o </ •/ ' raent by
iliscretion, upon the petition of the Municipal Council of 5^',^?^°""^^
any township or united townships in wliich no Division l^oyrUn
Court has ah-eady been established, prayino- tliat a Division iy,^^,"t/Jiin
Court may be established in and for such township or°/jjpCoun-
united townships, establisli and liold a Division Couif '''
, ', yi
{ ■
I '
12
ox SKI'AKATION OK COUNTIES,
Sections
14-16
Court muRt
be coii-
flrnied by
Lieu-
tenant-
Governor
iu Council.
On separa-
tion of
junior
from
senior
county,
Courts to
continue
same till
altered by
Sessions.
tliei'uin, and tlio court ho cstabliHhed shall l»e miniVtered
and called the Division Court of the county
in which such town.ship or united townships is or are
situated, takin;^ the number next after the highest number
of the courts then existin*^ in such county.
(2) No business shall be transacted in such court until
after the establishment thereof has been fertitied by the
County Judf^e to the Lieutenant-Governor in Council
together with the petition praying for the same, noi' until
after an order has l)een passed by the Lieutenant-Governor
in Council approving thereof. R. S. O. 1877, c. 47, s. 12.
Discretion. — It is not compulsory upon the Judf»e, but no doubt he
would " establish " a Division Court under this section, where the public
interests require it. 'J'he " discretion " should not be capriciously exer-
cised : see notes to section 14, ante.
Township. — This is a corporate act of the Municipal Council, and
should be adopted at a regular ineetin<^, or at a special meeting duly
convened for the purpose, of which due notice should be given : U. v.
Hill, 4 B. & C. 4U, /)*-;• liayley, J., and should be properly attested by
the corporate seal : Grant on Corporations, 55.
Sub-sec. 2. — The Court as such is not complete until its executive
officers are appointed by the Lieutenant-Governor: «ee section 27, and
no business can be transacted until then.
I»5. Where a junior county separates from a senior
county, or union of counties, the Division Courts of the
united counties which were before the separation wholly
within the territorial limits of the junior county, shall con-
tinue to be Division Courts of the junior county, and all
proceedings and judgments shall be had therein, and shall
continue proceedings and judgments of the said Division
Courts respectively ; and all such Division Courts shall be
known as Division Courts of such junior county by the
same numbers respectively as they were before, until the
Judge of the County, the sheriff, the warden of the county
and the inspector of the Division Courts, appoint the
number, limits and extent of the divisions for Division
Courts within the limits of such junior county, as provided
in section 13 of this Act. R. S. O. 1877, c. 47, s. 13 ; 49 V.
c. 15, s. 2.
Senior County. — This is the county in which the court house and
gaol are situated : Municipal Act, s. 8C.
ALTERATION OF DIVISIONS.
18
Proceedings. — Taxation of costs would bo a " proceeding" under this
aection : R. v. London, C. * D. Ry. Co., L. U. 3 Q. B, 170. So would a
writ of revivor and suggestion : Caspar v. Keachie, 41 U. C. R. p. 601.
This case was overruled but not on this point : see also Holme v. Guy,
5 Ch. D. 901 ; Stroud, 010.
Judgments. — Tti6 f^ecision of the Judge, if not pronounced in court,
only becomes a "judgment" when duly entered in the procedure book by
the Clerk : Strutton v. Johnson, 7 L. C. G. 14,1 ; Holtby v. Hodgson, 24
Q. B. D. 103 ; see section 144. The proceedingt ♦ the court can only
be proved by such entries: R. v. Rowland, 1 F. & V. 72, per Bramwell, B. ;
or a certified copy under section 45, and cannot be contradicted even by
the evidence of the Judge: Dews v. Riley, 11 C. B., per Jervis, C.J., at
p. 448.
Where the entry was "struck out for want of jurisdiction, a disputed
title having been sworn to "; held, not a judgment : Tubby v. Stanhope,
5 C. B. 790.
If pronounced in Court the decision becomes a judgment /N«t((n(er;
section 144 ; Holtby v, Hodgson, 24 Q. B. D. 103.
If any member of this tribunal should omit to take the oath of office
or some necessary act or thing before entering upon his official duties, or
should the warden be subsequently declared unduly elected, or become
otherwise disqualified, yet the action of the tribunal, being of a judicial
nature, would not be illegal : The Margate Pier Co. v. Hannam, 3 B. &
Aid. 266. The law raises a presumption in favor of the regular appoint-
ment or election of an officer from his having acted in an official capacity,
and would do so in this case : R. v. Verelst, 3 Camp. 432 ; Berryman v.
Wise, 4 T. R. 366 ; Doe d. Davy v. Haddon, 3 Doug. 310 ; Marshall v.
Lamb, 5 Q. B. 115 ; Wolton v. Gavin, 16 Q. B. 48 ; Butler v. Ford, 1
Cromp. & M. 662 ; B. v. Howard, 1 M. <& Rob. 187, and other cases cited in
Taylor on Evidence, 8th ed., p. 187; Holt v. Jarvis, Dra. 190; Smith v.
Bedford, 12 Gr. 316 ; School Trustees, Tp. of Hamilton v. Neil, 28 Gr.
408; R. V. Fee, 3 0. R. 107.
Seetions
16-16
16. Where the Judfje of tlie county, the slieriff. the P» ^•te'^a-
o J > > tion of
warden of the county, and the inspector of Division Courts, j{,^j''4°"o'
alter the number, limits or extent of the Division Courts ^hlfcmirt
within such county, all proceedings and judgments had in fn^s to^be
any Division Court before the day when such alteration*'"""""®'**
takes effect shall be continued in such Division Court of
the county as the Judge directs ; and shall be considered
proceedings and judgments of such courts. R. S. 0. 1877,
c. 47, s. 14 ; 49 V. c. 15, s. 3.
Proceedings and judgments.— <S^ee notes to section 15.
As the Judge directs. — It is submitted that thd most convenient
course is to allow the proceedings and judgments to be continued in the
court in which they have been entered or recovered.
Such Court.— That is, the court in which the Judge directs the pro-
ceedings to be continued.
14
LIMITS OF DIVISIONS ON SEPARATION.
After sep-
arntiuii of
junioi'
from
Keillor
county,
orocec'il-
"w'lft" "*' ^" ^'*'^^ ^ junior county is separated from a union
; —ot counties, or the proceedings of any of the Division
Clerks and , . ' " •'
offlcersto Courts of a seuior county are transferred to anotlier
deliver ... . .
Bnoir? ''• J^i^'i^'"" Court within the county upon the order of the
ji'iT'o* Judge, the cleiks or other officers of sucii Division Courts
directs, ^y]j,, )j,,|,| j^,jy ^y^.^^^^ ^j. documents appertaining to such
courts, or the business thereof, sliali deliver up the same to
such persons as the Judge directs, and any pei'son refusing
to deliver up the same shall bt; liable to be proceeded
against in the same manner as persons wrongfully holding
papers and documents under the provisions of section 50 of
this Act. R. S. O. 1877, e. 47, s. 15.
Shall be liable to be proceeded against.— .Set? notes to section 'lO.
IH. If after the separation of a junior county from a
union of counties, the territorial limits of any of the
Division Courts of the former union are partly within tlui
Pufis'^in junior and partly within the senior county, all proceedings
certain , , ' i T^• • • r^ l l- j.i e
cases to 1)0 commenced ni such Division Courts ot the rormer union
in senior sluiU be Continued to completion in the court where the
proceedings were originally commenced, or in such other
Division Court of the senior county as the Judge thereot"
directs ; and the cleiks and other officers of the said
Division Courts of such senior county, in possession of any
writs or documents appertaining to any such Court or to
the business there f, shall deliver over the same to the
clerk of such Division Court of such county as the Judge
thereof directs. R. S. O. 1877, c. 47, s. IG.
After the separation.— Scf Municipal Act, B. S. 0. c. 184, s. 38.
Originally commenced.— That is the court from which the fitHt
process issued : llule 10.
Eefiuiation | O. The Judgc of the county, the sheriflf, the warden of
of limits un i,, . j(«ta«»- r^
separation the county, and the inspector or Division Courts, at a
ofacounty. . i n i c i t i
meeting to be called tor the purpose, or at any adjournetl
meeting, shall, within three months after the issue of a
proclamation for separating a junior from a senior county,
appoint the number (not less than three nor more than
twelve) the limits and extent of the several divisions
REOULATION OF LIMITS ON SEPAIIATION.
15
Avithin such county, ami the time when such clian^'c of 8«oUoa
(livision-s shall take place, and no resolution or order nuule
under the provisions of this section shall be altered or
rescinded, unless public notice of the intention so to alter
or rescind is made and proclaimed in open Court at the
next previous sittings of the General Sessions of the Peace.
40 V. c. 15, s. 4.
See notes to sections 13 and 15.
Tlie first moetin>» may bo held, it is submitted, without the proclama-
tion first boin^' made at the General Sessions of the Peace, which is
ivdvised in the notes to section IH. But there cannot be any order or
resolution chantiinji the same, unless public notice of the intention so to
do is made and proclaimed in the manner pointed out by the statute.
The section does not prescribe who shall call the meotinf^ as in s. liJ,
ss. '2, but as the Jndt,'e is first mentioned, probably he should do so. The
otlier peraons mentioned should have ample notice of the time and place
of meeting', and if not, the action of those present, not bein/^ all, would
probably be held ille^ial. A full opportunity of discussinj; the question
should be afforded each member of the tribunal, otherwise the proceed-
ing's would be irrcf,'ular, and any order or resolution made by those
pwsent would be bad : //* re Potter v. Knajip, 5 P. H. l',(7 ; (!annon v.
Toronto Corn Exchanj^e, 5 A. K. WH ; Labouchere v. WharnclifTe, 13
Ch. D. HK; ; Temple v. Toronto Stock Exchange, 8 O. R. 705 ; Fisher v.
Keane, 11 Ch. D. 353 ; also cases cited in notes to section 13.
Shall within three months. — The lan{,'uafie of this section, it will be
noticed, is express and positive. The direction is imperative : R. S. O.
c. 1, s. 8, s-s. '2. But whenever the thinj^ required by a statute to be
done has reference to " the time or formality of completing* any public
act, not beinj; a step in a litIt,'ation or accusation " as in this case, the
enactment will t^enerally be regarded as mei'ely directory, unless there be
words makinf,' the thinj^ done void if not done in accordance with the
prescribed requirements : Stroud, 723 ; Cooke v. New River Co. 38
Ch. D. 50 ; S. C. 14 App. Cas. (j<.)8.
The tribunal here constituted may not be concluded from acting?, if it
nef^lects to do so at the proper time, but it is obvious that the neglect to
perform the duty enjoined by the statute would be unjustifiable.
As to the number of divisions, see notes to section 4.
The notice required before altering or rescinding any resolution or
order should be in writing, filed by the Clerk of the Peace and entered at
length in the record of proceedings of the General Sessions, together with
the fact of proclamation having been made, and when so made, and by
whom the notice was presented. No particular time is prescribed for
the making of the proclamation at the Court of General Sessions as in
some other statutes (R. S. O. c. 27, s. 18), and it may be made at any
time during the sittings : R. v. Pawlett, L. R. 8 Q. B. 491.
Proclamation must be made " at the next previous sittings of the
General Sessions of the Peace." Should the persons mentioned in this
section fail to act in pursuance of the proclamation before the sittings of
the General Sessions next after the making of such proclamation, they
could not do so afterwards without notice being given afresh.
A majority of the members present could make a valid decision, if all
had due notice of the meeting and full opportunity of discussion ; tee
16
CLERKS OF THE PEACE.
Sections cases cited in notes to section 13 ; In re Ontario and Quebec, 6 L. J. N. S.
19-20 212 ; Worts v. Worts, '>.2 L. J. N. S. 282.
If the said o<iicers exei'ciaed their judgment honestly and fairly, and
consistently with legal priniiples, the resolution or order, if good on its
face, could not be reviewed : Baggalay v. Borthwick, 10 C. B. N. S. 61.
It would not be so if made corruptly, or in disregard of the plain prin-
ciples of law or justice : Morijan v. Mather, 2 Ves. Jr. 15 ; or if any one of
them were personally interested in the subject matter : Earle v. Stoker, '2
Vern. 251, for he could not be judge in his own cause : R. v. Bishop of
St. Albans, 9 Q. B. D. 454.
Should any member of the tribunal, the warden for instance, if a
Division Court clerk, be interested in extending the limits of his own
division, he would be incapable of acting : see notes to section 21 for
authorities as to the question of disqualifying interest.
The resolution or order should not be made separately, but while all
are together: Wade v. Dowling, 4 E. & B, 44, and if one were excluded
from the meeting by force or fraud the action of the rest would be illegal :
In re Templeman & Keed, 9 Dowl. 962.
•Clerks of
the Peace
to record
time and
place for
iioldiuf;
Courts.
20. Tlie clerk of the peace, in a book to be by hiiii
kept, shall record the divisions declared and appointed, and
the times and places of holding the courts, and the altera-
tions from time to time made therein, and he shall forthwith
transHiit to the inspector of Division Courts a copy of the
record. R. S. O. 1877, c. 47, s. 18 ; 47 V. c. 10, s. 16 ; 55
V. c. 11, s. 3.
Clerk of the Peace. — As to the appointment of this officer, «ee R.S.O.
c. 48, s. 11. No provision is made as to the manner in which the infor-
mation here mentioned is to be imparted to the Clerk of the Peace ; but
it may be presumed that the Judge will keep him informed. It does not
seem to be hie duty to attend at the meetings of the tribunal charged
with the duty of appointing the number, limits and extent of the several
divisions, and the duty of appointing the " times and places of holding
the courts " devolves upon the Judge under section 8. The proper course
to be adopted is not at all clear.
" The entries in this book are of such a public nature, that an examined
copy, or extracts therefrom, certified as such, and signed by the Clerk of
the Peace, would be admissible in any Court of Justice, or before any
person having by law, or consent of parties, authority to hear, receive or
examine evidence:" 7 U. C. L. .J. 177.
Forthwith transmit. — The word " forthwith " has sometimes received
a free construction and sometimes a strict one, according to the circum-
stances under which it has been used. An act has sometimes been hel d
to have been done "forthwith" when done within a reasonable time
and an act has sometimes been held to have been done " forthwith ''
only when done with the least possible delay : per Armour, C.J.,
Maxwell v. Scarfe. 18 O. R. 531.
Where the acv is one which is capable of being done without any delay,
no delay can be permitted : per Jessel, M.R. lie Southam. Kxparte Lambe,
19 Ch. D. 169; see also Furber v. Cobb, 18 Q. B. D. 494 at p. 504; Lowo
V. Fox, 15 Q. B. D., 679, yer Bowen, L.J. ; Stroud, 301.
THE PRESIDING JUDGE.
17
il:^ i
Where a consequence is " forthwith "' to fellow on an event, the word SectlonB
imperatively excludes a time within which somethinji else may be done 20-21
inconsistent with that consequence ; thus where a statute provided that
a town council on receiving the resif^nation of a person elected to a
corporate office, is " forthwith " to declare that office vacant, the resigna-
tion cannot be withdrawn : R. v. Wigan, 14 Q. E. D. 908.
The Clerk of the Peace is not obliged to notify the inspector of any-
thing but the acts of the General Sessions, as to the limits of the
different divisions, and the orders of the Judge as to ijhe times and places
of holding courts ; nothing can he allowed the Clerk of the Peace for it ;
Poussett and the Quarter Sessions of Lambton, 22 U. C. R. 412.
The Judge.
S«. (1) The Division Courts shall be presided over
by the County Court Judges or Junior or Deputy Judges
in their respective counties.
(2) The Junior Judge for the county shall (subject to
any other arrangement from time to time made with the
Senior Judge or made by the Judges of a County Court
District which includes such county), preside over the
Division Courts of the county.
(3) The appointment of a Junior Judge shall not pre-
vent or excuse the Judge of the County Court from
presiding at any of the Division Courts within his county
when the public interests require it. R. S. O. 1877, c. 47,
s. 19.
As to |the appointment of Senior or Junior Judge, see R. S. O. 1887,
c. 40. The Deputy Judge holds his office during pleasure, and in case of
tlie death, illness, or absence of the Judge, he has authority to perform
all the duties of the County Judge : R. S. O. c. 46, s. 7. He may prac-
tice his profession. Unlike the Senior or Junior Judge, he is not a J. P.
foi" " every county and part of Ontario": section 11. He cannot give
judgment after the expiration of the period for which he was appointed
deputy: Hoey v. McFarlane, 4 C. B. N. S. 718.
Where a Deputy Judge is appointed by Government, the law presumes
that the necessary facts exist to warrant such appointment, and on the
party disputing the validity of the appointment rests the onus of
establishing its invalidity : R. v. Fee, 3 O. R. 107. It was also held in
that case, that it was not essential that the County Judge should be
absent from the county in order to enable the Deputy Judge to act.
A County Jud.^e is not answerable, in an action of trespass, for an
erroneous judgment or for the wrongful act of his officer, done not in
pursuance of, though under color of, a judgment; but he is responsible
for an act done by his command and authority, when he has no jurisdic-
tion : Houlden v. Smith, 14 Q. B. 841. If an order of commitment were
made under the judgment summons clauses, to any but the gaol of the
county in which the party summoned resided or carried on business,
trespass would lie against the Judge if warrant issued by his authority.
D.C.A.— 2
County
Court
Judges to
preside.
Junior
Judge to
hold Divi-
sion
Courts.
Senior
Judge to
hold
Division
Courts
■wlien ex-
pedient.
[Hill
18
JUDGES AND JUDICIAL OFFICERS.
■iSMtioa So, also, it would be a want of jurisdiction to summon a person under
21 such circumstances : Ih 85H. iSVc also /u ce Dulmage v. Judge of Leeds
. and Grenville, 12 U. C. 11. 32. He is also entitled to notice of • '< n if
lie acted honestly believing that his duty as a Judge calli ' ...i to
doso: Booth V. Clive, IOC. B. 827 Want of jurisdiction ii: ic iniide to
appear to the Judge, and if there is no evidence of that either on the f ice
of the proceedings (Houlden v. Smith, 11 Q. B. S^)l. j)er Patiprson, J.l,
or given before the Judge, he is not liable in trespass (Graham v. Sniait
18 U. C. R. 482), nor are the officers of the court acting in execnti.
of the order, Ih.: Andrews v. Marria, 1 Q. B. 3; Watson v. liode ,
14 M. & W. 57 ; Thomas v. Hudson, 14 M. *. W. 353, in K.x. Cham., Hi
M. & W. 885. "The Judge of the Division Court," said Robinson, C.J.,
at p. 487 of 18 U. C. R., " was bound to act 'ipon what appeared before
him, and cannot be made a trespasser by proof of facts given at luiv
other time or in any other court."
At p. 489 of the same »*eport. Burns, J , says : " It appears to ;n t.' e
plaintiff, by suffering judgment by default against him, is not in a
position to dispute the jurisdiction of the court. If the want of juris-
diction was apparent upon the proceedings, then of course it would be
open for him to question the right upon any steps taken upon a proceed-
ing in that manner, as contiii iion jiidicc ; but I do not think he can
question the jurisdiction, by bringing evidence to dispute the place wiiere
the cause of action arose in wliole or in part, after he has ac(juiesced in
it in whole by suffering judgment by default ; and in an actioM against
the Judge, the Judge of the County C^oiu't would be in a serious predica-
ment if he were obliged to be prepared witli evidence to sustain his
judgments againsl^ persons simply because it be shown that the i)artii's
sued do not reside within his county. Tlie effect of what the plaintiff
contends for in tliis case would compel the .Judge to do that, if such a
proposition be established. The plaintiff should have appeared to tiie
summons, and have raised the question, and the Judge would tlien ha\e
tried the (juestion of jurisdiction ; or if lie did not wisii the Judge of the
^ County Court to have determined the point, he might have ai'plied to one
of the Superior Courts for a prohibition."
As regards Judges and judicial officers, the general rule is, that if they
do any act beyond the limit of their authority, causing injury to anothfr.
they are liable for it ; but if the act be done within that 'iinit through an
erroneous or mistaken judgment, they are not liable : Doswell v. Impev,
1 B. ttC. 103 ; Garner v. Coleman, IKC. P. 10(i. Trespass will not lie for
a judicial act done without jurisdiction, unless the Judge knew ur had the
means of knowing of it : Calder v Halkett, 3 Moo. P. C. 28 ; Garner v.
Coleman. 1!) C. P. at p. 10!) ; Kemp v. Neville, 10 C. B. N S. 545, and cases
there cited; Davis' C C. Acts,3r(lEd. 180 cf .scf/. Judicial functions can-
not be delegated: Andrews v. Marris, 1 Q. B. 3. A Sui)crior (,'curt can
order a County Judge to proceed with the hearing of a case, but cannot
deal with any order which he nniy make : Churchward v. Coleman,
L. R. 2 I}. B. 18; Coolican v. Hunter, 7 P. R. 237. The signature
to a Judge's order need not be by the hitiid of the Judge himself. If im-
pressed with a stamp by the clerk in his presence it is good : Blades v.
Lawrence, L. R. Q. B. 374. Words spoken by a County Judge sitting
on the trial of a cause, though irrelevant to that matter, are not action-
able : Hcott v. Stansfield, L. R. 3 \'\\. 220 ; Munster v. Lamb, 11 Q. \\. D.
588. No action lies against the Judge of a Sujierior Court for a judicial
act, though alleged to have been done maliciously and corruptly : Fray
V. Blackburn, 3 B. A S. 57t) ; Ward v. Freeman, 2 Ir. C. L. R 4()0 ;
Gdgers on Libel and Slander, 2nd Ed. 187, 188, 180 ; Hind v. Brett, W. N.
(1883) p. 37. A .hidge cannot try a cause lu which he is interested :
11. V. Meyer, 1 Q. B. D. 173, But even in a case of imputed interest
APPOINTING DEPUTY JUDGE.
he is not incapacitated from making; an order if refusing to do so would
be a denial of justice: Grand Junction Canal Co. v. Dimes, 18 L. J.
Chan, ii&ii ; 19 L. J. Chan. 845, s. c. The Lord Chancellor was held dis-
qualified to hear a case in which a company were plaintiffs, owing to
the fact that he had an interest as a shareholder: Dimes v. Grand
Junction Canal Co., 3 H. L. Cas. 759 ; nee also London & North Western
Railway Co. v. Lindsay, 3 MacQueen H. L. Cas. 99 ; Medwin ex parte, 1
E A B. (509 ; R. v. Cambridge (Recorder), 8 E. & B. 637 ; R. v. The Jus-
tices of Suffolk, 18 Q. B. 416; R. v. Rand, L. R. J Q. B.230 ; Hayman v.
The Governors of Rugby School, L. R. 18 Eq. 28 ; Bigelow v. Bigelow,
6 F. R. 121. A co'unsel in a cause, being after raised to the Bench, is not
piocluilod from taking part in the hearing and discussion of that cause,
but he may properly decline : Thellusson v. Rendlesham, 7 H. L. Cas. 429.
Private communications to a Judge upon a matter publicly before him
are liighly improper, and amount to contempt of court : In re Dyce,
Sombre, 1 Mac. it G. 116 ; 13 Jurist, 857, s. c.
All attachment will not lie against a County Court Judge for not
obeying a cfrtiordri, unless it clearly appears that he acted contumaciously:
In ir Judge of Niagara District, 3 O. S. 437. Nor can he be arrested on
mesne or final process : Adams v. Ackland, 7 U. C. R. 211. A County
Court Judge cannot refuse to attend under a subpoena duces tecum to
produce a deed, on the ground of private business, or that he obtained the
deed, or b<jcame possessed of his iiformation as an attorney, or that he
had a lien on the deed or was entitled to witness fees as an attorney :
Deadman v. Ewen, 27 U. C. R. 176. He cannot directly or indirectly
practice as a counsel, attorney or solicitor, notary public or convey-
ancer, under penalty of forfeiture of office and further penalty cf $400 :
R. S. 0. c. J'' s. (I; see also Allen qui tarn v. Jarvis, 32 U. C. R. 56.
Chanue of venue was ordered in ejectment where County Court Judge
was defendant, where plaintiff might otherwise have proceeded under
Overholding Tenants' Act : Anon, 4 P. R. 310. Where a reference is
made at Nisi Frins to a County Judge by name, though his description
as Judt;e is added, lie is entitled to his fees as arbitrator : Wood v.
Foster, 6 P. R. 175.
As to tlie affect of the death of the Judge in cases pending, see Leslie
v. Emmons, 25 U. C. R. 243; Hoey v. McFarlane, 4 C. B. N. S. 718;
Applelio v. Maker, 27 U. C. H. 48i).
Sli,)nhl tlie .luiiior Judge be sick, absent or otherwise unable to hold
the Division (^>urt, it would be the duty of the Senior Judge, under this
sub-section, to hold tlie court.
By the R. H. C)., 1HH7, c. 46, s. 13, it is provided that, "at any
sitting's of tlie County Court at tlie same time as the sittings of the
Court of Cencral Sessions of the Peace, or of a Division Court in ivny
ciHiiity, or of aii\ two of the said courts at the same time, either \:he
Senior or hiMior Judjie. or both of tliem, may, if the Senior Judge thinks
tit, preside in any of the said courts, or each of them in one of said
courts at tlie same time, so that two of the said courts may sit and the
business therein bj [iroceeded with simultaneously, '
22. Ill cawe of the illness or absence of the Judg-e, a
.liKJoe of the County Court of any other county may
hold the court, or the first mentioned Judge may appoint
some barrister of the Bar of Ontario to act as his deputy;
and the Judge of such other County or the barrister so
ajipointed shall, as Judg^e of the Division Court, durinf^
the time of his appointment, have all the powers and
19
Sections
21-22
Who to
l)re8ide in
ease of
illuesa or
absence of
Judge.
t
14
1 1 '*
20
NOTICE TO LIEUTENANT-GOVERNOR.
Sactlons privileges, and be sul)ject to
law on the
all the duties vested in or
imposed by law on the Judge by whom he has been
• appointed. R. S. O. 1877, c. 47, s. 20.
XJnder tlie Consolidated Statutes of Upper Canada, c. 1!), s. 17, the
absence of the Judge was re(]uired to be "unavoidable." It is not so
now. It is not necessary th.it any order made by the barrister so
appointed Deputy Judge should show the reason for such appointment.
The maxim, " all acts are presumed to be rigiitly done " applies : In re
Hawkins, 3 P. R. 2.S<J.
In R. V. J^'ee, B O. R. 107, it was held that where a commission was
issued by the Governor-General in Council appointing a barrister a
Deputy Judge during pleasure and the absence of the County Judge under
leave of absence granted to him by Order in Council, it was not necessary
to prove the Order in Council granting such leave of absence, and that the
general presumption of law should prevail, namely, that a person acting
in a public capacity was properly appointed and duly authorized to act
until the contrary was shew)i by the person disputing it. It was also
held in that case that it was not essential that the County Judge should
be absent from the county in order to enable the Deputy Judge to act.
By the R. S. O. c. 4(5, s. 14, such Judge may, " if he sees fit, perform
any judicial duties in any county other than his own, on being requested
to do so by the Judge to whom the duty for any reason belongs." By
the IGth section of the same statute, full power and authority is given to
Huch Judge to perform all judicial duties which could have been per-
formed by the Judge of the county. It was contended in the case of
Wilson V. McGuire, 2 O. R. 118, that the Provincial Legislature could
not authorize the Judge of one county to hold a Division Court iu
another county. This contention was not sustained. In Gibson v.
McDonald, 7 O. R. 401. it was held that a Judge of one county could
not preside at the court of General Sessions of any county but his own.
f^ The following rules are deducible from the case of In re Leibes v.
Ward, 45 U. C. R. 375, where a Junior Judge had, under this section,
appointed a barrister to hold the sittings of a particular Division Court
for him: (1) that the word "Judge" here used includes the Junior
Judc;e ; ('2) that the deputation held good until the work of the particular
court was completed ; (3) that a Deputy Judge so appointed had power
to appoint a subsequent time and place in the county, though not in the
division of the court, for subsequent delivery of judgment ; (4) that the
deputation itself clothed the gentleman so appointed Deputy Judge with
all the powers, within the county, of Junior Judge. See also Gibson v.
McDonald, 7 O. R. 401 ; Baker v. Cave, 1 H. & N. 674 ; Margate Pier Co.
V. Hannam, H B. * A.ld. 2(U'. ; Waterloo Bridge Co. v. Cull, 1 E. & E. 213 ;
Applebe v. Baker, 27 U. C. R. 489; Hoey v. McFarlane, 4 C. B. N. S.
718 and 732 ; Smith's Master and Servant, 4th ed. 4, 5.
The death of the Judge ends the authority of such a deputy : Hoay v.
McFarlane, 4 C. B. N. S. 718, 732. The appointment had better be in
writing, but is it necessary to be so ? See R. v. Justices of Salop, 4
B. & Aid. 020, per Bayley, J., at p. 029, and R. v. Justices of Surrey, 5
B. & Aid. 539, per Abbott, C.J.
Lieuteu- JJJJ. The County Judge so appointing or the barrister
eruor to bo go appointed deputy sliall forthwith send to the Lieutenant-
"^ppoint- Governor noiiee of the appointment, specifying the name,
deputy, residence and profession of the deputy Judge, and the
cause of his appointment. R. S. O. 1877, c. 47, s. 21.
ADJOURNING COURT.
21
Appointment. — The notice of appointment should either be sent by Sections
the Judge or the barrister so appointed " forchwitli," as to the meaning 23-26
of which see notes to section 20.
Residence.- -See notice to section 81.
24. No sucli appointiuent shall be continued for inore duration
. .... o' appoiut-
than one month without a renewal of the like notice; and"ieut.
in case the Lieutenant-Governor disapproves of the appoint-
ment, he may aniuil the same. R. S. O. 1877, c. 47, s. 22.
One month. — This is a calendar month : R. R. O. c. 1, s. 8, s-s. 15.
The day on which thd appointment was made would be excluded:
Lester v. Garland, 15 Ves. Jun. 248; Hanns v. Johnston, 3 O. R. 100.
iS.I. In case the Judije or the acting Jud^e, from illness Adjoum-
^ . . . " , nient of
or any casualty, does not arrive in time or is not able to court if
"^ . . , . , . Judge does
open a Division Court on the day appointed for that!'ot.'>'''"ve
^ ". '" time,
purpose, the clerk or deputy-clerk of the court shall after
eight o'clock in the afternoon, by proclanuition, acliourn
the court to an earlier hour on the followinj;^ day, and so
from day to day, adjourning' over any Sunday or legal
holiday, until the Judge or acting Judge arrives to open
the court, or until he receives other directions from the
Judge or acting Judge. R. S. O. 1<S77, c. 47, s. 28.
Tlie expression " actiu}:; Judtje" refers to the Judj^e of any other
county, the Junior Judj^o, or a deputy appointed under section 22.
Casualty. — The difference in the words used in section 22 and in this,
is to be observed. " Casualty," hero may, we submit, be taken to mean
some unforeseen accident or other cause pi-eventing the Judge's attend-
ance.
Clerk or Deputy Cleric.. — See section 32.
Earlier hour—/, c, tiian eight o'clock p.m.
Holiday. — See R. S. O. c. 1, s. 8, s-s. 1(5. The word holiday includes
" Sundays, New Year's Day, Good Friday, iMister Monday, and (Christ-
inas Day, Dominion Day, the days appointed for thi' colobration of the
birth of Her Majesty and Her Royal Successors, and any day appointed
by proclamation of the Governor-General or Lieutenant-Governor as a
public holiday or for a General Fast ur Thaidogiving."
.\ judgment entered on any such days would perhaps be questioned ;
Trust and Loan Co. v. Dickson, 2 L. J. N. S. UK) ; Connelly v. Bremner,
L. R. 1 C. P. r)r.7.
As to holding Division Courts in Territorial Districts, nee R. S. O.
c. 91, s. 18.
CLERKS .AND BAILIFFS, ETC.
*M\. For every Division Court there shall be a clerk Every
and a bailiti' or bailiffs, who shall be British sulijects, and iiave clerk
shall respectively' perform the duties of their office as regu- ijaiiififs.
luted by Act of the Legislature, and ;\ rules or orders
W\
i s:- ■
%.
> I
It*,
w3
22
APPOINTING CLERK OR BAILIFF.
Sections niade by the board of County Judges. R. S. O. 1877, c. 47,
26-28
24.
s.
Bailiff OP bailifTs. — These are the executive officers of the court. As a
general rule all persons of sane mind are capable of holding office : 2
tJ. C. L. J. 63. A clerk and bailiff could not be the same person : 2
U. C. L. J. 64. Persons under 21 years of age are deemed by law incap-
able of the skill necessary in such an office : 2 U. C. L. J. 64. If more
than one bailiff, each should do his work independently of the other : 2
U. C. L. J. 64, and cases there cited.
Duties.— A refusal to perform the duties without a color of riglit
would be a misdemeanor, punishable with fine or imprisonment, or both :
Roscoe's Crim. Evidence, 11th Ed. 783. So also would acts totally illegal
committed by a bailiff under color of his office : Roscoe's Crim. Evidence,
11th Ed. 782 ; R. v. Wyat, 1 Salk. 380 ; R. v. Bembridge, 3 Doug. 327 ;
R. V. Borron, 3 B. & Aid. 434 ; R. v. Tisdale, 20 U. C. R. 272 ; Parsons v.
Crabbe, 31 C. P. lol.
ment'of ^'^- ^^'^^^ Lieuteiiant-Governor may appoint, during
bamfls*"*^ pleasure, the clerk and bailiff or bailiffs of any Division
Court. 43 V. c. 8, s, 33.
During pleasure. — Every clerk and bailiff appointed, holds his office
during the pleasure of the Government. By the R. S. O. c. 1, s. 8, s s. 26,
words authorizing the appointment of any public officer shall include the
power of removing him, or appointing another in his stead, in the discre-
tion of the authority in whom the power of appointment is vested.
Prior to 5th March, 1880, clerks and bailiffs were appomted by the
Judges, who had also express power of removal, but under tliis Act a
Judge may remove only a clerk or bailiff within his own county who
was originally appointed by a Judge, and cannot do more than suspend
one appointed by the Government : see sees. 2!) and 31.
2H. No clerk of a Division Court sliall practice as
R. 8. O. 1877, c. 47, s. 25 ; 43 V.
8, s. .35.
Clerk not
to practice , ,• .,
asBoiicitor, a r)arnster or solicitor,
etc.
If a practicing barrister or solicitor be appointed, he must cease
practice at the time of liis appointment. He could not even continue a
suit in which he might be engaged. No penalty is attached to the viola-
tion of this section, but the appointee would be liable to indictment for
its disobedience: R. v. Sainsbury, 4 T. R. 451; 2 R. R. 433; R. v. Davis,
Sayer, 133; Russell on Crimes, ;5th Ed. 1!I3; Binbridge's Crim. Dig.
109-114; Roscoe's Crim Evi. 782. The words of the section are very
ambiguous. They are not nearly so wide or sweepint; as those respecting
Judges: R. S. O. c. 46, s. 6. There woui t ippear to be nothing to provcnt
a clerk from acting as a conveyancer or notary public. What is practic-
ing as a barrister or solicitor '. The subject will be found discussed in
Law Society v. ^Macdougall. 13 O. R. 204: 1.5 A. R. 150 ; 18 S. C. R. 203.
Strong, J., says, 18 S. C. R. p. 212 : " The only way in which I can con-
ceive a solicitor can be said to i)ractice as -inch in the courts is by exer-
cising the functions of a solicitor, by taking on behalf of a client some of
the regular steps of procedure in an action or some other judicial pro-
ceeding." .SVt' also Law Society v. Waterlow, 8 App. Cas. 407 ; lie Horton,.
8Q. B. D. 434.
SUSPEXniNG CLERK OR BAILIFF.
23
2!>. The Judge of the County Court may at pleasure ^l^^?"*
suHpencl or remove any clerk or bailiff within his own
^ Keuioval
county heretofore appointed by a Judoe. 48 V. c. 8, s. 80. ofcioikor
•^ '^ '■ ./ o bailiff by
This section gives power when the appointment of the officer has " ^*'
been made by a Judge.
»{0. The Lieutenant-Governor may, upon the report of of clerks''
the Inspector, or of the County Court Judjjfe, dismiss from bailiffs,
office for misconduct or incompetency, any clerk or bailiff
heretofore appointed. 48 V. c. (S, s. 82.
Power is here given to the Lieuteiuuit-Governor to dismiss clerks and
biiiliffs wlio had been appointed by a Judge prior to 5th Marcli, 1880. As
to " misconduct" see section 277 and notes thereto.
What amounts to " incompetency " must be determined with refer-
ence to each particular case. What might properly be considered
" incompetency " in a clerk of a city office, where a large amount of
business is done, might not be so in a country office where suits are few.
.*{1. (1) Nothinff in tl\is Act contained shall relieve theD"tyo'
^ ' o County
County Judge from the responsibility of seeing that thej^^^^^^
officers of his court perform their duties, or from examining
into complaints which may be made against them, or from
the duties imposed upon him in reference to the security
to be given by clerks and bailitls, and such last mentioned
duties are declared and shall be held to be of a judicial
and not of an administrative character.
ension
erk or
(2) The Judge may, for eause, suspend any clerk or^''«P'
haiiiti' ap])ointed by the Lieutenant-Governor, and in case ^^j|'^ ''^
of sueh suspension by him, he sIkiII forthwith report the
same antl the eause thereof to the Provincial Secretary ;
and in ease a vacancy shall occur in the office of clerk or
hailitl' within his county, the Judge shall forthwith notify
the Provincial Secretary thereof. 48 X. c. S, s. 84.
Formerly the responsibility which attached to tlic .indj.'o in connec-
tion witli clerks' and bailiffs' siH'uritios was oi an adniiiiistriilivf char-
acter : See Parka v. Davis, 10 y\ P. •22'.», but now it is a "judicial " one,
very different in its nature and responsibility from the other: See notes
to section 21.
Suspend. — This suspension cannot be made except " for cause," e.rj.,
some niiaco)iduct in his office and must be reported " forthwith" to the
Provincial Secretary. See Jenkins v. Cook, 1 P. D. 80.
See notes to section 20.
24
APPOINTING DEPUTY CLERK.
Section Jig, I^eave of absence may be granted by the Inspector
of Division Courts to any clerk or bailiff for a period not
Inspector
may grant exceeding two months. In the event of leave of absence
ftljBenco to being so granted to any clerk, he may from time to time,
bailiffs with the approval of the inspector, appoint a deputy to act
for him with all the powers and privileges, and subject to
like duties. He may remove such deput}^ at his pleasure,
and the clerk and his sureties shall be jointly and severally
responsible for all the acts and omissions of the deputy.
45 V. c. 7, s. 3.
The Inspector. — At one time it was doubted wliether the Legislature
could apparently delegate its power in this way : R. v. Hodge, 4() U.C.li.
141; 11. V. Severn, 2 S. C. R. 70, but it was decided by the Judicial
Committee of the Privy Council that Legislatures have the ri^ht in
matters within their jurisdiction to delegate certain powers which may
be exercised by the Legislature themselves, and it is now settled that
such enactments as this are not ultra vires of the Provincial Legislature :
Hodge v. The Queen, 9 App. Cas. 117 ; Suite v. Three Rivers, 11 S. C. R.
25 ; Re " The Liquor License Act, 1883," ii C. L. T. CO ; Sinclair'8 " Liiiuor
License Act," 15; Citizens' Ins. Co. v. Parsons, 7 App. Cas. iXi ; A'erratt
V. McAulay, 5 O. R. 313, and other cases cited Sinclair's " Liquor License
Act," 1, 2.
Not Exceeding two months. — The time here mentioned would com-
mence to run from the posting of the inspector's letter granting leave,
and not from its receipt by the clerk or bailiff : Dunlop v. Higgins.
1 n. L. Cps. 381 ; Household F. Ins. Co. v. Grant, 4 Ex. I). 21() ; Union
F. Ins, Co. V. Fitzsimmons, 32 C. P. (502 ; O'Donohuo v. Wiley. 43 U. C. R.
at page 3(j3 ; Frey v. Wellington M. Ins. Co., 4 A. R. 2!)3. The day of
postiiig the letter would be excluded ; Young v. Higgon, (i M. & W. 40;
nee also McCrea v. Waterloo M. Fire Ins. Co., 20 C. P. 437 ; 1 A. R.
218 ; t>.r parte Whitton, In re Greaves, 13 Ch. D. 881.
From time to time. — The clerk may, with the approval of the
inspector, appoint a deputy or deputies to act for him during the time of
his absence. He cannot have more than one deputy at a time, but he
may have several in succession during the time he is absent on leave.
See Stroud, 313 ; Neilson v. .Jarvis, 13 C P. 170. The words " from time
to time" me y be construed to mean "as often as he pleases." Proceed-
ings in all matters may be taken in the name of the clerk, " by \. B.,
deputy clerk," or in the name of the deputy clerk himself : Westbrook
v. IMiller, 22 N. W. Rep. 250. His authority only exists during the
tenure of office of the clerk whose deputj' he is, and should the clerk
die, or be removed, the authority of the deputy would thereby cease.
The fees pertaining to the office would belong to the clerk and not tu
the deputy, and any rights therefor would be in the name of the clerk.
The deputy clerk cannot have more or less power than his principal,
and all duties whicli the clerk could perform should be performed by
him : Parker v. Kett, 1 Saik. 95 ; Godolphin v. Tudor, 2 Salk. 4()8 ; In re
Hoey V. McFarlane, 4 C. B. N. S. 718. The clerk can remove his deputy
at pleasure.
The clerk may have as many assistants in his office as he thinks
necessary, but they are not recognized as deputy clerks in the proper
APPOINTING DEPUTY BAILIFF.
25
siMuiticance of the word, though they would be held in law to be the Beotlou
princinal's deputy when doin{4 any particular act under hifl direction. 32-34
But it' is doubtful if such assistants would have power to sign process,
administer aftidavits, approve instruments, take confessions, record
judgments, or to do such matters as the Legislature evidently trusted to
bo done by the clerk personally. Such assistant clerks are employed
in the offices of the Superior Courts and County Courts ; but any writs
or documents they issue are previously signed by the principal officer,
whose agents they are for the particular act. The term deputy applies
only to one who has all the authority which the principal has by virtue
of his office. A deputy then is one who acts by the rights, in the name
of, and for the benetit of some one else : he is a mere servant of his
principal, though he has the power, by operation of law, to do any act
wiiich his principal might do (1 Salk. \i,'>); and by making a deputy, the
whole power of the principal passes to him : 2 Salk. 41)8; and »ee 1 Salk.
<>(•) ; R. V. Smith, Farr. 78.
" Ministerial officers can, by Common Law, make a deputy : 4 Bulstr.
IH ; H Mod. 150. Whether Division Court clerks come within the general
rule is not material to be considered, for the statute has expressly pro-
vided for the appointment of deputies, thus rather diminishing than
enlarging any Common Law power, for the express provision would
appear by implication to exclude the power of appointment except as
provided for:" 9 U. C. L. J. 'A'2, 33. E-rpretifuin J'acit cesmni taciturn; xee
Elphinstone on Deeds 89, 418, 424.
Sureties shall be responsible for deputy.— If the sureties' covenant
were entered into prior to the Act authorizing the appointment of a
deputy 10th March, 1882, it is doubtful if they would be responsible for
t!ie defaults of the deputy : Pybus v. Gibb, 6 E. A B. 902.
an. The clerk may, (with tlie approval of the Judge), ci^rk^nmy
From time to time, when prevented from acting, by illness aiputy!
(»r other unavoidable accident, appoint a deputy to act for
him, with all the powera and privileges and subject to like
<luties, and may remove such deputy at his pleasure, and
the clerk and his sureties shall be jointly and severally re-
sponsible for all the acts and omissions of the deputy
R. S. O. 1877, c. 47, s. 35.
This section differs from the last one in this, that the clerk, under
this section, may, with the approval of the Judge, appoint a deputy from
time to time, when prevented from acting " by illness or other unavoid-
able acoident " only, while under section iJ2 the inspector may grant
leave of absence for whatever cause he may see fit, and may approve or
disapprove, at pleasure, of any person that the clerk appoints.
JJ4. Where a bailiff is temjiorarily unable to perforin Appoint-
the duties of his office from illness, leave of absence or deputy by
bailiff.
otlier temporary disability, he may from time to time, with
the approval of the inspector of Division Courts, appoint a
deputy to act for him, with all the powers and privileges
iind subject to like duties, and may remove such deputy at
■
m '
Miil
I «
■ s
IP jl
5 51'
26
CLEHKS AND BAILIFFS SECURITIES.
***34^35' ^^'^^ pleaHnre, ami the l»ailifi*an(l his sureties sliall hv. jointly
ami severally responsible for all the acts and ouiissions of
the deputy. Xo such appointment shall have force for a
longer period than two months. 45 V. c. 7, s. 4.
Tlie appointment can only be made by a bailiff: — (1) Where lie is
temporarily unable to perform the duties of IiIh oftice fn/m illness; (2)
absent on leave ; (H) or by reason of other temporary disability. Tlie
appointment can only be made with the approval of the inspector and
cannot be for a period exceedinj^ two months.
The Judfje is not here empowered to remove a deputy bailiff, but
probably where a bailiff could be removed or suspended Jjy the .Jud^e, so
also could his deputy.
With the approval of the inspector, a now appointment of the same
person could probably be nuvde from time to time at the expiration of
everv two .nonths.
Clerkfl and
bailiffs to
give
security.
Rev. Stat,
c. 15.
Certain
public
officers
may give
security of
guarantee
companies.
Sfcaritics.
as. Subject to the provisions of section 24 of T/ir Ad
resperfing Pahlic Offircru, every clerk and bailifi' of a
Division Court shall uive .security by a covenant accordiny;
to the form of the Schedule to this Act, or in words to the
same effect, with so many sureties, beinj; freeholders and
residents within the County, and in such sums, as the
County Judoje directs, and, under his hand, approves and
declares sufficient. R. S. O. 1877, c. 47, s. 28.
The Act respecting Public Officers. — The following are the provisions
here referred to :
"24. — (1) Whenever a Sheriff, Registrar, Division Court Clerk or
Bailiff, orotiier public oificer, is retjuired toj^ive security for the perform-
ance of his duties, or other security of a liltc nature, and whether such
security enures for the benefit of the Crown or of any person injured by
the default or misconduct of such officer, the Lieutenant-Governor in
Council may, by Order in Council, direct that the bond or policy of
guarantee of any incorporated or joint stock company empowei'ed to grant
guarantees, bonds, covenants or policies for the integrity and faithful
accounting of public officers, or other like purposes, and named by such
Order in Council, may be accepted as such security, upon such terms as
may be determined by the Lieutenant-Governor in Council ; and the
provisions of law witVi reference to the legal effect of such securities
when given by individuals, to the filing thereof, and to the mode of
proceeding thereon, shall apply to the security given by every such
company.
(2) The interim receipt of the company may be accepted in lieu of the
formal security, but the formal security shall be completed within one
month." R. S. O. c. 15, s. 24.
Security. — The word " security" shall mean sufficient security ; and
where these words are used one person shall be sufficient there-
for, unless otherwise expressly required : R. S. O. c. 1, s. 8, s-s. 20. As
to the object of this security, see 8 U. C. L. J. 263, and 9 U. C. L. J. 9.
SCOPE OF THE COVEXAXT.
27
Covenant.— It is a joint and several covenant and enures to the
benefit of "' any person sufferin^,' danni^es by the default, breach of duty
or misconduct of the clerk or bailiff: " section 37. When sued on in the "
Division Court, the particuhirs must be according to Form 18, Kulo 0.
Tiie joint suretyship of the other surety is part of the consideration
for the contract of each, and any release of one would be a release of the
other: Honser v. Cox. 4 IJeav. 87!t ; Ward v. National Bank of New /Zea-
land, 8 App. Cas. 7<>4 ; but if the rifjhts against the other surety are
reHerved he is not dischar^'ed : Thompson v. Lack, 3 C. B 540 ; Kearsley
V. Cole, 10 M. & W. 12 ' ; Dewar v. Sparling, IH Gr. (137.
Words to the same effect. — A substantial compliance is all that is
required : lie Allison, 10 Ex. at p. (KiH, per Parke, B. ; R. v. Hyde, 7
E. A B. 8iM> (note) ; Eggington v. Lichfield (Mayor Ac), 5 E. * B'. 100;
R. V. Justices of Cheshire, 3 D. A L. 3H7 ; Henry v. Armitage, 12 Q. B.
D. af)?. It is usually a great deal safer to follow the form given by the
statute, when applicable, than to attempt to make any improvement
in it.
Suretles.^The word "sureties" moans suflicient sureties; R. S. O.
c. 1, s. 8, B-8. '.0. An infant cannot be a party to the bond: I'isher v.
Mowbray, 8 East, 330 ; Baylis v. Dinely, 3 M. tt S. 477 ; Stikeman v.
Dawson. Ifi L. J. Ch. 20.5 ; 1 DeG. & Sm. 113 ; nor would he be bound even
if he fraudulently represented himself to be of age : Bartlett v. Wells, 1
B. & S. 830. A married woman could be one of the sureties, provided
she were possessed of separate estate: Lawson v. Laidlaw, 3 A. R. 77
and i»2 ; Morrell v. Cowan, 7 Ch. D. Idl ; Dame v. Slater, 21 O. R. 375;
but in the present state of our law it might not be well to approve of
such a bond.
As ft general rule, the sureties on an official bond, are liable for the
faithful performance of all duties imposed upon such officer whether by
laws enacted previous or subsequent to the execution of the bond which
properly belong to and come within the scope of the particular office.
They are not, however, liable for after imposed duties which cannot be
presumed to have entered into the contetnplation of the parties at the
time the bond was executed: Brandt on Suretyship, sec. 4()t>; Green v.
Ponton, 8 O. R. 471; Grav v. InjiersoU, 16 6. R. 104; Middlesex v.
Smallman, 19 O. R. 349; 20'O. R. 487.
A clerk or bailiff and his sureties would be liable for the acts of all
deputies, and assistants and clerks : R. v. Stanton, 2 C. P. 18 ; Verratt
V. McAulay, T) O. R. 313.
The Scope of the Covenant.— The covenant is " that (the clerk or
bailiff) shall duly pay over to such person or persons entitled to the same
all such moneys as he shall receive by virtue of the said office, and shall
and will well and faithfully do and perform the duties imposed upon him
by law, and shall not misconduct himself in the said office to the damage
of any person being a party to any legal proceeding." The liability
attaches only if a legal appointment has been made and the sureties are
not estopped from shewing that no legal appointment has been made:
Kepp v. Wiggett, 10 C. B. 35. The default or misconduct charged must
be snch as is contracted against and within the scope of the officer's
duties: Warre v. Calvert. 7 A. A E. 154; King v. Norman, 4. C. B. 8S4 ;
Mcintosh v. Jarvis. 8 U. C. R. 532.
Default in Paying over Money. — Any moneys received by virtue of
his office are within the covenant ; e.p., bailiffs fees received by a clerk
and not paid over: Cool v Switzer, V.) U. C. R. 199. The state of the
account between the plaintiff and the officer is binding on the sureties;
where, therefore, a clerk had been credited with fees on account for goods
sold him by plaintiff, it was held that the sureties were not entitled to
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28 NON-PERFORMANCE OF DUTIES.
Section credit the.-efor against moneys not paid over : I'ranklin v. Gream, 20
36 U. C. R. 84. If moneys have been received by an officer which he was
not by law entitled to demand, and which he could not be compelled to
accept, e.g., as an indemnity, the sureties will not be liable therefor:
Kero v. Powell, 25 C, P. 448; Preston v, Wilmot, 23 U. C. K. 348.
Money received "by virtue of his office" is such as is received for the
purpose of being paid over to a party in a legal proceeding, and which
money, at the time of its being received by the officer, was so received to
the use of such party : per Gwynne, J., 25 C. P. 453. The moneys must
be actually received : Canada West F. M. & S. Ins. Co. v. Merritt,
20 U. C. R. 444 ; Corp. of Rawdon v. Ward, 27 U. C. R. 609 ; Montefiore
V. Lloyd, 15 C. B. N. S. 203. Payment otherwise than in money will
not discharge a debtor, so that a personal set-off against the officer,
through agreed to by him, would not, of itself, renner the sureties respon-
sible ; though, if the debt were lost, they might be liable for the officer's
neglect : nee Eraser v. Gore District M. F. Ins. Co., 2 O. R. 41(5. The
sureties would be liable for interest : Ackermann v. Ehrensperger, 10 M.
<& W. 99. Though money may not, in the first instance, be received "by
virtue of the oiMce," it may afterwards become so, as where a bailiff
seized and sold a stranger's goods, and tlien took interpleader proceedings
concerning the proceeds, which resulted in an order of the Court to pay
the money to the stranger: McArthur v. Cool, 19 U. C. R. 470. A
receipt of money by a deputy would render the sureties responsible : sec.
32 ; Venatt v. McAulay, 5 O. R. 313. Where a clerk directed money to
be remitted to him by a banker's draft, and ^ave a receipt therefor, it
was held to amount to a payment to him, though the banker failed before
presentment ; but qucere, whether it would have been a receipt within the
covenant had his sureties been sued : McLeish v. Howard, 3 A. R. 503.
Non-Pepformance of Duties. — Wherever by the Act or Rules a duty
is imposed upon a clerk or bailiff and he neglects that duty, and the
person to whom he owes the duty is damaged without any want of care
on his part, the sureties will be liable. As a general rule damage is the
essence of the action, and if the evidence shews that had the duty been
performed the plaintiff would have derived no benefit, the action must
fail : Hobson v. Thelluson, L. R. 2 Q. B. 042 ; Brown v. Wright, 35
U. C. R. 378 ; Nerlich v. Malloy, 4 A. R. at p. 435. But for the non-
performance of some duties, nominal damages may be given, e.g., the
neglect of a bailiff to return an execution within three days after the re-
turn day thereof under section 280: see Nerlich v. Malloy, 4 A. R. 430.
A bailiff is not liable for not seizing goods, of the presence of which in his
bailiwick, he has no notice : Yourrell v. Proby, 2 Ir. R. C. L. 460. In an
action against a bailiff for not seizing goods, he may prove that the goods
were covered by a chattel mortgage and he will not then be liable : Stim-
Bon v. Farnham, L.R. 7 Q. B. 175. He is not bound to use extraordinary
exertion or provide against an unexpected or unforseen contingency :
Hodgson v. Lynch, 5 Ir. R. C. L. 353. Where an execution is issued
imder section 103 to the bailiff of a court within the county, other than
that in which the action is brought, it is necessary to shew that the goods
were "in or near to" the division of such bailiff: Davy v. Johnston,
31 U. C. R. 153. When the bailiff fails to execute a warrant of commit
ment, or allows the debtor to escape, not only the debtors own resources
but all reasonable probabilties formed upon his position in life and sur-
rounding circumstances, that the debt, or any portion of it, would have
been dischax'ged if he had been taken or remained in custody, may be
taken into account : MacRae v. Clarke, L. R. 1 C. P. 403 ; but where
the debtor was insolvent, nominal damages only were given : Brown v.
Paxton, 19 U. C. R. 426. There must be proof of negligence : Nelson v.
Baby, 14 U. C. R. 235. If the bailiff take insufficient sureties on a re-
RELEASE OF SURETIES.
2^
plevin bond he will ba liable to "U damages naturally flowing therefrom,
not exceeding the panalty of the replevin bond : Norman v. Hope, 13
0. R. 556: 14 O. R. '287 ; nee Yea v. Lethbridge, 4 T. R. 433; 2 R. R. 425,
where the value of the goods was held to be the limit of recovery : see note
in 2 R. R. 426. If a bailiff does not exact payment of his fees in advance
his sureties are nevertheless liable; Bank of Ottawa v. Smith, 16 L.J.N. S.
223.
Misconduct. — By the express terms of the covenant, damage is of the
essence of an action for misconduct. Selling a debtor's goods contrary to
orders from the creditor would be misconduct : Sloan v. Creasor, 22
U. C. R. 127. The misconduct must be in the exercise of the duties of
his office. The exaction of legal fees, assuming to do more than the pro-
cess justified, as by breaking open the door of a dwelling house, making a
false return to process, are instances of misconduct : Smart v. Hutton,
8 A. & E. 568. The sureties are not responsible for the seizure of the
goods of a stranger : McArthur v. Cool, 1!) U. C. R. 476.
Demand. — No demand is necessary upon the bailiff, except in cases
falling within section 104. A clerk is not bound to transmit by post any
moneys, nor to procure and transmit post-office orders therefor, except
upon the request and at the expense of the party entitled thereto. Without
such direction and request, all moneys are payable at the office of the
clerk : Rule 159 ; MoLeish v. Howard, 3 A. R 506. Except by compli-
ance with this Rule no demand is necessary : Gibbs v. Southam, 5 B.
& Ad 911.
PartieB. — A recovery against the officer will be a bar to any action
against the sureties : Sloan v. Creasor, 22 U. C. R. 127 ; Miller v. Corbett,
20 U. C. R. 478 ; Pearson v. Ruttan, 15 C. P. 79. To any action against
the sureties the officer should be a party : Exchange Bank v. Springer, 29
Gr. 270 ; and if the action fails against the officer, it will also fail against
the sureties : Pearson v. Ruttan, 15 0. P. 79 ; R. v. McPherson, 15 C. P.
17. At Common Law all parties could be sued together, or each separ-
ately, but two could not be proceeded against in one action : R. v,
McPherson, 15 C. P. 17.
Release. — Any material increase in the duties of the officer will release
the sureties : Pybus v. Gibb. (5 E. & B. 902 ; Victoria M. F. Ins. Co. v.
Davidson, 3 O. R. at p. 383 ; or where the officer undertakes to the plain-
tiff additional liability : Bonar v. Macdonald, 3 H. L. Cas. 226 ; but where
the duties are lessened the sureties will not be discharged : Frank v.
Edwards, 8 Ex. 211. Where the limits of the court are changed it would
be advisable to obtain new covenants : Thompson v. McLean, 17 U. C. R.
495; Corp. of Ontario v. Paxton, 27 C. P. 104. Where the amount or
mode of payment by the officer is altered by agreement with the creditor
the sureties may be released : see London & N. W. Ry. Co. v. Whinray^
10 Ex. 77 ; Bank of Toronto v. Wilmott, 19 U. C. R, 73. If the creditor
by arrangement with the officer, in consideration of some responsibility
incurred by him, delays his right to immediate payment of money col-
lected, the sureties are discharged : Victoria M. F. Ins. Co. v. Davidson,
3 0. R. 378 ; but mere acquiesence in irregularities will not, in itself, effect
a release : Mayor of Durham v. Fowler, 22 Q. B. D. 394 ; Shepley v.
Hurd, 3 A. R. 649 ; Pirie v. Wyld, 11 O. R. 422; but any extension of
time to the debtor, after judgment against the surety, will not release the
latter ; nor will such a release be effected if the debtor agrees to obtain the
sureties' consent : Duff v. Barnett, 17 Gr. 187 ; nor if the creditor reserves
his rights against the surety: Hall v. Thompson, 9 C. P. 257; Bell v.
Manning, 11 Gr. 142. Such reservation may be shown by oral evidence :
Currie v. Hodgins, 42 U. C. R. 601 ; Bank of Montreal v. McFauI, 17 Gr.
234. If one of the sureties be released the other will not be liable:
Evans v. Bremridge, 2 Jur. N. S. 134.
Section
35
•i! M I
30
FREEHOLDERS.
Section But the court would endeavour to construe such release as a covenant
35 not to sue : Dewar v. Sparlint;, is Gr. (533 ; the effect of which is not to
release the other : Duck v. Mazen, (1892) 2 Q. B. 511 ; see Wolmershausen
v. Wolmershausen, 62 L. T. 541.
Se/eral actions. — The liability of such surety is limited to the
amount specified at the foot of the covenant. The court will not, how-
ever, restrain proceedings instituted against the surety, notwitlicttanding
several actions had been brought against him, and the aggregate amount
sought to be recovered greatly exceeds the amount of his liability :
(^raig V. Milne, 25 Gr. 259 ; Canada Guarantee Co. v. Milne. 25 Gr. 261.
Where several executions have been obtained, an order may be made in
Chambers that upon payment to the sheriff of the amount of the sureties'
total liability and the costs, further proceodings will be stayed : Sinclair
V. Baby, 2 P. R. 117. Relief probably could be obtained by a surety
admitting his liability in whole or in part under the Rules respecting
Interpleader : see Consolidated Rules 1141, 1150, 1153, 1154 ; McElheran
V. London Masonic Ben. Assn. 11 P. R. 181 ; Reading v. School Board of
London, 16 Q. B. D. 686 ; Anderson v. Barber, 13 P. R. 21 ; Leah v. Order
of Chosen Friends, 14 P. R.; 27 L. J. N. S. 94.
Contribution. — Every surety who pays money is entitled to contribu-
tion from every other surety : DeColyar on Guarantees, 2nd Ed. 305-321;
Berridge v. Berridge, 44 Ch. D. 168 ; Re Macdonald. Ex parte Grant,
W. N. (1888) p. 130 ; and may enforce the judgment against the other for
his just proportion : R. S. O. c. 122, ss. 2, 3, 4.
Death of Surety. — Upon the death of a surety, the officer must give
anew a like security within one month from notification by the County
Judge : see section 40. Until the new appointment, the personal represen-
tatives of the surety will be liable : R. v. Leeming, 7 U. C. R. 306 ; Pro-
visional Corp. of Bruce v. Cromar, 22 U. C. R. 321 : see, however,
DeColyar on Guarantees, 2nd Ed. 348.
Riglits of Surety against officer.— The surety will be entitled to
complete indemnification by the officer, and to all securities held by the
creditor, including any judgment against the officer, though obtained in
the same action : R. S. O. c. 122, ss. 2, 3, 4. The judgment may be
inforced without obtaining an assignment of it. In ve McMyn, Light-
bown V. McMyn, 33 Ch. D. 575. The surety is entitled to interest : Petre
v. Duncombe, 2 L. M. & P. 107 ; but cannot recover the costs of defence
unless authorized by the officer to defend : Gillett v. Rippon, Moo. & M.
406; unless his defence was reasonable: LeBlanche v. Wilson, 21 W. R.
109.
Statute of Limitations. — If the action against the officer be barred
under section 290, no action can be maintained against the sureties :
Pearson v. Ruttan, 15 C. P. 79.
Freeholders.— The sureties may be either legal or equitable free-
holders. An overdue mortgage on a man's land would be no bar if the
equity of redemption should be worth the amount prescribed. A free-
holder is one who is seized of an estate or interest in lands or tenements
which may endure for ever or is limited to endure for life or lives, or for
some uncertain period that may last for his life or for some other person's
without being confined to a limited number of years : Smith's Real and
Personal Prop., 6th Ed., sec. 360. Persons in possessions of land, under
contracts for the acquisition of the freehold thereof upon the fulfilment of
certain conditions, are not freeholders : Re Flatt and Prescott, 18 A. R. 1.
As to what is an equitable freeholder see, per Osier, J. A., 18 A. R. 18.
Although not freeholders of the county the sureties would be liable :
Parks V. Davis, 10 G. P. 229. They are also liable although their prin-
his
us
aiu
of
of
COVENANT TO BE FILED.
m
•cipal has neglected to execute the covenant : Miller v. Tunis, 10 C. P. 423 ; Secttons
so, also, if the covenant has not been filed : Parks v. Davis, siijjra. 36-36
Residents. — Where there is nothing to shew that the word is used in
a more extensive sense, " resides " denotes where a person " eats, drinks
or sleeps, or where his family or his servants eat, drink and sleep":
R. v. North Curry, 4 B. & C. 959, per Bayley, J. It has a variety of
meanings, according to the statutes in which it is used : see notes to sec.
81, punt.
"The cevm ' residitnt' does not necessarily import permanence, nor
yet any definite stay " : per Draper, C.J., LaPointe v. G. T. R. 'iC) U. C. R.
487 ; but it is submitted that it here means permanently resident.
If the sureties are not resident, they are nevertheless liable : Pearson
v. Rattan, 15 C. P. 79.
Within the county. — i. e., county or union of counties as the case
may be.
In such sums — Formerly it was held to be the duty of the Judge to
fix the amount for which tlie sureties became bound, before the clerk or
bailiff entered on his duties, and if the Judge should fail to perform his
duty under this section, an action was maintainable against him, but not
unless there was actual damage : Parks v. Davis, 10 C. P. 229. But the
Act has since been amended {see sec 31), so tliat the responsibility
which formerly attached to the Judge is now merely " judicial," and
not "administrative."
The sums in which the sureties are bound, should be regulated by the
probable amount of business in the particular court. The usual practice
is to require two sureties, but when the amount is large, it is not unusual
t'/ have three or four : 8 U. C. L. J. 121. Due regard should also be had
to the increased jurisdiction of the court.
Under his hand. — The approval must be in writing : Wilson v.
Wallani, 5 Ex. D. 155. The Judge usually approves and declares the
covenant sufficient in his own hand writing, but it could be done in hif
name by the hand of another in his presence : Blades v. Lawren'^.e,
L. R. 9 Q. B. 374.
Sufficient. — The Judge should cai-efully examine the covenant, to see
that it is a substantial (10 C. P. 424) compliance with the statutory
form. It is not necessary, but it would be prudent to require affidavits
of execution of the covenant and of justification of the sureties : R. S. O.
c. G2, s. 12. For forms see Schedule of special forms. If the name of
some proposed surety should have been struck out and another substituted,
the Judge should reject the covenant ; for if the other surety signed before
the cham^e he would be released : Hansird v. Lethridge, 8 T. L. R. 346;
and the public are entitled to a covenant free from possible objections :
Jones v. Macdonald, 14 P. R. 535.
an. Before a clerk or bailiff enters upon the duties of Before
'■ ^ clerk or
his office, the covenant of himself and sureties, approved ^^^l^^ *"■
as aforesaid, shall be filed in the office of the Clerk of the ^*'' ^""«/'
' covenant
Peace in the county in which the Division Court is situate ; ^j^^ c\er)t.
and for filing and granting a certificate thereof, the Clerk peacl.
of the Peace may demand from the clerk or bailiff the sum
of SI. R. S. O. 1877, c. 47, s. 28.
'pi
IS
1^1
llfl
32 PROOF OF COVENANT.
BectlonB A newly appointed clerk or baili£f must be particular not to do any-
36-39 thing of an official nature until his covenant, duly approved and declared.
sufficient, has been filed with the clerk of the peace for the cjunty.
Properly the covenant should be executed by the clerk or bailiff ; but
his omission to do so does not discharge the sureties who have executed
it : Miller v. Tunis, 10 C. P. 423 ; Rastall v. The Attorney-General, Ig
Gr 138.
No paper is properly filed until marked " filed " by the public officer :
Campbell v. Madden, Dra. R. 2. But see R. v. Gould, 6 O. S. 26.
Covenaut
to be avail-
able to
Certified
copy of
covenaut
to be re-
ceived as
evidence.
37. The covenant shall be available to and may be
suitors etc ^^^^ upon in any Court of competent jurisdiction by any
person suffering damages by the default, breach of duty
or misconduct of such clerk or bailiff. R. S. O. 1877, c. 47,
s. 29.
In any CouFt.— The question of which court, depends on the amount
claimed, and the nature of the action ; and if in the Division Court, also
the place where the cause of action arose, or where the defendants
reside.
See note to sec. 35, " Scope of the Covenant,"
88. A copy of the covenant, certified by the Clerk of
the Peace, shall be received in all Courts as sufficient
evidence of the due execution, and of the contents thereof
without further proof. R. S. O. 1877, c. 47, s. 30.
For form of certificate see Schedule of Special Forms.
All Courts. — This applies to criminal as well as civil courts: see
B. N. A. Act, sec. 129.
Without further proof. — This mode of proving the covenant is only
cumulative evidence, not substitutionary: Taylor on Evi. 8th Ed. 1319.
See also Lynch v. O'Hara, 6 C. P. 259 ; Graham v. McArthur, 25 U. C.
R. 478 ; Warren v. Deslippes, 33 U. C. R. 59. See also notes to sec. 45.
9^9. (1) In an action, or proceeding against any person
as the surety of a clerk or bailiff, the entries in the books
required by law to be kept or which were so kept by such
clerk or bailiff shall be prima facie evidence against the
surety.
(2) For the purposes of this section the words " clerk
or bailiff" shall be held to include a person who having
been a clerk or bailiff has ceased to be such clerk or bailiff.
48 V. c. 14, 8. 9.
The entries here mentioned, are only prima facie evidence, and may
be contradicted if untrue. Prior to the introduction of this section, the
admissibility of entries in the books kept by a Division Court clerk or
bailiff, in an action against his sureties was doubted. It was held, in
Entries of
clerk or
bailiff
evidence
against
surety.
DEATH OR WITHDRAWAI ')F SURETY.
33
Middlefield v. Gould, 10 C. P. 9, that Buch entries were admissible Sections
iif^ftinst the sureties. In Victoria M. F. Ins. Co. v. Davidson, 8 O. R. 39-41
;}78, tlie correctness of the law in Middlefield v Gould was questioned,
but the authority of that case was recognized in The Corp. of VVelland v.
Brown, 4 O. R. 217, in which entries made by a town collector of taxes
in his roll, were admitted as evidence against his sureties. It was also
held in a recent Irish case, that the entries made by a rate collector in
the accounts kept by him as such collector, were admissible in evidence
a<,'ainst his sureties : Abbeyleix Guardians v. Sutcliffe, 20 L R. Ir. 332.
This section now settles that entries in the books " required by law to be
kept, or which were so kept by such clerk or bailiff," are prima facia
evidence against the surety.
40- If a surety in such covenant dies, becomes resident if surety
■out of Ontario, or insolvent, the County Judge sliall notify smety to
the clerk or bailiff for wlioni such person became surety, "isiied,
of such death, departure or insolvency, and the clerk or
l)ailift* shall wH.hin one month after being so notified, give
anew the like security, and in the same manner as herein-
before provided, or forfeit his office of clerk or bailiff!
R. S. O. 1877, c. 47. s. 31.
Resident out of Ontario. — See note to sec. 35 and notes to sec. 81.
Insolvent. — Thei-e is no provision in the Act or Rules for ascertaining
the fact of insolvency ; and difficulties may be occasioned in acting upon
this section: tee Temple v. Stock Exchange, 8 O. R. 705.
Where a contract was to terminate in the event of the insolvency of
the vendee, it was held, that insolvency meant a general inability to pay
debts, and not taking the benefit of an Insolvent Debtors' Act : Parker
•V. Gossage, 2 C. M. & R. G17 ; Biddlecombe v. Bond, 4 A. & E. 332.
One month.-^The month would not commence to run until the day
after notice was given : R. v. Justices of Middlesex, 7 Jur. 396 ; McLean
V. Pinkerton, 7 A. R. 490; Radcliffe v. Bartholomew, (1892), 1 Q. B. 161.
Forfeit his office. — By neglect of the officer to furnish the fresh
security his office becomes forfeited,
41. [Any surety foi a clerk or bailiff" who intends to Procedure
W 1161*6
"withdraw from his responsibility may give notice in sureties
of clerk or
writing of such his intention to the clerk or bailiff: as thebaiiiffdis-
1 T 1 PI continue
case may be, and to the Judge of the county court, which suretyship,
notice may be served personally or left with some grown
up person at the office or place of residence of the person
to whom it is addressed, or may be deposited in Her
Majesty's post office pre-paid and registered and addressed
to such person at his usual post office address ; and in such
case the Judge shall forthwith on receipt thereof duly
notify such clerk or bailiff", and the clerk or bailiff* shall
D.C.A. — 3
1 111 i
Wlii
34
ACT RESPECTING PUBLIC OFFICERS.
41-42
^^Ailia' under penalty of forfeiture of his office (in addition to tlie-
suspension hereafter mentioned) furnish the security of a
new surety in lieu of the surety so giving notice, and shall
have the necessary new bond or covenant approved by the
Judge and completed within one month after such notices
have been so given to him and the said Judge ; and in case
such bond or covenant shall not be so approved and com-
pleted within such month, the said Judge shall forthwith
suspend such clerk or bailiff and report sucli suspension
and the cause thereof to the Provincial Secretary and the
Inspector of Division Courts, and all accruing responsibility
on the part of the person giving such notice shall cease
from and after the expiration of five weeks from the day
on which such notices were so given, or the later of such
notices if riot given on the same day.] 55 V. c. 11, s. 2.
The original provision for the relief of a surety was repealed by 55-
Vic. (O.), c. 11, B. 2, and the one here given substituted for it.
Any surety. — See notes to section 37.
Notice in writing. — See notes to section 93.
iJay be served. — See notes to sections 81, 99 and 101.
Within one month. — See notes to section 40.
At the expiration of five weelis. — The liability, except as to all past
transactions and matters, ceases at the expiration of five weeks from the
time of giving notice.
See " Scope of the covenant" notes to sec. 37.
Sects, 15-20
of Rev.
Stat. 0. 15
to apply to
securities
given by
clerks and
baili£Fs.
Lieut.-Gov-
ernor may
remit
penalty iu
certain
cases.
or may ex-
tend time
for giving
security,
etc.;
42. Sections 15 to 20, both inclusive, of The Act
Tespectinf) PiMic Officers, shall, with the substitution of
"The Judge of the Court" for "The Lieutenant-Gov-
ernor," apply to securities given by a clerk or bailiff of a
Division Court. R. S. O. 1877, e. 47, s. 33. See also Cap..
15, ss. i^Jr27.
The sections referred to in chapter 15, B. S. O., have reference to the
security to be given by a public officer, and are made applicable to
Division Court officers. The following are the sections :
15. (1) The Lieutenant-Governor in Council may remit the forfeiture
or penalty in any case in which the failure to give security, or to register
and deposit any bond or security under this Act, has not arisen from the
wilful negloct of the person bound to give, register or deposit the same.
(2) If it appears to the Lieutenant-Governor that the period hereinbe-
fore limited for giving the security of a new surety as aforesaid is, in
consequence of particular accidents, casualties, or circumstances, insuffi-
cient, 01^ that by reason of the distance or loss of letters, or illness, or the:
LIABILITY OF FORMER SURETIES.
35
refusal of any surety to give the security , or of such surety not being Sections
deemed eligible and being rejected, or any other accident or casualty, 42-43
further time would be necessary to enable the security of such new
surety to be given, the Lieutenant-Governor in Council may allow such
further period for giving the security of such new surety as appears to
him reasonable and proper.
(3) But such extended period shall in no case exceed two months but not
beyond the period allowed by this Act, and the precise period proposed to V^^^ *^*°
be allowed, together with the special grounds for allowing the same, shall months,
be eitlier entered in the book in which the original security has been and an
registered, or endorsed on the back of the original bond or other security J'"**"y .
itself ; and the person required to give the security of such new surety must ijq
shall not be subject to any forfeiture or penalty for not giving the same made,
within the time limited by this Act, if he gives it within the extended
period so allowed as aforesaid. ' R. S. O. 1877, c. 15, s. 15.
16. The Lieutenant-Governor may ai^pvove of the security given by
any public officer or the affidavit of justification made by his sureties
and filed by him, although the same has been given or filed after the time
limited by this Act ; and in such case the office or commission of such
public officer shall be deemed not to have been avoided by such default,
but to have remained and to remain in full force and effect. R.S.0. 1877,
c. 15, s. 16.
17. No act of any public officer of this Province whose security has
been given, or registered, or deposited, or the affidavit of justification of
whose sureties has been filed after the time limited by this Act, shall, by
such defanlt, be void or voidable. R. S. O. 1877, c. 15, s. 17.
Security
may bo ap-
proved,
although
Riven after
time
limited.
Acts not
void by
delay ia
giving
security,,
etc.
18. Where the securities of the principal and sureties have been Securities
executed at different times (whether they were taken in one and the^?^*"J*^^at
same bond, deed or other instrument, or in different ones), the period times^"
limited for registering and depositing such securities shall be estimated within
from the time of execution thereof by the person who was the last to what time
execute the bond, deed or other instrument, or the last bond, deed or tei-ed *^^^'^'
other instrument, as the case may be. R. S. O. 1877, c. 15, s. 18.
19. No neglect, omission or irregularity in giving or receiving the Neglect,
bonds or other securities, or in registering the same within the periods or vacat'e'
in the manner prescribed by this Act, shall vacate or make void any bond or
bond or security, or discharge any surety from the obligations thereof, discharge;
R. S. (>. 1877, c. 15, s. 19. ''"'^'>'-
Proper
oflicer to
register
and de-
posit
bonds,
althoughr
time ex-
pired, but
not to
exempt
from
penalty.
20. All bonds or other securities hereby required to be registered and
deposited, shall be I'egistered and deposited by the proper officer, notwith-
standing the period prescribed for registering and depositing the same
has expired ; but no registering and depositing of any bond or other
security shall be deemed to waive any forfeiture or penalty, or shall
exempt the person on whose behalf the same are registered and deposited,
from any forfeiture or penalty, under any of the provisions of this Act.
R. 8. O. 1877, c. 15, s. 20.
4J$. Nothing hereinbefore contained shall discharge or
exonerate any of the parties to such former covenant from
their liability on account of any matter done or omitted
before the renewal of the covenant as aforesaid. R. S. O..
1877, c. 47, s. 34.
L.iability of
former
sureties..
.
I .
36
CLEHK TO ISSUE AF.L SUMMONSES.
Sections It ia submitted that this secticm in only declaratory of tho Common
43-44 Law: U. <'.r. rel. Flanagan v. McMahon, 7 U. O. L. J. 155 ; sec also
y U. C. L. J. 10. The taking of a fresh covenant could not discharge
any liability on the former one.
See also notes to section iS7.
Clerk's Dalies.
Clerk to 44, Tlio clei'k hIuiII isHue all suniinonHes, which sum-
iBsue Hiim-
monses nioiises shall be by him filled up and shall be without
and fur- _ _ "^ _ •••
"'*'? ^ blanks either in date or otherwise at the time of delivery
copies, etc. _ _ ^ _ "^
for service ; he shall also furnish copies of the same with
the notice thereon, according to the form prescril)ed by
the General Rules or Orders from time to time in force
relating to Division Courts. R. S. O. 1877, c. 47, s. 36.
Issue all summonses. — The summons is the commencement of the
action : (Rules \) to 17 inclusive) and no valid decision or judgment can
be given unless a summons is issued and served (Thorburn v. Barnes,
L. 11. 2 C. P. at p. 401) or waived by the defendant's appearance :
Merchants Bank v. Van Allen, 10 P. Pt. .W8 ; B. v. Smith. L. R. 1 C. C.
110; Blake v. Beech, 1 Ex.D. 320 ; Stoness v. Lake, 40 U. C. B. 320 at p.
^21, In Bonaker v. Evans, 16 Q. B. 171, Parker, B., says: "No propo-
sition can be more clearly established than that a man cannot incur the
loss of liberty or property for an offence, by a judicial proceeding, until
he has had a fair opportunity of answering the charge against him, unless
indeed, the Legislature has expressly or impliedly given an authority to
act without that necessary preliminary." In Cooper v. The Board of
Works for the Wandsworth District, at p. 190 of 14 C. B. N. S., Willes,
J., says : " I apprehend that a tribunal which is by law invested with
power to affect the property of one of Her Majesty's subjects, is bound to
give such subject an opportunity of being heard before it proceeds, and
that that rule is of tmiversal application and founded on the plainest
principles of justice :" see also BuUen v. Moodie, 13 C. P. 126 ; 2 E. & A.,
379 ; Nicholls v. Cumming, 1 S. C. R. 395 ; R. v. Cheshire Lines Com.,
L. R. 8Q. B. 344; R. V. Archbishop of Canterbury, 1 E. & E. 545;
Tucker v. Collinson, 16 Q. B. D. 562 ; R. v. College of Physicians, 44
U. C. R. 146 ; Marshall v. McRae, 17 A. R. 139 reversed, on the construc-
tion of the agreement, 19 S. C. R. 10.
A summons should not be issued by the clerk, where clearly the court
has no jurisdiction. It is no part of his duty to enter into nice questions
■of jurisdiction ; but it would be his duty to see that the process of the
court is not used for improper purposes or in an illegal manner. Should
a pei*8on, for instance, enter a suit against a defendant alleged to be living
in the city of New York, a clerk should not receive it nor issue a sum-
mons. A resident of a foreign jurisdiction cannot be sued in our
Division Court : Ontario Glass Co. v. Swartz, 9 P. R. 252 ; In re Guy v.
G. T. R. Co., 10 P. R. 372. It may be that a defendant might waive the
absence of jurisdiction created by non residence by appearing, and not
raising the question : In re Guy v. G. T. R. Co., 10 P. R, 372 ; Hambly v.
Betteley, 6 Q. B. D. 63; and especially at p. 65 per Selborne. L.C.
If any Division Court had jurisdiction against one residing out of
Ontario the question would be different : Re Mead v. Creary, 32 C. P. 1 ;
.Jie Knight v. Medora, 14 A. R. 112. See also section 70 and notes.
CLEUK TO KEEP RECORD OF WRITS.
»r
Delivery for service.— It should be a perfect process when delivered Sections
to the officer for service. 44-45
The duties imposed on the clerk are imperative and he is bound to
perform them at the risk of a mandnmus : It. v. Fletcher, 2 E. & B. 279 ;
In re Linden v. Buchanan, 29 U. G. R. 1.
The notice thereon. — See Forms of Summonses and Rule 15.
f
45. The clerk shall cause a note of all summonses, cierk to
keep a
all notices filed by any party to the action, orders, judg- '^"^"/^^'^ °j
ments, executions and returns thereto, to be from time toJ"'^K'"®"*»-
time fairly entered in a book to be kept in his office ; an<l
shall sign his name on every page of the book, and the
signed entries, or a copy thereof certified as a true copy
by the clerk, shall be admitted in all Courts and places as;
evidence of such entries, and of the proceedings referred
to thereby, without further proof. R. S. O. 1877. c. 47,
s. 37 ; 49 V. c. 15, s. 5.
Shall sign his name. — This is imperative, and its omission is one of
the most serious cases of neglect on the. part of the clerk. If omitted,
perhaps neither the original entries, certainly not copies, could be given
in evidence. The statute says, " such signed entries " : see '^ . v. Rowland,
1 F. <^ F. 72. The object is to have the clerk not only cause a note of all
summonses, ordersi, judgments, executions and returns thereto to be, from
time to time, fairly entered in the Procedure Book ; but also, all notices,,
filed by any party to the action to be entered there.
Each page of the Procedure Book should be signed by the clerk. A»
soon as an entry is made on a page, such page should be signed by the.
clerk.
Certified copy to be evidence. — For f .m of certificate, see scheduler
of forms.
This section is a pretty close transcript of section 111 of the English
statute of 9 & 10 Vic. cap. 95 ; continued by s. 28, of The County Courts
Act, IS88, 51 & 52 Vic. c. 43. It has been decided under that Act, that a
minute of the proceedings made by the clerk pursuant to this provision, is
conclusive evidence of them, even though the Judge gives evidence to the.
contrary : Dews v. Riley, 11 C. B. 434. The clerk's book, or a certified:
copy of entries from such book, is the best, and therefore the only evidence'
of proceedings : R. v. Rowland, 1 F. & F. 72, per Bramwell, B.; Roscoe's.
Crim. Ev., 11th ed. pp. 3 and 160. An tntry in the Procedure Book„
" struck out for want of jurisdiction on the ground of a disputed titles
having been sworn to," is not evidence of a judgment in replevin : Tubby
v. Stanhope, 5 C. B. 790. The entries made by a clerk in pursuance of
tnis section are evidence against the sureties of such clerk : Middlefield
v. Gould 10 C. P., at page 14 : tee Carmarthen and Cardigan Ky. 06.
V. The Manchester and Milford Ry. Co., L. R. 8 C. P., at page 691. per
Bovill, C.J.; sec. 39 and notes.
» !
38
CLERK TO ISSUE EXECUTIONS,
••etloa
46
ClerkH to
isBtie ex-
ecutions,
tax coHts
and koep
account of
flnoB, otu.
40. Tlie clerk shall also issue all warrants and writs
of execution filled up and without blanks; he shall tax
costs, 8ul)ject to the revision of the Judge, register all orders
and judgments of the court, and keep an account of all
Hues payable or paid into court, and of all suitors' moneys
paid into and out of court, and shall enter an account of all
such fines and moneys in a book to be kept by him for
that purpose, which book shall be open to all pei*8ons
<lesirous of searching the same, and shall at all times be
accessible to the Judge and Inspector. R. S. O, 1877, c. 47,
«. 38.
Taxation of costs. —S^et! section 207 and notes thereto, as to the ques-
tion of costs.
" As soon after the court as possible, the clerk should receive from the
successful party an affidavit of his disbursements to witnesses. The
affidavit can be made before the clerk of any Division Court und
forwarded by mail or otherwise to the clerk in whose court the judj^ment
was rendered, and may be by the party or his a^ent. At latest, the
clerk should be put in possession of it the day before the execution is due,
according to the order of the court ; as he has commonly fjeneral direc-
tions at the time of entering the suit, to proceed and collect the amount
claimed, which dispenses with a special direction to su^ out execution,
when the time given by the Judge has expired " : 1 U. C. L. J. 81. For
form of affidavit of disbursements, see Form 1 12. Where execution is
" forthwith," the clerk should afford the successful party a reasonable
time in which to put in this affidavit; and in case of a nonsuit or judg-
ment for defendant, the defendant is not, it is submitted, restricted to
time. A viandimits will lie, to compel a clerk to issue execution : B.
V. Fletcher, 2 E. & B. 279.
It is submitted that the proper practice for revision of taxation is for
the party dissatisfied to give notice to the opposite party and the clerk
of the court of his intention to have the Judge revise the taxation of costs
on a certain day and hour. A reasonable time should be allowed. The
papers in the case should be laid before the Judge, and in the event of
the parties not appearing, an affidavit of service of the notice of revision.
Payment of costs without protest does not prevent a revision : Korraann
V. Tookey, 6 P. R. 112. If an affidavit of payment of witness fees should
be filed, and it should appear on revision, that they had not been paid,
they would be disallowed : Hornick v. Tp. of fioraney, 11 C. L. T. 329.
Of course the Judge could revise the costs on summons or appoint-
ment made by him. The clerk should exercise his best judgment on
taxation, and not leave for the Judge on revision, that which he should
properly do himself : Simmons v. Storer, 14 Ch. D. 154 ; Hargreaves
v. Scott, 4 C. P. D. 21.
JBnter an aeoount.— 5ee Form 5.
ACCOUNT OF FINES TO BE MADE BY CLERK.
39
4'7. The clerk of every Division Court shall, from *^*il**^'
time to time, as often as required so to do by the County —
Orown Attorney of his county, and nt least once in every '^""v^*" *°
three months, deliver to him, verified l^v the affidavit of c*"?*"
' ' Attorney
the clerk sworn before the Judge or a Justice of the Peace ^ceoy„j ^^
of the county, a full account in wnf'iig of all fin '^ levied*^"**"
by the court, accounting for and deducting V\c reasonable
expenses of levying the same, and any jiilowance which
the Judge may make out of such fine, in pui-suance of the
power hereinafter given. R. S. O. 1877, c. 47, s, 40.
48. The clerk of every Division Court, when required fiorks to
by the Judge, shall, from time to tnne, furnish hnn with a JndRo with
>' ... . , ^ verified
full account, in writing, verified by the oath of the clerk, account of
' o' ^ > inonoys
sworn before the Judge or a Justice of the Peace, of the J^'{j[''j," "^"^
moneys received into and paid out of the court by any^*""^'-
suitoi-s or other parties under any orders, judgments or
process of the court, and of the balance in court belonging
to any such suitors or parties. R. S. 0. 1877, c. 47, s. 41.
This refers to moneys received from all sources as well as fines and
•forfeitures.
40. (1) The clerk of every Division Court shall, annu-
.ally in the month of January, make out a correct list of all
sums of money belonging to suitors in the court, which
have been paid into court and have remained unclaimed for
;six years before the last day of the month of December
then last past, specifying the names of the parties for whom
or on whose account the same were so paid.
(2) A copy of such list shall be put up and remain at
.all times in the clerk's office and, during court hours, in
.some conspicuous part of the court house, or place where
the court is held. R. S. O. 1877, c. 47, s. 43.
[ J.S to return of fees by Division Court Clerk, see cap.
15, ss. 9.S, 29.]
In the month of January. — That is during that month, and properly
mot before it commences nor after it expires : Beaty v. Fowler, 10 U. C. R.
.382.
A correct list.— /Se« Form No. 116.
Clerk an-
nually to
ninke'list
of suitors'
money in
Court.
Copy of
list to be
put up in
court room
and in
clerk's
office.
11
I
u
40
COUNTY CROWN ATTORNEY TO HOLD BOOKS.
Seotlon
50
m
jHj
laBj
" ^^fl
ir
^1
■
r
1^
Upon
resigna-
tion, re-
moval, or
death of
Clerk.
County
Crown
Dli^poHal of Books and Papers when
Clerk Changed.
^O. (1) All accounts, moneys, books, papei'S, and other
matters in the possession of the. clerk by virtue of or apper-
taining to his office, shall, upon his resignation, removal or
death, immediately become the property of the County
A**^rneytoQi.Q^yj^ Attorney of the county in which the division is
of* papers, situate, who shall hold the same for the benefit of the public
until the appointment of another clerk, to whom he sliall
deliver over the same, but not until such clerk and his
sureties have executed and filed the covenant hereinbefore
mentioned. R. S. O. 1877, c. 47, s. 44.
Puniah- (2) No ))erson shall wrongfully hold or get possession
person of such accouuts, luoueys, books, papers and matters afore-
hoidinK said, or any of them ; and upon the declaration in writing
moneys, >' / ^ ...
books or of the Judffc presidiiiQ- over the Division Court for the
papers. . .
time being, that a person has obtained or holds such wrong-
ful possession thereof, and upon the order of a Judge of
the High Court, founded thereon, such person shall be
arrested by the sheriff of any county in which he is found,,
and shall by such sheriff be committed to the common gaol
of his county, there to remain, v/ithout bail until the Higk
Court, or a Judge thereof, is satisfied that such person has
not and never had nor held any such matters or moneys, or-
that he has fully accounted for or delivered up the same
to the County Crown Attorney, or until he be otherwise:
discharged by due course of law. C. S. U. C. 19, s. 48.
[(3) Upon the resignation, removal or death of the
clerk of a Division Court, and until such time as his.
successor is appointed, the County Crown Attorney of the
county in which the division is situate, shall perform all
the duties, and shall be for the time being, and until the-
successor is appointed, the clerk of such Division Court.],
62 V. c. 12. 8. 4.
. Upon his peiignation. — See section 27 and notes.
Immediately. — It is submitted that from the object and context ot
this clause '' immediately," must here be read imtantly. See notes to-
County
Attorney
to act aH
clerk when
oMce of
clerk is
vacant.
BAILIFF TO SERVE ALL PROCESS.
4^
section 20, ante : Thcnipson v. Gibson, 8 M. & W. 281 : Forsclike v. Secttons
Stone, L. 11. 3 C. P. 607 ; Stroud, 365, ' 80-81
County Crown Attorney. — R. S. O. c. 79.
Sureties have executed.— Sc^e sections 36 and 37 and notes thereto.
Sub-sec. 2. — This sub-section li.a3 been taken from section 48 of the
Division Courts Act to be found as chapter 10 of what was the Consoli-
dated Statutes of Upper Canada.
This is a quasi-criminal proceedin},', and in the revision of the
statutes, it will be observed, that difficulty must have been experienced
in moulding the clause so as to hvina it within the authority of the
Provincial Legislature. It is submitted that it is within the powers of
the Provincial Legislature under sub-section lo of section 92 of the
/;. N. A. Act authorizing the Legislature to exclusively make laws f#r
the " imposition of punishment Dy fine, penalty or imprisonment for
enforcing any law of the Province made in relation to any matter
coming within any of the classes of subjects " over which the province
has jurisdiction : xee R. v. Hodge, 9 App, Cas. 117 ; R. v. Wason, 17 A. R.
'221. If ultra viies the original section would remain in force.
Wrongfully.— The gist of the offence consists in the word " wrong-
fully," that is, in the infringement of a right : R. v. Davies, 4 L. T. N. S.
059 ; R. V. Brent, 1 Den. C. C. 157 ; Mogul Co. v. McGregor, 23 Q. B. D.
598, at page 612 ; Stroud 899.
Orcksr of a Judge. — It must not be conditional : Chichester v. Gor-
don, 25 U. C. R. 527 ; Woltz v. Blakely, 11 P. R. 430.
Common gaol of the County. — Cannot be to the gaol of any other
county than that of the sheriff arref-ting him : Switzer v. Brown, 20 C. P.
193 ; In re Weatherly, 4 P. R. 28 . Schneider v. Agnew, 6 P. R. 338.
The person charged must either disprove the charge in the way pointed
out by this sub-section, or stand his trial or be discharged on Habeas
Corpui.
Sub-sec. 3. — This new sub- section imposes entirely new duties on the
County Crown Attorney, which would be enforceable by mandamus. See
notes to section 4. The County Crown Attorney is not required to give
security.
Duties of Bailiffs.
51. The bailiffs shall serve and oxecate all summonses, K^^^ffs to
' serve writs.
orders, warrants, and writs delivered to them by the clerk
for service, whether bailiffs of the court out of which the
same issued or not, and shall so soon as served return the
same to the clerk of the court of which they are respectively
bailiffs ; but, subject to the provisions of section 82, they
shall not be required to travel beyond the limits of their
division, or be allowed to charge mileage for any distance
travelled beyond the limits of the county in which the
court of which they are respectively bailiffs is situated
R. S. 0. 1877, c. 47, 8. 45.
42
BAILIFFS DUTIES.
m-
Section Duties of Bailiffs- — It is highly improper for the hailii? to canvas
SI parties for their votes in political elections : per Morrison, J., North
Victoria Election Case, 1 Hodgins' E. C. 612.
"Bailiffs should so regulate their proceedings that at pi*oper intervals
they may attend at the clerk's office to receive summonses intended for
service. Clerks should assist bailiffs of their courts in seeing that the
originals and the copies of summonses and claims correspond.
Every care should be given to ascertain where the several defendants
live, and if there be more than one person of the same name in the
locality, which person the summons is intended for. TJiis information
is usually given by plaintiffs to tlie clerk, or is noted in the claim handed
in for suit, and before the papers are taken from office, should be obtained.
In courts where che business is large, it will be absolutely necessary for
^e bailiffs to make out a list of the summones received with columns fcr
date and mode of service i it would otherwise be impossible to work to
advantage, or to make proper returns to the clerk : 2 U. C. L. J. 85.
A bailiff doubtless may cull in assistance, when necessary, in the execu-
tion of his duty; and every such assistant, acting under the direction
x)t his principal, will be within the protection of the statute, and be held
in law to be the principal's deputy while doing any particular act — as in
securing, keeping possession of property seized, or the like, under the
bailiff's direction ; indeed such assistants are recognized in several sec-
tions of the statute. Section 195 (now 285) provides that no action is to
be brought against a bailiff ' or against any person acting by his orders
and in his aid,' etc.; and in sections 184 (now 276),. 196 (now 286) and
197 (now 287) assistants are referred to. It does not appear essential to
"due service of the ordinary summons that it should be made by the
bailiff of the court ; if duly served bj any literate person it is appre-
hended it would be sufficient, though no charge could be taxed for the
service or mileage, unless effected by an authorized person. In practice
it is not unusual to appoint a person a bailiff {pro hac vice) to effect a
particular service, where the circumstances warrant such a course ; and
in that case the regular expense of service would be chargeable in the
usual way. But all procc:;s of execution and warrants must be executed
by the bailiff personally: " 9 U. C. L. J. 68 & 69.
A bailiff should not pursue too rigid or too lax a course in the per-
formance of his duty. He will best consult the interests of suitors and
observe his duty most who quietly but firmly performs his unpleasant
\vork, not with an oppressive hand, but in a kindly and becoming
manner, neither courting the favor of the creditor nor exciting the ill-
will of the unfortunate debtor. Reasonable forbearance will frequently
be the means of obtaining a debt, while harshness and severity will often
produce a fruitless execution.
Bailiffs cannot be too careful in seeing that their executions are
promptly executed and returned.
Service of Process. — The bailiff is made responsible for the service
and execution of all procesb, but he is not bound to travel out of his own
division. If he intends to refuse to serve or execute any process on this
ground, he should so notify the clerk and refuse to receive the same.
He has no rights in any other county, except the case falls within section
82. He may, however, effect service in another county, but cannot
charge mileage for any distance travelled beyond his county : Ladouceur
v. Salter, 6 P. R. 305.
Retam. — If not returned within six days after service, the bailiff
forfeits his fees (Rule 90). The six days excludes the day of service:
Young v. Higgon, 6 M. «& W. 49.
BAILIFF TO HAVE AUTHORITY OF CONSTABLE.
43
53. Every bailiff shall exercise the authority of ". eon- section
stable durinff the actual holding of the court of which he
« , PI Bailiff to
is a bailiff, with full power to prevent breaches of the peace, ^^^'^'''•'.^
riots or disturbances within the court-room or buildinjj in constable
~ during
which the court is held, or in the public streets, squares, or colfn^ °'
other places within the hearing of the court, and may, with
or without warrant, arrest all parties offending against the
meaning of this clause, and forthwith bring the offenders
before the nearest Justice of the Peace, or any other judicial
officer having power to investigate the matter or to adjud-
icate thereupon. R. S. O. 1877, c. 47, s. 46.
Constable. — As to what are " streets, squares or other places " within
this section : see Nutter v. The Accrington Local Board of Health, 4
Q. B. D. a75 ; R. v. Wellard, 14 Q. B. D 63 ; Attorney-General v. Toronto,
10 Gr. 437 ; Stroud 7(52. See also (1891) 2 Q. B. 212.
A bailiff has the authority of a constable in the performance of his
■duty under this section, but no greater authority.
The power of a constable to apprehend and detain offenders is much
greater than that of private persons. They may exercise all the powers
of the latter and their right to apprehend persons indicted for felony is
undoubted : 1 East. P. C. 298-300. Constables can do that which private
persons cannot do, apprehend persons on a reasonable suspicion of felony:
Hamuel v. Payne, Doug. 359 ; 1 East, P. C. 301 ; 2 Hale, P. C. 83, 84, 89.
It 1ms always been considered that a charge of felony made by a person
not manifestly unworthy of credit is sufficient to justify the apprehen-
sion : 1 East, P. C. 302. The peace officer should always make such in-
quuies as teaches him are best suited to ascertain the nature of the
•offence.
A constable is justified in arresting any person committing a breach
of the peace, or any offence punishable either by indictment or summary
conviction : R. S. C. c. 174, s. 24. He cannot arrest after a breach of
the peace, without continued pursuit, if all danger of an affray is
past : Roscoes Crim. Evi., 11th Ed., 246.
Private persons are sometimes bound to give aid and assistance to a
peace officer, and are liable to indictment if they refuse: R. v. Sherlock,
L. R., 1 C. C. 20. And if they assist they are protected equally with the
constable who is making the arrest : Pollock on Torts, 101, 102.
A constable is not excused if he arrest the wrong person. He must
lay hands on the right person at his peril, the only exception being on
the principle of estoppel, where he is misled by the party's own act :
Glasspoole v. Young, 9 B. & C. 696 ; Dunston v. Paterson, 2 C. B. N. S.
495.
A constable has no right to handcuff a prisoner before conviction un-
less he has attempted to escape, or it be necessary to do so to prevent him
from escaping : Hamilton v. Massie, 18 O. R. 685 ; Wright v. Court, 4
B. &. C. 596.
Breaches of the peace. — These are offences against the public, which
are either actual violations of the law, or constructively so, by tending to
make others break it : Wharton, 101.
|3)i
44
CLERKS AND BAILIFFS PAID BY FEES.
Sections
62-63
:»?■!■
11'
w^i ■
ll
Clerks and
bailiffs to
be paid by
fees.
Fees of
appraisers.
Table of
fees to be
hung up in
clerk's
office.
Riots. — A riot is defined to be a tumultuous disturbance of the peace
by three persons or more assembling of their own authority with an
■ intent mutually to assist one another against any one who shall oppose
them in the execution of some enterprise of a private nature, and after-
wards executing the same in a violent and turbulent manner, to the
terror of the people, whether the act intended were of itself lawful or
unlawful : Wharton, 650.
Disturbances. — Anything which would annoy or interfere with the
Judge, or any of the officers of the court, or others engaged in any busi-
ness before the court, would be a " disturbance " within the meaning of tliis
part of the section : Wharton, 243.
Squares. — It was held under the Statute 27 Geo. III. c. 28, s. 5, in
respect to the word " square," that such word meant all rectangular
figures only : Attorney-General v. Cast Plate Glass Co., 1 Anst. 3<L
But it is submitted that any open area in a city, town or village dedi-
cated to the uses of the public would be a " square " within the meaning
of this clause.
Within a Reasonable Time.— Toms v. Wilson, 4 B. & S. 455.
Nearest Justice. — This being a penal statute, must be construed
with reasonable strictness. In 11. v. Harvey, 1 Wils. "near "was so
construed in a penal statute, yet not equivalent to " next," the court
remarking that " there must be a reasonable vicinity of which tlie
court will judge."
In cities and towns where there is a police magistrate, he would be
the proper person : R. S. O. c. 72. Where the offence is one not
triable summarily, then of course he is to "investigate the matter"
only, but if the subject of summary conviction, then he should " adjudi-
cate " upon it. If the disturbances, etc., occur in the court-room, or
while the court is sitting, and amount to an insult to the administration
of justice, the Judge may exercise his power of committal under section
275 : Re Johnson, 20 Q. B. D. 68.
Fees of Clerks and Bailiffs, etc.
53. (1) The clerks and bailiffs shall be paid by fees, as
provided and allowed by the general rules or orders appli-
cable to Division Courts, heretofore in force or hereafter
to be made by the Board of County Judges, and approved
under the provisions of section 297 of this Act.
(2) Until otherwise provided by the general rules or
orders, the fees to be taken and received by appraisers
shall be as follows :
To each appraiser, during the time actually employed in appraising
goods {to he paid in first instance by the plaintiff and alloived in costs of
the cause Fifty cents per day.
R. S. O. 1877, c. 47, s. 47.
(3) A table of the fees shall be hung up in some con-
spicuous place in the offices of the several clerks. R. S. 0.
1877, c. 47, 8. 48.
OFFICERS FEES PAID IN ADVANCE.
45
Fees. — See notes to the tariff of fees of clerks and bailiffs. The table
of fees contains all the services for which clerks and bailiffs are entitled
to charge. No local tariff or user in any particular county can give any
additionar right : I« r« Dartnell and The Quarter Sessions of Prescott
and Russell, 2(5 U. C. E. 430; Rule 164.
Sub-Sec 3. — A copy of the table of fees should not only be hung up in
the clerk's office, but should be kept so hung up and exposed to the
public.
Sections
63-65
54. The fees upon every proceeding shall, on or before Fees to be
such proceedino;, be paid in the first instance by the plain- plaintiff or
'■ 1 ■ TT 'lefendant
tifi, or other party at whose instance the proceeding takes »« first
' ^ r o instance.
place. K S. O. 1877, c. 47, s. 49.
Proceeding. — It is submitted that tlie word " proceeding " here should
receive a liberal interpretation, and must be held to apply to every act
done by a clerk to which a fee is by the tariff' attached. For instance,
taxing costs has been held to be a " proceeding" under a statute not more
extensive in its meaning than this : R. v. The London, Chatham and
Dover Ry. Co., L. R. 3 Q. B. 170; Stroud, C17. This would include
a "proceeding" as well before judgment as after: Ross v. Fare-
well, 5 C. P. 101. See Meloche v. Keaume, 34 U. C. R. 600 ; Caspar v.
Keachie, 41 U. C. R. 599. Where the clerk is entitled to a fee which has
not been paid him, and which he may not have given credit for, the Judge
would probably refuse to hear the matter : 4 U. C. L. J. 81, 82. If tlie
clerk gives credit for fees, he trusts to the promise of the party and
waives the benefit of this section. It is submitted, however, that moneys
coming into his hands for a particular person would, as against tha',
person, be deductable from or chargeable with the fees so due by him to
such a clerk: 10 U. C. L. J. 291. A person entering a suit for another,
and becoming responsible for costs, should receive the money when made,
independently of any claim the clerk might have against the suitor. The
clerk is not bound to pay a defendant who has succeeded, his witness fees
out of money deposited by plaintiff towards costs : 4 U. C. L. J. 178. If
a clerk is indebted to a bailiff for fees in other suits, the bailiff has, on
that account, no right to withold moneys collected by him : Rule 97.
55. If the fees are not paid in the first instance by How
the plaintiff or party on whose behalf such proceeding is
to be had, the payment thereof may, by order of the Judge
be enforced by execution in like manner as a judgment of
the court, by such ways and means as any debt or damages
ordered to be paid by the court can be recovered. R. S. O.
1877, c. 47, 8. 50.
By order of the Judge. — This is a summary proceeding and must be
strictly exercised : Fletcher v. Calthorp, 6 O. B. 880-891. The defaulting
party must have an opportunity of being heard : See notes to section 44.
There should be a summons to shew cause : Bullen v. Moodie, 13 C. P.
126, 2 E. & A. 379. For forms of notice and order in such cases,
see appendix of forms hereto.
4G
BAILIFFS LIEN FOR FEES.
Sections There is nothing in the section to prevent the notice bein<:; made
0S-56a returnable at the Judge's Chambers in the county town ; but it is more
consistent with the spirit of Division Court law to make it returnable
at some sittings of the court in which the suit was entered or pfbceedin)^'
taken, or in the party's own division. The motion is usually made
on behalf of the clerk, and should be founded on an affidavit ut'
facts. If an order be made, execution may, after the entry of such
order in the Procedure Book, issue upon it, in the same way as in an
ordinary judgment : See notes to section 212. The notice should bj
served a reasonable time before its return. It is submitted that the law
regulating the time for service of summonses does not apply to a
case under this section. What is a reasonable time must depend on the
circumstances of each particular case. There should be an affidavit of
personal service of the notice or that it came to the knowledge of
the person for whom it is intended : Ward v. Vance, 3 P. J 1.30.
The order need not be served. No provision is made for costs
of this proceeding, therefore the order cannot include costs : Be Young,
14 P. R. 303.
The provisions of section 88 do not appear to apply to this proceed-
ing. It is not " bringing any action in the division of which he is the
clerk or bailiff," within the latter part of that section, to take this statu-
tory mode of collecting costs.
Bailiflf'8
lees to be
paid to
clerk
edition
issues.
50. At the time of the issue of the execution, the
bailiff's fees thereon shall be paid to the clerk, and shall by
^eforeex- ^jm \)q p^jj over to the bailiff, upon the return of the
execution, and not before, but if the bailiff does not become
entitled to any part, or becomes entitled to a part only, of
such fees, the whole or surplus shall on demand be by the
clerk repaid to the plaintiff or party from whon; ''i':^ lee«
were received. R. S. O. 1877, c. 47. s. 51.
This section is for the protection of the bailiff. What '• t 'e iUf;'s
fees thereon " may be is a matter of uncertainty. If lie li fiiul
nothing to seize his fees must be trifling ; mileage in such cases not
being allowed. Should he seize any property, it should be sufficient to
meet his fees. The clause, however, has more especial reference to a case
wiiere, after seizure and before sale, the case is settled between the
parties to the prejudice of the bailiff.
In an action against a bailiff and his surety for not returning an exe-
cution within the proper time, it is no answer, after the bailiff receive I
the execution without exacting pre-payment of his fees, to set up the
non-payment in defence of the action : Bank of Ottawa v. Smith, Ki
L. J. N. S. 223.
5CSa. [Where in any Division Court action a bailiff has
. seized goods under and by virtue of a writ of execution or
attachment, and the action is afterwards settled between
the parties thereto.or the defendant in the action makes an
assignment for the general benefit of his creditors, the said
tlu
m
OFFICERS NOT TO COLLECT ON COMMISSION.
4>r
I
bailiff shall until his fees and disbursements upon the said ^'Jff**"?*
writ are fully paid and satisfied, have a hen therefor upon
so much of the said jroods as will reasonably satisfy the
same, but in the event of a dispute as to the proper
amount of said fees and disbursements, the amount
charged therefor may be paid into Court until the proper
amount shall be certifieti by the Ju'lge, and on such payment
into Court the said lien shall cease and determine.] 52 V.
c. 12, s. 2.
This section provides for two cases : (1) settlement, (2) assignment
for benefit of creditors.
The bailiff must first make an effective seizure, which becomes inoper-
ative by the settlement or assifjnment. The assignment must, it is
submitted, be under R. S. O. c. 124, which takes precedence over execu-
tions. It has been held that section 9 of that Act is ultra vires of the
Ontario Legislature as regards executions from superior courts: Union
Bank v. Neville, 21 O. R. 152. No power is given to the bailiff to sell for
the realization of his lien. Without this provision the bailiff would have
no lien : Sneary v. Abdy, 1 Ex. D. 29!), and the creditor could not add
the cost of execution or bailiff's fees to his debt : Marquis of Salisbury
V. Kay 8 C. B. N. S. 193 ; In re Long, Ex parte Cuddeford, 20 Q. B. D.
31G,
♦>T. If the bailiff neglects' to return any process or exe- forfeit fees
cuticm within the time required by law, he shall for each negfects
such neglect forfeit his fees thereon, and all fees so forfeited wrVt "
shall be held to have been received hy the clerk, who shall
keep a special account thereof, and account for and pay
over the same to the County Crown Attorney, to be paid
by him over to the Provincial Treasurer, to form part of
the Consolidated Revenue Fund. R. S. O. 1877, c. 47, s. 52.
Within the time required by law. — See notes to section 220 as to
when an execution should be returned.
We have only to reiterate the opinion previously expressed, that
bailiffs should be vigilant in making return to process or execution with-
in the proper time, and where it is not done, the forfeiture of fees should
be exacted by the clerk. The latter may endanger his position by a dis-
regard of his duty in that respect.
5H. No clerk or bailiff shall directly or indirectly take cieik or
«^ •' baihffnot
or receive any commission, charge, expenses, fee or reward *« collect
for or in connection with the collection of any debt or^^i^^^o"-
claim which has been or may or can be sued in the court
for which he is so clerk or bailiff, except such fee^ as are
provided by any tariff of fees under this Act. 43. V. c. 8,,
8. 37.
i!
48
CLERK S EMOLUMENTS.
Sections Directly or Indirectly. — It Bcems that the addition or omisRion of
68-89 the words " directly or indirectly" to the offence of an officer of a cor-
poration bein^ " interested " in a contract with his corporation is imma-
terial : Todd V. Robinson, 14 Q. B. D. 739 ; but see Stewart v. Macdonald,
11 L.J.N. S. 19.
The language of the section is strict, and should be carefully ob-
served. The clerk and bailiff are strictly prohibited from enterinj^ into
any arrangement by which they are to receive a commission for Vv
collection of any debt or claim which might be the subject of a suit in
the court of which they are clerk and bailiff. The object of the section
is to prevent clerks and bailiffs from being collectors of debts. These
officers should be perfectly impartial, and it was four^l that such impar-
tiality could not be expected in one who was interested in a suit in
court beyond the due performance of his duty.
The execution of a landlord's warrant, or of a power of sale in a
chattel mortgage would not, it is submitted, be a contravention of this
section : Maxwell on Stats.
Fees to be *50. (1) Kvei'v Divisioii Court Clerk shall be entitled
retained ..
by Clerks to retail! to liis own use in each year all the fees and eniol-
f or their _ _ "^
own use. uineuts earned by hiin in that year up to .SI, 000 ;
(2) Of the furtlier fees and emoluments earned by every
Division Court Clerk in each year in excess of $1,000, and
not exceeding .$1,500, ho shall be entitled to retain to his
own use 90 per cent., and no more ;
(3) Of the further fees and emoluments earned by every
Division Court Clerk in each year in excess of $1,500, and
not exceeding .$2,000, he shall be entitled to retain to his
own use 80 per cent., and no more ;
(4) Of the further fees and emoluments earned by every
Division Court Clerk in each year in excess of $2,000, and
not exceeding $2,500, he shall be entitled to retain to his
own use 70 per cent., and no more ;
(5) Of the further fees and emoluments earned by every
Division Court Clerk in each year in excess of $2,500, and
not exceeding $3,000, he shall be entitled to retain to his
own use 60 per cent., and no more ;
(6) Of the further fees and emoluments earned by every
Division Court Clerk in each year in excess of $3,000, he
shall be entitled to retain to his own use 50 per cent., and
no more. 43 V. c. 8, s. 39.
IIETUIIN TO J'llOVINX'IAL TllEASURER.
49
Pees and emolaments earned.— The clerk ia entitled to ft 1,000 for
" his own use." This may mean net or gross earnin{;8, and the question
is whether it is intended that the clerk should first deduct from hisgroba -
receipts such necessary disbursements of his office as rent, tire, light,
cost of office books, etc., or make his return on gross i-eceipts? The
Government has taken the latter view, but whether it is correct or not
is an open question. Tlie following cases are referred to on the subject :
McCargar v. McKinnon, 1.5 Gr., 361 ; Lawless v. Sullivan, App.
Gas. 373; Asliworth v. Outram, 5 Cli. D. 923; Lovell v. Newton, 4
C. P. D. 7 ; Workman v. Robb, 7 A. K. 389 ; Mersey Docks Board v.
Lucas, 8 App. Gas. 891 ; Stroud, 379.
Besides the above, the following provisions are contained in *' An
Act respectinr) the fees of certain Public Officers," 55 V. c 17 : —
(2) Subject to the provisions of The Division Courts Act as to pay-
ments on gross incomes to the Provincial Treasurer, and to section 1
of this Act every Division Gourt clerk shall be entitled to retain to his
own use in each year his net income up to $1,500.
(3) Of the further net income of each year he shall pay to the Provin-
cial Treasurer for the purposes hereinafter mentioned, the following per-
centages on the net income over #1,500, viz. :
(a) On the excess over $1,500, not exceeding $2,000, ten per cent,
thereof.
{b) On the excess over $2,000, not exceeding $2,500, twenty per cent,
thereof.
(c) On the excess over $2,500. not exceeding $3,000, thirty per cent,
thereof.
(d) On the excess over $3,000, forty per cent, thereof.
The words " net income " are defined to mean, " the excess of all fees
and emoluments, including receipts in the current year, whether on
account of earnings and salary of such year, or of any former year or
years after this Act goes into effect, by an officer by virtue of all his
offices after deducting the disbursements incident to the business of the
office or offices held by him : section 1.
Sections
S9-60
urer of
ovince.
ISO. On the 15th day of January in every year every cg^j^ t^
Division Court Clerk shall transmit to the Treasurer of^oVrels^'
the Province a duplicate of the return required by section Pr
0(S of this Act, and shall also pay to such Treasurer for
the use of the Province such proportion of the fees and
euioluinents earned by him during the preceding year, as
under this Act he is not entitled to retain to his own use.
43 V. c. 8, s. 40.
A literal compliance with this section would seem to require that the
return should be mailed on tlie 15tli day of January in each year (see
Beaty v. Fowler, 10 U. G. R. 382), and neither before nor after that day.
The necessity for promptness in making this return, and the payment
to the Provincial Treasurer of the amount, if any payable, cannot be
too strongly u»-ged upon clerks throughout the Province.
D.C.A. — 4
5P
BectlonB
61-62
Appoint-
ment of
iiiBpector.
InapecMoii
of otllces.
BookH, otc
Officers
duties.
Lawful
Security
by clerks
and
bailiifs.
Report to
the
Lieuton-
ant-Gov-
ernor.
Po iver of
luspi'Ctor
in iiiakiu;^
inquiry
into con-
duct of
ollictrH.
APPOINTMENT OF INSPECTOR.
INSPECTOIl,
61. The Lieutenant-Governor may, from time to time,
appoint an inspector of Division Courts, who shall hold
office during- pleasure, and whose duty shall be :
1. To make a perscmal inspection of every Division
Court and of the books and court papers belonging thereto ;
2. To see that the proper books are provided, that they
are in good order and condition, that the proper entries and
records are made therein in a proper manner, at proper
times, and in a proper form and order, and that the court
papers and <locuments are properly classified and pre-
served ;
3. To ascertain that the duties of the officers
of the Division Courts are duly and efficiently per-
formed, and that the office is at all times duly attended to
by the clerk ;
4. To see that lawful fees only are taxed or allowed as
costs ;
5. When directed so to do by the Lieutenant-Governor,
to ascertain that proper security has been given by any
clerk or bailiff", and that the sureties continue sufficient ;
6. To report upon all such matters as expeditiously as
may be to the Lieutenant-Governor for his information
and decision. 43 V. c. 8, s. 23.
Proper Books. — These are the procedure book, cash book, debt
attachni3iit book (Rule 77) and the book of fees, charges and eraoluments
under section 68 of this Act.
At all times. — This means at all rcmonahle hours. It is sufjf^ested
that registrar's hours, from 10 o'clock in the forenoon until four o'clock
in the aften^oon, would be reasonable. The office should be open every
day, except Sundays and legal holidays, for the transaction of business.
Lawful fees.- The tariff and this statute prescribe all lawful fees.
See notes to section 53.
Proper security. — See notss to section 35.
tt!J. When the inspector considers it expedient to
institute an inquiry into the conduct of a Division Court
clerk or bailiff in relation to his or their official duties or
acts, it shall be lawful for the inspector to require the
clerk or bailiff, or other person or persons, to give evidence
INSPECTION OF BOOKS AND DOCUMENTS.
51
on oath, and for tliis purposo the inspector shall have the Sections
same power to sunnnon such officers, or other person or
persons, to attend as witnesses, to enforce their attendance,
and to compel them to produce documents, and to jjfive
evidence, as any Court has in civil cases. 4'i V. e. <S, s. 24;
48 V. c 14, s. 18.
A very wide discretion is here \i\ven to the inspector. It shonkl be
carefully exercised, and only after ho is satisfied that in the public in-
terests an investifjation is necessary. No preliminary vequirement is
necessary before the inspector makes this inquiry. It must necessarily
be after the officer has at least some general knowledf^e of what he is
chart^ed with havin<^ done or omitted to do, and he should have a fair
opportunity of explainin;^ his conduct or answering the charges by his
own evidence or otherwise.
The inquiry should not, it is submitted, be ex parte : nee notes to
sections 277, 27!). Whenever the inspector may deem it " expedient,"
the enquiry can be made by him, and all parties can be summoned to
give evidence before him.
An " inquiry " is not limited to what a man can see with his own
eves ; it signifies a judicial inquiry with witnesses : V.'enlock v. River
iJee Co., 19 Q. B. D. 155.
Duties or acts. — Tiie " inquiry" could only extend to the officer's
"oflicial duties or acts," and not to his private conduct, except in so far
as the same might injuriously affect his ofHcial position.
Summon such officers. — As to summoning persons to give evidence
and the consequences of disobeying a subpoena, .see Wilson's Jud. Acts,
;Ul-i{l().' The inspector has power not only to sunnnon the clerk or
bailiff, but any " other person or persons." Should the officer desire any
person summoned in his interests, it should be done, for the inquiry
sliould be full and complete on both sides. 'Jhe inspector would have to
draw up anil serve a summons, answering the place of a subpcena in
ordinary cases and have tiie same served on the persons required to attend.
If "books and documents" were required to be produced a duces ttcitm
clause would have to be inserted in the summons to the witness. See
notes to sections 131-1H4. It is suggested tinxt the inspector should take
proper notes of the evidence taken by him to be reported to Government.
^555. The Division Court clerks and liailift's shall, asBooks.etc,
often as required by the inspector, produce all l)ooks and I'voduced
documents required to be kept hy them, or that may here- t'on.
after he required to be kept by them, at the clerk's office,
for examination and inspection : every clerk or bailitf' shall
rep(n't to the inspector such matters relatin;^ to any cause
or proceeding as the inspector sliall re([uire. 4.8 V. c. 8,
s. 20.
The inspector is entitled as of rifiht, to see all books and documents
rejuired to be kept by clerks and bailiffs. The refusal or neglect to pro-
duce such books and documents might prove a serious matter to any clerk
or bailiff required to do so by the inspector. The fullest information
Ixil
52
fTRTIFIf'ATE OF VllASd SECriUTY,
Sections sliould, therefore, be fjiveii by the otliccrs, imd duo production of
63-66 bookn and dociimonts," made to the inspectof by thcni
all
onic^ciH to
inform
Inunt'ctor
of tliiiir
apiKilnt-
mont, i!tc.
Inspector
to be in-
formed of
new
Buretios,
Officers to
produce
certiflcate
of fllintj
covenant,
etc.
114. It hIihII lie the duty of oveiy DiviHion Court clerk
or Iwiilitt', within five <ljiyH after liiH aj)[)()intinent to office,
to ijii'onu tlie inspector of liis appointment, lii.s full name
and ])ost office addiess, the names of his sureties, theii*
respective cailint^s or professions, places of residenci;, and
post office address. 43 V. c. H, s. 27.
Within five days. — Tlie time would commence to run from the day
that tlie officer was notified of his appointment, either by receipt of IiIk
commisBion or by seeinf,' it in the Ontario (iazette, or so advised by the
Provincial Secretary. The day on which he became aware of his ap-
pointment would not be included in the " five days." The clerk could
not perform any official act until he had put in his security : .Sec notes
to section HO.
Full name.— Tlie ./H/i name must be given. For instance, " C. A.
Smith " would not be a compliance with the Act, if the name were
" Charles Alexander Smith."
Names of his sureties. — It might bo well to give the full names of the
sureties also, though not required by the section.
Callings or professions. — The calling or profession should be given
according to the fact. The post-offico address mearrs the P. O. at which
a person usnalli/ gets his letters and papers. As to what is a man's
residence see notes to section 81.
05. Wlien a clerk or bailiff' has given new sureties, as
required b}' this Act, he shall immediately infonn the
inspector of such change, giving- the names of the sureties,
tfieir respective callings or professions, places of residence,
and post office address. 43 V. c. S, s. 2(S.
New sureties.- -.SVf' sections 40 and 41 and notes.
Immediately. — See notes to section 20.
Post-office address. — See notes to section (54.
I80. Every Division Court clerk and liailiff' shall have
and keep in his possession or custody the certificate of the
Clerk of the Peace named in section 3(5 of this Act, and
shall pioduce the same for the information of the inspector
when required so to do. 43 V, c. 8, s. 29.
This requirement is imperative. Each clerk should keep the certifi-
cate in such a place that he may be able to produce it readily to the in-
spector whenever required. It '3 the duty of the Clerk of the Peace to
give this certificate : See noter to section 30.
The inspector need not jnirke his request in writing. A verl,al request
would be sufficient.
KKii'UN OK i"i:i:s ni:<'i:ivi:i).
53
«r. Kvciv I'lci'k sliull, oil (»r Im'I'oiv tlir l.')Hi <lav ol' Sectlom
67-69
•liiiiiDirv ill t'Jicli year, iiiuUc n return of the ImsiiH'ss of ln.s
nlHcf t'(.r the year fiidiniL;' Hist <lay of DccciiiImt prrccdiiiy',
ill Hiicli I'orni uikI lUMiiiicr as tlic lii«'ut('iiaiit-(l<A('ni()r shall
.liivft. 4..S V. c. S, s. :{().
Make a return, -'i'liis in imiKM-iitivo. 'I'lio rcturii ulimilil Ijc imiiloil tn
tlu! rroviiicial Hecirft vry, at Toronto, not lutcr tlmii the ir>tli .faiumry in
eiicli \tar. 'I'lie umilinf^ oF it, p()Ht:i<,'o prei)iii(l, would bu ii coiMpliiinci'
with tlie Act.
to
e-
08. Evorv flt'i'k iiutl baillH" slinll kfci) a .seiHinitc ''"l''"
hook ill which he shall enter Irom day to day all lees, ''"''■'J''
charges and enioluiiients received by him by virtue of otKce,
and shall on the l/ith day of January, in every year, make
uj) to and including;' the lilst day of December of the pre-
vious year, a return to the Ins])ector, under oath showino-
the a<:>yrej4ate amount of fees, charoes and emoluments
so received by him and which he has become entitled to
receixe, aiul has not receivetl during- the year. 43 V. c. <S,
s. :u.
Shall keep. — Tliin is also impenitive. The section applies to tlie bailiff
as well aa to tlie clerk. The booic hero re(iiiire(l should be kept closely
written up. The entry of the total amount of costs in each suit when
received by the ofticcr, it is tliouf»ht, would bu a sufficient coniplituice
with the section. The entries are to be made from day to day as the fees,
etc., are received by the otticer. The fees earned but not received need
not be entered. altliouf»li they must be included in the return to the
inspector.
Return to the inspector. — Sec notes to section ()7. This is the
return to the insjiector, tluit required by section (57, is to be maae to
the Lieutenant-Governor.
Make oath.— The oath may be taken by any of the persons mentioned
in section \4'.i: 1\. S. O. c. Ol, s. 34.
JL'HIHDICTION.
Ol>. The Division Courts shall not have jurisdiction in<'nsoHin
•' which
any of the followinii" cases: court has
1. Acti(jins foi any g-ambling debt;
2. Actions for spirituous or malt li(juors drunk in a
tavern or alehouse ;
3. Actions on notes of hand given wholl}^ or partly in
consideration of a gambling debt or for such liquors ;
no jnris-
iliction.
w
54
JURISDICTION.
Section
69
4. Actions for the recovery of land or actions in which
the right or title to any corporeal or incorporeal heredita-
ments, or any toll, custom or franchise comes in question ;
5. Actions in which the validity of any devise, bequest
or limitation under any will or settlement is disputed ;
6. Actions for malicious prosecution, libel, slander,
criminal conversation, seduction or breach of promise of
marriage ;
7. Actions against a Justice of the Peace for anything
done by him in the execution of his office, if he objects
thereto. R. S. O. 1877, c. 47, s. 53.
Jurisdiction of the Court. — The Division Courts are from their nature
courts of limited jurisdiction. They are the creatures of the statute ;
and to the Act of Parliament to which they owe their existence, and from
which they derive their powers, must we look for tlieir jurisdiction over
persons and matters. They posgesH no common law authority, as the
Courts of the Sovereign, but on the contrary, their authority is defined
and restricted in their creation. Judges of these courts, and the officers
executing their process, cannot exceed the statutory jurisdiction with
impunity. A Judge may be entirely erroneous in his opinion of law on a
question within his jurisdiction, and there is an entire immunity from
consequences at the suit of the injured party; but the very moment he
transgresses that boundary which the Legislature has thought proper to
place on his power, then he is liable for any wrong committed, in the
same way as any other individual, if he knew of had the means of know-
ing the want of jurisdiction. " The jurisdiction which he exercises is a
jurisdiction conferred and limited by statute, and if the conditions prece-
dent to its exercise do not exist, the whole proceeding in the Court is
c.r am uon judice:" per Lush J., in Serjeant v. Dale, 2 Q. B. D., at page
506; Calder v. Halket, 3 Moo. P. C. 28; Carratt v. Morley, 1 Q B. )8;
Houlden v. Smith, 14 Q. B. 841 ; and Graham v. Smart. 18 U. C. R.
482 The omission of a duty cast upon the Judge renders him liable at the
suit of a person injured: Parks v. Davis, 10 C. P. 229. The law makes
no presumption in favour of inferior jurisdic^'ons, but it will intend
nothing against them : Christie v. Unwin, 11 A. & E. 37!), per Coleridge,
J.; and In re Clarke, 2 Q. B. (530, per Lord Denman ; BuUen v. Moodie,
13 C. P., at page 138, 2>er Draper, C.J. And as a general ru'e every cir-
cumstance required by the statute to give jurisdiction must appear on the
face of the proceedings or by reasonable intendment : R. v. All Saints,
Southampton, 7 B. & C. 790, per Holroyd, J.; Gosset v. Howard, 10 Q. B.
411; R. V. Helling, 1 Strange, 8; and R. v. Totness, 11 Q. B. 80.
Should a Division Court assume jurisdiction where it has none, the
remedy is prohibition. Should the judge refuse to consider or adjudicate
on a matter within his jurisdiction, the remedy is mandamm.
Where a justice of the peace has jurisdiction to entertain a claim for
wages, has done so, and adjudicated upon such and dismissed it, the claim
cannot then be sued in the Division Court: Millet v. Coleman, Dawson
V. Coleman, 33 L. T. N. S. 204.
Where a rule of a Building Society is that all disputes by members
against the Society shall be settled by arbitration, it was held that the
right to bring an action was taken away : Ex. parte Payne, 5 D. & L. 679.
PROHIBITION.
55
The jurisdiction of the Division Court is not ousted by the pendency
of another action for the same cause in a Superior Court : McMurray v.
Wright, II W. R. 34 ; Bissell v. Williamson, 7 H. & N. 391.
It is said that the Division Court cau try cases of detinue : Taylor v.
Addyman, 13 C. B. 309. Money may probably be paid into court in that
form of action : Idem ; see also section 125.
If the Judge has no jurisdiction, he can neither amend, nor adjourn,
nor do anything else : he is coram 7ion judice : per Maule, J., Taylor v.
Addyman, 13 C. B. 31G ; see also " Prohibition," post.
A defendant does not admit the jurisdiction by appearing to object to
the jurisdiction of the court : Fearon v. Norvall, 5 D. & L. 439 ; per Ld.
Selborne ; Hamlyn v. Betteley, 6 Q. B. D. C5.
It was held that the Division Courts Act, 1880, did not apply to the
territorial divisions and unorganized tracts of the Province : In re
Ontario Bank v. Harston, 9 P. K. 47 ; see In re Drinkwater v. ('larridge,
8 P. R. 504.
It is doubtful if an action of trover for a deed is within the jurisdic-
tion of a Division Court : Ginn v. Scott, 11 U. C. R. 542.
A witness in a Division Court suit, having admitted that he was the
real debtor, it was held that the Judge had power, under D. C. Rule 115,
to allow him to be substituted for the defendant : In re Henney v. Scott,
8 P. R. 251.
A Division Court has jurisdiction to entertain an action upon a judg-
ment of a Superior Court : Re Ebberts v. Brooks, 11 P. R. 296 ; reversing
tl:e decision of that case as reported in 10 P. R. 257.
In England judgm'^nts of the County Court there (somewhat analo-
gous to our Division oourt judgments) do not bear interest : R. v. The
Comity Ccr^t Judge of Eessx, 18 Q. B. D. 704. Interest is only recover-
able tliere on execution from these courts, but we think that by virtue of
the 7th section of this Act, interest is recoverable on the judgment of a
Division Court from the time of its becoming so.
Prohibition. — " All lawful jurisdiction is derived from and must be
traced to royal authority. Any exercise, however fitting it may appear
of jurisdiction not so authorized, is an usurpation of the prerogative and
a resort to force unwarranted by law. Upon both grounds, namely, the
infringement of the prerogative and the unauthorized proceeding against
the individual, prohibitions by law are to be granted, at any time, to
restrain a court, to intermeddle with, or execute anything which by law
they ought not to hold plea of ; and they are much mistaken that main-
tain the contrary : " per Willes, J., London (Mayor) v. Cox, L. R. 2 H.
L.254, citing Articuli Cleri, 3 Jac. 1 ; Answer to 3rd objection, 2 Inst.
(502; xee Jordan v. Marr, 4 U. C. R. 53.
An order for prohibition cannot be granted against a tribunal on
whicli the law confers no power of pronouncing a judgment or an order
imposing a legal duty or obligation upon an individual : Godson v. City
of Toronto. IG A. R. 452 ; 18 S. C. R. 36 ; Ex parte Death, 18 Q. B. 647 ;
Chabot v. Morpeth, 15 Q. B. 446, 459 ; R. v. Local Government Board,
10 Q. B. D. 321 ; lie Bell Telephone Co. and Minister of Agriculture, 7
O. R. 605 , Kx parte Kingstown Commissioners. 18 L. R. Ir. 509. See
however, lie Pacquette, 11 P. R. 463 ; lie Young, 14 P. R. 303,
There are five classes of cases in which prohibition may be opplied
for : —
1. Where the court has no jurisdiction over the cause and the want
of jurisdiction appears on the face of the proceeding.
2. Where the defect does not appear on the face of the proceeding.
Section
69
56
DEFECTS 1\ IM{()CEEI)IXOS.
Section 3. Where there is jurisdiction over the suhject matter, but rj power
69 to try a particuhir issue.
4. Where there is jurisdiction over the subject matter, but the court
acts in such a manner as to be a denial or perversion of right.
5. Where the Judge is interested.
Where the defect is apparent.- Prohibition may be granted at any
time either before or after judgment : London (Mayor) v. Cox, L. R. 2,
H. L. 239; Roberts v. Humby, H M. * W. 120; Nerlich v. Clifford, G
P. R. 212 ; Summerfeldt v. Worts, 12 O. R. 18 ; Re Judge of Northum-
berland, IJ) C. P. 2i»!) ; Wright v. Arnold, G Man. L. R. 1 ; Bank of Mon-
treal V. Poyncr, 7 Man. L. R 270 ; I West. L. T. 205.
It is ninch better for the party to apply in the first stage, than after
expenses are incurred : Francis v. Steward, o Q. B. 994. But not after
the money recovered has been paid over, as no further step remaining to
be considered, there would be nothing to prohibit : Kempton v. Willey,
9 C. B. 719 ; Dpnton v. Marshall, 1 H. & C. 654.
If a defect of jurisdiction is distinctly brought to the notice of the
Judge it is the same as if appearing on the face of the proceedings : Per
Pollock, C. B. 1 H. & C. G59. See Bherwood v. Cline, 17 O. R. at p. 39.
A total want of jurisdiction cannot be cured by assent of parties :
Jones V. Owen, 5 D. tfe L. 669 ; De Habar v. Queen of Portugal, 17 Q. B.
213, 214 ; Knowles v. Holden. 24 L. J. lOx. 223.
Where the plaintiff had recovered judgment in an inferior court,
which had no jurisdiction, it was held he was entitled to judgment in a
court having jurisdiction, though no prohibition against enforcing the
first judgment had been obtained : Briscoe v. Stephens, 2 Bing. 213.
Where the defect is appai'ent the grant or refusal of the writ is
not in the mere discretion of the court, but the court is bound to issue
the writ of Ex debito jmtiti(e ; London (Mayor) v. Cox, L. R 2 H. L. at
p. 279 ; Buggin v. Bennett, 4 Burr. 2035 ; Bodcnham v. Ricketts, 6 N. A'
M. 537.
Where the defect is not apparent. — In Broad v. Perkins, 21 Q. B. D.
533, the Court of Appeal adopted the following proposition from London
(Mayoi') v. Cox, 283: "Where, iiowever, the defect is not apparent, and
depends upon some fact in the knowledge of the applicant, which he had
an opportunity of bringing forward in the court below, and helms thought
proper, without excuse, to allow that court to proceed to judgment with-
out setting up the objection, and without moving for a prohibition in the
first instance, yet, considering the conduct of the applicant, the import-
ance of making an end of litigation, and that the writ, though of right, is
not of course, the court would decline to interpose except perhaps upon
an irresistible case, and an excuse for the delay, such as disability, )nal-
practice, or matter newly come to the knowledge of the applicant."
Where the objection is that the suit was brought in the wrong Divi-
sion Court, objection must be male by notice under section 176, and an
application must be made to change the place of trial under section S7, as
amended by 52 V. c. 12, s. 5, otherwise an application for prohibition
before trial will not be sus ained : Watson v. Wolverton, 9 C. L. T. 480 ;
but the fact that the defendant does not apply for a transfer previously to
the trial (or perhaps not at all) does not oust the right to prohibition, if
the Court proceeds witli the trial without jurisdiction : lie Thompson v.
Hay. Q. B Div. Ct. 29th Nov., 1892. If the defendant takes any step in
the suit before raising the question of territorial jurisdiction, he waives
his right to prohibition : lie Jones v. James, 19 L. J. Q. B. 257; Moore
V. Gamgee, 25 Q. B. D.244.
WHERE DEFECT NOT APPARENT.
57
P
Is
Tlie motion in thesa cases is generally made after judj^meiit, as the
proceedings in Division Courts rarely show any excess in jurisdiction,
tlie excess may depend only upon the defence set up orally by the defend-
ant, and may appear only in the courne of the trial, and judgment may
follow almost as soon as the defence is understood. Under such circum-
stances there would be no opportunity of moving for a prohibition before
judgment, and, unless the motion was allowed after judginent, the excess
of jurisdiction would be without redress : Marsden v. Wardle, 3 E. & B.
095; Heyworth v. London, 1 C. & K. 312.
The application must be made in proper time, upon sufficient m.ite-
rials, bv a party who has not by misconduct or laches lost his right :
London (Mayor) v. Cox, 279; Bank of Montreal v, Poyner, 11 C. L. T. 84.
Material delay will be a bar. to the writ : Denton v. Marshall. 1 H. &
C. (554. A delay of two months was held to be a bar : Ee Smart and
O'Reilly, 7 P. R. 364.
Where the defendant applied for a new trial, which was granted on
payment of costs, which were not paid, and the defendant applied after
the dav appointed for payment, for piohibition, the writ was refused :
Robertson v. Cornwell, 7 P. R. 297.
Where the applicant had cross-examined witnesses, argued the
case, and taken no exception to jurisdiction, prohibition was refused :
In re Burrowes, 18 C. P. 493.
Where the defendant disputed the jurisdiction, but did not attend at
the trial, and evidence was given sufficient prima facie to shew jurisdic-
tion, and a motion for prohibition was made three weeks after the trial,
the writ was refused : Friendly v. Needier, 10 P. R. 2(57, 427.
Where an erroneous order was made at the request of the applicant
and was acted upon, prohibition was refused : Richardson v. Shaw, 6
P. R. 290.
As to how far admitting jurisdiction waives prohibition, see In re
Cleghorn v. Munn, 2 L. J. N. S. 133. Where the applicant did not shew
that all the materials in which the order issued were before the court,
prohibition was refused : lie Grass and Allen, 2('> U. C. R. 123.
Where cause was referred by consent, without objection to jurisdic-
tion, but during progress of the reference title to land came into question,
and one of the parties objected, prohibition was held to lie : Knowles v.
Holden, 24 L. J. Ex. 223.
Where a party takes a benefit under a Judge's order, he caunot
afterwards object that it was made without jurisdiction : Tinkler v.
Hilder, 4 Ex. 187 ; Buffalo and Lake Huron Ry. Co. v. Hemmingway,
22 U. C. R. 502 ; Harrison v. Wright, 13 M. & W. 810.
Where a defendant sought prohibition upon the ground that his
co-defendant resided out of Ontario, but had not urged the objection in
the Division Court, and had been guilty of delay, prohibition was
refused : lie Soules v. Little, 12 P. R. 533,
Where defendants were resident out of the jurisdiction, but appeared
at the trial, and after their objection to jurisdiction was overruled, pro-
ceeded with the defence and cross-examined the witnesses, prohibition
was refused: lie Guy v. G. T. R. Co. 10 P. R. 372. And where they
moved to set aside the judgment, and to be let in to defend, tliey were
held to have acquiesced in the jurisdiction : Gibbons v. Chadwick, 12
C. L. T. 207.
Where a third party had not been served with process, but applied
at the trial and took part in the proceedings, prohibition was refused :
lie Merchants' Bank v. Van Allen, 10 P. R. 348.
Section
69
58
DENIAL OR PERVERSION OF RIGHT.
flection Where the defendant did not negative the existence of such facts as
69 would f»ive a Judge of the Division Court jurisdiction to make an order
" for substitutional service, prohibition was refused : Re Hibbitt v. Schil-
broth, 18 O. R. 399.
A party does not lose his right to prohibition by obtaining from the
Judge a statement of the case for the opinion of a Superior Court :
Jackson v. Beaumont, 11 Ex. 300.
An appeal does not necessarily prevent prohibition : Veley v. Burder,
12 A. & E. 313, 314 ; White v. Steel, 12 C. B. N. S. 410 ; Harrington v.
Ramsay, 8 Ex. 879 ; but in Corny n's Digest, Title Prohibition (D), it
is said, " but generally after an appeal a prohibition should not be
allowed if the matter be not apparent, for by that the party affirms the
jurisdiction." But while an appeal is pending, prohibition will be
refused : Wiltsie v. Ward, 9 P. R. 216. See also Devonshire v. Foote,
Ir. R. 7 Eq. 365. See also as to acquiescence in jurisdiction, Yates v.
Palmer, 6 D. & L. 288 ; Winsor v. Dunford, 12 Q. B. 603 ; Ex parte
Cowan, 3 B. & A. 123; Bank of Ottawa v. Wade, 11 C. L. T, 339 ; 12
C. L. T. 72 ; 21 O. R. 486.
Particular Issue. — Exception must first be taken in the court below.
The pi'ohibition acts simply in aid of the special or inferior court,
by trying what that court had no jurisdiction to try, and upon an affirm-
ative decision, the prohibition is absolute ; bat upon a negative decision,
there is a judgment of consultation, upon which tlie special or inferior
court proceeds with the cause, unhampered by the objection : London
(Mayor) v. Cox, 276.
Where a breach of contract was not;within the jurisdiction, prohibi-
tion was granted as to that part of the cause of action, leaving it op6n to
the i)laintif¥ to proceed on amended particulars for a breach of the con-
tract wliich was within the jurisdiction : Walsh v. lonides, 1 E. & B.
383. Si-e R. v. Judge of Westmoreland County Ct., 58 L. T. N. S. 417.
Prohibition was granted to restrain an action for the recovery of land
so far as freehold, but not so far as leasehold : Kerkin v. Kerkiu, 3 E. &
B. 399.
A Judge struck out a count which ousted his jurisdiction. Heki, that
he had power to do so, and that if a prohibition had been applied for
before trial it would only have been granted as far as that count : Fitz-
simmonsv. Mclntyre, 5 P. R. 119. See also Meek v. Scobell,4 O. R. 553 ;
Hallack v. Cambridge, 1 Q. B. 593 ; R. v. Twiss, L. R. 4 Q. B. 407.
Denial or Perversion of Right. — " Such, for instance, as a refusal of
a copy of tlia libal, in which ca?3 the prohibition is only quoiuque, or
refusal of a valid plea to a subject matter of complaint within the juris-
diction, in which case althoug ', if the plea had been received, it might
have been tried in the court balow, yet, if it be refused, upon its validity
and truth bsing established in the court above, the prohibition is abso-
lute : London (Mayor) v. Cox, 27(5 ; re Elliott v. Biette, 21 O. R. 595 ; He
Trimble v. Miller, 12 C. L. T. 415.
If the defendant was served, the day before any sittings, with an
ordinary summons, should the Judge insist on proceeding with the hear-
ing at such sittings, prohibition would lie : Ex parte McFee, 9 Ex. 261 ;
Ex pm-te Story, 12 C. B. 767 ; James v. The S. W. Ry. Co., L. R. 7 Ex.
287 ; Serjeant v. Dale, 2 Q. B. D. 566 ; Zaritz v. Mann, 16 L. J., N. S. 144.
Where a Judge directed the jury to find for the plaintiff, the evidence
being uncontradicted, it was held, that he had exceeded his jurisdiction
and astum :!d the functions of the jury, and prohibition was granted ;
Re Lewis v. Old, 17 0. R. 610.
DISQUALIFYING INTEREST.
59
; B.
id
&
t;ht
lity
bso-
lic
Ex.
144.
I
Where a Judge granted a new trial, after the expiration of 14 days,
contrary to section 145, prohibition was granted : lie Foley v. Moran,
11 P. R. 316 ; Bland v. Rivers, 19 O. R. 407 ; bnt quare, whether applica-
tion should not first be made to the Judge of inferior court to set aside
the order for new trial, as irregular : Jones' Trustees v. Gittins, 51 L.
T. N. S. 599.
Where a notice in writing is a condition precedent to the continuance
of the action, a court has no jurisdiction to proceed in the absence of
the notice : Re McGregor v. Norton, 13 P. R. 223 ; R. v. Arkwright,
12 Q. B. 960 ; and an insufficient notice cannot be amended : Re Coe v.
Coe, 21 O. R. 409. It is difficult to draw a sharp line between excess of
jurisdiction and an im^^i-v^per exercise of it, and where the court has a
discretion, prohibition will be refused : Jackson v. Copland, 8 T. L. R. 259.
Amendment to give juFisdiction. — If a plaint be beyond the juris-
diction of the inferior court, the court has no power to amend so as to
bring it within the jurisdiction : Jordan v. Marr, 4 U. C. R. 53 ; Powley
V. Whitehead, 16 U. C. R. 589 (title to land) ; Ferguson v. Corp. of
Howick, 25 U. C. R. 555 (suit in wrong County Court) ; Hodgson v.
Graham, 26 U. C. R. 127 (excessive claim) ; Young v. Morden, 10 P. R.
276 (excessive claim) ; Insley v. Jones, 4 Ex. D. 16 (refusal to send to
County Court when claim ii50 "and interest"); Hopper v. Warburton,
7 L. T. N. S. 722 (malicious prosecution — no power to change to false
imprisonment) ; Avards v. Rhodes, 8 Ex. 312 ; 17 Jur. 71 (unadmitted
set-off) ; Lawford v. Partridge, 1 H. & N. 621 ; 3 Jur. N. S. 271 (title to
land) ; Sherwood v. Cline, 17 O. R. 30 (ascertainment of disputed ac-
count) ; Re Hill, 10 Ex. 726 (amendment reducing claim within jurisdic-
tion) ; In Groenizen v. Burns, 13 A. R. 481, the claim in County Court
action was #400 " and interest." Upon appeal fi"om a verdict for plain-
tiff, it was held, that the County Court had power to strike out the
words " and interest." The court x'eferred to Tliomas v. Hilmer, 4 U.
C. R. 527,' in which the verdict was for an amount beyond, but the claim
was within, the jurisdiction. " It seems to me that a claim on the
record beyond the juribuiction is more serious than an assessment for
the same amount : " Per Rose, J. Sherwood v. Cline, 17 O. R. 37. But
where the plaintiff seeks to abandon the excess over the jurisdiction, the
court has jurisdiction to permit the amendment : Re White v. Galbraith.
12 P. R. 513 ; and if the amendment be not made, prohibition will be
granted only as to the excess : Elliott v. Biette, 21 O. R. 595 ; Re Trimble
V. Miller, 12 C. L. T. 415.
Where Judge interested. — Where a Judge :f an inferior court pro-
ceeds to try, by himself, or his deputy, a cause in which he is himself
interested, he will be restrained by prohibition : Bac. Abr. Prohib. (16),
Hntton v. Fowke, 1 Reb. 648 ; Anon. 1 Salk. 396, but there would seem
to be no objection to an uninterested Deputy Judge hearing the cause :
Ex parte Medwin, 1 E. & B. 609 ; 17 Jur. 1178.' The fact that the plaintiff
is the Judge's servant disqualifies him : Gallant v. Young, 11 C. L, T. 217.
Upon the subject of interest of parsons occupying judicial or quasi
judicial positions the following authorities may be referred to : —
R. V. Collins, 2 Q. B. D. 30, 35 ; Lush's Pract. 195 ; Bennett v. Brumtit,
L. R. 3 C. P. 28; Re JMuskoka and Gravenhurst, 6 O. R. 352; R. v.
Milledcje, 4 Q. B. D. 332 ; Hill v. Managers of Met. Asylum District, 4
Q. B. D. 433 ; R. v. Bishop of Oxford, 4 Q. B. D. 245, 525; 5 App. Gas.
214; R. V. Handsley, 8 Q. B. D. 383; R. v. Lee, 9 Q. B. D. 394; Re
Vashon v. East Hawkesbury, 30 C. P. 194, 203 ; Borough of Freeport v.
Marks, 59 Penn. 253-257; Strekert v. East Saginaw, 22 Mich. 104-112;
Baird v. Almonte, 41 U. C. R. 415 ; Cannon v. Toronto Corn Exchange,
6 A. R. 268 ; Paley on Convictions, 6bh ed., 40-48 ; Randall v. Brig-
ham, 7 Wallace, 523; Bradley v. Fisher, 13 Wallace, 335; Bingham v.
Section
69
60
.JURISDICTION DKI'EXDING ON FACTS'.
Section Cabbot, ;j Dallas, H) ; U. S. v. Lancaatei-, "> Wheaton, -liU ; Slocum v.
69 Sims ") Crancli, ;i(jH ; Lite A- Fire Insnranou Co. v. Wilson, « ['etcrs, •2'Jl ;
" Coolcy oil Torts, clwi)). 11 ; Willis v. IMucfiaclilan, I lOx. 1). :-(7l> ; Lowter
V. Haauor (Knrl of), 8 I'last, li:i-ll8; Frey v. Dlackbuni, 3 B. & H. u7U;
Pa))pa V. Rose, 1.. K. 7, C. I*. ii'I') ; Tliavsis Sulpluu- (,'o. v. Loftus, L. It.
8 C. P. 1 ; Stov..-iisoa v. Wntson. i C. P. I). 148; H. v. Lanj^fonl. IT, O. R.
52; R. V. Chapman, 1 (). R. nsj ; \l. v. Klemp, 10 O. R. 14:$; Coiimee v.
C. P. R. Co., 1(1 O. H. (iSi); R. v. Faiiant. 20 Q. B. D. 58; R. v. Eli, 10
O. K. 727; R. v. Ricliardson, 20 (). R. oli.
Prohibition will not bo f^raiite I in any of the followinj^ cases : Where
the facts relied upon as oi^tiiii,' jurisdiction are not extrinsic to the
adjudication which is impelled : Colonial Rank of Australasia v.Willan,
L. R. f) P. C. 417. Wherothe subjo^ct of the suit is within the jurisdic-
tion, though matter is started byyond the jurisdiction, unless court is
proceeding to try suoh mitter : Dutens v. Robsoii, 1 H. IJl. 103. Where
the matter is immaterial : Butterworth v. Walker, i5 Burr. 1(58!). For
mistake of law : Toft v. Ravuer, 5 C. B. 1()2 ; L3xd8ii v. Southgate, 10
Ex. 201 ; Ellis v. Watt, 8 C.'U. 014 ; lie Grass v. Allan, 2(5 U. C. E. 123 ;
Norris v. Carrington, 10 C. B. N. 8. HDO; Meredith v. Whithingham, 1
C. B N. S. 210, or for a mei'e irregularity in the proceedings: Lon-
don (Mayor) v. Cox, L. R. 2 H. C. 270; Dougall v. Lsggo, 1 West.
L. T. 240. Where the judgment is unwise or unju.st : Zohrab v.
Smith, 5 D. cSr L. 031). Upon a mere matter of practice : Foster v. Temple,
5 D. & L. O);") ; Carter v. Smith, 4 E. A B. 000 ; McLean v. McLeod. .>
^ R. 4(17; Fee v. Mcllhargey, !) P. R. ;{2!) ; McKay v. Palmer, 12 P. R.
219; Backhouse v. Bright, 13 P. R. 117. Where it is doubtful if the
jurisdiction extends to a place where an alleged offence was committed :
Ee Birch, 15 C. B. 743. Where the judgment is against law and good
conscience: Siddall v. Gibson, 17 U. C. R. [)S. For impropar reception
or rejection of evid'.nce : Winsor v. Dunford, 12 Q. B. 003. Where an
order of committal is made against a judgment debtor who claimed to be
a discharged insolvent: Still v. Booth, I L. M. & P. 440; 15 Jur. 577.
That a bailiff has seized too much property : Ex parte Summers, 2
C. L. R. 1284 ; 18 Jur. 522 ; where in an action for false imprisonment
(within the jurisdiction) the judge has, in estimating damages, considered
matters the subject of malicious prosecution (beyond the jurisdiction) :
Chivers v. Savage, 5 1*1. & B. 01)7; where a court erroneously held that
a debt was attachable: Bland v. Andrews, 45 U. R. 431 : »e,; Macfie
V. Hutchinson, 12 P. R. 107; or that a debt was. due: Field v. Rice, 20
O. R. 301) ; or misinterpreted a statute not going to the limits of jurisdic-
tion : Long Point Co. v. Anderson, 18 A R. 401 ; where the Judge
refused application for new trial, but afterwai'ds granted a uew trial for
misconduct of jury without evidence to warrant such finding : Mo.xon
V. London Tramways Co , 00 L. T. N. S 248, suh iiom, R. v. Judge of
Greenwich Co. Ct.; that the plaintiff had no existence in fact or law
and no title to sue : Western Fair Association v. Hutchinson, 12 P. R.
40. "The misinterpretation <f either tlie common or statute law is a
proceeding confessedly within the jurisdiction of these (inferior) courts,
and where they are bound to exercise their judgment upon the one or
the other seems to be rather a matter of error to be reversed upon appeal
(if any) than a ground for prohibition : " Home v. Camden, 2 H. Bl. 530.
Where the jurisdiction depends upon contested facts.— The first
question is, whether the inferior court had jurisdiction to enter
upon the inquiry : Colonial Bank of Australasia v. Willan, L. R. 5 P. C. 417
at p. 443.
The inferior court has such jurisdiction when the action is prima facie
within its jurisdiction, c.*; — an action of trespass to goods: Long Point
Co. V. Anderson, 18 A. R. 401; or for balance of an account settled by a
part payment in goods, although defendant denies that goods delivered in
1
(
f
d
c
\
I
REVIEWING JUDGES DECISION.
61
red
'20
ic-
clge
for
xon
of
aw
II.
a
rts,
or
eal
)3(i.
irst
'icie
)int
)y a
in
payment : Joseph v. Henry, 1 L. M. & P. 388: 15 Jur. 104 : or for conver-
sion of a chattel : Bushel! v. Moss, 1 1 P. R. 252 ; or for rent : Crawford
V. Seney, 17 O. R. 74 ; and in such a case prohibition will not be granted
until the Judge has inquired into the facts, to ascertain if the action is
within the jurisdiction : Dixon v. Snarr, 6 V. R. 336.
Nothing can be inferred to oust jurisdiction where in any aspect of the
case there is jurisdiction : English v. Mulholland, 9 P. R. 145. See
Stephens v. Laplante, 8 i*. R. 52, where the Judge had not decided
quBHtion on which jurisdiction depended, and prohibition was granted ;
Jenkins v. Miller, 10 P. R. 95 ; Ite Thompson v. Hay, 22 O. R. 583,
where the Judge had decided that the parties had agreed to a
set-off, and prohibition was refused, see also Fleming v. Livingston,
6 P. R. 63.
If the Judge finds the facts to be such as do not oust the jurisdiction,
his hnding is conclusive, and will not be reversed except upon strong
grounds : per Cockburn, C. J., Elston v. Rose. L. R. 4 Q. B.4 ; Brown v.
Cocking, L. R. 3 Q. B. 672 ; but see Liverpool Gas Light Co. v. Overseers
of Everton, L. R. 6 C. P. 414.
When the finding of fact shows jurisdiction, any wrong construction,
either of an Act of Parliament or document, will not be ground for pro-
hibition. " Within his jurisdiction he may misconstrue a statute or
document, or otherwise misdecide the law as freely and with as high an
immunity from correction, except upon appeal, as any other Judge :"
per Osier, J.A. 18 A. R. 408 ; see Siddall v. Gibson, 17 U. C. R. 98 ;
Enraght v. Penzance, 7 App. Cas. 240; Chisholm v. Oakville, 12 A. R.
225 : Re Bowen, 15 Jur. 1196 ; see also Sims v. Kelly, 20 O. R. 291, de-
cided before the appeal in Long Point Co. v. Anderson, and which is
perhaps not law.
But, if upon the facts, as proved, or upon admitted facts, or upon the
proper construction of an Act or document, the Judge has no jurisdiction,
his finding that he has jurisdiction will not prevent prohibition : see
Elston v. Rose, L. R. 4 Q. B. 4, where the Judge had jurisdiction over
premises of a certain value and wrongly decided that the value was to
be ascertained in a manner not authorized by the statute giving jurisdic-
tion : per Blackburn, J., " He applied a wrong rule of law to the facts : "
see also Evans v. Sutton, 8 P. R. 367, where the Judge wrongfully con-
strued an Act to authorize a judgment without evidence : R. v. Arkwright,
12 Q. B. 960; lie Coe v. Coe, 21 O. R. 409, where upon the true
construction of a statute certain notices must have preceded the
inquiry: Ahrens v. McGilligat, 23 C. P. 171, where the Judge wrongly
applied an Act authorizmg service upon a foreign railway corpora-
tion by serving a station master, to a case in which he had no
jurisdiction : Moore v. Wallace, 13 P. R. 201, where a Judge exceeded
his jurisdiction by contravening the provisions of a statute : R. v.
Judge of County Court of Lincolnshire, 20 Q. B. D. 167, where
Judge wrongly construed a will as giving a vested interest in funds
to defendant, and appointed a receiver thereof : Liverpool Gas Co. v.
Everton, L. R. 6 C. R. 414, where a Judge's decision, upon a question of
mixed law and fact, was reviewed and prohibition granted. •' A court
of limited jurisdiction cannot give itself jurisdiction by finding any
facts" : per Lord Wensleydale, Rorke v. Errington, 7 H. L. C. 617 at p.
632; Jacomb v. Turner, (1892), 1 Q. B. 47.
And where on a point collateral to the merits of the case, upon the
decision of which the limit of its jurisdiction depends, the inferior
court has wrongly decided even upon the facts, the decision may be re-
viewed : London (Mayor) v. Cox, L. R. 2 H. L. 282, 283 ; Bunbury v.
Fuller, 9 Ex. Ill ; Pease v. Chaytor, 3 B. & S. 620 ; Thompson v. Ingham,
Section
69
62
MOTION FOR PROHIBITION.
Section 14 Q. B. 710, (where the iuferior court wrongly decided that the title to
69 land was not iu question) : R. v. Stimpson, 4 B. & S. 301 ; Chew v. Hol-
royd, 8 Ex. 249; Maraden v. Wardle, 3 E. & B. 095 ; Chisholm v. Oak-
ville, 12 A. R. 225 at p. 230.
The court will look beyond the evidence in the court below and allow
additional evidence to be given shewing jurisdiction: Heyworth v. Lon-
don (Mayor), 1 C. & E. 312.
Application — By whom made. — The party against whom the
plaint has been lodged generally makes the application. Where in a
garnishment proceeding the court has no jurisdiction over the primary
debtor, either the debtor or the garnishee may apply : DeHaber v.
Portugal (Queen), 17 Q. B. 171 ; Wadsworth v. Spain (Queen), 17 Q. B.
191.
A stranger may make the application : ArtiatU Clari, 3 Jac. 1, 3rd
objection ; L. R. 2 H. L. 279 ; but the better opinion seems to be that
the interference of the court, upon the application of a stranger is dis-
cretionary : L. R. 2 H. L. 280 ; lie Foster 4 b. & S. 187 ; Worthington
V. Jeffries, L. R. 10 C. P. 379 ; Chambers v. Green, L. R. 20 Eq. 552 ;
Ellis V. Fleming, 1 C. P. D. 237.
To whom made. — The application is made to a Judge of the High
Court in Chambers: R. S. O. (1877), c. 52, s. 3, R. b. O. (1887), c. 14,
s. 36; C. R. 1137 ; Watson v. Lillico, 6 Man. L. R. 59. It may be made
to the Chancery Division : lie North Perth. Hessin v. Lloyd, 21
O. R. 538.
Material in support of. — The application must be supported by affi-
davits shewing the want of jurisdiction: C. R. 1137; all the materials
upon which the court below has acted should be brought before the
court : Re Grass v. Allen, 26 U. C. R. 123.
The affidavit should be entitled, "In the High Court of Justice." It
is not necessary that any division should be mentioned in the title :
Olmstead v. Errington, 11 P. R. 366. Each affidavit should, however,
be marked with the name of some division : R. S. O., c. 44, s. 23. The
absence of this may be amended: Olmstead v. Errington, 11 P. R, 366;
C. R. 444 ; Robertson v. Coulton, 9 P. R. 16. The affidavits should not
bei entitled in any cause: Ex parte Evans, 2 Dowl. N. S. 410; Siddall v.
Gibson, 17 U. C. R. 98; Miron v. McCabe, 4 P. R. 171; but if the
names of the plaintiff and defendant are used as if there were a cause,
the names are mere surplusage: Hargreaves v. Hayes, 5 E. <& B. 272 ;
Breedon v. Capp, 9 Jur. 781 ; and in practice it is usual to style the affi-
davits, " In the High Court of Justice Division. In the matter of
a plaint in the Division Court in the, etc., wherein A. B. is plaintiff
and C. D. defendant " : lie Burrowes, 18 C. P. 493.
It is for the party opposing prohibition to shew jurisdiction : R. v.
Lord Mayor, 8 T. L. R. 298; but ste Bongard v. McWhirtier, 12 U. C. R.
143; McWhirtier y. Bongard, 14 U. C. R. 84; Re Superintendent of
Schools v. Sylvester, 18 U. C. R. 538, where it is laid down, that the
party applying must make out a clear case.
Notice of Motion. — Unless the court or Judge gives special leave to the
contrary, notice should be served two clear days before the return day of
the motion, and in the computation of such two clear days, Sundays and
days on which the offices ai'e closed are not to be included : C. R. 479.
The day of service and the return day are both excluded : C. R. 475. No
summons, rule or order to shew cause will be granted : C. R. 526. The
Judge of the inferior court and the parties opposed in interest to the party
making the application, should be served with the notice. If the prohibi-
tion is to restrain a ministerial act such as the issue of a warrant of exe-
DECLAllATION IN PROHIBITION.
63
oution or commitment, the clerk should be served with notice : Be Woltz
V, Blakely, 11 P. H. 4H0 ; It. v. Fletcher, 2 E. & B. 279.
Rules of Court. — The following are the Consolidated Rules referring "
to prohibition :
1137. " It shall not be necessary to file a suggestion on any application
for an order for prohibition. The application may be made on aflidavit,
subject to the general rules as to motions and evidence on motions.
1138. " No writ of prohibition shall issue in any case, but the order for
Erohibition shall have the same effect as a writ of prohibition formerly
ad.
1139. " Any such order may be discharged or varied or set aside by a
Divisional Court, subject to an appeal to tlie Court of Appeal."
An appeal may also be made to the Hupreme Court of Canada : 51 55
V. 0. 25, s. 2 (D.)
Notice of appeal must be served on County Judge; Gibbous v. Chad-
wick, 12 C. L. T. H28.
Stay of Proceedings.— Proceedings in the court below cannot be
stayed by the High Court pending prohibition : Miron v. McCabe, 4 P.
R. 171. The inferior court might, however, by virtue of its inherent
power, stay proceedings.
If execution has been levied and the money made, the prohibiting
court will order its repayment; iJc Johnson v. Therrien, 12 P. R. 442.
And where a transcript had been issued to a higher court, the judgment
founded thereon was set aside ; Labattv. Chisholm, 11 C. L. T. 188.
Deiclaration in Proliibition.-— Where a party made out a prima facie
case for prohibition, and the party against whom the application was
made objected to the granting of the writ, the court might direct the
applicant to declare in prohibition: Worthington v. Jeffries, L. R. 10 C.
P. 879. Th.o vas nothing more than an issue directed in a disputed
case only, to inform the conscience of the court whether the court
below had power to proceed. It could not be resorted to as a matter of
course, but only by discretion of the prohibiting court, and then not
without the concurrence of tlie defendant (respondent) wlio might allow
the prohibition to go, in the first instance, without the e.xpense of show-
ing cause: London (Mavor) v. Cox, L. R. 2 H. L. 278; Pewtress v. Har-
vey, 1 B. ct Ad. 154; Mittleborger v. Merritt, 2 U. C. R. 413.
The practice, in such cases, was prescribed by R. S. O. (1877) c. 52,
8. 2. This statute is now repealed : R. S. O. (1887) Shed. A. p. 2(JG0;
51 Vic. c. 2, s. 2. All former practice inconsistent with the Consolilattd
Rules is also repealed : C. R. '6.
As the rules now provide for an appeal (C. R. 1139), there is less
necessity for such a proceeding : Mackonoohie v. Lord Penance, 6 App.
Gas. 424 at p. 444.
In a proper case, the court might direct an issue to ascertain the
actual facts.
Costs.— The costs are in the discretion of the court or Judge : C. R.
1170. A successful party is entitled to and should be awarded costs, unless
the court, in the proper exercise of a wise discretion, can see good cause
for depriving suc'i party of them, and such party should not be deprived
of costs, unless tliere appetir impropriety of conduct wliicli induced the
litigation, or impropriety in the conduct of the litigation : McLeod v.
Emigh, 12 P. R. .503 ; ^ee Wallace v. Allen, L. R. 10 C. P. (>07 ; Ex parte
Overseers of Everton, L. R. (i C. P. 245.
Where a defendant moved for prohibition, on the ground of want of
territorial jurisdiction, before the hearing, and pending the motion, the
Section
69
i
:f:
«4
MANDAMUS.
Saction inferior court transferred the plaint to the proper court, it was held,
69 that the defendant was entitled to the coats of the motion : Olmstead v.
Errinj^ton, 11 P. U. 3()(i. Where the opposite pai'ty was not in fault,
costs were refused : lie HowUey v. Young, 7 C. L. T. 34(). It is not usual
to give coats against the Judge : ift Johnson v. Therrien, l2 P. R. 442.
Wliere there were no merita, but the plaintiff persisted in proceeding,
coata were allowed ; Rutherford v. Walla, 12 G. L. T. 205 ; nee Nerlich v.
Clifford, (■) P. 11, 212: Mitchell v. Scribner, 20 O. R. 17; Field v. Rice,
20 O. R. HOIK
Damages. —After obtaining the order of prohibition, an action would
seem to lie for the damages sustained by reason of the plaint baing pro-
secuted in a court having no jurisdiction : Buller'a N. P. 219 ; Cro. Car.
550; Mittlebeiger v. Merritt, 2 U. C. R. 413.
Mandamus. — Mandamnn is a writ issuable out of the High Court of
Justice reiiuiring the inferior court or the Judge or officer thereof to do
some particular thing which appertains to their office or duty. It issues
in all ciaes where the party hath a right to have anything done and
hath no other specific means of compelling its performance : Shortt on
Informations, 22H.
There must be a demand and refusal : Re Peck & Corp. of Peterborough,
34 U. C. R. 129. If aryother remedy exists, e./;., app'ication to the Judge
Of appeal, the writ will not be granted: In re Marter and Gravenhurst,
18 O. R. 243.
The application must be made in proper time : it must not ba delayed
too long, neither on the other hand must it be made prematurely : Shortt,
227, 2')0, 251 ; Re McGallum and Board of School Section 6, Tpiof Brant,
17 O. R. 451. Where a Judge, having heard the evidence, decides that
he has no jurisdiction, a mandaiiiiis will not be granted to compel him
to rehear it : Kernot v. Bailey, 2 U. C. L. J. 178 ; Kx parte Milner, 15 Jur.
10.^7. But fiec R. v. Southampton Co, Ct. Judge, 65 L. T. N. S. 320, in
wh ch it was held that maiidamiu lies to compel the Judge to hear a case
after he ha; decided that he has no jurisdiction. The writ will only be
granted when the jurisdiction of the inferior court is clear: Trainor v.
Holcjmbe, 7 U. C. K. 548.
It will not be granted to compel a Judge to alter an adjudication upon
0. matter within his jurisdiction, nor to compel tha cln-k to act in disre-
gard of the adjudication of the Judge : Coolican v. Hunter, 7 P. R 2;<7 ;
nor to reverse the decision upon a point of practice: Re Wooda v. I{en-
nett, 12 U. C. K. 107. It will not be granted to compel a Judge to approve
of security tendered for appeal, or to certify the proceedings after the
expiration of the proper time: Ford v. Crabb, 8 U. C. R. 274; Orr v.
Barrett, 9 C. L. T. 72 ; 6 Man. L. R. 300.
Mandnmus will issue to compel a Judge to try a case before him : Re
Burna v. Butterfield, 12 U. C. R. 140, unless he is interested: Re Judge
of Elgin, "JO U. C. R. 588. Where a Judgs refused to adjudicate upon an
interpleader summons, upon the ground that the notice of claim was in-
sufficient, miindumns was granted : R. v. Richards, 2 L. M. & P. 263,
A clerk may be compelled by m indainii,i to issue an execution : R. v.
Fletcher, 2 E. & B. 279; Re Linden v. Buchanan, 29 U. C. R. 1 ; but
Ilia fe2 should be first tendered him : section 54 ; Ri- Township Clerk of
Euplirasia, 12 U. C. R. 622.
A Judge cannot be compelled by mindnintis to exercise his discretion
in a particular way : Re White v. Galbraith, 12 P. R. 513 ; Shortt, 260,
262, 301.
The application for a mandamus should be upon notice to the Judge
or officer and to the opposite party returnable not less than two clear
I
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It issues
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he Judge
/enhurst,
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an : R. v.
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irtt, 260,
Ihe Judge
liwo clear
,9
GAMBLING DEBT.
days after service. It should be made to a Judge in Chambbrg : C. B.
1124. If the application is made to a Judge in court, costs only of a Cham-
bers application will be allowed : Re Brookileld and Trustees of Hchool
Sec. 12, Tp. of Brooke, 12 P. B. 485. The motion should be supported by
affidavits. All proceedings should be entitled, ** In the High Court of
Justice, Division. In the matter of a certain plaint in the
Division Court, in the County of , wherein A.B. is plaintiff,
and CD. is defendant."
Gambling Debt. — The question of what is a gambling debt, within the
meaning of this section, is not discussed in any reported case. In Sum-
merfeldt v. Worts, 12 O. R. 48, a sum due on a cheque given for losses in
matching coppers, was held to be clearly a gambling debt.
It is submitted that a gambling debt, is, " any sum due as the result of
a wager, or bet, or game of chance or skill." A wager or bet, is defined as
a contract entered into without colour of fraud between two or more
persous for a good consideration and upon mutual promises to pay a
stipulated sum of money, or to deliver some other thing, to each other,
according as some proposed and equally uncertain contingency should
happen, within the terms upon which the contract was made: 2 Chitt.
Stats. 3rd ed. Gaming, p. 27(). note b; Bank of Toronto v. McDougall,28
C. P. 345; Carlill v. Carbolic Smoke Ball Co., (1892), 2 Q. B. 484.
In an action against the maker of a note for value, payable to bearer,
and transferred to the plaintiff for value after it was due, it was held
no defence to the plaintiff 's transferror, that he received it in payment
ol a gambling debt : R. & J. 533 ; Burr v. Marsh, M. T. 4 Vict.
According to the Common Law of England, altered by 8 and 9 V. c. 109,
(not in force in this Province), an action might be maintained on a
wager, althongh the parties had no previous interest in the question on
which it was laid, if it was not against the interest or feelings of third
persous, and did not lead to indecent evidence, and was not contrary to
public policy : Thackoorseydass v. Dhoudmull, 6 Moo. P. C. 300.
No action can be maintained by A. against B. on a wager in which A.
bets that B. will, and B. that he will not pass his examination as an
attorney, inasmuch as B. has the power of determining the wager in his
own favor: Fisher v. Wultham, 4 Q. B. 889.
An agreement in the nature of a bargain, but which is in reality a
bet, is invalid: Rourke v. Short, 5 E. & B. 904.
The employment of an agent to make a bet ia his own name, on
behalf of his principal, implies an authority to pay the bet if lost, and
on the making of the bet that authority becomes irrevocable : Read v.
Anderson, 10 Q. B. D. 100 ; 13 Q. B. D. 779, S. C; Bridger v. Savage, 15
Q. B. D. 303 ; Bubb v. Yelverton ; In re Ker, 24 L. T. N, S. 822.
Money paid in discharge of a lost bet made for another, is recover-
able from such other person : Oldham v. Ramsden, 32 L. T. N. S. 825.
Money lent to enable the borrower to pay a bet, which he had already
lost, would not, it is submitted, constitute a gambling debt within the
meaning of this section, and would consequently be recoverable by the
lender: Ex parte Pyke ; In re Lister, 8 Ch. D. 754.
But money lent for the purpose of playing an illegal game would not
be recoverable : McKinnell v. Robinson, 3 M. & W. 434.
Money lent by a licensed innkeeper for the purpose of enabling a
guest to play an unlawful game, contrary to his license, wonld not be
recoverable back : Foot v. Baker, 5 M. & G. 335.
As to money lent for gambling purposes, but not so used by borrower :
see Tyler v. Carlisle, 1 Amer. St, R. 301 (U. S.).
D.C.A. — 5
66
Seotlon
69
lit
t '^
66 SPIRITUOUS LIQUORS.
Soctlon A Btnkeholder who receivoH bank notes as money, and pays them over
•9 originally to the original stake-holder p.fter he ban lost the wa^cr, is
answerable to the winner for money had and received to his use : Pickard
V. Banks, \i\ Kast, 20. But if he pays over tiio money to the party who
has won, he is not liable to repay it to any person wliomsoevor : Brandon
V. riibbert, 4 Camp. 37 ; Brown v. Overbury, 11 Kx. 71'">.
Where A. and B. deposit money in the hands of a stake-holder to
abide tlio event of a l)oxiiit,' match, and when llie bettor A. claimed the
whole sum from the stake holder and threatened him with an action if
ho paid it over to B., whidi he ncvortheluws did by direction of the
umjure : Held, that A. was entitled to recover from iiim his own stakes
n^ money had and received to his own use, on the j,'round of its beintj an
illcjial waiter: Hastelow v. Jackson, H H. iV (;. '221. It would be otlier-
wise if no notice was ^'iven : Iilem. To the same oHect is Dii^^le v. Iliji^s,
2 Ex. I). 12-2; Trimble v. Hill, .". App. Cas. M-l ; Hampden v. Walsh,
1 Q. B. J). IH!). ,sVe also Loj^ue v. McCuish, '21 N. K. Ucps. 7.").
The followinfi American cases are refcrnjcl to on the subject of
gambliuf,' :
"Gamblin<^" includes plavini^ billiards for beer, oysters or cij^ars :
State v. Bishel, iW Iowa, 42; ilausberj,' v. People, :{') Alb. L. J. 1)8.
A horse-race is a <,'amblinf^ device : Jo-^' )])h v. iNIiller, 2 New I\[exico,
f)21.
The court said " The word '^amblin<:!' is one of very fieneral applica-
tion, an-.l is not restricted to waj^erinj; upon tlie result of any particular
' game or games of chance.' In the adjudicated caues on this subject we
find that Jud}:;es often have a|ii)lied this word indiscriminately to waf^er-
ing of all kinds. We are uiKthle to discover any distinction in general
principle between the various methods that may bo adopted for deter-
mining by chance who is Lhc winner and who the losor of a bet— whether
it bo by throwing dicj, flipping a copper, turning a card, or running a
race. In either case it is gambling. This ia the popular understanding
of the term ' gambling device,' and does not include any scheme, plan or
contrivance for determining by chance which of the parties has won and
which has lost a valuable stake. That a horse-race, when adopted for
such a purpose, is a ' gambling device ' there can be no doubt : .SVe
Shropshire v. Glascock and Garner, 4 Mo. ryM^, and cases there referred
to."
" The word ' gaming ' has been held to extend to physical contests
whether of man or beast, when practised for the purpose of deciding
wagers, or for the purpose of diversion, as well as to games of hazard
or skill, by means of instruments or 'levices:" Boughner v. Meyer,
6 Colo. 71.
Spirituous or malt liquors. — The jurisdiction of the Division Cadet is
not excluded in an action for spirituous or malt liquors alone, fbeir
price may be recovered by a person having the right to sell them if Uiey
are "not drunk in a tavern or alehouse.'^ Whether they have been so or
not is a question for the Judge or jury to determine before proceeding
with any other question in the case. If after hearing all the evidence
adduced on that point, and it be decided that the liquors were not
d runk in a tavern or alehouse, and the plaintiff otherwise had the right
to sell the same, and the Judge determines that the court had jurisdiction,
the cause could not be prohibited. Another court could not determine on an
application for prohibition as to the correctness of his finding on the
question of fact. It must be borne in mind that the right to sell such
liquors in this province, is regulated by the Liquor License Act of Ontario
(B. S. O. 1887, c. 194). If a person had not the right to sell such liquors
TAVERNS AND ALEHOUSES.
07
under a license therefor, he could not recover for the price of same:
Sinclair'H License Act, p. 285.
The question whether liquors are "spirituous" or "malt" must be
detorminodasuny other question of fact: Harris v. Jenns.O C.B. N. S.152.
"Spirituous" means coutaiuini,'. partaking,' of spirit; haviiif,' the
refined, strong, ardent (piality of alcohol in f^reater or Ichs dej^ree.
Ilonco, " spirituous licpioiH " imply such liquors as contain alcohol and
thus have spirit, no matter by what particuhir name denominated, or in
what iii(uid form or combination thoy appear. Ilenco, also, distilled
liquor, formonted li(pior, vinous liquor, are all alike spirituous li<|nors.
La^ur beor and wine contain alcohol and f^'eneraljy in such (juantities
and decree as to produce intoxication. 'I'iieso liquors are therefore
spirituous: State v. (iiorsch, 'M Alb. L. ■!. '201. Tiiis was in Noitii Caro-
lina. In West V irj^inia, however, a ditforont view of the matter is taken
and it is held tliei'o that the term does not include wine or other
fermented liquor, for the worda imply that the beveraj»o is composed in
part or fuHv of alcohol extracted by distillation: Slate v. Oliver, 20
W. Va. 422 { S. C. r,n Am. Heps. 71».
Althoutjh " C!roid< " was sworn to bo a kind of beer, the court would
not take judicial notice that it was intoxicating or spirituous: ]{. v. Heard,
l;{ O. 11. \m.
As to the meaniufi of the term " liijuor " as used in the Licpior Tiiceuae
Act: .vc Northcote v. Brunker, 14 A. K. at p. 37;$.
If tliere are several ■ terns in the bill, and tlio iile;,'al ones ai'C separ-
able from tlie otliers, the legal ones are recoverable: Gilpin v. Rendlc, 1
Selwyn's N. P. (U.
Where money is paid generally on account, witliout any specific appro-
priation at the time of payment, and part of the account is illej,'al (being
a demand for liquor sold) and part legal, it is said the ci'oditor would
have the right to apply the money on the demand for li<inor sold :
Philpott V. Jones, 2 A. A E. 41 ; Cruickshank v. Kose, r, C. & P. 19;
Simpson v, Ingham, 2 B. & C. p. 72 ; Hooper v. Keay, 1 Q. B. D. 178 ;
Kinnaird v. Webster, 10 Ch. P. 139.
Cross demands may be settled, even though there is a claim for liquor
in one of them, and not recoverable for. It is only the right to recover
which the statute bars, not the right to pay for them: Dawson v.
Remnant, Esp. 24.
Tavern or alehouse. — It is submitted that these words mean licensed
places. No debt could be created for salo of liquors drunk anywhere
without there being a license to sell : Ritchie v. Smith, C. B. 402.
A tavern is defined to be " A house licensed to sell liquors to be drunk
on the spot, with accommodation and entertainment for travellers : "
Nuttall's Standard Dictionary Worcester's definition is, "A public
house where wine und liquors are sold and entertainment for a party are
provided." An " alehouse " is a place where excisable liquors are sold
by retail to be drunk on the premises. The word is probably synonymous
with " public house " and "tavern" which latter words were employed
in London and Suburban Land Co. v. Field, 10 Ch. D. 045 ; Holt v.
Collyer, 10 Ch. D. 718 ; Stroud, 27.
Additions to licensed premises do not destroy their character, the
question is, are they substantially the same ; R. v. Rafiles, 1 Q. B. D.
207; R. V. Smith, 15 L. T. N. S. 178; Stringer v. Huddersfield, 33 L. T.
508.
It must always be kept in view that in order to oust the jurisdiction
of the court, the liquors sued for must be drunk in one or the other of
the places mentioned in this Bection.
Section
69
I
it*
68
ILLEGAL PROMISSORY NOTES.
Section A person licensed to sell beer, " to be drunk or consumed off the
69 premises," who supplied a pint of beer to a traveller who sat upon a
bench placed and fastened against the wall of the house, returning the
mug in which he was served, was held to have been properly convicted
of selling beer to be drunk on the premises : Cross v. Watts, 13 C. B.
N. S. 239. See also Bath v. White, 3 C. P. D. 175; Brigden v. Heighes,
1 Q. B. D. 330 ; R. v. Palmer, 4G U. C. R. 2()2.
But ale handed t)u ough a window to a customer who called for it and
drank part of it whiLst standing on the highway, was held not to have
been sold "to be ciir ;med on the premises," though he drank the re-
mainder whilst sitting on the window sill of the house : Deal v. Schofield.
L. R. 3 Q. B. 8.
Illegal promissory notes. — " Notes of hand," by which is evidently
meant promissory notes, cheques, and " all evidences of debt under the
hand of the debtor," given for any of tlie prohibited matters or things
are not within the jurisdiction of the Division Court : In re Summeirfelt
v. Worts, 12 O. R. 48.
The " note of hand " is not suable in the Division Court, even though
in the hands of an innocent holder : In re Summerfelt v. Worts, 12
O. R. 48 ; Harper v. Young, 34 Alb. L. J. 376 ; 37 Alb. L. J. 181. But in
another court it would possibly be: Boweu v. Webber, 34 Alb. L. J. 76;
The Canadian Bank of Commerce v. Gourley, 30 C. P. 583.
If a note should in form be given for a loan of money, but in reality
for one of the prohibited considerations, it would be within this section :
Hill V. Fox, 4 H. & N. 35y.
See notes to sub-section 1 of this section.
Actions foF the recovery of land. — The language of this sub-section
has been somewhat changed to make it more consistent with the Ontario
Judicature Act. Under the former Act the words were " Actions of
Ejectment." The meaning is substantially the same, and wherever
jurisdiction was formerly <;xcluded as virtually being an action of eject-
ment, so also is jurisdiction excluded under this sub-section.
^Vhen jurisdiction ousted. — The title of a corporeal hereditament is in
q' " lon whether its existence or the right of the claimant to it, is denied :
Adey v. Deputy-Master of Trinity House, 22 L. J. Q. B. 3; S. C. 1
K. & B. 273, sub. nom. R. v. Everett. There must be some show of reason
for the claim: Cornwell v. Sanders, 3 B. A S. 206. The claim must be a
bona Me one, and the right one that can exist in point of law : Hudson v.
MacRae, 4 B. ()ir S. 585 ; Lloyd v. Jones, 6 C. B. 81. It must be of such a
nature as, if substantiated, would form u defence to the action : Leath v.
Vine, 30 L. J. M. C. 207. If the defendant actually bring the title in
question, then, although his cip.im may be fraudulent or founded on the
most utter bad faith, the court will have no jurisdiction : Marsh v. Dewes,
17 Jur. 558. Where in an action of tort for pergonal chattels, the title to
land comes incidentally in question, the jurisdiction is ousted: Trainor
V. Holcombe, 7 U. C. R. 548. ;Where the question was whether certain
goods were part of the freeliold or not the jurisdiction was held to ba
ousted ; Portman v. Patterson, 21 U. C. R. 237 ; but in a later case, it was
held to be a question of fact, and if the inferior court Judge decided that
the chattel was not part of the freehold, the juricdiction was not ousted:
Re Bushell v. Moss, 11 P. R. 251 ; see McNeill v. Haines, 13 P. R.
115 ; Macara v. Dines, 2 West. L. T. 99. The earlier case of
Portman v. Patterson was not cited. Where a defendant claimed
the right to obstruct a street it was held that title was brought in
question: R. v. Taylor, 8 U. C. R. 257; so also where a right of way
was claimed across a railway : Cole v. Miles, W. N. (1888) 150. Where,
if the parties had been landlord and tenant, the court would have
ACTIONS FOR RECOVERY OF LAND.
69
)£f the
ipon a
ing the
ivicted
3 0. B.
eighes,
r it and
bo have
the re-
ihofield.
vidently
ider the
r things
(imerfelt
1 though
,'ort8, 12
But in
L.J. 76;
n reality
section :
had jurisdiction, but defendant claimed to be a freeholder, the jurisdic-
tion was ousted : Pearson v. Glazebrook, L. B. 3 Ex. 27 ; but where, in an
action for double rent the tenant was estopped from denying his land-
lord's title, his claim of title was of no avail : Wickham v. Lee, 12 Q. B.
521 ; Bank of Montreal v. Gilchrist, 6 A. R. C59 : but it would have been
otherwise if the defendant had shewn that his lessor's title expired during
the tenancy : Mountnoy v. Collier, 1 E. & B. ()30. Where a demise is
admitted, but the subject matter thereof, e.;/., whether certain rooms in
a cott:i<,'e are included, is in dispute, the jurisdiction is ousted : Chew v.
Holroyd, B ]'jX. '2V.). Whf»re in an action for renc, tlie defendant set up
tlmt tlie rent be!on<jed to a third party to whom it had been paid, the
Seotioii
69
jurisdiction was ousted: Fair v. McCrow, HI U. C. R. 5!)!):
liowever.
Whitliiij^ V. Sharpies, '■) C. L. T. 141. If a party is cliartjed witli liability
by I'eason of ownership of certain land, and ho denies that ownership,
title is in (juestiou: 11. v. Harden, 2 E. & B. 187. Tliouj,'h tlie fact tliat
title came in qtiestiou docs not appear on tlie face of tiie proccedin^'B,
proliibition may be ^iranteil: Marsdcu v. Wardlo, '1 K. it 15. (>[)'). Appli-
cation may, liowever, he made bet'oro trial in tlio inferior court, and pro-
hil)iti()ii will be awarded if it appear tliat title ninst come in (juestion:
:\[acara v. Morrish, 11 C. P. ir> ; Hewell v. Jones, 15 ,Jnr. If);}; 1 F,. IVf. tV; P.
')'2^); see other cases wliero jurisdiction ousted: U . v. Dn.vidson, iii
TI. C. 11. Ill ; n. V. McDonald, 12 (). li. :)Ml. In those cnses a mere bona
jUJe claim of viLtht was sufficient, but in Division Courts title must be in
question. Wlitre it is necessary to prove that a married woman has
separate estate, and no evidence can be "^iven of the piOssossion of any
personal estate in respect of which she may be deemed to have contracted,
and a hoiKi jidc question arises whether she has title to certain lands, it
seems that the jurisdiction is ousted : lie Widmeyer v. Mc^Mahon, 32
C. P. 11)1, 11)1, in which, however, the title of tlie married woman was
not disputed or brou<{ht in question.
When not ousted. — Tiie mere assertion by a solicitor of a claim of
rijilit is insufficient. Title must be in question : lie Emery v, Barnett, 1
C. B. N. S.4'23; Lilley v, Harvey, ,5 D. * L. (148 ; 12 Jnr. 102(5; R. v.
Sandford, 30 L. T. N, 8. (iOl ; Ball v. G. T. K. 1() C. P. 252. Where a lessor
has certain tights under a lease, and sells, the mere proof by the vendee in
an action ajjainst the lessee of his proper title, does not oust the jurisdiction :
see Neads v. McMillan, 2!) IJ. (]. R. 41ij; R. v. Priest, W. N. (1887) m.
Wliere the (piestion was whether certain rails formiiij^ a line fence put by
mistake on another's laml were the property of the party putting them
there, title to land was not in (]uestion : lie Bradshaw v. Duffy, 4 l'. R.
ilO. The terms of a tenancy do not form matter of title : He Enslish v.
Mulholland, •) P. R 145 ; ](e Knight, 1 Ex. 802. The question whether
a right to impound is implied from a right to pasturage, is not a question
of title: Graiiam v. Spettigue, 12 A. R. 2(U. Nor is the question
whether a municipality is bound to repair a road : Knight v. Medora
(Township), 11 O, H. 138; 14 A. R. 112; nor whether a stream is
navigable : Reece v. Miller, 8 Q. B. D. 020. In an action of false impri-
sonment, no question of title can arise: Eversfield v. Newman, 4
C.B.N. S. 418.
Procedure. — It is the duty of the Judge to inquire and decide whether
title is really in dispute, but his decision is not final : Thompson
V. Ingham, U Q. B. 710; lie Emery v. Barnett, 4 C. B. N. S. 423; Re
Huntsworth, 33 L. J. M. C. 131 ; but where he has decided upon con-
flicting evidence, the court will not interfere except upon very strong
grounds : Long Point Co. v. Anderson, 18 A. R. 408 ; lie Bowen, 21 L. J.
Q. B. 10 ; 15 Jur, 11<K'» ; Brown v. Cocking, L. R. 3 Q. B. 072 ; Enraght
V. Lord Penzance, 7 App. Cas. 240; Macara v. Dines, 2 West. L. T. 99.
The rule laid down in lie Bushell v. Most*, 11 P. R. 251, seems wider
II
i- i
r i
^ i
i .
70 HEREDITAMENTS.
Section than that of the other cases. If the claim of title is ignored the Judge
69 should state clearly his grounds for so doing: Birnie v. Marshall, 35
L. 7". N. S. 373. The action simply stops for want of jurisdiction.
A no.;-8uit cannot be entered : Lawford v. Partridq*, 1 H. & N. 621.
Care must be taken to distinguish cases in which the right to Superior
Court costs was upheld, upon the ground that title was in question, from
cases where the question is. Has an inferior court jurisdiction ? The
right to Superior Court costs depends upon the pleadings and not upon
what takes ')lace at the trial. The pleas of uon deiiiinit or not possessed,
have been held in Ontario, to raise the question of title : Purser v. Brad-
burne, 7 P. R. 18 ; Coulson v. O'Connell, 29 C. P. 341. A mere general
denial of the allegations in the statement of claim, may raise a question
of title sufficient to entitle the plaintiff to Superior Court costs : Wor-
man v. Brady, 12 P. K. C18; Danaher v. Little, 13 P. R. 3G3 ; Flett v.
Way, 14 P. R. 312. When the question, however, is. Has an inferior
court jurisdiction? it is material to enquire what took place, or must
necessarily take place, at the trial. The court has to be satisfied that
title really comes in queotion before prohibition will be granted ; Re
Crawford v. Seney, 17 O. K. 74.
Exceptions. — In the following matters Division Courts have jurisdic-
tion, though the title to land is in question : (a) Actions for damage to
land by overflowing the same for the purpose of driving logs, timber, or a
sawmill, where the sum claimed does not exceed #20 : 52 Vic. c. 10, s. 13
(1889). (b) Interpleader proceedings : e.g., growing crops seized may be
claimed by a mortgagee as part of the land, or rent due for the premises
may be claimed by adverse parties; and though, for that purpose, it is
necessary to examine the title to land, the jurisdiction will not be ousted.
It is a collateral question arising in a matter collateral to the action :
Munsie v. McKinley, 15 C. P. 50.
Hereditament. — " The settled sanso of that word is to denote such
things as may be the subject matter of inheritance bi-t not the inherit-
ance itself: " Moore v. Denn, 2 B. A P. 217.
" Corjioreal liercditanient " includes land, and the Division Court has
no jurisdiction, though tlie title to a iGaseholdonlv may be in question :
Torakins v. Jones, 22 Q. B. I). 599.
An " incci'pjieal hereditament " is a right issuing out of a thing
corporate, (whether real or personal) ; or oonferning or annexed to, or
exercisable within the same. It is iii)t the tiling corporate itself, which
may consiiit in lands, houses, jewels or t!>e like; but something collateral
thereto, as a rent issuing out of those lands or houses, or an oBice relating
to those jewels: Kerr's Blackstone Ki ; Re Christmas, 33 Ch. D. 332.
Rents, rights of way and atjueduct, rights to lij^ht, rights to customary
fees, etc., are instances of ccu'poreal licreditanieuts: Ste))henson v. Raine,
2 E. & B. 714. There must be a dominant and a servient tenement.
The riiiht to ground a bar^e on a navigstble river, is not a claim to an
incorporeal here-litament : Hawkins v. liutter, (1892), 1 Q. B. filiS.
Toll. — A toll is (letined to be a tax paid for any liberty or i)rivilege : —
It is the title to the toll that must come in quastioii to oust tho jurisdic-
tion: Hunt V. The Great Northern Ry, Co., 10 C. B. 904, per Jervis, C.J.,
and Williams, J. The charges of the railway company for conveyance
of goods are not within this part of the section : Ih. Harbour rates are
tolls : R. V. Everett, 1 E. it B. 273 ; but jjayments to a railway company
for use of locomotive power, as distinguished from the use of their rail-
way, are not: Hunt v. Great Northern Ry. Co. siijjra. The right to take
toll under an Act of Parliament must clearly appear, and any doubt is
given in favor of the public: Stourbridge Canal Co. v. Wheeley, 2 B. dk
^d. 792.* A mereclaira of right to tolls without shewing that it is a bona
MALICIOUS PROSECUTION, 71
fide claim would not oust the jurisdiction of the court : B. v. Hampshire Section
Jus., 3 Dowl. 47. 69
Custom. — This limitation is not in the Enjjlish Act, and it has there
been held that the County Courts may try a disputed custom : Davis v.
Walton, 8 Ex. 153. The word appears to be used here in its technical
sense, as signifying local common law : Hammerton v. Honey, 24 W. R.
€03 ; Grand Hotel Co. v. Cross, 44 U. C. K. IG'J. Inasmuch as a custom
to take fish, or to take water, would be bad as a profit a prendre, the juris-
diction of the Division Courts would not be excluded by settinf» it up :
Lloyd V. .lones, 5 D. & L. 784. It is doubtful if a custom can be proved
in this Province, there being no "time immemorial" on which to found
it : Grand Hotel Co. v. Cross, 44 U. C. R. 153.
Franchise, an incorporeal hereditament synonymous with liberty.
A royal privilcf^e or branch of the Crown's prerogative subsisting in the
hands of a subject. It arises either from royal grants, or from prescrip-
tion which presupposes a grant. The kinds are almost infinite, but
the principal are bodies-corporate, the right to hold court-leets, ^irs,
markets, ferries, forests, chases, parks, warrens, fisheries. The remedy
for disturbance is an action : I Step. Com. Also, the right of voting at
an election of a member of parliament : Wharton, 313. See Anderson
V. Jellett, y S. C. R. 1.
A patent is a franchise, and a question concerning its validity cannot
be tried in the Division Court: R. v. Co, Ct. Judge of Halifax, (1891),
•J Q. B. 203.
Validity of Devise, &o.. Disputed.— Whenever there is any dispute
as to th':) validity of any devise, bacjuest or limitation under any will or
settlement, then the jurisdiction of tha Division Court to inij[uirev;into
the same is at an end.
Malicious prosecution.. — "To put the Criminal Law in force
malicioual.v, and without any reasonable or probable cause, is wrongful ;
and if thereby another is prejudiced in property or person there is that
conjunction of injury and loss whioh is the foundation of an action : "
Addinon on Torts, 5tli ed., 19i). If tlie particulars of a claim should show
good cause of action for false imprisonment, the proceedings in Divi-
sion Court would not be restrained, because the .Judge, in giving
judf»niont, used expressions indi<;ating that he gave damages for malicious
proseciiHon: Cliivers v. S.iv.ig.', 5 J'l. * B. ()!)7. Should the particulars
be framed s^ias substantially to shew a case of malicious piosocution the
court cannot entertain it: Jones v. (^Atrrey, 2 L. M. ct P. 474. In Hunt
V. North Staffordshire Ry. Co., 2 H. & N. k'A, the particulars wore as
follows: " L'l7 12,>'. ()7. biing for moneys paid for loss of time and
attendance before the magistrates, upon a complaint and inform-
ation of W. on behalf of the defemlants." Tlie plaintiff had been
summoned before the nnxgistratos for riding in a railway carriage
without having paid his fare, ku\f\ the summons was dismissed with
costs, and the action was brought to recover the expenses occasioned
by such Kiuninons. It was held tiiat the action was, in substance,
for nuilicious prosecution, and was beyond tlie jurisdiction. A count
tlmt the deiendant caused plaintiff to oe arrested and imprisoned
without reasonable or probable cause, on a false and malicious charge
of felony, ia a count in trespass for assault and false imprisonment,
and not a count for malicious prosecution : Brandt v, Craddock, 27
L. J, Ex. 314 (Amer. reprint, 3 H. & N, 958), The defendant's wife
gave the plaintiff into the charge of a constable on an unfounded
charge of felony. The defendant attended at the police station,
and, after having been cautioned by the inspector on duty that he
would not incur the responsibility of detaining the plaintiff unless the
m
PI
72
LIBEL AND SLANDER.
ivi
Section defendant distinctly charged him with felony and signed the charge
69 sheet; the defendant signed the charge sheet, and the plaintiff was-
detained, and taken next morning before the magistrates, who discharged
him. The plaintiff took out a plaint in a county court for false impris-
onment, accompanying it with a notice, whereby he expressly disclaimed
any cause of action, in respect of the malicious prosecution. The Judge,
erroneously treating the signing of the charge sheet as the commence-
ment of a malicious prosocution, ruled that the whole was one continu-
ous transaction, and that the false imprisonment could not be separated
from the the rest, and consequently, that he had no jurisdiction and
non-snited the plaintiff. The Court of Common Pleas, on appeal,
directed a now trial : Austin v. Dowling, L. R. 5 C. P. 531.
Libel. — " It is enough to make a written statement prima facie libel-
lous, that it is injui'ious to the character or credit (domestic, public or
professioiml) of the person ooucernint,' whom it is uttered, or in any way
tends to cause men to shun his society, or to bring him into hatred or
contempt, or ridicule. When we call a statement prima facie libellous,
we d(»-not mean tliat the person malvin^ it in necessarily a wfong-door,
but that ho will be so held unless the statement is found to be within
some recoi^nized ground of justification or excuse:" Pollock on Torts,
*20(), 207 ; KoRCOos N. P. 85.) ; Odj,'ers on Libel and Slander; Stroud, -llJo.
Slander. — " Slander is an actionable wrong when special damage can
bo shewn to have followed from the utterance of the words complained
of, and also in the following cases : — Where the words impute a criminal
offence ; where they impute having a contagious disease which would
cause the person having it to be excluded from society ; where they
convey a charge of unfitness, dishonesty, or incompetence in an office,
profession or trade ; in short, where they manifestly tend to prejudice a
man in his calling. Spoken words which afford a cause of action with-
out proof of special damage are said to be actionable per ne : the
theory being that their tendency to injure the plaintiff's reputation is so
manifest that the law does not require evidence of their having actually
injured it. There is much cause, however, to deem this and other like
reasons given in our modern books mere after thoughts, devised to justify
the results of historical accident : a thing so common in current expo-
sitions of Phiglish law that we need not dwell upon this example of
it:" Pollock on Torts, 20(5; Roscoe's N. P. 865. See also Odgers on
Libel and Slander : R. S. O. c. 57.
Criminal Conversation. — "Against an adulterer the husband had an
action at commim law, commonly known as an action of criminal con-
versation. In form it was generally trespass vi et nrmis, on the theory
that ' a wife is not, as regards her husband, a free agent or separate
person,' and therefore her consent was immaterial, and the husband
might sue the adulterer as he might have sued any mere trespasser who
beat, imprisoned or carried away his wife against her will ": Pollock on
Torts, lilG, 197.
Strict proof of the marriage in such case is necessary : Taylor on Ev.
8th Ed. 190, 191.
Seduction. — This cause of action is also excluded from the jurisdic-
tion of the Divisional Court : Meyer v. Bell, 13 O. R. 35 ; Appleby v.
Franklin, 17 Q. B. D. 93.
Breach of Promise of Marriage. — It will be seen, too, that the action
of breach of promise of marriage is also specially excluded from Division
Court jurisdiction. It is unnecessary to enlarge upon this form of
action.
WHERE COURT HAS JURISDICTION.
7a
69-70
Actions against a J. P. — No action can be brought against a Justice Sections
of the Peace in the Division Court for anything he has done in the exe- «o-"»
cution of his office, if he objects thereto. This prohibition probably
also applies to every other officer and person fulfilling a public duty :
R. S. O. c. 73, 8. 1, s.-s. 2, s. 16.
If a magistrate should be sued in the Division Court for an act done
in the execution of his olifice, and liaa given notice of his objection
thereto, he cannot remove the suit by certiorari into a Superior Court :
Weston V. Sneyd, 1 H. & N. 703. At page 705, Pollock, C.B, is reported
to have said ; " The notice given put an end to the proceedings in the
County Court, and the phiintiff was in tlie same poaition as if the action
liad never been brought."
The notice which tlie justice may give must, we think, be in writing
now : section 9i5. It must be given within six days from service of notice
of action : K. S. O. c. 7:5, s. KJ.
If the action bo brought in any otlier court, and a recovery only
within tlie jurisdiction of tlie Division Couit, the plaintiff can only have
costs on the scale of that court : Ireland v. Pitcher, 11 P. K. 40;5.
(I) The Division Courts shall have iurisfliction c^'ji^o^ in
^ ' •' wliicli tlie
Court has
jnrisclic-
(a) All personal actions where the amount claimed
70
in the following cases :
does not exceed i^OO. R. 8. O. 1<S77, c. 47, s. 54
(1) ; 43 V. c. 8, s. 3.
(6) All claims and demands of debt, account or breach
of contract, or covenant, or money demand,
whether payable in money or otherwise, wliere
the amount or balance claimed does not exceed
SIOO. 41 V. c. 8, s. 6.
(c) All claims for the recovery of a debt or money
demand, the amount or balance of which does not
exceed .'if^200 and the amount or original amount
of the claim is ascertained by the signature of
the defendant or of the person whom, as execu-
tor or administrator, the defendant represents.
43 V. c. 8, s. 2, part.
and except in cases in which a jury is legally demanded by
a party as liereinafter provided, the Judge shall hear and
determine in a summary way all questions of law and fact
and may make such orders or judgments as appear to him
just and agreeable to equity and good conscience, which
iM
i •!;
74
COMBINING CAUSES OF ACTION.
I' Ir
Abscond-
ing
debtors.
Combining
causes of
action.
^•''j!^*'" shall be final and conclusive between the parties, except as
herein otherwise provided. R. S. 0. 1877, c. 47, s. 54; part.
(2) In the class of cases provided for by paragraph (c)
of the ]/ receding sub-section, the increased jurisdiction
tlnrel) ' ferred shall apply to claims and proceedings
agains s( iiding debtors under section 249, and subse-
quent sections of this Act ; and in such cases the attach-
ment .iitty issut ;^tid proceedings may be had on a claim of
not less than $4 and u< t more than S200. 43 V. c. 8, s. 4.
(3) Claims combining :
(a) A cause or causes of action in respect of which
the jurisdiction of the Division Courts, is by
the foregoing sub-sections of this section,
limited to SOO, which causes of action are here-
inafter designated as class (a) and
(h) A cause or causes of action in respect of which
the jurisdiction of the said Courts is by the said
sub-sections limited to .IPIOO, wliich causes of
action are hereinafter designated as class (/>)
(c) A cause or causes of action in respect of wliicli
the jurisdiction of the said Courts is by the
said suV)-sections limited to $200, wliich causes
of action are hereinafter designated as class (c)
may be tried and disposed of in one action, and the said
Courts shall have jurisdiction so to try the same ; provided
that the whole amount clanned in any such action in
• respect of class (a), shall not exceed $00 ; and that the
whole amount claimed in any action in respect of classes
(a) and {}>) combined, or in respect of class (6) where no
claim is made in respect of class (((), shall not exceeJ ^100,
and that the whole amount claimed in respect of classes
(a) and (c) or (h) and (c) combined, shall not exceed $200,
and that in respect of classes (b) and (c) combined, the
whole amount claimed in respect of class (6) shall not
exceed $100.
■,v ,V,
WHERE CLAIM ASCERTAINED.
76
(4)' The finding of tlie Court upon the claims when so ^^^
joined as aforesaid shall be separate, 49 V. c. 15, s, 6.
All personal actions. — Tliis gives the court jurisdiction in.aU actions
which were maintainable at commou law both ex co)Ur(ictu and ex delicto,
v/here tlie amount claimed does not exceed |()0, provided they do not
fall lender the prohibitions of section Clt. "Ptrsonal actions," at oom-
mon law, were '• such actions whereby a man claims debt or other ^oods
and chattels or damages for them or darasif^es for wrong done to his
person ": Termes de la Ley, 18 ; Atty.-Genl. v. Churchill, 8 M. * VV. 192.
They divide themselves into debt, covenant, detinue, trespass, replevin
and trespass on the case, tlie last including all cases of wrong where the
injurv was not immediate or direct but purely consequential or indirect :
Scott'v. Shepherd, 2 131. 892 ; 1 Sm. L. C. 737 ; Stephen on Pleading, 14.
Although the claim in detinue is for a return of the goods or their value,
it is a personal action ; and the court has jurisdiction: Lucas v. Elliott,
a U. C. L. J. 147 ; Wms. Personal Pty. 3.
Class ('>) extends to all actions m contracts where moneys due,
or damages not exceeding ^^100, are sought to be recovered : Morris v.
Cameron, 12 C. P. 422 ; O'Brien v. Irving, 7 P. R. 308.
The amount claimed must not be the balance of an unsettled account
where such account, in the whole, e.\ceeds S400 : see section 77.
The plaintiff cannot give the court jurisdiction by giving the defen-
<lant ciodit by way of set-off for an amount which the defendant has not
admitted to be correct: Furnival v. Saunders, 2() U. C. It. 119. The
set-otf must be admitted by both parties: Hubbard v. Goodley, 25
Q. B. D. l.'jC) ; and it is a question of fact whether the parties have agreed
to set-off one against the other, and the decision of the Judge will not be
reviewed : Jie Jenkins v. Miller, 10 P. R. 95.
A claim for less tlian If 100 by a mortgagor against a mortgagee for an
alk'ged surplus after a mortgage sale, which realized less than #400, may
bo sued under this sub-section : lie Legarie v. Canada Loan and Banking
Co., 11 P. R. TiTi. " It is an equitable cause of action for money had and
received : " Roddick v. Traders Bank, 22 O. R. 449 ; but we Hutson v.
Valliors, 19 A. R. 154.
A claim of 5U00 and interest would be beyond the jurisdiction :
Insley v. Jones, 4 l^x. D. 10.
Class (•). — The amount, or original amount of the claim must
be ascertained by the sif'nature of the defendant or his testator or
intestati!. No matter how large the original amo'int of the claim may
be, if the amount claimod in the action is less than S'JOO, the signature
of the party for the original amount gives jurisdiction : Bank of Ottawa
V. McLaughlin, 8 A. R. r)4;!.
The Judges are divided in opinion as to whether tlio liability must
appear upon the instrument, or whefcliur it is sufficient to ))roduce a
writing in which an amount is mentionei leaving it to otlier evidence to
shew whetlier there is a cause of action or not. In support of the first
view, are Spragge, C.J.0.,08ler, J.A.,Rose, J., Robertson, J., Proudfoot, J.,
Ferguson, >I., and perliaps the Court of Appeal : see McDerinid v. McDer-
mid, 13 A. R. 292, 293. The other view is maintained by the Queen's
Bench Divisional (Jourt (Armour, C.J., and Falconbridge, J.,) : Graham
v. Tomlinson, 12 P. R. 3(57. At page 370, Armour, C.J., says: "The
statute does not require that the debt shall be ascertained ♦ ♦ » nor
that the claim to recover • • • • shall be so ascertained, but only
that the amount shall be ascertained."
'If
'3
i
SH t
76
8«ctloii
70
CASES ON ASCERTAINMENT OF AMOUNT.
TABLE OF CASES.
Name and Datk ok
Case.
1881
May H. McCracUi'n v
iOriswick, 8 I'.ll.
.■ioi.
1889
Aug. 5, Kinscy v.Hoflu".
I 8 1'. K r,\r,
1881 I
Dei'. 30.! 7i''- AVidinoyii-
V. ]M<-M,ili(iiL,
:v> (.'. 1'. I;
188,T
Vvh. «. jWillsirv.NViinl, Ac-.Tiitcd onl.'i- lur
8 A. I{. :iW. si-Id |i:iy:ililc <iii ciiii-
(!iti(in 111' tultilliii'iit
111' coiitnu't
Insthvment SIONKI).
Pro. Xotc for .<!73.]4
with iiiti'ri'Ht Ain't
cliiiiiu'd, ijilo.'i 41.
Toiiit note for ijlHlil
paid li.v sunty Af-
tiiiii liy liiiii lo rrcovi'r
I'm iinli' I'or .sin.s with
ii.tin'sl. Ainnuiit
i-laiiiu'd. SlS.'i (Ifi.
188,3
Dvc. ai.
1888
Feb. (i.
1888
Forl.ir V. Ciiiiiii'. .\itioii on ordir l'oV|
111 I'. .1!. Ml. liiiihT. Vr'wv SI la.
Court.
Hngarty, C..I
Oslor, iT.
C. V I)
SpriisRo,
(! J O
Hose, J.
7iV' (irahiun V. Indovsim'nl on(diO'|UO Q. H. B.
Tonilm.^oii.
V> 1'. K. ii(i7.
lor .Sloii Action I'ov
•SlOu lo.iiu'd i ud l^i''
intiTost.
jNIc'Dcnnid v. IJond for <^rM) condi-
Mi'Di'rniid, , tioned to pay inort-
ir>A. J{. 2H7. . gaKi' ror.S-irm. I'lain-
titt'i>iiid ^\ti">.
1880
Jan. it. IMosos v Mo8e8,|'<This is to insure my
111!'. J{ 12. son Joseph to take
Junel2.'Moses v. Aroscs,' §l(l(l from his sister
ri P. 11. 144. Hannah's share to
repay money h'lit to
lur If I live till this
time next year I will
Kettle with him "
/I'c Smith V. I "Good to Sam Smith
Grant. 10 C. L. I on presentation in
T i!in person JjiloO 78 during
summer of 1884 ns
per amount deposited
with me.
('. A.
1890
May 30.
1892
1888
T. I'JO.
lie Trimble v.
Miller, 12 C. L.
T, 413.
McRobbie v.
Torenco, 5 Man
L. R. 114.
Undertaking to
third party $375.
pay
Street, J,,
C. 1>. D
Decision.
Fixed legal damages in
tho nature of interest
need not he under signa-
ture of defendant, tho
! original amount being
I flx"<l.
lAetion not on note, hut
I'm- money iiaid. No
Jurisdietion.
AfeCracken
i followed.
V. Creswiek.
Robertson, J
Ch. J).
Xojurisdiittion.
"NVritini; ascertains only
anionnt that might tie-
como duo. No Jurisdic-
tion.
Sufficient if the amount
ascertained hyany writ-
ing adduced incvidence.
Tlie didit or money de-
mand arises from pay-
ment of the money, and
the amount is not ascer-
tained by the writing in
the sense required to
give jurisdiction.
"The plaintiflT havin.g to.
establish consideration
outside the paper tho
debt is not ascertained
by proving the signature-
alone."
The acknowledgment
was given afterliahility
accrueil and was an
acknowledgment of a\y
existing liability.
Instrument preceded
bywords "To collat-
erally secure tho pay-
ment of the money
mentioned in an
assignment uf mort-
gage.''
Kvon if pro. note, only
entitled to benefit of
third party, and plain-
till" could sue only for
breach of undertaking,
Taylor, C.J.M. An agreemi-nt merely.
11
de-
nt
lility
an
ol' ail
fly.
WHAT IS A SIGNATURE.
There are also the following oases in inferior Courts.
77
Section
70
Namb and Datk of
Cask.
1881
.Jan.
Instrumknt Siuned.
Stewart v. For- Order for reapiuK ina-
gyth. 17 L. J.
N.S 87.
1881
Ap'l 14. Burns v.Uogors,
I 17 li. J. N. S.
I 2l«l.
1881
Feb.
i Manufncturnrs
I& Mk't. M. Ins.
ICo. V. Campbi'll,
1 C. L. T. 134.
chine to bo sn])|)licd
and agreement tu give
notes tlierefor.
Pro. Note.
rremiiim
^l.W.'JO.
Note lor
COUKT.
C. 0. Middle-
sex.
C. C. Leeds.
Ist Div. Ct.
Wentworth.
Decision.
The original amount as-
eertaincd, (This is not
consistent witli later
cases).
Tliat notarials recover-
able as ascertained.
Not an absolute promise
to pay a certain sum at
a fixed time.
The amount must be ascertained by the sifjnature of the parties prior
4)0 the commencement of the action : Lucas v. Dixon, 22 Q. B. D. 357 ;
Jte Graham v. Tomlinson, 12 P. R. 3(i7. Tlie parties by their joint act
must ascertain the amount as by stating an account : Kobb v. Murray,
16 A. R. 503 ; lie McKay v. Martin, 21 O. K. 104.
Though the plaintiff may sue in a higher court upon the original con-
sideration, he will not obtain the costs of that court if the amount has
been ascertained by the signature of the defendant, as by an acceptance :
White Sewing Machine Co. v. Belfry, 10 P. R. 64 ; nee Yanderwaters v.
Horton, 9 O. R. 548.
No more than Ci-00 can be recovered in the action Where interest
would bring the amount over $200, the excess must be abandoned or pro-
hibition will be ilwarded quousque until judgment is reduced to proper
amount; or partial prohibition may be awarded as to the excess : Be
Young V. Morden, 10 P. R. 276 ; Re Elliott v. Biette, 21 O. R. 595.
A claim aggregating more than $100, made up of two amounts, one
ascertained by signature, and the other not so, was not within the jurin-
diction prior to the revision of the statutes: lie Walsh v. Elliott, 11
P. R. 520 ; but this is not now law ns class (c) above could not, as the
aw then stood, be combined with classes (a) or (&).
What is a signature. — A signature is the writing or otherwise alifixing
a person's name, or a mark to represent his name, by himself or by his
authority : R. v. Justices of Kent, L. R. 8 Q. B. 305 ; 12 L. J. U. C. 112.
A stamped impression is sufificient : Jenkyns v. Gaisford, 3 Sw. & Tr.
93 ; Bennett v. Brumfitt, L. R. 3 C. P. 28. A mark is sufficient even
though the name should not be affixed : Baker v. Dening, 8 A. & E. 94 ;
lie Field, 3 Curt. 752 ; or if a wrong name should be written : Re Glover,
11 Jur. 1022 ; or an assumed name : Re Redding, 14 Jur. 1052. Initials
are perfectly good : Re Wingrove, 15 Jur. 91. The signature may be
either at the top or bottom : Durrell v. Evans, 1 H. & C. 174; and even
the name of the debtor on a printed billhead upon which the ascertainment
of the amount appeared would ^lerhaps be sufficient : Schneider v. Norris,
2 M. & S. 286 ; Evans v. Hoare, (1892), 1 Q. B. 593. A signature by an
agent would be sufficient : R. v. Justices of Kent, L. R. 8 Q. R. 305.
A forgery cannot be ratified : Merchants Bank v. Lucas, 18 S. C. R. 704.
By the English County Court Rules, 1889, particulars of claim were
required to be signed by a solicitor. Held, that a lithographed signature
was insufficient : R. v. Cowper, 24 Q. B. D. 533 ; but that signature by
4
78
POWERS OF JUDGE.
II ''
Section an anthorized clerk was sufficient: France v. Button, (1891), 2 Q. B. 208.
70 It would not be necessary that the sifjnature should show the aj^ency :
lie Whitley Partners (Limited), 32 Ch. D. 337. liven the signature in
the agent's own name would probably bo sufliciont : Commins v. Scott,
L. II. 20 Eq. 11 ; Wylson v. Dunn, :^4 Ch. D. 575. It would not be
necessary that the agent's authority should be in writing : Emmerson v.
Ilcelis, 2 Taunt. U.S.
" The most usual mode is by an unwritten roqueat or by implication
from the recognition of the principal, or from iiis ac(]uio8cenco in the
acts of the agent": Evans Prin. A- Agt, 21. But mere proof that an
agent lias been rccogni/ed as such in othor transactions, would be
insufficient: Myles v. Tiiompsoii, 23 TT. C. K. 'I'y'.i. The authority
might bo by tek'gram : Marshall v. Jamieson, 12 U. C. 11. 11'); Lilly
V. Smales, K T. In K. 410. Instruments which are defective as
promissory notes, either for imccrtainty or as containing other agree-
ments, or for any other cause would bo sntlicient acknowledgments
within this sub-section : Palmer v. Fahncstock, '.) C. P. 172 ; 20 U. C. R.
:!07; Grant v. Young, 23 II. C. P. 387; Third National Bank of Chicago
V. Cosby, 41 U. C. 11. 402 ; 43 U. C. R. 58.
An assignee of the debt might maintain the action : R. S. O. c. 122,
s. 7.
Even though particulars of claim should show a claim in excess of
$200, the excess might be abandoned at the trial : lie White v. Galbraith,
12 P. R. 513.
Jury. — The section apparently overlooks section 168 allowing the Judge
to call a jury upon his own motion.
Judge may make orders agreeable to equity and good conscience. —
This is a somewhat obscure provision. It expressly authorizes a Judge,
however, to do what he, as an arbitrator, may consider just, and does not
bind him to observe technical rules either of law or equity. The pro-
vision, however, adds nothing to the practical effect of unappealable cases
in which his decision, no matter how wrong it may be, in point of law,
cannot be reviewed : See ante, note on Prohibition ; Home v. Camden, 2
H. Bl. 536.
In appealable cases, it would doubtless be found, that no matter what
the views of a Division Court Judge on equity and good conscience, they
would bo corrected, if not in conformity with law. The provision was
referred to by Boyd, C, in Legarie v. Canada Loan and Bai>king Co., 11
P. R. 612.
Absconding Debtors. — It will be noticad that a claim against' an
absconding debtor must not exceed 9100, unless the amount is ascertained
by the signature of the defendant.
Combining causes of action. — The following are examples of claims
which may be combined : —
ft60 for tort, and f 140 on promissory note.
860 for tort, 840 on open account, and 8100 on note.
810 for tort, 800 damages for breach of contract, and 8100 on note.
899 for damages for breach of contract, and $101 on note.
850 damages for breach ofjcontract, 850 on open account, and 8100 on
note.
8100 on note, 840 for tort, and 860 open account.
The joinder of several distinct causes of action against the same
defendants is authorized, but not the joinder of several actions against
distinct persons : Burstall v. Beyfus, 26 Ch. D. 35.
JURISDICTION IN REPLEVIN.
79
BeotlonB
7172
Tl. Upon any contract for tlie payment of a sum
certain in labour or in any kind of lioods or commodities ,
*' . " (.1 Judge may
or in any other manner than in money, tlie Judj^e, after the order pay-
day has passed on which the goods or conniiodities ou<,dit ^'fo^ey-j^
to have been delivered or the labour or other thing per- °'^'^'^*^.*
formed, may give judgment for the amount in money as if \','J^ino,"ey.
the contract hud been originally so expressed. R. 8. O.
1877, c. 47, s. 5.5.
The object of this section is to provide for a class of cases which
fre(ineiitly arise in tlio country. Af^reoment.s are frequently entered
into by whicli, in the form of a promissory note, a person undertakes to
pay a certain sum m some desifjnated commodity. Accordinj^ to the
well-known principles of law, this would in the hif^lier courts, have to be
declared for and I'ecovered upon as nn ordinary simple contract debt, the
consideration necessarily beinf; a!le<^ed and proved. The section in
(piestion appears to place such a transaction, after the day for perform-
ance has expired, much in the same lif^iit as a liability upon a promissory
note, and tlie .Tudj^e may view the transaction and {^ivo jndf^ment as if
the contract had orif»inally been expressed as payable in money.
GoMerally a demand would not be necessary by the plaintiff before the
suit, it beiiit^ incumbent on the defendant to offer to perform the work or
otherwise fulfil his promise: Teal v. Clarkson, 4 O. S. 372; Jones v.
Gibbons, 8 Ex. 1J'20 ; Crabtree v. Messersmith, 19 Iowa R. 179 ; 1 American
Law lleview, .5;{8. Should the conti-act be to deliver wheat " F. O. B."
it would be the duty of the buyer to provide cars for the shipment, and
if not done there would be no breach : Marshall v. Jamieson, 42
IT. C. li. 115.
If personal services are proffered and refused there could be no
recovery : Murray v. Black, 21 O. R. 372.
The contract would be assignable : R. S. O. c. 122, s. 7.
72. The Division Courts shall also have jurisdiction in Jurisdic-
all actions of replevin where the value of the goods or other replevin,
property or effects distrained, taken or detained, does not ^^55. ^***'
exceed the sum of $60, as provided in The Replevin Act.
R. S. O. 1877, c. 47, s. 56 ; 43 V. c. 8, s. 3.
Replevin. — Formerly the value of tie property recoverable in replevin
was limited to |40. Now it is extended to 860. The Replevin Act is
R. S. O. c. 5-5.
By C. R. 1 104, it is provided, that " Whereanorder of replevin is issued
out for any personal property which had not been previously taken out of
the plaintiff's possession, and for which the plaintiff might formerly have
brought an action of trespass or trover, the defendant shall be entitled, if the
plaintiff fails in the action, to be fully indemnified against all damages
sustained by the defendant, including any extra costs which he may
incur in defending the action ; and the bond to be taken by the sheriff or
bailiff shall be conditioned not only as heretofore required in that
behalf, but also to indemnify and save harmless the defendant from
all loss and damage which he may sustain by reason of the seizure, and
of any deterioration of the property in the meantime, in tUe event of
m.
so
Saotlon
7a
PROVISIONS OF RELEVIN ACT.
its being returned, and all costa, ohargea, and expenses which the defen-
dant may incur including reasonable costs not taxable between party
" and party : This Rule shall not apply to cases of distress for rent or
damage feasant,"
This provision was inserted to provide for the defect shewn to exist in
Williams v. Crow, 10 A. 11. 801. It is very doubtful whei,^fl •. since the
repeal of the section from which the rulo is taken, by the lUwision of the
Statutes, the provision is applicable to Division (!oiirts : See notes to sees.
78 and 804.
Tlio followinji are the sections of the Replevin Act applicable to
Division Couits : —
WHKN OOODS UEl'IiRVIAIlLK.
" 2. Whore goods, chattels, deeds, bonds, debentures, promissory
notes, hills of exchange, bookH of account, papers, writings, valuab'
securities or other personal property or effects have been wrongfully c
trained under circumstances in which by the law of England, on the
day of December, 1H5!), replevin might have been made, the person com-
plaining of such distress as unlawful may bring an action of replevin, or
where such goods, chattels, property or effects have been otherwise
wrongfully taken or detained, the owner or other person capable of
maintaining an action for damages therefor may bring an action of
replevin for the recovery of the goods, chattels, property or effects, and
for the recovery of the damages sustained by reason of the unlawful
caption and detention, or of the unlawful detention, in like manner as
actions are brought and maintained by persons complaining of unlawful
distresses. R. S. O. 1887, c. 55, s. 2.
"3. No party to an action or proceeding, in any court, shall replevy
or take out of the custody of the sheriff, bailiff, or other officer, any per-
sonal property seized by him under process against such party. R. 8. O.
1887, c. 55, 8. 3.
REPLEVIN IN DIVISION COURTS.
" 5. (1) In case the value of the goods or other property or effocts
distrained, taken or detained, does not exceed the sum of $60, and in
case the title to land is not brought in question, tlie action may be
brought in the Division Court for the division within which the defen-
dant or one of the defendants resides or carries on business, or where
the goods or other property or effects have been distrained, taken or
detained.
" (2) The matter shall then be disposed of without formal pleadings,
and the powers of ^he courts and oflicors, and the proceedings generally
fihall be. as neariy &i may be, the same as in other cases which are
within the jurisdiction of Division Courts," R. S. O. 1887, c. 55, s, 5.
Formerly, the question of title to land did not oust the jurisdiction
in replevin ["ce Fordham v. Akers, 4 B. ife S, 578), but it now excludes
jurisdiction in such cases : nee notes to sec. 09, sub-sec. 4.
In replevin, a verdict or judgment is divisible, so that the plaintiff
may recover for whatever part of the goods he is entitled to and the de-
fendant for the rest : Sills v. Hunt, 16 U. C. R. 521 ; Haggart v. Kerna-
han, 17 U. C. R. 341; Henderson v. Silla 8 C. P. 68; Canniff v.
Bogart, 6 U, C. L. J. 59 ; Roscoe's N. P. 1070.
Notice of action is not necessary in replevin : Lewis v. Teale, 32
U. C. R. 108; Folger v. Minton, 10 U. C. R. 423 ; Manson v. Gurnett, 2
P. R. 389 ; Gay v. Matthews, 4 B. & S. 436.
WHEN REPLEVIN WILL LIE.
81
to
Wliotlier there haH been a taking or detention ia a matter of defence
at tliu trial : Gilchiat v. Con>{er, 11 U. C. 11. 15)7.
N.herevor troHpaHs is maintainable, ho also ia the action of replevin;
(Ajok V. Fowler, 12 U. C. 11. 5(i8; Brown v. Zimmerman, 15 U. C. R. 5()3.
If neither treapaaB nor trover would be maintainable neither would
ri'plovin: Caron v. (Jrahani, 18 U, C. It. Hiri; Hcluiffor v. Dumble, 5
(). U. 71G; except in thoae caaea whore it would be maintainable at com-
mon law : lb.
Ui'plevin will not lie for a chattel aeizod by a collector of customa for
breiuli of the revenue laws, and a writ iaaued therefor will be aet aaide:
Hcott V. MoUae, H P. U. Ki.
Notwithatandiufj the provisions of the Mimicipal Act, which prevent
tictions being brouj^lit for anythinti done under by-law until such by-
law has been quashed, audi Act api)lie9 only to suits for the recovery of
daniiii^es not to actiona of replevin : Wilaon v. The Corp. of Middlesex, 18
U. (). K. 348.
Iti order to maintain the action a^'ainst a lien -holder, the lien must
first be discharged or an offer or tender of the amount of the lien made :
l.uko V. liiggar, 11 C. V. 170; McMillan v. Uyers, \r, s. C. R. 11(4.
Any person out of whose possession books, etc., have been taken
whether by force or fraud or without right, may replevy under our statute,
but when the right to tlie custody and possession depends on the liolding
of an office, it should appear that the applicant holds the office and ia
tliorefore entitled to such books, etc.: Hammond v. McLay, 10 U. C. L. J.
2(i'.t ; and replevin will lie though there has been no wrongful taking, but
a dotention merely, for every detention ia a new taking : Deal v. Potter,
'it; U. C. R. .578.
In replevin against one person, goods cannot be taken out of the
peaceable possession of another without notice or demand: G. \V^ Ry.
Co. V. McEwai., 28 U. C. R. 528 ; Hoorigan v. Driscoll, 8 P. R. 184.
A person in possession of goods may have no right against the true
owner, yet may have a right to maintain replevin against a wrong-doer:
Gilniour v. Buck, 24 C. P. 1H7.
One who is entitled to poaaession as agent of a foreign corporation,
the owner of it, ia entitled to maintain replevin in his own name : Coquil-
lard V. Hunter, 30 U. C. R. 31G.
Where an action of replevin ia brought on the ground that the facts
would austain an action of trover, the fact of converaion muat be clearly
established : Smalley v. Gallagher, 2(5 C. P. 531.
A stranger whose goods have been distrained for rent on the premiaes
of a tenant, cannot in replevin, any more than the tenant, question the
landlord's right to demise : 8mith v. Aubrey, 7 U. C. R. 90.
Replevin may be br a^jM} upon a distress for school rates, and notice
of action is not necessary therefor: Applegarth v. Graham, 7 C. P. 171 ;
Spry v. McKenzie, 18 U. C. R. 161 ; see also Gillies v. Wood, 13 U. C. R.
357 ; Haacke v. Marr, 8 C. P. 441. But where some of the rates were
collectable, others not, the rates legally collectable must be first paid :
Corbett v. Johnston, 11 C. P. 317. See also Anglin v. Minis, 18 C. P. at
p. 174, per A. Wilson, J. The legal rates must separately appear on the
collector's roll, however, to justify the distress : Hurrell v. Wink, 8
Taunt. 369 ; Sibbald v. Roderick, 11 A. & E. 38 ; Coleman v. Kerr, 27
U. C. R. 13; Squire v. Mooney, 30 U. C. R. 531; Victoria M. F, Ina. Co.
V. Thomson, 9 A. R. 620.
In replevin for goods seized as a distress for taxes, it must distinctly
appear that such goods are liable to distress in order to justify the
seizure : Sargant v. City of Toronto, 12 C. P. 185.
D.C.A. — 6
Section
72
! ill
f:
82
Section
72
WHEN REPLEVIN WILL LIE.
Where goods are sold so that the property in them vests in the pur-
chaser, and the vendor refuses to deliver, replevin by the purchaser will
lie : O'Rourke v. Lee, 18 U. C. R. 609.
A bailifiF cannot, when a claim is made by a third person, sell goods,
seized under execution and issue an interpleader for the proceeds.
Replevin may be maintained by the claimant against the purchaser of
the gouds : Reid v. McDonald, 26 C. P. 147 ; but if claim is made to the-
proceeds he may interplead therefor : lb. p. 168.
Where neither possession nor property in a chattel has passed, a pur-
chaser cannot maintain replevin ; Bloxam v. Sanders, 4 B (&C. 941 ; Henry
v. Cook, 8 C. P. 29, nor if there is not a contract within the Statute of
Frauds : Kaitling v. Parkin, 23 C. P. 569.
Where a chattel is hired, and possession given on the terms of cer-
tain monthly payments being made, and on such being made the chattel
is to become the property of the person to whom it is hired, the hirer
can, in default of payment of the instalments, maintain replevin for the
chattel: Mason v. Johnson, 27 C. P. 208. See also, Nordheimer v.
Robinson, 2 A. R. 305; Walker v. Hyman, 1 A. R. 345; McDonald
V. Forrestal, 29 Gr. 300 ; 9 S. C. R. 12 ; Weeks v. Lalor, 8 C. P. 239 ;
Bush v. Fry, 15 O. R. 122 ; but a demand should first be made there-
for : Tuffts v. Mottashed, 29 C. P. 539.
In Arnold v. Higgins, 11 U. C. R. 191, it was held that goods seized
under an attachment from the Division Court might be replevied in a
Superior Court by a third party claiming them as his own, and so he
would appear to have the right to do yet, as the attachment is not
against him : R. S. O. c. ?5, s. 3. See Jameson v. Kerr, 6 P. R. 3 ;.
Anderson v. McEwan, 8 C. P. 532 ; Barclay v. Sutton, 7 P. R. 14.
Where the goods of A. having been seized by the sheriff under an exe-
cution against D. had been handed over by the sheriff to an assignee to
whom B. had made a voluntary assignment in insolvency, it was held
that A. might maintain replevin against the assignee: Burke v.
McWhirter, 35 U. C. R. 1.
During the Insolvent Act it was held that goods could be replevied
out of the hands of the guardian in insolvency : Jameson v. Kerr, 6'
P. R. 3, but that goods in the hands of an official assignee could not be :
Barclay v. Sutton, 7 P. R. 14. See also, Campbell v. Lepan, 21 C. P.
863.
A person agreed to manage a farm in consideration of his getting
among other things, one-third of the increase of the young stock. On
the ueath of the owner the farm manager sold all the stock, and it was
held that he had no right to do so, and replevin might be maintained by
the administratrix of the owner against the purchaser : DuffiU v. Erwin,
18 U. C. R. 431.
The taking of property under one writ of replevin does not prevent
the operation of a second writ upon the same property : Crawford v.
Thomas, (Sheriff), 7 C. P. 63 ; provided the plaintiff is not the party
Against whom the first writ issued : C. R. 1104.
Although there may be moneys due on settlement of accounts
between workman and employer, the latter can maintain replevin
against the former for the goods on which the work is done ; Bush v.
Pimlott, 9 C. P. 54.
Goods stolen or found, or bought from someone who had no authority
to sell, may be replevied by the true owner, no matter where found, and it.
is of no consequence that th^ have been sold at public sale : Mackinley
V. McGregor, 3 Whar. 396 ; Bnffington v. Gerrish, 15 Mass. 156 ; Rowley
V. Bigelow, 12 Pick. 307 ; or transferred to an assignee for the benefit.
PROCEEDINGS IN REPLEVIN.
accounts
replevin
Bush V.
of creditors: Farley v. Lincoln, 51 N. H. 577; Thompson v. Rose, 16 Section
Conn. 71. 72
If the vendor has no title, the purchaser can have none and the true
owner can replevy : Kerby v. Cahill, 6 O. S. 510 ; Lecky v. McDermott,
8 S. & R. 500 ; Gundy v. Lindsay, 2 Q. B. D. 96 ; 3 App. Gas, 459.
If a man borrow a chattel and sell it, the owner can replevy against
the buyer or anyone else : Roland v. Gundy, 5 Ohio, 202.
In Ontario there is no market overt and a purchaser cannot, as in
England, acquire title by purchase in a public market as against the
owner : see Hargrave v. Spink, (1892) 1 Q. B. 25.
Articles carried about the person of the defendant, or worn by him,
cannot, while so worn or carried, be taken from him under the writ of
replevin : Sunbolf v. Alford, 3 M. & W. 253, 254 ; Moxham v. Day, 16
Gray, 203, 220.
Goods obtained by fraud or by purchase or on a preconceived design
not to pay for them can be replevied by the vendor : Higgins v. Barton,
26 L. J. Ex. 842 ; Kingsford v. Merry, 11 Ex. 577 ; Clough v. L. & N. W.
Ry. Co., L. R. 7 Ex. 26; Cundy v. Lindsay, 3 App. Gas. 459; 22 Gent.
L. J. 537; McCullis v. Allen, 57 Vt. 505; 18 Cent. L. J. 408; but an
innocent purchaser from the fraudulent vendee would be protected :
White V. Garden, 10 G. B. 919; Stoeser v. Springer, 7 A. R. 497; unless
the party were convicted of false pretences: R. S. C. c. 174, s. 250;
Bently v. Vilmont, 12 App. Gas. 471. Replevin will lie for a swarm of
bees : R. S. O. c. 98 ; and for money in a box, or leather made into shoes,
if sufficiently identified, and for the increisise of animals, though the
increase were after the taking ; but not for animals fera natura and
unclaimed: Morris, 101; also for a ship and for sails: Marsh. 110;
Prideaux v. Warne, Sir T. Raym. 132 ; and for a vessel acquired under
proceedings in rem in a foreign Admiralty Court : Van Every v. Grant, 21
U. C. R. 542 ; Castrique v. Imrie, L. R. 4 H. L. 414.
All part owners must join in a replevin suit, nor can a tenant-in-
common, nor a joint-tenant, nor a partner bring replevin against a co-
tenant or partner for taking the common property : McNabb v. Howlaud,
11 C. P. iSi ; Ecclestone v. Jarvis, 1 U. G. R. 370.
Replevin can be maintained for leases or other title deeds : Burr v..
Munro, 6 O. S. 57 ; Anderson v. Hamilton, 4 U. C. R. 372 ; Dowling v.
Miller, 9 U. G. R. 227; and for goods distrained off the premises: Hus-
kinson v. Lawrence, 26 U. G. R. 570.
A mere servant of the owner cannot bring replevin : nor one who
never had any lawful possession : Cool v. Mulligan, 13 U. G. R. 613.
Growing timber sold and cut into logs may be replevied by the
purchaser as against the owner of the land : McGregor v. McNeil. 82
G. P. 538.
Proceedings in replevin. — There is no express rule providing what
steps must be taken to secure he issue of a summons in replevin. Tha
sections of R. S. O. 1977, c. ii, respecting procedure were reuealed on the>
Revision of the Statutes in 1887. A course of procedure was adopted for
the High Court and County Courts by the Consolidated Rules, but these'
are not applicable to Division Courts. It is submitted that an order'
should be obtained at any rate in all cases where delay would not be fatal,,
and that an affidavit (form 18) should, in all cases, be made. No other-
action can be combined with an action of replevin : Rule 41, but, never-
theless, the plaintiff must recover in the replevin action all consequential
damage in respect of the goods in question therein : Gibbs v. Cmiok-
shank, L R. 8 C. P. 454 ; Rules 13 and 41-50, inclusive, shew the oouraa
! ^ ■,*,';,
84
8»otion
72
PROCEEDINGS IN REPLEVIN.
of the action after the summons is issued. The defendant may, by pay-
ing damages and costs into court, and consenting to delivery up of the
bond, and waiving all right to property, obtain a discontinuance of the
action.
The affidavit, when not made by plaintiff himself, should describe
the deponent as servant or agent of the plaintiff, and would not be
good if described as " now acting for the said plaintiff" : Arnold v.
Hamilton, 1 P. R. 263. The affidavit should be sufficient to enable
the sheriff or bailiff to identify the property and if insufficient for that
purpose, the writ may be set aside : Jones v. Cook, 2 P. It. 396.
Sheriffs and bailiffs should observe the necessity for their making a
proper return of the writ : Carveth v. Greenwood, 3 P. R. 175.
It is a good return to say the cattle are dead, or the goods destroyed
by fire : Morris, 115.
Replevin should not, in Division Courts, be joined with any other
form of action : G. W. Ry. Co. v. Chadwick, 3 U. C. L. J. 29.
In an action against a bailiff a denial of the taking would generally
raise all his defence : Calcutt v. Ruttan, 13 U. C. R. 146 : Clarke v.
Ruttan, 6 C. P. 97.
Where an action is brought for the detention of the goods only, the
claim should be framed as in detinue: Stephens v. Cousins, 16 U. C. R.
329 ; but a lien cannot be given in evidence under a plea denying the
plaintiff's property : lb.
Property described as "two hundred and thirty sheep and lambs " is
not sufficiently described : Hoorigan v. DriscoU, 8 P. R. 184.
The writ in the Division Court may be served in the same way as an
ordinary summons in that Court after the property is replevied : Rules
47, 48.
A bailiff would be liable for not executing the writ : Boys v. Smith,
9C.P. 27.
In regulating the fees on issuing a su nmons in replevin the value of
the goods will be determined by the amount sworn to in the affidavit for
Judge's order.
The plaintiff may recover as damages the value of any of the property
in defendant's hands at the time of issuing the writ to which the j lain-
tiff proves his right, though rot actually replevied : Lewis v. Teait, 32
U. C. R. 108; see also Burn v. Blecher, 14 C. P. 415; Bletcher v. Burn.
24 U. C. R. 259 ; Patterson v. Fuller, 32 U. C. R. 240.
Replevin can be maintained against a wrong-doer by one who has a
bare possession : Gilmour v. Buck, 24 C. P. 187 ; Mejerstein v. Barber,
Ij. R. 2 C. P. 661 ; L. R. 4 H. L. 317.
The same evidence, as in trover, of demand is necessary in replevin
for the same cause : Smalley v. Gallagher, 26 C. P. 531.
The proceeding of certiorari does not apply to replevin : Mungean v.
Wheatley, 6 Ex. 88.
In replevin growing crops may be considered as goods and chattels
tinder the statute 11 Geo. II., c. 19, s. 23 ; Glover v. Coles, 7 Moore, 231 ;
1 Bing. 6.
Where one party wrongfully intermingles his property with that of
another, all the party whose property is intermingled can require is that
he should be permitted to take from the whole an equivalent in number
and quality for that which he originally possessed : McDonald v. Lane,
7 S. C. R. 462.
• «•
PROCEEDINGS IN REPLEVIN.
85
Where a bailiff seizes goods under a replevin and does not take the Section
necessary bond, the seizure will be set aside with costs to be paid by 72
the bailiff: Lawless v. Radford, 9 P. R. 33. See Bates v. Maokey,
1 0. R. 34.
Sheep which were impounded were grazing upon an open common
with the consent of the owner thereof, and were being herded by a boy
in charge of them with a view of driving them home, when they were
taken possession of by two constables against the boy's remonstrance.
Held, that the sheep were not running at large in contravention of a.
by-law of the municipality on the subject, and that the constables
were liable in replevin for impounding them. It was held, also, that
replevin would not lie against a pound-keeper : Ibbottson v. Henry, 8
0. R. 625.
Where replevin is brought and the taking is justified for rent alleged
to be due, the landlord must justify the seizure for rent due for the
premises on which the seizure was made : Robins v. Coffee, 9 O. R. 332,
In an action of replevin brought in the County Court of Haldimand
for a mare taken by the defendants from the defendants' place in that>
county, removed to the county of Brant, and there detained until
replevied. Held, that the taking could not be justified under a warrant-
issued for the arrest of the plaintiff on the charge of stealing the mare,
and although the original taking was justified under a search warrant
issued to search the plaintiff's premises in Haldimand for the mare, and
to bring it before a Justice of the Peace for that county, yet the subse-
quent removal to the county of Brant and the detention there were not
justified, and constituted the defendant a trespasser ab initio, and there-
fore the (bounty Court of Haldimand had jurisdiction to replevy the
goods in Brant : Hoover v. Craig, 12 A. R. 72.
The right of trial by jury is now extended to actions of replevin,
where tlie value of the goods sought to be recovered, exceeds ?20. Ste
section 154.
Where in an action of replevin to recover certain goods under a bill
of sale, the Judge found for the defendant on the ground that the bill of
sale was given in contemplation of insolvency, and was an unjust prefer-
ence, having the effect of injuring, obstructing and delaying creditors.
The decision of the Judge being borne out by the circumstances of the
insolvency, and the relationship existing between the parties, and the
Judge having had the further advantage of hearing and seeing the wit-
nesses, the court refused to disturb the finding : Pineo v. Gavaza, S
C. L. T. 400.
It was held in this case that goods seized under a distress warrant
for non-payment of r fine imposed by a conviction, are not repleviable by
the person against whom the distress issued, unless the magistrate who
issued it acted without jurisdiction : Hannigan v. Burgess, 8 C. L. T.
102.
Where in an action of replevin, the writ was directed to a sheriff who
was the sole liquidator of the plaintiffs, and as such instituted the action.
Held, that this was at most an irregularity, and it was too late for the
defendant to raise the objection aft")r appearance.
C. R. 1101 applies to the case of an application on the merits and
not for irregularity only.
QiKtre, whether, even if taken in time, the objection should have pre-
vailed, bavin. ■ regard to the kind of duty the sheriff has to perform in
executing a writ of replevin as to the position of the liquidator as a mere
officer under the Act : Alpha Oil Co. v. Donnelly, 12 P. R. 516.
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86
ASSIGNMENT OF REPLEVIN BOND.
Beetion Where goods levied on under execution are replevied by the grantee
^^ of the judgment debtor under a bill of sale, the sherifiF may put in a
claim of special property : Lyman v. Sheriff, 9 C. L. T. 289.
Where goods are illegally seized under an execution, but are not taken
out of the actual possession of the owner, he can only recover nominal
damages in an action of replevin for them : McLeod v. Sandall, 9 C. L. T.
65, 66 ; 26 N. B. Reps. 526.
Writ of replevin issued with blanks for defendants' name. No
waiver by putting in claim of property : Miller's Tanning Extract Co. v.
Horton, 27 N. B. Reps. 64.
As to statement in writ of the value of goods replevied. — Jurisdiction :
tee Dunlap v. Babany, 27 N. S. Reps. 549.
As to replevin for goods seized for distress under illegal conviction.
Action against constable and inspector who directed issue of distress
warrant. — Parties. — Notice of action : see Wilson v. Reid, 21 N. S. Reps.
318.
The court has always power, which it will exercise, to stay proceed-
ings on a replevin bond, whenever it would be equitable and just to do
80 : Bates v. Mackey, 1 O. R. 34; see bIso Ruttan v. Short, 12 U'. C. R.
485 ; Hedley v. Closter, 13 U. C. R. 333 ; Culham v. Love, 30 U. C. R.
410.
There may be more than two sureties in the bond, even where tlie
statute says there may be two : Meyers v. Maybee, 10 U. C. R. 200 ;
Bacon v. Langton, 9 C. P. 410 ; Becker v. Ball, 18 U. C. R. 192; Bates
V. Mackey, 1 O. R. 34.
The assignee of the bond may sue it in his own name: Bacon v.
Langton, 9 C. P. 410.
The bond may be attested by only one witness, but a subscribing
witness is necessary to its validity : Heley v. Cousins, 34 U. C. R. 63.
If a bailiff wrongfully refuse to assign the bond, an action would lie
against him: Pacaud v. McEwan, 31 U. C. R. 328.
The bond cannot be assigned while suit pending : Becker v. Ball, 18
TJ. C. R. 192.
The bond is forfeited and assignable when the court in which replevin
suit was brought refused to try the case for want of jurisdiction : Welsh
V. O'Brien, 28 U. C. R. 405.
Where the defendant succeeds on the pleas of non detinet, and not
guilty, he is entitled to an assignment of the bond and to maintain an
Action for his costs of defence : Mulvaney v. Hopkins, 18 U. C. R. 174.
Where the writ and subsequent proceedings are set aside by Judge's
order, the defendant has still a right to take the benefit of the bond :
Meloche v. Reaume, 34 U. C. R. 606.
If a plaintiff prosecuces his suit without delay there is no action on
the bond : Caswell v. Catton, 9 U. C. R. 282, but the inability of the
plaintiff's solicitor to communicate with his client, does not prevent a
forfeiture of the bond : Bletcher v. Burn, 24 U. C. R. 124.
If the plaintiff does not prosecute his suit with effect and without
delay the defendant may take an assignment of the bond from the bailiff
and sue on it in his own name : Becker v. Ball, 18 U. C. R. 192 ; Welsh
V. O'Brien, 28 U. C. R. 406 ; Mulvaney v. Hopkins, 18 U. C. R. 174 ;
Johnson v. Parke, 12 C. P. 179 ; Meloche v. Reaume, 34 U. C. R. 606 :
Culham v. Love, 30 U. C. R. 410 ; Caswell v. Catton, 9 U. C. R.282, 462;
Bletcher v. Burn, 24 U. C. R. 259 ; Meyers v. Baker, 26 U. C. R. 1<» ;
Golding V. Bellnap, 26 U. C. R. 163; Patterson v. Fuller, 81 (J. C. R.
323 ; McEelvey v. McLean, 34 U. C. R. 635.
ACTIONS ON REPLEVIN BOND.
87
It is no answer to an action on the bond, for not prosecutinf; the suit
-with effect and naaking return of the goods, to say that a return was
made according to the condition, bat the plaintiff refused to accept the ~
same. It only answers one breach : Golding v. Bellnap, 26 U. C. B, 163 :
see Kennin v. Macdonald, 12 C. L. T. 440,
Where a plaintiff succeeds only for part of the goods replevied, and
a return is adjudged of the rest, he is liable upon the bond for not prose-
cuting the suit with effect as to the goods for which he failed, and for
not returning them : Patterson v. Fuller, 31 U. C. B. 323.
A set-off may be pleaded to an action by the assignee of the bond :
McKelvey v. McLean, 34 U. C, R. 635.
Also payment into court : Thompson v. Kaye, 13 G. P. 251.
A replevin bond taken iu a Division Court suit, can be sued in that
court no matter what the penalty of the bond may be ; but judgment
cannot be for an amount beyond the penalty in the bond : section 266 ;
Exchange Bank v. Springer, 13 A. B. 390.
An action would lie against a bailiff for taking an insufficient bond in
replevin : Norman v. Hope, 13 O. B. 556, but the amount of the damages
could not exceed the penalty of the bond : Idem. See also Jeffery v. Bas-
tard, 4 A. & E. 823.
A bead in replevin, though irregular as taken to the Judge, may be
good aa a voluntary bond : Stansfeld v. Hellawell, 7 Ex. 373.
A bailiff is bound to inquire into the sufficiency of the pledges or
sureties in a replevin bond : Hindle v. Blades, 5 Taunt. 225 ; Norman v.
Hope, 14 O. B. 287.
The actual damage is all plaintiff is entitled to recover on the bond :
Holey V. Cousins, 34 U. C. B. 63.
Courts are averse to staying proceedings on replevin bonds, and prefer
leaving the question of damages to be tried in the ordinary way : Hoover
v. Zavitz, T. T. 1 & 2 Vic; Culham v. Love, and Love v. Culham, 30
U. C. R; 410 ; Meyers v. Baker, Hargreaves v. Meyers, 26 U. C. B. 16 ;
Meloche v. Beaume, 34 U. C. B, 606; Johnson v. Parke, 12 C. P. 179.
A .elease by plaintiff to one of several obligors in a replevin bond to a
bailiff, after an assignment by him to the plaintiff in replevin, would
release all the sureties, and would also preclude him from suing the
bailiff for taking insufficient sureties : Eirkendall v. Thomas, 7 U. C. B. 30.
So a reference to arbitration of the replevin suit, without the assent
of the surety, will discharge him : Archer v. Hale, 4 Bing. 464 ; Hutt v.
Gilleland, Hutt v. Keith, 1 U. C. B. 540. But it is otherwise if the surety
consents: lb.
Enlarging time for making award does not discharge the sureties :
Aldridge v. Harper, 10 Bing. 118.
A postponement of the trial of a replevin suit, without the direct
assent or concurrence of the sureties, discharges them ; the question
being, not whether the sureties are injured by the delay, but whether
they might have been : Canniff v. Bogart, 6 C. P. 474.
Nor will the attendance of the sureties at an arbitration imply
consent to the reference: Burke v. Glover, 21 U. C. B. 294: See 10
U. C. L. J. 169.
An informal bond would be enforceable by the bailiff as a voluntary
bond and he would stand as a trustee for the defendant : Stanstield v.
Hellawell, 7 Ex. 373.
The two sureties in a replevin bond are together liable only to the
amount of the penalty in the bond and the costs of the suit on the bond :
Hefford v. Alger, 1 Taunt. 218.
HI
, J% ,-<rl
-4i-i--
88
POWERS OF COURTS.
BeeMoai In replevin for distress for rent, the sareties are only liable for the?
72-73 value of the floods seized ; and if the value exceeds the rent due, they
will be only liable for the rent : Hunt v. Bound, 2 Dowl. 558.
As to liability of landlord for the acts of his bailiff, see Howells v.
Listowell Rink Co., 13 0. R. 476.
Powers of
Courts,
ill!
** Aj Injunc-
p tlons and
U receivers.
v^
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/
Belief
agaiuut
penalties,
etc.
Equitable
claium.
751. Every Division Court shall as regards all causes o£
action within its jurisdiction for the time being, have power
to grant and shall grant in any proceeding before such
court such relief, redress, or remedy, or combination of
remedies, either absolute or conditional, including the
power to relieve against penalties, forfeitures and agree-
ments for liquidated damages, and shall in every such pro-
ceedings give such and the like effect to every ground of
defence or counter-claim, equitable or legal (subject to the
provision next hereinafter contained), in as full and ample
a manner as might and ought to be done in the like case
by the High Court. 44 V. c. 5, s. 77; 49 V. c. 16, s. 38.
By The Judicature Act, R. S. 0. c. 44, s. 53, s-s. 8, it is enacted :
'^ A mandamus or an injunction may be granted, or a receiver appointed
by an interlocutory order of the court, in all cases in which it shall appear
; to the court to be just or convenient that such order should be made ;.
and any such order may be made either unconditionally, or upon
such terms and conditions as the court shall think just ; and if
an injunction is asked, either before, or at, or after the hearing
of any cause or matter, to prevent any threatened or apprehended
waste or trespass, such injunction may be granted, if the court
shall think fit, whether the person against whom such injunction is
sought is or is not in possession under any claim or title or otherwise, or
(if out of possession) does or does not claim a right to do the act sought
to be restrained under any colour of title ; and whether the estates
claimed by both or by either of the parties are legal or equitable."
By section 52, sub-section 3 of the same Act, it is enacted that :
" (Subject to appeal as in other cases) the High Court shall have power
to relieve against all penalties, forfeitures and agreements for liquidated
damages, and in granting such relief to impose such terms as to costs,
expenses, damages, compensation and all other matters as the court
thinks fit."
And by section 52, sub-section 6, that :
" If any defendant claims to be entitled to any equitable estate or
right, or to relief upon any equitable ground against any deed, instru-
ment, or contract, or against any right, title, or claim asserted by any
plaintiff or petitioner in such cause or matter, or alleges any ground of
equitable defence to any claim of the plaintiff or petitioner in such cause
or matter, the said courts respectively, and every Judge thereof, shall
give to every equitable estate, right, or ground of relief so claimed, and to
every equitable defence so alleged, such and the same effect, by ay of
defence against the claim of such plaintiff or petitioner, as the Court of
Chancery ought to have given if the same or the like matters had been
MT
PROVISIONS OF THE JUDICATURE ACT.
89^
relied on by way of defence in any suit or proceeding instituted in that
court for the same or the like purpose before the passing of The Ontario
Judicature Act, 1881."
Section 52, sub-section 7 :
" The said courts respectively, and every Judge thereof shall also
have power to grant to any defendant in respect of any equitable estate
or right, or other matter of equity, and also in respect of any legal estate,
right or title claimed or asserted by him, all such relief against any
plaintiff or petitioner as such defendant shall have properly claimed by
his pleading, and as the said courts respectively, or any Judge thereof,
might have granted in any suit instituted for that purpose by the same
defendant against the same plaintiff or petitioner; and also all such
relief relating to or connected with the original subject of the cause or
matter, and in like manner claimed against any other person, whether
already a party to the same cause or matter or not, who shall have been
duly served with notice in writing of such claim pursuant to any rule of
court or any order of the court, as might properly have been granted
against such person if he had been made a defendant to a cause duly in-
stituted by the same defendant for the like purpose ; and every person
served with any such notice shall thenceforth be deemed a party to such
cause or matter, with the same rights in respect of his defence against
such claim, as if he had been duly sued in the ordinary way by such de-
fendant."
Section 52, sub-section 8 :
" The said courts respectively, and every Judge thereof shall recog-
nize and take notice of all equitable estates, titles, and rights, and all
equitable duties and liabilities appearing incidentally in the course of
any cause or matter, in the same ipanner in which the Court of Chan-
cery would have recognized and taken notice of the same in any suit or
proceeding duly instituted therein before the passing of this Act."
Section 52, sub-section 10.
" If any action is brought in the High Court for any cause of action
for which any suit or action has been brought and is pending between
the same parties or their representatives in any place or country out of
Ontario, the court or any Judge thereof may make an order to stay all
proceedings in the High Court until satisfactory proof is offered to the
court or Judge, that the suit or action so brought in such other place or
country out of Ontario is determined or discontinued."
Section 52, sub-section 11.
" Subject 1o the aforesaid provisions for giving effect to equitable
rights and other matters of equity in manner aforesaid, and the other
express provisions of this Act, the said courts respectively, and every
Judge thereof, shall recognize and give effect to all legal claims and
demands, and all estates, rights, duties, obligations, and liabilities
existing by the common law or created by any statute, in the same
manner as the same would have been recognized and given effect to,
prior to The Ontario Judicature Act, 1881, by any of the courts then
existmg and whose jurisdiction is now vested in the High Court."
Section 53, sub-section G.
" Stipulations in contracts, as to time or otherwise, which would not
before the passing of The Ontario Judicature Act, 1881, have been
deemed to be or to have become of the essence of such contracts in a
Court of Equity, shall receive in all courts the same construction and
effect as they would, prior to the passing of said Act, have received in
equity."
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POWER TO GRANT INJUNCTIONS.
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Section Division CourtB may jrant injunctions and oommit for dlsobe-
73 dience thereto. — These sections are all introduced and practically form
part of the Division Courts Act by the above section. In Ex parte
Martin, 4 Q. B. D. 212 ; S. G. sub noin. Martin v. Bannister, 4 Q. B. D.
4D1, which was an action, in the Warwickshire County Court for
damages for a nuisance, it was held, that the section gave to an
inferior court, having no larger jurisdiction in this respect than our
Division Courts, power to grant an injunction and to commit for diso-
bedience thereof. Kelly, C.B., said : " In the present case there was a
cause of action for a nuisance and judgment for the plaintiff thereon,
and as incidental to that it is essential that the court should have power
to grant an injunction. What reason is there why the County Court
should not have the like power as the High Court under section 89,
which gives to every inferior court the same power to grant such
remedy ' or combination of remedies,' in as full and ample a manner
as might and ought to be done by the High Court ? I can see no reason
why it should not. * * * I think it is only reasonable to interpret the
words of section 89 to mean that a County Court has the same power to
commit for disobedience of an injunction as the High Court has."
On appeal, Bramwell, L.J., said: " If there has been actual damage
there is but one cause of action for which there are two remedies : dam-
ages and an injunction. The County Court then has power to entertain
a claim for damages and at the same time for an injunction to prevent a
repetition of the injury. * * * It is said that an attachment is not
part of the remedy given by the court, but a punishment inflicted for
disobedience to an injunction, but that is really not so ; it is part of
the remedy which consists of an injunction and consequent attachment.
The remedy is, in fact, an injunction enforceable by attachment."
Brett, L. J., said : " As the attachment is part of the redress the
County Court has a right not only to 'grant an injunction but to enforce
it by attachment."
Cotton, L.J., said : " I think that the County Court has power to en-
force its injunctions by attachment. The power is given by section 89,
and must be exercised in the manner and form pointed out by the
County Court Eules."
May commit in all cases for disobedience of its orders.— In
Eichards v. Cullerne, 7 Q. B. D. 62.S, the right to commit under this
section was held to extend to all orders, whether final or interlocutory.
Jessel, M.B., said : " The section applies in every case where, if the action
were in the High Court, a party could be committed for disobedience."
Brett, L.J., said: "The County Court then has the same power as the
High Court at every stage."
A person who obtains a judgment or order in the Division Court is
entitled, therefore, to the same redress and remedies, or combination of
remedies, as if the judgment or order had been given or made in the High
Court.
Equitable Execution. — A receiver could be appointed by way of
equitable execution. The County Court of Lincolnshire appointed a
receiver of moneys, which no court had the right to reach by equitable
execution, and prohibition was therefore granted. The court, however,
did not cast any doubt upon the jurisdiction to appoint a receiver in a
proper case. The English County Courts have no greater right to appoint
a receiver than the Division Courts : R. v. Judge Lincolnshire County
Court, 20 Q. B. D. 167.
Sequestration. — The Division Courts would also have power to order
the issue of a writ of sequestration. For instance, in an action of detinue
it might order the return of the goods, and upon disobedience of the
li
i:i
THE POWERS CONFERRED.
91
order the plaintiff might proceed by writ of delivery, attachment or
sequestration : Ivory v. Crnickahank, W. N. (1875) 249.
Attachment. — The authorities cited under Injunctions show clearly
the court's power to enforce its orders by attachment.
Speaking generally, it may be said that in all actions for damages or
debt within the prescribed limits, the Division Courts are now equipped,
not only with the powers of the Common Law Courts, but also with all
the powers which the Court of Chancery, in its concurrent jurisdiction,
possessed ; and also with all the powers, upon and since the fusion of
law and equity, which have been conferred upon the succeusor of these
courts. The effect of this has, in a large measure, yet to be disclosed.
Relief against penalties, forfeitures or agreements by way of
liquidated damages. — The right of a Division Court to relieve against
penalties, etc., was first given in 1886. It was then given subject to
appeal. Upon the revision of the statutes this restriction disappeared,
and the right to appeal is governed only, as in other cases, by sec. 148
and by 52 Vic. c. 31, s. 3. The power to relieve against agreements for
unliquidated damages was not possessed by any court prior to the
statute of 1886. 49 Vic. c. 16, s. 38.
Courts practically have power under these provisions to disregard all
contracts and to adjudge that in no case shall a penalty, forfeiture or
agreement fixing damages be enforced, except to the extent of actual
damage sustained. The distinction between penalties and unliquidated
damages may, generally speaking, be said therefore to have been swept
away.
Defence and counter-claim. — Every kind of defence, legal or equit-
able, including a counter-claim, may also be set up in answer to an action
in a Division Court. An absolute right is given to the defendant to in-
sist upon his defence and counter-claim whether the same involves title
to land or other matter beyond the jurisdiction of the court : see notes
to section 74.
Procedure. — Only the abstract rights and powers of the High Court
are conferred. " The power given to the inferior court is that in any
action before such court it may give the same relief, redress or remedy
which would be given in a similar action in the Superior Court. It
gives to the inferior court authority to grant the same relief, redress or
remedy as the result of the action, but it does not give such court the
same power, as the Judges of the Superior Court have, to arrive at the
granting of such relief, redress or remedy : per Brett, M.R., 10 Q. B. D. 508,
The rules of the High Court are not, therefore, applicable to Division
Courts. These courts must proceed with their own machinery and
under rules formed by the Board of County Judges, except that the
■" principles of practice " of the High Court may be applied under
section 304.
In Pryor v. City Offices Co., 10 Q. B. D. 504 (April 5th, '83), it was
held that the Judge of an inferior court had not the power of the High
Court, on a motion for a new trial, to direct judgment for either party,
the inferior court having no such express power as is conferred upon our
Division Cou.'-ts by section 146.
In Building & Loan Assn. v. Heimrod, 19 L. J. N. S. 254, 1883, it was
held that a non-suit had not the effect of preventing the plaintiff from
bringing a frash action, notwithstanding the rule of the High Court giv-
ing that effect to such a judgment in High Court cases. Bank of Ottawa
V. McLaughlin, 8 A. R. 543, 1883, is to the same effect. "The Rule of
the High Court is a rule of procedure applying only to the courts to
which it is in terms made applicable: " Per Spragge, C.J.O., Clarke v.
McDonald, 4 O. B. 310 (1883), held, that the Bules of the High Court as
Section
73
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Section
73
WHEN INJUNCTIONS MAY BE GRANTED.
to service of partners did not apply to Division Courts : see also Guy v..
G. T. R. Co., 10 P. R. 374. In two Division Courts the Rules of the
Hi^h Court authorizing speedy judgment were acted upon, but it may be
doubted, in view of the careful analysis the section has undergone in the
English Court of Appeal, whether these caseo were correctly decided :;
Smith v. Lawlor, 19 L. J. N. S. 'i.'jS (1883) ; Conners v. Birmingham, 20
L. J. N. S. 10 (1884). See also Willing v. Elliott, 37 U. C. R. 320 (187(5),
where it was held that the procedure of the High Court as to discovcry^
was not applicable to Division Courts.
Injunctions. — The cases in which Division Courts have jurisdiction^
in respect of which an injunction may be said to be part of the reh\edy,
are those in which it is desired to restram the defendant from the
repetition or continuation of any breach of contract or wrongful aco, or
from the commission of any breach of contract or injury of a like kind
arising oui of the same contract or relating to the same property or right.
In these cases the Superior Courts of Law had jurisdiction even before
the enactment of The Judicature Act : R. S. O. 1877, c. 53, s. 30.
These cases moy be said to comprise injunctions against waste, tres-
pass, nuisance, and breach of contract, and also suits against executors,
clubs or societies where some wrongful act has been or is about to be
committed by them which will prejudicially affect some right in respect
of which the plaintiff has sued in a Division Court.
Where there is a legal right capable of being enforced, the court may
ii.terfere, without being hampered by old rule^, in protection of that
right: North London Railway Co. v. Great Northern Railway Co. 11
Q. B. D. 30 at p. 39 ; G. T. Railway Co. v. Credit Valley Railway Co. 2(>-
Gr. 572. It is not compatent to grant an injunction to restrain a man
from dealing with his property or to practically give execution against
property before judgment : Newton v. Newton, 11 P. D. 13; Robinson v.
Pickering, 1(5 Ch. D. 371, 600 ; Hepburn v. Patton, 26 Gr. 597.
Nor to restrain an arbitratiiin which would be futile : North London
Railway Co. v. Great Northern Railway Co., 11 Q. B. D. 30 ; London &
Blackwall Railway Co. v. Cross, 31 Ch. D. 354.
Where a plaintiff recovered |60 damages for flooding caused by a dam,
the court granted an injunction to restrain defendant from continuing
the dam so as to pen back the water : McNab v. Taylor, 34 U. C. R. 524.
Such proof of possession as is sufficient to maintain trespass, is suffi-
cient to obtain an injunction against waste: Walker v. Friel, 16 Gr. 105,
A defendant was restrained from using his bteam engine so as to occasion
damage or annoyance to the plaintiff from smoke : Cartwright v. Gray,.
12 Gr. 399 ; but acquiescence would be a good defence : Heenan v. Dewar,
18 Gr. 438. Ordinarily a court will not grant an injunction to protect
the possession of chattels unless they are of peculiar value : Geddes v.
Morley, 1 O. S. 323, but see Wilmot v. Maitland, 2 Gr. 556. Sawlogs.
may be of peculiar value : Flint v. Corby, 4 Gr. 45 ; Fuller v. Richmond,
2 Gr. 24. If any fiduciary relation exists between the parties an in-
junction will be granted : Wood v. Rowcliffe, 3 Hare, 306 ; or if it be
necessary to protect the property in specie to prevent the plaintiff from
losing his right : Laughton v. Thompson, 7 Gr. 30 ; Merchant's Express
Co. V. Morton, 15 Gr. 274. The courts cannot entertain jurisdiction in
the case of covenants or agreements for personal services, including
duties of a personal and confidential character : Kerr on Injunctions, 429.
Where, however, a contract of personal service is entered into and con-
tains an engagement not to serve any other master, the court can luy-
hold of that and restrain him from so doing : Lumley v. Wagner, 1 D.
M. & G. 604; and a contract to give "the whole of his time to hi»
master's business " in the absence of any negative stipulation in that
BREACH OF INJUNCTION.
93
behalf, will not entitle the master to an injunction to restrain the servant
from giving part of his time to a rival of the master : Whitwood Chemical
Co. V. Hardman, (1891), 2 Oh. 416.
No action will lie against an apprentice for breach of an apprentice*
ship deed made while he w^as under age, and therefore notwithstanding
negative stipulations therein, the court will not restrain a third person
from employing the apprentice, nor the apprentice himself from being
■employed: De Francesco v. Barnnm, 43 Cli. D. 165; 45 Ch. D. 430.
An injunction restraining a distress should only be granted on condition
that the rent be paid into court: Shaw v. Jersey, 4 C. P. D. 120.
Pending the trial of the right it may be protected from irreparable, or at
all events from serious damage, by an interim injunction : Kerr on Inj. 11.
All that is required is that the injury would be a grievous one, or at least
a material one, and not adequately reparable by damages : lb. 14.
In doubtful cases where damage may be occasioned to the defen-
dant by an interim injunction the court will require the plaintiff to
enter into an undertaking to abide by any order it may make as to
damages. This should always be required when the order is made fx
varte : Graham v. Campbell, 7 Ch. D. 490. If the plaintiff is out of
the jurisdiction, or is a limited company, the undertaking of some
responsible person should be given : Kerr, 627. The undertaking ought
not to be confined to the persons restrained, but should apply to all the
defendants : Tucker v. New Brunswick, etc., Co., 44 Ch. D. 249. Upon
the injunction being dissolved the court may assess the damages or
order a reference : see Leading Article, 12 C. L. T. 225 ; but is not bound
to do so : Gault v. Murray, 21 O. E. 458. The allowance of damages is
in the discretion of the court : Featherstone v. Smith, 20 Or. 474 ; Hessin
v. Coppin, 21 Gr. 253 ; Smith v. Day, 21 Ch. D. 421 ; but in the later case
of Crriftith v. Blake, 27 Ch. D. 474, it was said that damages would be
granted in all cases where the plaintiff fails on the merits, unless there
are special circumstances to the contrary. The inquiry as to damages
need not be ordered at the trial : Ross v. Buxton, W. N. (1888) 55. If the
defendant dies, his representatives may obtain the damages : Sheppard v.
Gihuour, W. N. (1887), 242.
Mandatory ii\junction.— This is an order that things be restored to
their former condition. If damages would be ample compensation, and if
great inconvenience would be caused by granting the injunction, it will
be refused. But if the restoration of the former condition of things is
the only adequate remedy, or if the act complained of is in breach of an
express stipulation, the injunction will go no matter how great the incon-
venience : Durell v. Pritchard, L. K. 1 Ch. 244 ; McManus v. Cooke, 85
Ch. D. 687. It will also go when there has been an attempt to anticipate
an injunction : Daniel v. Ferguson, (1891), 2 Ch. 27. The court may
interfere on interlocutory application, but the right must be practically
free from doubt : Toronto Brewing and Malting Co. v. Blake, 2 O. B.
175.
Breach of injunction. — The remedy for breach of an injunction is
by attachment for contempt. No breach of the injunction can be com-
mitted until the party restrained has notice thereof. He may have
notice by being in court when the order is made or by telegraph : Kerr,
641. Notice of motion for committal should be served personally. A
person who assists in the breach may be committed though not re-
strained by the order : Wellesley v. Mornington, 11 Beav. 180 ; Bickford
v. Welland Ry. Co., 17 Gr. 484 ; Brown v. Sage, 12 Gr. 25. The fact
that no damage is done by the breach of the injunction is no answer to
the motion to commit : Brown v. Sage, lb. The court may discharge a
party committed for breach of the injunction, upon his n-rplaining and
apologising for the contempt. If he is unable to pay the costs, the
Section
73
If
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33
'I
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94
APPOINTMENT OF RECEIVERS.
SmSfl
Section court will not make the payment nf *^em a condition of hia disoharf^e r
T3 Donnelly v. Donnelly, 9 O. I?. G73 ; Roberts v. Dawson, 21 O. R. 635.
Receivera. — A receiver may be appointed to preserve property pend-
ing litigation. The more usual class of cases in which, within Division
Court jurisdiction, a receiver will be sought will be those where what is
called " equitable execution," is desired, " confusion of ideas has arisen
from the use of the term ' equitable execution.' The expression tends to
error. It has often been used by Judges and occurs in some orders as a
short expression indicating that the person who obtains the order gets the
same benefit as he would liave got from a legal execution. But what he
gets by the appointment of a receiver is not execution, but equitable relief,
which is granted on the ground that there is no remedy by execution at
law; it is a taking out of the way a hindrance which prevents execution
at Common Law. * * * It cannot be made against the estate
which formerly belonged to a dead man, but which, as he is dead, is no
longer his, it must be made against his heir or devisee, and under such
circumstances that the court has jurisdiction over the heir or devisee : "
Per Cotton, li.J, In re Sheppard, Atkins & Sheppard, 43 Ch. D. 1S5,
136 ; Kirk v. Burgess, 15 O. R. 608. The application may be made in
the same action after judgment: Anglo-Indian Bank v. Davies, 9 Ch. D.
275 ; Smith v. Cowell, 6 Q. B. D. 75 ; Salt v. Cooper, 16 Ch. D. 544 ;
McLean v. Allen, 14 P. R. 84 ; and it is not necessary to show that the
money cannot be recovered out of other property, or even that legal
execution has issued: Stuart v. Grough, 15 A. R. 299; Kincaid v.
Kincaid, 12 P. R. 462. The appointment will only be made where the
amount of the judgment justifies the expense, and there is fair reason to
suppose there is something to receive: I. v. K., W. N. (1884), 63. If any
good end can be served the court will make the appointment : Kirk v.
Burgess. 15 O. R. 608. Even if it is undetermined whether anything
is due the order may go: McLean v. Bruce, 14 P. R. 190. Trust
moneys not yet due, but which may become due in the future, not
being attachable, may be reached bv the appointment of a receiver :
Webb V. Stenton, 11 Q. B. D. 518; Fuggle v. Bland, 11 Q. B. D. 711
Westhead v. Riley, 25 Ch. D. 413 ; Archer v. Archer, W. N. (1^ tl), G(.
Kincaid v. Reid, 21 L. J. N. 8. 144 ; Stuart v. Grough, 15 P >99. A
right to maintain an action to enforce a covenant to mortgage
may be made available to a judgment creditor by the anent of a
receiver : Moot v. Gibson, 21 O. R. 248. Property of a ried woman
subject to a restraint on anticipation cannot be reachc ()hapn m v.
Biggs, 11 Q. B. D. 27 , Macdonald v. Anderson, 25 L. J. N. S. 2 u : see
Article " High Court Practice in Inferior Courts," 3 C. L. T. 374.
A receiver cannot be appointed of a fund when it depends on the
discretion of trustees whether any sum shall be paid: R. v. Judge
County Court of Lincolnshire, 20 Q. B. D. 167 ; Fisken v. Brooke, 4
A. R. 8. A pension of a retired Indian officer, being rendered inalienable
by statute, is not liable to be taken in execution by the appointment of a
receiver: Lucas v. Harris, 18 Q. B. D. 127; but commutation money of
part of the retired pay might be reached : Crowe v. Price, 22 Q. B. D.
429. Salary not yet earned cannot be reached : Trust and Loan Co. v.
Gorsline, 12 P. R. 654. Where the interest of the debtor is reversionary,
the receiver is entitled to it when it falls into possession, but the court'
has no jurisdiction to declare a charge upon the fund, and order an
immediate sale : Flegg v. Prentice, (1892), 2 Oh. 428.
Money due to a mortgagee may be reached and the mortgagor will be
restrained from paying the debt and the mortgagee from assigning the
moitgnge : Parrett v. Lortie, 7 C. L. T. 195. Where a judgment debtor
is entitled to a share in the estate of a deceased intestate, to whom nO'
administration has been taken out, a receiver may be granted : MuUane
1
SEQUESTRATION.
95
V. Ahem, 28 L. R. Ir. 105. The court will not appoint a receiver of a
judgment (lobtor'fl property in general torma : Hamilton v. Bro^jden, W. N.
(18'Jl), 14. Unascertamed and unadjusted insurance moneys can only be ~
reached in Division Courts by meant) of a receiver: Boyd v. Haynes,
6 P. R. 15 ; Canada Cotton Co. v. Parmalee, 13 P. R. 20, 308; Simpson v.
Chase, 14 P. R. 280. Where there is a legal mode of execution a receiver
will not be appointed : Manchester & L. D. Banking Co. v. Parkinson,
22 Q. B. D. 173 ; Hamilton v. Brogden, W. N. (1891), 36. Where the
plaintiff is appointed receiver it is without security and without salary :
Kincaid v. Reed, 21 L. J. N. 8. 144 ; Boyle v. Bettws Coll. Co., 2 Ch. D. 72fi.
Tlie plaintiff's solicitor should not be appointed : Re Lloyd, Allen v.
Lloyd, 12 Ch. D. 447. Where security is required the' receiver has no
title till it is perfected : Edwards v. Edwards, 2 Ch. D. 291 ; but his
title then relates back to the date of the order : Ex parte Evans, 13 Ch.
D. 252. The order takes the fund into the custody of the law, and no
one else than the receiver can lay hands on or interfere with it without
the leave of the court: Ite Pope, 17 Q. B. D. 743; Stuart v. Grough,
Uy A. R. 309 ; Levasseur v. Mason, (1891), 2 Q. B. 73. " The court will
not permit a receiver appointed by its authority, and who is therefore
its officer, to be interfered with or to be dispossessed of the property he
is directed to receive, by any one, although the order appointing him may
be perfectly erroneous:" Ames v. Birkenhead, 20 Beav. 332; Cole-
man v. Glanville, 18 Gr. 42 ; Evelyn v. Lewis, 3 Hare, 472 ; Russell
V. East Anglian Ry. Co., 3 Mac. & G. 104 ; Defries v. Creed, 13 W. R.
('.32 ; Searle v. Choat, 25 Ch. D. 7:^3. Where a receiver was sued by a
tenant upon whom he has distrained the action was stayed : Simpson v.
Hutchinson, 7 Gr. 308.
The order should ordinarily be made on notice. If made ex parte it
should be for a limited time only, and should not award costs : McLean
V. Allen, 14 P. R. 84. It should reserve the rights of prior encumbran-
cers or they may obtain leave to proceed notwithstanding the appoint-
ment : Gardner v. Burgess. 13 P. R. 250; Lane v. Capsey, (1891), 3 Ch,
411. The status of the receiver is not that of an assignee, but only that
of a chargee or lien-holder upon */he fund or property to which the debtor
is entitled: lie Morphy, Morphy v. Niven, 11 P. R. 321. He has a right
to assert his claims and to bring actions even for administration though
he may require, in some instances, the sanction of the court : lb. Any
action by the receiver must be in the name of the debtor : MoGuin v.
Fretts, 13 O. R. 699 ; Stuart v. Grough, 14 O. R, 255. The receiver
should apply to the debtor to bring the action.' If the debtor delays
unreasonably in bringing or prosecuting it, or refuses to bring it, the
•-eceiver may obtain leave : McLean v. Alien, 14 P. R. 291.
The appointment of a receiver, in itself, operates as an injunction
restraining the defendant from getting in money which the receiver is
appointed to receive : per Lindley, L.J., Sartoris v. Sartoris, (1892), 1 Ch.
11. The receiver must pass his accounts before the Judge or an officer
directed to pass them. If not appointed without salary, he will be
allowed five per cent, or more, according to special circumstances : Kerr
on Receivers, 164.
For forms of proceedings see Schedule of forms. See also Truman
v. Redgrave, 18 Ch. D. 647 ; Book v. Ruth, 20 L. J. N. S. 193.
Seqaestration. — The remedy by sequestration would be applicable
only, in Division Courts, when positive orders of the court, other than for
the payment of money, had not been complied with. If for payment of
money, it would be in the form of a judgment and the warrant of execu-
tion would be the remedy thereon : London & Canadian v. Merritt, 82
C. P. 875. The writ is a means of ooercing or compelling obedience to
Section
73
I
*-s
96
COUNTER-CLAIM.
* i
n I
Section t'.ie order of the court by keeping the disobedient party out of his
73 property.
Penalties, Forfeitupes and Liquidated Bamages— Since 8 & 9 Wm.
III., c. 11, a penalty for payment of a larger sum on non-payment of a
smaller, has been irrecoverable.
The contest, since that time, has principally been whether a sum
mentioned as payable on nou-performance of a contract, was a penalty
or a sum payable as liquidated damages.
The following rules have been laid down :- -
1. Where any one of the stipulations is for payment of money the
court will not sever the stipulations, bu*^^ will hold the sum to be a pen-
alty : Astley v. Weldon, 2 B. &. P. 346 ; Kemble v. Farren, G Bing. 141 ;
lie Newman, 4 Ch. D. 724.
2. Where one lump sum is made payable by way of compensation on
the occurrence of one or all of several events, some serious and some
trifling, the sum is a penalty : Elphinstono v. Monkland Iron & Goal Co.,
11 App. Gas. 332.
3. But where the sum is payable on a single event only, not being the
non-payment of money, or where the damages for the breach of each
stipulation are unascertainable, or not readily ascertainable, then though
the stipulations may be of varyin^^ importance, the amount will be
treated as liquidated damages : Wallis v. Smith, 21 Gh. D. 243 • Law. v.
Local Board of Redditch, (1892), 1 Q. B. 127 ; see notes to Sloman v.
Walter, White & Tudor's L. C. 1257.
4. Where a deposit is to be forfeited for a breach of a number of stipu-
lations, although some may be trifling, the contract of the parties must
be carried out : Wallis v'. Smith, 21 Gh. D. 258 ; Howe y. Smith, 27
Ch. D. 89.
As stated above, the courts now have full power to give relief not only
against penalties and forfeitures, but also agreements for liquidated
damages.
Counter-claim. — " The Judicature Acts did not alter the rights of
parties, they only affected procedure. Before these Acts a person having
u cross-claim must have raised it by cross-action, but these Acts
have given a right to counter-claim. In some of the cases language has
been used which would seem to imply that a counter-claim is some-
times in the nature of set-off, and sometimes not. No doubt matter is
occasionally pleaded as counter-claim which is really set-off, but counter-
claim is really in the nature of a cross-action. The court has determined
that where there is a counter-claim, in settling the rights of parties, the
claim and counter-claim are, for all purposes, except execution, two
independent actions : " per Lord Esher, M. B. Stumore v. Campbell,
<1892), 1 Q. B. 316.
A counter-claim must claim relief against the plaintiff and he must
ba a party to it : Harris v. Gamble, 6 Gh. D. 748 ; Furness v. Booth,
4 Gh. D. 586 ; Turner v. Hednesford Gas Go. 3 Ex. D. 145.
When two or more plaintifis sue for a joint claim, the defendant may
set up a separate counter-claim sounding in damages against each or
either of them : Manchester S. & L. By. Go. v. Brooks, 2 Ex. D. 243.
A defendant can only set up b^ way of counter-claim or set-off, a
demand for which be can bring an action. Therefore, a cause of action
which arose out of the jurisdiction, cannot be set up by way of counter-
claim or set-off, unless the circumstances be such as to permit of an
action being brought upon it : Ganadiun Bank of Commerce v. North-
wood, 8 C. L. T. 356 ; 5 Man. L. B. 342.
. WHAT COUNTER-CLAIMS ALLOWABLE.
It is not essential that the amount claimed by the counter-claim
should equal that claimed by the plaintiff : Motttyn v. West Mostyn Coal
.»nd Iron Co., 1 C. P. D. 145.
A claim which the Court of Chancery would, before the Judicature
Act, have restrained a defendant from pleading as a set-off, cannot be set
up as a counter-claim : Newell v. Nat. Fro. Bank of England, 1 C. P. D.
496.
Where a claim and counter-claim arise out of different matters, so
that the counter-claim is really in the nature of a cross-action, the
defendant, if he is residing out of the jurisdiction, may be required to
gire security for the plaintiff's costs of the counter-claim, and if the only
dispute remaining arise on the counter-claim it is only right that he
should be so required : Sykes v. Sacerdoti, 15 Q. B. D. 423.
A counter-claim need not arise out of the same subject as the cause
-of action. There can be a counter-claim for an entirely different subject
as between the parties to the action themselves : Brown v. Nelson, 11
P. R. 121 ; McLean v. Hamilton St. Ry. Co., 11 P. R. 193.
A defendant cannot obtain judgment on his counter-claim until the
plaintiff's claim is tried : Aitkin v. Dunbar, 4G L. J. Ch. 489 ; Greer v.
Hunter, 11 C. L. T. 281.
A plaintiff cannot discontinue his action after a counter-claim has
been delive-ed so as to prevent defendant from enforcing the cause
of action contained in the counter-claim : McGowan v. Middleton, 11
Q. B. D. 464, overruling Vavasseur v. Krupp, 15 Ch. D. 474 ; but qucere, as
to an action in the Division Court, if the counter-claim should be beyond
the court's jurisdiction ?
The courts will give effect to equitable rights, though not set up by
•way of counter-claim : Mostyn v. Wedt Mostyn Coal and Iron Co.,
1 C. P. D. 145 ; Eyre v. Hughes, 2 Ch. D. 148 ; Breslauer v. Barwick,
36 L. T. N. S. 52.
Counter-claims have been allowed against assignees of choses in action
in the following cases : Claim of breach of same contract : Young v.
Kitchin, 3 Ex. D. 127 ; Exchange Bank v. Stinson, 32 C. P. 158 ; Gov-
ernment of Newfoundland v. Newfoundland Ry. Co., 13 App. Cas. 199,
gee page 213, where it is said : " Unliquidated damages may be set off as
between the original parties and also against an assignee, if flowing out
of and inseparably connected with the dealings and transactions which
«lso give rise to the subject of the assignment. See also Irving v. Mor-
rison, 27 C. P. 242 ; Henderson v. Brown, 18 Gr. 86; Williams v. Sibley,
4 Giff. 142 ; Gould v. Close, 21 Gr. 275 ; Cavendish v. Geaves, 24 Beav.
163 ; Re West of England and S. W. Dist. Bank. Ex parte Branwhite,
40 L. T. N. S. 652; Re National Alliance Co., Ashworth's Case, 7
L. T. N. S. 64 ; Greene v. Harris, 7 C. L. T. 391 ; 16 S. C. R. 714.
In an action for rent, a claim for damages for breach of an implied
•covenant in the lease, may be set up by way of counter-claim : Mostyn v.
West Mostyn Coal & Iron Co., 1 C. P. D. 145.
A person named in a defence as party to a counter-claim cannot
counter-claim against the defendant : Street t. Glover, 2 Q. B. D. 498.
It is optional with a defendant to set up a counter-claim, and his
not doing so does not bar hia right to take any other proseedings : Hind*
lay v. Haslam, 3 Q. B. D. 481.
A defendant must not bring a third party before the court as defend-
ant to a counter claim against the plaintiff, unless the relief to be
obtained against him relates Bpeoifically to, or is connected with the
subject matter of the action : Padwick v. Scott, 2 Ch. D. 736.
D.C.A. — 7
97
Section
73
it^
-I
I-
98
WHEN MATTER EXCEEDS JURISDICTION.
Sactloni
73-74
Duty of
Court
where de-
fence or
counter-
claim
involves
matter
beyond
jurisdio-
tion.
In an action on a mort(;age given for the balance of purchase money
of land, defendant may counter-claim setting up fraud in the transaction
- and seeking a return of the money paid with interest : Lee v. McMahon^
2 O. B. 654; see also Bartholemew v. Rawlings, W. N. (1876) 56.
In an action for wages, the master has the right to counter-claim f or-
damage sustained by reason of the servant's improperly leaving his em-
ployment : Awberry v. McLean, 19 L. J. N. S. 335.
A counter-claim was allowed in respect of short deliveries of cargoes-
of goods in an action for the price of other goods : Gappeleus v. Brown,
W. N. (1875) 231 ; so also, a set-off of a Couuty Court judgment was-
allowed in an action on the judgment of the Court of Exchequer :
Sandys v. Louis, W. N. (1875) 249.
A counter-claim for damages for breach of an agreement to let, and'
for specific performance, was allowed to stand in an action for rent ::
Atwood v. Miller, W. N. (1876) 11.
Relief against third parties.— Belief may be granted against a third
party served with notice of the claim in writing if any rule or order of
court is made : see R. S. O. o. 44, s. 52, s-s. 7. The Consolidated Bulesdo not-
apply: see Pryor v. City Offices Co., 10 Q. B. D. 504; Clarke v. Mac-
donald, 4 O. B. 310; Merchants Bank v. Van Allen, 10 P. B. 348. No
Bules have yet been adopted by the Board of County Judges dealing;
with third parties.
In the High Court two conditions must be complied with : 1. The-
relief sought must relate specifically to, or be connected with, the subject
matter of the action : Padwick v. Scott, 2 Ch. D. 736 ; Treleven v. Bray,
1 Ch. D. 176; Barber v. Blaiberg, 19 Ch. D. 473; Quin v. Hession, 40'
L. T. N. S. 70. 2. The relief cannot be sought either against a co-defend-
ant or a third person in which the plaintiff is not interested : Treleven v..
Bray, 1 Ch. D. 176 ; Furness v. Booth, 4 Ch. D. 586 ; Harris v. Gamble,
6 Ch. D. 7t8 ; Warren v. Twining, 24 W. B. 536 ; Evans v. Buck, 4 Ch. D.
432 ; Dear v. Sworder, 4 Ch. D. 476 ; McLay v. Sharp, W. N. (1877) 216 ;.
Town of Dnnnas v. Gilmonr, 2 O. B. 463.
It is no objection that the third party could not have been a party to^
the plaintiff's original claim : Turner v. Hednesford Gas Co., 3 Ex. D.
146.
7'4. Where in any proceeding before a Division Court-
any defence or counter-claim of the defendant involves,
matter beyond the jurisdiction of the court, such defence
or counter-claim shall not affect the competence or the duty
of the court to dispose of the whole matter in controversy
so far as relates to the demand of the plaintiff and the
defence thereto, but no relief exceeding that which the
court has jurisdiction to administer shall be given to the
defendant upon any such counter-claim. 44 V. c. 5, s. 78.
[As to transfer of cases from the Division Court to the-
High Court, See chap. 44, «• i^S.]
The jurisdiction of the Division Court being limited, it would, unlesp
for this section, necessarily be in many cases a matter beyond the jun'a-
diction of such Court to investigate the subject of counter-claim, and tha-
Legislature has very properly provided that where any defence or couQtdr>-
MINORS MAY SUE FOR WAGES.
^
claim involves matters beyond snob jarisdiotion, the bands of tbe court Beetloni
■hall not be stayed, bat that it may fully investigate such matters. 74-76
Any counter-claim may be entertained up to tbe full amount of the
plaintifiTs claim. As soon as judgment is obtained of sufficient amount
to overtop, or rather equal the claim of the plaintiff, then if the counter-
claim is prima facie beyond the jurisdiction of the court, the court shall
hold its hand, and as regards the overplus of tiie counter-claim, that
should be dealt with by some other court : Davis v. Flagstaff Silver
Mining Co., 3 C. F. D. 228. The defendant is entitled to issue execution
for any balance in bis favor not exceeding $100 ; Rule 152 ; or perhaps
not exceeding the jurisdiction.
By the B. R. O. c. 44, s. 158, it is provided :
" In oases before any County or Division Court where the defence or
counter-claim of the defendant involves matter beyond the jurisdiction
of the court, the High Court, or any division or Judge thereof, may, on
the application of any party to the proceeding, order that the whole
proceeding be transferred from such court to the High Court or to any
division thereof ; and in such case the record in such proceeding ahaU
be transmitted by the clerk or other proper officer of tbe County or
Division Court to the said High Court ; and the same shall thenceforth
be continued and prosecuted iu the said High Court as if it had been
originally commenced therein."
The record would be a complete transcript of the summons, the par-
ticulars of claim, the set-off or counter-claim, and all other papers on
file in the court.
•75. No privilege shall be allowed to any person to no privf-
exempt him from suintj and beinjy sued in a Division Court ; Mempt
tr o S) ' trom juris-
and any executor or administrator may sue or be sued ^'^tjon of
therein ; and the judgment and execution shall be such as
in like cases would be given or issued in the High Court.
R. S. 0. 1877, c. 47, s. 57.
At one time certain classes were privileged from service of summonses
or arrest : see Lyster v. Boulton, 5 U. C. R. 632 ; R v. Gamble, 9 U. C. R.
646 ; but this abolishes any privileges in Division Courts.
lis I w
III-
Ik 1
I
li"
TO. A minor may sue in a Division Court for any sum Minors
ivages, in the same 1
R. S. O. 1877, c. 47,
not exceeding $100 due to him. for wages, in the same for wages.
manner as if he were of full age,
8.58.
This is a special privilege given to minors, i.e., persons under 21
years of age.
It does not restrict infants from suing in the Division Courts for an y~
thi.ig but wages, but was intended only to enable them to recover for
the r own labour in their own name : Ferris v. Fox, 11 U. C. R. 612.
An infant has six years to bring such action after attaining his majority ::
Taylor v. Parnell, 43 U. C. R. 239. In suing for anything but wages, an.
infant must procure the attendance of a next friend at the office of the<
clerk of the court, at the time of entering the suit, who must undertakoi
to be responsible for costs : Rule 126. See Beoher v. McDonald, 5 Manv.
L. R. 223, as to the practice in the Province of Manitoba. The form of
i't
:i
100
MASTER AND SERVANT.
Section
76
R ^
such undertaking will be found at No. 7 of the Forma. It is doubtful
if an infant can hire himself for wages to his parent, and whether the
contract is binding on the latter: Perlet v. Perlet, 15 U. C. R. 165. The
wages which a minor earns under a contract of hiring belong to himself,
and not to his parents : Deleadernier v. Burton, 1*2 Gr. 669.
An infant cannot be a common informer : Garrett v. Roberts, 10
A. B. 650.
The right of a servant to recover his wages, when recoverable on an
entire contract of service and payable in an indivisible sum, depends on
the complete performance of hie term of service. If hired, for instance,
for a year for a lump sum as wages, and he leaves before his time has
expired without just cause, he forfeits his wages : Huttman v. Bo jlnois,
2 C. & P. 510 ; Lilley v. Elwin, 11 Q. B. 742 ; Turner v. Robinson, 5 B.
& Ad. 789 ; Blake v. Shaw, 10 U. C. R. 180. See also Warburton v.
Heyworth, 6 Q. B. D. 1 ; Barrie Gas Co. v. Sullivan, 5 A. R. 110 ; 5 A. R.
115 ; 13 U. C. R. 205 ; L. R. 4 C. P. 330 ; L. R. 9 Q. B. 367 ; 1 H. & N.
266. But if the servant has been paid any portion of such year's salary
the employer is not entitled to recover it back, neither is he entitled to
have it applied on account of moneys payable in respect of a previous
year's service ; and although the employer, on dismissing his servant,
may have assigned one ground therefor, he is not precluded from after-
wards shewing the entire ground for such dismissal: Tibbs v. Wilkes,
23 Gr. 439 ; but see Maw v. Jones, 25 Q. B. D. 107. The rule that
an indefinite hiring is to be taken as a yearly one (Rettinger v.
Macdougall, 9 C. P. 485), is not a rule of law, but the jury are
to say what the terms of the hiring were, judging from the cir-
cumstances of the case; thus, on an indefinite hiring at certain
weekly wages, the jury may infer the hiring was weekly : Baxter v.
Nurse, 6 M. & G. 935. So a hiring at " two guineas a week for ohg yoar "
is a weekly hiring : Robertson v. Jenner, 15 L. T. N. S. 514, per Bram-
well, B.; or at " £2 a week and a house" : Evans v. Roe, L. R. 7 C. P.
138, is a hiring by the week and not by the year. There is no inflexible
rule that an indefinite hiring of a clerk must be construed as a hiring by
the year : Fairn --n v. Oakford, 5 H. <& N. 635. In this case the plaintiff
entered the defendant's employment at a salary of £250 a year, which
was paid weekly. The jury found it a weekly hiring and the court
refused to interfere: tee also Rettinger v. Macdougall, 9 C. P. 485.
Should a person be hired for a year, his wages payable at the rate of so
much per month, it is submitted, on the authority of Taylor v. Laird, 1
H. & N. 266 ; Fairman v. Oakford, 5 H. «fe N. 635, and Button v. Thomp-
jon, L. R. 4 0. P. 330, to be clearly established that each month's wages
'Would become vested at the end of each month and could not be divested
/by any misconduct of the servant, and that the rule about forfeiture of
wages does not apply to such a case. The case of Walsh v. Walley, L. R.
•9 Q. B. 367, is clearly distinguishable from the others. Where a master,
having a right to discharge his servant for misconduct, condones the act
and retains the servant, he cannot afterwards discharge him for the
tame act: Phillips v. Foxall, L. R. 7 Q. B. 680, per Blackburn, J.; but
this condonation is subject to the implied condition of future good con-
■duct, and whenever any new misconduct occurs the old offences may be
invoked and put in the scale against the offender as cause for dismissal :
Molntyre v. Hockin, 16 A. R. 498. With regard to menial or domestic
flervants there is a common understanding, though the contract is for a
year, that it may be dissolved by either party on giving a month's warn-
ing or a month's wages : Beeston v. CoUyer, 4 Bing. 313, per Gaselee, J.;
Fawcett v. Cash, 6 B. <& Ad. 904 ; Nowlan v. Ablett, 2 G. M. A B. 64.
If the master should, without just cause, turn the servant away without
notice, the latter would be entitled to recover a month's wages beyond
DISMISSAL OF SERVANT.
101
the arrears: Robinson v. Hindman, 3 Eap. 235; but see Maw v.
Jones, 25 Q. B. D. 107. If a servant misconduct himself, the master
may turn him away without any warning : Spain v. Arnott, 2 Stark, ~
256. A refusal to obey a lawful order (as to remain at home at
a certain time, or to do a proper day's harvest work, etc.), is a
{{ood ground of dismissal : s. c, and Lilley v. Elwin, 11 Q. B. 742. And
it matters not how reasonable or urgent the excuse for the servant's
wilful absence may be : Turner v. Mason, 14 M. & W. 112. See Mc<
Edward v. Ogilvie Milling Co., 8 C, L. T. 150 ; 6 Man. L. R. 77. If a,
clerk claims to be a partner he can be forthwith dismissed : Amor v.
Fearon, 9 A. & E. 548. So where a clerk disobeys a direction to apply
remittances in a particular way : Smith v. Thompson, 8 C. B. 44 ; or a
traveller neglects immediately to remit sums collected in accordance
with the terms of his engagement: Blencarn v. Hodges' Distillery Com-
pany, 16 L. T. N. S. 608; or sells his employer's goods to a brothel
keeper lb.; or where a servant embezzles, though his wages due exceed
what he has embezzled : Brown v. Croft, 1 Chitty, Prac. of the Law, 82.
Bo where a servant employed to purchase goods for his master, accepts
even on a single occasion a commission from the seller without his
master's knowledge : Boston Deep Sea, &c., Co. v. Ansell, 39 Ch. D. 339 :
see Lister v. Stubbs, 45 Ch. D. 1 ; or is discovered in any gambling trans-
action or in the nature thereof : Pearce v. Foster, 17 Q. B. D. 536. See
Priestman v. Brastreet, 15 O. R. 558. Where a person is engaged by
a firm, the death of one of the partners puts an end to the contract, and
no action can be brought against survivors for not employing the plaintiff:
Tasker v. Shepherd, G H. & N. 575 ; Burnet v. Hope, 9 O. R. 10 ; but &
voluntary parting with the business is a breach of the contract to employ :
Stirling v. Maitland, 5 B. <& S. 840; and the fact that the defendants'
manufactory had been burnt down would be no excuse for dismissal :
Turner v. Goldsmith, (1891), 1 Q. B. 544; It is different with a person
paid by commission : Ex parte Maclure, L. R. 5 Ch. 737 : but see last case.
It is an implied condition in contracts for personal service, that the-
death of ' either party shall dissolve the contract : Farrow v. Wilson,
L. R. 4 C. P. 744. Incapacity in a servant from illness arising after
a contract for personal service, absolute in its terms, has been entered
into, is an answer to an action for its breach : Boast v. Firth, L. R.
4 C. P. 1 ; Robinson v. Davidson, L. R. 6 Eq. 269 ; 24 L. T. N. S. 755.
Incapacity of the servant from sickness does not determine the con-
tract, nor will it justify dismissal without regular notice: R. v.
Wintersett, Cald. 298. On the other hand, it has been held that a
servant is entitled to be paid his wages during the time of illness : Patten
v. Wood, 51 J. P. 549 ; 36 Alb. L. J. 399, 400. In Cuckson v. Stones,
1 E. (& E. 248, it was held that temporary inability did not suspend the
right to wages, but total and permanent disability, such as paralysis, etc..
would justify a recisiou of the contract. But such total inability does
not deprive the servant of his right to wages for the time he actually
served, where the agreement is rot for any specified time : Bayley v;
Rimraell, 1 M. & W. 506.
A sailor disabled in the course of his duty is entitled to wages for
the whole voyage : Chandler v. Grieves, 2 H. Bl. 606 (note) ; 3 R. R. 625.
Incompetence or ignorance will justify dismissal ; Harmer v. Cornelius^
5 C. B. N. S. 236.
Where an apprentice, who could have been dismissed at a week'»
notice, was dismissed without notice, the defendants not acting under the
notice clause, he was held entitled to recover for all damages flowing
naturally from the breach, and was not limited to the value of a week's
notice : Maw v. Jones, 26 Q. B. D. 107.
Sectlojl
76
■M
i
f
k
m
I!i
102
•mUow
7«-7T
.i,,'!
i!il
1 1
111
OauKdS of
«'«<;ioii not
to be
divided.
SPLITTING CAUSE OF ACTION.
A olerk taken into an office at " three months on trial at a salary of
9800 per annum," held not a yearly hiring: Hughes v. Can. P. L. d S.
Socy., 39 U. C. R. 221.
A contract to serve for one year, the service to commence on the
second day after that on which the contract is made, is a contract not to
be performed within a year and is within the 4th section of the Statute of
Frauds : Britton v. Bossiter, 11 Q. B. D. 123. It does not avoid the
contract, but only bars the remedy : Maddison v. Alderson, 8 App. Cas.
473 ; McManus v. Cooke, 35 Ch. D. 681.
A suit by the servant against the master for debt arising out of an
independent transaction is not a cause of a discharge of the servant :
Clay Com. Telephone Co. v. Boot, 33 Alb. L. J. 215.
Unless a specific contract of hiring be proved, the court will discounte-
nance an action by child against parent or person occupying a parental
position for services rendered while living in parent's, or such person's,
house : Rprague v. Nickerson, 1 U. C. R. 284 ; Wismer v. Wismer, 23
U. C. B. 519 ; Peckham v. Depotty, 17 A. B. 273 ; and where an action
was brought by a woman against her brother, with whom she had lived
for several years, it was held there was no implied promise to pay : Red-
mond V. Bedmond, 27 U. C. B. 220. But see Henricks v. Henricks, 27
U. C. B. 447. See also Re Bitchie, Sewery v. Bitchie, 23 Gr. 66 ; Picker-
ing v. Ellis, 28 U. C. B. 187.
Where services rendered in expectation of marriage, but no contract of
hiring, held that refusal to marry did not entitle plaintiff to maintain
action for wages : Robinson v. Shistel, 23 C. P. 114.
TT. A cause of action shall not be divided into two or
more actions for the purpose of bringing the same within
the jurisdiction of a Division Court, and no greater sum
than $100 shall be recovered in any action for the balance
of an unsettled account, nor shall any action for any such
balance be sustained where the unsettled account in the
whole exceeds $400. R. S. O. 1877, c. 47. s. 59.
Splitting a cause of action. — The rule against splitting of causes of
action is but an application of the wholesome maxim " that he who did
not speak when he should have spoken shall not now be heard when he
should be silent."
It has frequently been found a difficult matter to say what is " divid-
ing a cause of action" within the meaning of this section, and tho
corresponding section of the English Acts, 9 and 10 V. c. 95, s. 63 ; and
^1 & 52 V. c. 43, s. 81. The expression " cause of action " in this sec-
tion means " cause of one action," and is not limited to an action on
one separate contract : Grimbley v. Aykroyd, 1 Ex. 479.
"A 'cause of action' is the entire set of facts that give rise to an
enforceable claim ; the phrase comprises every fact which, if traversed,
the plaintiff must prove in order to obtain judgment: " per Esher, M.R.,
Bead v. Brown, 22 Q. B. D. 128 ; see Wright v. Arnold, 6 Man. L. R. 1.
Where a tradesman had a bill against a party for an amount within
the jurisdiction of the court, in which bill the items were so connected
with each other that the dealing was not intended to terminate with one
contract, but to be continuous, so that one item, if not paid, should be
united with another, and form one continuous demand, it was held to be
SPLITTING CAUSE OF ACTION.
108
41 oaase of action, within the meaning of the aeotion, and the fact that one
item in a tradesman's bill is separated from the rest by an interval of
tfleveral years does not prevent the statute from operating : Gopeman v. '
Hart, 14 C. B. N. S. 731; lee also In re Grace v. Walsh, 10 U. C. L. J.
65 ; S P. B. 196.
In a contract for carrying timber by barge from one place to another,
■a charge for hauling by horses part of the way, it was held, formed part
•of the entire contract, and could not be sued for separately : Barnes v.
Marshall, 18 Q. B. 785.
Prohibition will be granted when a party splits the cause of action to
.bring it within the jurisdiction of the Division Court : In re Grace T.
Walsh, 3 P. R. 196 : Gilbert v. Gilbert, 4 L. J. N. S. 229 ; Light v. Lyons,
7 U. C. L. J. 74; McRae v. Bobbins, 20 C. P. 135.
Where premises were rented at $125 a month, no formal lease being
made and four months' rent became due, it was held that separate plainta
for three instalments of rent was the splitting of a cause of action within
Tthis section : Re Gordon v. O'Brien, 11 P. B. 287.
In Wickham v. Lee, 12 Q. B. 526, Erie, J., says : " It is not a splitting
■of actions to bring distinct plai )ts where in a Superior Court there
would have been two counts. I am not sure whether the Court of
Exchequer puts it so ; but that is clearly the true construction of the
Act." In that case it was held no contravention of the section to bring
separate actions for rent of premises and also for double value for hold-
ing over after notice to quit.
A. having a cause of action against B. for £19 Os. 8d., for money lent
between 1846 and 1849, also a cause of action on a separate account for
goods sold and delivered, work and labour, and money paid, between
1845 and 1849 amounting to £19 198. Od., after deducting a payment of
£8 58. 3d. on account, levied two plaints in respect of them in the County
Court. Held, that this was not a splitting of a cause of action within
the section: Kimpton v. Willey, 9 C. B. 719.
So in Brunskill v. Powell, 1 L. M. & P. 550, it was held that goods
riold and delivered, and money lent, though entered in the plaintiffs
books as one account, were not one cause of action.
Two claims, one for salary and the other for money lent, can be sued
separately and do not form one cause of action, in contravention of this
section: Richards v. Marten, 23 W. R. 93.
A tradesman's bill for a series of articles (even though the claim was
contracted withm the jurisdiction of different courts) cannot be split into
•different causes of action : Bonsey v. Wordsworth, 18 C. B. 325, following
Grimbley v. Aykroyd, 1 Ex. 479 and Wood v. Perry, 3 Ex. 442.
A demand for a horse sold, another for rent due, and a third for
goods sold and delivered were held separate and distinct causes of action ;
and that a recovery for one was no bar to a recovery on either of the
others : Neale v. Ellis, 1 D. <& L. 163.
Money paid by the indorser of two notes, as against the executrix of
the maker, was held one cause of action, and that the plaintiff having
sued for and recovered one sum, could not bring another action for the
amount of another payment made by him : pir Logie, Co. J., Gilbert
V. Gilbert, 4 L. J. N. S. 229, but tee infra.
On the trial of an action for the breach of an alleged promise to return
a yoke of oxen in as good condition as when they were hired, it appeared
.that defendants had been sued before for the hire of the same oxen in the
:8ame contract of hiring. HeUl, a splitting of the cause of action : Light
tv. Lyons, 7 U. C. L. J. 74, per Hughes, Co. J.
•mUob
7T
wff
I
104
Ssotlon
77
i
I
•J;
it
SEPARATE AND ENTIRE CAUSES OF ACTION.
It was held that a plaintiff had a right to bring two actions, one for
work and labour and another for a balance due for money paid by-
him for goods in excess of the an.ount furnished to him : McRae v.
Robins, 20 C. P. 135.
A defendant has not a right to say that there was a splitting
of the action on the trial of the second action : Grace v. Walsh,.
8 P. R. 196, per Draper, C.J. ; Adkin v. Frind, 38 L. T. N. 8. 393i
See also Winger v. Sibbald, 2 A. R. 610; In re Box v. Green, 9 Ex.
603. There must be something done by the plaintiff (in the first action)
to constitute an abandonment of the excess of the demand. Where the
debt exceeds the sum to which the jurisdiction extends that enures as a
defence, and entitles the defendant to judgment, unless the plaintiff
elects to bring himself within the jurisdiction by abandoning the excess :.
Vines v. Arnold, 8 C. B. 632.
In 1887, the plaintiffs sued the council in the Division Court for the
surplus school rates received by them in 1881 and recovered judgment,
therefor. They afterwards brought an action in the County Court for
the surplus received in the five subsequent years. The defendants con-
tended that the claim was res judicata by reason of the judgment in the
Division Court, and also that the plaintiffs were not entitled to recover,,
because by suing in the Division Court for the surplus of 1881 alone,
they had divided their cause of action into two or more suits contrary to
this section. Held (1), that the recovery in the Division Court being
for a wholly distinct and separate cause of action, and not upon a balance
of account under this section or after abandonment of the excess under
Rule 7, was no defence to the second action ; and (2) that if there had
been a splitting of the cause of action within the meaning of the Act by
suing for the surplus of one year alone, the objection should have been
taken as a defence, or by way of motion for prohibition, in the first suit,.
and could not be pleaded as a bar to this action.
Semhle, that several claims, being entirely distinct and unconnected,
did not form " one cause of action " so as to come within the prohibition
of this section : Re Aykroyd, 1 Ex. 479 referred to. The proper form of
judgment in the Division Court, where the excess is abandoned, or is for
balance of an account, pointed out : Public School Trustees of Sectioa
No. 9, Nottawasaga v. Tp. of Nottawasaga, 15 A. R. 310.
Where the plaintiff had a contract with the defendants for the delivery
of a large quantity of deals, to be delivered by shipment in instalments^,
and upon delivery each shipment was to be paid for. Held, that the
plaintiff was entitled to recover on each shipment as delivered, although
all the deals contracted for had not been delivered : O'Leary v. Btewart,.
9 C. L. T. 494.
The true distinction between demands, rights or causes of action.,
which are single and entire, and those which are several and distinct, is,,
could they all have been included in the prior statement of the cause of
action, by this is not meant in the same petition or suit, for a party may
have as many suits as he has causes of action, and may bring them at
different times or at the same time ; but if he brings them and they are
depending at the same time and by the same tribunal he does so subject,
only to the right of consolidation, if they be such as could have been
united in one petition : Secor v. Sturges, 16 N. Y. 654 ; Perry v. Dicker-
son, 85 N. Y. 345. Damage to goods and injury to the person, although
they have been occasioned by one and the same wrongful act, are
infringements of different rights and give rise to distinct causes of action ;-
and therefore the recovery in an action of compensation for the damage-
to the goods is no bar to an action subsuqaently commenced for the injury
to the person : Brunsden v. Humphrey, 14 Q. B. D. 141.
BALANCE OB^ UNSETTLED ACCOUNT.
Balance of an unsettled account.— By 39 V. c. 15, s. 2, the amount
of an unsettled account inquirable into, was increased from 9200 to 9400.
The cases decided before the change in this law must now be read " four" ~
instead of " two " hundred dollars, as the maximum amount of an un-
settled account.
Where plaintiff sued on a demand exceeding S200, but abandoned the
excess over 999.75, and defendant claimed 8et-o£F exceeding 9400, consist-
ing of various unconnected items : Held, within the jurisdiction of the
court : Read v. Wedge, 20 U. C. R. 456.
Plaintiff claimed balance of £49 on two notes of £15 each and inter-
est, gave credit for £28 and abandoned excess over £25 : Held, that the
court had jurisdiction : In re Higginbotham v. Moore, 21 U. G. R. 326.
An unsettled account exceeding $400 reduced by payment to 9100 is
not within the jurisdiction : Waugh v. Conway, 4 L. J. N. S. 228.
The plaintiff may recover 9100, being the balance of an unsettled
account not exceeding $400, but when the whole account exceeds that
sum there is no jurisdiction.
An unsettled account means an account the amount of which has not
been adjusted, determined or admitted by some act of the parties : See
Robb V. Murray, 16 A. R. 503 ; Dou,?all v. Leggo, I West. L. T. 203, 24<).
Where plaintiff sued for $81 bulance due for rent for severjil years at
9160 a year, after deducting payments made from time to time, held, not
within the jurisdiction : Inre Hall v. Curtain, 28 U. C. R. 533, overruling
Miron v. McCabe, 4 P. R. 171.
Plaintiff, before 39 Vic. c. 15, claimed 'S94.8S, annexing to his summon*
particulars of his claim shewing an account for goods for 9384.23,.
reduced by credits to the sum sued for ; but notliing liad been done by
the parties to liquidate the account or ascertain the balance, except a
small amount admitted to have been paid, and a credit of 933 given for
some returned barrels, but which wtill left an unsettled balance of up-
wards of. 9300. Held, not within the jurisdiction: lie The Judge of
Northumberland and Durham : 19 C. P. 299.
Plaintiff, who was employed by defendants to purchase wool for them,
on commission, sued them for this commission and 910 paid to an assis-
tant. It appeared that defendants had furnished plaintiff with 91,100,
and that plaintiff had expended 936 beyond that sum in the purchase of
wool, but no question was made at the trial as to the due expenditure of
91,100, the only question being whether plaintiff was entitled to any
commission at all, and no claim was made for the 936 or any part of it,
the plaintiffs demand being confined to the commission claimed on the
quantity of wool purchased, and not on the price paid : Held, not an
action for balance of an unsettled account exceeding 9200, the balance-
of the unsettled account being 936, which was not in question : McRae
v. Robins, 20 C. P. 135.
Plaintiff, before the passing of 39 Vic. c. 15, sued for 930 due as a
balance of an account for board for self and horse^ which appeared at the
trial to be for a balance of an unsettled account exceeding 9200. He alsa
sued for board for self and horse for a subsequent period, and abandoned
the excess of 912 over 9100. On objection being taken to the jurisdiction,
the Judge allowed an amendment. The plaintiff then altered his claim,
reducing it to 9:^2, only, and the case was again tried and judgment
reserved, wherev.pon application was made for prohibition. Held, that
the Division Court had jurisdiction independently of 39 Vic. c. 15, s. 2, but
that under that Act the claim might have been investigated, as the subse-
quent proceedings took place after its passing, and there was, therefore,
no necessity for any amendment : in re MoKenzie v. Ryan, 6 P. E. 323..
10&
Section
77
I il
iJl
106
CERTIORARI.
II ■
i
1'
■
1
1
1
i
i::|i
f'j
ill;
111 '
•eottou Ik was also held in that case that a plaintiff, to give a Division Court
77-79 jarisdiotion where hia claim ia in excess, must abandon the excess in hia
claim, and nannot wait until the hearing, and then do it. But this
decision was not followed in White v. Oalbraith, 12 P. B. 618, in which
it was held that the Judge can allow the plaintiff to amend his claim
before or at the trial, upon such terms as he thinks flt ; $ee Btogdale v.
Wilson, 8 P. B. 5. The plaintiff could not by abandoning the excess, or
in any other way, give jurisdiction : Dougall v. Leggo, 11 C. L. T. 83,
116 ; 1 West. L. T. 246.
Ste section 255 and notes thereto.
A claim reduced by set-off is not within this section : Woodhams v.
Newman, 7 C. B. 654. It is the balance of an unsettled account : lb.
Judgment "78, A judgment of a Division Court upon an action
-diBchar^e. brought f or the balance of an account shall be a full discharge
of all demands in respect of the account for the bal&nce
of which such action was brought and the entry of judg-
ment shall be made accordingly. R. S. 0. 1877, c. 47, s. 60.
The judgment must of course be between the same parties or their
privies : Mcintosh v. Jarvis, 8 U. C. R. 535.
In Winger v. Sibbald, 2 A. B. 610, it was held that the commence-
ment of a suit in a Division Court for part only of an entire claim, and
endorsing an abandonment of the balance on the summons, is not per $e
a release of the excess, but the part so abandoned cannot be sued for
after the recovery of judgment in such suit : see also Vines v. Arnold,
8 C. B. 632 ; Nelson v. Couch, 15 C. B. N. S.; Public School Trustees of
Nottawasaga v. Nottawasaga, 15 A. B. 310.
The Judge should be particular to order that judgment be entered for
the plaintiff as the section directs, namely : " in full discharge of his
cause of action as set forth in the claim." D. C. Form 51. If the
plaintiff objects, the defendant is entitled to judgment : $ee 15 A. B. 320.
■Causes "70. In case the debt or damages claimed in an action
may be
removed by brouffht in a Division Court amounts to $40 and upwards,
j^n je>ftain and in case it appears to any of the Judges of the High
Court that the case is a fit one to be tried in the High
Court, and in case a Judge thereof grants leave for that
purpose, the action may by writ of certiorari be removed
from the Division Court into the High Court upon such
terms as to payment of costs or other terms as the Judge
making the order thinks fit. R. S. O. 1877, c. 47, s. 61.
Debt or damages. — It is upon this section that the right of certiorari
exists.
It will be observed that application may be made to any of the Judges
of the High Court, and we think that, since the O. J. Act, a Division
Court case may be removed to any Division of the High Court. Before
that Act it was not the practice to remove cases to the Court of Chancery.
•Certiorari pre-supposes jurisdiction in the inferior court.
•cases.
REMOVAL BY CERTIORARI.
107
Where • Division Court has not the jurisdiotion to entertain or try a
•oase, this section will have no application: Wiltsie v. Ward, 8 A. R.
549 ; Ferguson v. Sampey, 10 C. L. T. 110 ; Whidden v. Jackson, 18 '
A. R. 439.
A defendant cannot wait and take the chances of a decision in his
favour, and, finding it adverse, apply for a Writ of Certiorari : Knight
v. Medora, 11 O. R. 188; in Appeal, 14 A. R. 112, sustaining Black
v. Wesley, 8 U. C. L. J. 277; Gallagher v. Bathie, 2 L. J. N. S. 78, and
Holmes v. Reeve, 5 P. R. 68.
When proceedings in the Division Court have been removed by certi-
orari into the High Court, a rule or order to set aside the p;' -^edings by
any such court for irregularity should be made in the High Court. A
suit was removed by certiorari from the Division Court to one of the
Superior Courts, upon its being shewn that a question of law as to the
application of the Statute of Limitations would arise on the trial : Ridley
V. Tullock, 3 U. C. L. J. 14. This case can only have application, we
submit, where the Statute of Limitations cannot fairly be discussed or
decided in the Division Court.
The form of certiorari will be found in the Consolidated Rules. See also
R. S. O. 556.
When a Judge has declined to grant a certiorari, the court will not do
80 merely because it appears that possibly a serious question of law may
arise, nor merely because the decision in the particular case, though
involving directly only a small sum, may be of great importance to the
applicant as likely to affect other cases of a similar nature : Staples v.
Accidental Death Ins. Co., 10 W. R. 59.
A justice of the peace sued in the Division Court, and having given
notice of his objection under section 89, sub-section 7, cannot afterwards
move for certiorari : Weston v. Sneyd, 1 H. & N. 703.
Interpleader proceedings cannot be removed : ex parte Summers, 18
Jar. 522; Jones v. Harris, 6 U. C. L. J. 16; Russell v. Williams,
S U. C. L. J. 277 ; Finlayson v. Howard, 1 P. R. 224.
And it is submitted that under our statute it does not apply to
replevin : Mungean v. Wheatley, 6 Ex. 88.
We have no provision such as section 121 of the English ikcts, 9 and 10
Vic. c. 95, and 51 & 52 Vice. 43, s. 137, for removing actions of replevin by
certiorari.
All the material facts relative to the state of the cause should be
brought before the Judge, and where a writ has been obtained without
the Judge having been informed that the cause had already been heard
for several days in the County Court, the writ was set aside as improvi-
dently issued : Parker v. B. & E. Ry. Co., 6 Ex. 184. Certiorari will
not lie after verdict : Tully v. Gla s, 3 O. S. 149 ; or after judgment and
execution : Douglas v. Hutchinson, 5 O. S. 341 ; McKenzie v. Keene, 5
U. C. L. J. 225 ; or where a defendant knows all the facts before a trial,
but, nevertheless, argues the case and obtains an opinion from the Judge,
even though the Judge desire it : Holmes v. Reeve, 5 P. R. 58. The ex-
pression of a wrong opinion by a Judge is no cause for removal : lb.
Certiorari is too late, if delivered to the Judge after verdict rendered ; and
the spirit of the English statute, 43 Eliz. cap 5, applies where plaintiff's
witnesses were sworn and no jury called : Black v. Wesley, 8 U. C. L. J.
277, per Richards, J. If the Judge has entered on the hearing of the cause,
<:ertiorari is too late : Gallagher v. Bathie, 2 L. J. N. S. 73 ; Barnes v.
Cox, 16 C. P. 236 ; s. c, 2 L. J. N. S. 67. Certiorari will not lie at the
instance of the plaintiff to determine whether inferior court had jurisdic-
tion. The writ imports jurisdiction : Meyers v. Baker, Hargreaves v.
iMtion
7»
B
lOS
Beotlon
79
|i i
m
REMOVAL BY CEUTIOKAHI.
Myers, 26 U. C. R. 16 ; O'Brien v. Welsh, 28 U. C. R. 394. A suit
brought by an incorporated company will be removed where diflicult
queHtionn of law are likely to arise : Cataraqui Cemetery Go. v.
liurrowes, 3 U. C. L. J. 47. Also where defendant resided in a part of
the Province far distant from the divinion in which the suit was oom-
raenced, and also on account of a difficult question of law: Nugent v.
Chambers, 3 U. ('. L. J. 108. A plaintiff is not entitled to remove hia
own suit: Prudhomme v. Lazure, 8 P. R. 355; Dennison v. Knox, ft
U. C. L. J. 241. A Judge cannot be attached for disobeying a certiorari,
unless he acted contumaciously in order to vex the party or shew contempt
for the court : lie Judge of Niagara District Court, 3 O. 8. 437. The
order for certiorari may bo made ex parte : Symonds v. Dimsdale, 2 Ex.
633 ; but it is very unusual in this Province to do so. In the case of
J'-'x parte Great Western Ry. Co., 2 H. A N. 557, the court re-
fused to make it a condition that defendant, if successful, should have no-
more than inferior court costs. Affidavit for order for writ of certiorari
must be entitled in the court in which the application is to be made, and
not in the Division Court: Ex parte Nohro, 1 B. itC. 267; Symth v.
Nicholls Co., 1 P. R. 355. Application for the writ must be made by the
party himself, either in person or by attorney, and cannot be made by
another person in his name : R. v. Riall, 11 Ir. C. L. R. 280. A section
in an Act taking away certiorari does not apply to the case of a total absence
of jurisdiction : Ex parte Bradlaugh, 3 Q. B. D. 60"J. The return to the
writ should bo under seal : R. v. Kenyon, 6 B. <& C. 640. The original
record must be returned : Askew v. Hayton, 1 Dowl. 510 ; Palmer v.
Forsyth 4 B. tfe C. 401. The court will not direct how proceedings are
to be carried on after removal: Copping v. McDonell, 5 O. S. 311; but
might direct that the amount of the plaintiff's claim be paid mto court :
Symonds v. Dimsdale, 2 I<)x. p. 538. Where cases are removed from a
Division Court of an outer county into one of the Superior Courts by
certiorari, the papers should be filed in the Crown office at Toronto ; but
the venue need not be laid in the County of York : Chambers v. Cham-
bers, 3 U. C. L. J. 20"), per Draper, J. Where certiorari regularly issued
after a new trial granted, a previous alleged understanding that the cause
should be tried in the Division Court is no ground for interfering with the
certiorari : Help v. Lucas, 8 U. C. L. J. 184. After removal, there is no
way of compelling a plaintiff to proceed in the higher court : Dennison v.
Knox, 3 P. R. 150 ; 9 U. C. L. J. 241 ; Garton v. The G. W. R. Co.,.
1 E. & E. 258. After removal a plaintiff cannot declare for a different
cause of action than that sued for in court below: Mason v. Morgan, H
P. R. 325 ; Hunter v. G. T. R. Co., 6 P. R. 67. Judge in court below has
no right, after certiorari, to interfere with case until it goes back to his
court by procedendo : Barnes et al. v. Cc , 16 C. P. 236 ; Ewing v. Thomp-
son, 8 U. C. L. J. 332. An order for certiorari, to bring up a case into a
Superior Court, entitles defendant to full costs of that court if he succeeds
in the action without any certificate from the Judge who tries the cause :
Corley v. Roblin, 5 U. C. L. J. 225. A defendant will not, however, get
the costs of removal unless the order provides for them ; Kerr v. Cornell,
1 L. J. N. 8. 326.
In Gegg. V. Adams, 9 C. L. T. 311 ; 10 C. L. T. 2, an order to transfer
the actions was refused ; but it was imposed upon the plaintiff, as a term<
in dismissing the appeal, that he should undertake to submit to exami-
nation before the trial in the Division Court.
An application to remove a cause by certiorari should be made ini
Chambers : Bowen v. Evans, 3 Ex. Ill ; C. R., Form 157,
WHEUE ACTION MAY UE liROUOlIT.
101)
PROCESS AND PROCEDURE.
Beotloni
80-8!
MO. When it is by this Act provided that a chiiin court
may be entered, or an action brouglit, or that any attion
person or persons may bo sued in any Division Court, o''f'j|yj|f",i
that an action may be transferred to any other court, I'^^^o'-
such coui-t shall have jurisdiction in the premises, and
all proceedinjL^s may be had and taken both before and
after judgment in or relating to any such claim or cause
as may now be had, and taken in or relating to any claim
or cause which has been lawfully entered in the Court
holden for the division in which the cause of action arose,
or in which the defendant or any one of several defendants
reside<l or carried on business at the time the action was
brought. 43 V. c. 8, s. 12.
May be entered. — See section 94 and following sections.
Or action brought. — The issue of the first process, and the service of
it, may be considered " bringing an action."
May be transferred.— >SVe notes to section 87.
Or changed.— Tlie plaee of trial may be changed under section 86.
See notes to that section.
Such Court. — This refers to the court in which the action may be
brouglit, etc.
DIVISION IN WHICH ACTIONS TO BE ENTERED.
SI. Any action cognizable in a Division Court may be in what
entered and tried in the Court holden for the division in actions
may be
which the cause of action arose or in which the defendant «»'«"'*,
and tried.
or any one of several defendants resides or carries on busi-
ness at the time the action is brought, notwithstanding
that the defendant at such time resides in a county or
division different from the one in which the cause of action
arose. R. S. O. 1877, c. 47, s. 62.
Territorial Jurisdiction. — This section provides that any action in
respect of which the Division Court has jurisdiction may be entered and
tried , (1) " in the court holden for the division in which the cause of
action arose," or, (2) " in which the defendant or any one of several
defendants resides or carries on business."
What is a cause of Action. — A cause of action is every fact which it
would be necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment of the court. It does not comprise
every piece of evidence which is necessary to prove each fact but
every fact which is necessary to b^ proved: per Lord Esher, M.B.,
i:
m
110
WHERE CAUSE OF ACTION AROSE.
necessary
r \.'i M
^:
Beotlon Read v. Brown, 22 Q. B. D. 131. "Everything which is
U to make the action maintainable is part of the cause of action:" per
' Maule, J., Borthwick v. Walton, 15 C. B. 501. Attention, therefore, has
to be paid to the omu of proof. If upon the failure of the plaintiff to
prove any fact, the defendant would be immediately entitled to judgment,,
that fact is part of the caune of actiOL< : per Fry, L.J., 22 Q. B. D. 132.
In an action upon a contract it may be I'ecessary to prove the contract,,
the performance thereof by the plaintiff aad the breach. If all of these
facts did not occur in the same division the cause of action did not arise-
therein and the court for that division wo ild have no jurisdiction : Watt
V. Van Every, 23 U. C. R. 196; Noxon v. Holmes, 24 C. P. 541 ; Kemp-
V. Owen, 14 G. P. 432 ; Carsley v. Fiskin, 4 P. R. 255. A contract arrived
at by proposal and acceptance is made where it is accepted : Newcombe
V. De Roos, 2 E. & E. 271; O'Donohoe v. Wiley, 43 U. C. R..
850 ; but see Green v. Beach, L. R. 8 Ex. 208. If the parties use
the post or telegraph office as a means of communication, the sending
by the proposer of his proposal from a place outside the division
is no part of the cause of action. " It is as if he were speaking to the
person to whom such [letter or] telegram is directed at the place to-
which be directs it to be sent, P^nd where he intends it to be delivered.
The authority to transmit the message when established is merely
evidence which goes to tix the sender with the responsibility of sending it,
but it is no part of thecauseof action:" per Hawkins, J., Cowan v.O'Gon-
nor, 20 Q. B. D. 642, followed in Noble v, Cline. 18 O. R. 33; tee also
Grundy v. Townsend, W. N. (1883) 07; but see contra, Hagle v. Dal-
rymple, 8 P. R. 183.
" If I, residing in England, send down my agent to Scotland, and
he makes contracts for mo there, it is the same if I myself went there
and made them : " per Lord Lyndhurst, 1 Dow & Clark, 342 : see Jackson
V. Griraley, 16 C. B. N. B. 380. " Suppose the two parties stood on different
sides of the boundary line of the district, and that the order was then
verbally given and accepted, the contract would be made in the district
in which it was accepted : " per Hill, J., Newcombe v. De Roos, 2 E. (& E.
275. The material fact appears not to be where was the letter written or
the agent appointed, but was the proposal written by, or was the party
acting as agent, actually the agent of the party with whom the contract
completed within the division, was made : see also Green v. Beach, L. R.
8 Ex. 208.
The following are illustrfttions of the application of the rule. Ir
Buita for goods sold and delivered the contract must be made, the goods
delivered, and the breach, viz., the non-payment, take place, within the
same division : Borthwick v. Walton, 15 C. B. 601 ; Barnes v. Marshall,
18 y. B. 785; Jackson v. Beaumont, 11 Ex. 300 ; Re Walsh, 1 E. & B.
383 ; Kemp. v. Owen, 14 C. P. 432 ; Carsley v. Fiskin, 4 P. R. 255 ; Watt
v. Van Every, 23 U. C. R. 196 ; Re Elliott v. Norris, 17 O. R. 78.
In an action for a reward the offender was apprehended in one divi-
sion and convicted in another. The cause of action did not arise in
either district : Hernaman v. Smith, 10 Ex. 059. In actions on bills,
notes or cheques against the drawer, acceptor or maker, the drawing,
accepting or making and the dishonour must occur in the same division ::
Noxon v. Holmes, 24 C. P. 541 ; Trevor v. Wilkinson, 31 L. T. N. S. 731 ;
Wilde V. Sherridan, 16 Jur. 456; 21 L. J. Q. B. 260; King v. Farrell,
8 P. R. 119 ; Re Olmstead v. Errington, 11 P. R. 367 ; Cooke v. Gill, L. R.
8 C. P. 107.
In an action against an endorser the action cannot be brought in the
division in which he writes his name, though the dishonour takes place
in that division, if the delivery takes place in another division, as the
WHERE DEFENDANT RESIDES.
Ill
indorsement is not complete until delivery : Bnckley v. Hanc, 5 Ex. 43 ;
see Marston v. Allen, 8 M. <ft W. 494 ; Heath v. Long, 1 L. M. & P. 333.
In an action for money had and received the receipt must take place '
within the division : Re Garland v. Omnium Securities Co., 10 P. B. 135 ;
Bennie v. Batcliff, 35 L. T. N. S. 833.
In an action on a warranty of a horse, the contract of sale must be
made and the warranty given within the division : Aris v. Orchard, 6
H. <& N. 160. Where a solicitor sued a mortgagor for costs of preparing
a mortgage for which he received no instructions from the mortgv^or, it
was held that the consent of the mortgagor to become such was a
material part of the cause of action : Jackson v. Grimley, 16 C. B. N. S.
880. Where a debt has been assigned, the asKignmeut is a material fact,
for the pliintiff to prove, and it must, therefore, have been made within
the division : Read v. Brown, 22 Q. 3. D. 128. Where a cause of action
is complete before the death of the debtor, the probate of his will is na
part of the cause of action : McCallum v. Gracey, 10 P. B. 514 ; but
wliere an action was brought for a legacy against an administrator with
the will annexed, the cause of action was held not to be complete without
proof of the letters of administration ; Re Fuller v. Mackay, 2 E. & B.
573. An admission made within the jurisdiction, if sufficient to state an
account, will give jurisdiction : Grundy v. Townsend, W. N. (1888) 67.
In an action against a railway company for illegally putting a passenger-
off a train, the cause of action arises at the place of putting on, and not.
where the ticket was issued : Balph v. G. W. By. Co., 14 L. J. N. B. 172 ;.
$ee Canada Southern By. Co. v. Gebhard, 109 U. S. 527. In an action for
witness fees, the cause of action comprises the service of the subpoena,
and the attendance at court : Whitehead v. Burt, 7 T. L. B. 609.
Where defendant resides.— " What is the meaning of the word
' resides ' ? I take it that that word, where there is nothing to show that,
it is used in a more extensive sense, denotes the place where an individual
eats, drinks and sleeps, or where his family or his servants eat, drink and
sleep : " per Bayley, J., B. v. North Curry, 4 B. & C. 959. " Usual place
of residence " means the dwelling in which he lives with his family and
and sleeps at night : B. v. Hammond, 17 Q. B. 772 ; Grogan v. London &
M. Ins. Co., 53 L. T. N. S. 761. It is an "ambiguous word," may
receive a different meaning according to the statute in which it is found t
per Cotton, L.J., Re Bowie, ex parte Breull, 16 Ch. D. 484. Ordinarily,
men are supposed to reside where their wives and families do, but this
is not always correct. A man may reside in one place and his wife and
family in another : Cartwright v. Hinds, 3 O. B. 384, 395 and cases cited.
Cockburn, C.J., in Wellington v. Whitchurch, 4 B. & S. 106, says, the
maxim : " that a husband's domicile is where his wife lives, applies only
where a man is generally in one place and occasionally elsewhere."
That is the general rule, but in the interpretation of the meaning of these
words every case must depend upon its own circumstances.
A person who has no permanent place of abode " dwells " at the place
at which he may be temporarily residing : Alexander v. Jones, L. R. 1
Ex. 133. The domicile of the husband is that of the wife : Macdonald v.
Macdonald, 5 U. C. L. J. 66. Defendant worked in the Province of
Quebec, but his wife and family lived across the river in Ontario, where
his wife '"ept a store, and where he often came to see her. Held, that
defendant " residence was with his family, and that he was subject to be
sued in the ] roper Division Court in Ontario: In re Ladouceur v. Salter,
6 P. B. 305. Where a man having his permanent residence at one place,
has a lodgir s;, for a temporary purpose, at another placo, held that he does
not " dwell ' at the latter place : Macdougall v. Paterson, 11 C. B. 755.
In the argument and from the remarks of Maule, J., at p. 763 of the
report in tuis case, it appears to have been taken for granted that.
Section
81
l|
1^
112
RESIDENCE OF COMPANY.
I
i
Section "residence'" and '•dwelling" were synonymous. The same view wai
81 taken by Cookburn, C.J., in Butler v. Ablewhite, 6 C. B. N. S. 747. A
temporary or compulsory residence, at the time of the commencement of
the action, in gaol does not constitute the place of dwelling of the party :
Dunston v. Paterson, 5 C. B. N. S. 2G7.
The residence must be of a permanent character, and not merely for
a temporary purpose : Marsh v. Conquest, 17 C. B. N. S. 418.
A man may have two pfirmanent places of residence, and the question
of jurisdiction must depend on the fact " where his actual residence, nt
the time of action brought, wae : " per Cockburn, C.J., Butler v. Able-
white, 6 (). B. N. S. at p. 747 ; Pilgrim v. Knatchbull, 18 C. B. N. S. 708.
See also Kerr v. Haynes, 2 L. T. N. S. 11 ; Bailey v. Bryant, 1 E. & E.
310.
A company is only " domiciled or ordinarily resident " where its head
office is ; Jones v. Scottish Accident Ins. Co., 17 Q. B. D. 421, and cases
there cited : Watkins v. Scottish Imperial Ins. Co., 23 Q. B. D. 285.
Where a railway company had their principal office in London and a
station at A. Held, that they carried en business in London, not at A.:
Shields v. G. N. By. Co., 7 Jur. N. S. 031 ; and 8 U. C. L. J. 19-5. A cor-
poration has been lield to dwell where its business is carried on :
Taylor v. Crowland Gas, etc., Co., 11 Ex. 1.
Tlie G. W. Ry. Co., has its principal station at Paddington, where the
directors meet, the secretary resides, and general meetings are held, and
-whence orders emanate. Held, that the company " dwells " at Hadding-
ton within the meaning of {) and 10 Vic. c. 95, s. 128 : Adams v. G. W.
Ry. Co., G H. & N. 404, and this decision lias been followed in Ahrens v.
McGilligat, 23 C. P. 171 ; Westover v. Turner, 26 C. P. 510. See also The
•Oldham B. A M. Co. v, Heald, 3 H. & C. 132 ; Palmer v. Caledonian Ry.
Co., (1892), 1 Q. B. 823.
It is no objection to the jurisdiction that the defendant has become
resident within the division for the very purpose of giving jurisdiction ;
provided that the residence was actual and bona fide and not colourably
and collusively acquired before issuing the summons : Massey v. Burton,
2 H. & N. 597 ; Baker v. Wait, L. R. 9 Eq. 103. But a plaintiff cannot by
making a person, who is in his interest, and who resides within the juris-
diction of a certain Division Court, a defendant in a suit for the purpose
of giving that court jurisdiction : Baker v. Wait, supra. The case of
Bridges V.Douglas, 13 L.J.N. S. 358, is at variance with the above case, but
it must be observed that the attention of the learned Judge (Morrison, J.),
■who decided Bridges v. Douglas, was not called to the English case above
referred to. It seems to the writer that to give jurisdiction in such a
way would not only be a fraud on the other defendants, but on the statute
itaelf.
A company for the manufacture and sale of goods, however, " dwells "
at the place of manufacture and sale, and not at its registered office, and
is distinguished, in this respect from a railway company : Keynsham B.
L. Lime Co. v. Baker, 2 H. <fe C. 729.
But a building contractor " carries on his business " where his general
place of business is, and not at the locality where particular contracts are
being executed : Gorslett v. Harris, 29 L. T. 0. S. 7o.
A joint stock company "dwells" where the substantial business of
the company and its negotiations are carried on, and not neceasarily in
the locality where its property is situated and its immediate objects
carried on: Aberystwith Pro. Pier Co. v. Cooper, 13 L. T. N. S. 273.
Cockburn, C. J., says, the company " cannot be aaid to dwell at the pier at
Aberystwith."
WHERE DEFENDANT CARRIES ON BUSINESS.
A foreign corporation established by foreign law which sets up an
oP.ice within the jurisdiction, and carries on a principal part of its
business here, ought to be considered as resident here as if established
by our law : Uaggin v. Comptoir d'Esconipte de Paris, 23 Q. B. D, 519 ;
Badcock v. Cumberland Gap Park Co., 9 T. L. R. 113.
Where a defendant carries on business.— The phrase " carrying on"
implies a repetition or series of acts : per Brett, L.J., Smith v. Anderson.
15 Ch. D. 247. See also Re Siddall, 29 Ch. D. 1 ; Crowther v. Thorley,
4H L. T. N. S. 644 ; Re Thomas, 14 Q. B. D. 379 ; Harris v. Amery, L. R.
1 C. P. 148.
To "carry on" business means, primarily, to cany on one's own
business ; therefore it cannot be said in reference to a salarie.l clerk
" that he carries on business " at the plpce where his employer's office is :
Lewis V. Graham, 2ii Q. B. D. 780 ; s. c. sustained, 22 Q. Ji. D. 1 ; Buck-
lev V. Ilanu, 5 Ex. 43 ; Sangster v. Kay, 5 Ex. 38G; Le Taileur v. B. E.
Ry. Co., 3 C. P. D. 18.
•'The business must be some business in which he has control, or acts
as one of the partners engaged in carrying it on," and " a particular
clevk or workman who is engaged about the business, but has no control
over it whatever, cannot be said to carry on business : " per Coleridge,
C.J., Lewis V. Graham, supra. A clerk in the Admiralty doe i not " carry
on business " at las office within section 40, London Small Debts Act :
Buckley v. Hann, o Ex. 43, nor does a deputy sealer in the Court of
Chancery: llolfe v. Learmonth, 14 Q. B. 190; nor a clerk in the Privy
Council oflice : Rangster v. Kay, 5 Ex. 380 ; nor a partner in a mine on
tlie cost-book principle, tiie business of which is wholly carried on by an
agent : Mitcliell v. Hender, IH Jur. 430.
But there is no principle of law which decides what "carrying on "
trade is; a multitude of circ'imstances make up what is called "carrying
on" a trade, for it is a compound fact made up of a variety of things:
2)er Jessel, M.K., Erichsen v. Last, 8 Q. B. D. 414.
A firm carrying on business in Scotland, with a branch office within
the jurisdiction of a County Court in England, were sued in the firm's
name, and the simimons was served at the branch office : Held, that the
tinn " carried on business " within the jurisdiction ; that the service was
good, ami that the County Court Judge was wrong in declining to exer-
cise jurisdiction ; that if the service had been bad, it amounted to a mere
irregularity, which might be waived by the conduct ot the defendants :
Weutherly v. Calder, 01 L. T. N. S. r.08.
The words "carries on business " were said by Coleridge, C.J., in Rolfe
V. Learuiouth, 14 Q. B. 199, to mean "some fixed place at which the
partys business is carried on, at least for a certain time."
A surgeon and apothecary, who occupies a position similar to that of
a general medical practitioner in this country, has been held to " carry
on business " when he daily attends patients, although resident out of it :
Mitchell V. Hender, 18 Jur. 430.
A railway company '• carries on business " only at its principal office
where the directors meet and the general business of the company
is transacted : Minor v. Lon. A N. W. Ry. Co., 1 C. B. N. S. 325 ; Brown
V. L. A N. W. Kv. Co., 4 B. & S. 326:- LeTailleur v. S. E. Ry. Co., 3
C. P. I). 18: Shields v. The G. N. Ry. Co., 7 Jur. N. S. 031, and 8
U. C. L. J. 195 ; Ahrens v. McGilligat, 23 C. P. 171 ; Pearson v. C. P.
Ry. Co. 1 West. L. T. 47 ; Westover v. Turner, 20 C, P. 510. In the
latter case it was also held that the fact of the railway company
having in addition to its local station, a factory for the making and
repair of the rolling stock used on tlie road, and employing a number of
workment herein, did not bring such place within the statute.
n.c.A, — 8
113
Section
81
I
114
NEAREST DEl'EXDAXTS RESIDENCE.
Sections
81-82
;i|
Actions
may be
brought
and tried
in the
Court
ueareut to
the defend
ant's resi-
dence.
Service of
summons
in such
cases.
Execution
By tlie appointment of a {general agent to do business in a place a
corporation cannot be lield to be carryin(» on business there. The ((uea-
tion is whetlier the person doint{ business is the servant of the defendant :
Corbett V. The Gener .i Steam Nav. Co., 4 H. & N. 482. Where an agent
had a firm's name affixed to his office and their note paper contained a
heading? referring to his office as their London address, but his authority
was limited, it was held that the firm did not carry on business at his
office: Baillie v. Goodwin, 3S Cli. D. 004; Grant v. Anderson, (18!r2),
1 Q. B. 108.
As to notice disputing the jurisdiction, .n'e section 176 and notes
thereto.
St8. (1) Sucli action may be entered and tried and
determined in tlie court the place of sitting whereof is the
nearest to the residence of the defendant, and the action
may be entered, tried and determined irrespective of the
place where the cause of action arose, and notwithstanding
that the defendant at the time resides in a county or divi-
sion other than the county or division in which the Division
Court is situate, and the action entered.
(2) It shall be sufficient if the summons in such case be
served by a bailiff of the court out of which it issues, in the
manner ))rovided in section 96 of this Act; and upon judg-
ment recovered in any such action a writ of fieri faj.-i<i.>i
against the goods and chattels of the defendant, and all other
writs, process and proceedings to enforce the payment of
the judgment, may be issued to the bailiff of the court, and
be executed and enforced by him in the county in which
the defendant resides, as well as in the county in which
judgment was recovered. R. S. O. 1(S77, c. 47, s. (33.
Nearest to the residence of the defendant.— It will be observed that
the place of sitting which is nearest to the residence of the defendant
shall determine the right to bring an action under this section. The
residence of the clerk, or the place of holding his office, will form no part
of the consideration. As to what is the place of sitting, see Malcolm v.
Malcolm, 15 Gr. 13; Moffatt v. Carleton Place Board of Education, H
A. R. 202. See also section 8 and notes thereto. As to place of residence,
see notes to section 81.
By rule 5, plaintiff must, in his claim, set out that he enters the suit
and desires to have it tried because the pl0.ce of sitting is nearest to the
defendant's residence.
This distance is measured as the crow flies : Mouflet v. Cole, L. R. 8
Ex. 32 ; Duignan v. Walker, Jur. N. S. 1)76 ; Atkyns v. Kinnier, 4 Ex.
776; and the word "nearest" has been held to be synonymous witli
" next " : Smith v. Campbell, 19 Ves. 400 ; see also Bathard v. London
Sewers Co., 5i J. P. 135.
m
OTHEIt THAN REfJULAU DIVISIONS,
116
The " place of sitting " refers to the building in which the Court is Sections
held, and not the mere municipality. 82-83
Insurance Premium Notes.— The R. S. O. c. 1G7, 1. 133, " The Ontario
Insurance Act," provides: "An action co(;nizable if a Division Court
upon or for any premium note or undertaking, or any sum assessed or
to be assessed thereon, may be entered and tried and determined in the
court for the division wherein the head office or any agency of the com-
pany is situate: Provided always, that the provisions of this section
shall not apply to nor include any such premium note or undertaking
made or entered into after the first day of Ju'>, 1885, nor any sum
assessed thereon, unless within the body of Ruuh note or undertaking or
across the face thereof, there was at ^he time of the making or entering
into the same, printed in conspicuous type, and in ink of a colour
different from any other in or on such note the words following : ' Any
action which may be brought or commenced in a Division Court in
respect or on account of this note or undertaking, or any sum to be
assessed thereon, may be brought and commenced against the maker
hereof in the Division Court for the division wherein the head office or
any agency of the company is situate.' " It was held that the corres-
ponding section of the R. S. O. 1877, c. 161, s. 71, now repealed, did
not apply to the suing of a premium note taken under the 46th section
of that Act for the cash payment on the insurance : The Canada
Farmers' M. Ins. Co. v. Welsh, decided in 1876 (not reported), per
Hagarty, C.J.
Building Societies.— R. S. O. c. 169, s. 36, An Act Respecting Buihlino
SocictieK. " If the amount in arrear (for odlls) does not exceed |40, the
action may be brought in the Division Court of the Division wherein the
office of the society is kept."
The whole amount in arrear for calls must be included in one action ;
gee section 77 and • lotes thereto.
HSm In case a person desires to brinjx an action in a when
*■ ^ '^ actions
"livision other than as in tlie next preceding two sections J^'^y be .
»■ " brought in
mentioned, a County Judge may by special order authorize ti^e^reeuiar
an action to be entered and tried in the court of any °'^'^'°"^-
division in his county ailjacent to the division in which the
defendant or one of several defendants resides, whether
such defendant resides in the county of the Judffo urantinii"
the order or in an adjoining county. R. S. O. 1877, ( 47,
8. G4.
The summons need not state on the face of it that it was issued by
order of the Judge : Waters v. Handley, 6 D. & L. 88. The order must
be granted " by the Judge before whom the action is to be tried under
■the order :" Rule 123. Formerly this was different : McWhirter v Bon-
t^ard, 14 U. C. R. 84. As to the mode of procedure to obtain the order,
see Rule 16, and Forms 8 and 9. " No leave shall be given to bring a suit
in a division, other than the one adjacent to the division in which the
party to be sued resides, but the division may be in the same or an
adjoining county : Rule 123. The word " adjacent " here means, it is
submitted, " contiguous or bordering upon : " see Kingsmiil v. Millard, 11
Ex. 313 ; Earl of Liaburne v. Davies, L. R. 1 C. P. 25{), and per Erie,
C.J., at p. 264.
M.
lie
CHANGING PLACE OF TRIAL.
C
ly
I
I
i:i
Sections ^4, J^ every case whore tlie defendant is a corporation
84.86 . . *' ^
-not luiviny- its head office in the Province and the cause of
WllOt*6 (It*-
fendantis a^tiou aroHO partly in one Division and [)artly in another,
tion the the plaintiff' niav hrin<f liis action in either Division. 50 V.
head office \, , ,
of which e. <S, Sched.
I'roviucc. This section was intiOcluce»l as part of Division Court lef«islation
duriii^i the session of 1887. It was intended to get over the difficulty of
suinj; a corporation that had its lieud office out of tlio Province and wliere
the cause of action did not arise in any one division in this Province.
The summons may be served in the same way as an ordinary summons
for se:vi<e upon a corporation that has its head office out of the Province ;
as to winch see section 101.
Place of
trial.
H!i, Where the debt or money payable exceeds Sji^l 00, and
jy the conti'act of the parties made payable at a place
out of the Province of Ontario, the action may be brought
Wnero
umde^i)iiv-i'< by the conti'act of the parties made payable at a place
able out of
the I'lo-
thereon in any Division Cmirt, subject, however, to the
place of trial beini;- changed up »n the application of one or
more of the defendants, as provided by the next succeedino-
section. 48 V. c. N, s. 9.
Debt or money payable. — See notes to section 80.
Contract of the parties. — 'SV't' notes to section 80.
Out of the Province of Ontario. — For instance, if a note were made
payable in Montreal, it would be suable in any Division Court in this
Province, provided the amount of it exceeded $100 and if in other respects
the Division Court had jurisdiction. It would also, of course, be suable
where the defendants or one of them resided.
Next succeeding section.^The proceeding's necessary to obtain the
change will bo found fully discussed in the next succeeding section.
S6. (1) VVliere the debt or m<mey payable exceeds
S?100, and is made payable by the contract of tht- jiarties at
any place named therein, tin- action may Ix' brouuht
thereon in the court holden for the dixision in which the
place of payment is situate, sultject, however, to the place
<»f trial beinii" chanyfed to another division in which the
court holden therein has jiu'isdiction in tlje particular case.
(2) To procure such change an ordei' to tiuit effect is t(i
]»o ol)tained by the defendant from the .fudge of the county
in which the action is brought.
(8) The apjilieation foi- the tij'der is to be made within
eioht (lavs from the day on which the defendant who
makes the application wasserxed with, the summons, where
CHAX<;iE OF PLACE OF TRIAL.
117
the service is reciiiired to be ten davs before tlie return : or ^•®J'i°*^
BO
within twelve dtiyn after the <lay of such service, wliere the
service is recjuired to be fifteen (hiys or more before the
return.
(4) The application is to be on an affidavit that the
applicant intends to defend the action, that he has a ^ood
defence upon the merits, that the cause of action did not
wholly arise in the division in which the action is l»rou<;ht,
and that the witnesses for the defence, or some of them,
reside within the division in which the defendants, or one of
them, r(!sided or carried on business at the time the action
was l)rought, and that the application is not made for the
purpose of delay; the date of tb.e then next two sittings of
the court to which he seeks to have the cause transferred
is also to be shewn.
(.5) The affidavit nuist be made by a defendant, or ids
solicitor or agent in case satisfactory reasons are given why
the affidavit is not made by a defendant.
(()) The oi'der shall direct at what sittings of the coiirt
the action shall be tried, subject to all rights of postpone-
ment as in other cases, and shall i>e attached to the
sunnnons and other proceedings in the action by the cleik,
who shall forthwith transmit the same to the clerk of the
court in which the action is by such order directed to be
tried, ami shall enter a minute thereof in his procedure
V)ook.
(7) Uix»n iveeipt of the order and other papers by the
clerk »)f such last nientioned court, he shall enter the action
an<l proceedings in his procedure book.
(8) All the papers and proceedings in the cause there-
after shall be entitled and had and carried on as though
the action had oriu'inallv been entered in thr said last
mentioned court.
(9) It shall be the duty of the defendant obtaining the
order foi'thwith to serve, or cause to be served, a copy of
m
ill
I
118
CHANGE OF I'LACE OF TRIAL.
86
Section the same upon the plaintitt' or liis a^eiit in the smne manner
as KUuunonsl'H are reijuired to be nerved under thin Act.
48 V. e. S, H. <S.
Debt or money payable. — This and the next precccling section are
only applicable to such claims as are suable under section 70, sub-
section 3.
The words " debt or money payable " are not identical with those used
in that sub-section, but they mean substantially the same.
Any place named therein.— Any form of words employed by the
parties which reasonably indicate a particular place of payment would be
within this section. A bill or note payable " at the Bank of Montreal in
Toronto," or at the ofiice of the payee or any other person in any par-
ticular place, without further words of desi<?nation, would be within the
section.
May be brought. — The plaintiff has the option of bringing the action
in the court for the division in which place of payment is situate. .S't'e
Interpretation Act, section 8, sub-section '2; 11. v. Bishop of Oxford,
4 Q. B. D. at p. r>54 ; Cameron v. Wait, 3 A. R. 175, per Harrison, C.J.
The general jurisdiction of the court is unaffected by this section.
Jurisdiction in the particular case.— As to jurisdiction in each par-
ticular case xei' notes to section 81.
Where a Division Court becomes seized of the right to entertain a
claim under this section, it would possess that right until the close of
the case: Haldan v. Beatty, 43 U. C. R. 014.
Sub-Section 2. — The application is to be made by the defendant, or,
if there be more than one, by or on behalf of all, to " the Judge of the
county in which the action is brought." The clerk would be entitled to
the same fees, of and about the order, as he would in other matters.
Sub section 3. — Tiie application must be made within eight days
from the day of service of the summons, when the defendant, or one of
the defendants, resides witliin the county in wliicli the action is brought,
or within 12 days if none 3f the defendants reside within such county.
The Judge has no power to enlarge this time: Serjeant v. Dale,
2 Q. B. D. TiSS; Hudson v. Tooth, 3 Q. B. D. 4(5; Barker v. Palmer,
8 Q. B. D. 9 ; see R. v. Murray, 27 U. C. R 134; and cases cited 9 P. R.,
p. 230 ; Grant v. Holland, W. N. (1880) 156 ; Ex parte Luxon. In re Pidsley,
20 Ch. D. 701 ;
" Within " 80 many days from or after an event means exclusive of
the day of service: Williams v. Burgess, 12 A. & E. 635; Robinson v.
Waddington, 13 Q. B. 753; Mitchell v. Foster, 12 A. ct E. 472;
Stroud, 889 ; Radcliffe v. Bartholomew, (1892), 1 Q. B. 161.
For instance, if a summons was served on the 10th day of the
month, the 18th and 22nd would respectively be the last days for the
application. If the last of such days fell on a holiday, then the applica-
tion could be made on the following day : Inter. Act, s. 8, s-s. 17.
Should the Judge be away from home and the defendant be unable,
for that reason, to apply on the last day, it would be sufficient for him
to leave the papers, on which he rested his application, with the clerk
oi" at the Judge's Chambers within the proper time, and then his
application could be considered as "made." See R. v. Allen, 4 B, & S.
915; Berridge v. Fitzgerald, L. R. 4 Q. B. 039; Bain v. Gregory, 14
L. T. N. S. 601; Lewis v. Calor, 1 F. * F. 300; Hughes v. Griffiths,
13 C. B. N. S. 334: Mumford v. Hitchcocks, 14 C. B. N. S. 301 ; Chris-
topher V. Croll, 16 Q. B. D. 60 ; He Sweetman and Gosfield, 13 P. R. 293.
■i*f •-,*&«
RE(;ll.SlTES OF AFFIDAVIT.
no
On affldavit.— The formal requirements of affidavits ;;t>nerally in
Division Coiut; proceedinjja are reKulated by Kule 1H3. The Jud>»e
" shall not be bound to reject as insufficient " any affidavit not in
accordance with tha Rule. .S'lV section 14!{.
A clerk or commissioner in takiuii an affidavit, should subscribe, not
only his name, but the word " Commissioner " or " Com." or " Clerk,"
as tlic case may he : Pawson v. Hall, ] P. R. 2'.t4 ; Rrett v. Smith, 1 P. R.
;ur.) ; Babcock v. Mun. Council of Bedford, 8 C. P. r>'>l.
Should the parties be described in the summons by initials or by
u wron<4 name, tlie affidavit miy also use such initials or wron^j name:
DoForrest v. Bunnell, M U. C. R. H70; Sims v. Prosser, !.'> M. it W.
L'll ; IIo;l«8on v. Mav. 7 D. ct L. 4 ; R. v. Sheriff of Surrey, S Dowl. 510;
Beauchamp v. Cass,'l P. R. '2!»l.
The deponent should sij^n his usual si>;nature; and if ho does so, it
is no objection tliat it does not correspond with tiie name yiven in the
affidavit: Folj^eg v. McOalhim, 1 P. R. H'»2; Hands v. Clements, 11
M. cV W. 815.
The sianature mav be in a forei'.'n character : Nathan v. Cohen, S
Dowl. 870.
If sworn in a forei^jn country, and that fact duly certified to, the
absence of the sij^nature of de|)onent has b3en held no objection : In re
Howard ; In re Ashcroft, L. R. i) ('. P. iJ47 ; but if the 8i>»nature of the
commissioner were omitted, the affidavit would not be received: Nisbet
v. Cock. 4 A. R. -JOO.
Aflidavits purportint; to be aworn on a day not arrived are void : In re
Robertson, 5 P. R. IS'i.
The jurat may be referred to, to explain the date of a fact deposed to
in tlie affidavit: Lyman v. Brethron, "2 Chamb R. 108.
The pi'esumption of law is that an affiilavit is in the same state as
when it was sworn, as to alter it is an act of fraud and misconduct
which will not be presumed: R. v. Gordon, Dears. C.C. 58G.
An affidavit purporting to be "sworn before at, etc.," omitting the
word me, held sufficient : Martin v. McCharles, '25 U. C. R. 275) ; but
where the words were " sworn at, etc." omitting before me, it was held
insufficient: Archibald v. Hubley, 18 S. C. R. 110.
It is particularly to ba noted that the affidavit must state the six
distinct facts enumei-ated in sub-section 4. The omission of any one
fact woukt be fatal to the application. It is submitted that if the
necessary facts are sworn to, the Judge has no discretion to refuse
tlie application.
The affidavit must be made, etc.— This is imperative, and unless
some satisfactory reasons are given an affidavit of tiie attorney or agent
would not be sufficient : .v v Herschfeld v. Clarke, 11 Ex. 712; Christo-
pherson v. Lotinga, 15 C. B. N. S. 800; Barwick v. De Blaquiere,
4 P. R. 207 ; Tiffany v. Bullen, 18 C. P. 91 : Frederici v. Vanderzee,
2 C. P. D. 70.
The " satisfactory " reasons which it will be necessary to show will
depend on the circumstances of each case. But, it is submitted, that, in
general, the only valid reason would be the impossibility of obtaining the
defendant's affidavit, at the time when it was required, after all reasonable
efforts had been made to do so. A slight inconvenience would not be
sufficient. What are sati:5factory reasons is a question for the Judge.
Notice to plaintifif. — The statute does not expressly or impliedly
state that the order can be made, er parte. It is submitted, therefore,
that the plaintiff" should have an opportunity of shewing cause.
Section
86
I
Seotloiui
86-87
120 ACTION ENTERED IN WRONG DIVISION.
" It is one of the first principles of justice that no man's rights shall
be adjudicated upon without f^ivin^ him iin opportunity of being heard
■ in support of them : " pi-r Willes, J., Thorburn v. Marnes, L. R. 2 C. P.
at p. 401 ; (K-e Fisher v. Keane, 11 Ch. D. 353 ; Vix lyarte Tucker. In re
Tucker, 12 Ch. D. 30S; R. v. Law, 27 U. C. R. 260.
No provision is made for the costs of the application, so that only
costs of the ordinary fees of the clerk and bailiff under the tariff would
be allowable.
Should one of the parties die durinj^ the consideration of the applica-
tion, the Jud^e could still make the order, dating it as of the day of the
argument : Ward v. Vance, 3 P. R. 210.
Forthwith transmit. — The duty of the clerk in this respect is impera-
tive, and his wrongful refusal could b3 followed by mandimu^ : R. v.
Fletcher, 2 E. & B. 279 ; In re Linden v. Buchanan, 2i) U. C. R, 1. and
it would probably be granted with costs : R. v. Langridge, 24 L. J. Q. B. 73 ;
1 Jur. N. 8. G4. As to the meaning of "forthwith " see note to section 20.
Shall enter. — The plaintiff must prepay the clerk's costs, otherwise
he would not ba obliged to enter the suit. See section 54.
It is submitted that the defendant would have the same time for
giving notice disputing the plaintiff's claim, as he would have had if the
summons had been originally issued from the court to which the action
is removed, unless the Judge has, by his order, prescribed the time
within which the defendant should give such notice.
Forthwith cause to be served.— As to m3aning of " forthwitli," ^ce
note, section 20.
^Should the defendant not take out the order, or serve it as the
statute requires, he would be taken to have abandoned it : Kenny v.
Hutchinson, 6 M. & W. 134; Belcher v. Goodered, 4 C. B. 472; Nor-
manby v. Jones, 3 D. & L. 143 ; Herr v. Douglass, 26 U. C. R. 357 ; S. C.
4 P. R. 102; Morley v. Bank of B. N. A., 10 IJ. C. L. J. 128; Ferguson v.
Elliott, 7 P. R. 7 ; Kelly v. Wade, 14 P. R. 13 ; Molsons Bank v. Dilla-
baugh, 9 C. L. T. 488.
Should the order be waived or abandoned, it is not necessary to move
to set it aside : Re Wilson and Hector, 9 U. C. L. J, 132.
Same manner as summonses. — As to the manner of serving sum-
monses, see sections .90-99.
8T» If an action shall be entered in the wronji' Division
entered in Coui't, which might properly have been entered in some
court^ by other Division Court of the same or any other county, the
cause shall not abate as for want of jurisdiction, but on
such terms as the Judge shall order, all the papers and
proceedings in the cause may be transferred to any Divi-
sion Court having jurisdiction in the premises, and shall
become proceedings thereof as though the cause were at
first properly entered therein, and the same shall be con-
tinued and carried on to the conclusion thereof as though
the action had originally been entered in the said last
mentioned court, [but the party making the application
When
mistake.
m
ACTION ENTERED IN WRONG DIVISION.
121
>>L'e
Hhall satisfy the Ju(%e by affidavit of the allej^ed want of
jiiriHdictit)ii of the said court. The clerk of the court to
which proceeding's have been ho transferred, shall place the
action on the list for trial at the next sittings of his court,
if he receives the papers in the cause six clear days or
more before the date of the said sittings, but if not, then he
shall place it on the list for trial at the sittings next
thereafter ; and he shall forthwith, after receiving the said
papei's, notify the parties or their agents l»y mailing them
registered notices informing them of the date, hour and
place of said sittings, and the clerk of the court issuing the
sunnnons shall certify in detail to the court to which the
case is transferred all the costs incurred in the said action
up to the date of such transfer.] 48 V. c. 8, s. 11 ; 52 V.
c. 12, s. 5.
Originally it wa8 only in cases where the action was brought by
" mistake or inadvertence " in the wrong Division Court that the Judge
was empowered to transfer it to the proper court. But by 52 Vic. c. 12,
8. 5, the words " by mistake or inadvertence" were struck out ; and the
section is now applicable to all cases which " may be entered in tlie
wrong Division Court," and "which might properly have been entered
in some other Division Court of tiie same or any other county."
It applies, therefore, to all cases to which the Division Court juris-
diction extends.
It has always been a subject fruitful of discussion under the English
County Courts Act and our Division Courts Act, what the proper district
or division was in which to sue. See sections 09 and 70 and notes thereto
for the authorities upon this question. It is a matter for tho Judge to
determine before ordering the transfer.
The application for transfer nesd not be made before the [trial : He
Thompson v. Hay, 12 C. L. T. 486.
Such terms as the Judge shall opder.— The terms a Judge should
impose will depend entirely upon the circumstances of each particular
case. It has been held that if the section, as now amended, did not take
away the right to prohibition it at least contemplated an application being
made in the first instance to the County Judge and where a defendant
applied for prohibition before trial without having first made an appli-
cation to the Judge of the Division Court to remove the action to the
proper court, it was held that prohibition would not lie; In re Watson
V. Wolverton, 9 C. L. T. 480 ; affirmed by C. P. Divl. Ct. (not reported).
But if the Judge declines to try the question, a motion for prohibi-
tion may properly be made, and the onus of having the case transferred
to the proper court is upon the plaintiff : Re Thompson v. Hay, 12
C. L. T. 480.
The proceeding is somewhat analogous, so far as terms are con-
cerned, to an application to postpone a trial or an amendment of pro-
ceedings, in both of which cases the general rule is to impose the pay-
ment of costs.
Section
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122
CLERK TO «E I'AID COSTS.
Section Formerly the power of a Jurlge.to impose costs, in snch cases, was
87 doubted, but by section 207, sub-section 2, tiiat difficulty is removed.
Either party may make the application. If the defendant has
disputed the jurisdiction and the court is satisfied that it has no
jurisdiction the plaintiff would ba unsafe in takiuf? judj,'ment : lie Thomp-
son V. Hay, 12 G. L. T, 480.
Satisfy the Judge by affidavit.— .SV<' notes to section 8f> as to
affidavits and other proceeding's on an application such as this.
The section does not declare what Jud^'e is meant. No doubt the
power to impose terms refers to the Judge of the court in which the suit
is entered and not the Judge of the court to which it is transferred. It
is not necessary that the affidavit should specify the date of the sittings
to which the case transferred shall be tried, as ia the case under sub-sec-
tion (■> of the next preceding section.
It will be observed that there is no power to transfer a case upon the
ground of preponderance of convenience or any other ground recognized
in the High Court and County Courts. If the court has jurisdiction to
try the case (otherwise than under sections 85 and 8()) no court has
power to order a transfer.
List for trial. — It is customary for the clerk to make out a list for the
Judge and one for the use of litigants and others having business in
court. An action which has been transferred under this section or the
next preceding one will of course be placed upon such list. As to the
manner of preparing the list of cases for trial and the order in which
actions are to be tried .sec section 115, and notes thereto
At the next sittings of the Court. — The " next sittings of the court "
means the sittings which shall be held next following the date on which
the papers and proceedings ai'e received by the clerk. See Booth v. Vicars,
13 L. J. Ch. 147 ; R. v. Surrey, (i Q. 13. D. 10(3; R. v. Sussex, 4 B. & S. 9(36
Six clear days or more. — The phrase " clear days " means that the
time is to be reckoned exclusive of both the first and last days : Liffin v.
Pitcher, 1 Dowl. N. S. 7<)7; In re Sams and the City of Toronto,
<) U. C. R. 181: III re Railway Sleepers' Supply Co., 2<J Ch. D. 204;
Zouch v. Empsey, 4 B ci Aid. '522; R. v. Shropshire, 8 A, <t E. 172;
R. V. Aberdare Canal Co., 14 Q. B. 854. The day on which the papers
were received and the court day would be excluded. See also notes to
sections 90 and 125. For instance if the papers were received on the Ist of
any month, and the court was to be held on the 8th of that month the
case should be set down for trial at that court, but if the court were
to be held on the 7th. the case should not be set down for that one, but for
the next succeeding court.
Forthwith.— The word " forthwith," as it is used here, implies " speedy
and prompt action and an omission of all delay ; in other words, that the
thing to be done should be done as quickly as is reasonably possible : "
per Cockburn, C.J., R. v. Berkshire Jus., 4 Q. B. D. 4(59. Sec notes to
section 20.
Mailing them registered notices. -The notice required must be sent
by post, prepaid, and registered. It would not be a compliance witli the
statute to deliver it personally or m any other way than that pointed
out. It must contain the date, hour, and place of sittings of the court.
As to effect of hn omission by the clerk to give such notice : i>ee notes to
section 170.
Costs incurred, etc. — The clerk of the court in which the action was
originally commenced should be paid his costs at the time the claim was
entered for suit, and he is not bound to act until they are paid, nor
would the clerk of the court to which the transfer is nuide be obliged to
to
n
12:^
Sections
87-88
SUITS BV CLERKS OR BAILIFFS.
enter the suit until his costs are paicL Sec section 51 and notes thereto.
The order of transfer should be chargeti for under the 17th. item of the
tariff, not under the 18th. Each clerk will only be entitled to charge for
the proceedings taken in his own court, and the clerk of the court issuing;
the summons is here required to certify in detail to the court to which the
case is transferred all the costs incurred, etc., up to the date of such
transfer.
" In detail " implies that there should be an account showing not only
the total amount but full particulars of the services performed and the
amount of each item of tne costs incurred : see Colman v. G. E. Ry. Co.,
4 B. it Macn. 108 ; Stroud, 494.
It is submitted that the plaintiff being responsible for the entry of
the action in the wrong court the defendant should not be obliged to
j)ay double costs and that the order transferring the action should make
provision in that respect.
S«. Every clerk or bailift" may sue and be sued foi'^itMs^"^
any debt due to or by hiin, as the ease may be, separate!}^ ^^Jj^jj^^"**
or jointly with another person in the court of any next a,ijoi,*,ing
adjoining" division in the same county, in the same manner, "divisions.
to all intents and purposes, as it' the cause of action had
arisen within suclx next adjoining division, or the defend-
ant was resident therein, and no clerk or l)ailiff shall bring
any action in the Division Court of which lie is clerk or
bailiff. R. S. 0. 1877, c. 47, s. Go.
[(2) Nothing in this section contained shall be taken
to prevent any proceedings from being continued in the
coui-t in which the action was brought, where such action
was commence<l before the appointment of such clerk or
bailiff 52 V. c. 12, s. G.]
It would be highly improper for officers of the court to have control of
suits against themselves against the will of the plaintiff. This provision
is mei'ely permissive as regards persons who may wish to sue an officer
of the court, but the prohibition as to a clerk or bailiff is complete. In
other woi'ds a clerk or bailiff can be sued in his own division, but he
cannot himself sue fcr anything there.
It has been said : " For any other cause of action but a 'debt,' must
not a clerk or bailiff sue in a higher court, if cause of action arose in his
own and defendant resides in his division ? He cannot sue in his own
division for anything whatever, and he can only sue in the ' next adjoin-
ing division ' where it is for a ' debt ' due him : " See 1 L. C. G. 54 ; 2
L. C. G. 142. See also 4 IT, C. L. J. 157 ; 9 U. C. L. J. 99.
(,)U(rre. — Can a clerk Fue in the adjoining division upon a cause of
action not arising in his own division against a person not resident
therein ? The language of the section would appear to cover such a case.
The intention, however, must have been to substitute the court of the
adjoining division for the clerk's court, when such court had complete
jurisdiction and was really the only court in which otherwise the action
could bo brought.
I
■ J
ii
124
SUITS AGAINST CLERKS OR BAILIFFS.
.> 11
ft' f^
Place of
trial in
actions
aRaiuBt
clerk or
bailiff.
Sections As to meaning; of " adjoining division " see notes to section 89.
88-89
_.^ . Sub-section 2. — ^This clause has been added since the publication of
Sinclair's Con. 1). C. Act, 1888. In that work the author expre,sae'I the
opinion that " should there be a suit in the name of sucli clerk or bailiff
in any court before iiia appointment, it is submitted that it could be
enforced in the ordinary way, notwithstanding such appointment.
H9. Notwithstanding anything in this Act contained, a
clerk or bailiff of a Division Court may be sued in the
court of an adjoining county, the place of sitting whereof
is nearest to the residence of tlie defendant without the
county in which he holds liis office as clerk or bailiff; and
Enforcing ^ipon a traiiscript of a judgment which may be recovered
against any clerk or bailiff in such action being sent to and
received by the clerk of the court of any division adjoining
the division for which the defendant was or is clerk or
l)ailiff in the county in which the last named division is
situate, with a certificate of the amount due on such judg-
ment, as provided by section 217 of this Act, such
proceedings for enforcing and collecting the judgment by
way of execution and otherwise may be had and taken in
the Division Court to which the transcript has l)een s<^ sent
by the officers thereof as may he had or taken for the like
purpose upon a judgment regularly recovered in any
Division Court. 43 V. c. (S, s. 15.
May be sued. — See notes to section 83.
Adjoining county. — The term "adjoining " means touching or con-
tiguous as distinj^uished from hing near or adjacent; in contact
with : Re Ward, 52 N. Y. (1873) 3<)"7 ; Miller v. Mann, .55 Vt. 479 (1882).
In a penal statute the word means " absolutely contiguous, without any-
thing between : " per Parke, .7., 11. v. Hodges, Moo. & M. '6il. But the
meaning in other statutes is less strict: xee Lon. it S. W. Ky. Co. v.
Blackmore, L. K. 4 H. L. (ilO ; Hobbs v. Mid. Ry. Co., 20 Ch. D. 418, per
Manistj, J. And an " adjoining owner " was held to include an owner
of land separated from surplus lands of a railway by only a private road
over which such owner had a right of way : Coventry v. L. B. & B. C. llv.
Co., L. R. 5 Eq. 104. See also Harrison v. Good, L. R. 11 Eq. 388.
Nearest to the residence. — The place of sitting does not here refer
to the municipality, but the building in which the court is held : lie
Timson, L. R. 5 Ex. 257; Shaw v. Morley, L. R. 3 Ex. 137; Bowes v.
Fenwick, L. K. 9 C. P. 330 ; Eastwood v. Miller. L. R. 9 Q. B. 440 :
Haigh V. Sheffield, L. R. 10 Q. B. 102 ; Snow v. Hill, 14 Q. B. D. 588.
As to how distance is to be measured, se: notes to section 82.
As to residence of a party, sec notes to section 81.
^ r 135
TRIAL BY CONSENT.
125
Action
agaiiiHt
County
.ludKo or
Stipendi-
ary Magis-
trate,
The permission here given to sue a clerk or baihff is confined to the Sections
courts of an adjouiin^ county, and provision is also made for the 89-91
enforcement of a judjjment by transcript in the division iu the same ~ ■
county adjoining his own.
1>0. Any action, hy or agaiiiHt a Judge or Junior Judoe
of a County Court, which is within the competence of a
Division Court, may l)e brought in a Division Court of
any county adjoining that in which the Judge or Junior
Judge resides . and any action by or against a Stipendiary
]\bigistrate, if the same is witliin the jurisdiction of an}'
Division Court of his district, may be brought in any
Division Court of any adjoining county or district. R. 8. O.
1.S77, c. 47, s. ()().
Within the Competence of a Division Court. —In every case the claim
must be one within the competence of some Division Court. I'iven the
consent of the parties cannot confer jurisdiction in a case which is beyond
the competence of aw// Division Court: Jones v. Owen, 5 D. & L. GUI);
Buse V. Roper, 41 L. T. N. S., 457 ; Wellesley v. Withers, 4 E. A B. 759 ;
Foster v. Usherwood, S Ex. D. d.
Judge or Junior Judge resides. — The County Court Act provides
that a Judge or Junior Judge shall reside in the county in which he is
such; so that "adjoining county" may be taken to mean the county
adjoining that of which the person sued is Judge or Junior Judge.
tM. Notwithstanding anythino' in tliis Act contained,?'"'^'"
./ r> ' by con
nnv action within the jurisdiction of the Division Court \'f,.Vi;/';"'^
w UlVlSlOll.
may be entered, tried and finally disposed of by the con-
sent of all parties in any Division Court. 43 V. c. (S, s. 10.
Consent of all parties. — Before the introduction of this section,
parties could not, expressly or otherwise, confer jurisdiction if the want
of it appeared on the face of the proceedings. In such cases " there was
a total want of jurisdiction which no assent could cure : " per Patteson, J.,
Jones V. Owen, 5 D. & L. 6G!). The consent here has mox'e especial
reference to cases sued in the wrong division, in which the parties may
agree to give the court the right to try and dispose of them as if properly
entered.
The same effect is attained by the defendant failing to comply with
section 176.
The section does not prescribe a written consent, and therefore such
is unnecessary : R. v. Salop (Jus,), 4 B. it Aid. (526; R. v. Surry (Jus.),
5 B. A' Aid. 53'J; R. v. Huntingdonshire (Jus.), 19 L, J. M. C. 127 ; R. v.
Lincolnshire (Jus.), 3 B. & C 548. Contrast section 116 ; R. v. Nichol,
40 U. C. R. 76.
The consent may be in writing, in words, or by acts or conduct.
Consent in writing signed by the parties or their solicitors, would in all
cases be preferable. But the verbal consent of the parties would be
e;pially as efficacious, though more difficult of proof if disputed. The
word " consent " means "agreement of mind," " concurrence of wills,"
" approval : " Anderson 230. It is "an agreement of the mind to what
lay
by consent
J1
12()
NOTICES TO HE IN WHITrXfJ.
;
1
1 i
'i
1
\m
f
(
I
! i
Sections is proposed or stated by another": Plummer v. Commonwealth,.
91-93 1 Bush. 78 ; In Si^'i,'ers v. Evans, o E. A B. at p. 874, Erie, J., says :
" assent is an ambigious word ; it may mean an external act, or a resolu-
tion of the mind."
In },'eneral, knowledge of the fact is an essential element in such
cases in order to bind a defendant by his conduct : Westloh v. Brown,
43 U. C. It. 402; la n- Collie, 8 Ch.' I), at p. 817; Johnson v. Credit
Lyonnais Co., iJ C. P. D. at p 40, jier Cockburn, C.J. .SVc also Cross-
man V. Shears, 8 A. K.;")88; Wallace v. Eraser, 2 S. C. li. 532 ; Polak v.
Everett, 1 Q. B. D. CM; P. v. Lock, L. R. 2 C. C. 14, per Quain, J. ;
La Banque Jacques Cartier v. La Banque D'Epargne, etc., de MontreaU
18 App. Cas. HI.
Whether or not consent has been given is a matter of fact, not of
law : Mason v. Farnell, 12 M. & W 074.
The consent could be given at any time before trial, or even on the
face of the contract. Both parties must consent ; but the plaintiff's
consent may be presumed from the fact of his suing in a particnlar
court, or taking a security with such a consent as the section requires on
the face of it.
Clerk to
forward
sum-
mouses
for service
in other
divisions.
Notices to
beiu
writing.
1>!2. The clerk of any Division Court shall, when ro-
(^iiired, forward all suninion.ses to the clerk of any other
Division Court for service, and the clerk of any Division
Court shall receive any summonses sent to him by any
other Division Court clerk for service, and he shall hand
the same to the bailiff' for service, and when returned shall
receive the same from the bailiff' and return them to the
clerk from whom he received them, and e j clerk shall
enter all such pi-oceedin<»s in a book to be by hiin kept for
that purpose. R. S. O. 1877, c. 47, s. 67.
Shall receive any summonses.— The clerk may under sections 54, 55
and o() insist on prepayment of his own and bailiff's fees. See notes to
those sections.
ttJJ. In all cases not already provided for, where, in any
action or proceedino- in a Division Court, it is necessary for
any party thereto to jvive notice to any other party thei'eto
or to the clerk of the court such notice shall be in writing-.
48 V. c. 14, s. 8.
In writing.—" Writing,'' or " written," or any term of like import,,
shall include words printed, engraved, lithographed or otherwise traced
or copied : Interpretation Act, section 8, sub-section 14. The language
of this section is imperative, and any verlial notice would be inoperative,
and might be entirely disregarded : Re McGregor v. Norton, 13 P. R. 223.
EXTRV Ol
Entry of Clu
!M. (1) The plaintiff' sliM
(and, if necessary, copi'js) of
w writing" in detail (and in c
deii'and) and each copy shal
order in which the copies
sunnnons shall be issued, beai
elaiia or demand on tlie mai-
in .substance with such forii
( ieneral Rules or Orders rela
time to time in force, ace
account, claim or demand, ai
evidence shall be given l)y
action except such as Li cont
demand so entered. R. S. C
(2) In any action brougl
due on a promisory note, th
clerk before judgment, unles
the loss of the note be shewi
other satisfactory reason be ]
Particulars of his demand.— Tl
manner of entering a Division Coi
enter with the clerk a copy, and, if
or demand in writing in detail, a:
actions under section 70, class (i
prescribes how each copy shall be r
On the trial of the cause no evid
cause of action, except such as is c
maud so entered, or in the particul
unless an amendment is made.
As to what the claim should cot
The claim when " entered witl
requisites of this section and of the
complete if it did not.
The clerk is not entitled to ma
to the original summons whether
plaintiff is bound to furnish it, and
furnished is to be attached to th(
summons and claim are complete,
clerk in respect of the claim for wl
As to the copy of summons and
defendant, chargeable under any ci
ENTRY OF I'J.AlNTll'FS CLAIM.
Enirjj of (Jlalui, Service, etc.
127
Section
94
(1) The ])l!iiutirt' shall enter with the clerk a c'l )nv i'laintiff to
neeesHiirv, copies) ot Jus account, claim oi* demand ot ins
. , . . . . . L'laiiu with
ig in detail (and in cases of tort, particulars of hisi^iuik'
) and each copy shall be numbered according to the
1 which the copies are entered, and thereupon a
s shall be issued, bearing the number of the account,
demand on the margin thereof, and corresponding
■nice with such form as may be prescribed by the
Rules or Orders relating to DiNision Courts from
time in force, according to the nature of the
claim or demand, and on the trial of the cause no
) shall be given hy the plaintiti' of any cause of
xcept such as l.i contained in the account, claim or
so entered. R. S. O. 1877, c. 47, s. 68.
^n any action brought to recover a sum of money
I promisory note, the note shall be tiled with the
fore judgment, unless otherwise ordered, or unless
of the note be shewn, or that it cannot for some
isfactory reason be produced. 49 V. c. 15, s. 7.
liars of his demand. — Tliis section makes provision as to the
entering a Division Court snit. The plaintiff is required to
tlie clerk a copy, and, if necessary, copies of his account, claim
1 in writing in detail, and in cases of tort (that is personal
ider section 70, class (a), paiticulars of his demand, and
how each copy shall be numbered and entered.
trial of the cause no evidence shall be allowed concerning any
stion, except such as is contained in the account, claim or de-
ntered, or in the particulars of demand, if the action is in tort,
amendment is made.
rhat the claim should contain, sec Rules 3 and 4.
aim when " entered with the clerk " should contain all the
of this section and of the Rules referred to, and would not be
f it did not.
rk is not entitled to make any charge for the claim attached
ginal: summons whether made out by himself or noi. The
I bound to furnish it, and by section 95, the copy of t .le claim so
is to be attached to the summons. When this in done, the
and claim are complete, and there is nothing to be done by the
spect of the claim for which he is entitled to charge.
he copy of summons and claim only two are, in the case of one
I chargeable under any circumstances.
128
PARTICULARS OK CLAIM.
IM
1
rt
1
I
i
i
1
1
■
1
t
(
B_
Sections Tlie clerk is not bound to prepare a suitor's claim, and he would be
94-95 exercisinf^ a wise discretion by refusinj^ to do so and be thereby acting
within the spirit, at well as the letter, of the 100th. Rule.
If a debt is assigned the action should be brought in the name of the
assif^nee : Wellington v. Chard, 22 C. P. HIS ; Cousins v. Bullen, P. R.
71 ; and the assignee must take the full beneficial interest : Wood v.
McAlpine, 1 A. R. 234. A mortgage of debts is an absolute assignment :
Burlinson v. Hill, 12 Q. B. D. 347; Tancred v. Delagoa Bav Co., 23
Q. 1$. I). 239 ; Comfort v. Betts, (IBKl), 1 Q. B. 737. There can bu an
equitable assignment of a small sum out of a larger amount : Brice v.
Bannister, 3 Q. B. D. .50'.) ; Kx parte Hill, 10 Ch. D. (115 ; Kx parte Moss.
In re Toward, 14 Q, B. D. 310 ; James v. Newton, 2 New Eng. Rep. 820 ;
23 Cent. L, J. 489.
Whether a creditor can split up a single cpuse of action into many
actions, without the consent of his debtor, is an interesting question, and
the general opinion seems to be that he cannot. Mr. Justice Htory said :
" A debtor has a right to stand on the singlpuess of his original contract,
and to decline any legal or equitable assignment by which it nuiy be
broken into fragments. When he imdertakes to pay an integral sum to
liis creditor, it is no part of his contract that he sliall be obliged to pay
in fractions to otlier persons:" Mandeville v. Welch, 5 Wiieat. 280.
A debtor cannot, however, disregard an equitable assignment of a
jiavt, and cannot compromise or settle with the assignor or even modify
the terms of tlie contract without the consent of the assignee after notice
of the assigment : Brice v. Bannister, 3 Q. B. D. 509.
If the debtor consents to the assignment, as by accepting an order,
the assignee may sue without making other holders of tlie demand
parties to the suit : Grant v. Aldrich, 38 Cal. r)14. Where there has been
a partial assignment, the proper course would seem to be to make the
assignor, if he retains any interest, and the other assignees, parties to
the action against the debtor, and have the rights of all parties declai-ed.
The debtor in such cases might be allowed to retain his costs out of the
fund : see Lett v. Morris, 4 Sim. 007 ; Smith v. Piverett, 4 Bro. C. C. 04 ;
James v. Newton, 2 New Eng. Rep. 820, where the American authorities
are collected.
An accepted order is equivalent to payment as against the creditor or
l)ersons claiming Mechanics' Liens under him : Jennings v. Willis,
22 O. R. 439.
Frequently such forms of account as, " to amount of account
rendered" are given, as the particulars here required. Such are
insufficient. The statute requires particulars in detail. As to the claim
and particulars, sec D. C. Rules, 3 to 8.
Promissory Note. — Before suing on a lost note, a plaintiff should
tender sufficient security, otherwise he would be made to pay the costs of
the suit: La Banque Jacques Cartier v. Stachan, 5 P. R. 159.
Sub-section 2 was evidently intended for the purpose of altering the
law as declared in the case of In re Drinkwater v. Clarridge, 8 P. li. 504,
in which it was held, that the clerk was bound to enter judgment on a
special summons, without the production of the note sued on. The note
must now be filed with the clerk before judgment.
Plaintiff to OS. The plaintiff shall furnish the clerk with the par-
iiarticuiars ticulars ot' liis claiiii or demand, and the clerk shall annex
the cieV the plaintiff's particulars to the summons, and he shall fur-
lor service, j^jgi^ copies thereof, to the proper person to serve the same.
R. S. O. 1877, c. 47, s. G9.
INDOUSEMENT ON SUMMONS.
12a
Willis,
By section 94 the plaintiff is required to enter with the clerk a copy,
and if necessary, copies, of his account, etc. This section prescribes
that he shall also furnish the clerk with particulars of his claim or"
demand, and it is made the duty of the clerk to annex the same to the
summons. The summons is then complete and is to be delivered by the
clerk to the proper person to serve the same.
Should the clerk neglect to do this, it would not vitiate Lue proceed-
ings. They could be amended, if necessary, upon proper terms, the
principle of law, that the act of the court shall not injure any man,
being applicable.
Any damatje which the plaintiff might sustain by want of reasonable
care on the part of Lhe clerk, would be tLa subject of an action against
him and his sureties.
1>6. The .summons, with a copy of the account or of
the particulars of tlie claim or demand attached, shall be
served ten days at least before the return day thereof.
R. S. O. 1877, c. 47, s. 70.
Ten days at least. — This means ten clear days, that is exclusive of
the dv^y of service and the day of the return. Sunday would be included
as one of the days : Ite Railway Sleepers Supply Co., 29 Ch. D. 204. Aft
to service, see section 99 and notes thereto.
Return day.— The "return day" means the day on which the
summons is returnable. Its primary meaning is the day originally
fixed for the hearing : R. v. Leeds County Ct., 16 Q. B. D. 691.
A defendant does not waive his right to the full time for trial by
entering a disputing notice : Zaritz v. Mann, 16 L. J. N. S. 144. See
also Barker v. Palmer, 8 Q. B. D. 9; Hudson v. Tooth, 3 Q. B. D. 46.
07. [In case the defendant does not reside, or in case
none of the defendants, if there be more than one, reside in
the county in which the action is brought, the summons
shall be served fifteen days at least before the return
thereof.] 52 V. c. 12, s. 8.
This section formerly provided in effect, that the summons should be
served 15 days at least before the court, where both of the defendants, or
one of -them, resided in an adjoining county ; and that where none of
the defendants resided in an adjoining county, the summons should be
served 20 days at least before the return day thereof. That provision
was repealed, and the one here given substituted in lieu thereof.
9H. There shall be endorsed upon every summons a
notice informing the defendant that in any case in which
an order may be made changing the place of trial, applica-
tion must be made to the Judge within eight days after the
day of service thereof (where the service is required to be
ten days before the return), or within twelve days after
the day of such service (where the service is required to be
fifteen days or more before the retura). 43 V. c. 8, s. 13.
D.C.A. — 9
Sectionft
90-98
Service of
BummoiiB
to be ten
days.
Service of
suiumous
ou absent
defen-
dants.
ii ^
It
I
I
Indorse-
ment upon
Bummona,
-T
130
PERSONAL SERVICE.
••oMont This notice seems to be material only in oases falling within sec-
98-99 tion 86, i.e. oases where the amount claimed exceeds 9100, and the action
is brought in the division where it is payable.
The time within which the application must be made to the Judge to
change the place of trial is speciiic. No power is given to the Judge to
enlarge the time. If, after due service made, application is not made
within the time prescribed by this section, the right would be gone. See
the notes to section 86 hereof.
^vhen8er- ^>«>, Jn case the amount of the account, claim or
vice to be '
P^^|°°*^°' demand exceeds .S15, the service shall be personal on the
defendant, and in case the amount does not exceed .515, the
service may be on the defendant, his wife, or servant, or
some grown person being an inmate of the defendant's
dwelling-house, or usual place of abode, trading or dealing.
R. S. O. 1887, c. 47, s. 72, amended by 52 V. c. 12, s. 9.
Claim or demand. — A sum included for interest will form part of the
»* claim or demand : " Insley v. Jones, 4 Ex. D. 16 ; Rodway v. Lucas,
10 Ex. 670, per Pollock, (3.B.; Smart v. Niagara .i Detroit Ry. Co.,
12 C. P. 406, per Draper, C.J.; Northern Ry. Co. v. Lister, 4 P. R. 120;
McKenzie v. Harris, 10 U. C. L. J. 213. See notes co section 70.
Exceeds $15.— Should the claim be one cent over %15, service would
have to be personal.
PeFSonal sepvice. — Personal service means serving the defendant
with a copy of the process, and showiu",' him the original if he desire it :
Goggs V. Huntingtower, 12 M. & W. 503.
Merely showing the summons to the defendant would not be good
service ; a copy must be left with him : Worley v. Glover, 2 Str. 877. If,
on the refusal of a defendant to take the copy of the summons, the officer
brings it away with him, the service is not good: Pigeon v. Bruce, 8
Taunt, 410 ; Erwin v. Powley, 2 U. C. K. 270,
Unless the defendant, within a reasonable time, asks to see the
original summons, it need not be shewn to him : Petit v. Ambrose,
6 M. «fe S. 274; Thomas v. Pearce, 2 B. & C. 761.
It has been held, that 15 minutes was not an unreasonable time :
Westley v. Jones, 5 Moore, 162.
If inspection of the original is demanded and refused the service is
bad : Weller v. Wallace, R. & J.'s Dig. 2872.
The following have been held to be cases of personal service : Where
the writ was put through the crevice of a door to the defendant, who
had locked himself in : Smith v. Wintle, Barnes, 405 ; where the writ
had been enclosed in a letter to defendant, which he had read, and from
which he took out the copy : Boswell v. Roberts, Barnes, 422. See also
Aldred v. Hicks, 5 Taunt. 186 ; but see the later case of Redpath v. Wil-
liams, 3 Bing. 443.
Where, the door of the defendant's house being fastened, the officer
spoke to him through the closed window, explaining the nature of the
process, and then placed a copy of it under the door informing defendant
thereof, after which he returned to the wind'^w and showed the original
summons to defendant, who said, "That will do": In re Colin Camp-
bell, 9 C. L. T. 145.
jihii
^T^
WHAT IS PERSONAL SERVICE.
131
Service upon the treasurer was held good service upon the county :
"Watts V. Beemer, 8 C. L. T. 255 ^w Wilkes Dy. J.
If the particulars of demand should be amended after service, judg-
ment could not be entered without re-serving the sumnons ; Guess v.
Perry, 12 P. E. 4G0.
If a person refuses to take a copy of the summons, the proper course
is to inform him of its nature, and throw it down in his presence : per
Pattesou, J., Thomson v. Pheney, 1 Dowl. 443.
In Goggs V. Huntingtower, 12 M. & W. 503, the facts were these. In
order to serve defendant, a person went three times to his residence,
when he saw a female servant, who said her master was not at home.
On the third occasion the servant let down over the garden wall a basket,
into which the writ was put. The servant then took back the basket ;
and shortly afterwards the voice of the defendant was heard in the yard,
saying to the servant, " Take it back ; I will not have it." The party
called on a subsequent day, when the servant said she had given the writ
to her master. Held, not a personal service. In Christmas v. Eicke,
€> D. & L. 156, the facts were these. Several calls had been made at de-
fendant's residonce by the party who was endeavouring to serve the writ,
without success. On the last occasion, having inquired if the defendant
was at home, and having received an evasive answer, he waited in the
hall. Ilavmg afterwards gone into the parlour for a few minutes, 'le saw
the defendant running upstairs. He immediately followed after defend-
ant, but before he could give him a copy of the writ, the defendant went
into a room and fastened the door. He then called out to him, and told
the defendant that he had a writ against him at the suit of the plaintiff,
and, putting a copy of it through a crevice of the door, told him that that
was a copy of the writ, ffeld, not actual personal service, but only con-
structive service. But see Smith v. Wintle, supra. Service upon "a
female servant at the lodgings of the defendant " is not good service :
Price V. Thomas, 11 C. B 543. In Heath v. White, 2 D. & L. 40, it we,*;
held that where the party attempting to serve the writ of summons went
to the defendant's house, and, seeing him standing at a closed window on
tlie ground floor, told him m an audible voice the purpose for which he
came, and threw a copy of the writ down in his sight, and in the presence
of his wife, who had come out of the house, and who liad denied that he
■was at home, and left it lying there in defendant's garden, the service
was not sufiScient. If proceedings be taken as if personal service had
been effected when it was not, they are irregular only, and not 7iull
^Holmes v. Russel, 9 Dowl. 487), and a defendant must move promptly
after knowledge of it to set them aside ; see Jol.." ■ jn v. DeVeber,
8 C L. T. 383 ; or he will be taken to have waived the in gularity : Willis
"V. Bull, 1 Dowl. N. S. 803. But where no irreparable wrong will be done,
a plaintiff who has obtained judgment by default, lapse of time is not a
bar to the application to set it aside : Atwood v. Chichester, 3 Q. B. D. 722.
If there are conflicting affidavits as to service, and the party serving haa
deposed to personal service, the courts will not set aside the proceeding
upon an affidavit of the defendant that he has not been served : Morris
v. Coles, 2 Dowl. 79 ; Giles v. Hemming, 6 Dowl. 325 ; Emerson v. Brown,
7 M. & G. 476. In actions against trading corporations, it is submitted
that service could be effected on the president or secretary of the company.
If the bailiff cannot effect the service of the summons, he shall, imme-
diately after the time for service has expired, return the same to the
<5lerk, stating the reason for non-service in writing on the back of the
summons : Rule 90. Service may be made at any hour of the day or
night : Upton v. Mackenzie, 1 D. & R. 172 ; Priddee v, Cooper, 1 Bing. 66.
The summons may be served in any county in Ontario, and by any
bailiff ; In re Ladouceur v. Salter, 6 P. R. 305 ; although not bound to go
BmUoh
99
r
\
%
i
i'
ii
132
WHEN SERVICE WAIVED.
Section outside of his own division : section 51. If served on a Sunday the ser-
99 vice is void, and cannot l)o waived: Taylor v. Pliillipa, 3 East, 105.
Service is nood though made while defendant is attenclin^} court in hia
own cause: Poole v. Gould, 1 H. & N'. !)li ; City of Kinj^ston v. Brown,
4 U. C. li. 117. The suinniona, wo need scarcely say, must be served by
one who can read so as to be able to swear, if necessary, to the correctness
of the copy : Delafleld v. Jones, Ca. Pr., C. P. 34. But inability to write
is not an objection : Baker v. Coghlan, 7 C. B. 131. Where, in an action
against a father, process was served upon liis son of th<i same name, and
appearance entered and defence made by the son, th'i court held that ar
verdict for defendant was correct, and that, whether there was collusion
or not, the plaintiff could not recover against the son so as to charge the
father : Killens v. Street, M. T. 4 Vic. A writ directed to J. H. was, by
mistake, served upon his t,on of the same name, who, a few days after-
wards, ^'ave it to the father, the defendant telling' his son that the slioriff
had made a blunder, and defendant at his son's re(|uest took it to an
attorney, who, upon defendant's instructions, entered appearance, and
afterwards put in pleas ; it was ltfl<l good service : The Provincial Insur-
ance Company of Canada v. Shaw, 19 U. C. U. 3G0. In an action on a
mort;(age the writ was served on a mortgagor's father, who, by his son,
an attorney, entered an appearance and defended the suit, and a verdict
was taken against the mortgagor, the verdict was set aside because served
on the wrong person, and no notice or knowledge of the proceedings were
shewn to have reached tlie defendant : Sutherland v. Dumble, 14 C. P. 15(5 ;
see also Walley v M'Connell, 13 Q. B. 1103. An admission of service of
summons waives all technical irregularities : Otis v. llossin, 2 P. ll>
48. Where personal service is not necessary, the bailiff should be par-
ticular in serving one of the three persons mentioned in this clause, and
shewing the nature of the service in the affidavit ; and when served on
" some grown person, being an inmate of the defendant's dwelling-house
or usual place of abode, trade or dealing," his or her name, if possible,
should be stated in the affidavit, and the fact that the person was grown
up and was an inmate of the particular house, etc. : xce Form 10(5. On
these points, see particularly 2 U. C. L. J. 85, 8(5 and 104, where the mode
of service is fully discussed.
It is an uncertain question whether any but a bailiff can serve
Division Court process under section 51 of this Act: Whitehead v.
Fothergill, Dra. 200. It is submitted, however, that service made by
any person is good.
Where the suit is on the judgment of a court of the Province of
Quebec, on a personal service made in Ontatio in an action in which the
cause tiiereof arose in Quebec, the judgment is conclusive on the merits:
Court V. Scott, 32 C. P. 148, and cases there cited ; R. S, O. c. 44, ss.
81, 82.
Whether service of a summons from a Division Court is good is a
matter peculiarly for the decision of the Judge : Waters v. Handley,.
6 D. & L. 88 ; Zohrab v. Smith, 5 D. & L. (535 ; see Kobinson v. Lenaghan,
2 Ex. 333.
As to service on a corporation having its head office out of the
Province, see sections 101 and 18'2.
As to service on partners, see section 108, sub-section 4.
Tf a defendant gives notice of defence, it is submitted that he would
thereby waive proof of service or any irregularity of service : Davis v.
Pearce, L. R. 5 C. P. 435; In re Jones, 1 L. M. & P. 65.
And if the defendant appears and contests the action at the trial,
personal service is also waived : In re Guy v. G. T. Ry Co,, 10 P. K. 372 ;
$ee also In re Merchants' Bank v. Van Allan, 10 P. R. 348.
SUHSTITUTIONAL SERVICE.
133
Ge nciutl Pro v is lo n si.
Section
100
)ut of the
lOO. Where it is made to appear to the Judije uixm substitu-
, , . , , o I tioiial
affidavit that reasonable efforts have noon inachj to effect «" vice.
pi>rs(Muil service of tlie suininons upon the (U't'cfidant, pri-
mary debtor or ijarnishee, and either that the sunniions has
come to the l^nowledn'e of the defendant, ])rimary dtd)tor
or <;arnishee, or that lie wilfully evades servi< i of the same,
or has absconded, [eithei* before or after the issue of the
summons, oi is out of the Province of Ontario, but having
in ^hitario an office and an agent doing business on his
behalf] the Judge may, by order, grant leave to the
plaintiff' to serve the writ in such manner, at such place,
or upon such person for the defendant, primary delttor ov*
garnishee, as to him may seem proper, and may grant
leave to the plaintiff' to proceed as if personal service
had been effiicted, subject to such conditions as the Judge
may impose. 43 V. c. 8, s. 02, amemled by 51 V. c. 10,
s. 1, and 52 V. c. 12, s. 10.
Affidavit for substitutional service.— As to formalities and general
requirements of an atHdavit, xce notes to section 8(), ante. The affidavit
should allow one of four things. (1) That reasonable efforts have been
made to effect personal service upon the defendant, primary debtor or
garnishee; and either that the summons has come to his knowledge; or
(2) that he wilfully evades service of the same ; or (8) has absconded
either before or after the issue of the summons ; or (4) is out of the
Province of Ontario, but having in Ontario an ofiice or an agent doing
business on his behalf.
Reasonable efforts. — It is a common law right, which every defend-
ant has, to be served personally with the summons, and it can only be
taken away by statutory enactment : see Thorburn v. Barnes, L. R.
■2 C. P. 384 ; Re Pollard, L. R. 2 P. C. 106; Maxwell on Siats. 2nd ed., 443 ;
Ferguson v. Carman, 2G U. C. R. 26.
" Before any order will be made under this section, the .Tudge must
1)6 satisfied that the process-server has done all that could be reasonably
■expected of him, to serve the defendant personally, or to ascertain his
dwelling place, and the affidavit must shew what those efforts were:"
Lush's Prac. 3rd Ed. p. 375.
The affidavit must state what steps have been taken to effect personal
service, and that all means to do so have been exhausted : per Kindersley,
V.-C, Firth v. Bush, 9 Jur. N. S. 431.
V/hat is meant by " reasonable efforts," must depend on the circum-
stances of each particular case : per Erie, C.J., Tomlinson v. Goatley,
X. R. 1 C. P. 231. " In cases not covered by authority the verdict of the
jury or the decision of a Judge, sitting as a jury, usually determines what
is reasonable in each particular case : " Stroud, 653.
n
I"
i
1S4
WHERE DEFENDANT OUT OF PROVINCE.
S«o|loii
lOQ
'■" f
i 1
, ,|
i
i:{
1 ■
! ^ i
The affidavit should shew, as strongly as possible, where the defend-
ant resided or does reside, what business he had been, or was engaged in^
what specific efforts were made to effect personal service on him, and
why it was not done, and if founded on the fact that the defendant had
absconded, the additional fact should be stated, namely, whether or not.
he had any (and if so, what) friends or relations residinj^ in the province :
iefi. Stephen v. Dennie, 3 U. C. L, J. 69. See also Flower v. Allan, 2 H.
& C. G88, per Bramwell, B., at p. 694.
It would not be enough to shew that a defendant had gone abroad,,
and had no private residence in this Province ; the affidavit should show
on the face of it reasonable grounds for inducing the Judge to conclude
that he was wilfully evading service or had absconded ; Kitchen v. Wil-
son, 4 C. B. N. S. 483.
What inquiries were made to discover the defendant's residence-
should be shown : Nugee v. Swinford, 9,;Dow1. 1038.
The calls made by the bailiff to see the defendant should, if possible^
unless there was something extraordinary in the circumstances, be made
on separate days : Cross v. Wilkins, 4 Dowl. 279; Jamieson v. Wilkins^
2 Dowl. N. S. 331.
The affidavit should shew where the calls were made, and set out with
reasonable detail the answers that were given, and by whom, and if they
represented the party to have been from home, circumstances must be
shewn to falsify the statement, if that is relied on : Price v. Bower, 2
Dowl. 225 ; Whitehorne v. Simone, 1 C. & J. 402 ; Smith v. Hill, 2 Dowl.
225 ; Waddington v. Palmer, 2 Dowl. 7 ; Houghton v. Howarth,.
4 Dowl. 749.
Where, however, there is clear prima facie proof that defendant knew
of the proceeding and avoided it, these particulars would be unnecessary ::
Gibson v. Wilson, 3 Jur. 24.
In the case of Johnson v. Disney, 2 Dowl. 400, the servant, upon be-
ing told by the person who went to serve the process, that legal proceed-
ings would be taken, went upstairs, and said, on her return, that her-
mistress, the defendant, would call and pay the claim, it was held that^
subsequent proceedings could be taken.
Where defendant's residence could not be discovered, but a copy of
the writ had been sent to an address to which letters had been directed,
and which defendant had answered, and he had subsequently corres-
ponded with the plaintiff's attorney on the subject of the claim, this
wa*- held sufficient on which to found a distringas, though no calls or
appointments had been made : Gorringe v. Terrewest, 2 L. M. & P. 12 ;.
and which, it is submitted, would be sufficient to obtain an order for
substitutional service under this section.
"It is presumed that, where there are two or more defendants an
order may be obtained against some of them, though the others have not
been served: " Lush's Prac, 3rd Ed., p. 376.
Although the facta may not shew a good personal service, yet they
may shew a case where the summons came to the knowledge of the
defendant within the meaning of this section : see the cases cited in notes
to section 99.
The Judge would not be satisfied with service on an official in the gaol
in which a defendant was confined unless there was a reasonable proba-
bility that the contents of the summons became known to the defendant :
Bland v. Bland, L. R. 3 P. & D. 233.
The process of Division Courts is of no effect against a man residing:
outside the Province : Ontario Glass Co. v. Swartz, 9 P. R. 252, unless
he has, in Ontario, an office and an agent, doing business iu his behalf^
iy
l'
i
!
i
L
J:
t'
1 '
~
T
APPLICATION TO SET ASIDE.
13<S
or has absconded ; and where a defendant cannot be served owing to his
residence out of the Province, neither can there be substitutional
service in such a case. The principle of substitutional service is thus '
stated in the latest reported cafie on the subject by Lord Esher, M.P :
'• I do not see how substituted service can be ordered where the condi-
tions are such that original personal service could not possibly be
effected. The expression " substituted service " implies in itself that
the original service could, under certain circumstances, possibly be
effected :" In re Easy. Ex parte Hill, 19 Q. B D. 538 ; see Field v.
Bennett, 56 L. J. Q. B. 89; Fry v. Moore, 23 Q. B. D. 395; Billiard v.
Smyth, 36 W. R. 7 ; Wilding v. Bean, (1891) 1 Q. B. 100.
If substitutional service should be ordered where the defendant was
beyond the jurisdiction of the court, unless specially authorized by
statute, no valid judgment could be entered thereon : Berkeley v. Thomp-
son, 10 App. Cas. 45. But if substitutional service is properly ordered,
judgment entered upon it could only be set aside as if entered on personal
service : Watt v. Barnett, 3 Q. B. D. 363.
Formerly if the defendant had, ever since the commencement of th»
action, been residing out of the jurisdiction, no order could properly b»
made, and would be set aside if granted : see Hesketh v. Flemming, 1 Jur,
N. S. 475, per Coleridge, J.; Naef v. Mutter, 12 C. B. N. S. 816.
But by 51 V. c. 10, s. 1, the section has been amended so as to make:
it applicable to cases where a defendant has absconded " either befor*
or after the issue of the summons"; and by 52 Y. c. 12, s. 10, it is also
made applicable to cases where the defendant *' is out of the Province of
Ontario, but having in Ontario an office and an agent doing business on
his behalf."
It is for the Judge to determine whether the facts give him jurisdic-
tion to make the order under this section : and the High Court will not
review his decision : Re Hibbitt v. Schilbroth, 18 O. R. 399.
To abscond is to depart to avoid legal process : Wharton ; Webster.
An oi'der will not be made where the defendant is a lunatic, and
where his relations or keeper have refused admission to him : Ridgway
V. Cannon, 2 W. R. 473 ; Holmes v. Service, 15 C. B. 293 ; Williamson
v. Maggs, 28 L. J. Ex. 5 ; but if the summons is mentioned to him it would
have sufficiently "come to the knowledge" of the defendant, to warrant
an order for substitutional service : Kimberley v. AUeyne, 2 H. & C. 223 ;
Raine v. Wilson, L. R. 10 Eq. 576.
Judgment should not, however, be given against a lunatic without
first appointing a guardian ad litem : Daniels Ch. Prac. 160 ; Crawford,
v. Crawford, 9 P. R. 178 ; unless a committee has been appointed, and in
■uch case, the committee is a necessary party. If die lunatic is confined,
in a public asylum, service may be made on the Inspector of Prisons
an i Public Charities, but it is, nevertheless, necessary to have a guardian
ad litem appointed : R. S. O. o. 245, s. 55.
The order is generally Ex parte : Barringer v. Handley, 12 C. B. 720.
To save delay the application for the order should be mads to the Judgft
in Chambers.
As to the time and manner of m-'iin , an application to set aside pro-
ceedings improperly taken on substitutional service: see Willis v. Ball,.
1 Dowl. N. S. 303 ; Morris v. Coles, 2 Dowl. 79 ; Atwood v. Chichester,
3 Q. B. D. 722 ; Emerson v. Brown, 8 Sc. N. R. 219 ; Giles v. Hemming,
Dowl. 325 ; Johnson v. Smallwood, 2 Dowl. 588 ; Williams v. Piggott,
1 M. & W. 574.
The defendant may waive any irregularity by taking any steps in thft
action after the service : Fry v. Moore, 23 Q. B. D. 395.
Section
100
I;
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ft ■
I
i.
136
SERVICE ON CORPORATIONS,
Sections
100-101
vsm
Service of
process,
etc., on
oorpora-
tiou .
i'i
m
An application may, it seems, be made to set aside tho order on
affidavits contradicting those on which it was obtained, and not disclosing
" any defence on the merits : Hall v. Scotson, 9 Ex. 238 ; Thelwall v.
Yelveiton, 16 C. B. N. S. 813.
The plaintiff's proceedings, subsequent to the order, must strictly
oonfori.1 to it, and to the terms which the Judge has imposed : Weeks v.
Wray, L. R. 3 Q. B. 212.
If the order was properly granted it would not be rescinded in con-
sequence of an event which subsequently occurred : Borradaile v. Nelson,
14 C. B. 055.
An order properly made could, for good cause, be set aside by
the Judge on the merits, and the defendant allowed in to defend, but the
Judge could impose terms : Watt v. Barnett, 3 Q. B. D. 183, 363.
The Judge would, by the order, prescribe what is to be done instead
of personal service, and, ^f it appeared that the defendant has absconded,
leaving a wife, service on her would probably be made one of the terms
of the order : Bank of Whitehaven v. Thompson, W. N. (1877) 45 ; or
that a copy of the summons be left at the defendant's last place of abode
or of business : see Cook v. Dey, 2 Ch. D. 218.
Wilfully evades service. — In common parlance, "wilful" is used in
the sense of intentional, as distinguished from accidental or involuntary :
State V. Clarke, 29 L. J. N. 483.
" Wilful is a word of familiar use in ever;' branch of law, and
although in some branches of law it may have a special meaning, it gen-
erally, as used in courts of law, implies nothing blameable, but merely
that the person of whose action or default the expression is used is a free
agent, and that what has been done arises from the spontaneous action
of his will. It amounts to nothing more than this, that he knows what
he is doing and intends to do what he is doing, and is a free agent : "
per Bowen, L.J., Re Young and Harston, 31 Ch. D. 174; and it has been
said that the legal meaning of " wilfully " is purposely : argument of
counsel in Hutchinson v. M. B, & R. Ry. Co. 15 M. & W, 314, citing R.
V. Price, 11 A. & E. 727.
Absconded. — " Absconded " means departed to evade legal process.
It here means, we submit, having absconded from the Province of Ontario,
not necessarily from the Dominion of Canada.
lOI. (1) Every summons or process issued out of a
Division Court against a corporation, [firm or individual,]
not having its cliief place of business within the Province,
and all subsequent papers and proceedings in the action, or
proceeding in which the summons or process has been issued,
may be served on the agent of the corporation, [firm or indi-
vidual] whose office or place of business as such agent is
either within the division in '.vhich the summons or pro-
cess issued, or is nearest thereto.
(2) For the purposes of this section the word " agent "
shall be held to include,
""^m
CHIEF PLACE OF BUSINESS.
137
(d) In the case of a railway company a station- Section
master having charge of a station belonging to the
railway company;
(h) In the case of a telegraph company, a person
having charge of a telegraph office belonging to the
telegraph company, and
(c) In the case of an express company, a person
having charge of an express office belonging to the
■express company. 48 V. c. 14, s. 11, amended by
52 V. c. 12, s. 11.
Corporation, Firm or Individual.— This section was first introduced
in 1885, its provisions originally extending only to co?'/}ora(io/is not having
their chief place of business in the Province. Prior to that there was no
provision by which, in ordinary actions against such corporations or
persons residing out of, but carrying on business within, the Province,
service of process could be effected : Re Ahrena v. McGilligat, 23 C. P. 171
Westover v. Turner, 26 C. P. 510 ; In re Guy v. G. T. R. Co., 10 P. R. 372
Berkley V. Thompson, 10 App. Gas. 45 ; Ont. Glass Co. v. Swartz, 9 P. R. 252
R. V. Lightfoot, () E. & B. 822; although by sections 2, 3 and 4 of the
Division Courts Amendment Act, of 1884, provision was made for the ser-
vice of garnishment proceedings agauist such corporations. By 52 Vic.
•c. 12, s. 11, (1889), the provisions of this section was made to include " a
firm or individual " having its (sic) chief place of business without the
Province.
Chief place of business. — There is not much to be found concerning
the legah meaning of the phrase " chief place of business." Nothing
exactly analogous to it is to be found in any other part of the Act, but it
is unlikely that any difficulty can arise as to the meaning of the term
when applied to corporations. It has been held that " the home of a
■company must be taken to be that place which is occupied as such,
where their profits come home to them, whence orders en^anate, and
"where the chief officers of the company are to be found ; " per Wilde, B.,
in Adams v. G. W. Ry. Co., fi H. & N. 404, at p. 409 ; and it is submitted
that this is also a good general definition of the expression " chief place
•of business," as applied to a company. See also notes to section 81.
As applied to " a firm or individual," the same definition would, it is
submitted, be applicable, and that " the chief place of business " of " a
•corporation, firm or individual " is that place where the principal opera-
tions of the business are carried on, where the profits come home to
iihem, and where the chief offices of the company, or the members of the
firm or the individual himself who controls the business are to be found.
JSee notes to sec. 81.
The section appears to extend only to cases where corporations, firms
or individuals carry on business outsido the jurisdiction, and have a
branch establishment of that busmess within the jurisdiction. In this
respect, the Division Courts have larger powers than the High Court :
Russell V. Cambefort, 23 Q. B. D. 526 ; Dobson v. Festi, (18S1) 2 Q.B. 92 ;
Heineman v. Hale, (1891), 2 Q. B. 83. A limited agency for taking orders
for transmission, is not a carrying on of business at the aeent's office :
<}rant v. Anderson, (1892), 1 Q. B. 108.
i
138
PROCESS EXECUTED AT A DISTANCE.
BMtiona
101-103
lis
i
i ;ll
Postages.
How pro-
cess, etc.,
may be
executed
at a dis-
tance.
May be served on the agent. — Except in the cases enumerated im
the sub-sections, it is submitted that " agent," would mean the person
' managing the branch establishment.
Office OF place of business. — The office or place of business must be-
that which he occupies as such agent, i.e., the branch establishment.
Nearest thereto.— <S>ee notes to section 82.
Sub-section 2. — The definition which the statute here gives of the
word " agent " is not intended to define the only class of agents that>
may be served.
A female, married or single, a minor or an alien, could be an agent
under this section : »ee Watkins v. Vince, 2 Stark., 368. See section 185,
sub-section 2, and notes thereto for a further discussion of this question..
As to service, see section 99 and notes.
103. The postages of papers requited to be served out
of the Division, and sent by mail for service, shall be costs
in the cause. R. S. O. 1877,'c. 47, s. 73.
The costs of all proceedings, "which form part of the regular pro-
ceedings in the cause," are generally understood as "costs in the cause;"'
and the party entitled to costs receives them fro m the opposite party t
Cameron v. Ciimpboll, 1 P. R. 173, per Burns, J.; see also Pugh v. Kerr,.
6 M. & W. 17 ; Copeland v. Blenheim, 11 P. R. 64.
103. Where there is no bailiff of the court in which
the action is brought, or when the bailiff has been
suspended by order of the Judge, or where any summons,,
execution, subpcBna, process or other document, is required
to be served or executed elsewhere than in the division in
which the action is brought, it may, in the election of the-
party, be directed to be served and executed by the bailiff
of the division in or near to which it is required to be:
executed, or by such other bailiff or person as the Judge, or
clerk issuing the same, orders, and may, for that purpose,
be transmitted by post, or otherwise, direct to such bailiff
or person, without being sent to or through the clerk..
R. S. O. 1877, c. 47, s. 74 ; 49 V. c. 15, s. 8.
Issuing the same orders. — At first sight it would appear that the papers-
mentioned in this section might be served or executed under its provisions
in any county ; but by Rule 34 a writ of execution cannot be issued under-
this clause to the bailiff of any other Division Court which is not in the
same county. The proceedings in the latter case would be by transcript-
under section 217.
The bailiff is not, in the absence of order by the Judge or clerk, bound
to serve or execute the documents unless they are to be executed in or
near to his division : Davy v. Johnson, 31 U. C. R. 153.
It will be observed that the bailiff, who acts under the provisions of
this section, together with his sureties, is as responsible for his acts as it'
the proceeding was in his own court. See section 104.
I"»,l, ij
le cause;
CLERKS TO PREPARE AFFIDAVITS. 13^
If an execution i& to be executed by any other person than the bailiff R^oUonv
of the division out of which it issues, the safer practice would be to have J.09-109
the Judge's or clerk's order endorsed on the writ.
1 04. In cases mentioned in the last preceding section ^^j}|^^ ^^^
it shall be the duty of the bailiff to serve and execute all gyretles °^
summonses, executions, subpoenas, process and other docu-
ments, and make return thereof with reasonable diligence,
and to pay over, on demand, all moneys by him levied or
received thereon; and for neglect or default therein, in
addition to any other remedy against the bailiff", he and his
sureties shall be liable, on their covenant to the parties
aggrieved, as if the summonses, executions, subpoenas, pro-
cess and documents had issued from or related to some
action in the court of which he is bailiff. K S. O. 1877,
c. 47, s. 75.
Return. — The return must be made to the clerk who issued the pro-
cess : Rule 34.
Diligence.— No rule can be laid down in this respect. What ia
*' reasonable diligence " must depend on the circumstances in each case :
Stroud, 230, 653 ; see also note to section 100, as to " Reasonable
efforts."
On demand. — A demand must be made for moneys collected : see
Gibbs V. Southam, 5 B. <& Ad. 911. See note to section 35, title,
" Scope of the Covenant."
Othep documents. — As to service of summonses, subpoenas, process
and other documents, see notes to section 99.
IO»l. The clerk shall prepare affidavits of service of all <^'«»'f to
■I *• prepare
summonses issued out of his court, or sent to him for ser-^^'^^'^^^'^j^
vice stating how the same were served, the day of service, ®'°-
and the distance the bailiff necessarily travelled to effect
service, and the affidavits shall be annexed to or indoraed
on the summonses respectively ; but the Judge may require
the bailiff to be sworn in his presence, and to answer such
questions as may be put to him touching any service or
mileage. R. S. O. 1877, c. 47, s. 76.
Affidavits of service of all summonses.— The duty here imposed on
the clerk is imperative. For the necessary formalities of all affidavits,
see Rule 133.
We need scarcely remark upon the necessity for the clerk's observing;
care in the preparation of all affidavits : see Jacomb v. Henry, 13 C. P.
877. If the affidavit of service of any process should be defective, it could
be amended and re-sworn. It would not invalidate the service if
properly made. The act itself being properly done, the proof of it,
I
"ST
3
140
SUING PARTNERS.
ifljlji
Sections though defective, would not invalidate the service. A fresh affidavit
lOS-106 could be made : see Fee v. Mcllhargey, 9 P. R. 329, where it was held
that the Division Court Rules are not imperative.
Distance necessarily travelled. — If less than a mile, mileage is not
chargeable, for the tariff only provides for '* every mile" necessarily
travelled. If the distance travelled is greater than any given number of
miles, and not as much as the next succeeding number, the part of a mile
travelled is not to be reckoned. Mileage should be calculated from the
point at which the officer received the paper. If two or more defendants,
the mode of determining the distance travelled is by estimating it first to
the place where the first defendant is served, then from there to the next,
and so on ; and the aggregate distance so travelled is the correct measure.
It would be improper to charge mileage to each defendant's place : Cor-
poration of Haldimand v. Martin, 19 U. C. R. 178.
nil
One of
several
partners
may be
sued in
-certain
«ases.
111!
Partners.
106. In case of a debt or demand against two or more
persons, partners in trade or otherwise jointly liable, but
residinj^ in different divisions, or one or more of whom
cannot be found, one or more of such persons may be served
with process, and judgment may be obtained and execution
issued against the person or persons served, notwithstand-
ing others jointly liable have not been served or sued,
reserving always to the person or persons against whom
execution issues his or their rijxht to demand contribution
from any other person jointly liable with him. R. S. O.
1877, c. 47, s. 77.
Debt or demand. — This section is confined in its operation to Ak'^
and demands. It would not extend to claims for tort. As betweiii: .
feasers there is no right of contribution: Corporation of Vespra v. Co.! ,
26 C. P. 182 ; Willcocks v. Howell, 8 O. R. 576.
Set-off. — Defendant may avail himself of any set-off he would h<A
entitled to if all the persons liable were made defendants.
Jointly liable. — A judgment, under this section, against one or more
several joint debtors, even without satisfaction, is a bar to any action
against the others : King v. Hoare, 13 M. & W. 494 ; but not where the
debt is joint and several : lb. ; Vestry of Bermondsey v. Ramsey, L. R.
6 C. P. p. 251, per Montague Smith, J. See also 36 Alb. L. J. 245, 265.
But a partnership debt is not joint and several, but merely joint : Ken-
dall V. Hamilton, 4 App. Cas. 504, 516.
Where one or more only of several joint-debtors is sued in a Division
Court, he can set up the non-joinder of the other co-debtors, except
where the defendants reside in different divisions, or where one or more
of them cannot be found.
If judgment be taken against one or more joint-debtors, it cannot be
set aside even with the consent of the judgment debtor so as to evade the
rule making it a bar against the others; Hammond v. Schofield, (1891),
1 Q. B. 453 ; Toronto Dental Manufactory Co. v. McLaren, 14 P. R. 39.
1 affidavit
was held
lage is not
lecessarily
number of
t of a mile
. from the
efendants,
g it first to
,o the next,
:t measure,
ace : Cor-
or more
ible, but
Df whom
)e served
ixeeution
ithstand-
or sued,
3t whom
;ribution
R. S. O.
n to d«:'--
(tweoo i '
a V. Co'.> ,
would bo
ne or more
my action
where the
ksey, L. R.
. 245, 265.
>int : Ken-
a Division
ors, except
36 or more
I cannot be
) evade the
eld, (1891),
[ P. K. 89.
JUDGMENT AGAINST ONE PARTNER. 141
Contribution. — " Contribution " here means the performance by each Sections
of two or more persons, jointly liable, by contract or otherwise, of his 106-107
share of the liability : Wharton, 177. Where a note, however, was pay-
able in instalments it was held that one surety who paid an instalment
was entitled immediately to contribution from the others : Re Macdonald,
W. N. (1888) 130. It frequently arises between sureties. See notes to
section 35, title, " Scope of the Covenant."
A defendant or co-surety cannot compel an assignment to be made to
him of the judgment by the plaintiff, unless the whole of the debt has
been paid : In re McLean v. Jones, 2 L. J. N. S. 206; Ewart v. Latta,
4 Maq. H. L. C. 983 ; 8ee also Brown v. (iossage, 15 C. P. 20. The right
to an assignment can only be enforced by action : Phillips v. Dickson,
8 C. B. N. S. 391 ; but even without assignment, the rights of the creditor
are possessed by the party who pays him; Re McMyn, Lightbown v.
McMyn, 33 Ch. D. 575 ; but cannot be enforced in the name of the credi-
tor without an indemnity : Potts v. Leask, 36 IT. C. R. 476 ; and where
defendants are partners, and one of them pays the debt, he can only
enforce the judgment to the extent that anything may be found due to
him on the taking of accounts between them : London & Can. L. & A.
Co. v. Morphy, 14 A, K. 577 ; Housinger v. Love, 16 O. R. 170.
I07. Where judgment has been obtained against such ^^^^.'^^^fy
partner, and the Judge certifies that the demand proved was flrm^on^
strictly a partnership transaction, the bailiff, in order tOof'j'^age®
satisfy the judgment and costs and cliarges thereon, may
seize and sell the property of the firm, as well as that of
the defendants who have been served. R. S. O. 1877,
c. 57, s. 78.
This section authorizes the sale of the interest of a person against
whom judgment has not been recovered. It must, therefore, be con-
strued strictly. The Judge should certify the fact that the demand for
which he gives judgment has been proved to be " strictly a partnership
transaction of the firm of X. & Y." It would be safer also to have such a
certificate endorsed on the execution as a justification for the bailiff.
Every member of the partnership has apparent authority to do for the
firm whatever is necessary for the transaction of its business in the way
in which that business is ordinarily carried on by other people : Lindley
on Part. 124, 169. This section, however, requires more than apparent
authority. The transaction must be strictly one of the partnership.
Without the aid of this section, the bailiff could, on an execution
against one of two partners, seize the goods of both, but only sell the
debtor's undivided interest in them : Johnson v. Evans, 7 M. & G. 240 ;
Lee V. Rapelje, 2 U. C. R. 368; Helmore v. Smith, 35 Ch. D. 436 ; Har-
rison v. Harrison. 28 L. J. N. S. 216 ; but he could not take the goods out
of the other partner's possession : Burnell v. Hunt, 5 Jur. 650.
The section extends only to actions of debt or demand where partners
reside in " different divisions or one or more cannot be found :" see section
106, incorporated herein by the word " such ": see Eastern Counties Ry.
Co. V. Marriage, 6 H. & N. 931 ; Pearson v. Ruttan, 15 C. P. 89.
1
i
142
ADDING Defendants.
. .
13'is
1
1
i
1
I
;
':! ill
i ill
!i ,1
loe
Adding
defend
ants.
Service on
parties.
added.
Service on
partners.
Adding Parties.
108. The following provisions shall apply to and in
tespect of any action brought in a Division Court ;
1. The Judge may, at any time after action commenced,
upon the application of either party, and upon such terms
as may appear to him to be just, order that the name of
any party who ought to have been joined in the action as
a defendant [primary debtor or garnishee] shall be added
as a party defendant [primary debtor or garnishee] .
2. If it shall appear to the judge, either before or at the
trial of an action, that any party ought to be added as a
party defendant [primary debtor or garnishee] in order
that the Court may settle all rights and questions involved
in the action, the Judge may order such person to be added
accordingly.
3. Every person whose name is so added as a defendant
[primary debtor or garnishee] shall be served with a copy
of the writ of summons, the original summons being first
properly amended, and the proceedings against such added
defendant [primary debtor or garnishee], shall be deemed
to have been commenced from the date of the order making
him a party defendant [primary debtor or garnishee] ;
but if the application to add a defendant [primary
debtor garnishee] be made at the trial, the Judge may
make the order in a summary manner, and may dispense
with the service of a copy of the summons upoK such
defendant [primary debtor or garnishee], if such defendant
[primary debtor or garnishee] or his solicitor consent
thereto, upon such terms as to costs or an adjournment of
the trial, as to the Judge shall appear just,
4. Any two or more persons claiming, or being liable as
co-partners may sue, or be sued in the name of the respec-
tive firms, if any; where partners are sued in the name of
their firm, the summons may be served on one or more of
the partners and subject to the provisions in the next two
i
AMENDMENT OF SUMMONS.
sub-sections contained, such service shall be deemed good
service upon the firm ; but the affidavit of the service of
the summons shall state the name of the partner served.
Any party may, at any time before or after judgment,
apply to the Judge for an order directing a statement to
be furnished of the names of all the persons who are co-
partners in any firm which is a party to the action by the
firm named.
5. Where a judgment is against partnera in the name of
the firm, execution may issue in the manner following : —
(a) Against any goods of the partners.
(6) Against the goods of any person who has admitted
in the notice of dispute or defence filed that he is
or who has been adjudged a partner.
(c) Against any person who has been served as a partner
with a copy of the summons and who has failed
to appear.
6. Upon the trial of an action against a firm, if the
plaintifi" is desirous of obtaining a judgment against the
individual partners, other than the one served with a copy
of the summons, and in addition to his judgment against
the firm, he may procure the addition of the remaining
partners as defendants under sub-sections 1 and 3 of this
section, and thereafter proceed to judgment against them
in the action as in other cases. 49 V. c. 15, s. 21, amended
by 52 V. c. 12. s. 12.
Adding parties. — Before this provision was made there appeared to be
no power in cases in the Division Court to add a party defendant :
Barber v. Bingham, 20 L. J. N. S. 65 ; Building & Loan Assn. v. Heira-
rod, 19 L. J. N. S. 254. Now, if the Judge considers that it is necessary
for the purpose of settling all rights and questions involved in the action
that any person or persons should be added as defendant or defendants,
or as primary debtor or garnishee, it is bis imperative duty to make all
necessary amendments for that purpose. Where one joint contractor
is sued, be has, subject to the provisions of section 106, the right to have
his co-contractor joined as defendant : Kendall v. Hamiltoa, 4 App. Cas.
504 ; Pilley v. Robinson, 20 Q. B. D. 155 ; Robb v.Murray, 13 P. R. 397.
At any time after action commenced. — The summons should first
be properly amended if the application is made before the trial and such
application allowed. In such case the summons must be served ou the
added defendant, and be would have the same rights of defence and time
143
\''m
<ieo'lo&
i08
Execution
against
partners.
Adding
partners
as defend-
ants.
I
I
'i"
I
ii#^iii
il 5li
i! I i
144
Section
108
SUING IN FIRM NAME.
therefor that he would liavehad if the action had been commenced against,
him on tlie day the Judge's order adding liim as a defendant was made.
"Should there be no application made before the trial, but the order was
applied for at the trial, the Judge could make the order in a summary
maimer and dispense with service of the summons on the defendant bo
added, provided he or bis solicitor should consent thereto. The costs of
amendment and postponement of the trial are left in the discretion of the
Judge. A defendant could not properly be added on an ex parte applica-
tion : Tildesley v. Harper, 3 Ch. D. 277. An administrator or executor
of one of several defendants could be added : Ashley v. Taylor, 10 Ch. D.
7G8. Tlie object of the statute is that all rights and questions involved
in the action should be settled.
If the action as against the added defendant would be barred, at the
time of the amendment, by any Statute of Limitations, he may rely on
that defence.
Sub-Sec. 4. —The provisions of the Act allowing proceedings by or
against firms enable the name of the firm to be used only when they sue
or are sued.
It is improper, therefore, to use a firm name when co-partners are
proceeded against as garnishees : Walker v. Rooke, G Q. B. 1). (iill.
The provisions enabling the firm name to be used have caused much
difficulty both in England and in this province. In Wilson v. Roger,
Mcl.ay A Co., 10 P. R. 357, Osier, J.A., said: "With the system of
registration of co-pirtnerships whicii prevails with us I must say that I
fail to see the usefulness or convenience, in our practice, of these rules
which relate to suing co-partners in the firm name. The occasions
must be rare in which a plaintiff can have any difficulty in suing the
individual members of the firm."
Tlie provisions are, primarily, taken from the Scotch law : tee
Bullock V. Caird, L. R. 10 Q. B. 27(5.
Where a tirm'.^ name is used, it is only a convenient method for
denoting those persons who compose the firm at the time when that
name is used, and a plaintiff who sues partners in the name of their
firm, in truth, sues them individually just as much as if he had
set out all their names: per Lindley, L.J., Western National Bank v.
Perez, (18!(1), 1 Q B. 314; but unless he sues them all as partners, he is
not entitled to judgment against them individually: sub-sec. 5; Standard
Bank v. Frind, 14 P. R. 355. To take advantage of the provisions, it is
necessary that tiie co-partners should be sued in their firm names. To
sue "A. B. and C. D. trading as B. & D." would entitle the plaintiff to
judgment against A. B. and C D., but not against the firm as such;
and if there should be an undisclosed partner, he would be discharged :
Munster v. Cox. 10 App. Cas. 680. Where the firm is sued, judgment
must be against tlie firm : Jackson v. Litchfield. 8 Q. B. D. 474 ; Adam v.
Townend, 14 Q. B. D. 103 ; and no judgment by default can be signed
against the firm until the full time has elapsed for each partner served
to put in a defence : Alden v. Beckley, 25 Q. B. D. 543. If one partner
files a disputing notice, disputing his liability, judgment cannot be given
against the firm till after trial, though the other partners may have been
served and are in default : lb. Where the firm has been dissolved, the
firm name may, nevertheless, be used : Wilson v. Roger, McL ly & Co.,
10 P. R. 355, and if one partner has retired, and the same firm name ia
still used, it is a question of fact who was intended to be sued : Davis v.
Morris, 10 Q. B. D. 436 ; see Ex parte Young. Re Young, 19 Ch. D. 124.
The English rules have been held to be inapplicable to foreign firms :
Russell v. Cambefort, 23 Q. B. D. 526 ; Western National Bank v. Perez»
(1891), 1 \^. B. 304 ; Indigo Co. v. Ogiivy, (1891), 2 Ch. 31 ; Dobson v..
JUDGMENT AGAINST FIRM.
145
ed against
gvas made,
order was
summary
fendaut so
lie costs of
bion of the
te applica-
r executor
10 Ch. D.
18 involved
•red, at the
lay rely on
lings by or
jn they sue
Birtners are
. ()H1.
used much
a V. Roger,
1 system of
b say that I
these rules
e occasions
n suing the
li law : see
method for
when that
me of their
if he had
lal Bank y.
-tuers, he ia
5 ; Standard
irisions, it is
names. To
plaintiff to
:m as such;
discharged :
I, judgment
4 ; Adam v.
n be signed
•tner served
one partner
not be given
ly have been
issolved, the
jLiy & Co.,
irm name is
ed : Davis v.
Ch. D. 124.
reign firms:
ink v. Perezv
Dobson V.
Festi, (1891), 2 Q. B. 92 ; and even where one partner is resident in the
jurisdiction, the service upon him in not good service on the firm ;
Heinemann v. Hale, (1891), 2 Q. B. 83, nor, pe- Fry, L.J., even upon the '
partner served : nee p. 92. In the Division Cov.rt, by virtue of section
101, if the chief place of business of the firm ii. out of the Province, but
there is an agent with a place uf business " ati such " within it, the firm
may be sued and service is good if made on such agent. Other foreign
firms could not, however, bia reached, and if one member of a foreign
firm be resident, anomalous as it may seem, it is submitted that his firm
could not be proceeded against under this section. It will be noticed
tliat a partner must be served. Service upon a manager would be use-
less : see Ex inirte Ide. lie Ide, 17 Q B. D. 755.
Judgment against a firm does not authorize execution against a part-
ner not served, unless he has admitted in the notice of dispute or defence
that he is " a partner or unless he has been adjudged a partner." An
adjudication may be obtained by adding such partner as a defen iant at
the trial, and serving him with the amended summons : nee sub-section 6.
Such adjudication cannot be obtained summarily; Standard Bank v.
Frind, 11 P. 11. 355 : see Tennant v. Manhard, 12 V. 11. (jl9, which must
be treated as overruled. It is submitted that if judgment is obtained by
default against the firm, a summons might be issued by the clerk calling
upon any partner, against wliom execution is desired, to appear at any
sittings of the court upon an application that he be adjudged a partner.
A judgment summons should not be issued to a partner against whom
execution cannot issue : Re Young, 19 Ch. D. 124. In England, how-
ever, the County (/ourt Rules of 1892 ; Order xxv, Rule 6, now provide
for the issue of such summons upon an affidavit that such party is a
member of the firm.
No person can be adjudged a partner, under this section, unless he be
in truth such. Mere iK^ldiug out will not be sufficient : Re Young v. Par-
ker, 12 P. R. Olf). Judgment against tlie firm destroys all liability of a
person who would otherwise bo liable as a nominal partner : Scarf v.
Jardinc, 7 A^ip. Cas. H45. A judgment creditor is not bound to use
against the members of the firm, the special remedies given by this section.
He may sue them upon the judgment: Clark v. Cullcn, 9 Q. B. D. 355.
A number of persons, unincorporated, doing business in a corporate
name, may be sued under this section : Escott v. Gray, 39 L. T. N. S. 121.
No power to sue in the firm name is given to a person who is
carrying on business under a partnership style : Mason v. Mogridge,
8 T. L. R. 805.
And under tlie Division Courts Act no power is given to sue a person
who carries on business in the name of a firm, there being no provision
similar to C. R. 318.
Judgment by Default where Specially Indorsed
Summons.
10!l. (I) In actions brought in a Division Court for tlie
recovery of any debt or money demand, where the particu-
lars of the plaintiffs claim, with reasonable certainty and
detail, are indorsed on or attached to the summons, and a
copy of the sumritons and particulars, with a notice in the
form prescribed by the General Kules or Orders relating to
D.C.A. — 10
Seotlona
108-109
In pro-
ceeding
by special
siimmons
flual judg-
lueut
entered by
the clerk,
when claim
not dis-
puted, etc.
c.
I
1'^
146
JUDOMENT HV DEFAULT.
Seotion
109
i ' >
Summons
particulars
and
affidavit to
be filed.
Judge may
set aside
judgiueut.
Division Courts from time to time in force, annexed to or
endorsed on such copy, hiis been duly served, then, unless
the defendant has left with the clerk, within ei<;ht days
after the day of service (where the service is recjuired to bo
ten days before the return), or within twelve days after the
day of service (where the service is reijuired to be fifteen
days or twenty da^s before the return) a notice to the
effect that he disputes the claim, or some part, and how
much thereof, final jud<^ment may bo entered by the clerk
on the return of such summons, or at any time within one
month thereafter for the amount claimed in such particu-
lars or so much thereof as has not been disputed, if the
plaintiff is content with judgment for such part; and exe-
cution may afterwards issue thereon at the instance of the
plaintiff.
(2) The final judgment so entered may be in the form
prescribed by the General Rules or Ordera relating to
Division Courts from time to time in force, but no such
judgment shall be so entered until the summons and par-
ticulars, with an affidavit of the due service of both, have
been filed.
(8) The Judge may set aside such judgment, and permit
the case to be tried, on sufficient grounds shewn, on such
terms as to costs and otherwise as he thinks just. R. S. 0.
1877, c. 47, s. 79.
Debt or money demand. — A "debt " has been definerl to be : " what-
ever one owes:" Hodman v. Munson, IH Barb. 197; also: "That for
which an action of debt will lie — a sum of money due bj' certain and
express agreement. In a less technical sense, any claim for money ; in
a more enlartjed sense, any kind of a juat demand : " New Haven Saw
Mill Co. V. Fowler, 28 Con. 108 ; and a " dera'\nd " has been dettned as :
" Any account upon which money or other thing is, or is claimed to be,
due:" per Dixon, C..J., in Stringham v. Supervisors, 24 Wis. GOO. The
words used here, " any d:ibt or money demand," have not, so far as the
writer is aware, been defined in any reported case. But the follow-
ing may, in the absence of a better, be an appropriate definition. Any
claim, legal or equitable, on contract express or implied, on which a
certain sum of money, not being unliquidated damages, is due and pay-
able.
An action for a debt not due would not come within these provisions.
Nor an action on a bond with a penalty for doing anyjthing but payment of
money: Griswold v. B. B. & G. By. Co., 3 U. C. L. J. ll."). Nor a claim
for unliquidated damages : Jonep v. Thompson, 1 E. B. (&E. 63 ; Dresser v>.
WHAT CASES ARE WITHIN THE ACT.
147
>(\ to or
I, unless
ht (laya
ed to bo
ifter the
e fifteen
3 to the
and how
bhe clerk
ithin one
1 particu-
jcl, if the
and exe-
ice of the
the form
jlating to
t no such
i and par-
joth, have
md permit
on such
R. S. 0.
be : '• what-
"That for
certain and
money ; in
Haven Saw
n defined as :
aimed to be,
18. GOO. The
80 far as the
the foUow-
nition. Any
on which a
iae and pay-
jae provisiona.
ut payment of
Nor a claim
63; Dresser v^
i
Johns, 6 0. B. N. 8. 429 ; Bank of Toronto v. Burton, 4 P. R. fift ; Boyd 8«otloa
V. Haynes, 6 P. U. 15 : nor an unsettled balance between partners : 109
Campbell v. Peden, 8 U. C. L. J. 08; nor a claim partly for liquidited
and partly for unliquidated damages : Honera v. Hunt, 10 Ex. 474 ; West-
lake V. Abbott, 4 U. C. L. J. 4(5 ; nor an action for not returning goods
let to hire: CoUis v. Groom, 8 M. A G. 851, per Tindal, C).; nor an
action on a covenant in a lease for unaHcertained damages : Gowanlock
V. Mans, 9 I'. II. 'HO; nor money held by an executor on sale of property
of his testator : Houles v. Soulos, 35 U. C. 11. 834 ; nor an action for
breach of covenant for title : Kavanagh v. Corp. of Kingston, 39 U. C. U.
415; nor an action for arrears of alimony during the pendency of the
suit : Bailey v. Bailey, 18 Q. B. D. 865.
The following causes of action, it is submitted, would come within the
provisions of the section : any sum of money cei-t;i;n pay.tble under any
covenant, money bond, or parol agreement ; any cause of action which,
in the higher courts, would formerly haye been declared for as money
Payable for goods sold and delivered ; goods bargained and sold ; work
one ; money lent ; money paid ; money had and received ; interest
upon money ; accounts stated ; lands sold and conveyed ; use and occu-
pation ; rent ; money payable on bills of exchange and promissory notes ;
on an award ; the price of shares or stocks sold ; freight ; hire of goods ;
on a guarantee fur the payment of a sum ceiuain; carriage of g )od8 ;
board and lodging; agistment of cattle or horses, etc.; premiums of
insurance or assessments made by Mutual Inri Co.'s. ; medical or other
attendance ; on a penal statute when jurisdiction not excluded ; Brash
qui tarn v. Taggart, 16 ('. P. 415; on an interim insurance receipt : Kelly
V. The Isolated Risk A F. F. Ins. Co., 26 C. P. 299 ; in cases where tiam-
agca liquidated ; good will of premises ; a judgment in the Division
Court; and that the latter case is not open to tlie objection raised
in McPherson v. Forrester , 11 U. C. R. 362, and Donnelly v. Stewart,.
25 U. C. R. 398, and could be sued under this section ; Hodaoll v.
Baxter, E. B. & E. 884 ; Dick v. Tolhausen, 4 H. & N. 695. See sec. 210.
A claim for an account stated with interest would be within the sec-
tion : Smart v. N. & D. R. Ry. Co., 12 C. P. 404 ; see Northern Railway
Co. v. Lister, 4 P. R. 120. If interest is claimed the particulars should
either state the amount or the date from wliich it ia claimed ; Bardell v.
Miller, 7 C. B. 753. The rate of interest need not be stated unless above
six per cent : see Allen v. Bussey, 4 D, & L. 430. Interest should only be
claimed when recoverable bv coiitract either express or implied : Ins^lis
v. Wellington Hotel Co., 29 G. P. 387 ; McKenzie v. Harris, 10 U. C L. J.
213 ; or upon a contract in writing where the money ia payable at a time
certain or where there has been a demand for payment with notice that
interest would be claimed : London, Chatham & Dover Rv. Co. v. South
Eastern Ry. Co., (1892), ICh. 120; R. S. O., c. 41, aa. 85, 86. A claim of
intereat in the aummona or particulars would be an insufficient demand :
Rhymney Ry. Co. v. Rhymney Iron Co., 25 Q. B. D. 146.
It was doubted in Green v. The Ham. Pro. Loan Co., 31 C. P. 574,
whether aurplua money in the hands of a mortgagee afteraale of land
was a purely money demand, but it haa been aince held that such money ^t.
was in the nature of an equitable cause of action for money had and
received : Legarie v. The Canada L. & B. Co. 11 P. R. 512. See alao
Reddick v. Tradera Bank, 22 0. R. 449. A claim by a partner against
the other membera of the firm for hia ahare of a sum of money received
by the other partners, is a purely money demand, thougii it may be
necessary to take the whole iiartnership account : Allen v. Fairiix Cheese
Co., 21 O. R. 598.
A judgment of another provincial court would be suable under the
words uaed here : Henderson v. Henderson, 6 Q. B. 288 ; or a judgment
I
148
SE'lTING ASIDE JUDGMENT.
Section of any Court of Record: Hutchinson v. Gillespie, 11 Ex. 75)8; or the
109 judgment of a foreign Court : Grai.t v. Easton, 13 Q. B. D. 302.
" Reasonable certainty and detail.— This contemplates that each
item of the claim should be given with the dates, so far as reasonably
can be done. Such particulars should be given as to disclose clearly to
the defendant exactly for what he is being sued, and so that if any
future action were brou^jht he would be able to shew that the matter in
question had already been adjudicated upon : Lucas v. Boss, 9 P. 11.251.
Duly served. — See notes to section 96 and 99.
Within eight days. — The day of service is not to be reckoned: see
notes to section 8(5 ; see also Kennedy v. Purcell, 14 S. C. 11. 453, as to
computation of time. The Judge would not have power to extend this
time. No power is given him by the statute to do so, and he would have
no authority otherwise : K. v. Murray, 27 U. C. R. 134 ; R. v. G. W. Ry.
Co., 32 U. C. K. 500. But he could allow a defendant in to defend under
section 112 {see notes to that section), or sub-section (3) of this section.
Left a notice. — All notijces under this Act must be in writing : see
section 93.
The return of such summons. — That is when the time required to
elapse under sections 96 and 97 has expired, viz., ten days, when the
defendant resides within the county, and fifteen days when he does not.
Within one month. — This means within one calendar month : Inter-
pretaticjn Act, s. 8, s-s. 15. See notes to section 40 ; see also Rule 31.
Judgment for such part. — If the summons is issued for such a claim
as the law prescribes, and is duly served, judgment may be entered by
the Clerk on tlie summons and particulars of claim upon an affidavit of
due service thereof having been filed with him. 'I'he judgment may
either be for tho full amount, if not disputed, or, if a part only is not
disimted, tlien, if the plaintiff so wishes it, for such part. We think a
final judgment for a part would be a bar to a subsequent action for the
balance of the claim : Winger v. Sibbald, 2 A. R. 010 ; see Rules 21-23
inclusive.
A plaintiff may take judgment against one of several defendants
served : Rule 22, or such, if several, as have been served : Rule 23. But
he cannot thnn proceed against the others : Rules 24, 27, 28.
In 1 !gai'd to j udgment against a defendant or defendants where there
are several other defendants, see Rules 18-34.
Execution may issue on judgment under this section forthwith :
Rule 149.
Affidavits of the due service of both. — See not.^s to section 80 and
section 105, also Rule 133 ; For this affidavit see i'orm No. 107. If
judgment should be signed on an insufficient affidavit it might be set
aside for irregularity: Levy v. Wilson, 9 L. J. N. S. 191; but see Potter
V. IMckle, 2 P. R. 391 ; and the clerk might possibly be liable as i tres-
passer : Carey v. Lawless, 13 U. C. R. 285 ; Roissier v. Westbrook, 24
C. P. 91 ; Codrington v. Lloyd, 8 A. & E. 449.
• A judgment can be signed on a holiday: Bennett v. Potter, 2 C. & J.
623 ; but not on a non-judicial day : Harrison v. Smith, 9 B. <& C. 243.
On sufficient grounds shewn. — The authorities shew that a mere
general affidavit of merits would not meet tho requirements of this
section : Whiley v. Whiley, 4 C. B. N. S. 653 ; Anderton v. Johnston,
8 U. C. L. J. 46; McDonald v. Burton, 2 L. J. N. S. 190; Wooster Coal
Co. V. Nelson, 4 P. R. 343; See Hopton v. Robertson, W. N. (1884) 77;
Farden v. Richter, 23 Q. B. D. 124 ; and that, properly, as full an affida-
vit is necessary as would be required to defeat a motion for immediate
judgment under section 111 : Dobie v. Lemon, 12 P. R. 64.
'^W^
TERMS MAY BE IMPOSED.
149
see
An irregular judgment can be set aside by a defendant without Section
shewing merits: Bouchier v. Patton, 3 U. C. L. J. 48. 109
Defendant should also account for his not putting it. a notice in time :
per Cotton, L.J., Atwood v. Chichester, 3 Q, B. D. 725 ; and especially if
a trial has been lost : 4 U. C. L. J. 69.
But the Judge will let the case go to a trial if the merits are in
dispute, as shown by the affidavits : Wilson v. Mun. Council of Port
Hope, 10 U. C. K. 405 ; Wooster Coal Co. v. Nelson, 4 P. R. 343 ; Key-
nolds V. Gallihar Gold Mining Co., 8 C. L. T. 17.
It is suggested that a proper form of affidavit would be, in the case
of the defendant making the affidavit thus : " I am advised and verily
believe that I have a good defence to this action upon the merits ; " and
in the case of his solicitor or agent : " The defendant has, as I am
informed (or instructed) and verily believe, a good defence to this action
upon thd merits : " and in both cases shewing the facts or some fact,
constituting such good defence. " He need not set out the whole defence
with minute particularity : " per Cockburn, C. J., 4 C. B. N. S. at p. 659.
The affidavit must apply the defence to the particular action, by
stating that the defendant has a good defence "herein," or in "this
cause,' or "in this action," on the merits: Tate v. Bodfield, 3 Dowl.
218; Lane v. Isaacs, 3 Dowl. 652 ; McGill v. McLean, 1 Cham. E. 6.
It should be made by the defendant, his solicitor or agent, or some
person who has been concerned in the cause, in such a way as to make
him acquainted with the merits : Rowbotham v. Dupree, 5 Dowl. 557.
Ill setting aside a regular judgment the court considers the statute of
limitations a meritorious defence : Maddocks v. Holmes, 1 B. & P. 228 ;
Mclntyre v. Canada Co., 18 Gr. 367 ; Seaton v. Fen wick, 7 P. R. 146 ;
Dobie V. Lemon, 12 P. R. 64. And also infancy : Delafield v. Tanner,
1 Marsh, 391.
Nor would the court refuse to set aside a regular judgment though
bankruptcy was going to be pleaded : Evans v. Gill, 1 B. & P. 52.
In an action on a solicitor's bill, the non-delivery of a signed bill, is
not a defence on the merits : Beck v. Mordant, >2 Bing. N. C. 140, nor
is a set-off : Anderton v. Johnston, 8 U. C. L. J. 46.
A judgment should not be set aside to allow a defendant to set up
matters subsequent to it : Schofield v. Bull, 3 U. C. L. J. 204.
The trutn of the merits shewn by defendant's affidavit cannot be
inquired into: Blewitt v. Gordon, 1 Dowl. N. S. 815; but see 10 U. C. R.
405 ; and if contradicted by documents signed by defendant, he will be
required to bring money into court : Richardson v. Howell, 8 T. L. R. 445.
Where the summons in an action against a firm was served upon the
firm, and five days afterwards was served upon an alleged partner, and
judgment by default was signed against the firm ; subsequently to the
signing of the judgment, but within eight days after the service of the
writ upon him, an appearance was entered by the partner : Held, that ho
was entitled to have the judgment against the firm set aside : Alden v.
Beckley & Co., 25 Q. B. D. 543.
Terms as to costs op otherwise. — The plaintiff should be placed a*
nearly as possible in the same situation as though the action had pro-
ceeded in the usual way : Smith v. Blundell, 1 Chitty, 226.
The ierms commonly imposed have been the payment of the costs :
Bisted V. Lee. 1 Salk. 402; Westlake v. Abbott, 4 U. C. L. J. 46, pleading
without delay ; and sometimes bringing money into Court : see Watt v.
Burnett, 3 Q. B. D. 183 ; Wade v. Simeon, 13 M. & W. 647 ; Every v.
Wheeler, 3 U. C. L. J. 11. See McGregor v. Harris, 9 C. L. T. 504 ;
150
WHERE DEFENDANT DOES NOT APPEAR.
Sections
109-110
Judgment
b}' default
under B.
109, where
final judg-
ment not
entered.
I
Hi.
'm
Wright V. Mills, GO L. T. N. S. 887, but payment into court should not be
ordered, unless it would be justified on a motion made under section 1.11 :
Dobie V. Lemon, 12 P. R. 64.
bo long as a regular judgment remains it can be enforced : Tait v.
Harrison, 17 Gr. 458.
Where the plaintiff has obtained judgment irregularly the defendant
is entitled ex debito justitue to have such judgment set aside ; and the
court has only power to impose terms upon him as a condition of giving
him his costs: perFry and Lopes, L.J. J., reversing the decision of the
Q. B. D., Anlaby v. PrsBtorius, 20 Q. B. D. 764.
If defendant does not first comply with the terms of the order
imposed on him he cannot take adv outage of it.
An order setting aside proceedings must be served forthwith ; other-
wise the opposite party miy treat it as abandoned : Molson's Bank v.
Dillabaugh, 9 C. L. T. 488, 13 P. E. 312.
It is submitted that a judgment should only be set aside on notice or
summons to shew cause : R. v. Chester Lines Com. L. R. 8 Q. B. 344, and
cases there cited; but when the time has expired and no judgment
entered, and application is made under section 112, the order ought to be
ex parte.
Mere lapse of time is not necessarily a bar to an application to set
aside a judgment by default,and when no irreparable wrong will be done
a plaintiff, the judgment may be set aside unconditionally : Atwood v,
Chichester, 3 Q. B. D 722.
Within one month. — If the clerk does not enter judgment within one
month, an alias summons is necefisary: (Form 22) Rule 31, which must
be dated on the day it actually issues : Rule 14.
110. When due proof is male by affidavit or otherwise
of the service of a special summons issued under the pre-
ceding section of this Act, and of particulars of the plain-
tiff's claim or demand as required by the said section, and
final judgment lias not been entered under the provisions
thereof, the Judge may, if the defendant does not, in person
or by agent, appear in open court, pursuant to and as
required by the summons, give judgment against the
defendant by default, without requiring proof of the
plaintiffs claim or demand, and with the same consequences
and effect as if the plaintiff had proved his claim or demand
in open court. 48 V. c. 14, s. 3.
Due proof.— "Duly" means, "In due manner; regularly; legally;
in the proper way ; according to law : " Sec Gibson v. People, 5 Hun.
543; Anderson, 385. The expression "due proof" here used must mean
the sworn statement, in proper form, of such facts as in law shew that
proper service of the summons has been made. Where a person's pro-
perty may be affected by a proceeding taken in his absence, it is import-
ant that all necessary precedent facts should clearly appear.
Due proof of the service must be made by affidavit or otherwise. For
form of affidavit, see Form No. 107.
^^
PAllTICULARS OF CLAIM.
151
the order
The name of the court and style of causes should appear in the affida-
Tit of service : Rule 133 ; Allman v. Kensel, 3 P. R. 110 ; Swift v. Jones,
•6 U. C. L. J. 63 ; Hart v. Ruttan, 23 C. P. 61.3 ; In re Shai^e, 2 Ch. "
•Cham. 67 ; McDonald v. Cleland, 6 P. R. 28!); Scott v. Mitchell, 8 P. R.
518.
Bat the Judge may receive the affidavit notwithstanding these defects :
Rule 133.
If endorsed on the summons, the style of court and cause need not
be given : Form 107.
The affidavit need not contain anything more than the statute or
Rules require : Baldwin v. Benjamin, 16 U. C. R. 54.
It would be good though it should state that service was made on the
•day of a certain month " instant " without stating the year : R. v. Tomb
4 U. C. R. 177.
As to proof of identity of party served, see Young v. Leng, 2 West.
li. T. 148.
As to whom affidavits may be taken before, see section 143.
As to the requisites of affidavits generally, see notes to sections
86,, 143.
As to requisites of service, see notes to section 99.
It is submitted that the words " or otherwise " only mean that the
facts may be proved by oral testimony or other Icnal proof of the fact of
service : Caird v. Fitzell, 2 P. R. 262 ; Davis v. Pearce, L. R. 5 C. P. 435 ; and
■would not justify a judge in acting on anything less than that. As
remarked by Cotton, L.J., Shelford v. L. cfe E. C. Ry. Co., 4 Ex. D. at
p. 819: "The words 'or otherwise' mean by any other evidence to
which the court can look."
The formalities required on service of the summons are set forth in
section 99 and notes thereto. As to service on partners, see section 108,
sub-section 4.
The time of service is regulated by the 96th and 97th sections of
this Act.
Special summons. — The summons referred to is that for which pro-
vision is made under section 94. See notes to that section and also to
section 95. Proof is not only required of the service of the summons,
but of the particulars of the claim or demand as well.
As to what actions are the subject of special summons, «ee section 109
and the notes thereto. A special summons is to be issued in all proper
■cases, unless otherwise ordered by the plaintiff : Rule 79. The Judge may
■amend at any time a wrong form of summons : Rule 104.
Partioulaps of the plaintifTs claim. — See notes to sections 94, 95.
Frequently claims are entered as, " To balance of account rendered."
This is not a compliance with the statute or Mules of Court, and it is
submitted that a Judge should not give judgment under this section on
such particulars: Wilkes v. B. B. & G. Ry. Co., 2 U. C. L. J. 230;
Villeneuve v. Wair, 12 P. R. 605; see Smart v. N. & D. R. Ry. Co., 12
C. P. 404.
The rendering of an account, simply, in ordinary transactions, not
between merchant and merchant, and unreplied to, does not constitute
evidence of a complete admission of debt. In connection with other
•circumstances it may be some evidence, but not of itself sufficient. But
even then, the account rendered should be produced, or secondary evidence
thereof given.
Section
110
152
EFFECT OF JUDGMENT BY" DEFAULT.
I
,
1
}
1
i 1
i
1
j ■
ill
' . i
i
Section The Judge may. — Ordinarily the word "may," when applied to the?
110 duties of judicial officers, is construed as imperative— as giving a power
and not merely a discretion, which power must be exercised upon proof of
the facts calling for its exercise : Macdougall v. Paterson, 11 C B. 755 ;:
R. V. Bishop of Oxford, 4 Q. B. D. 525 ; Cameron v. Wait, 3 A. R. 194,
per Harrison C. J. ; Aitcheson v, Mann, 9 P. R. 473. Whether that rule
of statutory construction could be invoked here admits of doubt. There
might be good reason for a Judge refusing to give judgment in the
absence of the defendant or of any one on his behalf. A claim beyond
the jurisdiction of the court would, of course, furnish a case in point.
But tliere are others, of which the same may be said. Claims for extor-
tionate interest, or otherwise of doubtful character, should not be ths'
subject of judgment by default, if the Judge questioned their correct-
ness or had doubts of their honesty. We think in such cases he could,
refuse judgment by default and call for proof of the claim : see Parker
V. Brand, 7 T. L. R. 462.
It is submitted that the rule for a Judge to observe in acting under this;
section is not to incline to a laxity of practice in giving judgment by
default on the one hand, nor on the other hand arbitrarily to require
proof of the claim by the plaintiff, but to mete out justice by not unneces-
sarily inconveniencing a plaintiff by requiring proof, nor do injustice to-
the defendant by a too hasty disposition of the case.
If the defendant does not appear in open court. — The expression " in/
open court" is evidently intended to mean a visible appearance of the
defendant in court, personally or by an agent, and not the technical!
appearance, which a notice of dispute has been thought to imply.
The expression " in open court " as used to the English Debtors Act,.
1869, has been held to mean " what anyone would take to be a court, witb
the usual accompaniments of the jury box, the witness box, the Judge'a
seat, and seats for solicitors, counsel and others : " jm- Coleridge, C.J.,,
and does not include the private room of a County Court Judge, thouglv
often used by him for hearing causes: Kenyon v. Eastwood, 57 L. J.
Q. B. 455.
If a defendant gives notice disputing plaintiff's claim, and does not
appear, the plaintiff would be entitled to his costs, including the costs of
subpoena or summons to witnesses and service thereof, witness fee»
and his own expenses as a witness when taxable : Fox v. Toronto &
Nipissing Ry. Co., 7 P. R. 157, and other necessary and taxable costs,
even of a commission, if costs are awarded by the judgment : Howes v.
Barber, 18 Q. B. 588 ; Fox v. Toronto & Nipissing Ry. Co., stipra ; Browne-
V. Smith, 1 P. R. 347 ; Middleton v. Pollock, 4 Ch. D. 49.
From the nature of proceedings in cases of attachment againsir.
absconding debtors, and considering the right of other creditors to inter-
vene under Rule 36, it is submitted that this section would not apply to<
such cases : See Offay v. Ofifay, 26 U. C. R. 363.
Consequences and effect of the Judgment. — Whatever rights the^
plaintiff would have on a judgment recovered in a contested case, the-
same are assured to him on a judgment by default under this section.
As to effect generally of judgments in Division Courts and the sub-
sequent proceedings that may be taken thereon, see notes to section 7, anta;
p. 3, and also notes to sections 212 and 235.
For form of judgment, see Form 52.
MOTION FOR SPEEDY JUDGMENT.
15a
1 1 1. — (1) Where the defendant in an action within the Section
meaning of section 109 of this Act, has left with the clerk
a notice to the effect in the said section provided, the plain- judgment,
tiff in the action may, on an affidavit made by himself
or by any other person who can swear positively to the
debt or cause of action, verifying the cause of action, and
stating that in his belief there is no defence to the
action, serve the defendant with a notice of motion to shew
cause before the Judge of the Division Court in which the
action is brought, why the plaintiff should not be at liberty
to have final judgment entered in his favour by the clerk
for the amount of the debt or money demand sought to be
recovered in the action, together with interest, if any, and
costs. A copy of the affidavit shall accompany the notice
of motion. The Judge may thereupon, unless the defendant,
by affidavit or otherwise, satisfy the judge that he has a
good defence to the action on the merits, or disclose such
facts as may be deemed sufficient to entitle him to defend
the action, make an order empowering the clerk to sign
final judgment accordingly.
(2) The application by the plaintiff for leave to have
final judgment entered in his favour under the provisionsi
of this section, shall be made on notice returnable not less
than two clear days after service.
(3) The defendant may shew cause against the applica-
tion by offering to bring into court the amount sought to
be recovered in the action, or by affidavit. In the affidavit-
he shall state whether the defence he alleges goes to the
whole or to part only, and if so, to what part of the plain-
tiffs claim. And the Judge may, if he thinks fit, order the
defendant to attend and be examined upon oath, or to pro-
duce any books or documents, or copies of, or extracts,
therefrom.
(4) In case it appears that the defence set up by the
defendant applies only to a part of the plaintiffs claim, or
154
TO WHAT ACTIONS AI'PLICAHLE.
I^i
m 3 1
Section that any part of his claim is admitted to be due, the plain-
tiff sliall be entitled to have final judgment entered forth-
with for such part of his claim as the defence does not
apply to or as is admitted to be due, subject to such terms,
if any, as to suspending execution, or the payment of any
amount levied, or any part thereof, into court by the bailiff,
the taxation of costs, or otherwise, as the judge may think
fit ; and the defendant may be allowed to defend as to the
residue of the plaintiff's claim.
(5) If it appears to the Judge that any defendant has a
good defence, or ought to be permitted to defend, and that
any other defendant has not such defence, and ought not
to be permitted to defend, the former may be permitted to
defend, and the plaintiff shall be entitled to have final
judgment entered against the latter, and may issue execu-
tion upon the judgment without prejudice to his right to
proceed with his action against the former,
(6) Leave to defend may be given unconditionally, or
subject to such terms as to giving security or otherwise, as
the Judge may think fit.
(7) Nothing in this section contained shall apply to
any action in which the amount of the debt or claim
sought to be recovered does not exceed S40. 48 V. c. 14,
s. 4 (1-7).
Meaning of section 109. — This section is almost an exact copy of
Rule 739 (formerly Rule 80) of the Judicature Act, changes being made
only where they are rendered necessary by the difference in practice
of the High Court of Justice and the Division Courts. Wherever a
flumraons can properly issue under the 109th section of the Act, " for
the recovery of any debt or money demand," then proceedings can be
taken for speedy judgment under this section. But there are cases
which would come under Rule 739, to which this section could not apply
•and rice versa. The provisions of the two statutes are substantially the
same, however, and the cases decided under the Judicature Act will,
with very few exceptions, apply to the section under consideration. As
to what is a "debt or money demand" see notes to sections 70 and 109.
A garnishee proceeding would not be within this section : Cameron v.
Allen, 10 P. R. 192. Nor would a case where proceedings were taken
against the defendant as an absconding debtor, because other creditors
have the right to intervene : Rule 36 ; Offay v. Offay, 26 U. C. R. 363.
It is submitted that where there is a bona fide notice disputing, the
jnrisiiction of the court, the right to give judgment depends upon
vrhether the court has jurisdiction. If it has no jurisdiction, cadet
W:
PLAINTIFFS AFFIDAVIT.
155
,her\vise, as
KlUfentin. If t'..j jurisdiction is doubtful the Judge may exercise his dis-
cretion whether or not to send the case to trial, so that viva voce evidence
may be heard. There seems to be no necessity for a trial in court of such
a (ni'39tion. A trial in court is for the purpose of disposing of actions
witinn the jurisdiction and not primarily for the purpose of deciding
queations of jurisdiction. It is submitted, therefore, that on a motion
under this section, the Judge may dispose of the qusstion of jurisdiction,
and if he decides he has none, may, on the application of either party
transfer the case under section 87.
After notice of defence. — Proceedings under this section can only be
taken after the defendant has left with the clerk a notice disputmg the
plaintiffs claim as provided for in section 109.
In such action may. — The proceeding is optional with the plaintiff :
R. V. S. E. Ry. Co., 4 H. L. Cas. 471 ; and his making the application or
liis not doing so, cannot affect his rights on the merits in any way See
Gill V. VVoodfin, 25 Ch. D. 707 ; Gibbings v. Strong, 26 Ch. D. 66. But
it was held that if a plaintiff after appearance by the defendant, takes a
deliberate step to have an action tried by a jury, he cannot move for
judgment in this summary manner: Stewartstown Loan Co. v. Daly,
12 L. R. Ir. 418; Woodruff v. McLennan, 11 P. R. 22.
On affldavit. — The affidavit which the statute requires must be made:
R. V. Judge of the Marylebone County Court, 50 L. T. N. S. 97.
Though the defendant might by distinctly waiving its production or
the allegation of certain necessary facts, and agreeing to the plaintiff's
statement of facts give the Judge power|'to make the order : see notes to
section 87 as to consent ; see also Ex parte Butters. Re Harrison, 43
L. T. N. S. 2 ; In re Guy v. G. T. Ry. Co., 10 P. R. 372 ; and the consent
to adjudication could not be withdrawn: Harvey v. Croydon Union
Rural Sanitary Authority, 26 Ch. D, 249.
As to formal parts of all affidavits, see notes to sections 86 and 110.
The affidavit can be made by plaintiff himself, " or by any other per-
son " who can swear to the facts necessary to be shewn.
The affidavits should not only verify the cause of action but also pledge
the deponent's belief that there is no answer to the plaintiff's demand :
Kiely v. Massey, 6 L. R. Ir. 445.
A statement that I am " advised and believe defendant had no
■defence on the merits " to the action is sufficient : Manning v. Moriarty,
12 L. R. Ir. 372.
The right to obtain judgment in this summary way is an extraordin-
ary one, and all facts necessary to be shewn and the observance of all
requirements of the statute, are conditions precedent to the due making
of the order : R. v. Judge of Marylebone C. C, 50 L. T. N. S. 97 ; Lloyd's
Banking Co. v. Ogle, 1 Ex. D. 262 ; Runnacles v. Mesquita, 1 Q. B. D. 416.
A copy of tlie affldavit shall accompany the notice of motion.— See
Begg V. Cooper, 40 L. T. N. 8. 29. Although a notice of motion would be
irregular without a copy of the affidavit accompanying it, yet, the writer
thinks, on the views expressed by the Judges in the above case, it would
only be a ground for enlarging the application until the plaintiff could let
the defendant have a copy of the affidavit two clear days, pursuant to sub-
section 2. It also appears from the reasoning in that case, and applying
the general principles of practice, that if the affidavit should be defective,
the Judge could enlarge the application with a view of having the defect
remedied upon such terms as would be just. See also Rule 118.
The debt or cause of action must be positively sworn to ; there should
not be any doubt appearing on the affidavit in that respect. The cause
of action must be verified. What will satisfy the section in this respect
must depend on the circumstances of each case.
Section
111
i
.3^
156
SERVICE OF NOTICE OF MOTION.
mm
Section " The defendant is indebted to the plaintiff in the sum of $ as per-
111 particulars annexed to the summons herein," has been held to be suffi-
cient: Murphy v. Nolan, 18 L. R. Ir. 468.
For form of affidavit, see Schedule of Forms.
Serve defendant with notice of motion. — The service of notice of
motion on defendant personally would undoubtedly be sufficient: see
notes to section 99. But service, other than personal, can be effected.
In Ward v. Vance, 9 U. C. L. J. 214, Adam Wilson, J., says i i regard
to service of an attaching order and summons to pay over under
the garnishment clauses of the Common Law Procedure Act: "The
statute does not require in express terms" (as here) "that there shall
be personal service as our King's Bench Act of 1822 did of the Ca. Re.,
upon the defendant," and, "I am inclined to think that personal service
is not imperatively demanded unless m those cases where it is sought, —
that is, where it is the purpose and object, to charge the party with a
contempt for not appearing to, or for not performing some act required
by the writ, rule or order."
Sufficient service could be effected by serving defendant's wife at
the dwelling house of defendant: Hanns v. Johnston, 3 O. R. 100;
Trust & Loan Co. v. Jones, 8 P. R. 65; see, however. Hays v. Armstrong,
7 O. R. 621, or by leaving the notice of motion at the place of residence
of the defendant with some grown up person there dwelling : In re A
Solicitor, 14 Ch. D. 152 ; Carlisle v. Orde, 7 C. P. p. 459. See also Jones
dem. Griffiths v. Marsh, 4 T. R. 464 ; Murray v. G. W. Ry. Co., 6 P. R.
211; R. v. North Riding of Yorkshire Jus., 7 Q. B. 154, to the same-
effect.
The case of Hogg v. Brooks, 14 Q. B. D. 475, was decided on the
strict language of the case in question there, and does not impugn the
authority of the cases previously cited here.
The following would not be sufficient :— Service on a clerk of defend-
ant at the defendant's counting house : Rowland v. Yitzetelly, 6 M. & G..
723 ; Warwick v. Bacon, 7 M. & G. 961 ; nor by leaving the notice at the-
club house of the defendant: Davies v. Westmacott, 7 C. B. N. S. 829 ;
nor by leaving it with defendant's warehouseman at defendant's ware-
house, that being his place of business : Ibotson v. Phelps, 6 M. & W.
626 : nor service on a workman on defendant's promises : Hitchcock v.
Smith, 5 Dowl. 248 ; nor on a housekeeper at a place where several
persons are residing without shewing that she had authority to receive
papers for defendant : per Maule, J., Lewis v. Blurton, 7 C. B. 102 ; nor
leaving it with the laundress at defendant's office : Dodd v. Drummond,
1 Dowl. 381 ; Kent v. Jones. 3 Dowl, 210; Alanson v. Walker, 3 Dowl.
258 ; Brown v. Wildbore, 1 M. & G. 276; much less with the servant or
assistant of the laundress : Smith v. Spurr, 2 Dowl. 231 ; nor with the
landlord or landlady of the house where the defendant lodges : Salisbury
V. Sweetheart, 5 Dowl. 243 ; Biddulph v. Gray, 5 Dowl. 406 ; Gardner v.
Green, 3 Dowl. 343 ; nor upon a female servant at defendant's lodgings :
Price V. Thomas, 11 C. B. 543 ; nor by putting it under the door or into
the letter-box of defendant's oflBce : Strutton v. Hawkes, 3 Dowl. 25 ;,
Braham v. Sawyer, 1 D. & L. 466 ; Consumers' Gas Co. v. Kissock,
5 U. C. R. 542 ; Grand River Nav. Co. v. Wilkes, 8 U. C. R. 249 ;;
McCallum v. Pro. Ins. Co., 6 P. R. 101 ; nor by throwing it over the fence-
to defendant's son who refused to have anything to do with it : McGuin.
V. Benjamin, 1 Cham. R. 142.
Where service is made on a domestic servant at defendant's residence,
the affidavit of service should shew she is the defendant's servant : Alan-
son V. Walker, 3 Dowl. 258. And where it is made on some grown-up-
person at defendant's residence it should be shewn that such growa-up>
nil
WHERE AFFIDAVIT DEFECTIVE.
157
person was in some way connected with defenda nt, as a member of his
family, or otherwise, "that she was more than casually there:" j'^^
Draper, C.J., Carlisle v. Orde, 7 G. P. 459. If served on defendant's
wife, the aifidavit should shew it, and if on some other person the name
should properly be given.
Service on Good Friday or other holiday would be good : Clarke v
Fuller, 2 U. 0. R. 99 ; but not on Sunday : R. v. Leominster, 2 B. & S-
391.
It is very doubtful if service on one of several partners would be good
service of a notice of motion for judgment against the firm. The consoli-
dated rules of practice are not applicable : Clarke v. Macdonald. 4 O. R. 310 ;
Bank of Ottawa v. McLaughlin, 8 A. R. 543 ; Pryor v. City Offices Co.,
10 Q. B. D. 504 ; see notes to section 73. Section 108, it will be noticed,
says that service "o/ the summons^' on one partner shall be good
service on the firm.
For the same reason an agent within section 101 cannot be served
with notice of motion.
Judgment may be ordered under this section, against the separate
estate of a married woman, where the affidavit shews such facts as would,
upon a trial, entitle the plaintiff to such judgment : Durrant v. Ricketts,
8 Q. B. D. 177 ; Kinnear v. Blue, 10 P. R. 465 ; Quebec Bank v. Radford,
10 P. R. 619 ; Cameron v. Rutherford, 10 P. R. 620; Nelson v. Thomer,
11 A. R. 616 ; Canadian Bank of Commerce v. Woodcock, 13 P, R. 242;
but if the debt were contracted prior to Ist July, 1884, it is necessary to
prove that the married woman has the same separate estate at the time
of action, as she had at that time: See Pike v. Fitzgibbon, 17 Ch. D.
Turnbull v. Forman, 454; 15 Q. B. D. 234; Scott v. Wye, 11 P. R. 93,
unless, perhaps, she was, at the time of contracting the debt, carrying
on separate business ; Berry v. Zeiss, 32 C. P. 231, and see Robertson
V. Laiocque, 18 O. R. 469. Cameron v. Heighs, 14 P. II. 56, contains
a dictum that judgment against a married woman should not be given
upon summary application, but in tlie result a judgment was ordered
against separate estate, subject to a reference, and the dictum has not
been followed : Nesbitt v. Armstrong, 12 C. L. T. 43. And it is now
settled that a judgment against a married woman is personal and no
proprietary : Palton v. Harrison, (1892), 1 Q. B. 118.
As to debts of married women, see Index, title, Married Women.
An Indian is subject to summary proceedings under this section :
Bryce v. Salt, 11 P. R. 112.
The notice could be given by a solicitor or agent for the plaintiff, and
even if given without his authority, but in plaintiff's name, it might be
ratified by him: Ancona v. Marks, 7 H. & N. 686; Blake v. Walsh, 29
U. C. R. 541. 545; Vanderlip v. Smyth, 32 C. P. 60.
The Division Court Rule respecting applications in Division Courts
cannot apply to this case where specific statutory provision is made that
the motion must be made by notice of motion. No other form of appli-
cation than that which the statute prescribes would be proper.
Substitutional service of the notice of motion could not be ordered.
Where the affidavit is defective in form, and an application upon it
fails in consequence, a second application can be made on fresh materials :
Wagstaff V. Jacobowitz, W. N. (1884), 17 ; Sykes Brewery Co v. Chadwick,
7 T. L. R. 258; Payne v. Newberry, 13 P. R. 392 ; but, semble, not where
it is defective in substance, ib., see 13 M. & W. 560 («).
By appearing and arguing the question on the merits, without objec-
tion, the defendant would thereby waive any defect in the notice or any
objection to the sufficiency of the time of service, or even to any notice at
Section
111
r
m
158
SE'ITINO UP DEFENCE.
:«)
1^1'
lection all : Park Gate Iron Co. v. Coates, L. R. 5 C. P. 634; R. v. Stone, 1 Eaat^
111 649; It. V. Shaw, 12 L. T, N.S.470; R. v. 8mith,L. R. 2 G.C. 110 ; Blak*
V. Beech, 1 Ex D. B20; R. v. Hughes, 4 Q. B. D. 614; Ward v. Raw,
L. R. 15 Eq. 83; R. v. Crouch, iOy U. C. 11. 433; R. v. Widdop, L. R. 1
C. C. 3 ; R. V. Heffernan, 13 O. R. 616 ; R. v. Hall, 12 P. R. 142 ; Stoue-
man v. Lake, 40 U. C. R. 320.
The notice of motion and affidavit of bervices should, if poasble, be
filed with the Clerk before the return day : Re Rosier, Jones v. Bar-
tholomew, 49 L. T. N. 8. 442 ; Sear v. Webb, 49 L. T. N. 8. 94, and
forthwith transmitted to the Judge: Rule 86.
By Rule 20, if a defendant gives notice of sot-oif or other statutory
defence, or pays money into court, or pleads a tender, he shall be deemed
to have sufficiently given the Clerk notice disputing the plaintiff's claim
within the meaning of sec. 109.
For form of notice of motion, see Schedule of Forms.
On the merits. — See note to section 109, ante p. 148.
Make an order. — See notes to section 110.
For form of order, see Schedule of Forms.
Sub-section 2. Not less than two clear days.— This means two day^
at least, that is, excluding the day of service and the day when the motion i*
returnable before the Judge : see cases cited in notes to section 96 ante.
But in Division Courts Sunday must be reckoned, the Consolidated Rules
not being applicable, nor would service after two o'clock on Saturday after-
noon be reckoned as of the following Monday : Clarke v. Macdonald, 4
O. R. 310 ; Bank of Ottawa v. McLaughlin, 8 A. R.- 543 ; McLean v.
Pinkerton, 7 A. R. 490.
Service on a corporation must be made on the corporation itself,
through its proper officers. Casual knowledge acquired by one of its offi-
cers would not be good service : Societo Generate de Paris v. Tramwaya
Union Co., 14 Q. B. D. 424. See section 101.
Setting up defence.— The defendant may, by affidavit or otherwise,
i.e., by other admissible evidence, satisfy the Judge that he has a good
defence: United Founders v Fitzgeorge, 7 T. L. R. 620. One of the
method'j employed in the higher courts is by cross-examining the
deponents of the affidavits filed by the plaintiff. There is no discretion to
refuse such cross-examination: Kingsley v. Dunn, 13 P..R. 300. There
is no power in this court to grant a cross-examination, and the absence of
that means of making out a defence should be considered by the Judge on
hearing the application. For instance, judgment should not be ordered
in an action on a note to which the defendant swears he would have a
defence against the payee, and that he believes that the plaiutiflf is not a
honajlde holder for value, and gives facta supporting, or reasons for enter-
taining such belief : Bank of Minnesota v. Page, 14 A. R. 347. It is a^
valuable and important part of the new procedure that the means should
exist of coming by a short road to final judgment where there is no real
* defence to the action. But it is of at least equal importance that the
parties should not be shut out from their defence when they ought to be
admitted to defend : Per Lord Selborne, Wallingford v. Mutual Society,
5 App. Cas. 693.
The defendant must disclose a defence upon the merits. He should
state what his defence is, and should give reasons for thinking the defence
substantial: Ruiinacles v. Mesquita, 1 Q. B. D. 416; Dobie v. Lemon,
12 P. R. (54. If the defendant's affidavits show a good defence, the court
has no discretion and cannot order payment into court : Ray v. Barker,
4 Ex. D. 279. If, however, facts are raised which although not satisfying
the Judge that there is a good defence, the Judge may allow the defend-
ant, either with or without terms, to raise such question, and fight it if
T
DEFENDANTS AFFIDAVIT.
15»
)ne, 1 East,
110; Blak&
ird V. Raw,
dop, L. K. 1
14'2; Stoue-
possble, be'
lies V, Bar-
. 8. 94, and
Br statutory
U be deemed
ntiff'a claim
ians two day*
the motion i*
ction 96 ante.
(lidated Rules
iturday after-
Macdonald, 4
; ; McLean v.
)ration itself,
one of its offi-
Tramwaya
or otherwise,
le has a good
One of the
xamining the
discretion to
300. There
the absence of
f the Judge on
lot be ordered
would have a
liutiif is not a
sons for enter-
847. It is a^
1 means should
here is no real
ance that the
By ought to be
utual Society,
He should
ing the defence
bie V. Lemon,
ence, the court
Ray V. Barker,
1 not satisfying
)W the defend-
and light it if
;#
he pleases. But the affidavits must condescend to give particular.'^.
** Yuu must give such an extent of definite facts as to satisfy thb
Judge that there are facts which make it reasonable that you "
should be allowed to raise the defence: Per Lord Blackburn, 6
Appi Cas, 704: Davis v. Spence, 1 C. P. D. 721; Collins v. Hickok, 11
A. B. 620. If the dt-fendant does not make out a clear defence on the
merits, and the Judge, in the exercise of his discretion, orders payment
into court or security, his order will not be interfered with : Nelson v.
Thorner, 11 A. R. 616. If the defendant swears to credits which should
be given, it is improper to order him to give security for the full amount
and in default to shut him out altogether from the opportunity of reduc-
ing the claim : 5 App. Cas. 695. A surety is generally entitled to require
the plaintiff to prove his claim : Lloyd's Banking Co. v. Ogle, 1 Ex. 1).
262. Indorsers who deny notice of dishonour, may have the qnestion
tried : Ontario Bank v. Burke, 10 P. R. 561. An accommodation maker
is entitled to have the question of whether the plaintiff gave value tried :
Hughson V. Gordon, 10 P. R. 565; so, also, is the maker of a note alleging
facts which constitute fraud or illegality: Fuller v. Alexander, 47 L. T.
N. S. 443 ; Bank of Minnesota v. Page, 14 A. R. 347 ; Millard v. Baddeley,.
W. N. (1884), 96; Brooks v. Aylmer, 73 L. T. Jour. 80; or where he
alleges an agreement to renew, and a tender of renewals pursuant thereto r
Federal Bank v. Hope, 6 O. R. 209 ; Lowden v. Martin, 12 P. R. 496.
Where a defendant admitted part of the claim, but set up a counter-
claim for a larger amount, judgment was refused : Court v. Sheen >
7 T. L. R. 556 ; and a fortiori, where the defence is a set-off : Groom v.
Rathbone, 41 L. T. N. S. 591 ; Conmee v. C. P. Ry. Co., 11 P. R. 222,
unless the counter-claim or set-off be too vague or misty to justify delay-
ing the plaintiff : Bank of Ottawa v. Johnston, 9 C. L. T.251.
In short, where a defendant shews a defence on the merits, or facta
which upon development or cross-examination amount to a defence, or
where an arguable point of law is raised, the power to order judgment
should be used carefully and sparingly exercised, and never, unless it
can be shewn that the plaintiff may be seriously prejudiced by waiting
for the trial : Barber v. Russell, 9 P. R. 433. Where the facts are not
clear and free from doubt, judgment should not be ordered : Stephenson v.
Dallas, 13 P. R. 450 ; or, in other words, it must appear to a demonstra-
tion on the whole case that the defendant has no defence : Fell v. Wil-
liams, 3 C. L. T. 358 ; see, also Holmstead & Langton, 629.
The affidavit of the defendant need not be confined to facts withia
his knowledge. Where, however, his allegations are made upon infor-
mation and belief, the Judge would be right in introducing the principles,
of practice of the High Court, under section 30?, in requiring the source
of information and grounds of belief, to be shewn : Harrison v. Botten-
heim, 26 W. R. 362. Where there is, in the opinion of the Judge, some-
thing due, he may order judgment to be entered to stand as security
until the correct amount be ascertained ; but execution should not be-
issued or levied upon without leave : Wallingford v. Mutual Society, 5
App. Cas. 685 ; and where the action is upon a Solicitor's bill, the order
will refer the bill to taxation and order judgment for the amount taxed :
Smith v. Edwardes, 22 Q. B. D. 10. A money lender who had charged
an usurious discount, was, on moving for immediate judgment,
limited to five per cent : Parker v. Bland, 7 T. L. R. 462.
Affidavits in reply should not generally be allowed : Davis v. Spence>
1 C. P. D. 719 ; Girvan v. Grepe, 13 Ch. D. 174 ; and where the affidavits
in reply are of all those who know of the dealings between the plaintiff
and the defendant and negative the defendant's story, the defendant
should be ordered to pay the monev into Court : Dunnet v. Harris^
12 C. L. T. 194 ; 14 P. R. 437. It was held in Manitoba that anything which
BeoUon
111
5
I
160
KXAMIXATION AND IMIODIJCTIUN.
Ill
;
■
1 _
i
81'
i > •
ii
i
i
J
i
Section could have been pleaded by a defendant under the old atatutea of set-off, can
111 now be broii^lit forward in auHWor to an application for leave to 8if{n
jiid^^nient and will prevent an order beinj* made allowing judt;ment to be
Bi>»ned : Manocjiio v. Mason, 3 Man. L. 11. 008. An application to 8if?n
judgment a>iain8t one defendant was refused in the absence of evidence
an to the position of the action with reference to the others : BtewarL v.
Richard, 3 Man. L. R. (UO.
Defendant may bring money into Court.— A defendant ia not entitled
to defend upon bringinj^ tlie money into court, without an affidavit of
merits ; Crump v. Cavendish, 5 Ex. D. 211.
If the phvintit? succeeds in the action, he is entitled to the money paid
'r?to court : Bird v. Barstow, (1892), 1 Q. 13. 94. If the defendant succeeds,
he is entitled to have the money paid out to him, though notice of appeal
may be given : Yorkshire Banking Co. v. Beatson, 4 C. P. D. 213.
Defence as io part. — Judgment for part of the claim not disputed will
not be a bar to the recovery of the remainder.
Examined upon oatli. — The order for defendant's examinati'^n may
be granted eitlier on a formal application, before hearing the motion, or
to remove doubt from the mind of the Judge, after hearing the material
wliicii lie had before him : Cockerell v. Van Diemen's Land Co., 10 C.B.
aOl. Tiie order should not be made except during tliu pendency of the
application for judgment and after service of the notice of motion : Tra-
ders Bank v. Koan, 13 P. R. (50. Counsel or agents for both parties should
have an opportunity of being present and of taking part in such exami-
nation : Assessment Appeal, (1 L. J. N. S. 29") ; and if that opportunity
was not accorded, then tiie depositions sliould not bo received or acted
upon : Hteplienson v. Dallas, 13 P. R. 450.
It is submitted that the plaintiff is entitled to an order for the exami-
nation of defendant, and for production of documents : Morgan v. Thomas,
<» Q. B. D. (543 ; Metrop. Bd. of Works v. Steed, 8 Q. B. D. 445 ; Stroud,
537.
In case of disobedience by the defendant, he could be committed : See
section 73; Martin v. Bannister, 4 Q. B. D. 491; Richai'ds v. Cullerne,
7 Q. B. D. (523.
The statute makes no provision for the examination of a defendant
corporation ; or of any other person than the defendant. A person
making an affidavit on behalf of the defendant could not be cross-
examined.
Production of books or documents. — This provision as to production
is quite independent of that contained in the 137th. Rule, which was
evidently framed in the interests of defendants only. It is submitted
that tlie object in ordering production is merely to satisfy the mind of
the Judge whether the defendant has a probable defence or not. A
minute examination or inspection should not be allowed the oppostie
party, which in the opinion of the Judge might prejudice the defendant
at the trial. The plaintiff should not be allowed a full discovery of the
defendant's evidence in doubtful cases, when he cannot be compelled to
make discovery himself.
Costs. — No provision is made for the payment of the travelling or
other expenses of the defendant in attending to be examined. . But it is
submitted that the Judge may in the order impose pre-payment of con-
duct money as a condition of the defendant's attendance. See Form o£
Order.
It is submitted that a fair rule in regard to the costs of the applica-
tion and examination, etc., would be that if such examination and
production are followed by an order for immediate judgment, they should
LEANK TO DISPUTE CLAIM.
IGl
set-ofT, can
,ve to 8if{n
ment to be
on to sif^n
of evidence
BtewarL v.
not entitled
affidavit of
money paid
it Bucceeds,
Be of appeal
213.
isputed will
imtinn may
s motion, or
ihe material
:jo., inc.B.
ency of the
otioii : Tra-
trbies should
such exami-
opportunity
ed or acted
r the exami-
1 V. Thomas,
45 ; Stroud,
miitted: See
V. CuUerne,
a defendant
A person
)t be croas-
D production
which was
IS submitted
the mind of
or not. A
the oppostie
le defendant
overy of the
sompelled to
ravelling or
,d. . But it is
ment of con-
See Form of
the applica-
lination and
i, they should
be made costs in the cause, but if not, they shouhl be conts in tlic cause Sections
tj the dofeiidant in any event: »ec lioj)ublic of i'oru v. Wof^uolin, 111-112
L. U. 7 C. P. ;<;V2.
As tlio costs in any case must bo triHin^^, probably they will usually
bu made costs in the cause, as unless tlio defendant is successful,
he ouj^iit not to liave resisted tlie appMcation for judj^niont: Ward v.
Proctor, 7 T. L. H. 'iU.
Leave to defend as to part. -Wliere a defemlant admits part to be
due, judtinieiil niiiy Ix^ ordta'ed for that part. It cannot be miulo a cou-
ilition of tiic defence for the reniaindor, that the part admitted bo paid:
Dei'.nis v. Seymour, 1 Ex. 1). H().
'1 ,ie court may re(juirc that execution be nt)t issued e\(n for the pnrc
adtiiitteil ; or that llie MUioinit remain in court till the whole dispute be
decided, so tliiit conipli !(• justice may lie done (Jare should be o\i'rciseil
that (he defi^iuiaut will, in no event, bj compellid, aft( r paying' jiart, to
resori, lifter tlii' linul liearin;,,', to extcution nt^ainst ho plaintiff.
Leave to defend conditionally.-- Where the only quostiou was
whether recn;^uized at,'ents of the defendants had exeeedcil their authority
ni issuing' nioiu'vs for tlu; defendant's l)UsinlK^l, le ivo to defend was (granted
conditionally on ))ayment inti court: Jlon^ Konj^ and Shanghai Jiankm^;
'Jo. v. -Java Ayeney Co., H T. li. U. ">s ; xce Dunnett v. Harris, 11 P. 11.
437. An order ^{ivint; the defendant leave to defend upon payment into
curt within a certain time, need nut loser\ed: Ilopton v. Robertson,
W. N. (IH84), 77; I'anlen v. Kichter, 2:i Q. H. 1). 124.
Claim must be over $40. — The action must be one in which .iud^^-
nient by default could be si^'iied under section 100. The summons and
pai'ticnlars must be suftiirieut, therefore, under tiuvt section. An amcnd-
nieiit to the summons or particidars, after the service of the notice of
motion for judji^ment, so as to comjily with that section, will not ^ive
jurisdiction to order judgment : Gurney v. Small, (18!)1), 2 Q. B. 584.
il lii. 'ri»e Jud^e, at any time before jutl^nnent actually Lf^'i *°
entered, althotioh the tin)e for fjiviuo- the notice diHimtinii''^'"'", "■^
' o Oft I » any time
the plaintiff's claim has expired, nia}^ on svifRcient S^'ounds jj^'^^j^g^^
shown, and on such terms as he thinks just, grant leave to
the defendant to dispute the plaintiff's claim, in which
case the re(|uisite notice disputing the claim shall immedi-
ately be left witli the Clerk, and also sent to the plaintiff",
by prepaid letter through the post or otherwise. R. S. O.
1877, c. 47, s. 80.
Before judgment actually entered. —If the clerk is in the act of
euterint; "P judgment, it is not actually entered : Harris v. Andrews, 3
U. C.L.J. 31.
Has expired.— See notes to section 109.
Grounds shewn. — The words " on sufficient grounds shewn" do not
mean that the Judge has an arbitrary power in this respect of entertaining
this application. He must do so. It is imperative ; not simply discre-
tionary on his part to hear it: MacDougall v. Paterson, 11 C. B. 755;
notes to section 168.
On such termi. — See notes to section 109, Bub>3ection 3.
D.C.A.— li
23
J
Si
T
I
162
NOTICES BY CLERK.
Sections
^12-114
Withdraw
al of
defence.
Requisites
of notices.
Judf,'0 may
sunuuarily
dispose of
cause or
non-suit
plaintiff.
Immediately left with the clerk. — "Within such timeaa is reasonably
requisite," synonymous »vith "forthwith," as to which sef section 20;
Stroud, 365. It is the duty of the defendant to send the notice to the
plaintiff, not that of the clerk.
I5J5. A defendant who has filed a notice of defence in
any action may, hy notice in writing to the clerk, at least
six days before tiie sittings at which the same may l.)e tried,
withdraw such defenci , and consent that judgment be
entered against him for any amount, and the clei'k shall
immediately notify the plaintiff thereof by mail, and there-
upon tlie plaintift'sludi be entitled t<» liave judgment entered
by the clerk as by default for such amount, and the costs
necessarily incuri'tMl. 49 V. c. 15, s. 20.
Notice in writing. — All notices required by this Act must be iu writ-
ing : see section 93.
At least six days. — This means clear days. Notes to section 111, ante
158.
Immediately notify.— sv-t- notes p. IGl, and to section 20, p. 1() aiitf.
As by default.— See section 101> and notes.
The power of the clerk to enter judf^tnent by default under section
109 does not arise until the return day of the summons. Under this
section it would appear to arise so soon as the defence is withdrawn,
though the return day may not have arrived : see Turner v. Lucas, 1 O. R.
628 ; Heaman v. Scale, 29 Gr. 278.
For form of withdrawal under this section, nee Forms.
Xoflces hi/ Clerk.
113"- In any case in which the defi'ndant, prinuuy
debtor or garnishee has gi\en the clei-k notice that Jie
disputes the plaintiffs claim, or any other notice of which
the plaintiff should be informed before tlie trial, or in any
case in which it has become the duty of the clerk to give
notice to any party to a cause of any defence, admission,
judge's order, or other matter, of whicli he sliould be
notified l>efore the trial, such notice shall show the place
and time of the sittings ol' tin; court, at which the causes
is to be heard. 52 V. c. 12, s. 25.
Trial
114. In cases in which a trial is to be had, the defend-
ant shall, on the day named in the sunnnons, either in
person or by some person on his behalf, appear in the
TRIAL OF ACTIONS.
163
court; to answer, and, on answer being made, the Judge
shall, without further pleading or formal joinder of issue,
proceed, in a summary way, to try the cause and give
judgment : and in case satisfactory proof is not given to
the Judge entitling either party to judgment, he may non-
suit the plaintiff' ; and the plaintiff may, before verdict in
jury cases, and before judgment pronounced in other cases,
insist on being nonsuited. R. S. O. 1877, c. 47, s. 81.
On the day named. — See section 8 as to appointment of times and
places where and at which the courts are to be held.
As to manner in which the cases to be tried are to be set down for
hearing, see sections 115 and 106 and notes.
" It is not usual to strike out a cause when the parties do not appear
at the first call ; that is if the court has not been sittinj^ for half an hour,
or longer, after the hour appointed for the court ; they are commonly ' put
aside for the present,' or placed at the ' foot of the list ' ; but the practice
in different courts varies in this particular. It is always advisable that
plaintiff should be present at the opening of the court, or immediately
after, even though his case should stand low on the list, for all those
previously entered may be put below his, or be otherwise disposed of. Aa
to the defendant, it is essential that he should be present, for the case may
be called on in his absence and judgment by default pass against him.
Punctuality is necessary to dispatch ; and if parties suffer from their own
negligence, they have no right to complain. The plaintiff may appear
by attorney or by agont, if he finds it inconvenient to appear personally.
Any neighbour or member of the plaintiff's family may act as agent : but
an appearance by some one must be made in the plaintiff's behalf." 2
U. C. L. J. 61
On his behalf. — At one time it was held that no one but a barrister
or attorney could appear for another in Division Courts ; but the
statute now perniits " any person" to appear : section 120.
Judge shall try the Cause.— It is the duty of the Judge to try the
cause and give judgment. If satisfactory proof is not given entitling
either party to judgment, he may nonsuit. If the plaintiff does not
elect to be nonsuited, the Judge, if he has heard both sides, and is of
opinion that the defendant has proved his defence, should give judgment
for the defendant. When a case is being tried before a Judge without a
jury, he should hear the whole case, and not give judgment until all the
evidence has been heard. It is different when a case is being tried with
a jury. There, if the Judge is of opinion that there is no evidence to sub-
mit to them, he may withdraw the case from their consideration. If the
•hidge is wrong, the ca"p must go back to a jury for a new trial: Baker
v. G. T. Hy. Co., 11 A. K. 08; Pryor v. City Offices Co , 10 Q. B. D. o04.
" When a Judge tries a case without a jury, his position is very differen'o.
He has to decide the facts as well as the law: " Macdonald v. Worthing-
ton, 7 A. K. r)ti4. If he is wrong, a Court of Appeal, in appealable cases,
may reverse him upon the facts or upon the law ; but they would have
no right to reverse the verdittt of a jury, when there was proper evidence
to submit to them : Johnson v. Provincial Ins. Co., 27 C. P. 464 ; Dublin,
Wicklow ct Wexford Ily. Co. v. Slattery, ;-) App. Cas. 1155 ; Metrop. Ry.
Co. v. Wright, 11 App. Cas. 152; Webster v. Freideberg, 17 Q. B. D. 736:
Commissioner of Railways v. Brown, 13 App. Cas. 133; unless the evi-
dence so strouply preponderates in favour of one party as to lead to the
Section
114
y
i
%
t
164
ORDER OF TRIAL.
Sections
114-116
ii3.
Ordor^in
which i ^itv
actions tu
be tried.
conclusion that the jury in finding for the other party, have either
wilfully disrej^arded the evidence, or failed to understand and appreciate
it: Connecticut Mutual L. Iiia. Co. v. Moore, (5 App. Cas. 65(5.
Nonsuit the Plaintiff.— The Judj,'e may nonsuit the plaintiff even
against his will ; and lio also possesses the same power in jury cases :
Rule 122. But he cmnot nonsuit the plaintiff on counsel's opening
speech to the jury. He is bound to liear the evidence : Fletcher v. Lon-
don & N. W. Ry. Co., (I8i»2,,, 1 Q. B. 122.
In an action of contract, a plaintiff may bo nonsuited as to some or
one of several defendants tliou.Ljli judi^ment by default has bacii entered
against the others: Benedict v. Boulton, 4 U. C. R. '.)'.'> ; McNab v. Wag-
staff, 5 U. C. R. 588 ; and, if a joint contract, tlie nonsuit to those defend-
ing would enure to tlie benefit of those wlio did not defend: per Robin-
son, C.J., at page ',17 of 4 U. C. R; xee also Commercial Bunk v. Hughes,
a IT. C. R. ii(U ; s. c , 4 U. C. R. 1117 ; Revett v. Brown, 5 Bing, 7 ; Mc-
Nab V. Wagstatf, ,') U. C. U. ")8S. If a defendant moves for a nonsuit and
afterwards exaaiinos wiUios^es, the i)laintil'f is entitled to any benefit
which he can obtain from the defendant's evidence : Brock v. McLean,
Tay. R. ;5',»8 ; Allen v. Cary, 7 E. A B. 4(53. A plaintiff may be non-
suited on an interpleader issue: Brysoii v. Ciandinan, 7 U. C. R. 11)8.
There may be a nonsuit after payment of mon;>y into court : Gutteridge
V. Smith, 2 H. Bl. H74 ; or after a plea of tender : Anderson v. Shaw, H
Bing. 2',tO; Oakes v. Morgan, 8 L. J. N. S. 248. A plaintiff may take a
nonsuit at any tinij before the pronouncing of a verdict by a jury, but
not after it is rendered and before it is recorded : Van Allen v. Wigle, 7
C. P. 4.")9 ; Outhwaite v, Hudson, 7 Ex 880.
Beforejudgment pronounced.— A judgment may be said to bo " pro-
nounced " when tiie Judge publicly and openly declares the decision of a
case : Worcester, 1140.
Insist on being nonsuited. — With the object, if necessary, of suiny
•gain. It is submitted that if the Judge pronounces his decision on the
case, giving judgment for the defendant, a plaintiff cui'Mot insist on
taking a nonsuit even if the judgment so pronounced is not noted by the
Judge : Van Alien v Wigle, 7 C. P. -im.
Of course judgment of nonsuit entitles a defendant to liis costs unless
otherwise ordered : see section 207.
A Judge has uo power to go on and try a case in the absence of the
plaintiff : Jordon v. Jones, 44 J. P. 800. It is submitted that the proper
course would ba to order a nonsuit.
The effect of a nonsuit is, that the parties are left in the same position,
except as to costs, aa if the suit had never been commenced.
A nonsuit should not be granted on a motion for a new trial on a
ground which if raised at the trial could have been cured by amendment :
Clarke v. Barron, A. R. 30t).
115. The clerk .sliall place all actions in which thcHuui
sought to be recovered exceeds !ii>100 at the foot of the trial
list, and the other actions on the list and business of the
court shall be disposed of before entering upon the trial of
any of the first mentioned actions, unless the Judge shall,
for special reason or reasons, otherwise order : the Judge
shall, in such cases, when no agreement not to appeal has
been signed and tiled, take down the evidence in writing,
' i '-^i-'t
AGKEEMENT NOT TO APPEAL.
165
;osts unless
und sluill leave the (same with the clerk of the court but in Sections
115-116
the event of an application for a new trial it shall be for-
warded to the Judj^e by the clerk for the purposes of such
application. 43 V. c. H, s. 5.
At the foot of the trial list.— All suits for amounts exceedinf? tflOO,
whether commenced by attachment or not, must be placed at the foot of
the list, unless the Judj^e otherwise orders. The section leaves all
replevin suits, and those personal actions where the amount claimed
does not exceed K()0, to be placed on the list the same as before.
For special reason or reasons. — The chanf,'e should not be made
iniless the Judf;e, in the exercise of a judicial discretion, should deter-
mine, on the facts before him, tlutt a reason or reasons existed for not
disposiuf^ of the ordinary business of tlie court first. As to exercise of
judicial discretion, nee notes to sections 8 and 21. In every case the
"reason" for deviatin}^ from the general rule must be determined
accordintj to its own particular circumstances.
Take down the evidence in writing.— It is also imperative on the
Judge to take down the evidence iii writing where there is no agreement
not to appeal. It is suggested, in view of the fact that the Judge in
appeal may refuse to consider any question not raised before the Judge
below : Williams v. Evans, L. 11. 1!) Eq. 547, and notes to section 148 ;
that the Judge siiould take as full notes, not only of the evidence, but of
all points of law arising at the trial, or of questions respecting the rejec-
tion or reception of evidence, or of the decision upon any motion for
nonsuit, or otherwise, as fully as notes are usually taken of trials at
iiini prius.
As to the agreement not to appeal, see notes to next succeeding
section.
If the J adge omitted to take down the evidence in writing it would not
invalidate the trial of the cause : Hank of Montreal v. Statten, 1 C. L. T.
66; Kiillivan v. Francis, 18 A. H. 1-21.
It is doubtful if the duty to take down evidence applies to inter-
pleader proceetlings : III. ISut .sec SL'ction lof), sub-section 2, ;;(),s7.
It would he the province of the Appellate Court to dispense with the
Judge's notes : Morgan v. Da\ie8, 3 C P. D. 200.
Tlie judgment of the Division ('oiirt miglit be upheld on appeal on
otiier grounds than those on which it proceeded : Chapmun v Knight,
f") C. P. 1). ;{08. But costs would probably be refused: Page ». Austin,
7 .\. R. 1 ; Garrett v. Hobcrts, 10 A R 050.
IKp. No ai">i)eal shall lie to the Court of Appeal ifravties
... . . may agree
l)efore the court o])ens, or if without the intervention of "ot to
, . (iiipeal.
the Judge l)efoi'e the coinineuceuient of the trial, there
.shall be filed with the clerk, in any case, an agreement in
writing not to appeal, signed by both parties, or their
.solicitors or agents, and the Judge shall note in his minutes
whether such aoreement was so tiled or not, and the minutes
shall be conclusive evidence upon that point. 48 V. c. 8,
s. 6.
i
r
in
I
5
j
1
J
!
1; i
I ■
"i ,
J'
1 '
166 WHERE DEFENDANT DOES NOT APPEAR.
Sections No appeal. — The clauses regulating appeals under this Act will be
116-117 found in sections 148-153 and the general law bearing on the same in the
" notes to those sections.
Court opens. — The court is considered open when tiie bailiff has
made proclamation declaring the court open for the transaction of
business.
Before the commencement of the trial. — The evident intention is
to prevent the Judj^e in any way making any suggestion, or using per-
suasion against the right of appeal. He should be perfectly indifferent
as to either course and leave the parties free to choose which they deem
best. The " commencement of the trial " is a term of somewhat uncer-
tain meaning. The trial would certainly have commenced if the jury
had been sworn ; or in a case tried by the Judge if any evidence was
given whether oral or otliorwise. See R. v. Gibson, IG O. R. 704.
Agreement in writing. — The agreement must be " in icriting " and
duly signed and filed with the clerk. Should the parties, however, agree
not to appeal and the signed agreement be omitted or overlooked, it is
submitted that they would, if the Judge noted the consent, be bound by
it: In re Burrowes, 18 C. P. 49.3; Cornish v. Abington, 4 H. A N. 549;
R. V. Hughes, 4 Q. B. D. 614, and cases there cited ; Wallace v. Fraser,
2 S. C. R. at p. 532; Thomas v. Brown, 1 Q. B. D. 714, and cases there
cited ; Young v. Taylor, 25 U. C. R. 583.
As to form of agreement, ue Forms.
The agreement must be signed by the parties or their solicitor or
agent. Tlie agreement as given in the forms would not interfere with
the right of either party to apply for a new trial, or to take any other
proceeding which lie would be entitled to take in an ordinary case.
The noting by the Judge of the signing of the agreement is made
conclusive evidence of the filing of the agreement. No appeal could,
therefore, be entertained when such a note had been made by the Judge.
Applies to interpleader. — This section applies to interpleader pro-
ceedings : see section 155, sub-section 2.
Proceed- HT". If Oil the (lay naiiiod in the •suininoiis tlie defend-
does"not°* aiit does not appear, or sufficiently excuse his absence, or
appear. jf ]^g iieglects to answer, the Judge, on proof of due service
of the summons and copy of the plaintiff's account, claim
or demand, may proceed to the hearing- or trial of the cause
on the part of the plaintift' only, and the order, verdict or
judgment thereupon shall be final and absolute, and as
valid as if both parties had attended ; and, except in tort
or trespass, in case of the personal service of the summons
and of detailed particulars of the plainti.ft"s claim, the
Judge may, in his discretion, give judgment without further
proof. K S. O. 1877, c. 47, s. 82.
If he neglects to answer. — The defendant should make it a point
to be at the court not later than the hour fixed for opening the sittings,
for if proper service of the summons is effected, the Judge may proceed
in his absence.
ADJOURNMENT OF CAUSE.
167
Final and absolute. — The policy of the law is that there can be only
one trial of a cause, and that a verdict or judgment should not be dis-
turbed unless it clearly appears to be wrong : Hooper v. Christoe, 14 C. P.
121, per Eichards, C.J. ; Arpin v. Reg., 14 S. C. R. 736 ; Hall v. Kennedy,
8 A. R. 157.
If there was no provision for granting new trials in Division Courts,
no power would exist in such courts to do so : R. v. Doty, 13 U. C. R. 398 ;
G. N. Ry. Co. V. Mossop, 17 C. B. 138, ^jer Jervis, C.a.
The judgment is to be " final and absolute." Quare if a new trial
can be granted. See section 146 and notes.
In case of the personal service.— Judgment can only be entered by
default on " personal service " being made.
Should a summons for a claim less than $15 not be personally served,
a plaintiff would have to prove his claim to entitle him to judgment.
The plaintiff must also prove his claim in an action for " tort or tres-
pass," and in all actions in which " detailed particulars of the plaintiffs'
claim have not been served." It is said the Judge " may in his discrelion "
give judgment without further proof. The usual practice is to exercise
the discretion.
Seotlons
117-118
lis. In case the Judge thinks it conducive to the ends ^^'^fj'^^^'^y
of justice, he may adjourn the hearing of any cause in^|*ge"^ °'
order to permit either party to summon witnesses or to
pro(hice further proof, or to serve or give any notice neces-
sary to enable the party to enter more fully into his case
or defence, or for any other cause which the Judge thinks
reasonable, upon such conditions as to the payment of costs
and admission of evidence or other equitable terms, as to
him seems meet. K S. O. l.STT, c. 47, s. 83.
May adjourn. — The Judge has a wide discretion under this section and
Rules 140 and 141.. It should only be exercised when a refusal to adjourn
would work injustice, unless by consent of parties. If the power of
adjournment had not been conferred by statute, it is doubtful if it could
be exercised: R. v. Murray, 27 U. C. R. 134; R. v. G. W. Ry. Co., 32
U. C. R. 50(5.
It is submitted that less is required for postponing a trial in the
Division Court than at Ni^i I'rius. The parties cannot, in all cases,
anticipate, without pleadings or discovery, all the evidence that may be
required, and the section gives the Judge full power to adjourn for
further proof, or to enable the parties to serve such notices to admit or
produce, or other notices, as will cause all the facts to be fully brought
out. The object is that complete justice may be done : Rule 140. No
order is necessary to be served, unless by direction of the Judge : Rule 139.
A trial will not be postponed at Nisi Prius until after the trial of an
indictment for perjury, in a matter relating to the cause: Johnson v.
Wardlo, 3 Dowl 550. A trial was put off because a material witness was
prrventod from attending bv fraud of tne opposite party : Turquand v.
Dawson, 1 C. M. & R. 709.
It is the practice to accede to an application to postpone the trial of
a cause on the ground of the absence of a material witness when the
application appears reasonable : Stevens v. Esling, 2 F. & F. 136.
i
"«
168
COSTS ON ADJOURNMENT.
I! ■■
Section Inability of the defendant to attend owing to the state of his liealth^
118 entitles him to an adjouniinent : Scliultz v. Wood, (i S. C. R. 585. If a
- person allows a witness to leave the country, knowinf» that his evidence
is material, he caiuiot have the trial postponed on that account:
Solomon v. Howard, 12 C. B. iCiH. A Judj,'o has a discretion in refusin}*
the postponement of a case, notwithstandin<i tlie absence of a witness :
Turner v. Meryweatlier, 7 C. B. 251. A trial will not be postponed
whore a v/itnos" is in defendant's employ and he has nc^^lected to snb-
pcjRna him in ''me and allowed him to leave: Wright v. M'Gufile.
4 C. B N. t Unless an endeavour has been made to procure the
attendant'; . . \' ''^ness, a postponement will be refused: Ward v.
Wilkinson, ' c" 1 173 : or if it appears that no application has been
made to the witness to know if he will attend: Worsley v. Bisset,
3 Dougl. 58 If a witness is kept out of the way by plaintiff a trial will
be postponed o appHcr*^ion of defendant: Duberly v. Giiiining,
Peake, i(7. If wii .,S8 i., ■{ . of f^he country, and it does not appear that
there is a likelihood oi lii< ■.ta i^ing, the postponement will be refused :
R. v. D'Eon, 1 W. Bl. 515. Sometimes the application will be refused
if the party applying has conducted himself unfairly, or has been the
cause of any improper delay : Saunders v. Pitman, 1 B. & l*. HI}. The
illness of defendant's attorney was held a good cause for postponing a
trial : Hayley v. Grant, Sayer, (53 ; but not where counsel was unpre-
pared : Golebrooke v. Uobbs, 3 Burr. 1319. A party should npply at
once (see Rule 140) otherwise he would have to pay the costs of the oppo-
site party in preparing for trial : see Dale v. Heald, 1 C. & K. 314 ; Ward
V. Ducker, 5 M. & G. 377. The party obtaining an adjournment on pay-
ment of costs should take the means at once to have costs taxed : Waller
V. Joy, IC) M. & W. ()0; Brega v. Hodgson, 4 P. R. 47; buL ho may
abandon the order without being liable for other than costs of the
application : Allen v. Mathers, 'J P. R. 477. When application is
made on the ground of the absence of a witness, it is not enough to
show that the witness is material, and may and probably will give
important evidence, or to swear that his evidence will be material and
necessary, without showing that it will assist the case of the person
making tlic application : Kerr v. G. T. R. Co., 4 P. R. 30.i. In Hpeers v.
G. W. R. tJo., () P. R. 170, it was held, in an action for personal injury,
that the inability pi'operly to calculate the damages to the plaintiff,
owing to sufficient time not having elapsed from the receipt of the injury
was a suflicient ground for postponing the trial. The Judge may, under
this section, (i<Jjoiirn the Iwuring of a cause from the regular sitting of the
court to his chambers, within the territorial limits of the division ; and
such adjournment of the hearing of the cause is in effect, if not
objected to by the parties, an adjouniment of the court to hear th it cause :
In )■(■ Burrows, 18 C. P. 4',)3 : see also notes to section 7i*. and an article
at page 35 of 3 L. C. G., on the adjournmant of causes for the purpose of
putting in statutory defences by leave of the Judge.
See also Stuart v. Gladstone, 7 Ch. D. 394 ; Parnell v. Walter,
5 T. L. R. 577.
Costs. — When the adjournment is applied for to suit parties, the
Earty applying must pay all costs that have been incurred by the case
eing on the list : Lydall v. Martinson, 5 Ch. D. 780. When a ))arty has
made diligent attempts to ohtain a witness, costs should be in the cause:
Knox v. Porter, 11 P. R. 250 Security may be ordered for the whole or
part of claim : Bank of Hamilton v. Stark, 13 P. R. 213 ; but application
must be promptly made: iVIcMillan v. McDonald, 22 Gr. 3G2. Where a
trial is postponed without costs, and a settlement <b afterwards arrived
at, it is beyond the power of the Judge to amend his order by ordering
payment of costs : Noonan v. Bank of B. N. A. 10 C. L. T. 93.
ADJOUllXMEXT OF JURY CASES.
169
Other equitable terms.— It is not unusual to require the party apply-
ini> to admit some matters of formal proof : Brown v. Murray, 4 D it li.
830. Whatever terms the Judi^c thinks just can he imposed. His discre-
tion in this respect should be reasonably exercised, and not capriciously :
gee notes to section '20.
Order. — The order need not be served except by direction of tlie
Judge : Rule 1.49.
Sections
118-119
tliel'o«ti.one-
inont of
IIO. Where an action is bein^' tried by a jury
Judge, if he thinks it expedient for the interest of justice, *^'*'
may postpone or adjourn the trial for such time and upon
sucli terms, it* any, as he shall think tit. 48 V. c. 14, s. 10.
Adjourn the trial. — It was evidently intended to remove any doubt
as to the power of the Judge, in cases where a jury is summoned, to
adjourn the trial, and to impose on a party applying for adjournment
the payment of the fees of jurymen who may he required to return on
another day : See li. v. Hart, 45 U. C. R. 1.
A Judge may " consider it expedient for ti e interests of justice " that
the trial of a cause sliould be postponed ; yet not be willing to consider
it just to impose on the taxpayers of a county the payment of jury fees
in such a case : see section 170, and by this section, it is submitted, lie
is en: ^.wered to impose the payment of such fees, as well as other costs,
on the party making the application.
A party in whoso favour the postponement is granted, having acted
upon it, or taken advantage of its provisions, is bound by its terms and
cannot repudiate any part of it: Griffin v. Dickenson, 7 Dowl. 8(10 ;
Giraud v. Austen, 1 Dowl. N. S. 703 ; King v. Simmouds, 7 Q. B. 289 ;
McKenzie v. Stewart, 10 U. C. R. G34.
So that if a iiarty obtained a postponement on payment of costs, he
would, unless he abandoned the order, be bound to pay them for he
could not take the benefit of the order without its burthen : Richardson
V. Shaw, (] P. R. 29(j; xee also Martin v. McCharles, 2") U. C. R. 279.
The words "upon payment of costs" are words of agreement, not
mere words of condition, and execution may be issued upon an order in
these words : Stuart v. Branton, 9 P. R. 560.
A Judge could open again an order for adjournment granted by him-
self, or even rescind it before it was acted on, upon iiis discovering that
he had made it inadvertently, or had been surprised into making it by
any perversion or concealment of facts, or from the misconception ou
his part of the law or facts: Shaw v. Nickorson ; Gillespie v. Nickerson,
7 U. C. R. .541 ; Hughes v. Field, 9 P. R. 127. But after an order has
been made and acted upon the Judge cannot make an order varying it ;
I^oonan v. Bank of B. N. A. 10 C. L. T. 93.
So long as an order stands unreversed it will be assumed that neither
party is dissatisfied with it: Hall v. Brown, 3 P. R. 293.
Should there be any objection to the mode of complying with the
order application should be made to the Judge who made it for correction :
Ross V. Grange, 4 P. R. 180.
If the order do not prescribe when the fees and costs are to be paid
the party would have fifteen days from the rendering of the decision in
which to pay : Rule 149.
Where consent is given to the making of an orde. , such consent can-
not be arbitrarily withdrawn : Harvey v. Croyden Union Rural Sanitary
Authority : 26 Ch. D. 249.
See also notes to section 118.
2
a
I
170
WHO MAY APPEAR AS AGENTS.
Sections
120-121
All persons
enapower-
«d to act as
agents or
advocatcH.
I20- Any pei*son may appear at the trial or hearing
of any cause, matter or proceeding as agent and advocate
for any party to any such cause, matter or proceeding in
the Division Courts. R. S. O. 1877, c. 47, s. 84.
Any person. — The words " any person " are wide enough to include
the case of a woman appearing; on behalf of another : R. S. O. p. 4 ;
Duck V. Bates, 12 Q. 13. 1). 79 ; Stroud, H9 ; see Beresford-Hope v. Sand-
hurst, 23 Q. B. D. 79. A mandnmus will lie to compel a Judtje to hear
an af;ent, unless he be a person whom the Judge has rightly excluded
under section 121 : R. v. Assessment Com. of St. Mary Abbotts, Ken-
nington, (1891), 1 Q. B. 378. But a Judge may exclude such person under
section 121. On this subject se^ Cobbett v. Hudson, 15 Q. B. 988; notes
to section 114 ; see also Lord v. Hall, 8 C. B. G27 ; Lindus v. Bradwell,
5 C. B. 583 ; Cotes v. Davis, 1 Camp. 485.
A party may appear in his own belialf and be a witness in the cause
too: Cobbett v. Hudson, 1 E. & B. 11 ; but a plaintiff or defendant will
not be heard in his own case after counsel lias addressed the court :
Newton v. Chaplin, 10 C. B. 356: and a barrister is in no better position
than any one else : Ih.
Where defendants at a trial appear by different counsel, it is a
matter for the discretion of the .Judge, to be exercised under all the cir-
cumstances of the case, whether more than one ought to be allowed to
address the jury : Nicholson v. Brooke, 2 Ex. 213 ; or to cross-examine a
witness : Walker v. McMillan, 6 S. C. R. 241.
An advocate can act as such in a cause, and as a witness as well :
Davis V. Canada F. M. Ins. Co., 29 U. C. R. 452, but tee remarks as to the
impropriety of such a course : Ih.
An agent or attorney retained for the conduct of an action has not
implied authority, after judgment in favour of the client, to enter into an
agreement on his behalf to postpone execution : Lovegrove v. White,
L. R. 6 C. P. 440 ; see Butler v. Knight, L. R. 2 Ex. 112.
A counsel or solicitor, generally speaking, have authority to bind a
client : Strauss v. Francis, L. R. 1 Q. B. 379 ; Wilson v. Corp. Huron
and Bruce, 11 C. P. 548; Brown v. Blackwell, 2(5 C. P. 43; Moody v.
Tyrrell, (5 P. R. 314; Matthews v. Munster, 20 Q. B. D. 141; Vardon v.
Vardon, « O. R. 736; McDonald v. Field, 12 P. R. 213; see, however,
Watt V. Clark, 12 P. R. 359 ; Stokes v. Latham, 4 T. L. R. 305.
ilfii
Judge may
prevent
any one
from act-
ing as
agent or
advocate
in certain
cases.
%'
I
121. The Judge or acting Judge may, wherever in his
opinion justice appears to require it, prevent any person
from appearing at the trial or hearing of any cause, matter
or proceeding ii\ the court, as agent and advocate for any
party or parties to any such cause, matter or proceeding.
R. S. O. 1877, c. 47, s. 85.
It is submitted that under this section a Judge could even refuse to
allow a barrister or solicitor appearing in a Division Court case as
" agent and advocate."
The power is not given to prohibit generally, but a particular
person, at the trial or hearing of any cause, mitter or proceeding.
PLEA OF TENDER.
171
If a barrister or solicitor should misconduct himself, either towards Beotlons
the Judge, or a witness, or otherwise, it is submitted that the Judge would 121-122
not only have the power, but it would be his duty, to prevent such person
from further appearing in the case ; and this too in addition to any fine
he might find il necessary to impose for contempt of court under section
275. Sec also section 52.
Tender or Payment of Money iiiio Court.
122. If the defendant in an action of debt or contract ^^'^5^^'^^^^^
brought against liini in a Division Court, desires to plead ftmoney'into
tender before action Ijrought, of a sum of money in full Court,
satisfaction of the plaintiff's claim, he may do so on tiling
his plea with the clerk of the court before which lie is
sunnnoned to appear, at least six days before the day
appointed for the trial of the cause, and at the same time
paying into court the amount of the money mentioned in
the plea : and notice of the plea and payment shall be
forthwith connnunicated by the clerk of the court to the
plaintiff b}' post (on I'eceiving the necessary postage), or by
sending the same to his usual place of abode or business
R. S. (). 1877, c. 47, s. SO.
Debt or contract. — Thia provision, it will be observed, does not apply
to any action of tort, but to actions in "debt ov contract" only. The
plea is only applicable where the party pleading has been guilty of no
breach of contract : Hume v. Peploe, 8 East, 1G8, 170. Therefore, where
a debt is payable on a day certain, as on an acceptance, the plea is
inapplicable : Poole v. Tunbridge, 2 M. ct W. 22S. It cannot be pleaded
to an action for unliquidated damages : Davys v. Richardson, 20 Q. B. D.
722 ; S. C. 21 Q. B. D. 202.
Tender. — " The principle of a plea of tender is this, that the defendant
has alwi.ys been ready at all times to pay upon request, and on a particu-
lar occasion offered the money: " Ilesketh v. Fawcett, 11 M. & W. 356.
*' It is a performance of the contract on the part of the defendant so far
as he could perform it, and was not prevented by the plaintiff : " BuUen
A Leake, 3rd Ed. 693. A plea of tender (like a plea of payment into
court) operates as an admission of the special contract stated in the claim
to which it is pleaded : Cox v. Brain, 3 Taunt. 95 : Huson Cotton Co. v.
Canada Shipping Co., 13 S. C. K. 401. It supersedes the necessity of
shewing tliat a guarantee was in writing : Middleton v. Brewer, Feake, 15.
Where a note ia payable on demand, a tender of the amount and
interest any time before action is good : Norton v. Ellam, 2 M. & W. 461.
By whom tender must be made. — The tender need not be made by
the debtor himself, it is sufficient if made by his agent or servant, and a
tender made by an agent, at his own risk, of more money than is given to
him is good : Read v. Goldring, 2 M. & S. 86.
To whom a tender must be made. — A tender to a person authorized
to receive ))ayment is sufficient : Goodland v. Blewith, 1 Camp. 477 ;
Kirton v. Braithwaite, 1 M. & W. 310. So is a tender to a managing
13
m
i
jaMWiHa
172
MODE Ol" MAK1N'(J TKN'DER.
I I;
Section clerk, thnnf,'li lio should Ir.ivo received ordors not to accept it: Moffat v,
122 PiirsoiiH, ;') Tiiiiiit. .107. So if lio refuse, Haying; lie had no instructions :
Fincli V. IJoniuf.', 4 C. P. I). 113, jier Coleridf^jo, CI.
Where a S'<licitor sends ii letter to demand, and the debtor makes a
tender to Iiimi, il, is a t,'oo(l tender, unless tlic solicitor disclaims his
autho)-ity at (lie time ; and if the solicitor is absent, a tender to a clerk
at his ')lli;v. is sufticient: Wilinot v. Smith, H C. (t P. 4!>ii; Kirlou v.
lirH.itliv.iiitc. 1 M. iV W. mo. Put without any previous demand a tender
to the miiMiiLjiHg clei'k of (he plaintiff's solicitor, who disclaims authority
to receive it, is not suflicient: Hinj^ham v. AllpcU't, 1 N. A "SI. iiW; Watson
V. Hethorin^ton, 1 t,'. it K. ."Jl"). .\ tender to the solicitor of the ))laintiff,
flo Ion;,' as ho nunains such, is f^ood: Oroz r v. Pillin;^, 4 JJ, it C 'ili;
Moody V. Tyrrell, fl P. 11. ;U4. So al.so a tender if made to a person in
the office of plaintiff's solicitm- to whom defendant was referred by a
clerk in the ofHce, and who refused the tender only as beiuj^ to little,
without shewing who that prison was: Wilmoi v. Smith, .iiipru. A
tender to a jierson in a merchant's place of business, who appeared to be
conductinfi it, is good, though in fact not intrusted to receive money :
Harrett v. Deere, M. it M. 200. It is otherwise where payment is not
connected with plaintiff's business, but quite collateral to it : Sanderson
V. Hell, 2 C. it M. HOI. Where money was bi'on,i,'ht to plaintiff's house,
and d'.livered to his servant, who appeared to ^lo 'vitli it to his master,
and returned sayinj; his master would not take it, it was held to be evi-
dence from which a tender niifjlit be inferred : Anon, 1 Esp. 341). A tender
of a partnership debt to one of several partners is good : Douglas v.
Patrick, 3 T. il. ()S3. If a man is indebted to several persons iu different
snms, and when they are all to;4ether, tenders them one j^ross sum suHi-
cieiit to satisfy all their demands, which they refuse to receive, insisling
on more beiiit; due, this is a fjood tender: Black v. Smith, Pe.ike, bH.
But wiiere a party has separate demands for unequal sums a<^ainst
several persons, an offer of one sum, for the debts of all, will not support
the defence that a certain portion of this sum was tendered for the debt
of one : Stronj* v. Harvey, 4 Bing. 304. A tender to an executor may be
good, though he has not proved the will, provided he afterwards pr.jves
the will and takes upon himself the burthen of administration : Add. on
Con.. ir)4.
A debtor cannot apply a set-off in reduction of the amount due so as
to make a tender of the balance good : Searlea v. Sadgravc, 5 J^. it 13. 03'.).
Mode of Making. -A tender to be strictly legal, should be made in
legal coin : Polglass v. Oliver, 2 C. <t J. 1-5.
Up to $10 it may be made in silver: and to '25c. in copper; II. S. C.
c. 30, 8. 5.
Bank notes are a good tender if not objected to : Wright v. Reid,
3 T. K. 5.54 ; Tiley v. Courtier, 2 C. it J. 10, note (c.)
A tender made in the form of a cheque in a letter is good when no ob-
jection is made to the quality, but the quantity of the tender, and if the
letter contain a recjuest for a receipt ta be sent bick, it does not vitiate
the tender, it not being a condition : Saunders v. Graham, Gow. 111.
An offer of money by a debtor to a creditor, and a request by the
latter for a day's delay before receiving it, on account of an accident, are
not a tender and refusal of the money, and do not discharge the debtor :
Jenkyns v. Brown, 14 Q. B. 503.
Production of the Moijey.— There must be production of the money,
or that dispensed with by the express declaration or equivalent act of the
creditor : Thomas v. Evans, 10 East, 101 ; Polglass v. Oliver, 2 C. & J. 17 ;
Dickinson v. Shee, 4 Esp. 68 ; Matheson v. Kelly, 24 C. P. 59.S. A tender
is not good where the money is not in sight, but the witness supposed it
: if!
UEQUnUN(J CHAXOF.
173
was in a desk and did not see it produced ; mu tliut it did not appear Section
that if the party was willing to accept the money, it coiilc] at once be paid ; 122
the money Hhould be at hand and capablu of immt^diate delivery : Glass-
cott V. Day, 5 Esp. 48. JJut where more is claimed to bo due, it is not
necessary to produce the money tendered : Black v. Hniith, Peake, 88.
Where tlie facts were found to be that the defendant's attorney called on
the plaintiff, and said, " I come to i)ay you tl l'2>i. iid., which the defend-
ant owes yon," that the attorney jjut his hand in his pocket, but tlid
nut produce the money, tlie plaintiff said, " \ cannot take it, the matter
is now in the hands of my attorney," lidil, not a suflicient tender : Finch
V. Brook, I Biuf^. N. (J. '2'>'.]. A tentler nnide with the money twisted up
ill bank notes in the person's hand, he statiiif^ how much, and not shewn
to the party, is j^ood : Alexander v. Pirown, 1 (". iV' P. 288. If the plain-
tilf says he can't take the money, when an offer is made to j^o up-stairs
and letch it, such offer is a ^ood tender : Harding v. Davies, 'J (!. iV V. 77,
lint if it (lid not appear that the person tuiideriii'^ had the money up-
•^tiiirs, it nii.uhl not be; Kraus v. Arnold, 7 ]\loore, .")',). In this case,
where the defendant onh red ,(. to jjay the p.laintiff L"7 12s. ()//., and the
clerk of the i)laiiitiff's attorney dciiianded 1^,011 which A. said he was
only ordered to pay t? 1:2>'. Od. which sum was in tlie hands of />'., and li.
put his hand to his jiocket with a view of pullin.; ont his pocket-book to
• |iay 1-7 \'2k Oil. but did not do so, by the desire of A., but /)'. could not saj-
whether Ik; had that sum about him, but swore that ho had it in his
house, at th? (h)or of which he was standinj^ at the time; licld, that this
wan not a lej^a! tender, as the money should have been pi'oduced to the
attorney's clerk: bit .sw Loiij^ v. ].on<,', 17 (ir. 2')l. Where a vendor
admits a tender would be fruitless, it is unnecessary: Jackson v. Jacob, ;-5
l'>'n\<i. N C. 8()'.). If a party tells bis creditor that he will pay him bo
mucli, and pvits his hand in his jiocket to take out the money, but bjfore
he can fjet it out the creditor leaves the room, and the money is not
jiroduced till he is ^one, it is no tender: Leatherdale v. Sweepstone, iJ
C.A P. :U-i; Matheson v. Kelly, '21 V. P. .")()8 ; .-!,;• Howell v. Listowel
l{ink (';o. , 13 O. II. 47(1. Where the plaintiif disputes the qwintiiin
to provj a tender, some money must bo proved to have been pro-
duced, thouf^h it is not necessary to prove the exact sum: Dickinson v.
Sliee, 4, Esp. 08. A trader who, under a trader debtor summons, had
sif^ned an admission of debt, went to his creditor with the amount of it
in his pocket in money, and told the cieditor that lie had come to pay
that amount, the creditor said it was of no use, as it was too late, and
that the debtor must see the creditor's solicitor ; it was held that the
production of tlie money was dispensed with, and that the tender was
•;ood : Danks, E.r purte, 2 DeG. INI. & G. \YM) ; s. c. 22 L. J. N. S. Bank.
7H ; si'c also Reynolds v. Allan, 10 U. C. li. 350; W^estern Ass'ce Co. v.
McLean, 20 U. C. II. 57. Where, on tenderiuf^ payment of money due
upon a mortgage, a receipt was retjuired, and the plaintiff did not object
on that ground, but gave a different reason for refusing the money, held
a good tender: Lockridge v. Lacey, 30 U. C. K. 404 ; see also Llado v.
Morgan, 23 C. P. 517.
Requiring change. — A plea of tender of £ is supported by evidence
of the tender of a larger sum, though such larger sum was tendered as
tiie sum which the creditor was to receive and not as the sum out of
which he was to take the £20: Dean v. James, 4 B. & Ad. 547; but a
tender of a larger sum, reijuiring change, is not a good tender of a
smaller sum : Robinson v. Cook, Taunt. 336 ; Bctterbee v. Davis, 3
Camp. 70. A tender of £2, to pay £1 13s. Od., is good, if the plaintiff
objects to receive it only because he is entitled to a larger sum, and not
on the ground that he has no change: Cadman v. Lubbock, 5 D. & R.
289. A tender of part of the claim, and a counter-claim for more than
the full amount of the debt, is not a good tender : Brady v. Jones, 2
m
i
s.
K
m
a-
3
o
174
MEMAN'I) I'RIOIl OH HUHSEQUENT TO TENDER.
Section
laa
3
•1^
1). iV U. HO'i, and »ee Holland v. Pliillipa, <i Esp. 46. The defendant owed
£108, demanded by the attorney for liia creditor; he sent a man, who
laid down on the desk one hundred and fifty wovoreitjnH, out of which he
desired tlie attorney to tu,kp tho prliicii.nl and interest, but the attorney
refused to do so, unless a shop account duo from plaintiff to defendant
was fixed at a certain amount. ILliI, a good tender of the tlOS : Hevan*
V. flees, ■) M. & W. .•UK); nee also Gretton v. l\feos, 7 Vh. V. mj.
Demand of a receipt. - (loin^^ with money in hand to maki. n tender,
and demaiidin)^ wlietlier the creditor has a roceii)t stamp, and receivinj^
an answer in tlie nej,'iitive, but not offerin^^ tiie money, was held not a
tender: Ryder v. Townsend, 7 D iV H. ll'.l. A tender is not j,'ood if
accompanieil by a demand for a receipt in full of all demands : Griilith
V. Hodi^es, 1 {". iV P. 41!( ; or where a receipt was demanded that the
sum tendered was the baliiiue due: Hi{,'ham v. IJaddely, Gow. 21.3.
But if tiie creditor refuse to receive tiie money on account of more beinf»
due. he cannot afterwards object that a receipt was denuinded : Rich-
ardson V. .Jackson, 8 M. & W. '2!)8. Where the words of a tender were,
" I offer you i;7 lli>'. 8r/. as the balance of t'iM, and re(]uest a receipt in
fidl," it was lii'hl invalid as l)eint< conditional: Foord v. Noll, 2 Dowl.
N. S. (117. A tender of a quarter's rent, coupled with a demand of a
receipt to a [larticular day, the contest between the parties beinj^ whether
one or two quarters' rt^nt was due. is not a valid tender: Finch v. Miller,
5 C. 15.428; but the demand of a receipt simply for the amount of
monev tenelered does not invalidate the tender : Lockridge v. Lacey
30 U.'C. R. 4i)4.
In BLxck v. Allan, 17 C. P. 248, Richards, C.J.. said : " As to tender,
the later cases seem to lay it down where there is anything e(]uivocal in
the conduct of the party to whom the tender is made, it is a (juestio ' of
fact for the jury to decide whether the tender be absolute or conditional,
and whether the party dispenses with the production of the money or
not." SV^, also. Tobey v. Wilson, 43 C, C. R. 230.
Under protest. — .\ tender of the full amount denuinded under pro-
test is good : Manning v. Lunn, 2 G. ct K. 13 ; Scott v. Uxbridge & Rick-
mansworth Rv. Co., L. R. 1 G. P. rm ; Sweny v. Smith, L. R. 7 Eq. .S24 ;
Thorpe v. Burgess, 8 Dowl. C02 ; Greenwood v. Sutcliffe (1892), 1 Ch. 1.
Demand prior or subsequent to tender.— The substance of the de-
fence being that, that defendant was " always ready and willing " to pay
the debt, the defence will be (fcfeated by showing a demand and refusal
prior or subseijuent to the tender : Bennett v. Parker, Ir. li. 2 C. L. 8'.i ;
Poole V. Tumbridge. 2 :M. A- W, 223, 22(). I Wnis. Saund. 33 c. (2). The
onus of proving the subsequent demand is on the creditor, and if for more
than the precise sum tendered it will be bad : S])ybey v. Hide, 1 Camp.
181; Rivers v. GriffitliK.oB. & Aid. 030. And il mast be by some one author-
ized to receive it and grant a discharge : (Joore v. (Jallaway, 1 Esp. 11.") ;
even in replevin : Pimm v. Grevill, (J Esp. '.).">. A subsequent demand
on one of two joint deb*"ors is sufficient : Peirse v. Bowles, 1 Stark, 323.
A letter sent by the pLiintiff and received by the defendant, demanding
the sum tendered is not sufficient evidence of subsequent demand ; for
at the time of the demand the defendant should have an opportunity of
imniediately [jaying the sum demanded : Edwards v. Yeates, Ry. & M. 3()0.
But it was held in Hayward v. Hague, 4 Esp. 93, that a letter demand-
ing a debt sent to defendant's house, to which answer was made that it
would be settled, was held sufficient evidence of a demand on the issue
of subsequent demand and refusal to a plea of tender. The subsequent
adoption of a demand is not sufficient : Story on Agency, para. 247.
A proper tender v,"U stop the running of interest if the mortgagor
keeps the money ready to pay off the mortgagee : Gyles v. Hall,
2 P. Wms. 377.
DISPOSAL OF MONEY PAID IX.
175
indaut oweif
man, who
A wliich lie
lie attorney
o clefeiidiiut
08 : Heviin*
V.».
kc •> lender,
id iooeivinj<
8 held not a
not Hood if
ds: Grimth
cd that the
, Gow. 213.
' more being
ided: Kich-
teiider were,
a receipt in
oil, -2 Dowl.
cmand of a
!in>{ whether
zh V. Miller,
amount of
ge V. Lacey
As to tender,
equivocal in
u, (jueatio ' of
conditional,
lie money or
i under pro-
idge & Rick-
i. 7 E(l. 324 ;
2), 1 Ch. 1.
ce of the de-
lin>{ " to pay
and refusal
,. 2 i). L. 8'J ;
c. (2). The
d if for more
ide, 1 Camp,
eoneautlior-
1 Esp. 11") ;
lent demand
1 Stark, 323.
i, demaiidiiiti
iemaiid ; for
iportunity of
Ky. AM. '3(10.
tter demand-
made that it
on the isHue
e subsequent
(ra. 247.
le mortgagor
yles V. Hall,
The refusal of a tender is not such a breach of contract as will Hup-
port an action: lUnk of New South Wales v. O'Connor, 14 App. Caa.
273, 2H4.
A plaintiff can be nonsuited after plea of tender if he does not a])pear,
and in sucli a case it is the proper course : Anderson v. Shaw, 3 lling. 290.
Notice. -Notice of the plea and payniLMit must be at onco cmnmiini-
cati'd by the clerk to the plaintiff : see Form 102, section 10 ; Rule H7 ;
sei' also Hnlo 125.
Itiii. Tlie Hiiid money .shall ho paid to the phiiiititt',
lesH $1 to he paid over to the defeiuhmt for his trouhle, in
case the plaintiff* does not Further prosecute his action; and
all proceedings in the action shall he stayed unless the
[ilaintili", within three days after the receipt of notice of the
jiayment, sionities in writing' to the clerk of the court his
intention to proceed for his deniaiuh notwithstandino- such
plea; and in such case the action shall proceed accordingly.
R. S. (). 1S77, c. -J 7, s. 87.
Shall be stayed. — The defendant is permitted to file his plea and pay
the amount into court, and the plaintiff has three days, exduxivn of the
day on which lie receives the notice (see notes to section 10!l) to determine
wlmther he will accept or not. If a plaintiff can determine what he will
do after tlie prescribed time then there is no limit to it and the provisions
of tl\e statute would be useless. If nothing is done the court has no juris-
diction to proceed with the action : lie McGregor v. Norton, 13 P. 11. 223.
Notwithstanding Rule 12,') (which if it has application to this case,
only applies to the duty of the clerk), it is submitted, that the time does
not commence to run against the plaintiff until the actual receipt of the
notice : McCrea v. Waierloo M. F. Ins. Co., 2G C P. p. 438, per Gait, J.:
In Appeal, 1 A. R. 231; McCann v. Waterloo M. F. Ins. Co., .S4
u. C. R. 37(i. If he rejects the payment, the case is to be tried at the
next sitting of the court after the receipt by the clerk of the notice of such
rejection : Rule 12!(.
The delay not being by the act of the court or Us officers it is submitted
that tlie notice could not be given, nor allowed to be given, nunc pro tunc :
Laiinian v. Audky, 2 M. A- W. 03") ; Freeman v. Tranali, 12 C. B. 40G ;
Moor v. Roberts, iJ C. H. N. S. 815, j)er Williams, J. Where a stay of
proceedings was " until the further order of the court,"' it was held that
neitlier partv could abandon the order, because each party had an inter-
est ill it : Wilson v. IJpfill, 5 C. B. 215. Wilde, C.J., says, at page 210 :
" It continues to be a binding order until rescinded by the authority by
which it was made." Here </;t iiiu:!ite stays proceedings, ''unless'' the
plaintiff signities liia intention of proceeding with the action, and in that
case only.
See also Greaves v. Fleming, 4 Q. B. D. 22(1 ; Wheeler v. Gibbs, 3
S. C. R. 374.
A plaintiff cannot get money paid into court out, until the suit in
which it is paid in is determined, unless the Judge otherwise orders.
Tliis is governed bv Rule 130 oi the Division Court Rules. See Griffiths
v. .School Board of Ystradyfodwg, 24 Q. B. D. 307.
See notes to sections 125, 120, as to payment into court and the pro-
ceedings thereon.
Sections
132-128
Amount to
1>() |itikl to
liIaiutitT,
etc.
i i
176
PAYMENT INTO COURT.
P ijil
ii-
p-Mjtions 124. If the decision tliereon be for the defendant, the
124'136
plicintiff' shall pay the defendant his costs, charges and
costs in expenses, to he awarded by the coiu't, and the amount
thereof may be paid over to him out of the money so paid
in M'ith tin? said plea, or may be recovered from the plaintiff
in the same manner as any other money payable under a
judi^nneiit of the court; but, if the decision be in favour of
the plaintili, the full amount of the money paid into court
as aforesaid shall be applied to the satisfaction of his claim,
and a ju<l^nient may be pronounced ayainst the defendant
for the balance due and the costs of suit accordinii' to the
usun! j)ractic.^ of the court in other cases. R. 8. O. 1877,
c. 47, s. <SS.
Costs, charges and expenses. — '• This would also inclnde the defend-
ant's expenses of iittjndinL; on his own behalf if he did so attend
expres-^ly for the purpose of f^ivin^: evidence on his own hehalf, and not to
superintend tlie cause : " Howes v. ]5arber, 18 Q. B. iyH» ; or such sum as
the Judf^y mitiht think^proper to order a defendant, thoujih not a witness,
under sjction 207. Set- also I'ox v. Toronto & Nipissinj^ lly. Co., 7 P. K.
I"i7 ; and notes to section '207.
If the decision of thecjuestion on a ])lea of tender be for the defendant
there is no discretion as to costs, the statute arbitrarily deiermines how
they shall be awarded by the court. But if the decision be in favour of
the plaintiff, the anionnt of the money paid into court sliall be applied to
the satisfaction of his claim, and the Jud^e may pronounce judgment
arjainst the defendant for t!ie balance due and the costs of the suit
accordinj^ to tin usual practice.
See sections 12r), 126, and notes.
Defendant I2»5. The defendant may at any time, not less than six
may pay " ''
™°^|'^fj> '"*" days before the day appointed for the trial, pay into court
such sum as he thinks a full satisfaction for the plaintiff's
demanb together with the plaintiff's costs up to the time
of such payment. R S. O. I.S77, c. 47, s. S!).
Not less than six days. — This means clear days. Scf notes to
section *.)(). If he do net pay into court at least si.v days before " tlie
days appointed for trial," he cannot make the payment afterward,
though the trial may be adjourned : Fletcher v. Baker, L. K. !) Q. B. 372.
The word "defendant" in this section must, in case of an action
against two or more, be read <lefeudants : Interpretation Act, s. 8,
s-s. 23.
The English County Court Rules require a defendant to pay money
into court, if he desires to do so, at least five clear days before the
" return day," and where a summons was issued on the 14th March
returnable on 15th April, and on 8th April defendants paid money into
court; it was held the payment into court was not too late : Stevens v.
Hounslow Burial Board, 61 L. T. N. 8. 839.
TTS
EFFECT OF PAYMENT INTO COURT.
i7r
idant, the
irges and
; amount
;y so paid
e plaintiff
e under a
favour of
into court
his daim,
lefendant
inn- to the
1. O. 1877.
the (Icfend-
1 so attend
f, and not to
such sum as
3t a witness.
Co., 7 P. K.
le defendant
;rmine3 how
in favour of
3e ai)[ilied to
ce judgment
of the suit
)s than six
into court
plaintiff's
o the time
S>(! notes to
I before "the
t afterward,
,. f) Q. B. 372.
of an action
)n Act, 8. 8,
o pay money
■B before the
14th March
d money into
e : Stevens v.
Care must be taken to pay into court enough to satisfy the full claim Section
to damages and costs to the time of paying the money in. Interest, 126
if allowable, must be calculated to the time of payment, and not merely '
to the issue of the summons : Kidd v Walker, 2 13. & Ad. 705.
Where several matters are included in one suit, payment into court
may be made to all : Marshall v. Whiteside, 1 M. & W. 188.
When pleaded to a cause of action which, in a higher court, before
the Judicature Act, would have come under the head of indebitatus
counts, it admits "that the defendant is liable in respect of some one or
more contracts or causes of action stated in the general counts, to th©
extent of the sum so paid in ; and the plaintiff cannot apply that admis-
sion to any particular contract he may please to select any more than
the defendant : " Taylor on Evid., s. 761. It admits also the validity of
every species of claim mentioned in the particulars, and that some dam-
ages are due on each : Edgar v. Watson, 1 C. & M. 494. It admits the
character in which a plaintiff sues : Lipscombe v. Holmes, 2 Camp. 441,.
and his sole right to the money sued for : Walker v. Rawson, 5 C. & P.^
480 ; and that the defendants are properly sued jointly : Bavenscroft v.
Wise, 1 C. M. & K. 203. It also admits that the action is not brought
too soon: Harrison v. Douglas, 8 A. & E. 396; but alj such admissions'
only operate to the amount of the money paid into court : Archer v.
English, 1 M. (& G. 873. If paid in, on an action on a special count or
claim, it admits the contract as charged : Israel v. Benjamin, 3 Camp. 40 ;,
M'Cance v. London and North Western Ry. Co., 7 H. & N. 477, and that
nominal damages are due on it : Archer v. English, 1 M. & G. 873 ; and
the defendant cannot be allowed to controvert it : Lloyd v. Walkey,
9 C. & P. 771. Still less will he be allowed to give evidence of facts under
this plea, even in mitigation of damages, which, if pleaded before, would,
have been a bar to the action : Hpeck v. Phillips, 5 M. & W, 279. In an
action for use and occupation, it admits plaintiff's sole title: Dolby v>^
lies, 11 A. (& E. 83). If paid in on a promissory note payable by instal-
ments, it only admitR the amount of instalments as due which the money^
paid in will cover, and does not preclude the Statute of Limitations being
pleaded to the others : Reid v. Dickons, 5 B. <& Ad. 499.
It is submitted that payment into court may be pleaded to part of the
plaintiff's claim : Charles v. Branker, 12 M. <Sc W. 743 ; Brune v. Thomp-
son, 4 Q. B. 543. Where plaintitl sets out his cause of action in two
ways, on either of which he can recover, it is enough to pay money into
court on one : Early v. Bowman, 1 B. & Ad. 889 ; Stafford v. Clark,
2 Bing. 377. Payment into court in actions of tort has the same effec*!
as in actions of contract. It admits a cause of action with damages
amounting to the sum paid into court ; but it does not necessarily admit>
the cause of action stated in the particulars : Bchreger v. Garden, 11
C. B. 851 ; Robinson v. Harman, 1 Ex. 850 ; Story v. Finnis, 6 Ex. 123.-
If the claim is general and unspecific, although it admits a cause of'
action, it does not admit the cause of action sued for, and therefore the^
plaintiff must give evidence of that cause of action before he can recover
larger damanies than the sum paid into court : Perren v. The Monmouth-
shire Ry. and Canal Co., 11 C. B. 855. See the report of this case for a
general view of the effect of payment into court in different forms of
action. If pleaded as to part, and plaintiff fail on the rest, he must pay
costs : Rumbelow v. Whalley, 16 Q. B. 397. A defence in denial of tha
cause of action will not be allowed with payment into court : Hart v..
Denny, I H. 4 N. 609 ; Spurr v. Hall, 2 Q. B. D. 615 ; Berdan v.
Greenwood, 3 Ex. D. 251. But, quare, and if the clerk receives the money
with such a denial, the payment cannot be construed aa an admis-^
sion : Harper v. Davis, 19 Q. B. D. i70. If a person avails himself of
payment into court, he cannot afterwards repudiate the effect of it:
D.C.A.— 12
S5
178
WHERE NO FURTHER SUM RECOVERED.
Sections Crombie v. Davidson, 10 U. C. R. 3()9. Payment into court operates as a
125-127 notice of defence (Rule 20), and can bo pleaded in an action of replevin :
■ !ifc Rule l.'j. As to I .sts, nee section 127. No written plea need be tiled,
as is required in tender before action.
ciork to 1345. The clerk liiivinn;; received the necessarv postao-e.
Rive iiotioo " ./ 1 o '
«fi'^y.'j'J^j'j!j.^shall forthwith send notice of the payment to tlie i)lair.tift'
by post or otherwise to iiis usual place of abode or of busi-
ness, and the sum so paid shall be jiaid to the plaintiff, and
all proceedings in the action stayed, unless Avithin three
days after the receipt of the notice the plaintiff signifies in
writing- to the clerk his intention to procee<l for the
remainder of the <leniand claimed, in which case the action
shall proceed as if brought originally for such remainder
only. 11. S. O. LS77, c. 47, s. 90.
Forthwith.-- Nee notes to section 20, As to this notice, .sw Eule 87 and
Form U)'2. The siit'cr course will be for the clerk to send this notice by
rc'.jisteri'd letter to the jiliiintiff's iulilress, vvhicli the clerk should obtain
under Kule 12') on the suit beinj,' entered.
'J'ho notice nuist shew the place and time of the Hittin!L,'s at which the
cause is to bo heard : fVi V. c. 12, s. 2,') ; .^cc also '.section 11;'. (./).
Within three days after the receipt of the notice.— Slc notes to
section 12;i.
In ]\IcCire;^'or v. Norton, lii P. P. 22;}, tlic defendant ])aid a sum of
money into court in full satisfaction of tlie plaintift's deni-nid under sec-
tion 12.">. and the iiliuntiff was notified thereof. 'J'he ])laiiitit'f notilied the
clerk, but not in writing,', that he inttndcd to proceed for the rcnuiinder
of his claim. The defeiulant was not notified of this and did not attend
the trial. Judf^ment was iL;iven iov the plaintiff, and the defendant moved
for, and was j^ranted, a new trial on terms. Hclil, tliat the words of the
statute are imperative, and in the absence of wiitten notice all proceed-
ing's were stayed. 'J'he trir.l wJiich took place afterwards was tlierefotc
a nullity; antl prohibition was granted restrainin.^ proceedinj^'s upon the
judi^ment recovered by the plaintiff at such trial. ILld, also, ibat an
upplication to the inferior court to set aside the jud,i:ment was no bar to
the motion for prohibition, aeiiibh' it was a convenient practice to move
in the inferior court.
*;
Plaintiff to B27. If the plaintiff recovers no further sum in tlu>
pay (lofon- • ^ • i I'-t-in
dant's costs action than the sum paid into court, the plamtifi shall
if no fur- , '^
ther Runi pav the detendaut .all costs, charges and exiienses incurred
rocovered. ^ ^ . . ,
by him in tlie action after such payment, and such costs,
charges and expenses shall be duly taxed, and may be
recovered by the defendant by the same means as any
other sum ordered to be paid by the court. R. S. O. 1877,
c. 47,8. 91.
-mm
SET-OFF AND STATUTORY DEFENCES.
179
Recovers. — Tlie word " recovers " here may, it is submitted, be read Soctiona
ns "obtains judj^merit for." The word "recovers" luis a technical 127-128
muauint^ ill hiw wlicreby it signifies, to recover by action, and b> judg- ' ""
inent of t]ie court: Wij,'ens v. Cook, (5 C. H. N. S. 781; Fer^usson v.
Davison, 8 Q. B. D. 470; Htrond, (iCiO. " But the amount of tlie verdict
is not 'recovered' till judj^inent can be sij^ned upon it : " jicr Brett, J.,
ln«s V. Loud. & S. W. Hy. Co., L. R. 4 C. P. 17. A idaiutiff docs not
" recover " a sum of monev paid in under a successful plea of tender :
James v. Vane, 2',) L. J. Q. B. UVJ.
Hct-ojf (in<l Statutory Defeiice^.
I2.S. Til case tlie (Icfeiidant desirt'S to Mvail liimself of Dofoiuiant
tlie l!i\\' ol' set-off, or of tlie Statute of Limitations, ov ofii"ticoof
... sot-olT or «
auv <lef(nice Tiiider any otln'i- statute haviiio- force of law"tii«r
•^ . , '^ _ stat\itory
in Ontario, lie shall, at least six davs liefore the trial or '^'''cnce.
lieai'ino-, <^ive notice thereof in writing to the ])lainti1t', or
leave the same for him at his nsual place of alxxle if within
the (li\ision, oi', if li\in^' without the division, shall deliver
the same to tlie clerk of the conrt in which the action is to
hi' tri('(l : and in case of a set-otl" the particulars thereof
shall he dciivored to the clerk and shall accompany the
notice to he oivxni as aforesaid to the plaintiff. II. S. ().
IS77, c. 47, s. !)2.
Set-off. — Where a defendant desires to avail himself of tlio law of set-
off or the Htatiitt! of Jjiinitations, or oi aiiy defence under any otlier
stMttito ivavin.L,' the force of law in tliis Province, provision i.i hero made
for it: Skirviii^' v. Koss, Hi C. P. 42;>.
" Het-off Ri<<ni(ies tlie subtraction or takinj; away of one demand from
another ojiposite or cross di-mand, so as to cxtinj^uish the smaller demand
.lud reduce the greater by the amount of the less; or, if the opposite
demaiiils are ('(itial, to extinguish tliem Ijotli :" Waterman on Sut-olV, [). 1.
If tlie defendant's set-off exceeds the jjlaintiff s recovery, execution
may issue for the balance not exceeding ^100 : Rule I't'l.
The defence of set-off was first created by 2 Geo. If, c. 2'2, s. 1.3, and 2
(leo. II., c. 21 ss. 4, '). Division Courts are vested with the-same powers
lis the lli.^h (,'onrt in all matters of set-off. By coiintorclaiin, also, nn-
]i((ui(latL'd damaj^es may now beset up against debts, and debts against
damages, and damages against damages. See Gray v. Webb, 21 Ch. D.
802 ; see ss. 73, 74.
The distinction between aet-off and counter claim is thus defined in
Roscoe's N. P. p. ()71. "A set-off alleges a liquidated demand due from
the plaintiff to the defendant, which balances the liquidated claim of the
plaintiff, and shows that on the whole account, between the plaintiff and
the defendant, nothing is due to the plaintiff. A set-off to an amount
equal to the plaintiff's claim is therefore a defence to the action.'" A
counter-claim which is a creature of the Judicature Act is on the other
hand " in the nature of a cross action by the defendant, which may be
made, although in respect of or against a claim for unliquidated dam-
ages : " Stookev. '^'aylor, 5 Q. B. D. 576 et seq., per Cockburu, C.J.;
Baines v. Bromley, Q. B. D. 094, per Brett, L.J.
Hi
SSB
180
STATUTE OF LIMITATIONS.
InMH
;«^
Section This distinction is sometimes material, especially with regard to the-
128 question of costs as a reference to the cases will show.
The rights of a defendant with regard to the defence of set-off and
counter-claim are discussed in the notes to section 73.
Notice of set-off, together with particulars of it, should be given to
the plaintiff six clear days {see notes to sections 96 and 125) before the
diy appointed for the sittings. It may be left for the plaintiff at his
usual place of abode, if such be within the division ; or if the plaintiff
live without the division the same may be left with the clerk of the court
in which the action is to be tried ; and particulars of the set-off must also
be delivered to the clerk : Rule 128 ; see Stanton v. Styles, 5 Ex. 578.
The clerk must then give the plaintiff notice stating the sittings when
the cause will be heard : 53 Y. c. 12, a. 25, and Rule 128.
The particulars should be such as not to mislead a reasonable man :
Law V. Thompson, 15 M. & W. 545 ; Prichard v. Nelson, 16 M. & W. 772.
The sum really due must be shewn : Symonds v. Knox, 3 T. R. 65.
Interest on the amount of set-off must be claimed in tha particulars :
Bullen V. Leake, 3rd Ed., title " Particulars of set-off."
Statute of Limitations. — The Statute of Limitations is one of the
most usual of statutory defences. The statute commences to run when
the right to bring an action has accrued : Colvin v. Buckle, 8 M. & W.
680, and stops on the issue of the summons and during its currency :
Turley v. Williamson, 15 C. P. 538 ; and the process need not be contin-
uously renewed or kept in force : Rule 127 ; see Harper v. Phillipps,
7 M. & Gr. 396 ; Whipple v. Manley, 1 M. & W. 432 ; Ptitchard v.
Bagshawe, 11 C. B. 469.
It has been said that " a plea of the Statute of Limitations is now
considered a defence on the merits : " Archbolds' Prac, 12th Ed. 988 ;
Rucker v. Hannay, 3 T. R. 124 ; Maddoks v. Holmes, 1 B. & P. 228 ;
Dobie V. Lemon, 12 P. R. 64. But see Brigham v. Smith, 3 Ch.
Cham. 313.
The fraudulent concealment by the defendant of the plaintiff's right of
action doen not prevent the statute running : Imperial Gas Co. v. London
Gas Co., 10 Ex. 39. But if the cause of action be one over which the
Court of Chancery would have had concurrent jurisdiction the fraudulent
concealment of the cause of action would prevent the statute from run-
ning : Gibbs v. Guild, 8 Q. B. D. 296 ; 9 Q. B. D. 59. If a cause of action
accrues after the death of a creditor, the statute only commences to run
on the appointment of an executor or administrator : Grant v. McDonald,
8 Gr. 468 ; Atkinson v. Third Equitable Benefit, etc.. Society, 25 Q. B. D.
377 ; Stevenson v. Hodder, 15 Gr. 570 ; and interest is recoverable for
the whole period from the time the cause of action arose : lb.
If the statute commences to run subsequent disability does not stop
it : Rhodes v. Smethurst. 6 M. & W. 351.
In an action for fraudulent misrepresentation it begins to run from
the time of the misrepresentation, not from its discovery : Dickson v..
Jarvis, 5 O. S. 694 ; but see Gibbs v. Guild, supra.
All actions of account, or for not accounting, or for such accounts as
concern the trade of merchandise between merchant and merchant, their
factors and servants, shall be commenced within six years after the cause
of action arose.
Actions for rent npon an indenture of demise, actions upon a bond or
other specialty, or npon a recognizanoe must be commenced within 20
years.
I
''W^
WHEN ACTION BARRED BY STATUTE.
181
does not stop
Actions upon an award, when the submission is not by specialty, for
an escape, for money levied on execution, within six years. Actions for
penalty, damages or sums of money given to the party aggrieved by -
any statute, within two years : see K. S. O. c. 60.
Actions for rent, which term is made to include all annuities and
periodical sums of money charged upon or payable out of any land, and
actions for the recovery of land or rent, within 10 years : see R. S. O.,
c. 111.
The time is reckoned exclusively of the day on which the cause of
action arose : Freeman v. Read, 4 B. & S. 183. For the purposes of the
statute the date of the summons cannot be contradicted; Whipple v.
Manley, 1 M. & W. 432.
A solicitor's bill of costs for services rendered in obtaining judgment
ft, ' his client will be barred after six years from the entry of judgment :
Lizars v. Dawson, 32 U. C. R. 237.
Where the mortgagor is in possession, a mortgage may be presumed
satisfied after twenty years from the time fixed for payment of the
mortgage money : Doe d. McGregor v. Hawke, 5 O. S. 496.
A cause of action on a covenant to indemnify only accrues on pay-
ment under the indemnity and not when made: Ives v. Ives, T. T. 3 & 4
Vic; Collinge v. Heywood, 9 A. & E. 633; Blyth v. Fladgate, (1891),
1 Ch. 362. THo oourt has authority to prevent a solicitor pleadmg the
statute to a just claim : Dougall v. Cline, 6 U. C. R. 546.
If a debt for which a judgment in a foreign country was obtained was
barred by the law of that foreign country before action there, the
defendant must shew it : Fowler v. Vail, 27 C. P. 417. The action on
the judgment would be barred in six years : North v. Fisher, 6 O. R. 206.
The statute does not bar the claim of an executor against the estate
of the testator: Emes v. Emes, 11 Gr. 325.
In an action for malicious prosecution the cause of action commences
to run from the plaintiff's acquittal of the offence charged : Crandall v.
Crandali, 30 U. P. 497.
Where an English Companies' Act makes calls for shares a specialty
debt, it does not thereby become a specialty debt of this Province :
Barned's Banking Go. (Ltd.) v. Reynolds, 36 tl. C. R. 256.
An action for conversion must be brought within six years from the
time a cause of action first accrues against the defendant : the fact that
the plaintiff had an earlier cause of action for the same chattel against
another person from whom the defendant obtained it, is of no conse-
quence : Miller v. Dell, (1891), 1 Q. B. 468.
An action on a covenant in a mortgage is only barred after 20 years :
Allan V. McTavish, 2 A. R. 278 ; McDonald v. Elliott, 12 O. R. 98 ; but
see Sutton v, Sutton, 22 Ch. D. 511 ; in re Powers. Lindsell v. Phillips,
30 Ch. D. 291 ; Fearnside v. Flint, 22 Ch. D. 579. Time begins to run
from the earliest time when the plaintiff can sue, so that when principal
becomes due for default in paying interest, the statute commences :
Reeves v. Butcher, (1891), 2 Q. B. 509.
An action on a judgment of a court of record may be brought
within 20 years ; Boice v. O'Loane, 3 A. R. 167 ; see Caspar v. Keachie,
41 U. C. R. 599; Price v. Wade 14 P. R.351. Bnti^ee Evans v. O'Donnell,
18 L. R. Ir. 170 ; Jay v. Johnstone, W. N., (1892), 187.
An infant has six years after attaining his majority to bring an
action for work and labor performed during his minority : Taylor v.
Parnell, 43 U. C R. 239 ; R. S. O. c. 60, s. 3.
Section
128
5!!
i
J
-mi
182
SUHSEQFENT ACKNOWLEDGMENT.
tliiii
liiH
li
Sectloa "Wliere a limitation as to time is specially placed in a statute on the
128 briiif,'ini,' of an action, it snpertiedes any <,'encral limitation: Cairns v.
Water Commissioners of Ottawa, '2o C. P. 5'")]; Trotter v. Corp. of Toronto,
2!» C. l\ iU\r> ; Atty. Genl v. Walker, ii A. 11. litr, ; Sullivan v. Corp. of
liarrie, 15 U. C K. 12 ; Watson v. Lindsay, 27 Gr. 2.5;{.
A bill of exclian<;e fell due on 1st Dec, 1875, and an action com-
menced tlui'eon on 1st Dec, IrtHl, was lield in time: Edgar /. McGee,
1 O. It. 2X7.
In order to keep a (daim alive in the Division Court, proceedin;.^s must
be taken under Kule 1*27 : see also Manby v. Manby, 3 Cli. D. 101.
A scittlement of partnership accounts cannot be opened up after six
years : Cotton v. Mitelull, H O. I\. J2l. ]5ut where there is a discontinu-
ance of the partnershiji without any dissolution or winding up the alYairs,
six years forms a bar to an action to dissolve the partnership and take
the accounts: Knox v. Gye, L. l\. 5 II. L. (i'll) ; Noyes v. Crawley,
10 Ch. D. 31, where Miller v. ]\Iiller, L. li. 8 Eq. 4'.)'), is held to be over-
ruled.
l'a\ ment of interest on a demand note is evidence of a demand from
which time the statute would run : Drown v. llutlierford, 11 Ch. D. 0X7.
A person entitled to letters of administration of a deceased in ly bring
an action bi'fure obtaining such letters and prevent the Ht;\,tute of Limi-
tations from beluga bar: Trice v. llobins(ni, Ki O. li. llJIi; Chard v.
Kae, JM O. K. ;571.
The statute is not a bar to a setoff unless the six years have expired
before the action is bi'ought : In re ihillard. Lovell v. Forester, W. N.,
(18!)()), VA.
In an action against a solicitor for negligence, — Ilrhl. that the right
of action arose when the negligent act was committed and not when it
was discovered bv tlio client: Wood v. Jones, (Jl L. T. N. K o.ll ;
Armstrong v. MiUiurn, 54 L. T. N. S. 728: Doobv v. Watson, li'.) Ch. D.
178; Dlyth v. Fladgitc, (IS'.ll), 1 Ch. .8')2. ]$ut \vlien damage is the gist
of the action, the time runs from the accrual of such damage : J5ean v.
Wade, IC. <V E. 51',).
What acknowledgment sufficient. — To take a case out of the statute
by a subsequent promis-e to pay, slight evidence is sutlicient, but this
recognition of liabdity must be nncquivoc:il, or the pi'omise nuist b3
unconditional, or the condition performed : Carpenter v. Vanderliji. \\. T.
3 Vic. ; Spalding v. Parker, 3 U. C. R. (il! ; Gratiuim v. Powell, (1 U. C. R.
4iM ; iMyei-hoff v. Froelich, 3 C. P. D. 333 ; 4 C. P. D. (vi ; Cowing v.
Vincent, 2'.) II. C. R. 427; Smith v. Durn, iiO C. P. (;:iO; Cameron v.
Campbell, 7 A. R. 3(;i ; Cook v. Grant, 32 C. P. 511 ; Iti' Ross, 2'.» Gr. 3S5 ;
J{e Kirkpatru k. Kirk[)atrick v. Stevenson, 3 O. R. 301. " The leuial elfect
of such an acknowledgment is that of a promise to pay the old debt, and
<'jr this purpose the old debt is a consideration in law. In that sense and
for that purpose it nniy be saiil to be revived. It is revived as a con-
sideration for a new promise, lii.t the new promise and not the old
debt is the measure of the creditor's right. If a debtor simply acknow-
ledges an old debt, the law implies from that simple acknowledgment a
promise to pay it. Dut if the debtor promises lo pay the old delit when
lie is able, or by instalments, or in two years, or out of a particular fund,
the creditor can (daun nothing more than the promise gives him:" jwr
Wigrain, V.-C, Philips v. Philips, 3 Hare, 281, 2!>9, 300. This, in effect,
is the law as stated in Tanner v. Smart, G li. & C. 003, overrnlinu' many
previous cases, and which has been followed in Buckmastcr v. Russell,
10 C. B. N. S 745 ; Chaseraore v. Turner, L. K. 10 Q. li. 500 ; and oth r
cases cited infra.
WHAT ACKXOWLEDfiMEXTS SUFFICIENT,
183
In order to take a case out of the statute, the promise must now be in
writing : K. S. O. c. 128.
An account stated by an executor of a debt due by his testator, which
had never, before such accounting, been ascertained or determined, was
held suflicient to cliarge the executor as for a substantive debt, witliout
any express promise to pay : Watkins v. Washburn, "2 U. C. 1\. 2'.)1.
The following' have been lield to be cases of sufficient acknowledg-
ment under the statute: Depositions in anollier action: llobhn v. AIc-
IMahon, IS (). R. 21il ; >niith v. l^o.ile, 12 Him. 17. A letter from
the defendant in whicli he said, ''I am of tiie opinion tliat it will
bs impossible for me to pay you anything until my son's estate is
wound up, which will not be bef(n-e the last of March or the beginning
of April ;" there being evidence also that the son's estate had been
wound u)): l{ol)lin v. T^IclNIalion, IS O. K. 21i). An acknowledgment
made and signed in the testimony of defendant on Ills examination
in a re tahi actinn for tlie administration of liis son's estate in whicli
he admitted the receipt of tlie money and Ids liability to tlio testator of
the plaintiff for it: lb. Promising to have the amount placed to plain-
tiff's credit : -lones v. Brown, It C. P. 201. A letter written in following
words: " I will try to pay yon a little at a time if you will let me. I am
sure that I am anxious to get out of your debt. I will endeavor to send
you a little next week:" Lee v. Wilmot, L. K. 1 llx. 3(il. Also the
iollowir ' l<:tter : "I shall bo oliliged to you to send in your acuoimt
made up to Xmas last. I shall havo much work to be done this s[)ring,
but eaiiiiot give further orders until this ha lione." Again : " You have
not answered my note. I again beg of you to send in yotu' account, as 1
p.iiticularly reijuire it in the course of this week: tt)uincey v. Sliaipe,
1 Kx. 1). 72. " I retiu'n to Hheppertijn about Jjaster. If you send me
tlu se particulars of your account with vouchers I shall have it examined
and clieijue sent to you for the amount due ; but you must be under some
great mistake in su[ipo^ing that the amoinit due to you is anything like
the sum you now claim : " Kkeet v. Liiuls ly, 2 K.\. I>. ;J14 ; also, " The old
account between us which has been staii ling over so long has not escaped
our memory, and as son as we can got our affairs arranged wo will see
you are paid ; perhaps in the meantime yon will let your clerk send in
an account of how it stands:'' Chasemore v. Turner, L. K. 10 Q. B. oOO.
Such expressions in a letter as " You will certainly l)e paid ;" " \Vait
a little and all will be right;" tiniount to a promise though the letter
may also explain the source from which the writer e.xjiects to obtain
funds : CoUis v. Stack, 1 H. & N. 005.
It has been held that a letter with a reijuest "to send in youi"
account" is sufficient: ("urwen v. ]Milburn, 42 Ch. 1) 424, affirmed on
another ground in the Court of Appeal; .sc' also Banner v. Berridge,
IS Ch. D, '2')k: even though coupled witii a denial of tiie correctness of
the amount: Skeot v. Lindsay, 2 Ex. D. ;514: nee, however, Hpong v.
Wright, 11 M. & W. (>29. And a general admission of some debt being
due, conjiled with evidenc to prove the amount, is sufficient: Chcslyn
v. Dalby, 4 Y. X- C. 2:iS; Waller v. Lucy, 1 :\L iV- Cr. j>4.
It has been said that stronger worils would he required to establish a
debt already barred than to keep one alive wliioh has not been barred :
per Pollock,' C.B., Cornforth v. Smithard, u li. A N. U.
A settlement and statement of accounts appear to create a new
cause of action : House v. House, 24 C. P. r)2(').
And an acknowledgment of the debt raises an implied promise lo^
pay : Lyon v. Tiffany, 1(5 C. P. 11(7.
A letter written by defendant to plaintiff as follows : " The groat
kindness of your father on every occaBion,and more especially the money
Section
128
J
>
ii
£
9
TBSBBmm
184
INSUFFICIENT ACKNOWLEDGMENTS.
'wnWi;
im0
im
Seetlon that he loaned me to purchase my seat on the New York Stock Exchange,
12 place me now in your debt. ... I must now leave it entirely to your
fjenerosity whether you will have me liquidate the loan I have mentioned
on the sale of my seat in New York," was held sufficient, the writer
having sold his seat : Buccleugh (Duke) v. Eden, CI L. T. N. S. 300.
What acknowledgment not suffioient.— The promise must not be
uncertain : Dougall v. Cline, G U. C. R. 5i6.
An admission by an executor that a note barred by the statute is due,
coupled with a statement that it could not be paid for want of assets,
and that if there wore assets it should be paid, is a conditional promise
merely, and not sufficient : Lampman v. Davis, 1 U. C. R. 17'J ; see also
McCormack v. Berzey, 1 U. C. R. 388.
Formerly the latter items of a running account drew the others with
them so as to defeat tlie operation of the statute : Kings College v.
McDougall, 5 U. C. R. 148. But it is not so now : R. S. O. c. «)0, s. 2.
And a promise to pay by one of several joint and several makers of a
note would formerly take the case out of the statute : Sifton v. Mc-abe,
6 U. 0. R. 3!)1; butnotniw: R. S. O. c. 123, s. 2 ; Wolmershausen v.
Wolmershausen, G2 L. T. N. S. 541.
The following are given as instances of letters which were held not to
imply a promise to pay so as to overcome the effects of the statute :
" I i-eceived your letter dated .January 31. 1 am sorry to say I cannot
<do anything for you at present, but shall remember you as soon as possi-
ble: " Garamell v. Colton, 6 C. P. 57.
" I thank you for your kind intentions to give up the rent of T. B.
next Christmas, but I am happy to say at that time both principal and
interest will have been paid in full : " Green v. Humphreys, 2ti Ch. D.
474.
" I cannot afford to pay my new debts, much less my old. ones : "
Knott v. Farren, 4 D. & Ry. 179. " I will see my attorney, and tell
him to do what is right : " Miller v. Caldwell, 3 D. A Ry. 267. " I
know that I owe the money but the bill I gave was on a 3(<. receipt
stamp, and I will never pay it : " A'Court v. Cross, 3 Bing. 329. " Since
tlie receipt of your letter (and indeed for some time previously) I have
been in almost daily expectation of being enabled to give a satisfactory
reply to your application respecting the demand of Messrs. M. against
me. I propose being in Oxford to-morrow, when I will call upon you on
the matter : " Morrell v. Frith, 3 M. & W. 402. " Send me your bill, and,
if iuMt, I will not give you the trouble of going to law:" Spong v.
"Wright 9 M. & W. 629. " I w 11 send you a cheque as soon as I can :"
Jie iieiliell. Bothell v. Bethell, 34 Ch. D. 561 ; nee also Jupj) v. Powell, 1
C. & E. 349, affirmed by C. A. See, however, Quincey v. Sharpe, 1 Ex.
D. 72 ; and Skeet v. Lindsay, 2 Ex. D. 314, ante p. 183.
The writing must import a distinct and unqualified acknowledgment
of a debt, from which a promise may be inferred by the court : Fern v.
Lewis, 6 Bing. 349 ; Williams v. Griffiths, 3 Ex. 335 ; Green v. Humphreys,
26 Ch. D. 474.
An acknowledgment coupled with the statement that the debt is paid
or discharged must be taken together and is not sufficient, as, for instance,
a statement that, " I have paid the debt and will send you a copy of the
receipt:" the copy not being sent, was held insufficient: Birk v. Guy, 4
Esp. 184. And so where the acknowledgment relied on was " You owe
me more money ; I have a set-off against it : " Swann v. Sowell, 2 B. & A.
759 ; and " I acknowledge the receipt of the money, but the testatrix gave
it me:" Owen v. Wolley, B. N. P. 148.
PART PAYMENT.
183
i f
And a letter in which defendant said : ♦' I have sent you a note for the
money due to you, which your mother has left for you,' and enclosed a
promissory note, was held not sufficient without the note, and that not
being properly stamped, could not be looked at : Parmiter v. Parmiter,
2 D. F. & J. 52().
Where the language of the acknowledgment is ambiguous or doubt-
ful it is a question for the court and not the jury to determine whether the
instrument relied on is sufficient or not; but if extrinsic facts are
adduced in explanation, these facts are for the consideration of the jury :
Morrell v. Frith, 3 M. & W. 402 ; Routledge v. Ramsay, 8 A. & E. 221 ;
Smith V. Thome, 18 Q. B. 134. But formerly it was held to be a question
of fact for the jury: Lloyd v. Maund, 2 T. R, 7G0; Linsell v, Bonsor,
2N. C. 241.
The acknowledgment must be made before the action is brought :
Bateman v. Pinder, 3 Q. B. 574.
An agreement to refer disputed accounts to an arbitrator, " to ascer-
tain the amount due " the amounts to be paid "at such times and in
such pi'oportions as the arbitrator may appoint" is not sufficient : Hales
-v. Stevenson, 11 W. R. 33, 952.
A promise given by one of several parties to pay his share of the debts
of the firm who offered as a composition one-third of the debt (there
liaving been three members of the firm) is not sufficient to charge him in
an action against the firm : Barnes v. Metcalf, 17 U. C. R. 388.
Mere physical weakness, however great, without proof of mental in-
capacity, is not sufficient to render invalid an acknowledgment of debt:
Enies V. I'^mes, 11 Gr. 325.
Where a debt, the remedy for which was barred, was acknowledged
by the debtor and judgment was recovered therefor, a voluntary settlement
made before the acknowledgment and before the remedy was barred,
was held void as against an execution on the judgment : Irwin v. Free-
man, 11 Gr. 405.
A letter written " without prejudice " cannot be used to take a case
out of the Statute of Limitations, unless the plaintiff accedes to its terms :
In re River Steamer Co., Mitchell's Claim, L. R. fi Ch. 822; Vardon v.
Vai-dou t; O. R. 719 ; Omnium Sec. Co. v. Richardson, 7 O. R. 182 ; Pirie
V. Wyld, 11 O. R. 422 ; Walker v. Wilsher, 23 Q. B. D. 335.
Acknowledgment — to whom made. — An acknowledgment of a debt,
not being a debt by specialty, to be sufficient under the Statute of Limi-
tations must be made to the creditor or his agent. A general acknow-
ledgment to a third person will not be sufficient : Goodman v. Boyes, 17
A. H. 528; Tanner v. Smart, 6 B. & C. G03; Rogers v. Quinn, 2(j
L. R. Jr. 136.
Acknowledgment by part payment. — A payment to take a case out
of the statute must be clear and distinct : Notman v. Crooks, 10 U. C. R.
105. Payments should, in the absence of specific directions by the
creditor, be applied on the earlier items of an account, not barred at the
time of payment, but before suit had subsequently become so : Cathcart
v. Haggart, 37 U. C. R. 47.
The payment must be made on account of the debt sued for : Morgan
V. Rowlands, L. R. 7 Q. B. 493, and cases cited.
Payment of interest revives the principal : Wilson v. Rykert, 14
O. R. 188; and a compulsory payment of interest does not save the
statute: lb. The payment must be such as to warrant the jury in
inferring an inten aon to pay the rest : Boultbee v. Burke, 9 O. R. 80 ;
and if the defendant on making a part payment should say that, " he
■owes the money, but will not pay it," it will not be sufficient unless the
Section
128
J;,
186
EFFECT OF PAUT PAVMEXT.
^
II
Section jnrv think tlio words were spoken in jest: Wainman v. Kynman,
3 '^8 i Ex. IIH.
rayiiu'iit to iin nHHif.!nee, after afisi),'nmpnt, cannot bo used as an
ackiK)wle;lt,'nient by theassif^neo: Stamford, Spalding A Boston Jianking
Co.v. Sniitii.iU W. 11. 48.
If there ai'o two debts and a payment is made j^onerally, it is for the
Jn(l;,'e, or if a jury, for then) to siiy whollusr or not tliore is a payment
on each of them : Walker V. BntU'r, (IE. A- B. oOd ; or thev may be
appropriated to the whole indebtedness : Cathcart v. llaguart, 37
U. C. H. 47 ; Stewart v. Ga^'c, l;{ (). U. 458.
The creditor cannot, without the "debtor's knowledj^o or assent,
appropriate a ))aynient to any particular debt to take it out of the
statute ; but it OM'4ht //c/wa larie to be taken as paid on the del)t not
barred : Nash v. llodf,<son, '2") L. J. Ch. iHll ; (1 DeG. M. iV G. 471, 4S2.
The following' have been held not to be such payments as are required
to taki> the debt out of the statute : Payment of a dividend by an a'--.sii,Mioe
under the Insolvent Ai't: Davies v. JOdwa)'ds, 7 lOx. 22; nor payment by
the nispeetors of tlu; debtors' inspectorship deed : K.r /nirli- Ti'iipin;,',
iii L. J. l!ky. 41; nor payment imiler a jud.Ltment in a defended (Jaunty
Court action : ]Mori.'an v. liowlands, E. 1\. 7 i). B. 4',t;{. Th(> piiymentmay
be made by bii^or nf)to : Turney v. Dodwell, iJ J"]. & \i. I'M); and it oper-
ates from the drliverv and not from the falling' due of the bill : Irvin;,' v.
Veitch, 3 'M. <V; W. !l().
It is not necessary that money should pass if the transaction amounts
to iiavnieot: i\laber v. ;\Iabtir, L. R. 2 I'lx. lii;i ; House v. House, 24
C. P. .'>2ij ; .st'c Amoj v. Smith, 1 H. iV C. 2:is.
If a pwyment of part is made as the whole amount due, it does not
take the rest of the claim out of the statute: W'aULth v. Cope, (i i\E iV \V.
K24.
A i)ayment on u, collateral security would be sufficient : Slater v.
I\Ios>^rove, 21) Gr. 3",I2.
A payment made by a third person on account of the debtor to the
creditiir cannot be appropriated by the latter so as to bar the statute:
Waller v. Eac'v, I I\l. iV (i .■»4. Part jjayinent can be jjroved by the oral
admission of th(; (lefeiulant : Cleave v. .Jones, (J Ex. ")73 ; but xiw S. C 7
Ex. 421 ; or by his ploadin.ijs in Chancery : Baildon v. Walton, 1 IjX. til7.
Payment of interest by a devisee for life, on a simple contract tlel)t of
his testator is sutiicient to keep tlie debt alive ai^ainst all persons entitled
inremainder: 7i'c Ifollini^'shead. Ilollin^shoad v. Web-stur, ;i7 (Jl>. D. li-')!.
Payment of interest by a ))rineipal will ]n'event the bar applyin;^ to
the lial)ility of a surety : Allison v. Erisby,4;j CIi D. lOii ; but ne<: Paxton
v. Smith, 18 O. U. 178, in which the principal and surety were joint
makers of a note.
While a payment is made by one of two joint debtors, with the know-
ledj/e and consent of the other, tiie op^-ration of th.i statute in favour of
the latter is not prevented: Jackson v. Woolley, 8 E.ife B. 7H3.
Where the defendant authorized an a<,'ent to offer plaintiff a part of
the debt in di^char^^e of the irlnile and the aj^ent exceoded his autiiority
and paid ihe sum offered in part discharf^e, it was held that it did not
bar tiic statute : Linsell v. Bonsor, 2 N C. 241. But. generally, payment
. by an authorized agent is payment by the principal, and the authority
is a question for the jury : lloscoe's N. P. 053.
In order to render the crediting of an account against the plaintiff
evidence of payment by him of so much on an account due to the plain-
tiff so as to take the case out of the statute, it must appear that the
EVIDKXCK OF SET-OFF. 1(S7
(lofciulant doailv assented to its boiiij^ considered a payment : Ball s'. Sections
Parker, :{l» II. C.'U ISS; 1 A. H. r,'Xi. 128-130
An executor may, in his diKeretion, pay a deht barred by tlie Statute
of LiinitationH: Ijowis v. Knninoy, Ij. li. i E(i. 451. He may waive tho
statute: Alston v. Trollop.", L. 11. 2 Eij. '2()'>.
Wbere )>art of plaiMtilfs own ileniands stated in bis ])artienlars are
barred by the stacnte, be has a ri^lit to place a'^ainst these the ifetns of
credit ;ip[)earinj^ in his particulars to be beyond six years: Ford v.
SpalTord, 8 U. ('. U. 17.
A debtor unable to pay liis debts from his own money, paid within
three months of his heini^ adjnd<4eil a bankrupt part of a debt barred by
the Statute of Limitations, with lla; object of reuewiuj^ the debt and
enal)linL! the ci'editor to |)rove in tho biiiikriiptcy for tlie balance due.
T'he debt hud alwitys been troat(Ml by tlie debtor and the creditor as a
snbsistinj,' debt, and one which it was intended should be ullijnately
paid. //('/(/, that there was a aut'liciont jiart jiayment to take the debt
out of the statute : //( re Lane, r.v juirli- Ua>ie, 2'.) Q JJ. D. 71.
Trustees. —Tlic Statutes of Linntation njiply now to any executors,
administrators and trustees, except. (1) where the claim is founded upon
any fraud or fraudulent breach of trust to which i\o was jiarty or privy ;
(2) where the claim is to recover trust property, or the proeei'ds
thereof, still retaineii by him or previously received by liim and eon-
vei'ted to his u.-!e : '< \ V. c. lit, s. i;{.
Wliere no existinj^ Statute; of Iiimitatiom a]ipties, the trustee or
person ciaimin^ under him, is at lilierty to plead tho lapse of time as a
liar in like nuinner, and to the like extent, its if the claim bad been in an
action of debt for money had and received : Ih. See this provision aiiplied :
Jle liowdeii. Aiuh'ew v. Cooper, 45 Ch. 1). 444. lie Swain. Swain v.
13riii«emaii, (bs'.H), ;} (Jli. 2Xi.
An innocent ])artiier in a solicitor's firm may avail himself of this
section in an action as to tlie investment of client's moneys: Moore v.
KuiKht, (If^iill), 1 Ch.547.
Ivxcejit where; this statute is api)licab]e, no claim of a cestui que trust
ajiaiust iiis trustees for any proi)erty held on an ex])ress trust cu" in
respect of anv breach of such trust, is barred by anv Statute of Ijimila-
tious: R. S. '(). c. 44, s. 5;i, s-s. 1. See Cook v. tiraiit, M C. 1'. 511 ;
Coyne, v. I5roddy, 15 A. 11. 15"). And a claim against an a^,'ent of a
trustee for monev received by him with notice of the trust would not
be l>arrod : lie 15ell. Lake v. liell, ;(4 Ch. D. 4(;2.
Statutory defence. — The defence to an action on a solicitor's bill of
costs, that no signed bill delivered, is a statutory' defence, and notico
must be «iven : liano v. Glennv. 7 A i& K. KiJ ; llobinsjii v. Koland,
<i Dowl, '271 ; 7 U. C. L. J. 135 ; II. S. O. c. 147, s. 31 ; Scane v. Uuckett,
3 O. 1!. :i?l).
liiO. No evidence of sct-otF shall be o'iveii by the r.videncc-
(lefeiultmt except such as is contained in the particulars of '
set-ofF delivered. II. S. 0. 1877, c. 47, s. 93.
Evidence of set-off.— The Judge has, of course, the power to allow
an amendment of tiic particulars : sec llnle 140 and section 118.
V
HlOUS
130. If the set-ofi; proved to the satisfaction of the ff^^/t-oi?
Judge, exceeds the amount shewn to be due to the plaintiff, amount
the plaintiti' shall be non-suited or the defendant may elect piaiudtf.
18S
SUHPfENAS.
i
t .
Seotiona to luivc jiid^rinent iov the excess, provided the excess be
an amount within the jurisdiction ^i" the court, and if the
excess ho ijreater in amount tlian the jurisdiction of the
court the Jud^e may adjudicate that an amount of tlie set-
off ecjual to the amount shewn to be due to the phiintitt'be
satisfied by the claim but tlie adjudication shall be no bar
to the recovery l)y the defendant in a sul)se(iuent action for
the residue of the set-off. 43 V. c. 8, s. 55.
The court would be compolled, under this section, to determine the
question of tiio plaintiff's liability on tlio set-off to an amount beyond the
jurisdiction, if necessary. The section was passed to get over the diffi-
culty created by the case of re Mead v. Creary, H2 C. P. 1. Section 74
would seem to apply the same rule to counter-claims. Where a cross-
claim by the defendant is really a setoff, though called a counter-claim,
the defendant is not entitled to costs as of a counter-claim, but only to
the costs as of defence, viz : of the extra expense of trying the issues upon
which he succeeds, if he does not succeed in extinRuisliing plaintiff's
claim in 'nil : Cutler v. Morse, 12 P. It. r>!»4 ; Bennett v. White. i:j P. 11.
1 10 ; Sanderson v Ashfield, IM P. R 230 ; Myers v. Defries, 1 Kx. D.
180; Stooko V, Taylor, 5 Q. B. D. 60'J; Abbott v. Andrews, 8 Q. B. D.
048.
WITNESSES AND EVIDENCE.
Suhpd'ncff*.
Parties 1*il. Any of the parties to an action ma\' obtain, from
may obtain,, , i ,. ' in- • • /^ i^ • n l i
subixeniis tlic clcrk ot auv JJivisKm Court in the county, a suuprena
from cleik . • , i o ^ i • p\ ^
With or witliout a clause tor tiie production or bix^ks, paj^ei's
and writings, retjuiring any witness, resident witlii" 1"
Province or served with the subpcpiia therein, to att it
a specified court or place before the Judge, or any ai tra-
tor appointed by him under the provision hereinafter con-
tained, and the clerk, when requested by any party to an
action, or his agent, shall give copies of such aubpcena.
R S. O. 1877, c. 47, s. 05 ; 40 V. c. 15, s. 9.
May obtain. — Formerly it was necessary to issue a subpoeua from the
High Court of Justice in any Division Court suit where the party pro-
posed to be subpoenaed resided outside the county. But it is not so now.
It will be observed that a subpoena need not be issued from the office in
whioh the suit is entered, but may be obtained from the clerk of any
Division Court in the county in which the action is brought.
A subpoena. — For form of subpoena, see Form No. 38.
A party who desires witnesses to attend at the sittings should sub-
poena them. The duty of attending is created by the service, and by that
means only. Formerly a witness, even if found in court, might refuse
ISSUE AND SERVICE OF SUHP(KNA.
18J)
to be sworn unlesH Huhpocnaed : Bowles v. Johnson, 1 W. Bl. 8fi ; but
under section 188, every person in court must ^ivo evidence if called upon.
It seems that any witness is now entitled to be paid for his expenses and
loss of time before giving evidence : In re Working Men's Mut. Society,
'21 Ch. D. 831.
It is very questionable whether or not the writ can be issued in blank :
Barber v. Wood, 2 M. A Kob. 172.
The subpoena must name the place of trial : Milson v. Day, 8 M. A P.
338 ; and the parties to the cause : Doc d. Clarke v. Thomson, 9 Dowl. U48.
If notice of chanf{e of place is posted up at the place designated in
subpcoiia, witness is bound to attend at the other place : Chapman v.
Davis, 1 Dowl. N. S. 239.
It extends to the whole sittings if more days than one : Bcholes v.
Hilton, 10 M. & W. 15.
The names of all witnesses should be inserted in the original : Mul-
lett v. Hunt, 1 C. A M. 762 ; and any number may be inserted in it :
section 132.
A witness ordinarily resident in a foreign country may bo served here
with a subp(jena,and is liable for non attendance. If the conduct money
paid him is insufficient he must object at the time of the payment:
Comstock V. Harris, 12 P. K. 17.
It need not be personally served but may be left at the " usual place
of abode " of the witness : section 133 — except perhaps for the purpose of
bringing a witness into contempt (as to which nee notes to section 99,
ante), and for that purpose the original should be proved to have been
shewn to the witness : Pitcher v. King, 2 D. & L. 755 ; Blakeley v. Blaase,
12 P. R. 5G5 ; even if an attorney : Bmith v. Truscott, (5 M. & G. 207 :
but in any case if the witness requires to see it a reasonable time after-
wards (ttpe notes to section 117), and is refused, service is defective:
Westley v. Jones, 5 Moore, 162. The copy must in all cases be left with,
and not merely shewn to, the witness : Thorpe v. Gisborne, 11 Moore, 55 ;
In re Holt, W. N. (1879) 48 ; and there must be no mistake in the day ;
Doe (L Clarke v. Thompson, 9 Dowl. 948. Service is not effective without
the necessary witness fees being pafd or tendered : Fuller v. Prentice, 1
H. Bl. 49. The fees include expenses of going to, staying at, and return-
ing from the trial : lb. ; Newton v. Harland, 1 M. <& G. 956 ; also see
Tariff of Witness Fees. If the attendance of the witness becomes
unnecessary by settlement of the case or otherwise, and he is informed
of it before expenses incurred, the sum may be recovered back: Martin
v. Andrews, 7 E. <& B. 1. The fees are fixed by tariff, and no distinction
can properly be made in Division Courts in amount as to any class of
witnesses, except under section 134. If a larger sum than what a witness
is en' 'tied to is bona fide demanded, he will not be brought into contempt :
New. on V. Harland, supra. If a party refuse money tendered him, say-
ing he will pay his own expenses, he is subject to the same consequences
as if paid : Gough or Goff v. Miller or Mills, 2 D. & L. 23. The fee need
not be tendered to the witness at the time of service ; a reasonable time
before the sittings is sufficient : Webb v. Page, 1 C. <& K. 23. Where a
wit • 88 bad been brought to the place of trial by one party, the other,
finu iig him there, subpoenaed him, it was held that without tender of
expenses he could do so : Edmonds v. Pearson, 3 C. <& P. 113 ; and that
the witness could not refuse to be cross-examined on that account : lb.
In a later case, however, it was held that the party calling him was
bound to pay all his expenses : Allen v. Yoxall, 1 G. & E. 815. Service
must be made a reasonable time before the trial : Barber v. Wood, 2 M.
& Rob. 172. What is reasonable mast depend on the circnmstances of
each case: Maunsell v. Ainswor^h, 8 Dowl. 869; and is in all cases
Beotion
131
d
00
100
nUVILEGE OF WITNESS FROM ARREST.
Section a question for the court : Barber v. Wood, supra. If notice is given wit-
131 iiess that cause not yet tried, he is bound to attend, tliough after the day
" mentioned in subpania : J)avis v. Lovell, 4 M. * \V. 078 ; but see Gran-
tham V. Bishop, 1 C. P. '2;}7 ; tliouijli not suHicient to brinj^ him into
contempt : Alexander v. Dixon, i Bini^. UfKi. Survico m:iy bu made any
liour of the day or nif^ht, but not on Sunday: 11. v. Leominster, 2
B. A- S. H',11, and cases cited. If the witness be a married woman, tiie
money shoidd be tendered iiei', and not iier husband : Arch. Tiao. I'itli
Ed. Ijhl. A witness may also maiiiLain an action for his fees against the
party wlio sub[)'i'naed him, tliouj^'i he refuses to ;,'ivo evidence because
such fees are not paid him. and he was tlioreupon not examined : Hallet
V. INIears, ]:J l^ast, l-') ; Pell v. J)aub;'ny, 5 Ex. it);). Tiie solicitor is
not responsible uidess he a^'reed to be : B.obins v. '.^ridi^e, ."{ M. A W. 11-4.
A witness should be servetl a reasonable time to allow him to put liis
alfairs in order: ilamniond v. Stewart, 1 Htr. "tlO; but uri^nifc domestic
business is no excuse: Gon^'li ordolf v. "Nfiller oi Mills, 2 I), it L. 21).
A sumin )us may 1)j s.^'VihI in a court of justice on n party subpirnied to
.Ljive evidence in his own cause: Poole v. (lould, 1 II. \- N. '.)'.). Ditiiculty
in serving; does not disp-Mi-te with the necessity of service: Barnes v.
Williams, 1 J)owl. (il-). If witness |iaid by both parties, neither can
recover it back : Crompton v. llntton, ti 'J'aunt. 2;50. A party to a cause,
ahoHt to attmiil the trial on his own account, Inis no rii^lit to con luot
money or expenses wlien sul)i)'i-Miaed by theoi'ier side: Reed v. I'airless,
."i l'\ iV: V. ',)JS. .\ ])arty to a cause is not entitled to his fees as a witness
unless he expressly attended to ^'ive eviilence on his own belialf, and nni
to suiioriiiteud the cause: Howes v. Barb'r, IS Q. J5. .ISS. and t'le aflidivit
of disbursements sIiduKI distinctly sliow tliat fact. It is not a t^eneral
rule in Ihit^'laml that parties, if witnesses, are to have an allowance for
their attendance on their own behalf: Dowdell v. Australian Royal Mail
Hteam Nav. ('o., i{ !•]. it li. ItOJ. A witness should b;i called e i\is sub-
pccna: II. v. Stretch, it A. it V). "iO.! ; Dixon v. Li;e. i! Dowl. 1;,>'.I. But if
it can b; shewn he (Ud iDt attend it is sulh, dent : Golf v MdU, 2 i). .t L.
2;5. It is a sutticieiit excvise tliat he was too ill to a'.teud : Jauobs, la re,
1 II.it W. 1-':!; Sclinlosv. Hilton, 10 .\1. it W. l-'i ; but it Is no excuse
that he woidd have b.-en in time if a pr^'vious c luse on the list hiid not
imexpect;;dly jj;ono oil ; U. v. l''(.'nn, U Dowl. old ; and that anotlur pi'rson
liad answered for him and wouM have fetched him in a few minutes.
Before proceedinj^s for contempt can be taken, it must ajipeai- that he
was a material witness : Tiulev v. Porter, 2 IM. it W. S22. 'J'o sustain an
action a,t,'iinst witness, if party canni>t proceed with trial, it is suHicient
without calling' jury or otherwise entering,' on tlie ti'ial: l/imont v. Crook,
(■> M. it W. Cil"). If a witness has received full fees from one side, and.
when served with subpieiui on the otiier, consents to receive a ninninal
fium, he is still liable to the latter if he does not attend: Betteley v.
McLeod, i> Bin<;. N. C. 40"), but actual dama^^'e must bo shewn in any
case: Coulinj^ v. Coxe, C. B. 703 ; Veatman v. Dempsey, ',) G. B. N. S.
881.
No priviletje attaches to telegrams in the possession of a icle;,'raph
company, and when a teletjrapli operator was subpienaed to produce
certain telegrams whicli, upon his examination, he stated had been burnt
in accordance with instructions received from the general manager of the
company it v.'as held that the manager and operator were guilty of .v
contemi)t of court ; /I'c Dwight and Macklam 1') (). li. 14S. Tlie operator
was the pro[)er person to subptcna to i)ro(ince the telegrams, as he hail
control of them and ability to produce them : lb.
Privilege from arrest. — A witness going to or returning fnmi a trial is
privileged from arrest on civil process: Montagu v. Harrison, iJ C B.
N.S. 292; Atty.-Gen. v. Leathersellors Co., 7 Beav. 157; but not from
PRODUCTION OF DOCUMENTS.
191
t not from
an arrest on criminal process : Lord Wellesley's Case, 2 Rus. & Myl. GH9 ;
•or for a contempt of court; /iVFreshton, 11 Q. B. D. ">.".(;.
A warrant for tlie arrest of a witness issued by a justice in default of
• distress for non-payment of rates is civil process, and tiie court, before
whifli the witness is to appear or lias appeared, may order his discharf^e :
Hobern v. Fowler, 9 T. L. K. (i.
Witness in gaol. — A writ of Inihi'tin corpiia may be obtained for the
attendance of a witness who is conlined in prison. The party re(juiring
him will, however, be ordered to pay all expenses : Spellman v. SpcUman,
10 0. L. T. 20.
False aflRdavlt of disbursements.— Where a party lias falsely sworn
tliat witnessi's hav(! been paid, and the same arc; taxed antl paid to him,
lie will be ordered to rofimd the amount : llowick v. Township of
llonmey, 11 C. L. T. 321) ; Hardin-; v. Kraust, 12 C. L. T. 493.
Hostile witness. — A witness, who, in tlie opinion of llie Jndije.jirovcs
adverse, may be coiil radicti-d i\y the evidence ; or, Ijy leave of the .(iid;,'e,
an ini'onsisli nt stitumenl made at other tiniijs may l)e proved, but the
circumstances of snc-ii statement sulliciont to (U!si;;nii,te the |)artioidar
version, nmstbe nu^n'ioned to tlie witness, and he ini.rt be asked whether
or not he made such statement : K. H. O. c. (11, s. 20.
The Jud<,'e may.L,'ive leave to the party producing a witness who proves
ho.-itile, to [lut le'\.ii;i^ and proHsin.i; ()U(';^.tioiis ; 'Jrceuouf^h v. J'^celes,
5 C. 1!. N. S. VHd; xn- Taylor on Jlvi., il'.t?.
J'ut he cannot receive other evidence to prove that the witness is
adverse. His discretion must l)e jiriucip.iily, if not wholly, j^nided by the
witnesses" Ijehaviom- and laii^'ua;^(,' in the witness l)ox ; and his exercise
<ii' the power is absolute and cuinot be reviewed : I.'rice v. Howard, l(i
g. 11 1). (Wl.
'J'h'j oi)posito party mav l)e asked leadin<j questions as a matter of
riuht : Clarke v. Satfe'ry, l!y. .V: M. 12(;.
Production of books, etc. — This is called a iliici's li'ciiiu. A witness
crdletl to ])roduco a document need not be swcu'ii ; nor unless mad(! a wit-
ness in the onUnary v.'ay can he be cross-examineil : L'erry v. Gibson,
] A. (V E. 48; and if sworn by mistake the same rule ajiplies : Rush v.
Smith, 1 C. I\I. iV R. 9 1. It is incumbent on the party to briiii; the
" books, papers, and wntiiij^'s" witii him, and if he does not he is pvliiht
fiicic in default : Aniey v. 1^0111;, 9 JOast, 473. Havin.t; a lien on them was
held no excuse for not produciiiL; them : Thomi)son v. ^losley, 5 C. iV P.
oOl, KCil ([iKcn'; .see l<em)i v. Kin^', 2 Moo. iV Rob. 437; Doe v. Ross,
7 AI. it W. 102; I'.r parte Raine it Layton, L. R. 4 Cli. 215 ; nor can he
shew tiiat the document was not material : Doe v. Kelly, 4 Dowl. 273. If
a witness who is sworn has a document with him in court, he is bound to
produce it, tlKnij^h not served with a siihpiriui (htrcn tcritni : Snel^rove v.
Stevi^ns, Car. it M. ."iOS ; Farley v. (Iraham, 9 U. C. R. 438. A ser-
vant cannot be bronjiht into contempt for not producing books and
papers of his master in his possession, which the master will not allow
iiini to brinj; : Crowther v. Ajipleby, L. R. 9 C. P. 23, and cases cited:
■ti'i' In re Ihnnia Silver .Miniuj,' Co , L. K. 10 Gh. 194. The remarks made
in the previous note have ajiplication here also. As to corroboration of
witness, sfc Findley v. Pedan, 2(1 (L P. 483 ; and recallinj* him, which is
iu the discretion of the Judge: Gleason v. Williams, 27 C. P. 93.
The court will excuse producti<m if the disclosure would subject the
party to a criminal charge or penalty : Whitaker v. Izod, 2 Taunt. 115 ;
Hall V. Gowanlock, 12 P. R. (104 ; but not unless the party from whom
the disclosure is sought, will pledge his oath to the best of his belief that
Section
131
192
PAYMENT OF WITNESS FEES.
Sections the production would tend to criminate him
131-132 5 Ex. D. 108.
Webb V. East,
Service of
subptt'na,
by whom
made.
II
All other documents, relevent to the issue, must be produced, except
such as contain professional communications of a confidential character
for the purpose of obtaining legal advice between counsel, or solicitor and
client, or information obtained by the solicitor, or an agent employed by
him, or by the client on his recommendation, for the purpose of litiga-
tion : Bustros v. White, 1 Q. B. D. 423 ; Anderson v. Bank of B. C.
2 Ch. D. 6G1; McCorquodale v. Bell. 1 C. P. D. i7I : Friend v. Lond
Chat. & Dover Ry. Co., 2 Ex. D. 437 ; Lyell v. Kennedy, 27 Ch. D. 1
Wheeler v. La Marchant, 17 Ch. D. 675 ; Westinghouse v. Midland Ily
Co., 48 L. T. N. S. 462: Betts v. G. T. Ry. Co., 12 P. R. 86, 634
O'Shea v. Wood, (1891), P. 286.
The following have been held to be privileged communications : —
Confidential communications between solicitor and client : Minet v.
Morgan, L. R. 8 Ch. 361. Information obtained by the client for the
purpose of obtaining his solicitor's opinion thereon ; Southwark and
Yauxhall Water Co., v. Quick, 3 Q. B. D. 315. Information voluntarily
given by a third person to the solicitor : Young v. Holloway, 12 P. D.
167. The draft of a witness's evidence which has been prepared by a
solicitor for insertion in counsel's brief : Taylor on Evi., s. 932, n.
The following were held not to bo privileged communications :
The evidence of solicitors as to statements made to them, by a person
in his lifetime, as to his intentions with regard to land made, in the
solicitor's office, in the presence of another person not a solicitor, and
which was not followed by professional employment : Rudd v. Frank,
17 O. R. 758.
A communication made by one of the solicitors in an action to an
arbitrator in the same action : Conmee v. C. P. Ry. Co., 9 C. L. T. 36.
The transcript of a shorthand note of evidence and arguments taken
fts a reference: Rawstone v. Preston Corp., 30 Ch. D. 116.
Or notes of proceedings in open court: NichoUs v. Jones, 2 H. <& M.
688: Robson v. Worswick, 38 Ch. D. 370.
See notes to section 111.
Setting aside subpoena. — A subpoena duces tecum requiring the pro-
duction of irrelevant documents will be set aside as oppressive : Steele
V. Savory, W. N., (1891), 195; 8 T. L. R. 94.
133. Any number of names may be inserted in a
subpoena, and service thereof may be made by any literate
pereon, and proof of the due service thereof, together with
the tender or payment of expenses, may be made by affida-
vit, and proof of service may be received by the Judge,
either orally or by affidavit. R. S. O. 1877, c. 47, s. 96.
Any literate person. — See notes to sections 99 and 111 as to mode of
service and by whom served : and also notes to section 131.
Proof of due lerviee. — As to proof of service see notes to section 99.
Payment of expeniei. — These are regulated by the tariff. The
Division Court tariff prescribes the limit of allowances to all classes of
witnesses resident in the County ; tee Dartnell v. the Sessions of Prescott
and Russell, 26 U. C. B. 430. But architects are entitled when summon-
ed to give evidence in their professional capaoity, or in consequence of
DISOBEYING SUBPCENA.
193
V. East,
oed, except
1 character
•licitor and
iployed by
e of litiga-
t of B. C,
id V. Lond.
7 Ch. D. 1 ;
idland Ily.
R. 86, 634 ;
lions: —
i : Minet v.
lent for the
hwark and
voluntarily
ly, 12 P. D.
spared by a
J2, n.
ons :
by a person
aade, in the
olicitor, and
d V. Frank,
iction to an
L. T. 36.
ments taken
8, 2 H. & M.
ing the pro-
isive: Steele
rted in a
ly literate
ether with
by affida-
bhe Judge,
7, s. 96.
\,s to mode of
L.
) section 99t
tariff. The
I all classes of
IB of Prescott
hen summon-
>nBequence of
professional services rendered, in addition to travelling expenses, to $5 Sections
per day : 53 Vic. c. 41, s. 29 ; R. S. O. c. 152, s. 25. 132-183
By affidavit. — It is submitted that the best proof, and what would be ~
a proper record of the facts, would be by affidavit.
133. Every person served with a copy of a subpoena J?'^^'g*^ij^°*"
either personally or at his usual place of al.ode, and to o"''Pgf "g^^g
whom at the same time a tender of payment of his lawful sworn,
expenses is made, who refuses or neglects without sufficient
cause to obey the subpoena, and also every person in court
called upon to give evidence, who refuses to be sworn (or
affirm where affirmation is by lavv allowed) or to give
evidence, shall pay such line not exceeding !?8 as the Judge
may impose, and shall, by verbal or written order of the
Judge, be, in addition, liable to imprisonment for any time
not exceeding ten days ; and the fine shall be levied and
collected with costs, in the same manner as fines imposed
on jurymen for non-attendance, and the whole or any part
of the fine, in the discretion of the Judge, after deducting
the costs, shall be applicable towards indemnifying the
party injured by such refusal or neglect, and the remainder
thereof shall form part of the consolidated Revenue Fund,
R. S. 0. 1877, c. 47, s. 97.
Usual place of abode. — See notes to sections 81 and 99. The service
need not be personal ; but it is better that it should be so wherever pos-
sible. Personal service is generally necessary when it is sought to charge
the person served, with contempt. See notes to section 131. But neglect
or refusal without just cause to obey the subpoena would be punishable
as this section directs in every case where the requirements of the section
have been complied with, and the person subpoonaed has been tendered
his lawful fees at the time of service or a reasonable time thereafter.
The service should be a reasonable time before the sittings so as to allow
the witness an opportunity of making preparation, either in his business
affairs or otherwise, to attend court. He would not be treated as in
contempt if it appeared that such was not done.
Lawful expenses. — See notes to section 132.
Sufficient cause. — What is sufficient cause must depend on the cir-
cumstances of each particular case : Stroud, 773, 774.
Every person in Court, etc.— Any person in court may be called upon
to give evidence in a case. But if a witness were subpoenaed and was
not paid his witness fees, and he attended notwithstanding, he could not
be called upon to give evidence by the party who had not subpoenaed him,
unless sucii witness fees were first paid : see In re Working Men's Mut.
Socy., 21 Ch. D. 831, cited in note to section 131, ante pp. 188, 189.
To be sworn (or affirm, etc.),— "All witnesses ought to be sworn
according to the peculiar ceremonies of their religion, or, in suob man-
ner as they deem binding on their consciences : " Taylor on Evi. 8th ed.
D.C.A. — 13
-J
194
WITNESSES OUT OF COUNTY.
I«etl<m8 1179 ; and if the oath be dispensed with it can only be by authority of
183-184 an Act of rarliament: Maden Gatenach, 7 H. <& N. 360: Ormichund
V. Barker, 1 Smith's, L. C. 7th. ed. p. 455 : Miller v. Salomons, 7 Ex.
634, 538.
As to form of oaths see Form No. 110, and Rule 134.
In R. V. Pah-Mah-Gay, 20 U. G. R. 195. on a trial for murder, an
Indian witness was offered, and, on his examination by the Judge, it
appeared that he was not a Christian, and had no knowledge of any cere-
mony in use among his tribe binding a person to speak tlie truth. It
appeared, however, that he had a full sense of the obligation to do so, and
that he and his tribe believed in a future state, and in a Supreme Being,
who created all things, and in a future state of rewards or punisliment
according to their conduct in this life ; it was held that his evidence was
admissible.
As to competency of witnesses, see R. S. O. c. 61, ss. 2-11.
As to where afiirmation is by law allowed, and forms of affirmation,
«e«R. S. O. c, 61, 88. 12-15.
Not exceeding ten days. — The tine for contempt under this section is
not to exceed ^8. It may be imposed by verbal or written order. In ad-
dition to the pecuniary penalty, imprisonment may be imposed for a
time not exceeding ten days. The amount of the fine after deducting the
costs may be made applicable towards indemnifying the party injured
by such neglect or refusal.
In the case of In re Pollard, L, R. 2 P.G., 120, it is laid down that, "no
person should be punished for contempt of court, which is a criminal
offence, unless the specific offence charged against him be distinctly
stated, and an opportiiHitij of avstrering it given to him." At page 325 of
Maxwell on Statutes, it is said that, " in giving a judicial power to affect
jirejudicially the rights of person or property, a statute would bo uuder-
stood as silently implying, when it did not expressly provide the con-
dition or qualification, that the power was to be exercised in accordance
with the rule of natural justice, that the person liable to be prejudicially
aficcted should tirs\ 'iave an opportunity of defending himself;" see also
Thorburn v. Barnes, L. R. 2 C. P. 384 ; BuUen v. Moodie, 13 C. P. I*;!),
and £ E. & A. 379 ; NichoUs v. Gumming, 1 S. C. R. 895. As to order
for imposition of fine, and the entry to be made by clerk, see Forms 73
and 74.
Exi^nses 134. Any person served with such subpoena, who is
witness resident in Ontario, but out of the county in which the
■out of ' "^
<ounty. Division Court is situate, shall be entitled to be paid
witness fees and uuleage according to the County Court
tariff. 4f) V. c. 15, s. 10.
Served with such subpoena. — The provisions of this section apply
only when the witness has been ^^ served with such subptena." If he were
not so served he would not be entitled to witness fees and mileage on the
County Court scale. Provision is made by section 138 for the examina-
tion, " of a witneBS|who resides in a remote part of the province, and at a
great distance from the place of trial." That, however, is only permis-
sive and does not affect the right of the successful party to tax witness
fe«B against his opponent, whether the attendance was voluntary or
eompulsory.
A witness resident within the province who attends voluntarily without
Jbeing snbpcenaed will be entitled to bis fees on the Division Court scale
m^
COMMISSIONS TO TAKE EVIDENCE.
195
(
affirmation,
only. Service of a subpoena is only necessary to compel attendance, ^nd SecUoni
•does not affect the right of the witness to his fees nor the right of the party 134-188
who called him, if successfal, and costs allowed, to tax them against his
•opponent : Fox v. Toronto and Nipissing Ry. Co., 7 P. R. 157.
The same rule applies to a party to the cause,
CSoonty Court Tariff. — The allowance to witnesses, according to the
County Court Tariff, is as follows :
To witnesses residing within three miles of the Court
House, per diem 91 00
To witnesses residing over three miles from the Court
House 1 25
Barristers and solicitors, physicians and surgeons, other
than parties to the cause, when called upon to give
evidence in consequence of any professional service
rendered by them, or to give professional opinions,
per diem 4 00
Engineers, surveyors and architects, other than parties
to the cause, wlien called upon to give evidence of
any professional service rendered by them, or to give
evidence depending upon their skill or judgment,
per diem 4 00
If witnesses attend in one case only, they will be entitled
to the full allowimce. If tliey attend in more than
one case, they will be entitled to a proportionate part
in each case only
The travelling expenses of witnesses over three miles
shall be allowed, according to tlie sums reasonably
and actually paid, but in no case shall exceed twenty
cents per mile, one way
Goiiiniissiona to take Ev'uhnce.
I Ji»>. In case tlie plaintiff or defendant in an action in Power to
. ' . . . issue com-
ii Division Court is desirous of having at the trial thereof m'ssions to
. , . . takeevi-
the testimony of a person residing without the limits of the deuce.
Province, the Judge of the County Court of the comity
wherein the action is pending, may, upon the application
of the plaintiff or defendant, and upon hearing the parties,
order the issue of a commission out of and under the
seal of the Division Court to a commissioner to take the
examination of such pei*son. R. S. 0. 1877, c. 47, s. 99 ;
52V.C. 12, s. 13. '
Person residing. — As to meaning of the word " residing," see notes to
section 81.
Application of such plaintiff or defendant. — The application should
be made so soon as some issue is raised which must be tried, if the action
be tried at all: Smith v. Greey, 11 P. R. 38. It should be made a rea-
sonable time after defence put in : Brydges v. Fisher, 4 M. & Sc. 458 ;
and if made for the purpose of delay will be refused : Lloyd v. Key,
3 Dowl. 253 ; Temperance Colonization Socy. v. Evans, 7 C. L. T. 46 ; or
-$';'■'
1^
"1
?*.
196
APPLICATION FOR COMMISSION.
1^
Section the defendant may be ordered to pay money into court : Sparks v. Bar-
136 rett, 5 Scott, 402. Neither party is absolutely entitled to a commission..
— It is a matter of judicial discretion, and ought only to be granted on
reasonable grounds being shewn for its issue. The court must take care,
on the one hand, that it is not granted when it would be oppressive or
unfair to the opposite party, and, on the other hand, that a party has
reasonable facilities for making out his case when, from the circum-
stances, there is a difficulty in the way of witnesses attending the trial :
Coch V. Allcock, 21 Q. B. D. 178. The affidavits should shew what evi-
dence is expected to be obtained from the witness sought to be examined :
Smith V. Greey, 10 P. R. 531 ; (but see Ontario Bank v. Smith,
1 West. L. T. 118: 6 Man. L. R. 60, in which that principle was not
approved of), and that such witness is necessary and material, and why he
cannot appear at the trial : Kidd v. Perry, 14 P. R. 3C4 ; Langen v. Tate,
24 Ch. D. 522 ; Lawson v. Vacuum Brake Co., 27 Ch. D. 137. It is safer
where any injustice to other parties, in the way of delay or expense, or
otherwise, can be provided against, to favour the granting rather than
the refusing of the application ; the main considerations are a full and
fair trial and the saving of expense : Robins v. Empire Ptg. Co., 12
C. L. T. 199 ; 14 P. R. 488. Where a strict cross-examination is neces-
sary, of an interested witness, and it cannot be had according to the
law of the country where the commission is to be executed the court will
refuse the application : lie Boyse. Crofton v. Croften, 20 Ch. D. 760 ;
but if it is desired to impeach the veracity of a witness by general
testimony, this can be done at the trial, and it is no ground for
refusing the application : Nordheiraer v. McKillop, 10 P. R. 246 ;
and the mere fact that the witness fears cross-examination, is no
answer: Oarruthers v. Graham, 9 Dowl. 947; but if the witness
is interested, and the application is made solely to avoid cross-exam-
ination at the trial, the application will be refused : Berdan v. Greenwood,
20 Ch. D. 704 (mte); Armour v. Walker, 25 Ch. D. 673. Experts should
not be examined on commission : Russell v. G. W. Ry. Co., 3 U. C. L. J.
116 ; Atty.-Genl. v. Gooderham, 10 P. R. 259 ; not even of lawyers, as to
a question of foreign law unless competent men cannot attend without
difficulty, or there will be a saving of expense : The Moxham, 1 P. D,
107, 116.
It need not appear that any effort was made to obtain the attendance
of the witness : Norton v. Melbourne, 3 Bing. N. C. 67, or that the defence
is true: Westmoreland v. Huggins, 1 Dowl. N. S. 800. It is no conclu-
sive answer that there are witnesses within the jurisdiction who can
swear to the same facts : Adams v. Corfield, 28 L. J. Ex. 31. The
application under this section should be on notice: Doe v. Pattisson, 3
Dowl. 35. Evidence improperly taken can be rejected at the trial :
Lumley v. Gye, 3 E. & B. 114 : see Watts v. Anderson, 5 Man. L. R. 291.
The time, and place and manner of examination should be fixed : Greville
v, Stultz, 11 Q. B. 997; see also Simms v. Henderson, 11 Q. B. 1015 ; but
see Farrel v. Stephens, 17 U. C. R. 250 ; but will be waived by appear-
ance of opposite party to cross-examine : Hqj^kins v. Baldwin, 16 Q. B.
375 ; Darling v. Darling, 9 P. R. 560. The order will be made to suit
the circumstances of each case : Mills v. Wellbank, 3 Scott N. R. 177. A
time is usually fixed in the order for return of commission, but it can
be extended : Clinton v. Peabody, 7 M. & G. 399. If first commission
proves abortive, a second will be ordered : Fisher v. Izataray, E. B. & E.
321. The order usually contains a stay of proceedings, but only for
limited time: Forbes v. Wells, 3 Dowl. 318. Where a single commis-
sioner is appointed the commission should authorize him to administer
the oath to himself ; Wilson v. DeCoulon, 22 Ch. D. 841. The reception
of improper evidence should be objected to on the examination, and if re-
ceived, the objection should be noted in the notes of witnesses testimony..
rks V. Bar-
OBJECTIONS TO COMMISSION.
Advantage may then be taken of it, but not otherwise : Robinson v.
Davies, 5 Q. B. D. 26 ; see Watts v. Anderson 5 Man. L. R. 291. An
order for a commissioner to examine M., and other witnesses does not ~
authorize a commission to examine M. only, without amendment ;
Smith V. Babcock, 9 P. R. 175. A second commission ma}^ issue to ex-
amine a witness where he admits he did not fully disclose the facts on
the first commission : Rogers v. Manning, 8 P. R. 2. In some cases
involving intricate questions of fact, the evidence will be ordered to be
taken r/ra voce : Watson v. McDonald 8 P. R. 354. Where a witness is
travelling, it should be shewn that he will remain at the place to which
the commission is directed long enough to allow of its due execution :
Singer v. Williams Manf. Co., 8 P. R. 483.
A copy of interrogatories should be annexed to the commission.
If the commission not taken out promptly, depositions might not be
receivable in evidence: Ponsford v. O'Connor, 5 M. A W. 073 ; see Watts
V. Anderson, 5 Man. L. R. 291.
In framing interrogatories leading questions should not be put, and
maybe struck out at the trial if objected to by the opposite party : Alcock
V. Royal Exchange Ass. Co., 13 Q. B. 292; but not necessarily : Small
V. Nairne, 13 Q. B. 840 ; Lockwood v. Bew, 10 P. R. ()55.
If either party wants to use a document in the hands of the opposite
party, he must give notice to produce it : Cunliffe v. Whitehead, 3 Dowl.
0;^4 ; and the examination should, if possible, be conducted upon the same
rules as in a trial at Ni:<i Priiis : Ih. A party cannot abandon an inter-
rogatory in part,; he must do it in whole: Wheeler v. Atkins, 5 E8p.246.
"Due notice" of commission must be given (C. R. 589), otherwise
depositions would not be received (2 Starkie's Ev. 264), as the opposite
party has the right to cross-examine : lb.; Attorney-General v. Davison,
McClel. & Y. 160. The evidence under a commission is receivable, not-
withstanding the affidavit of examination is made by the commissioner,
and returned under his hand, but not his seal : Beach v. Odell, 4 O. S. 8.
The signature and seal of one purporting to be Chief Magistrate, to an
affidavit of execution will be presumed genuine : Doe Lemoine v Ray-
mond, 5 O. S. 337. An affidavit that the examination of the witnesses
was duly taken, not that the commission was duly taken in accordance
with the literal wording of tiie statute, is sufficient, and need not be
entitled in any cause: McLeod v. Torrance, 3 U. C. 11. 146; Doe Park
V. Henderson, 7 U. C. R. 182 ; see also Passmore v. Harris, 4 U. C. R.
344. The affidavit of due taking of commission need not be signed by the
deponent: Wilmot v. Wadsworth, 10 U. C. R. 594. When commission
will be ordered to be returned when defectively executed as supposed :
Doe Hay v. Hunt, 1 P. R. 44. If the affidavit substantially shews com-
mission duly taken, it is sufficient: Bunnel v. Whitlaw, 14 U. C. R.
211. It is no objection that one of the witnesses affirmed: lb. It need
i ot appear that the witness was examined where the mayor resides who
takes the affidavit : Stebbins v. Anderson, 20 U. C. R. 239. The envelope
containing commission i^ust be under the hand and seal of commis-
sioner, and there must be an affidavit of due taking, otherwise deposi-
tions cannot be read : Reford v. McDonald, 14 C. P. 150. The contrac-
tions " Plfif." and " Deft." in title of affidavit of execution no objection :
Frank v. Carson, 15 C. P. 135 ; nor if entitled in one court instead of
another: Comstock v. Burrowes, 13 U. C. R 439. The affidavit must
identify the depositions : Milligan v. G. T. Railway Co., 16 C. P. 191.
If commission taken in Quebec, the affidavit can be taken before a
Notary Public there : Beard v. Steele, 34 U. C. R. 43 ; R. S. O, c. 61, s. 34.
When the commission was not returned to the office mentioned in the
•order, it was held no objection to the evidence : Stevenson v. Rae, 5 C. P.
197
Section
130
198
OBJECTIONS TO EVIDENCE TAKEN.
If
8«ction 400. An opening in the envelope not large enough to let out any of the
138 papers is no objection : Frank v. Carson, 15 C. P. 1H"5. The commission
— ' — need not be indorsed with the style of the cause, nor need the evidence
be annexed to it, and should be so framed as to bind all parties
to be examined, and particularly as to the mode of adniiniHtering
the requisite oaths to Jews or others: lb. A person who acts under
a commission, which contained specific directions as to the mode of
return, cannot afterwards object that certain formalities prescribed
by the statute, but not by the commission, have been omitted : Frank
V. Carson, 15 C. P. 135; Heylaud v. Scott, 19 C. P. 1<)5. A com-
mission produced at the trial in an envelope open at both ends, but
otherwise unobjectionable, was received: Graham v. Stewart, 15 C. P.
169. The affidavit of execution may speak of depositions or examinations,
as synonymous terms : Muckle v. liudlow, 1(5 C. P. 420. The rigid pro-
visions of the statute commented on : Ih. Entitling defendant's name in
the cause in the commission as "William" instead of " Samuel, " //eW
fatal, and the taking of evidence a void proceeding : Graham v. Stewart,.
15 C. P. Ifi9. Technical objections in Superior Courts lield not jn'operly
to be taken at the trial, but on application before it : Lodge v. Thompson^
26 U. C. R. 588. Objections to commission, if not taken, are waived:
Farrel v. Stephens, 17 U. C. R. 250; Wnlton v. Ai)john, 5 O. R. (55.
Change of the day for the examination hclil no ohjoftion, in Conistock v.
Galbraith,21 U.C. R. 297; Comstock v. Tyrrell, 12 i). P. 173. A con-
traction in the name of a witness in the return of the commission is no
objection : //*. Where the order was that the witnesses should " sign "
the depositions, but the commission contained no such clause, it was
held that the depositions were receivable : Hodges v. Cobb.Jj. R. 2 Q B.
65/. The oath of the commissioner may sometimes be dispensed with:
Boelen v. Melladew, IOC. R.H98. Although there are written interroga-
tories, it is no objection that the commissioner put the questions riva
voce: Grill v. General Iron Screw Collier Co.,L. R. 1 C. V. 600: but if
any interrogatory is not put, the evidence will not be received : ]\Ielvill&
Mut. M. cfe F. Ins. Co. v. Driscoil, 11 S. C. R. 183. Commissioners have
alien on commissions for their fees : Peters v. Heers, 14 Beav. 101. A
barrister has a lien for bis fees on commission: Smith v. llallen, 2 F..
& F. (578.
An ex parte order can be obtained to open commission before court.
The practice is to open in presence of both parties : Neale v. Withrow,.
4 U. C. L. J. 88.
As to affidavit and order for commission, s*"*; Schedule of Forms.
Under an order to take evidence on commission tlie evidence can only
be taken on interrogatories unless otherwise ordered, and where under
such an order the evidence was taken lui'a voce, it was suppressed :
Watts v. Anderson, 5 Man. L. R, 291 ; Mulligan v. White, 5 Man. L. R. 40.
The oi'der shonlrt not be made ex narte .
5 Man. L. R. 245.
Holmes v. C. P. Ry. Co.,
Objections to the evidence taken on commission are not waived by
cross-examining the witness after raising the objection, and subject to
it; nor by omitting to object after the commission had been formally
returned, upon an application to send it back for a proper return, or
upon a furtiier application to extend the time for the return. Waiver,
as a general rule, is doing something after an irregularity committed,
when the iri-egularity might have been corrected before such act was;
done. It might consist, too, of lying by and allowing the opposite party
to take a fresh step in the case : Watts v. Anderson, 5 Man. L, 11. 291.
Seotloiw
136-187
When com-
iiiiHsions to
take evi-
dence of
applicant,
etc., may be
granted.
WHEN COMMISSION TO ISSUE. 198>
IHO. No order hIuiII be made for the issue of such
coinniiasion for the taking; of tlie evidence of the person
applying therefor, or any pei-son in his employment, unless
in the opinion of the Jud<.^e a saving of expense will be
caused thereby, or unless it is clearly made to appear that
the pei-son is aged, infirm, or unable from sickness to appear
UH a witness. R. S. O. 1877, c. 47, s. 100.
The law relating? to taking; evidence in Division Court causes does not
favour tlie taking of audi evidence of the person applyinj^ for the same or
of any person in his employment. If, however, in tlie opinion of the
Jiidne, a savinjj; of expense would be caused by taking such evidence, the
commission may be allowed. Hhoidd the jjorsou applying or some per-
son in his employment be a^ed, iiilirm, or unable from sickness to appear
as a witness, the commission may also be ordered.
A party applying may, however, obtain an order for a commission to
examine a co-plaintiff or co-defendant : Wilson v. McDonald, 18 P. II. (1.
The fact that the party applying is afraid to return to Ontario on
account of criminal proceedings, thoiijih a jood reason fot a commission in
the higher courts, is no ground for the issue of a commission from a
Division Court : Mills v. Mills, 12 P. R. 47H.
I>i7« In case it be made to apixar to the Jndfje that I'-xamina-
. , . . tioiiof
a material and necessary witness residinij within the witnesses
_*' _ " whose at-
Province is sick, ay-ed, or infirm, or that he is about to leave t"'i'iance
' f ' at trial
the Province, and that his attendance at Court as a witness »=«•'"'."* J^®
outainuu.
cannot by reason thereof be [H'ocured, the Judge may make
an order appointing a suitable person to take the evidence
of the said pereon. A C()[)y of the order, with two days'
notice of the time, and place of the cxumination shall be
served upon the opposite party, his solicitor or agent, who
may appear, and cross-examine the witness. The evidence
sliall lie taken on oath, and shall be reduced to writing, and
sioiK'd by the witnesses, and shall be transmitted to the
cleik of the Court, and shall be by him kept on file, and
may be used upon the trial .saving all just exceptions. The
costs of the order shall be in the discretion of the Judge,
and the reasonable charge of the examiner (to be fixed by
tlie Judge) shall, in the first instance be paid Ijy the party
obtaining the order, its in the case of witness fees, and shall
thereafter be paid as the Judge may order. 49 V. c. 15,
s. 18.
rj
m
I
7
200
EXAMINATION DE BENE ESSE.
Beotlon Attendance at Court cannot be procured.— In order to found an
137 application under this suction the followiu',' circumstances must concur:
" (I) That the person proposed to be examined is a material and necessary
witness residing within the Province; (2) That such person is either (a)
sick, (b) a<{ed, ((■) infirm, or (d) is about to leave the Province; (H) That
in conseiiuence of the existence of one or more of these facts the attend-
ance at court of such witness cannot be procured.
A material witness is one whose evidence is pertinent to the question
to be tried and of importance to the person callinj; him.
A necessary witness is one wliose evidence is so important that it
would not be prudent or safe for a party to proceed to trial without it.
As a rule the application should not be <»ranted until defendant has
put in his defence: Smith v. Greey, 10 P. 11. 5;U, and other cases cited
in notes to section 1U5 p. V,)'>.
The application should not as a rule be ex piirli' : McKenna v. Everett,
2 Heav. 188; Anderson v. Anderson, 1 Ch. Cham. K. 2'.)1 ; Hope v.
Hope. 3 Beav. ;il7, 32H ; Early v. McGill, 1 Ch. Cham. It. 100, 2r>7 ;
Bidder v. Bridges, 2{, Ch. D. 1 ; Thomas v. Storey, 11 P. R. 417.
But where the witneLl.^ is dangerously ill, or over 70 years of age, the
High Court of Justice lu's generally granted the order ex parte : see
Bellamy v. Jones, 8 Yes. HI ; McKeiina v. Everitt, 2 Beav. 188 ; Oliver v.
Dickey, 2 Ch. Cham. 11.87; Crippen v. Ogilvy, 2 Ch. Cham. U. HOt;
Bidder v. Bridges, '2(5 Ch. D. 1, per Selborne, L.C., at p. 9.
But the fact that the witness is about to leave the Province, and there
is danger that his evidence may be lost unless promptly obtained, is no
ground for granting the order ex parte : Holmes v. C. P. liy. Co., 8 C. L. T.
261; 5 Man.L. R. 340.
The evidence of the witness should not, however, bo taken <'.r parte :
Warner v. Mosses, 16 Ch. D. 100 ; and the examination of a witness con-
ducted by one party without notice to his opponent is irregular and
inadmissible as evidence : Stephenson v. Dallas, 13 P. R. 450. Where
the proposed evidence would be inadmissible no purpose would be served
in granting the order, and it would probably be refused : Fisher v. Berrell,
1 Dowl. N. S. 565 ; or would not support any issue to be tried : Jones v.
Tobin, 4 Bing. N. C. 123 ; Speeding v. Young, 16 C. B. N. S. 824 ; Gal-
loway V. Keyworth, 15 C. B. 228.
There is no provision made for the examination of parties to the action
on their own motion but it is submitted that an order should be made in
a proper case on motion by the party himself : xee section 136 ; Moffiitt v.
Prentice, !> L. J. N. S. 159 : Fisken v. Chamberlin, 9 P. \i. 283 ; Fischer v.
Hahn, 13 C. B. N. S. 6.'>9 ; Castelli v. Groom, 18 Q. B 490 ; and such
examination might certainly be compelled by the opposite party or a
co-defendant.
Where a motion is made by the party himself for his own examina-
tion the court must bo thoroughly satisfied of the bona _tide» of the
application, and that it is not made for the purpose of avoiding cross-
examination : Berdan v. Greenwood, 20 Ch. D. 764; Langen v. Tate,
24 Ch. D. 522; Kidd v. Perry, 14 P. R. 364 ; Light v. Anticosti, 58 L. T.
N. S. 25; Thomas v. Storey, 11 P. R. 417.
The application should be made within a reasonable time after notice
of defence : Brydges v. Fisher, 4 M. & Sc. 458, and other cases cited in
notes to section 135, p. 195.
The names of the witnesses sought to be examined should be stated in
the affidavit : Gunther v. M'Tear, 1 M. & W. 201 ; Norton v. Lord Mel-
bourne, 8 Bing. N. C. 67.
I --r
WHEN EXAMINATION ALLOWED.
The ordor must state the names of tlie witnesses to be examined :
Warner v. Mosses, 10 Cli. D. 103.
yometimcs it may be necessary to state upon what facts it is proposed
to examine the witness: nee Barry v. Barclay, I.** C. B. N. S. 819 ; see
notes to section 135.
In an action under Lord Campbell's Act, an order was made for the
examination before trial, on behalf of the plaintiff, of the only witness
to the accident which occasioned tiie death of deceased. It was provided
that the examination should not be used at the trial, unless tlie plaintiff
was unable to procure the attendance of the witness : Elliott v. C. P. Ky.
Co., 12 P. H. r)'J3.
No provision is made as to the evidence by which the applic ...on is
to be supported. An affidavit by a person havinj^ knowledf^o of the facts
would be suflticient. If a solicitor were employed, he or his maniifiing
clerk would ordinarily be able to make the necessary affidavit : McI lardy
v. Hitchcock. 17 L. J. Ch. 'i'jfi; Elmsley v. Cos<{rave, (J P. II. KM ; Lloytl
v. Henderson, (i P. R. 2.54; Baker v. Jackson, 10 P. R. G24.
Where an application was made on the ^jround that the parties con-
corned all lived abroad, and that the survivin-^ witness to bo examined
wv.H {jreatly afflicted with fjravel, the order was made, although the
attiilavit only stated the witness was upwards of (iO years old : Fitzhuf^h
V. Ijce, Ambl. (55.
Chancery always allowed the examination de bene
about to {^o abroad
Ry. Co., 1 Hare. 328
Youn-,', 3 DeG. & H. 3U7 ;
Bown V. Child, 3 Sim. 4.')7
McKenna v. Everitt, 2 Beav.
see also Warner v. Mosses, 16
201-
Sectlon
137
The Court of
eme of a witness
Mcintosh v. G. W.
188 ; Grove v.
Ch. I). 100.
But if it is in the power of the party applying to detain the witnesses
till tliey have been examined in the ordinary course, the order will not be
made : East India Co. v. Naish, Bunb. 320.
It ip doubtful whether the fact that a witness is in a state of prej*-
nancy, or about to be delivered of a child, is a cause for fjrantinjj the
order : .s< t- R. v. Welliufjs, 3 Q. B. D, 420. At all events, in applications
founded on pi'egnancy of the witness, an affidavit of a competent person
should be produced shewinf; that the delivery would prob.ibly happen
about the time fixed for the trial, or so near as to render the attendance
of the witness perilous : Abraham v. Newton, 8 Binf». 274 ; a.-e also R. v.
Inhabitants of Huddersville, 7 E. & B. 794.
An order may be granted where a witness is so unwell that there is no
probability of his being able to attend the trial : Pond v. Dimes, 3 M. & Sc.
IRl ; Bellamy v. Jones, 8 Ves. 31 ; Jephson v. Greenaway, 2 Fowl.
Ex. Pr. 102.
The affidavit of a medical man should generally be producad in such
cases: Davis v. Lowndes, 7 Dowl. 101 : Duke of Beaufort v. (Irawshay,
L. R. 1 C. P. 699 ; or else his certificat . or opinion should be verified by
affidavit ; but the affidavit of the solicitor of his information and belief,
■with grounds thereof, was held sufficient : Baker v. Jackson, 10 P. R. 024.
It is not necessary, generally, for the defendant to swear to merits
when the application is made on his part, nor that it is not made for the
purposes of delay : Baddeley v. Gilmour, 1 M. & W. 55.
Disobedience to the order could be punished by attachment : see sec-
tion 73: Martin V. Bannister, 4 Q. B. D. 491; Richards v. CuUern?,
7 Q. B. D. 023.
There is no provision for the production of books, papers and doca-
ments on such examination.
|,J
202
COSTS OF EXAMINATION.
Seotion The examiner has no diHoretion an to the materiality of the (|tinBtion»
137 put, HiileHH upon matters wliich would clearly and palpably not be evi-
"~~~~ dence: Hnrr v, Walmsley, L. It. 2 E(j. 4811; but he should note any
question objected to : Richardson v, Davies, 5 Q. B. D. 'M\.
In Wrifjlit V. Wilkin, 4 Jur. N. S. H04, it was said that the court
would not delegate to the examiner the power of treating a witness as
ho»tile Hu as to authorize the examination to be conducted in the nature
of a croHs-examination by the party calling him, but Lord Cairns, L.C.,
ill Ohlsen v. Terrero, L. 11. 10 Ch. 129, stron^jly disapproved of this
ruling and pointed out that if a witness or his counsel tiiought that he
was beiiiji unfairly dealt with he mij^ht refuse to answer a particular
question, and upon that refusal the matter might be brought before the
court, wlio would decide whether the examiner was pursuing a proper
course or not in allowing a witness to be treated as hostile : as to liostile
witnesses, xrc Rice v. Howard, 1(1 Q. R. D. OHl ; Buckley v. Cooke,
1 K. iV J. 2!(; notes to section liJl, ante p. 191.
Tlie depositions must be signed by the witness or they will not bo
received in evidence except by consent.
Tiie examiner's room is not a public court and he must exclude other
persons tluiu those entitled to be there if requested by either party : In re
Western of (laiiada Oil Lands, etc., Co., (i Ch. l3. 109 ; nee Rich v.
Stark, 8 C. L. T. 191 ; Hands v. Upper Canada Furniture Co., 12 R. R.
292.
The statute requires two days' notice of the time and place of exami-
nation to he served upon the opposite party. If the notice were not
given and the opposite party did not attend on the examination the
evidence would be rejected ; Steiiikeller v. Newton, 9 C. tt P. HIH. But
it is not necfessary that lie should exercise the power of cross examin-
ing the witness ; all that is required is that he shall have the oppor-
tunity of doing HO : ('azeiovo v. Vaughar, 1 M. iVr S. 4 ; and his right to
take part in the exainiiiiitiou migiit possibly be waived by giving notice
that he would not do so: McCorabie v. Anton, (i M. & G. 27.
The depositions could not be received as evidence in a suit between
other parties : Doe v. Derby, 1 A. & E. THiJ, 78().
All just exceptions to the admission of the depositions are reserved to
the oppof^ite party. On this point and on the subject of examinations
generally, nee notes to section 135. The depositions may be used at the
trial.
The fact that the Judge has made the order directing the evidence tO'
be taken by an examiner is sufficient to enable the party obtaining the
order to put the depositions in evidence, saving all just exceptions; Ryan
v. Devereux, 2(5 U. C. R. 100.
If the examination is not used no costs of it should be allowed
McMillan v. McMillan, 8 L. J. N. S. 28.5 ; Curling v. Robertson, 7 M, &
G. 525 ; Ridley v. Sutton, 1 H. & C. 741 ; Dominion, etc., Co. v. Stinson,
9 P. R. 177. But where a witness waa so old and intirm that it wa»
prudent to take his examination, but he was afterwards able to attend
the trial, the plaintiff was allowed both the costs of the examination and
of his attendance at the trial, and the expenses of the journey of the son
of the witness and his attendance upon him in giving evidence, in conse-
quence of the age and infirmity of the witness, were also allowed : Duke
of Beaufort v. Earl of Ashburnham, 13 C. B. N. S. 598.
Unless some special ground appears for ordering otherwise the costs-
of the examination will usuallv be made costs in the cause : Prince v^
Samo, 4 Dowl, 5 ; McMillan.v. McMillan, 8 L. J. N. S. 285.
EXAMINATION OF AUSENT WITNESSES.
20a
The evidence in to be taken under oath. Power is given by section
1!)8, 8-B 2, to administer the oath. This inciiides afKrmaticnH and declar-
ations; xi'e U. S. O. c. ()l. Hs. 12, ir>, notes to sections 111, s-s. H, and to
K"cti<)n 185. If no objection is made before tlie examiner it nii^^ht have the
effect of waving the right afterwards to object to tiie admissibility of the
objectionable part at the trial : Kobinson v. Davies, 5 Q. U. D. 21'*; nee
iilso Cutler v. Wright, W. N. (18U0), 2H ; A mere irregularity in taking
the deposition would be the subject of special application to the<Iudgo to
iiavo it suppressed, but it would not be an objection to its admissibility at
tlie trial : Grill v. Iron Bcrew Collier Co., L. It. 1 C. P. COO.
The evidence must be taken on oath, reduced to writing, signed by
tlie witness, transmitted to the clerk of the court, and by him kept on
file ready to be produced when rerinired. To render it evidence it should
lie produced from the proper custody and jiurport to bo duly taken : Ke-
ford V. McDonald, 14 C. P. l.'iO. The production by the clerk would not,
however, be necessary to its reception ; if otherwise correct the evidence
would, it is submitted, be receivable.
It would seem that the evidence could be taken if material, whether
there were other witnesses to testify to the same fact or not. The writer
submits that the rule laid down in that respect in Jameson v. Jones,
.H Cli. (Miam. !)H, does not apj)ly to this section.
A special examiner or officer of court taking an examination in a cause
or proceeding pending in court has nopowor to authorize any other person
to take down the depositions in shorthand ; and a person cannot be com-
pelled, in the face of his objection, to submit himself for examiiuvtion
when the examiner proposes to have the depositions so taken : Bradt v.
Hr.ult. !> C. L. T. 472.
Where the interests of a witnesn might be affected by the examina-
tion, it was held that he was entitled to have counsel present, upon the
examination to protect his interests : Dominion Bank v. Bell, 13 P. R.
■171.
Seotlons
137-138
L
el
-1
b between
138. (I) An orilor may also be obtained for the exanii- ^,'J*"'/,
Exaiiiina-
i nation of a witnes.s wlio residos in a remote part of tlie ^"3",'!^,^ ^^
I'lovinee, aiwi at a j^reat distance from the jilace of trial, if f,oui"'i!iiace
it l»e clearly mude to appear that his attendance cannot be" '"* " '"^
])rocured, or that the expense of his attendance ^vould be
out of proportion to the amount involved in the action, or
would be so great that the party desirino- his attendance
should not, under the circumstanceH, be recjuiied to incur
the same: and the proceedings thereon, and the order as to
costs, shall be the .same as in tl;e case of an order in the
next preceding section mentioned.
(2) The person appointed under this and the next pre-
cedino- .section shall have authority to administer an oath
to the person to be examined. 40 V. c. 15, s. 10.
Remote part of the Province. — The words " in a remote part of the
Province " are of relative imiwrt. No definite meaning can be given to
them. They must be construed in relation to the circumstances of the
.-•>
!3
204
RULES APPLICABLE TO COMMISSIONS.
Sections case. Mere distance alone would not govern. Worcester defines " re-
138-139 mote " " distant in place, time or connection : far ; far off; not near; not
nigh." The residence of a witness, under this section, may be considered
as " remote " from the place of trial although the actual distance may
not be great.
The season of the year at which the courf is to be held, the accessi-
bility to the place of trial, the facilities of travtl by rail or steamboat, the
expense whicii the witnesses would be put to, the time of his absence
from home, the convenience of travel to and from the place of trial,
would ail come within the definition of the v.'ord " remote " as " distant
in time, place or connection." The same may be said of the expression,
" great distance from the place of trial." It is an expression which must
he conatvued I ehitirt'li). Like "gross" negligence, it is simply " remote-
ness" after all: see Wilson v. Brett, 11 M. & W. 113; Beal v. South
Devon liy. Co , 3 H. & C. 337; Grill v. General Iron Screw Co., L. K.
1 C. P., p, 012.
The affidavit must show "clearly" why the witness cannot be pro-
cured or what the expense of his attendance would be, so that the Judge
may infer that it would be out of proportion to the amount involved in
the action or would be so great as to be practically prohibitive.
The evidence must be taken and returned, and may be used in the
same manner as under section 137.
♦-!»
> B.' ifflirli-.l
WW.
II
Rules njaiie liiU. — The provisious of the Rules of the Supreme
apphoftble '■ _ ^
«?on"'"'"'^ Court of Judicature, so far as the same are applicable, shall
apply to every cemmisssion issued under the authority of
this Act. R. S. O. 1877, c. 47, s. 101.
Huh's of the Sii})reme Court of Judicature.
C81>. Due notice of every such commission shall be given to the
adverse i)arty, to the end that he may caune the witnesses to be cross-
examined. K. S. O. 1H87, c. C'2, s. '22.
501. Upon an application for a commission to take evidence the
applicant is in the notice of motion to state the name of the commissioner
to whom he desires the commission to be issued ; and where the opposite
party desires to name another conmiissioner, he is, on the return of the
ni )tion, to give notice to tlie applicant of the name of any other com-
missioner. J. A. Hule '280.
r)!C2. Upon the hearing of the motion the Court or Judge (or officer
before wliom the motion is made) may order the issue of the commission
directed to the persons so named or to such other person or persons as
may seem proper. J. A. Rule '287.
litdes 591 and 5!)'2 are strictly not applicable to the Division Courts,
imder the above section, but the practice thereunder will be found con-
venient.
593. The order or certiiicate for the issue of a commission is to state
the name of the commissioner to whom it is to be directed, and whether
the examination of witnesses thereunder is to be taken upon oral ques-
tions or upon written interrogatories, and also whether or not notice of
the execution thereof is to be given to the opposite party ; and in case
notice is to be so given, then the name and the address of the person on
whom such notice is to be served ar« to be stated in the order. J. A.
Rule '288.
"r~»^^
RULES APPLICABLE TO COMMISSIONS.
2(m
ised in the
594. The examination of witnesses under a commission is to be taken Section
either orally or upon written interrogatories, or partly in one way and 139
partly in the other, as the court or a Judge may direct. All oral ■
questions shall be reduced into writing and with the answers thereto re-
turned with the commission. See J. A. Rule 289.
695. Where the examination is to take place upon written interroga-
tories, the interrogatories in chief are to be delivered to the Opposite
party (unless otherwise ordered) at least 8 days before the issue of the
commission; and the cross-interrogatories are to be delivered to the
opposite party (unless otherwise ordered) within 4 days after the receipt
of the interrogatories in chief ; and in defat.lt of cross-interrogatories
being so delivered, the opposite party may send tlu commission without
cross-interrogatories. J. A. Rule 290.
596. An examination may be executed ex parte, unless the opposite
party shall, upon the hearing of the application for the order or Master's
certificate for the issue of the commission, require notice of the execution
of the commission, and give the name and place of abode of some person
resident within two miles of tho place whore the commission is to be ex-
ecuted, upon whom notice may be served. J. A. Rule 291.
597. Where notice of the execution of the commission is required to
be served, 48 hours' notice shall be sufficient; such notice is to be in
writing, stating the time and place of the intended examination, and is to
be addressed to the person named for that purpose in the order or certifi-
cate for the issue of the commission ; and service upon liim, or upon a
grown up person, at the address stated in tlie order or Master's certificate,
sliall be sufficient. If the name or address stated in such order or
certificate shall prove to be illusory or fictitious, or if the party so
notified fails to attend, pursuant to the notice, the commission may be
executed e.r parte. J. A. Rule 292.
59H. In the event of any witness on his examination, cross-examina-
tion or re-examination, producing any book, document, letter, paper or
writing, and refusing for good cause to be stated in his deposition, to
part with the original thereof, then a copy thereof, or extract therefrom,
certified by the commisHioners or commissioner present to be a true and
correct copy or extract, shall be annexed to the witness' deposition. J.
A. l?ule 293.
5i(t(. Every witness to be examined under the commission shall bo
examined on oath, aflirination, or otherwise in accordance with his re-
ligion, by or before the said commissioners or commissioner. J. A.
Rule 294.
(iOO. If any one or more of the witnesses do not understand the
English language (the li herrogatories, cross-interrogatories, and viva
voce questions, as the case iii ^y be, beiug previously translated into the
language with which, he or 1 iiey is or are conversant), then the exami-
nation shall be taken in English through the medium of an interpreter
or interpreters, to be nomint ted by the commissioners or commissioner,
and to be previously sworn ficcording to his or their several religions by
or before the said commissioiers or commissioner truly to interpret the
questions to be put to the witness or witnesses, and his and their
answers thereto. J. A. Rule 295.
601. The depositions to be talren under and by virtue of the said
commission shall be subscribed by the witness or witnesses, and by the
commissioners or commissioner who shall have taken such depositions.
J. A. Rule 296.
602. The interrogatories, cross-interrogatories, and depositions to-
gether with any documents referred to therein, or certified copies there-
of or extracts therefrom, shall be sent to the Judge or officer on or before
H
i
ill
206
COSTS IN DISCRETION OF JUDGE.
Sections such day as may be ordered in tliat behalf, encloned in a cover under the
U9-141 seal or seals of the said commissioners or commissioner, and office copies
~~ thereof may be given in evidence, on the trial of the action, by and on
behalf of the said parties respectively, saving all just exceptions, without
any other proof of the absence, from this country, of the witness or
witnesses therein named, than an affidavit of the solicitor or agent of thn
party as to his belief of such absence. J. A. Rule 297.
603. Where, upon the application for a commission to take evidence,
the opposite party desires to join in the commission and examine
witnesses on his own behalf tlieriunder, or names a commissioner, eacli
party is to pay t)ie cost of tlie commission consequent upon the examina-
tion of his witnesses and the appointment of his commissioner, without
prejudice to the question by whom such costs are ultimately to be borne ;
and if for any reason the commissioner named by either party refuses to
act in tlie e.xecution of the commission upon receiving 48 liours notice in
writing from the other of them so to do, the commission may be executed
by the commissioner giving such notice alone. J. A. Rule '298.
604. Every order for a commission shall be read as if it contained the
above particulars, and sliall not set forth the same, but may contain any
variations therefrom, and any other directions, which the court or Judge
shall see fit to make. J. A. Rule 300.
Betnrii of
comniia-
sious.
1 40- [The Conmiission, with the evidence taken there-
under, and tlie paper.s therewith whall forthwith be returned
to the Clerk of the ])iviHion Court in which the action to
which the same relatcH is ])ending.] 52 V. c. 12, s. 14.
The I40th section of the Consolidated Division Court Act, 1888, (R S.O.
c. ■''l), has been repealed and the above substituted therefor.
Formerly the commission was returned to the clerk of tlie County
Court, and transmitted by him to the clerk of the Division Court in
which the action was pending.
€osts of
Comniis-
fiiou.
i
141. [The costs of the issue, transmission, execution
and return of anv^suchconnnissionshall be in the discretioi.
of the Judge of the Court in which the action is pending
who may allow a sum in gross therefor], and the costs may
be added to any other costs to be paid to the party entitleil
thereto, and may be recovered by the party entitled tliereto
in like manner as the ordinary costs of the action are
recoverable by the practice of the Division Courts.
R, S. O. lcS77, c. 47, s. 108: 52 V. c. 12, s. 15.
Foimerly costs were taxed on the County Court scale, but now the
amount, or the method of arriving at them, is in the discretion of the
Judge. Such discretion must be exercised judiciously : see notes to
section 8 ; Stroud, 216.
BEFORE WHOM AFFIDAVITS MAY BE SWORN.
207
SMtlona
14S-143
Jud(;e may
receive in
evidence
plaintiff's
or defen-
dant's
boolis of
account.
Books of Account , Affidavits, etc., as evidence.
142. In an action for a debt or demand, not being for
tort, and not exceeding $20, the Judge, on being satisfied of
their general correctness, may receive the plaintiffs books
as evidence, or in case of a defence of set-off or of payment,
o f;ir as the same extends to $20, may receive the defend-
ants books as evidence, and the Judge may also receive as
evidence the affidavit or affirmation of any party or wit-
ness in the action rt sident without tne limits of his county,
but, before pronouncing judgment, the Judge may require
such witness or any party in a cause to answer upon oath
or affirmation any interrogatories that may be filed in tlie
action. R. S. O. 1877, c. 47, s. 104. .
Debt on demand.- -See notes to section 109.
Not exceeding $20.— Tlie Jurifie must first be satisfied of tlie " t,'ene-
ral foirectness " of tlie books ; and if he is, it is tiien permissible to
receive them. The defendants books are only receivable in evidence in
the defences of set-off or payment. The experience of most Judj^es is
that the evidence of -.voU kept books, in which the ori-jinal entries have
been made in rej^ular order, is of llie most reliable and satisfactory char-
acter. In other cases than thosr provided for in the section, books of
account may be used to refresh memory : Taylor on Evi. 1]'.I8-120(5 ; or
as ciitries made by a deceased persiiii aj^ainst his ])ecuniary or proprietory
interest: Hif^liam v. Kidf^way, 8 Sm. J,. C. Edson ed. 1()07 ; Taylor on
Evi. t''),')H ; or in the usual course of business and made contemporaneously
with tlie acts to which they relate : Price v. Torrinj^ton, I Sm. L C.
Edson ed. ot5(i ; Taylor on Evi. (il'i-fi'il ; or in actions between master
and servant, tradesman and shopman, banker and customer or co-
partners when the opposite party has had ample opportunities from
time to time for testinj^ the accuracy of the entries: Taylor on Evi. 704.
Affidavit or AfTlrmation. — To save expense this ))rovision has been
intro'luced. 'J'lie witness must be " rcsidi'iit "' witlioiit the coiinti/ in which
the suit is to be tried. As to what conBtitutes " residence," see notes to
sections HI, H2, il'.t.
Any interrogatories, etc.— The rif^ht of cross-examination is here
reco>ini/,ed : Attoniey-Ciencral v. Davison, McClel. and Y. 1(50. It is sub-
mitted tiiat the affidavit or affirmation of a person resident out of the
Province could be received.
14Ji. All affidavits to be used in Divisi(m Courts or Affidavits
may be
before any of the Judges thereof, may be sworn before a ^^If^y^ ^
County Judge oi- before the Clerl-: or Deputy Clerk of a '^"^Ke,
Division Court, or befoi'e a Judge, Notary Public or Com-
missioner for taking affidavits in the High Court. E. S. O.
1877, c. 47, s. 105 ; 48 V. c. 10, s. 1.
It
ci
! ■
U' ■
h
^
208
THE JUDGES DECISION.
Sections All affidavits. — As to affidavits generally, see Rule 133 and notes to<
143-1** section 110.
The headiiig of an affidavit is merely descriptive and not an allegation
of fact: Hood v. Cronkite 4 P. It. 279 ; lie Green, 15 L. J. N. S. 35.
The name of the court and style of cause should appear in an affidavit,
Rule 133: Allman v. Kensel, 3 P. R. 110; Swift v. Jones, 6 U. C. L. J.
63; Hart v. Ruttan, 23 C. P. 013; In re Sharpe, 2 Ch. Cham. (17;
McDonald v. Cleland, 6 P. R. 289 ; Scott v. Mitchell, 8 P. R. 518. The
Judge could, however, receive the affidavit notwithstanding these defects :
Rule 133.
The description of the residence of a deponent in an affidavit must be
that residence which exists at the time of the swearing of the affidavit :
Button v. O'Neill, 4 G. P. D. 354.
High Court. — This section expresses the different persons who only
have the right to take affidavits in the Division Courts. All affidavits
taken by persons other than those mentioned in this section would be
void.
JUDGES DECISION.
Clerk etc. 144. The Judrje, in any case heard before him shall,
Judge may o > J >
luent^iu'^^' openly in court and as soon as may be after the hearing,
pcmtiioue"' pronounce his decision ; but if he is not prepared to pro-
judgiueut. jjounce a decision instanter, he may postpone judgment and
name a subsequent day and hour for tlie deliveiy thereof in
writing at the clerk's office ; and the clerk shall then read
the decision to the parties or their agents, if present, and
he shall forthwith enter the judgment, and such judgment
shall be as effectual as if rendered in court at the trial.
R. S. O. 1887, c. 47, s. lOG.
Pronounce his decision. -" Decision " here means the judicial dis-
posal of the case which the Judge has heard. The Legislature has evi-
dently taken the same view as Jessel, MR., did, — " that a Judge's deci-
sion is best when the facts are fresh in his mind" — by declaring that lie
should pronounce a decision in a case tried before him imtaiiter. liy
section 70 tliis is to be done in a summary way " agreeable to equity and
good conscience."
A Judge cannot alter his decision at will: Jones v. Jones, 5 D. &L. 628 ;
Irving V. Askew, L. 11. 5 Q. B. 208, but he may do so before he enters it :
Canadian Land & Emigration Co. v. Dysart, 9 O. R. 495, 512.
Name a subsequent hour. — This should be carefully observed, other-
wise the Judge might frequently be subject to a motion for prohibition :
lie Burrowes, 18 C. P. 493 ; Re Tipling v. Cole, 21 O. R. 276 ; Forbes v.
Micliigan Cent. Ky. Co., 12 C. L. T. 485 ; lie Wilson v. Hutton, Q. B.
Divl. Ct., 24th Dec. 1892 ; but unless the party complaining is pre-
judiced by the delivery of tlio judgment without notice, prohibition
will be refused: lie McPherson v. McPhee, 21 O. R. 280, 411; and if
the parties assent to the Judge delivering judgment when ready to do
so, thev cannot afterwards have prohibition : Bank of Ottawa v. Wade^
21 O. R. 480.
INTEREST,
209
nd notes to-
Interest. — The allowance or disallowance of interest is frequently a
matter for consideration at the trial, The following enactments bear on
the question : Interest shall be payable in all cases in which it is now '
payable by law, or in which it has been customary for a jury to allow it :
R. ri. O. c. 44, 8. 85. This section was originally 7 Wm. IV. c. 3, s. 20.
The concluding clause is not in the English Statute. 3 and 4 Wm. IV.
c. 42. At common law interest was not payable on ordinary debts unless
by agreement or mercantile usage ; nor could damages be given for non-
payment of such debts: Higgins v. Sargent, 2 B. & C. 348; Page v.
Newman, 9 B. & C. 378; Foster v. Weston. GBing. 709; but an implied
contract to pay interest may be raised from the dealir<;rf between the
parties, as where the debtor has been in tlie habit of pn j ing interest upon
such or similar securities : Ex parte Williams, 1 Rose, 399 ; Newell v.
Jones, 4 C. & P. 124 ; and a partner could not be charged interest on an
overdrawn account; Rhodes v. Rhodes, Johns. 653 ; (5 Jur. N. S. 000;
see Rishton v. Grissell, L. R. 10 Eq. 393; but a surety could charge
interest on a sum he had been compelled to pay: Petre v. Duncombe,
2 L. M. & P. 107 ; 15 Jur. 86 ; Wellington County v". Wilniot Township, 17
U. C. R. 82; Hitchman v. Stewart, 3 Drew. 271; Ex parte Bishop, 15
Ch D. 400 ; and so might an agent wlio had advanced money for his prin-
cipal in mercantile business : Bruce v. Hunter, 3 Camp. 467 ; and where,
but for the breach of his agreement, the defendant would have become
liable for a debt bearing interest in an action for sucli breach, interest
may be awarded; Rhoades v. Selsey, 2 Beav. 359; Mcintosh v. G. W.
I!y. Co., 4 Giff. 696 ; s. c. 2 Mac. & G. 74 ; Lond. Chat. * Dover Ry. Co.
v."S. E. Ry. Co., (1892), 1 Ch. 120 ; Marshall v. Poole, 13 East, 101 ; Farr v.
Ward, 3 M. <fe W. 25. Money due on an account stated willnot bear interest
except payable on a particular day or by usage shewn in tlip account :
Nichol V. Thompson, 1 Camp. 52 (n) ; Pinhorn v. Tulkington, 3 Camp.
io8 ; Chalie v. York, 6 Esp. 45 ; or the account stated is for money lent,
or between merchant and merchant ; Blaney v. Hendricks, 2 W. Bl. 761 ;
or the action is upon ",n award of a sum payable ab a certain time ;
Towsley v. Wythes, 16 U. C. R. 139 ; Churcher v. Stringer, 2 B. & .\d. 777 ;
■or is for money improperly retained by a sheriff ; Michie v. Reynolds, 24
U. C. R. 303; or improperly used in his business by an agent: Land-
man v. Crooles, 4 Gr. 353 ; but where, though an agent's accounts were
found to be inaccurate, tliere was no fradulent dealing with the money,
nor any wilful withholding of accounts or fraudulent falsification of
them, interest was disallowed : Turner v. Buikinshaw, L. R. 2 Ch. 488 ;
Jie Kirkpatrick. Kirkpatrick v. Stevenson, 10 P. R. 4.
In practice interest is much more frequently allowed by our juries
tlian English authority would seem to warrant. In this case the court
struck the interest out of the verdict : Spence v. Hector, 24 U. C. R. 277.
On the trial of any issue, or any assessment of damages upon any debt
'or sum certain payable by virtue of a written instrument at a certain
time, interest may be allowed to the plaintiff from the time when tlie
debt or sum became payable: R. S. O. c. 44, s. 86, s s. 1. The contract
.must ascertain the sum and the time : the certainty of Loth must appear
from the contract, but if all the elements of certainty appear by the
'Contract, and nothing more is required than a mathematical computation
to ascertain the exact sum or the exact time for payment, that will be
sufficient: Merchant Shipping Co. v. Armitage, L. R. 9, Q. B. 99; Lond.
•Chat. & Dover Ry. Co. v. S. E. Ry. Co., (IH\)'2), 1 Ch. 120, 144, 148. The
case of Duncombe v. Brighton Club & Norfolk Hotel Co., L. R. 10 Q. B.
371, must be treated as not good law. A mere application for a loan till
a fixed day but containing no obligation to repay, is insufficient, though
the loan is made on the terms of the application: Taylor v. Holt, 3 H.
4& C. 452. The allowance of the interest is diocretionary : Hill v. South
D.C.A. — 14
Section
144
■;. V.f.'..V-i'^l
210
RATE OF INTEREST RECOVERABLE.
ill
m
M
Section Staffordshire Ry. Co., L. R. 18 Eq. 170. The statute is not applicable to
144 cases where a recovery is sought, not against a defendant personally, but
■ against his estate ; and except under extraordinary circumstances, upon
particular grounds suggested of hardship or peculiarity, interest is not to
be allowed upon the arrears of an ani.uity : Snarr v. Badenach, 10
O. R. 131.
If payable otherwise than by virtue of a written instrument at a
certain time, interest may be allowed from the time when a demand of
payment is made in writing informing the debtor that interest will be
claimed from the date of the demand : R. S. 0. c. 44, s, 80, s-s. 2.
Demand held sufficient, see Mowatt v. Londesborough, 4 E. &B. 1;
Mildnmy v. Methuen, 3 Drew. 91; Ex parte Lintott, L. R. 4 liq. 184;
Edwiirds V. G. W. Ry. Co., 11 C. B. 588; Re Overend, Guruey & Co ,
Barron's ruse, L. R. 3 Ch. 784. A claim of interest on the summons is
an insufficient demand : Rhymney Ry. Co. v. Rhmney Iron Co., 25
Q. B. D. 140.
The demand must be in writing: Inglis v. Wellington Hotel Co., 2!)
C. P. 3H7. A solicitor may give notice that he will claim interest on his
bill of costs delivered to his client from the date of the notice : Berring-
ton V. Phillips 1 M. & W. 48 ; Ue McClive, D P. R. 213.
In actions for conversion of goods or for trespass de bonis aitportatis,
the jury may give interest in the nature of damages, over and above the
value of the goods at the time of the conversion or seizure ; and in actions
on policies of insurance, may give interest over and above the amount
recoverable thereon : R. S. O. c. 44, s. 87.
Interest need not be claimed nor special damage laid : Pirine v.
Pritchard, 2 C. & P. 558. On a policy of insurance interest can only
be allowed forthe wrongful detention of money which ouglit to have been
paid ; and when, for want of administration, there was no person clothed
v,'ith a legal title to the money, interest was disallowed : Webster v.
Britisn Empire, Mut. Life Ass. Co., 15 Ch. D. 109; Toronto Savings
Bank v. Canada Life Ass. Co., 14 Gr. 509.
Compound interest is never allowable except by express or implied
contract: Fergusson v. Fyffe, 8 CI. & P. 121; Atwood v. Taylor, 1 M.
& G. 279; Daniel v. Sinclair, App. Cas. iHl.
Where a bill is dishonored, the holder may recover from any party on
the bill, and the drawer may recover from the acceptor, and the iiidorser
who has been compell'jd to pay niny recover from tlie acceptor, or from
the diawer or from a prior indorser, interest from the time of present
ment for payment, if the bill is payable on demand, and from the matur
ity of the bill in any other case: Bills of Exchange Act, 1890, 'i3 Vie.
o. 3S, 8.57,8-8.2; see London Universal Bank v. Clancarty, (lHy2), 1
Q. B. 689 ; Lawrence v. VVillcocks, (1892), 1 Q. B. ()90.
At what rate. — Where interest is recoverable by virtue of a contract,
the rate fixed by the contract will be recoverable, or if no rate is fixed,
then at six per cent. But where there is no express contract to pay in
terest after the principal money becomes due, interest will be allowed
only as damages and will be limited to six per cent : It. S. G. c. 127, s. 2 ;
Dalby v. Humphrey, 37 U. C. R. 514 ; St. John v. Rykert, 10 S. C. I{.
278 ; Powell v. Peck, 12 O. R. 492 ; 15 A. R. 138 ; Grant v. Peoples Loan
and Deposit Co., 17 A. R. 85 ; 18 S. C. R. 262 ; see Freehold l.. & S. Co.
V. McLean, 2 West. L. T. 143.
Where a contract is to pay principal money and interett, and a judg-
ment is recovered thereon, the contract is merged in the judgment, and
interest can only be recovered on the judgment ; and the rate will be six
per cent : Florence v. Drayson, 1 C. B. N. S. 584 ; McKay v. Fee, 20-
TIMES AND PROPORTIONS OF PAYMENT.
211
U. C. R. 268 ; Re European Central Ry. Co., 4 Ch. D. 33 ; tee section 230
intra ; but where there is a separate covenant to pay interest so lon^j as
the principal shall remain due, judgment may be recovered from time to
time for the difference between the interest at the rate specified in the
contract and the rate paid under the judgment : Popple v. Sylvester, 22
Ch. D. 98.
Where an excessive rate is paid after maturity the excess cannot be
recovered back or applied in reduction of the principal ; Hutton v. Fed-
eral Bank, 9 P. R. 508.
A verdict which would entitle a party to judftment if not moved
against, bears interest from the time it is rendered if judfjment is after-
wards entered in favor of the partv who obtained it : R. S. O. c. 44, s. 88 ;
McLaren v. Canada Central Ry. Co., 10 P. R. 328.
A bank cannot stipulate for, take, reserve, recover or exact more than
7 per cent., but may receive such rate in advance : 53 V. c. 31, s. 80.
Other corporations, companies or association of persons, unless otherwise
authorized, are limited to six percent, on loans of moneys, wares, merchan-
dize or other commodities, but certain insurance companies and any cor-
poration constituted for religious, charitable or educational purposes
iiuthorized by law to lend or borrow money, may allow or exact up to
H por cent : R. S. C. c. 127, s. 10 ; see as to Loan Companies, R. S. C.
c. Ill), 8. 9(i ; R. S. O. c. 109, s. 00; 55 V. c. 40, s. 1.
Wiiere payments are made and not specially appropriated to the
piincipal, they may be applied first in reduction of the interest : Mc-
Uregor v. Gaulin, 4 U. C. R. 378; Bettes v. Farewell, 15 C. P. 450; Ross.
V. I'.nruult, Ih Gr. 200 ; Barnum v. Turnbull, 13 U. C. R. 277 ; Cum-
niings v. Usher, 1 P. R. 15.
In England a County Court judgment does not bear interest : R. v.
Judge of Essex Co. Ct., IB Q. B. D. 701 ; but a Division Court judgment
probably bears interest under section 7, but certainly if execution is re-
soited to for collection of a judgment, interest may be levied under sec-
tion 230.'
BeoUoiui
144-146
|ri:.
145. Tlie JuJoe may order the time or times and the Jl^^fit may
proportions in which any sum and c< »st8 recovered by judg- *'"'"» ^^^
iiient of tlie court shall be paid, reference beiiiijf had to the ^""cil"
day on which the sunnnons was served. [But unless other- j^/^fi^j^g'
wise ordered no execution shall issue on any such jud!.";Mient^^"*"
witliin fifteen day- aftt'r the enterin<;' of such judgment]
and at the recjxiost of the party entitled thereto, he may
order the sjime to be paid into court, and the Jud^e, upon'
the application of either party, within fourteen da^'^s after
the trial, and upon good grounds being shewn, may grant
a new trial upon such terms as he thinks reasonable, and
in the meantime may stay proceedings. R. S. O. 1877^
c. 47, s. 107 ; 52 V. c. 12, s. IG.
May order the time or times. — If made at the time of judgment this:
order forms part of it : Robinson v. Gell, 12 C. B. 191 ; Ely v. Moule, &
Ex. 918.
212
NEW TRIAL
Baotlon Upon the application of either party.— Application must be made
1*8 according to Rule 11"2 (nee also Rule 144) ; and care should be taken in
observinK all the requirements of that rule: see also McKenzie v. Keene,
5 U. C. L. J. 225. As to new trial in interpleader cases, nee section 20'J.
Within fifteen days- - This is an amendment to the Consolidated Act
by 52 V. c. 12, s. 1(5. Unless otherwise ordered by the Judf^e, execution
cannot now be issued within fifteen days after the entering of tlie judg-
ment. See section 45.
"Within fifteen days" means clear days; that is, exclusive of the
day of entering judgment and of the day of issuing the execution thereon :
Radcliffe v. Bartholomew, (1892), 1 Q. B. 101.
After the trial. — See last preceding note. Execution cannot issue
under this section within 15 days " (ij'ter the enteriiip of luch jiiddment,"
but the application for a new trial must be made within fourteen dai/s
after the trial.
New Trial. — Should the trial take place on the Ist of the month, the
application should be complete on the ICtli of the same moiitli. It is now
settled that a new trial cannot be granted after the expiration of fourteen
davs from the day of trial : Mitchell v. Mulholland, 14 L. J. N. S. 55 : nee
also Bell v. Lament, 7 F. R. 307; lie Foley v. Moran, 11 P. R. 31«; nee
Soules V. Little, 12 P. R. 533 ; Bland v. Rivers, 19 O. R. 407 ; except in
garnishee matters: McLean v. McLeod, 5 P. R. 4(17; or where the Judge
postpones judgment under section 144, then within 14 days of its delivery :
Rule 142. But a Judge may set aside a judgment for irregularity at any
time : Stewart v. Moore, 9 U. C. L. J. 82 ; Bayly v. Borne, 1 S'tr. 392 ;
Jewell v. Hill, 1 Str. 499. But a stranger cannot apply, even though an
execution creditor: Nichjlls v. Nicholls, 10 U. C. L. J. (i8; Molsoiis
Bank v. McMeekin, 15 A. R. 535 ; unless on the ground of fraud and
collusion : see Balfour v. Ellison, 8 U. C. L. J. 3.J0 ; McGee v. Baird,
8 U. C. I;. J. 233 ; Klein v. Klein, 7 U. C. L. J. 29(5 ; Gridlestone v.
Brighton Aquarium Co., 3 Ex. D. 137; s. c. 4 Ex. D. 107. Where a
Judge has decided an application for a new trial and refused to grant it,
his authority is not at an end ; he may afterwards grant it on fresh
material: Moxon v. London Tramways Co., (50 L. T. N. S. 248; see
G. N. Ry. Co. v. Mossop, .17 C. B. 139 ; Coke v. Jones, 4 L. T. N. S. 30(5.
The Judge may dispense with notice of motion, and grant the order
<.r parte : In re Backhouse v. Bright, 13 P. R. 117, and cases there
cited.
It is only necessary that the application should be made to give the
Judge jurisdiction. The fact that a rule of the Division Court requir-
ing an afiBdavit had not been complied with, was no objection to the
exercise of jurisdiction : Fee v. McIIhargey, 9 P. R. 329.
Application for a new trial is not a waiver of defendant's right to
object to the jurisdiction : In re Evans v. Sutton, 8 P. R. 3(57.
A plaintiff who has taken a non-suit rather than go to the jury on an
unfavorable charge, cannot obtain a new trial : McGrath v. Cox, 3
U. C. R. 332 ; nor if he has taken a non-suit during the charge: Eraser v.
North Oxford & West Zorra Plank Road Co., 15 U. C. R. 291.
The withdrawal of a juror does not put an end to the cause. If there
baa been a breach of the terms on which the juror was withdrawn, the
court may re-try the action : Thomas v. Exeter, etc., Co., 18 Q. B. D.
822; and so if the Judge has decided that he has no jurisdiction, but
afterwards concludes that his decision was erroneous, he may grant a
new trial : Lister v. Wood, 23 Q. B. D. 229 ; and a new trial may be
granted where a plaintiff has taken a non-suit in deference to a Judge's
ruling : Burn v. Belcher, 14 C. P. 415 ; Hatton v. Fish, 8 U. C. R. 177.
GROUNDS FOR GRANTING NEW TRIAL.
21$
st be made
be taken in
e V. Keene,
section 2(5'.).
lidated Act
3, execution
3f the jud{4-
isive of the
on thereon :
annot issue
I jiiihimeiit,"
)urtetn days
month, the
It is now
of fourteen
N. H. .').'> : nee
R. 310; see
; except in
re the Jud}^e
its delivery :
arity at any
1 Str. 392;
in thoujJth an
[\S ; Molsons
if fraud and
ee V. Baird,
ridlestone v.
7. Whex'e a
d to grant it,
t it on fresh
. S. 248; aee
T. N. S. 30(>.
mt the order
cases thei'e
le to give the
[lourt requir-
Bction to the
lant's right to
B7.
he jury on an
th V. Cox, 3
•ge: Fraserv.
91.
use. If there
ithdrawn, the
.,18Q. B. D.
■isdiction, but
may grant a
trial may be
:e to a Judge's
J. C. R. 177.
Upon tfood grounds.— What are good grounds is a question for the
Judge ; and if he grants a new trial his decision will not be reviewed on
prohibition, even where he finds misconduct of the jury, without any "
evidence to warrant it; Moxon v. London Tramways Co., 60 L. T. N. 8.
218. But in appealable "/ases his finding might be set aside, and the Judge
should not in an unappealable case grant a new trial upon other grounds
than would be sufficient it his finding were subject to appeal. A new
trial should never be granted except upon grounds which would be suffi-
cient in the High Court : Murtagh v. Barry, 24 Q. B. D. 632 ; i.e., that
some miscarriage of justice would ensue, unless granted : Jenkins v>
Morris. 14 Ch. D. 684 ; Grieve v. Molsons Bank, 8 O. R. 102.
The following are the grounds for granting a new trial :
1. Improper admission or rejection of evidence.
2. Improper non-suiting of plaintiff.
8. Misdirection, or non -direction of the jury.
4. Perverse verdict or verdict against the weight of evidence.
5. Verdict too small or too great.
6. Surprise and discovery of new evidence: Arch. Pr. 13th ed. 1210.
The Judge, of course, also has power to grant a new trial upon the
ground that his judgment was wrong, either in law, or fact upon the
evidence before him.
At common law upon any improper admission or rejection of evidence,
or any misdirection, in point of law, of the jury, a new trial was granted,
but the modern rule in the High Court is that a new trial should not be
granted on these grounds, unless some substantial wrong or miscarriage
lias taken place : C. K. 791. This principle of practice may be adopted
by the Judge of the Division Court : see section 304 infra.
A new trial for the improper admission of evidence would not be
granted unless objected to at the trial : Campbell v. Beamish, 8 U. C. R.
620, and if it could be shewn that there was sufficient evideoce to support
the verdict independently of the evidence improperly admitted a new
trial would be refused : Appleton v. Lepper, 20 C. P. 138 ; Dundas v. John-
son, 24 U. C. R. 547 ; Cooiey v. Smith, 40 U. C. R. 543 ; but if the Judge
commented to a jury on the inadmissible evidence as important, a new
trial should be granted : Bank of Hamilton v. Isaacs, 10 O. R. 450.
Misdirection can only be in point of law, not on a matter of fact ; and
the objection to the charge either for misdirection or for non-direction
must be taken at the trial : li. v. Fick, 16 C. P. 379 ; Taylor v. Ashton^
11 M. & W. 401. A Judge may tell the jury his own opinion: Dough-
erty v. Williams, 32 U. C. R. 215 ; Smith v. Dart, 14 Q. B. D. 105.
Non-direction is onlv a ground for new trial when the verdict is against
the weight of evidence :" G. W. Ry. Co. v. Braid, 1 Moo. P. C. N. S. 101 ;
9 Jur. N. S. 339.
Where a non-suit is set aside in a case tried by a jury, the defendant
is entitled to a new trial for the purpose of calling evidence ; but where
the action is tried by a Judge, he is not so entitled, and the Judge may-
enter judgment under section 140 for the plaintiff: Macdonald v. Worth-
ington, 7 A. R. 531. A non-suit granted without the plaintiff's consent^
on the opening speech of counsel, will be set aside : Fletcher v. L. and N.
W. Ry. Co., (1892), 1 Q. B. 122.
Where there is evidence upon which the jury might reasonably find
the verdict, a new trial will not be granted : Webster v. Friedeberg, 17
Q. B. D. 736 ; Metrop. Ky. Co. v. Wright, 11 App. Cas. 152 ; Commis-
sioners of Railways v. Brown, 13 App. Cas. 133 ; see Grieve v. Molsons.
Bank, 8 O. R. 162; Malcolmson v. Hamilton, P. & L. Socy.,10A. E.
610 ; Heintzman v. Graham, 15 O. R. 137.
Section
140
214
JUDOMEXT ON AIM'LICATION.
iin
hIiow on att'ulavit what facts lie can
U. C. U. 28!»; White v. lirown, V2
Section Where tlie dftmiiKes awarderl are cxceHHive, the court may reduce
14S them with tlie cuiiHontof the pi lintitT alone witiiout ({ranting' a new trial ;
Bolt V. Lawes. 12 g. U. 1'. 3')() ; Massio v. Toronto Pt«. Co., 11 O. 11.
302.
Where the jury have, manifestly, not considered all the elements of
damage, a new trial will he {,'ranted : Phillips v. L. AS. W. Uy. Co.,
6 Q. li. I). 7H. A new trial will not he f,'ranted merely to adduce corro-
borative evidence : Miller V. (!onfeilcration Jjife Ass. Co., 14 A. 11. 2lH ;
Merchants Bank v. Lucas, IH O. U. u2() ; McDerniott v. Ireson, iW
U. C. 1{. 1.
If new evidence is discovtsred. it must he material, and nearly or quite
conclusive, and that it coidd not have heeii produced at tlie former trial :
Kynod v. De i{la(]uiere, 10 P. It. 11 ; Anderson v. Titmas, M L. T. N. H
711 ; Kowe v. CJ. T. K. lU. Co., 10 C. P. .",00 ; Downey v. Patterson, iiS
U. C. K. 513.
The witness himself should
prove: Kobinson v. Rapelje, 4
U. C. H. 47? ; Bates v. Cliisholm, 7 C P. 40 ; Longueuil v. Cushman, 24
U. C. K. 002.
Surprise may he a fjrouiid for new trial, but the party applyinf» must
have adopted all reasonable and proper precautions for properly present-
ing and proving his case. It may consist in the absence of solicitor,
counsel or witnesses, or on the ground of testimony being contrary to
expectation, or of false or mistaken evidence : sec Kitchen v. Murray, 10
C. P. 09; Martin v. Corbett, 7 U. C. R. 109; Livingstone v. Gartshore,
23 U. C. R. KiO; Chadd v Meagher, 24 C. P. .'54.
There should be an affidavit shewing a good cause of action or defence
on the merits which can be sustained on a new trial : Moore v. Ilicks,
U. C. R. 27; Moore v. Gurney, 22 U. C. R. 20'.». It is usually made a
condition that the costs of the former trial and of the motion be first
paid. Where the action is of a penal character, the court will not grant
the plaintiff a new trial except on account of a mistake or misdirection
of the -Judge: Stinson v. Hcollick, 2 O. S. 217; Root v. Woodward, 1
U. C. R. 311 : or that the verdict is in contravention of law : Atty.-Geii.
V. Rogers, 11 M. & W. 070. The court will rarely grant a new trial where
an issue charging a party with a criminal offence is found in his favour :
Gould V. British Am. Ass. Co., 27 U. C. R. 473; but see McMillan v.
Gore Dist. M. F. Ins. Co., 21 C. P. 123.
Where the jury answered all the (juestions submitted by the -Judge,
but tiieir findings were insufficient to justify a verdict for either party,
a new trial was ordered, each party to bear his own costs of appeal and
new trial : Fradenburgh v. llaskins, 12 A. R. 257 ; see also St. Denis v.
Baxter, 13 O, R. 41 ; 15 A. R. 387.
in"appH"a- 140- Upon ail application for a new trial the Judge,
new^trPa^is, instead of granting a new trial, may pronounce the judg-
appeais. ment which in his opinion ought to have been pronounced
at the trial, and may order judgment to be entered accord-
ingly. 47 V. c. 10, s. 10 (4).
Formerly any mistaken view of the law or fact, by the Judge, could
only be remedied by the granting of a new trial : Pryor v. City Offices
Co., 10 Q. B. D. 504. Under this section, however, the -Judge has power
to prontunce the judgment which, in his opinion ought to have been
EXECUTION WITHIN FIFTY DAYS.
215
pronounced at tho trial, and to order tliat judgment be entered accord- Beotlom
in^ly. TliiM cannot, it in uiibmitted, be done if tlie case be tried by a 146-147
jury, except by directing' a non-Huit upon the ground tliat tiiere was no ^
evidence to Kubniit to tho jury: McConnell v. Wilitins, I'A A. R. 438;
Allcock V. Hall, (IH'.U), 1 Q. H. 444. If the Judf^e has power to disregard
tlio verdict of tlie jury and find a verdict himself, tliat power should be
moat cautiously and sparingly exercised: Stewart v. Hounds, 7 A. R.
r>l'), and should not, it is submitted, be used to liiid a verdict for the
plaintiff or assess his (laiiia>^es, unless the facts are all uncontradicted
and there is notiiiiiti to do, therefore, but direct tho jury to brin^ in a
I)articular verdict : see Touliiiin v. Millar, 12 App. (Jas. 74(1 ; Yorkshire
HankiiiK Co. v. Ucatson, '>('. !'. I). 10!); MeUisch v Lloyds, 4()L. J. C. P.
404; Perkins V. Daiif^erfleld, 51 L. T. N, 8. 585; Garland v. Thompson,
!) O. R. H7().
14T. Except in ca.ses wliero a now trial is granted, tlie Jj^^f t^^lfg"
issue of execution shall not be post[)one(l for more than fifty {o'^more'*
(lays from sei'vice of the summons without the consent of daya. ^
tho party entitled to the same, but in case it at any time
a|)pearH to the satisfaction of tho Jud;^e, by affidavit, affir-
ination or otherwise, that a defendant is miable, from
sickness or other sulHcient cause, to pay and dischary'o the
the debt or dama;.;'es recovered a<^ainst him, or any instal-
ment thereof, ordered to be jiaid as aforesaid, the Judge
may suspend or stay any Judonient, order or execution
given, made or issued in the action, for such time and on
such terms as he thinks tit, and so from time to time until
it appears l)y the like proof that the temporary cause of
disability has ceased. R. S. O. 1877, c. 47, s. 108.
New trial. — See notes to section 14;!
Not more than fifty days. — This excludes the day of service: Young
V. Higgon, M. A W. 4» ; McCrao v. Waterloo M. b\ Ins. Co.. 2(\ V. P.
4:-i7 ; K. C. 1 A. R. 218. In fixing the time of payment the date of the
sfvviceof the summons should always be obsei'\'ed. Uiilesn coiinented to,
the Judge has no power to postpone the execution more than fifty days
from the sei'vice of the summons.
Execution may be amended so as to make it conform to the judgment:
Glass V. Cameron, 9 O. H. 712.
Affidavit or affirmation. — See notes to sections 80, 111, 143; Rules
13:5, i;}4.
Or otherwise. — See note to section 110, ante p. 151.
Other sufficient cause. — The power given to the Judge under this
section is extensive and unusual, and should be sparingly and cautiously
used : 8 U. C. L. J. 204. "Tho Judge mm/ suspend or stay execution,
implying the exercise of judgmejit, not arbitrary discretion, but judicial
discretion, in viev/ of all the facts. We have no hesitation in saying that
the practice of granting t'.c parte suspensions is a monstrous perversion of
the true meaning of the clause, and a gross violation of the vital princi-
ple of justice :" 9 U. C. L. J. 177.
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216
APPEALS.
Sections
147-148
Appeal.
Bev. Stat.
0.47.
ExecuMon can only be suspended or stayed for one or more of the?
causes mentioned in the section. It was held that the court could not
restram a plaintiff from levying his debt out of any one of several defend-
ants he pleased : Zavitz v. Hoover, M. T. 2 Vic. ; nor will the plaintiff be
compelled to proceed against the goods of several defendants in succession
first exhausting one, and then levying upon the goods of another : Com.
Bank v. Vankoughnet, 1 Cham. R. 2C0.
The court or Judge has not the power to delay a plaintiff's proceedings,
on an execution to enable defendants to institute an action, and to acquire
a position in which they may apply to set-off the judgment to be recov-
ered by them against plaintiff's judgment : Lynch v. Wilson, 9 U. C. L. J.
242, per Draper, G.J. ; see alSo Freeland v. Brown, 9 U. C. L. J. 299 ;
Maw V. Ulyatt, 7 Jur. N. S. 1300 ; s. c. 5 L. T. N. S. 251 ; Johnson v.
Lakeman, 2 Dowl. 646 ; Thompson v. Parish, 6 C. B. N. S. 685.
It is difficult to give a meaning to the words " or other sufficient
cause." " When general words follow particular ones, the rule is to con-
strue them as applicable to persons ejusdem generis" per Tenterden, C.J.,.
"Sandiman v. Breach, 7 B. & C. 99; Kitchen v. Shaw, 6 A. & E. 729, per
Denman, C.J. It is submitted that these words are ejusdem generis with
the word " sickness " preceding them : i.e., some cause which would pro-
duce a temporary disability in the same manner as would sickness.
In acting under this section the plaintiff should have notice of the
application, and a copy of the affidavit on which it is grounded served
upon him, and should be called upon to shew cause against granting a
stay in the execution : 8 U. C. L. J. 264 ; «ee 6 U. C. L. J. 205 ; see also notes
to section 86 aHte, p. 119, 120.
But if the plaintiff should be present no summons to shew cause would
be necessary : Baird v. Story, 23 U. C. R. 624 ; Watt v. Ligertwod, 2
Scotch App. 367, n.
APPEALS.
14H. (1) In case a party to a cause [or any of the'
parties to garnishee proceedings under this Act], wherein
the sum in dispute upon the appeal exceeds .^100 exclusive
of costs, is dissatisfied with the decison of the Judge, upon
an application for a new trial, he may appeal to the Court
of Appeal, and in such case the proceedings in and about
the appeal, and the giving and perfecting of the security,
shall be the same as on an appeal from the County Court,
except where otherwise provided by this Act, and the terms.
" party to a cause " and " appellant " in this section and
hereafter used, shall have the meaning attached thereto in
and by section 40 of The County Courts Act [and shall
include any party to garnishee proceedings and any party
added by order of the Judge]. 48 V. c. 8, s. 17 ; 51 V.
c. 10, 8. 2.
(2) An appeal shall also lie to the Court of Appeal
from the decision of a Division Court Judge upon an.
MUTUAL INSURANCE APPEALS.
2ir
application for a new trial in all actions in which the Section
parties consent to an appeal, and in interpleader, where r
the money claimed, or the value of the goods or chattels inter-
*' ' '^ pleader
claimed or of the proceeds thereof, exceeds $100, or where p^oceed-
^ > ' ' ings.
the damages claimed by or awarded to either party against
the other or against the bailiff, exceed the sum of $60. 47
V. c. 10, s. 9 ; 48 V. c. 14, s. 7.
Any party to a cause. — Section 40 of the County Courts Act (R. S. O.
c. 47) defines " party to a cause" and " appellant," to include " persons
suinf* or being sued in the name of others, though not mentioned in the
record, and persons on whose behalf or for whose benefit any action is
prosecuted or defended, as well as parties named in the record." The
phrase would, therefore, include an assignee suing in the name of his
assignor and a person who had indemnified a defendant, and was defend-
ing the action brought against the party indemnified.
Ordinarily parties to a cause are merely the original parties in an
action : Beswick v. Boffey, 9 Ex. 315 ; Mason v. Wirral Highway F^oard,
4 Q. B. D. 459. A next friend is not a party to a cause : Sinclair v.
Sinclair, 13 M. & W. 640 ; Dyke v. Stephens, 30 Ch. D. 189 ; Taylor v.
Wood, 12 C. L. T. 195, nor is a guardian ad litem : Ingram v. Little, 11
Q. B. D. 251.
A garnishee is not a party to a cause. The garnishee proceedings are
grafted upon the cause, and are merely attached thereto : Cameron v.
Allen, 10 P. R. 192.
Under the Judicature Act "party" includes every person served
with a notice of or attending any proceeding although not named in the
record : R. S. O. c. 44, s. 2 ; see Fraser v. Burrows, 2 Q. B. D. 624 ;.
Burstall v. Fearon, 31 VV. R. 581.
If a third party should, under order of a Division Court, have authority
to defend the action, it is submitted, he would be a party to the cause as
interpreted by section 40 of the County Courts Act : see McAllister v.
Bishop of Rochester, 5 C. P. D. 194 ; Filler v. Roberts, 21 Ch. D. 198 j
Eden v. Weardale Iron & Coal Co., 34 Ch. D. 223 ; 35 Ch. D. 287.
New Trial. — An appeal lies from either the granting or refusal of a
new trial : Pole v. Bright, 8 T. L. R. 69 ; (1892), 1 Q. B. 603.
Garnishee proceedings. — An appeal was first allowed by a garnishee
by 51 Vic. c. 10 : see Cameron v. Allen, 10 P. R. 192.
Mutual Insurance Appeals. — 52 V. c. 31, s. 3, provides : " Where in
any Division Court suit or proceeding a decision is rendered which in
effect, or in terms, declares invalid any general assessment made by a.
mutual insurance company, such decision shall be appealable notwith-
standing the sum in dispute upon the appeal is less than $100, and all
the provisions contained in sections 148 to 153, both inclusive, of the
Division Courts Act shall apply to such appeal."
This provision merely enables the company to carry a suit to an
appeal as a test case. It frequently happens, however, that an assess-
ment attacked as invalid by a large number of policy holders ia held good
by a Division Court Judge, and there is no power to appeal therefrom
unless the judgment against one of the defendants exceeds $100. It.
would be useful to allow an appeal by leave, where a number of actions,
involve the same question, so as to make the rights of parties equal.
j;...i
^18
Section
148
GENERAL PRINCIPLES OF APPEAL.
Sum in dispute. — This is the sum for which judgment has been given.
The fact that such sum, with interest subsequently accrued, exceeds $100,
" will not give a right of appeal : Foster v. Emory, 14 P. R. 1.
General principles of appeal. — An appeal does not he in any case
unless given by statutory enactment: R. v. Cashiobury (Jus.), 3 D. & R.
35 ; 11. V. Hanson, 4 B. & Aid. 521 ; R. v. Stock, 8 A. & E. 405 ; R. v.
Recorder of Ipswich, 8 Dowl. 103.
The creation of a new right of appeal requires legislative authority :
Attj .-General v. Sillem, 10 L. T. N, S. 434 ; and where that right is so
conferred, it is, in the absence of any other statutory provision, the only
one that can be tpken : Thomas v. Hilmer, 4 U. C. R. at p. 528, per Rob-
inson C.J. ; Pattypiece v. Mayville, 21 C. P. 316 ; Ik re Newton, 8 Jur.
N. S. 495.
An Appellate Court does not reverse the decision of a court below it,
simply because it mignt on the facts have come to a different conclusion.
The Appellate Court sees that the inferior court is clearly wrong before
reversing its decision : Keena v. O'Hara, Ki C. P. at p. 438, jx'r Richards
C.J. ; The Picton, 4 s. C. R. 648 ; Ryan v. Ryan, 5 S. C. R. 406 ; Grassett
V. Carter, 10 S. C. R. 107 ; Prentice v. Consolidated Bank, 13 A. R. 69 ;
Svnimington v. Symmington, L. R. 2 Sc. App. 424 ; Berdan v. Green-
wood, 20 Ch. D. 769.
The provisions of the English County Court Act are different from
tliose of this Act. Under the English Act, an appeal cannot be taken
except on questions of law, or the improper admission or rejection of
evidence, and for that purpose the Act of 1888, section 121, superadds
the requirement that tlie Judge shall take a note of any questions of law
raised at such trial or hearing, and of the facts in evidence in relation
thereto and of his decision thereon, and of his decision in the action or
matter. His decision upon the facts cannot be reviewed : Cousins v.
Lombard Bank, 1 Ex. D. 404.
And any point of law intended to be ruled upon must be raised in the
inferior court : Rhodes v. Liverpool Com. Inv. Co., 4 C. P. D. 425 ;
Clarkson v. Musgrave, 9 Q. B. D. 386; Smith v. Baker, (1891), A. C. 325.
Under our statute, the Judge of the Appellate Court has the right to
review the decision of the Division Court on questions of fact as well as
of law.
Statutes relating to Appeals. — The Act relating to appeals from the
County Court is made the basis of appeal under this statute, so that
reference to it will be necessary for a proper understanding of the appeal
clauses of this Act. The statute made specially applicable to this section
is R. S. O. c. 47, of which section 40 is given above. The other sections
of that Act which may be considered in connection with this are sections
43, 48 and 49, and are as follows :
" 43. An appeal may be had from any appealable decision of a County
Court Judge, notwithstanding judgment has been signed thereon : pro-
vided that the required security be given within the time limited by the
Judge under section 40 ; and in every case the allowance of the bond by
the Judge shall operate as a stay of execution, unless the Judge shall
otherwise direct."
" 48. In case of security being given by bond, the parties executmg
the same shall justify to the amount of the penalty of the bond by affi-
davit annexed thereto, in like manner as bail are required to justify."
" 49. The bond and affidavit of justification, and an affidavit of the due
execution of the bond, shall be produced to the Judge, to be approved of
by him ; and upon being a[)proved of shall be filed in the office of the
court appealed fi'om until the opinion of the Court of Appeal has been
given, and shall then be delivered to the successful party."
WHEN CASES APPEALABLE.
219
When an Appeal lies. — As previously remarked, the Court of Appeal
lias under this section a power of review, not only over the law, but the
factsof any case brought before it. "The defendant, supposing him to be
unsuccessful in the Division Court, is better off than he would be in the High
Court of Justice, for he can promptly and with but little expense, crave
the highest opinion in the province by having recourse to the Court of
of Appeal as provided by the statute," per Falconbridge, J., In re Gegg v.
Adams, 9 C. L. T. 311 ; S. C. 10 C. L. T. 2.
Tliere is no appeal direct from the Judge's decision on the trial of a
cause, but only after he has decided " an application for a new trial."
It is submitted that no appeal will successfully lie against the reason-
able exercise of the discretion of the Judge : Goodes v. Cluff, 13 Q. B. D.
6!)4; Virtue v. Hayes, 9 C. L T. 207 ; Nelson v. Thorner, 11 A. R. 616.
In Manning v. Ashall, 23 U. C. R. 302, the appeal was against the grant-
ing of a new trial because " the verdict was against evidence, or at all
events against the greater preponderance of evidence." Draper, C.J., in
delivering the judgment of the court says : " The decision involved no
point of the law, strictly speaking, and certainly does not decide the ques-
tions which were argued before us. We think we should not give effect to
an appeal from a decision of the Judge of a County Court on a point lijce
this which is so truly an exercise of discretion by one who, having pre-
sided at the trial, and seen and heard tlie witnesses, is in a much more
favorable position to decide correctlv than this court can be." See also
Williams v. Jones, 34 Ch. D. 120 ; Bazett v. Morgan, 24 Q. B. D. 48 ; Piatt
v. G. T. Rv. Co., 12 P. R. 380; Jones v. Tuck, 11 S. C. R. 197; R. v.
Richardson, 8 O. R. 651 ; Eureka Woollen Co. v. Moss, 11 S. C. R.91 ;
but see R. v. Meyer, 11 P. R. 477.
At the trial the plaintiff elected to take a non-suit and the Judge re-
fused a new trial ; it was held that the case was appealable : Rank of
Ottawa V. McLaughlin, 8 A. R. 543.
Formerly an appeal did not lie on an interpleader issue ; but provision
is now made for an appeal in such cases by sub-section (2) of this sec-
tion : see note to sub-section 2.
The parties cannot waive a motion for a new trial and go direct to the
Court of Appeal : McCoU v. Waddell, 19 C. P. 213.
The appeal given here would not apply to orders for committal under
section 240 ; Rackhain v. Blowers, 15 Jur. 758.
" Either party " lias a right to appeal (in any case the subject of ap-
peal) against the decision of a Judge, on an application for a new trial :
xee section 150 ; Foster v. Green, 6 H. & N. 793.
A purely technical objection to a party's right of action, which had
not been made in the court below, and could i^ave been met by evidence,
would not, it is submitted, be entertained in appeal ; Bank of Bengal v.
Fagan, 7 Moo. P. C. 61 ; Kay v. Marshall, 8 C. & F. 245 ; Midland
Banking Co. v. Chambers, L. R. 4Ch. at. p. 400, per Selwyn, L.J. ; Mac-
dougall V. Knight, 14 App. Cas. 194 ; nor a point as to which it is not
clear beyond doubt chat the facts, if fully investigated, will support it :
Connecticut Mniual Fire Ins. Co. v. Kavanagh, (1892), A. C. 473 ; Flatt
V. Waddell, 16 O. R. 539 ; but a substantial question, upon the construc-
tion of th j document, or upon facts either admitted or proved beyond
controversy, though not raised at the trial or on the motion for new
trial mi.st be entertained on appeal : Gray v. Richford, 2 S. C. R. 431 ;
but if the appeal is allowed on a point not raised below ; the appellant
may be disallowed costs : Garrett v. Roberts, 10 A. R. 650.
Where the evidence shews a total absence of foundation for the con-
clusion at which the Judge has arrived, his decision will be reversed on
Section
148
i'M
;; ( (
rmmmtfm
220
WHEN CASES APPEALABLE.
^i:4\
Section appeal: British Industry L. Ass. Co. v. Ward, 17 C. B. 644 ; McLLod v-
148 Chetwynd, 10 C. L. T. 345.
An order need not be formally drawn up on the application for a new-
trial before appealing : In re Jones, 4 P. R. 317.
An appeal would not, it is submitted, be entertained, not on the ground
of the merits of the party's case, but upon a mere formal defect in pro-
cedure on the part of the opposite party: Kenniugton, Ex parte, 8 Jur.
N. S. 1111.
A question of practice would not be appealable : B. v. Stubbs, 1 Jur..
N. S. 1115.
Should a Judge be ready to deliver judgment, but formally delay it
until a certain day in order to facilitate an appeal, judgment delivered
on the day to which postponement made would be the formal delivering,
of it; Rathbone v. Munn. 18 L. T N, S. 856 ; In re Burrowes, 18 C. P.
493 ; Re Smart and O'Reilly, 7 P. R. 364.
But a Judge cannot by post-dating his judgment extend the time for
appealing: Wilberforce v. Sowton, 39 L. T. N. S. 474; see Brown v.
Shaw, 1 Ex. D. 425 ; Hemming v. Blanton, 42 L. J. C. P. 158; 21 W. R.
636; Richardson v. Silvester, 29 L. T. N. S. 395 ; Barker v. Palmer, 8
Q. B. D. 9.
Parties will be bound by the case made by the papers, certified by the
clerk, and will not be allowed to travel out of it : Watson v. Ambergate,
etc. Ry. Co., 15 Jur. 448; Williams v. Evans, L. R. 19 Eq. 547; Rhodes
V. Liverpool Com. Inv. Co., 4 C. P. D. p. 427, per Coleridge, C.J.
The respondent will be equally bound by what appears in the certified
proceedings, even though not correct ; but probably the Judge in appeal
would, if any inaccuracy were sliewn to him, either refuse to hear the
appeal : Yorke v. Smith, 21 L. J. Q. B. 53, or send it back for correction ;
Thornwell v. Wigner, L. R. 6 Ex. 87, wher" *' " " result of the evidence "
only was returned to the Court of Appeal, ^ce also Sullivan v. Francis,
18 A. R. 121 ; Mahon v. Inkster, 6 Man. L. R. 253.
The death of a respondent would not deprive the appellant of his right
of appeal : Hemming v. Williams; L. R. 6 C. P. 480; but possibly the
suit might have to be revived : Rules 155-158.
If a case is referred to arbitration there is no appeal : Mayer v.
Farmer, 3 Ex. D. 235 ; nor would the consent of parties make any dfffer-
ence: McCoU v. Waddell, 19 C. P. 213.
Where a judgment is obtained by fraud, appeal is not the remedy :
Flower v. Lloyd, 6 Ch. D. 297 ; 10 Ch. D. 327.
Upon an appeal from the decision of a County Court in England, in
an action for dilapidations, the case, without saying what the evidence
given was, stated that the Judge told the jury that it was not like an
action for goods sold and delivered, and that the plaintiff might rest
upon general evidence in support of his particulars of demand, without
proving every item, especially as the jury had viewed the premises with
the particulars in their hands, and therefore would be able to judge
whether and to what extent the plaintiff had made out his case. The
court directed a new trial : Smith v. Douglas, 16 C. B. 31.
The right of appeal is not lost because the Judge omits to take down
the evidence on the trial: Sullivan v. Francis, 18 A. R. 121; Bank of
Montreal v. Statten, 1 C. L. T. 66.
A Judge is bound to do all that is legally required of him to facilitate
an appeal : Irving v. Askew, L. R. 5 Q. B. 208, and probably an applica-
tion to compel him to do so would be appealable : Clarke v. Roche, 36-
L. T. N. S. 727 ; Crush v. Turner, 3 Ex. U. 303. Where a Judge dies-
■^
APPEAL IN INTER!' ;ADER.
221
the now Judge may proceed to complete the appeal : McCallam v. Cook-
.son, 6 C. B. N. S. 498.
As to mandamus on refusal to supply Judge's notes, see B. v. Sheffield
€o. Ct. Judge, 5 T. L. R. 303.
It was held that there was no appeal against a judgment entered by a
County Court Judge pro forma in order to expedite an appeal :' Chapman
V. Withers, W. N. (1887), 235.
No appeal will lie from an order of a Judge directing the clerk to sign
judgment, which, without such order, he should have signed : Barr v.
Clark, 8 C. L. T. 30 ; 5 Man. L. R. 130.
Consent to an appeal. — It is somewhat difficult to believe that the
legislature intended to give the righii to appeal in all cases, no matter how
little was involved ; but there appears to be no escape from that conclu-
sion on the wording of the section. Wlien the parties consent to an
appeal, tlie Judge is bound to take down the evidence in writing: section
115 is made applicable to such cases : section 155, s-s. 2.
When there are notes of evidence taken by the Judge in existence,
they must be certified to the court : Lumb v. Teal, 22 Q. B. D. 675 at
pp. 678, 680.
Qnccre — WhetLar an appeal lies by consent in garnishee proceedings.
The section does not declare that the consent need be in writing, and in
the absence of such provision, a written consent would be unnecessary :
R. v Salop (Jus.), 4 B. & Aid. 626 ; R. v. Surrey (Jus.), 5 B. & Aid. 539 ;
R. V. Huntingdonshire (Jus.), 19 L. J. M. C. 127 ; R. v Lincolnshire (Jus.),
3 B. & C. 518; R. v. Nicol, 40 U. C. R. 76; Ex ■parte Butters, in re
Harrison, 14 Ch. D. 265.
It would, however, be advisable in all cases that a formal written
consent should accompany the papers to the Court of Appeal, see notes
to section 91. For form of consent see Forms.
Appeal in Interpleader Proceedings. — The words of this section pro-
viding for an appeal in interpleader are very similar to those of the Eng-
lish County Courts Act, 1888, (51 & 52 V. c. 43, s. 120).
The proceedings in interpleader, being merely collateral, no right of
appeal existed under the statute of 1880, which first gave an appeal : Re
Turner v. Imp. Bank of Canada, 9 P. R. 19 ; Bank of Montreal v. Stat-
ten, 1 C. L. T. 66.
The bailiff should not return, but on the contrary should retain his
execution in the original action until the disposal of the appeal : Angell
V. Braddeley, 3 Ex. D. 49.
Money claimed. — The appeal is given where the money claimed, or
the value of the goods, or the proceeds theseof exceeds $100 ; or where
the damages claimed or awarded, under section 269, against either party
or the bailiff exceed $60. The value of the goods and the amount of
damages cannot be added together so as to make an appealable case. The
value of the goods may be $100 and the damages 960, cim yet there will
be no appeal : White v. Milne, W. N. (1887), 256 ; 58 'u. T. 226 ; Lumb v.
Teal, 22 Q. B. D. 675.
It is submitted that no appeal lies even by consent in interpleader
proceedings, unless the requirements of the statute as to value or amount
are complied with ; such proceedings not being an action : see CoUis v.
Lewis, 20 Q. B. D. 202 ; Coulson- v. Spiers, 9 P. R. 491 ; Hambyn v.
Betteley, 6 Q. B. D. 68.
It is by no means clear that section 115 applies to interpleader : per
Osier, J.A., Sullivan v. Francis, 18 A. R. 122 ; but $ee section 155, s-s. 2,
-which makes that section applicable.
Section
148
i* ■^ r
ii!
smmmmim
222
Sections
148-149
m\
stay of
proceed-
ings.
CROSS-APPEALS.
The statute makes no provision for appraisement of goods seized on
execution, as it does in attachment cases, under the 251st. section, and
~ the question is, who is to determine the value of the goods? Is it the
bailiff who makes the seizure, or the Judge who tries the interpleader
issue? The "value" is not upon the goods that may bo seized or other-
wise taken by the bailiff, but only on those concerning which the inter-
pleader proceedings are to be had.
Where among the papers returned was a lot of goods bought by the
claimant at an auction sale, it was assumed by the appellate court that
the figures opposite to each article represented the price : Sullivan v.
Francis; 18 A. R. 121.
Proceeds of goods. — There can only be an interpleader in the Division
Court for the proceeds of goods, where the claim is made to such pro-
ceeds, and if a claim is laid to the goods seized, there could not, without
the consent of parties be an issue in respect of the proceeds of them :
Eaid V. McDonald, 26 C. P. 147.
It is submitted that the words " proceeds" as here used, would mean
the prosg amount received by the bailiff on sale of goods. Wharton
defines the meaning of the word to be " the sum, amount or value of
goods, etc., sold or converted into monev." See Jones v. Parcell, 11
Q.B.D. 430.
Money paid by the claimant under protest to obtain possession of his
goods, would be proceeds thereof within the meaning of the s'^ct'on :
Smith V. Critchfleld, 14 Q. B. D. 873.
It was doubted whether, in interpleader proceedings, an appeal would
lie from a decision of a Judge in the Division Court on the question of
damages : Fox v. Symington, 13 A. R. 290 ; but this sub-section now
makes provision for appeal in such cases.
Ci'oss-Appeal — The respondent may, without any notice, ask for
more than his judgment gives him by way of cross-appeal : Hutson v.
Valliers, 19 A. R. 154. If the appellant may then abandon the appeal,
he would, nevertheless, on the respondent proceeding with his cross-
appeal, be entitled to urge his original contentions : The Beeswing, 10
P. D. 18.
149. A Judge of the County Court for the county in
which the cause was tried, on the application of the person
proposing to appeal, his counsel, solicitor or agent, shall
stay the proceedings in the cause, for a time not exceeding
ten days from the day of giving judgment on the applica-
tion for a new trial, in order to afford the party time to give
the security required to enable him to appeal. 43 V. c. 8,
s. 18.
(1) [Which security to be given by or on behalf of the ap-
pellant, shall be either by a bond to the respondent executed
by two persons whether named as sureties or as parties
interested or otherwise in the sum of $100 or such smaller
sum as the Judge may direct, conditioned that the appel-
lant shall abide by the decision of the cause by the Couri
li
STAY OF PROCEEDINGS.
22a
of Appeal, and pay all sums of money and costs, as well of s«ctton
the action as of the appeal, awarded and taxed to the oppo
site party ; or by payint^ into the court appealed from in
the manner provided by law, within the time herein limited
for the perfectinjj^ of an appeal bond, the sum of .^50 or such
smaller sum as the Judjije may direct.]
(2) [In case security is given by deposit of asumof money
in court, such sum .shall remain in court as security for the
payment of all sums of money and costs,, as well of the
action as of the appeal, awarded and taxed to the opposite
party.] 53 V. c. 10, ss. 1, 2.
Stay of proceedings. — While the sections relating to appeal do not
provide any particular time within which either the security may be
given or the appeal brought on, it would appear from two of them that
the security must be t^iven within 10 days from the giving of the judg-
ment upon the application for new trial. Section 43 of the County
Courts Act and the concluding words of sub-section 1 of section 140, are
the only statutory provisions indicating that security must be given
within the time during which the Judge may stay proceedings. If this
be the correct construction of the various sections a Judge may entirely
prevent an appeal by limiting the time for givinti security, and his order
would not be appealable. But in Boyd v. Brander, 14 P. R. 281, it was
held that the time for perfecting the security was not restricted to the
10 days during which the Judge was authorized to stay proceedings.
Tliis was followed in Simpson v. Chase, 14 P. R. '230.
If the giving of the security within the time limited be not a condi-
tion precedent to an appeal, then how lon^ may the security be delayed ?
It would appear that the appeal must, at all events, be brought on not
later than the first sittings of the Court of Appeal which commence after
the expiration of 30 days from the decision complained of : C. R. 836.
For time of sittings of Court of Appeal, nee C. R. 208.
If the giving of the security within the time limited be a condition
precedent the Judge would not have any power to enlarge the time, and
unless the security be perfected, at the latest, at the expiration of 10
(lays from the judgment, no appeal can be entertained : Barker v. Palmer,
8 Q. B. D. 9 ; LI. v. Court of Revision of Cornwall, 25 U. C. R. 286.
If the delay should be the fault of the court, the appeal would probably
be heard : see Francis v. Dowdeawell, L. R. 9 C. P. 432, per Brett, J.
Upon the question whether the giving of security within the limited
time is a condition precedent, see Stone v. Dean, E. B. & E. 504 ; Water-
ton v. Baker, L. R. 3 Q. B. 173 ; Park Gate Iron Co. v, Coates, L. R. 6
C. P. 634 ; Re Ronald v. Brussels, 9 P. R. 232.
The application for stay of proceedings should be made by or on
behalf " of the person proposing to appeal : " section 148. For form of
order staying proceedings, see Forms.
The order would be ex parte: Ex parte Kempaon. re Barker, 12
L. T. N. S. 43.
The Judge could not extend the time by allowing his judgment to be
post-dated : Wilberforce v. Sowton, 39 L. T. N. S. 474; and cases cited
in notes to section 148.
%^
^aa
224
SECURITY.
Section The day on which jiulf^mont is given will not be computed as one of
1*9 the 10 days durin;^ which pioceediiijjs may be stayed.
If the last day should be a holiday, the security may be given the
following day ; li. S. O. c. 1, s. 8, s-s. 17.
Security. — If there are two parties appealing, their bond will be suffi-
cient, if approved by the Judge. Ordinarily, however, the Judge will
recjuire at least one surety. The Judge may direct that a bond be in a
smaller penal sum than |100. For form of bond »ee Forms.
The sureties must justify to the amount of the penalty : R. S. O. c. 47,
s. 48. For form of attidavit of justification see Forms.
Parties may waive the giving of security within any particular time,
or probably mav dispense with the givi)ig of it altogether: In re Sharpe,
20 0. P. 82 ; Park Gate Iron Co. v. Goates, L. K. 5 C. P. G34; Ward v.
Kaw, L. R. 15 Eq. 83.
The appellant could, within the ten days' stay of proceedings, if he
found his first bond defective, withdraw or abandon it and put in another:
Daniels V. Gharsley, 11 C, B. TA\); Norton v. N. W. Ry. Co., 11 Ch. D.
118 ; xee also Blenkairue v. Statter, 31 L. T. N. S, 413.
Approval of security. — Notice of application to the Judge for the
approval of the bond, should be given to ohe opposite party. For form
■set' Forms.
No particular length of notice would be necessary — only reasonable
notice.
A practicing solicitor is, perhaps, not a proper surety : .w« C. R. 1074 ;
Beckitt V. VVragg, 1 Ch. Cham. 5 ; G. T. Ry. Co. v. Ontario A Q. Ry. Co.,
3 C. L. T. 173.
The condition in the bond should strictly comply with the require-
ments of the statute : Norris v. Carrington, 16 C. B. N. S. 10.
Where money is paid into court instead of a bond, a written memor-
andum setting forth the conditions on which the money is deposited is
unnecessary: Griffin v. Coleman, 4 H. & N. 2(55: Walters v. Coghlan,
L. R. 8 Q. JJ. 61.
Should the money be paid into court as security for the appeal, the
formalities of payment would not be looked at : Griffin v. Coleman, 4 H.
& N. 265; Walters v. Coghlan, L. R. 8 Q. B. 61.
The bond would be good without any recitals : R. v. Wells, 17 U. C.
R. 550.
If a Judge should improperly refuse to approve a bond, or a clerk to
certify the proceedings, mandamus would lie against each of them: R. v.
Wells, su^a ; In re Keenahan & Preston, 21 U. C. R.461 ; R. v. Fletcher,
2 E. & B 279 ; In re Linden v. BuchanAn, 29 U. C. R. 1 ; and if the re-
fusal was grossly wrong costs would probably be imposed : R. v. Lang-
ridge, 24 L. J. Q. B. 73.
When a Judge refuses a new trial and approves of the appeal bond his
authority is at an end. He cannot reconsider the matter in either case,
and make a fresh decision : G. N. Ry. Co. v. Mossop, 17 C. B. 180 ;
Irving V. Askew, L. R. 5 Q. B. 208.
The bond, if in accordance with the statute, is a security for any debt
awarded to be paid, and the costs of the suit and of appeal : Waddell v.
Robertson, 26 U. C. R. 376.
SURETIES ON APPEAL.
225
When the terms of the Judge'u order aa to payment have been com-
plied with it then becomes the duty of the clerk to certify the proceedings.
Manitoba Cases. — Where the necessary sum has been paid into court "
or other security given with the sanction of the County Judge, and he
haflceriified the case to the Appellate Court, the giving of a bond was
held not to be a condition precedent to the hearing of the appeal under
the Act then in force : Gerrie v. Chester, 5 Man. L. R. 258.
A certificate of the County Judge that the appeal book contained,
"the evidence in substance taken at the trial" was held insufficient, and
the appeal was struck out of the list : Winnipeg Waterworks Co. v.
Winnipeg Street Ry. Co., 6 Man, L. R. 614. By the County Court Act,
1887. the giving security for, or depositing in court the amount for which
judgment has been recovered, and a sum sufficient to cover the probable
coHts of the appeal is a condition precedent to the right to appeal. An
objection that such conditions have not been complied with may be
taken when the a[<peal comes on to be heard, and may be supported by
affidavits: Mahon v. Inkster, 6 Man. L. R 25B.
Where the Act required the bond to be filed in 21 days, and this was
not done, the Judge of the inferior couru held that the pla'ntiff was not
entitled to appeal. But on appeal it was held that the Judge, being at
liberty " to make such order allowing the appeal or otherwise," and the
plaintiff having filed a bond, the appeal should be allowed, and the
court ordered that the appeal be allowed on giving a bond to the satis-
faction of the Judge appealed from. Held, also, that the provisions of
the English County Court Acts are not applicable to Manitoba: McLeod
V. Pearson, 1 West. L. T. 12.
Objection was taken that the security was not completed within ten
days after the giving of judgment as apparently required unde' nection
24U of the County Courts Act, 1887. The Court below gave judgment in
plaintiff's favour on May 12th, 1890, a reversal was applied for to the
same court on July 3rd, 18JI0, and notice of appeal was given on July
12th. The security was not perfected till September 10th following :
Held, fatal. " Nothing in this Act requires the appellant to give notice
to the opposite party that the appeal has been set down." The dictum
of Willes, J., in Great Northern Ry. Co. v. Mossop, 17 C. B. 121),
approved ; Mulvihill v. Lachance, 1 West. L. T. 171.
Justification. — The parties executing the Ic id are to justify in like
manner as bail are required to justify: R. S v). c. 47, s. 48; see as to
justtication of bail, C. R. 10()7-1088.
Bail must be either housekeepers or freeholders, see Form 46 to Con-
solidated Rules. As to who is a freeholder see notes to section 35.
To be a "housekeeper." — It is submitted that he should live in this--
Province : Hughes v. Sterling, 11 Price, 158. A person in lodgings, ini
England, having a house m Scotland, was held inadmissible as bail :.
Anon., 1 Dowl. 61. He must be the bona fide tenant of the honse in his;
own right, enjoying its benefits and bearing its burdens: Lush's Prac,
3rd Ed., 716. Where the house was taken in the name of one, because the
landlord would not trust the other, the bail of the latter was rejected :
Anon., 1 Chitty, 316. So also was the tenant of a tap belonging to an
hotel, the lease being taken out by the hotel-keeper: Walker's Bail,,
1 Chitty, 316. So a party who occupies every room but one, which was
reserved for the landlord, who paid all taxes : Blade's Bail, 1 Chitty, 602.
Where a person hired a house, but was prevented from entering through
illness in the family of a former tenant, he was held inadmissible : Bold 'b
Bail, 1 Chitty, 288. On the other hand, a person who had taken a house^.
occupied by lodgers, and received rent from one of them, was deemed a
•" housekeeper," though he had never occupied it himself ; Goehn v».
D.C.A. — 15
Beotlon
149
ii
ti-
22C
APPROVAL OF BOND,
Section
149
t
i
iM! VI
( I
WaterhoHso, 8 Moore, 305. A person wlio lived in lodgings, bnt paid his
proportion of tlie rent and taxes of a lioiise occupied by liib partner,
" where tlie biisinesH was carried on, was held admissible : Sava>,'e v Hall,
1 liinfj. 4iiO, It is no objection that the house is kept as a gambling-
house : Anon. 1 Dowl. 1(50. If the party fiiving security is to have a
commission for doing so, he should be rejected : Foxall's llaii. 7 D. & V.
783. It is no objection to the security that the party appealing agreed
to indemnify the sureties, for that is the legal position of the parties
anyway ; V'estris's Bail, 4 Scott, 31)5.
Objections to Sureties.— It is no objection that the sureties do
not know the appellant (Jameson's Bail, 2 Chitty, 1)7), or that they
became security at the recjuest of the appellant's attorney : Hunt v.
Blaquiere, 4 Bing. SSS ; the property should bo situated in the Province :
Levy's Bail, 1 Chitty, 285 ; nee also Swinburne v. Carter, 'iil L. J. Q. B. 1('>.
With the opposite party's consent, persons who are not householders
may justify : Sa;;gers v. Gordon, 5 Taunt. 174; or the justification may
be waived altogether: Park Gate Iron Co. v. Coates, L. U. 5 C. P. ()34.
The property need not bo seizable on which the surety justifies, but may
consist of book debts, money out on mortgage, bills of e.\chango, shares,
etc., as well as stock-in-trade and household furniture : Pierpoint v.
Brewer, x5 M. & W. 201. The fact that the surety has property to the
amount required is not enough; he must have it over and above what
will discharge all his legal liabilities, and the discovery of circum-
stances, which raise a reasonable suspicion of his solvency, will, if unex-
plained, render him inadmissible : Lush's Prac. 3rd Ed. 717. The
acceptor of a bill of exchange cannot go security for the drawer, because,
being himself primarily liable, his default shews him not to be a respon-
sible party : Anon. 1 Dowl. 183 ; but a drawer or indorser may be security
for the acceptor : Prine v. Beesly, 5 Dowl. 477. If it appears that the
person is in arrears for his rates or taxes: Lewis v. Thompson, 1 Chitty,
309; or a dishonoured bill outstanding : Barnesdall v. Stretton, 2Chitty,
7'J : Cross v. Williams, 1 Tyr. 631 ; that he has been arrested several
times: llawlins' Bail, 1 Chitty, 3; or the like, and the matter be not
satisfactorily explained, the security should be rejected. An undis-
charged insolvent cannot be security, because his property continue s
liable for his former debts : Anon. 2 Chitty, 77 ; Holm v. Booth, 2 Chitty,
78 ; Insolvent Act, 1875, section 16. Where the qualifying property con-
tiists of money deposited in the hands of the surety, to indemnify him, it
would be insufficient ; Nicholl's Bail, 1 Hodge's, 77. Bail was rejected
where the person did not know whether he had been arrested or not for
two years: Newman's Bail, 2 Chitty, 95. So a foreigner, having no
property in the Province : Boddy v. Leyland, 4 Burr. 252(5; Levy's Bail,
1 Chitty, 285, should be rejected. A person would be rejected who had
gone other security, and his property not enough for both : Varden v.
Wilson, 1 Chitty, 287. The fact that the surety kept a gaming-house:
Anon. 1 Dowl. 160; or a brothel : Gouge's Bail. 3 Dowl. 320 ; or that he
has suffered the penalty of crime : Hatfield's Bail, 2 Chitty, 98, would be
no objection. The inquiry will not be as to the character of the bondsmen,
bat as to the property on which they jbstify.
It was held not to be sufficient ground to reject one of two bail, that
one of his creditors agreed to compound for his debt for two shillings in
the pound : Daniell v. James, 2 P. B. 195.
Approval of Bond. — The respondent is entitled to a bond free from
all possible objections : Jones v. Macdonald, 14 P. B. 535.
After hearing all objections to the approval of the bond the Judge
will, if he determines to approve it, indorse such approval upon it and
affix his signature thereto. After it has been approved, the bond must be
iiled with the clerk of the Division Court, to remain with him until after
AGENT FOR SKIlVKK.
227
paid hi*
partner,
ev Hall,
lambliiig-
o have a
f D, & V.
iiH ft{»ree{l
10 i)artie9
ireties clo
ihat they
Hunt V.
Province ;
. Q. B. !<•••
nseholders
atiou may
C. P. <):J4.
i, bat may
j^e, ahares,
erpoint v.
erty to the
ibove what
of circum-
lU, if unex-
717. The
er, because,
,e a respon-
r be security
•8 that the
n, 1 Chitty,
)n, 2 Chitty,
ited several
btter be not
An undifl-
y continues
,h,'2 Chitty,
■operty con-
nify him, it
vas rejected
jd or not for
having? no
Levy's Bail,
ted who had
Varden v.
minghouse :
; or that he
98, would be
le bondsmen,
wo bail, that
shillings in
md free from
1 the Judge
upon it and
bond must be
m until after
tlio docjirtion of tiio appeal, when the Judge will order it to be delivered up Sections
to the Hucceasfu! party : II. S. (). c. 47, a. I'.J. Hucii a bond no nuittor 149-160
what the amount of the peuiilty might be is suable in the Division Court :
.section 26().
When the Judge has allowed the bond, or the monov has been paid
into court, and the clerk has certified the proceedings, the Court of Appeal
will not refuse to hear the appeal nor entertain an application to Muash
it on the ground that the bond is iiisuflicient, or 1 1 it the security vvas not
given iu time : Haworth v. Fletcher, 20 U. C. ii. 27H, 280- I'enton v.
a.T.Rv Co.,2HU.C.Il.3()7,a75; McLellan v. McClellan •>L..T.N. S.2'.»7*;
Ba'.y > lloss, 11 P, 11. 140. It by no means follows th»: if it should be
mule to appear that the clerk had certified the ca,!! without requiring
any security at all, or if a bond utterly illusory, or so defective in form
us to bo no security at all, h id baun inadvertently appro sod, the respon-
dent would be without remedy, for the court might decline to liecv the
appeal until the error had been rectified : per Osier, J. A., Baby v. Koss,
11 P. K. at p. 445.
The giviiifi of security is a condition precedent to the certification of
the case, but when the case is certified, the Court of Appeal is authorized,
if not compelled to act upon the case so certified : Penton v. G. T. Ky. Co.
28 U. C. 11. B7.5.
Payment Into court. — Payment to the clerk will amount to payment
into court. The sum dejiosited may be smaller tlian |.5(), if the Judj^e so
directs. An order for payment out will be necessary after the determina-
tion of the appeal,
The proceedings are stayed pending the appeal: see P. S. O. c. 47,
s. 4;{.
1»>0. Upon an application for a new trial in any cause ^g*;ry|*J°'"
wherein either party may appeal, each party shall leave with
the Judge by whom the application is heard, a memorandum
ill writing of the name of some person resident within the
county town of the county or united counties in which the
cause was tried, with his place of abode, upon whom the
notice of appeal, and all other papers thereafter requiring
Hervice, may be served for him, and service upon such per-
son, or, in his absence, at his place of abode, shall be suffi-
cient service thereof ; and, in the event of failure to leave
such memorandum by either party, all papers requiring
service upon him may be served upon the clerk of the
Division Court where the trial was had, or left at his office,
for the pei-son so failing to leave such memorandum, and
such service shall be good service ; the clerk shall, in such
case, forthwith mail, by registered letter, all such papers
so served upon him to the peraon entitled to the same. 43
V. e. 8, 8. 19.
Notice of appeal is to be given to the respondent when the appeal
s set down : see section 152.
,••'
P.
■■■P^p^
228
PROCEEDINGS TO BE CERTIFIED,
I, !
Section
1*1 1»SI. Upon tlie bond being approved by the Judge, or
Evidence, the deposit being paid into court, the clerk of the court in
certitted.*' which the action or proceeding is pending, shall, at the
recpiest of the appellant, his counsel, solicitor, or agent, fur-
nish a duly certiHed copy of the summons with all notices
indorsed thereon, the claim, and any notice or notices of
defence, and of the evidence and all objections and excep-
tions thereto, and of all motions or orders made, granted, or
refused therein, together with such notes of the Judge's
charoe as have been made, the iudgment or decision when
in writing, or the notes thereof, and all affidavits tiled or
used in the cause, together with all other papers tiled in the
cause affecting the (questions raised by tlie appeal ; the clerk
shall also furnish to the respondent, when re([uired so to do,
a duplicate copy of the pi'oceedings so furnished to the
appellant, or such portion thereof as may be re<juired by
him, and for every copy he shall be entitled to receive the
sum of five cents per folio of one hundred words. 43 V.
c. 8, s. 20.
Approved by the Judge. — The .Tudj^e isretinired toapjirove tlie bond
under tliis section. He cannot ilole':;iite the rit^lit to allow tliebond : lias-
kins V. Ht. Louis & S. Vj. \\y. Co., lOiJ U. S. 10<> ; Hairin^ton v. Edison,
11 U. C. Iv. 114 ; nor can he arbitrarily decline to do so : Yoiuig v. Bronip-
ton, 1 B. &. S. ()-,:>.
Clerk to certify the proceedings. — It is imperative on the clerit to
fnrnisli a duly certified coi)y of tlie proceed! nj^s, after the conditions of
a])))eal liave been duly complied with. 'I'lie re(juestto the clerk need not
be in writiufj, but had better be so in order to prevent mistakes. For
forms of certificate see Forms.
A duplicate of this certificate shall also be furnished by the clerk to
the respondent or such portion of it as he may require on payment of tlie
fee mentioned.
After the clerk has certified the copy of proceedin<^s he could not alter or
add to the same : Warner v. Riddiford, 4 C B. N. S. 180, unless sent back
to him for the purpose. L. & N. W. Ry. Co. v. Grace, 2 C. B. N. S. 555.
The Judge's decision should be stated publicly, and the reasons for it,
before the certification of the papers, and not sent afterwards to the Court
of Appeal : Brown v. Guf»y, 2 Moo. P. C. N. S. 341 ; but the court will not
refuse to receive a certificate of the Jud({e if there are no notes of evidence ;
see Sullivan v. Francis, 18 A. R. 121. The certificate should not be made
ex parte, but should be settled in the presence of both parties ; Re Ryan v.
Bimonton, 13 P. R. 299.
^■"^ip
■#
SETTING DOWN CAUSE.
229
153. The appellant shall within two weeks after tlie S«cWon
upproval of the security or deposit being paid into cc.irt, or -; — ;
at such other time as the Judjje of the said County Court ^own
, . . appeals.
may by order in that behalf provide, file the said certified
copy with the Registrar of the Court of Appeal, and shall
thereupon forthwith set down the cause for argument before
a Judge of the said Court of Appeal, and shall forthwith
give notice thereof, and of the appeal, and of the grounds
thereof, to the respondent, his counsel, solicitor, or agent, at
least seven days before the day for which the same is set
down for hearing, and the said appeal may be heard and
disposed of by a single Judge of the Court of Appeal, and Soaring,
he shall have power to dismiss the appeal or give any judg-
ment and make any order which ought to have been made,
and he shall give such order or direction to the court be-
low touching the decision or judgment to be given in the
matter as the law reciuires, and shall also award costs to the costs.
pai'ty in his discretion, which costs sliall be certified to and
form part of the judgment of the court below, and upon
receipt of such onler, direction and certificate, the court Ije-
low shall proceed in accordance therewith. 4?i V. c. 8, s. 21 ;
47 V. c. 10, s. 10 (4).
Within two weeks. — '''his means fourteen days. Wliere a statute
provided tliat notice of appeal sliould be given "witliin one weelc" before
such appeal was co be lieard, and notice was given on the '2'2nd for the
'JOtli, it was held that the notice was insufficient . K, v. Sweeney, 2 Ir.
li. R. 278 See also notes to section 145. If a bond were approved on
tlio 1st, the case might be set down on the 16th.
File the copy, etc. — Whetlier the Court of Appeal would consent to
luvir the case if this was not done would be a matter for them to con-
si er. It is submitted that tht Court of Appeal would not (if it could)
allow the appeal to be set down or argued after the time prescribed by
the statute, unless the parties had acted as if the appeal was entered:
I'igi^ V. Wilkinson, 9 Ex. 475; Park Gate Iron Co. v. Coates, L. R. 5
C. P. V,U.
The appeal must be enter 1 b jfore the day mentioned in the notice of
the hearing of it : Donovan v. lirown, 4 Ex. D. 148. If any mistake
sliould be made incopyin;* the proceedings, or in setting down the appeal,
there would appear to be no objection to an abandonment of these proceed-
inj^s and taking them afresh, provided such could be done within the pre-
scribed time : R. v. W. R. Yorkshire, (Jus.), 3 T. R. 778 ; Norton v. L. &
N. W. Ry. Co., 11 Ch. D. 118.
Give notice thereof. — Notice of setting down the appeal for argument,
and of the appeal and grounds thereof, must bo given forthtvith after the
(i^
\C0
ii
230
Section
1S2
JUDGMENT IN APPEAL.
appeal is set down, and served on the i-espondent, his counsel or a(;ent,.
"at least seven days before the day for which the same is set down for hear-
ing." "At least seven days" means seven clear days, excluding both the day
of giving the notice and the day set for argument : notes to section 145.
Reasonable certainty only would be required in the notice, and it should
not be criticized too closely or construed too strictly : R. v. West
Houghton, 5 Q. B. D. 300 per Denman, C J., at p. 302 ; In re West
Jewell Tin Mining Co., Little's Case, 8 Ch. D. 806.
It may be signed by the appellant's solicitor : R. v. Middlesex, (Jus.),
1 L. M. & P. 621, or in the appellant's name by the clerk to his solicitor,
with the appellant's authority: R. v. Kent, (Jus.), L. R. 8 Q. B. 305.
In strictness, perhaps, it need not be signed at all : R. v. Nichol,
40 U. C. R. 76.
The " grounds " of appeal must be stated in the notice. A general
statement that the judgment was erroneously made would be insufficient : :
Torrence v. McPherson, 11 U. C. R. 200.
It was held that where the notice stated that the appellent was not
guilty of the offence it was a compliance with the Act, as it meant that
all the ingredients of the offence were disputed: R. v. Newcastle-npon-
Tyne, (Jus.), 1 B. & Ad. 933.
Any grounds of appeal could be set out in the notice in ordinary and
concise language and the appeal should be heard if it substantially
informed the opposite party of the grounds intended to be relied on.
See note to section 176.
It is submitted that the omission of the grounds of appeal should not
prevent its being heard, such being for the information of the Court of
Appeal, and not a condition precedent to hearing the case: Evans v.
Matthews, 26 L. J. Q. B. 166 ; Grant v. G. W. Ry. Co., 8 C. P. 348 ; Smith
v. Muirhead, 13 U. C. R. b ; Ex parte Bromley. In re Redfearn, 12 L. T. N. S.
783 ; Richardson v. Silvester, 29'L. T. N. S. 395.
If one of the grounds of appeal is misdirection or non-direction of the
jury, the notice should state how and in what manner the Judge mis-
directed or failed to direct the jury : Furlong v. Reid, 12 P. R. 201 ; .
Ffeiffer v. Midland Ry. Co., 18 Q. B. D. 243.
For lorm of notice of appeal see Schedule of Forms.
Where there is a fatal objection to the right of appeal, the respondent
should apply to quash the appeal, and not wait until the hearing to urge
such objection to its competency ; otherwise he will be allowed orjly the
costs of a motion to quash : gee R. S. O. c. 44, s. 46 ; Tronsor v. Dent,
8 Moo. P. C. 420 ; Reid v. Ramsay, Cassel's Dig., 239 ; Gendron v. Mc-
Dougall, ih. 249; O'SuUivan v. Lake, 16 S. C. R. 636.
If a party appeals from a judgment in his favour claiming relief incon-
sistent with that granted by the judgment appealed from, and, pending
the appeal, proceeds upon the judgment and attains to relief granted
tliereby, his appeal will, on motion, be quashed : International Wrecking
Co. V. Lobb, 12 P. R. 207. A party cannot accept the benefit of an order and
then endeavour, by an appeal, to reject a burdensome provision : Pearce v.
Chaplin, 9 Q. B. 802.
Judgment in Appeal. — The Court of Appeal cannot give any other
judgment than that which ought to have been given in the court below.
Where a case has been tried by a jury, if there is any evidence by
which the verdict can reasonably be supported the court cannot, it is
submitted, do anything but grant a new trial, and cannot give a final
judgment for the appellant : Jonas v. Adams, 20 L. J. Q. B. 397 ; Con-
necticut Life Ins. Co. v. Moore, 6 App. Cas. 644 ; Toulmin v. Millar, 12
App. Cas. 746 ; see notes to section 114.
COSTS IN APPEAL. 231
It is submitted that the Judge in Appeal could not adjourn t\ie case Sections
to the sitting of the full court, but must himself hear and deteimine it : 182-153
Button V. Woolwich Building Socy., 5 Q. B. D. 88.
Where judgment has been given for the plaintiff, the court has, it is
submitted, power to order a non-suit : see section 114 ; Fuller v. Cleveley,
17 Jur. 73() ; Rule 122.
If the respondent appears and the appellant does not, the appeal will
probably be dismissed with costs : Sherburne v. Middleton, 9 C. & F. 72 ;
Scanlan v. [Tsher, 8 C. & F. 561 ; Smith v. Durant, 9 H. L. Cas. 192 ;
Berry v. Exchange Trading Co., 1 Q. B. D. 77; and it is submitted
that in the absence of the appellant's counsel, the counsel for the res-
pondent would not be called upon to sustain the judgment of the court
below: Gardiner v. Simmons, 1 C. & F. 35 ; see also notes to section 153.
Where an appeal was dismissed because no counsel appeared, the
court allowed the case to be restored to the paper the following term on an
affidavit that the appellant's counsel had been prevented from attending
by dangerous illness in his family : McAllister v. Gushing, 8 C. L. T. 447 ;
26 N. B. 62.
A case once decided on appeal would not, it is submitted, be recon-
sidered : Thellusson v. Bendlesham, 7 H. L. Cas. 429.
On the case coming back to the Division Court, it is submitted that
a copy of the certificate of the Court of Appeal should be filed upon which
the officers of the court should act.
It will be observed that an " order or direction " is to be given to the
court below, which court ♦' shall proceed in accordance therewith."
If the security be given and the papers filed in the Court of Appeal
but not set down for hearing, a motion might be made to a Judge of a
Court of Appeal, in Chambers, to dismiss the appeal for want of prose-
cution : see Piatt v. G. T. Ky. Co., 12 P. R. 380.
15JJ. The costs taxable, as between party and party J(^'^t|''®
upon or connected with any appeal shall be the actual dis-
bui-sements and no greater amount over and above actual
disbursements than SI 5, inclusive of counsel fee ; the costs
of such appeal, as between solicitor and client, shall be
taxable on the county court scale: section 156 of The ^ „
•^ _ Rev. Stat.
Judicature Act shall not apply to appeals made under thisc-^i-
Act. 43 V. c. 8, s. 22.
Costs in appeal. — Where point not raised in court below, costs may
be disallowed : Kelly v. Ottawa St. Ry. Co., 3 A. R. 616, 627 ; Garrett v.
Roberts, 10 A. R. 6-50 ; Cooper v. Cooper, 13 App. Cas. 88. But costs
are usually allowed to tlie successful party, unless there is something
exceptional in the circumstances r Eddy v. Ottawa City P. Ry. Co., 31
U. C. R. 569, 576 ; In re Sliaver v. Hart, 31 U. C. R. 609 ; Herbert v. Park,
25 C. P. 57 ; Wambold v. Foote, 2 A. R. 579 ; Winger v. Sibbald, 2 A. R.
611 ; Oonnybeare v. Farries, L. R. 5 Ex. 16 ; Ashby v. Sedgwick, L. R.
15 Eq. 245 ; Booth v.Turle, L. R. 16 Eq. 182.
Should the Judge inadvertently omit to provide for costs when giving
judgment, he might afterwards do so even though the certificate should
have been issued : Hardy v. Pickard, 12 P. R. 428 ; Fritz v. Hobson,
14 Ch. D. 642 ; C, R. 780.
^■i
282
RIGHT TO JURY.
Sections Should the appeal be abandoned, it is submitted that the costs should
153-lM be payable by the party abandoning it : Cliarlton v. Charlton, 16 Ch. D.
273 ; and if the appellant appears, and the respondent does not, the appel-
lant should get his costs on dismissal of the appeal : Sherburne v. Middle-
ton, 9 C. & F. 72 ; Scanlan v. Usher, 8 C. A b\ 561.
The costs are " to be certified and to form part of the judgment of the
court below." The costs of appeal could not be recovered by process of
the Court of Appeal : see Philipps v. Philipps, 5 Q. B. D, 60 ; McArthur
V. Southwold, 8 P. i;. 27.
As between parties to the suit, only ftl5, and the " actual disburse-
ments" are taxable to the successful party ; yet as between solicitor and
client the County Court tariff is adopted. The fees payable on the entry
" of every appeal, and on every judgment, decree or order of the Court of
Appeal , under section 156 of the Judicature Act,are not applicable to appeals
from the Division Court.
When a
jui-y may
be re-
quired.
JURIES.
I»54. Either party may require a jury in tort or
replevin where the sum or tlie vahie of the goods sought
to be recovered exceeds $20, and in all other cases where
the amount sought to be recovered exceeds $30. 43 V.
c. 8, 8. 43.
Either party may require a jury. — The right to have a jury sum-
moned under this section depends upon whether the suit is one for dam-
ages exceeding $20, in tort or replevin, and upwards of |30 in all other
Actions, and also upon the giving of notice and the payment of the pro-
per fees as required by section X.56. If these requirements are complied
with, and a jury has been properly demanded, the Judge cannot properly
try tiie case without a jury : Hamlyn v. Betteley, 6 Q. B. D. 63 ; Bank
of B. N. A. v. Eddy, 9 P. R. 468, and he has no power to withdraw the
case from the jury, the verdict must be theirs: Lewis v. Old, 17 O. R. 610.
In that case a notice for jury was given by the defendant. After the
evidence was closed the Judge declined to submit any question to the jury
except the amount of damages. The jury then assessed the damages.
An application was made for a new trial, which was refused, and prohi-
bition was then applied for. In delivering the judgment of the court.
Gait, C. J., says : " Th*^ defendant had a right to insist that every ques-
tion should be submitted to them, (the jury) and a Judge has not the
power in a Division Court suit to withdraw the case from them. The
learned Judge has power to instruct the jury as to their verdict, and if
tliey act contrary to his instructions he can grant a new trial, but he
<j!innot withdraw the case from them : the verdict must be theirs."
Tliis decision was affirmed on appeal to the Divisional Court, in which
it was held, that when the plaintiff furnishes evidence which the Judge
tliinks sufficient " to support his case, the case cannot be withdrawn from
the jury : the mere fact that the defendant does not call evidence to con-
trovert the plaintiff's evidence by no means concludes the matter, for the
jury might refuse to credit the plaintiff, and properly find a verdic* for
the defendant The Judge in this case exceeded his jurisdiction by
assuming the functions of the jury : and the right to have the case sub-
mitted to the jury being an absolute statutory right, the violation of it
was a ground for prohibition."
See also R. v. Harwood, 22 L. J. Q. B. 127; Ford v. Taylor, 3 C. P. D.
21 ; Bordier v. Burrell, 5 Ch. D. 512 ; Wood & Ivery (Ltd.) v. Hamblet.
^■M
mm
JURY IN INTERPLEADER CASES.
-eCh. D. 113; Powell v. Williams, 12 Ch. D. 234, and cases cited in
notes to section 155.
At one time it was believed that the withdrawal of a juror operated
as a legal determination of the action. That is not so. It is no determi-
nation except in this sense of the word, that unless something very
special liappens the court will bold the parties to their understanding
and will stay any further proceedings in the action : Thomas v. Exeter
Flying Post Co.. 18 Q. B. D. 822
And it is doubtful if the withdrawal of a juror has any effect in a
Division Court : Norburn v. Hilliam, L. R. 5 C. P. 129.
Nonsuit. — As to power to nonsuit, see notes to section 144.
I»5S. (1) Either party to an interpleader issue in a
Division Court may require a jury to be summoned to try
tlie issue and in such case he shall, within five days after
the dlay of service of the summons on him, give to the
clerk or leave at his office notice in writing', requiring a
jury, and shall at the same time pay to the clerk the proper
fees for the expenses of th^ jury, and thereupon a jury
shall be summoned according to the provisions of this Act.
(2) Sections 115, 116, and 208, shall extend and apply
to all interpleader issues and other actions mentioned in
sub-section 2, of section 148. 47 V. c. 10, (1-3).
Interpleader Issue. — As to parties to an interpleader issue, see section
20!) and notes thereto.
To try the issue. — As to the subject of the right to a jury, see notes
to section 154.
Formerly a jury wos not allowed in interpleader cases. A perusal of
jMunsie v. McKinley, 15 C. P. 50, will show how sternly a jury was pro-
liibited in such cases. The issue in interpleader cases is whether or not
the property was at the time of the seizure: Van Every v. Ross, 11 C. V.
18H; Culloden v. McDowell,"l7 U. C. R. 359; McDowell v. McDowell,
10 U. G. L. J. 48 ; Watts v. Howell, 21 U. C. R. at p 259, the property of
the claimant as against the execution or attaching creditor : Doyle v.
Lasher, 16 C P. 263 ; Merchants Bank v. Herson, 10 P. R. 117 : Doran v.
Toronto Suspender Co., 14 P. R. 103 ; but if the claimant is in pos-
sesion at the time of the seizure, the onus is upon the execution creditor
to shew that the goods were the goods of the debtor : Duncan v. Tees, 11
PR. 66; Winfield v. Fowlie, l4 O. R. 102; Dominion S. & I. Co. v.
Kilroy, 7 C. L. T. 87. Though the debtor may be estopped from claim-
ing the goods as against the claimant, the execution creditor may shew
that the claimant has no valid title: Richards v. Jenkins, 18 Q. B. D.
451 ; see notes to section 269.
Within live days. — See notes to sections 109 and 147. The Judgecould
not extend tlie time : Brown v. Shaw, 1 Ex. D. 425 ; Tennant v. Raw-
lings, 4 C. P. D. 133; Whistler v. Hancock, 3 Q. B. D. 83; In re
I'rescott Election, 9 P. R. 481 ; Barker v. Palmer, 8 Q. B. D. 9.
In ordinary actions a plaintiff must give notice in writing when enter-
ing his claim with the clerk, and the defendant within five days after the
day of service.
233
Sections
164-165
llisht to
jiu'v in
inter-
pleader.
^
<%
234
NOTICE FOR JURY,
Sections
156-1S7
»■-' I
^^i
Parties to
give notice
to Clerk if
they re-
quire a
jury.
Who may
be jurors.
In interpleader cases there is no distinction as to time in respect of
plaintiff or defendant.
Notice in writing. —The notice is a condition of the ri^ht to have a
jury summoned. A verbal notice would not be sufficient : nee I'letcher
V. Baker L. R. 9 Q. B. 370; lie McGregor v. Norton, ly P. R. 223. If a
jury be not properly summoned, a Judf^e should not try the case with a
jury against the protest of counsel for the opposing party : see Hamlyn v..
Betteley, (5 Q. B. D. 63, unless the jurors were called under section 1G8..
But if both parties appeared at the trial and neither objected to the
summoning or empanelling of the jury, that would amount to a waiver
of any irregularity or emission in respect of the notice : Ex parte Morgan..
In re Simpson, 2 Ch. D. 72.
Prepayment of fees. - As to the fees to be paid to the jui tr, see section
172. The clerk is not bound to accept the notice for jury. lor to act on
it without prepayment of the expenses of the jury. He should not
exact more than should be reasonably required for the purpose of having;
a jury summoned, but he is entitled to prepayment not only of his own
fees in connection with the work, but to those of the bailiff as well.
A jury shall be summoned.— This is imperative. Either party by
complying with the terms of the statute has a right to have a jury sum-
moned and his case tried by a jury, and the Judge cannot deprive him of
that right ; see note to section 154, see also Sugg v. Silber, 1 Q. B. D. 362 ;.
Clarke v. Cookson, 2 Ch. D. 74() ; F»rd v. Taylor, 3 C. P. D. 21 ; Clarke
v. Skipper, 21 Ch. D. 134; Re Lewis v. Old, 17 O. R. at p. 613.
The provisions of this Act. — The provisions of the Act with respect
to (1) the order in which cases are to be tried (section 115), (2) consenting
not to appeal (section 116), (3) counsel fees (section 20B) are here made
applicable to interpleader cases and to causes in which the parties consent,
to an appeal : Section 168 is also applicable to an interpleader issue.
150. In case the plaintiff requires a jury to be sum-
moned to try the action, he shall give notice there ,.i in
writing to the clerk at the time of entering iii:-
demand or claim, and shall at the same time ps <
clerk the proper fees for the expenses of such jul-v ;
case the defendant requires a jury, he shall, within five days,
after the day of service of the summons on him, give to the
clerk or leave at his office the like notice in writing, and
shall at the same time pay the proper fees as aforesaid ; and
thereupon, in either of such cases, a jury shall be summoned
according to the provisions hereafter contained. R. S. O.
1877, c. 47, s. 110.
See notes to sections 154 and 155.
The plaintiff must demand the jury at the time of entering the claim.-
157* [Unless exempted by The Jurors' Act,Q\&ry per-
son whose name appears on the last published voters' list of
any municipality, partly or wholly situate within the limits
of any Division Court, and who resides within the said
J.aty.
the
din
.&.
SELECTING AND SUMMONING JURORS.
235.
»
division, and whose name is marked "J," as ]>rovided in Sections
. . 167-168
section 23 of the said Act shall he liable to serve as a juror
for the Division Court in such division.] 52 V. c. 12, s. 17.
Jurors. — This section makes provisions for juries in Division Courts,
and therefore the general Act, B. S. O. c. 52, respecting jurors and juries
does not apply.
Sections 157, 158 and 159 of The Division Courts Act were repealed
by 52 V. c. 12, ss. 17, 18 and 19, and the sections here given substituted
in their stead.
Unless exempted by the Jurors' Act. — The persons exempted by The
Jurors' Act are enumerated in sections 6-12 of that Act, R. S. O.
pp. 611-614.
Resides within the division. — See notes to section 81.
Of the said Act. —The following is the section of The Jurors' Act re-
ferred to ;
" 2i\. In order to facilitate the selection of jurors, the clerk shall, in
making out the voters' list, in the column containing the number of tlie
voter on the roll, or in a separate column provided for the purpose beside
the same, write or mark the letter " J " upon tlie voters' list opposite the
name of every male person over twenty -one and under sixty years of age
who, by the roll, appears to possess the property qualification requisite
to qualify him to serve as a juror; and such voters' list shall shew, at or
near the end thereof, the aggregate number of names of persons upon
such list qualified to serve on juries, and in the case of cities and towns the
said list shall give the same information for oach ward, and it shall not
be necessary for the selectors to refer to any name on the assessment roll
which has not the letter " J" oppositeitinthe voters' list, unless the select-
ors suspect that some names are not properly marked."
IfiH, [The Jurors to be summoned to serve at any Jurors,
Division Court shall be residents of the said division, and selected
and Bum-
shall be taken from the last published voters' lists of the moned.
municipalities, partly or wholly within the division, and
shall be summoned in rotation, beginning with the first of
such persons in such votei-s' lists who resides within the
said division, and whose name is marked " J," as provided
in the preceding section, and if there be more than one
municipality partly or wholly in the division, beginning
with the voters' list for the municipality within which the
Court is held, and then proceeding to that one of the
other votei*s' lists which contains the greatest number of
such persons' names, and so on until all the lists have been
gone through, after which they may be gone through
again in the same order. But if at any time it shall
appear to the County Judge that the cost of sunmion-
■■^,..
^3G
DUTY OF CLERK OF MUNICIPALITY.
Sections
168-109
ing a jury is excessive, by reason of the residences of the
- peraons liable to be selected in the ordinary course being in
a distant portion of the division, the County Judge may
order the Clerk of the Division Court to commence at the
first name marked " J," as before provided upon the vote rs'
list of any municipality partly or wholly within the division.]
52 V. c. 12, s. 18.
Summoning jurors.— Under this section the c'erk of the Division
Court, in sun-.noninf^ jurors, must go through all the names which are
on the voters' list of tlie municipality or municipalities within the divi-
sion in rotation, beginning with the list of voters for the municipality
within which the court is held, and when that is exhausted proceeding to
that one of the other voters' list which contains the greater number of
such persons' names : and so on until all the lists have been gone
through.
The Judge is empowered, however, when a distant municipality is
reached, in order to save expense, to order that the clerk shall take the list
for a nearer municipality.
The improper selection of a jury can be taken advantage of by either
party at the trial. In such cases it would be the duty of the Judge, if he
found any irregularity in that respect to exist, to postpone the trial of
the cause so that a jury might be properly summoned if both parties
would not consent to his trying it without a jury. The in '«ularity
being that of an officer of the court, neither party would be allowt^ to be
pi'ejudicedby it. Actus curhc neminem gravabit.
Miii
Court
Clork
witli copy
of voteis'
list.
the*njuni- 130- [The clerk of every municipality shall furnish
nVrniffh ^'^ eacli Division Court clerk within whose division the said
Division ijiunicipality is partly or wholly situate, with a correct
copy of the voters' list of the said municipality immedi-
a';ely after the publication of the same in each year ; and
after a new voters' list is furnished to him the Division
Court clerk shall take the names of jurors therefrom,
beginning as nearly as may be at the part of the list
corresponding to the place where he left off in the previous
list.] 52 V. c. 12, s. 19.
The clerk of every municipality. — Provision is made by section 164
for the punishment of the clerk of the municipality for breach of his
duty under this section. It is submitted that he would be subject to no
other liability : Finlay v. Miscampbell, 20 O. R. 29; Cowley v. Local
Board, W. N. (1892), 141. As to power of local legislatures to punish, see
J.'. V. Wason, 17 A. R. 232; R. v. Bittle, 21 O. R. C05.
If no punishment has been provided the clerk might have been
indictable: see Roscoe's Crim, Ev. 9th Ed. 783; Criminal Law Code, 1892,
s. 138.
CHALLENGING JURORS.
237
lOO. For the trial of actions required to be tried by or
before a jury at any session of a Division Court the clerk
of the court shall cause not less than twelve of the persons
liable to serve as jurors to be summoned to attend at such
session at the time and place to be mentioned in the sum-
mons, and the summons shall be served at least three days
before the court, either personally, or by leaving? the same
with a grown up person at tiie residence of the juror ; [and
the clerk shall issue a summons and also twelve copies
thereof for service on said jurora, which summons shall be
returned to the clerk with the service thereof duly verified
by the oath of the bailitf serving- the same.] 48 V. c. 14, s. 5,
amended hy 52 V. c. 12, s. 20.
Required to be tried by or before a jury. — See notes to sections
154, 155.
At least three days.— This means clear days : tee notes to sections
109 and 147 : McLean v. Pinkertun, 7 A. R. 490.
At the residence of the Juror. — The service need not necessarily be
personal. The summons may either be served personally on the juror :
see note to section 99 ; or left with a grown up person at the residence
of the juror : note.^ tosections 90, 109, and 111.
Verified by the oath of the bailiff. — Tliis clause within brackets
is added to the original section by 52 V. c. 12, s. 20. See notes to sec-
tion 105.
Sections
160-161
Summon-
ing jurors.
Il»l* Either of the parties to a cause shall be entitled Parties en-
to his lawful challenge against any of the jurors in like challenge.
manner as in other courts. R. S. O. 1877, c. 47, s. 115.
The right of challenge. — The Jurors Act declares the right of peremp-
tory challenge to " any four " of the jurors drawn to serve on the trial of
the cause : R. S. O. c. 52, s. 110.
The right of challenge is a common law right, and cannot be taken
away except by express enactment : Barrett v. Long, 3 H. L. Cases, 395.
If alienage is relied on as a ground of challenge, the party who has an
opportunity of making it, and neglects it, cannot afterwards make the
objection : R. v. Sutton, 8 B. & C. 417. A juryman should not have an
interest in the result of the suit : Bailey v. Macaulay, 13 Q. B. 815. But
where a public company was a party to an action, the mere fact that one
of the jurymen was a shareholder in the company was held no ground for
granting a new trial : Williams v. G. W. Ry. Co., 3 H. <& N., 869; scealso
Richardson v. Canada West Farmers' Ins. Co., 17 C. P. 341. A juror
cannot be challenged because in a previous case he had shewn some dis-
satisfaction with the law as laid down by the Judge in favour of the party
challenging : Pearse v. Rogers, 2 F. ifeF. 187. Want of qualification (except
in respect of property) is a good ground of ch vUenge : chapter 52, section
108. Because a juror affirms, affords no ground of challenge : sectioa
111. "If a juror be challenged for cause before any juror sworn, two
238
PROCEEDINGS AGAINST MUNICIPAL CLERK.
Ml-I
W
Penalty on
.jurors dis-
obeying
KUiuniuns.
Sections triers arc appointed by the court ; and if he be found indifferent and
162-164 sworn, he and the two triers shall try the next challenges ; and if he be
' tried and found indifferent, then the first two triers shall be dischar^jed,
and the two first jurors tried and found indifferent shall try the rest : "
Roscoe'H Crim. Ev. 8th Ed. 210; K. v. Smith, 88 U. C. R. 218. The
challenge of a juror must be before the oath is commenced. The moment
the oath is begun it is too late. The oath is henuii bij the juror ttikiitfi the
hook, having been directed by the officer of the court to do so ; but if the
juror takes the book without authority, neither party willing to challenge
is to be prejudiced thereby : II. v. Frost, !) C. A P. 12!). Upi>n a challenge
for cause, the person making the challenge must be prepared to prove
the cause: 11. v. Savage, 1 Moo. C. C. 51.
I02. Any juryman who, after beini^ <Uily summoned
for that purpose, wiU'ully ne<^lects or refusers to attend the
court, in obedience to the summon.s, shall be liable to a fine
in the discreti(m of the Jud^e, not exceedinjjj !!^4, which fine
shall be levied and collected with costs, by the same pro-
cess as any debt or Ju(li;'ment recovered in the said court,
and shall form part of the Consolidated Revenue Fund.
R. S. O. 1877, c. 47, s. IIG.
Not Exceeding $4. — No other punishment, than that pi-esented by the
section, could be imposed. R. v. Lefroy, L. K. 8 Q. R. K'l.
It is submitted that the word " wilfully " here means of his own free
will, viz., that he knew he had been summoned and, being a free agent,
did not attend : lie Young v. Harston, 31 Ch. D. 171 ; per i3ramwell, B.;
Smith v. Barnham, 1 Ex. I). 41!) ; Miles v. Roe, 10 P. R. 218. Neglect or
refusal to attend is a contempt of court for which the statute provides a
remedy : see Ex parte Lees and The CO. Jutlge of Carleton, 24 C. P. 214.
If not summoned three days " at least," the juror would not be in default :
Wagner v. Mason, G P. R.'l87.
Service as 163. Scrvicc as a jui'or at a Division Court shall not
Division exempt such juror from serving as a juror in any Court of
to exempt Record; and no person shall be compelled to serve as a
serving in juror in any Division Court who is by law exempted from
Mecord. Serving as a petit juror in the High Court. R. S. O. 1877,
c. 47, s. 117.
Proceed- 164. [If any clerk of a municipality, for six days after
against demand in writing, neglects or refuses to furnish the clerk
munici- of a Division Court, within the limits of which the munici-
refu8wg**to pality for which he is clerk is partly or wholly situate, with
copy of a correct copy of the voters' list as provided in section 159
list. of this Act, the clerk of the Division Court may issue a
summons to be personally served on the said clerk of the
«p
Lli'TS OF CAUSES.
239
municipnlitv, three days at least before the sittinjr of the ^'5*1«'
V • I • It • • ,■ 164-166
Court, requinnj^ liim to appeal at the then next Hittuin- ot
the Court, to shew cause why he refused or neglected to
c )mply with the provisions of the said section.] 52 V. c. 12>
H. 21.
For six days. — Tliis is exclusive of the day on wliioli tlie denmml is
made : Youiij^ v. Hif^fjon, (> M. & VV. 4!) ; and notes to nection l'J5 (iiite.
Neglects or refuses. — It will be observed tiiat tlie word " wiifnlly ''
is here omitted.
To " neijiect " doinrj, is tlie omission to do some duty which the party
is able to do: per Patteson, J., Kin<{ v. Hurrell, 12 A. A E. 4<iS. Wlieii
" ne.ijlitiently " is part of an olfence it implies that tlie act constitntiiifj
the offence shall have been done or caused by the alleged offender liini-
suif ; proof th:it it was done by his servant, without niore, will not brinji^
the chartie home : Cliisholm v. Doulton, ")S L. J. M. C. I'M. "Nef,'li'4eiiee
is the omittinti to do somethinf^ which a reasonable man would do, or the
doinji of somethiny which a reasonable man would not do : " per Alder-
son, B., Blyth V. Birmingham W. W. Co., 11 E.x. 781.
As to words " neglect or refusal " and " negligence or omission " in a
statute, Ki'e Vogel v. G. T. Ry. Co., 10 A. 11. Ki'i; Cassel's IMg. 440.
Three days at least.— .S\'e notes to sections 10'.) and 147.
Personally served. — Sec notes to section 'J!).
For form of summons hereunder, nee Schedule of Forms.
IO»5. Upon proof of the service of the summons, the
Judge may, in a sunnnary manner, incjuire into the neglect
or refusal, or may give further time, and may impose such
tine upon the clerk of the munici])ality, not exceeding !ii^20,
as he deems just, and may also make such order for the
payment by the clerk of the municipality of the costs of
the proceedings as to the said Judge seems meet ; and all
orders made by the Judge for the payment of a fine or costs
shall be enforced against the clerk of the municipality by
such means as are provided for enforcing judgments in the
Division Courts. R. S. O. lcS77, c. 47, s. 119 ; 52 V. c. 12,
s. 22.
Upon proof. — See notes to sections 90, 111, 131, 132.
By such mea.nu.-—See notes to section 212.
1 66. The causes to be heard by the Judge alone shall
be set down for hearing in a separate list from the list of
causes to be tried by a jury, which two lists shall be sever-
ally called " The Judge's List," and " The Jury List," and
the causes shall be set down in the lists in the order in
.Judfie may
tine clerk
of munici-
pality for
liruacn of
duty.
Judges
Jist and
Jury list.
p c'S.
' i < ' . ' ,
240
.irilOES JURY.
Section B
166-168
jiil-' i' ■ ;
l:
Five juroi-rj
to 1)« em-
panulled,
etc.
Verdiot to
be uiiani-
lilOUB,
Judge may
oall talcs.
which tlioy were in the fii-Ht instance entered with the
clerk ; — " Tlie Jury Lint " shall be fii-st di8[)ose(l of, and
then "The Jud^^'s List;" except where the Judj^c sees
sufficient cause for proceeding- differently. 11. 8. (). J 877,
c. 47,s. 120.
Heard by the Judge alone. — The policy of the law in regard to Di-
vision Court uiiusuH i8 that tiia Judge liitnHelf ahall diHpose of tlie cane
unleHS a jury has boen summoned.
The convenience of jurors summoned was evidently considered in the
framing of tliis section : the object clearly was to free them from duty
as soon as the business would permit of it.
I07. Five jurors shall be empanelled and sworn to
do justice between the parties whose cause they ai'e re-
([uired to try, according to the best of their skill and ability,
and to give a true verdict according to the evidence, and
the verdict of every jury shall be unanimous. In the event
of the panel being exhausted before a jury shall be ob-
tained, the Judge may direct the clerk to sunnnon from
the body of the court a sufficient number of disinterested
persons to make up a full jury, and any person so sum-
moned may, saving all lawful exceptions and rights of chal-
lenge, sit and act as a juror as fully as though he had
been regularly summoned. R. 8. O. 1887, c. 47, s. 121 :
43 V. c. 8, s. 49.
Five jurors shall be empanelled and sworn. — See notes to section 154.
Five jurors only shall be empanelled and sworn in a Division Court case.
The oath is that they shall do justice between the parties whose cause
they are required to try, according to the best of their skill and ability
and to give a true verdict according to the evidence. It appears from
this, that the party requiring a jury, ha«« a right to insist that every ques-
tion should be submitted to them, and a Judge has not the power to with-
draw the case from them: per Gait, C.J., Lewis v. Old, 17 O. R. 611, exj
cept that he might nonsuit if the plaintiff did not produce sufficient
evidence : per Street, J., lb. 614.
Provision is also made for a tales. The same rights to the parties
would exist in regard to the further jurors as to those regularly
summoned.
Judge may jO^i. In casc the Judge before whom an action is
order jury , ^ "
to be eni- brouglit thinks it proper to have any fact controverted in
panelled o ^ r r ,/
dis*puted^ the causc tried by a jvay, the clerk shall instantly return a
fact. jyyy of fiye persons present, to try such fact, and the Judge
may give judgment on the verdict of the Jury, or may grant
JUDGE MAY DISCHAUOE JURY.
241
a new trial on the application of either party, in the same
way and under similar circumstances as new trials are
granted in other cases on verdicts of juries; this section
shall extend and apply to the trial of an interpleader issue.
R. S. O. 1877. c. 47, s. 122 ; 47 V. c. 10 s. 10, (2).
Any fact. —The parties are entitled to the decision of the Jud^e but the
Jud^e may Hubinit any contested fact to a jury, and would be bound to
give judgment, in accordance with the fact so found. The whole case
should not be left to a jury called under this section, but merely the con-
tested fact or facts.
Tried by a Jury. — It is frequently the case that Judges find, to use
the words of the late Lord Bramwell, that some facts can be better set-
tled by, " that true Court of Equity, a jury, which, disregarding men's
bargain and the law, will decide what is right in spite of all you can say
to them," than by themselves : 5 L. J. N. S. 293.
May give Judgment. — No doubt, the word " may " when used in an
Act of the Assembly of Ontario, by the Interpretation Act, and on general
principles of statutory o(m8truction, is i)ermi88ive, but, it is submitted,
that construction cannot apply in such a case as this.
" When a statute confers an authority to do a judicial or indeed any
other act which the public interest, or even individual right may demand,
it is imperative on those so authorized, to exercise the authority when
the case arises and its exercise is duly applied for by a party interested,
and having a right to make the application. In giving one person the
authority to do this act, the statute impliedly gives to others the right of
requiring that it shall be done ; the power being given for the bene^t, not
of him who is invested with it, but of those for whom it is to be exercised.-
The legislature, in such cases, imposes a positive and absolute duty, and
not merely gives a discretionary power, and it must be exercised upon
proof of the particular facts out of which the power arises. When there-
fore, the language in which the authority is conferred is only directory,
permissive or enabling, for instance, when it is enacted that the person
aulhorized " may " or " is empowered " or " shall, if he deems it advis-
able," or that " it shall be lawful " for him to do the act, it has been so
often decided as to have become an axiom, that such expressions have a
compulsory force, unless there be special grounds for a different construc-
tion:" Maxwell on Stats. 218, 219; Masdougali v. Paterson, 11 C. B.
755 ; R. V. Bishop of Oxford, 4 Q. B. D'. 525 ; Cameron v. Wait, 3 A. R.
p. 194 ; The Supervisors v. the United States, 4 Wallace, 446 at pp.
446,447; Stroud, 463.
Beotlona
168-169
!«!».
If in any case the Judge is satisfied that a Jury, Judge may
after having been out a reasonable time, cannot agree iu^y not
upon their verdict, he may discharge them, and adjourn etc
the cause until the next court, and order the clerk to sum-
mon a new jury for the next sitting of the court for that
division, unless the parties consent that the Judge may
render judgment on the evidence already taken, in which
case he may give judgment accordingly. R. S. O. 1877, c.
47, s. 123.
D.C.A. -16
.J
It €■-
I i
242
FEES FOR JURY FUND.
SMtlons
109-170
Ivj- I I r;
11
Feos for
jury fund.
Beturni
.11. ! |i
A reasonable time. — It is generally a matter of great difficulty for a
Judge to determine what is " a reasonable time." Every case must
■ depend upon its own circumstances, and whether obstinacy, prejudice or
other imprOjjer influence has found a place in the jiiry-room, as it fre-
quently does, it is for the Judge, as best he can, to determine thf.t ques-
tion before discharging a jury. See Stroud, 653.
ITO. There shall be paid to the clerk of the Division
Court, in addition to all costs or jury fees, now by law
payable, on every action entered where the claim exceeds
$20 but does not exceed $60, three cents ; where the claim
exceeds $60, but does not exceed $100, six cents; and
where the claim exceeds $100, twenty-five cents; and the
same shall be taxed and allowed as costs in the cause; and,
on or before the 15th day of January in every year, every
clerk shall return to the treasurer of the county a state-
ment, under oath, shewing the number of actions originally
entered in his court during the year previous, in which the
claim exceeded $20 but did not exceed $60, the number in
which the claim exceeded $60, but did not exceed $100,
and the number in which the claim exceeded $100; and he
shall, with the statement, pay over to the treasurer the
sum of three cents on every action so entered where the
claim exceeded $20 but did not exceed $60; the sum of six
-cents on every action where the claim exceeded $60, but
■did not exceed $100; and the sum of twenty-five cents on
every action where the claim exceeded $100, together with
;all other moneys received by him for jurors' fees during
the year: and the treasurer shall keep an account of all
moneys so received by him under the head of " Division
Court Jury Fund." 43 V. c. 8, s. 45.
Now by law payable. — The fees here provided for are in addition to
those fees which the party who requires a jury is obliged to pay under
the provisions of sections 155, 166.
The Legislature appears to have considered that a small tax should
be imposed on all parties to suits entered in the Division Court with a
view of providing a jury fund, and such tax or fee should be allowed aa
costs in the cause. It is the duty of the clerk, before the 15th of Jan-
uary in every year, to make the return to the County Treasurer, under
oath, of the requirements of this section. It is important that these re-
turns should be duly made, otherwise the clerk will be liable to indict-
ment for neglect of duty, and to summary treatment by Government.
JBee Boscoe, 9th Ed. p. 783 ; Criminal Code 1892, s. 138.
FEES OF JURORS.
848
alty for a
jase must
■ejudice or
, as it fre-
fcht.t ques-
Division
by law
^ exceeds
iho claim
ints; and
; and the
Luse; and,
jar, every
y a state-
originally
which the
lumber in
eed $100,
0; and he
i,surer the
where the
mm of six
i $60, but
e cents on
ether with
;es during
>unt of all
Division
n addition to
pay under
1 tax should
Joart with a
)e allowed as
15th of Jan-
jsurer, under
ihat these re-
ble to indict -
Government.
Seotiona
171-172
Return in
cities
forming
separate
divisions.
J T I . In cities which include one or more entire divi-
sions and no other fraction of a division the clerk shall
make the return and payment, . provided for by the next
preceding section, to the treasurer of such city, who shall
keep an account of such moneys in the same way as is pro-
\ided in the case of county treasurers, and shall, on the
presentation of the certificate of the Judge, fortliwith re-
pay to the clerk of tlie court the jurors' fees paid by him
in the same manner as is hereafter provided in the case of
county treasurers. 43 V. c. 8, s. 46.
The same returns are exacted of the clerk under this provision as are
required under section 170. Too much stress cannot be laid on the
necessity of this, as of all other returns, being duly made.
IT 2. The clerk of every Division Court shall pay to?®^^^"'
every person who has been summoned as a juror, and who
attends during the sittings of the court for which he has
uecn summoned, and who does not attend as a witness in
any cause, or as a litigant in his own behalf, the sum of
SI ; and lia ving so paid the same, except in the cases in
tlie next preceding section provided for, the presiding
Judge shall so certify to the treasurer of the county, and
sliall deliver the certificate to the clerk, and the treasurer
of tlie county shall, upon the presentation of the certificate
to him, forthwith pay to the clerk, or his order, the amount
which the clerk appeal's, by the certificate, to have paid
the jurors as aforesaid : in the case of cities, other than
those provided for by the next preceding section, and
towns separated from the county, the amounts paid in by
the clerks of the courts in such cities and towns, and the
amounts paid in by the county treasurer to the clerks of
such courts for jury fees, shall be taken into account in
settling the proportion of the charges to be paid by the
city or i>own towards the costs of administration of justice.
48 V. c. 8, 8. 47.
Every person who has been summoned. — A juror who has befn $um-
iiMned ia entitled to a fee of $1, but one called by the Judge, is only enti-
tied to the fee of lOo. allowed by the schedule to the original Division
Courts Act.
9 >'l
\€;
mmm
Garnish-
ment of
dobta.
244 GARNISHMENT OF DEBTS.
Sections To be entitled to this fee a juror must not attend as a witness in any
172-173 cause, nor as a litigant, and it makes no difference whether he is paid aa
a witness or not, nor whether he is subpoenaed or not. No provision is
made for payment of mileage and therefore none will be allowable.
The small fee formerly payable to jurors is not payable in addition
to this.
The fee here mentioned is substituted for the other. " If an Act
says a juror shall have £20 a year, and a new statute enacts that he
shall have twenty marks, jhe latter necessarily implies that the qualifi-
cation required by the former Act shall not be necessary and repeals that
A<5t: Maxwell on Ktats. 143; Zimmer v. G, T. Ry. Co., 21 O. R. 633;
S. C. 19 A. R. 693. The same principle would apply here.
The juror is entitled to his fee, no matter whether he is sworn or chaU
lenged, or whether the case is settled or the like.
If a case is settled after a jury is summoned the clerk should, if pos-
sible, countermand the jury summonses, so as to save the jury fees.
A person sworn under section 167 as a taleg would, it is submitted, be
entitled to this fee. The section does not say Iiow or when a juror is to be
summoned in order to entitle him to his fee, so that in this latter case
the juror would be equally entitled to it.
PROCEEDINGS TO GARNISH DEBTS.
173. Subject to the provisions of the next section,
when a debt or money demand of the proper competence
of the Division Court, and not being a claim strictly for
damages, is due and owing to one party from another party,
either on a judgment of a Division Court or otherwise, and
a debt is due or owing to the debtor from any other party,
the party to whom such first mentioned debt or money
demand is so due and owing (hereinafter designated the
primary creditor), may attach and recover, in the manner
herein provided, any debt due or owing his debtor (herein-
after designated the primary debtor;, from any other party
(hereinafter designated the garnishee), or sufficient to satisfy
the claim of the primary creditor, subject always to the
rights of other parties to the debts owing from such gar-
nishee. R. S. O. 1887, c. 47, s. 124.
GARNISHMENT OF DEBTS.
The pplmary debtors claim.— A cause of action to be the subject of gar-
nishment proceedings, before judgment, must conform to the*following
requirements : (1) It raust be a debt or money demand of the proper
competence of the Division Court ; (2) not strictly for damages ; and (3^
It must be due and owing to one party from another party.
In order to determine what cases the statute applies to, it is neces-
sary to consider what construction the courts have given to these several
requirements.
THE DEBT.
A debt OP money demand within the competence of the Division
Court. — The words "debt or money demand " are those used in section
70, sub-section (c) and in section 109. In tht) notes to those sections, the ~
meaning of the phrase has already been fully discussed ; it will not be
necessary, therefore, to enter into any discussion of it here.
Claims strictly for damages.— The following causes of action would
come within the meaning of the language here used, and would not be the
subject of garnishee proceedings betore judgment : Actions for trespass
or trover : see Shaw v. Sbaw, 18 L. T. N. S. 420 ; for breach of warranty
of chattels : Northwood v. Bennie, 28 C. P. 202 ; 3 A. R. 37 ; against an
attorney for negligence : Robinson v. Emanuel, L. R. 9 C. P. 415 ; or for
compromising an action aj^ainst the express direction of his client :
Butler V. Knight, L. R. 2 Ex. 109 ; for wrongful dismissal of a servant :
Hartland v. General Exch. Bank, 14 L. T. N. S. 8(53, per Willes, J. ; for
not accepting goods sold : Boorman v. Nash, 9 B. & C. 145 ; for not
delivering goods : Brown v. MuUer, L. R. 7 Ex. 319 ; for not accepting
stock sold: Pott v. Flather, 16 L. J. Q. B. 366; against a public carrier
for negligence : Simpson v. London & N. W. Ry. Co., 1 Q. B. D. 274 ;
ior breach of covenant to repair : Henrlerson v. Squire, L. R. 4 Q. B. 170 ;
■on a bond to do something besides the mere payment of a sum certain in
money : Bransoombe v. Scarbrough, 6 Q. B. 13 ; or on a replevin bond :
lb. : for negligent driving of carriages or trains causing damage : Read-
head V, Mid. Ry. Co., L. R. 4 Q. B. 379; for injuries to workmen; Smith
V. Baker, (1891), A. C. 225 ; for deceit : Swift v. Jewsbury, L. R. 9 Q. B. 301 ;
Derry v. Peek, 14 App. Cas. 337 ; for excessive distress : Fell v. Whittaker,
L. R. 7 Q. B. 120-124 ; for irregular distress : Knight v. Egerton, 7 Ex.
407 ; for an illegal distress : Attack v. Bramwell, 3 B. & S. 520 ; or when
no rent due : lb. ; in detinue : Wiley v. Crawford, 1 B. <Sr S. 253 ; or
replevin : Gibbs v. Cruickshank, L. R. 8 C. P. 454 ; against a sheriff or
bailiff for wrongfully seizing goods : Mayhew v. Herrick, 7 C. B. 229 ; or
for not arresting : Williams v. Mostyn, 4 M. & W. 145 ; or for allowing
a person to escape : Macrae v. Clarke, L. R. 1 C. P. 403 ; or for not
levying, or a false return : Hobson v. Thelluson, L. R. 2 Q. B. 642 ; on
any contract of indemnity : Theobald v. Ry. Passengers Ass. Co., 10 Ex,
45; for injuries resulting from the negligent keeping of animals: Ellis
V. Loftus Iron Co., L. R. 10 C. P. 10 ; for assault and battery and false
imprisonment : Warwick v. Foulkes, 12 M. & W. 507 ; by principal
ag&inst his agent for negligence : Parker v. McKenna, L. R. 10 Ch. 90 ;
for non-delivery of telegraphic messages : Sanders v. Stuart, 1 C. P. D.
326 ; or for hegligence in transmitting same : Dickson v. Renter's Tel.
Co., 2 C. P. D. 62 ; or in an action against a witness for non-attendance
on subpoena: Yeatman v. Demsey, 7 C. B. N. S. 628.
The debt. — The debt of the primary debtor must be due and owing.
While that of the garnishee need only be due or oadng. The case of
Johnson v. Diamond, 11 Ex. 73, well ilbistrates the principle of what is a
" debt " within the phrase " debt or money demand," namely a liquid-
ated money obligation for which, speaking generally, an action will lie :
4ee Webster v. Webster, 31 Beav. 393; but which obligation may be either
legal or equitable : per Lindley, L.J., Webb v. Stenton, 11 Q. B. D. 518 ;
Legarie v. Canada Loantfe Banking Co., 11 P. R. 512. "Due " may mean
either owing or payable, and what it means is determined by the context :
Ex parte Kemp, L.R. 9 Ch. 383 ; Re Stockton Malleable Iron Co., 2 Ch. D.
101. The word " due " in the Act is used in the same sense as payable :
»ee section 204, where the words are "owing to the primary debtor,
whether due or not due." Money may then be said to be due at the ex-
piration of the credit given, or at the period promised: Webster. To be
" due and owing," therefore, the primary debtor must not only be indebted,
but the debt must be payable: i.e., past due, while to be "due or owing*'
245
Section
173
to
f
r
246
DEBTS ATTACHABLE.
Saotton it is only necessary that there should be a debt contracted though not-
178 payable until a future time. There need not be a present right to sustain
an action against the garnishee : Parker v. Howe, 12 P. R. 353.
Section 194 provides, however, that no execution shall issue against the-
garnishee until and so far only as the debt has become fully due. Judg-
ment may, however, be given against the garnishee at the hearing,
suspending the issue of execution until the money becomes due : Tapp
V. Jones, L. R. 10 Q, B. 592, 593. The mere possibility that when the
day for payment arrives there may be a defence against the recovery of
the debt is no ground for resisting judgment : Sparks v. Young, 8
Ir. C. L. R. 251. The rule of the Unt. Jud. Act (C. R. 935), which
makes provision for the attachment of claims and demands, not being
debts, but such interest as could formerly have been made available
under equitable execution, does not apply to Division Courts : Simpson
v. Chase. 14 P. R. 280 ; see notes to section 73.
Where the garnishees are co-partners the names of the individual
members of the firm must be set out in the process. A garnishee sum-
mons against the firm of " A. B. & Co.," is not authorized by section lOS,
subsection 4 : Walker v. Rooke, 6 Q. B. D. (531 ; Reid v. McLeod, 20 Ala.
576 ; and where a garnishee is not indebted in his individual capacity
but is a partner in a firm, it was held, he could not be charged without
his partners being made parties to the proceeding : Rix v. Elliott, 1 N. H.
184 ; see also Parker v. Danforth, 16 Mass. 299 ; but in (. larke v. Macdon-
ald, 4 O. R. 310, it was said, that judgment could not in any event be
given except against the partners served. As each partner is jointly liable
for the debt, it is an open question whether a partner served with procesa^
in which his firm was described as garnishees, would not be sufliciently
cliarged, in the absence of objection by him to the summons as irregular :
King V. Hoare, 13 M. & W. 494 ; Kendall v. Hamilton, 4 App. Cas. 50 1.
Where a judgment creditor has induced his debtor to assign his book
debts to him he cannot proceed against the debtors summarily by garnish-
ment proceedings : Armstrong v. Douelas, 8 C. L. T. 49.
Debts attachable. — A fair test of a debt being garnishable is whether
or not it could be the subject of setoff: Johnson v. Diamond, 11 Ex.
263 ; Webster v. Webster, 31 Beav. 393 ; McNaughton v. Webster, 6 U.
C. L. J. 17 ; McPherson v. Tisdale. 11 P. R. 261 ; Parker v. Howe, 12 P,
R. 351. Generally speaking, "money in the hands of a man who can-
not refuse to pay it somehow or another is a ' debt,' and if so, it can be
attached:" per Coleridge, C.J., Booth v. Trail, 12 Q. B. D. 8. If a debt
is attachable the recovery of judgment does not make it less so : McKay
V. Tait, 11 C. P. 72. A debt due for which a cheque has been given may
be attached, but if the garnishees do not stop payment of the cheque, no
order for payment will be made : Cohen v. Hale, 8 Q. B. D. 371 ; Elwell
V. Jackson, 1 C. <fe E. 362. Money deposited with the garnishee for a
special purpose, which has failed, remains in his hands in trust and is
garnishable : Stumore v. Campbell, (1892), 1 Q. B. 314.
All '• debts," whether legal or equitable, owing to the judgment debtor,,
whether presently payable or not, are garnishable : but only " debts " can
be attached, and moneys which may or may not become payable from a
trustee to his cestui que trtist, are not debts : Webb v. Stenton, 11 Q. B.
D. 518, 528 ; Stuart v. Grough, 15 A. R. 299. A trustee is not an equit-
able debtor until there is money in hand which he ought to pay to the
eeBtiii que trust, or until he has made himself personally liable to pay
money to the cestui que trust, by reason of some breach of trust or default
in the performance of his duties : per Fry, L.J. II Q. B. D. 530.
Tiie mere fact of a garnishee being an executor is no ground for not
ordering him to pay the debt due by him as executor to the judgment
creditor : Tiffany v. Bullen, 18 C. P. 91 ; Burton v. Roberts, 6 H. A N.
DEBTS ATTACHABLE.
247
93 ; Fowler v. Roberts, 2 Giff. 226, but the order in sach cases should
shew on its face that it is directed to the executor as such : Stevens v.
Phelips, L. R. 10 Ch. 417.
But a debt due to an administrator, as such, cannot be attached to
answer his private debt ; Bowman v. Bowman, 1 Ch. Cham. 172.
Though a primary debtor may have taken the garnishee in execution
for the debt, it is, nevertheless, attachable : Marples v. Hartley, 1 B. & S. 1.
Rent which is accrued by virtue of the Apportionment Act of Ontario
may be attached and may be ordered to be paid when due to satisfy the
primary debt: R. S. O. c. 143, ss. 2, 3; Patterson v. Richmond, 17
L. J. N. S. 824; Massie v. Toronto Ptg. Co., 12 P. R. 12 ; but is doubtful
whether rent could be gai mshed as against a mortgagee of the landlord :
lb. ; but see Jones v. Thompson, 27 L. J. Q. B. 234, and other cases cited
infra, p. 249.
There appears to be nothing to prevent money in the hands of an
agent in this province, being garnished where the garnishee resides out
of the Province: Brown v. Merrills, 3 U. C. L. J. 31. In this respect the
Division Courts have an anomalous jurisdiction over foreigners. The
Hij^h Court and County Courts cannot reach, by garnishee process, a
corporation, firm or individual, resident out of the jurisdiction : C. R.
935 ; Canada Cotton Co. v. Parmalee, 13 P. R. 308.
A judgment or order for costs only is sufficient to sustain garnishee
process: Elliott v. Capell, 9 P. R. 35 ; Re Irvine, 12 P. R. 297 ; see also
Nottv. Sands, W. N. (1883), 74 ; Sunderland Local Marine Bd. v. Frank-
land, L. R. 8 Q. B. 18 ; Cremetti v. Crom, 4 Q. B. D. 225 ; C. R. 934.
It has been held that the following are debts and are attachable : —
The over-due superannuation of a retired police constable : Booth v.
Trail, 12 Q. B. D. 8 ; Murphv v. Green, 26 L. R. Ir. 610 ; see also Shan-
ley v. Moore, 9 U. C. L. J. 264 : Hall v. Pritchett, 3 Q. B. D. 215 ; the
superannuation of a County Judge ; Willcock v. Terrell, 3 Ex. D. 323; or
civil servant : Sansom v. Sansom, 4 P. D. 69 ; a commutation of a pension :
Crowe V. Price, 22 Q. B. D. 429 ; see also lie Webber, 18 Q. B. D. HI ;
over-due rent : Mitchell v. Lee, L. R. 2 Q. B. 259.
A balance due for purchase money of leaseholds, after assignment to
the purchaser, and entry into possession by him : Owens v. Shield, 1 C.
A K. 356: an ascertained amount due on a guarantee: Bouch v. Seven -
oaks, etc., Ry. Co., 4 Ex. D. 138; dividends, though not declared on an
insolvent estate : Parker v. Howe, 12 P. R. 351 ; an amount certain pay-
able under a bond : Johnson v. Diamond, 11 Ex. 73, per Parke, B., at p.
80 ; money in the hands of bankers ; lie United Eng. and Scot. Ins. Co ,
L. R. 5 Eq. 300; Miller v. Huddlestone, 22 Ch. D. 233; Rogers v.
Whitely, 23 Q. B. D. 236 ; (1892), A. C. 118 ; the proceeds of an
execution in the sheriffs hands for a debt due by the executon creditor :
Murray v. Simpson, 8 Ir. C. L. R. App. xlv ; In re Smart v. Miller, 3 P.
R. 385 ; O'Neill v. Cunningham, 6 Ir. L. R. 503 ; Williams v. Reeves, 12
Ir. Ch. R. 173 ; a debt due to one or more of the judgment debtors upon
a judgment recovered against several, may be attached in the hands of
the garnishee : Miller v. Mynn, 1 E. & E. 1075; money in the hands of
a corporation or company : Salaman v. Donovan, 10 Ir. C. L. R., Ap.
xiii ; or of a Division Court Clerk : Bland v. Andrews, 45 U. C. R. 431 ;
but the contrary has been held in England : see Dolphin v. Layton, 4 C.
P. D. 130 ; Howell v. Metrop. Dist. Ry. Co., 19 Ch. D. 508 ; or of a Divi-
sion Court Bailiff: Lockart v. Gray, 2 L. J. N. S. 163 ; a debt due to a
testator's estate on a judgment against his executors as such : Fowler v.
Roberts, 2 Giff, 226; Burton v. Roberts, 6 H. & N. 93; money payable
for work done for a municipal corporation : Alden v. Boomer, 2 P. R.
339 ; money due under an award and decree of the Court of Chancery,
Bsotioii
ITS
248 CLAIMS NOT ATTACHABLE.
Section although the full amount was not ascertained by reason of the costs not
173 having been taxed : In re Sato v. Hubbard, 8 P. K. 445; costs coming to
plaintiff though not yet taxed : McPherson v. Tisdale, 11 P. R. 261 ; or
a sum to be ascertained as due to the holder of a Mechanics' Lien :
Re Withrow, 19 L. J. N. S. 114 ; an annuity in the hands of trustees in
whom it was vested was held attachable in Nash v. Pease, 47 L. J. Q. B.
766 ; and money in the hands of a trustee though not as yet due to the
cestui que tmst, in Lloyd v. Wallace, 9 P. R. ilH5 ; but these cases cannot
now be considered as authorities : Webb v. Stenton, 11 Q. B. D. 518 ;
Stuart v. Grough, 15 A. R. 299 : money lodged in court in the name of the
Master of the court was held to ba the subject of a charging order :
Adams v. Gillem, 9 Ir. C. L. R. 148 ; unnegotiable promissory notes,
being in the same position as ordinary choses in action, are the subject
of garnishment; Oldham v. Ledbetter, 1 Howard (Miss) 43; Wilhelmi v.
Hafner, 52 III. 222 ; Colvin v. Rich, 3 Porter, 175 ; money in the hands
of a receiver may be attached with the leave of the court which appoint-
ed him : De Winton v. Brecon, 28 Beav. 200 ; a debt due by a company
in liquidation under the Winding up Act to a primary debtor might be
reached by garnishment, and the primary creditor would then be
entitled to the dividend of the debtor : Prichard's claim, 2 D. F. & J.
354 ; see, however, Hunter v. Greensill, L. R. 8 C. P. 24; Mack v. Ward,
W. N. (1884), 16. The process should apparently be issued against the
company after obtaining the leave of the court in which the winding up
was being carried on ; R. S. C. c. 129, s. 16.
An overdue negotiable note may be attached : Roblin v, Rankin
11 S. C. R. 137.
A receiver may be appointed of the interest of a husband in lands of
wife dying intestate: Harris v. Harper, 9 C. L. T. 39 Where a receiver
was appointed, by way of equitable execution, to receive a pension, the
court ordered that a certain sum should be applied on the judgment out
of each payment and the residue paid to the debtor, thus providing for his
maintenance : Molony v. Cruise, 30 L. R. Ir. 99.
Claims not attachable. — The following have been held not to be debts
within the meaning of the statute, and therefore not attachable. Dam-
ages, though after verdict, until judgment obtained : -Tonpov. Thompson,
27 L. J. Q. B. 234 ; a verdict on a marine policy : Dresser v. Johns,
6 C. B. N. S. 429 ; a verdict obtained in defrailt of delivery of a chattel :
In re Scarth, L. R. 10 Ch. 234 ; but a verdict is now attachable before
judgment : Holtby v. Hodgson, 24 Q. B, E . 103 ; Davidson v. Taylor,
14 I?. R. 78 ; an unascertained claim on a firo policy : Boyd v. Haynes,
5 P. R. 15 ; Tate v. Corp. of Toronto, 3 P. R. 181 ; Randall v. Lithgow,
12 Q. B. D. 525; Bank of Toronto v. Burton, 4 P. R. 56; Gwynne v.
Bees, 2 P. H.282; Simpson v. Chase, 14 P. R. 280; and even though
the amount may have been adjusted, it is not attachable ; as the adjust-
ment has not the effect of determining absolutely the amount due:
Simpson v. Chase, 14 P. R. 280 ; it would be sufficient if the amount
had been fixed by an award : Victoria Mutual v. Bethune, 1 A. R.
398; money due to Poor Law Guardians primarily applicable to the
relief of the poor though they had become indebted in their official
capacity for goods supplied : Mm-phy v. Guardians Belmullet Union,
22 L. R. Ir. 215 ; money in the hands of a County Court Registrar :
Dolphin V. Layton, 4 C. P. D. 130 (but see ante pp. 246-248) ; money
paid into the hands of a Deputy Clerk of the Crown, Clerk of the County
Court or Division Court: lb.; or of a Clerk of the Peace: Darcy v.
€arragher, 18 L. R. Ir. 317 ; or of the Police ; Jervis v. Peel. 1 T. L. R. 306 ;
Bice V. Jarvis, 49 J. P. 264 ; Re Baird v. Nolan, 20 O. R. 311 ; but in
Field V. Rice, 20 O. R. 309, it has been held by the Q. B. Divisional Court,
that the question whether money taken by the police, from a prisoner
mmfi
I
CLAIMS NOT ATTACHABLE.
249
-was a debt, was a pure question of fact to be determined by the Division
Court Judge and not reviewable in prohibition.
A contract to loan money creates no debt, and even though the judg-
ment debtor may have mortgaged his property to the garnishee for the
nmonnt of a proposed loan, no attachable debt would thereby exist :
Western Wagon & Property Co. v. West, (1892), 1 Cli. 271.
Moneys in the hands of a trustee in bankruptcy have been held to be
not attachable: Boys v. Simpson, 8 Ir. C. L. U. 523; Hunter v. Green-
sill. L. R. 8 C. P. 24 ; Prout v. Gregory, 24 Q. B. D. 281 ; or of a liquida-
tor : Mack v. Ward, W. N. (1884), IG; or of the mortgagee as the surplus
of a sile ui mortgaged property when sold by a prior mortgagee under
his power of sale, the sale having taken place after the service of the
garnishee order: Chattertou v. Watney, 16 Ch. D. 378, in appeal,
17 Ch. D. 259; (but the holder of a garnishee order, served after the
sale, is entitled to attach the surplus proceeds of sale in the hands of the
first mortgagee , lb. ; Re Mead & Creary, 32 C. P. 1) ; claims for mis-
representation ; Roberts v. Corp. of Toronto, 16 Gr. 236 ; an unascertained
aniount claimable under a bond; Johnson v. Diamond, II Ex. 73; a
legacy in the hands of an executor, even though he promised to pay it if
ordered to do so : McDonald v. Hollister, 3 W. R. 522 ; unless there has
been such an account stated by the executor as would entitle the legatee
to sue at law : lb. ; dividends payable to the wife of the execution debtor :
Dingley v. Robinson, 2 Jur. N. S 1145 ; moneys payable on a contingency,
as for purchase money before execution of conveyance : Howell v. Metrop,
Dist. Ky. Co., 19 Ch. D. 508; or for purchase money prior to the com-
pletion of expropriation proceedings : Richardson v. Elmit, 2 C. P. D. 9;
Fellows V. Thornton, 14 Q. B. D. 335 ; Nash v. Pease, 47 L. J.
Q. B. 766 ; Lloyd v. Wallace. 9 P. R. 335; rent or instalments of
rent not yet due: Jones v. Thompson, 27 L. J. Q. B. 234; Com-
mercial Bank v. Jarvis, 5 U. C. L. J. 66; McLean v. Sudworth, 4
U. C. L. J. 233 ; (but see Patterson v. Richmond, 17 L. J. N. S. 324 ;
Massie v. Toronto Ptg. Co., 12 P. R. 12); trust income not yet come to
the hands of trustees, although when received it would be payable to the
debtor: Webb v. Stenton, 11 Q. B. D. 518; salary or pension not yet
payable : Hall v. Pritchett, 3 Q. B. D. 215 ; Booth v. Trail, 12 Q. B. D.
8 ; Shanley v. Moore, 9 U. C. L. J. 264 ; Trust & Loan Co. v. Gorsline,
12 P. R. 654 : the half pay of an army officer : Birch v. Birch, 8 P. D.
163; Lucas v. Harris, 18 Q. B. D. 127; the pay of a surgeon in Her
Majesty's Navy on active service : Apthorpe v. Apthorpe, 12 P. D. 192.
(Half-pay is given to a man in order to keep him in a state to perform
his duties, if called upon to discharge them, and pay is given him to
enable him to discharge his duties in presenti. Neither can be assigned,
and not being assignable are not attachable : Flarty v. Odium, 3 T. R. 681 ;
Apthorpe v. Apthorpe, 12 P. D. 193 ; Brenan v. Morrisey, 26 L. R. Ir.
^)18) ; an annual gratuity from the East India Co. : Innes v. East India
Co., 17 C. B, 351; moneys held for, and not yet payable to a married
woman who is restrained from anticipation: Chapman v. Biggs, 11
Q. B. D. 27; Galmoyev. Cowan, 58 L. J. Ch.769; see Stanley v. Stanley,
7 Ch. D. 589 ; Macdonald v. Anderson ; 9 C. L. T. 158. Where trustees
have a direction to apply the whole or any part of income for the
benefit of a judgment debtor, there is no attachable debt: R. v. Lin-
colnshire (Judge), 20 Q. B. D. 167; annuities or instalments of annuities
not yet due : Nash v. Pease, 47 L. J. Q. B. 766 ;' or interim or permanent
alimony: Re Robinson, 27 Ch. D. 160.
It was held that money in the sheriff's hands, levied under an attach-
ment for costs awarded by a decree in equity, remained in custodia legis,
and was not, without further order, the property of the party who issued
the attachment : Williams t. Reeves, 12 Ir. Ch. R. 173 ; money paid into
Section
173
P?r„ fl4.
=^a
250
CLAIMS NOT ATTACHABLE.
Section court : Jones v. Brown, 29 L. T. Rep. 79 ; French v. Lewis, 16 U. C. R. 547 ;:
173 unsettled balance by one partner to another : Campbeii v. Feden,
3 U. C. L. J. 08 ; but if ascertained it can : lb.; money sent by a father
to his son as a ^ift, through a bank was held not to be a debt due by the
bank to the son while the father retained power to withdraw the gift :
Caisse v. Tharp, 5 P. R. 265 ; money alleged to be due on an indemnity
bond, the same not being capable of being set-off : Griswold v. Buffalo
B. & G. Ry. Co., 2 P. R. 178 ; wages or salary of servants to the extent
of 925 : see section 174 ; nor the salary of a municipal officer who holds
his office at the will of the corporation at a yearly salary, payable^
quarterly, until some part of it is overdue : Shanley v. Moore, 9
U. C. L. J. 2(54, and cases cited ante pp. 248-249 ; nor a juror's allowance in
the hands of the county treasurer: Phillips v. Austin, 3 C. L. T. 31i);
where a fund is applicable to the payment of several persons, pari passu,.
one of them cannot take garnishment proceedings and thus obtain
priority over theotliers: Kennettv. Westminster Improvement Comm'rs,
11 Ex. 319 ; nor money in the hands of the sheriff arising from a sale of
land for taxes, at the instance of creditors of the county corporation :
Wilson V. Corp. of Huron and Bruce, 8 U. C. L. J. 136 ; nor the redemp-
tion moneys paid to the county treasurer by owners of land sold for
taxes and banked in the name of the treasurer : S. C. 8 U. C. L. J. l;i5 ;
nor surplus moneys, if any, after payment of the debts of A., which by
' the terms of a trust deed might be paid to the debtor or invested in land
to be conveyed to him : McKindsey v. Armstrong, 10 A. R. 17 ; nor a
debt due by tlie garnisiiee to a person who would be a trustee of it for the
judgment debtor: Boyd v. Haynes, 5 P. R. 15 ; (but such a debt w^ould
be held now to be garnishable: Wilson v. Dundas, W. N. (1875), 2H2;
Summers v. Morphew, 61 L. T. Jour. 140; Webb v. Stenton, 11 Q. B. D.
518; Leaming v. Woon, 7 A. R. 42) ; nor can money which may become
due if the terms of a contract are performed be attached even though
some work may have been done : McCraney v. McLeod, 10 P. R. 5H!) ;
and though, if the contractor abandons the contract, and the contractie
enter upon the work and complete it, a debt may arise by implication
for tlie value of the work done, a garnishee summons served before the
contractee entered upon the work will not attach such amount : McCraney
v. McLeod, 10 P. R. 539, explained in Parker v. Howe, 12 1'. R. 351 ;
nor a negotiable promissory note not yet due: Jackson v. Cassidy,
2 O. R. .521 ; Pyne v. Kinna, 11 Ir. li. C. L. 40; Mellish v. Buffalo B. &
G. Ry. Co., 2 U. C. L. J. 230 : 14 L. J. N. S. 256.
Neither our Dominion nor Provincial Governments can be made
garnishees, unless so declared by proper statutory authoritv : R. v. Mc-
Farlane, 7 S. C. R. 21() ; Apthorpe v. Apthorpe, 12 P. D. 192 ; Gidley v.
Palmerston (Lord) 3 B. &. B. 275 ; Macbeath v. Haldimand, 1 T. R.
172. Money upon which the garnishee has a lien cannot be taken from
him without such lien being first discharged : Nolan v. Crook, 5 Hum-
phreys, 312 : Smith v. Clarke, 9 Iowa, 241 ; Grant v. Shaw, 16 Mass. 341 ;
Curtis V. Norris, 8 I'ick. 280; Goddard v. Hapgood, 25 Vt. 181 ; Nathans
V. Giles, 5 Taunt. 558; Stuniore v. Campbell, (1892), 1 Q. B. 314. A
liability cannot be enforced against the garnishee for a debt based on an
illegal consideration : McGlinchy v. Winchell, 63 Maine, 31.
The County Treasurer cannot be garnished on a judgment against
the Clerk of the Peace for that County for moneys which may come into
the hands of such County Treasurer for said Clerk of the Peace, after the
Board of Audit has passed upon his accounts, the same not being a gar-
nishable debt : In re Hanvey v. Stanton, 13 L. J. N. 8. lOi; Palmer v..
Bate, 2 Brod. & Bing. 673.
RIGHTS OF OTHER PARTIES.
251
The court refused to attach at the instance of a udgment creditor on
a judgment de bonis testatoris against an executrix's funds which were
lodged by her in that capacity in the bank of the judgment creditor : -
Hewat V. I'avenport, 21 W. R. 78.
Where a claim is for unliquidated damages, and is referred to arbi-
trators there can be no garnishment until after award : Tate v. Corp. of
Toronto, 10 U. C. L. J. 66. Where a cheque was given and duly paid, it
was held there was no debt between the time of giving it and the time of
payment, and no duty upon the drawer of the cheque to stop payment on
being served with a garnishee order : Elwell v. Jackson, 1 C. & E. B62 ;
but if the cheque had been 3topped, the debt would have been attachable :
Cohen v. Hale, 3 Q. B. D. 371. Officers of the law, whose duty it is to
hold moneys for suitors, have, in the United States, been generally held
exempt from garnishee process : Staples v. Staples, 4 Maine, 532 ;
Thayer v. Sherman, 12 Mass. 441 ; Riley v. Hirst, 2 Penn. 346. A debt
owing to two cannot be attached to satisfy a claim against only one of
these two: Re Smart v. Miller, 3 P. R. 385 ; McCormack v. Park, 9 C, P.
380; Macdonald v. Tiicquah Gold Mine Co., 13 Q. B. D. 537 A life
interest of a tenant by the curtesy, in purchase money, is not attachable :
Palmer v. Lovett, 14 P. R. 415.
Rights of other parties. — Only such property can be attached as the
debtor could deal with properly and without violating the rights of
other persons at the time the garnishee order is served : Westoby v. Day>
2 E. * E. (i05 ; Badeley v. Consolidated Bank, 34 Ch. D. 536 ; s. c. 38 Ch. D.
•238; 7fe General Horticultural Co., 32 Ch. D. 512; Vysev.Brown, 13 Q. B. 1).
l')9 ; Armstrong v. Douglas, 8 C. L. T. 49 ; Davis v. Freethy, 24 Q. H. D.
519 ; Beaty v. Hackett, 14 P. R. 395. An assignment in insolvency pre-
vented garnishment : lie Fair v. Bell, 2 A. R. 632. An order npon a
garnishee has no operation upon debts of which a judgment debtor has
already divested himself by bona fide assignment : Hirsoh v. Coates, 18
C. B. 757 ; Ferguson v. Carman, 26 U. C. R. 26 ; Macaulay v. Rumball,
19 C. P. 284 ; and when a verdict was assigned with a covenant for
further assurance, and the verdict was set aside, but on a new trial a
similar verdict was rendered, it was held, that the assignment covered
the second verdict, and had priority over a garnishee order on the
amount of the second verdict : Davis v. Freethy, 24 Q. B. D. 519. Ai.J to
make an assignment of a debt prevail over an attaching order it is not
necessary that notice of the assignment should be given to the garnishee r
Brown v. McGuffin, 5 P. R. 231, and cases there cited ; Robinson v.
Neabitt, L. R. 3. C. P. 2'^)4 ; Grant v. McDonell, 39 U. C. R. 412. A per-
son must be made a party to garnishee proceedings before his right can
be affected thereby: Ue Fair v. Bell, 2 A. R. 632; see Turubull v.
Robertson, 38 L. T. N. S. 389.
Where a tenant by the curtesy joined in a conveyance of land to a
purchaser, but had never obtained any interest in the land or purchase
money, it was held that no debt legal or equitable was due to him by the
solicitor for the heir, who had received the purchase money : Palmer v.
Lovett, 14 P. R. 415. Bond holders of a railway company, whose bonds
are a first charge upon the undertaking have no right to earnings of the
road while operated by the company, as against an attaching creditor.
Their remedy is the appointment of a Receiver : Phelps v. St. Catharines.
& Niagara Central Ry. Co., 19 O. R. 501.
Where a Receiver is appointed of a debt, an attachment, after tlie
appointment, without leave, would be a contempt : Searle v. Choat, 25 Ch.
D. 723 ; and if the Receiver should be appointed after the attachment,
the garnishee would not be justified in paying the money to the attaching
creditor without the leave of the court which appointed the Receiver l
Beotlon
173
m
i -.-
252
SOLICITORS LIEN.
Section
173
Hawkins v. Gethercale, 1 Drew. 12 ; Amen v. Birkenhead Dock Co., 20
Beav. 332 ; Stuart v. Grough, 15 A. R. 299.
Where the assignee of a debt not only neglected to give notice of
assignment, but his solicitor stood by while an attaching order was being
made, and the garnishee paid the debt to the judgment creditor, the court
relieved the garnishee from an order made against him prior to the garn-
ishment under which he was liable to attachment : In re Jones. Ex parte
Kelly, 7 C. P. 149.
Where it is clear, upon the facts appearing in support of the claim of
the primary creditor against the garnishee, that the moneys souglit to be
garnished do not belong to the judgment debtor, but to a third person,
such tlnrd person should not be summoned to prove his claim but the
garnisliee summons should be dismissed; Johnson v. Moody, 12 P. R.
203 ; but it would be otherwise if the primary creditor could suggest a
plausible ground for supposing the money to be that of the judgment
debtor, or cast any doubt upon the bona Jidcs of the third party's
claim ; Ih.
A solicitor, by whose efforts a judgment is recovered, has a lien
thereon for the costs of the action in which it was recovered, which will
have priority over a garnishee summons issued at the instance of a
creditor of the client; Canadian Bank of Commerce v. Crouch, 8 P. R.
437 ; The Jeff. Davis, L. R. 2 A. & E. I ; Cormick v. Ronayne,22L. R.
Ir. 140; Shippey v. Grey, 42 L. T. N. S. (573; but per Lord Watson m
North V. Stewart, 15 App. Cas. 463, "in the courts of common law, a
solicitor's lien upon costs decreed does not prevent their attachment by
other persons having claims against the judgment creditor: see In re
Knight. Knight v. Gardner, (1892), 2 Ch. 370.
Distinct notice of the lien must be givon to the garnishee, who will
then be bound to bring it to the notice of the court, and the solicitor will
tlien be summoned under section 197. If the garnishee should not have
notice, and the money should, therefore, be paid to the judgment credi-
tor, he would be compelled to repay it if he had notice of the lien at the
time of receiving the money : Eisdell v. Conningham, 28 L. J. Ex, 213 :
s. c. 4 H. A N. 871 ; Hough v. Edwards, 1 H. & N. 171 ; Mercer v. Graves,
L. R. 7 Q. B. J99 ; Davidson v. Douglas, 15 Gr. 347 ; R. v. Benson, 2 P. R.
3.50; Bank of Upper Canada v. Wallace, 2 P. R. 352 ; Cotton v. Vansit-
iart, 6 P. R. 96 ; Hamer v. Giles, 11 Ch. D. 942 ; Dallow v. Garrold,
14 Q. h. D. 543. If judgment has been given against the garnishee, and
it subsequently appears that the debt was assigned prior to the garnish-
ment, the judgment will be set aside : Beat>y v. Hackett, 14 P. R. 395,
notwithstanding more than 14 days may have elapsed : McLean v.
McLeod, 5 P. R. 467.
Where, in garnishee proceedings, the money is trust money, or there is
reasonable suspicion that it is trust money, the cestui qui trust has a right
under equitable procedure to come forward, provided he does so in time,
and object to an order absolute being made ; and he is not to be damaged
bv such an order merely because the garnishee will not act : Roberts
v" Death, 18 L. J. N. S. 101 ; 8 Q. B. D. 319.
Money deposited by a stock broker in his own name, but belonging to
<:lients. is not attachable : Hancock v. Smith, 41 Ch. D. 456.
The proceedings in garnishment can have no effect to overthrow trusts
in order to reach moneys supposed to belong to a debtor. Such moneys
must be the property of the debtor absolutely : White v. White, 30 Ver-
mont, 338 ; Keyser v. Mitchell, 67 Penn. 473.
WAGES OR SALARY.
263
•ock Co., 20
e notice of
r was being
r, the court
to the gnrn-
8. Ex parte
,he claim of
ought to be
lird person,
,im but the
ly, 12 P. R.
d sutigest a
.6 judgment
lird party's
has a Hen
, which will
stance of a
nch. 8 P. R.
me, 22 L. R.
Watson m
imon law, a
achment by
r : see In re
ee, who will
jolicitor will
aid not have
;ment credi-
e lien at the
.J. Ex.213:
f>r V. Graves,
i8on,2P. R.
m V. Vansit-
V. Garrold,
irnishee, and
the garnish-
U P. R. 395,
McLean v.
jy, or there is
H has a right
IS so in time,
) be damaged
ict : Roberts
bslonging to
rthrow trusts
Such moneys
hite, 30 Ver.
17 J. No debt due or accruing to a mechanic, workman, *^^5S?
labourer, servant, clerk, or employee, for, or in respect of, ~ — — •
his wafifes or salary, shall be liable to seizure or attach- ''°«' wages
o ^ not to be
ment under this Act, or any other Act relating to the |***^*J«^^
attachment or garnishment of debts, unless the debt ex- over'^ls*
ceeds the sum of J$25, and then only to the extent of the
excess. R. S. O. 1877, c. 47, s. 125 ; c. 50, a. 318.
Workman, laboFer, etc. — A medical health officer of a city is not an
employee: /u re Mactie v. Hutchinson, 12 P. R. 107; see also Forsyth
V. Canniff, 20 O. R. 478 ; and a secretary of a company on a salary of
£200 a year, was held not to bo a servant within the meaning of the
English Act: Gordon v. Jennings, 9 Q. B. D. 45; see Lea v. Parker, 13
Q. B. D. 835. But he would probably be an employee.
Wages OP Salary. — The language of this section is much wider in its
scope and object than the provisions of the English Act which only affects
the " wages " of any " servant, labourer or workman," while under this
provision the " wages or salary " of any mechanic, workman, labourer,
servant, clerk or employee " to the extent of ft25 is protected and exempt
from garnishee proceedings subject to the provisions of the next succeed- .
ing sections. A case can hardly be conceived where the relation of em-
ployee and employer exists to which this section would not apply. The
word "employee" alone, independently of the other classes of persons
mentioned, shows how extensive its provisions are. It was held that a
perBon who at a post-master's request gratuitously assisted him in sort-
ing letters was within the phrase " person employed under the Post-
Office : " per Park B., R. v. Reason, 23 L. J. M. C. 13. And the word
" employee " means " a person employed : " Worcester: see Gurney v.
Atlantic, &c.. By. Co., 2 N. Y. Supr. Ct. 453. It has been contended that
where a mechanic works by the piece and not by the day this clause does
not apply. It is submitted that the section has application as much in
the one case as in the other ; that work performed either one way or the
other should be considered " wages " within the meaning of the section.
The word "wages" would seem to apply to the personal earnings of
labourers and artizans : see Gordon v. Jennings, 9 Q. B. D. 45 ; Riley v.
Warden, 2 Ex. 59 ; Sleeman v. Barrett, 2 H. & C. 934 ; Ingram v. Barnes,
7 E. & B. 132 ; In re Jones. Ex parte Lloyd ; (1891), 2 Q. B. 231. It has
been said that " according to the most approved lexicographers ' salary '
and ' wages' are synonymous. Both mean ' a sum of money periodically
paid for services .rendered.' If there is any difference in the popular
sense, it is in the application to more or less honourable serTice8:"2»<;r
Sharswood, G.J., Commonwealth, ex rel Wolfe v. Butler, 99 Pa. 542, see
Stroud, 696, 870. The earnings of a commercial traveller, whose
employment is at so much a year, terminable by a week's notice,
are " salary : " Ex parte Brindley, 35 W. R. 596.
We think that when a garnishee makes a defence, or admission, under
section 188 of this Act, he should, if the debt is for wages or salary,
shew whether the amount is or is not subject to the exemption men-
tioned m this section. See also Apthorpe v, Apthorpe, 12 P. D. 192.
]75> Nothing in the next preceding section contained saving
i o clause as
shall apply to any case where the debt has been contracted to certain
for board or lodging, and in the opinion of the Judge, the
9i
254
DEBTS FOR HOAUD AND LODGING.
^il
tM'
IU:
it-!
Beotioa exemption of $25 is not necessary for the support and rnain-
— ^ tenance of the debtor's family. R. S. O. 1877, c. 47, s. 126 ;
47 V. c. 9, s. 1 ; c. 50, s. 319. [Or where tlie debtor is an
unmarried person havinj]f no family depending on him for
support.] 52 V. c. 12, s. 23.
Board or lodging.— The word " board " means " food, diet, provi-
sion." " The customary meals obtained for a stipulated sum at the table
of another; as, he pays u high price for his board;'" Worcester : and the
verb " to board " is defined by the same author as " to live in a house at
a certain rate for eating; to be furnished with food or meals for a stipu-
lated sum." It would not be necessary to constitute a debt for board
under this section that there should be any stipulated sum. A. person
boarding with another would impliedly be responsible to the latter for
what such board might reasonably be worth. The law would imply a
contract to pay for it, unless it appeared that it was given gratuitously,
and not with the intention of being charged for.
A "lodger," generally speaking, " is a person whose occupation is
part of a house, and subordinate to, and in some degree under the con-
trol of a landlord or his representative, who either resides in or retains
, the possession of or dominion over the house generally, or over the cuter
door, and under such circumstances that the possession of any particular
part of the house held by the lodger does not prevent the Iiouhc being in
the possession of the landlord : " " It is always important in determin-
ing whether a man is a lodger to see whether the owner of the house
retains his character of master of the house, and whether he occupies a
part of it by himself or his servanti, and at the same time retains the
general control and dominion over the whole house, and this he may do
tiiough he do not personally reside on the premises : " ■per Bovill, C.J.,
Thompson v. Ward L. R. 6 C. P. 360, 301.
See also Ancketill v. Baylis, 10 Q. B. D. 577; Bradley v. Baylis, 8
Q. B. D. 195; Hogan v. Sterrett, 20 L. R. Ir. 344; Phillips v. Henson, 3
C. P. D. 26 ; the judgment of Brett, J., Morton v. Palmer, 51 L. J. Q. B. 7;
fl Q. B. D. 89 ; Toms v. Luckett, 5 C. B. 23 ; Smith v. Lancaster, L. R.
5 C. P. 251. The rooms may be unfurnished ; Allan v. Liverpool, L. R.
9 Q. B. 180; and »ee, also, Ness v. Stephenson, 9 Q. B. D. 245.
It is not necessary that the board or lodgings should be supplied by
one who holds himself out as a boarding-house keeper or lodging-house
keeper. Any person who boards or lodges another for reward would be
within this section ; bo also would his assignee of the debt.
In the opinion of the Judge. — " In the opinion of the Judge " means
according the judgment of the Judge, : Ormerod v. 'I'odmorden Co., 8
Q. B. D. 664. See also R. v. London (Bishop), 24 Q. B. D. 213 ; Julius v.
Oxford (Bishop), 5 App. Cas. 214.
Sir Peter Maxwell in his work on the interpretation of statutes at
pages 100 and 101 says : " Where, as in a mifltitude of acts, something
id left to be done according to the discretion of justices or other authori-
ties on whom the power of doing it is conferred, the discretion must bfl
exercised 1 onestly and in the spirit of the Act, otherwise the act done
would not fall within the statute. ' According to his discretion ' means,
it is said, according to the rules of reason and justice, not private opinion,
according to law and not humour ; it is not to be arbitrary, vague and
fanciful, but legal and regular. And it must be exevcised within the
limits to which an honest man competent to the discharge of his office
ought to confine himself, that^is within the limits and for the objects
MAINTENANCE OF DEBTORS FAMILY
255
intended by the lejjialature." See also Macbeth v. Aehley, L. R. 2 Scotch
App- 3i>2, per Cairns, L.C., Julius v. Oxford (IJishop), nitpra, and other
cases cited in note on the word " may " and other enabling wordii, '
ante p. 241.
Hecesaary for the support, etc., of the debtor's family.— The Judii^e
by sucli evidence as may be brou^jlit before him or as he may require,
will have to determine wliether under the circumstances the 1^25 is
" necessary " or not. The lanaua(}e used is of that class wiiich, it is
unnecessary to define ; its construction depending upon the particular
circumstances of each particular case. Si-e Johnson v. (Jrook, 12
Ch. D. (iai) ; Webster v. Overseers of Ashton-under-l-yne, L. R. 8 C. P. 2H1,
800 ; Gladstone v. Padwick, L. R. (> Kx. 208 ; In re Duke of Newcastle,
li. R. H Kq. 700; Hatlon v. Haywood, L. R. 9 Ch. 221); Whimsell v. Gif-
fard, 8 O. R. 1.
It is submitted that a broad and liberal interpretation should bo given
to the language used. The word "support" is defined as, " to furnish
with the means of 'ivi)ig, as a family; to provide for, to maintain, to
supply," and maintenance means, "supply of tlie necessaries of life, sus-
tenance, subsistence, livelihood, support:" Worcester,
Education is included in the phrase " Maintenance and support," as
applied to children : l{e Breed, 1 Ch. D. 226. It may, therefore, be
stated, in a general way, that in determining whether the exemption is
" necessary " or not, tiie health of the debtor, his age and ability to work,
the number of his fan.ily, their age and sex and state of health, and also
their ability to work, whether they or the debtor have employment, and
otlier circumstances may be fit subject of enquiry ; and if the $2o should
be considered by the Judge, in view of all the circumstances of the case,
to be necessary for the purpose of obtaining the necessaries of life and
sustaining in an ordmary way the debtor's family, then the exemption
siiould be allowed.
The word " family " might here mean the wife and children only of
the debtor ; but it is submitted that the construction to be given to it
should not be of so restricted a character. The word has a variety of
meanings and is controlled by the context. The primary legal meaning
is " children :" per Jessel, M.R., Pigg v. Clarke, 3 Ch. D. 674. In popu-
lar acceptance it includes parents, children, servants, and all those
"whose domicile or home is in the same house, and under the same man-
a'^ement or head : Cheshire v. Burlington, 31 Conn. 320. In its more
ordinary acceptation it signifies all. the relatives who descend from
a common root ; in its most extensive scope, all the persons who
live under the authority of another : Galligar v. Payne, 34 La. An. 1058 :
and another and more comprehensive definition is, " a number of per-
sons who live in one house and under one management or head : Poor v.
Hudson Ins. Cr , 2 F. R. 438. And a mother and sister were held to
constitute a "family" within the exemption of earnings clause in a
sta,tute of the State of Kansas : Seymour v. Cooper, 26 Kansas, 539.
Depending on him for support. — The latter part of the section is of
recent origin having been introduced by 52 Y. c. 12, s. 23. The effect
of the section in its present form is, that in the case of an ordinary debt
the exemption does not apply to an unmarried person having no family
dependent on him for support, the amount coming to him, no matter how
small, being garnishable. In the case of a debt contracted for board or
lodging there will be no exemption in any case unless, " in the opinion of
the Judge the exemption of 925 is necessary for the support and main-
tenance of the debtors family ;" and in the case of a married person, hav-
ing a family depending on him for support, if the debt is contracted for
anything except for " board or lodging" the exemption applies.
Seotion
176
i
s
It.-
■PI"
Notice
where
jurisdic
tion of
Court
hee cas^n.
256 NOTICE DISPUTING JURISDICTION.
SeoUon 1 76. In all cases where a defendant, primary debtor or
garnishee intends to contest the jurisdiction of a Division
mentof Court to hear or determine any cause, matter or thing in
for wages, sucli court, lie shall leave with the clerk of the court, with-
in eight days n Iter the day of service of the summons on
him (where the service is required to be ten days before
the return), or within twelve days after the day of such ser-
vice (where the service is re(|uired to be fifteen or twenty
days before the return), a notice to the effect that he dis-
putes the jurisdiction of the court, and the clerk shall forth-
dispiAed with givc uotice thereof to the plaintiff, primary creditor,
in garuis-^" or their solicitor or agents in the same way as notice of
defence is now given, and in default of such notice disputing
the jurisdiction of the court, the same shall be considered as
established and determined, and all proceedings may there-
after be taken as fully and effectually as if the said action or
proceeding had been properly commenced, entered or taken
in such court ; and the notice shall be in writing ; and pro-
hibition to a Division Court shall not lie in such action
from any Court whatever, where the notice disputing the
j .; isdiction has not been duly given as aforesaid. 43 V. c. 8,
8. 14; 48 V.c. 14, s. 1.
Notice disputing jurisdiction. — This notice is an indispensable
requisite to any proceeding founded upon the fact that a Division
Court had no jurisdiction. A notice once given cannot, apparently, be
withdrawn, except by consent of all parties under section 91 ; and a notice
given by a primary debtor or garnishee would inure to the benefit of all
parties. The notice need not be in any particular form. If it expresses
the defendant's intention to dispute the jurisdiction, it would be sufficient ;
see Harpman v. Child, 1 F. & F. 052 ; Lowe v. Owen, 12 C. P. 101 ;
Everard v. Watson, 1 E. & B. at p. 804, per Campbell, C. J.; Paul v. Joel,
4 H & N. 355 ; Bain v. Gregory, 14 L. T. N. S. 001 ; Aldridge v. Medwin,
L. R. 4 C. P. 404 ; Allen v. Geddes, L. R, 5 C. P. 21)1. The notice must
be in writing. For form of notice see Forms.
Leave with the CleFk of the Court. — See notes to section 109, sub-
section (1).
Within eight days. — The days mentioned in this section for doing
certain things, are exclusive of the day of service; see notes to sections
80 and 109. The time for giving notice cannot be extended ; notes to
section 145 ante ; nor abridged : Hamilton P. & L. Socy. v. McKim, I'd
P. R. 125.
Forthwith. — See notes to section 20. As to manner of giving this
notice, see notes to section 113, and section 113a, ante p. 162.
Sections
176-177
MEMORANDUM ON SUMMONS. 267
Disputing the jurisdiction of such Court. — Statutes relating to the
practice and procedure of a court only apply to matters within its juris-
diction : Ahrens v. McGilligat, 23 G. P. 171. —
Tlie necessity of a notice disputing the jurisdiction only arises where
the cause is one triable in some Division Court. If it is beyond the juris-
diction of any Division Court, and is only suable in some huiher court,
then a person questioning the jurisdiction of the Division Court in which
the action is brought, could avail himself of that right without giving any
notice under this section: Mead v. Creary, 8 P. R. 374 ; 32 C. P. 1 ; Man-
ufacturers and Merchants M. F. Ins. Co. v. Campbell, 1 C. L. T. 134 ;
lie Knight v. Medora, 14 A. R. 112 ; Graham v. TomUnson, 12 P. R. 367.
Should it be impossible for a party to leave with the clerk a notice
disputin'g the jurisdiction owing to the absence of the clerk or a like
cause, the defendant or primary debtor, as the case may be, would not
be debarred of his right : see note to section 86, sub-section 3. And if the
clerk omitted to give the notice required neither party's rights in the suit
would be prejudiced by it. Should the clerk refuse to perform any part
of his duty in regard to such notice, its performance could be enforced by
iiKindamus: notes to section 70 title " Mandamus." And the omission by
him to do so would render him liable for any damage either party could
prove he had sustained, in consequence of such default : Parks v. Davis,
10 C. P. 229 ; Henly v. Mayor of Lyme, 5 Bing. 108 ; Ferguson v. Earl
of Kinnoull, 9 CI. & F. 251 ; Rogers v. Dutt, 13 Moo. P. C. 209 ; Carey v.
Lawless, 13 U. C. R. 285.
An action would also be maintainable against his sureties on thefr
statutory covenant : Nerlich v. Malloy, 4 A. R. 430 ; notes to section 35,
ante pp. 26 31.
Prohibition shall not lie in such action from any court whatever.—
Tiiese words were introduced to neutralize the effect of Clarke v. Mac-
donald, 4 O. R. 310, which was founded upon the English case of Oram
v.lJrearey, 2 Ex. D. 347, which case was overruled by Chadwick v. Ball,
14 g. B. D. 855.
ITT. In all cases under the provisions of sections 181aifmon*°
and 185 of this Act where the debt sought to be garnished fSmmons.
is for wages or salary, there shall be upon, or annexed to
the summons served on the garnishee, a memorandum shew-
ing the residence of the primary debtor and the nature of
his occupation in the service of the garnishee at the time
of the issuinar of the summons (if then in such service), and
also stating whether the debt alleged or adjudged to be
due by the primary debtor to the primary creditor was or
was not incurred for board or lodging, and in the absence
of such last mentioned statement the said debt may be
presumed by the garnishee not to have been incurred for
board or lodging. 49 V. c. 15, s. 11.
Memorandum on Summons. — This section does not affect the rights
of parties as they previously existed, but deals with procedure ;in gar-
nishee proceedings only.
D.C.A. — 17
i:?
*■►■■■■■
li
fa
258
Section
177
^■|i^:il'
F(»1{.M AND UEQULSITE.S OF MEMOllANDUM.
The following appear to be the pre requisites of summonses issued
under either sections 181 or 185 of this Act where the debt sought to be
garnished is wajjes or salary: —
(1) That there shall be upon or annexed to the summons served on
the fjarnishee, but not necessarily on the one served on the primary
debtor, a memorandum shewing the residence of the primary debtor and
the nature of iiis occupation in the service of the garnishee at the time
of the issuing of such summons, if tliere is such service.
(2) Also, stating therein whether the debt alleged or adjudged to be
due by the jn-imary debtor to the primary creditor was or was not in-
curred for board or lodging.
In the absence of such last mentioned statement, the debt sought to
be garnished may be presumed by the garnishee not to have been incurred
for board or lodging.
If the debtor is unmarried, and has no family dependent upon him,
it would be wise to give the garnishee notice of that fact, as he would not
then be justified in paying any money to him, the exem^)tion in such
case having been abolished.
This section evidently has for its object, mainly, the relief of railway
and other corporations and large employers of labour. Before its intro-
duction they were obliged to ascertain through the evidence at the trial
wl^ether, on theh" being garnished, they should pay the amount due by
them less the exemption or independently of it.
The following may be used as a form of memorandum unrier thia
section, to be endorsed upon or annexed to the summons served on the
garnishee :
" Memorandum under ' The Division Courts Acu,' section 177.
" (1) The primary debtor resides at the City of Hamilton, in the
Province of Ontario, and his occupation in the service of the garnishees
is that of an engine-driver [oras thr cane mai/ he] on the railway of the
garnishees [The Grand Trunk Railway Company of Canada] , and is
occupied as such on said railway between the Cities of Toronto and
Hamilton [or as the case iiuuj he] .
" (2) The debt alleged [or, if after Judgment, ' adjudged '] to be due by
the primary debtor to the primary creditor was [or ' was not '] incurred
for board or lodging."
If the primary debtor is not in the service of the garnishee, of course
nothing need be said of his occupation, for the object evidently is to
save any mistakes where there may be several men of the same name
in the employ of the garnishee, and to facilitate the identification of
the primary debtor.
The above memorandum must in all oases, whether judgment has
been recovered or not, where the debt sought to be garnished is for wages
or salary, but not in other cases, be printed on or annexed to the summons
served on the garnishee or garnishees. It had better be printed on
the summons. If the memorandum does not state that the debt was
incurred for board or lodging, the garnishee may presume that it was
not so incurred. If not so incurred, 925 would be exempt, unless the
debtor was unmarried and had no family dependent upon him, and the
garnishee should at once pay the same to the employee. The object is
to give such information to the garnishee as will enable him to say
whether or not the primary debtor may be entitled to the 925 exemption
mentioned in section 174 of this Act.
-r^
iu the
[aniishees
ay of the
and is
ATTACHING ORDER.
259
Section
173
judgment.
Where the Creditors Claim is a Judtfment.
ll[H, After judgment has been recovered in a Division Attaohii^
Court, application may be made to a Judge of the court, by ^aanted on
or on behalf of the primary creditor, on affidavit that such
judgment was recovered, and when, and tliat the wliole, or
some part, and how much, thereof remains unsatisfied, and
that the deponent has reason to believe, and does believe,
that some one or more parties (naming them, or stating that
he is unable to name them) is or are within this Province,
and is or are indebted to the primary debtor, for an attach-
ing order (which the Judge is hereby authorized to make),
to the effect that all debts owing to the primary debtor,
whether due or not due, be attached to satisfy the judgment ;
which order may be in the form prescribed by the General
Rules or Orders from time to time in force relating to
Division Courts. R. S. O. 1877, c. 47, s. 127.
Judgment recovered. — That is duly entered by the clerk in the pro-
cedure book, or by the Judge : see notes to section 45. A judgment more
than six years old could be enforced in this way : Fellows v. Thornton,
14 Q. B. D. 335.
It will be observed that this, and the following sections, make pro-
vision for an attaching order being obtained, which when served, shall
have a certain effect : see section 179, and notes. A proceeding by attach-
ing order only exists in cases where judgment has been recovered. Where
judgment has not been recovered, a summons should be issued under sec-
tion 185. An assignee of a judgment, though the action should not have
been renewed in his name, might proceed under this and the followmg
sections! (ioodman v. Robinson, 18 Q. B. D. 332 ; McLean v. Bruce, 14
P. R. 192 ; Smart v. Miller, 3 P. R. 385.
On affidavit. — The affidavit on which to obtain an attaching order
may be made by the solicitor of the judgment creditor or by a partner of
the solicitor, or by any person having knowledge of the facts : In re Sato
v. Hubbard, 8 P. R. 445. It will be observed that the deponent's belief
that a debt is due, is sufficient : see Vinall v. De Pass, (1892), A. C. 90 ;
Coren v. Barne, 22 Q. B. D. 249.
Proceedings on such order could not be prohibited on the ground that
they were founded on a defective affidavit : In re Sato v. Hubbard,
tupra.
Naming tliem or stating that he is unable to name them.— This
authorizes what may be called " a roving garnishee order." Delay some-
times occurs in getting an ordinary garnishee summons issued and
served. An attaching order enables a judgment creditor, so soon as he
finds anybody who is indebted to his judgment debtor, to attach the debt,
without first resorting to the issue of a summons. To obtain payment
he must, however, issu^ the summons provided for in the next section.
Within the Province. — In a garnishment proceeding, by way of
attaching order, it is necessary that the garnishees should be resident
W*
260
SERVICE TO BIND DEBTS.
Sections within the Province. A company havinj^ its chief place of business out
178-179 of the Province, could not, therefore, be affected by an attaching order :
Canada Cotton to. v. I'arnialeo, 13 P. R. 308 ; Guy v. G. T. Ry. Co., 10
P. R. 372 ; Ahrens v. McGilligat, 23 C. P. 171.
It would appear, however, by readinf; sections 91, 181, 182 and 185
together, that non-resident garnishees may be proceeded against, pi'o-
vided they carry on business in the Province tlirough an agent who has
an office as such therein. See notes to section !)l.
Is or are indebted.- See notes to section 173.
Owing wtiether due or not due. — It is submitted that these words
have substantially the same significance as the words " any debt is due
or owing " in section 173 : see that section and notes thereto.
In the form. — See Form No. 41.
Service
thereof to
bind all
debts, etc.
Garnishee
may pay
in his own
discharge,
1 7S>. The service of the order on a garnishee shall have
the effect (subject to the rights of other parties) of attach-
ing' and bindinof in his hands all debts then owinff from him
to the primary debtor, or sufficient thereof to satisfy the
judgment, and a payment by the garnishee into the court,
or to the primary creditor, of the debt so attached to the
extent unsatisfied on the judgment, shall be a discharge to
that extent of the debt owing from the garnishee to the
primary debtor. R. S. 0. 1877, c. 47, s. 128.
The service. — It is submitted that the service of this order should, if
possible, be personal : see notes to section !)9 ; or at least it must be shewn
that the order came to the knowledge of the garnishee : Ward v. Vance,
3 P. R. 130; Mason v. Muggeridge, 18 C. B. 642; Newman v. Rook, 4
C. B. N. S. 434 ; or that reasonable attempts have been made and proved
fruitless, and the Judge has dispensed with personal service : see Tom-
linaon v. Goatly, L. R. 1 C. P. 230 ; rules, 53-oG and 90, and notes to
section 100.
Substitutional service could not be ordered of process upon a foreign
corporation, firm or individual : Ontario Glass Co. v. Swartz, 9 P. R.
252. It is onlj' where an agent has an office (is such in the Province, that
such persons can be reached, and then the process must be served on the
agent: section 101.
Service on the local agent of a foreign Insurance Company who had
power merely to receive and transmit applications, was held a good ser-
vice: Simpson v. Chase, 14 P. 11. 280.
It is the service which is effectual. Until service the order has no
efficacy: lie General Horticultural Co., Ex parte Whitehouse, 32 Ch. D.
512 ; Tate v. Corp. of Toronto, 3 P. R. 181, and where a garnishee was
advised by telegram that the money had been garnished, but paid the
money nevertheless, to the debtor before service, it was held, that the
debt was not attached : O'Donovan v. Dillon, 24 L. R. Ir. 442.
Effect of the order. — The order binds " all debts then owing " from
the garnishee to the primary debtor. It is to be observed that nothing is
bound but a " debt." Should there be merely a contingent liability or a
claim sounding in damages it would not be bound or affected by the order.
Cure should, therefore, be taken by the garnishee, that he pays nothing
EFFECT OF ATrACHING ORDER.
but a debt. Where a garnishee was subject to a liability for unliqu'dated
damages, and allowed a garnishee order absolute to be made by default
against liim, and afterwards the claim became liquidated by an award,
and the money was then claimed under a prior assignment by third par-
ties, it was held that the garnishees had no right to interplead, and that
he merely had himself to blame in not appearing and shewing to the
court that there was no attachable debt due : Randall v. Lithgow, 12
Q. B D. 525,
Until an order to pay is obtained, the primary debtor has the right to
enforce all his remedies against the garnishee. If, therefore^ the debtor
has a judgment and execution, the garnishee should pay the amount to
tlie slieriff advising him at the same time of the existence of the attach-
ing order : Genge v. Freeman, 14 P. R. 330.
This is equivalent to payment into court, inasmuch as the payment is
to an officer of the court, in trust for the proper person : Turnbull v.
Robertson, 38 L. T. N. S. 3.St). After a garnishee order absolute, an exe-
cution against the garnishee issued by the primary debtor would be
stayed: Ite Connau, Ex pari i; Hyda, 20 Q. B. D. C'JO.
It is next to be observed that all debts are attached. Where a debtor
had £(),800 on deposit with the garnishees, and an attaching order was
made to satisfy a judgment of ^(i.OOO, it was held that under the terms
of the order, the garnishee was justilied in refusing to pay cheques for
the balance over £0,000 : Rogers v. Whiteley, 23 Q. B. 1). 23() ; (1892),
A. C. 118. An order might be made, however, restricting the attachment
to such amount as will satisfy the judgment debt, but care must be taken
that no part is released, unless it is clear that the wliole amount due by
the garnishee is the beneficial property of tlie judgment debtor : lb. The
garnishee should not pay any aniuunt to the judgment. debtor, until after
the summons to be issued under section 180 has been disposed of, and
jud>;ment given ordering payment by the garnishee: Turner v. Jones, 1
H »t N. 878; Sykcs v. Brockville * Ottawa Ry. Co., 22 U. C. R. 459 ;
Tate V. Corp. of Toronto, 10 U. C. L. J. at p. (57.
Payment into court w'U be an effectual discharge of the garnishee if
the amount due by him was an attacliable debt, and the court had juris-
diction : Culverhouse v. VVickins, L. R. 3 C. P. 295 ; Mayor of London v.
Cox, L. R. 2 H. L., at pp. 2(51,202, and even if the court has no jurisdic-
tion, if the garnishee without collusion and in ignorance of the want of
jurisdiction, pays under compulsion of the attachment, he will be pro-
tected : Banks v. Self, 5 Taunt. 234 ; Harrington v. McMorris, 5 Taunt.
228 ; Westoby v. Day, 2 E. & B. 005 ; Wood v. Dunn, L. R. 1 Q. B. 77 ;
L. R. 2 Q. B. 73. The effect of binding all debts in the hands of the
garnishee, is to give the primary creditor the security of the garnishee to
the extent of his indebtedness. Indeed, it was once said that : " The
moment the order of attachment is served upon the garnishee, the pro-
perty in the debt due from him is absolutely transferred from the judg-
ment debtor to the judgment creditor :" per James, L.J. , ex parte Joselyne.
lie Watt, 8 Ch. D. 327 at p. 330 ; Emanuel v. Bridger, L. R. 9 Q. B. 290;
Low v. Blackmore, L. R. 10 Q. B. 485 ; but this was but a colloquial-
expression, and meant nothing more than that the debt was bound : per
Brett, L. J.: Chatterton v. Watney, 17 Ch. D. 201 ; and see per Cotton, L. J.,
and Jessel, M.R.: " the order does not transfer the debt :" lb. 202, and it
is now clear that a garnishee order does not transfer the debt : Re Com-
bined Weighing * Ad. M. Co., 43 Ch. D. 99 ; Wood v. Joselin, 18 A. R. 60.
Until an order to pay is obtained against the garnishee, the primary
creditor holds no judgment against him. After such order is obtained,
the primary creditor, it is submitted, holds a judgment against the gar-
nishee BO as to entitle him to have a judgment summons issued under
section 235 : Cowan v. Carlill, 52 L. T. N. S. 431 ; 33 \V. R. 583.
261
Section
179
I
!r..
262
PAYMENT BY GARNISHEE.
Sections
179-lbO
■i
The garn
paid i>.
jt ;y o'
a deut
Ry. C.
Payment to
any but
primary
creditor
void.
The proceeding in garnishment is purely collateral to the action be-
tween the primary debtor and the primary creditor, and when the right of
the primary creditor to enforce his claim in the main proceeding is at an
end, the- charge upon the debt in the hands of the garnishee drops with
it. The primary creditor never becomes a creditor of the garnishee,
ihee continues to be a debtor to his own creditor, until he has
paid !■■ "rt, or to the attaching creditor, after order so to pay, or a
It ;y C d: lount has been made, of his property, when he ceases to be
to .e amount paid or levied : Wardrope v Canadian Pacific
O i-. 321 ; The Combined Weighing & Ad. M. Co., 43 Ch. D.
99 : but the judgment creditor's rights against the garnishee, would be
defeat 3<1 by a diarhiirge in insolvency, in the same manner as that of an
ordinary cr ^itor '■• .'t v. Tompkinson, L. 11. 2 C. P. 502. Inasmuch
as the primary croauo'' ne 'er becomes a creditor of the garnishee, the
amount payable by tije ga/aiahee to him, cannot be garnished for a debt
due by the primary creditor : Cooper v. Lawson, (5 T. L. R. 34. The
rights of the primary creditor as against an assignee for the benefit of
creditors, a sheriff claiming under a Writ of Attachment or under the
Creditor's Relief Act, and the holders of Mechanic's Liens, will be
found considered in the notes to section 197.
If there are several attaching orders tliey rank in the order of their
service: Tate v. Corp. of Toronto, 3 I'. R. 181 ; Sweetuam v. Lemon, 13
C. P. 534 ; but only to the extent of the debt due at time of service :
Parker v. Howe, 12 P. R. 353.
The order does not give any right to the securities for the debt, and
where a mortgagee of leasehold property was a judgment debtor and a
garnishee order was served on the mortgagor, it was held that the judg-
ment creditor had no interest in the land and was not entitled to a sur-
plus in the hands of a prior mortgage, after a sale of the mortgaged
premises : Chatterton v. Watney, Ki Ch. D. 378 ; 17 Ch. D. 259.
ISO. Any payment by the garnishee, after service on
him of the order, to any one other than the primary credi-
tor, or into court, to satisfy the judgment, shall "to the ex-
tent of the primary creditor's claim, be void ; and the gar-
nishee shall be liable to pay the same again, to the extent
of the primary creditor's claim, to satisfy the judgment.
R. S. O. 1887, c. 47, s. 129.
Any Payment. — The garnishee should not make any payment, except
into court, until after the summons mentioned in section 181 has been
heard and an order for payment made : see cases cited in notes
to section 179.
If the service of the order is not good the garnishee could, probably
pay over the money to the primary debtor with impunity : Cooper v'
brayne, 3 H. &N. 972 Am. Ed, So also if there was no attachable debt '
Randall v. Lithgow, 12 Q. B. D. 525 ; Stuart v. Grough, 15 A. R. 299.
Payment into court would protect the garnishee, if an attachable debt
existed at the time of service of the order : Culverhouse v. Wickens,
L. R. 3 C. P. 295 ; see remarks of Willes, J. , at p. 297. To discharge the
garnishee there must be an attachable debt and either payment made
under compulsion of law or execution levied : Sykes v. Brockville &
Ottawa Ry. Co., 22 U. C. R. 459 ; Carr v. Baycrott, 4 U. C. L. J. 209 ;
McNaughton v. Webster, 6 U. C. L. J. 17. The payment to the creditor
CREDITOR MAY ISSUE SUMMONS.
263
JudS-
must be made by compulsion of law. " Some process of law which
amounts to compulsion is indispensable for this purpose, indispensable
for the indemnity of the garnishee and, therefore, indispensable in order '
that the garnishee should be bound: " Mayor of London v. London Joint
Stock Bank, 6 App. Gas. 393, 400; Stuart v. Groiiu'h, 1") A. 11. 299, 305.
Be void. — See Rule 58. The payment to the debtor is ineffectual aa
against the claim of the prima'-y creditor, 'xhe garnishee would not be
able to recover the money back from tlie primary debtor if lie paid the
amount voluntarily, unconditionally and with full knowledge and recollec-
tion of the attaching order : Bilbie v. Lumley, 2 East, 4()!t ; Townsend
V. Croudy, 8 C. B. N. S. 477 ; Perry v. Newcastle, 8 U. C. II. 3(13 ; Montreal
Ass. Co.. V. McCormick, 25 U. C. R. 440; Baldwin v. Kingstone.lB A. R.
C3, 83, 98, 109, (i72.
Liable to pay the same again.— The liability of the garnishee to pay
the claim of the judgment creditor, notwithstanding the intermediate
payment to the judgment debtor, is but the logical cons-^qnence of the
attachment which effectually bound the debt.
Sections
180-181
I SI. Whether sucli attaeliino' order is or is not iw^ide, J',!^J[j*^'y
tlie primary creditor laa}' cause to be sued out of the HJon^"'"
Division Court for the Division in wliich tlie ^ainishee, drlt™'^^*"
one or more of them, if there he joint pirnishees, resides or
carries on business, a summons in the form prescribed by
the General Rules or Orders, from time to time in force,
relating to Division Courts, upon or annexed to which shall
be a memorandum shewing the names of the parties as
designated i)i the judgment, the date when, and the Court
in which, it was recovered, and the amount unsatisfied ;
which summons shall be returnable either at any ordinary
sittings of the Court, or at such other time and place (to
be named thei'ein) as the Judge ma}' permit or appoint,
either by a general order for the disposal of such matters
or otherwise. R. S. O. 1877, c. 47, s. 130.
Joint garnishees. — This phrase has not been judicially interpreted
in any reported case. It is probable that it would he held to extend only
to a case where the garnishees were jointly liable. Otherwise garnishees
from all corners of tlie Province might be summoned to a distant court
merely because thoy and a person with whom they had no joint interest
happened to have a connnon creditor.
Resides or carries on business. — Si'e notes to section 81, and see also
notes to section 99 as to the service of the summons. If the garnishee
be a foreign firm or individual having, however, an agent in the Province
who has an office (ik siicIi dfient, it is possible that the garnishee would
sufficiently carry on business within the division where such agent had
his office, to justify the issue of process tlierefrom : see section 101. Care
must be taken, even in the case of a foreifju firm, to make the individual
partners garnishees : Walker v. Rooke, U Q. B. D. (531.
A summons. — For form of summons, see Form No. 43.
m
JiiL
'^MmamBannp
264
Sections
181-182
Service on
corpora-
tion, whose
•head oflico
is not in
the Pro-
vince.
SERVICE ON CORPORATION.
In which it was recovered. — It is submitted that if an attaching
order has been issued, a summons may be issued from any court in which
a garnishee resides or carries on business, but if no attacliing order has
been issued and if the judf^ment was recovered in a division in wliich no
garnishee " resides or carries on business " the judgment must be trans-
ferred under section 217 and Rule 57; and then on the judgment being
fnUy entered in the court of the division in which the garnishees or one
or more of them reside or carry on business, all proceedings can thence-
forth be entitled and taken in that court as if originally commenced and
judgment '• recovered " there.
At such other time and place. — This would allow the Judge to
appoint any "time and place" witliin the County for the disposal of
such matters. It is submitted that justice and the convenience of parties
will be best served by trying such matters at regular sittings only, unless
under exceptional circumstances.
ISU. In proceediiigH under the })reeeding' section, where
the garnisheeH are hkewise a body corporate, not having
their chief place of business within the Pro^'ince, tlien the
sunnnons mentioned in said last mentioned section shall
be issued from the Division Court in which the judgment
has been recovered,and shall be served upon the agent of the
body corporate, whose office as such agent is either within
the division in which the judgment has been recovered, or
is nearest thereto. 47 V. c. 9, s. 'S.
A body corporate.^ — The late Chief Justice Marshall, of the Kupreme
Court of the United States, detiiies a corporation as : '• An artificial
being, invisible, intangible, and existing only in contemplation of law : "
Dartmouth College v. Woodward, 4 Wlieaton, 518, Oi3(5.
See also notes to section 185, sub-section (2).
Not within the Province. — What has been said in the notes to section
101 (pp. 137, 138), has also application here. See also section 185, sub-
section 2.
In which the judgment has been recovered. — This section has only
application to cases " in which judgment has been recovered." Where
there is no judgment, provision is made for service of garnishee sum-
mons under sections 18.5, 18(5.
Judgment may be said to be " recovered," in cases not tried, when
the decision of the case has been duly entered by the clerk of the court
in the Procedure Book, or when given by the Judge in cases which are
tried: Strutton v. Johnson, 7 L. C. G. 141 ; R. v. Rowland, 1 F. & F.
72 ; Dews v. Riley, 11 C. B. p. 443 : Tubby v. Stanhope, 5 C. B. 790.
It is submitted that " judgment has been recovered," within the
meaning of this section, only in that court in which the judgment was
originally entered, and that this provision does not apply to cases of
judgment on transcript.
Service on agent.— Section 185, subsection (3), pro ii^es that every
person who within Ontario transacts or carries on any business of, or
business for, such body corporate shall be deemed the agent thereof under
this section. .\ local agent of an insurance company, whose authority
was limited to receiving and transmitting Applications for insurance,
is an agent within the meaning hereof : Simpson v. Chase, 14 P. R. 280.
MODE OF SERVICE.
265
Nearest thereto. — Distance is measured in a straight line, as the Beotlons
crow flies. The point in the division nearest to the agent's office should 182-188
be taken as the starting point. The jjUire of sitting has nothing to do
with the (juestion in this case: see Mouflet v. Cole, L. II. 8 Ex. 32.
183. A copy of tlie Hunimons and memomndum shall ^'°'?^„°'
be duly served on the garnishee, or, if there be joint garni-
shees, then on such of them as are within the reach of the
■process, at the time and in the manner required for the
service of sunnnonses in ordinary actions for corresponding
amounts, and also on the primary debtor, if thought advis-
able, or if re(iuired by the Judge. R. S. O. 1877, c. 47,
s. 131.
Served on the guarnishee. — See notes to sections 9t» and 179. As
the proceedings against a garnishee are effectual only 'upon service, it is
submitted that if the garnishee should die before service, the debt could
not be reached without proceedings against his representatives : lie
Easy, K.V parte Hill & Hyinans, 1<» Q. B. D. ,538.
Joint garnishees. — See notes to sections 81, 97 and 181, and Rules
0:J, 51 and 55.
If thought advisable.— See notes to section 179.
The words "if thought advisable" in this section are of very dcubt-
ful meaning. It does not say by wliom it may be " thought advisable."
The writer cannot express any opinion as to what is the proper meaning
to be given to these words. It is suggested, however, that they can only
mean " if thou(,'ht advisable " by the primary creditor, as provision is
afterwards made if the Judge requires service to be made.
The summons should, in all cases, be served on the primary debtor:
Ferguson v. Carman, 20 U. C. It. 20; Beaty v. Hackett, 14 P. K. 395.
The result of the proceeding must be to incur costs, and no judgment
debtor should have his credits reduced or his debts increased without an
opportunity of being heard : McLean v. Allen, 14 P. R. 84.
At Common Law, every person whose rights are to be affected by any
legal proceeding has a right to be heard : Maxwell on Statutes, 325 ;
Thorburn v. Barnes, L. R. 2 C. P. 384 ; Re Pollard, L. R. 2 P. C. 100.
The debtor should know of the proceedings, for the judgment upon which
they were founded might possibly have been satisfied by him years
before, or have become effete ; or if the debt had been assigned, and no
notice given by the assignee, as he is not bound to do : Robinson v.
Nesbitt, L. R. 3 C. P. 204, the proceeding would lead to a great deal of
trouble, if not injustice. On this question we cannot do batter than
quote the words of a writer in the Law Journal. " We think
that a Judge could not, for any reason of such mere convenience of the
creditor and garnishee, dispense with service, but should insist on its
being made in every case which requires personal service in ordinary
cases, if practicable :" 10 L. J. N. S. 05, 00. Attempts should at least be
made to serve the party, and evidence of these presented to the Judge.
" Whether or not the efforts made to serve the defendant are reasonably
sufficient, must in all cases be matter for the discretion of the Judge :"
Tomlinson v. Goatly, L. R. 1 C. P. page 231, per Erie, C.J. In that case
the process-server had called twice at the defendant's office, and once by
I J"
260
JUDGMKN'T AT HEAlUN'f;.
Sections apiwintment of his clerk, at none of wliicli times was the defendant in ;
183-184 but nothinfi was said to tiie clerk of the purpose of tiie process-server.
Willes, J., ajjpeared to think it insufficient to warrant ulterior proceed-
InyH : page 'iS'2.
Judgiiient
at IjeaniiL'
1^4. At tlio hearing of the suinmoiiH, m* at any ad-
ji)urne(l hearing, on Hufficient proof of the amount owing
by the garnishee to the primary delator, and no sufficient
cause appearing wliy it should not he paid and applied in
satisfaction of the judgment, the Judge may give judgment
against the garnisliee (wliich judgment may l>e in the form
pi'escril)ed by the General Rules or Orders from time to
time in force relating to Division Courts), for the amount
so owing from him, or sufHcient thereof to satisfy the
judgment ; and execution against the garnishee to levy the
same, may issue thereon as of course, if due, or when and
as it becomes due, or at such later period as the Judge n ay
order, which execution may be according to the form pre-
scribed as aforesaid. R. S. O. 1H77, c. 47, s. 182.
At the hearing of the summons. — To " hear a cause or matter means
to hear and determine it." And " unless there be something which by
natural intendment, or otherwise, would cut down the meaning, I appre-
hend there can be no doubt that the Legislature, when they direct a
particular cause to be heard in a particular court, mean that it is to be
heard and finally disposed of there. And further, when they say tliat
it is to be heard — (meaning heard and finally disposed of) — in a par-
ticular court, they mean, unless there is something in the context which
either by natural interpretation or by necessary implication would cut
it down, that in all matters which are not provided fv'^r that court is to
follow its ordinary procedure:" per Lord Blackburn, 7.i Green, 51 L. .].
Q. B. 44; or, as Selborne, L.C., puts it in the same case, "Hearing"
includes not only its necessary antecedents, but also the necessary or
proper consequences : Green v. Penzance, 6 App. Cas. 057 ; Stroud, 342.
Sufficient proof. — See notes to section 187.
A Judge of a Division Court has no jurisdiction to give judgment
against a garnishee without proof of the amount owing by the garnishee
to the judgment debtor ; and for such a course prohibition will lie : //( re
Johnson v. Therrien, 12 P. R. 442.
By D. C. Rule 5() provision is made as follows : " If the garnishee or
the primary debtor, having been served, does not appear on the return
of such summons, judgment may be given against him by default ; and
if only some of the parties required to be served ai-e served, the Judge
may give the same judgment against those served as in ordinary cases."
No sufficient cause appearing, — that is, no question arising which the
Judge has to try.
May give judgment.— Judgment should not be given against garnishee
if there is any suggestion that the debt has been assigned, or is not the
beneficial property of the debtor. Such suggestion may come eitlier
from the debtor or the garnishee : Lovely v. White, 12 L. R. Ir. 381.
■Pi
CLAIM NOT A JUl)(;MEN'r.
267
If the garnishee haa a lien upon the money, jud^'ment can only be Sections
t,'ivcn for the balance due after satisfying the lien : Natlians v. Giles, 184-188
f) Taunt. 558; Nolen v. Crook, 5 Humphrey, 81*2; Smith v. Clarke,!)
Iowa, 241 ; Grant v. Shaw, Ifi Mass. S41 ; Curtis v. Norris, H Pick. 280;
Goddard v. Ilapgood, 2.1 Vermont, 181 ; or if he is entitled to any set-off:
Hesse v. Buffalo, B. & G. Ky. Co., Chaiuhurs 30 March, 1H,J7, ;><,'/• Knbin-
Hon, C.J. ; Nedley v. same defendants, 'A U. C. L. J. HI ; or if tlie debtor is
bound to indemnify him against a claim for which lie is liable : Uymill
V. Wandsworth, Dist. Bd. 1 C. & E. 92 ; but a mere cross-claim, which
cannot be set-off, or which would amount only to a counter-claim would
not entitle the garnishee to resist judgment for the full amount of the
debt: Stumore v. Campbell, (1H92), 1 Q. B. H\4.
No set-off will be allowed the garnishee of a debt due by the judg-
ment creditor to him: Sampson v. Seaton & Beer By. Co., L. B. 10
Q. B. 28; but if the garnishee had obtained judgment against the
primary creditor, the judgment might be set-off under section 21U.
Fopin prescribed.— .St'c Form No. 45.
Amount so owing. — The Legislature here clearly intended to use no
uncertaiii expression, but employed a word meaning a debt whether pa»t
line or maturine).
To satisfy the judgment. — This would include the costs of recovering
judgmert, and which form part of it; but would not, in itself, cover the
costs of garnishment proceedings, to meet which section I'J2 was intro-
duced in 1880.
And when it has become due. — The order went in this form in Tapp
V. Jones, L. R. 10 Q. B. 5!)1 ; .see notes to section 173. No different mode
of payment can be substituted than that which exists between the primary
debtor and garnishee : Turner v. Jones, 1 H. & N. 878 ; and the garnishee
will not be compelled to pay until the term of credit expires : Harding
V. Barratt, 3 U. C. L. J. 31.
Form prescribed as aforesaid. — See Form No. 86.
}Y]iere the Primary Creditors Claim not a Jinhjnieni.
IS5. (1) Where iudo'ment has not been recovered where no
' , , , jiidgnieut,
for the chiini of the primary creditor, he may cause ^"'"•i^o"^
I J 'J on garn-
a summons to be issued out of the Division Court i^'^ff-f*''' •
to issue,
of the Division in which the garnishee, or one or
more of them, if there be joint garnishees, live or carry on
business, in the form prescribed by the General Rules or
Orders from time to time in force relating to Division
Courts, upon or annexed to which shall be a memorandum,
sliewing the names of the primary creditor, the primary
debtor, and of the garnishee, and the ])articulars of the
claim of the primary creditor, with reasonable certainty and
detail ; which summons shall be returnable as required by
section 181 of this Act, in respect to the summon.ses therein
mentioned. R. S. O. lcS77, c. 47, s. 1.S3.
00
268
SKUVICE ON COMPANIES.
Sections
180-186
(2) In the event of the oarnishecH bein<^ a Vxxly corpo-
rate, not having their chief place of ItusineH.s within the
Province, then the .summons sliall be isHiuJ ')ut of the
Division Court for the (livision in whicli the cause, of action
arose, and shall he served upon the agent of the body cor-
porate, whose office, as such ayent, is nearest to the place
where the cause of action arose. 17 V. c. 9, s. 2.
Who to 1)0 (.S) Every person who within Ontario transacts or
aseiit. carries on any business of, or Itusiness for, such bod cor-
porate, shall, for the purpose of this section and of 'on
bS2, be deemed the a<j;ent tliereof. 47 V. c. 1), s. 4.
The claim.— That is a " tlebt ov money demind," as mentiouerl in
section 17H.
Live or carry on business.— SVc notes to section 81 and section IHI.
With reasonable certainty and detail.— Sec notes to section 10!t.
Body corporate. -It will bo ohscrvtul that this only iipplies to "a
body corporate," and not to a partnership merely, thonyh tiadinj^ or
doiiij^ business under a coitujany name. Section 101 provides for service
of process on foreif^n corporations, firms and individuals who have agents
(!.•< siirh within Ontario. It wivild seem tliat a f()rei{j;n <,'ariiishee, not
boin.L,' a corporation, would carry on business where he had an auont iis
such, luid that process could propeily be issued against a foreign firm or
individual from the court of the division where the office of tlie agent
was situated.
Formerly the servants and employees of foreign corporations could
not be garnished in the Division Ciurt: nee Ahrens v. McGilligat, '^.y
('. P. 171; Westovor v. Turner, '2() ('. P. 510. But this provision was
introduced in 18H4, in order to provide a remedy in such cases, and section
101 was amended in 188i>, to extend the remedies against foreign lirnis
and individuals.
Chief place of business. — SVc notes to section 101.
Cause of action airo&e.—See notes to section 81.
Served upon the agent.- -A form of affidavit of service of this sum-
mons will be found in the appendix. Tlie definition of an agent will be
seen to inci .ue any person who has an office as agent for the company :
see notes to section 101. An agent for an insurance company whose
powers are limited to receiving and transmitting applications is an
agent: Simpson v. Chase, 14 P. R. 280.
Nearest to the place, etc. — See notes to section 182.
Service 9U lH6> A copv of the summons and memorandum shall
be duly served on the garnishee, or if there be joint gar-
nishees, tlien on such of them as are within reach of the
process, at the time and in the manner required for service
in ordinary cases ; and also, if practicable, on the primary
debtor, unless the Judge for sufficient reason dispenses
therewith. R. 8. O. 1877, c. 47, s. 134.
JUDOMEXT IX (iAUNlSHMENT.
269
Dispenses therewith. -The concluding' words of the nection arc liard Sections
to uiiderHtand, There hoiiin no judgment iij^ainst the priiniiry debtor, 186-187
luH property sliould not be taken away witl out a clianee bein>{ j^iven )um "
to be lieard. Dispensiiif* with Hervice upon liim would have tliiH result.
Till' propir courHo to take, when tiie primary debtor cannot be found,
would appear to bo toordersubhtitutional sorviee underHootion 100, wliich
would be equivalent to duo service, and the action could then proceed in
the ordinary way. It must, however, be borne in mind that the court
niUHt have jurisdiction over the primary debtor. If he is a foreigner who
(liLs not carry on business through an agent in the Province, no Division
Court would have jurisdiction over hiift : ()ntario (Jlass C!o. v. Swartz,
!i r. H. "iu'i. In Wadsworth v. Quoen of Spain, 1" Q, B. 171, the gar-
nishees moved, and in De llaber v. Queen of Portn ;al, 17 Q. B. l!l-"f, the
piiniary debtor moved for prohibition upon tlie ground that the court had
no jurisdiction over the primary debtor, and in each case the prohibition
was gfanted. Lord Campbell, ('.J., said : " We entertain no doubt that
the process of foreign attachment can only l)e duly resorted to where the
cause of action arose within the jurisdiction of the court from which it
issues. The garnislieo is safe by paying in uiidej* thf judgment of the
court, but the objection that the cause of action did not arise within the
jurisdiction of the court, if properly taken, must prevail." See also
Mayor of London v. ("ox, L. K. 2 H. L. 'iOO : but the garnishee must
act without collusion and in ignorance of tlie want of jurisdiction to be
protected : see notes to section 17i>.
IST". If in such case the primary debtor has been duly f,"'8f,^^"*
served with a copy of the summons and memorandum, *^*'*®'
jud<(inent (in the usual form in other cases) may be j^iven
against him at the hearing for the primary creditor, for
the whole, or such part of the claim as is .sufficiently proved,
and execution ma}' afterwards issue thereon as in other
cases ; and whether such judgment is or is not given, the
Judge, on sufficient proof of the debt due and owing from
the primary debtor, and also of the amount owing to him
from the garnishee, may then, or at any adjourned hearing,
give judgment against the garnishee (which may be accord-
ing to the form pre.s iibed as aforesaid) for the amount so
found due from the garnishee, to the extent of the amount
so found due from the primary debtor, which sum the
garnishee shall pay into court, or to the primary creditor,
towards the satisfaction of the claim, or in default thereof,
execution may issue to levy the same forthwith, or at such
later period as the Judge may direct, which execution may
be according to the form prescribed as aforesaid. R. S. O.
1877, c. 47, s. 135.
Has been duly served. — See sections 183 and 186. This seems to
make it compulsory that due service should be made ; i. e. either per-
Hi
270
GENERAL PROVISIONS.
Sections sonal or its equivalent. The clause " and whether such judgment is or
187-188 is not given," etc., may read as subject to the precedent requiremont of
" service.
Sufficiently proved. — SVe notes to section 184. Proof of the debt due
by the garnishee must be given : Ite Johnston v. Therien, 12 P. R. 442 ;
and it would seem that under this section a strong argument may be
presented that "sufficient proof" of the debt due and owing from the
primary debtor must also be presented, and that reliance cannot be
placed on section 110 so as to enable judgment by default to be entered.
Is or is not given. — The ad>udication against the primary debtor
and garnisiiee need not bo made at the same time, nor embraced in one
order, but it frequently is so: s:e Victoria Mut. Ins. Co. v. Bethune,
1 A. R. 434.
There can be no judgment against the garnishee until final judgment
is recovered against the primary debtor : see Washburn v. N. Y. & Y. M.
Co., 41 Vermont, 50 ; Emanuel v. Smith, 38 Ga. 602 ; and if judg^viAnt
against the primary debtor be reversed, that against the garnishee should
also be reversed : Rowlett v. Lane, 43 Texas, 274 ; and restitution will
then be ordered : McKindsey v. Armstrong. 11 P. R. 200.
The garnishee's liability must be aftirmatively shown, and it always
devolves upon the primary creditor to make out his case against the
garnishee : Webster v. Gage, 2 Mass. 503 ; Porter v. Stevens, 9 Gushing,
530 ; Re Johnson v. Therien, 12 P. R. 442.
Sufficient proof.— <S'«e Rule 56, also notes to section 184, and notes
supra .
Form prescribed.— Form No. 46.
Amount so found due. — This only refers to the debt, and would not,
but for section li)2, include the amount of the creditor's costs. The
judgment was formerly final and conclusive : per Moss, J., at pp. 431,
433 and 434 of 1 A. R. ; but provision is now made for appeal in cases in
which the sum in dispute upon the appeal exceeds $100 : see section 148.
In other cases it is still final, subject to the right of the Judge to set it
aside or grant a new trial.
A married woman would be subject to judgment as a garnishee. Her
separafe property, however, would only be bound : Palliser v. Gurney,
19 Q. B. D. 519 ; Scott v. Morley, 20 Q. B. D. 120.
For form of a judgment against a married woman in action of contract
see Schedule of Forms. Judgment against her could easily be adapted.
The provisions of action 111, as to speedy judgments do not apply to
garnishee proceedings : Cameron v. Allen, 10 P. R. 192. Judgment can
only be given as provided for in this section.
General Provisions.
■■i
All parties
interested
may show
oauee, etc.
IHH. (1) In cases under this Act, and whether the
claim of the primary creditor is or is not a judgment, the
primary debtor, the garnishee and all other parties in any
way interested in, or to be affected by the proceeding, shall
be entitled to set up any defence, as between the primary
creditor and tlie primary debtor, which the latter would be
entitled to set up in an ordinaiy action, and also any such
GEXEUAL PROVISIONS.
271
14, and notes
defence as between the j>arnishee and the primary debtor, section
jin<l may also shew any other just cause why the debt
sought to be garnished shoukl not be paid over or applied
in or towards the satisfaction of the claim of the primary
creditor. R. S. O. 1877, c. 47, s. 186 (1).
(2) A primary debtor or o-arnishee who desires t<^ set uj) Jf,*^'jf^i^''^
a statutory or other defence or set-off, or to admit hisceedhys"'
lialjility in whole or in part for the amount claimed in such
action shall tile with the clerk the particulates of such
defence or set-otf, or an admission of the amount due or
owing by the primary debtor or the garnishee, as the case
may be, within eight days after service on him of the sum-
mons, and the clerk shall forthwith send by mail to each of
the said parties to the action a copy of such defence, set-off
or admission, and the primary creditor may file with the
clerk a notice that he admits the defence or set-off, or
accepts the admission of liability as correct ; a copy of the
notice shall be sent by the clerk by mail, forthwith to the
garnishee, and in the absence of any notice of defence or
set-off, from any primary debtor or garnishee, the Judge
may, in his discretion, give judgment against such primary
debtor or garnishee ; and in the event of the primary
creditor failing to file a notice admitting oi* rejecting such
defence, set-off or admission of liability, the garnishee shall
not be bound to attend at the trial, and the sum admitted
to be due or owing by the garnishee, shall be taken to be
the correct amount of his liability unless the Judge shall
otherwise order, in which latter case the garnishee shall be
notified by the clerk and shall have an opportunity of
attending at a subsequent date and being heard before
judgment is given against him.
(3) The cost of all notices required to be given undercoats,
this section, shnllbe costs in the cause, and in no case shall
be payable by the garnishee, unless specially ordered by
the Judge. 49 V. c. 15, s. 12
D.0
m •»*■*■
0. as.
if
lS3i
'W^ ■ I
1 i"p
272
Section
188
OBJECTIONS TO ORDER.
In any way interested. — This section gives an extensive power to
all parties concerned to defeat the claim of the plaintiff. The garnishee,
or any other party interested, may dispute the claim of the primary
creditor against the primary debtor, and likewise the primary debtor or
any third party may defeat, so far as the primary creditor is concerned,
the claim against the garnishee. Ordinarily the defences of the Statutes
of Frauds and Limitations are personal, but under this section third
parties would be allowed to set them up and defeat a claim which the
party liable did not care himself to defeat.
Any defence. — A set-off would be a defence.
Just causes why debt should not be paid over.— The following are
suggested as arguable reasons for not ordering the money to be paid
over : —
(a) Not a debt.
(b) Not the property of the debtor.
(1) Assignee.
(2) Prior attachment.
(3) Absconding debtor.
(4) Creditors Relief Act.
(5) Mechanics Lien.
(c) Subject to a lien.
(1) By garnishee.
(2) By solicitor of debtor.
The Judge may adjudicate upon any of these claims at the hearing,
if all parties are present, or may make the adverse claimant a party and
summon him : sec oection 197. Ordinarily, it will be found more con-
venient to issue a summons. If all parties should be present, and the
rights clear, a summons will be rnnecessary: Wintle v. Williams,
3 H. & N. 288: Victoria M. F. Ins. Co. v. Bethune, 1 A. R. 420.
It is incumbent on the garnishee, if he knows of any just cause why
the money should not be paid over, to bring the cause to the notice of
the court. If the money should not be a debt within the meauiii a of the
attachment clauses, he ni:.[»ht have to pay twice : Randall v. Lithgow,
12 Q. 13. D. 525; Victoria Mut. Ins. Co. v. Bethune, 1 A. R. 423; or if
the court has no jurisdiction, and the garnishee is aware of the,fact : see
notes to section 17!). If he has notice before the hearing of an assign-
ment, or of bankruptcy, he would be bound to shew cause, and if he were
to pay to the primary creditor, instead of shewing cause, the assignees
could recover the debt from him : Wood v. Dunn, L. R. 2 Q. B. 73. If
he had notice of any facts which might bring the money within any of
the suggested cases above mentioned, he should for the same reason shew
cause. If he should not have notice of any of these causes, before judg-
ment, but should receive same afterwards, and before paying the money
three courses are open to him: (!) He may pay without taking any
further step, which is unsafe unless there is no time to get the judgment
Bet aside before execution ; (2) he may move to set aside the judgment,
and ask the court to brin>« in the third party ; (3) he may give notice to
the third party that unless he moves to set aside the judgment, the
money will be paid thereon : Wood v. Dunn, L. R. 2 Q. B. 73, reversing
L. R. 1 Q. B. 77.
Should the money be paid to the judgment creditor, the third party
will not, however, be without remedy, as he may recover the money, if
he is entitled to it, from the judgment creditor, as money received to his
use: Wood v. Dunn, L. R. 2 Q. B. 77. Quart: Whether notice to the
SERVICE TO BIND DEBT.
273
juds^raent creditor at the time of receiving tlie money, that it is the pro- Sections
parity of a third party, is necessary : Sisdell v. Cunninf»ham, 4 H. & N. 188-189
871. It would seem to be proper for the cliiimant, before suing the
primary creditor for the money, to move under section 195, for an oi'der
discharging the debt from the claim of the primary debtor.
Statutory or other defence or set-off. — It will be observed that this
sub-section has application not only to any statutory defence which the
primary debtor or garnishee may have, but also to any othfr defence or
set-off. Formerly it applied only to statutory defences and to set-off as
in the case of an ordinary action. But these provisions were introduced
by the Act of 1886 (4!) V. c. 15, s. 12). As to the defence of set-off,
Statute of Limitations, and otiier statutory defences, see notes to sec-
tion 128.
Within eight days. — This means exclusive of the day of service : see
notes to section 86, sub-section (3) ; Stroud, 889.
In Simpson v. Chase, 14 P. R. 284, Mr. Justice Osier said : " The
section 188, sub-section 2, is most awkwardly and loosely drawn, but I am
disposed to think that even if the defence of the garnishee was put
ill after the expiration of tlie eight days after service, so long as it was
put in in sufficient time to enable the creditor to give notice rejecting it,
and for the clerk to transmit such notice to the garnishee, the latter
would not be bound to attend the trial if such last mentioned notice was
Hot given and the creditor would not be able to proceed to the trial of the
action, until that was done. The object of the section is to relieve the
garnishee from the expense of attending the court and defending the case
if the creditor will accept his admission of liability, or will tell him that
he will not dispute his defence. The onus of doing this is on the cred-
itor, and the garnishee having filed his defence or admission, need not
uoncern himself further unless the former warns him that he must be
inepaied to support it. "
Judgment cannot be given against the garnishee without proof of the
amount owing by him to the judgment debtor, even though no notice be
given, there being nothing in this sub-section wliich repeals the condi-
tion precedent in section 184 to tlie Judge's giving judgment against the
giirnishee : Johnson v. Therien, In re 12 P. II. 442.
Costs. — .SV'c section 191.
IH8>. In all cases under this Act, (except where an attach- service of
iiit;' order has been served, already^ provided for), service of ongarn-
the summons on the jjarnishee shall have the effect of attach- bind debt
iiioaiid binding in liis hands (subject to the rights of other 'rearing
jiai'ties), the debt sought to be garnished, from the time of
tile service until a final decision made on the hearinfj of the
smnmons ; and any payment of the debt by the garnishee
dining such period, to any one other than the primary
creditor, or into court for satisfying his claim sl;all, to the
extent of the claim be void, and the garnishee shall be
liable to pty the same again to the extent of the claim
to satisfy the same, unless the Judge otherwise orders.
R. S. O. 1877, c. 47, s. 137.
D.C.A.— 18
^^
274
Sections
189-190
m
'''S '•]
m
DEBT BOUND AFTER JUDGMENT.
Attaching and binding. — See note to Bection 179, ante, p. '2(iO.
Untii a final decision made. — When the Judge fully decides th&
matter, the " attaching and bindinj^ " shall be at an end, unless judg-
ment is given against the garnishee: nee Belhouse v. Mellor, 4. H. & N.
116.
It will be seen that the garnishee would pay over the money, to any
one but the primary creditor or into court, at his peril.
The debt is bound by the garnishment " until a final decision is made
on the hearing of the summons." Should the hearing of the nuitter be
adjourned until another sitting, the garnishment would still hold. Judg-
ment against the primary debtor and the garnishee may be rendered at
different times, but there must be lijiidpiiient against the primary debtor
befoi'e anything can be awarded against the garnishee: see notes to
section 173. Drake on Attachment, 5th Ed., ss. '228, 262, 058.
Or into Court. — The safer course is to pay the amount into court :
Sykes v. Brockville & Ottawa Ry. Co., 22 U. C. R 459; Culverhouse v.
Wickens, L. R. 3 C. P. 295 ; but this is not an absolute protection, as, if
the amount was not a debt at tlie time of service, or if the court is with-
out jurisdiction : tee notes to section 180.
" It has been said that when a statute not only declares a contract
void, but imposes a penalty for making it, it is not voidable merely. In
general, however, it would seem that where the enactment has relation
only to the benefit of particular persons, the word ' void ' would be
understood as ' voidable ' only at the election of the persons for whose
protection the enactment was made, and who are capable of protecting
themselves, but that when it relates to persons not capable of protecting
themselves, or when it has some object of public policy in view, which
requires the strict construction, the word receives its natural full force
and effect : " Maxwell on Statutes, 190. By Rule 58, it is declared that
" no payment shall be made by a garnishee to a primary creditor before
judgment given against the primary debtor," except on order of the
Jndge.
Unless tlie Judge otlierwise orders.— This a Judge would probably
do if the primary creditor had, either by his words or acts, assented to
the payment by the garnishee to any other than himself of the moneys
garnished : In re Jones. Ex parte Kelly, 7 C. P. 149 ; Freeman v. Cooke,
2 Ex. 654 ; Johnson v. Credit Lyonnais Co., 3 C. P. D. p. 40 ; De Bussche
V. Alt.. 8 Ch. D. 280 ; In re Bahia & San Francisco Ry. Co., L. R. 3 Q. B.
684, and that class of cases.
I'
and after
judgment.
IflO. If judgment be given for the primary creditor
against the garnishee, the debt garnished shall, unless the
Judge otherwise orders, continue bound in the hands of
the garnishee to satisfy the claim of the primary creditor ;
and payment in such case by the garnishee of the debt to
the extent of the claim, either into Court or to the primary
creditor, shall, to that extent, be a discharge to the gar-
nishee, as between him and the primary debtor ; and any
payment thereof, otherwise than last aforesaid, except by
t
1
ri
COSTS OF GARNISHMENT.
275
Sections
190-192
leave of the Judge, shall be void ; and the oaniishee in such
case shall be liable to pay the same again to satisfy the
claim of the primaiy creditor. R. S. O. 1877, c. 47, s. 138.
Continue bound in the Iiands of the garnishee.— This section ^oes
on to provide for the security of the primary creditor after judgment.
The debt garnished continues to be bound after judgment, unless the
Judge otherwise orders, and any payment made by the garnishee, except
a.s directed by this section, or by the leave of the Judge, would be void, and
the garnishee would be liable to pay the same again for the purpose of
satisfying the primary creditor the amount of his claim : see also notes
to sections 173 and 180.
Discharge to the garnishee. — The payment by the garnishee under
the order of the court satisfies the liability of the garnishee to the primary
debtor to th« extent of the amount paid, and the primary debtor to such
extent ceases to be a creditor of the garnishee: Wardrope v. C. P. Ry.
Co., 7 O. U. 321.
Shall be void. — Ste notes to sections 180 and 189.
lOl. The garnishee shall not be liable for the costs of ^"^'''•
the proceeding, unless and in so far only as occasioned by
setting up a defence, which he knew, or ought to have
known, was untenable ; and, subject to this provision, the
costs of all parties shall be in the discretion of the Judge.
R. S. O. 1877, c. 47, s. 139.
Costs of the proceeding. — This is only declaratory: " Bank of Mon-
treal V. Yarrington, 3 U. O. L. J. 185. If it becomes necessary to issue
execution against the garnishee, he becomes liable for the costs of it, and
the baiHff' 8 fees thereon : Rule CI.
Ought to have known was untenable.— Each case must depend on
its own circumstances. The reasonableness of any defence set up by the
garnishee is to be determined by the Judge, and if in his opinion the
defence is such as a reasonable-minded man and one of ordinary intelli-
gence should not have set up, costs would be imposed : see Maxwell on
Stats. 101, 104.
J02. The Judge in any case brought to garnish a debt, J*;^^J^^^g^°'
may, in giving judgment on behalf of the primary creditor^ cioditor.
award the costs of the proceeding to the primary creditor
out of the amount found due from the garnishee to the
primary debtor, anything in this Act to the contrary not-
withstanding. 43 V. c. 8, s. 65.
In any case brought to garnishee a debt.— .Sf^e notes to section 173.
Award the costs of the proceeding.— Before the year 1880, the
Judge had no power to award more than the primary creditor's claim,
out of the amount found due from the garnishee to the primary debtor.
Now, if there be enough in the h8,nds of the garnishee to pay the^
costs, it may be ordered to be applied in that way.
*a
* m".
III
m
I'
276
APPLICATION TO DISCHARGE DEBT.
Sections
193-195
Summona
and memo-
randum
of particu-
lars to be
filed.
I!IJ$. Judgment shall not be given either against the
primary debtor or the garnishee until the said summons
and memorandum, with an affidavit of the due service of
both on tlie proper parties, are filed, unless the Judge for
special reasons orders otherwise. R. S. 0. 1877, c. 47, s. 140.
Affidavit of the due service of both. — The affidavit should be entitled
ill the court and cause, and otherwise be according to Rule 133 : see notes
to section 105. It should shew that both the garnishee and primary
debtor were served and how : see Rule 53 and notes to section 99 ; see 10
L. J. N. S. 66.
Otherwise orders. — This provision is probably made in order to pro-
vide for a case in which loss of papers or other accident may prevent
proof of service in the ordinary way.
No execu- lO't. No exccutiou shall in any case issue to levy the
tion. till . . "^ . •^
ga^nisheo's money owing from any garnishee until and so far only as
such money has become fully due. R. S. O. 1877, c. 47,
s. 141.
Honey has become fully due.— Independently of this section, the
order for payment would not have been granted otherwise : Tapp v.
Jones, L. R. 10 Q. B. 591 ; notes to section 173.
Applica-
tion to
discharge
debt from
attach-
ment.
lfl*>. Any party entitled to or interested in any money
or debt attached or bound in the hands of the garnishee
by a proceeding under this Act, may, at any time before
actual payment thereof by the garnishee, apply to the
Judge for an order (which the Judge is hereby authorized
to make), to the effect that such money or del)t be dis-
charged from the claim of the primary creditor ; and
thenceforth such money or debt shall cease to be attached
or bound for such claim ; and such an application and such
an order may also be made, if the Judge thinks fit, after the
money or debt has been paid over by the garnishee, in
which case all parties shall be remitted to their original
rights in respect thereto, except as against the garnishee
having already paid the debt or money, whose payment
shall not be affected thereby, but shall be and remain an
effectual discharge to him. R. S. O. 1877, c. 47, s. 142.
Any party entitled to or interested in. — The language of t^iis section
is very wide. Should there be several garnishments against the same
fund, a second garnishee would have the right to apply under this section
.to discbarge the fund from a previous garnishment proceeding. An
SECURITY MAY BE ORDERED.
277
I
Sections
19B-196
assignee of the debt would also have that rif^ht. In fact, any person who
made any claim to the money or debt garnished, could take the benefit of
this section.
An order could be made even after the money or debt had been paid
over by the garnishee, and the parties could be remitted to their ori^^inal
rights in respect of it, except as against the garnishee who had bon<i Jldc
paid the money in pursuance of the garnishment proceeding.
It is submitted that the party applying could take advantage only of
substantial objections to the attachability of the debt as against him
under the garnishment proceedings which it is sought to set aside. He
could not rely upon mere irregularities : Macdonald v. Crombie, 2 O. R.
243; 10 A. R. 92; 11 S. C. R. 107; Archbold's Prac. 13th Ed. 1193 ; but
•' defences " even though of a kind wliich would, in other cases, be per-
sonal to the primary debtor or garnishee, may be set up under section
188.
At any time before actual payment—" I see no reason why a pay-
ment in goods may not be as good as a payment in money : " jter Bolland,
B., inCannan v. Wood, 2 M. & W. 470. " It may be in money or money's
worth : " per Parke, 13., at p. 469. See, also, Wilkins v. Casey, 7 T. R.
713 ; Truax v. Dixon, 17 O. R. 366. Or a bank draft : Caine v. Coulton,^
1 H. & C. 764. Or cheque : Hopkins v. Ware, L. R. 4 Ex. 268 ; Norman
V. Ricketts, 21 Sol. J. 124. Or by the mere transfer of figures in an
account, without any money passing : Eyles v. Ellis, 4 Bing. 112; Boden-
liam V. Purchas, 2 B. & Aid. 39 ; Beatty v. Maxwell, 1 P. R. 8"> ; Nightin-
gale V. Bank of Montreal, 26 C. P. 74 ; Hills v. Mesnard, 10 Q. B. 266.
Or by payment to a third person : Waller v. Andrews, 3 M. & W, 312 ;
Bramston v. Robins, 4 Bing. 11; or by acoeptinj^ an order: Jennings
V. Willis, 22 (). R. 439. But a tender is not payment: Bank of
New South Wales v. O'Connor, 14 App. Cas. 273. Nor is the mere
deduction of an amount from moneys in hand : Re West. Ex parte Clough,
(1892), 2 Q. B. 102.
Apply to the Judge for an order. — See Rule 59, as to mode of applica*
tion.
Order of payment. — The Judge is authorized to make only " such an
order," i.e., an order discharging the debt from the cbim of the primary
creditor.
If the money has been paid to the creditor there does not seem to be
any power to enforce restitution, except by a new action by the owner
against the primary Creditor : see Wood v. Dunn, L. R. 2 Q. B, 73.
An effectual discharge to him. — The garnishee paying in obedience
to competent legal process is protected : .set' notes to section 188.
lOtt. (1) If the Judge, on the hearing of a summons {jf^^''*^
under this Act, or on special application for the purpose, creditor,
tliinks proper, he may, before giving judgment against the
garnishee, or at any time before actual payment by the
garnishee, order such security to be given as may be ap-
proved by himself or the clerk, by or on behalf of the
primary creditor, for the repayment into court to abide the
Judge's order, in case a Judge's order is made for repay-
ment.
278
Sections
196-197
Case of
adverse
claims.
ADVEllSE CLAIMS.
(2) The 1)011(1 shall bo to the clerk by his name of office,
and shall enure for the benetit of all parties interested in
or eiititle<l to tlie money, and may by order of the Judf^e,
and on such terms as to indemnity against costs and other-
wise as he may impose, be sued in the name of the clerk of
the court for the time being, for the benefit of the party
entitled. R. S. O. 1877, c. 47, s. 148.
Security may be ordered. — Slionld any doubt be niised, eithei* as to
the attaohability of tlie debt, or as to the rifjhta of any of tlie parties, or
as to the jurisdiction of the court, the j^arnisliee or any other party may
be protected under this section.
It sometimes happens that there is a conflict between two courts. In
such a case the rij^hts of the parties may sometimes be settled by appeal :
Victoria M. F. Ins. Co. v. Bethune, 1 A. H. 423 ; or upon interpleader
proceedings: lie Andei'son and Barber, 13 P. It. 21. And a Judfje of a
Division Court could, by exerci8inj» his powers under this section, while
obtaining; the money from the garnishee, and thus protecting the credit-
ors and the debtor, require security for tl>e protection of other parties.
The security must be ordered either before judgment against the gar-
nishee, or before actual payment by him. For forms of order and bond,
see Schedule of Forms.
Sub-section 2. — The security should apparently be by bond, though,
it is submitted, the Judge might, in his discretion, order another form of
security under sub-section 1.
No order would be made authorizing a suit upon the bond, until there
was prima facie evidence produced to the Judge that a breach thereof had
been committed, and that the applicant was the proper person to have
the bond enforced : lie Young, L. 11. 1 P. * D. lH(i.
Tlie applicant would be entitled, on complying with the Judge's order
as to indemnity, to sue upon the bond whenever he pleased; and as he
would be the party suing, thougii in the name of the clerk, there would
be no violation of section 88, if the suit were brought in the clerk's own
division. The bond, being merely for the repayment of nioney, is not
■within 8 & ',) Wm. III. c. 11, s. 8, but is within 4 & 5 Anne, c. 1(5, and a
special summons could, therefore, be issued thereon ; and payment of the
amount before action, though after the live days limited by the order,
would be an effectual bar to the action : Murray v. Earl of Stair,
2 B. it C. 82 ; Gerrard v. Clowes, (18<)2), 2 Q. B. 11.
Itl7. In case any one other than the primary creditor
or primary debtor claims to be entitled to the debt owing
from the garnishee, by assignment thereof or otherwise, the
Judge, when adjudicating in any of tlie cases aforesaid, or
by calling the proper parties before him by summons for
the purpose, may enquire into and decide upon the claim,
and may allow or give effect to it, or may hold it void as
against the primary creditor for being a fraud upon cred-
itor or otherwise, as the justice of the case may require '■>
MECHANICS LIENS.
and for such purpose he may require the attendance of
sucli parties and witnesses (their conduct money being first
paid) as he may think necessary. R. S. O. 1877, c. 47,
s. 144.
Adverse claims. — TIuh is a far reaching pi'ovision, and under it a
fjreat variety of questions may come within tlie jurisdiction of a Division
Court Judge.
His jurisdiction is, however, limited by the amount f^arnished, and
while in adjudicating, lie may possibly render a decision which, if correct,
will affect property of large value, his decision is effective only to the
extent of settling whether the primary creditor is or is not entitled to
receive the debt which has been garnished. Re Perras v. Keefer,
g. B. Divl. Ct. 24th. Dec. 18<.»2. For instance, a Division Court
.liulge has power under this section to decide conflicting questions
between parties claiming under garnishee proceedings in his court, and
parties claiming under an attachment, under the Act respecting Ab-
sconding Debtors, from a county court of another county : lie Moore v.
Wiiliace, 13 P. K. 201.
Questions between conflicting assignees, between creditors and assig-
nees, between the debtor and his assignee, between conflicting creditors,
between parties claiming as ceKtiil que trunteiU, lien-holders and otherwise
niiylit have to be disposed of under this section. Even questions in
wliicli the title to land arose might have to be decided : Munsie v.
McKmley, J") C. P. 60; lie Sato v. Hubbard, 6 A. K. 54G ; Cameron v.
Alien, 10 P. R. 192.
Express power is given to decide that a claim (sic) is void as being a
fraud upon creditors or otherwise. It is submitted, however, that in
applying this power, the Judge must first find that the debt sought to be
attached was once due to the primary debtor, and that the assignment,
or other title upon which the adverse claim is founded, is void. No
power is given to set aside transactions prior to the creation of the debt,
although the debtor would, but for such transactions, have been entitled
to the money. For instance, if land be transferred by A., the debtor, to
B., and H. sells to C, no purchase money ever becomes due by C. to A.
There never was any privity between them, and there is, therefore, no
del)t : Vyae v. Brown, 13 Q. B. D. I'Jt) ; Palmer v. Lovett, 14 P. 11.
415.
It is incorrect to speak of a preference as a fraud upon creditors :
Wood v. Dixie, 7 Q. B. 8<,»2 ; Holbird v. Anderson, o T. R. 235. But it is
submitted that under the words " or otherwise," a Judge would have
power to decide that a transfer of a debt was void, as a preference, as
against the attaching creditor.
An assignee for the benefit of creditors under R. S. O. c. 124, is not
entitled to money which has been garnished, even though no order to
pay has been made, notwithstanding section 9 of that Act : Wood v.
Joselin, 18 A, R. 59.
Absconding debtor.— An attachment issued to the sheriff against
the primary debtor, as an absconding debtor, entitles the sheriff to all
money in court the proceeds of an attachment: R. S. O. c 66, 8.16;
Ite Moore y. Wallace, 13 P. R. 201.
Mechanics' Lien. — Whether a Mechanic's Lien of a sub-contractor
takes priority over a garnishee Bummons against the fund in the
hands of the owner, for a debt due by the contractor, is a question
of some doubt. There is no reported Canadian decision on the
279
Section
197
m m-i ■
280
THE CREDITORS RELIEF ACT.
!■.•:
^
Section r{ueation. It is submitted tliat the lien exists from the comnieno-
197 ment of tlie work under sections 4 and 21, li. S. O. c. Tifi, and
that the rej^istration of the sta^.ement of chiiin, under section 1(5,
is merely to preserve the lien. That hein^^ the cise, the lien, when
duly registered, dates from the commencement of tlie work by the
Bub-contractor, and nothing,' short of a payment to the contractor with-
out notice of the lien of the sub-contractor, will prevent the lien from
being effective : nee section 9. The attaching creditor is not a purchaser
for value: Dallow v. Garrold, 14 Q. B. D. /J13, but merely takes what
the debtor (the contractor) could himself honestly deal with : Davis v,
Freethy, 24 Q. B. D. 519; Beaty v. Hackett, 14 P. R. 3!)5, and cases
cited in note to section 173, ante p. 251.
Creditors' Relief Act.— By the Creditors' Belief Act, R. S. 0. 1887,
0. 65. 8. 37, it is provided : —
(1) Where there are in the sheriff's hands several executions and
claims, and there are not, or do not appear to be, suHicient lands or goods,
as the case may be, to pay all and his own fees, ho may apply for an order
attaching any debt owing to the execution debtor by any person resident
in the county of such sheriff, whether the debt is owing by such person
alone or jointly with another person resident or not resident in such
county, and to procure the attachment the sheriff' may take the same
proceedings as a creditor: and in such case a writ of execution, or other
writ in the course of the proceedings, may be directed to him in the same
manner as if the attachment were by a creditor ; and the proceeds of the
debts attached shall be distributed in the same manner as if he had
realized the same under execution.
(2) In case the sheriff does not take such proceedings, any person
entitled to distribution may take the same for the benefit of himself and
all other persons entitled to the distribution as aforesaid, the person
owing the attached debt and shall pay the same to the sheriff.
(3) Any judgment creditor who attaches a debt shall bo deemed to do
BO for the benefit of himself and all creditors entitled under this
Act ; payment of such debt shall be made to the sheriff, who in making
distribution will apportion to such judgment creditor a share pro rata,
according to ihe i-mount owing upon his judgment, of the whole amount
to be distributed under the provisions of this Act, but such share shall
not exceed the amount recovered by the garnishee proceedings unless the
judgment creditor has placed a writ in the sheriffs hands.
(4) Money garnished and paid into the sheriff's hands shall be deemed
to be money levied under execution, within the meaning of this Act,
except that, unless the garnishee proceedings were taken by him, the
sheriff shall only be entitled to charge poundage on such moneys at the
rate of one and a quarter per cent. 43 V. c. 10, s. 21.
(5) The provisions of sub-sections 3 and 4 of this section shall also
apply, as nearly as may be, to any person who attaches a debt in the
Division Court before judgment, and to the money so attached.
(()) In case a garnishee, under an order of the court, pays to the attach-
ing creditor, or in case a garnishee, without notice that the sheriff i»
entitled, pays tlie amouat of his debt into court and the same is paid out
to the said creditor, the sheriff' may recover from him the amount so
received. 48 V. c. 15, s. I.
It seems clear that these provisions cannot be operative, unless The
Creditor's Relief Act has been brouglit into play either by a levy of the
sheriff' and an entry thereof in his book or by a garnishment by him
where there are several executions in his hands. There are, however,
various conditions of facts which create difficulty.
lit.
ADJUDICATION ON CLAIMS.
281
If, prior to the levy of the money by the slieriff, the attachment pro-
ceedings have been completed by the judgment against the garnishee
and by payment by liim to the attachinj,' creditor, the sheriff would have
no right to recover the money. If he paid it into court, and it was paid
out before such levy, the rights would be the same : nfc United English
and Scottish Assurance Co., Ex parte Hawkins, L. R. 3 Ch. 7H7. If, how-
ever, it had not been paid out, but was in court at the time The Credit-
or's lielief Act became operative, it could not be said that tlie right of
the attaching creditor to receive the money was at all clear. The judg-
ment against the garnishee did not cause him to be a debtor of the
attaching creditor, or to cease to bo a debtor of the primary debtor : nee
lie Combined Weighing and Advertising Machine Co., 48 Ch. D. !)1). The
debt, therefore, was still, at the time of the levy, tlie property of
the primary debtor, bound only by the garnishment. The companion
section 16, of the Absconding Debtor's Act, requires money in court, the
proceeds of garnishmei.'^ proceedings, to be paid to the sheriff for dis-
tribution : lie Moore v. Wallace, 13 P. K. 201 ; and the intention of the
Legislature would appear to have been the same with regard to both
classes of cases, although in such case, the provisions seem somewhat
lame and ambiguous. Full effect can, perhaps, be given to the language
of the section by holding that it is applicable to garnishment proceedings
which are commenced after the levy and pending the distribution. To
this effect was the decision in Traders Bank v. McConnell, 24 L. J. N. S.
87, wherein McDougall, Co. J., held, that sub-section H above, applied
only to " cases within the Act, or in other words, when the Act, by the
entry of the sheriff, has been brought into operation." This decision
was, however, founded upon the view tliat the garnishee summons was
an effectual transfer of the debt, following Ex parte Joselyne, 8 Cli. D. 327,
but overlooking Chatterton v. Watney, 17 Ch. D. 259; and that part of
the reasoning is clearly unsound : Re Combined Weighing and Advertis-
ing Machine Co., 43 Ch. D. <)9.
Until payment is made, the money remains simply bound by the
attachment in the same manner as goods are bound by an execution in
the sheriff's hands. It may well be urged that full effect can only be
given to the language of the Act by holding that all garnishment pro-
ceedings against debtors resident in the bailiwick of the sheriff, which
had not been completed by actual payment, bt>fore levy by the sheriff^
under the Act, are affected by the provisions here set out, and tliat pay- ■
nient must be made by the garnishee to the sheriff. The sheriff does
not take adversely to, but under the garnishment proceedings.
Care should be taken, in this event, to have the costs of the proceed-
ing awarded out of the amount found due by the garnishee : see section
1!(2, as otherwise the primary creditor would have to bear the costs
while the other creditors would profit by his efforts: see remarks in Wood
v. Joselin, 18 A. R. 59,
It will be observed, that the sheriff has no right to take attachment
proceedings against persons not resident in his county. Sub-section 2
evidently refers to debts owing which might have been attached by the
sheriff, but sub-section 3 is not clear upon this point. As the payment
is to be made by the sheriff, it is submitted, however, that it is to the
sheriff of the county in whicli the garnishee resides, and only when that
sheriff has brought the debt within the Act by having made a levy.
Adjudication on claims. — If all parties who are suggested, or who
appear to have any interest in the debt, are before the court at the
original hearing, the Judge may adjudicate upon tho rights of the
third parties at that time. If any party is not before the court it will
be necessary for a summons to issue to bring him before the court.
Section
197
i %^.
rmm
1282
.niKJE MAY ADJOUllN.
Sections
197-199
■m
Juf](,'e tiiay
pnHt|)i>iui
or adjouvi
proceed-
ings.
I'lT form of summons, see Forms. Wliere ft debtor is boiii-,' ImraHsod
by ttiiniiHbment proceedings, and also by other contlictinf,' claims, lie may
move for un inter|iloiider order : H. S. (). c. 44, s. "i;t, s-h. '• ; llendinj{ v.
Kclidol Hoard for London, 1(1 Q. B, D. ((Hli; McKllioran v. London
MuHonic Hen. Assn. 11 P. 11. IHI.'
If bo has been sued in the Hij^h Court, his proper practice la to move
in tiiat court, under V,. 11. 1141.
It was hi'ld in lie Anderson and IJarbor, IH P. R. '21, that wherelie was
sued in a county court, he could not move in that action: but xee, Rt
Could V. Hope, 12 C. L. T. 1()7; 21 O. IL ()24.
I'or form of order, xee Forms.
\\\H, Tilt' iIikIoo limy postpone or adjouni From time
to time, tlu' Iicnrino- and other proceed iiio\s in oaniishee
ciiseH, to allow time F<n- j^;ivin<j;' omitted notices of cU I'ence,
or to pi'oduce I'lirtlier evidence, orforanyotlierpurpo.se;
and may recpiire service on, and notice to, other or addi-
tional parties, and may prosci-il»e and devise forms for any
irocei'dino-, and may amend all snnnnonses, memoranda,
claims, accounts, notices and other pa})erH and proceedings,
and c(.pies thereof as justice may i-eipiire. R. S. (). 1(S77,
c. 47, s. 145.
AJjuurn from time to time. — As often as he i)kasefi: Neilson v.
.Iiu\ is, i;> V,. P. 17(i; lie Sutton (k)ldlield Gram. School, 7 App. Caa. JJl ;
WhitehouHo V. Wolverhampton Ry. Co., L. R. 5 Kx. (i.
The .hid^'e has in Division Court proceedings (»eii<'v: .• fijH
powers in rej^ard to adjouriunent of cases and the am ur pro-
ceodin;,'s, l)ut in these garnishee cases more than ordii ^cretion is
coiil'( ii'ed by this section, even to the j^rantiuf^ of now .Is after the
expiration of H days if justice requires it: McLean v, jNii l.i'od, •' ''. R,
4(i7.
it may be said that the power of the Judge under this section is only
limited by his proper discretion and the recjuirements of justice.
Pebt
attach
l!lt>. The Clerks of the several Division Coin-ts shall
nieiit book, keep in their respective offices a deht attachment hook,
according to the form prescrihed by the General Rules or
Orders IVom time to time in force relating to Division
Courts, in which shall he correctly entered the nauies of
parties, the (kites, statements, amounts and other proceed-
ings under this Act, as indicated by the said form, and
copies of ally entries made tlierein may be taken by any
one on application free of charge. R. S. O, 1877, c. 47,
H. 14G.
HEFEIIEXCE T<) AUHITHATFON.
Shall be correctly entered. — The natneu of all partioH and otlicr par-
ticulars hIiouM be entered exactly aH in tlie Huit : ai-i' I'orm ti.
The words used are imperative, The clerks " uhull keep in their
ortii^eH tile preHcribod books, and the entries uliull be correctly entered in
tiie Hanie.
Entries made therein may be taken by any one. -Upon proof tliat a
copy of any entry was an examined copy or extract, or that it purported
to bo sijjned and certiliod as a true copy or extract, by tiie clerk, the cojjy
would be receivable in evidence: It. 8. O. c. (11, s. '2'>; but compare
section •li'j, uiitc, p. i>7.
AHinTlJATlOX. '
tiOO. The .Judj^c iiifv, in nny case, with the coiiHent oF
l)(»th partioH textile nction, oi'ol* their aj^entH, order the .saiiie,
with or without other matters in disputt^ between Hueh
pHi'ties, bein;^' within the jui'isdictior. of the cou)'t, to be'
referred to arbitration to Huch person or pm-sons, and in
such manner and on snch tei-ms as he thinks reasonable
and just; or the parties to an action, may by writint^,
sillied by tliemselves or their aotnits, ao-ree to refer the
matters in dispute to the arbitrament of a person named
in the aoreement, which shall be tiled with the clerk, and
be entered on tlie I'rocedure Book as notices are entered.
R. S. (). 1.S77, c. 47, s. 147 ; 4U V. c. 15, s. l:{.
Arbitration. — Parties cannot be compelled to arbitrate. When the
Jiiil^je orders the arbitration the consent of the parties or their af^enls
need nt)t he in writing, and in this case, also, the I'eference may include
matters not covered by the action itself, so lonj^ as the jurisdiction of the
court is not exceeded. The Judf^o may impose terms, and may, therefore,
limit tin; time within whicli the award may be made.
If one of the parties should be a corporation, and no order be applied
for, the consent mifjht be either under the corporate seal or the hand of
its agent. If a solicitor consented on behalf of the corporation, his re-
tainer need not be under seal: Faveiell v. Eastern Counties lly. Co., 2
Kx. 314. Counsel has power to con.sent : Wilson v. Corp. of Huron and
P>ruce, lie. P. 54y, even against the wish of the chief witness, unless his
dissent is communicated to the opposite party : Strauss v. Francis, L. R.
1 Q. B. 379.
Trustees and executors may submit to arbitration : R. S. O. c 1 10,
8. 31.
If an action of replevin be referred without the consent of the sureties,
they will be discharged : Burke v. Glover, 21 U. C. R. 294.
The better opinion is, that idiots, lunatics, infants, married women,
persons attainted and excommunicated may be arbitrator^ if agreed to
by the parties : Russell, 111.
Tne parties on the record, though they are merely nominal parties,
must consent: Owen v. Hurd, 2 T. R. (543. Where a third party, who
had agreed to join in a submission of a suit, refused to proceed in the
283
8 actions
199-200
Uiiferonce
to arbitra-
tion by
orilor of
■TuilfiO or
by con-
liUUt,
284
PUOCEEDINGS ON REFERENCE.
..rl
u
Section reference, the submission was set aside on tl>e application of one of tlie
200 parties on the record : Bacon v. Creswell, 1 Hodges, ISi).
When nothing is said about costs, the arbitrator has implied author-
ity to adjudicate respectint' the costs of the cause, but not of the refer-
ence or award : Russell H77 lie Harding and Wren, 4 O. R. 605 ; but .see
Macdonell v. Baird, 13 P. R. 8.'jl, wherein it was heltl that the arbitrator
had no power in such cases over costs. But if there be an express power
given to the arbitrator over costs, and a Joitiori over the costs of the
reference, the arbitrator may deal with the costs of the reference
and award : Russell 377.
If the costs are to abide the event, the arbitrator cannot make any
disposition of them : Devanney v. l^orr, i O. R. 206 ; see Hawke v. Brear,
14 Q. B. D. 841.
The arbitrator need not, unless he please, give any direction respect-
ing costs. The costs of the action, at least, will then abide tlie event:
Rusaell, 383 ; Munster v. Cox, 10 App. Cas. (584.
An arbitration is a judical inquiry to be conducted upon the ordinary
principles upon which judicial inquiries are conducted, by hearing the
parties and the evidence of their witnesses : lie Hopper, L. R. 2 Q. B.
373.
The arbitrator should decline to receive private communications from
either litigant respecting the subject matter of the reference. It is a
prudent course to make a rule of handing over to the opponent all written
statements sent to him by a party, and to take care that no kind of
communication concerning the points under discussion be made to him
without giving information of it to the other side • Russell, 654 ; see
Conmee v. C. P. lly. Co., 16 O. R. 639, 654.
No witness should be examined, except in the presence of both
parties: Russell, 191-195; Cruiokshank v. Corbey, 5 A. R. 415 ; Whitely
V. MacMahen, 32 C. P. 453 ; Race v. Anderson, 14 A. R. 213 ; lie Ferris*
Eyre, 18 O. R. 395.
Parties may, however, waive the irregularity by not objecting, or
by attending, without objection, meetings held after knowledge of the
irregularity : Russell, 196.
The arbitrator may proceed ex parte if he have given notice of his
his inten*^ion so to do, iu the event of either party not attending. Making
an appointment " peremptory," is sufficient : Russell, 198,
An arbitrator is not bound by the rules of evidence, and his failure to
observe them is no ground for setting aside the award : Russell, 199-201 ;
Webster v. Haggart, 9 O. R. 27 ; Lemay v. McRae, 16 O. R. 307 ;
16 A. R. 348 ; 18 S. C. R. 280; lie Keighley. Maxstead& Co., and I'.ryan,
Durant A Co., 9 T. L. R. 107.
It will be noticed that when the arbitration is directed by order of
the Judge, that more than one person may be appointed. But when the
arbitration is to be carried on merely under a written consent filed with
the clerk, only one arbitrator is contemplated. There does not appear
to be room, in either case, for the clioice of an umpire or other arbitrator :
but see Form 35 («).
The arbitrator must be named in the order or consent.
Where more than one arbitrator is appointed, all must concur in the
award, or have an opportunity of concurring. Those who are to be
affected by it have a right to the united judgment of all up the very last
moment.
The fact of a joint execution by two, although good if the third finally
refused to join, (Freeman v. Ontario & Quebec Ry. Co., 20 L. J. N. 8.
HEVOCATION OF AWARD.
285
ine of the
(1 author-
the refer-
"> ; but Kce
irbitrator
ess power
its of the
reference
iiake any
V. Brear,
n respect-
ihe event :
( ordinary
laring the
II. 2 Q. B.
lions from
3. It is a
ill written
lo kind of
tde to him
I, 654; see
e of both
Whitely
le Ferris &
ecting, or
ige of the
ice of his
5. Making
I failure to
1, 199-2U1 ;
). U. a07 ;
nd I'.ryan,
y order of
t when the
filed with
lot appear
ir*^itrator :
icur in the
are to be
e very last
lird finally
J. N. 8.
H20), cannoii make good an award designed for the three and executed Sections
separately by the third, both of the others not being present and 200-202
joining with him : Nott v. Nott, 5 O. R. 283 ; Russell, 249.
201. The reference shall not be revocable by either Kevowition
party, except with the consent of the Judge, R. S. 0. 1877, ^»°«'
c. 47, s. 148.
Leave was given to revoke a submission, where an arbitrator was
going wrong in a point of law, even in a matter within his jurisdiction :
East and VVest India Dock Co. v. Kirk, 12 App. Gas. 738. This case was,
however, one of a very exceptional character, and lays down no general
rule. Tlie power to grant leave to revoke is a matter of discretion :
James v. James, 22 Q. B. D. 6(59 ; 23 Q. B. D. 12.
If an arbitrator has received evidence behind the back of a party,
leave to revoke would be granted : Russell, 159, 160.
Where an arbitrator has wrongly rejected admissible evidence, the
court will not give leave to revoke, if satisfied that the arbitrator will, on
hearing the opinion of the court, receive the evidence : Robinson v. Davies,
5 Q. B. D. '2(3.
Where new circumstances have arisen since the submission, of such a
kind as to make it probable that tlie arbitrator would have a bias, the
discretion of the court will be exercised : lie Baring & Doulton, 8 T. L. R.
701 ; Conmee v. C. P. Py. Co., 16 (). R. 639. The arbitrator must have
an open mind : Jackson v. Barry Ry. Co., 9 T. L. R. 90.
Death of one of the parties, before award, revokes the submission :
Tyler v. Jones, 3 B. & C. 144; unless the submission provides tlie con-
trary : McDougal v. Robertson, 4 Bing. 435 ; lie Curry, 12 P. R.437 ; but
the death of one of several parties on the same side, where interests are
identical, will not revoke the siibmis'uon : Re Hare A- Milne, 6 Bing. N. ('.
158 ; but where their interests are separate, it will bo revoked as to the
deceased : Russell, 168 ; lie Potter & Knapp, (i L. J. N. S. 125 ; lie Law-
son v. Hutchinson, 19 Gr. 84.
A probability that the arbitrators will give more than one party con-
siders right, is no ground for revocation : G. W. Ry. Co. v. Miller, 12
U. ('. R. 654. But if they are about to allow improper charges, applica-
tion may be made for leave to revoke : Carveth v. Fortune, 12 C. P. 504.
A submission cannot be revoked, except by consent, after award
made : Phipps v. Ingram, 3 Dowl. 669 ; Lemay v. McRae, 16 O. R. 307 :
16 A. R. 348 : 18 S. C. R. 280; see section 203, infra.
203. The award of the arbitrator or arbitrators or ^^•^'■'1 *» ,
l>e entered
umpire shall be entered as t]ie judgment in the cause, a'^d ?;^ [''j® ^^^^
.shall be as binding and efiectual as if given by the Judge«
R. S. O. 1877, c. 47. a. 149.
The award must be made within the time limited by the order or
consent, otherwise the authority of the arbitrator would be gone ; Denton
V. Strong, L. R. 9 Q. B. 117. Power might, however, be given to the
arbitrator to enlarge the time, or the lapse of time might be waived by
appearing on the arbitration without objection : Thurlow v. Sidney, 29
Gr: 497.
If no power existed to enlarge the time, and the objection was not
waived, the action would stiil remain untried and the court could either
'2.S()
THE AWARD.
J:
Section try it, or on consent, direct a new arbitration. Wlien power is given to
202 enlart^e the time, tlie enlargement sliould be made during the original
period, unless a special power be given to enlarge afterwards: Russell,
143. Tlie court would have no power, without consent, to enlarge the
time : Russell, 14!t : section 43, R. S. O. t^: 53, would not be applicable to
Division Courts.
An arbitrator cannot be compelled to make an award: Russell, 203.
The arbitrator may consult men of science in every department where it
becomes necessary : Caledonian Ry. Co. v. Lockhart, 3 Macq. 808. A
valuer may be consulted: Emery v. Wase, 5 Ves. 84(5; Gray v. Wilson,
L. l^;. 1 C.P. oO; or a solicitor: Proctor v. Williams, 8 C. B. N. S. 386 ;
or an accountant ; He Tidswell, 33 Beav. 213.
Any words expressing a decision is an award. Thei'e need be no
recitals : Russell, 24<i. It must finally decide all matters in difference in
the suit. Any stun found to be due may be ordered to be paid by instal-
ments, and in default of payment of one, the whole may be ordered to
become due. The arbitrator cannot delegate any part of his authoi-ity to
another, nor reserve any future power to himself. Nor can he order an
act to be done to the satisfaction of another. But a mere ministerial act
may be reserved to be done either by himself or a stranger — e.g., to make
measurements or to settle the form of a bond or release: Russell, 281.
The award must be certain, so that no reasonable doubt can arise
upon the face of it as to the arbitrator's meaning, or as to the nature and
extent of tlie duties imposed by it on the parties : Russell, 206 ; Mitchell
v. G. W. Ry. Co., 38 U. C. R. 471.
It is said that a direction to pay the costs of a action in an inferior
court, without ascertaining the amount, is void for uncertainty : Addi-
son v. Gray, 2 Wils. 2!)3 ; Winter v. Garlick, 1 Salk. 75.
But if the direction should be to pay the costs taxed by the clerk of
the Division Court, it would probably be good; Higgins v. Willes, 3
M. & R. 382 ; Hopcraft v. Hickman, 2' S. & S. 130 ; see Re Preble and
Robinson, (1892), 2 Q. B. 602.
The award must be mutual, i.e., if payment is directed to be made by
one party, it must destroy his obligation to the other : Russell, 296.
It must be possible, intelligible and consistent.
An affidavit of execution must accompany it : Rule 150.
The arbitrator may retain the award until his fees are paid : Russell,
251. The amount of fees is regulated by R. 8. O. c. 53, ss. 20, 21.
Travelling expenses of the arbitrators cannot be allowed in addition :
Re Hillyard & Royal Ins. Co., 12 P. R. 285.
Until taxation of his fees the arbitrator cannot maintain an action
therefor : McKillop v. Logan, 7 C. L. T. 171 ; but see Crampton v. Ridley,
20 Q. B. D. 48, where a right to sue for fees was held to exist at com-
mon law.
No action will lie to recover back the fees paid to arbitrators for an
invalid award : Nott v. Gordon, 20 L. J. N. S. 379.
Where the costs of the arbitration are not provided for by the sub'.nis-
sion, each party should pay one-half the arbitrators fees : Smith v.
Fleming, 12 P. R. 520, 657 ; Re Harding and Wren, 4 O. R. 605.
The award is as binding and effectual as if given by the Judge. It is*
therefore, subject to an application for a new trial.
)ii
i
SETTING ASIDE AWARD,
2.S7
is Kiveu to
lie original
i: Ru93ell,
nlarjie the
plicivble to
ussell, 203.
nt where it
!q. 808. A
V. Wilson,
N. S. 386;
leed be no
ifference in
i by instal-
ordered to
lUthority to
he order an
listerial act
./;., to make
s'sell, 281.
t can arise
i nature and
)6; Mitchell
1 an inferior
inty : Addi-
' the clerk oi
W. Willes, 3
Preble and
be made by
ell, 2%.
iid : Russell,
20,21.
in addition :
lain an action
ton V. Ridley,
exist at com-
trators for an
)y the Bubmis-
3B : Smith v.
. (505.
Judge. It i8»
20SS* The Judj'e, on application to him within fourteen a®*;**f)S"
days after the entry of the award, may, if he thinks fit, — ,
•^ "^ . . Juflse may-
set aside the award, or may, with the consent of both parties^ set aside
revoke the reference and order anotuer reference to be
made in the manner aforesaid. R. S. O. 1877, c. 47, s. 150.
By R. S. O. c. 53, s. 30, it is provided tliat after taxation the arbitrator
may maintain an action against all the parties to the reference jointly or
severally.
This section gives an extended discretionary power to the Judge, and
the numerous authorities governing motions to set aside an award are
inapplicable except as guides to the Judge in exercising his discretion.
The grounds usually urged in moving to set aside an award are : mis-
conduct or corruption on the part of the arbitrator ; or the improper
reception of evidence behind the back of the parties; or mistake admitted
by tlie arbitrator, or apparent on the face of the award.
The awai-d may also be set aside on account of its lacking the
requisites enumerated in note to section 202, or for excess of authority
by the arbitrator : Russell, ()52-t)97.
The fact that an award is contrary to law or evidence, is ordinarily
no ground for setting it aside. The arbitrator has full power to decide
contrary to law or evidence if he pleases, but if he intends to decide
according to law, and makes a mistake, and such mistake is apparent on
the face of the award, or is admitted by the arbitrator, the award may be
set aside : Russell, 303-310 ; McRae v. Lemay, 18 S. C. R. 280.
Under this section, the Judge may, however, set aside the award if
contrary to law or evidence : or if, in his opinion, it does not do substan-
tial justice^ or for any other reason.
The Judge may set aside the award on the ground that facts not
admissible in a court of law had since been discovered, which might alter
the decision: Re Keighley, Maxstead & Co., and Bryan, Durant ife Co.,
i» T. L. R. 107.
An award made by arbitrators, one of whom was, at the time of the
arbitration, a sub-agent for an agent of the defendants in obtaining
insurance risks, though he had acted as such to only a very small extent,
was held void : Vineberg v. Cruardian Fire and Life Assce. Co., 19
A. R. 2!)3.
The time for moving does not expire until 14 days from the entry of
the award as a judgment in the cause.
ister
S04. Any of the arbitrators may administer an oath or n,ay'|uB.7*
affirmation to the parties, and to all other pei-sons examined oatiiB"''^
before such arbitrator. R. S. O. 1877, c. 47, s. 151.
It is left to the option of the arbitrator whether he will examine the
vitneases on oath or not. He cannot be compelled to so examine them,
though one of the parties may require tbom sworn: Smith v. Goff,
3 D, &. L. 47.
The sending of adulterated samples to be used on an arbitration,
though not in fact so used, is a misdemeanor: R. v. Yreones (1891),
1 Q. B. 360.
288
OFFICERS MAY TAKE CONFESSIONS.
Section
20S
CONFESSIONS OF DEBT.
1 1
Clerks and 205. A bailiff or clerk, before or after action com-
bailiffs
may take menccd, mav take a confession or acknowledgment of debt
coiifes- ' ./ ^ o^
sioiis. from a debtor or defendant desirous of executing the same,
which confession or acknowledgment shall be in writing
and witnessed by the bailiff or clerk at the time of the
taking thereof : and upon the production of the confession
or acknowledgment to the Judge, and its being proved bj'^
the oath of the bailiff or Clerk, judgment may be entered
thereon. R. S. O. 1877, c. 47, s. 152.
May take a confession.— When taken before suit commenced, par-
ticnlai'rt of claim as full as are required for special summons must be
slievvii by the confession, or attached to it: Rule 131; section 109;
Rule H.
Where some of the defendants served with a special summons con-
fess and others do not, as to the duty of the clerk, nee Rule 26.
And where some served with a special summons do not defend and
otliers do, those not defending are taken to have confessed the plaintiff's
claim : Rule 24.
If a defendant served with a special summons does not file a disputing
notice but gives a confession, the plaintiff can elect to take proceedings
on the confession or otherwise : Rule HO.
As to the form of a confession after suit, see form 104. There is no
form of confess"".! before suit, but the above can easily be adapted. One
partner cannot give a confession for the iirm without special authority :
Huff V. Cameron, 1 V. R. 255; Hambidge v. De La Crouee, 3 C. B.
74'i ; but if the non-executing partner comes to know of it, and allows
proceedings to be taken upon it, and delays for eighteen months before
applying to set it aside, a judgment upon it will not be disturbed : Brown
V. Cinqmars, 2 P. R. 205. A confession could be given by the Attorney
of the defendant: Richmond v. Proctor, 3 U. C. L. J. 202; but he had
better attach his authority to the confession. One of several executors
has no power to bind the others by giving a confession: Commercial
Bank of Canada v. Woodruff, 21 U. C. R. 002. A plaintiff giving time
for a debt may take confession as additional security : Parker v. Roberts,
3 U. C. R. 114; Potter v. Pickle, 2 P. R. 301. There should be an affi-
davit of execution, (form 108); but where judgment is entered,
on a confession witliout affidavit, it would not be set aside, but
the atltidavit would be allowed to be filed afterwards : Potter v.
Pinkie, 2 P. R. 301. A confession given by the maker of a note pay-
al>le immediately is no defence to an action against the endorser : Bank
of Montreal v. Douglas, 17 U. C. R. 208. If one of two defendants dies
after confession and before judgment, leave would be given to enter
judgment against the survivor: Nichall v. Cartwright, Tay, 464; see
letter at page 313 of 7 U. C. L. J. on Confession.
At the time of taking thereof. — The confession or acknowledgment
executed in any other form than here prescribed would operate as an
admission of the party of the contents of the instrument, but could not
properly be acted upon as a confession. The general opinion is that a
COSTS.
289
mons con-
confesHion in the Division Court has not the effect that the same instra- Sections
ment would have under chapter 124 of the R. S. O. 208-207
No one but a clerk or bailiff appears to have the right to take the
confession.
20B. The oath or affidavit shall state that the party Affl^a/^|t .^
making it has not received, and that he will not l-eceive, ^"''^ *'*^*^"
anything from the plaintiff or defendant, or any other
person, except his lawful fees, for taking the confession or
acknowledgment, and that he has no interest in the demand
sought to be recovered. R. S. O. 1877, c. 47, s. 153.
No interest in the demand. — It is intended here to make the officer
wlio takes the confession perfectly independent, so far as the oath can
make him ; and as neither clerks nor bailiffs can sue in their own court,
neither should they have any " interest " in the suits of others.
COSTS.
20T. (1) The costs of any action or proceeding not ^JJ^^^^fj^
otherwise provided for, shall be paid by or apportioned ** ^'^ *'°**^-
between the parties in such manner as the Judge thinks
fit, and in cases where the plaintiff does not appear in
person or by some person in his behalf, or appearing does
not make proof of his demand to the satisfaction of the
Judge, he may award to the defendant such costs and such
further sum of money, by way of satisfaction for his
trouble and attendance as he thinks proper, to be recovered
as provided for in other cases under this Act, and in default
of any special direction, the costs shall abide the event of
the action, and execution may issue for the recovery thereof
in like manner as for any debt adjudged in the court.
R. S. O. 1877, c. 47, s. 154.
(2) In all actions or other proceedings brought in a
Division Court in which the plaintiff fails to recover judg-
ment by reason of the Court having no jurisdiction over
the subject matter thereof, the Judge presiding in the
Court shall have jurisdiction over the costs of the action or
other proceeding, and may order by and to whom the same
siiall be paid, and the recovery of the costs awarded to be
paid may be enforced by the same remedies as the costs in
actions or proceedings within the proper competence of the
Court are recoverable. 44 V. c. 5, Rule 489.
D.C.A. — 19
290
COUNSEL FEES.
Seotlona
207-208
^iislP'
"li
is?
■■^ i
ConnBel
fees.
Any action or proceeding. — See notes to section 54.
As the Judge tliinks fit. — A very wide discretion is here given to the
Judge on the subject of costs, but it only applies to cases where no special
provision is otherwise made. It would not apply to such cases as are
provided for under section 124 and others of a similar nature.
The event is to be taken distributively. If the plaintiff recover as to
Bome items of the claim, and the defendant as to others, the plaintiff is
entitled to the general costs of the suit, and the other costs — e.g., witness
fees, will be payable to the party who has succeeded upon the issue in
respect of which thev were incurred : Myers v. Defries, 4 Ex. D. 180 ;
Stooke V. Taylor, 5 Q. B. D. 569 ; Hawke v. Brear, 14 Q. B. D. 841.
Formerly it was decided that where a Judge had no jurisdiction, he
had no power to award costs : Lawford v. Partridge, 1 H. & N. 621 ;
Peacock v. The Queen, 4 C. B. N. S 264; Powley v. Whitehead, 16
U. C. R. 589 ; Campbell v. Davidson, 19 U. C. R. 222 ; Nicholls v. Lundy,
16 C. P. 160 ; In re Kingston Election, Stewart v. Macdonald, 41 U. C. R.
p. 313 ; Brown v. Shaw, 1 Ex. L». 425 ; though the authorities to that
effect were disregarded in Great Northern Committee v. Inett, 2 Q. B. D.
284.
This provision is intended to remove any doubts which existed as to
the right of a Judge to award costs against the plaintiff in such cases.
fiOH. Where in a contested case for more than $100, a
counsel, solicitor or agent has been employed by the suc-
cessful party in the conduct of the cause or defence, the
Judge may, in his discretion, direct a fee of $5, to be in-
creased according to the difficulty and importance of the
case, to a sum not exceeding $10, to be taxed to the success-
ful party, and the same, when so allowed, shall be taxed by
the clerk and added to the other costs. 43 V. c. 8, s. 16.
In a contested case.— This section is extended to interpleader cases
by section 155, sub-section 2.
It has been argued by some that the words "contested case " mean
not only a case in which there is a contest in court, but one in which
notice of defence has been entered simply. The writer has always
thought otherwise, and when we consider that, since the year 1880, a
clause was introduced in one of the Division Court Bills before the Legis-
lature, allowing the Judge, in his discretion, to grant what may be termed
counsel fees in all cases within this section in which a defence was
entered, and the Legislature refused to pass it, there cannot be much
doubt of their intention under this section. It was intended to obviate
the difficulty which the writer and other Judges had held in regard to
the meaning of these words. It is true that in many cases it may be
said there is a contest, although the party may not appear in court, yet
we still think the statute was not intended to meet such cases. There is
great force in the argument that in preparing the case for trial the fee is
virtually earned whether the defendant appears at the trial or not ; but
we think it must be addressed to the Legislature, rather than to the right
of the Judge, to allow a fee.
For form of fiat where a fee is allowed, see Schedule of Forms, post.
Solicitor or agent. — The fee here given is not confined to a counsel or
solicitor, but may be allowed to an " agent " as well : tee notes to section
120.
mam
COSTS OF WITNESSES.
291
Shall be taxed by the Clerk.— The clerk's duty is simply a ministerial Sections
one, which he is bound to execute, the responsibility of the order being 208-210
improperly granted resting with the Judge : Andrews v. Marris, 1 Q. B. 3 ;
Graham v. Smart, 18 U. C. R. 482 ; Hill v. Manat;ers of Met. Asylum
Dist., 4 Q. B. D. pp. 440, 441.
The discretion conferred upon the Judge under this section should be
exercised accordinjj to the principles laid down in Julius v. Oxford,
(Bishop), 5 App. Gas. 214, and other cases cited in note to section 8
ante, p. 6.
soil. Where the defendant having disputed the plain- costs of
, „ witnesses
tiff's claim afterwards and before the openinq; of the court »" certain
i o ^ cases.
confesses judgment or pays the claim so short a time before
the sitting of the court that the plaintiff cannot in the
ordinary way be notified thereof, and without such notice
the plaintiff bona fide and reasonably incurs expenses in
procuring witnesses or in attending at court, the Judge
may, in his discretion, order the defendant to pay sucL
costs or such portion thereof as to him may seem just.
43 V. c. 8, s. 63.
Confesses judgment. — As to when the defendant may confess judg-
ment, see section 205 and notes tliereto.
Notified thereof. — It is the duty of the clerk forthwith to notify any
party for whom he may receive money by virtue of his office : section
294 ; Bule 95.
Reasonably incurs —What is reasonable must always be a fact to be
determined by the Judge, and must be decided with reference to the
circumstances of each particular case.
See Rule 138.
2 1 0. No costs shall be recoverable in an action brought costs in
° actions oil
in any Court for the recovery of a sum awarded by judg- judgmeutn.
ment in a Division Court without the order of the Judge
of the Court in which the action is brought, on sufficient
cause shewn. R. S. O. 1877, c. 47, s. 216.
This is apparently a direction applicable to all courts. It is doubtful
whether an action can be brought upon a Division Court judgment in\
any other court than a Division Court: McPherson v. Forrester, 11
U. C. R. 362; Donnelly v. Stewart, 25 U. C. R. 398. After these cases,
were decided, judgments of Division Courts were declared to have the^
same force and effect as judgments of Courts of Record : 32 V. c. 23, h. I.
See section 7.
On sufficient cause shewn.— As there can be no adverse order for
costs, unless expressly authorized by statute, we submit that an order
under this section could not be made except where the opposite party
had an opportunity of being heard : see Lomax v. Berry, 2 H. «& N.
p. 128, per Martin, B.; McLean v. Allen. 14 P. R. 84, 291.
-..
292
JUDGMENT AND EXECUTION.
Sections
2U-212 I'ROCEEDINGS NOT TO BE SET ASIDE FOR MATTER
OF FORM.
Proceed- 2II. No ordei*. vei'dict, judffinent, 01' other proceeding
iugs not to "- - - > ^ ' J » » 1 &
1)6 quashed Jiad or made concerninff any matter or thing under this
for want of ts ^r o
form. Act;^ shall be quashed or vacated for any matter of fonn.
R S. O. 1877, c. 47, s. 155.
Matter of form. — Though an adjudication be informal, it will be
upheld if it be a substantial decision of the cause : Oliphant v. Leslie,
24 U. C. R H98 ; see also, Crawford v. Beattie, 39 U. C. R. 28.
For instances of formal defects, nee Kx parte Vanderlinden, 20 Ch. D.
289; A'.c pm-te Johnson, 25 Ch. D. 112; but, nee Kx parte Tindall,
DeG. M. & VV. 741 : McMnrray v. Northern Ry. Co., 22 C4r. 47(5.
JUDGMENT AND EXECUTION.
wben 213. In case the Judffe makes an order for the pay-
money not _ - ^ " X ./
paid, pur- nient of money, and in case of default of payment of the
suant to •^ ' 1 ./
cutfon^to whole or of any part thereof, the party in whose favour
issue. ^jjg order has been made, may sue out execution against
the goods and chattels of the party in default; and there-
upon the clerk, at the recjuest of the party prosecuting the
order, shall issue under the seal of the court an execution
to one of the bailiffs of the court, who by virtue thereof
shall levy by distress and sale of the goods and chattels of
such party, being within the county within which the
court was holden, such sum of money and costs (together
with interest thereon from the date of the entry of the
judgment) as have been so ordered, and remain due, and
shall pay the same over to the said clerk. R. S. O. 1877,
c. 47, s. 156.
Judgment — Unless otherwise ordered, no execution shall issue within
fifteen days from entering the judgment given after trial : 52 V. c. 12,
s. 16 ; see section 145.
By a judgment is here meant that final determination of a cause
which concludes the parties and privies to it, and prevents the subject
being again litigated, either in the Division Court or in any other:
Gibbs V. Cruikshank, L. R. 8 C. P. 451 ; Flitters v. AUfrey, L. R. 10
C. P. 29; Austin v. Mills, 9 Ex. 288; Dover v. Child, 1 Ex. D. 172;
Bullock v. Dunlap, 2 Ex. D. 43 ; aCc note to section 7 ante, p. 3.
So long as a judgment stands, if regularly entered, or proceedings duly
taken, it estops either party from denying its correctness, or the execu-
.tion founded upon it: Hu£fer v. Allen, L. R. 2 Ex. 16 ; Ventriss v. Brown,
EXECUTION.
293
22 C. P. 315 ; but if obtained by covin — i.e., secret conspiracy or agree-
ment between two or more persons to injure or. defraud another — and
collusion, it is no bar, and does not atTect third parties : Girdlestone v, ~
Brighton Aquarium Co., 3 Ex. D. 137 ; 4 Ex. D. 107.
To conclude a plaintiff by estoppel as to what defendant did in a pre-
vious action, it must appear that there was a judgment of the court on
the question : Stanton v. Styles, 1 L. M. <& P. 675.
A judgment of a Division Court would be aided against the eijuitable
estate of the debtor : Bennett v. Powell, 3 Drew. 320 ; »ee notes to section
73.
A Judge, at the time, has power to order a judgment given by him to
be paid by inscalments : Robinson v. Gell, 12 C. B. 191 ; but not so as
to postpone execution longer than 50 days from the service of the sum-
mons unless under special circumstances : section 147.
A judgment of a Division Court is not removable into ;i Superior
Court for the purpose of issuing execution thereon : Moreton v. Holt,
10 Ex. 707.
A verbal order of the Judge sitting in court is a "judgment" of the
court, and can be acted upon • E!} v. Moule, 5 Ex. 1)18.
See, also, notes to sections 109, 111, 145, 146 anu 147.
Execution. — Execution may be issued on a judgment by default on a
specially indorsed summons immediately after the entry of the judg-
ment : section 109 ; but in other cases, unless the Judt,'e otherwise orders,
the execution shall not issue until 15 days after the entry of the judg-
ment : section 145.
An execution cannot issue in the name of a plaintiff's executor
without. revival : Proctor v. Jarvis, 15 U. C. R. 187: but if issued can be
executed after the deatii of the plaintiff or defendant : Roit v. Gravesend
(Mayor, etc.), 7 C. B. 777 ; Turner v. Patterson, 13 C. P. 412 ; Johnston
V. McKenna, 3 P. R. 229 ; even if goods in the hands of the executor :
Smith V. Bernie, 10 C. P. 243.
Executions should not be issued by the clerk without an express order
from the party entitled to it : 4 U. C. L. J. 203, 251 ; Tuckett v. Eaton,
(■) O. R. 48() ; or where from a course of business the authorization can
be reasonably inferred.
" Execution " sometimes means the writ itself, and sometimes what
is done under it : McDonald v. Cleland, P. R. 293.
"Levying on execution sometimes means seizure and sale: Ross v.
Grange, 25 U. C. R. 390; Buchanan v. Frank, 15 C. P. 198 ; or receipt of
money. Traders' Bank v. McConnell, 24 L. J. N. S. 87.
The endorsement of execution for a larger amount than is actually
due is not per se an injury to the defendant; it must be shewn that more
goods were seized than were necessary or reasonable to satisfy what was
really due, and that the acts complained of were done maliciously and
without reasonable or probable cause: Barber v. Daniell, 12 C. P. 08;
Saxon V. Castle, A. & E. 052; Tancred v. Leyland, 10 Q. B. 669;
Cliurchill V. Siggers, 3 E. & B. 937.
But an allegation and proof in a similar case that execution was-
issued wrongfully and luahciously, and without reasonable or probable
cause, will support an action for the injury : Dewar v. Carrique, 14 C. P.
137; Gilding v. Eyre, 10 C. B. N. S. 592.
If the defendant pay the debt, he should notify the clerk thereof :
Tuckett V. Eaton, O. R. 480.
Executions should be executed in the order in which the bailiff receivea
them : 4 U. C. L J. 251.
Section
212
iWij
294
EXECUTION.
Baotion Whether several executions against the same person are (leliverod into
312 t)ie bailiff's hands at one time, or he receives them by post, that execn-
tion should be first executed which the bailiff' Jimt »ee». Seizure should
be made and money paid over according; to their priority : Hazlott v.
Hall, 24 U. C. R at p 480; Rowe v. Jarvis, VA C. P. 4<.»5 ; Bank of
Montreal v. Munroe, 23 U. C. R. 414 ; Dennis v. Whetham, L. R. y
Q. B. 345.
Where a sheriff went to defendant's house with an execution, and
merely produced the warrant, at the same time demanding debt, costs
and poundage, which were paid under protest, it was held not to amount
to a seizure so as to entitle the sheriff to poundage: Nash v. Dickenson,
L. R. 2 C. P. 252.
But where a sheriff's officer went with another man to defendant's
liouse, shewed him the warrant and demanded payment, and told him
that in defuult of payment the man must remain in possession and
further proceedings would be taken, the defendant then paid the sum
demanded in thc> warrant, which included poundage and officer's fees, it
was held there had been a seizure which entitled the sheriff to poundage:
Bissicks V. Bath Colliery Co., 3 Kx. D. 174.
Sec Lee v. Dangar, (1892), 1 Q. B. 231, 241, 242; Craig v. Craig, 7
P. R. 209 ; Cropper v. Warner, 1 Cab. & E. 152.
Seizure is the forcible taking of jjossession : Johnston v. Hogg, 10
0. B. D. 432; see, also, Gladstone v. Padwick, L. R. (5 Ex. 203; Gibbons
V. Farwell, 34 Alb. L. J. 497, and cases there cited ; May v. Standard
Fire Ins. Co., 5 A. R (105; Craig v. Craig, 7 P. R. 209; Cropper v.
Warner, 1 Cab. & E. 152.
Seizure of part of the goods in a house in the name of the whole is
good seizure of all: Cole v. Davis, 1 Ld. Raymd. 724.
If in an execution and the endorsements the names of the plaintiffs
and defendants are transposed throughout, it is clearly irregular:
Davidson v. Grange, 5 P. R. 258.
An execution from a Division Court only binds goods from the time
of seizure: Culloden v. McDowell, 17 U. C. R. 359; per Bums, J.; Watts
v. Howell, 21 U. C. R. at p. 259.
Moneys, securities for money and choses in action, are only bound
from the time of actual seizure either by sheriff or bailiff: McDowell v.
McDowell, 10 IT. C. L. J. 48.
A bailiff could not seize or sell the equity of redemption in a vessel :
Scott V. Carveth, 20 U. C. R. 430.
Money paid into court is not liable to seizure under execution while
in the hands of the officer of the court: Calverly v. Smith, 3 U. C. L. J.
iM; 4 U. C. L. J. 177; but it is submitted that a mortgage on real estate
is: 5U. C.L.J. 249.
Fixtures in defendant's house cannot be sold under execution : Winn
V. Ingilby, 5 B. & Aid. 625 ; Rogers v. Ontario Bank, 21 O. R. 416; nor
where fixtures have been wrongfully severed by a tenant: Farrant v.
Thompson, 5 B. & Aid. 826.
Tenants' fixtures may, however, be removed : Grymes v. Bowern,
6 Bing. 437.
Growing crops may be seized : McDougall v. Waddell, 28 C. P. 191.
Under an execution against the chattels of a mortgagor, the bailiff
can seize the corpus of the mortgaged goods, so that he may expose them
to view, although he can sell only the equity of redemption in them ; see
Smith V. Cobourg & Peterboro' Ry. Co., 3 P. R. 113.
>ii
the whole is
n in a vessel ;
38 V. Bowern,
EXECUTION.
But not where goods are in possession of the mortgagee : Watscn v.
Henderson, 25 C. P. 562 ; Squair v. Fortune, 18 U. C. R. 547.
On an execution against one of two partners, the defendant's interest
in the goods of the partnership can be seizod; but the right of property
or possession of the other partner cannot be interfered with : Owens v.
Hull, 1 A. R. 62; Harrisoi. v. Harrison, 14 P. R. 486; McDoiiagh v.
Jeplison, 16 A. R. 107 ; and the purchaser would take the interest of the
execution defendant as tenantin-common of the floods: Eddie v.
Davidson 2 Doug, (150; Partridge v. Mcintosh, 1 C 50; Wilson
V. Vogt, 24 U. C. K. 635.
But the partner's interest in the good-will, or book debts, or other
tilings incapable of seizure could not be sold : Helmore v. Smith, 35 Ch. D.
486. " The unfortunate purchaser from the bailiff has to find out what
he has really had assigned to him, and that he can only do by a partner-
ship account :" ]}er Lindley, L.J., 35 Ch. D. 447.
An execution against a pnrtner has no priority against his separate
))roperty over one against him as a member of a partnersliip : Bank of
Toronto v. Hall, 6 O. It. 653.
Book debts cannot be seized under section 228 : McNaughton v. Web-
ster, 6 U. C. L. J. 17.
A license to sell liquor could not be sold under an execution : Re
Gilmer, 17 L. R. Ir. 1 ; nor a term of years : Duggan v. Kitson, 20
U. C, R. 316.
Money made under an execution at the suit of one man cannot be
be retained by the bailiff to meet another execution in his hands against
the same man : Sharpe v. Leitch, 2 L. J. N. S. 132 ; Wood v. Wood, 12
L. J. Q. B. 141.
Farm stock transferred by A. to B. on the terms that A. should be
repaid by a greater specified number of the same kind at a certain time,
would, as well as the increase, be liable to seizure under an execution
agaiuHt B. placed in the bailiff's hands before the specified time expired :
Kce Peers v. Carrall, 19 U. C. R. 229 ; South Australian Ins. Co. v. Ran-
dell, L. R. 3 P. C. 101 ; Oliver v. Newhouse, 32 C. P. 90; 8 A. R. 122.
Such a case is nothing less than a sale : see South Australia Ins. Co.
V. Randell, L. R. 3 P. C. at p. 109 ; Ex parte White. In re Nevill, L. R.
6 Ch. 397.
But if merely lent this would not be so : Dillaree v. Doyle, 43 U. C. R.
442.
If a person buy an article from a tradesman, and afterwards see
Another article of the same kind belonging to the tradesman which he
prefers to the one purchased, and which he buys by delivering back the
first one and paying an additional sum, but allows the article last
purchased to remain an unreasonable time in the possession of the
tradesman, it is liable to seizure on an execution against the latter : Car-
ruthers v. Reynolds, 12 C. P. 696.
One who fraudently removes goods of an execution debtor to prevent
their seizure is liable to an action therefor: Young v. Buchanan, 6 C. P.
218; Turner v. Patterson, 13 C. P. 412.
A person purchasing a crop of wheat at a bailiff's sale mi;rht bring
trespass against a person injuring or converting it : Haydon v. Crawford,
3 O. S. 583.
A sale may be made after the expiry of an execution if seizure took
place while it was in force; but if no seizure made during that time,
then the sale is void ; Doe d. Greenshields v. Garrow, 5 U. C. R. 237 ;
Reynolds v. Streeter, 3 P. R. 315 ; Lee v. Howes, 30 U. C. R. 292 ; Hall
V. Goslee. 15 C. P. 101.
295
SeoUon
aia
fit:
I 4.
296
EXECUTION.
ifii
f
!»l
'!ii
8«otlon A sei/.nrc by a bailiff beforo his removal from oftiee on an exccutioit
213 then in force, wuuhl, it iu Hubmitted. miHtain a sale by him after ho had
ceaHod to be a bailiff : Doe d. Miller v. Tiffany, 6 U. C. K. 7it.
Notwithatitndin^ the wide terms of R. S. O. c. (>4, s. i>, it would seent
that Hhareu, etc., in companies cannot be seized under a Division Court
execution.
There is no warranty of title at a bailiff's sale, unless the bailiff
expressly make one : Chapman v. Speller, 14 Q. 1). 021 ; but there is a
warranty that he does not know he is destitute of title to the goods :
Peto V. Blades, 6 Taunt. 05.
The purchaser gets no better title than the execution debtor had ; and
if he had none, neither does the purchaser acquire any.
Growing fruit, bein^ part of tiie realty, cannot be seized : Rodwell v.
Phillips, 9 M. & W. 605.
A writ of execution issued too soon would not be a nullity but an
irregularity only : Macdonald v. Crombie, 2 O. R. 243.
Where writ of execution is not renewed, but not through any default
of any officer of the court, it will not be renewed nunc pro tunc : Lowson
V. Canada Farmers' Mut. Ins. Co., 5) P. R. 309.
An expired execution cannot be renewed: Macdonald v. Crombie, 11
S. C. R. 109 ; Barker v. Palmer, 8 Q. B. D. 9 ; Doyle v. Kaufman, 3
Q. B. D, 7; Neilson v. Jarvis, 13 C. P. 182, 183; Price v. Thomas, 11
C. B 543 ; Cole v. Sherard ; 11 Ex. 482 ; Smalpage v. Tonge, 17 Q. B. D.
644; Lowson v. Farmers' Mut. Ins. Co., 9 1*. R. 309.
A half-interest in a celebrated mare was held the subject of seizure :
Gunn v. Burgess, 5 O. R. 085.
Where an order had been made which gave an execution priority over
one in the sheriff's hands, it was held that the execution creditor, though
a stranger to the action in which the order was made, had a locus iitandi
to move to set aside the order : Glass v. Cameron, 9 O. R. 712.
The terms ", fieri Jacias " and " warrant of execution " used in the
Division Courts Act are convertible terms: Macfie v. Hunter, 9 P. R.
149.
Where a discharge in insolvency is a complete answer to the issue of
an execution, ««<- Forrester v. Thrasher, 2 O. R. 38 ; S. C. 9 P. R. 383.
A writ of execution is not a judicial act, and the court may inquire
at what period of the day it was issued : Clarke v. Bradlaugh, 8 Q. B. D
63.
A bailiff who has taken possession of goods under a writ of execu-
tion has sufficient special property in them to enable him to maintain
trespass and trover : Krehl v. Great Central Gas Co., L. R. 5 Ex. 289-
293, or to insure them against fire: Drake on Attachment, 5tli Ed. 291.
Should a mare in foal be seized under execution the right to the foat
Would follow the dam : Rogers v. Highland, Iowa Sup. Ct., 34 Alb.
L.J. 397.
It is submitted that goods sold by a bailiff under execution may be
lent by the purchaser to the debtor, and that such act is not a contraven-
tion of the Bills of Sale Act, provided it is not done for the purpose of
protecting the goods against the creditors of such debtor : Graham v.
Furber, 14 C. B. 410; Woodgate v. Godfrey, 5 Ex. D, 24; see Ex parte
Cooper. In re Baum, 10 Ch. D. 313 ; Ex parte Odell. In re Walden, 10
Ch. D. 76 ; Williams v. McDonald, 7 U. C. R. 381.
When a person assists a bailiff on exr u'^^ion, his acts may be con-
sidered as those of the bailiff: McDoigall v. vvTaddell, 28 C. P. 191.
^K*-'« •»
of seizure:
ABANDONMENT AND PRIORITV OF EXECUTION.
297
A bailiff cannot make a valid contract for the sale of the goods of a Motion
judgment debtor, af{ain8t whom he holdH a writ of execution, until he has 312
actually Hoizod the i^oods : Kx parte Hall. In re Townsend, 14 Ch. D. 132 ;
Bamis v. Ireland, 4 A. R. 141.
Unless by section 7 of this Act (whereby all judgments in Division
Courts are declared to have the same force and affect as judgments of
Court of llccord) it would seem that interest would not be recoverable
on any judgment which the party might pay independently of execution.
A right to interest ou such judgments appears to depend upon the lan-
guage here used within parenthesis: see U. v. The County Court Judge
of Essex, 18 Q. B. D. 704.
It will be observed that the Statute (R. S. O. c. 143, ss. 27
et »eq.) respecting distress for rent and taxes, provides that whatever
goods are exempt from execution they are to be exempt from distress,
and makes further provision in regard to goods which are exempt.
A return of nulla bona where there were goods is no more than an
irregularity to be complained of by the defendant, and a third party
cannot object that such a return was made at the instance of the solicitor
of the plaintiffs : Molson's Bank v. McMeekin, 15 A. R. 535.
Held also, reversing the judgment of the county court of Wentworth,
that a return of nulla bona could be properly made after the expiration of
the writ : lb.
Where the goods of a third party were seized and sold under an execu-
tion against the judgment debtor, and damages were recovered by such
third party against the sheriff and paid by the plaintiff in accordance
with an undertaking to indemnify the sheriff, an alias ji. fa. issued by
the plaintiff in spite of the sheriff's return to the previous writ, " money
made and paid to plaintiff's attorney " was set aside and satisfaction
entered upon the judgment roll ; and a summons to amend the sheriff's
return discharged : Hanna v. McKenzie, 9 C. L. T. 358.
An oxeontion is "completely executed by payment " within the mean-
ing of R. S. O. c. 124, s. 9, when the bailiff gets the money : see Clarkson
V. Severs, 17 O. R. 592.
Abandonment and priority of execution. — On chattels being seized
by the sheriff, and afterwards, by direction of the plaintiff 's attorney,
abandoned, it was held that the execution debtor could then sell and give a
good title to the goods : Gould v. White, 4 O. S. 124. A chattel seized by
the sheriff, and lent by him before return of the writ, was held no aban-
donment : Hamikon v. Bouek, 5 O. S. 664. A sheriff, having seized
goods under an execution, took a bond for the delivery thereof when he
required them, and allowed the lebtor to remain in possession and carry
on his business as before the seizure ; and while the debtor so continued
in possession, and after the return day of the writ had expired, a second
execution at the suit of another creditor was received by the sheriff ; it was
held that the second writ took precedence of the first : Castle v. Ruttan,
4 C. P. 252. As remarked by Macaulay, C J., at p. 260, in delivering the
judgment of the court, " The sheriff, in the absence of directions, acts
upon his own responsibility; and if he adopts a course which contlicts
with the rights of others, he may incur responsibility to the first execu-
tion creditor, or to tne second ; but he has no discretion to bond the
goods to the debtor or suffer him to continue the possession or use of the
goods and to prosecute his business with them as before, suspending and
deferring the execution indefinitely, and until long after its return,
without further acting upon it, and at the same time to interpose the
expired writ between the writ of another creditor and the goods " After
two ineffectual attempts by the sheriff to sell certain articles, which he
0:^
298
ABANDONMENT OF EXECUTION.
I
Section considered chattels, he left them where they were ; the execution debtor
212 removed and sold them. It was held that the seizure had not been aban-
" doned, and that the sheriff mif^ht retake them : Walton v. Jarvis,
14 U. C. 11. 640. Where the plainfff 's attorney had ordered execution
to be stayed, and afterwards telegrai.>hed the sheriff that he must act as
he thought fit, it was held that this answer was an abandonment of the
stay: Boulton v. Smith, 17 U. C. 1 . 400. The bailiff, having merely
made an inventory of the Roods seizf d under a Ji.fa., leaving no one in
possession, it was held that they were not in cmtodia legis, and therefore
could not be held against the landlord's claim for rent : Hart v, liey-
nolda, 13 C. P. 501. A sheriff having seized goods under an execution,
left them in the possession of the execution debtor upon receiving a receipt
for the same, with an undertaking to deliver them to the sheriff when
requested so to do, the landlord of the execution debtor having in the mean-
time seized and sold the goods for rent due him by the debtor, it was
held, in an action by the sheriff, that he had not at the time of the dis-
tress such a possession of the goods as prevented the landlord from
distraining for rent : Mclntyre v. Stata, 4 C. P. 248 ; see also Rob-
ertson V. Fortune, 5) C. P. 427. Long delay of a writ in a sheriff's hands
does not of itself amount to an abandonment of it, but it is evidence of it :
Mein v. Hall, 13 C. P. 518. Taking an execution by the plaintiff to the
clerk for renewal, would not be an abandonment of it : Howe v. Jarvis,
13 C. P. 4!);) ; Meneilly v. McKenzie, 3 E. ife A. 209. In an action against
a sheriff for a false return, it appeared that on the day before the plain-
tiff's writ came in, he received a_^. fa. at the suit of one K. for mere than
the value of the debtor's goods, and gave a warrant to his bailiff, who
only went to tlie debtor's shop and told him of it, because he thought
more conld be got by allowing him to go on with his business. On the
plaintiff's writ he did nothing. Tiie plaintiff's attorney wrote twice,
urging him to act and ruled him, and afterwards he returned the writ
milhi bona, K.'s writ having been previously renewed, tlie court being left
to draw inferences of fact, it was held, as a matter of fact that the sheriff
never seized : or, as a matter of law, if he did, he had abandoned the
seizure : Foster v. Glass, 2(5 U. C. 11. 277. A bailiff who has with-
drawn from possession of goods after seizure may again seize tliem if
the writ is in force : Gates v. Smith, 13 C. P. 572. As to the difference
between the rights of a subsequent execution creditor, as in Castle v.
Ruttan, and one who purchases from an execution debtor, even after
abandonment of the seizure, but while the execution is tn force, xee the
remarks of Gwynne, J., at pages 470 and 471 of 1S> C. P. in McGivern v.
McCausland ; see also 5 U. C. L. J. 250. In that connection it must
be borne in mind that a Division Court execution does not bind the goods
b'jfore seizure : Culloden v. McDowell, 17 U. C. K. 859, whereas a writ in
the sheriff's hands does. Where a writ was delivered to a sheriff, with
instructions not to levy until another execution came in, it was held that
a subsequent execution took priority: Ross v. Hamilton, E. T. 3 Vic.
Such a writ is not in the sheriff's hands to be executed : Foster,
V. Smith, 13 U. C. R. 243 ; In re Ross, 3 P. R. 394. If the bailiff is noti-
fied not to proceed and execute a writ, from that moment it loses its
priority: Bank of Montreal v. Munro, 23 U. C. R. 414; Patterson v.
McKellar, 4 O. R. 407 ; see also Kerr v. Kinsey, 15 C. P. 531 ; Trust and
Loan Company v. Cuthbert, 13 Gr. , 412. A sheriff cannot seize goods on
execution ah-eady under the seizure of a Division Court bailiff; King
v. Macdonald, 15 C. P. 397 ; but he may obtain them from the bailiff under
the Creditors' Relief Act, nee infra. The foregoing cases are principally on
^ti-fa.'s in the hands of sheriffs, but it is submitted that the principles of
them have a direct application to Division Court executions in the tiands
of a bailiff, always keeping in mind that a bailiff's right to the goods is by
virtue of a continuitw seizure. If a bailiff should enforce an execution where
EXEMPTIONS.
209
tion debtor
been aban-
V. Jar vis,
i. execution
must act as
nent of the
nng merely
ig no one in
id therefore
[art V. Key-
i execution,
inf» a receipt
her iff when
in the mean-
sbtor, it was
3 of the dis-
idlord from
e also Rob-
erift's hands
idenoe of it :
intiff to the
ve V. Jarvis,
ition against
re the plain-
)r mere than
bailiff, who
B he thought
ess. On the
wrote twice,
ned the writ
irt being left
it the sheriff
andoned the
10 has with-
jeize them if
lie difference
in Castle v.
r, even after
force, nee the
McGivern v.
ition it must
lind the goods
reas a writ in
, sheriff, with
was held that
E. T. 3 Vic.
ted : Foster,
jailiff is noti-
it it loses its
Patterson v.
1 ; Trust and
seize goods on
bailiff: King
e bailiff under
principally on
principles of
s in the hands
he goods is by
;ecution where
lie had no authority he would be liable : Davis v. Moore, 4 U. C. R. 209.
In Lossing v. Jennings, 9 U. C. R. 406, a bailiff of a Division Court,
having an execution against J. L., went to him and seized a yoke of oxen,
which he allowed him to retain on receiving by endorsement on the writ
and acknowledgment of the levy, it was held that the debtor had put it
out of his power to sell the oxen. See, also, Duffus v. Creighton, l-i
S. C. R. 740. Where a sheriff seized goods in the morning, and went
away, intending to return in the evening, and visited the property daily,
he was held to continue in possession : Beatty v. Rumble, 21 O. R.
1K4. On an execution against A., money belonging to him in the hands
of B., may be seized, but it must be shewn to be the identical money
of A.: Clarke v. Easton, 14 U. C. R. 251. Action against third party for
illegal seizure and evidence connecting him with it ; see Slaglit v.
West, 25 U. C. R. 391 ; McClevertie v. Massie, 21 C. P. 510; Tilt v.
Jarvis, 7 C. P. 145; McLeod v. Fortune, 19 U. C. R. 98; Kennedv v.
Patterson, 22 U. C. R. 556; Cronshaw v. Chapman, 7 H. & N. 1)11;
Woollen V. Wright, 1 H. & C. 554; Stevens v. Pennock, 30 U. C. R. 51 ;
Smith V. Keal, 9 Q. B. D. 340; Williamson v. Harvey, 15 O. R. 346.
Exemptions. — The following are the exemption clauses of chapter 64
of the R. S. O., and have reference to executions from Division Courts
as well as other courts :
EXEMPTION.
[R. 8. O., Cap. 64.]
" 3. The following chattels are hereby declared exempt from seizure
under any writ, in respect of which this Province has legislative
authority, issued out o% any court whatever in this Province, namely :
" 1. The bed, bedding and bedsteads (including a cradle), in ordinary
use by the debtor and his family ;
" 2. The necessary and ordinary wearing apparel of the debtor and
his family ;
" One cooking stove with pipes and furnishings, one other heating
stove with pipes, one crane and its appendages, one pair of andirons, one
set of cooking utensils, one pair of tongs and shovel, one coal scuttle, one
lamp, one table, six chairs, one washstaud with furnishings, six towels,
one looking glass, one hair brush, one comb, one bureau, one clothes
press, one clock, one carpet, one cupboard, one broom, twelve knives,
twelve forks, twelve plates, twelve tea cups, twelve saucers, one sugar
basin, one milk jug, one tea pot, twelve spoons, two pails, one wash tub,
one scrubbing bn; h, one blacking brush, one wash board, three smooth-
ing irons, all spim.'ng wheels and weaving looms in domestic use, one
sewing machine and attachments in domestic use, thirty volumes of
books, one axe, one siw, one gun, six traps, and such fishing nets and
seines as are in comnon use, the articles in this sub-division enumera^^ed,
not exceeding in vali e the sum of 8150 ;
" 4. All necessar fuel, meat, fish, flour and vegetables, actually pro-
vided for family use, not more than sufficient for the ordinary consump-
tion of the debtor and his family for thirty days, and not exceeding in
value the sum of ft40 ;
" 5. One cow, six sheep, four hogs, and twelve hens, in all not
«xceeding the value of #75, and food therefor for thirty days, and one
dog ;
" 6. Tools and implements of or chattels ordinarily used in the
debtor's occupation, to the value of #100;
" 7. Bees reared and kept in hives to the extent of fifteen hives. 50 V.
c. 10, s. 1.
Section
212
300
EXEMPTIONS.
Section
212
I I
■■1, 1
11*''! [
" 3« The debtor may in lieu of tools and implements of, or chattels
ordinarily used in his occupation referred to in sub-division (5 of section
2 of this Act, elect to receive the proceeds of the sale thereof up to $100,
in which case the officer executing the writ shall pay the net prooiiilx ol
such sale if the same shall not exceed 3100, or, if the same shall t x . .1
3100, shall pay that sum to the debtor in satisfaction of the debtor's rij^ht
to exemption under said subdivision (5, and the sum to which a debtor
shall be entitletl hereunder shall be exempt from attachment or seiiiure
at the instance of a creditor. 60 V. c. 10, s. 2.
"J, The chattels so exempt from seizure as against a debtor shall,
after his death, be exempt from the claims of creditors of the deceased,
and the widow shall be entitled to retain the exempted goods for the
benefit of herself and the family of tiie debtor, or, if there is no widow,
the family of the debtor shall be entitled to the exempted goods, and the
goods so exempted shall not be liable to seizure under attacliment
against the debtor as an absconding debtor. R. S. O. 1877, c. 60, s. H.
" Urn The debtor, his widow or family, or, in case of infants, their
guardian, may select out of any larger number the several chattels
exempt from seizure. R. S. O. 1877, o. (56, s. 4.
" 6. Nothing herein contained shall exempt any article enumerated
in sub-divisions 3, 4, 5, 6 and 7 of section 2 of this Act from seizure in
satisfaction of a debt contracted for the identical article. R. S. O. 1877,
c. 66, s. 5.
" T. Notwithstanding anything contained in the next preceding five
sections, the various goods and chattels which are now liable to seizure in
execution for debt shall, as respects debts which have already been or
shall be contracted prior to the first day of October, 1887, remain liable to
seizure and sale in execution, provided that the writ of execution under
which they are seized has endorsed upon it a certificate signed by ti 'j
Judge of the court out of which the writ issues, if a Court of Record, oi
where the execution issues out of a Division Court, by tlie clerk of tlie
court, certifying that it is for the recovery of a debt contracted before the
date hereinbefore mentioned. 50 V. c. 10, s. 3 ; 51 V. c. 11, s. 6."
A boat in lawful use by the owner, though not a fisherman, is ex inptr
Daragh v. Dunn, 7 U. C. L. J. 273.
If goods exempt are seized and sold the execution creditor is not
entitled to the money, but the execution debtor would be : Micliie v.
Reynolds, 24 U. C. R. 303.
A horse ordinarily used in the debtor's occupation not exceeding in
value 860 was held exempt from seizure under the original Exemption
Act : Davidson v. Reynolds, 16 C. P. 140. But if worth more tlian WO,
it was not : McMartin v. Hurlburt, 2 A R. 146. If worth not more than
$100, it would now be exempt.
Money received by a debtor from an insurance company by reason of
a fire destroying exempted goods is exempt from garnishment : Osier v.
Muter, l'.» A. R. 94.
Wearing apparel consists of that which is worn or made to be worn.
Cloth actuailv appropriated thereto was held to be apparel : Richardson
V. Huswell, 10 Mete. 507; «t'f also Astor v. Merrett, 111, U. S. 202.
Tools and implements.- " Tools " are mechanical instruments of
any kind for working willi. The term includes all instruments of niaiuial
of)eration, but particularly such us are used by farmers and mechanics i
Oliver v. White, 18 S. C. 241.
'!»».,;-■:**
SETTING ASIDE EXECUTION.
301
• chattelB
f section
I to »ino,
ill .X a
or"s nnht
a debtor
jr seizure
itor shall,
deceased,
Is for the
lo widow,
3, and the
tachment
iG, 8. H.
ints, their
I chattels
lumerated
seizure in
3. O. 1877,
eding five
seizure in
ly been or
n liable to
ion under
ed by tl -3
Record, oi
rk of the
before the
is ex inpt:
tor is not
Michie v.
ceedin^ in
jxemption
than »('>0,
more than
reason of
: Osier v.
o be worn,
tichardson
20-.>.
iiinents of
of uianual
nechanicB :
"Implements'" is used for things of necessary use in any trade or
mystery which are employed in the practice of the said trade, or without
which the work cannot be accompliiilied : Terms de la Ley, cited Stroud, —
462.
" Implements of trade " are those implements used in a man's trade
or business. It has been held that the expression " implements of a
debtor's trade " refers to the business of a meclianic, as a carpenter,
blacksmith, silversmith, printer or the like: Attwood v. DeForest, 19
('onn. 517. But the words used in our Act have a wider significance :
" Tools and implements of, or chattels ordinarily used in the debtors
(K'cuptdion " would cover any business and profession as well as a mechan-
ical occupation,
A music teacher's piano has been held in the U. S. to be an instru-
ment of business: Amend v. Murphy, 69 111. 338.
A steam engine used for working a threshing machine was held to be
an instrument of hn.ibandry : 11. v. Malty, 8 E & B. 712.
Setting aside an execution. — An execution would not be set aside
because issued by the clerk at his own house before office hours : Kolker
V. Fuller, 10 U. C. R. 477.
An irregular execution will not be set aside at the instance of a sub-
sequent creditor, a stranger to the execution: Perrin v. Bowes, 5 U. C.
L. J. 13H ; cases cited in notes to this cpction, ^upra ; but if judgment and
execution are fraudulent, they can both be set aside at the instance of a
subsequent execution creditor : Balfour v. Ellison, 8 U. C. L. J. 330 ;
Commercial Bank v. Wilson, 3 E. &. A. 257; see also. Glass v. Cameron,
9 O. R. 712.
Costs. — A plantiff wh has recovered a judgment for debt and costs,
and has received the debt out of court, is entitled to have execution for
costs, and a mandamua would be grauted to the clerk to compel its issue :
R. V. Fletcher, 2 E. A B. 279 ; In re Linden v. Buchanan, 29 U. C. R. 1.
As to costs where Judge has no jurisdiction, see section 207, s-s. (2),
and notes thereto.
Creditor's Relief Act. — B. B. O. c. C5, contains some important pro-
visions affecting the rights of the plaintiff under executions. By that
Act the priority among creditors by execution from the High Court and
C'ounty Courts is abolished. If, then, an execution has issued from one
of these courts, and a bailiff has levied upon the debtor's goods by selling
the same, all creditors who within one month from the time oi entry of
notice of the levy by the sheriff in a book kept in his office for that pur-
pose, are entitled to share rateably in the proceeds, subject to the pay-
ment of the costs of the creditor under whoae writ the amount was made.
During the montli other creditors may either lodge their executions with
the sheriff, or may tile with him certificates of a County Court clerk of
their claims, which certificates htive the same eff jct, as to levies made by
the siieriff, as executions.
Provisions are made by the Act for contesting claims both by the
debtor and by other creditors. Other creditors cannot, however, raise
any defence not going to the bona fides of the claim : Bowerman v. Phil-
lips, 15 A. 11. G79. The following are the more important provisions
affectnig Division Courts :
14. A creditor who has recovered a judgment in a Division Court
against the debtor may serve upon the sheriff a memorandum of the
amount of his judgment and of the costs to which he is entitled, under
the hand of the clerk and the seal of the Division Court ; and the memor-
andum so servad shall have the same effect for the purposes of this Act
as if the creditor had delivered to the sheriff a writ of execution directed
to the said sheriff from a County Court. 43 V. c. 10, 3. 7 (23).
Section
212
J.-..t
: €■:
; Mi
il
302
EFFECT OF CREDITORS RELIEF ACT.
Section
212
i
i s
1 (
Enforcing
Division
Court
claims.
A debtor notwithstanding the Creditor's Relief Act may specifically
payoff an execution, and the money will not be distributable among all
creditors. So, also, n^.y a mortf^agee whose mortgage intervenes between
the first and second executions : Davies Brewing & Malting Co. v. Smithy
10 P. R. (527.
Where an interpleader issue is directed, only those creditors who are
parties thereto share in the benefits : R. S. O. c (55, s. 4, s-a. 3 ; .51 Vic.^
c. 11, 8. 5 ; Reid v. Gowans3, 13 A. tt. 501 : Bank of Hamilton v. Durreil,.
15 A. R. 500 ; but not if the claimant abandons : Wait v. Sager, 14 P. R.
847.
The Act does not alter the legal effect of executions, nor give to firm
or separate creditors of a partnership any different rights from those
they had before : McDonagh v. Jephson, 16 A. R. 107.
After tlie sheriff had been served with this memorandum, the Division
Court creditor would, perhaps, be entitled to share in moneys realized
from lands, if the goods were insufficient : Harvey v. McNeil, 12 P. R. 362.
S9> (1) If the sheriff does not find sufficient property of a debtor leviable
under executions and claims in his hands to pay the same in full, and
the -leriff finds goods and chattels in the hands of the bailiff of a Divi-
sion (3ourt under a writ of execution or attachment against the debtor,
the sheriff shall demand and obtain the goods and chattels from t..6
bailiff, who shall forthwith -deliver the same to the sheriff, with a coj)y
of every writ of execution in his hands against the debtor, and a memor-
andum shewing the amount to be levied thereunder, including the bailiff's
fees so far as proceedings have been taken by him, and shewing the date
upon which each writ was received by him.
(2) In case the bailiff fails to deliver any of the goods, he shall p ly
double the value of the property retained, such double value to be recov-
ered by the sheriff from the bailiff with coats of suit, ai.,d to be by tlie
sheriff accounted for as part of the estate of the debtor.
(3) The sheriff shall distribute the proceeds among the creditors under
the provisions of this Act, and the Division Court execution creditors
shall be entitled, without further proof, to stand in the same position as
execution creditors whose writs are in the sheriff's hands. 43 V. c. 10,
8.9.
No lien upon the goods is given to the bailiff for his fees. Contrast
section ">6«, ante p. 46, and see notes thereto. But the fees are a liist
charge upon the goods, and are to be paid by the sheriff : 52 Y. c. 12, s 7.
By the Act to amend the law as to executions, 51 Y. c. 11, s. 4, it is
enacted :
JSI2«. Where any Division Court judgment or execu-
tion has been or shall hereafter be filed with anysheriff under
The Creditors' Relief Act, or a certificate for any claim
within the jurisdiction of the Division Court, and the same
is not paid in full, and the sheriff is unable to make the
money thereon, the creditor may obtain a return thereof
from the sheriff according to the facts, and file the same
with the clerk of the Division Court in which the judgment
was recovered, or in the place where the cause of action
arose, or the debtor, or one of the debtors, if more than one,.
CROSS JUDGMENTS.
30S
resided, and the clerk of the Division Court shall enter the a'*'^f?"
212*213
same in his proper books, and it shall thereupon become a
judgment of the said Court for the unpaid balance due
thereon as appearing by the sheriffs retura, and the claim
may be enforced in the same manner as any other judg-
ment of the Division Court.
May be enforced, — An execution at^ainst goods, a transcript to an-
other ijivision Court, a judgment summons, a garnishee summons or a
transcript to a County Court, might bu issued thereon. Tlie other means
of enforcing same, given by section 73, might also be resorted to.
And by 52 V. c. 12, 8. 7.
iil*2h. When the sheriff, under the provisions of The ^Biuas'
, , _ *■ _ leeswhoti
Creditor fi Relief Act. bikes possession of fjoods which ar • <«?ofisiii
•'I- o iig posses-
in the possession of a Division Court bailifl* under a writ ^^'j^'J^JJ''*
of attachment or execution, the costs and disbursements of ^*'®'^'''-
the said bailiff shall be a first charge upon the goods, and
shall be paid by the sheriff to the said bailiff upon demand,
after being taxed by the Division Court clerk.
Tlie baihff cannot hold the goods until his fees are piid. It woulil
seem that the sheriff cannot compel the bailiff to wait until he has
realized upon the goods. If the goodsare claimed by a third party the
riglit of the bailitf to fees would depend upon whether the goods belonged
to the debtor or the third party: Newman v. Merriman, '2(1 L. T. N. S.
31)7 ; Kce Tliomas v. Peek, 20 Q. B. D. 727 ; and it would only be right that
the clerk should not tax them until the claim had been adjudicated upon.
Slit. If there are cross judgments between the parties, j^fouts'lifa ~
the party only who has obtained judgment for the larger "" ""^^ "**•
sum shall have execution, and then only for the balance
over the smaller judgment, and satisfaction for the remain-
der and also satisfaction on the judgment for tiie smaller
sum shall be entered; and if both sums are eijual, satisfac-
tion shall be entered upon Vjoth judgments. R. S. O. 1S77,
c. 47, s. 157.
Satisfaction shall be entered upon botli judgments. — This is simply
applying tlie principle of setting off judgUKuits: Throckmorton v. Crowley,
L. R. 3 Eq. l'J6; Mercer v. Graves, I.. R. 7 Q. B. 4'.t!) ; Kx parte Griffin,
/n re Adams, 14 Ch. D. 87; Grant v. Mc Alpine, 46 U. C R. 284; Brown
V. Nelson, 11 P. 11. 121; C. P Uy. Co. v. Grant, 11 P. R. 208; Flett v.
Way, 14 P. R. 312 ; Moody v. Canadian Bank of Commerce, 14 P. R. 258.
The section does not say upon whose application tho set-off of cross
judgments may be made. We suggest that it may be made on the appli-
cation of either party as he may be advised.
A set-off will not be allowed to the prejudice of a solicitor's lien for
costs : C. P. Ry. Co. v. Grant, 11 P. R. 208 ; Flett v. Way, 14 P. R. SU ;
»ee notes to section 197.
ri"*
"^ .
304
PAYMENT BEFORE SALE.
it
if-
Sections
214-216 21 4. Except in cases brouo-ht under section 82 of this
Writs of Act, no writ in the nature of a writ of execution or attach-
where to be ment shall be executed out of the limits of the county over
which the Jud^e of the Court from which the writ issues
has jurisdiction. R. S. O. 1877, c. 47, s. 1.58.
Not to be executed out of limits of county.— Every writ of execution
or attachment must be executed withm the county from which it issues,
except in cases where the sittinj* of the court is nearest to defendants
residence, as provided in section 82.
If tlic execution of sucli writ should be attempted out of the county,
the bailiff would be a trespasser: Davis v. Moore, 4 U. C. R. 209; Camp-
bell V. Coulthard, 25 U. C. U. 621 ; Davy v. Johnson, 31 U. C. R. 158 ;
Hoover v. Crai^?, 12 A. R. 72,
removes to 315- I" casp u ])arty figaiiiHt whom a judgment has
county' been entered up removes to another county without satis-
obtainkbie fying the judgment, the County Judge of the county to
county. which the party has removed may, upon the production of
a copy of the judgment duly certified by the Judge of the
county in which the judgment has been entered, order an
execution for the debt and costs, awarded by the judgment,
to issue against such party. R. S. O. 1877, c. 47, s. 159.
The provisions of this section are very seldom resorted to. Proceed-
ings by transcript under section 217 are usually adopted.
Effect of 216. If the part}' against whon) an execution has been
execution awarded, pays or tenders to the clerk or bailiff of the
Division Court out of which the execution issued, before
an actual sale of his goods and chattels, such sum of money
as aforesaid, or such part thereof as the party in whose
favour the execution has been awarded agrees to accept in
full of his debt, together with the fees to be levied, the
execution shall thereupon be superse<lod, and the goods be
released and restored to such party. R. S. 0. 1877, c. 47,
s. 160.
Pays or tenders. — See notes to section 122.
To the Clerk or BailifT. -Tiie bailiff would only have authority to
receive it if he had an existiiKi execution in his handii : 5 U. C. L. .J. 82 ;
Preston v. Wilmot, 23 U. C. R. 348 ; Kero v. Powell, 25 C. P. 448.
The fees to be levied. — Should the proper fees ba tendered and
refused, further proceedings by the bailiff would reader him liable as a
.trespasser : Bennett v. Bayes, 5 H. & N. 391.
TIIANSCUIPT TO ANOTHEU DIVISION.
306
And remainiiifi in possession would be a trespass each day : Playfair Sections
V. Musgrave. 14 M. & W. '2M) ; Ash v. Dawnay, H Ex. '2;J7. 216-217
As to what are projjer fees, kcc the tariff; Forms 182, IHH, lUi.
It may be said tliat a return of niilln Imiiu does not entitle a bailiff
to mileiif^e : ") IT. C. L. .1. H2. There can be no mileage where seizure is
not made : 6 U. C. L. J. IHl.
Where the execution is satisfied in whole or in part after seizure and
before snle, the bailiff is entitled to iJ per cent, on tlie goods therefor : xce
taril'f, item li{ of bailiff's fees, and helms a lien thcn-for : /5'2 V. c. 12, s. 2 :
nee section ")()(('), "')^t' p. 4() ; Smith v. Antipitzky, 10 ('. L. T. H()H.
Goods be released and restored. — The object of this section is to
allow a party to settle the amoimt of debt and costs before an actual sale
of his good:* and chattels. He may do so by paying or tendering to the
clerk or bailiff of the court out of which the execution issued, such sura
of money as tiie judgment or execution, if issuefl, may call for, or such sum
as the judgment creditor agrees to accept in full of his debt, together with
the fees to be levied. When this has been done, he has a right to have
his goods released from execution and restored to him,
A defendant having recovered a judgment against the phiintiff in the
Division Court at Toronto, a transcriiit was ordered to be sent to another
Division Court at Unionville, but by some mistake in the Division Court
office it was not sent until after the debt had been paid, and the clerk of
the Toronto Court endorsed on it a direction to the clerk of the other
court to issue execution and remit the money to him when made. The
plaintiff's goods having been seized under this execution, he sued the
defendant tor having wrongfully and maliciously and without reasonable
or probable cause, caused the same to be issued and tlie plaintiff's goods to
be seized thereunder. The defendant had never interfered or given any
directions beyond instructing the, suit to be brought. Ilehl. that the
plaintiff could ntt recover; that it was his duty to protect himself by
seeing that the clerk of the Division ('ourt was notified of payment of
the debt, and there was, therefore, no malfeasance or omission on the
defendant's part. Held, also, tliat the defendant was not liable in tres-
pass, for he had not authorized the direction by the clerk to issue execu-
tion, which is no jiart of the clei'k's duty, and that neither could he have
been responsible if the attorney had directed it after the suit had been
settled: Tuckett v. Eaton, (> O.K. tSC.
In that case it was said to be a doubtful ipiestion whether, under this
section, a person whfise goods had been seized under Pivision Court pro-
cess could ha\f any further relief than the r(Murn of his goods.
til7. Tlio cU'vk of a Division Court sliall, nixm theCievk of
auy court
!il>i>]icjvtionof }i iiliiintiff or defciuUint (or hisamiit), luivinof (" .^^'i'''^''
II I \ o ," o judgment
fin uiisatiwHed jntlguu'ut in his favor in such court, prepare '^^'jl'^j'^^^.g
a transcript of the entry of the judgment, and shall ^end {{^'^"l^"''*
to
to ti aiiBUiit
»>y
tlie same to the clerk of any other Division Court, whether 'jj '^^'
in the same or any other county, with a certificate at the^i'vigion
foot thereof signed by the clerk who gives the same, and ^°"'*'
sealed with the seal of the court of which he is clerk, and
addressed to the clerk of the court to whom it is intended
to be delivered, and stating the amount unpaid uptni the
U.C.A.— 20
306
1M{()CEEI)1N(JS ON THANSCIUl'T.
Section judjrinent and the date at which the Maine was recovered :
217 •* » _ ^ '
and the clerk to whom the certificate is addressed shall, on
from
which
transcript
of judf,'-
lueut is
issued.
1VS.!|1
# S't
the leceipt of the transcript and certificate, enter the tran-
script in a book to be kept in his office for the purpose,
and the amount due on the Judgment accordin<.»' to the cer-
tificate ; and all proceedings may be taken for the enforcing
and collecting the judgment in such last mentioned Division
Court, bv the ofiicers thereof, that could be had or taken
for the like purpose upon judgments recovered in any
Proceed- I)ivisi(«i Court. [After a transcript has been issued inider
In^jfrico^" this section, no further proceedings shall be had in the Court
from which the transcript issued without an order fr<^)m
the Judge, unless the creditor, his solicitor or agent, shall
make and file with the clerk of the said Court an atti<lavit
stating: (1) That the judgment remains unsatisfied in whole
or in part; (2) that the execution issued in the division to
which the transcript was issued has been returned valla
bona, or that he believes the defendant has not sufiioient
goods in that division to satisfy the said judgment, and upon
such aflftdavit being filed, the clerk may issue such other
process as the creditor may direct.] R. 8. (). 1877, c. 47,
s. 161 ; 52 V. c. 12, s. 24.
Upon the application of a Plaintiff or Defendant. —Ilndei- tliis
section tlie clerk cannot, npon his own mere motion, prepare and send
the transcript which this section recjuires. It can only be done upon the
application of the plaintiff or the defendant, or the ajjent of either jxirty,
as the case may be. The transcript may shew whether the wliole or any
part of a judf»ment remains unsatisfied, and the clerk shall be bound to
send the same to the clerk of any other Division Court whether in the
same or any other county, with a certilicate at the end tliereof sij^ned by
him and sealed with the seal of the court of which he is clerk, and
addressed to the clerk of the court to whom it is intended to be delivered.
All proceedings may be taken. — Where a plaint was brought in
the wrong division and the defendant filed a notice disputing; the claim
and the jurisdiction of the court, but did not apnear at tlie trial, and
judgment was given against him : and subsequently transcript of the
judgment was transmitted to the court of the division in wliich defend-
ant resided, it was held, that the judgment did not thereby become a
judgment of the latter court, and prohibition was granted to the court in
which the judgment was originally obtained notwithstanding such trans-
mission: In re Elliott v. Norris, 17 0. R. 78; see Labatt v. ChishoJm,
2 West. L. T. 54. Nevertheless, the bailiff of the foreign court cainiot
be called to account by the Judge of the home court : R. v. Shropshire
(Judge), 20 Q. B. D. 242.
NOTICE OF llETURN OF NULLA BONA.
307
:i()vere(l \
hIuiU, on
lie tran-
purpose,
the cer-
Division
or taken
in any
e<l mvler
;hc Conrt
lor from
ent, shall
affidavit
1 in whole
ivision to
led iiaUii
surticient
and npon
leh other
S77, c. 47,
Under tliis
•0 and send
no upon the
ither party,
hole or any
be bound to
jther in the
)f sif^ned by
clerk, and
je delivered,
brought in
f» the claim
le trial, and
cript of the
rich defend-
jy become a
the court in
4 Buch trana-
Chisholm,
court cainiot
Shropshire
Ab the opeditop may direct.— The clause in brackets was introduced Seotiona
in the Act of 1889. The effect of it is that all proceeding's in the ori(>inal 217-218
court are stHyed after the issue of a transcript therefrom to another "
Division Court, unless: (1) The Judj»e otherwise orders ; or (2) unless the
creditor, his solicitor or aj^ent shall make and file with the clerk of such
orif^inal court, an atfidavit stating the facta set out in the language of the
context. In which case the clerk may issue such other process as the
creditor may direct.
This affidavit may be entitled in the court in which judgment origin-
ally obtained. It may be made by the judgment creditor, his solicitor
or agent; and it should follow the precise wording of the statute.
For form of affidavit »ee forms poat.
See also note to section 210, and Rules 1()1-1()3.
2IS. The clerk of every Division Conrt shall, hnniedi- g^^g^^jjoji^g
ately after ?i<(-^/(fc homt has been retnrned to an execntionofretm'uof
issned on a transcript of judgment received from another "i^caae""?
court, forward through the post office to the plaintiff, if his ora"tiaus-
address is known, or to the clerk who issued the transcript, Judgment,
at his post office address, a notice, enclosed in an envelope,
informing him of the <lato at which the execution issued,
the date at which the same was returned by the bailiff, and
the return made thereto; the notice thus sent shall be pre-
paid and registered, and the clerk shall obtain and file
among the papers in the action the post office certificate of
the registration, and the postage and charge for registra-
tion shall be costs in the cause: the absence from amongst
the papers in the action of the certificate of registration
shall be prima facie evidence against the clerk that the
notice has not been forwarded. 45 V. c. 7, s. 0.
Notice of return of nulla bona. — The clerk to whom a transcript is
sent is here required to send immediiiteUj through the post, prepaid and
registered, to tlie plaintiff, if his address is known, or to the clerk who
issued the transcript, a notice informing him : (1) When the execution
issued: (2) the date of its return; (3) the return of the bailiff thereto.
As to meaning of "immediately" sec note to section 112. The
language of this section requires the clerk to send the notice to the plain-
tiff if lii.i address is known, and it is only when his address is not known to.
him that the clerk should send it to the clerk who issued the transcript..
The object is to bring home the nature of the return to the person most
interested — the plaintiff. As the absence of the post office certificate of
the registration of the letter containing the notice may militate against,
the clerk, the importance to him of always registering such letter? will
be apparent. The absence of such certificate is only prima facie evidence
of the notice not having been sent. The statute would be virtually
complied with if there was any other evidence of the notice having been
received by the plaintiff or the clerk who issued the transcript : Campbell
308
UETUHN OF EXECUTION.
i
li. >m BP!'!
Sections v. Burne, HI U. C. R. 279. But the safest conrsu is for the olerk to
218-'i!20 rei,'ist('r tlic lottor and curefully preserve tlie certificate of re^iistration in
ail CIVHOH.
Tills Hoctioii WHS hold in Jones v. Paxton, 1!) A. R. IfiU, to have
chaiij,'((i tlu! law laid down in Buru'ess v. Tuliy, 24 (!. P. 519, and to have
renderiMl it uiineoessary to the validity of a transcript to the county
court that execution should issue out of the homo court.
Revival of
iuil»{niuiit
in ciisu of
doatli of
party to
Jud{,'nioat.
SHI* In cjiHo of the deatli of oitlier or both of the par-
ties to a jndjjfincint in a Division Conrt, the pai'ty in whose
favour tlie judgment lias been entered, or his personal
representative in case of his death, may revive the .ju<l<j^-
ment against the other party, or his personal re])resentative
in case of his death, and may issue e.Kecution thereon in
conformity with any rules which apply to the Division
Court in that behalf. R. S. O. 1877, c. 47, s. 102.
May revive such Judgment. — See Rules lHH-UyT, and forms therein
referred to.
The party who seeks to revive the judgment, or against whom it is
souglit to revive tlie same, must be duly appointed the personal repre-
sentative before a proceeding can be taken.
In Keena v. O'Hara, 10 C. P. 43.'), it was held that an action might
be revived against an executor de noii tort.
Execution 2tJO. Everv execution shall be dated on the day of its
when dated '' . "
and return-issue, and shall be returnable within thirty days irom the
date thereof, but may, from time to time, be renewed by
the clerk, at the instance of the execution creditin*, for six
months from the date of such renewal, in the same manner
and with the same effect as like writs from the Courts of
Record may be renewed under the provisions of The Execu-
tion Act. R. S. O. 1877, c. 47, s. 163 ; 43 V. c. 8, s. G4.
Within thirty days. — A writ issued on 24th April was held in force
on 24th May : Clarke v. Garrett, 28 C P. 75, The effect of which decision
is that the day of issue is excluded ; see also notes to section 109, ante
p. 148, and to section 8(), ante. p. 118.
For six months. — This means six calendar months : Inter. Act, s. 8,
S-8. 15.
The execution may be renewed "from time to time," which means
that it may be renewed more than once : see Neilson v. Jarvis, 13 C. P.
176, and other cases cited in note to section 32, p. 24, ante.
An execution need not be renewed when it has been acted upon or
levy made : Neilson v. Jarvis, 13 C. P. 170 ; see also Miller v. Beaver
M.F. Ins. Ass., 14 C. P. 399.
An execution that has expired cannot be renewed : notes to section
212, atite p. 290 ; and nothing can be legally done under it : Weston v.
Thomas, U. C. L. J. 181 ; Gardiner v. Juson, 2 E. & A. 188 ; and a sale
Rev. Stat
c. 64,
RENEWAL OF EXECUTION.
309
by the (lefendunt of hift ^oocIh would out out the execution croditoi*. or any Seotloni
one chiiniin^ under a Hupposed sale on sucli writ : Carroll v. Lunn, 7 220-223
(;. V. 510; Buffalo A L. H. Ry. Co. v. UrooksbankH, 10 U. C. 11. 337 ; nee
Hfction 212, and uoteu thereto.
The too common practice of clerkn ronewiuf^ executiouH at the in-
Btiuice of bailiffH, or of their own mere motion, in entirely unwarranted
and of no le<{al effect. The Hame view will be found expreHsed at pp.
17"i, 17(5 of L. C. (}. It is doubtful if an execution creditor could
riitifv sucli an act: lirook v. Hook, L U. Ex. p. 95 ; WeHtloh v. IJrown,
4:J U. C. K. 402; Turner v. \Vil»on, 23 C. P. 87. Certainly not, except
done iritliin tiio time for wliich the renewal was nnide : Ainswortii v.
Cieeku, L. U. 4C. P. 47(); nor perhaps at all: Taylor v. Ainslie, 10 C. P.
7H ; Prince v. Lewis, 21 C. P. C3 ; Patterson v. Fuller, 32 U. C. 11. 210.
Tlie iiutliority to tiie clerk to issue execution would not imply a ri^ht to
renew it. The unauthorized renewal by the clerk of an execution, even
if such could ba ratified, would not aflect the rights of otiier creditors
before rati lication : Ainsworth v. Creeke, Hupra ; Bird v. Brown, 4 Ex.
7!)(1 ; Hutchings v. Nunes. 1 Moo. P. C. N. S. 243 ; but xee Vanderlip v.
Bniyth, 32 C. P. (50; Bolton Partners v. Lambert, 41 Ch. D. 205.
Sw lUiles 158 and 170.
iitSI ■ Where the books, papers ami other matters in the
poHse.ssiou of any clerk, hy virtue of or appertaiiiinj^ to liis
office, become the property of the County Crown Attorney,
under section 50 of this Act, or in case of the suspension
of a clerk, the County Crown Attorney may, during such
suspension, or until the appointment and ([ualitication of
another clerk, when the same shall be presented for that
pur[)ose, renew any writ of execution issued out of such
court, which may lawfully be renewed, and the renewal
shall have the same force and eti'ect as if the same had been
renewed by a clerk of the court, and he shall be entitled to
the same fees thereft)r as a clerk for like services. 43 V.
c. 8, s. 57.
Section SO of this Act.— STce p. 40 ante.
Suspension of a clerk. — See sections 29 and 31, ante p. 23,
Renew any writ of execution. — As to when writ may be renewed,
see section 220, and notes thereto.
2SS. In case the Judge is satisfied upon application on
oath made to him by the party in whose favour a judg-
ment has been given, or is satisfied by other testimony that
such party will be in danger of losing the amount of the
judgment, if compelled to wait till the day appointed for
the payment thereof before any execution can issue, the
Judge may order an execution to issue at such time as he
thinks tit. R. S. O. 1877, c. 4 164.
Ilenewal of
(ixecutioiiB
by count)[
attorney in
certain
cases.
Judge may
order an
execution
to issue
before
regular
day.
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310
TUANSCUIPT TO COUNTY COURT.
J ,4.
m
Sections At such time as he thinks fit. — The application must be made to
222-223 the Judge, and it had better be so made upon aiKidavit in due form to be
filed in the court. Such affidavit must be made by the party in whose
favour such judgment has been given. It could not be made by any other.
Should such affidavit not be obtainable, the Judge could satisfy himself
by otlier testimony (by which is meant either affidavit or oral testimony)
that the party would be in danger of losing the amount of the judgment
if compelled to wait until the day appointed for payment thereof, before
any execution could issue, and might order an execution to issue forth-
with or at such time as he thinks fit.
From the context of this section, and the object it has in view, we are
of opinion that the application could be mada ex parte.
tionre" 22t$- In case an execution is returned niUla bona,
imifa^oiia '^"*^ ^^^^ ^^^"^ remainin<r un.satistied on the judg-ment under
niay obtahi whicli the execution issued amounts to the sum of $40, the
ranscup . plaintiff' or defendant may obtain a transcript of the judg-
ment from the clerk, under Ins hand and sealed with the
seal of the court, which transcript shall set forth,
1. The proceedings in the cause ;
2. The date of issuing execution against goods and
chattels ; and
3. The bailift''s return of nalhi hona thereon, as to the
whole or a part. R. S. O. 1877, c. 47, s. 105.
Return nulla bona.— This is a return made by a bailiff when there is
no property to distrain upon: Wliarton, 512.
If the execution should expire, nothing having been done within three
months, a return of nulla bona may be made after that time : Molson's
Bank v. McMeekin, 15 A. R. 53o.
Should a seizure be made before the execution expires, tliere need be
no renewal of tlie exocation : Noilson v. Jarvis, 18 C. P. p. 183, per
Draper, C.J. But if on such seizure, part of the money were made and
nulla bona returned as to residue, there could be a transcript for such
residue, provided it amounted to $iO or upwards.
If no execution were issued from the home Division Court, but a
transcript had been issued to anotlier Division Court and a return of
mdla bona made to tlie execution issued tliereon, there could, nevertheless,
be a valid transcript to the county court : Jones v. Paxton, 19 A. It. lOB.
The decision in Burgess v. TuUy, 24 C. P. 54i), is, on this point, not now
law.
If execution against more than one defendaiit the goods of all should
bs exhausted before a return of nulla hona : Ontario Bank v. Kerby, 16
C. P. 35 ; Molsons Bank v. McMeekin, 15 A. R. 535.
In the latter case the plaintiff recovered a judgment in the Division
Court and issued an execution thereon, under which nothing was made
and which expired by lapse of time. At the request of plaintiff's solici-
tor the bailiff returned the writ nnlla bona, although it was alleged that
there were goods out of which the debt might have been levied. Upon
this return the plaintiffs procured a transcript of their Division Court
judgment in regular form and filed the same in the office of the clerk of
!
iw, we are
len there is
THE SUM REMAINING UNPAID.
the County Court and sued out a fi. fa. goods in order to obtain the
benefit of the provisions of the Creditor'ii Relief Act. The respondent S.,
the liolder of tlie execution in the Division Court, then moved to set '
aside the plaintiff's proceedings and they were accordingly seli aside by
the County Court Judge on the ground that the judgment in the County
Court was void, being founded ou a return to an expired execution.
Held, that a return of nulla bona where there were goods was not more
than an irregularity to be complained of by the defendant. Nor could a
third party object that such return was made at the instance of the soli-
citor of the plaintiffs.
llehl, also, reversing the judgment of the County Court, that a return
■of nuUit bona could be properly made after the expiration of the writ : and
that the transcript and judgment in the County Court founded thereon
were valid and regular.
A transcript of a Division Court judgment was obtained to the Dis-
trict Court of the Thunder Bay district : Held, that it was not necessary
to issue a_/i fa. goods from such District Court before a valid sale could
take place under aji.fa. lands issued therefrom : Daby v. Gehl, 18 O. R.
182.
It was also held that, under the circumstances in that case, the defend-
ant could not set up that the proceedings under an expired writ consti-
tuted a payment of the execution debt : lb.
The sum remaining unpaid — This means the whole or any balance
remaining unpaid on the judgment, whether dobt or debt and costs. The
costs of recovering tlie judgment when taxed by the clerk and entered in
procedure book are as nmch part of the judgment debt as the principal
money or damages recovered. It is submitted that under section 7, by
which judgments in Division Courts are made to have " the same force
and effect as judgments of Courts of Record," that interest on the amount
of the judgment can be estimated underthis section. It isalso submitted
that costs of execution are part of " the sum remaining unsatisfied on the
judgment." The costs of execution are chargeable against the defend-
ant, and he could not natisfy the judgment without discharging such
costs also. So also would costs of a judgment summons. By section 301
it is declared that the Rules and Forms, when approved of, " shall have
tiie same force and effecl as if they had been made and included in tliis
Act." On referring to the form of transcript to the County Court
(Form 99), it will be seen that reference is there made to Form 98, in
which the "amount due" is made up of the debt and costs of the
judgment, " additional costs," and additional interest. The additional
costs there referred to can only mean such as costs of execution and other
authorized proceedings. It would be anomalous that a plaintiff should
be obliged to issue an execution before he could transfer his cause to the
County Court : Burgess v. Tully, 24 C. P. 549, and then that the costs of
doing so should not form part of the amount of his unsatisfied judgment.
This view is very much strengthened by the fact that the entry to be
made by the clerk of the County Court, under section 224, shall contain
the names of the parties, "the amount of the judgment, also the amount
remaining unsatisfied thereon," which amount can only be got by the
clerk on reference to the total amount of judgment, interest and subse-
quent costs appearing on the transcript as unpaid ; but see Marquis of
Salisbury v. Ray, 8 C. B. N. S. 193 ; Jte Long. Ex parte Cuddeford, 20
<3. B. D. 316.
A creditor for less than ft40, cannot attack a conveyance of land as
fraudulent : Zilliax v. Deans, 20 O. R. 539.
311
Section
223
312
Sections
223-224
Upon filing
transcript
in office of
County
Court
Clerk,
judgment
to be judg-
ment of
that Court.
•k:.
EFFECT OF TUANSCRIFT.
Tho proceedings in tlie cause. — It was held that there could be no
valid judfjineiit in tlie County Court or sale of lands founded on a tran-
script which omitted to state the issue and return of an execution in the
Division Court: Farr v. Kobins, 12 0. P. 35.
In Jacomb v. Henry, 13 C. P. 377, the sale of lands was held void
because the transcript only contained a certiiicate shewinj; tho court, the
nunics of the parties, that judf,'ment had been recovered, and when, the
several amounts of debt and costs, tliat execution had issued, and was
returned on a certain date ; but no mention of the proceedings anterior
to the judgment.
It was held also that if the transcript does not shew that the pro-
ceedings were commenced by attachment (if such was the case) the whole
proceedings on such transcript in the County Court are void : Hope v.
Graves, U C. P. 31>3 ; see also Burgess v. Tully, 24 C. P. SIJ), as to the
importance of carefully observing the provisions of the section.
In the case of Bridge v. Branch, 1 C. P. D. 633, it was held, under a
somewhat similar statute, that it was competent to the court to which
such judgment was removed to set it aside, if satisfied that it was ob-
tained in a matter over which the inferior court had no jurisdiction.
A transcript may be issued notwithstanding the pendency in the
Division Court of proceedings by way of judgment summons ; but as
soon as the transcript is issued and filed, the judgment summons pro-
ceedings cannot be continued. It is probably unnecessary to set out the
proceedings subsequent to judgment, except the date of issuing execution
and the bailiff's return of nulla bona: llyan v. McC'vrtney, I'J A. R, 423.
See Kules IGO, 102.
!J2 1. Upon lilinof the transcript in the office of the
clerk of the County Court, in the county where the judg-
ment has been obtained, or in the county wlierein the
defendant's or plaintiffs lands are situate, the same shall
become a judgment of the County Court, and the clerk of
the County Court shall file the transcript on the day he
receives the same, and enter a memorandum thereof in a
book to be by him provided for that purpose, which
me;norandum shall contain,
1. The names of the plaintiff and defendant ;
2. The amount of the judgment ;
3. The amount remaining unsatisfied thereon ; and
4. The date of filing ;
for which services the clerk of the County Court shall be
entitled to demand and receive from the person filing the
same the sum of fifty cents. R. S. O. 1877, c. 47, s. 166.
Upon filing tlie transcpipt.— The transcript must be " filed " before
the proceedings constitute a judgment of the Couuty Court : see Bobsou v.
Waddell, 24 U. C. R. 674 ; Lee v. Morrow, 25 13. C. R. p. 610; Magrath
v. Todd, 2(3 U. C. R. p. 90 ; Hunter v. Cildwell, E. T. 1847 ; Dwar. 673 ;
Stroud, 282. See Rules 160-163.
JUDGMENT OF COUNTY COURT.
3ia
It shonld be marked "filed" by the proper officer: Campbell v. Sections
Madden, Dra. R. 2 ; but, see K. v. Gould, M. T. 3 V. 224-226
Judgment has been obtained. — that is the court where judgment
was orij^inally recovered : Burj^ess v. Tully, 24 C. P. 549.
The transcript miiy be filed either i.^ the county court of the county
in which the judgment was recovered or of that in which the judgment
debtor's lands are situated. It is safer to file it with tlie clerk of the
county court of the county in which the judgment has been obtained for
if it afterwards appeared that the debtor had no lands in the county in
which it was tiled the wliole proceedings would, within the principles of
the cases cited in the notes to section 223. be void. Besides, in the event
of requiring to prove a sale of the lands, the fact of the defendants
having had lands in the county where transcript filed might have to be
proved.
It was held that if proceedings in the Division Court shew that no
proper judgment could have been recovered in that court, such so-called
judgment is void : per Moss, C.J., Samis v. Ireland, 4 A. R. 118, at p. 121.
And that by a writ of prohibition declaring that the county ccurt had
no jurisdiction, the judgment of that court becomes of no effect and
cannot be enforced, and also invalidates the judgment entered in the
superior court on a transcript from the inferior court : Labatt v.
Chisholm, 2 West. L. T. 54.
A Judgment of the County Court.— Sec notes to section 212.
The defendant is liable to be examined as to his estate and effects on
a judgment so recovered, and where in such a case he refused to attend
for examination a ca. sa. against him was upheld, although the amount
was under ^100: Kehoe v. Brown, 13 C. P. 549.
Perhaps in that case an order for commitment would have been the
proper remedy: Wallis v. Harper, 7 U. C. L. J. 72 ; Henderson v. Dick-
son, 19 U. C. R. 692 ; Ward v. Armstrong, 4 P. R. 58.
Great care should be taken in the preparation of f\,t3 transcript under
these sections in view of the authorities referred co, and it should be
carefully examined by the solicitor for the party issuing it before filing.
It may be unnecessary, in view of the authority of Daby v. Gehl, 18
0. R. 132, to issue a Ji. fa. goods from the County Court, but it is safer
to do so.
It waa decided in Kehoe v. Brown, 13 C. P. 549, that the trans^"'* to
the County Court has n<jt the effect of allowing proceedings against ...ids
merely, but is for all purposes a judgment of that court ; and in that
view, it is submitted that the ordinary course of proceeding in the
County Court had b'jttei: be taken. But sec 2 L. J. N. S. 53.
As to effect on Division Court suit, see Rule 161.
For form of transcript see Form 99.
«,'
County
Court
s
to be
ti3>>. Such book shall at all reasonable hours be acces
sible to any person desirous of examining the same, upon '^^^^^
the payment to the clerk of ten cents. R. S. 0. 1877. c. 47, ac«««"bie
s. 167.
The clerk of the County Court would be bound, upon the payment or
tender of the fee here expressed, to allow the entry in such book to be
examined by any person desirous of so doing, and his refusal to do so
would subject him to mandamus or to indictment for malfeasance in office.
See McNamara v. McLay, 8 A. R. 319 ; lie Webster and Registrar
of Brant, 18 U. C. R. 87 ; Ross v. McLay, 26 C. P. 190.
314
WHAT MAY BE SEIZED.
79 it-p^)'
Sections 336. Upon such filing and entry the plaintiff or
defendant may, until the judgment has been fully paid
may prose- and Satisfied, pursue the same remedy for tht recovery
uieiit in thereof or of the balance due thereon, as if the judgment had
Court. been originally obtained in the County Court. R. S. O.
1877, c. 47, s. 168.
Pursue the same Remedy. — See 4 U. C. L. J. 275, and notes to sec-
tioiis 223, 224.
The
interest of
337. On any writ of execution against goods and
Bor"'in**'''^ chattels, the sheriff or other officer to whom the same is
mortRaged directed may seize and sell the interest or equity of redemp-
soid in t/ion in any goods or chattels of the party against whom
execution. ^|^^ ^^^^.jj. j^^^ issued, and the sale shall convey whatever
interest the mortgagor had in the goods and chattels at the
time of the seizure. R. S. O. 1877, c. 47, s. 169.
The sheriff or other officer. — This includes a Division Court bailiff.
Equity of redemption. — See notes to sections 212 and 228, as to what
may be seized by a bailiff or other ofBcer under an execution from the
Division Court.
It must be borne in mind that an indivisible interes*^^ in a chattel
may be seized and so ^nder this section, and that such mterest is not
subject to the Bills of Sale Act, (U. S. O. c. 125), such Act beinj? in-
tended to apply only to the entire interest in a chattel : see Gunu v.
Burgess, .5 O. it. 685'; Cochrane v. Moore, 25 Q. B. D. 57.
On sale of the interest or equity of redemption in any goods or
chattels under this section, the weight of opinion seems to be that the
bailiff can only sell so as to give his vendee a right to stand in the posi-
tion of the mortgagor only, and he cannot sell the goods themselves and
transfer the possession to the purchaser : Squair v. fortune, 18 U. C. R.
547.
Wimt may
be seized
under ex.
ecution
against
goods and
cbattels.
22^. E veiy bailiff or officer having an execution against
the goods and chattels of any person, may by virtue there-
of seize and take any of the goods and chattels of such
per;son (except those which are by law exempt from seizure),
and may also seize and take any money or bank notes, and
any cheques, bills of exchange, promissory notes, bonds,
specialties or securities for money belonging to such person .
R. S. O. 1877, c. 47, s. 170.
Take any of the goods and chattels.— <S'ee notes to section 212.
Exempt from seizure. — A list of articles exempt from seizure will be
found in notes to section 212, ante, pp. 299-301
SEIZIN' MONEY AND SECURITIES.
315
LiiitifF or
ully paid
recovery
jment had
R. S. O.
lotes to sec-
;oods and
e same is
f redemp-
rist whom
whatever
iels at the
3ourt bailiff.
i, as to what
)n from the
in a chattel
terest is not
ct being in-
see Gunu v,
ly goods or
I be that the
in the posi-
mselves and
, 18U. C.E.
on against
•tue there-
Is of such
m seizure),
notes, and
es, bonds,,
ch person .
bion 212.
lizure will be
A bailiff would be a trespasser who seized and took any of the goods Section
und chattels of the person against whom he had an execution which 228
were by law exempt from seizure : gee Re Gould v. Hope, 21 O. 11. 624 ;
Bagge V. Whitehead, (1892), 2 Q. B. 355.
Securities for money. — At common law bank notes or the securities
mentioned in this section were exempt, but for Division Court purposes
they are here made the subject of seizure.
This power only applies to moneys set apart and ear-marked: Wood
V. Wood, 4 Q. B. 3!)7. Money seized under an execution is exactly in tlie
same position as money the proceeds of goods sold : CoUingridge v.
Paxton, 11 C. B. 683. Cheques were held to be seizable though in the
hands of another, e.g., the Aceountant-General of the Court of Chancery :
Watts V. Jefferyes, 3 Mac, & G. 422. So also is a policy of life assurance:
Stokoe V. Cowan, 30 L. J. Ch. 882. Any title deed, even if pledged
with the debtor for a loan, or a letter or a guarantee for some collateral
act, or any other deed or writing, which could not form the foundation of
an action by the debtor himself for a specific sum of money, cannot be
taken. But it would seem that all instruments containing an uncon-
ditional covenant or agreement tor payment of a specific sum of money
to tiie execution debtor for his own benefit are within the words "other
securities for money," and may be taken : Arch. Pract. 12th ed. 653.
The word " money" here used means specific gold and silver coin, bank
or government notes, and not debts due to the defendant : Harrison v.
Paynter, (> M. & W. 387. A surplus in the bailiff's hands, after satisfying
a former execution, even at tha suit of the same plaintiff, cannot be
seized as money : Harrison v. Paynter, sHpni ; Fieldhouse v. Croft, 4 East,
510; Sharpe v. Leitch, 2 L. J. N. S. 132; contrast R. S. O. c. 64, s. 17,
which applies only to executions from the High Court and County
Court. Nor would such money be stayed in the bailiff's hands to
satisfy a present execution : Willows v Ball, 2 N. R. 376. Garnish-
ment would be the remedy in that case : Lockart v. Gray, 2 L. J.
N. B. 1()3. Money in the hands of a third person as trustee for the
defendant cannot be seized unless it be the exact pieces of coin or
paper of the defendant-: Robinson v. Piece, 7 Dowl. 93 ; Wood v.
Wood, 4 Q. B. 397; but see, per Osier, J. A., Sullivan v. Francis, 18 A. R.
121, 126, where'.it is said that a surplus after paying a landlord and mort-
gagee would be subject to the execution. So money deposited in court in
one action cannot, when the defendant is entitled to have it paid out to
him, be paid out to an execution creditor in a second action : France v.
Campbell, 9 Dowl. 914 ; 6 Jur. 105, s. c. It would seem that money in a
defendant s pocket no more than clothes on his back can be seized on exe-
cution : see Sunbolf v. Alforcl, 3 M. & W. 248. Books of account cannot be
seized: McNaughton v. Webster, 6 U. C. L. J. 17. A money bond for
the conveyance of land is seizable by a bailiff: R. v. Potter, io C. P. 39.
So also is a fire policy after a loss has taken place and money has bac.> e
payable thereon, even though the amount has not been ascertained: The
Bank of Montreal v. McTavish, 13 Gr. 395. A license to sell liquors
would not be exigible: Re Gilmer, 17 L. R. Ir. 1. The property men-
tioned in the latter part of this section is only bound from the seizure :
MoDowel V. McDowell, 10 U. C. L. J. 48 : see also notes to section 212.
Where a mortgage of land registered under the Land Titles Act is
seized, the bailiff must lodge with the Master of Titles a certificate of the
seizure ; 53 V. c. 32, s. 7. The bailiff cannot sell any security seized by
him : Rumohr v. Marx, 2 C. L. T, 501 ; see as to powers of a sheriff,
52 V. c. 11, s. 2.
IW
31 G
BAILIFF TO HOLD SECURITIE!-;.
Section
229
Bailiff to
hold
clieqneH,
notes, etc.,
seized
under exe-
cution for
benefit of
plaintiff.
aa!». Tlie bailiff" shall for the benefit of the plaintiff',
hold any che(|ues, bills of exchange, proiniHsoiy notes,
bonds, sjiecialties, or other securities for money so seized or
taken as aforesaid, as security for the amount directed to be
levied by the execution, or so much thereof as has not been
otherwise levied or raised, and the plaintiff", when the time of
payment thereof has arrived, may sue in the name of the
defendant, or in the name of any person in whose name the-
defendaiit might have sued, for the recovery of the sum or
sums secured or made payable thereby. R. S. O. 1877,.
c. 47, a. 171.
For the benefit of the plaintiff —The "plaintiff" here mrans the
execution creditor. According to the ordinary I'ules of statutory con-
struction and the Interpretation Act, and the word " defendant " could
be read for the word "plaintiff" should the former be the execution
creditor.
Bailiff to hold securities. — After the bailifi" has made the seizure, it
would be advisable for him carefully to prepare a list of the securities
seized, shewinj^ their amounts, dates, when and by whom payable, and
to fjive notices to tire different persons liable on them of such seizure.
He should also advise the execution creditor of what he has done, so that
he niif^ht better determine whether he would proceed on them or not.
As regards such securities ai might not be due, their deposit in the
clerk's safe, or some other safe depository, would be a prudent course for
the bailiff to take. If the execution creditor should not within a reason-
able time determine to take proceedings upon those overdue, and the
others as they become due, it would be the duty of the bailiff to hand
them back to the debtor, for should he be negligent in that respect, and
the debts due upon such securities be barred by the Statute of Limita-
tions, or lost otherwise, the bailiff and his sureties would undoubtedly be
liable. Should the execution creditor's claim and all costs be satisfied
out of the proceeds of the securities seized, or discharged in any other
manner, it would then also be the duty of the bailiff to restore such of
the securities as remained in his hands to the execution debtor. Bank
stock could not be conside.-ed " money," or " other securities for money,"
within the meaning of this and the next preceding section : Ogle v.
Knipe, L. R. 8 Eq. 4ii4. Neither would shares in a building s: ciety or
other corporation : Collins v. Collins, L. R. 12 Eq. 455. On this section
generally, see I U. C. L. J. 181 and 182; Hopkins v. Abbott, L. 1«. 19 Eq.
222.
May sue in the name of the defendant.— As to the notice that
should be added to the summons, nee rule 15. The action must be brought
ir, the name of the defendant in the original suit, or in the name of any
person in whose name the defendant might have sued: see 4 U. 0. L. J.
226. If questioned, the proceedings justifying the action might
have to be proved: McDonald v. McDonald, 21 U. C. R. 62. A defendant
could not set up matters that occurred subsequently to the seizure and
notice : Dennison v. Knox, 24 U. C. R. 119 ; Jeffs v. Day, L. R. 1 Q. B.
372 ; Watson v. Mid Wales Railway Co., L. R. 2 C; P. 593 ; Brighton
Arcade Co. v. Dowling, L. R. 3 C. P. 175 ; Chishom v. Proviucial Ins.
ENFORCING PAYMENT OF SECURITIES.
317
ilHI
■Co., 20 C. P. 11; DePothonier v. De Mattos, E.B. & E. 4Cl ; Wilson v. Sections
Gabriel, 4 B. & S. 213. 229-232
The suit would be subject to all the equities between the execution ^
debtor and the dofendant : In re Matal Inv. Co., L. R. 'A Ch. 8.35 ; Rodger
V. The Comptoir D'Escompte Do Paris, L. R. 2 P. C. 3il3.
3;{0. The (let'ondant in the original cause shall not din- pofomiant
charge such action in any way witiiout the consent of the cause not to
plaintiff or of the Judge. R. S. O. 1877, c. 47, s. 172. kcdou!*^"
Shall not Discharge such Action.— See notes to section 22!». S. dis-
chart^e fiiven after seizure and notice would be set aside as a fraud : Sar-
gent V. VVedlake, 11 C. B. 7.H2; Kx parte Games, 3 H. & C. 21)4 ; Raw-
storne v. Gandell, 15 M. & W. 304.
This section preserves to the execution creditor the benefit of the
seizure by preventing the discharge of such action which might in any
way be obtained witliout his consent or of the Judge. His rights shall,
therefore, stand as they existed at the time of the seizure, and no act of
the execution debtor shall in any way prejudice them.
It is submitted that the execution creditor will be in much the same
position as an assignee of a chose in action would be in after he had
given notice to the debtor of the assignment to him.
2J$I. The party who desires to enforce payment of a
security seized or taken as aforesaid, shall first pay or
secure all costs that may attend the proceeding ; and the
moneys realized, or a sufficient part thereof, shall be paid
over by the officer receiving the same to apply on the
plaintiff's demand, and the overplus, if any, sliall be forth-
with paid to the defendant in the original action,' under the
direction of the Judge. R. S. O. 1877, c. 47, s. 173.
Pay or secure all costs. — This is declaratory merely : Auster v. Hol-
land, 3 U. & L. 740; Spicer v. Todd, 1 Dowl. 30(5; Lush's Prac. 3rd Ed.
225 ; De Colyar on Guarantees, 2nd ed. 48.
The overplus. — If more is realized than sufficient to pay the execu-
tion debt, the overplus, i" p.iy, must be forthwith paid to the defendant
in the original action under the direction of the Judge ; his order must
be first obtained.
It was held that " overplus," as used in 2 W. & M. Sess. 1, c. 5, s. 2,
means what remains after payment of the rent and reasonable charges
of distress : Lyon v. Tomkies, 1 M. & W. 602; Knight v. Egerton, 7 Ex.
407 ; Stroud, 554.
3S3- The bailiff, after seizing goods and chattels by
virtue of an execution, shall indorse on the execution the gf,od/to°'
•date of the seizure, and shall immediately, and at least JjaJe'of
eight days before the time appointed for the sale, give and give
public notice by advertisement signed by himself, and put "aie.*'** °
Tlio i)arty
wisliiii({ to
enforce
must
secure
costs.
Overplus.
Bailiff
after
318
WHEN fiOODS MAV HE WOLD.
Seiaions
232-233
Up at thrt'o oF the most puldic places in the diviHion where
the ooods and eliattels liave been taken, of the time and
j)!aee within the division wlien and where they will be
exposed to sale; and the notice shall describe the goods and
chattels taken. R. S. O. 18S7, c. 47, s. 174
After seizure. — SVe notes to section 21*2, and especially Gladstone v.
Padwick, L. K. 6 Ex. 20;J. .See also Hincks v. Sowerby, I A. 11. 113 ;
Wliimsell v. Giffard, 3 O R. 1, and cases there cited.
Date of seizure. —Sfec also notes to section 212. It is best to endorse
not only tlio day of the month, but the hour of tlio day on tiie execution.
At least eight days. — This means clear days, i.e., excludint^ the day
of postinf^ the ailvertisement, as well as the day of the sale : see note to
section 1)11, p. 12!) aiiti-.
The advertisement should be put up immediately after the seizure :
iiee note to section 112, ante p. 102.
Tliree most public places.— The policy of the law is to realize as
much as possible out of the defendant's goods ; and for that reason, the
statute prescribes the most public form of advertisement.
Notice of sale.^Any irref,'ularity in the publication of the notice, or
even the absence of notice, would not invalidate the sale, provided it was
honestly conducted in other respects; but it would subject the bailiff to
an action : Campbell v. Coultliard, 25 U. C. R. (121 ; Paterson v. Todd,
24 U. C. II. 2iMJ; McDonald v. Cameron, 13 Gr. 84; Shultz v. Reddick,
43 U. C. R. 1/55; Trent v. Hunt, 9 Ex. 14; see section 28;).
The notice must be signed by the bailiff himself to be in strict con-
formity with the section.
Even a lithographed signature would be insufficient: R. v Cowper, 24
Q. B. D. ()0, 533 ; and it is submitted that a signature by a clerk or assist-
ant would not be in conformity with the section: Monks v. Jackson,
1 C. P. I). (J83 ; R. V. Jones, 23 Q. B. D. 29 ; see, however, France v. But-
ton, (1891), 2 Q. B. 208.
A failure to comply with the provision would not, however, involve
any serious consequences, unless, perhaps, it could be shewn that by
reason of the absence of the signature, the sale was considered fictitious,
and buyers did not, therefore, attend.
The notice should be of such a character as to give intending purchasers
and others reasonable information of what is to be sold, and of the time
and place of sale.
Goods not 2J$J$. The ffoods so taken shall not be sold until the
to be sold "^^ p 1 •
till eiMht expiration of ei<>ht days at least next after the seizure
days alter ^ r> ^
seizure. thereof, unless upon the request in writing under the hand
of the party whose goods have been seized. R. S. O. 1877,
e. 47, 8. 175.
Shall not be sold until the Expiration of eight days.— If sold before
the eight days, the sale would not be void, but only irregular : see notes
* to section 232. But if the debtor suffered any damage in consequence,
the bailiff and his sureties would be responsible : Schultz v. Beddick, 43
U. C. R. 155, 161.
SHERIFF MAY INTERVENE.
31 f)
ter tlie seizure :
DB in strict con-
Tlie measure of damages would be the real value of the f,'oodB, less the
amount of execution : lb.
Pendinff the sale, tlio floods are at the risk of tlie bailiff. " If the
sheriff seize floods he is liable for them, no matter what becomes of them,
and whether he sells or not the judgment debtor, after the seizure, is dis-
charfjod as to the plaintiff and he is not liable to a second execution, and
he may plead the taking? in discharf^e of himself:" Bac. Abr K.verution
(D); Clerk v. Withers, 2 Ld. Kaymd. 1074; Hoss v. Grange, 25 U. C R.
Hi)(i.
Any person who takes or causes to betaken, without lawful authority,
goods under seizure is {^uilly of felony: K. S. C. c. IGl, s. 50; Criminal
Code, (18i»2), 8, 300.
Request in writing. — In view of the positive prohibition contained in
the section it is doubtful if a sale could lake place without a written
consent. Ordinarily a person may waive a provision intended for his
benefit, and such waiver may bo in writing or bywords or conduct:
Girvinv. Burke, 19 O. K. 204. In this case tlie statute expressly provides
tiiat the waiver must be in writin^^. A mere submission to the injury,
or a voluntary promise after the rale, not to seek redress, would be
insufiicient. After the injury had been committed, a release, or accord
and satisfaction, would have to be shewn : per Thesiger, L.J., De
Bussche V. Alt, H Ch. U. at p. 314.
The bailiff should stop the sale as soon as sufficient money is raised :
Cook V. Palmer, G B. A C. 731».
The sale is for ready money and immediate delivery, and the bailiff is
not justified, after he has sold as much as will apparently satisfy the
execution, in selling more, on the specula i ion that the actual delivery of
the goods sold may be prevented by loss or accident : Aldred v. Constable,
('. Q. H. 370.
Tlie goods must be sold within a reasonable time or an action by the
creditor will lie : Bales v. Wingfield, 2 N. & M. 831 ; Jacobs v. Humphrey,
2 C. & M. 413.
The sale need not be by public auction ; but it seems the bailiff must
bear any expense in selling in any other way : Phillips v. Canterbury, 11
M. & W. Gil).
The bailiff must w sell goods for much below their real value :
Keightley v. Birch, 3 Cai ip. 521.
Should an execution, in the meantime, have issued to the siieriff, he
would be entitled, under II. S. O. c. (»5, s. 25, to demand the goods, and
the bailiff would be bound to deliver them; but would then, under 52 V.
c. 12, s. 7, be entitled to have his fees taxed by the clerk and paid by the
sheriff on demand : see notes to section 212, ante p. 303; but these fees
would not include poundage: R. v. Ludmore, 13 Q. B. D. 415. If no
demand was made for the goods, the bailiff might sell them : VVoolford's
Estate (Trustee of) v. Levy, (1892), 1 Q. H. 772.
Should the execution debtors be a company, any execution put in
force after the making of a winding-up order would be void: R. y. C.
c. 129, 8. 17 ; and after a resolution or order for winding up by the mem-
bers under R. S. O. c. 183, and amendments, the remedy for a debt is
not by seizure, but by an order on petition to the County Court :
R. S. O. c. 183, 8, 19, sub-sec. 7; see Westbury v. Twigg, (1892),
1 Q. B. 77.
Section
233
"• Si"
.'J20
Sections
234-235
liiiilitT and
otlinr
iKit. ti) pur-
ijliast)
(<IIO(1h
EXAM[.VATI()N OF JUDOMKXT OEMTOIIS.
tilil. No dork, bailirt' or other orticor of a Divi.siou
(*ourt Hliall, directly or indirectly, ])urcliaHe any j^oods or
chattels at any sale made by any J)iviHion Court bailiff
inuler execution, iind every such purchase shall be absolute-
ly void. R. S. O. 1877, c. 47, s. 170. Hee also c. 10, s. 27.
Directly or indirectly purchase. —This scctioti jh only declaratory of
tho common law. No pfison who has, as a [)nblic ofl'icer, the salo of
any nooils or cliattoln, uotild tiither directly or indirectly be the purcliascr
thereof. Tiie bailiff is in the nature of a trustee, and it would iuvlt
do to allow seltiHh interest to contlict witli puljlic duty : sfc Kin-,' v. En«.
land, 4 B. .t S. 782 ; Williams v drey, 2;J 0. P. 5(U.
Tho words " directly or indirectly " used here mean, either by liim-
aolf or some secret aj^ent on his behalf. It has been held that tiie addi-
tion or omission of tliese words to an offence was immaterial : Todd v.
llobinson, 14 Q. B. D. 739, at p. 74() ; but Kce Stewart v. Macdonald, 11
L.J. N. S. v.).
The sale to an ofticer, or to a person for him, is void, and passes no
property; and tiie debtor would be entitled to maintain replevin or
trover against the party in possession of the t^oods : Cundy v. Lindsay,
3 App. Caa. 459.
Tiie execution debtor might also, p3rhapa, maintain an action afjainst
the officer and his sureties for misconduct, and recover any expenses he
had been put to in recovering the tioods: see Salford (Major of) v. Lever,
2o Q. B. D. 363; (1891), 1 Q. B. 108.
i|li ; ;
Jiidfiniout
debtors
may 1)0
exainhiod
at tlio
instance
of their
creditors.
EXAMINATION OF JUDGMENT DEBTORS.
2^fi, A party having an unsatisfied Judgment or order
in a Division Court, for the payment of any debt, damages
or "osts, may procure from the court wherein the judgment
has been obtained, if the defendant resides or carries on liis
business within the county in which the division is situate,
or from any Division Court into wliich the judgment has
been removed under section 217 of this Act and witliin the
limits of which Division Court the defendant resides or
carries on his business, a summons in the form prescribed
l)y the General Rules or Orders from time to time in force
^•elating to Divisiim Courts, and the summons may be served
either personally upon the person to whom the same is
directed, or by leaving a copy thereof at the house of the
party to be served or at his usual or last place of abode, or
with some grown person there dwelling, requiring him to
appear at a time and place therein expressed, to answer such
things as are therein named, and if the defendant appears
^■1
n Division
ly o(,()(ls or
ouit bailiff
je absoiute-
. 16, H. 27.
decliii'iitory of
er, tlu' Hiilo of
the purcliaac-
b would iiLVLi
' Kiu)^ V. Eng-
ither by liim-
tliat tlie iiddi-
erial : Todd v.
Miicdonald, 11
and passes no
in replevin or
ly V. Lindsay,
action ajjainst
ly expenses he
or of) V. Lever,
RS.
lent or order
bt, damages
le judgment
Eirries on liis
m is situate,
idgment has
I within the
resides or
1 prescribed
lime in force
ay be served
the same is
louse of the
of abode, or
iring him to
answer such
lant appeal's
M
WHEN SIMMONS TO HE ISSUED.
in pursuance thereof, lie maj' 1)e oxnminod upon oath touch-
ing his estate and effects, and the niannoi- and circumstances
under which lie contract, i the debt, or incmred the dani-
a'l'es or liabilitv, which formed the subject of the action and
as to the means and expectation he then had, and as to tlu;
property an<l mean;> tie still has of discharging the debt,
fhuiiages or liability, and a to the disposal he has made of
any pro[)erty : Provided, nevertheless, that before the sum-
mons shall Issue, the plaintiff, his s(»licitor or agent, shall
make and file with the clerk of the coui-t from which the
Hunnnons may issue an affidavit stating,
1. That the judgment remains unsatisfied in the whole
or in ])art;
2. That the deponent believes that the defendant sought
to be examined is able to pay the amount due in respect
of the judgment or some part thereof ; or,
3. That the defendant sought to be examined has ren-
dered himself liable to be committed to gaol under this Act.
R. S. O. 1877, c. 47, s. 177; 48 V. c. 8, s. 59; 45 V, c. 7, s. 5.
Examination of Judgment Debtors.— This section was taken ori>{i-
nally from tlie Entjlish statute, 9 A 10 V. c. 95, s. 98, so that the Enj^lish
cases upon that statute will apply equally to this
The rifjht to commit a judf^ment debtor in the English County Courts
is now given by section 5 of the Debtors' Act, 1869 ; 32 & 33 V. c. 62.
An assignee having an unsatisfied judgment would not be entitled to
issue a judgment summons without reviving: East End Buildg. Socy. v.
Slack, 60 L. J. Q. B. 359.
Debt, damages, or costs.— An examination may be had under this
section for costs, only. The debt or damages, or costs, being more than
^100, does not prevent an examination : Byi'ne v. Knipe, 5 D. & L. 659.
Judgment has been obtained. — The summons may issue from the
court in which judgment has been obtained, if the judgment debtor
resides or carries on his business within the county in which that court
is situated ; but if he resides or carries on his business in another county
the summons must issue from the court within the limits of which he
resides, upon a transcript thereto under section 217. See Rule 7.
It is not necessary that execution should issue before this proceeding
can be resorted to : Peck v. McDougall, 27 U. C. R. 360.
If such a proceeding should be vexatiously taken, it is probable the
judgment creditor would be visited with the costs of it.
Where proceedings in the suit were served upon the wrong man, who
disregarded them, and a judgment summons was issued and an order for
commitment made, and the party imprisoned, the plaintiff was held
liable for false imprisonment: Walley v. McCounell, 13 Q. B. 903.
D.C.A— 21
H21
Section
235
Affidavit
required
bufore
jiidRment
KUiiinions.
322
SERVICE OF JUDOMENT SUMMONS.
Section
23S
W„ll'
Resides or carpies on business. — See notes to section 81.
A Summons. — This does not apply to a corporation, nor can the
directors or officers be examined under this section : Dickson v. Neath &
Brecon Ry. Co., L. R. 4 Ex. 87.
The process aut|iorized by this section is in the nature of limited
execution in the nature of a ca. ««. Its object being to get the money by
coercing the perton of the debtor : Ex parte Dakine, 16 C. B. 77.
A judgmeut against the separate estate of a married woman will not
authorize her committal, and, it seems, it will not authorize her examin-
ation : In re McLeod v. Emigh, 12 P. R. 450; Scott v. Morley, 20 Q. B. D.
120; nor will it authorize an order for payment in instalments out of
income which she is restrained from anticipating, though since the
judgment she has received income : Morgan v. Eyre, 20 L. R. Jr. 541 ;
but on such a judgment in the High Court or County Courts, a.
married woman might be examined and might be committed for not at-
tending or not answering questions, the punishment being for contempt
and not by way of execution : Metrop. Loan & Savings Co. v. Mara,
8 P. R. 355 ; Pearson v. Essery, 12 P. R. 466 ; Watson v. Ont. Supply Co.,
14 P. R. 96. Under the English County Court Rules, 1892, the married
woman may be examined as to what separate estate she has : Aylesford
V. G. W. Ry. Co , 8 T. L. R. 786, (1892), 2 Q. B. 626.
On a judgment against a firm, only persons who are in fact partners,
are liable, and no right exists to examine a person who might have beeni
made liable by holding himself out as a partner: Re Young v. Parker A,
Co., 12 P. R. 646.
Any member of a firm against whom execution might issue, might be-
proceeded against by judgment summons : see notes to section 108, sub-
section 4 : Taylor v. Cook, 11 P. R. 60.
A summons under this section, and one for the commencement of the
action, cannot issue together : Bishop v. Holmes, 4 U. C. L. J. 235 ; see
section 240.
A creditor's rights against a married woman debtor, are determined by
the statute at the time the debt is contracted, and cannot be enlarged by
the debtor subsequently becoming a widow : In re McLeod v. Emigh,.
12 P. R.450.
Service of Judgment summons.— As to service see Rule 85 and sections
99 and 111 and notes thereto. It will be observed that the language of this
section differs from that used in section 99. Under this section service
would probably be considered good, if a copy was simply " left at the
house " of the defendant ; but it would be advisable for the bailiff, in all
cases where personal service could not be effected, and where there might
be some grown up person residing at the defendant's last place of abode,
to serve that person. The affidavit of service may be in the form fol-
lowing :
(Style of cause.)
"That I did on the day of , A.D., 189 ,.
serve (C D.) the above-named defendant in this cause with the annexed
(oi within) summons, by delivering a true copy thereof to and leaving it
with (£. F.) he (or she) then being a grown person dwelling at the usual
(or last) place of abode of the said defendant, at the of
I)
If the summons cannot be served a return with the reason in writing
must be made by the bailiff : see Rule 90.
It was held that in serving defendant with an order to examine him
as a judgment debtor, it was not necessary in order to obtain a ca. ta. to>
AFFIDAVIT FOR SUMMONS.
323
ison /« xoritinij
exhibit the original order unless demanded : Imperial Bank v. Dickey, Section
8 P. R. 246. See also notes to section 24'\ 238
Last place of abode. — This would not justify service upon a person,
who had left the Province and taken up his abode elsewhere, at his last
place of abode in the Province: R. v. Farmer, (1892), 1 Q. B. 637 ; but
if he went away with the intention of returning, or for tlie purpose of
avoiding service, his residence before leaving would be his last place of
abode: Ex parte Rice Jones, 1 L. M. & P. 357 ; !•.> 1>. J. M. 0. 151.
At a time and place. — "There is nothing in either the language
used or the context to shew that the examination is to be made in the
Judge's chambers at the County Town, and it would be a great hardship
to bring parties there for the purpose if a discretion existed. But it does
not. The party is summoned to be and appear at the place where the
court is held, in the division in which it issues ; and there is no authority
to require him to appear elsewhere, for the order in respect to the matter
must be entered by the clerk in like manner as any other order of the
Court:" 9U. C.L.J. 101.
Touching his estate and effects. — A defendant under judgment
summons is bound virtually to give a full exposition of his affairs : Re-
public of Costa Rica v. Strousberg, 16 Ch. D. 8 ; see section 239.
The debtor must furnish such information about his affairs as will
place his dealing in intelligible shape. It is not enough for him to say
he does not know if he has the neans at hand to qualify himself to ex-
plain : Foster v. VanWormer, 12 P. R. 597.
It is submitted that the examination of the judgment debtor is not
restricted to the period of contracting the debt, but that it may be shewn
at some anterior time, no matter how far back the debtor had property,
as to which he may be required to give an account : Ontario Bank v.
Mitchell, 32 C. P. 73.
Disposal he has made of any property.— Se« notes to section 240.
Affidavit for summons — It is important to consider the condition on
which the summons can issue under this section. An affidavit must be
made and filed as required by this section. It must be made " by the
plaintiff, his solicitor or agent." A stranger could not make it : Hersch-
*^ feld V. Clarke, 11 Ex. 712 ; Christopherson v. Lotinga, 15 C. B. N. S. 809;
Barwick v. De Blaquiere, 4 P. R. 267; Tiffany v. Bullen, 18 C. P. 91;
Frederici v. Vanderzee, 2 C. P. D. 70; Bank of Montreal v. Cameron,
2 Q. B. D. 536.
As the right to examination of a debtor depends on the making, by
one of the persons mentioned in this section, of this affidavit and the due
filing of it, care should be taken to see that such is done. This is more
import? nt in cases where the defendant does not appear, for should an
order of commitment be made against him, and enforced without these,
requirements being first complied with, the Judge, clerk and execution)
creditor, would probably be liable as trespassers : see notes to aection 249;
and prohibition might be granted : Re McGregor v. Norton, 13 P. R. 223''
PbouM the defendant appear and submit to examination, he wouldj
theicoy waive the making or filing of this affidavit, and an order could b&
made against him just in the same way as if the affidavit had been prop-
erly made and filed : see R. v. Hughes, 4 Q. B. D. 614 ; Dayfoot v. Byrens,
7C. L. T. 21.
It is doubtful if prohibition would go on a defective affidavit : In re,
Sato v. Hubbard, 8 P. R. 445.
For forms of affidavit see Forms post.
See notes to section 240.
m
if-
324
EFFECT OF DISCHARGING DEBTOR,
SiSf
lUtt;
H.ltl'
iji H'
nil
!!;:i:;
\m
^236^2°9 23®' The person obtaining the summons and all wit-
nesses whom the Judfje thinks requisite, may be examined
Exaniiiia- i ' t/
tionof upon oath, touching the inquiries authorized to be made as
■ aforesaid. R. S. O. 1877, c. 47, s. 178.
Witnesses whom the Judtfe thinks requisite. — Where the defendant
cannot or will not ^ive a full account of his circumstances, or where
his evidence is intended to be contradicted, other witnesses may be called
to shew the facts. The .Judge, however, has a discretion whether he will
hear the plaintiff or his witnesses. But the ordinary rules for dealing
with litigated matters, where money or money's worth only are involved,
are not to be applied, without more, to cases where the liberty of the per-
son is at stake : Graham v. Devlin, 13 P. R. 245.
S*i7- The examination shall be held in the Judge's
Tlie exam-
ination to
Jua'^e's chamber, unless the Judge otherwise directs. R. S. 0. 1877,
chamber, f, 47^ g^ 179,
In the Judge'r chamber. — See notes to section 235 ante p. 323.
Without this provision the examination would have to be held in open
court : Nagle-Gillman v. Christopher, 4 Ch. D. 173 ; Kenyon v. Eastwood,
67 L. J. Q. B. 455. " The simple object of the enactment is to prevent
needless exposure in open court, and to give authority to hold the exam-
ination in private ; and the practice in every court we have knowledge of
is to allow the general public to depart after the ordinary business is
over, and to make the court room the Judge's chamber for the time
being." 9 U. G. L. J. 101.
Costs.
Party ex-
amined
and dis-
oharRed
not to be
again sum-
moned.
Exception.
2t{S. The costs of the summons and of all proceedings
thereon shall be deemed costs in the cause, unless the Judge
otherwise directs. R. S. O. 1877, c. 47, s. 180.
Costs in the cause. — Costs in the cause mean the costs of the ordinary
proceedings in a suit : Cameron v. Campbell, 1 P. R. p. 173.
Unless the Judge otherwise directs. — Where proceedings are taken
in a cause vexatiously or wantonly, or without any reasonable prospect
of eliciting anything favourable to the creditor, it is submitted that the
Judge would exercise a reasonable discretion in refusing costs.
S*m. In case a party has, after his examination, been
discharged by the Judge, no further summons shall issue
out of the same Division Court at the suit of the same or
any other creditor, without an affidavit satisfying the Judge
upon facts not before the court upon the examination, that
the party had not then made a full disclosure of his estate,
effects and debts, or an affidavit satisfying the Judge that
since the examination the party has acquired the means of
paying. R. S. O. 1877, c. 47, s. 181.
9
CONSEQUENCE OF NEGLECT TO ATTEND.
325
1 all wit-
examined
»e made as
e defendant
is, or where
lay be called
jther lie will
for dealing
re involved,
y of the per-
e Judge's
i 0.1877,
p. 323.
held in open
'. Eastwood,
8 to prevent
Id the exam-
mowledge of
business is
or the time
oceedings
the Judge
the ordinary
gs are taken
,ble prospect
)ted that the
:s.
ition, been
jhall issue
le same or
the Judge
ation, that
his estate,
udge that
I means of
No further summons shall issue. — That is, a summons of the same
character.
At the suit of the same or any other creditor.— It is no part of the
clerk's duty to know whether or not a summons is in violation of this
section. The debtor should bring it to the Judge's notice. He might
move to set aside the summons, and, perhaps, might move for prohibi-
tion. Neither course should, however, be ado.pted until the fact of the
prior discharge has been brought to the plaintiff's notice, and an oppor-
tunity given him to withdraw the summons.
Has acquired the means of paying.— There are two grounds upon
which the Judge would be warranted in granting an order for another
summons.
The section does not apply to a summons from another Division
Court, but to the case of any otlier creditor in the same court.
What might be considered a full "disclosure" is a matter of
some doubt. It could hardly be said that a debtor should voluntarily
make such disclosure as this section contemplates, but it would appear
to the writer that if he made such full disclosure concerning matters
upon which the plaintiff thought proper to examine him it would be a
compliance with this section. If a plaintiff should adopt the latter alter-
native of the section, the affidavit should clearly shew what means, if
any, the defendant has acquired of paying the debt since the examina-
tion.
Sections
239-240
i
r
240. If the party so suunnoned —
1. Does not attend as required by the summons, <>r|?^Rject^w
CouRe-
quence of
allege a sufficient reason for not attending ; or
2. If he attends and refuses to be sworn or to declare
any of the things aforesaid ; or
8. If he does not make answer touching the same to the
satisfaction of the Jud<>e ; or
4. If it appears to the Judge, eithei' l)y tlie examina-
tion of the party or by otiier evidence, that the party,
{(i) Obtained credit from the plaintiff or incurred
the debt or liability under false pretences, oi" by means
of fraud or breach of trust ; or
(h) [Struck out hy ol V. c. 10, s. J ;]
{(') Has made or caused to be made any gift, delivery
or transfer of any property, or has removed or con-
cealed the same with intent to defraud his creditors
or any of them ; or
5. If it appears to the satisfaction of the Judge that
the party had when summoned, or, since the judgnient was
obtained against him, has had sufficiv^ nt means and ability
attend.
^m>»
mm
326
Section
240
UNSATISFACTORY A NSWEHS.
to pay the debt oi* damages, or costs recovered aafainst him,
either altogether or by the instahnents which the court in
which the judgment was obtained has ordered, and if he
has refused or neglected to pay the same at the time
ordered, whether beft>re or after the return of the summons,
the Judge may, if he thinks lit, order such party to be com-
mitted to the common gaol of the county in which the party
so summoned resides or carries on his business, for any
period not exceeding forty days. R. S. 0. 1877, c. 47, s. 182 ;
51 V. c. 10, s. 3.
Does not attend. — The Judge should see that the defendant has been
properly called upon to appear on the summous before proceeding. The
affidavit of service should be duly entitled in the court and cause under
Bule 138. It should also shew that the judgment debtor has been served
" ten days at least before the day on which the party is required to
appear : " Rule 85. By the same rule, service any time before the day
appointed for the appearance of the debtor " may be deemed by the Judge
to be good service, if it shall be proved to his satisfaction that such party
was about to remove out of the jurisdiction of the court."
Sufficient reason.— It is submitted that inability to pay expenses is
not a sufficient reason for not attending : Contrast, C. R. 930.
Illness, it is submitted, would be : He Jacobs, 1 Har. & W. 123 ; Boast
V. Firth, L. R. 4 C. P. 1 ; Robinson v. Davison, L. R. (i Ex. 269 ; R. v.
Wellings, 3 Q. B. D. 420. See section 241.
Unsatisfactory answers.— In Crooks v. Stroud, 10 P. R., 131, it
was held that a satisfactory answer upon an examination as a judgment
debtor, according to the then statute (R. S. O. (1877), c. 50, s. 305), meant
more than that the answer should be a full, proper and pertinent answer
to the question. It seems that the answer should show a satisfactory
disposition of the property, and that the illegal and wrongful dispositi&xi
of his money by gambling, horse-races or otherwise should be disclosed,
and would be unsatisfactory: see Mclnnes v. Hardy, 7 U. C. L. J. 295..
But in Hobbs v. Scott, 23 U. C. R. 619, it was said, that the word
•' unsatisfactory " could not be interpreted in that sense ; and the latest
test suggested is : are the answers sufficient to satisfy a reasonable
person that full and true disclosure has been made? Graham v. Devlin,
13 P. R. 245.
An answer in which the person declares his ignorance or oblivious-
ness of a transaction cf which it is manifest he cannot be ignorant or
oblivious, is " unsatisfactory : " Ex parte Bradbury, 14 C. B. 15.
Where a debtor did not, in his examination, give a full explanation
for want of knowledge, he was ordered to qualify himself by obtaining
full knowledge of all his transactions: Foster v. Van Wormer, 12 P. R.
697 ; see also, Lemon v. Lemon, 6 P. R. 184 ; Schneider v. Agnew, 6 P.
R. 338.
Fraud or breach of trust. — Credit must have been obtained, or the
debt incurred by false pretences, and strict legal proof of it must be given :
sees U. C.L.J. 196.
SUFFICIENT MEANS, ETC., TO PAY.
327
ainst him,
e court in
and if he
the time
summons,
;o be com-
the party
s, for any
47,8.182;
int 1ms been
leding. The
cause under
i been served
required to
fore the day
by the Judge
t such party
J expenses is
0.
. 12.H; Boast
;. 269 ; R. v.
, R., 131, it
a judgment
. 805), meant
nent answer
satisfactory
I dispositicii
be disclosed,
, L. J. 295. .
at the word
nd the latest
I reasonable
,m V. Devlin ,
or oblivious-
ignorant or
15.
explanation
by obtain inj,'
ler, 12 P. It.
Agnew, () P.
lined, or the
ust be given :
'* In ordinary parlance, we speak of obtaining money or property by
false pretences as indicating the criminal offence of obtaining the same
by false pretences with intent to defraud : " per Harrison, C, J., Crawford
V. Beattie, 39 U. C. R. at p. 29.
The debtor must, at the time of obtaining credit, have knowingly
made a false statement of past or present fact, and the creditor must have
been induced to give credit by relying on such statement : Criminal
Code, 1892, s. 358.
A "breach of trust" would be the non-payment of money which the
defendant had received for the plaintiff upon any express or implied
trust. An auctioneer would fall within this category : Crowther v.
Elgood, 34 Ch. D. 691 ; Criminal Code, 1892, s. 363.
As to fraudulent acts justifying commitment, see 4 U. C. L. J. 12, 61 ;
9 U. C. L. J. 121; Winks v. Holdon, 1 L. J. N. S. 100.
Paragraph (b) of sub-section 4, which read thus : " Wilfully con-
tracted the debt or liability without having had at the time a reasonable
expectation of being able to pav or discharge the same," was struck out
by 51 V. c. 10, s. 3.
Gift, delivery, or transfer of any property.— The property may be
either real or personal : Kidd v. O'Connor, 43 U. C. R. 193.
This paragraph of the subsection also describes a criminal offence :
R. S. C. c. 173, s. 28 ; R. v. Henry, 21 O. R. 113 ; Criminal Code, 1892,
s. 368.
A transfer which merely amounted to a preference, would not be with-
in this provision : May on Fraudulent Conveyances, 100.
SufHcient means and ability to pay.— This must mean with reference
to the necessities of the debtor and his family. Equitable estate can be
looked at for the purpose of determining it the debtor has had sufficient
means: Bennett v. Powell, 1 Jur. N. S. 719.
Where the debtor lived in good style as a country gentleman, but his
horses, carriages, etc., all belonged to his wife, an order for his committal
was, nevertheless, affirmed : Harper v. Scrimegeour,5 C. P. D. 366. But
this was a decision upon a mere question of fact, and is not binding on
any court ; and the onus is upon the creditors to prove sufficient means :
Chard v. Jervis, 9 Q. B. I). 178. 6iVe also, 18 L. J. N. S. 390 ; Re Ross,
29 Gr. 385 ; Dillon v. Cannin;;ham, L. R. 8 Ex. 23; Esdaile v. Visser, 13
Gh. D. 421 ; Newell v. Van Praagh, L. R. 9 C. P. 96 : Debeiiham v. Ward-
roper, 48 L. T. N. S. 235.
Altogether or by instalments.— Power is given by sections 145 and
246 to Older the payment of a judgment by instalments.
The Judge must adjudicate, in case' no order has been made for pay-
ment in instalments, that the debtor has had sufficient means and ability
to pay the judgment.
An order cannot be made that the debtor pay the debt by a certain
time or in instalments, or in default be committed : Chichester v. Gordon,
25 U. C. R. 527 ; lit Woltz v. Blakely, 11 P. R. 430 ; R. v. Judge of Bromp-
ton County Court, 18 Q. B. D. 213.
But if the Judge adjudicates that the defendant has had means, he may
order his commital, but may suspend the issue of the order and direct
that it shall not iisue if the defendant pay the debt or instalments ;
Stonor V. Fowle, 13 App. Cas. 20
The Judge may if he thinks fit.— Scv note to section 8, ante, page 5 ;
>note to section 168, ante, page 241.
Section
240
«r r
tfmmmm
328
JUDGE MAY ORDER COMMITMENT.
Section
240
11 ill
Order such party to be committed. — If the Jud^e orders a party to
pay the mouey at a future day, or in default to be committed, and the
party again makes default, he cannot be committed without an opportu-
nity of being heard as to the cause of such default: Abley v. Dale, 10-
C. B. fi2 ; gee ex parte Kinning, 4 C. B. 507 ; Kinning v. Buchanan, 8 C. B.
271 ; Baird v. Story, 23 U. C. R. 624.
Judgment for debt and costs was given against B., and an
order made to pay by instalments. B. made default, and a.
judgment summons was issued, upon which lie was examined and
committed for seven days, upon the ground that he had the
means of satisfying the judgment and refused to do so. He was
subsequently summoned and committed two several times for forty
days, each on the same ground. Held, that there was power to commit
for default of the same kind is often as default is committed :
lioyce, In re, 2 E. & B. .')21. A vvr rant of commitment, stating that " it
appeared to tlie satisfaction of the Judge that the defendant had obtained
credit from the plaintiff under false pretences, and had made a gift, de-
livery or transfer of his property, with intent to defraud his creditors, and
thereupon the Judge by a certain order did adjudge, etc. ,'• not being in the
nature of a conviction, is not bad for stating in the alternative the mode
by which tlie offence was committed : Purdy, Ex parte, 9 C. B. 201.
Where a defendant does not attend on judgment summons, and a warrant
of commitment is issued in consequence, payment made to the plaintiff
will prevent the execution of the warrant : Dakins, Ex parte, 16 C. B. 77;
Re McLeod v. Emigh, 12 P. R. 450. An order on which a warrant of com-
mitment was founded, that defendant pay the debt at a future given day
or be imprisoned for thirty days, was held bad : Dews v. Riley, 11 C. B.
434 ; 4 L. C. G. 65. It follows from Abley v. Dale, 10 C. H. 62, and the
case just quoted of Dews v. Riley, that if the Judge postpones the ordering
of commitment of the defendant after examination, he must have an
opportunity of being again heard: nee also Bulien v. Moodie, 13 C. P. 126;.
2 E. & A. 37S), s. c; /;/ re Hicks, 5 P. R. 88. But if in the presence of the
defendant, the Judge orders his commitmi'in^ then there is no necessity
for any other summons : Baird v. St;
not reside or carry on business in thi
Regan v. McGreevy, 5 P. R. !»4. A-
payment cannot be embodied in the c
ning, 4 C. B. 507 ; see further notes to
L. R. 2 H. L. 220; R. v. Oxford, L. R.
109.
C. R. 624. One who does
:■- ■ro;j could nov. be committed ::
,.• of commitment upon non-
i order to pay : Kx parte Kin-
10! ; see Thorpe v. Browne,
^. B. 471 ; notes to sections 81,
Where an order was made to commit the defendant to prison in default
of payment of amount due on a judgment, but he was never arrested nor
imprisoned under the order which, under the English County Court Rules,
expired a year from its date: Held, upon motion for prohibition that as
no arrest nor imprisonment had ever taken place upon this order before
its expiration, and as the defendant was still in default, the County Court
Judge had power to make a second order of commitment : R. v. Stonor,
.59 L. T. N. S. 669 ; 57 L. J. Q. B. 510. As to life of warrant under our
Division Courts Act, see Rule 101.
Where a plaintiff had compounded with a debtor, it was held that the
default in payment of the composition was to remit the plaintiff to the
position he occupied before the proceedings in respect of the composition,
and that consequently where an order had been made for payment by the
defendant proceedings could be taken on such order for non-compliance
with it on such default : Newell v. Van Praagh, L. R. 9 C. P. 96.
As to what is meant by the term " visible means," see Lee v. Parker^
13 Q. B. D. 835.
NON-ATTENDANCE MUST BE WILFUL.
82^
By the express terms of this section, the case of Evans v. Wills, 1
C. P. D. 221), would not apply, and the debtor could be committed more
than once.
The jurisdiction of the superior courts in reviewing committals by an
inferior court, is limited to the consideration whether there were materials
upon which the Judge ordering the committal could have reasonably in-
ferred contempt, and whether the form of committal is in accordance
with the forms laid down in the section : B. v. Jordan, W. N. (1888), 152 :
HG W. R. 589, 79(5.
An order of committal should state in what particular the person
committed was guilty of default : li. v. Lambeth, C. C. Judge, 3(5 W. R.
475 ; but this applies only to the formal order, and not to a mere minute
made on the pronouncement of the decision : Harris v. Slater, 21 Q. B. D.
359.
For Form of Order, see Schedule of Forms.
For Forms of Warrant, see Forms, 93, 94.
34 1 • A party failing to attend according to the v»-
(iuirenient.s of such summons, wliall not he Hable to be com-
mitted to gaol for the default, uidess the Judge is satisfied
that such non-attendance is wilful, or that the party has
failed to attend after being so summoned ; and if at the
hearing it appears to the Judge, upon the examination of
the party or otherwise, that he ought not to have been so
summoned, or if at the hearing the judgment creditor does
not appear, the Judge shall award the party summoned a
sum of money by way of compensation for his trouble and
attendance, to be recovered against the judgment creditor
in the same manner as any other judgment of the court.
R. 8. O. 1877, c. 47, s. 183 ; 48 V. c. 8, s. 60.
Such non-attendance is wilful. — It is often a difficult matter to
determine when a defendant's failure to attend is the wilful non-attend-
ance. It is also difficult to say whether a Judge should receive evidence
affirmatively shewing tliat fact, or whether the non-attendance is -prima
facie evidence of its being " wilful." It has been said that " wilful, is a
word of familiar use in every branch of the law, and although in some
blanches of law it may have a special meaning, it generally, as used in
Courts of Law, implies nothing blameable, but merely that the person of
whose action or default the expression is used is a free agent, and that
what has been done arises from the spontaneous action of his will. It
amounts to nothing more than this, that he knows what he is doing, and
intends to do what he is doing, and is a free agent " : per Bowen, L.J.»
lie Young and Harston, 31 Ch. D. 174 ; see also Squire v. Wheeler, 1(5
L. T. N. S. 93 ; Carpenter v. Mason, 12 A. & E 629. But it has been
said, also, that the word " wilfully " is sometimes used as denoting evil
intention ; in fact that such is the common use of the word in the Eng-
lish language, and that a surveyor was not guilty of the offence of " wil-
fully receiving " a higher fee than he was entitled to when acting under
an honest mistake: R. v. Badger, G E. & B. 137; Smith v. Barnham^
1 Ex, D. 419 ; Miles v. Roe, 10 P. R. 218.
Sections
240-241
In what
cases ouly
the party
summoned
may be
committed
for non-
atteud-
ance; costs.
allowed
him in
certain
cases.
^30
WARRANT OF COMMITMENT.
Sections
241-242
Commit-
ment ill
cane of
refusal.
After being so summoned. — Formerly the section required the judg-
ment debtor to be twice summoned ; but a second judgment summons is
' now unnecessary. Nothwithstandingthe provisions of section 285, in re-
gard to the service of the judgment summons, bailiffs should in all cases
use their best endeavours to effect personal service, and should only make
service at the debtor's house when they have exhausted all reasonable
efforts to effect personal service. The consequences of not attending on
a judgment summons are now so serious tc a defendant, that his liberty
should not be dependent on the contingency of his attention being called
to the summons by some one else.
Compensation for liis trouble and attendance.— If a creditor, know-
ing that his debtor has been unfortunate, or if when the summons was
issued he knew that the debtor had no means beyond what afforded him-
self and family a scanty subsistence, or under other circumstances of a
like character, nevertheless has the debtor summoned under section 240,
and the Judge makes no order, it is submitted that a wise discretion
would be exercised in making the creditor pay the debtor for his trouble
Apd attendance under this section, and also bear the costs of the proceed-
ings under section 2H8.
The words " shall award " appear to leave the Judge no discretion if
application is made, but are imperative. The Judge could probably
award the debtor "a sum of money by way of compensation " if there
should be a violation of section 289. This is mentioned as an instance.
There may be others, no doubt.
S4S. Where an order of coinrnitmeMt as aforesaid has
been made, the clerk of the court shall issue, under the seal
of the court, a warrant of commitment directed to the
bailiff of any Division Court within the county, and the
bailiff may by virtue of the warrant take the person against
whom the. order has been made. R. S. O. 1877, c. 47, s. 184.
Order of Commitment.— The Judge's endorsement on the judgment
summons was held to bo the order upon such summons, and a subsequent
order was held to be illegal: In re McLeod v. Emigh, 12 P. R. 450; R.
V. Judge cf Brompton, C. C, IB Q. B. D. 213; B. C. sub nom Stonor v.
Fowle, 13 App. Gas. 20 : but -. minute taken by the clerk would not be
the order, and the order may be drawn subsequently to its pronounce-
ment : Harris v. Slater, 21 Q. B. D. 359.
Warrrant of Commitment. —The clerk should, in issuing the warrant,
be careful to see that three calendar months from the date of the entry
of the order of commitment in the procedure book have not expired : Rule
101 ; Hayes v. Keene, 12 C. B. 233.
If they have, he would, in the event of the debtor's arrest be liable as
a trespasser : Lawrenson v. Hill, 10 Ir. C. L. R. 177 ; Pedley v. Davis, 10
C. B. N. S. 492 ; but see Ex parte O'Neill, 10 C. B. 57.
The warrant must, in addition to being under seal, be dated, otherwise
the arrest would be illegal : In re Fletcher, 1 D. & L. 726 ; see Forms 93
and 94.
On motion to discharge a prisoner from gaol it was held that the
Habeas Corpus Act of Ontario, R. S. O. c. 70, s. 1, enables a person con-
lined under civil process to obtain the writ ; and that a warrant of com-
mitment which did not shew that it appeared to the satisfactior of the
Judge that the debtor had sufficient means to pay the debt or damages,
EXECUTION OF V7A tRANT.
881
by instalments, which the court had ordered, was defective, and that the
debtor could not be imprisoned for non-payment or disobedience of the
order to pay: lie Gesner, per Osier, J., (not reported). See also, R. v. "
Lambeth, C. C. Judge, 3G W. R. 475.
The Bailiff of any D. C. within the County :— The warrant need not
be executed by the bailiff of the court from which it issues. The bailiff
of any court within the county has equal power to do so. But the war-
rant should be directed to the bailiff who is to execute it.
But it would seem from this and the next succeeding section that the
debtor could only be arrested within the county where the warrant
issued.
Take the person. — " On receiving a warrant, the officer should see that
it lias the seal of the court and the signature of the clerk; and further, if a
commitmont for contempt, that it also has the seal and signature of the
.Judge to it. The arrest may be made at any time of the day or night, but
must not be made on a Sunday : " 4 U. C. L. J. 02 ; 2!) Car. II. c. 7, s. (>. If
tlie debtor is ordered to be committed any time after examination, and
the bailiff is negligent in executing the warrant, he and his sureties would
no doubt be liable : sec 4 U. C. L. J. 62.
The following is a very good guide to a bailiff as to his duties in
executing a warrant : " The bailiff will not be justified in breaking open
tlie outer door of a person's dwelling house to execute a warrant, nor
iudeed in the use of any force to effect an entrance, even to the breaking
of a latch : " 5 Coke, 92.
An arrest under such circumstances would be void, and render the
bailiff liable to an action : nee Hodgson v. Towning, 5 Dowl. P. C. 410 ; but,
luiving once got in, he may break any inner door ; so he may break open
the outer door of a barn, stable or out-house. But what has been said
liefore as lo executions against goods will apply in this particular to the
(•xecution of warrants ; and the caution is repeated, that even when force
is necessary, a demand for admission should he first made, and all fair
mems resorted to before force is employed. Although an officer having
reason to believe that a party is in his house, may peaceably enter to
arrest him, yet he cannot justify even a paaceable entry into the house of
a stranger, except by proof that the party was actually there : Cook v.
Hilt, o Taunt. 765 ; Johnson v. Leigh, 6 Taunt. 246. If after being once
arrested, tlie party escape ar.d shelter himself in the house of another, the
bailiff may enter and take him, provided it be done on frexh pursuit : Coke,
'.t2. The bailiff should always keep this in his mind, that if a defendant
escape from custody through his negligence or want of precaution, ho will
be liable to plaintiff ; it may be, to the whole extent of the claim : 4
TJ. C. L. J. 62, 63. " To constitute an arrest, the party should, if possible,
be touched by the officer ; bare words will not make an arrest without
laying hold of the person or otherwise confining him. But if a bailiff
come into a room and tell a party he arrests him and locks the door,
this is an arrest, for he is in the custody of the bailiff ; or if in any other
way the party submit himself by word or action to ba in custody, it is an
arrest. Tlie bailiff, whether known as such or not, ought to produce his
warrant if required ; but should in no case part with the possession of it.
If the party snatch or take the warrant, the bailiff may force it from him,
using no unnecessary violence in so doing. As in case of a constable
where resistance is made, the utmost caution and forbearance should
be used ; but the bailiff may lawfully use force to overcome resistance —
that force not exceeding the necessity of the case, and ceasing the instant
resistance ceases. Wher'^ver difficulty is apprehended in effecting an
arrest, the bailiff may call any constable or peace officer to his assistance,
as constables and peace officers within their respective jurisdictions will be
Section
242
332
CONSTABLES TO ASSIST.
Sections bound to aid tlie bailiff to muke an arrbst. It would seem that where the
242-243 bailiff uHes proper precaution, and acts with reasonable firmness, he is n<>t
liable in case of a rescue bein^ made. When an arrest is made, the party
arrested should be at once brouf^lit to (^aol, unless indeed he pay the
amount mentioned in the warrant, with the costs ; and there seems no
objection to the bailiff taking it from him, although perhaps in strictness
he would not be warranted in doing bo No more force or restraint
should bo imposed on the prisoner than is ilfecessary to prevent his escape,
and no delay should be made in placing the party in gaol. The warrant
is left with the gaoler. The bailiff should obtain a memorandum from
the gaoler of his having received the warrant and the party named therein
from the hands of the bailiff. A? in jther cases, the bailiff must make
return to the clerk of v.'liat lie has doi<e under the warrant:" 4 U. *'. L.J.
HB ; nee also notes to section 240. As to tlie indorsement on the warrant
by the bailiff after arrest, see rule 103. Qmere : Should a Judge, if in
doubt as to the validity of a commitment on application to discharge tlie
debtor, presume in favour of libertv and discharge him ? See In re Beebe,
3 P. K. '270 ; R. v. Jordan, 3G W. R. SS'J.
In Sandon v. Jervis, E. B. & E. 935, it was held that a sheriff's officer,
under execution of a ca. »(«., by putting his hand into a debtor's dwelling-
house by an opening in a window caused by a pane having been broken
in the scutHe. but not by the officer, touclied the debtor who was inside
tile house, and then said, " You are my prisoner," — was an arrest.
But if an officer opened a window (which was shut but not fastened)
of a house for tlie purpose of making an arrest, it would seem that the
arrest is unlawful: Nash v. Lucas, L. l\. 2 Q. B. P'JO ; Angleliart v.
llathier, 27 C. P. 97.
A bailiff could beheld responsible for not arresting : Burnliam v. Hall-
15 L. J. N. S. 204.
If it had not been for D. C. Rule 101, there would not be a limit to the
time within which a warrant of commitment could be executed : Her-
mitage v. Kilpin, L. R. 9 Ex. 205.
We do not see that the bailiff could after arrest properly receive the debt
and costs and discliarge the debtor from custody : ArnoCt v. Bradlv,
23 C. P. 1 ; Burntuim v. Hall, 44 U. C. R. 297. See sections 216 and 244.
For forms of Judge's orders of adjudication in cases under this section.
see post.
ConBta'
bles, etc.,
S4!i. All con.stables and other peace officers within
to execute their respective jurisdictions shall aid in the execution of
warrants. *■ "'
every such warrant, and the gaoler or keeper or the gaol
of the county in which the warrant has been issued, shall
receive and keep the defendant therein until discharged
under the provisions of this Act or otherwise by due
course X)f law. R. S. O. 1877, e. 47. s. 185.
All Constables, etc., shall aid in the execution. — A refusal to " aid
in the execution " of a warrant of commitment would be a misdemeanor :
R. V. Sherlock, L. R. 1 C. C. 20 ; Crimimal Code, 1892, 142.
See notes to section 52, and also notes to last preceding section.
By due course of law. — If the gaoler should keep the debtor in prison
longer than the law allows, according to the facts appearing on the face
of the warrant, he would be liable: Moane v. Rose, L. R. 4 Q. B. 486 ;
Jl'DGE MAY ALTER OHDEH.
383
and if the debtor sh. iild escape, the f»aoler would also be liable : Alsept
V. Eyles, 2 H. Bl. 108, even though he escape tlirout,'h a relaxation of the
prison rules on account of the debtor's ill health : Haines v. East India
Co., 11 Moo. P. C. 39; or the insufficiency of the ^'oal : Rowan v.
McDonell, H. T. 3 Vic: K. & J. 1024.
As to the dama(;es in a case against any officer or gaoler for an escape :
i<('c MacHae v. Clarke, L. R. 1 C. P. 403 ; ante p. 28.
The imprisonment commences to run from the day on whicli the
prisoner is actually lodged in gaol : Ex parte Foulkes, 15 M. & W. ()12.
A gaoler acting in obedience to a warrant valid on its face, is protected,
if he does not detain the prisoner longer than the period mentioned
therein, although he may have been '.n custody prior to the day of his
delivery to the gaoler : Henderson v. Preston, 21 Q. B. D. 362.
Sections
243-34S
rnham v. Hall-
344. Any pernon iinpriHoned iinik'r this Act. who lius aVbtor
satiHfied the debt or demand,, or any instahiient thei-eoi" shau^ 'be ^
payable, and the costs reniaininj^' due at the time of the ""' """^*"^-
order of imprisonment being made, together with the costs
of obtaininof the order, and all subse(pient costs, shall, upon
the certificate of such satisfaction, signed by the clerk of
the court, or by leave of the Judge of the court in which ^
the order of imprisonment was made, be discharged out of
custody. R. S. O. 1877, c. 47, s. 186.
Shall be discharged. -The gaoler would have no power under this
section, to receive the money and allow the defendant to go at large :
Arnott V. Bradley, 23 C. P. 1.
The proper course to pursue would be to pay the amount to the clerk
of the court from which the warrant issued, get a certificate from him of
such satisfaction, upon which or by order of the Judge the defendant
would be entitled to his discharge.
The gaoler would be bound to liberate the defendant on the certificate
of the clerk or on an order of the Judge, either of which the gaoler should
retain as his security. In the case of a discharge by the order of the
Judge on the payment of the default, as remarked by Jervis, C.J., in the
case of Ex parte Dakins, 16 C. B. at page 93, " When the money is paid,
the Judge becomes a mere ministerial officer to order the discharge. He
has no discretion. The prisoner is entitled to the order as a matter of
course."
It is important to bear in mind that the order for commitment is not
a process of contempt, but limited execution : /fe Ryley. Ex parte
Official Receiver, 15 Q. B. D. 329 ; lie McLeod v. Emigh, 12 P. R. 4o0.
345. The Judge before whom the summons is heard Judge may
may, if he thinks fit, rescind or alter any order for payment a"d may
• 1 1 • 1 <• 1 1 1 n alter and
previously made against a derendant so summoned before "lodify the
^ . , . same.
hiin, and may make any further or other order, either for
mmmmmm''^
:V.U
DKHT NOT EXTINCU'ISHED,
M
*»Ji^2?J the payment of the whole of the <lebt or (lainai>'es recovered
ami costs forthwith, or by instalments, or in any other
manner that he thinks reasonable and just R. S. (). 1877,
c. 47, s. 1.S7.
May rescind or alter any order.— This section is substantial] v
taken from the iOn^lish Statute 'J A 10 V. c. 5)5, s. 100; xec. also Vi
& VA V. of Enf,'land, c. 101, section 1. Power is here ^jiven to the
Judge, on the liearing of a judgment summons, if he thinks fit, to mould
the judgment of the court to suit the debtor's means and circumstances.
The words "previously made" used in this section, it is submitted,
have reference to any order that may have been made under the 1 15th
section, or on any previous judgment summons : see Davis, C. C. Acts,
14G.
When imr- 24<f. In case the defendant in an action brought in a
ties may be _ _ _ "
examined. Division Court has been personally served with the sum-
mons to appear, or personally 4ippears at the trial, and
judgment is given against him, the Judge, at the hearing of
the cause or at an a<ljournment thereof, may examine the
H- the defendant and the plaintiff and any other person
touching the several things hereinbefore mentioned, and
may connuit the defendant to prison, and make an order in
like manner as he might have done in case the plaintiff had
obtained a sunnnons for that purpose after judgment.
R. S. O. 1877, c. 47, s. 188.
Judge may examine Defendant, etc.— This is seldom resorted to.
It can only be done where the defendant has been " personally served "
with the summons, or " personally appears." Should a defendant have
the means of payment of a debt, and the Judge were satisfied that he
would leave the country before a judgment summons could be heard, he
would probably act upon this section. The Judge, however, can under
this section nake any order he has authority to make on a judgment
summons ; see notes to section 235.
\vm
ii«i
Debt not to 247*. No imprisonment under this Act shall extinguish
guiBhed by the debt or other cause of action on which a judgment has
ment, been obtained, or protect the defendant from being sum-
moned anew and imprisoned for any new fraud or other
default rendering him liable to be imprisoned under this
Azi, or deprive the plaintiff of any right to take out execu-
aon against the defendant. R. S, O. 1877, c. 47, s. 189.
\l
11 extinguish
udsfment has
AH.S«'(>NIHN(i DEMTOHS.
885
Any new fraud or other default. — At common law imprisonment on Seotloni
final proceaa was generally considered a satisfaction of the plaintiff's 247-349
dobt. But it is not so under the provisions of this section : gee Evans v.
Wills. 1 C. P. D. 220.
The Judge can commit for as many defaults in payment as the facts
warrant. There should bo a fresh adjudication every time: In re Boyce,
2 E. & B. 521 ; see notes to section 240.
It is submitted that the reasonin({of the case last cited, and especially
of the judiiments of Colerid^^e, I'lrle, and Crompton, JJ., at pagej 528 jmd
")'2!(, is, that a fresh execution cannot be issued iluri.tg the imprixonment of
the debtor ; xee Kx parte Dakins, 10 C. B. pp. 93, il5. Sed qxuere.
Annual
rotiirn of
uoniinit-
nientH of
jiid^mont
(Itibtora.
34>*. [Every Division Court clerk shall make a return
to the Inspector of Division Courts on or before the 15th
day of Jaiuiary in every year, shewitijr the number of
judgment debtors who, durinf^ the twelve months endini:^
the 31st Deceniber previously, were ordered to be com-
mitted under each of the five heads mentioned in section
240 of this Act] 55 V. c. 11, s. 4.
Clerk shall make a return. — This section imposes upon the clerk the
duty of :nakin{4 the return. Formerly the Judj^e had to make it. The
section of c. 51 R. S. ()., was repealed by 55 V. c. 11, 8. 4, and the one
liere given sj^bstituted for it.
ABKCONDING DEBTORS.
24SI. In case a person, being- indebted in a sum not Abscomi-
exceeding $100, nor leas than $4, for any debt or damages ors,
arising upon a contract, express or implied, or upon e judg-
ment,
1. Absconds from this Province, leaving personal pro-
perty liable to seizure under execution for debt in any
county in Ontario ;
2. Attempts to remove such personal property, either
out of Ontario or from one county to another therein ;
3. Keeps concealed in any county to avoid service of
process and in case any creditor of such person, his servant
or agent makes and produces an affidavit or affirmation to
the purport of the form prescribed by the General Rules or
Orders from time to time in force relating to Division
Courts, and in case the affidavit or affirmation be filed with
Hi
^^"■nmpipi
mmmm
336
WHEN ArrACHMEXT MAY ISSUE.
! J
Wi
Section the clerk of any Division Court in Ontario, then the clerk
upon the application ot" the creditor, his servant or agent,
shall issue a warrant mider the hand and seal of the clerk,
in the form prescribed liy such General Rules and Orders,
directed to the hailift" of the Division Court within whose
division the same is issued, or to a constable of the countv,
connnanding' the biiiliH'or constable to attach, seize, take and
.safely keep all tlie personal estate and effects of the abscond-
ing, removing or concealed ,])erson within the county, liable
to seizure under execution for debt, or a sufficient portion
thereof to secui'e the sum mentioned in the warrant, with
the costs <jf the action, and to return the wari'ant forth-
w^itli to the court out of which the same issued. R. S. O.
IcSeST, c. 47, s. ]!)0.
Absconding Delitors. — The proceeding under this and the following
sections respecting absconding debtors is summary in its nature and
exceptional in its character. The party taking it should, therefore, be
held to a strict exercise of the rights conferred by tlie statute, and the
due obrtervaruie of all its requirements : Fletcher v. Calthrop, 6 Q. B.
p. S'.ll. /*(';• Deiiinan, C. J.; Royal Can. Bank v. Mathesou, 6 L. J. N. S.
p. 11, per Gait, J. ; Kraenier v. Gless, 10 C. P. p. 475 ; R. v. JMlis, G Q. B.
500.
Not exceeding $100, nor less than $4. — By section 70, sub-section
2, the increased jurisdiction conferred by paragraph (c) of that section,
is extended to proceedings against absconding debtors under this and the
subsequent sections of the Act. It will be observed that while this
section may be invoked in cases arising within its provisions, for a sum
not exceeding IjlOO nor less than M " for any debt or damages arising
upon any contract, express or implied," section 70, sub section 2 allows
an attachment to issue only on claims, "the amount or balance of
which does not exceed ^'200, and the amount or original amount of the
claim is ascertaine ' by the signature of the defendant, or of the person
whom as executor or udniinJHtrator the defendant represents."
This distinction must be kept in view. The provisions of this section
are not confined to liquidated damages but apply as well to claims of an
unli(]ui(lated character, provided they arise in the manner pointed out by
the statute. A claim in trespass or trover or f'-r any other actionable
wrong would not be within this section.
Proceeding.s could be taken on a judgment, no matter for what cause
obtained. A claim for damages in any action when reduced to judgment,
would bei'ome a "debt" under this clause: xee Jones v. Thompson, E. B.
A- E. «:{; Dresser v. Johns, 6 C. B. N. S. 4-2<>.
It is submitted that the word "judgment " here used should not be
confined to the judgment of any particular Division Court, and that judg-
ments of the Higli Court and County Courts would also be within its
provisions ; but judgments of any court but that out of which an atach-
ment issued would, however, have to be sued for and recovered upon as
any other debt of a like nature : Re Eberts v. Brooke, 11 P. B. 290.
i I
WHO IS AN ABSCONDING DEBTOR.
Who is an absconding dobtoFt — To abscond is to depart to defraud
creditors or avoid service of process.
A debtor could " abscond " from this province to Quebec, or any other
province of the Dominion, within this section.
One who might be in Ontario on a temporary sojourn could not be
said to be absconding " from this province," on returning to his home :
McFhad.len v. Barron, 9 L. J. N. S. 226 ; Clement v. Kirby, 7 P. R. 103,
Rice V. Fletcher, 13 P. R. 46 ; Kee also Ex parte Gutierrez. In re Gutierrez,
11 Ch. D. 298; Butler v. Rosenfeldt, 8 P.R. 175; Scane v. Coffey, 15 P. R.
112. In the former case, it was held that in the case of a foreigner who
was in J^ngiand for a merely temporary purpose, and was preparing to
return home, there was no presumption (as there might be in the case of
ii domiciled Englishman going abroad) that he was going away Aritli the
intention of avoiding the payment of a debt. The Master of the Rolls, at
|)iige 301, in speaking of an Act in some respects similar in its provisions
to ours, says, " The Act is aimed at absconding debtors. A man who goes
away does not necesnarilij abscond. ♦ • • j niust say it appears to me
tluvt the process of the Court of Bankruptcy has been abused, by which I
mean that it has been knowingly used for an improper purpose, contrary
to tlie plain meaning of the Act and the justice of the case."
It was held in Smith v. Smith, 9 P. R. 511, that a defendant
having contracted a debt in the United States, his ordinary place of
abode, and in the act of returning there after a visit to his parents in
this country, could not be arrested on a charge of leaving Ontario with
intent to defraud his creditors. It is of no consequence where the domi-
cile of a person may be or to what country he is bound by allegiance as a
Riibjoct or citizen, if he come to this province and reside here and contract
(1 3 and is about to quit the country (that is, in effect, about to change
his residence to a foreign country, even if that country be his place of
domicile) with intention to defraud his creditors, he is subject to arrest
as an absconding debtor in this province : see also Lamond v. Eiffe, 3 Q. B.
<J10.
A defendant cannot rely on a change of residence to a foreign country
so as to avoid the law of arrest to which he was subject in this province
at the time he incurred the debt upon which the action is brought, when
tluit uhanae of residence has been effected by a fraudulent flight to avoid
arrest : Ke'rsterman v. McLellan, 10 P. R. 122.
An intention to be temporarily absent on a trip to Europe does not
justify an arrest, nor could it be said in such case that a man " absconis " :
Hiiaw v. McKt^nzie, 6 S. C. R. 181.
The person must "have personal property liable to seizure under
execution " before he can be considered an " absconding debtor."
To "abscond" merely is not sufficient: Higgins v. Brady, 10
U. C. L. J. 268; Wakefield v. Bruce, 5 P. R. 77.
Tliere cannot be a judgment against an absconding debtor where there
lias been no property attached, except upon propei- service of the sum-
mons: per Draper, C.J., in Offay v. Offay, 26 U. C. R. p. 364; see also
the notes to section 100 of this Act : Robertson v. Coulton, 9 P. R. 16.
Proceedings cannot be taken against an absconding debtor under the
Ah.scondiiig Debtors Act, until after the maturity of the debt : Kyle v.
Barnes, 10 P. R. 20. It is submitted that the same principle is applicable
to proceedings under this Act.
PePBonal property liable to seizure.— Formerly the general impres-
sion seetus to have been that there was no exemption of any part of the
U,(mda of an absconding debtor : see R. v. Davidson, 21 U. C. R. 41. But
■ICC now R. S. O. c. 64, s. 4, and notes to section 212, ante p. 299 et seq.
D.C.A.— 22
337
Section
219
t
1
■i
?i I
$38
CAUSES OF ATTACHMENT.
SMtton Attempts to remove. — The mere intention of removing personal
2<9 property would not be sufficient. The attempt to remove or removal
itself of any part of a debtor's personal property would justify an attach-
ment under this section upon which all the personal estate and e£Fects of
the absconding debtor would be subject to seizure or such part as is
necessary to secure the sum mentioned in the warrant : Sharp v.
Matthews, 6. P. R. 10 ; Hood v. Cronkite, 29 U. C. R. 98 ; R. v. Collins,
L, & C. 471 ; R. v. Johnson, 34 L. J. M. C. 24; Ex parte Coates. In re
Skelton, 5 Ch. D. 979 ; 6 L. C. G. 17.
Keeps concealed. — This must in every case be a question of fact,
and proper inquiries should be made before making the affidavit : see
notes to sections 183 and 186. The inference must be that the conceal-
ment is for the purpose of avoiding the service of process. If the facts
shew any other object or intention, the affidavit could not properly be
made. A person might be said to be keeping concealed if he remained in
his own house, and at his request his presence there was denied by his
servants or others, or if being there, he, knowing the object of a process-
server refused him admission.
"Concealment by a debtor to avoid the service of summons" was
said to involve "an intention to delay or prevent creditors from enforc-
ing their demands in the ordinary legal modes. It may be by the
debtor's secreting himself upon his own premises, or by departing
secretly to a more secure place, in or out of the county of his residence : "
Dunn v. Salter, 1 Duv. 345 ; see also Frey v. Aultman, 30 Kansas, 182,
184.
Leaving a ^jlace, requesting that false information of the person's
movements be given, is concealment : North v. McDonald, 1 Biss. 59.
In case any Creditop. — The word "creditor" must be read in con-
nection with the words "for any debt or damages," etc., iu the first part
of the section, and cannot be confined to persons havhig liquidate;!
demands merely.
His Servant or Agent. — The affidavit may be made by one who
has express or implied authority to make it. The word " servant" can-
not be held to apply to every servant, domestic or otherwise, but to one
who, from the nature of his employment, would in this way have an
express or implied authority to protect the interests of his master : see
R. V. Cummings, 4 U. C. L. J. 182.
" An important branch of the duties of clerks is preparing affidavits
for and suing out warrants of attachment. It is presumed that clerks will
be applied to, except in cases of pressing emergency, where it may be
indispensable to resort to justices of the peace; indeed, as a general rule,
parties have no guarantee for the regularity of the proceeding unless the v
employ an officer instructed in and familiar with the requirements of law;
and as magistrates seldom trouble themselves with such matters, and are
not entitled to make any charge for drawing the affidavit and suing out
the attachment, it is not probable tlieir services will be sought, save where
the defendant's property would be lost unless instant action was taken,
and the clerk's office happens to be at a distance. The right to seize a
party's property on tlie plaintiff's affidavit, or his agent's, unsupported by
other testimony of the debt and state of facts giving right to attach,
though a salutary provision of the law, is liable to abuse ; and being an
ex parte proceeding, the rules regulating the right must be strictly
observed:" 1 U. C. L. J. 21. For forms of affidavit and attachment, ;«<'
Rule 35 and Forms 11 and 12. The statement of cause of action must be
specially set out (lb.), and for such statement in issuing attachment sfi'
1 U. C. L. J. 21 and 41. Unless the affidavit dearly makes out a case
under the increased jurisdiction provision of section 70, if the sum
AFFIDAVIT TO BE FILED.
389
claimed ia in excess of $100, the creditor and probably the clerk, if a
seizure were made, could be held responsible as trespassers : Quacken-
bush V. Snider, 13 C. P. 196. Should the affidavit be " for money lent and "
goods sold and delivered," without shewins^ either that the money was
lent, or that the goods were sold and delivered by the creditor to the
debtor, it would be insufficient : Handley v. Franchi, L. R. 2 Ex. 34 ;
McKeiizie v. Bussell, 8 O. S. 343. The defendant could waive an irregu-
larity in the affidavit, such as the omission iv allege that the proceed-
ings were not taken from any vexatious or malicious motive : Barrow v.
Capreol, 2 U. C. L. J. 210. An affidavit for attachment which contains
more than any one of the three alternatives of the statute is bad, and an
attachment issued upon it would perhaps render all parties, except the
bailifiF, liable as trespassers: Quackenbush v. Snider, 13 C. P. 196; so
also would they be liable if the warrant were issued without any affidavit:
Caudle v. Seymour, 1 Q. B. 889 ; Gray v. McCarty, 22 U. C. R. 568. It
would not render the affidavit bad, where made before suit commenced, to
entitle it in the court : Hart v. Ruttan, 23 C. P. 613 ; Wakefield v. Bruce,
5 P. R. 77; see also Higgins v. Brady, 10 U. C. L. J. 268.
An attachment would be set aside if issued for money lent, the
affidavit not stating by whom : McKenzie v. Bussell, 3 O. S. 343 ; see also
Handley v. Franchi, L. R. 2 Ex. 34. In the absence of any form setting
out the particular cause of action, as given in Form 11, the affidavit
should follow as nearly as possible the common affidavit of debt for arrest:
Anon, 2 O. S. 292. If the promissory note or other cause of action is
fully set out, the indebtedness of the defendant would be alleged with
sufficient certainty : Wakefield v. Bruce, 5 P. R. 77. The Judge has an
inherent right to set aside an attachment improperly issued : Howland
V. Rowe, 25 U. C. R. 467 ; Re Mitchell v. Scribner, 20 O. R. 17.
The necessity for the affidavit being duly made will more strongly
appear by a reference to the cases of Morgan v. Hughes, 2 T. R. 225 ;
Stevens v. Clark, 2 M. & Rob. 435 ; R. v. Hughes, 4 Q. B. D. 614 ;
McLean v. Bradley, 2 S. C. R 535 ; in addition to Caudle v. Seymour,
and other cases supra. See also notes to section 86, ante p. 119.
A common error in regard to these affidavits is the omission to entitle
them in the court or cause. There is only one case where an affidavit
need not be so drawn in Division Court proceedings, and that is the case
of a special summons, when the affidavit is endorsed on the summons
{see Form No. 107) unless the Judge accepts the affidavit under Rule 133,
which in proceedings against absconding debtors he should be slow to do.
Affidavit or affirmation to be filed.— In Moore v. Gidley, 32 U.C. H.
233, it was held, in an action against a justice of the peace for trespass
in issuing a warrant of attachment, that the transmission of the affidavit
to the D. C. clerk was not a necessary condition of his having jurisdic-
tion. A written application to the clerk for an attachment is not neces-
sary, as is required under Rule 7, for a judgment summons, nor does the
creditor appear to be restricted to proceeding in any particular court as
he is under section 81 : see 1 L. C. G. 64.
Hand and seal of sucli clerk.— It will be observed that the warrant
must be under tiie hand and seal of the clerk, and not under the seal of
the court, as in section 212, in respect to executions : see Rule 9. Mule
iJ5 and Form 12 appear to indicate that where the clerk issues the attach-
ment it should be under tlie seal of the court. The statute and form
being at variance, the former should govern : Boyle v. Ward, 11 U. C. R.
416. Probably the clerk could adopt the court seal as his own : Ontario
Salt Company v. Merchants' Salt Company, 18 Gr. 551.
Form prescribed. — See Forms 11 and 12, and Rule 35, for forms of
affidavit and attachment.
Section
j
.340
WHEN ATTACHMENT SUPERSEDED.
llMi
mu
Ml
', ,ij»ii»"'
Section See also as to the form of such affidavit, Hagerty v. G. W. Ry. Co. ,
M9 44 U. C. R. 319.
To a constable of the county. — Any constable of the county would
have power to execute the warrant : Delaney v. Moore, 9 U. C. R. 294.
If the bailiff cannot be found to execute the attachment and a constable
is resorted to, care must be taken to see that he is a constable duly
appointed : K. S. O. c. 82. Many people consider themselves constables
when in law they are not. See section 258, sub-section 2.
Attach, seizuFe, take. — See notes to sections 212 and 228.
Liable to seizure under execution. — See also notes to section 212. In
an action for seizinf^ goods under Division Court attachment,it was proved
that a few days before the seizure the goods had been sold by auction under
the direction of one of the plaintiffs, who executed a bill of sale to the
vendee, witnessed by the auctioneer. Held, that the plaintiff could not
afterwards be permitted to set up that the sale was void because fraudu-
lent as against the plaintiff's creditors, and to maintain trespass for
seizing the same goods as if they were his own : McPhatter v. Leslie, 23
U. C. R. 673.
Should the bailiff or constable seize more than might reasonably be
necessary " to secure the sum mentioned in the warrant, with the costs
of the action" he (together with the sureties, in tlie case of the bailiff)
would be;liable for an excessive distress : see Piggott v. Birtles, 1 M. &. VV.
p. 449.
Return the warrant forthwith to the court. — The bailiff should
make a written return to the warrant, to be filed with the papers. If
nothing has been seized under the attachment, the plaintiff can only
proceed as in an ordinary case : Offay v. Offay, 26 U. C. R. 364. Some-
times a judgment is attempted to be obtained by attachment in disregard
of this rule.
Where there has been no proceeding by summons and the warrant
issued by a justice of the peace, it is submitted that the warrant should
be returned to the clerk of the court within whose division the affidavit
was made or taken : see section 250 ; 1 L. C. G. 54.
If an attachment is maliciously issued and without probable cause, an
action for damages for such wrong would lie at the su't of the debtor
against the attaching creditor : Drake on Attachment, ^th edition, sections
724-745 ; Pollock on Torts, 234, 235 ; Cartwright v. Hinds, 3 O. U. 384-
395.
If there should be reasonable and probable cause for issuing an attach-
ment, the action would not lie, no matter how maliciously issued. If a
person has a right to do an act, and does it maliciously, yet it is not
actionable : Shirley's Leading Cases, 3rd edition, 354.
Should an attaching creditor place the warrant of attachment for
execution in the hands of some one unauthorized by statute — for instance,
one who is not a duly appointed constable — he would simply be liable as a
trespasser.
R. S. O. c. 66, s. 16, enacts as follows : —
WHEN DIVISION COURT ATTACHMENT SUPERSEDED.
10. If the sheriff to whom a writ of attachment is delivered for
execution, finds any property or effects, or the proceeds of any property
or effects which have been sold as perishable, bielonging to the absconding
debtor named in the writ of attachment, in the custody of a constable or
•of a bailiff or clerk of a Division Court by virtue of a warrant of attach-
ment issued or money paid into court under a garnishee.summons under
SHERIFF MAY TAKE THE GOODS.
341
The Divisions Courts Act, the sheriff shall demand and take from the con-
stable, bailiff or clerk, the property or effects, or the proceeds of any part
thereof, and the constable, bailiff or clerk, on demand by the sheriff and
notice of the writ of attachment, shall forthwith deliver all the property,
effects and proceeds aforesaid to the sheriff, upon penalty of forfeiting
double the value of the amount thereof, to be recovered by the sheriff, with
coats of suit, and to be by him accounted for after deducting his own
costs, as part of the property and effects of the absconding debtor ; but
tlie creditor who has duly sued out the warrant of attachment may pro-
ceed to judgment against the absconding debtor in the Division Court,
and on obtaining judgment, and serving a memorandum of the amount
thereof, and of the costs to be certified under the hand of the clerk
of .,110 Division Court, the creditor shall be entitled to satisfaction
in like manner as, and in ratable proportion with, the other creditors of
the absconding debtor who obtain judgment as hereinafter mentioned,
R. S. O. 1877, c. 68, s. 16 ; 48 V. c. 15, s. 2.
See this section applied, Re Moore v. Wallace, 13 P. R. 201.
The Creditor's Relief Act, R. S. O. c. 65, s. 25, enacts :
35. (I) If the sheriff dqes not find sufficient property of a debtor
leviable under executi^jns and claims in his hands to pay the same in full,
and the sheriff finds goods and chattels in the hands of the bailiff of
a Division Court under a v/rit of execution or attachment against the
debtor, the sheriff shall demand and obtain the goods and chattels from
the bailiff, who shall forthwith deliver the same to the sheriff, with a
copy of every writ of execution in his hands against the debtor, and a
memorandum shewing the amount to be levied thereunder, including the
bailiff's fees so far as proceedings have been taken by him, and shewing
the date upon which each writ was received by him.
(2) In case the bailiff fails to deliver any of the goods, he shall pay
double the value of the property retained, such double value to be recov-
ered by the sheriff from the bailiff with costs of suit, and to be by the
81 riff accounted for as part of the estate of the debtor.
(3) The sheriff shall distribute the proceeds among the creditors under
the provisions of this Act, and the Division Court execution creditors
sliall be entitled, without further proof, to stand in the same position as
execution creditors whose writs are in the sheriff'fi hands. 43 V. c. 10,
B. 9.
And by 52 V. c. 12, s. 7, it is enacted ;
T. When the sheriff, under the provisions of the Creditor's Relief Act,
takes possession of goods which are in the possession of a Division Court
bailiff under a writ of attachment or execution, the costs and disburse-
ments of the said bailiff shall be a first charge upon the goods, and shall
be paid by the sheriff to the said bailiff upon demand, after being taxed
by the Division Court clerk.
A writ of execution from the High Court or County Court, would, on
the authority of Francis v. Brown, 11 U. C. R. 558, and under the Credi-
toi''s Relief Act entitle the sheriff to seize goods then in the possession of
a Division Court bailiff under attachment; but it is submitted, after a
careful perusal of the authorities here cited, and especially the judgment
of Draper, C.J., at p. 565 of 11 U. C. R. ; of Hagarty, J., in Fisher v.
Sulley, 3 U. C. L. J. 89 ; of Draper, J., in Potter v. Carroll, 9 C. P. at p.
448, and looking at the object and scope of the Division Court's Act, that
an execution from a Divi»ion Court, at the suit of another creditor, does
not take priority of the attachment and authorize a seizure of such goods
on the execution to the prejudice of the attaching creditor.
Section
249
"''■■^■■fi
|l!i:i
342
Sections
ai9-260
nil
I
1
55. ■■■"'«•''■
5!(!!:»fe
JUSTICE MAY ISSUE AITACHMENT.
The principle of Francis v. Brown is, that the Legislature did not by
the Division Court Act expressly take from an execution creditor in a
~ Superior Court the rights against a debtor's goods which his writ gave
him. No such reason, it is submitted, can be found for giving an execu-
tion priority over an attachment where both issue from the Division
Court, and where neither one has precedence of the other. The goods
are, it is to be observed, in the custody of the law, and cannot, it is sub-
mitted, during such time be again seized under Division Court process :
King V. Macdonald, 15 C. P. 397 ; see Carroll v. Potter, 15) U. C. R. 346 ;
Daniel v. JMtzell, 17 U. C. R. 369 ; Putnam v. Price, 1 L. C. G. 77; Paton
v. Scram, 1 L. C. G. 93; 2 U. C. L. J. 172; 2 L. C. G. 49, 63; Nicol
V, Ewin, 7 P. R. 331.
By the attachment the creditor obtains a lien on the goods seized to
the extent of his claim, which the 254th section preserves to him until
his execution issues, and then gives him, as against Division Court credi-
tors, priority of execution : see Tate v. Corp. of Toronto, 3 P. R. 181 ;
Caron v. Graham. 18 U. C. R. 815,
When 390. Any County Judufe, or a Justice of the Peace for
Justice of , .
the Peace the County, may take the affidavit in the last preceding:
may issue ^ ' >/ i o
attach- section mentioned, and upon tlie same beino; filed witli the
ments, etc. ' i _ '^
Judge or Justice, the Judge or Justice may issue a warrant
under his hand and seal in the form prescribsd as aforesaid,
and the Judge or Justice shall forthwith transmit the
affidavit to the clerk of the Division Court within whose
division the same was made or taken, to be by him filed and
kept among the papers in the cause. R. S. O. 1877, c. 47,
s. 191.
Justice of the Peace for the County.— From the notes to the previ-
ous section will be rieen the danger tliat justices of the peace run in
issuing warrants of attachment ; their safest course is to allow the
clerk of the court ti perform a duty which properly belongs to him.
It is only in cases of necessity that a justice of the peace should grant the
warrant. " Under the Division Courts Act, the creditor has a choice in
cases of attachment to apply to any magistrate, or to the clerk of the
court, to issue the warrant. The divisions are so small throughout the
country, and the clerk's office is usually so near a creditor's residence,
generally in the same or an adjoining township, that rarely is there any
cogent necessity for applying to a magistrate rather than the clerk ; and
the saving of a few miles against the risk of error is rather heavy odds
for a plaintiff to take. Applying to a clerk, he comes to an officer
experienced in the work — one who has all the forms before him, and
whose friendly word of caution will often save a plaintiff from getting
himself into difficulty. It is not so when he applies to a magistrate, who
is not and cannot b<B expected to be familiar with the Division Court
procedure. The propriety, therefore, of employing the clerk seems
obvious enough. Let no suitor be persuaded by a magistrate to come to
him on such a business ; and perhaps it may somewhat damp ardour in
this particular if we mention the fact that a magistrate is not entitled to
any fee under the statute for doing the work : " 9 U. C. L. J. page 318.
BAILIFF TO SEIZE PROPERTY.
843
ature did not by
on creditor in a
ich his writ gave
giving an execu-
om the Division
her. The goods
lannot, it is snb-
n Court process :
19 U. C. R. 346 ;
, C.G.77; Paton
fr. 49, 63; Nicol
goods seized to
rves to him until
sion Court credi-
ito, 3 P. R. 181;
the Peace for
ast preceding
filed with the
sue a warrant
1 as aforesaid,
transmit the
within whose
^ him filed and
O. 1877, c. 47,
lotes to the previ-
the peace run in
i is to allow the
r belongs to him.
e should grant the
or has a choice in
3 the clerk of the
11 throughout the
;ditor's residence,
arely is there any
an the clerk ; and
ather heavy odds
mes to an officer
before him, and
itiff from getting
a magistrate, who
18 Division Court
the clerk seems
[istrate to come to
it damp ardour in
e is not entitled to
I.L.J, page 318.
" The simplicity so necessary to the working of Division Courts has, in Sections
some cases, had the affect of allowing thoughtless or unscrupulous 20O-251
persons to work injuries, which are not so likely to occur in courts of
higher jurisdiction. In the higher courts, to which we refer, the pre-
liminary steps mnst come before the Judge ; whereas in Division Courts
many important measures are taken under the supervision of the clerks
only, or even indeed before a justice of the peace. Of course, when
process is issued by the clerks, there is a strong element of safety, and
almost a certainty that the proceedings will be regular m form ; but, in
the case of justices no such security exists, as the records of the courts
plainly show. Our attention has been called more especially to the
issuing of writs of attachment, as well at the instance of thoughtless
persons, who do not sufficiently consider the step they are about to take,
as by unscrupulous creditors, who use the ready machinery of the court
as an instrument to terrify those with whom they have to deal into sub-
mitting to such terms as they may think proper to impose. The Board
of County Judges, in preparing their forms, have studied to provide that
all the requisites of the statute should be complied with, and have made
it necessary that the party seeking to have the writ issued should swear
positively to the fact and nature of the indebtedness, and that the debtor
lias absconded, or has attempted to remove his property out of the
province or county, or that the debtor keeps concealed with intent to
defraud the creditor of his debt ; and the creditor must also swear that
he does not act from a vexatious or malicious motive. Now, if the
ie(]uirements of the statute are carefully considered, and the affidavit
carefully read over before swearing, much of the evil that has arisen
would be avoided ; of course this would not deter persons who were so
disposed from wilfully using the writ as, we might almost say, an instru-
ment of torture : " 6 L. C. G. 17 ; see also 3 U. C. L. J. 61.
It is submitted that the filinq by the justice is a necessary condition
to the proper issue of the warrant : Magrath v Todd, 26 U. C. R. at p. 90 ;
Lee V. Morrow, 25 U. C. R. 610; Westbrook v. Calaghan, 12 C. P. 616;
11. V.Shaw, 23 U.C.R. 616; hire Mayers and Wannacott, 23 U.C.R.611;
R. V. Armytage, L. R. 7 Q. B. 773 ; James v. S. W. R. Co., L. R. 7 Ex. 287.
It was held however in Moore v. Gidley, 32 U. C. R. 233, that the
omission by the justice of the peace to transmit the affidavit to the
Division Court clerk did not render him liable as a trespasser, though
the neglect to do so might render him liable for a beach of duty.
9SI. Upon receipt of the warrant by the baiUff orcon-i^ft'iiff or
stable, and upon being paid his lawful fees, including the^^^ei^e
fees of appraisement, the bailifi'or constable shall forthwith ""^entory.
execute thq warrant, and make a true inventory of all the
estate and effects which he seizes and takes by virtue
thereof, and shall within twenty-four hours after seizure,
•call to his aid two freeholders, who being first sworn by him
to appraise the personal estate and effects so seized, shall
then appraise the same and foi-thwith return the inventory
attached to the appraisement to the clerk of the court in
which the warrj^nt is made returnable. R. S. 0. 1877, c 47,
s. 192.
mlk
infT^Mfi
344
WHERE PROCEEDINGS CONTINUED.
Sections
2S1-2S2
iWi!
'i V-'f*
Proceed-
ings may
be oontiii-
ued in
court out
of which
attach*
ment
issued.
Including the fees of Appraisement. — The lawful fees of the bailiff^
including fees of appraisement, shall be paid to tlie bailiff or constable
before execution of the warrant. It is his option to exact them, but if he
waives prepayment he would be bound to execute the warrant and be as
responsible as if he had exacted prepayment of his fees.
See section 53 for fees of appraisers.
Forthwith execute the warrant. — Enquiry should be made by the
bailiff as to the property intended to be seized, and, if perishable, it will
be proper for him to require security under section 264 ; but generally,
on receipt of a warrant directed to him, the bailiff is forthwith to execute
the same ; that is to say, he is to proceed with all diligence to seize such
personal property of the debtor as may be taken under the ordinary writ
of execution, or a sufficient portion thereof to secure the sum mentioned
in the warrant, with costs. A difficulty may occur with respect to other
creditors coming in afterwards, and it is not easy to lay down any rule
as to the amount of property the bailiff should attach. If he has know-
ledge of any other creditors coming in, it would seem proper to seize
enough to cover the claims of all ; but in any case let the bailiff take
ample property to cover, at a forced sale, the debt and costs In the case
ill which he acts. It may be that an enlarged meaning ought, in con-
struction, to be given the word secure, as used in section 249 ; but we will
not pursue the point at present, as it opens several nice questions.
Having seized, the bailiff's first duty is to make an inventory of the
property. For form of inventory see Form 120.
The inventory made, the bailiff within twenty-four hours thereafter,
calls to his aid two freeholders, and swears them to appraise the property-
seized : 1 U. C. L. J. 22. Tills form of oath will be found at Form No.
121. A memorandum thereof should be then endorsed on the inventory
as follows :
On the day of AD. 18. , T. T. of and N. N.
of were sworn by me well and truly to appraise the goods, chattels,
property and effects mentioned in this inventory.
B. F.
Bailijir.
The freeholders then examine the property as pointed out to them by
the bailiff, and, having valued the same, their appraisement should be
endorsed on the inventory : 1 U. C. L. J. 22. The form of this endorse-
ment will bo found at Form 122. The appraisers must be sworn before
they make the appraisement : Kenney v. May, 1 M. <& Rob. 5(5; If the
bailiff should sell without an appraisement, he would be liable to an
action, but the sale would not be void : Lyon v. Weldon, 2 Bing. 334 ;
Campbell v. Coulthard, 25 U. C R. 621. The bailiff could not be an
appraiser : Westwood v. Cowne, 1 Stark. 172 ; nor the attaching creditor r
Andrews v. Russell, Bull. N. P. 81 .
Court in which the warrant is made returnable. — This, it is sub-
mitted, means to the clerk of the court within whose division the affidavit
for attacliment was made or taken whether by himself or a justice of the
peace : see section 250.
*2Si2m In any case commenced by attachment, in a
Division Court, the proceedings may be conducted to judg-
nient and execution in the Division Court of the division
within which the warrant of attachment issued. R. S. O.
1887, c. 47, s. 193.
NO DIVISION OF CAUSE OF ACTION.
345
The Division within which the warrant of attachment iBsued -- Sections
Beading this section in connection with section 250, it will be seen that 2B2-268
the Legislature presupposes the affidavit to be " made or taken," and the
warrant of attachment to be issued within the same Division. Should
tlie affidavit be taken in one division, and the warrant issued in another,
there would be some inconvenience about the custody of the papers.
2{53- Where proceedings liave been commenced in any ^'ga" com-
case before the issue of an attachment, the proceedings may S^^ore^
be continued to judgment and execution in the Division ment to
Court within which the proceedings were commenced. *'°" '""^'
R. S. O. 1877, c. 47, s. 194.
The proceedings by attachment is, in this case, supplementary to the
action previously commenced.
254* The property seized upon a warrant of attach- ^t't^Pffg*^
ment shall be liable to seizure and sale under the execution g"]'^ under
to be issued upon the judgment, or in case the property was ^*^*''^*'°"'
perishable, and has been sold, the proceeds thereof shall be
applied in satisfaction of the judgment. R. S. O. 1877,
c. 47, s. 195.
The property seized.— As to seizure and sale of chattels on execution,
see notes to sections 212, 228, 229 and 251.
Replevin is not maintainable by the debtor against whom the attach-
ment issues : R. S. O. c. 55, s. 3. But it is maintainable by a third party :
Arnold v. Higgins, 11 U. C. R. 191 ; the action would, however, be stayed
upon the issue of an interpleader summons under section 269 : Caron v.
Graham, 18 U. C. R. 315. See also notes to section 72, ante pp. 79-88.
Applied in satisfaction of the judgment.- This section provides for
two cases ; (1) If there is judgment in the case, the party in whose favor
it is, may have the property seized and sold under execution. (2) If the
goods are perishable, and have been sold, the proceeds of them shall be
applied in satisfaction of the judgment.
As to sale of perishable goods, see sections, 264 and 265. •
355. No plaintiff shall divide any cause of action into p'^'"'^"^
two or more actions for the purpose of bringing the same g^yg^^^f
within the provisions of the preceding sections, but a'
plaintiff having a cause of action above the value of .i?100
and not exceeding S200 for which an attachment might be
issued if the same were not above the value of $100 may
abandon the excess, and upon proving his case, may recover
to an amount not exceeding $100 and the judgment of the
court in such case shall be in full discharge of all demands
acuou.
■fi
346
SEVERAL ATfACHMENTS.
I
iHlftl'M
2M^" in respect of such cause of action, and the entry of judg-
ment therein shall be made accordingly. R. S. O. 1877,
c. 47, s. 196.
No plaintiff shall divide any cause of action. — As to dividing any
cause of action into two or nioro actions for the purpose of bringing the
same in the Division Court, see section 77 and notes, ante pp. 10'2-lOti.
The fact tliat there has been a splitting of demands must be taken
advantage of by defence in the first action : Public School Trustees of
Nottawasaga v. Township of Nottawasaga, 15 A. B. 310.
Hay abandon the excess. — Where the excess is abandoned, it must
be done in the first instance on the claim : Rule 8 and notes thereto :
In re Hijjginbotham v. Moore, 21 U. C. R. 326 ; Re McKenzie v. Ryan,
() P. R. 323. But there is nothing in this Rule to prevent the Division
Court Judge from permitting the plaintiff to amend his claim before or at
the trial, upon such terms as he thinks fit, and general Rule 118 and
section 304 of this Act afford ample authority for permitting such
amendment : but the Judge cannot be compelled by mandavius to exercise
his discretion to permit amendment: In re White v. Galbraith, 12
P. R. 513.
Upon proving his case. — It is submitted that if personal service of
the summons, and of detailed particulars of the plainti£f's claim were
made, the Judge might in his discretion give judgment without further
proof : see sections 117, 261 and 262 and notes.
Other attaching creditors might defend the action under Rule 36.
If the defendant be not personally served, the trial could not take
place until a month after the seizure under the attachment : Rule, 25.
No form is given for the minute of judgment, but it can be easily
drawn up from the fads of the case.
!330« In case several attachments issue against any
party then subject to the provisions contained in section IG
of I'he Act 7'espectinfj Absconding Debtors, the proceeds of
the goods and chattels attached shall not be paid over to the
attaching creditor or creditors according to priority, but
shall be ratably distributed among such of the creditors
Bev. Stat . guinff out such attachments as obtain judgment against
«. bo, 8. 10.2 C •! ^ rD
the debtor, in proportion to the amount really due upon
such judgments ; and no distribution shall take place until
reasonable time, in the opinion of the Judge, has been
allowed to the several creditors to proceed to judgment.
R. S. O. 1877, c. 47, s. 197.
The Act respecting Absconding Debtors.— See R. S. O. c. 66, p. 757.
Proceeds of goods, &c., not to be paid over according to priority.—
See notes to section 249, ante page 342, and 7 U. G. L. J. 313.
When Division Court attachment superseded, see R. S. O. c. 65, s. 25,
and R. S. O. c. 66, s. 16, ante pp. 340-342.
If several
attach-
nienta
issued.
WHERE GOODS iNSUFFICIENT.
347
Shall be ratably distributed.— Some di.liculty has been experienced Seotloni
by clerks as to tlie proper method of distributing the proceeds of goods, 288-288
and more especially where these are insuilicient to pay the full claims of "
all attaching creditors, to<;ether with their costs. It is submitted that
the proper method is for the clerk to make up the costs in each case, add
the same to the debt and interest, and therefrom make an equal distribu-
tion of the proceeds. The method sometimes adopted of clerks deducting
the total amount of costs from the total proceeds of the sale of the goods
attached, and distributing the balance, is not correct. The costs which
a plaintiff incurs stand in no higher position than his debt.
All necessary disbursements and expenses of the bailiff for keeping tlie
attached goods form a first charge upon them and are deductable from the
total proceeds before any pro rata distribution is made. See section 258.
The clerks, of course, should be paid their costs in such cas' i as this
section provides for, but each man's indebtedness to the clerk for costs,
nnmt be paid out of his pro rata share of the proceeds. The words " the
amount really due upon such judgments" include costs as well as debt
aad interest.
Under section 257, if there is not sufficient to satisfy the claims of
all the attaching creditors, only those would participate who sued out
attachments and within one month after the issue of the first attachment,
gave notice thereof to the clerk of the court out of which such first attach-
ment issued or in which it was made returnable.
To proceed to judgment. — See notes to section 249, and Bules 35
and 86.
2»5T. Where the goods and chattels are insufficient to [nBum^'
satisfy tlie claims of all the attaching ci'editors, no such *''^"*'
creditor shall be allowed to share unless he sued out his
attachment, and within one month next after the issue
of the first attachment, gave notice thereof to the clerk of
the court out of which the first attachment issued, or in
which it was made returnable, R. S. O. lcS<S7, c. 47, s. 198.
Within one month next after. — A calendar month is here meant:
»ee Interp. Act, s. 8, s-s. 15 ; and the day on which the first attachment
issued would not be reckoned as part of the time : Hanns v. Johnston,
3 O. R. 100 ; notes to section 145. See Macfie v. Pearson, 8 O. R. 745.
Notice thereof to the clerk. — This notice is required now to be in
Avriting ; section 93. It is doubtful if depositing the notice in the post-office
would be sufficient if it did not reach the clerk until after the month had
expired. We think that if the postofiice is used, it is at the risk of the
party, and if the clerk does not receive the notice, it is not given.
25M. (1) All the property seized under the provisions Qustody of
of the previous sections, shall be, and remain in the custody seized
and possession of the bailiff* to whom the warrant of attach- attach-
ment is issued, and he shall take and keep the same until dis-
posed of by law, and he shall be allowed all necessary
disbursements and expenses for keeping the same.
4ik
■JW"^
348
UESTOllATION OF GOODS.
Sections
2BS-259
On wbat
terms
goods
attached
may be
restored.
(2) Whoi'e the property iH seized under the provisions
of the ]>rec(Mlinjr sections by a county constable, it shall be
forthwith handed over to the custody and possession of the
l)ailitt'of the court out of which tlie warrant of attachment
issued, or into which it was made returnable ; and such bailiff
shall take the same into his charj^e and keepiuj.^, and shall
be allowed all necessary ilisbursements for keeping the same.
49 V. c. 15, s. 14.
Shall remain in custody and possession of the bailiff.— Formerly the
property seized was required to bo handed over to the custody and
possession of the clerk, but it is now to remain in the custody and
possession of the bailiff to whom tlie warrant of attachment issued, who
IS to take and koop the same until disposed of by law.
If property is seized by a county constable it is to be fortnwith handed
over to the bailiiY as provided in sub-section 2; and if the bailiff did not
seize the ;(oods himself, but they were delivered to him by a county
constable, neither trover, trespass nor replevin would lie af^ainst him :
Caron v. Graham, 18 U. C. K. ai8.
The bailiff would be bound to use ordinary care, dilif^ence and prudence
in keeping possession. He mi^ht insure the goods or the attaching:
creditor might do so. He would not, however, until in possession on an
execution, be an insurer himself: Sinclair's Abscondin Debtors, 73, 74 ;.
Ross V. Grange, '25 U. C. R. 39(5 ; Giblin v. McMuUen, L. R. 2 P. C. 317.
Necessary disbursements. —The clerk should observe great care in
this matter hy seeing that the bailiff does not overcharge for keeping;
possession of the goods attached.
What are " necessary disbursements and expenses," must, of course,
depend on the circumstances of the case, and must be determined by the
clerk, subject to the revision of the Judge: section 46.
2*ltl* In case a person against whose estate or effects
such attachment has issued, or any person on his behalf, at
any time prior to the recovery of judgment in tl:e cause,
executes and tendei"s to the creditor who sued out the
attachment, and files in the court to which the attachment
has been returned, a bond with good and sufficient sureties^
to be approved of by the Judge or Clerk, binding the
obligoi'S, jointly and severally, in double the amount claimed,
with condition that the debtor (naming him) will, in the
event of the claim being proved and judgment recovered
thereon, as in other cases where proceedings have been com-
menced against the person, pay the same, or the value of
the property so taken and seized, to the claimant or
claimants, or produce the property whenever thereunto
SECUIUTV KEtiUmEn.
349
provisions
it shall be
sion of the
ttachinent
mchbailirt*
, and shall
the aamo.
ormerly the
ciiatotly and
custody and
issued . who
iwith handed
liliff did not
3y a county
,(>ainst him :
ind prudence
)e attaching
ession on an
Dtors, 73, 74 ;.
, 2 P. C. 317.
;reat care in
! for keeping
}t, of course,
mined by the
or effects
behalf, at
tlie cause,
1 out the
-ttachment
it sureties,
nding the
it claimed,
all, in the
recovered
been coni-
3 value of
liraant or
thereunto
ro(|uired, to satisfy the judj^ment, the clerk may supersede ^•^°*^
the attachment, and the property attached shall then be - -
restored. H. S. O. 18H7, c. 47, s. 200.
A bond with good and sufficient auretieB.— Except the attachment is
set aside by order of the Judge, the only method by which the debtor can
gain posaession of hin goods is by giving a bond under this section.
One surety would be sufficient : Interpretation Act, s. 8, s-s. 20.
If, however, the bond should be drawn naming two suretios, and but
one executed it, the bond could not be received, for it would be a good
defence to the surety who signed to shew that he believed, owing to the
form of the bond, that it would be executed by the other ; Hansard v.
Letlibridge, 8 T. L. R. 310 ; and a plaintiff is entitled to a bond free from
possible objections of that kind : Jones v. Macdonald, 14 P. U. 535. See
also notes to section 35, (inte pp. 2()-31.
To be approved of by the Jud^- or Clerk,— Properly this should only
be done after notice to tlie o])V'^ jite party. The rights given to the creditor
by attachment should not, be taken away without an opportunity of his
shewing cause against it, if so advised : notes to section 41, ante p. 3(5.
Value of the property so taken and seized. — The obligors would only
bT liable for the lesser sura, whichever it might be.
If an action had to bo brought on the bond, the plaintiff could not
reasonably claim more than the value of the goods as estimated by the
appraisers. See notes to section 35.
No provision is made for re-delivery of the goods on payment
of the amount claimed and costs. Such a course is frequently
adopted when the possession of the goods is important to the debtor,
or to a third party who may be owner thereof. It is submitted
that the money so paid, ia not paid voluntarily, but may be recovered
back on shewing that the goods were improperly seized, either by reason of
the attachment being improperly issued,or that that the goods were not the
property of the debtor : DeCadaval v. Collins, 4 A. & E . 858 ; Pitt v. Coomes,
2. A. & E. 4.59 ; Clark v. Woods, 2 Ex. 395 ; Parker v. G. W. Ry. Co. 7
M. & G. 253 ; Close v. Phipps, 7 M. & G. 586 ; Valpy v. Manley, 1 C. B.
mi ; Green v. Duckett, 11 Q. B. D. 275 ; McKay v. Howard, 6 O. R. 135 ;
Chandler v. Sanger, 114 Mass. 364 ; Cobb v. Charter, 32 Conn. 358.
When goods of a third party are lawfully seized for the debt of
another, such third party is entitled to indemnity from the debtor, though
there may be no agreement |to indemnify, and though there may be in
that sense no privity between the owner of the goods and the debtor :
J'ldmunds v. Wallingtord, 14 Q. B. D. 811 ; see Herring v. Wilson, 4 O. R.
607, which, however, was founded on England v. Marsden, L. R. 1 C. P.
529, which is questioned in Edmunds v. Wallingford, supra.
If the third party should pay the money to the bailiff in order to obtain
possession of the goods, the bailiff might interplead as to them ; Smith v,
Critchfield, 14 Q. B. D. 873.
A seizure by a landlord, of the goods attached, as a distress for rent,
would be no answer to an action on the bond: Rapelje v. Finch, 14
U. C. R. 249. Nor would it be a performance of the condition, under
such circumstances, to say to the obligee that he might go and take goods
out of the possession of the landlord at his peril : s. c. 14 U. G. R. 468.
igk
850
SERVICE OF SUMMONS.
iiiiiiii
SMtlOIU
260-262
If the
debtor
does not
appear.
260* If within one month from the seizure as afore-
said, the party against whom the attachment issued, or
some one on his behalf, does not appear and give such bond,
execution may issue as soon as judo-ment has been obtained
upon the claim or claims, and th' property seized upon the
attachnjent, or enough thereof to satisfy the judgnient and
costs may be sold for the satisfaction thereof, according to
law, or if the property has been previously sold as perishable
under the provisions hereinafter made, enough of the pro-
ceeds thereof may be applied to satisfy the judgment and
costs. R. S. O. 1877, c. 47, s. 201.
Within one montli. — This would be exclusive of the day of the seizure :
Young V. Higgon, 6 M. & W. p. 53 ; McCrae v. Waterloo M. F. Ins. Co.,
26 C. F. 437 ; note to section 257, ante page 347.
As soon as Judgment has been obtained.— This provision is probably
made in order to save expense. It is submitted that the judge could not
postpone the issuing of execution in such a case as this, and that sections
145 and 147 would not apply.
May be sold. — See notes so sections 232, 233 and 234.
As perishable. — See notes to section 263.
If sum- an I , Where the property of any person has been seized
personally, under a warrant of attachment as aforesaid, and a summons
has been personally served on such person before seizure
then the trial of the cause shall be proceeded with as if no
such warrant of attachment had been issued, and after
judgment execution shall forthwith issue unless otlierwise
ordered by the Judge. R. S. O. 1887, c. 47, s. 202.
Has been seized — See notes to sections 212 and 228.
Personally served — See notes to section 99, as to personal service. It
is to be observed that this section only makes provision where service is
made before seizure.
Execution shall forthwith issue unless otherwise ordered by the
Judge. — Contrast the language of section 200 as to the issuing of execu-
tion.
Section 145, restraining the issue of execution for 15 days would not
apply to a case under this section.
!36l!2« Subject to the provisions contained in sections 14
and 16 of The Act respecting Absconding Debtors, in order
to proceed in the recovery of any debt due by the person
Proceed-
ings
against
debtors
where
previously agaiust whose property an attachment issues, where process
has not been previously served, the same may be served
I
,*
PERISHABLE PROPERTY,
351
e as afore-
issued, or
such bond,
m obtained
d upon the
[gment and
cording to
1 perishable
3f the pro-
Igment and
)f the seizure :
[. F. Ins. Co.,
on is probably
idge could not
i that sections
I been seized
I a summons
fore seizure
v^ith as if no
I, and after
38 otherwise
202.
•nal service. It
/here service is
trdered by the
suiiif^ of execii-
lavs would not
n sections 14
ors, in order
y the peraon
^liere process
ly be served
either personally or by leaving a copy at the last place of >«««<>»
abode, trade or dealing of the defendant, with any person
there dwelling, or by leaving the same at the said dwelling,
if no person be there found ; and in every case, all sub-
sequent proceedings shall be conducted according to the
usual course of practice in the Division Courts ; and if it rov. stat.
appears to the satisfaction of the Judge on the trial, upon an^ie.^" ^*
affidavit, or other sufficient proof, that the creditor who sued
out an attachment had not reasonable or probable cause for
taking the proceedings, the Judge shall order that no costs
be allowed to the creditor or plaintiff, and no costs in such
case shall be recovered in the cause. R. S. O. 1877, c. 47,
s. 203.
Sections 14 and 16 of The Act respecting Absconding Debtors.— See
R. S. O. c. 66, pp. 760, 761. Section 16 of The Act respecting Absconding
Debtors will be found in the notes to section 249, ante p. 340.
The following is the other section of that Act which is here referred
to:—
PERISHABLE PKOPEBXY.
14 • In case horses, cattle, sheep, pigs, or perishable goods or chattels,
or such as from their nature (as timber or staves) cannot be safely kept or
conveniently taken care of, are taken under a writ of attachment, the
sheri£f who attached the same shall have them appraised and valued, on
oath, by two competent persons ; and in case the plaintiff desires it and
deposits with the sheriff a bond to the defendant executed by two free-
holders (whose sufficiency shall be approved of by tlie sheriff), in double
the amount of the appraised value of the articles, conditioned for the pay-
ment of the appraised value to the defendant, his executors or adminis-
trators, together vrith all costs and damages incurred by the seizure and
sale thereof, in case judgment is not obtained by the plaintiff against the
defendant, then the sheriff shall proceed to sell all oi any of such
enumerated articles at auction, to the highest bidder, giving not less than
SIX days' notice of the sale, unless any of the articles are of such a nature
aa not to allow of that delay, in which case the sheriff may sell such
articles last mentioned forthwith ; and the sheriff shall hold the proceeds
of the sale for the same purposes as he would hold property seized under
the attachment. R. S. O. 1877, c. 68, s. 14.
Has not been personally served. — See notes to sections 99 and 109.
At the last place of abode. — See notes to sections 81, 99, 109, and 235
as to service of process.
The usual course of practice. — See notes to section 261.
Reasonable and probable cause— If a man honestly believes in the
case which he lays before a judicial tribunal, such belief being based
on an honest conviction of the existence of circumstances which would
lead any fairly cautious man to such belief, he has reasonable and
probable cause for his action : Chattield v. Comerford, 4 F. & F. 1008 ;
Walker v. 8. E. Ry. Co., L. R. 5 C. P. 640 ; Lister v. Ferryman, L. R. 4
H. L. 521 ; Bank of B. N. A. v. Strong, 1 App. Cas. 307 ; Abrath v. N. E.
352
DISPOSAL OF PEUISHABLE PROPERTY.
Sections Ry. Co., 11 Q. B. D. 440 ; 11 App. Cas. 247 : Broad v. Ham, 5 N. C. 725, per
262-263 Tindal, C.J.; Shorsberv v. Osmaston, 37 L. J. N. S. 792; Hicks v.
Faulkner, 8 Q. B, D. 167 ; Shaw v. Mckenzie, 6 S. C. R. 181 ; McGill v.
Walton, 15 O. 11 389 ; Webber v. McLeod, 16 O. R. 609 ; Hope v. Evered,
17 Q. B. D. 338 ; Lea v. Cliarmington, 23 Q. B. D. 45, 272 ; Howard v.
Clarke, 20 Q. B. D. 558 ; Hamilton v. Cousineau, 19 A. R. 293 j Archi-
bald V. McLaren, (to be reported in 22 S. C. R.).
The Judge shall order. — This is imperative on the Judge.
That no costs be allowed. — This is a penalty which the Judge may
impose for the improper issue of an attachment. It would not effect the
right of action against the attaching creditor for improperly issuing an
attachment : Erickson v. Brand, 14 A. R. 614.
Power over the process of his own court is inherent in the Judge of a
Division Court as well as of other courts; and notwithstanding the pro-
visions of this section, a Judge may set aside an attachment which has
been improperly issued : In re Mitchell v. Scribner, 20 O. R. 17.
coodi'^how — <5Ji. Subject to the provisions contained in sections 14
disposed of. g^jj J 10 ot* The Ad respecthig Absconding Debtors, in case
horses, cattle, sheep or other perishable goods have been
taken upon an attachment, the bailiff' of the court who lias
the custody or keeping thereof (tiie snine having been first
appraised, in the manner in section 251 of this Act men.
tioned), may at the request of the plaintiff who sued out the
warrant of attachment, expose and sell the same at public
Eev. Stat, auctiou, to the highest bidder, giving at least eight days'
audiie. notice at the office of the bailiff' of the said court, and at
two other public places within his division, of the time and
place of the sale, if the articles seized will admit of being
so long kept, othei'wise he may sell the same at his discre-
tion. R. S. O. 1877, c. 47, s. 201; 49 V. c. 15, s. 15.
The Act respecting absconding debtors. -See notes to section 262,
ante p. 351, for section 14, and notes to section 249, aiite p. 340, for section
16 of the Act respecting Absconding Debtors.
Perishable goods. — It is submitted that the ejusdem generis principle
is not applicable in a case of this kind, and that "perishable goods"
should not be read as signifying property of the same kind or like
description as those specifically mentioned in the words preceding them ;
but would include, lumber exposed to the weather, fruit, fish, vegetables
or othrr chattel property of a perishable nature ; Bank of Nova Scotia
V. Ward, 21 N. S. Rep. 230 ; Cork and Bandon Ry. Co. v. Goode, 13
C. B. 836.
"Willes, J., said in Fenwick v. Schmalz, L. R. 3 C. P. at p. 315, in
reference to the construction to be placed on a statute, " that if the par-
ticular words exhaust the whole genus, the general word must refer to
some larger genus." .S't'c Stroud, 542-548 ; Sun Fire Office v. Hart, 14
App. Cas. 98.
CREDITOR TO INDEMNIFY OFFICER.
353
y issuing an
At the request of the plaintiff. — The request is a necessary condi- SectlonB
tion of the sale, as remarked by Coleridge, J., in R. v. Ellis, 6 Q. B. 506, 263-26B
that, "the inflexible rule attaches, that under a special power parties "
must act strictly on the conditions under which it is given."
For his own protection the bailiff had better take the " request " in
writing.
At least eight days. — This means "clear days," see note to sections
m and 125, ante pp. 129 and 176 ; Rumohr v. Marx, 3 C. L. T. 31.
The goods must be exposed and sold at public auction and to the
highest bidder. Any informality in the conduct of the sale would not
invalidate it, though it might subject the bailiff to an action, if damages
were sustained in consequence : Campbell v. Coulthard, 25 U. C. R. 621 ;
see notes to section 233.
May sell the same at his discretion. — A discretion is here vested in
tlie bailiff in regard to the sale of perishable property which cannot be
safely kept for eight days, and if he did not exercise his discretion within
the limits to which an honest man, competent to the discharge of his
office, ought to confine himself, and damage ensued, he and his sureties
would be responsible for it on their covenant : see 6 U. C. L. J. 250 ;
Wilson V. Rastall, 4 T. R. 757.
Care should be taken that the notice of sale is duly given according to
law : see notes to section 232.
I3(S4. It shall not be compulsory upon the bailiff or ^^^'jj.g*''
constable to seize, or upon the bailiff' to sell such perishable j^f^mnnify
goods, until the party who sued out the warrant of attach- ^ant.^'^"
iiient has given a bond to the defendant therein, with good
and sufficient sureties in double the amount of the
appraised value of the goods, conditioned that the party
<lirecting the seizure and sale will repay the value thereof,
together with all costs and damages incurred in consec^uence
of the seizure and sale, in case judgment be not obtained
for the party who sued out such attachment, and the bond
«liall be filed with the papers in the cause. R. S. O. 1877,
c. 47, s. 205; 49 V. c. 15, s. 15.
Has given a bond, &o. — If the oflicer neglects to obtain this bond, and
proceeds to sell perishable goods, it will be at his own risk.
He would not be entitled to indemnity from the plaintiff unless the
latter directed the sale : Barker v. Furlong, (1891), 2 Ch. 185 ; see 6 U. C.
L. J. 250.
For form of bond, see Forms.
2(S5. The moneys so made shall be by the bailiff paid ^^^'A"®-
over to the clerk, and the residue, if any, after satisfying p"^^** °'
such judgments, with the costs thereupon, shall be delivered
to the defendant or his agent, or to any peraon in whose
custody the goods were found ; and the responsibility of
1>.C.A.
-23
354
WHERE BOND MAY BE SUED.
*2M 267* ^^^ clerk in respect of such property shall cease. 49 V.
— ^ c. 15,8 16.
Shall be delivered to the defendant or his agent.— The residue of
the money, if any, after satisfying all judjiments and costs, must be paid
over as the section requires. If not so paid the person entitled could
maintain an action therefor, or might take summary proceedings under
section 277.
Responsibility of the clerk.— Is not the word " Clerk " intended to
mean " bailiff " ? The possession and responsibility for property seized
under attachment is vested in the latter, and no responsibility whatever
in respect of such property attaches to tlie clerk except such as might be
incurred by the improper or illegal issue of process, and from which he
is not released by this provision. Yet, accoi-ding to the rules of judicial
construction, the word " bailiff" cannot be here read for the word "clerk" :
see judgment of Denman, C. J., in Green v. Wood, 7 Q. B. 178 ; Morgan
V. Thomas, 9 Q. B. D. 643, 2J<'r Jessel, M.R.
Boud may
be sued in
bond.
!!2U6. A bond given in the coui-se of any proceedino-
theDivis- under this Act may be sued in any Division Court of the
ion Court. _ *' "^
'dei1ver"if ^ couiity wherein the same was executed, and proceedings
may be thereupon carried on to judgment and execution in
such court, notwithstanding the penalty contained in the
l)()nd may exceed the sum of ^j^lOO. R. S. O. 1877, c. 47,
s. 207.
May be sued in any Division Court.— In order to retain the Divi-
sion Court as that in which certain proceedings relative to that court may
be sued, it is here provided that a bond given in the course of any pro-
ceeding under the Act may be sued in any Division Court of the county
wherein the same was executed. It matters not what the penalty of the
bond may be — ^whether otherwise beyond the jurisdiction of the court or
not — it is by this section made suable in that court. This would not
deprive a party of the right to sue upon such bond in any higher court,
except at the risk of losing and having to pay the costs of such court :
Kennin v. Macdonald, 22 O. R. 484.
In an action on any such bond by the assignee of the bailiff, set-oft
could be pleaded, the penalty of the bond being considered as the debt :
McKelvey v. McLean, 34 U. C. R. 635.
hince the existence of counter-claim, we see eo reason why a defend-
ant should not have the right to set the same up in such action.
See also notes to section 35.
367. Every such bond shall be delivered up to the
party entitled to the same, by the order and at the discre-
tion of the Judge of the court, to be enforced or cancelled,
as the case may require. R. S. O. 1877, c. 47, a. 208.
Enforced or cancelled.— When a bond given in any Division Court
proceeding has served its purpose, the Judge of the court may order the
same to be delivered up, to be enforced, or cancelled, as the case may
require.
CLAIMS OF LANDLORDS AND OTHERS.
355
The right to the bond will depend upon the fact whether judgment Sections
has been given for or against the attaching creditor on the claim for 267-268
which he attached : see condition of bond, in Form.
CLAIMS OF LANDLORDS AND OTHERS IN RESPECT TO GOODS
SEIZED.
26H. (I) In the next isix sections, the word "kndlord" [^^^f^P^'^j
shall include the person entitled to the immediate reversion ^.''j^J'^'
of the land, or, if the pro[>erty be held in joint tenancy, '°''*'"
coparcenary or tenancy in common, shall inclu<le any one
of the pei-sons entitled to the reversion : and
(2) The word " at>-ent " shall mean any person usually " -^s^"*^"
employed by the landlord in the letting- of lands or in the
collection of the rents thereof, or specially authorized to act,
in any particular matter by writing- under the hand of the;
landlord. R. S. (). 1877, c. -l7, s. 209.
Joint-tenancy, coparcenary or tenancy in common. -Tho person
entitled to the " immediate reversion," would be any person entitled to
tho property immediately on the determination of the lease, as, for
instance, a tenant wlio has sub-let would be the immediate reversioner :
xee Laird v. Briggs, W. N. (1880), 205.
" Joint-tenancy " is a unity of interest, title, time and possession, that
is, joint-tenants have one and the same interest accruing by one and the
same conveyance, commencing at the same time and held by one and the
siinie undivided possession. One tenant cannot sue or be sued without join-
iug the other ; nor do any act to defeat or injure the other's estate ; nor, at
common law, have an action of waste or of account against his co-tenant.
Upon the death of one tenant the estate remains to the survivor. The
estate is destroyed by severing any one of the unities, and then becomea
a tenancy in common.
" Coparcenary " is where two or more persons together form one heir.
They have distinct estates, with right to possession in common ; and each
may alien his share. It has practically no existence in this province, as
since 1852, co-heirs take as tenants-in-common,
" Tenants in common," are such as hold by several and distinct titles,
but by unity of possession ; because none knows his own severalty, and
therefore, all occupy promiscuously. One tenant may hold in fee-simple,
the other in fee-tail or for life ; or one may hold by descent, the other by
purchase, or each by purchase from a different quarter; or the estate of
one may havo been vested for fifty years, and that of the other for a
single day. The only unity is that of possession; because no man can
certainly tell which part is his own. They take by distinct moities ; no
one has any entirety of interest ; hence, there is no survivorship between
tliem. As they differ from estates in severalty only in having the
possession blended, the estate is dissolved by uniting all interests in one
tenant, or by partition of the interests : Bl. Com. li^i-194.
'"^^f^'M^MlW
■■ill
^i :ii
■•,.i
,,^"*' ■*■■
,:s|i|{|i:
556
4i(eotlon
269
Claims of
landlords,
ete., to
goods
seized in
execution
how to be
adjusted.
Btiv. b^at.
0.66.
When
actions
respecting
the subject
matter
may be
stayed.
.Costs.
'Dounty
Judge to
adjudicate
•x>n claims.
INTERPLEADER.
30tK (1) In case a claim be made to or in respect of
any goods or chattels, property or security, taken in execu-
tion or attached under the process of a Division Court, or in
respect of the proceeds or value thereof, by a landlord for
rent, or by a person not being the party against whom the
process issued, then, subject to the provisions of The Act
respecting Absconding Debtors, the clerk of the court, upon
application of the officer charged with the execution of the
process, may, whether before or after the action has been
brought against such officer, issue a summons calling before
the court out of which the process issued, or before the
court holden for the division in which the seizure under the
process was made, as well the party who issued the process
as the party making the claim, and thereupon an}^ action
which has been brought in the High Court or in a local
or inferior Court in respect of the claim, shall be stayed.
(2) The Court in which the action has been brought, or
a Judge thereof, on proof of the issue of the sunnnons, and
that the goods and chattels or property or security were so
taken in execution or upon attachment, may order the party
bringing the action to pay the costs of all proceedings had
upon the action after the issue of the summons out of the
Division Court. R. S. O. 1877, c. 47, s. 210 (I, 2.)
(3) The County Judge having jurisdiction in such Divi-
sion Court shall adjudicate upon the claim, and make such
order between the parties in respect thereof, and of the
costs of the proceedings, as to him seems fit ; and shall also
adjudicate between the parties, or either of them, and the
>£)fficer or bailiff in respect of any damage or claim of or to
♦damages arising or capable of arising out of the execution
•of the process by the officer or bailiff, and make such order
in respect thereof, and of the costs of any proceedings as to
the Judge shall seem fit ; and the order shall be enforced
in like manner as an order made in an action brought in
the Division Court, and shall be final and conclusive be-
tween the parties and as between them and the officer or
THE CLAIM IN INTERPLEADER.
367
bailiff, except that upon the application of either the attach- Section
ing or execution creditor or the claimant, or the officer or
bailiff, within fourteen days after the trial, the Judge may
grant a new trial upon good grounds shewn, as in other
cases under this Act, upon such terms as he thinks reason-
able, and may in the meantime stay proceedings. 48 V.
c. 14, s. 6.
(4) In case the bailiff has more than one execution or
attachment at the suit or instance of different persons
against the same property claimed as aforesaid, it shall not
be necessary (or the bailiff to make a separate application
on each execution or attachment ; but he may use the names
of such execution or attaching creditors collectively in such
application, and the summons mav issue in the name of the
creditors as plaintiffs. 49 V. c. 15, s. 17.
(5) Under the provisions of sub-section 8 the Judge |^'°^^^ '*
shall have power to adjudicate upon and award damages, '^^^'o^ees-
even though the amount of damages claimed, found or
awarded should be beyond the jurisdiction of a Division
Court.
(0) In respect of any damages claimed, or of any judg-
ment, order or finding under the provisions of sub-sectiona
3 and 5 the parties and the bailiff applying, shall have the.
same rights of defence and counter-claim, including in all
cases the right and liability to costs, as would exist had an
action, within the jurisdiction of the Division Court, been
l)rought to recover the said damages. 48 V. c. 14, s. 7.
In case a claim. — At one time the claim had to be of a legal nature :
Sturt;e88 v. Claude, 1 Dowl. 505 ; Hurst v. Sheldon, 13 C. B. N. S. 750 ;
but that is not so now. The court will look at equitable as well as the
legal rights of the clainjant: Duncan v. Cashin, L. R. 10, C. P. 554;
Mcintosh V. Mcintosh, 18 Gr. 58; Schroederv.Hanrott,28L.T. N. S. 704 ;
Cunnell v. Hickock, 15 A. B. 518. It is competent for the claimant to
shew any facts warranting him to interfere with the process of execution
even if the property in the goods be in auother ; provided always tha',.
this will not work a surprise upon the execution creditor, and that the
claimant appears to be in privity with or claiming under the real
owner : Bryce v. Einnee, 14 P. R. 609.
An action need not be commenced before taking interpleader proceed-
ings : Green v. Brown, 3 Dowl. 337.
■Hiillll
358
WHEN OFFICER MAY INTEKPLEAD.
lii^
Section The claim must be made by a third party. A claim of lien is within
269 the statute : Ford v. Baynton, 1 Dowl. 357 ; Rogers v. Kennay, 9 Q. B. o!)'2 ;
or other special claim to the goods : Muckleston v. Smith, 17 C. P. 401.
So also if the goods are seized in the possession of a stranger : Allen
V. Gibbon, 2 Dowl. 292. But if such stranger claims them, the onus of
proving that they are exigible is upon the execution creditor : Gadsden
V. Barrow, 9 Ex. 514 ; Duncan v. Tees, 11 P. R. 6fi, 296 ; Doran v. Toronto
Suspender Co., 14 P. R. 103 ; Wintield v. Fowlie, 14 P. R. 102. But when
the evidence shows that the stranger, though in possession, and though
the execution debtor would be estopped from denying his title, has really
no legal or equitable title to the goods, the execution creditor is entitled
to succeed : Richards v. Jenkins, 18 Q. B. D. 451.
Under this Act, if the bailiff sells the goods without the claimant's
consent, he cannot interplead for the proceeds : Reid v. McDonald, 26
C. P. 147 ; Darling v. Collatton, 10 P. R. 110.
The claimant might pay the amount of the execution, and the bailiff
might then interplead as to the moneys : Paris Manufacturing Co. v.
Walls, 10 P. R. 138 ; Smith v. Critchfleld, 14 Q. B. D. 873.
Nor can the bailiff interplead where the goods are claimed by a third
party after the bailiff withdraws from the seizure : Holton v. Guntrip,
3 M. & W. 145. Nor where the goods are under distress for rent, as they
are then in the custody of the law, and the bailiff has no right to seize
them : Haythorn v. Bush, 2 Dowl. 641.
If the bailiff were placed in circumstances which gave him an interest
on either side, he could not interplead: Duddin v. Long, 3 Dowl. 139 ;
1 Bing. N. C. 299; Ostler v. Bower, 4 Dowl. 605, as where he has taken
an indemnity from one party : Adams v. Blackwell, 10 P. R. 168 ; Thomp-
son v. Wright, 13 Q. B. D. 632. Nor where he has brought about the
claim : Cox v. Balne, 2 D. & L. 718. Nor where he has been guilty of
neglect, and in consequence incurred a liability : Brq.ckenbury v. Laurie,
3 Dowl. 180; Millar v. Nolan, 1 L. J. N. S. 327.
The Crown cannot be a claimant; McGee v. Baines, 3 U. C. L. J. 151 ;
Candy v. Maugham, 6 M. & G. 710.
Where the goods have passed to an assignee in insolvency, see O'Cal-
laghan v. Cowan, 41 U. C. R. 272.
The bailiff should apply as soon as possible : Cook v. Allen, 2 Dowl. 11.
If, having seized goods in execution which are claimed by another
party, he delivers up part of the goods, the title to tliem being the same
as the others, he, " i^ fact colludes with the party to whom he delivers
them up," and disentitles himself to relief : Braine v. Hunt, 2 Dowl.
391.
The bailiff is not bound to accept an indemnity : Levy v. Champneys,
2 Dowl. 454.
But if he accept one he will not be relieved by interpleader : Ostler
V. Bower, 4 Dowl. 605.
The bailiff is entitled to interpleader unless he has acted dishonestly,
or his conduct has prejudiced either party: Holt v. Frost, 3 H. & N.821.
In the case of an execution against one personally, he may as execu-
tor make claim to the goods, and such is the subject of interpleader :
Fenwick v. Laycock, 2 Q. B. 1(; i.
The interpleader summons must be taken out before money is paid
over to the creditor, though the bailiff had notice before : Anderson v.
Calloway, 1 C. & M. 182.
If the claimant has possession of the goods at the time of seizure, even
though lent to him, that is sufficient to sustain his claim, and if the
OFFlCEIt To ItETAlX l'()SSESSR)N.
359
.C.L.J. 151;
creditor willies to show a higher ri<<ht in himself, he must displace that Section
prima facie titl« wliich possession yives: Green v Stevens, 2 H.(& N.IKJ; 269
Hhingler v. Holt, 7 H. & N. 65 ; Porter v. Flintoff, 6 C. P. 337 : Mason v.
Morfjan, 24 U. C. R. 328.
Execution creditors in the Division Court should be made parties to
interpleader proceedings in the High Court: Mactie v. Hunter, 9 P. R.
uy.
A married woman may sustain a claim on interpleader : Shingler v.
Holt, 7 H. & N. Co; R. S. O. c 132, ss. 3 and 14.
Interpleader proceedings apply to foreigners residing abroad : Atten-
borougli V. London & St. Katharines Dock Co., 3 C. P. D. 450 ; Belmont
V. Aynard, 4 C. P. D. 221, 352; The Credits Gerundeuse (Limited) v.
Van Weede, 12 Q. B. D. 171.
Growing crops are the subject of seizure and sale, and, consequently,
can be the subject of an interpleader issue in the Division Court:
Ingrain v. Taylor, 7 A. R. 2U); Grass v. Austin, 7 A. R. 511; Hamilton
V. Harrison, 4(5 U. C. R. 127 ; Haydon v. Crawford, 3 O. 8. 583 ;
Campbell v. Cushman, 4 U, C. R. 9 ; Hamilton Provident & Loan Co. v.
Ciimpbell, 5 O. R. 371.
A claim to goods under the revenue laws could not be sustained :
Uanie v. Carberry, 10 U. C. R. 374.
It frequently becomes a question with a bailiff whether he is bound to
interplead unless the amount is prepaid or security is given to him for
the costs which he must necessarily incur by interpleading. No pro-
vision has apparently been made for such a case. We think if he desires
to protect himself he should interplead under any circumstances.
An action of trespass may be brought pending an interpleader issue :
per Denman, C.J., Hooke v. Ind. Coope & Co., 3«) L. T. N. S. 467. But
under the provisions of tiiis section it would be immediately stayed on
the issue of tiie interpleader summons : nee sub-section 1 ; Smith v.
Critchfiold, 14 Q. B. D. 873,
Where more goods are seized than claimed, the claimant must in his
particulars of claims, specify the particular goods which he claims : Price
V. Plummer, 20 W. R. 45; Plummer v. Price, 39 L. T. N. S. 057.
Where on a claim being made to goods seized by a bailiff the execu-
tion creditor does not direct the bailiff to give up the goods to the claim-
ant, but appears and contests his title in interpleader proceedings, it was
hold no evidence of a ratification by the execution creditor of the bailiff's
detention : Toppin v. Buckerfield, 1 C. & E. 157.
Should the bailiff, with the consent of the execution creditor and the
claimant, temporarily withdraw from possession of the goods or chattels,
they would no longer be under seizure, and a landlord could distrain
upon them for rent, although he knew that the interpleader proceedings
were pending : Cropper v. Warner, 1 C. & E. 152 ; nee Craig v. Craig, 7
P. R. 209.
A Division Court bailiff, under our law has no alternative but to keep
possession of the goods or chattels seized, and should he take a bond
from the debtor and allow him to remain in possession of the goods, or
otherwise abandon the possession, the rights of other creditors or of a
landlord would prevail : Roe v. Roper, 23 C. P. 76 ; Williams v. Grey,
23 C. P. 5(il ; Blades v. Arundale, 1 M. & S. 711 ; Darby v. Waterlow, L. R.
3 C. P. 453, and cases cited supra.
Should the'execution creditor be prejudiced by the bailiff's abandon-
ing the seizure, the latter would be liable: Maclean v. Anthony, 6 O. R.
330 ; and the goods would, in case of doubt, be presumed to be sufficient
to satisfy the execution : Donnelly v. Hall, 7 O. R. 581.
■Ill
860
APPLICATION FOR SUMMONS.
3:
4,,
Section The officer of a Division Court is not required to retire from posses -
269 sion of goods that he has seized, because an interpleader summons has
been issued : Ex parte Summers, 18 Jur. 522.
Taken in Execution or Attached. — Goods must be " taken in execu-
tion or attached," that is, they must be seized before a baihff can inter-
plead : Goslin v. Tune, 2 U. C. R. 177; Ogden v. Craig, 10 P. R. 378.
ProceedB op value thereof. —This is analogous to money in the
sheriff's hands about which interpleader can be had: Scott v. Lewis,
2 C. M. .fe R. 28!) ; Hall v. Kissock, 11 U. C. R. 9; Booth v. Preston &
Berlin Ky. Co., 6 U. C. L. J. 57.
But under this section t.here can only be an interpleader " in respect of
the proceeds or value," where a claim is made to the same ; and should
the claim be made to the (/oods, there could be no interpleader as to the
proceeds: Reid v. McDonald, 2(> C. P. 2iM) ; nee also McArthur v. Cool,
19 U. C. R. 476 ; Watson v. Henderson, 6 P. R. 299 ; unless sold by con-
sent of the claimant : Darling v. CoUatton, 10 P. R. 110.
By a landlord for rent. — Should the bailiff, for instance, have reason
to believe that a landlord's claim for rent was merely fictitious, or that no
rent was due, or in any such case, then it would be his duty to interplead.
The party claiming must virtually be a third party : Fenwick v. Laycock,
2 Q. B. 108; 3 U. C. L. J. 197-214 ; 4 U. C. L. J. 12-38.
Upon the application of the officer. — " Th ' clerk ought not, without
the application of the bailiff to have issued the su.nmons : " per Draper, J. ,
R. V. Doty, 13 U. C. R. p. 400; but if both parties appear the objection
would be waived : lb.
" Every bailiff deeming it necessary to seek the protection of an inter-
pleader should act promptly in the issuing of a summons. He may pro-
ceed either in the court from which execution issued, or the court for the
division in which he makes the seizure when it happens that the seizure
is made in another division. The application to the clerk should be in
writing, and care should be taken to obtain the correct name and address
of the claimant. The goods claimed should also be specified, and the
reasonable value set down to guide the clerk in rating the fees, and for
the information of the court. The date of the seizure should also be
named. The following, or a form to the like effect, would answer :
Bailiff's application for Interpleader Summons,
In the Division Court, County of
Between A. B., Plaintiff,
and
C. D., Defendant.
By virtue of a writ of execution (or " attachment ") in this cause,
dated the day of , 18 , from this court, I did on the
day of , 18 , seize and take in execution (specify
goods, chattels, dc, claimed as the property of the defendant, the follow-
ing goods and chattels, viz., one horse and, &q., the whole about the value
of dollars. E. F, of the township of ,
&c., now claims the same as his property. You will therefore be pleased
to issue an interpleader summons to the plaintiff and to the said E. F.
according to the statute in that behalf.
To clerk of the Division Court, County ,
Dated, &c. : 4 U. C. L. J. 88. Bailiff."
The issue of the interpleader summons does not remove the case from
the control of the court : Wicks v. Wood, 26 W. R. 680. '
Issue a summons. — The issue in such a case is, whether the goods
taken under the attachment were at the time of ttie seizure the property of
the claimant, as against the creditor : Doyle v. Lasher, 16 C. P. 263 ;
COSTS OF INTEUFLEADEH.
361
from poBses-
imtnons has
;en in execu-
if can inter-
>. R. 378.
oney in the
»tt V. Lewis,
T. Preston &
in respect of
; and shoukl
der as to the
thur V. Cool,
sold by con-
, have reason
as, or that no
ko interplead,
k V. Laycock,
not, without
er Draper, J.,
the objection
n of an inter-
He may pro-
court for the
s,t the seizure
should be in
e and address
tied, and the
fees, and for
lould also be
B,nswer :
aintiff,
efendant.
n this cause,
I did on the
ution (specifif
it, the follow-
jout the value
ore be pleased
ihe said E. F.
Bailiff."
the case from
her the goods
lie property of
16 C. P. 263 ;
I
Van Every v. Rosa. 11 C. V. 133 ; CuUoden v. McDowell, 17 U. C. R. 3r>9 ; Section
McDowell v. McDowell, 10 II. C. L. J. 48 ; Watts v. Howell, 21 U. C. R. 269
p. 2','.} ; Merchant's Bank v. Herson. 11> L. J. N. S. 353 ; 10 P. R. 117. But
it is immaterial who is the plaintiff, the object of the proceeding bcin^
to inform the conscience of the court whether the creditor has a ri^ht to
seize the goods: Muckleston v. Smith, 17 C. P. 4uo ; Edwards v. English,
7 E. A B. 6(54 ; Bryoe v. Kinnee, 14 P, R. .509.
The execution creditor is not liable for the seizure : Walker v. Olding,
1 H. & C. 621 ; Tinkler v. Hilder, 4 Ex. 187 : unless directed by him or
his agent : Wilkinson v. Harvey, 15 O. R. 346.
In Slaght v. West, 25 II. C. R. 391, it was held that a solicitor had
implied authority to direct a seizure, but the contrary was iield in Smith
v. Keal, 9 Q. B. D. 340 ; and a solicitor retained to collect a debt is not
entitled te interplead without a further retainer for that purpose :
Hackett v. Bible, 12 P. R. 482.
Before the Court holden for the Division. — Should a bailiff be called
on to enforce an execution from another Division Court in the same
county, and a claim made to the poods, he could issue summons from his
own court ; and the same rule would apply if a bailiff went out of his own
division to make a seizure. The claim must be adjudicated upon in the
court from which the execution issued, or in which the seizure was made :
Washington v. Webb, 16 U. C. R. 232.
Any action brought, etc., shall be stayed.— When interpleaper
process is issued, the effect is to arrest all procev. lings in any action that
may have been commenced against the bailiff connected with the claim.
The regularity of the proceedings in tl.e Division Court will not be
inquired into on an application to stay proceedings : Finlayson v. Howard,
1 P. K. 221. An action of replevin for the same goods about which an
interpleader issue was tried will be stayed : Caron v. Graham, 18 U. C. R.
315. The application to stay proceedings can only be made before the
adjudication on the interpleader summons ; if made after, application
will be refused, and the defendant can only plead the adjudication :
Schamehorn v. Traske, 30 U. C. R. 543; gee Harmer v. Cowan, 23
U. C. R. 479.
Under the power to stay proceedings the court or Judge has power to
stay the action against the execution creditor as well as the officer :
Carpenter v. Pearce, 27 L. J. Ex. 143, and the words of the statute here
are imperative.
The Judge cannot reverse, change or alter his decision, if the appli-
cation for new trial is made after the time has elapsed : lie Foley v.
Moran, 11 P. R. 316; Bland v. Rivers, 19 O. R. 407.
Judge to make order. — When the Judge has formally declared his
decision, and when the same is embodied in an order, it then becomes
evidence of the adjudication mentioned in the statute.
The costs of the proceedings. — The Judge could not adjudicate upon
any question of costs, except costs of the proceedings mentioned in the
statute : Hansen v. Maddox, 12 Q. B. D. 100.
It will be observed that the subject of costs in mentioned twice in this
sub-section : Ist, in regard to the costs of the interpleader proceedings to
test the right to the goods seized, and 2nd, in respect to the costs of the
proceedings incident to the enquiry as to damages. As to the question of
costs between the parties to the interpleader issue it may be said that
costs should usually follow the result. It is a rule generally observed
and subject to few exceptions, if any : Seaward v. Williams, 1 Dowl.
528; Scales v. Sargeson, 3 Dowl. 707; Wills v. Hopkins, 3 Dowl. 346;
Bank of Montreal v. Little, 17 Gr. 685.
'1!
Bif
'iniiiftiM i
(!ii 1
362 THE JUDGE TO TKV AM. CASES.
Btotlon When each party Huccoeds aH to pirt, the cosIh will ho apportioned :
269 LevviH v. Holding, H Hcott. N. H. llll ; Staliy v. liedwell, V, A. A K. 14") ;
Clifton V. Diivia, (i I'l. ,V H. H'.fJ ; Dcniijscy v. Ciispar, 1 P. H. l;U ; Citrter
V. Stcwiirt, 7 1'. U Hil; Sunswortli \ Wrr'idan H. IMatin^ Co , H O H. ll;>.
HhoulfJ eitlicr tiio execution creditor or tlie chiiniant, after the iHsiicof
the intopleiider unmnionH, winh to abundou all claim to the «>oodB. it in
not definitely ( stablished what the effect of doinjj ho would bo on the
question of coHtw.
If an execution creditor had not given any inHtructions as to the
Hoiznrc of the ^^(jods, and on boinj^ made aware of it had yivon notice
abandoninj,' all claim to them, it is submitted that he could not be lield
reHjjonHible for costs: Wilkins v. Peatman, 7 P. H. 8i; Caiiadiiui IJank
of Coiinni lee v. Tasker, H P. R. ;J51 ; Rood v. Gun and Shot and
GrittiuH Wharves Co., 2H L. T. N. 8. C35: istaden v. VanHtaden,
10 V. II. i2H.
Tiie question of costs eannot be comsidereit ». .ore the disposal of the
issue: Halter v. McLcod, 10 U. C. L. J. '2!>y.
Sliould there manifestly appear to be no bond fide claim to the ^oods
by a claimant, he could not, it is submitted, obtain security for costs
from the otlier party : Doer v. Rand, 10 P. R. It'ij ; Do St. Martin v.
Davis, W. N. (1H81), 8(1; Anglo-American v. Rowlin, 20 L. J. N. S. 371 :
Tondinson v. Land and Finance Corporation, 14 Q. B. D. 530.
Ah security for coats can now be ordered in the Division Court : lie
Fletcher v. Noble, 1) P. R. 25/3, the writer sees no reason why sucii
security cannot bo ordered in an interpleader issue : Lovell v. Wardroper,
4 P. R. 20") ; Swain v. Htoddart, 12 P. R. 400.
Where the claimant fails the bailiff's costs are to be allowed to him
out of the amount levied unless otherwise ordered.
If the bailiff does not retain liis costs out of the amount h.'vied, he
cannot, if the claimant has been ordered to pay the coats sue the execu-
tion creditor for them : Bloor v. Huston, 15 C. B. 2(10.
The Hifih Court would have no power to interfere with the discretion
exercised by the Judge of the Division Court on a question of costs :
Churchward v. Coleman, L. R. 2 Q. B. 18.
Independently of the Judge's order there would be no duty cast on
either execution creditor or claimant to pay the costs of the interpleader
proceedings: Bloor v. Huston, 15 C. B. p. 275.
Where judgment had been given in an interpleader issue, and the
Court (if Appeal reversed it, it was held that that part relating to costs
was reversed too : Gage v. Collins, L. R. 2 C. P. 881.
The County Judge having jurisdiction. — Should the summons not
properly bj issuable from the court from which it was issued, the Judge
would have no jurisdiction : nee notes to sections 21, 69 and 70 ; but i^ee
Haldan v. Beatty, 43 U. C. R. 614.
Shall adjudicate upon the claim.— The language is imperative, and
the Judge has no alternative but to adjudicate on the questions which ai-e
properly presented to him in the interpleader issue. The adjudication
here mentioned is simply the judicial determination of some question or
questions in dispute between the parties to the interpleader issue.
As to the right of a party to an interpleader issue to demand a jury,
and the issues to be tried in such a case, see section 155 and notes
thereto.
Unless a new trial is moved for as prescribed by this subsection, the
decision of the Judge is final and conclusive as to the goods or the pro-
ceeds thereof: R. v. Doty, 13 U. C. R. 398 ; Keane v. Stedman, 10 C. P.
;
'■.
A
Au
fmmm
CLAIMS FOR DAMAGES.
8()3
pportioned :
,\.X ]•:. 14-.;
l;iJ : CiirtiT
, H U U. 1 l.i.
r the iHsiu'of
3 noods. it iH
il bu uii the
iH UB to the
yiven notice
I not he held
iidiiui tiank
d Shot and
Vanhtaden,
^posal of the
to the t^oods
•ity for costs
It/ Martin v.
.1. N. S. 371:
iJJlt.
)n (!ourt : Iti'
m why sucii
. Wardroper,
owed to him
mt levied, he
le the oxecu-
he discretion
on of costs :
duty cast on
interpleader
sue, and the
itinn to costs
ummons not
jd, the Judge
d 70 ; but nee
perative, and
jns which are
adjudication
e question or
issue.
niand a jury,
'j'i and notes
b-section, the
Is or the pro-
nan, 10 C. P.
435; Williams V. RichardBon, 3(1 L. T. N. 8. 506; Turner v. Uiidgett,
11 Q. IJ. 1). 55.
Damages, etc., arising out of the execution of the process. Thi<<
lirovision i.-t taken from the Kn^lish statule, HO A 31 V. c. 12, s. 31 {nee
now, Tiie County Court, 18HH, .'il A 5'2 V. c. '13, s. 1 r»7). Tiio material words
lire exactly alike in both statutes, changes being made in our statute to
suit the altered circumstances.
The Judge has power, and it is his imperative duty, not only to adjudi-
cate between the parties to the issue or cither of them, but also as
ijctween either of them and theotTicer or l>ailiff in respect of any danuige,
or claim of or to damages arising or capable of arising out of tiie execution
of tiie process by the oflicei or bailiCT.
The words of the section are very comprehensive, and are intended to
cover, and it is submitted do cover all and every claim for damages
wliicli any of the parties would have had against tiie other in any way
arising, or that by possibility might arise out of the execution of the
process.
It is submitted that a lilu ral interpretation should be given to the
clause and tluit it would he applicable to the case of a seizure made
under warrant of attaclinient issued by a County Judge or justice of tlie
puaco under section '250, if damages ensue. Sliould any of the parties
iiave any claim for damages, within the meaning of this provision, it
should he asserted in the interpleader issue, and if the party having
such claim should lie idly by and allow the Judge to adjudicate upon the
other questions only, he would be precluded from making the claim in
luiother action : Death v. Harrison, L. II. (5 Ex. 15 : 1 ox v. Symington,
13 A. 11. y'.tfi. The section was enacted following the English statute after
tlie decision of Farrow v. Tobin, 10 A. II. (5!), which probai)ly suggested
the amendment.
But an action might still be maintained against the purchasers of the
goods : Hills v. Ilenny, 5 Ex. D. 313.
The English .\ct contains a provision for staying procoodiiigs in any
action between any of the parties, " in respect of such cluinis or of any
damage arising out of the execution of such process." The language is
somewhat wider than that of sub-section 1, but qiKrre, whether it has
any greater effect : Smith v. Critchfield, 14 Q. B. D. 873.
What damages may be given must of course depend on the circum-
stances of .each particular case. But it is submitted, that the object of
allowing the bailiti to interplead is that he may be protected'against the
adverse claims of the execution creditor and the claimant, and so that
they may fight out the question of the ownership of the goods between
t!">"i8elves.
The bailiff stands in this position. If he does not seize, the execution
creditor may sue him and his sureties for misconduct. If he seizes, the
claimant may sue him for trespass and conversion. It would, in fact, be
no protection to the bailiff to mulct him in damages, if acting honestly
in the execution of his duty he seized goods which in fact belonged to
the claimant. The principles of interpleader and the principles of
practice of the High Court may well be followed in a case of this kind.
In Smith v. Critchfield, 14 Q, B. D. 873, at page 878, Brett, M.R.,
said : — " It is not of course in every case that the Judge will protect the
sheriff. He will be protected when he has only made an honest mistake
in executing the powers of the court, and but for such mistake everything
that has been done would have been justified by the writ."
Within fourteen days. — See notes to sections 145 and 146, as to
application for new trial. At one time there was no power to grant a
Section
269
rmfmmmfn
364
Seotlbn
269
PARTIES 'aO interpleader.
new trial in cases of interpleader in the Division Court : B. v. Doty,
13 U. C. B. 398 ; and unless a new trial is moved for within the proper
' time now, the Judge's decision is irrevocable in such cases : Re Foley v.
Moran, 11 P. R. 316 ; Bland v. Bivers, 19 O. B. 407.
Any one of the three parties may apply for a new trial : (1) The
attaching or execution creditor; (2) The claimant; (3) The officer or
bailiff.
Upon such terms as he may think reasonable.— The usual power to
impose terms on granting a new trial is here conferred on the Judge.
This is a discretion which should not be exercised arbitrarily, but accord-
ing to the principles of reason and justice, and with a due regard to the
rules of law applicable to such cases : see notes to section 175.
As to the imposition of terms see notes to section 109, ante page 149.
Sub-section 4.— Summons may issue in the names of the creditors as
plaintiffs. — The application by the bailiff for an interpleader summons
and the summons to be issued by the clerk in pursuance of it, must give
the names of all the execution or attaching creditors as in the suits,
and all must be duly served in order to bind them. Should a bailiff dis-
regard this section he, as an officer, would be subject to the si.mmary
jurisdiction of the court, and would be made to bear the unnecessary
expense, and the cases too would be consolidated : Merchant's Bank v>
Herson, 10 P. R. 117.
In interpleader proceedings, in the High Court of Justice or County
Courts, the sheriff must, where there are Division Court execution
creditors, bring them in on the application : Maclie v. Hunter, 9 P. B.
149; C. B. 1156,1101, 1162.
The issue of the interpleader summons assumes the right of the execu-
tion creditor to seize the goods of the execution debtor by virtue of a
udgment recovered or attachment issued against him, and subsequently
the execution creditor is not bound to prove a judgment : Holden v.
Langley, 11 C. P. 407 ; Vindin v. Wallls, 24 U. C. B. 9 ; Doyle v. Lasher,
16 C. P. 263 ; McWhirter v. Learmouth, 18 C. P. 136.
Quare, whether a subsequent execution creditor could contest tie right
of a prior execution creditor to the goods or their proceeds on the ground
that his judgment was void as against creditors ?
The judge has full power to try the question of damages, no matter to
what amount such damages may be.
As to the right of appeal in interpleader cases, see section 148, s-s. (2)
and notes thereto.
It is submitted that the doubt whether an appeal lies from the deter-
mination of the judge, on a question of damages in such cases, by Fox
V. Symington, 13 A. B. 296, at page 302, has been removed on the
revision of the statutes by section 148, s-s. (2). The better opinion seems
to be that an appeal will lie at the instance of a landlord who has been a
party to the interpleader proceedings : Wilcoxon v. Searby, 29 L. J. Ex.
154.
Where neither the value of the goods claimed nor the proceeds thereof
exceed ftlOO, an appeal dees not lie, even by leave of the Judge : Collis
V. Lewis, 20 Q. B. D. 202 ; see also. White v. Mihie, W. N. (1887), 256.
Sub-seotion 6— Defence and Counteroiaim.— See section 75 and 76
and notes thereto. The right is apparently given to the bailiff to
counter-claim in case it is sought to recover damages against him. This
is practically allowing him to sue in his own court, notwithstanding
section 88.
LANDLORD\S CLAIM FOR RENT.
365
R. V. Doty,
in the proper
; Re Foley v.
■ial : (1) The
he officer or
ual power to
n the Judge.
ir', but accord-
regard to the
0.
te page 149.
I creditors as
er summoiiH
it, must give
in the suits,
a bailiff dis-
;he simmary
unnecessary
nt's Bank v.
ce or County
irt execution
inter, 9 P. R.
of the execu-
y virtue of a
subsequently
;: Hoiden v.
rle V. Lasher,
test the right
n the ground
no matter to
1 148, s-s. (2)
3m the deter-
ases, by Fox
3ved on tlie
ipinion seems
lo has been a
29 L. J. Ex.
ceeds thereof
udge : Collis
(1887), 256.
on 75 and 76
he bailiff to
it him. Thia
withstanding
370. So much of the Act passed in the eighth year of SMtion
the reiffn of Queen Anne, intituled An Act for the better
^ . Sr , -, ^ '' . J 1 Provisions
security of Rents and to prevent Frauds committed by in relation
Tenants, as relates to the liability of goods taken by virtue ^ue^ to
of any execution, shall not be deemed to apply to goods
taken in execution under the process of any Division
Court, but the landlord of a tenement in which any such
goods are so taken may, by writing under his hand or
under the hand of his agent, stating the terms of holding
and the rent payable for the same, and delivered to the
bailiff making the levy, claim any rent in arrear then due
to him, not exceeding the rent of four weeks when the
tenement has been let by the week, and not exceeding theo.'il"^'
rent accruing due in two terms of payment where the tene-
ment has been let for any other term less than a year, and
not exceeding in any case the rent accruing due in one year.
R. S. O. 1877, c. 47,8.211.
Goods taken by virtue of any execution. — The statute of Anne
prevented the sheriff from removing "goods seized" under execution,
without paying the rent of the premises in arrear, " not exceeding the
rent for one year."
The County Courts Act, 1888, (51 and 52 V. c. 43, b. 160) contains pro-
visions very similar to those made by this and following sections.
It is submitted that goods seized under an attachment against an
absconding debtor are not, under this section, subject to the landlord's
claim for rent.
The section would apply to an execution for costs of defence : Henchett *
V. Kimpson, 2 Wils. 140.
Landlord's claim for rent--Tlie landlord of a tenement.— "Tene-
ment," though in its vulgar acceptation is only applied to houses and
other buildings, yet, in its original, proper and legal term signifies every-
thing that may be hoiden, provided it be of a permanent nature ; whether
it be of a substantial and sensible, or of an unsubstantial ideal kind : "
2 Bl. Com. 16 ; Stroud, 974.
The notice cannot be given unless there is an existing tenancy at a
fixed rent ; and if the tenancy should be determined or has expired the
notice could not be given : Cook v. Cook, Andrew, 219 ; Riseley v. Ryle,
10 M. & W. 101; and Riseley v. Ryle, 11 M. & W. 16. A mere agreement
for a lease under which no rent has been paid would not be sufficient :
lb.; see Hand v. Hall, 2 £x. D. 355. Nor does the statute apply if
the lease has been legally determined by a notice to quit or by entry
or ejectment for a forfeiture: Hodgson v. Gascoigne, 5 B. & Aid.
88. It applies to forehand rents payable in advance: Harrison v.
Barry, 7 Price, 690; Duck v. Braddyll, MoClel. 217; and even when
reserved in a mortgage by way of further security for interest : Yates
V. Rutledge, 5 H. & N. 249; Trust & Loan Co. v. Lawrason, 10
S. C. R. 679; Ontario Loan ib Debenture Co. v. Hobbs, 16 A. R.
aww^f*
366
CASES TO WHICH STATUTE APPLIES.
!•••'■■■• ■■
jilSr^'ii ;9t|l|l.i
Section 255 ; 18 S. C. K. 488. The statute would apply to cases of lessee
270 and undertenant of apartments : Thurgood v. Richardson, 7 Bing. 428.
rjj^g landlord can only claiqi rent which was due at the time of the
seizure, and not what accrued afterwards : Hoskins v. Knight, 1 M. A S.
245; Reynolds v. Barford, 7 M. A G. 449; Tomlinson v, Jarvis, 11
U. C. R. 60 ; Vance v. Ruttan, 12 U. C. R. 632. And this is also the law
as to growing crops : Congreeve v. Evetts, 10 Ex. 21)8 ; Wharton v. Nay-
lor, 12 Q. B. 673. It is to be observed that the words of the section
are "any rent in arrear then due." The Statute of Anne was construed
liberally, and in favour of the landland : Henchett v. Kimpson, 2 Wilrf.
111. We see no reason for construing this section in any different spirit.
This provision would not apply to a case where the landlord was himself
the execution creditor : Taylor v. Lanyon, 6 Binij. 530. Where the execu-
tion creditor pays tlie landlord the rent after seizure, the bailiff holds
the proceeds of sale for the repayment to the creditor of the rent paid and
the amount of the execution : Lockhart v. Gray, 2 L. J. N. S. 163. Under
the Statute of Anne it is not necessary to give notice "in writing"
to the sheriff: Brown v. Ruttan, 7 U. C. R. 97; Sharpe v. Fortune, 9
C. P. 523; Tomlinson v. Jarvis, 11 U. C. R. 60; City of Kingston v.
Shaw, 6 U. C. L. J. 280; Corp. Kingston v. Shaw, 20 U. C. R. 223; but
under this statute written notice is rendered necessary : Re McGregor v.
Norton, 13 P. R. 223. The landlord could not distrain the goods for
rent after seizure by the bailiff: Sharpe v. Fortune, supra; Craig v.
Craig, 13 L. J. N. S. 326, The fact of a landlord having joined in a
bond that the goods distrained should be forthcoming for sale upon a
ft". /(/. was held not to prejudice his claim for rent: Brown v. Ruttan,
7 U. C. R. 97; nor would the landlord's having distramed and after-
wards abandoned the distress, nor even his having bid at the sale of the
goods, prejudice such claim for rent : lb. In Vance v. Ruttan, 12 U. C. R.
632, the facts were that premises had been let for a year at a rental of
£75, to bo paid on the first of May ; and it was agreed that if the tenant
should leave before the first of May, the rent was to become payable
immediately, xhe tenant left on the Saturday before the first of May,
and on Monday the goods were seized under execution ; it was Md that
the landlord was entitled to his rent. Should a bailiff, acting in good
faith for all concerned, agree to pay for havmg grain threshed for the
>;nrpose of its better sale, the expenses o' such threshing would be
• allowc;'. him : Galbraith v. Fortune, 10 C. P. 109. Should a bailiff merely
make an inventory of goods seized, leaving no one in possession of them,
they would not be in the custody of the law so as to prevent the landlord
claiming for the rent due at the time the execution was subsequently
attempted to be enforced : ilart v. Reynolds, 13 C. P. 501 ; but being
absent for a mere temporary purpose is not an abandonment : Gordon
v. Rumble, 19 A. R. 440 ; Coffin v. Dyke, 48 J. 1'. 757 ; nor if they were
left in the hands of a person who undertook to be responsible : Lossing
v. Jennings, 9 U. C. R. 406 ; Daffus v. Creighton, 14 S. C. R. 740. Where
at the time an execution was placed in the sheriff's hands there was a claim
for unpaid rent, it was hekl that the sheriff could not delay the seizure until
the execution creditor first paid off the rent. His proper course was to
seize, but he was not compelled to sell until the rent was paid ; and if
tlie execution creditor would not pay it, he might withdraw from posses-
sion. In this case the sheriff abstained from seizure on receiving notice
of the rent being due, of which the execution creditor was aware when
he issued the Ji.fa. ; and, before he seized, certain crops were removed,
sufficient to pay the plaintiff's claim ; it was held that the sheriff was
liable : Locke v. McConkey, 26 C. P. 475. The same principle would
apply in the case of a bailiff. Should a bailiff realize the amount of an
execution, he could not justify the retention of the money on the ground
that the landlord had made a claim to the whole of it for rent, which he
landlord's notice of rent due. 367
had not been able to prove the truth of: Hall v. Badden, 7 L. T. N. S. Sections
721. When the bailiff has received notice of rent due he should endeavour 270-271
to secure legal evidence on that point, and, if possible, inspect the lease,
or make inquiry about the terms of holding : Augustien v. Challis, 1 Ex.
27!), per Pollock, C.B., at page 280. He should also forthwith give a
copy of the notice to the execution creditor or his attorney, so that, if so
advised, he might question the landlord's claim under section '2(19, or
otlierwise. Although goods seized by a bailiff could not be distrained in
his custody, still such goods must be removed within a reasonable time
after the sale in order to protect the riehts of the purchaser against a
distress for rent : Hughes v. Towers, IG C. P. 287.
Stating the terms of holding. — The terms should be particularly set
out, so that the bailiff may receive such reasonable information as will
enable him to decide upon what course to pursue : Tomlinson v. Jarvis,
11 U. C. U. (50. If the bailiff should disrej,'ard the notice he would be
liable : Galbraith v. Fortune, 9 C. P. 211; Rober+,son v. Fortune, 9 C. P. •
427. The " writing" is by the statute required to contain particulars;
and in that respect this section differs from the Statute of Anne : Sliarpe
v. Fortune, 9 C. P. 523. The form of landlord's claim for rent will be
found in the forms. It must be in writiiui, under the hand of tlie landlord
or his agent. Care should be taken in drawing up the notice, and the
bailiff should have nothing to do with it ; otherwise, in the event of
dispute, he might have no right to an interpleader : Cox v. Balne, 2 D. A L.
718. The notice should be given before tiie sale, so that the bailiff might
sell for the rent as well, under the 271st section : see Arnitt v. Garnett,
3 B. & Aid. 440. As to the claim of the landlord generally, see 6
IJ. C. L. J. 228, 261 ; 7 U. C. L. J. 13, 14.
We must impress on the landlord and bailiff the necessity for a close
observanceof this section, for if the landlord does not observe the require-
ments of iu, his claim might not be recognized, no matter how well
founded, and if the bailiff recognized a claim that was not founded on a
pioper observance of the statute by the landlord he would be liable to the
execution creditor for the money which he had so improperly paid the
landlord.
No time is limited for the claim to be made by the landlord. It is
submitted, however, that the claim should be made before any goods have
been removed from the premises, so that a distress may thereafter be
made pursuant to section 271.
Shall distrain. — The bailiff cannot distrain for the rent upon the
goods of a stranger, any more than he can seize such property on the
execution : Heard v. Knight, 8 E. & B. 8Go; Foulger v. Taylor, 5 H. & N.
202 ; see R. S. O. c. 143, s. 28.
It is doubtful whether exempted goods may be seized, but if the land-
lord has given the notice required by sub-section 4 of section 30 of R. S. O.
c, 143, and the tenant does not offer to give up possession, there would
seem to be no reason why the exemptions could not be taken.
The bailiff can be sued by the landlord for the money which he makes
for rent, as money had and received : Lockhart v. Gray, 2 L. J. N. S. 163;
and it would be garnishable in the bailiff 's hands, in a suit against the
landlord: lo.
3*71. In case of any such claim being; so made, the How the
•^ ^ , *=> bailiff is to
bailifl" making the levy shall distrain as well for the amount proceed,
of the rent claimed, and the costs of the additional distress,
as for the amount of money and costs for which the war-
rant of execution has issued, and shall not sell the same, or
j^^i^.^ I 'Mf
368
REPLEVIN OF GOODS DISTRAINED.
sections any part thereof, until after the end of eight clays at least
next following after the distress made. R, S. O. 1877,
c. 47, s. 212.
Under these sections of the Division Courts Act, the formalities which
are necessary in the case of distress for rent by a landlord do not seem
to be required of a bailiff. The claim for rent appears to be enforceable as
if it were an additional nmnunt payable on the execution, and for the
making of such additional sura a separate allowance lor costs is made.
Fees of 3T2. For every additional distress for rent in arrear,
bailiff in "^ .
such cases, the bailiff of the court shall be entitled to have as the costs
„ a. * of the distress, instead of the fees allowed by this Act,
Rev. Stat. ' . .
«• ^' the fees allowed by IVte Act respecting Costs of Distress.
R. S. O. 1877, c. 47, s. 213.
Fees allowed by the Act respecting Costs of Distress.— The
" additional distress " here referred to means that which is necessary for
the bailiff to make in order to realize the amount of the rent over and
above the moneys to be made on the execution :
These fees are : —
Levying distrees under ^80 ftl.OO
Man keeping possession, per diem 75
Appraisement, whether by one appraiser or more — ttco
cents in the dollar on the value of the poods :
If any printed advertisement, not to exceed in all 1.00
Catalogues, sale and commission, and delivery of goods —
fire cents in the dollar on the net produce of the sale —
li. S. O. c. 63, p. 730.
This section does not incorporate sections 34 and 35 of R. S. O. c. 143,
under which additional costs are allowed when the amount of the rent
exceeds $80.
The bailiff is " entitled " to the fees allowed for distress. If the
amount of the rent should be large, it is possible that he might waive that
right and claim, the same fees as would be allowed him on an execution
for a like amount.
If replevin STJi. If a replevin is made of the goods distrained, so
made. '^ .
much of the goods taken under the warrant of execution
shall be sold as will satisfy the money and costs for which
the warrant issued, and the costs of the sale, and the surplus
of the sale and the goods so distrained, shall be returned as
in other cases of distress for rent and replevin thereof.
R. S. O. 1877. c. 47, s. 214.
Goods distrained. — At common law a tenant had a right to replevy as
for an illegal distress his goods distrained for rent, and this section pre-
serves to him that right : tee notes to section 72, in which the law relating
to replevin in Division Courts is discussed, and Rules infra.
CONTEMPT OV COURT.
369
The replevy can only be made so as to supersede the distress, and the Sectlona
bailiff would, notwithstanding the replevin, b^ entitled to retain the goods 273-276
to the extent necessary to satisfy the execution : but under section 274,
the proceeds of such goods could not be paid over until the landlord was
first satisfied.
374* No execution creditor under this Act shall have wben
landlord's
his debt satisfied out of the proceeds of the execution and claim to
^ reut 18 to
distress, or of the execution only, where the tenant replevies, ^|i|"*
until the landlord who conforms to the provisions of this
Act has been paid the rent in arrear for the periods
hereinbefore mentioned. R. S. O. 1877. c. 47, s. 215.
istress.— The
OFFENCES AND PENALTIES.
Contempt of Court.
27S» If a person wilfully insults the Judge or acting contempt
... . . . . o* court.
Judge or any officer of a Division Court during his sitting
or attendance in court, or interrupts the proceedings of the
■court, any bailiff or officer of the court may, by order of the
Judge, take the offender into custody, and the Judge may
impose upon the offender a fine not exceeding $20, and in
default of immediate payment thereof, the Judge may by
warrant under his hand and seal commit the offender to the
common gaol of the county for a period not exceeding one
month, unless the fine and costs, with the expenses attend-
ing the commitment, are sooner paid. R. S. O. 1877, c. 47,
s. 217.
Contempt of Court. — Every Court of Record has an inherent power
to punish for contempt: Kx parte Pater, 5 B. & S. 299; Ex parte Lees
and the Judge of the County of Carleton, 24 C. P. 214. The statute
here confers a power on the Judge of a Division Court which would be-
long to a Court of Record as one of its inherent attributes. In Carus
Wilson's case, 7 Q. B., p. 1015, Lord Denman, C.J., says: " But here it
appears that a contempt was supposed to have been committed. That
is, a case in which it becomes the unfortunate duty of a court to act as
both party and judge, and to decide whether it has been treated with
contempt. We cannot decide upon the face of this return (to Habeas
Corpus) that they have come to ,a wrong conclusion. A court may be
insulted by the most innocent words, uttered in a peculiar manner and
tone. The words here might or might not be contemptuous, according
to the manner in which they were spoken, and that is what we must
look to. If the words might be contemptuously spoken, that was an
ample occasion for the decision of the Royal Court (of Jersey) with which
no other court can meddle. Every court in such a case has to form its
own judgment." At page 1017 of the same report, Williams, J., says :
D.C.A— 24
■P
-■■'S
fljiHHB^
k
1
P
H
1*:
ktti.
370 CONTEMPT OF COURT.
Section " It is quite obvious that contempt may be shewn either by language or
276 manner. We can imagine language which might be perfectly proper if
uttered in a temperate manner, but might be grossly improper it uttered
in a different manner. No one .lOt present can be a competent judge of
this " Speaking of the prisoner's conduct in that case, Wightman, J.,
says, at page 1018 : " It seems to me that it might be contemptuous as
being highly disrespectful, although the words themselves are not neces>
sarily so. " In the case of In re the Judge of the Division Court of Toronto,
23 U. C. R. 376, Draper, C.J., is reported, at page 378, as saying : " The
power of punishing contempts by fine is given by statute to the Judge of a
Division Court, and such a power, though like any other power by which
a man becomes as it were a judge in his own cause, and can exercise his
authority without any direct control, and perhaps without any responsi-
bility, is dangerous as open to abuse, is nevertheless found indispen-
sable. Contempts are perhaps the most undefinable of offences, for they
may consist in looks and demeanour, as well as in positive acts and
expressions ; and though our statute uses the words ' wilfully insults,'
it does not appear to me to change the application or extent of the power
given." Again, at page 379, the same learned Judge says : " It is more
easy to feel than describe how an advocate may exhaust the patience and
wear the temper of any Judge by continually keeping on the verge of
what he well knows to be forbidden ground, and by occasionally over-
stepping the line after oft-repeated check and caution from the bench, in
the ardour, real or affected, of his zeal for his client. When such con-
duct is long persevered in, it produces almost inevitably in the Judge's
mind a sense that it requires scrupulous watching in order that the advo-
cate may, if possible, be restrained within proper limits ; or, if he will
exceed them, may, if necessary, be promptly punished; and thus it may
well happen that the Judge may pronounce the advocate to be in con-
tempt, where a by-stander, who knew nothing beyond the immediate
occurrence, might deem the decision harsh or even unwarrantable." In
Ex parte Pater, 5 B. <& S., at page 312, Blackburn, J., says : " I agree that
when we are considering a question oif contempt, we ought to see whether
the inferior court had reasonable grounds for adjudging that a contempt
had been committed ; but we must bear in mind that the court is the
judge whether it has been treated with contempt, as Lord Dennian said in
the case of Carus Wilson, 7 Q. B., 984-1015, for, looking to the nature of
the contempt, it may consist in the peculiar manner and tone with which
words are spoken." The power conferred on the Judge by this section is
confined to contempts committed in court, and he would have no power
under it to proceed against a person for a contempt committed out of
court : R. v. Lefroy, L. R. 8 Q. B. 134 ; see also 4 U. C. L. J. 243, and
4 U. C. L. J. 259 ; 11 L. J. N. S. 156, on the general question of contempt
of court ; but the power given by this section would not restrict the
pc vers of the Judge under section 73 : R. v, Surrey (Judge), 13 Q. B. D.
903 Should the .ludge act under this section, the penalty can be imposed
and enforced instantly : Watt v. Ligertwood, L. R. 2 Scotch App. 361 :
tee also Baird v. Story, 23 U. C. R. 624. In the case of In re Pollard,
L. R. 2 P C 106, the Judicial Committee held that where the court did not
impose the fine on the committing of the contempt, but delayed it, and
then on a subsequent day imposed the penalty, without an opportunity
of the party's answering the charge, such proceeding was illegal.
An insult to the clerk or any officer during the sitting of the court,
and, though not actually in the prese ze of the Judge, within the pre-
cincts of the court, might be punishable under this section : tee, Re John-
son, 20 Q. B. D. 68.
A small room communicating with a larger one is not open court :
Eenyon v. Eastwood, 57 L. J. Q. B. 455.
PUNISHMENT FOll CONTEMPT.
371
lot open court :
Wilfully insults. — A. " wilful insult," is one that arises from the Section
spontaneous action of the will. It amounts to nothing more than this, 27S
" that he knows what he is doing and intends to do what he is doing and
is a free agent: " lie Young and Ite Harston, 31 Ch. D. 174.
To observe to a Judge in the course of and in reference to his judg-
ment, that " That is a most unjust remark " is an insult to the court in
whatever manner it is impressed, and, if not withdrawn, it amounts to
such a " wilful insult" as is contemplated by the section : B. v. Jordan,
30 W. R. 589, 797.
Interrupts the proceedings.— Anything unseemly said or done by
any person which would inteifere with the conduct of the business of the
court, or that would be highly indecorous, might be the subject of a
penalty under this clause.
Take the offender into custody. — Power is here given to the Judge
to order the person to be taken into custody, so that he might be brought
before him to answer for his misconduct. The limit of the fine is twenty
dollars, and no greater fine could be imposed.
Immediate payment. — The word " immediate " here does not mean
" instantly." A reasonable time would be allowed the delinquent for
payment of the money : Toms v. Wilson, 4 B. & S. 455 ; Forsdike v.
Stone, L. R. 3 C. P. 607 ; Massey v. Hladen, L. R. 4 Ex. 13 ; In re
Sillence, 7 Ch. D. 238. As remarked by Cockburn, C.J., at page 453 of
4 B. & S., " he might require time to get it from his desk, or to go across
the street, or to his banker's for it."
Under his hand and seal. — The plain words of the section require
this commitment to be under the hand and seal of the Judge : see also
3 L. C. G. 14. It differs in that respect from a commitment under the
210th section: see Rules and Forms; Ex. parte Heymanu. In re Hey-
maun, L. R. 7 Ch. 488; Ex parte Waters. In re Waters, L. R. 18
Eq. 701.
It will be necessary for the commitment to shew whether the
defendant is fined for insulting the Judge or an officer, or for interrupting
the proceedings. The nature of the insult need not be stated : Levy v.
Moylan, 10 C. B. 189.
Power is given to the Division Court to impose fines under certain
circumstances, and as it is an extraordinary power, its exercise must be
carefully guarded : Re Clements, 46 L. J. Ch. 375.
As remarked in Day v. Carr, 7 Ex. 887, by Martin, B., a power to
imprison without the intervention of a jury, except upon strong grounds,
ought not to be exercised.
In courts of record a contempt is usually punished by imprisonment.
For the contempts enumerated in this section, a Division Court
Judge has no power to imprison except as a means of enforcing payment.
of the fine.
A direct order for imprisonment would be invalid.
For form of order of committal, see Forms.
For a refusal to comply with an order of the court made in thd
exercise of its jurisdiction, the Judge would have power, under section 73,
to make an order for committal: Martin v. Bannister, 4 Q. B. D. 491 ;
Richards v, Cullerne, 7 Q. B. D. 623.
Mere compliance with the order would not entitle the person com-
mitted to be released. A formal application for release would be
necessary : Re Davies, 21 Q. B. D. 236. .
372
Bcotlom
270-276
Assaulting
bailiff.
"■■S
i
RESISTING OFFICERS.
Habeas oorpui. — An appellate court will not review the order of com-
mittal except where there is no reasonable evidence of the contempt and
' the liberty of ths subject requires protection : B. v. Jordan, 36 W. B.
689, 797.
Resisting Officers.
270. If any officer or bailiff (or his deputy or assistant)
be assaulted while in the execution of his duty, or if any
rescue be made or attempted to be made of any property
seized under a process of the court, the person so offending
shall be liable to a fine not exceeding $20, to be recovered by
order of the court, or before a Justice of the Peace of the
county or city, and to be imprisoned for any term not
exceeding three months, and the bailiff of the court, or any
peace officer, may in any such case take the offender into
custody (with or without warrant) and bring him before
such court or Justice accordingly. C. S. U. C. c. 19, s. 184.
Resisting Officers.— See English County Courts Act, 1888, ■. 48. A
bailiff leaving goods and going to a public house for refreshments a mile
distant would be entitled to re-enter on his return and any assault on him
to prevent such re-entry would make the offender liable under this
fiection : Coffin v. Dyke, 48 J. P. 757.
This section, as originally framed, made provision for criminal pro-
<:edure, but in the late revision of the statutes its language has been
changed so as to bring i-t within the authority of the Legislature of
Ontario.
Section 306 of the Criminal Code, 1892, is as follows :
" Everyone commits theft and steals the thing taken or carried away,
vrho whether pretending to be the owner or not, secretly or openly, and
whether with or without force or violence takes or carries away withou t
lawful authority any property under lawful seizure and detention."
Section 144 also makes it an offence to disturb anyone in the lawful
execution of any process or in making any lawful distress or seizure :
ate Coffin v. Dyke, 48 J. P. 757.
It will be observed that the section extends to an assault upon or rescue
from a deputy or assistant bailiff. Probably the bailiff or deputy bailiff
could alone make the original arrest or seizure, or at any rate his pre-
sence thereat would be necessary : The Palomares, 52 L. T. N. S. 57.
Both fine and imprisonment may be awarded.
The fine would be enforceable by execution issued from the court :
aee section 282.
If an assistant bailiff wrongfully arrested a person, as for an offence
under this section, the bailiff would be responsible : Gordon v. Bumble,
19 A. B. 440.
If there should be any question as to the liability of the party com-
plained against, or if there should not be any necessity for his immediate
arrest, a summons might be issued by the Judge or justice.
For forms of summons and order, »ee Forms.
If the bailiff proceed under this section he is not thereby prevented
from suing and recovering for the assault upon him : Box v. Green,
y Ex. 503.
OFFENCES BY OFFICERS.
373
Saotlon
277
rom the court :
Miaconditct of Clerks, Bailiffs, Etc,
STT. If a bailiff or officer, acting under colour or pre- Miscon-
tence of the process of court, is guilty of extortion oreiMkB^in
misconduct, or does not duly pay or account for all money *'* ' *"
levied or received by him by virtue of his office, the Judge,
at a sitting of the court, if a party aggrieved thinks lit to
complain to him in writing, may enquire into the matter in
a summary way, and for that purpose he may summon and
enforce the attendance of all necessary parties and wit-
nesses, and may make such order thereupon for the
repayment of any money extorted, or for the due payment
of any money so levied or received, and for the payment of
any such damages and costs to the parties aggrieved, as he
thinks just; and in default of payment of the money so
ordered to be paid by the bailiff or officer within the time
in the order specified for the payment thereof, the Judge
may, by warrant under his hand and seal, cause such sum
to be levied by distress and sale of the goods of the offender,
together with the reasonable charges of the distress and
sale, and in default of such distress (or summarily in the
first instance), may commit the offender to the common
gaol of the county for a period not exceeding three months.
R. S. O. 1877, c. 47, s. 218.
Aoting under colour or pretence of process.— <S«e English County
Courts Act, 1888, s. 50. This would cover a case where a bailiff had not
any process of the court, but assumed to act as if he had : see 7 U. C. L. J.
229, 230 and 260.
Extortion. —The offence of extortion consists in a public officer
" taking under colour of office from any person any money or valuable
tiling which is not due from him at the time when it is taken." " If
the illegal act consists in inflicting upon any person any bodily harm,
imprisonment, or other injury, not being extortion, the offence is called
" oppression : " Stephens, Cr. 83. See R. v. Tisdale, 20 U. C. R. 272 ;
Parsons v. Crabbe, 31 C. P. 151.
For an unintentional overcharge, no penalty should be inflicted:
Shoppee v. Nathan & Co. (1892), 1 Q. B. 245.
The wrong must be done with the mens rea or intention of committing
the offence: Lee v. Dangar, (1892), 1 Q. B. 281, affirmed on appeal, 8
T. L. R. 494 ; (1892). 2 Q. B. 337.
Misconduct.- The term " misconduct " is very vague. It is submitted
that for the penal purposes of this section no greater meaning should be
given to it than would be given to the same term in the covenant of tbo
sureties : see notes to section 36.
Sections
277-279
piSiiH
374 EXTORTION.
Wilful misconduct is a criminal offence: see section 143, Criminal
Code, 1892.
Duly pay. — Great delay in payment would be a proper ground for
punishing the officer.
A bailiff should not mix moneys levied by him with his own money :
Milltown V. Boardman, 10 C. L. T. 250.
Complain to him in writing.— The complaint must be in writing {Ri-
McGregor v. Norton, 13 P. R. 223), hi/ the party aggrieved, and not by a
stranger, and inquired into at some court sittings.
The bailiff and his witnesses, if any, must have an opportunity to be
present : 4 U. C. L. J. 132 ; Osgood v. Nelson, L. K. 5 H. L. 036 : note
to section 44, ante p. 36.
May commit the oifendcr. — The Judge has power only to order
repayment of moneys extorted or withheld, or actual damage sustained by
the party aggrieved.
He has no power to fine. Tba warrant of distress or commitment to
gaol must be under the hand and seal of the Judge. The Judge need not
go through the formality of distress, but may order committal as the only
alternative of payment.
For form of order see Forms.
This being a quasi criminal proceeding questions of doubt are to he
construed favorably to the accused : North Ontario Election, H. E.
C. 342.
Extortion.
aTS. If a clerk, bailiff or other officer exacts or takes
any fee or reward other than the fees appointed and
allowed by law for or on account of anything done
by virtue of his office, or on any account relative to
the execution of this Act, he shall, upon proof thereof
before the court, be forever incapable of being employed in
a Division Court in any office of profit and emolument, anil
shall also be liable in damages to the party aggrieved.
R. S. O. 1877, c. 47, s. 219.
Extortion.— See notes to section 277.
The clause is a penal one and must be strictly construed : 4 U. C. L. J.
132 ; and the officer should have full opportunity of defending himself :
notes to sections 44 and 277.
Extortion is punishable at common law by indictment, but indictments
can only be maintained against the person actually guilty of the offence,
and the bailiff is not liable to an indictment for the offence of his
assistant : Woodgate v. Knatchbull, 2 T. B. 148 ; 1 B. B. 449 ; Saunder-
Bon v. Baker, 3 Wils. 309.
Negligence of Bailiffs.
3*70. In case a bailiff employed to levy an execution
tiieir duty aofaiust goods and chattels, by neglect, connivance or omis-
in relation P " ' .7 & »
sion, loses the opportunity of so doing, then upon complaint
Extortion.
If bailifiFs
neglect
to execu
tion.
NEfiLlOEXCE OF BAILIFFH.
375
of the party thereby aggrieved, and upon proof of the fact "53^22?
alleged to the satisfaction of the court, the Judge shall
order the bailiff to pay such damages as it appears the
plaintiff has sustained, not exceeding the sum for which
the execution* issued, and the bailifl' shall be liable thereto;
and upon demand made thereof and on his refusal to satisfy
the same, payment shall be enforced by such means as are
provided for enforcing judgments recovered in the court.
R. S. O. 1877, c. 47, s. 220.
Negligence of bailiffs. — A summary power is here f»iven to the Judge
to be exercised over the bailiff if he should neglect his duty in regard to
an execution placed in his hands. Should damages be awarded and paid
by the bailiff under this section, it is submitted that he could not be ren-
dered civilly responsible otherwise. A summons must be issued and
served on the bailiff: Mayer v. Burgess, 4 E. A B. 05.5.
Wilfully making a false return is a criminal offence: section 14.3 of
Criminal Code, 1892.
A bailiff acting under a transcript could not be proceeded against in
the home court. The Judge has power merely against the bailiffs of hia
own courts: R. v. Judge of County Court of Shropshire, 20 Q. B. D. 242.
Upon demand. — This would be a necessary preliminary to execution :
Davidson and the Chairman of Q. S. Waterloo, 24 U. C. R. (i(>; Trustees
of the School Sec. No. iJ of the Township of Caledon v. Corp. of Tp. of
Caledon, 12 C. P. 301; Bamford v. Clewes, L. R. 3 Q. B. 729; nee also 10
U. C. L. J. 236.
Such means as ape employed for enforcing judgments.— That ia
by execution, as pointed out by section 212, and in default of the money
being made in that way, by tlie same means otherwise as could be
resorted to against an ordinary debtor.
The execution against the bailiff might be issued to a person other
than himself ; for it would be absurd to issue a warrant to the bailiff to
levy on himself.
This can be done under the inherent power of all courts to enforce
their judgments, and by adopting the principles of practice of the High
Court when a sheriff and coroner are interested, viz. : by the appoint-
ment of elisors : Bellamy v. Hoyle, L. R. 10 Ex. 220; gee Hawkins P. C.
b. 2, c. 22, 8. 2 ; Andrews v. Sharp, 2 W. Bl. 911 ; R. v. Peckham, 2
W. Bl. 1218.
2S0. If a bailiff neglects to return an execution Action
within three days after the return day thereof, or makes a bailiff and
sureties
false return thereto, the party who sued out the writ may '^' J'^^l"*
maintain an action in any Court having competent juris- !» retum-
^ ^ •/ _ ^o r ti jQjj execu-
diction against the bailiff and his sureties on the covenant ^'o"-
entered into by them, and sh9.ll recover therein the amount
for which the execution issued, with interest thereon from
376
.1UDGMENT AOAINST MAILIFF.
tm*>m
i
i»«iii«t,
'^u^Mi' ^''® ^^^^^ ^^ ^^® judgment, or such less sum as in the opinion
of the Judge or jury the plaintiff under the circumstances
is justly entitled to recover. R. S. O. 1S77, c. 47, s. 221.
Within three dayi after the return day.— In this case the time
would be reckoned thus ; if the last of the BO days during which an exe-
cution was in force should, for instance, be the UOth of September, the'
return to it should be made not later than the 8rd of the next month.
Should the bailiff's sureties be changed between the time he received the
execution and when he made default in returning it, the sureties when
default made would be those liable : Dicey on Parties to Action, 229, et
neq.; 8 U. C. L. J. 35. If a seizure should be made within the thirty^
days, the execution would be partly executed, and the bailiff could go on
and complete it after that tima; see notes to section 212. Such a caae
could not be called a neglect to return an execution within this section.
If the bailiff neglects to return any process or exc.n^Ion in the proper
time, he forfeits his fees on it : see section 220 and notes thereto.
A false return is also a criminal offence, if wilful: Criminal Coder
1892, section 143.
In the opinion of the Judge or Jury. — This leaves it to the Judge or
jury to award damages commensurate to the loss : lee Macrae v. Clarke,.
L. R. 1 C. P. 403.
This section seems to presume that the bailiff could, if he had been
vigilant in the execution of his warrant of execution, have made the money.
If there are circumstances which might show the contrary, we think
the onus of proving them is cast upon the bailiff and his sureties : Macrae
V. Clarke, L. It. 1 C. P. 403 ; Hobson v. Thelluson, L. R. 2 Q. B. 642.
The omifsion to return the execution within the prescribed time would
of itself be prima facie evidence of neglect on the part of the bailiff.
The right to sue under this section W'uld tio( 'te governed by any-
statutory right such as is accorded t f^ui' rs on bondu given in Division
Court proceedings: gee section ''"''' ,o jurisdiction to sue would be
regulated by the law that wouh .i the case of ny other cause of
action for a similar wrong.
3M1. If a judgment is obtuinet^ in the action against the
bailift' and his sureties, execution shall immediately issue
thereon, and in case of the departure or removal of the aililf
from the limits of the county, the action may be commenced
and carried on against his sureties alone, or against any one
or more of them. R. S. O. 1877, c. 47, s. 222.
Execution shall immediately issue thereon. — This takes b.\ ly from
the court in which the action is brought, the power of postponing the
issue of execution in such suit against the bailiff and his sureties. If the
bailiff departs or removes from the limits of the county, an action may
be brought against his sureties jointly or severally for the recovery of the
damage sustained. This is contrary to the general rule on the subject :
Exchange Bank v. Barnes, 29 Or. 270.
Whether the bailiff has departed or removed from the county is a.
question of fact to be determined in the ordinary way.
Two of the sureties could be sued together under this section in
the event of the removal of the bailiff from the county: tee notes to
section 69.
Execution
may issue
instanter,
and if
bailiS has
removed,
his sureties
neverthe-
less liable.
■cn^
RECOVEUV OF PENALTY.
377
minal Coder
FIXES, HOW ENFORCED.
2M2. In case a Division Court imposes a fine under
authority of this Act, the same may be enforced upon the
order of the Jud|^e, in like manner as a judj^ment for any
sum adjudged therein, and shall be accounted for as herein
provided. R. S. O. 1877. c. 47, s. 228.
Fines, how enforced. — Proviaion is here made for fines imposed
whether payable for contempt or otherwise. The Jud^e cannot order
the imposition and enforcement of any tine unless some statutory enact-
ment expressely confers the power.
The payment of the fine would not bar another action for the wrong,
e.g., an assault : Box v. Green, Ex. 603.
In like manner m a Judgment.— >See notes to sections 212, 228 and
22'J.
And shall be accounted for. — See section 57. All fines must be
paid over to the County Crown Attorney under section 293
lections
292-288
FillUB, l)OW
enforced
by Division
Courta.
e county is a.
2H9. In all cases in which by this Act a penalty or for- ;^°o,oea
ft'iture is made recoverable before a Justice of the Peace, o^thT'''"^*
such Justice may, with or without information in writing, *'"**'*•
summon before him the party complained against, and
thereupon hear and determine the matter of the complaint,
and on proof of the offence convict the offender, and adjudge
him to pay the penalty or forfeiture incurred, and proceed
to recover the same. R. S. O. 1877, c. 47, s. 224.
Is made recoverable. — This has reference to summary convictions :
Bee sections 52 and 270.
With or without Information in writing.— There must, however, be
an information of one kind or the other to warrant the proceedings :
Caudle v. Seymour, 1 Q. B. 889 ; Appleton v. Lepper, 20 C. P. I'AH ;
Connors v. Darling, 23 U. C. R. 550; Stoness v. Lake, 40 U. C. R. 320 ;
Crawford v. Beattie, 39 U. C. R. 13 ; unless the defenpant waives it :
R. V. Shaw, 12 L. T. N. S. 470; Blake v. Beech, 1 Ex. D. 320.
The mode of bringing the accused before the justice would not be a
good ground for quashing the conviction : R. v. Menary, 19 O. R. 691.
Convict the offender. — The justice must observe the same regularity
of proceeding as would be required of him on the trial of any other
o£fence punishable on summary conviction.
But should the party voluntarily appear without the formalities re-
quired by this section and raise no objection, he could be proceeded
against in the ordinary way : B. v. Hughes, 4 Q. B. D. 614.
In any proceeding under this or the following section, or in any other
proceeding in the Division Court, for which a statutory form is given, it
is sufficient to follow such form, although not strictly containing all
which the statute requires : In re Wilson v. The Quarter Sessions of
Huron and Bruce, 23 U. G. R. 801: Spigener v. State, 62 Ala. 883;
ail
?'"*pp
378
PROTECTION OF BAILIFF.
Sections
283-28S
Form of
conviction.
rt.S
2 C. L. T. 125; Thompson v. Farr, 6 U, C. R. 390, per Robinson, C.J. ;
Reid V. McWhinnie,27 U. C. R, 283; Cornwall v. The Queen, 33 U. C. R.
10(5; R. V. Johnson, 8 Q B. 102 ; Fletcher v. Calthrop, 6 Q. B 880; R. v.
Marsh, 2 B. & C. 717; R. v. Hazzell, 13 East, 139; R. v. Ridgway, 2
B. & Aid. 527 ; In re Turner, 9 Q. B. 80 ; Nixon v. Nanney, 1 Q. B. 747 ;
R. V. Jones, 12 A. & E. 684 ; R. v. Recorder of King's Lynn, 3 D. & L.
725 ; R. V, Hartley, 20 O. R. 481 ; R. v. Richardson, 20 O. R. 514; R. v.
Inhabitants of Hickling, 7 Q. B. 880, at p. 889.
It was also held that Forms, though literally prescribed by the legis-
lature may be varied according to reason and common sense, so long as
the material maUers provided for are correctly given : Gemmill v. Gar-
land, 12 O. R. at p. 142 ; Mountcashell v. O'Neill, 5 H. L. Cas. 937 ;
Ex parte Stanfoni. In re Barber, 17 Q. B. D. 259. The same prin-
ciple was laid down by Patterson, J.A., in Northcote v. Brunker, 14 A. R.
364 at p. 378. The courts will always endeavour to uphold the
proceedings of a justice where it is obvious that he has been actuated
by a desire to follow the directions of the legislature ; and for obvious
reasons justices will find it best to follow as nearly as possible the fornis
given in the statute: see also remarks by Pollock, C.B., Inre Allison, 10
Ex. 561 at p. 565, and of Parke, B., in the same case, vho said : " If jus-
tices substantially adopt the forms given, they do all that is required of
them."
384. In all cases niiere a conviction is had for any
offence committed against this Act, the form of conviction
may be in the words or to the effect following, that is to
say:
Be it remembered, that on this day of in the year
of our Lord , A. B. is convicted before
one {or two as the case may he) of Her Majesty's Justices of the Peace for
the County of (or before , a County Judge of
the County of ), acting under The Dnidon CourtgAct,ot having
(note the offence) ; and I, (or we) , the said do
adjudge the said to forfeit and pay for the same the sum of
, or to be committed to the Common Gaol of the County of
for the space of
Given under hand and seal, the day and year afore-
said.
R. 8. O. 1877, c. 47, s. 225.
The form of conviction. — See the notes to the next previous section.
PROTECTION OF PERSONS ACTING UNDER WARRANTS, ETC.
Demand of S8S5. No action shall be brought against the bailiff of
ando^opyof a Division Court, or against any peraon acting by his order
warrant to i>i> -ip ii« i • ii- i.
be made and 111 hip lid, lor anything done m obedience to any war-
action. rant under the hand of the clerk and seal of the court until
a written demand, signed by the person intending to bring
the action, of the perusal, and a copy of the warrant has by
such pei-son, his solicitor or agent, been served upon or
PHOTECTIOX OF OFFICERS.
379
)bin8on, C.J. ;
n, 33 U. C. R.
B H80; R.v.
. Ridgway, 2
, 1 Q. B. 747 ;
tin, 3 D. & L.
R. 514; R.v.
I by the legis-
se, so loug as
nmill V. Gar-
L. Gas. 937;
e same prin-
nker, 14 A. R.
uphold the
leen actuated
d for obvious
ble the forms
re Allison, 10
}aid : " If jus-
8 required of
lad for any
conviction
, that is to
in the year
the Peace for
unty Judge of
Act,oi having
do
sum of
ityof
nd year afore-
t7, s. 225.
ivious section.
AXTS, ETC.
le bailiff of
oy his order
<) any war-
court until
ng to bring
rant has by
ed upon or
left at the residence of the bailiff, and the perusal and copy ^®^|^*'**
have been neglected or refused for the space of six days
after the demand. R. S. O. 1877, c. 47, s. 226.
Acting under warrant. — A clerk issuing a warrant under the seal of
the court and a bailiff and his assistants acting thereunder, are protected,
even assuming that the Judge has no jurisdiction to make the order under
which the warrant is founded : Aspey v. Jones, 33 W. R. 217 ; London
(Mayor) v. Cox, L. R. 2 H. L. 205).
Protection of persons acting under warrants, etc.— The public
interest requires that officers who really act in obedience to a warrant
should be protected. In such cases, therefore, the Act has provided that
the remedy of the party grieved shall be confined to the clerk as well
where he has issued a warrant within his jurisdiction as where the
warrant he has issued is improper. The Act takes it for granted, if after
demand a perusal has been allowed, that the officer may be said to act
in obedience to the warrant, though the clerk had no jurisdiction, and
though the warrant be an absolute nullity : Price v. Messenger, 2 B. & P.
158; 5R. R. 559.
The protection if given notwithstanding the defect appears by the
warran^i.
This protection is not merely conferred on the officer, but is extended
to anyone, "acting by his order and in his aid," in the due execution of
the process of the court : see, also, 9 U. C. L. J. 317 ; Pearson v. Ruttan,
15 C. P. 79; Pedley v. Davis, 10 C. B. N. S. 492.
The baiiiff is protected, under this section, only when he is sought to
b3 made responsible for some defect in the process under which he acts :
Stewart v. Cowan, 40 U. C. R. 340.
Against any person acting by his order.— The person must be acting
under tiie authority of a bailiff, and in his aid : Postlethwaite v. Gibson,
3 Esp. 22(),
A demand upon such person would be insufficient ; it must be made
upon the bailiff : Clarke v. Davey, 4 Moore, 465.
A gaoler who received the person named in a warrant of commit-
ment from the bailiff would be protected : Butt v. Newman, Gow, 97.
A written demand. — The demand should be made out in duplicate and
signed by the party himself: Toms v. Cumming, 7 M. & G. 88, 92. But
if signed by his attorney it will, it seems, be sufficient ; Carke v. Woods,
2 Ex. 395.
The party, by his conduct, may dispense'with the perusal : Atkins v.
Kilby, 11 A.&E. 777.
It would be unnecessary to make a demand where no action would lie
against the clerk : Sturch v. Clarke, 4 B. & Aid. 113 ; Cotton v. Kadwell,
2 N. & M. 399 ; Sly v. Stevenson, 2 C. A P. 4«4.
If the warrant commands the bailiff to seize the goods of A. and he
seizes those of B. no demand is necessary : Parton v. Williams, 3 B. &
Aid. 330; or if he acts beyond what is required by the warrant or out of
his own county : Gladwell v. Blake, 1 G. M. i& R. 636; or does a wrong,
not acting or believing he is acting in the discharge of his duty as bailiff :
Stewart v. Cowan, 40 U. C. R. 346 ; or if he broke and entered a house
to seize goods : Bell v. Oakley, 3 M. & S. 259 ; or if he seized other goods
than those authorized by the warrant : Price v. Messenger, 2 B. ct P. 158 ;
Crozier v. Cundey, 6 B. <& C 232 ; or if he arrests A. under a warrant
against B. , though A. may have been the person intended : Hoye v. Bush,
1 M. df G. 775.
'Wffmmfm
380
PRODUCTION OF WARRANT.
Saotlona
28S-386
Signed by the person. — If signed by the party's attorney it will be
sufficient: Clark v. Woods, 2 Ex. 395.
Served upon. — See notes to section 99 and 109.
Left at the residence. — See notes to section 99. A notice left by the
clerk of the party's attorney is sufficient : Clark v. Woods, 2 Ex. 395.
Six days after such demand.— The demand need not specify any time,
and if a different time is meiitioned than that allowed by the statute, it
does not vitiate it : Collins v. Hose, 5 M. <& W. 194.
The sections apply to actions of trespass and case only: Lyons v.
Golding, 3 C. & P. 586 ; and not to assumpsit, replevin, or the like : Gay
V. Matthews, 4 B. & S. 425.
M>Mlki
^^i}}?:, . 286. In case, after the demand and compliance there-
entitled to _ ' f ^
^roduct?on ^^^^ ^^ shewing the warrant to and permitting a copy
of warrant, thereof to be taken by the person demanding the same, an
action is brought against the bailiff or other person who
acted in his aid for any such cause without making the
clerk of the court who signed or sealed the warrant a
defendant, then on producing or proving the warrant at
the trial, the jury shall give their verdict for the defendant^
notwithstanding any defect of jurisdiction or other irregu-
larity in or appearing by the warrant. R. S. 0. 1 877, c. 47,
s. 227.
By the person demanding the same.— The bailiff should, within the
prescribed time after such demand, shew the warrant and permit a copy
thereof to be taken by the person demanding the same. If he does so^
and an action is brought against him or the person acting by his order or
in his aid, either witli or without making the officer of the court who
signed or sealed the warrant a defendant, then, on the production or
proof of such warrant at the trial, the jury will be directed to find for the
bailiff, notwithstanding a defect of jurisdiction or other irregularity in
or appearing by the warrant.
The bailiff should have the warrant in his possession when he acts
upon it : Galliard v. Laxton, 2 B. & S. 363 ; B. v. Chapman, 12 Cox C. C. 4 ;
Codd V. Cabe, 1 Ex. D. 352.
Though the party may have obtained a copy of the warrant, before
making the demand, the bailiff must comply with the demand : Clark v.
Woods, 2 Ex. 395.
On producing or proving the warrant.— The production or proof of
the warrant is necessary to free the bailiff from responsihilitv: «<>e
Peppercorn v. Hoffman, 9 M. & W. 618 ; Kalar v. CornwR.!!, 8 U. C. R. 168.
And the fact that it was at the time with the gaoler is no answer:
Arnott v. Bradly, 23 C. P. 1 ; unless the party en information of this
circumstance made no objection : Atkins v. Kilby, 11 A. & E. 777. Though
the clerk may be joined with the bailiff in an action the bailiff will not
be discharged unless he has complied with the demand : Clark v. Woods,
2 Ex. 395.
NOT GUILTY BY STATUTE.
381
Sections
287-288
If clerk
and baiiifif
joint defeu-
dants,
bailiff
entitled to
verdict on
producing
warrant,
and what
COStB
plaintiffs
entitled to.
2*J7, If an action is brought jointly against the clerk
and bailiff, or the person who acted in his aid, then on
proof of the warrant the jury shall find for the bailiff or
the person who so acted, notwithstanding such defect or
irregularity as aforesaid; and if a verdict is given against
the clerk, the plaintiff shall recover his costs against him,
to be taxed by the proper officer in such manner as to
include the costs which the plaintiff is liable to pay to the
defenda.it for whom a verdict has been found. R. S. O.
1877, c. 47, s. 228.
On proof of the warrant. — See notes to the two next previous
sections. Should a judgment be given against the clerk and for the
bailiff, the clerk would be liable to pay the plaintiff the bailiff's costs
against him ; but they must be taxed in the manner pointed out by the
section.
388. In such action the defendant may plead not ffuiltv Defendant
•/ r o J may plead
entering a note of this Act in the margin, and in such case by'sfatute
may thereupon avail himself of the matters of defence
herein given. R. S. O. 1877, c. 47, s. 229.
May plead not guilty. — This means substantially the same as the
language used in the 229th section of the former Division Court Act.
The plea of not guilty by statute, is usually permitted in such cases
as those where officers or persons who are sued for sometaing done in
discharge of their public or official duties. It is not, however, confined
to such cases.
A plaintiff who voluntarily accompanied and assisted a bailiff in
seizing goods was held entitled to the same rights on this plea as the
bailiff : Culverson v. Melton, 2 M. <& Bob. 200.
The defendant may go into any defence that could be specially pleaded,
whether founded entirely on the statute, or partly on the statute and
partly not, or is a defence wholly independent of the statute : Maund v.
Monmouthshire Canal Co., 1 Car. & M. (>06. For instance, contributory
ne>;ligence may be given in evidence under this plea in an action of
negligence : Doan v. Michigan Cent. lly. Co., 17 A. P.. 481.
The plaintiff cannot oust the defendant of this plea by waiving the
tort and suing in contract: Calvert v. Moggs, 10 A. &. E. ij'6'2.
The plea should refer to the statute which allows the plea as well as
any other statute relied on by the defence : Van Natter v. Buffalo & Lake
Huron Ry. Co., 27 U. C. R. 581.
Where it is intended to rely upon the want of service of a notice of
action, the particular section requiring notice must be referred to: Bond
V. Conmee, 15 O. R. 716; 16 A. R. 398.
If, however, the plaintiff is not taken by surprise, an amendment is
almost a matter of course: Edwaids v. Hodges, 15 C. B. 477; Van
Natter v. Buffalo & Lake Huron Ry. Co., 27 U. C. R. 581.
Particulars of the defence were ordered in Jennings v. O. T. Ry. Co.,
11 P. R. iiOO. In the hif^her courts such particulars could in any event
be elicited on an examination for discovery.
II!
382
DEFECTS IN PROCEEDINGS.
Sectlan
289
Distress
uotto be
deeirerl
unlawful
or persons
making it
trespassers
by reason
of defect in
proceed-
ings.
Not to be
trespassers
ab initio.
I'D'tiiiiiiii'
GENERAL PROVISIONS WITH REGARD TO ACTIONS FOR
THINGS DONE UNDER THIS ACT.
SAll. No levy or distress for a sum of money to be
levied by virtue of this Act shall be deemed unlawful, or the
person making the same be deemed a trespasser, on account
of any defect or want of form in the information, summons,
conviction, warrant, precept or other proceeding relating
thereto, nor shall the pei-son distraining be deemed a tres-
passer from the beginning, on account of any irregularity
afterwards committed by him ; but the person aggrieved by
the irregularity may recover full satisfaction for the special
damage. E. S. O. 1877. c. 47. s. 230.
Any defect op want of form.— The tendency of modern legislation
is in favour of preventing any formal defect, defeating tlie ends of jus-
tice, or subjecting a person who acts honestly to an action for damages :
Crawford v. Beattie. 39 XJ. C. R. 13, and cases there cited.
This section bears a close resemblance to section 19 of the English
statute, 11 Geo. II., c. 19, in respect of an action for an irregular
and illegal distress for rent, which provides that where any distress shall
be made for any rent justly due, and any irregularity or unlawful act
shall be afterwards done by the party distraining or his agent, the distress
shall not be deemed unlawful nor the distrainor a trespasser ab initio ;
but the party grieved may recover satisfaction for the damage in a special
action of trespass on the case, at the election of the plaintiff, and if he
recover he shall have full costs.
A trespasser from the beginning — "Whenentry. authority or license
is given by the law and he doth abuse it. he shall be a trespasser ab initio.
But where an entry, authority or license is given by the party and he
abuses it, then he must be punished for his abuse, but shall not be a trespas-
ser ab initio." Six Carpenter's Case. 8 Coke, 146a ; Smith's L. C. 2()1.
Not doing cannot make the party who has authority or license by the law
a trespasser ab initio, because not doing is no trespass : lb.
The distinction is that if the party be a trespasser from the beginning,
the jury may award damages for the trespass, but if the party is merely
punished for special damage, actual loss must be proved and the damages
confined to such loss.
Satisfaction for the special damage.— Special damage must be
proved, and if not. the plaintiff could not recover even nominal damages,
and the verdict or judgment should be for the defendant : Lucas v. Tarle-
ion. 3 H. & N. 116; Rodgers v. Parker. 18 C. B. 112; see also Fell
v. Whittaker. L. R. 7 Q. B. 120 ; Shultz v. Reddick. 43 U. C. R. 155.
Special damages must be claimed, otherwise they are not recoverable,
and it must be alleged with certainty so as to enable the defendant to
meet it by counter-evidence, if untrue : Westwood v. Cowne. 1 Stark. 172 ;
see also Croit v. Boite. 1 Wms. Saund. 243, d. (5) ; Martin v. Henrickson,
2 Ld. Raym. 1007 ; Ashley v. Harrison, 1 Esp. 48 ; Tilk v. Parsons,
2 C. & P. 201 ; Finlay v. Chirney, 20 Q. B. D. 494 ; Catton v. Oleason,.
14 P. R. at p. 226.
LIMITATION OF ACTIONS.
383
300. Any action or prosecution against any^pei'son for Section
anything done in pursuance of this Act shall be commenced ^—_ — ^
within six months after the fact was committed, and shall of actions
be laid and tried in the county where the fact was commit- done under
ted, and notice in writing of the action and of the cause
thereof shall be given to the defendant one month at least
before the commencement of the action. R. S. O. 1877,
c. 47, 8. 231.
In pursuance of this Act. — The protection of the statute extends to
all persons intending to act within them : Briggs v. Evelyn, 2 H. Bl. 114 ;
3 R. R. 354. If it be equivocal in what capacity the party acted, notice
should be given : Morgan v. Palmer, 2 B. & C. 729. Even though a party
acted without jurisdiction, he is entitled to notice of action, if he acted
in the honest belief that he was acting in the execution of his duty:
Snider v. Brown, 17 A. R. 173 ; Hermann v. Seneschal, 13 C. B. N. S. 392 ;
Seimes v. Judge, L. R. 6 Q. B. 724; Roberts v. Orchard. 2 H. & C. 769;
Leete v. Hart, L. R. 3 C. P. 322 ; Calder v. Halket, 3 Moo. P. C. 36n ;
Yenning v. Steadman, 9 S. C. R. 238 ; but if he has acted colourably and
vexationsly from any malicious or corrupt feeling, without believing he
had authority to do what he did, he is not entitled to notice : Bross
v. Huber, 18 U. C. R. 282. And if there is no evidence of honest belief
in the right to do the act, the court will hold the notice of action to be
unnecessary : Friel v. Ferguson, 15 C. P. 584 ; Ibbottson v. Henry, 8 O. R.
625 ; but see Bross v. Huber, 18 U. C. R. 282.
If there is evidence of wa'nt of good faith, the question must be sub-
mitted to the jury if the plaintiff desire it : Neill v. McMillan, 25 U. C. R.
485 ; Stewart v. Cowan, 40 U. C. R. 346 ; Allen v. McQuarrie, 44 U. C. R.
6-2 ; Sinden v. Brown, 17 A. R. 188.
A Judge would be entitled to notice of action, even though the action
was brought for making an order for committal after prohibition, if the
Judge acted under a bona fide belief that his duty as Judge rendered it
incumbent on him to do so, notwithstanding the prohibition : Booth v.
Clive, 10 C. B. 827.
A bailiff acting under a warrant without a seal, is entitled to notice :
Anderson v. Grace, 17 U. C. R. 96.
If in fact disqualified from acting, a party acts in the bona fide belief
that he is qualified, he is entitled to notice: Hughes v. Buckland, 15
M. & W. 346 ; Lea v. Facey, 19 Q. B. D. 352.
The plaintiff cannot by waiving the tort and suing in assumpsit,
avoid giving notice of action : Waterhouse v. Keen, 4 B. & C. 211. There-
fore, where a defendant has wrongfully received money and kept it, and
the plaintiff sued for money had and received, the want of notice of action
was held fatal to his case : Midland Ry. Co. v. Withington Local Board,
11 Q. B. D. 788.
If an act was wrongful, but the defendant relies upon his honest belief
to do the act as giving him the right to notice, some facts must be shewn
which might give rise to that belief, but it is not necessary that the belief
should be reasonable : Chamberlain v. King, L. R. 6 C. P. 474.
A bailiff is entitled to notice of action even if indemnified : Sander-
son v. Coleman, 4 U. C. R. 119 ; Lough v. Coleman, 29 U. C. R. 367 ; or
if, having an execution against the goods of A. he takes the goods of B. :
Pardee v. Glass, 11 O. R. 275 ; Burling v. Harley, 3 H. & N. 271 ; Dale
I
-m^
W
S84
NOTICE OF ACTION.
•I". —
.ast.
ii^i^isetli
S«ction V. Cool, 4 G. P. 460 ; also in an action for excessive seizure, and exacting
290 more than he is entitled to : Pearson v. Rattan, 15 C. P. 79.
Where the act has not been done in the capacity of officer, but is
wholly diverao intuitu, notice is not required, as where goods not liable
to seizure are seized as forfeited, and money is taken to release them, in
an action to recover such money no notice is requisite : Irving v. Wilson.
4 T. B. 485 ; 3 B. B. 444 ; so where an unlawful fee is taken for doing or
omitting to do something if the fee could not be taken in the character of
officer, no notice is requisite : Morgan v. Palmer. 2 B. <& G. 729.
If a seizure is made for two causes, as to one only of which the officer
is entitled to notice of action, he is nevertheless liable in trespass as to the
other, without notice : Lamont v. Southall, 5 M. <& W. 416. No notice
is required to recover an excess of money made under execution : Dale
v. Cool, 6C. P. 544 ; McLeish v. Howard, 3 A. R. 50 J.
If a person is not duly appointed a bailiff, he is not entitled to notice
of action : T»rrant v. Baker, 14 C. B. 199.
A party who sets proceedings in motion is not entitled to notice of
action ; it is only intended to protect officers who carry them out : Palk
V. Kenney, 11 U. C. R. 350 ; Dollery v. Whaley, 8 U. C. L. J. 239 ; but
see Gayton v. Bayman, 1 F. & F. 675.
Notice of action is not required in the following actions : Replevin :
Fletcher v. Wilkins, 6 East, 2S3 ; Lewis v. Teal, 32 U. C. R. 108 ; Apple-
garth v. Graham, 7 C. P. 171 ; Kennedy v. Hall, 7 C. P. 218 t Folj^er
V. Minton, 10 U. C. R. 423 ; Gay v. Matthews, 4 B. & 8. 425 ; but see ib-
bottson V. Henry, 8 O. B. 625 ; where the principal object of the action is
an injunction ; Flower v. Local Board of Low Leyton, 6 Ch. D. 347 ;
Chapman v. Guardians of Auckland Union, 23 Q.B. D. 294 ; an action iu
rem : The Longford, 14 P. D. 34 ; an action to recover land : Foat v. Mayor
of Margate, 11 Q. B. D. 299 ; see also illustrating the points above noted ;
Jolliffe V. Wallasey Local Board, L. R. 9 C. P. 62 ; Griffith v. Taylor,
2 C. P. D. 194 ; Smith v. West Derby Board, 3 C. P. D. 423 ; Davis
v. Moore, 4 U. C. R. 209 ; Dale v. Cool, 4 C. P. 460; Anderson v. Grace,
17 U. C. R. 96 ; Ross v. McLay, 40 U. C. R. 83, 87 ; Joule v. Taylor,
7 Ex. 58 ; Pryce v Hole, 6 T. L. R. 195 ; Rochfort v. Rynd, 8 L. R. Ir.
204 ; O'Dea v. Hickman, 18 L. R. Ir. 233. The notice of action is a con-
diiion precedent to the right of suing : Clarkson v. Musgrave, 9 Q. B. D.
390.
The want of notice must be raised at the trial : Moran v. Palmer,
13 C. P. 450, 528 ; and in the High Court and County Courts by the state-
ment of defence : Verratt v. McAulay, 5 O. R. 313 ; McKay v. Cummings,
6 O. R. 400.
In the Division Courts notice of the statutory defense should be given
six days before the trial under section 128 : Smith v. Pritchard, 2 C. >& K.
699 ; AUwright v. Perks, 9 T. L. R. 2H5 : but it has been questioned
whether the section applies to actions brought in Division Courts.
Within six months. — The day of doing the act must be excluded :
Young V. Higgon, 6 M. & W. 49 ; Hanns v. Johnston, 3 O. R. 100; lie
Gallant, 11 C. L. T. 138 ; Hardy v. Ryle, 9 B. A C. 603 ; Edgar v.Magee,
1 O. K. 287.
Venue. — The action must be laid and tried in the county where the
fact was committed. But, under section 89, it may be tried in the
division the place of sitting of which is nearest to the residence of the
clerk or bailiff, though in another county: Partridge v. Elkington,
L. R. 6 g. B. 82.
And of the cause thereof.— The plaintiff will be confined to the cause
mentioned in the notice: Chcrrier v. Robirlson, 14 P. R. 653. It need
SEllVICE OF NOTICE OF ACTION.
385
and exacting
itled to notice
not state the form of action : Prickett v. Oratrex, 8 Q. B. 1020 ; nor whose Sectton
■finoAs were seized, nor the amount of dama<{es : Barton v. De Gros, 11 2W
L. T. N. S. 270.
The notice must state the time and place of trespass complained of ;
l\Ioore V. Gidley, 32 U. C. R. 233 ; Oliphant v. Leslie, 24 U. C. R. 398 :
Martins v. Upcher, 3 Q. B. 662 ; but a mistake as to the locality, not
calculated to deceive, will not vitiate it : Mason v. Kensington Vestry,
(1892), 1 g. B. 614.
The notice need not have the name, etc., of the plaintiff or his solici-
tor indorsed : McPhatter v. Leslie, 23 U. C. R. 573.
In an action against a bailiff for seizing goods exempt, it was held
tiiat it was not necessary to endorse on the notice of action the name and
abode of the plaintiff : McMartin v. Hurlburt, 2 A. R. 146, and that a
compliance with this section, and not with chapter 73 of the revised
Htatutes is all that is required : lb, ; see also Stephens v. Stapleton, 40
U. C. R. 353.
It is not necessary to state in what court or in what division of the
High Court the action will be brought : Hanns v. Johnston, 3 O. R. 100 ;
but if a court is mentioned, the writ must be issued from that court :
Buck V. Hunter, 20 U. C. R. 436.
It is not necessary that the notice be in one document ; it may be
contained in a series of letters if in the result the cause of action and the
other particulars required are disclosed : Lamley v. Mayor of East Ret-
ford. 55 J. P. 133 ; see Cox v. Hamilton Sewer Pipe Co., 14 O. R. 300.
A reference to a statute which does not apply will not invalidate the
notice ; if it give notice of the action and the cause thereof, it is sufficient :
Macgregor v. Galsworthy, 3 C. & K. 8.
Where the notice of action stated that one month after service of the
notice an action would be brought, etc , and for malicious, etc., destruc-
tion of goods and for damages for loss of time and injury to business, and
for the recovery of costs and expenses, etc., " the same having been com-
mitted by you against me in the month of May last at the village of M.
ami at the town of P.," and the notice was served on one of the defend-
ants personally and on the agent of the other defendant at M., and a copy
was also left for him at his place of residence at P. and another copy
served on his solicitors, and this defendant also admitted that he had
Re»n the notice though it was not shewn at what time or place he had
seen it : Held, that the notice and service were sufficient : Bond v. Con-
niee, 16 A. R. 398 ; see Jones v. Grace, 17 O. R. 681.
The notice should be signed by the plaintiff or his attorney and give
the residence or place of business of one of them : Eemble v. McGarry,
6 0. S. 570 ; Bates v. Walsh, 6 U. C. R. 498.
The defendant may waive a defect in the notice: Donaldson v. Haley,
13 C. P. 87.
Reasonable certainty only is required, so as to identify the acts com-
plained of, and prevent defendant being misled: Langford v. Kirkpatrick,
^2 A. R. 513.
A notice given in the name of a party who is dead at the time of ser-
vice thereof, is insufficient ; Pilkington v. Riley, 3 Ex. 739.
For form of notice, see Forms.
Service of notice. — The service need not be personal ; leaving it with
tlie officer's wife at his dwelling house was held sufficient : Hanns v.
Johnston, 3 O. R. 100. The notice need not be served by the party, his
attorney or agent in person, but may be served by any other literate
person ; for instance, the attorney's clerk : Cuming v. Toms, 7 M. A G. 29.
D.C.A. — 25
TT"'Pf«
Mil
386
DEFENDANT MAY TENDER AMENDS.
*4
ilE'
I
'<¥*■
'Wi9iii\h
Sections One month at least. — Notice of the action was given on the 28th Aprif
390-292 and the action commenced on 29th May, following; held Builicient:
Freeman v. Read, 4 B. A S. 174. There must be an interval of at least
one month, tlie day of service and the last day of the month both being
excluded : Re Railway Sleeper's Supply Co., 29 Ch. D. 208; Radcliffe v.
Bartholomew, (1892), 1 Q. B. Ifil ; Dempsey v. Dougherty, 7 U. C. R.
313 : Young v. Higgon, 6 M. & W. 49.
Defeii- 2111. If tender of Hufficient amends is made before
tender'*^ action bi'ought, or if the defendant, after action brouglit,
and^ plead pays a Sufficient sum of money into court with costs, the
i88ue, etc. plaintiff shall not recover, and in such action the defendant
may plead not guilty, and give any special matter in
evidence under that plea. R. S. O. 1S77, c. 47, s. 232. See
also Cap. 73.
Sufllcient amends. — A tender of amends will not cure a defect in the
the notice of action : Martins v. Upclier, H Q. B. (W2.
If a tender of sufficient amends is made before action, it need not be
pleaded ; neither need the amount be paid into court : Jones v. Gooday,
9 M. & W. 730.
If the tender should be pleaded, the plaintiff should reply that the
defendant did not tender, or that the sum was insufficient, and not that
the defendant did not tender sufficient amends : Williams v. Price, 3 B.
& Ad. ()95.
The effect of not pleading the tender and paying money into court will
be to prevent the defendant from giving evidence of it. But whether
pleaded or not, if the verdict of the jury should be less than the amount
tendered, the plaintiff "shall not recover": Jones v. Gooday, 9 M. &. W.
736.
If no tender is made the defendant may pay a sum into court, but it
is necessary that costs be also paid in ; see section 125, ante p. 17*).
If the money paid in is sufficient, the plaintiff " shall not recover."
As to what is a sufficient tender, see notes to sections 122-127.
Not Guilty — A plea of not guilty under section 288, lutitles a
defendant to "avail himself of the matters of defence herein given."
This section gives to such plea a wider effect. The cases applicable to
such plea will be found noted under section 288.
piaintiflf 202. In case an action is brought in any Court of
costs' '*^^ Record in respect of any grievances committed by any clerk,
verdict not bailiff or officer of a Division Court, under colour or pro-
doiiars tcncc of the process of such court, and the jury upon the
certificate, trial find no greater damages for the plaintiff than $10, the
plaintiff shall not have costs unless the Judge certifies in
writing that the action was fit to be brought in such Court
of Record. R. S. O. 1877, c. 47, s. 233.
DISPOSAL or SUITORS MONEYS.
387
defect in the
Grievances committed by any cleric, etc.— This section only applies Sectioni
to " officers " of the courts : Palk v. Kenney, 11 U. C. R. 350 ; Dollery v. 292-894
Wlialey, 8 U. C, L. J. 239.
Under colour or pretence of the process.— This, perhaps, means
practically the same as intending or profeaBin>{ to act in the execution of
his duty as clerk, bailiff or officer under process of the court.
Sliall not have costs. — It is to be observed that the section only
applies to actions brought in Courts of Record : see section 7, and notes
thereto.
The plaintiff recovers no costs whatever without the certificate. In
other cases he would be entitled to costs according to the court in which
tlie action might have been brought : C. B. 1174, and if tried by a jury,
the defendant would have a right of set-off: C. K. 1172; Bennett v.
White, 13 P. R. 149 ; Truax v. Dixon, 13 P. R. 279.
Action was fit to be brought in such court.— It is submitted that
this means an action in which the jury may think proper to give not
more than ftlO damages, although the evidence would have warranted a
larger sum, for which tlie plaintiff reasonably made claim, or one in
wliicli the point involved is of general importance.
The fact that the plaintiff may recover more than $10 will not entitle
him to full costs. He will still be Hubject to C. B. 1172 and 1174 ; McNair
V. Boyd, 14 P. B. 132 ; Baakerville v. Vose, 15 P. B. 122.
DISPOSAL OF FINES.
tSflti. The inoiievs arisiny,- from any penalty, forfeiture ^.'nes. how
- ^ '^ . . disposed
or tiiu' imposed hy this Act, not directed to be otherwise of-
applied, sliall he paid to the clerk of the c(mrt which imposed
the same, and shall be paid by him to the County Crown
Attorney of the county to be hy him paid over to the
Provincial Treasurer, and shall form part of the Con-
s,>lidated Revtjnue Fund. R. S. O. LS77, c. 47, s. 234.
Arising from any penalty. — See sections 133, 1()2, 105, 275, 27*5. An
action would lie against the clerk's sureties for non-payment.
DISPOSAL OF MONEYS PAID INTO COURT.
2tt4. The clerk of every Division Court shall, immedi- cierk to
_ *' mail notice
ately after the receipt of any sum of money whatever foro'P^y™^"'
•' . °' money.
any j)arty to an action, forward, through the post office, to
the party entitled to receive the same, a notice, enclosed in
an envelope addressed to such party or in the case of a
transcript of judgment from another court, then to the clerk
who issued the same, at his proper post office address, in-
forming him of the receipt of the money ; the notice thus;
sent shall be prepaid and registered, and the clerk shall
obtain, and tile among the papers in the action the post
•wmmifi
w
388
DISPOSAL OF UNCLAIMED MONEVS.
■'C
««. — ■
aM'sM* "*^^® certificate of the recriHtration, and shall deduct the
postage and charj^e for re^ristratioii from the moneys in his
hands, but he shall charge no fee for the notice ; the absence
from among the papei's in the action of the certificate of
registration shall be prima facie evidence against the clerk
that the notice has not been forwarded. 43 V^. c. H, s. 50.
Immediately after the reoeipt of any turn of money.— The words
" shall immediately " here used, denote both an imperative and per-
emptory command. They imply " prompt, vigorous action, without any
delay : " »ee notes to section 20, ante p. 10.
It will be observed that the words here employed are " any sum of
money whatever." Whether the sum be large or small, the notice is
required to be given by the clerk. The party entitled to the notice could,
of course, waive the giving of it ; but, in order to justify a clerk in
omitting to give it, he should, for his own protection, take the waiver in
writinq. Should the inspector find that such notice liad not been given
in any case where not disjiensed with, he would probably reprimand the
officer, and if such practices became general, it would be his duty to
report such conduct to the Government, under section CI of this Act, for
their action upon it.
The remissness of many clerks throughout the country has rendered
this and many other provisions of the present Act necessary. The omis-
sion on the part of some clerks to advise parties when moneys are paid
into court on their suits was under the law formerly a frequent source of
trouble and complaint. Should the provisions of this section be disre-
garded, the executive has, under section 30, the power to exercise a
summary remedy.
No particular form of notice is necessary, provided it gives to the
person entitled to it the necessary information. The failure to give the
notice subjects the clerk to the loss of his office.
It may be in the following form or to the like effect :
In the Division Court for the County of A. B., Plaintiff v.
C. D., Defendant. Take notice that the sum of $ has this day been
paid into court to your credit in this cause.
Dated this day of , 189 , Clerk.
To A. B., the plaintiff (or as the case may he).
The clerk should obtain the address of the parties to a suit so that lie
may know where to direct the notice.
Transcript of judgment from another court. — See section 218 and
notes thereto. The clerk is not bound to transmit money by post except
on the request and at the expense of the party entitled thereto ; and m
the absence of such request, it is payable at the clerk's office.
Where a transcript is issued the clerk of the foreign court must not
transmit the money to the clerk of the home court without the plaintiff's
written order.
Unclaimed SOS. All sums of moncv which have been paid into
moneys to i i • i i • i
be paid coui't to the usc oi auv partv, and which have remained
over to ./ X «/
County unclaimed for the period of six yeara after the same were
Crown r ^
Attorney, p^id into court or to the officei-s thereof, and all sums of
BOARD OF COUNTY JUIMJES.
889
b BO that he
inonov when thiH Act takoH effect or Jifterwanls in *•?**?!"
..... 298-397
the hands of the clerk or bailiff', paid into court, or
to the officers thereof, to the use of any suitor shall,
if uiiclnimed for the period of six yeai*s after the
the same were so paid, fo»'ui part of the Consolidated
Revenue Fund, and be paii over l)y the clerk or officer
holdin<r the same to the County Crown Attorney of his
county, to be by him paid over to the Treasurer of
the Province, and no person shall be entitled to claim any
sum which has remained unclaimed for six years. E. S. O.
1877, c. 47, s. 235.
Unclaimed for the period of six years. — See section 40. This is
virtuiilly a Statute of Limitation upon the rights of the party to whose
use the money was paid in : see Williamson v. McCrary, 33 Ark. 470.
But we submit that the forfeiture here declared can only come into
operation where the party entitled has either notice of it under the next
preceding section, or otlierwise. It mi({ht be that a clerk would fail to
^ive notice of the money havin<{ been paid in, or he mi^ht deny that he
received it, so that we think, under these circumstances, it would not be
"uncliiimed" money within the meaning of this section : Gibbs v.Guild,
y Q. B. 1). 5<).
We cannot see tliat the wrong of another should operate as a confis-
cation of the property of an innocent party: set; Atty.-Gen. v. O'Reilly,
6 A. R. 57«.
[n this view the six years would only commence to run when the party
entitled knew, or should but fur hia own neglect have known, that it was
in court for him.
!3!I6. No time during which the person entitled to claim claims of
such sum was an infant or of unsound mind, or out of the under
Province, shall be taken into account in estimating* the six not to be
Drertiu-
years, li. S. O. 1877 c. 47, s. 236. diced.
The t..no would cease to run while any of these disabilities continued :
contrast Penny v. Brice, 18 C. B. N. S. 393.
The section is very different from R. S. O. c. 60, s. 3.
GENERAL RULES AND ORDERS.
2!IT. The existino- Board
of
.^ ^. County Judges with Board of
authority to make rules relating to Division Courts shall their
continue until supei-seded or revoked by the Lieutenant- to frame
Governor; and all Rules and Forms heretofore made relating tinued.
to Division Courts and in force when this Act takes effect
390
APPOINTMENT OF HOAHD.
9t\
p.. I
liiiai
***^?SI' kJ»i'1. ^^> f'»^i' O'S applicable, remain in force until othervN iwo
ordered under the provisionH of tluH Act. R. 8. O. 1S77,
c. 47, s. 237.
In England a complete set of rules was issued in 188C, another in
1885), and they are being constantly improved upon, a number of new rules
having come into force there as late as October 1st, 18i)2. Ilules with
reference to counter-claims, receivers, injunctions, replevin, claims for
contribution or indemnity by third parties, partners, married women
and enforcement of orders by attacntnent are much needed in this
province, and the full extent of the powers of Diviwiou Courts will not
bo seen until such rules are promulgated.
The section providing that the old rules are to continue in force was
probably unnecessary, for notwithstanding the formal repeal of the Acts
under which they were made, the revision really preserves them in un-
broken continuity : License Commissioners of Frontenac v. County of
Frontenac, 14 O. It. 741.
The Lien- 31IM. (1) The Lieutenant-Governor mav from time to
tenant- _ ^^ _ "
Governor time appoint and authorize five of the (^ounty JudgOH, who
rtvecounty ^'"^'^ ^ stylod " The Board of County Jud<^es," to frame
'frainr*° (icueral Rule.s and Forms concerninj;' the practice and pio-
ruies, etc. ceediiigH of the Division Courts, and the executicm of the
process of such courts, with power also to frame rules and
orders in relation to the provisions of this Act, or of any
future Act respecting- such courts, as to which doubts have
arisen or may arise, or as to which there Ifave been or may
be conflictin<j decisions in any of such coin-ts.
Retired (2) The Lieutenant-Governor may apponit any retired
be appoint County Judffe to be one of the members of the Board.
ed, '' ^
Uules
Clerks and
iiailifls.
(3) The Loard may also from time to time make Rules
(i'lerkBaUd for the jruidance of clerks and bailiffs, and in relation to
the duties and services to be performed, and to the fees to
be received by them ; and may also substitute other fees in
lieu of fees payable to clerks and bailiffs under any rule,
order or statute.
(4) The Board may from time to time alter or amend
any rules or orders made for the Division Courts, and may
for any Division Court Division, embracing a city or part
of a city, establish a lower tariff of fees from that estab-
lished for County Division Courts. R. S. O. 1877, c. 47,
s. 238.
Amend-
ment of
rules.
POWERS OF llOAHD.
391
)tliei'wiso
O. 1877,
another in
f new rules
RuleH with
claiuia for
ied women
led in this
•ts will not
1 force was
of the AotH
hem in un-
County of
1 time to
IgOH, wlio
to fniine
and pro-
on of tlie
fules and
»r of any
ibtH have
n or may
ly retired
oard.
fike Rules
ilation to
lie fees to
er fees in
any rule,
or amend
, and may
y or part
lat estab-
(77, c. 47.
Scope of Board's power.— The authority u^ven by this section to the
Doanl of County Juu|^es is very extensive. Indeed it may be saiil to
comprise the whole domain of adjective law as distini^uished from sub- _
Htantive law. All questions of the procedure by which Itmal ore(|uitable
ri>{hts may be enforced or extinguished may be dealt with. The word
" practice" in the section, ." denotes the mode of proceedintf by which a
le^al right is enforced, as distinguished from the law which f{ives or
(lehnes the ri<;ht, and which, by means of the proceeding, the court is to
administer the machinery as distinguished from its product," per Lush,
L.J., Foyser v. Minors, 7 Q. B. D. at p. 333. The board would have full
power to puss a rule declaring that a non-suit should have the same effect
as a judgment upon the merits, for the defendant : Poyser v. Minors,
7 g. U. D. 321).
The further power is given to the board to interpret any doubtful
enactment respecting Division Courts, and their interpretation, when
approved under section 300, is binding: see section 301. They also have
power to declare which one of the conflicting decisions shall be followed.
But they have no power to pass a rule altering their jurisdiction in
direct contradiction to the terms of the Act. Nor have they power to
delegate to the clerks the jurisdiction conferred on the Judges : Fellows
v. Owners of The "Lord Stanley," (1893), 1 Q. B. 98. Nor have they
power to pas.s a rule repugnant to the provisions of this Act : Irving v.
Askew, L. R. 5 Q. B. 208, per Hannen, J., at p. 211 ; «e<' also Weather-
lield V. Nelson, L. R. 4 C. P. 571 ; R. v. Pawlett, L. R. 8 Q. B. 491.
Retired Judge. — A retired county Judge is a person who has fijled
the office of Judge of a county court, and who at his own request has
been relieved from the discharge of his duty, in contradistinction to one
who has against his will been dismissed.
He may resume legal practice, embark in commercial ventures, take
Holv Orders or enter Parliament, without losing his status as a retired
Judge : Macdonell v. Blake, 17 A. R. 312.
Regulating Clerks and BailifTs —The board has no judicial functions
nor disciplinary pow^r over clerks or bailiffs. Its functions are legisla-
tive. It has full power to make rules for the guidance of clerks and
bailiffs, which rules have the same force, after approval, as a statutory
enactment, and the non-compliance with which would render the officer
liable to punishment under sections 29 or 30 : McKenzie v. Ryan,
(i P. R. 323.
The legislature and the board have full control over the fees of officers-
The board may even substitute fees fixed by themselves for fees fixed by
a statute ; in other words, they may virtually repeal a statute.
The board has the most ample powers of altering and amending rules
from time to time, and, as there is no fixed date of sitting, a rule may be
altered or abrogated, or a new rule made at any time when the necessity
for it appears.
The delay which would be necessary if the legislature had not
delegated these powers may, therefore, be avoided.
The board also has power to discriminate against city Division
'Courts in the matter of fees.
The authority of the legislature to delegate these powers is clear :
R. v. Burah. 3 App. Cas. 889; Hodge v. Regiua, 9 App. Cas. 117;
Powell v. Apollo Candle Co., 10 App. Cas. 282. " Such an authority is
■ancillary to legislation, and without it an attempt to provide for varying
details and machinery to carry them out might become oppressive or
.absolutely fail : " 9 App. Cas. at p. 132.
Section
299
■"■""^Vl
lit'
392
EFFECT OF IIULES ADOrFED.
%^
■'^■
Sections
299-302
Board to
certify
rules to
the Hi(;li
Court to be
laid before
the Judges.
Suck rules
to be
approved
ot by tlio
Judges;
And have
force of a
statute.
Judges to
transmit
copies to
the Lt -
Governor,
•to.
31IO. The Board of County Judges or any three of
them shall, under their hands, certify to the President of
the High Court all Rules and Forms made after this Act
takes effect, and the said President shall submit the same
to the Judges of the High Court, or to any four of them.
R. S. O. 1»V7, c. 47, s. 239.
The legislation of the board must be certified to the President of the
High Conrt of Justice, i.e. , that one of tlie Presidents of the three divi-
sions of that court who is first in order of seniority : R. S. O. c. 44, a. 3>
8-B. 10.
At least three of the board must certify the rules and forms framed
by them, and at least four Judges of the High Court must approve of them.
Upon approval, they govern all future procedure and apply equally
to pending actions and those commenced after their adoption : tie McKav
V. Martin, 21 O. K. 104 ; Wright v. Hale, G H. & N. 227 ; Kimbray v.
Draper, L. R. 3 Q. B. ICO.
" No jierson who sues or is sued on a cause of action which existed
before the enactment as to procedure, has a vested right to have proceed-
ings regulated by a particular method of procedure which the legislature
has thought imperfect and, therefore, has altered:" per Bowen, L.J.y
Turnbull v. Forman, U) Q. B. D. 238.
300. The Judges of the High Court (of whom the
President of one of the Divisions shall be one) may approve
of, disallow, or amend any such Rules or Forms. R. S. O.
1877, c. 47, s. 240.
The Judges of the High Court have more than a power of assenting or
dissenting. They may amend any rule or form framed by the Board.
301. The Rules and Forms so approved of shall have
the same foi'ce and effect as if they had been made and in-
cluded in this Act. R. S. O. 1877, c. 47, s. 241.
The rules and forms have no force till approved. After approval they
have the same effect as if enacted by the legislature.
30l!2. The Judges who make any Rules and Forms
approved of as aforesaid shall forward copies thereof to the
Lieutenant-Governor, and the Lieutenant-Governor shall
!ay the same before the Legislative Assembly. R. S. O.
1877, c. 47, s. 242.
The statute is somewhat defective in not providing for a proper pro-
mulgation of the rules. The board is merely required to forward copies
of its rules and forms to the Lieutenant Governor. Nothing further
need be done by them, and the Lieutenant-Governor's duty ends when he
lays the copies received by him before the Legislative Assembly.
That body cannot give effect to the rules, nor can it alter them or pre-
vent their immediat'^ operation. It can only, as one branch of the legis-
lature, pass a bill for effecting any one of these objects, which bill would
PRACTICE OF HIOH COURT TO GOVERN.
39a
' three of
esident of
r this Act
, the same
r of them.
lident of the
e three divi-
). c. 44, B. 3,
)rm8 framed
rove of them.
pply equally
: lie McKay
Kimbray v.
'hich existed
ave proceed-
e legislature
Wowen, L.J.v
A'hom tlie
,y approve
R. S. O.
a88entin«{or
le Board.
sliall have
lie and iu-
ppi-oval they
ml Forms
oof to the
nor sliall
R. S. O.
proper pro-
-ward copies
ling further
lids when he
bly.
them or pre-
of the legis-
h bill would
become effective only on receiving the Lieutenant-Governor's assent and Sectioni
becoming a statute. 802-304
Some provision should be adopted for proper publication of the rules.
At present it is almost if not quite impossible to verify the correctness of
any rule for want of any known place where an official copy can be found.
The Interpretation Act enacts : " Where forms are prescribed, slight
deviations therefrom not affecting thesubstanceor calculated to mislead,
shall not vitiate them : " R. S. O. c. 1, s. 8, s-s. 35 ; Jones v. Grace,
17 O. R. f)81.
SiOtl. The Lieutenant-Governor may, by warrant, direct
the Provincial Treasurer to pay, out of the Consoli(hited
Revenue Fund, tlie contin^rent expenses connected with tiie
framing, approval and printing of such Rides. R. S. O.
1877, c. 47, a. 243.
tS04. In any case not expressly ])rf)vided for by tliis Kxi'enBes
/ , • pj-ovidod
Act or by existing Rules, or by Rules made under this Act, toi
the County -ludges ma}^ in their discretion, adopt and apply
the general principles of practice in the High Couit to
actions and proceedings in the Division Courts; provided
that nothing herein contained shall beheld to authorize the Practice of
tuxirtion or allowance of costs to any officer of the court, court may
II' 1 • 1 ' • !• (• !• ^'^ followed
other tiian those to be round in the tariff or fees as author- i" nnpro-
I 1 1 1 1 I n I • videdcases.
ized aiKi allowed by the Board of County Judges, under
the provisions of this or any other Act. R. 8. O. 1877
c. 47, s. 244: 45 V. c. 7. s. 7.
It 11 only in cases not e.xpressly provided for in the statute or rules
that theoulges may apply the general principles of practice of tlie High
Court: Clarke v. Macdonald, 4 (). R. 310. And only the general
principle!, of practice may be so applied.
Statu ory enactments conferrmg powers upon or prescribing particular
precedur ! for the High Court, cannot he extended under this section to
Division Courts. For instance, the provisions of the Consolidated Rules
as to service upon corporations are not applicable to Division Courts:
Ahrens v. McGilligat, '23 C. P. 171; Re Guy v. G. T. R>. Co , 10 P. R.
372. Nor are the provisions as to discovery by examination and pro-
duction of documents; Re Willing v. Elliott, 37 U. C. R. 220.
Those rules are rules of procedure applying only to the courts to which
they are in terms made applicable: Bank of Ottawa v. McLaughlin,
8 A. R. .'543.
But general principles of practice may be applied, e.r/., the Judges
may e.vercise the same discretionary power as to allowing parties to sue
in forma jxinperin which the Judges of the Hifrh Court exercise: Chiiin
v. Bullen, 8 C. B. 447.
In the High Court the granting or refusing of security for coats is
purely discretionary and a matter of practice and not a rule of law or a
decided right: per Cameron, J., Re Fletcher v. Nobio, P. R. 2r)7 ; and a
394
WHEN PRACTICE OF HIGH COURT APPLICABLE.
Section Division Court Jiu1<«e may, therefore, adopt the principles of the High
304 Court and order security for costs in proper cases ; Th.
The section will also authorize the ap])"' a stranger to
execute a warrant of execution or commit ^aiimt % bailiff, issued
out of his own court, notwithstanding that tin uppointmtnt of bailiffs is
by section '27. vested in the Lieutenant-Governor.
Tliis is analogous to the appointment of elisors in the High Court
where a sheriff and coroner are interested : Bellain}' v. J L. R. 10
Ex. 220 ; nee notes to section 271).
The principles of practice of the High Court, as to amendments may
be applied to tlie Division Courts : Re White v. Galbraith, 12 P. R. Siij.
Perhaps a .Tudge of a Division Court would have power to order a
married woniiin, a^jaluHt wlioni a judgment had been : t. '\i»*ed, to appear
and be examined for the purpose of discovering tl.(~ par?; ulars of her
separate estate. Tiiis could be done, perhaps, under ^." 'iherent power
of the court to enforce its own judgments, if not by judgment summons :
see Rule 47, Order 25, of the English County Court Rules of 18!'2 : Avles
ford V. Great Western Ry. Co., 8 T. L. R 7K() ; (1892), 2 Q. B. ()2<) :
Metropolitan Loan & Savings Co. v. Mara, 8 P. R. 355 ; Pearson v.
Essery, 12 P. R. JOI}; but we McLeod v. Emigh, 12 P. R. 450.
It is now settled that a judgment against a married woman is personal
and not merely proprietary: Pelton v. Harrison, (1892), 1 Q. B. 118.
The powers conferred upon Judges, under the Judicature Act, of
setting aside verdicts of juries and entering judgments are not applicable
to Division Courts: Pryor v. City Offices Co., 10 Q. B. D. .504; m-e also
Cowan V. McQuade, li) C. L. T. 108; Macnee v. Ontario Bank, 3 C. L. T
300 ; Building & Loan Assn. v. Heimrod, 3 C. L. T. 3()1 ; " High Court
Practice in Inferior Courts," 3 C. L. T. 374.
CLAIMS BY AND AGAINST MARPIED WOMEN.
'0
§^
t'^ttttim
Married women are probably more frequently to be found as litigants
in the Division Court than in any of the higher courts.
Claims by and against them are to be dealt with and disposed of upon
the same grounds and, therefore, in somewhat the same manner in all
courts.
Right to sue and be sued. —Since the Ist July. 1884, a married women
has been capable of suing and being sued in all respects as if she were
a. fi'iiie .so/c, — /.('., unmarried — and her husband has not been a necessary
party either as plaintiff or defendant. Even for a tort committed befur'
that Act was passed, a mirried woman is entitled to sue alone : Weldon
V. Winslow, 13 Q. B. D. 784; Heverunce v. Civil Service Supply Assn.,
48 L. T. N. S. 485 : James v. Barraud, 49 L. T. N. S. 300.
She may be sued by her husband for loans made by him to her after,
but not before marriage : Butler v. Butler, 14 Q. B. D. 833.
The liability of a married woman in contract depends upon whether
the contract was made with respect to, and with the intention of binding
•separate property a(!tually possessed by her at tlie time of entering into
the contract : Re Shakespeare. Deakm v. Lakin, 30 Ch. D. 169 ; Palliser
V. Gurney, 19 Q. B. D. 519; Stogdon v. Lee, (1891), 1 Q. B. 661; Moore
V. Jackson, lt> A. R. 431.
Unless the separate property exists, the married woman is not bound
by the contract. And the separate property must be free from any re-
straint on anticipation ; Whittaker v. Kershaw, 45 Ch. D. 320 ; Braun-
stein V. Lewis, 64 L. T. N. S. 265 ; 65 L. T. N. S. 449 ; Harrison v. Har-
rison, 13 P. D. 180.
RIGHTS AND LIABILITIES OF MARUIED WOMEN.
395
The liability in tort depends upon whether the wrongful act was the
voluntary act of the married woman, or whether she was acting in tlie
company and undijr the compulsion of her husband : Sohouler on Hus-
band and Wife, ss. 183-135 ; Lee v. Hopkins, *20 O. R. 66() ; Seroka v.
Kattenburg, 17 Q. B. D. 177 ; or whether she has allowed her separate
property to be used so as to impose a liability on her as owner thereof :
Shaw V. McCreary, 19 O. R. 3i).
The Boie undertaking of a married woman as to damages on obtain-
ing an injunction by iier to restrain interference with property claimed
by her must be accepted : lie Prynne, 53 L. T. N. S. 405 ; and though the
injunction may be obtained against her husband, he may enforce the un-
dertaking, notwitliotanding his disability to sue her for tort : Hunt v.
Hunt, 54 L. J. Ch. 289.
Should allege separate estate.— In Moore v. Jackson, lO A. R. 431,
nt p. 4H(), it was said tliat in an action of contract against a married
wiiman, it was necessary to allege and prove separate estate. Whether
any such allegation is necessary in Division Courts, wliere no pleadings
are recjuired is a moot po'nt. The stvtnte merely requires a copy of the
jiliiintiff' s account, ciciiii or demand i i writing in detail (sections 94 and
lO'.l), and this would be satisfied \n ithout any allegation of separate
estate.
The onus of proving an enforceable contract is npon the plaintiff, and
his evidence must necessarily shew separate estate, or he will fail in his
action: Field v. McArthur, 27 C. P. 15; Darlf-g v. Rice, 1 A. R. 43; Palli-
ser v. Gurney, 19 Q. B. I). 519 ; StogJon v. Lee (1891), 1 Q. B. G(il. It is.
liDWover, recommended that in all oases of contract an allegation be
made tliat at the time of making tlie contract, the defendant possessed
separate estate and contracted with reference thereto. Such an allega-
giition will entitle the plaintiff, in the case of a special summons, to
judgment bv default: Tetley v. Griffith, 57 L. T. N. S. (;73; Uoltby v.
Hodgson, 24 Q. B. D. 103, at p. 105 ; nee 27 L. J. N. S. 32.
A charge upon her separate estate is sufficient evidence of its exis-
tence to entitle a plaintiff, with whom she has contracted, to an enquiry :
London Discount Alliance Co. v. Kerr, 1 C. & E. 5; but gee Bell v. Rid-
deil, 2 O. R. 25.
It is not necessary to either allege or prove separate estate when suing-
a married woman for a debt contracted by her while a feme nole : Downe
V. Fletcher, 21 Q. B. D. 11. Neither is it necessary in an actian for tort :
Barker v. Weatover, 5 0. R. 116.
The omission to prove separate estate, when necessary, does not give
a right to prohibition : A> Widmeyer v. McMahon, 32 C. P. 187.
It is not necessary to prove separate estate at the date of the judg-
ln^■nt: Downe v. Fletcher, 21 Q. B. D. 11.
Presumption that separate estate bound.— By R. S. O. c. 132, s. 3,
8 H. 3, it is enacted that "Every contract entered into by a married
woman shall be deemed to be a contract entered into by her with respect
to and to bind her separate property, unless the contrary is shewn."
The rule prior to this statute was laid down in Lawson v. Laidlaw, 3
A. R. 77, at page 90, in substantially the same terms, and the section
cannot be said, in view of the decisions thereon, to be more than declara-
tory of the law ; see cases cited, 1 White & Tudor's L. C. 570, 571.
In Horner v. Kerr, 6 A. R. 30, Burton, J. A., doubted whether a
married woman would be liable upon a joint contract, but Hulme v.
Tenant, 1 Bro. C. C. 15 ; 2 Dick. 5(50 ; 1 White & Tudor's L. C. 536,
which is the leading case upon the subject of a married woman's liability,
■ f'
■'
i
■*;
^-
396
SEPARATE ESTATE.
0i' -. .
II
mti»«,
expressly decided this point in the affirmative ; and the rule that judg-
ment recovered against one of two joint contractors is a bar to an
action against the other, applies to such a contract: Hoare v. Niblett,.
(1891), 1 Q. B. 781.
The equity which is imposed on a purchaser to pay off r.iortgages on
the purchased estate, is not a contract, and a married woman who made
such a purshase would not be liable for non-payment of the mortgages :
McMichaoi v. Wilkie, 18 A. R. 4r>4; and the same principle is applicable
to claims against her for moneys received, and to which she believed her-
self entitled, for no implied assumusit will be raised against her contrary
to the intention of the parties: Buiton v. Williams, 2 Ves. Jr. 138; Jone»
V. Harris, 9 Ves. Jr. 48B ; 7 R. R. 282 ; Wrifht v. Chard, 4 Drew. (573, but a
married woman who alienates property devised to her is liable for tlie
debts of the testator to the extent of the value of the property ; Re Hedgelv.
Small V. Hedgely, 31 Ch. D. 379.
A solicitor acting for a wife must obtain her express contract to pay
the costs : Callow v. Howie, 1 DeG. & Sm. 531. If retained by the
husband and wife, thougn in respect to the separate estate, in the absence
of a special contract, the husband will be liable* Wright v. Chard, 4
Drew. 702.
Unless the contFary be shown, — i.e., unless iho separate property
be of such a nature that the presumption cannot arise : Bonner v. Lyon,
38 W. R. 541.
The fact that a married woman has separate estate at the time of
entering into a contract is not conclusive. She may have contracted as
agent of her husband, or of r.orae other person, or in some capacity or
under such circuniHtances ha sliew that she did not intend to bind lier
separate estate. Or the separate estate may be of such a nature as will
not justify the inference that she intended to contract with reference
to it in entering into the particular contract. Or she may be restrained
from anticipating such separate property. A woman who lives with her
husband and family, and who orders household supplies or provisions in
the ordinary way, as managing the household, is not by the mere fact of
possessing separate estate deemed to have contracted with reference
thereto: Griffin v. Patterson, 45 U. C. R. 53t). If the circumstances are
such as to lead to the conclusion that she was contracting, not for her
husband, but for herself in respect of her separate estate, that separate
estate will be liable to satisfy the obligation : Matthewman's Case, L. R.
3 Eq. 787.
Where a married woman had an income of £107 per annum which
she was restrained from anticipating, and had arranged with her husband
that she should clothe herself and children thereout, and she possessed
no other property but her own and the children's clothes, it was held that
she was not liable for clothes purchased by her, as it would be absurd to
assume an intention to enter into a contract with respect to property she
could not do without: Leak v. Driffield, 24 Q. B. D. 102. Where, how-
ever, the only separate estate was jewelry, etc. , previously supplied by
plaintiffs, the married woman was held liable : Bonner v. Lyon, S8
W. R. 541.
After income which a married woman is restrained from anticipating
is paid over to her, it becomes her free separate property and while it re-
mains in her possession she may contract with reference thereto. It is
therefore necessary for a plaintiff in sucli a case, if the defendant has no
other separate property to prove that at the time of the contract the
married woman had unspent income in arrear : Fitzgibbon v. Blake,
S Ir Ch. Rep. 328, 330; Myles v. Burton, 14 L. R. Ir. 258; or in her
hands to such an amount as to justify the inference that she intended
to bind such : Everitt v. Paxton, 65 h.T.H. S. 283 ; 7 T. L. R. 465. .
SEPARATE ESTATE.
397
ule that judg-
a bar to an
are v. Niblett,.
mortgages on
nan who made
he mortgages :
e is appiicabli!
a believed her-
jt her contrary
Jr. 138 ; Jone»
'rew. ()73, but a
i liable for the
f ; Re Hedgely.
ontract to pay
itained by the
in the absence
it V. Chard, 4
irate property
onner v. Lyoiu
it the time of
! contracted as
ne capacity or
d to bind her
nature as will
with reference
y be restrained
I lives with her
r provisions in
le mere fact of
with reference
iumstances are
ig, not for her
, that separatj
n's Case, L. K.
annum which
;h her husband
she possessed
was held thiit
d be absurd to
;o property she
Where, how-
y supplied by
r V. Lyon, H8
m anticipating
tnd while it rc-
thereto. It is
fendant has no
e contract the
»bon V. Blake,
158 ; or in her
b she intended
L. R. 465. ,
The question is one of fact to ascertain whether the separate property
iR such as she could and might reasonably have contracted credit upon :
Sweetland v. Neville, 21 O. R. 412. *
What is separate estate. — Separate estate is real or personal pro-
perty held by a married woman, free from all marital rights of the
liiiBband, and over which ho has no control or right of interference or
dispo'^ition, but which she can, subject to any restraint against anticipa-
tion wliich may be imposed, dispose of in the same manner as if
unmarried.
The separate use is an incident of and lasts only during coverture :
lie Lambert's Estate. Stanton v. Lambert, 39 Cli. D. 62(>. While dis-
covert the property is not separate estate ; Myles v. Burton, 14 L. R.
Jr. 258.
Land which is separate estate —(1) Real estate held by a married
woman, or by trustees for her, for her separate use in fee : Taylor v.
]\Ieads. 4 DeG. J. & S. 5!)7, 607 ; or in tail : Cooper v. Macdonald, 7 Ch.
I). 288 ; or any less estate ; or under an agreement before .narriage that
all property acquired should be separate: Sanders v. Mclsburg, 1 O. R.
178.
If the husband should build upon it the wife would have the benefit
of his outlay: Barrack v. McCuliough, 3 K. & J. 119; Grant v. Grant,
31 Beav. 623 ; Till v. Till, 15 O. R. 133.
(2) Real estate conveyed to a w.rried woman for her sole use and
benefit: Dame v. Slatei, 21 O. 11. 375.
For other words which will create a separate estate, see White &
Tudor s L. C. 545; Negus v. Jones, 1 C. & E. 52.
Land conveyed by a husband to his wife for her sole use : Massy v.
Eowen, L. R. 4 H. L. 297; Surman v. Wharton, (1891), 1 Q B. 491;
Kent V. Kent, 19 A. R. 352; or for " her own proper use and benefit:"
Surman v. Wharton, (1891), 1 Q. B. 491.
(3) Real estate owned by a married woman married, after 2nd March,
1872, at the time of her marriage or acquired after it: R. S. O. c. 132,
8. 3 ; J'urness v. Mitchell, 3 A. R. 510; Moore v. Jackson, 19 A. R. 383;
(4) Real estate owned by a married woman wlienever married,
acquired between 2nd March, 1872, and 31st December, 1877: Dingnian
v. Austin, 33 U. C. R. 190 ; see Moore v. Jackson. 19 A. R. at p. 392 ;
(5) Real estate acquired by a married woman after 1st July, 1884,
luiless affected by a marriage settlement or agreement for a settluiunt :
sre R. S. O. c. 132, s. 20; Re Whitaker. Christian v. \Vhitaker.H4 Cli D.
227;
(6) Real estate acquired by a married woman from the savings or
product of her separate estate ; Horner v. Kerr, A. R. 30 ;
(7) Property, real or personal, over which a woman has a general
power which she exercises: R. S. O. c. 132. s. 6;
(8) Property, real or personal, over which a woman has a general
power by deed or writing or by will, whether exercised or not : Johnson
V. Gallagher. 3 DeG. F. & J. 494, 516 ; but see Re Roper. Roper v. Don-
caster, 39 Ch. D. 482 ;
(9) Property, real or personal, held by a married woman for life for
lier separate use, with remainder, 6 3 aim may by deed or will appoint,
with remainder, in failure of appointment to her executors : London
Chartered Bank of Australia v. Lempriere, L. R. 4 P. C. 572, 395, see Re
Roper. Roper v. Doncaster, 39 Ch. D. 48i, iH<i.
a
'"T"
«5-
;2:BC:
398 SEPARATE ESTATE.
PeFBonal property which is separate estate.— (1) Personalty, acquired,
given to or settled upon a married woman for her separate use, or in Huch
other terms as%ould, if real estate, make it separate property accordin<;
to propositions 1 and 2 supra, and personalty acquired by her from tlie
savings or product of her separate estate : Trotter v. Chambers, '2 O. U.
515: He Schofield and Wife, 7 T. L. R. 60 (jewellery given by husband) ;
He Dearmer. James v, Dearmer, 63 L. T. N. S. 905; Totten v. Bowen, 8
A. R. 002.
(2) All personal property, not comprised in a marriage settlement,
whether belonging to her before marriage or in anyway acquired by her
after marriage, unless such personal property had been reduced into the
possession of the husband before 4th May, 185U : C. S. U. C. c. 73, ss. 1, '.J ;
R. S. O. c. 132, s. 4 ; Chamberlain v. McDonald, 14 Gr. 447 ; Leys v.
McPherson, 17 C. P. 2fi6 ; Lav^son v. Laidlaw, 3 A. K. 77 ; Dawson v.
Moffatt, 13 O. R. 170; but see Balsam v. Robinson, 19 C. P. 263; Mc-
Guire v. Guire, 23 C. P. 123. Presents by a husband to a wife: Grant
v. Grant, 34 Heav. 623.
Personal earnings. — Wages and personal earnings of a married
woman, and proceeds or prolits of a separate trade or occupation or
derived from literary, scientific or artistic skill, if acquired after 2nd
March, lh72: R. S. O. 1877, c. 125, s. 7; R. S. O. c. 132, s. 5, s-s. 1;
Campbell v. Cole, 7 O. R. 127 ; McCallum v. McCailum, 8 A. R. 277 :
Robertson v. 1 aroque, 18 O. R. 469.
But quore as to such earnings acquired by a woman married before
Ist July, 1884. Between Ist July, 1884, and 23rd April, 1887, during
whicli time the personal earnings section was, as to such women, repealed :
nee 47 V. c. 19, ss. 3 and 22 ; 50 V. c. 7, s. 22.
(3) Personalty accjuired by a woman married before Ist July, 1884,
her title to which, whether vested or contingent, and whether in possession,
reversion or remainder accrued after that date. Her tit'e must accrue
for the first time after Ist July, 1884 : R. S. O. c. 132, s. 7 ; Reid v. Reid,
31 Cii. D. 402 ; Re Hobson. Webster v. Rickards, 34 W. R. 19.") ; A'.'
Beaupre's Trusts, 21 L. R. Ir. 397; He Tucker. Emmanuel v. Parfitt. '>'2
L. T. N. S. 923; He Adames' Trusts, 53 L. T. N. S. 198; He Tench's
Trusts, 15 L. R. Ir. 406.
(4) Personalty of a woman married after 1st July, 1884, whenever
acquired: R. S. O. c. 132, s. 5, s-s., 2.
(5) See property subject to powers : Propositions 7, 8 and 9 supra.
(6) Damages or costs recovered by a married woman in any action or
proceeding brought by her : R. S. O. c. 132, s. 3, ss. 2, and this includes
damages acquired in an action brought by luisband and wife for personal
injuries to the wife: Beasley v. Roney, (1891), 1 Q. B. 509.
(7) Rents received by a married woman from property not technically
soparate estate, but which she is entitled to, free from the control of her
husband : Horner v. Kerr. 6 A. R. 30.
Tiie husband is trustee for the wife when no other trustee is appointed :
Bennett v. Davis, 2 P. Wm^^ 316; Rich v. Cockell, 9 Ves. 369; 7 R. R.
227 ; even when the marriage contract is made in a foreign country :
Ex parte Sibeth. He Sibeth, 14 Q. B. D. 417.
What is not separate estate. — (1) Real estate owned by a married
woman at the time of her marriage when such marriage occurred prior
to 2nd March, 1872, and not settled for separate use by a settlement
executed by her : Dye v. Dye, 13 Q. B. D. 147 : Royal Canadian Bank v.
Mitchell, 14 Gr. 412.
(2) Real estate acquirdd after marriage and before 1st July, 1884, by
a woman marri'.'d before 2nd March, 1872, except ;
alty, acquired,
use, or in such
Brty accordinj^
' her from tlio
mbers, '2 O. R.
by husband) ;
3n V. Boweii, 8
^o settlement,
cquired by her
duced into the
).c. 73, 88. l,;i;
447 ; Leys v.
J ; Dawson v.
. P. 263; Mc-
i wife: Grant
of a married
occupation or
ired after '2nd
J2, s. 5, 8-8. 1 ;
8 A. R. 277 ;
Harried before
, 1887, during
men, repealed:
^8t July, 18H4,
rin possession,
must accrue
Reid V. Reid,
, R. 1<J'>; y^V
1 V. Partitt. 't'l
i; Re Tench's
^84, whenever
nd 9 supra.
any action or
1 this include;^
fe for personal
lot technically
control of lier
e is appointed:
369 ; 7 R. R.
•eign country :
by a married
occurred prior
' a settlement
adian Bank v.
July, 1884, by
SEPARATE ESTATE.
(a) Acquired between 2nd March, 1872, and Slst December, 1877;
(b) Conveyed or settled to her sole or separate use ;
(c- ) The product or savings of her separate estate ;
((I) Acquired after Ist July, 1884 : Douglas v. Hutchison, 12 A. R. 1 10.
(H) Personal property owned by a woman married before the 4th May,
1859, and reduced into the possession of her husband before that date.
(4) Property subject to a general power by deed or will which is not
exercised or to which her heirs, executors or administrators are not en-
titled in default of appointment : Ex imrte Gilchrist, lie Armstrong,
17Q. B. D. 521.
(6) Alimony is not separate estate : Anderson v. Lady Hay, 7 T. L. R.
113.
Restraint on anticipation. — During coverture a married woman may
be restrained from alienating or encumbering her separate property before
it ought to come to her hands, this ia called " restraint upon anticipa-
tion," and no separate property subject to such restraint can be taken
in execution, except that property settled by the wife herself may be
taken for the wife's debts contracted before marriage notwithstanding
she has restrained herself from anticipating it.
The restraint may apply to either real or personal property, and
either to the income alone or to the corpus : Baggett v. Meux, 1 Phil. 627 ;
Re. Currey. Gibson v. Way (No. 1), 32 Ch. D. 361 ; Re Grey. Acason v.
Greenwood, 34 Ch. D. 712, but it must be the accompaniment of a separ-
ate use, and a gift to separate use will not be implied from the mere
existence of such restraint: Stogdon v. Lee, (1891), 1 Q. B. 661.
Where a share in a fund is directed to be paid to a married woman,
after the death of a life tenant, for her separate use without power to
anticipate, the restraint on anticipation is effectual only during the life
of the life tenant, and on his death, the married woman is entitled to
obtain payment of the fund into her own hands, and thereafter to do as
she pleases with it: Re Bown, O'Halloran v. King, 27 Ch. D. 411; t it if
the fund is to be restrained bv trustees, the restraint will still be e. fec-
tual : Re Tippett's & Newboufd's Contract, 37 Ch. D. 444.
After the death of the husband the separate use is at an end, and the
restraint consequently falls with it; but will generally revive upon
re-nmrriage: Tullett v. Armstrong, 4 Myl. & Cr. 377.
But during widowhood the property cannot be taken for debts incurred
during coverture : Beckett v. Tasker, 19 Q. B. D. 7 ; Pelton v. Harrison
(ISlH), 2Q. B. 422.
riie restraint may be imposed by any words prohibiting alienation.
As, for her " sole, separate and inalien;; iilo use " : Harrison v. Harrison,
13 P. D. 180, or by words shewing that income shall not be paid to her
until after it shall have become due : Field v. Evars, 15 Sim. 375 : Baker
V. Bradley, 7 DeG. M. A' G. 597. A mere expression of wish or desire
not to sell would be insufficient : Re Hutchings to Burt, 59 L.T.N.S.490.
The words generally used are, " so that she shall not have power to
dispose thereof in the way of anticipation" : Prideaux on Conveyancing
14th ed. Vol. II. 273.
The court may give the married woman power to charge her separate
estate, notwithstanding the restraint, but her consent is necessary :
R. S. O. c. 132, 8. 8. It cannot remove the restraint entirely: Re War-
ren's Settlement, 49 L. T. N. S. 6i(ii ; but may give power to raise a sum
to pay debts: C.'s Settlement, 56 L. T. N. S. 299; but not if it might
involve a forfeiture : Re Jordan. Kino v. Pickard, 55 L. J. Ch. 330.
899
P*?""!
400
HUSBAND AND WIFE.
'tji:
Death of hulsband. — As the separate use ends with the coverture,
property acquired on or after such dcatli will not be separate estate, and
will not be liable durin;; widowhood for debts contracted during cover-
ture : lie Price, Stafford v. Noble, 2S Ch. D. 70i»; Beckett v. Tasker, li)
Q. H. D. 7 ; Pelton v. Harrison (185(1), '2 Q. B. 422, but, strange as it may
appear, if she marry again all separate pi'operty not subject to restraint
on anticipation will be liable for debts contracted during the lirst cover-
ture : Jay v. Robinson, 25 Q. B. D, 407, and a restraint upon anticipation
imposed only on entering into the second marriage will be ineffectual
under section 20.
It is indeed doubtful whether during' widowhood any property of the
widow can be taken for debts incurred during coverture, although sucli
property may have been separate during the coverture : see 8 L. Q. B. OH,
70, but see Iloltby v. Hodgson, 24 Q. B. D. 108.
Death of wife. — R. K. O. c. 132, s. 22, enacts that, "For the purposes
of this Act the legal personal representative of any married woman shall.
in respect of her separate estate, have the same rights and liabilities and
be subject to the same jurisdiction as she would be if she were living."
And where the husband took the property jure mariti, ho was held
liable for his wife's debts to the extent of the separate estate: Sunnan
V. Wharton (I8i»l), I Q. B. 4<»1.
The court will administer the estate for the satisfaction of debts pay-
able thereout, just as a man's assets will be administered for the payment
of his debts: Merchants Bank v. Bell, 2'.) Gr. 413.
Statute of Limitations. — By analogy to the Statute of Limitations,
the remedy against separate estate for debts due by a married woman
will be barred at the same period as debts due by a man: lie Ludy
Hastings. Hallett v. Hastings, 3(5 Ch. D. !)4.
It was one time said that separate estate being a trust fund the
Htatute of Limitations did not bar the remedy against it: Norton v.
Turvill, 2 P. Wms. 144; Hodgson v. Williamson, 15 Ch. D. 87, but now
by the Trustee Act, 1801, section 13, sub-section (b) the statute runs
against a married woman entitled, in possession for her separate use
whether with or without restraint on anticipation.
Disputes between husband and wife. — A married woman has the
same remedies for the protection and security of her own property
against her husband as if such property belonged to her as a feme nolr .
R. S. O. c. 132, H. 14, and may obtain an injunction restraining tliL'
husband from entering a house whicl-. is her separate property : Symonds
v. Hellett, 24 Ch. D. 340; Donnelly v. Donnelly, 9 O. R. 073; or mi>v
sue for trespass any person who enters the house against her will, thougl;
by the authority of the husband and unconnected with the husband's
desire to live with the wife : Weldon v. DeBath, 14 Q. P.. D. 339. But it
is no offence for a husband to take his wife's money while they are livinL;
together, though it would be if they wei-e i ving apart: Lemon v. Sum-
mers, 30 W. R. 351.
With these exceptions, a husband or wife cannot sue the other for a
tort: R. S. O. c. 132, s. 14.
Where a wife sues a husband in contract for moneys lent out of
separate estate, a distinct contract for repayment must be proved :
Hopkins v. Hopkins, 7 O. R. 224; Dufresne v. Dufresne, 10 O. K. 773;
Warner v. Murray, 10 S. C. R. 720; Ex parte Home. Ee Home, ")i
L. T. N. S. 301 ; lie Miller, 1 A. R. 390.
If the husband and wife living together have for a long time so dealt
with the income of the wife as to show they must havf^ agreed that it
should come to the hands of the husband to be used by him, of course for
JUDGMENT AND EXECUTION.
401
he corerture.
te estate, and
rUiring cover-
V. Tasker, lit
nue HH it may
;t to restraint
le first cover-
1 anticipation
be ineffectuui
'operty of tlit-
ilthough such
8 L. Q. 11. Oil.
' the purposes
woman siiail,
liabilities and
^ere living."
, bo was held
tate : Surman
I of debts pay-
r the payment
f Limitations.
arriecl woman
lan ; lie Lady
rust fund the
it: Norton v.
). 87, bat now
statute runs
separate use
omau has the
own property
IS a feme l>oh^ ;
strainiufi the
rty : Synlond^^
073 ; or mn v
erwill, thouc;li
bho husbantTs
). 339. But it
hey are living;
emon v. Suni-
he other for a
ys lent out of
be proved :
10 O. K. 773;
lie Home, oi
It
time so dealt
agreed that it
», of course for
their joint purposes, that would amount to evidence of a direction on her
part that it should be received by bim : Gaton v, Rideout, 1 M. <ft O. 599 ;
and would amount to a gift to the husband, and investments thereof
would belong; to him : Edward v. Gheyne, (No. 2), 13 App. Gas. 885. And
if the income remains unspent in the husband's hands it will neverthe-
less be his: Beresford v. Archbishop of Armagh, 18 Sim. 648; and
restraint on anticipation would make no difference : Rowley v. Unwin, 2
K. & J. 138. The onus is on the husband to prove a gift of the corpus
but as to the income she must establish clearly that he received it by way
of loan: Re Flamank. Wood v. Gock, 40 Gh. D. 4()1 ; Re Balke, 60 L. T.
663.
A wife is liable to her husband in respect of her separate estate for
moneys borrowed after marriage but not for those borrowed before:
Butler V. Butler, 16 Q. B. D. 374.
Judgment. — Any damages or costs recovered against a married
woman in any action or proceeding are payable out of her separate
property, and not otherwise : R. S. O. o. 132, s. 3, s-s. 2.
The form of judgment is now settled by the case of Scott v. Morley,
20 Ch. D. 120. See Forms.
The judgment is a personal judgment, but execution is limited to
separate property: Perks v. Mvlrea.W. N. (1884), 64 ; Holtby v. Hodgson,
24 Q. B. D. 103 ; Pelton v. Harrison, (1892), 1 Q. B. 118.
A married woman without separate estate, cannot be imprisoned for
non-payment of costs : Re Glara Walter, 7 T. L. R. 445, and, even if she
had separate estate, the judgment does not make her liable to penal con-
sequences : Holtby v. Hodgson, 24 Q. B. D. 105 ; Re McLeod v. Emigh,
12 P. R. 450; Aylesford v. Great Western Ry. Co.,8 T.L. R. 786; (1892),
2 Q. B. 626.
A judgment for costs in an action for tort will charge all separate
property which the married woman is possessed of at the date of the
judgment which she is not restrained from anticipating : Gox v. Bennett,
(1891), 1 Gh. 617.
A contract binds all separate property which she may acquire after
making it, as well as that possessed at the time : R. S. O. c. 132, s. 3, s-s. 4 ;
but it would seem that her liability in tort or for costs will be confined to
the separate property she is possessed of at the time of bringing the action
and the date of the judgment: see per Kay, L.J., Cox v. Bennet, (1891), 1
Gh. 625, but income which accrues due after the judgment, and which the
married woman is restrained from anticipating, cannot be reached: Re
Glanville. Ellis v. Johnson, 31 Gh. D. 532 ; Re Dixon. Dixon v. Smith, 35
Ch. D. 4.
By section 20 of R. S. O. c. 132, it is enacted that " no restriction
against anticipation contained in any settlement or agreement for a
settlement of a woman's own property to be made or entered into by her-
self, shall have any validity against debts contracted by her before
marriage, and no settlement shall have any greater force or validity
against creditors of such woman than a like settlement or agreement for
a settlement made or entered into by a man would have against his
creditors:" see Jay v. Robinson, 25 Q. B. D. 467 ; Smith v. Whitlock, 55
L. J. Q. B. 286.
Execution.— The executioik must be limited to the separate estate as
directed by the judgment: NichoUs v. Morgan, 16 L. R. Ir. 409.
Where property is held by trustees, the specific separate estate should
be charged by an order appointing a receiver or otherwise ; but where the
property is held by the married woman in her own name, there is no
D.C.A.— 26
"f
W'mm^
402
SECUIUTV FOR COSTS.
reason why it may not be reached in the ordinary way, namely, by warrant
of execution : Beemer v. Oliver, 10 A. R. <i()l.
An inquiry may be directed to ascertain of what the separate estate
consists at the time of the judgment, and appointing a person to receive
it until the debt and costs are paid ; lie Pearce and Waller, 21 Ch. D. 405.
The plaintiff may be appointed, without security and without salary,
to receive the income after payment of prior charges : McGarry v. White,
16 L. R. Ir. H22.
The defendant may bo ordered to pay by instalments : Johnstone v.
Browne, 18 L. U. Ir. 428 ; but not from income which she is restrained
from anticipating : Morgan v. Eyre, 20 L. R. Ir. 541.
The Judge might, it is submitted, make an order for the examination
of the married woman as to the particulars of her separate estate : Aylea-
ford V. G. W. Ry. Co., H T. L. R. 7«(5 ; (1892), 2 Q. U. 62(! ; and the trustees
of any settlement might be oidered to produce it: liursill y. Tanner,
ICQ. B. D. 1.
It seems doubtful whether real estate will bo sold during the life of
the wife under an execution against lier separate estate : Hulme v. Ten-
nant, 1 White A Tudor's L. (J. 53(i, 541, 542: but see Boomer v. Oliver,
10 A. K. mi.
Injunction. — A married woman cannot be restrained, before judg-
ment, from disposing of her separate estate : Robinson v. Pickering, i()
Ch. D. 6(51 ; Merchants Bank y. Bell, 29 Gr. 413.
Security for Costs. — A married woman cannot be compelled to give
security for 'josts, except in such cases as a man would be ordered to give
such: "see lU Isaac, yO Ch. D. 418: Threfall y. Wilson, 8 P. D. 18;
Severance y. C. 8. S. Assn., 48 L. T. N. S. 485; Pindar y. Robinson,
W. N. (1885), 147. Even though she have no separate estate and there be
nothing upon which, if she fails, the defendant can take on execution.
But if she sues by next friend, though unnecessarily, he may be ordered
to give security for costs if not a person of substance : Re Thompson, 38
Ch. D. 317.
( !
COVENANT BY CLERK (IH UAIFJFF.
408
mely, by warrant
SCHEDULE.
(Section 55.)
COVENANT UY CLEUK OR DAILIFF.
Know all men by these prcsentn, that we J. li., Clerk (or Bailiff as the
case may be) of the Division Court, in the Connty
(tic United Counties) of S. S., of , in
the said County of {E»quire), and P. M., ot ,
in the said County of (Gentleman) ,
do hereby jointly and severally for ourselves, and for each of our heirs,
executors and administrators, covenant and promise that J. li., Clerk (or
Bailiff) of the said Division Court shall duly pay over to such person or
persons entitled to the same, all such moneys as ho shall receive by
virtue of the said ofSce of Clerk (or Bailiff) and shall and will well and
faithfully do and perform the duties imposed upon him as such Clerk (or
Bailiff) by law, and shall not misconduct himself in the said office to the
damaj^e of any person being a party in any legal proceeding ; nevertheless
it is hereby declared that no greater sum shail be recovered under this
covenant against the several parties hereto than as follows, that is to say :
Against the said J. li. in the whole,
Against the said S. S
Against the said P. M
dollars,
dollars,
dollars.
In witness whereof, we have to these presents set our hands and seals,
this day of , in the year of Our Lord one
tliousand eight hundred and
Signed, sealed and delivered, |
in the presence of )
R. S. O. 1877, c. 47, Sched.
<6,
^,
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IMAGE EVALUATION
TEST TARGI-r (MT-3)
4
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1.0
1.1
If 1^ 1^
2.0
I
40
1.8
L25 iU 11.6
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Photographic
Sciences
Corporation
^^^'
23 WEST MAIN STREET
WEBSTER, N.Y. 14580
(716)872-4503
vV
! ' '■ >
INDEX.
Adandonment —
Of order of Court, what is, 120
not necessary to set aside, 120
If both parties interested in order, neither may abandon it, 175
Effect of abandoning Appeal (see Appeal), 231, 232
Abandonment op Excess —
Court has jurisdiction to permit, 59
When not abandoned will be prohibited only as to excess, 59
WhOie claim including interest exceeds 9200, excess must be
abandoned, 77
May be allowed before or at the trial, 78, 106, 346
Proper form of judgment pointed out, 104
Where excess abandoned and set-off claimed exceeding 9400 : 105
If claim exceeds jurisdiction, defendant entitled to judgment
unless excess abandoned, 104
Claim may be reduced by credits and abandonment of excess, 105
Judgment for balance to be full discharge, 106
Form of judgment, 106
In proceedings on attachment (see Absconding Debtor), 345, 346
Abandonment of Execution (see Execution) —
Effect of sale by debtor after, 297
Distinction between purchaser and subsequent execution creditor,
298
What is and is not abandonment, 297, 298
Effect of long delay of writ in sheriff's hands, 298
Bailiff having withdrawn may re-seize goods while writ in force,
298
Instructing delay until second execution, waives priority, 298.
So also notifying bailiff not to proceed, 298
Abscondino Debtor —
Claims against, increased jurisdiction to apply to, 74, 78
Substitutional service upon (see Substitutional Service), 133-136
Who is, 136, 335, 337
406
INDEX.
Absconding Dkbtor — Continued.
Attachment of Goods of —
Acts rendeiing persons liable to, 335, 337, 338
Procedure in cases of, 335
Statute respecting to be strictly construed, 336
To what cases applicable, 836
Not restricted to any particular Division Court, 339
Property liable to seizure {see Execution), 293, 337
What is attempt to remove property, 338
What acts deemed concealment to avoid service, 338
Application for —
Need not be in writing, 339
Affidavit for —
Who may make, 338
Bequisites of, 338, 339
Effect of defects in, 339
How entitled, 339
To be filed with clerk, 336, 339
Filing by justice a necessary condition, 342, 343
Effect of failure of justice to transmit, 339, 342
May bh) taken by judge or justice, 342
Form of, prescribed, 339, 340
Warrant —
Clerk to issue, 336
And to be under his hand and seal, 336, 339
May be issued by judge or justice, 342
Requisites of, 336, 339
Procedure where issued by judge or justice, 342
No fees allowed in siich cases, 342
Necessity for observance of statutory requirements, 339-313
When Attachment Superseded —
By ^.ttachment in High Court, 340
Proceedings by sheriff, 340, 341
Procedure by creditors in such cases, 341
Execution in High Court under Creditor's Relief Act, 341
Sheriff may obtain property from bailiff, 341
Penalty against bailiff for refusing to deliver, 341
How proceeds to be distributed by sheriff, 841
Bailiff's fees to be paid by sheriff, 341
Effect of these provisions, 341, 342
Effect of Attachment, 342
Goods in custody of law cannot be seized under other process, 342
Creditor obtains lien on goods, 342
Priority over execution creditors, 342
Execution in Division Court, no priority over, 342
INDEX,
407
Absconding Debtou — Continued.
Execution of Warrant
Bailiff or constable may execaL, 336, 340
Not to be executed out of County, 304
Effect of execution out of County, 204
Fees of bailiff to be first paid, 343, 844
Bailiff or constable to seize and make inventory, 343
As to seizure (see Execution), 293, 315, 336
Property liable to seizure, 293, 315, 337, 340 :
Effect of excessive seizure, 840
Duties of bailiff acting under, 344
Goods to be appraised, 343, 344
Oath of appraisers, 344
Fees of appraisers, (see Fees), 44 •
Duties of appraisers, 344
Memo to be indorsed by bailiff on inventory, 344
Form of memo, 344
Bailiff to return inventory and appraisement to clerk, 343, 344
lieturn of Warrant —
To be returned forthwith to the Court, 336, 340
To what Court return to be made, 340
Proceedings —
Where commenced by attachment, 344
to be continued in Court on which attachment issued, 844,
345
proceedings commenced before attachnient issued, 345
property attached may be sold under cecution on judgment
in the case, 345
proceeds of sale of perishable goods to be applied on judg-
ment, 345
Replevin not maintainable by debtor, 345
but may be by third party, 345
Action of, stayed on interpleader proceedings, 345
Where process not previously served, 350, 351
Costs where attachment issued without reasonable or pi'obable
cause, 851
What deemed reasonable and probable cause, 351
Liability of creditor for attachment improperly issued, 340
Liability when executed by unauthorized person, 340
Plaintiff not to divide course of action, 345, 34'5
May abandon excess over #100 : 345, 346
And recover amount not exceeding |100 : 345
Effect of judgment in such case, 345
Other attaching creditors may defend, 346
How claim proved, 346
Wlien trial to be had, 346
408
INDEX.
««■
Abbcomsinq Dektor — Continued.
Several Attachments —
Provisions of Absconding Debtor's ^.ct to apply, 346
How proceeds of goods to be distributed, 346, 347
When distribution to take place, 346
What creditors entitled to participate, 347
When goods insufficient to satisfy all claims, 347
How costs and expenses of clerks and bailiffs to be paid, 847
Custody of Goods —
When seized by bailiff, 347
When seized by constable, 348
Duty of bailiff in such cases, 348
Restoration of Goods —
Terms on which restoration may be made, 248
Bond to be given to secure claims, 348
What bond sufficient, 348, 349
Condition of, 348
Liability of obligors, 349
Effect of payment of debt and costs to obtain, 349
Third party whose goods are seized entitled to indemnity from
debtor, 349
Effect of payment by third party, 349
Defences to action on bond, 349
Judf/uient and Execution —
If defendant does not appear within one month, 350
When property may k oold thereunder, 350
Where debtor served personally execution to issue forthwith, 350
Judge cannot extend time, 850
Proceedings against debtor where process not previously served,
350, 351
Perishahle Goods —
What are included in, 351, 352
May be sold on plaintiff giving security, 351
How disposed of, 352
P^ffect of bailiff neglecting to sell, 353
Notice of sale, 353
Effect of informality in conduct of sale, 3")3
Bond to be given by creditor, 353
Where bond may be sued, 354
Condition in bond, 353
Proceeds of sale, how applied, 353, 354
Setting Aside Attachment —
For defects in affidavit for, 389
If improperly issued may be set aside, 852
Claims of Landlord for Rent —
Goods seized under attachment not subject to, 365
INDEX.
409
Absence of Judge —
Who to preside in case of, 19
Effect of where application required to be made within specified
time, 118
Adjournment of Court when Judge absent, 21
Accommodation —
Required for sittings of Courts, 7
Municipality to furnish, 7
Expense for rent, how paid, 7
Necessary accommodation defined, 7
Mandamus to compel municipality to furnish, 8
Account —
Of fines to be kept by clerk {see Fines), 38
Of suitor's moneys to be kept {see Suitor's Money), 38
Of fines to be furnished by clerk to County Crown Attorney, 38
Of monej^s received and paid out, to be furnished to Judge, 3!)
Action of, jurisdiction of Division Courts in, 73
Entry of for suit {see Particulars of Claim), 127
Acknowledgment —
What required to take action out of Statutes of Limitations {see
Statutes of Limitations), 182-187
Acquiescence —
In jurisdiction {see Jurisdiction), 58
Implication of agency by, 78
Action {see Causes of Action) —
Judgment may be enforced by, 4, 291
of High Court, enforceable by in Division Court, 5>
costs in such cases, 4, 291
over 20 years old not enforceable, 4
Oc foreign judgment, when maintainable, 4
Ou County Court judgment not maintainable in High Court, 5
Proceedings in, when Divisions of Court changed, 13
Against officers and sureties (see Sureties, 26-31
What is commencemsnt of, 36
Causes of, in which Division Courts have no jurisdiction, -53
Pending in High Court, Divisiou Court jurisdiction not ousted by,
65
Of trover for a deed, not suable in Division Court, 55
Where cause of arises, 109, 110
Authorities respecting, 110, 111
May be entered and tried in Court nearest defendant's residence,
114
May be sued in adjoining division by order of Judge, 115
410
INDEX.
Action — Continued. »
When brought in wrong division, defendant may waive right to
prohibition, 56
Of trespass to goods, within jurisdiction, 60
Of replevin {see Replevin), 79-86
On replevin bond (sec Replevin Bond), 86, 354
Cause of, not to be divided (see Splitting Demands), 102
Joinder of several, depending at same time, 104
Removal of by Certiorari (see Certiorari), 106
Court trying, to have full power, 1U9, 114
Where to be tried (see Territorial Jurisdiction), 109, 114, 115, 116
Against Foreign Corporations (see Corporation), 116
Where to be brought when money payable out of Ontario, 116
Wliere entered in wrong division, 120
By and against clerks and bailiffs, where suable, 123, 124
Against Judge or stipendiary magistrate, where suable, 125
May be tried by consent in any county, 125
Assignment of (see Assignment of Chosos in Action), 128
On lost note (see Promissory Note), 127, 128
On judgment of Foreign Court, effect of personal service in
Ontario, 132
Notice of (see Notice of Action), 132
Action for Recovery of Land —
Not maintainable in -Division Courts, 68
Wlien Jurisdiction Ousted, 68
When title is in question, 08
What claims must shew, 68
Must be such as would form defence to the action, 68
Though founded on fraud, or bad faith, may be sufficient, 68
May be incidently brought in question in action of tort, 68
Cases in which title held to be in question, 68, 69
Prohibition may be granted where question of title is not appar-
ent, 69
And will be granted if it appear that title must come in question,
69
Mere bona fide claim of right not sufficient, 69
Where ousted in adjudication as to married women's separate
estate, 69
When jurisdictio7i not ousted, 69
Title must be in question, 69
Cases in which title held not to be in question, 69
Procedure In, 69
Question in discretion of Judge, but decision not final, 69
Decision on conflicting claims not reviewable, except on strong
grounds, 69
When claim ignored, ground for should be stated, 69
INDEX.
411
service in
Action fob Recoveiiy of Land — Continued.
On question being raised the action stops, 70
Question to be considered pn application for prohibition, 70
Cogts, 70
Distinction between cases affecting costs and tliose affecting
jurisdiction, 70
Cases where title held in question so as to entitle plaintiff to, 70
Exceptions, 70
Cases in which Division Court jurisdiction sustained, though title
in question, 70
Replevin, 80
Question of title ousts jurisdiction in, 80
Act Respecting Pdblic Officers —
Provisions of, as lio sureties, 26
Judge to exercise powers conferred by, 26
Adding Parties —
Witness admitting liability may be added as defendant, 55
Judge may order addition of defendant, primary debtor or
garnishee, 142
When order may be made, 142, 143
Duty of Judge imperative, 143
If made before trial summons should be amended and re-served,
142
Bights of parties in such cases, 143
If made at trial service may be dispensed with, 142, 144
Executors or administrators may be added, 144
Effect of Statutes of Limitations, 144
Undisclosed partners maybe added at trial (see Partners), 143,
144, 145
Service on partner, 145
Address —
Of parties to suit, clerk to obtain, 388
Adjacent Divison —
When actions may be brought in division adjacent to defendant's
residence, 115
Meaning of, 115, 124
Adjoining County —
Judge may sue or be sued in, 125
Clerk or bailiff may be sued in, 124
Transcript of judgment against clerk or bailiff, how enforced, 124
Meaning of, 124
Adjournment of Court —
In absence of Judge, 21
«MP
412
INDEX.
.7SK-
Adjournment of Suit —
Cannot be made if uo jurisdiction, 55
Judge may order, 167
Costs on, 167, 168
Other terms, 169
Order need not be served, 169
In jury cases, 169
When order should be made, 169
Terms as to, 169
Consent to, 169
Effect of, 169
Party taking advantage of, cannot repudiate terms, 1<)9
In garnishee proceedings {tee Garnishment), 282
See Postponement of Trial
Administrators (see Executors and Administrators) —
May be added as defendants at trial, 144
Adverse Claims {tee Garnishment) —
Judge may inquire into and decide upon, 278
Adjudication on, in garishment proceedings, 279, 281
Advocate —
Who may appear as in Division Courts, 170
May appear as such, and as witness as well, 170.
Afudavit —
On Bonds —
Of execution and justification to accompany bond of clerks and
bailiffs, 31
Of justification by sureties on Appeal, 224
Of Disbursements —
To be furnished by successful party to clerk, 88
Effect of false affidavit of, 191
For writ of Replevin (see Replevin), 84
For order changing place of trial, 116, 119
Formal Requirements of, 119, 155, 208, 339
Description of clerk or commissioner taking, 119
Description of parties, 119
of deponent, 119
Signature of deponent, 119
may be in foreign characters, 119
effect of absence of, 119
o£ v'ommissioner necessary, 119
Date of, 119
Jurat may be looked at to explain, 119
Purporting to be sworn on date not arrived, void, 119
INDEX.
413
clerks and
Affidavit — Continued.
Will not be presumed to have been altered, 119
Effect of omissions in jurat, 119
For order transferring suit entered in wrong court, 122
For substitutional service, 133, 134
Of service (see Service) »
to be prepared by clerk, 139
to be annexed to or indorsed on summons, 139
requisites of, 151
may be received notwithstanding defects in, 151
To set aside judgment, requisites of 148, 149
May be received in evidence in certain cases (see Evidence), 207
Before whom to be sworn, 207
For stay of execution (see Execution), 215, 216
For attaching order (see Garnishment), 259
Of service of garnishee summons, 276
For judgment summons (fee Judgment Summons), 322
of service of, 322
form of, 322
For writ of attachment (see Absconding Debtor), 335, 338, 339
Affirmation—
May be received as evidence in certain cases (see Evidence), 207
Agent —
On Ascertainment of Amount —
Signature of, to memo ascertaining amount of claim, 77, 78
Authority of, need not be in writing, 78
usual mode of conferring, 78
may be implied, 78
Principal does not carry on business at residence of, 114
0/ Foreign Corporation, Firm, or Individual —
May bring reple"in for goods of company when entitled to posses-
sion, 81
Definition of, 13(>
May be served with process, 136
Office or place of business of, 136, 138
Who deemed to be agent of Railway Co., 137
Express Co., 137
Telegraph Co. , 137
other companies, 138
At Trial—
Any person may appear as, 164, 170
Authority of, 170
Judge may exclude, 170
Agent for Service (see Appeal)
In appealable cases parties to appoint on making application for
new trial, 227
414
INDEX.
AfiKST lou Seuvr'e — Continued,
Effect of failure to appoint, 227
Appointment of, on examination under Commission {^ee Com-
mission), 205
AdRKEMENT not to appeal (nee Appeal), 165, 166, 234 p
Alteuationh in Divisions —
How made {sec Division Courts), 10-17
Clerk of the Peace to keep record of, 10
Amendments — ,
Power of Judge to allow, 346, 394
Judge may be compelled by mandamus to permit, 5
Cannot be made to give jurisdiction, 59
Where verdict beyond jurisdiction, but claim not, 59
May be allowed where abandonment of excess sought, 59
Of order on judgment summons, power of Judge as to, 333, 331
. Principles of High Court as to, ipay be applied to Divisisu Courts,
394
Power of Judge as to, in Garnishment proceedings, 282
Animals —
Increase of, subject to replevin, 82, 83
Impounded, replevin of, 85
Appeal —
Does not necessarily prevent prohibition (see Prohibition), 58
When prohibition will be refused whilst pending, 58
Misinterpretation of law, subject of, 60
Notes of Evidence in Appealable Cases —
To be taken in writing, 164, 165
Unless parties agree not to appeal, 164
Effect of omission to take down evidence, 165
Duty of Judge and clerk as to, may be enforced by mandamus,
221,228
Agreement not to Appeal, 165
By whom to be signed, 166
Effect of, 166
Applicable to jury cases, 233, 234
Who May Appeal, 216
Any party to a cause, 216, 217
Parties to garnishee proceedings, 216, 217
Parties to interpleader proceedings, 217
Third parties, 217
Parties consenting to appeal, 216
Parties to Mutual InEurauce cases, 217
Sum in Dispute, 216, 218
Must exceed $100, exclusive of costs, 216, 218
Except in Mutual Insurance cases, 217
Addition of interest will not give right to, 218
I
INDEX.
415
Ari'EAL — CoiUidtted.
General Principles of, 218
Bight to, mvist be f^iveii by Statute, '218
Where right co iferred, only one exercisable, 218
Decision of inferior ciu h must be clearly wrong to bo subject to
reversal, 218
Where point uitendecl to be ruled upon must be raised, 21h, 21'.»
Questions of both low and fact subject, to, 218
Statutes Relating to, 216 *
Act relating to County C(/i."t, basis for, 21G, 218 '
Provision of that Act applicable, 218
When an Appeal Lien, 21',)
On questions of law and fact, 21!)
Only after application for new trial, ''^0
Not against reasonable exercise of discretion, l.'l',(
From refusal of new trial after noa-suit, 21')
In an interpleader issue, 219
Not against orders of committal, 21'J
Cases Not Subject of, 219
Mere formal defects in procedure, 220
Questions of practice, 220
Reference to arbitration, 220
Judgment obtained by fraud, 220
Unnecessary orders, 220
Cases subject of, though point not raised in court below, 219
costs in such cases, 219
Where new trial ordered on ground of misdirection, 220
Time For, 220, 222, 223
No formal order necessary before appealing, 220
What is real date of delivery of judgment, 220
Cannot be extended by post-dating judgment, 220
Practice, 220
Parties confined to case shewn by papers certified, 220
Effect of Inaccuracy in papers, 220
death of respondent, 220
death of judge, 220
Consent to Appeal, 221
Effect of consent, 221
Need not be in writing, 221
Not applicable to interpleader, 221
1,1 Interpleader Proceedings, 217, 221
Where given in respect of value of goods claimed, 221
How value ascertained, 222
Where given in respect of proceeds of goods, 222
What deemed proceeds, 222
On question of damages, 222
!fW"ipP
WWm
416
INDEX.
liil'i
Appeal — Continued.
Crosi Appeal, 222 -
«Vhen respondent may ask for more than judgment gives, 2*22
Effect of, 222
Stay of Proceedings, 222
Proceedings to be stayed for ten days, 222
Effect of, on time limited for giving security, 222
Application and order for, 223
Time cannot be extended by post-dating judgment, 223
Pending appeal, 227
Security, 222, 224
Time limited for giving, 223
What requisite, 222, 224
Bond for, amount and condition of, 224
to be approved and filed, 218, 226
sureties in, 224, 225
need not contain recitals, 224
Bond for, effect of, 224
where filed after time limited, 225
if irregular may be withdrawn and new bond sub-
stituted, 224
solicitor not proper surety, 224
sureties must justify, 224, 225
Payment into court, 228, 225
to clerk is, 227
formalities of, will not be looked to, 224
effect of, 223
order for payment out not necessary, 227
Waiver of security, 224
Effect of failure to give, 223, 225, 227
Approval of Security, 219, 22i,22Q .' ^
Notice of, to be given, 224
Mandamus will lie to compel, 224
Judges authority ends on, 224
Respondent entitled to bond free from objections, 226
To be indorsed on bond, 226
Proceedings subsequent to, 226, 227
Judge cannot delegate his authority as to, 228
Justification of Sureties, 225
Who may be sureties, 225
Meaning of " housekeeper " and " freeholder," 30, 225
Bequirements of affidavit of, 218
What are and what are not valid objections to sureties, 226
Certifying Proceedings, 226, 227, 228
Duty of clerk as to, 228
Clerk bound to certify if terms of order complied with, 225, 228
And he will be compelled by mandamus to do so, 224
INDEX.
417
Appfal — Continued.
Effect of, 227
Duplicate to be furnished by clerk to respondent, 228
Certificate cannot be altered, 228
Judge's decision to be given before certification, 228
Will be received in absence of notes of evidence, 228
But when notes in existence, they must be certified, 221
Certificate not to be made ex /jarie, 228
To be filed with registrar of Court of Appeal, 229
A ijent for Service, 227
To be appointed by parties, 227 .
Effect of failure to appoint, 227
Setting Down for Argument, 229 *
Time limited for, 229
Notice of to be given to respondent, 227, 229
Requisites of notice, 229, 230
How time computed, 229, 230
Effect of failure to set down, 229, 231
Or of mistake in copying proceedings or setting down appeal, 229
(juashinij Appeal, 230
When application should be made, 227, 280
Costs of, 230
Effect of party appealing proceeding on judgment pending appeal,
230
Benefit of an order cannot be accepted and burdensome provisions
in it appealed from, 330
Judgment in, 230
What judgment may be given in Appellate Court, 230
When non-suit may be ordered, 231
Judge in appeal mu^t hear the case himself, 231
When respondent appears and appellant does not, 231
Dangerous illness in family will excuse attendance of counsel, 231
Proceedings after judgment, 231
Costs, 231
Taxable, between party not to exceed $15 : 231
As between solicitor and client, to be on County Court scale, 231
Cases in which costs will be allowed and disallowed, 231, 232
I'jffect of omission to provide for, 231
To form part of judgment of the court below, 231, 232
Fees payable under Jud. Act not applicable, 232
Api'KAit.vNCE IN Court —
Proceedings in default of, by defendant (see Default), 166
Application for Puohibition — (see Prohibition) —
When to be made, 56, 57
Effect of delay in, 57
D.C.A.— 27
418
INDEX.
,»!!«.
Application for Prohibition — Continued.
By whom to be made, 62
To whom to be made, 62
Material in support of, 62
Appointment —
Of deputy Judge {see Deputy Judge), 19-21
Of clerks and bailiffs, 22
Of deputy clerks and bailiffs (see Clerks and Bailiffs), 24-26
Of receivers (see Receivers), 94, 95
Of appraisers (see Absconding Debtors), 343, 344
Appraisers —
Fees to be paid to, 44
To be called to aid of bailiff on seizure under attachment, 343,
344
Duties of, 314
Appraisement —
Of goods seized under warrant of attachment, 343, 344
Memo, to be indorsed on inventory, 343, 344
Form of memo. , 344
Appropriation of Payments
In order to take claim out of Statutes of Limitations' (A^f Limita-
tions, Statutes of), 185
Not specially appropriated, applicable in reduction of interest, 211
Approval of Bond —
Of clerks and bailiffs, (ste Sureties) 2f'), 31
In appeal, (see Appeal), 218, 226
AlililTRATION —
Judge entitled to fees as arbitrator, 19
Effect of rule of building society to refer to, 54
Arbitrator may compel attendance of witnesses, 188
No appeal in cases referred to, 220
Submission —
Order for, may be made by judge on consent of both parties, 2s;!
Consent need not be in writing, 283
More than one arbitrator may be appointed by order of Judge, 284
Parties may agree to refer, 283
Agreement mnst be in writing, 283
Only one arbitrator may be appointed under agreement to refer, 2~^4
How consent signed by company, 283
Authority of counsel or solicitor to submit, 283
Who may be arbitrators, 283
Trustees and executors may submit to, 283
All nominal parties to action must consent, 283
Effect of third party refusing to proceed, 283
Arbitrator must be named in order and consent, 284
INDEX.
419
iiment, 343,
Arbitration — Continued.
Proceedings on —
How to be conducted, 284
Private communications should not be received, 284
How witnesses examined, 284
Effect of peremptory appointment, 284
Rules of evidence not applicable, 284
Arbitrator may consult experts, 286
Waiver of irregularities in, 284
Aioard —
Must be concurred in by all, 284
When invalid, 286
Effect of, 285, 286
To be made within time limited by order, 285
Power of arbitrator to enlarge time for making, 285
Court may not enlarge, without consent, 286
Arbitrator cannot be compelled to make, 286
Formalities and requisites of, 286
How amount found due may be ordered to be paii' '^S(i
Power of arbitrator not to be delegated, 286
Nor future power reserved, 286
Ministerial acts may be reserved to be done, 286
Must be verified by affidavit of execution, 286
Subject to an application for new trial, 286
Revocation of Reference —
Cannot be revoked without consent of judge, 285
Cases in which leave should be granted, 285
Effect of death of party to, 285
Not revocable after awarH except by consent, 285
Costs of —
When not provided for in reference, 284
When power given as to, 284
When costs to abide event, 284
Effect of no direction being given, 284
Payment of, to be taxed by clerk, may be ordered, 286
Effect of direction to pay without fixing amount, 286
Fees of Arbitrator —
Rights of arbitrator as to, 286
What, allowed, 286
Travelling expenses not allowed in addition, 286
Paid for invalid award, not recoverable back, 286
When action for may be brought, 286
Setting aside Award —
Judge may set aside, 287
Grounds for, 287
Time for moving against, 287
'i'>>i
"?P!ff<<pnpp
■!■
420
INDEX.
AitniTKATioN — Continued.
Fjvidence —
Arbitrator maj' administer oath or affirmation, 287
Sending an adulterated sample to be used as, a misdemeanor, 287
Akukst —
Judge not subject to, ou mesne or flnal process, 19
Duty of constable or bailiff on making, 43, 44
Persons assisting at, protected equally with constable, 43
Replevin of goods taken under warrant of (see Replevin), 85
"When witness protected from, 190
Formalities required on, 331, 332
Of judgment debtor on warrant of commitment, 331, 332
duties of bailiff in respect of, 331
Ascertainment of Amount —
Sufficiency of signature [see Jurisdiction), 75, 77, 78
Tables of cases on, 76, 77
Assignee of debt may maintain action, 78
Assault —
On bailiff or assistant in discharge of duty, 372
Proceedings and penalty thereon, 372
Assent —
Of parties cannot cure total want of jurisdiction, 56
Assignee —
Of debt may maintain action when amount ascertained, 78
Of replevin bond may sue in his own name, 86
Assignee in Insolvency —
Goods in hands of, not repleviable, 82
Assignment of Judgment —
When co-surety entitled to {see Joint-Debtors), 141
Assignment of Replevin Bond (see Replevin Bond), 86
Assignments of Choses in Action —
Action to be brought in name of assignee, 128
Assignee must take full beneficial interest, 128
Effect of mortgage of debts, 128
Assignments of part of debt, 128
Splitting demands by, 128
Debtor cannot disregard equitable assignment of part, 128
Effect of debtor's consent, as by accepting order, 128
Costs in such cases, 128
Parties to action on partial assignment, 128
When accepted order equivalent to payment, 128
Assignment of book debts prevents garnishment by assignee, 246
Rights of assignee as against judgment creditors, 251, 252
INDEX.
421
emeanor, 287
Attachment^
Will not lie against Judge for disobeying certiorari, Hnleaa acting
contumaciously, 19
Division Courts may enforce orders by, 91
For breach of injunction {see Injunction), 93
Of Goods of Absconding Debtor (see Absconding Debtor), 33^855
When superseded, 340, 341
Effect of execution of, by unauthorized person, 340
When Judge or justice of the peace may issue, 342
Proceedings on, 343-354
Goods seized under, may be replevied by third person (see
Replevin), 82
Attachment of Debts (see Gai'nishmeut), 244-283
Debts attachable, 246
Claims not attachable, 248
Rights of other parties, 251
Wages or Salary, 253-258
Attaching order after judgment, 259-266
Where primary creditor's claim not a judgment, 267
General provisions, 270
Attorney (nee Solicitor)
Judge cannot act as, 19
May appear at trial, 170
Authority to bind clienu (see Solicitor), 170
May appear as such, and as witness in cause, 170
Authouity —
When cannot be delegated, 11, 18
Power of legislature to delegate, 24
Of judge ends on refusal of new trial and approval of appeal
bond, 224
Construction of Statute as to, 241
Award—
Requisites and formalities of (see Arbitration-Award), 285, 286
-• H(*
B.
Bail —
Who competent as, 225
Bailiff —
Every Division Court to have, 21
Who competent for, 21, 22
Lieutenant-Governor to appoint, 22
ymmimmmmm^ —
^— ^
422
INDEX.
I
Baimff — Continued.
Leave of absence to, 24
Appointment of deputy bailiff, 24, 25
Removal of deputy, 24
Responsibility of sureties for deputy's acts, 24, 23
Security —
Must be given by, 26
Nature of security and liability thereon (see Security and Sureties),
26-31
Duties not to be performed until given, 31, 82
Covenant to ba available to suitors. 32
Bond may be sued in any court of ompetent jurisdiction, 32
Certified copy of covenant to be evidence, 32
Entries in books to be evidence against sureties, 32
What word "bailiff" to include, 32
Death, or withdrawal, or insolvency of surety, 33
Procedure where surety discontinues, 33, 34
Liability of former sureties, 33
Dismissal and Suspension of—
When Judges may suspend or remove, 23
May be suspended by Judge for cause, 23
Service of process in such cases, 138
Lieutenant-Governor may dismiss, 23
Duties of —
On separation of county, 14
To be performed as regulated by Act and rules, 21
Refusal to perform, a misdemeanor, 22
Cannot be performed until bond filed >' ;
To serve and execute process, 41
To return same to clerk when served, -i- 1
Not required to travel beyond limits oi Q iou, 41
Not allowed mileage beyond coanty, 41, 42
Not to canvas in political elections, 42
To attend clerk's o£Bce at proper intervals, 42
To make out list of process for service, 42
May call in assistance in execution of , 42
Not essential that services be made by, 42
Responsibility for service of process, 42
Forfeiture of fees for failure to return, 42, 47
Process of execution to be executed by, 42
To see that executions promptly executed and returned, 42
To act as constable during court, 43
Duty and power as constable, 43, 44
See also Warrant of Commitment
Duty of, on making arrest, 43, 44
Not to collect on commission, 47
INDEX.
423
Bailiff — Continued,
Execution of power of sale under mortgage, or landlord's warrant
not prohibited, 48
To produce books, etc., for inspection, 51
To report to inspector when required, 51
To inform inspector of appointment, 52
and of change in sureties, 52
To produce to inspector certificate of filing covenant, 52
To keep cash book, 53
To make annual return to inspector of fees, etc., received, 53
In serving summonses (see Service), 130-132
In actions of replevin (see Replevin), 79-88
Summons need not be served by, 132
Papers for service from a distance may be sent direct to, 138
Not bound to serve or execute process out of division without order
of judge or clerk, 138
Duty and liability in respect of such process, 139
Order for service to be endorsed on writ when served by other than
bailiff, 139
Not bound to pay over moneys without demand, 139
May take confession of debt, 288
On execution of warrant of commitment (see Judgment Summons),
331-333
And liabilities in respect of executions (see Execution), 293 et seq.
Property liable to seizure by (see Execution and Attachment), 294-
296, 314-316
On seizure of securities, cheques, notes, etc., for benefit of plaintiff
(see Execution), 316-319
In what order executions to be enforced, 293, 294
Return of nulla bona by. 310
In attachment proceedings (see Absconding Debtor), 343-354
to execute warrant, 343, 344
to make inventory of goods, 343, 344
to have goods appraised, 343, 344
to return warrant, inventory and appraisement to clerk, 343,
344
to retain custody of goods, 347, 348
to sell perishable goods, 352, 353
to take security in such cases, 353
to pay over proceeds of sale to clerk, 353, 354
And liabilities in interpleader proceedings (see Interpleader), 356-
364
As to claims of landlord for rent (see Landlord), 365-369
Not to purchase goods sold under execution, 320
Execution not to be renewed at instance of, 309
On payment or tender by debtor of amount of execution, 304, 305
Effect of seizure by, when sale after removal from office, 296
I
I
""fmmfm
jg^nm
424
INDEX.
1
'
5
i
Bailiff — Continued.
Suite By and Against —
May be brought in adjoining division, 12^
May be sued in adjoining county, 124
Procedure on transcript of judgment against, l'J4
Enforcing execution against, 124, 375, 37fi
Action for neglect in returning execution, 37ri
Liability of —
For default in paying over money, 27
what moneys within covenant, 27
For non-performance of dutj 28
For misconduct, 29
Rights of sureties against, 30
Actions against, 29, 30
Prohibition will not lie for excessive seizure, CO .
Defence of denial in action of replevin, 84
For not executing writ of replevin, 84
For wrongfully refusing to assign replevin bond, 86
For taking insufficient bond in replevin, 87
In respect of execution of foreign process, 139
Cannot be called to account by judge of foreign court, 30(5
For excessive seizure, 340
For irregularity in notice of sale, 318, 319
In respect of parishable goods seized, 353
For sale of goods below value, 319
Misconduct of —
Defined, 373
Acting under colour or pretence of process, 373
Extortion, 373, 374
Delay in payment of money, 373, 374
Penalty therefor, 373, 374, 375
Negligence of —
What deemed to be, 374, 375
Wilfully making false returns, 375, 370
Where proceedings may be taken, 375
Penalty for, 375
How penalty enforced, 375, 376
Action against bailiff and sureties for neglect in returning execu-
tion, 375
When execution may issue, 376
Liability of sureties if bailiff removed from county, 376
Form of Covenant by, 403
Fees (see Fees)
To be paid by, 44
To be paid to clerk before execution issues, 46
Lien for, when suit settled or defendant makes assignment, 46, 47
INDEX.
425
BMLwr— Continued.
To be forfeited by neglect to return execution, 47
On intervention by sberiff, to be taxed by clerk and paid by sheriff,
302, 303
Assault on —
While in execution of duly (see Resisting Officers), 37'2
Protection of (sec Officers of Court), 378-381
B.VLANCE OF Unsettled Account —
(See Unsettled Account), 102, 105
Junk Notes — '
Liable to seizure under execution, 314
Barristek —
May be appointed to act as deputy judge, 19
Clerk not to practice as, 22
Judge may refuse to allow appearance by, in certain cases, 170
Authority of, to bind client, 170
Bkes —
Replevin will lie for (see Replevin), 83
Bequest—
Validity of, not to be tried in Division Courts, 54, 71
BiiiiiS OF Exchange and Promissory Notes—
Where action may be brought on, when given for insurance pre-
miums, 115
May be seized under execution (see Execution), 314-317
(See Promissory Note)
Bills of Sale —
Having effect of unjust preference, replevin of goods under {see
Replevin), 85
Boaud and Lodging —
When wages of debtor exempt in action for, 253, 254
No exemption when debtor unmarried and having no family to
depend on him, 254
Meaning of term " board and lodging," 254
Board of County Judges —
Existing board and their authority to continue, 38!>
Effect of revision of statutes on rules then in force, b'JO
Appointment of, 390
Constitution of, 390
Definition of " retired county judge," 391
Authority of, 390, 391
Rules respecting clerks and bailiffs, 390, 3'J I
Amendment of rules, 390, 391
Scope of board's power, 391
'
426
INDEX.
d'i
Board op County Judges — Continued.
Authority of legislature to delegate power to, 391
Procedure by, 392
of High Courton transmissionof rules for approval, 392
Force and effect of rules when approved, 392
Authority of Legislature as to, 393
No provision as to publication, 39i
Expenses of board provided for, 3i)3
Bonds —
lijf Clerks and Bailiffs —
Nature of, and liability thereon hce Sureties), 2*5-31
Scope of covenant in, 27
Actions upon, 27-30
When sureties die, 30
To be approved of by judge, 26, 31
To be verified by affidavits of execution and justification, 81
To be filed with Clerk of the Peace, 31
Effect of omission by clerk and bailiff to execute, 32
See Security and Sureties, 32-35
In case of death, withdrawal or insolvency of surety, 33, 31
Provision of Act Respecting Public Officers applicable to, 34, 35
Information respecting, to be given to inspector, 52
In Replevin {see Replevin Bond), 85-87
In Appeal (see Appeal), 224
Where suable when given in course of proceedings in Division
Courts, 354
Effect of bringing actions thereon in High Court, 354
To be delivered up to party entitled thereto to be enforced or can-
celled, 354
In Attachment —
To be given in order to obtain release of goods, 348, 349
To given by creditor on sale of perishable goods, 353
Books of Account — ^
Production of [see Witness), 188
on examination of defendant ou motion for judg-
ment, 150, IGO
Receivable as evidence in certain cases [see Evidence), 207
Production of, power of High Court as to not applicable, 893
Books op Ofpicers of Court— -
Entries in, to be evidence against sureties, 32
Procedure book, 37
Entries in, and certified copies to be evidence, 37
To be open to the public and accessible to Judge and inspector, 38
Disposal of, on death or removal of clerk, 40
INDEX.
427
1 Division
Books op Ofi»"KBS of Covrt— Continued.
Penalty fo.- wrongfully holding, 40
Inspectioi, uf (see Inspector), 50
Inspector to see that proper books are kept, 50
Disposal of, when clerk changed, 40
Bun-DING SOCIETV —
Rule of referring disputes to arbitration, effect of, 51
Where action for calls to be brought, 115
Whole amount in arrear to be included in one call, 115
BUEACH OF THE PeACE —
When bailiff may arrest for, 43
Definition of , 43
Breach of Promise of Marriage —
Not maintainable in Division Courts, 54, 72
BuKACH of Trust—
Offence of, what is, 327
0,,
Calls —
Actions for, where brought (see Building Societies), 5:^
Carrying on Business —
Definition of, 113
Application of term, 113
To firm with branch ofiBce, 113
surgeons and apothecaries, 113
builders and contractors, 113
railway companies, 113
other corporations, 113
Appointment of general agent, effect of, 114
Appointment of agent with limited authority, effect of, 114
Cash Book —
Clerks and bailiffs to keep, 53
Cattle —
Increase of, may be replevied (see Replevin), 82, 83
Impounded, replevin of, 85
Cause of Action —
When barred by judgment aoaiust joint debtor, 3, 4
In which Division Court jurisdiction prohibited, 53
Combining (see Combining Claims), 74, 78
i
1
i
^ff^mm^
428
INDEX.
Cause of Actios— Continued.
l)ividinf» {nea Splittinji Domands), 102
What included in, 102, 104, lOK
Removal of, by certiorari (stw (,'ortiorari), lOd
WliL-re to be entered and tried {nee Territorial Jurisdiction), lOtt
Definition of, 102. 104, 101)
Wiiore it arises, 110, 111
Wlio are parties to, 217
What are subject of garnishment (xce Garnishment), 244
Strictly for damages, what are, 24")
Okhtificate —
Of tiling officer's bond, 52
CEiiTiKiEn Copies —
When receivable in evidence (sec Evidence), H2
Certiorari —
Disobedience of. Judge not liable for unless contumacious, 10, Ids
Not issuable in action against a J. P. after notice of objection b>
him, 73, 107
Not applicable to replevin, 84, 107
Nor to interpleader, 107
When action removable by, lOfl
Application for, how made, lOfi
time for makii.g, 107
Not applicable where Division Court without jurisdiction, 107
Nor to determine question of jurisdiction, 107
Will not lie after verdict, 107
Setting aside for irregularity of proceedings on, 107
Cases in which writ will be granted, 107, 108
What must be shewn on, 107
Effect of omission to shew all material facts, 107
Waiver of right to, 107
Plaintiff cannot apply for, 108
Order for, 108
may be ex parte, but not usually so, 108
where court refused to make terms in, as to costs, 108
Affidavit for, 108
How entitled, 108
Application must be made by party himself, 108
Must be made in chambers, 108
When refused, court will not usually interfere, 107
When in dismissing plaintiff was ordered to submit to examina-
tion, 108
Statnfo taking away not applicable when total want of jr.risiic-
tion, 108
INDEX.
42!)
{'.F.irrioitAni — Ctmtinui'd.
Rat urn to, lOH
What required on, 108
I'loctrdi 111)8 after lleinoral —
What court will direct on, 108
Where papers to bo tiled, 108
When venue to bo laid, 108
Wiiore regularly iasuod, court will not interfere with
No mode of compelling plaintiff to proceed, 108
Plahitiff cannot declare for different cauHo of actiKi,
Judge in Division Court no right to interfere, lOH
* Coats of removal 108
U)H
10^
examuia-
(illALLENClINO JunORS —
Right of (see Jury), 237
(';IANGE —
In time and place of holding courts, 5, 6
Proceedings on alterations in limits of divisions, IH
('uANoiNa Place of Trlvl —
To what claims applicable, 118
Meaning of " debt or money payable," 118
General jurisdiction not affected by, 118
Right to entertain action to continue until close of case, 118
Application for, IIG
When to be made, 116, 118, 130
Judge cannot enlarge time, 130
By whom to be made, 116, 118
Proceedings on, 116-119
Affidavit, by whom made, 117, 119 *
What are satisfactory reasons, 119 .
Notice to plaintiff, 119, 120
Costs of, 120
Effect of death of party, 120
Proceedings in absence of Judge, 118
Order for —
To direct at what sittings cause to be tried, 117
To be attached to summons, 117
Transmission by clerk, 117, 120
Effect of abandoment of, 120
Service of, 117, 120
Proceedings after transfer, 117, 120
clerk to enter minute of, 117, 120
to be carried on as if originally entered in that court,
117, 120
payment of clerks fees, 129
time for entering dispute note, 120
mi
430
INDEX.
Changing Place of Thiajj— Continued.
When Action Entered in Wrong Court—
Proceedings to be transferred {see Territorial Jurisdiction), 120
Notice respecting, to be indorsed on summcns, 129
Cheques —
When liable to seizure under execution {see Execution), 314
Chief Place of Business —
Of corporation, firm or individual {see Corporation), 136, 137
Choses in Action —
Assignments of {see Assignment of Choses in Action), 128 <
City —
Defined for purposes of Act, 2
To be at least one Division Court in each, 2
Number of sittings requisite in, 6
Where two courts established in, offices may be kept and courts
held in same division, 6
Claim — •
Exceeding jurisdiction cannot be amended to give jurisdiction, 59
But excess may be abandoned {see Abandonment of Excess), 5!),
78, 106
Jurisdiction of Division Court on, 73-75
Combining several {see Combining Claims), 74, 78
Against absconding debtor {see Absconding Debtor), 74, 78
Where to be entered and tried {see Territorial Jurisdiction), 109,
114, 115, 116
Where entered in wrong division, proceedings thereon, 120
Against clerks and bailiff where suable, 123, 124
Entry of, for service, 127
What must be shewn by {see Particulars of Demands), 127, 147
148, 151
Notice disputing, 145
Strictly for damages, what is, 245
What subject of attachment {see Garnishment), 246-248
Proof of, in actions for less than $15 : 167
over »15 : 167
in tort or trespass, 167
discretion of judge as to, 167
What not subject of attachment, 248-256
Claims of Landlouds and Others {see Landlord), 355, 365
Clerk of Division Court —
Seal usually adopted by, 3
How seal may be obtained by, 3
Office of, in cities, 6
;-'
INDEX.
431
and courts
Olerk of Division Court- Continued.
Every Division Court to have, 21
Who may be, 21, 22
Tiieutenant-Governor to appoint, 22
How appointed prior to 5th March, 1880 : 22
County Crown Attorney to act as, when office vacant, 40
Penalty for witliholding records of office, 40
Leave of Absence, 24
May be granted to, 24
Appointment of deputy in such case, 24
Besponsibility for acts of deputy, 24
Appointment of deputy when prevented from acting by ilhiess,
etc., 25
Security —
Must be given by, 26
Nature of, and liability thereon (see Sureties), 26-31
When to be filed, 31, 32
Books and papers of office not to be delivered until security filed, 40
To be available to suitors, 32
Where action on may be brought, 32
Copy of covenant to be received in evidence, 32
Entries in books to be evidence against sureties, 32
What word " clerk " to include, 32
On death, withdrawal, or insolvency of surety, 33
Procedure when surety discontinues, 33, 34
Provisions of Act respecting Public Officers applicable, 34, 35
Liability of former sureties, 35
Form of covenant, 403
Suspension and liemoval of —
When Judge may suspend or remove, 23
Lieutenant-Governor may dismiss, 23
Incompetency, meaning of, 23
May be suspended by judge for cause, 23
Notice to provincial secretary in such case, 23
Disposal of books, etc., when clerk changed, 40
Actions By and Against —
May be brought in adjoining division, 123
Before appointment, to be continued in same court, 123, 124
May be sued in adjoining county, 124
Enforcing execution against, 124
Procedure on transcript of judgment against, 124
When mandumus is issuable against {see Mandamus), 64
Fees —
To be paid by (see Fees), 44
Table of, to be hung up in office, 44
To be paid in advance, 45
"WWW
482
INDEX.
ChVAiK OF Division Court — Continued.
Bailiffs', to be paid before execution issues, 46
Disposition of, and of emoluments earned, 48, 49
Proceedings to enforce payment of, {see Fees), 45, 46
Not to collect, on commission, 47
On order chan<<ing place of trial, 120
On transfer of proceedings entered in wrong court, 122, 123
Prepayment of, may be insisted upon, 126
Not to be charged for copies of claim attached to summons, 127
Duties of —
On separation of county or transfer of proceedings, 14
In absence of Judge, to adjourn court, 21
To be performed as required by Act and rules, 21
Refusal to perforin, a misdemeanor, 22
Not to practice as a barrister or solicitor, 22 ,
May act as conveyancer or notary, 22
Non-performance of, liability for, 28
Covenant to be filed before entering on, 31, 32
To issue all summonses, etc., 36
Where want of jurisdiction clear, summons not to be issued, 36
To see that process not used for improper purpose, 86
Performance of, ^juforceable by mandamus, 37
To keep record of all summonses, process, etc., and returns, 87
To sign every page of proceedure book, 37
To issue warrants and writs of execution (see Execution), 38
To tax costs (see Costs), 38
To keep account of all fines (see Fines), 38
To furnish Crown Attorney with account of fines verified by affi-
davit, 39
To furnish Judge with verified account of moneys receivjQd and paid
out, 39
To make annually list of suitors money, 39
To post same in court and office, 39
To make annual return to Provincial Treasurer of emoluments
received, 49
To pay over excess of emoluments to Provincial Treasurer, 49
To produce books and documents for inspection, 51
To report to inspector when recjuired, 61
To inform inspector of appointmpnt, 52
and of change of sureties, 52
To produce to inspector certificate of filing covenant, 52
To make annual return of business to Lieutenant-Governor, 53
To keep cash book, 53
To make annual return to inspector of all fees, etc., received, 53
On order changing place of trial, 120
to transmit proceedings, 117, 120
effect of refusal to perform, 120
INDEX.
433
2, 123
mons, 127
issued, 36
tarns, 37
m), 38
jified by affi-
KQd and paid
emolnments
urer, 49
cruor, 53
iceived, 5H
Clerks op Division Courts — Continued.
On order on transfer when action entered in wrong court, 121, 122
To forward summouses for service in other divisions, 126
Of clerk receiving process for service, 126
Prepayment of fees in such cases, 126
Not bound to prepare claim, 128
To annex particulars to summons and furnish copies for service,
128
Effect of neglect to do this, 129
May send process for service or execution at a distance direct to
bailiff, 138
To prepare affidavits of service, 139
Notices by, 162
requisites of, 162
to shew place and time of sitting, 162
To make annual return of jury fund to county treasurer, 242, 243
To give notice to parties in garnishee proceedings when jurisdic-
tion disputed, 256
To pay juror's fees, 243
Notices required to be sent by, in garnishee proceedings, 271
To keep a debt attachment book, 282
Entries required to be made therein, 282, 283
May take confessions of debt, 288
To give notice of return of nulla bona to execution on transcript,
307
Not to purchase goods sold under execution, 320
To make annual return of commitments, 335
To give notice of receipt of money, 387
Form of notice, 388
To pay unclaimed money to County Crown Attorney, 389.
To obtain address of parties to suit, 388
Misconduct —
Liabilities of sureties for, 29
Punishment for wrongfully holding moneys, books or papers, 40
Acting under colour or pretence of process, 373
Extortion, 373. 374
Oppression, 373
Protection of—
(See Officers of Court), 378-381
Clerk of Municipality —
To indicate in voters' list persons eligible as jurors, 235
To furnish Division Court clerk with copy of voters' list, 236
Proceedings against, for refusal to furnish such list, ^38
Penalty therefore, 239
D.C.A. — 28
^iM
'n
IflW
■pv
ii :i i
434
INDEX.
GijEbk or THE Peace —
Appointment of, 16
May compel municipality to furnish him with accommodation, 8
Duties of, in respect of establishment and alteration in divisions
of courts {see Courts), 11, 15, 16, 17
Covenant of clerk and bailiff to be filed with, 31
Fee thereon, 31
To give certificate of filing, 81
Copy bond certified by, to be received in evidence, 31
Combining Causes of Action —
When claims for distinct causes against same defendant may be
combined, 74, 78
Examples of such claims, 78
Finding on claims so joined to be separate, 75
Commencement of Action —
What is, 36
Commission to Take Evidence —
Power of court to issue, 195, 199
Not usually granted for examination of applicant or his employee,
199
Application for —
To be on notice of motion, 196, 204
What notice to state, 204
Not to be made for delay, 195
When to be made, 195
What should be shewn on, 190
Where witness travelling, 197
Opposite party may name another commissioner, 204
Procedure in such cases, 204
Costs in such cases, 206
Grounds for granting, 196
Fear of criminal proceedings no ground for, 199
Experts not to be examined on, 196
Granting discretionary, 196
Order For—
Should not be made ex parte, 198
Will be made to suit circumstances, 196
Tim6, place and manner of examination to be fixed by, 196
How to be framed, 196, 204
Cases in which it may and may not be granted, 196, 199
' May !|ometimes order evidence to be taken viva voce, 196
Oath of commissioner may be dispensed with by, 198
To be read as incorporating Consolidated Bules, 206
Consolidated Bules applicable to, 204-206
INDEX.
435
Commission to take Evidence — Contimied.
Interrogatories —
How to be framed, 197
Part of an interrogatory cannot be abandoned, 197
In chief to be delivered to opposite party, 205
Cross interrogatories, 205
Effect of default in delivery of, 205
Notice of Execution —
Opposite party may require, 205
To appoint agent for service in such case, 205
Requisites of service, 205
If not required, examination may be ex parte, 205
So also if agent's name fictitious or if he fails to attend, 205
What notice to contain, 205
Production of Books, etc. —
Notice to produce to be given, 197
Extracts may be taken from, 205
Certified copies may be annexed to commission, 205
Office Copiti —
May be given in evidence at the trial, 206
The Commission —
To be directed to person named in order, 204
When a second commission may issue, 196
T)ue notice to be given to opposite party, 197, 204
Should authorize commi3sioner to administer the oath to himself,
196
Copy of interrogatories to be annexed, 197
Effect of not issuing promptly, 197
Indorsement of style of cause unnecessaiy, 198
To be framed so as to bind witnesses by their oath according to
religion, 198
What are and are not valid objections to, 198
Effect of one commissioner refusing to act, 20"
Examination —
How to be taken, 197, 20f
To be on oath or otherwise according to religion, 205
Procedure where witness does not understand English, 205
Improperly taken will be rejected, 196
Beception of improper evidence to be objected to on, 196
May be viva voce in some cases, 197, 198
Under what circumstance, evidence taken not receivable, 197
What not deemed irregularities in return to, 197
Keed not be annexed to commission, 198
Questions may be put viva voce, 198
Mast be taken on interrogatories unless otherwise ordered, 198
Depositions to be subscribed by witness and commissioner, 205
.^■wmm*
fpppp
^ggmmm
I '
m
436
INDEX.
Commission to take Evidence — Continued.
Affidavit of Execution of —
Signature of person authorized to take, presumed genuine, 197
If substantially shewing due execution will be sufficient, 197
What held not to be objectionable, 197
Must identify depositions, 197
Who to be sworn before if taken in Quebec, 197
Objections to Cotnmisswn —
If not taken, are waived, 198
When technical objection should be taken, 198
What held to be valid objections, 197, 198
What are not valid objections, 197, 198
Return of —
How made, 197, 205
To be made to clerk of court in which action pending, 206
To wrong office, held no objection, 197
Must be enclosed in envelope under hand and seal of commissioner
with an affidavit of due taking, 198, 206
Coats of Commission —
To be in discretion of judge, 206
To be added to costs in suit, 206
How recoverable, 206
Examination de Bene Esse —
May be ordered of witnesses unable to attend trial (see Evidence),.
199
Examination of witness residing in remote part of province (see-
Evidence), 203
Rules of High Court, to apply, 904
Consolidated Rules applicable, 204-206
Commitment —
To wrong gaol, liability of judge for, 17, 18
For wrongfully holding money, books, etc., 40
Must be to gaol of county where arrested, 41
Order for, not subject of prohibition. 60
For disobedience to injunction (see Injunction), 90
For disobedience to order of court, 90
Of Judgment debtor (see Judgment Summons), 325
Grounds for, 325-327
Order for, upon adjudication when debtor appears, 328, 329
on non-attendance of debtor, 329, 330
Warrant of, 330
Execution of warrant, 330-333
Constables required to execute, 332
Duty of gaolor as to, 332, 333
Discharge of debtor, 333
Return of, to be made by clerk annually, 835
INDEX.
437
line, 197
It, 197
206
»mmi88ioiier
e Evidence),,
jrovince (see
,329
Commitment — Continued.
Of defendant may be ordered at tlie hearing in certain cases, 334
For contempt of court, {nee Contempt), 369-371
Of bailiff or other officer for misconduct, 373, 374
Power of court to commit for disobedience of its orders, 90, 371
CoMMOniTIKS —
Proceedings on judgment where contract payable in (see Judgment),
79
Company (see Corporations) —
In liquidation, notea due to may be garnished, 248
Procedure in such cases, 248
Compulsion —
Of legal process, money paid under, not recoverable, 4
Effect of payment by garnishee under {see Garnishment), 202-277
Computation of Time (see Time), 21, 33, 52, 118, 380
Confessions of Debt — ^
Clerks and bailiffs may take, 288
Kequisites of, 288
When taken before suit, what requisite, 288
When made, and plaintiff entitled to judgment, he may elect to pro-
ceed on either, 288
Partner cannot give without authority, 288
Non-executing partner may waive right to set aside, 288
Power of defendant's attorney to give, 288
Power of executor as to, 288
May bo taken as additional security for debt, 288
Given by maker no defence to action against endorser of note, 288
Effect of death of one of two defendants after, 288
Effect of when not given in prescribed form, 288
Does not operate as unjust preference {see Addenda), 289
Consent —
Cannot cure total want of jurisdiction, 125
Trial by, may be in any division, 125
requisites of, in such cases, 125
What is, 125
Implication of, by acts or conduct, 125
To appeal {see Appeal), 217, 221
not applicable to interpleader, 221
Amendment of judgment by, 5
To postponement of trial, 109
Consolidated Revenue Fund —
Costs of seal to be paid out of, 2
Fines recovered to form part of, 387
Unclaimed moneys to form part of, 389
Fees forfeited by bailiff to form part of, 47
m^mmtifim
■PPM
438
INDEX.
'^^HBR™
Constable —
Bailiff to exercise autliority of, during court, 43
Power of, to apprehend offenders, 43
Private persons sometimes bound to aid, 43
Persons assisting protected, 43 .
Liability for arrest of wrong person, 43
When a prisoner may be handcuffed, 43
Duty of after arrest, 43, 44
Action against for goods seized under illegal conviction, 86
To aid in execution of warrants, 332
Execution of warrant of attachment against absconding debtor, 344
Contempt of Court — •
Power of judge to punish for, 3G9
What constitutes, 369, 370, 371
Inherent powers of courts respecting, 369
How power should be exercised, 371
Penalty for, 369, 371
Wlien and how penalty may be enforced, 370, 371
Meaning of " wilful insult," 371
Commitment for, requisites of, 371
Release of party, how obtained, 371
When Appellate Court will review order of committal, 372
Liability of judgment debtor for, on refusal to attend on examin-
tion in County Court, 313
Power of court to commit for disobedience of its orders {see Powers.
of Court), 90, 371
CONTBACT
What actions on, are subject to Division Court jurisdiction, 73,
75, 102
Though for payment in labour, etc., judgment may be for pay-
ment in money, 79
No demand necessary in such cases, 79
Duty of buyer on contract for delivery of wheat, F. O. B. 79
Where personal services are proffered and refused there can be no
recovery, 79
Contract in such case assignable, 79
Stipulations not of the essence of, relief against, 89
Belief against penalties and forfeitures in, 88, 91
Power of courts to disregard such stipulations, 91
What it is necessary to prove in action on, 110
Where cause of action arises on, 110
Illustrations, 110
CoNVEBSioN OP Chattels —
Jurisdiction of Division Courts in action for, 61
IXDEX.
439
Conveyancer —
Judge may not act as, 19
Clerk may act as, 22
Conviction —
For offences under Act, 377
Form of, 378
Copies—
Of officer's bond, certified, to be received in evidence, 32
Of entries in clerk's books to be evidence, 32
Office copies of evidence taken on commission to be received, 206
Corporations —
Where deemed to reside, 112
Place of business of, 113
Execution put in force against, after winding-up order, void, 319
Proper remedy in such cases, 319
Directors or officers not liable to examination on judgment sum-
mons, 322
Foreifin —
Where action may be brought when head office out of province
and cause of action arose in different divisions, 116
Service on, where there is a resident agent, 136
Chief place of business of, 136, 137
Agency of (see agent), 136, 137
Debt in hands of resident agent attachable, 247
Liability of, to garnishee process (see Garnishment), 259, 260, 268
Corporeal Hereditaments —
Action for, not maintainable, in Division Courts, 54
What are, 70
Costs —
Taxation of, a proceeding, 13
Clerk to tax, subject to revision of Judge, 38
Proceedings on, 38
on revision, 38
Clerk not bound to pay successful defendant costs out of money
deposited in court, 45
To be paid to clerks and bailiffs in advance, 45
Enforcing payment of, 45
Of application for prohibition, 63
Of proceedings on mandamus, 65
When title brought in question, 70
On removal by certiorari, 107, 108
Of application to change place of trial, 120
On transfer of suit entered in wrong court, 121-123
'■ : /.v '
^mm
440
INDEX.
Costs — Continue .
On jiulj^ment on default of appearance in couit, 152
On motion for speedy judgment, 154, ICO
On puHtponement of trial, 1G7-1G9
On decision of question of tender and payment into court, 17(5
On i)ayment into court in satisfaction of claim, 178
Of commission to take evidence, 20G
In appeal {see Appoai), 231
In actions against officers of court, 38G
Of (<arni8hment proceedings, 275, 281
Of submission to arbitration, 284, 286
Execution for when debt recovered, 301
Of proceedings on judgment summons, 824
In tliH Cause —
Postage of papers to be, 138
Definition of, 138 ^
Authority of Judge as to, 2S{i
Power to award where no jurisdiction, 289, 290
Of Witneiises —
Where claim disputed, and defendant afterwards confesses judg-
ment, 291
In Actions on Judgments, 291
Not allowed, unless other actions joined, 4
Not to be allowed without order of Judge, 291
XJOUNSEL —
Judge not to practice as, 19
May appear as and as witness in same cause, 170
Judge may exclude in certain cases, 170, 171
Authority of, to bind client, 170
CooNSEL Fees —
May be allowed in contested cases for over 1100 : 290
Counter-Claim —
Provisions of Judicature Act as to, 88
Division Courts vested with same power as High Court, 179
Definition of, 9G
Distinguished from set-off, 96, 179
Effect of distinction, 180
Bequisites of, 96, 97 '
Matters which may be raised by, 97, 98
Where defendant may be ordered to give security for costs on, 97
Judgment on, not to be given until plaintiff's claim tried, 97
Plaintiff cannot discontinue after delivery of, 97
Courts will give effect to equitable rights though not set up by
97
INDEX.
441
)iirt, 17<5
f esses judg*
), 179
iosts on, 97
d, 97
set up by
■Counter-Clmm— Co?ifinH<?rf.
What may be raised in action by assii^neo of a debt, 97
Effect of not setting up on defendant's claim, 97
Cannot be raised against defendant by person named in defence, 97
May be investigated by Division Courts, though beyond jurisdic-
tion, 98
Proceedings may be transferred to the High Court in such cases, 99
Costs of, 188
County —
To inchide two or more united counties, 1
Definition of, 2
Number of courts in each, 2
Allowance to, for use of court house by city or town, 9
Separation of junior from senior, courts to continue, 12
Service of process on municipality (nee Service), 131
County Court —
Transcript of judgment to {nee Transcript), 310
Examination of judgment debtor on judgment in, 313
County Ckown Attorney —
May compel county to furnish accommodation, 7
To hold books, etc., of Division Courts when clerk changed, 40
To act as clerk when office vacant, 40
To pay fees forfeited by bailiff to Provincial Treasurer, 47
Renewal of execution by in certain cases, 309
To pay unclaimed moneys to Provincial Treasurer, 389
County Town —
Definition of, 2
Courts to be established in, 2
Sittings to be held in court house, 9
County Treasurer —
To keep account of Jury Fund, 242
Duty of, as to payment of jurors (see Jurors), 243
Court House —
Holding courts in, 6
Sittings in county town to be held in, 9
Bemuneration for use of, how adjusted, 9
Maintenance of, 9
Court Room —
Municipality to furnish, 7
Kent of, how payable, 7
Courts—
Of request abolished, 1
Division Courts established to be continued, 2
mfmmfM
442
INDEX.
i -
i
CovHTS— Continued.
Number of, 2
To have a seal, 2
Not to be Courts of Record, 8
Judgments of, to have force and effect of Courts of Record, 8
Time and place of holdini;;, 5,
Where held when no proper court room provided, 7
Expenses for accommodation, how payable, T
Provision for, when municipality not a town or city, 7
How sittings regulated in remote or inaccessible districts, 9
Alteration in number, limits and extent, how made, 10
Establishment of, 11, 12
How numbered when established, 12
Must be confirmed by Lieutenant-Governor in Council, 12
No business to be transacted in, till officers appointed, 12
On separation of junior from senior county, courts to con*^inue, 12
Continuance of proceedinf.{s when divisions changed, 13
Contmuance of proceedings when limits are in both senior and
junior divisions, 14
Regulation of limits on separation of a county, 14
Clerk of the peace to record time and plac:) of holding, 10
Who may preside over, 17
When sittings of County Court or General Sessions n*, same time
as Division Court, 19
Who to preside on illness or absence of Judge, 19
Provision for adjournment in absence of Judge, 21
Holding of, in territorial districts, 21.
Officers of {see Clerks and Bailiffs), 21, 22
Jurisdiction of {see Jurisdiction), 53
Powers of {see Relief), 88-98
Equitable powers conferred upon, 88, 90, 91
Practice of High Court applicable to, 91, 398
Duty of, on investigation of counter-claim, 98
No privilege to exempt from jurisdiction of, 99
Having jurisdiction to have full power, 109
In which suits may be entered and tried {see Territorial Jurisdic-
tion), 109-120
Nearest defendant's residence, when suit may be entered in, 114
When deemed open ; meaning of " open court," 152, IGfi
In which garnishee proceedings after judgment to be brought, 263
Where garnishee foreign corporation, 264
In which actions against foreign corporations, firms and individuals
to be brought {see Corporations), 136, 137
Power of, to enforce obedience to orders {see Powers), 90, 371
INDEX.
443
rial Juriadic-
COVENANT—
Of clerka and bailiffs (Hee Sureties), 20-30
Form of, 408
Certificate of filing to be produced to inspector, 62
Action on, a personal action, 75
Claims on, not exceeding 9100 may be brou^jht in DivlHioii
Court, 73
CiiEDiTons' Relief Act —
Attaching orders by slieriff or creditors, 280
. Application of provisions to garnishee proceedings in Division
Courts (see Garnishment), 280, 281
Provisions affecting rights of execution creditors in Division
Courts (see Execution), 301-303
rrovisions affecting rights of attaching creditors in Divitsion
Courts {see Absconding Debtor), 341
CiiiMiNAL Conversation —
Action of, not maintainable in Division Courts, 54
Definition of, 72
Strict proof of marriage necessary in, 72
CuiMiNAL Proceedings —
Power of Legislature as to, 41
Questions of doubt in, construed favourably to accused, 374
Cross- Jddoments — '
Maybe set off, 303
Proceedings thereon, 303
Not to prejudice solicitor's lien for costs, 303
Custody of Goods —
Seized under warrant of attachment, 347, 348
Custom —
Questions as to, not to be tried i;; Division Courts, 51
Definition of, 71
Jurisdiction not ousted by setting up in certain cases, 71
Doubtful if applicable to Ontario, 71
i
Bi,.
Damages —
Essence of action for non-performance of duties or misconduct,
28, 29
Recoverable against officers and sureties, 20-31
Action for, after prohibition granted, 64
Claims for, in personal action not to exceed $00 : 73, 75
In replevin (see Replevin), 84
444
INDEX.
t ■
Damages — Continued,
In action on replevin bond, 87
Unliquidated, relief at^ainst, 88
Claims strictly for, what are, 245
For neglect to return execution, 375
FoL' distreps under defective process, 382
-Dfvth —
Of judge, effect on proceedings pending, iT
Of surety, procedure on {see Surety), 30
Of garnishee, before service on him, effect of, 2G5
Of one of two defendants after confession, 288
Debt —
Assignments of {see Assignments of Choses in Action), 128
Definition of a, 146
Not extinguished by imprisonment of debtor, 334
Garnishment of (see Garnishment), 244, 245
Confessions of may be taken {see (-onfessions) 288
Jurisdiction of Division Courts in actions of {see Jurisdiction), 63
54,73
Debt or Monuy Demand —
Meaning of, 146
Claims deemed to be, 146-148, 245
Dewt Attachment Book —
To be kept by clerks, 282
Decision —
Of a majority of members of tribunal good, 11
When decision becomes a judgment, 36
Of Judge on question of jurisdiction, effect of, 60, 61
In appealable cases to be given publicly with reasons for it, prior
to certification of papers, 228
May be given instantcr or postponed, 208
Statutory requirement to be observed, 208
Cannot be altered by Judge at will, 208
May be according to equity and good conscience, 73, 78
To be final and conclusive subject to right of appeal, 74, 78
-SVt' Judgment
Deed —
Action for trover of, not maintainable in Division Courts, 55
Default --
In paying over money, liability of officers for, 27
Jud^'ment by, when dispute note not given, 145
wlien defendant fails to appear in Court, 150, 166
I
KU '
INDEX.
445
isdiction), 53
IS for it, prior
Defective Proceedings —
Protection of oflicers and others acting under, 382
Defence —
In replevin against bailiff (see Replevin), 84
In actions on replevin bond, 86
Legal or equitable may be set up (see Relief), 88, 91
Of counter-claim {see Counter-Claim), 88, 91, 96-99
Involving matter beyond jurisdiction, transfer to High Court in
such cases, 99
Notice o/— When to be given, 146, 153
Of statutory defence or set-off sufficient, 158
Setting up on motion for speedy judgment, 153, 158
Leave to enter conditionally, 154, 161
As to one defendant and judgment as to others, 54
May be allowed at any time before judgment, 161
Notice of, in such cases to be left with the clerk and given to the
plaintiff, 161
Withdrawal of notice of, 162
Payment into Court operates as notice of , 178
In garnishee proceedings. 270-273
Of no signed bill to action for solicitor's costs a statutory defence,
187
See Statutory Defence
Delegating Authority —
Officers appointed to fix divisions of courts cannot delegate powers,
11
Functions of Judge cannot be delegated, 18
Power of legislature in respect to, 24, 391
Demand —
Unnecessary before action on contract for delivery of goods, etc., 79
In replevin (see Replevin), 81, 84
Demand of Perusal of Warrant —
See Officers of Court, 378, 381
Denial or Perversion of Right —
When prohibition will be granted on, 58
Deputy Bailiff —
Appointment and removal of (see Bailiff), 24, 25
Deputy Clerk — ■
Appointment and removal of (see Clerk), 24, 25
wm
S^S^^"
416
INDEX.
SI:::'
m I.:
i..L
Dbpoty Judge —
Courts may be presided over by, 17
Appointment of, by Government presumed to be valid, 19
Appointment of, by Judge, 19, 20
by Governor General in Council, 20
Powers of, 20
Death of Judge ends authority, 20
Notice of appointment to be sent to Lieutenant-Governor, 20
Duration of appointment, 20, 21
Lieutenant-Governor may annul appointment, 21
Detinue — . .
Action for, maintainable in Division Courts, 65
Payment of money into court in, 65
Claim in, not to exceed $00 : 73, 75
Devisk^
Validity of, not to be tried in Division Courts, 54, 71
DiSUUnSEMENTS —
Affidavit of, to be furnished to clerl:, 38
False affidavit of, effect of, 191
See Witnesses, 189
DiSCHAUdR —
Of garnishee (see Garnishment), 274 277
Of debt from attachment (see Garnishn^ent), 276
DiSCHAHOE FROM CuSTODY—
Of persons imprisoned on warrant of commitment, proceedings to
obtain, 333
Discretionary Powers —
Exercise of, by Judge. 5, 241, 254, 265
If exercised honestly not subject to review, 16
Where words conferring discretionary and where imperative, 15,
152, 167, 241. 254
Exercise of, by inspector, 61
How power implied in words "On sufficient grounds shewn,*'
should be exercised, 165
See Words and Phrases.
Discovery —
Rules of High Court respecting, not applicable to Division Courts,
92
Discontinuance of Action —
How obtained in replevin, 83 ,
Dismissal —
Of clerks and Bailiffs ($ee Clerks and Bailiffs), 22, 23
i
INDEX.
447
alid, 19
20
jvernor, 20
71
b, proceedings to
) imperative, 15,
rounds shewn,"
Division Courts,
23
Disputing Plaintiff's Claim —
Notice of, 145
Judgment by default on failure to give notice, 146
Leave to dispute may be given at any time before judgment, 161
See Notice Disputing Claim
Disputing Jurisdiction — When wages sought to be garnished {see
Garnishment), 256, 257
Disqualifying Intekest —
Proceedings by officers interested irregular, 16
Effect of, in case of Judge, 18, 19
Prohibition in such cases, 59
Authorities respecting, 59
Distance —
How measured, 114
Distress —
Replevin of goods distrained {see Replevin), 81, 83, 85
For non-payment of fine {see Fines), 377
replevin not maintainable for goods seized under, 85
By bailiff for rent {see Landlord), 365-368
Distribution of Moneys —
Bealized on execution under Creditor's Relief Act {see Execu-
tion) 341
In attachment proceedings {see Absconding Debtor), 346, 347
Dividing Cause of Aciion —
See Splitting Demands, 102 104
In attachment proceedings {see Absconding Debtor), 345
Division Courts — {see Courts) —
How to be designated, 2
Appointment of time and place for holding, 6
In cities, 6
Cost of accommodation for, 7, 8
Alterations in, how made, 10
Where proceedings continued on separation of junior from senior
county, 14
Regulation of limits on such separation, 14
Clerk of the peace to keep record of time and place for holding, 16
In what courts suits may be properly entered and tried {see Terri-
torial Jurisdiction), 109, 114, 115, 116
In which court garnishee proceedings to be entered, 263, 264
Where garnishees are corporation, 264
w^
■^p
l*j,--«;
i::
448
INDEX.
Documents —
Production of, on motion for speedy judgment, 154, 160
On subpoena duces tecum, 188, 191
When production of excused, 191, 192
Privileged communications, 192
Disposal of, on separation of county or transfer of proceedings, 14
Disposal of, on death or removal of clerk, 40
Inspection of documents of court (see Inspector), 50
Doe Proof —
What is, 160
Duties op Officers — (see Clerk and Bailiff) —
Liability of officers and sureties for non-performance, 26-81
Of clerks (see Clerk), 36
Of bailiffs («ee Bailiff), 41
Inspector to look to performance of, 50
Inquiry by inspector concerning, 51
(1* !
E.
Ejectment —
Action of, not maintainable in D. C, 54, 68
Elisors —
When practice of High Court as to, applicable to D, C, 375, 394
Emoluments of Clerk —
Disposition of (see Clerk), 48, 49
JReturn of, to be made to Provincial Treasurer, 49
Entry of Claim for Suit —
In what division to be made (see Territorial Jurisdiction), 109-120
Procedure on (see Particulars), 127, 128
Equitable Cause of Action —
May be sued in Division Courts if claim within jurisdiction, 75
Action by mortgagor against mortgagee for surplus, 75
Equitable Execution (see Receivers), 88, 90, 94, 95
Equity of Redemption —
Of debtor liable to seizure under execution, 314
Rights of purchaser in such cases, 314
Equitable Relief (see Relief), 88
Establishment of Courts —
(See Courts), 11, 12
INDEX.
449
iroceedings, 14
Examination —
OF witnesses ou commission {see Commission), 195
Wlien commission to take evidence of applicant granted, 199
Of witnesses aged or intirm or unable from sickness to appear, 199
Of witnesses whose attendance cannot be obtained {gee Evidence),
199
Of witnesses resident at a distance {nee Evidence), 203
Of defendant on motion for speedy judgment {nee Speedy o^udg-
ment), 154, IGO
Of judgment debtor on judgment in County Court, 313
Of judgment debtor on judgment in D. C, 320
May take place at hearing in certain cases, 334
EXCESS-
iction), 109-120
Abandonment of {nee Abandonment of Excess), 59, 77, 78, 106, 346
Prohibition quousqtie may be granted where not abandoned, 59,
77, 78
EXFMPTIONS —
What articles exempt from seizure {nee Execution), 299-301
Applicable to attachment {see Absconding Debtor), 336
Applicable to distress for rent, 297
Liability of bailiff for seizing, 315
EXKCDTION —
Different meanings of, 293
If not issued within six years, leave of Judge necessary, 5
Leave will not be granted except within twenty years, 5
Writs of, to be issued by clerk, 38
Clerk to keep record of, 37
Bailiff to forfeit fees for neglect to return, 47
When goods seized under, repleviable {see Replevin), 80, 82, 86
When sheriff may put in claim of special property in replevin, 86
Enforcement of, when suit brought in court nearest defendant's
residence, 114
Liability of bailiff for execessive seizure, 340
Enforcement of, against clerks and bailiffs, 124, 375, 376
Procedure in absence of bailiff or where required to be executed at
a distance, 138
Against One of Several Partners —
How enforced {see Partners), 141
Against one of two partners, what liable, 295
What purchaser takes in such cases, 295
Such writ has no priority as to separate property over one against
him as member of firm, 295
And rights of parties not affected by Creditors' Relief Act, 302
D.C.A.
-29
? ., " Wf
450
INDEX,
Execution— CoJif (»»<'</.
What partnership property not liable, 2',)5
Half interest in a celebrated mare held liable, '2!)(i
Aijainst Firm —
How and aj^ainst whom enforceable (see Partners), 143, 145
Igsue of —
To issue when money not paid pursuant to order, 2!l'i
Formalities of, 292
Cannot issue during imprisonment of judf»ment debtor, 335
Not to issue within 15 days after judgment unless otherwise ordered,
211, 293
Not to be postponed more than 50 days, 215, 293
May be stayed if debtor unable to pay, 215
What deemed good cause for staying, 215
Practice in such cases, 215
Mandamus may be granted to compel issue of, 38
Cannot issue in name of plaintiff 's executor without revival, 293
But if issued before, may be executed after death of eithe- ,_ ^rty,
293
Not to be issued without express authority, 293
Effect of endorsement for more than due, 293
If defendant pay debt, he should notify clerk, 293
Money made for one person cannot be retained to satisfy another
execution against same man, 295
Farm stock transferred to debtor to be paid for by increase thereof,
seizable under, 295
But not, if only lent, 295
Where goods deemed debtor's so as to be liable to seizure, 295
Liability for fraudulent removal of goods, 295
Purchaser of crop sold under, may levy trespass in respect of it,
295
Effect of sale after expiry of, 295
seizure by bailiff when sale after removal from office, 29(>
No warranty of title at sale under, 29(5
Issuing too soon, an irregularity only, 290
Cannot be renewed ?ii(;ir |>ra <HMC, 296
When expired, cannot be renewed, 296
Where execution creditor, through a stranger, entitled to move to
set aside, 296
Where discharge in insolvency an answer to issue of, 296
Terms fieri facian and execution, convertible terms, 296
Seizure to be made according to priority, 293, 294
What deemed irregularities in, 294
Binds goods from time of seizure, 294
Money and securities bound only from time of seizure by sheriff or
bailiff, 294
INDEX.
451
143, 145
202
ebtor, 385
iherwise ordered,
out revival, 293
1 of eitlie- j^ irty,
10 satisfy another
increase thereof,
) seizure, 295
s in respect of it,
al from office, 296
nt'tled to move to
leof, 290
ns, 29»)
4
sizure by slieriff or
ExRCCTioN — Continued,
What may be seized under, 294, 295, 314, 315, 340
Equity of redemption in vessel not saleable under, 294
Nor fixtures in defendant's house, 294
Tenants' fixtures may be removed, 294
Growing crops are seizable, 294
Shares, etc., in companies are not, 296
Nor growing fruit, 296
How chattels of mortgagor may be seized and sold, 294, 295
The right to a foal of a mare would follow the dam, 296
The identical money of debtor in third person's hands liable, 299
Liquor license cannot be sold under, 295
l3ook debts not seizable under, 288, 295
Bailiff, after taking possession, may bring trespass or trover, 2 )t\
Or insure i^'ainst tire, 296
Goods sold may be lent by purchaser to debtor, 296
The acts of person assisting bailiff are those of the latter, 296
Bailiff can make no contract of sale until seizure, 297
Interest not recoverable on judgment paid independently of, 297
Stranger may be appointed to execute warrant against bailiff, 394
Where to be executed, 304
Must be executed within the county, 304
Effect of attempt to execute out of county, 304
Abandonment and Priority of, 297
I"]ffect of sale by debtor after abandonment, 297
Chattel lent by sheriff not abandoned, 297
What is and is not abandonment, 297
Long delay not of itself abandonment, 298
Bailiff who has withdrawn may re-seize if writ in force, 298
Distinction between rights of subsequent execution creditor, and
of purchaser from debtor after abandonment, 298
Effect of instructing delay in levy, 298
If bailiff notified not to execute priority lost, 298
Bights of sheriff as to goods under seizure by bailiff, 298
I'hifcrcement by bailiff without authority, 298
Effect of allowing debtor to retain possession on acknowledgment
of seizure by him, 297
Temporary absence not abandonment, 299
Court will inquire at what period of the day writ issued, 29o
Writ has no priority over attachment in same D. C., 341
Effect of attachment on rights of execution creditors, 342
On Transcript from Another Division, 306
Clerk to notify plaintiff of return of nulla bona, 307, 308
Effect of absence of registration certificate of mailing notice, 307,
308
May issue on revival of judgment by personal representative of
deceased creditor, 308
^f
'''npMnappBfMW
sr^w^i"
452
INDEX.
( ■
I
ii> .;.
E XKCOTION — Continued,
Date OJ—
To be day of issue, 308
EeUim Of—
To be returned within 30 days, 308
Computation of time, 308
Effect of return of " money made," etc., 297
Duty of bailiff as to, on appeal in interpleader, 221
Of Nulla Bona, what is, 310
May be made after expiry of writ, 310, 311
Notice of, on execution issued on transcript, 307
Bailiff not entitled to mileage on, 305
Effect of, where there are goods, 297, 311
Effect of, on transcript to County Court, 310
Action for neglect to return, 375
Reneical Of —
May be renewed by clerk from time to time for 6 months, 308
How time computed, 308
Not necessary when acted upon, 308, 310
Cannot be, after expiry, 308
Effect of sale of his goods by debtor in such cases,?
Clerk not to renew without authority, 309
Effect of unautliorized renewal, 309
Ratification thereof by creditor, 309
County Attorney may renew in certain cases, 309
Immediate Execution —
May be ordered by Judge, 309
Application and affidavit therefor, 310
Mortqagor^s Interest in Goods —
May be seized and sold, 314
What property passes by, 314
An indivisible interest in chattel may be sold, 314
Effect of such sale, 314
Bights of vendee in such cases, 314
Moneys and Securities for Money —
What may be seized under 314, 315, 316
Bailiff cannot sell security seized, 315
To hold securities for benefit of plaintiff, 31(5
Bailiff may sue thereon and recover in name of plaintiff, 31
Procedure in such cases, 315, 316
Rights of parties to such action, 315, 316
Defendant in original suit no 'o discharge action, 317
Party desiring to enforce payment to pay or secure costs, 317
Disposal of money recovered, 31 J.
Indorsement on after seizure to be made by bailiff, 317
INDEX.
453
nonths, 30«
lintiff, HI
317
costs. .317
KxEcuTioN — Continued.
Notice of Sale, when and howjgiven, 317, 318
Effect of irref»ularity in, 318
Must be signed by bailiff himself, 318
Requisites of, 318
Aijaimt Corporations (see Corporations)
If issued after winding,' up order, void, 319
Proper remedyjin such cases, 319
Against Married Women, (see Married Women), 401
Slieriff may Intervene, 319
When and under whatj' circumstances sheriff entitlcil to goods
seized, 319
Bailiff's fees in such cases to be paid by sheriff, 319
would not include poundage, 319
If no demand by sheriff, bailiff may sell, 319
Sale of Goods Under —
When to be made, 318
Duty and liability of bailiff in respect of, 318, 319
Person taking goods seized, without authority, guilty of felony
319
Sale by Consent, 318
When and in what manner statutory requirements may be waived
by defendant, 318, 319
Bailiff or other oiificer not to purchase goods sold, 320
Effect of sale to such officer, 320
Exemptions —
Articles exempt from seizure, 299, 300, 301
Setting Aside —
What are and are not grounds for, 301
By whom application may be made, 301
Cofts —
Plaintiff entitled to execution for, 301
Viiditor's Relief Act —
Provisions affecting rights of execution creditors in Division
Courts, 301
Priority among execution creditors in High Court and County
Courts, 301
Proceedings by subsequent creditors on levy bj bailiff, 301
Debtor and other creditors may contest bona fides of claims, 301
Proceedings where creditor has recovered judgment in D. C, 301
Proceeds of execution paid by debtor or mortgagee not distribut-
able under, 302
Only creditors who are parties, share in benefits of interpleader
issue, 302
Eights of firm or separate creditors of partnership not affected by,
302
! r. T
454
INDEX.
KxECUTiON — Continued.
Intervention by sheriff under (xee supra), HO'2, 315)
Kiil'orcinij Division Court Claims —
Proceedings on failure of sheriff to realize money on iiiiy 1>. C.
claims filed with him, 302, 303
Cross Judgments —
May be set off {see Cross Judgments), 303
On removal of Judgment Debtor —
May be obtained on production of certified copy of jiidgnieut, .'!(((
Payment or tender may be made to clerk or bailiff before sale, 304
Effect of, 304, S05
When payment made to creditor, defendant should notify cleik,
305
Execution completely executed by, 297
Fees of Bailiff —
Where goods in his possession are taken by sheriff, 303
Where satisfied in whole or in part after seizure and bufore salu,
305
See return of nulla bona, supra, 305
On Judgment against Garnishee—
To be stayed till money due, 276
In Attachment {see Ahaconding Debtor) —
Property attached may be seized and sold under, 345
If debtor does not appear, 350
If summons served personally, 350
EXPEKTS —
Evidence of, not to be taken under commission, l'.)G
EXECCTOHS AND ADMINISTRATORS —
Statutes of Limitations applicable to {see Limitation of Actions)
187
Executor de Son Tokt —
Action may be revived against, 308
Express Company —
Having head ofidce out of Ontario, service of process on, 137
Extortion —
Definition of, 373
Penalty for, 374
Evidence —
Entries in books of public nature, 1(1
Certified copies of oflicer's covenant to be, 32
Entries in books of clerk and bailiff to be, 32, 37
Entries in procedure book and certified copies tliereof to be, 37
IXDEX.
455
■ oil iiiiv 1). (!.
d notify clerk,
on of Actions)
Bi-eof to be, 37
I'i vii'KNCK — C'outinueil.
I'jffect of procedure book not beinf{ sij^ned, H7
Where entry in procedure book held not to be evidence of judf,'tnent
in replevui, 37
On inquiry by inspector into conduct of offaoers, 50, 51
inspector should take notes of, 51
Prohibition will not be granted for improper reception or rejection
of, ()0
Necessary in action on contract, 110
Only admissible as to mattei-s contained in particulars, 1'2H
To be taken down in writing in appealable cases, 1»)4, 165
unless aj:;reenient not to appeal, IfiS
Effect of absence of notes of, in appeal, IfiS, 220, 228
When in existence must be certified to Court of Appeal, 221
Of ackuowled«,'ment to take claim out of statutes of limitations,
what sufficient, 182
Of part payment for same purpose, 185
Of set off, not to be received except such as contained in particu-
lars, 187
Of witness whose attendance at trial cannot he olitainetl, 11)9
Judge may oppoint suitable pe'sou to take, IW
Copy of order and notice of time and place to be served, 199, 200
201
Effect of failure to give notice, 202
How evidence to be taken, 199, 203 '
Return of, to be made to clerk, 199, 203
When evidence so taken receivable, 202, 203
Costs of order and examination, 199, 203
Circumstances under which order fir, may bo granted, 199, 200,
201
How and when application should be made, 20i), 201
Affidavit for, what to contain, 201
How order framed, 201
Disobeaience to order, how punished, 201
When order may be made for examination of witness going
abroad, 201
How evidence to be taken, 202
Powers and discretion of examiner, 202
Objections to evidence (see Commission), 197, 202, 203
Examiner cannot delegate his authority, 203
Depositions may be used at trial saving all just exceptions, 197, 202
Of witness resident in remote part of Province, 202
Order may be made appointing person to take, 203
Circumstances under which order maybe made, 204
Application and affidavit for order, 204
How evidence to be taken and returned, 204
456
INDEX.
Evidence — Continued,
Rules of High Court to apply to coniniiasions, '20i
Consolidated Rules applicable, '204-20()
(See Commission to Take Evidence, 1!>5)
Books of Account —
To be receivod as evidence in certain caHes, "207
Affidavit or Affirmation —
May be received in evidence in certain cases, 'J()7
Improper AdmisKion or Rejection of, 218
Must be objected to at trial, 218
New trial on ground of (nee New Trial), 213
F.
#'■••«'
False Pretences —
Offence of, what is, 327
False Return —
By bailiff, penalty for making, 375, 376
False Statement of Facts —
Judgment obtained by, invalid, 4
False Imprisonment —
Action for, not prohibited in D. C, (>'■), 71
No question of title can arise in, 69
Prohibition will not lie because judge considered ijuesiio''' of mali-
cious prosecution in action for, 60, 71
Fees —
For clerk of the peace on tiling officer's bond, ol
Clerks and bailiffs to be paid by, 44
To be paid to appraisers, 44
Table of, to be hung up in clerk's office, 44
To be paid in advance, 45
Effect of giving credit for, 45
May be deducted by clerk from money coming into his hands, 45
But not if money belongs to another, 45
Bailiff cannot withhold moneys collected by liim for, 45
How payment of, enforced, 45
Notice to debtor must be given in such cases, 45
Proceedings on motion for order to enforce payment, 46
Of bailiff to be paid to clerk before execution issued, 46
Bailiff's lien for, when action settled or defendant makes an
assignment, 46
Bailiff to forfeit, for neglect to return execution, 47
Forfeited, disposal of, 47
IN'DEX.
457
'.ion of mali-
Fhbh — Continued.
None to be received by ofticera execept those provided for by
tariff, 47
And emoliimeiita earned by clerk, disposition of, 49
Duty of inspector regarding, 50
Tariff and statute prescribe all lawful fees, 50
In replevin, how fixed, 84
Of clerk on transferring suit to another division, 122, 121)
Postage of papers to be costs in the cause, 138
Payable on requisition for jury, 234
for sustenii K'o of jury fund, 242
return of, 212, 243
Of jurors (nee Jurors), 243
Of arbitrators {nee Arbitration), 286, 287
Of bailiff when goods seized are taken by sheriff, 303
Of bailiff when execution satisfied after seizure, 305
On distress for rent claimed by landlord, 368
Of witnesses {nee Witnesses), 189-195
to be taxed by clerk, 38
of successful defendant need net be paid by inoney
deposited by plaintiff for costs, 45
Fines —
Clerk to keep account of, 38
To furnish county attorney with verified account of, 39
Disposition of by county attorney, 387
How enforced in Division Courts, 377
How enforced by justices of the peace, 377
Firm — {see Partners;
Members of, may be sued separately in certain cases, 140, 141
Bailiff may seize property of, on certificate of Judge, 141
May sue or be sued in name of, 142, 144
Judgment and execution against, 143, 145
Adding partners as defendants, 143
Garnishee proceedings against {nee Garnishment), 246
Foreign —
Service of process on, 136-138, 144, 145
May be reached by garnishee process {nee Garnishment), 247
Flooi)IN(i ok Land —
Action for may be tried in Division Courts though title in ques-
tion where sum claimed does not exceed $20 : 70
Division Courts may grant injunctions to restrain, 92
Fokkion Corporations —
Where action may be brought against, on cause of action arising
in different divisions, 116
458
INDEX.
ii^ii
Cv
.ftfii.
FoisKiON CoiU'OKATiONS — Coiitiiiued.
Service on (see Service), 136, 137
Chief place of business of, 137
Debt in hands of resident agent of, may be attached, '247
Cannot be reached in High Court by garnishee process, 217
When Hable to garnishee process in Division Courts, 259, 2(50
Service of garnishee summons after judgment upon, 204
In what court such summons issuable, 204
See Corporations
Foreigners —
Action against (see Jurisdiction), 134-137
FouEiGN Judgment —
Action on, may be brought within six years, ii
Effect of personal service in action on, 132 *
FonFEITURE OF OFFICE—
By clerks and bailiffs failing to give security (aee Sureties), 33, 34
On conviction of extortion, 374
Formal Defects —
Proceedings not to be set aside for, 2'j;)
Protection of persons acting under, process containing, 383
Forms —
Substantial compliance with sufficient, 27, 377
Of judgment for balance of unsettled account, 106
Judge may prescribe in garnishee proceedings, 282
May be varied according to reason and common sense, 378
Of memorandum to be indorsed on garnishee summons in wages
cases, 258
Of memorandum to be indorsed by bailiff on inventory of goods
seized under attachment, 344
Of conviction for offences under the Act, 378
Of covenant of clerk or bailiff, 403
Forthwith — (.see Words and Phrases)
Definition of, 10
FllANCHISE —
Action for, not maintainble in Division Courts, nl
Definition of, 71
A patent is, and action as to cannot be tried, 71
Fraci) —
Judgment obtained by, invalid, 4
Goods obtained by, may be replevied, 83
Or breach of trust, offence of, 320, 327
INDEX.
4.",f)
FiiAUonLENT Conveyance —
Cannot be attacked by creditor under $40 : 811
Freeholders —
Officers' sureties must be, 20
Who are, 30, 225
Gamblint. —
Money lent for purpose of, not recoverable, 05
Definition of, 60
Games held to be, 66
Gambling Debt —
No jurisdiction in action for, 53
Definition of, 65
Action on a wager maintainable in Enjjlana, 05
What has been held to constitute, ()5, GO
Transferror of a note for value after maturity cannot set up defence
of, 05
Agreement in nature of a bargain, but really a bet invalid, 05
Agent employed to bet may sue for, 05
Money paid to discharge lost bet recoverable, 05
And so is money lent to pay a lost bet, 65
But not money lent to play illegal games, 05
Nor money lent by innkeeper for gaming contrary to his license, 05
As to money lent but not used for gambling, 05
Liability of stake-hclder for money in his hands, GO
Gaoleu—
Duty of, as to prisoner committed iinder warrant, 332, 333
Ga1!XIHHMENT —
Application for prohibition in {itee Prohibition), 02
Substitutional service of process in {nee Substitutional Service),
133-13G
Application for new trial in, may be made after expiration of 14
days, 212
Garnishee not a " party to a cause," 217
Appeal in {see Appeal), 21G
Oarnishmetit of Debts —
Conditions precedent to right of, 244
Debt or money demand within competence of D. C, 245
Claims strictly for damage not subject of, 244
what are, 245
460
INDEX.
zy
'-V
f
c •
(. .
I
mum** .
tUMMff'
< & .
Garnishment — Continued.
As to proceedings against non-resident garnishees {gee Corpora-
tions), 259, 260
The Debt—
Principle of what is a debt illustrated, 245
May be legal or equitable, 245
Claim of primary debtor must be "due and owing,'' that of gar-
nisheo •' due or owing," 245
Distinction considered, 245, 246
Present right to sustain action against garnishee unnecessary, 246-
Mere possibility of defence no ground for ousting, 246
Rule of High Court respecting, not applicable, 246
Debts Attachable —
Test of, 246
Recovery of judgment does not a£fect it, 246
Debt for which cheque has been given, 246, 251
Money deposited for special purpose which has failed, 246
Debts, legal or equitable, whether presently payable or not, 246
Moneys which may or may not be payable by trustees, not debts,
246
When trustee may be liable in such cases, 246
Debts due by executor to judgment debtor, 246
What order in such cases should shew, 247
Debt to administrator not attachable for private debt, 247
Taking debtor in execution does not prevent, 247
Rent due by virtue of Apportionment Act, 247
Money in hands of agent of foreign garnishee, 247
Judgment or order for costs sufficient to sustain, 247
Cases which have been held to be debts and attachable, 247
Debt due by company in liquidation, how reacued, 248
Money m hands of a receiver, how attached, 248
Verdict attachable before judgment, 248
Amount fixed by award, 248
Surplus proceeds of mortgage sale, 249
Claims not Attachable —
Claims held not to be debts and not attachable, 248-251
Money taken by police from a prisoner, 248
Contract to loan money creates no debt, 249
Where debt based on illegal consideration, 250
Money in hands of Government, 250
Lien of garnishee must be discharged, 250
Money payable by county to Clerk of the Peace, 250
Money lodged by executrix de bonis, etc., in bank of attaching
creditor, 251
Claim for unliquidated damages referred to arbitration, 251
Where cheque given and duly paid, 251
INDEX.
461
"Garnishjient— CorKiHued.
Drawer of cheque not bound to stop payment, 251
Debt owing to two not answerable for claim against one of them,
251
Life interest of tenant by courtesy in purchase money, 251
Assignee of book debts cannot proceed bummarily by garnishment,
246
Clients moneys deposited in his own name by stock broker, 252
Judgment will be set aside if it appears debt was assigned, 251?
Right of cestui qui trust to object to order, 252
Protection of trust moneys, 252
Such money must be property of debtor absolutely, 252
Against Partners —
Names of individual members of firm must be set out, 246
Parties to proceedings against, 246
Judgment against partner served, 246
Effect of partner served not objecting to proceedings, 246
llights of Other Parties —
Cannot be violated, 251
Assignment in insolvency prevents, 251
Order on garnishee, effect of, 251
Effect of assignment of verdict, 251
Notice of assignment, not necessary, 251
When person may be made party to, 251
Rights of bondholders in Railway Company, 251
After appointment of receiver a contempt, 251
Appointment of receiver after attachment, effect of, 251
Assignee of debt may waive his rights, 252
Protection of garnishee in such cases, 252
Procedure when it appears that money belongs to third person,
252
Solicitors Lien for Costs —
Effect of, with respect to attachment, 252
Notice of, must be given to garnishee, 252
Effect of notice, 252
Proceedings thereon, 252, 278
II ages or Salary —
To be exempt to extent of $25 : 253
Persons entitled to exemption, 263
Cases in which exemption not allowed, 253, 254
When debt contracted for board or lodging, 254
When not necessary for support of debtor's family, 254, 255
When debtor unmarried and has no family dependent on him, 254,
255
Effect of provision and statutory exceptions considered, 254, 255
pppppp
4()2
INDEX.
Ml
J. -^ ■.
«>;....
k
Garnishment — Continued.
Notice Disputing Jurisdiction in such Cases, 250
When, and in what manner given, 256
Is an indispensable requisite to proceedin}?, 256
When provision as to notice is applicable, 257
Effect of absence of clerk preventing notice, 257
Omission of clerk to perform duty, 257
Effect of notice, 256, 257
Memorandum on Summons in such Cases, 257
Pre-requisites of, 257, 259
Effect of absence of, 258
Form of memorandum, 258
Applies to all cases whether before or after judgment, 258
After Judgment —
Attaching order may be granted on judgment, 259
Proceedings by attachment only when judgment recovered, 259
Assignee of judgment may proceed on, 259
Affidavit for, 259
Prohibition not obtainable on defective affidavit, 25'J
Scope of attaching order, 259
Garnishee must be resident in Ontario, 259
Unless having an agent with office as such in Ontario, 200
Company having chief place of business out of Ontario not affected
by, 260
Service of Attaching Order, 260
Effect of, to bind all debts, etc., 260
How made, 260
» Substitutional service cannot be ordered, 260
Upon a foreign company, firm or individual, 260
Who deemed " agent ' in such cases, 260
Effect of Attaching Order— 260, 261.
Binds " debts" only, 260
Claims bound by, 260-262
Effect of payment by gai'nishee of claim not a "debt," 259,260
Bights of debtor before order to pay, 261
Duty and liability of garnishee after service on him, 201
When payment into court will discharge garnishee, 261, 262
Until order to pay, creditor has no judgment against garnishee.
261
After judgment, garnishee liable to judgment summons, 261
Garnishee proceedings only collateral to action, 262
Effect of assignment by garnishee, 262
Debt not garnishable by creditor of primary creditor, 262
How garnishee should proceed, 262
Where several orders, how creditors rank, 262
Order gives no right to securities, 262
INDEX.
463
158
;red, 259
2(50
not affected
)t," 25S»,260
1(51
1,262
t garnishee.
8,261
2(52
Garnishment — Continued.
Payment to any but p-imary creditor void, 262
Effect of payment under compulsion of law, 262, 263
Money paid to debtor after garnishee not recoverable, 263
Summons to Garnishee, 263
Primary creditor may summon garnishee, 263
From what division summons may issue, 263
What memorandum endorsed to show, 263
When returnable, 263, 264
Joint Garnishees — Service on, 263
Service on foreign corporations, 204
Mode of service, 265
Judgment at Hearing —
What "hearing" includes, 206
Claims must be proved, 266
Where some parties are served and some not, 260
Where suggestion made of claims of other persons, 2(5(5
Rights of garnishee as to lien or set-off, 267
Or when debtor bound to indemnify him against other claims, 267
Effect of cross-claims or counter-claims, 267
Effect of set-off against judgment creditor, 267
Judgment against, may be set off, 267
What debts subject of, 267
Cost of judgment included, 207
Form of judgment when debt not due, 267
Where Primary Creditor's Claim not a Judgment,
Summons to issue, 267
Court in which proceeding to be taken, 267
When returnable, 267
When garnishees not resident in Ontario, 268
Who deemed agent in such case, 268
Service of, 268, 269
judge may dispense with, 268
effect of provision, 269
Judgment in such Cases,
What judgment to be given, 269
Debt due by garnishee and primary debtor to be proved, 270, 273
Against garnishee and debtor may be separate, 270
Final judgment against debtor necessary, 270
Subject of appeal in appealable cases, 216, 270
Married women subject to, 270
Provisions as to speedy judgment not applicable, 270
General Provisions, 270
All parties interested may shew cause and set up any defence, etc.,
270, 272
Application of this provision, 272, 273
[ .^JipW" ! !"
464
INDEX.
i
1
I
( ■
,, ■'
-Garnishment — Continued.
Set-off would be a de'ev .,:i
Grounds for not pay' ^4 over, 272
Primary debtor or garnishee may set up statutory or other defence,
271
Or admit liability in whole or part, 271
Particulars in such cases to be filed with clerk, 271
Notice of, to be sent by clerk to other parties, 271
How primary creditor should proceed on receipt of notice, 271
Effect of omission by such parties to give notices required of them,
271, 273
Costs of notice to be costs in cause, 271, 273
Proceedings at hearing, 272
Duty and liability of garnishee when cause exists why debt should
not be paid, 272
Remedy of third party where money paid to primary creditor, 272
How claimant should proceed, 273
Service of summons to bind debts until hearing, 273, 274
Effect of adjournment of hearing, 274
Payment into court may be made, 273, 274
When sucli payment does not protect garnishee, 274
No payment to be made by garnishee to primary creditor before
judgment against debtor, 274
Judgment where primary creditor has assented to payment to
another, 274
Execution not to issue until garnishee's debt due. 276
Judgment not to be given until summons and memorandum with
proof of service filed, 27(5
After Judgment —
Debts to continue bound, 274, 275
Payment by garnishee to discharge claim of debtor against him,
274
Duclvirge of Garnishee —
Effect of payment made under order of court, 274, 275
Vests, 275
Liability of garnishee for, 275
Of primary creditor, how payable, 275
Application to Discharge Debt from Attachment —
Who may apply for order, 276
When order may be made, 276, 277
What amounts to payment, 277
If money paid restitution not enforceable, 277
Protection of garnishee paying in obedience to legal process, 27(>,
277
Security from Primary Creditor —
When security may be ordered, 277, 278
her defence,
ice, 271
ed of them.
debt should
reditor, 272
J74
3itor before
payment to
ndum with
gainst him,
recess, 27<i,
INDEX.
46£f
Garnishments— Continued. ,
Nature of security to be given, 278
Action on the bond, how and where to be brought, 278, 354
Effect of payment of amount before action, 278
Adverse Claims —
Adjudication upon, 278, 281, 282
How jurisdiction limited on, 279
What questions subject of, 279
When claim may be adjudged void, 279
Proceedings necessary in such cases, 279, 281, 282
Transactions prior to debt not affected, 279
Assignee for benefit of creditors not entitled to money garnished,
279
Remedy where debtor harassed by conflicting claims, 282
Right of sheriff under attachment issued against debtor, 279, 281
Rights of sub-contractor in respect of Qfsbts due by contractor, 279
The Creditor's Relief Act, 280
Attaching orders by sheriff or creditor, 280
When provisions become operative, 280, 281
If attachment proceedings complete and money paid over, sheriff
has no right, 281
Or if paid in and out of court before levy, 281
If not paid out, rights of attaching creditor not clear, 281
Proceeds of garnishment in court to be paid to sheriff for distribu-
tion, 279, 281
Effect of provisions, 281
Proceedings by sheriff applicable only to debtor in bis own county,
281
Adjournment^
Power of Judge to postpone proceedings, 282
New trial may be granted under, after fourteen days, 282
Debt Attachment Book, 282
To be kept by clerk, 282
Entries to be made in, 282
Copies of entries may be taken by any one free of charge, 282
When entries receivable in evidence, 283
General Rules and Orders —
Authority of board of County Judges to frame, 389, 390, 391
Proceedings of board, 392
To be certified by board to High Court, 392
To be approved of by Judges of the High Court, 392
Effect of, when approved, 392
Judges to transmit copies to Lieutenant-Governor, 392
Power of Legislature with respect to, 392
See Board of County Judges
D.C.A. — 30
^"fTPKfl
466
INDEX.
General Sessions —
Justices in, may certify to Lieutenant-Governor for regulation of
number of sittings in certain cases, 91
Notice and proclamation to be made in before alteration in divi-
sions, 10, 11
Notice and proclamation in, in case of separation of county, 14, 15
Goods —
Account settled by part payment in, not matter for prohibition, GO
Where contract payable in. Judge may order payment in money,
79
Title to, cannot be acquired by purchase in public market, as
against owner, 83
When obtained by fraud, innocent purchaser of protected unless
vendor convicted of false pretences, 83
liejjlevin of, (nee Replevin), 82, 84
Identification of, in replevin, 8t
Liable to execution [see Execution), 293, 315, 336, 310
Equity of redemption of mortgagor in, liable to execution {see
Execution), 314
Rights of purchaser in such cases, 314
Gbowino Crops —
Subject to interpleader, on claims of mortgagee, 70
Deemed goods in replevin, 84
GuAiiANTKE Company —
May be surety tor officers, 26
Guardian ad Litem —
To be appointed in action against lunatic, 135
H.
Habeas Corpus —
For attendance of witness confined in gaol, 191
When appellate court will review committal on, 372
Hearing (See Trial)
Every subject of Her Majesty entitled to, 36, 266
Judge may adjourn, 167
On summons to garnishee in attachment proceedings, 266
What included in, 266
Hereditaments —
Action for not maintainable in D. C. , 54
Definition of, 70
High Court, {see Rules of High Court)
Rules of as to procedure, not applicable to D. C, 91, 92
Principles of practice may be followed in certain cases, 91, 393
iMs
INDEX.
467
High Codrt — Continued.
Transfer of action to, where defence involves matters beyond
jurisdiction, 99
Hire of Goods —
Replevin of goods in default of payment under terms of hire
receipt {see Replevin), 82
Holiday —
Days included in, 21
Judgment entered on, may be questioned, 21
Service on, good, 157
but not on Sunday, 157
When last day for giving security in appeal falls on, may be given
on following day, 224
Hostile Witness —
Examination of {see Witness), 191
Hotel —
Sitting of court not to be held in, 7
HOCSEKEEPEK —
Who is a {see Appeal), 225
Husband and Wife {see Married Women) —
A receiver may be appointed of husband's interest in lands of wife
dying intestate, 247
I.
Illegal Prommissory Notes —
Action for, not maintainable in D. C, 53, 68
See Jurisdiotion
Illness or Absbnce of Judge —
Who to preside in case of, 19
Immediate Execution —
Judge may order {see Execution), 309
Infant —
Cannot be surety, 27
Not bound by fraudulent representation as to age, 27
May sue for wages in D. C. up to $100 : 99
Not restricted from suing for other matters, 99
In suit for other matters, next friend necessary, 99
Effect of contract with parent, 100
Cannot be common informer, 100
Wages earned by, belongs to himself, 100
Effect of Statutes of Limitations in case of, 181
'WW'lf^
■IP
468
INDEX.
6h c<
< '
tev'^
• U:
4.
■ iA...
•— ».
f—"
»-v»:
•^*,«
«'•»,
Injunctions —
Provisions of Judicature Act respecting, 88
Power of Division Courts to grant, 90
Enforcement of, 90
In what cases issuable, 92
Undertaking as to damages on application for interim order, 93
Damages on, 93
Effect of death of defendant, 93
Mandatory —
Definition of, 93
"When granted, 93
Breach of—
Remedy for, 93
Person assisting, is liable, 93
Discharge of party committed for, 9!1
Costs, 93,94
Impbisonment —
Of debtor under warrant of commitment, 332
How time computed, 333
Not to extinguish debt, 334
Inspector OF Division CoDRTs —
To join in alteration of limits of Division Courts, 10
On separation of junior from senior county, to join in appointment
of courts, 12
To join in regulation of limits on separation of a county, 14
Record of alterations to be sent by clerk of the peace to, 16
On report of, clerks and bailiffs may be dismissed, 23
May grant leave of absence to clerk or bailiff, 24
To approve of appointment of deputy, 24
Power of legislature to appoint, 24
To have access to clerk's accounts of suitor's moneys, etc., 38
Appointment of, 50
Duties of, 50
To make personal inspection of courts, 50
To see that proper books are provided and kept, 50
That duties of officers efficiently performed, 50
When directed by Lieutenant-Governor to ascertain that proper
security given, 50
To report on all matters to Lieutenant-Governor, 50
May institute enquiry into conduct of officers, 50
Power to take evidence and summon witnesses, 50
May compel production of documents, 51
Scope of powers and discretion on such inquiry, 51
How discretion to be exercised, 51
Clerks to produce books and documents for inspection, 51
INDEX.
469
Inspectob of Division Covrtb —Continued,
Clerk or bailiff to report to, when required, 51
To be informed by officer of appointment, 52
And of change of suretieB, 52
May require officers to produce certificate of filing bond, 52
Annual returns to be made by clerks to, 53
Insuiiance —
Actions on premium notes of, where to be entered and tried, 115
Appeals in mutual insurance cases {see Appeal), 217
Instalments —
Judgment may be ordered to be paid by {see Judgment), 211
Interest, {see Disqualifying Interest)
Of officers in proceedings, 16
Of Judge, 18, 19
Prohibition where Judge interested, 59
Inteuest of Money —
On judgments of Courts of Record, 4, 211
On judgments in Division Courts, 4,55,211, 297
Should be claimed in particulars, 147
Unless over 6 percent, rate need not be stated, 147
Interest by statute, 209, 210
When recoverable —
On debts, 209
On implied contract to pay, 209
On partnership accounts, 209
By surety, 209
By agent on advances, 209
On breach of agreement, 209
On account stated for money lent, 209
Or between merchant and merchant, 209
On award for sum certain, 209
On money improperly retained by sheriff, 209
Or improperly used by agent, 209
Where recovery sought against estate only, 210
On arrears of annuity, 210
IVhen Not Recoverable —
Money due on account stated, 209
On agent's accounts, 210
Computation of —
Time from which recoverable, 210
On debts, certain and overdue, 210
On demand, 210
By way of damages in troopass or trover de bonis asportatis, 210
1
470
INDEX.
I ■
•Sr.,
Interest of Moi,j!:\— Continued. • ' . *
On polioiea of ineurance, 210
Bills and notes, 210
On verdict, 211
Need not be claimed nor special dama^^e laid, 210
Compound, not allowed except on express or implied contract, 210
Rate of—
On various debts and contracts, 210, 211
Excessive rate paid after maturity not recoverable back, 211
Bate chargeable by banks and other companies, 211
Appropriation oj PaymentH —
Effect of payment'not specially appropriated, 211
Interpleader —
Not removable by ccrt/onir/, 107 '
Appeal —
Evidence need not be taken in writing, 165
When appeal will lie {nee Appeal), 217, 221, 222, 304
Agreement not to appeal, ICC
Jury —
Issue in, may be tried by (see Jury), 233
Conditions on which right to jury depends, 238, 234
The Issue In —
Question to be tried, 233, 3C0, 361
Onus of proof — when claimant in possession, 233, 358
when stranger in possession, sr)*^
Creditor may shev/ claimant has no title, ' >3, 35-
Action not removed from control of " {CO
Debtor harassed by conflicting je claims m; apply for,
282
Only creditors who are parties to b. ire benefit, 302
Claims of landlord and others in re-spcct c ^oods seized, 355, 356
Claim —
How adjusted 356
What claim must be, 357, 358
May be brought before action, 357
When bailiff cannot bring, 358
When bailiff should apply, 358
The Crown cannot claim in, 358
Goods passed to assignee, effect of, 358
Possession by claimant prima facie evidence of title, 358
Parties to, 359
Applies to foreigner, 359 '
Growing crops, subject of, 359
Goods seized under revenue laws, 359
Security to bailiff, 359
INDEX
471
)ntract, 210
iNTEnPLEADER — Continued,
Trespass may be brou({ht peu(lin({, 359
When more ^oods seized than claimed, 359
Ratification by creditor of bailiff's detention, 359
Withdrawal from possession, effect of, 359
Abandonment, liability of bailiff for, 359
Goods to be seized before application for, 3G0
Indemnity —
Bailiff not bound to accept, 358
effect of acceptance of, 358
Proceeds or Value of Good* —
When interpleader may be brought for, 3t)0
Bxj Landlord for Rent —
Landlord's claim for rent, when bailiff should interplead, 360
Application for —
Practice as to, 360
Form of, 360
Names of all creditors must be given, 357, 364
Omission of|creditors, effect of, 364
Execution creditor not liable for seizure, 361
Authority of solicitor as to, 361
Cases in which adjudication to be made, 361
Stay of Proceedings
When actions re8pectin}» the subject matter may be stayed, 356
Regularity of proceedings not to be inquired into on application
for stay, 361
When actionjof replevin for same goods will be stayeil, 301
Crder of Judge, effect of, 361
Costs of proceedings, 361, 362
Proceedings —
Several executions or attachments, 357, 3(51
In High Court, duty of sheriff as to D. C. creditors, 'Mi
Effect of interpleader summons, 364
Right of bailiff to counter-claim in action for damages, 364
Jurisdiction —
On summons from wrong court, Judge has no jurisdiction, 362
NeiD Trial —
When application must be made, 357, 363, 304
Effect of omission to move for within proper time, 302
Who may apply for, 364
Terms of granting, 364
Adjudication —
Judge must adjudicate in proper cases, 356, 362
Decision cannot be altered by Judge, 301
Ddnmges —
Judge may try question of, to any amount, 304
■''ffpilPPP"'**?
472
INDEX.
K
o;
luTERPLEKDER— Continued.
What claims for damages included, 363
Claim for, to be stated in issue, 363
Effect of adjudication on other questions only, 363
Stay of proceedings in actions for, 363
What recoverable, 363
Protection of Bailiff —
Efftiot of interpleader proceedings, 363
Cases in which b aliff entitled to, 363
Insolvent —
Surety becoming, new bond to be filed by officer, 33
Meaning of, 32
When goods of, may and may not be replevied from assignee, 80, 82
Intoxicating Liqmors —
Action for, not maintainable in D. C. when drunk in tavern, etc., 53
Nor for notes ^^iven therefor, 53
iBBKOUIiARITY —
In proceedings not subject of prohibition, 60
In service of summons, effect of, 131, 132
Waiver of, 131, 132
*.
W-
if:
Joint Debtors (see Partners) —
Judgment against one, bars claim against others, 3, 140
rule applicable to married women, 4
cannot to set aside, to evade rule, 140
Release to one, releases all, {see Sureties), 29
Contribution by ($ee Sureties), 30, 141
Assignmentof judgment to judgment debtor, when compellable, 141
On motion for speedy judgment against, judgment may be ordered
as to some, and others allowed to defend, 154
When party may be added as defendant (see Adding Parties), 142
Joinder of Causes of Action —
(See Combining Causes of Action), 74, 78
Judicature Act —
Provisions as to Equitable Belief (see Relief), 88, 89
See HiOH Coubt —
Judicial Officers —
Excess of jurisdiction by, 18
Omissions by, do not invalidate proceedings, 13
INDEX.
473
ignee, 80, 83
f^rn,etc.,53
ellable, 141
be ordered
irties), 142
JODOE —
Appointment of, 17
When courts to be held by, 5
May alter time and place of holding, 5
Discretion of, 5
may be compelled by mandamus to exercise, 5
May apportion cost of accommodation in certain cases, 7
With sheriff, etc., to appoint and alter divisions, 10
To notify others of application to change divisions, 10
Establishment of courts by, 11
Appointment of divisions on separation of county, 12-17
Decision of, when a judgment, 13
To preside over courts, 17
Appointment of Junior Judge not to excuse, 17
Junior or deputy Judge may preside, 17
Not answerable ior erroneous judgment, 17, 18, 54
Responsibility where jurisdiction wanting, 17
Liability of, generally, 17-19
Entitled to notice of action, 18
No liability, when jurisdiction not apparent, 18, 54
Acts beyond limit of authority, liability for, 18, 54
WorHs spoken by, at trial, not actionable, 18
Disqualified from acting by interest, 18, 19, 59
Judicial acts alleged to be done maliciously, not liable for, 18
Signature of, what requisite, 18, 31
Functions not to be delegated, 11, 18
Private communications to, improper, 19
Attachment against for disobeying certiorari, 19
Not liable to arrest on meme or final process, 19
Must attend on subpoena ducen tecum, 19
Cannot practise as counsel, attorney or solicitor, 19
Entitled to fees as arbitrator though named as Judge, 19
Efifeot of death on cases pending, 19
Senior Judge to hold court when expedient, 1,7, 19
To determine procedure when several courts are held at same time,
19
Illness or absence of, who to preside, 19
Of another county may act for, 19
May appoint deputy (»ee Deputy Judge), 19, 20, 21
Lieutenant-Governor to be notified, 20
May perform judicial duties in other counties, 20
Cannot preside at General Sessions of other counties, 20
Duration of appointment of deputy, 20, 21
Lieutenant-Governor may annul, 21
Meaning of, includes Junior Judge, 20
In absence of, clerk may adjourn court, 21
474
IXDEX.
I,
I- ;
I :
ii
L.
I
ill
Judge — Continued.
May suspend or remove clerk or bailiff appointed by Judge, 23
Responsibility of, as to performance of officers' duty and security,
23, 31
May suspend clerks or bailiffs, 23
To report suspension to Provincial Secretary, 23
To notify Provincial Secretary of vacancies, 23
May remove deputy clerk or deputy bailiff, 26
To fix amount of security to be <?I ven by officers, 26
To approve such security, 26
Approval to be in writing, 31
Responsibility as to security judicial only, 31
To notify officers of death, withdrawal or insolvency of surety, 33
To be notified by surety intending to withdraw, 33
To approve new bond in such cases, 34
To suspend clerk if new surety not furnished, 34
To report thereon to Provmcial Secretary and inspector, 34
See Sureties.
To revise taxation of costs (see Costs), 38
To have access to accounts of fines and suitor's moneys, 38
To be furnished with account of suitor's moneys when required,
39
Jurisdiction of (see Jurisdiction), 53
Cannot exceed statutory authority, 54
When conditions precedent to its exercise absent, is coram nonjudice,
54
Liability of, to prohibition (see Prohibition), 55
Liability of, to mandamus (nee Mandamus), 64
Cannot assume functions of jury, 58
Nor grant new trial after fourteen days except in garnishee pro-
ceedings, 59, 212
Decision of, on question of jurisdiction, 61
Powers of, within jurisdiction, 61
When no jurisdiction, liable to prohibition, 61
Where decision on mixed question of law and fact reversed, 61
Decision of, as to question of title to land (see Action for Recovery
of Land), 68, 69
May make orders agreeable to equity and good conscience, 73, 78
Power of, under this provision, 78
To hear and determine questions of law or fact in a summary way,
73
May order payment in money though contract for payment in
kind, 79
When Superior Court refused to disturb finding, 85
May sue or be sued in adjoining county, 125
May order substitutional service, 133
INDEX.
475
of surety, 33
ainnonjudice,
arnishee pro-
Judge — Continued,
May order parties to be added as defendant, primary debtor or
garnishee, 142
May order statement to be furnished of names of partners, 148
May set aside judgmenc by default, 146
May order speedy judgment, 153
On motion for speedy judgment may order defendant's examina-
tion, 158
May suspend execution and order payment into court or otherwise,
154
May enter judgment against one defendant and allow co-defendant
t j defend, 154
May give leave to defend conditionally, 154
May give leave to dispute claim at any time before judgment, 161
To try cause and to give judgment {see Trial), 162, 163
Cannot try cause in plaintiff's absence, 164
Proper course in such case, 164
May give judgment in default of appearance by defendant in
court, 166
May adjourn hearing of cause, 167
May issue order for commission, 105
May postpone or adjourn trial, 169
May exclude persons from acting as agent in certain cases, 170
May give decision inptanter or postpone judgment, 208
Cannot alter decision at will, 208
May alter it before entry, 208
May order times and proportions in which judgment to be paid, 211
May order same to be paid into court, 211
To take evidence in writing in appealable cases, 164, 165
May grant new trial, 211
May, on application for new trial, give judgment, 214
May postpone execution in certain cases, 215
Appeal from judgment of {see Appeal), 216, 219
May grant stay of proceedings on appeal, 222
May lix security to be given in such cases, 222
May fine clerk of municipality for breach of duty, 2i59
May call tales when jury panel exhausted, 240
May order jury to try any disputed facts, 240
To dispose of case himself unless jury summoned, 210
May discharge jury not agreeing, 241
Power of, as to adjournment, amendment, etc., in garnishee proceed-
ings {see Garnishment), 282
May refer to arbitration, with consent of parties, 283
May set aside award, 287
Authority of, as to costs, 289
Power of, over costs where court has no jurisdiction, 289
47ij
INDEX.
I..
».».,
Judge — Continued.
Power of, over costs not otherwise provided for, 290
Power of, over process of his owa court inherent, 852
May set aside attachment improperly issued, 35'i
Power of, to award damages in interpleader, 357
May fine for contempt of court, 809
May adjudicate on complaints against officers, 373, 375
Judge's List and Jury List —
Causes to be set down on separate lists, 239
Jury list to be tried first, 240
Judge's Notes op Evidence. {See Appeal), 164, 165
Judgment —
Effect of, 3-5
To have same force and effect as of Courts of Record, 3
What proved by, 3
Bars action for same cause in other courts, 8
Against agent, bars action against principal, 4
Plaintiff not allowed to vacate in such cases, 4, 140
General rule and exceptions in such cases, 4
Admissions implied by, 4
Estops defendant from denying indebtedness, 4
from denying its correctness or the execution founded
thereon, 292
Obtained by covin no bar, and does not effect third parties, 293
What it is necessary to shew in order to conclude plaintiff by
estoppel, 293
Would be aided against equitable estate of debtor, 293
Invalid if obtained by untrue statement, 4
Bears interest, 4, 55, 211, 297
May be enforced by action, 4, 147
Of higher court enforceable in D. C, 4, 53, 147, 148
Costs in such cases, 4
When barred by statute of limitations (xee Statutes of Limita-
tions), 4
Effect of revivor, 4
When execution issued wtthin 6 years revival not necessary, 5
When application to revive to be made, 5
Action on foreign judgment, 5, 148
Effect of personal service in such action, 132
Of D. C. not enforceable in Superior Courts, 5, 291
M&y be recalled and a term imposed before entry, 5
When decision of judge becomes a, 13
Entered on holiday may be questioned, 21
Clerk to keep record of, 37
INDEX.
477
52
sm
•d, 3
ution founded
parties, 293
le plaintiff by
m
es of Limita-
loesgary, 5
JuDOMSNT — Continued.
To be registered by clerk, 38
Erroneous : Judge not liable for, 17, 18, 54
. No bar to action where court without jurisdiction, 56
Unwise or unjust not subject of prohibition, 60
May order payment in money though contract for payment other-
wise, 79
In replevin, may be divisible, 80
Form of, in action for balance of unsettled account, 106
Against clerks and bailiffs, how enforced, 124
Against one of the several partners or joint-debtors, 140
bars action a>;ainst others, 3, 140
cannot be set aside, 140
assignment of, when compellable, 141
Against iirm (see Partners), 142-145
Motion for (see Speedy Judgment), 153
Against married women (see Married Women), 157, 401
Leave to defend may be given at any time before, 161
By default (see Judgment by Default), 145-152
May be entered by consent on withdrawal of defence, 162
At trial to be given by Judge, T62
When pronounced, 164
When subject of appaivl (see Appeal), 165, 216
When defendant does not appear, 160
to be fin»xl and absolute, 106, 107
only to be entered on personal service, 167
May bo given instanter or postponed, 208
procedure when postponed, 208
when new trial may ba granted in such cases, 212
Cannot be altered at will, 208
But may be before entry, 208
Judge may order times and proportions of payment, 211
May be ordered to be paid in instalments, 211, 293, 327
But not so as to postpone execution more than 50 days, 215, 293
May be ordered to be paid into court, 211
Execution on, not to issue within 15 days unless otherwise ordered,
211,292
May be set aside for irregularity, 212
A stranger cannot apply, unless on the ground of fraud and collu-
sion, 212
May be given on application for new trial in cases heard by Judge,
214, 215
But not after trial by jury, 215
Delay of in order to facilitate appeal, effect of, 220
Not to be post-dated so as to extend time for appeal, 220
When obtained by fraud appeal not the remedy, 220
Wpwp
m
,H'
f.
4
i,/?
I. «;r-
•Mm'
o.
478
INDEX.
JuDouEKT — Continued.
When to be given in appealable cases, 220
In appeal (see Appeal), 230
Where deemed to be recovered, 204
In garnishee proceedings after judgment {gee Garnishment), 266,
267
In garnishee proceedings before judgment (see Garnishment), 269,
270
Not to be given until summons and memorandum with proof of
service filed, 276
Execution to be stayed until debt due, 276
Not to be given without proof of debt, 273
On award of arbitrator (see Arbitration), 285
Costs in pction on, not to be allowed without order of judge, 291
Right to bring action on, in other coui'ts, 2'Jl
Not to be set aside for matter of form, 292
Not removable to Superior Court, 293
Verbal order of Judge, sitting in court, is a, 293
Revival of, on death of party, 308
Transcript of (see Transcript), 305, 310
In attachment proceedings —
Where excess over SlOO abandoned, 345, 346
When debtor does not appear, 350
how enforced, 3")0
When summons served personally, 351
Against bailiff
In action for negligence [see Bailiff), 375, 376
Cross-judgments —
May be set off, 303
Not to prejudice solicitor's lien, 303
JUDGMKNT BY DEFAULT —
If defendant suffers, Judge not liable for absence of jurisdiction, 18
Against firm, effect of (see Partners), 145
In prmeedings by special summons —
In default of notice disputing claim, 145
Actions and claims within scope of, 146, 147
Requisites of claim and service, 145, 146, 148
May be entered against one of several defendants served, 146, 148
effect of, 148
When execution may issue on, 148
To be entered by clerk within one month from service, 145, 150
effect of omission to enter in time, 150
Setting aside —
Grounds for, 146, 148-150
Imposition of terms, 149, 150
ishment), 266,
ishment), 269,
with proof of
)f judge, 291
urisdiction, 18
irved, 146, 148
oe, 145, 150
INDEX. 479
Jddoment in Default — Continued.
For irregularity in service (see Service), 131
Order for, must be served forthwith, 150
On failure to appear in court—
Judge may order, 150
To what cases applicable, 150, 151
Proof of claim and service, 150-152
Is discretionary, 152
Costs on, 152
Not applicable to attachment, 152
Consequences and effect of, 152
Leave to defend —
May be given at any time before, 161
Judgment Debtor (see Judgment Summons)—
Examination of —
Summons may issue for, 320
May take place at hearing, 334
On judgment entered on transcript to countv court, 313
Effect of refusal to attend in such cases, 313
Judgment Summons —
Liability of Judge on order for commitment to wrong gaol, 17
Examination of judgment debtor, 320
Who entitled to issue, 320, 321, 322
May be had on judgment for costs, 321
Execution need not issue prior to, 321
Effect of issuing vexatiously, 321
Liability for proceeding against wrong man, 321
Court out of which summons to issue, 320
Grounds for, 322
Application for, to be in writing, 333
Affidavit for—
Requisites of, 321, 323
Who may make, 321, 323
Is a condition precedent to examination, 323
Effect of order of commitment in absence of, 323
May be waived by appearance of debtor, 323
Defective affidavit, effect of, 323
Against Firm —
Liability of partners to examination, 322
Service of —
Manner of service, 320, 322
Affidavit of, 322, 326
Form of affidavit, 322
Time of asrvice, 326
Procedure when not served, 322
480
INDEX.
;:•
JcDOMENT Summons -Cojitiniied.
Examination —
Time and place of, 323, Sii
May be in Judge's chambers, 324
What debtor bound to disclose on, 323
To what period restricted, 323
Other witnesses may be examined, 324
Costs, 321
Procedure necessary for re-examination of party examined and
discharged, 324, 325
What deemed a full disclosure, 325
Not applicable to corporations, 322
Nor to married women, 322
As to liability of married women to examination (.•.■ce Blarried
Women). 322
Non-attendance —
Consequence of refusal or neglect to attend, 325
Requisites of service in such cases, 32G
Sufficient reasons for, 326
Cases only in which debtor may be committed, 329
Second summons not now necessary, 330
Requisites of service, 330
Costs may be allowed debtor in certain cases, 329, 330
Refusal to he sworn —
Effect of, 325
Unsatisfactory anstcers —
Effect of, 325, 32G
What deemed to be, 326
False pretences fraud a breach of trust —
Obtaining credit by means of, 325, 326
Meaning of, 326, 327
Fraudulent acts justifying commitment, 327
Making gift delivery or transfer of property —
When ground for committal, 325, 327
Is a criminal offence, 327
Cases within provision, 327
Sufficient means and ability to pay —
Refusal or neglect to pay in such case, effect of, 325, 326
What deemed to be, 327
Order for payment —
May order payment of whole debt or by instalments, 326, 3'J7, 334
If not for instalments, sufficient means, etc., must be found, 327
Cannot be made for alternative causes, 327
Discretionary rowers of Judge, 327
Order for committal cannot be embodied in, 328
Judge may rescind, alter or amend at any time, 333
INDEX.
481
amined and
Judgment Scmuons — Continued,
Order for Committal —
Kequiaites of, 328, 329, 330
Judge's endorsement on summons held to be, 830
Subsequent order illegal, 330
Minute taken by clerk would not be, 330
Is not process for contempt, but limited execution, 333
Cases in which order may and may not be made, 328
Not bad for stating offence in alternative, 328
But would be if made in alternative of payment or imprisonment,
328
May be made as often as offence committed, 328, 329, 334, 335
If postponed debtor must be again heard, 328
May be made in presence of debtur without further summons, 328
Not applicable to resident out of jurisdiction, 328
Cannot be embodied in order to pay, 328
Seconri order may he made when first not acted on, 328
Jurisdiction of High Court to review order, 329
Warrant of Commitment —
To be issued by clerk, 380
Requisites of, 330, 331
When issuable, 330
Liability of Clerk iu respect of, 330
Habeas Corpus Act applicable to imprisonment under, o30
Execution of Warrant —
Who may execute, 330, 331
Duties of officer in respect of, 331, 332
Liability of officer in respect of, 331, 332
Improper for bailiff to discharge debtor, 332
Constables and peace officers to aid in, 332
Refusal to aid a misdemeanour, 332
Liability of goaler in respect of, 333
Gaoler cannot receive debt and discharge prisoner, 333
How term of imprisonment computed, 333
Life of warrant, 328, 330
Effect of plaintiff compounding debt with debtor, 328
Discharge from Custody —
How obtained, 333
Examination of Debtor at Trial —
When defendant personally served Judge may examine, 334
Order may be made as in case of judgment summons, 334
Imprisonment —
Debt not to be extinguished by, 334
Fresh execution not to issue during, 335
Return by Clerk —
To be made annually of number of persons committed, 335
D.C.A. — 31
482
INDEX.
5.'
^<<Ht
I-
*.i..
Junior County—
Divisions to continue on separation from senior county until
altered, 12
Disposal of papers, etc., in such cases, 14
Proceedings to continue in senior county in certain cases, U
Junior Jodoe —
May preside at courts, 17
To hold Division Courts subject to arrangement with senior
Judf?e, 17
Appointment of, not to excuse senior Judge from presiding when
expedient, 17
The word " Judge " includes, 20
INIay appoint deputy (nee Judge), 20
Actions by or against may be brought in adjoining county, 125
Jurat —
Requisites of (xee Affidavit), 119
Omissions or alterations in, effect of, 119
Jurisdiction —
Questions of, affecting appointment of place of sitting, G
Liability of Judge where none apparent (see Judge), 19, 54
If judgment by default. Judge not liable for want of, 18
Duty of clerk, where absence of clear, 36
Resident of foreign country not subject to, 36, 134
Except where he has an office and an agent in Ontario, 134-137
Of Division Courts, limited, 53
r'.very circumstance to give, must appear, 54
Remedy where none exists (gee Prohibition), 54
Remedy when Judge refuses to adjudicate (see Mandamus), 54
When claim for wages not maintainable, 54
Liability of Judge in such cases, 54
Effect of agreement to refer disputes to arbitration, 54
Not ousted by action for same cause pending in High Court, 55
Not admitted by defendant appearing to object to, 55
In actions of detinue, 55
When none. Judge can neither amend nor adjourn, 55
In action of trover for a deed, 55
In actions on judgment of High Court (see Addenda), 55
Cases in which prohibition may be applied for (see Prohibition), 55-
65
When defect apparent, 56
When defect not apparent, 56
Acquiescence in, 58
When exception must be taken to, 58
Denial or perversion of right, 58
INDEX.
483
]nty until
3, U
1th senior
ding when
ity, 125
5i
, 134-137
us), 54
ourt, 55
ibition), 55-
JcRiSDicTiON — Continneil.
Amendment to give, 59
When Judge interaated, 5!)
When dependent on contested facts, fiO
Cases in which Dijiiioii CourtH not to have —
gambliiig debts, 05
spirituous Hquors, (i(i
illegal promissory notes 68
actions in which title ii vud in question, 68
questions relating to Toll, Custom or Franchise, 71
validity of devise, etc., disputed, 71
malicious prosecution, libel, slander, criminal conversation,
seduction, breach of promise of marriage, 71, 72
Actions against justices of the peace, 73
See Particular Titles
No assent can cure total want of, 56, 125
Effect of absence of notice made a condition precedent to, 59, 2r)6,
257
Distinction between excess and improper exercise of, 59
Where discretionary prohibition will not be granted, 59
Onus of proving on application for prohibition, 62
Ousted by question of title to leasehold, 71
In replevin (see Replevin), 79
Actions to tchich Jurisdiction Extended —
In replevin {see Replevin), 79-86
Action on replevin bond, 87
In actions for penalties and forfeitures, etc., 88
In respect of counter-claim, 98
In actions for balance of unsettled account (see Unsettled Account),
102, 105, 106
Abandoning excess to give, 105
Courts having, to have full power, 109
Personal actions, 73, 75
Definition of, 75
What causes of action are personal, 75
Debt or contract, where amount or balance claimed does not exceed
»100: 73. 75, 102
Where account in the whole not exceeding $400 : 75, 102
Effect of reduction by credits, 75
by set-off, 75
Claims deemed within jurisdiction, 75
Where amount ascertained by signature of defendant —
In any claim not exceeding $200, .lignature of party will give, 75
What is suffijient acknowledgment, 75
Table of cases, shewing decision of courts thereon, 76
Amount must be ascertained before action, 77
484
INJ)EX.
>
( •
I.;
I,
m-i...
JiiRismcTiox — Continiivl.
Costs, if suit brought in IliK'i Court, 77
No more tlmn S'200 rccoveri\bU', 77
If interest added it must be abandoned, 77
excess may bo abandoned at trial, 7H
Wliat sij^naturo sufticicnt, 77
if by aficnt, 78
Assignee of debt may maintain action, 78
Abscondiuij Del/tmx, 74
Claims against must not exceed ^lOG, unless ascertained by signa-
ture, 74, 7>S
For what amount attachments may issue, 74
Combining Cuiises oj' Actions, 74, 78
In what actions and for what amounts claims may be combined,
74, 78
Parties, 78
Finding of court to be separate, 75
DivisioHK ill which actiona majf be entered and tried {nee Territorial Juris-
diction), lO'J-120
Against clerks or bailiffs, I'iiJ, 124
Against Judges or stipendiary magistrates, 125
Against foreign corpoi'ations, tirms, or individuals, 130, 137
On application for new trial {xee New Trial), 212
In garniahnient proceedings {see Garnishment), 250, 257
notice disputing, when necessary, 25(5, 257
JUKORS —
Who may be, 234, 235
Provisions of Jurors' Act respecting, 235
Voters' lists to shew persons qualified as, 235
How selected, 235
Effect of iniproper selection, 234, 236
Irregularity may be waived, 234
Clerk of municip»lity to furnish D. C. clerk with copy of lists, 236
Proceedings against clerk of municipality for refusal to furnish, 238
penalty therefor, 239
How summoned, 237
Service of, to be verified by oath of bailiff, 237
Right of challenge, 237, 238
Penalty for disobeying summons, 238
Service as in D. C. not to be exempt from serving in Courts of
Record, 238
Fees of —
Provisions not applicable to Judge's jury, 243
Conditions entitling to, 243, 244
Persons sworn under a tales entitled to, 244
How and by whon?. paid, 243
INDEX.
4H5
Jury—
Juflj^e cannot assume functions of, 58
XTnlesH le^jally demanded, Judjio to try question of law and fact, 73
Right to extended to replevin, 85
Adjournment of trial in ciiaoa tried by, KU)
Jud^ineHt cannot bo given on application for new trial in such
cases, 215
Nonsuit may be directed at trial when there is no evidence to
submit to, 213, 240
New Tri<il —
Miiy be ^{ranted, 213, 215
Grounds of, 213
IU(jhi til —
Cases in which jury may b-j required, 232
Condition on which right depends, 232
If conditions complied with, party cannot bo deprived of rif^ht, 232
Effect of withdrawal of juror, 212, 233
Notice of —
When and how to bo Ki^'eHi 233, 234
Judge cannot extend time for giving, 233
Is a condition of right to, 231
Must be in writing. 231
In Iiiterplfiiih-r —
Right to, 233
Sunimoniiiij —
Payment of fees by party applying, a condition of right to, 234
Summoning and selecting jury {see Jurors), 235, '237
Not less than 12 persons to be summoned, 237
Challenging, parties entitled to, 237
grounds for, 237, 238
Trial By—
Causes to be set down on separate lists, 239
Jury list to be disposed of first, 240
Five jurors to be empannolled, etc., 210
Oath of, 240
Verdict to be unanimous, 240
When panel exhausted Judge may order a tah.-, 240
Judijc'g Jury —
May be ordered to try disputed facts, 210
Procedure thereon, 240, 241
Effect of, 241
Diicharijiny Jury —
On failure to agree, 241
Cause mvy b^ adjournei to next court, 241
Proceedings thereon, 241
^"i"
486
INDEX.
Jd«y — Continued.
Jury Fund — •
How and by whom payable {see Jury Fund), 242
Fees of Jurors (u^. Jurors), 24S, 244
Jury Fund —
How and by whom payable, 242
Return thereof to be made annually to county treasurer, 242
Returns in cities formmg separate divisions, 243
Justices of the Peace —
Action against, not maintainable if objected to, 54, 72
Adjudication by, on claim for wages bars action in D. C, 54
Notice of objection, requisites of, 72
effect of, 72, 107
Costs, where action brought in higher courts, 72
May take affidavit and issue warrant of attachment (see Abscond-
ing Debtor), 342
Proceedings in such cases, 342, 343
Liability of, for attachment improperly issued, 342, 3i3
No fees allowed to for issuing attachment, 342
How fines enforced by, 377, 378
zr-
I..:
tX >ii^
Land (nee Action for Recovery of Land)
Action in which right to, in question not maintainable in D. C,
54, C8
Action for overflowing may be brouijht in D. C, 70
Landlgbd— ("ee Interpleader)
Meaning of, 355
Meaning of "agent,' 355
Meanings of "joint-tenancy,' " co-parcenary " and " tcuants-in-
common," 3^5
Claims of, in respect of goods seized, 355
Who entitled to "immediate reversion," 355
Oaims of, how to be adjusted, 356
When actions in High Court may be stayed, 350
Costs, 35(5
County Judge to adjudicate on claims, 350
Claims by, for lient —
Provisions in respect of routs due to, 3G5
Statute of Anne not applicable to D. C , 3'55
Meaning of •' landlord of a tenement," 3G5
Notice to be given to '.lailiff, 30 >
INDEX.
487
!42
54
.bscond-
u D. C,
(ints-in>
Landlokd — Continued.
What notice should contain, 365
Cases in vvhich notice may £.nd may not be Riven, 365, 366
When claim to be made, 367
What rent may be claimed, 366
How bailifif is to proceed, 366-368
Goods liable to distress, 367
Bailiff may be sued by, for money made, as money had and
received, 367
Fees of bailiff in such cases, 368
Table of, 368
Proceedings if replevin made of goods distrained, 368, 3G9
When claim of, is to be first paid, 360
See Landlord and Tenant.
Landlord and Tenant —
Where jurisdiction ousted in actions between (see Actions ;for
Recovery of Land), 69
Replevin of goods distrained (see Replevin), ;U, 83
Justification of distress by landlord in such case, 85
Liability of landlord for acts of his bailiff, 88
Lease —
When jurisdiction ousted in action on (see Actions for Recovery
of Land), 69
Legal Claims—
Giving effect to, provisions of Judicature Act respecting 'see
Kelieli, 89
Legislature —
Powers of, as to appointment of inspector, 24
> to make laws for enforcing provisions of statutes, 41
to delegate authority to board of county judges, 391
Libel —
Action for, not maintainable in D. C, 54
Refusal of copy of, prohibition therefor, 58
Definition of, 72
Lien —
Of bailiff for fees when action settled, etc. (xec Fees) , 46,
Of solicitor for costs (see Solicitor), 252
Lieutenant-Governor —
Approval of, required for establishment of clerks' ofiices in same
division in cities, 6
May regulate holding of courts in certain cases, 9
In Council to approve of courts established, 12
488
INDEX.
•■v
or"?
( •
i :
LiEiTENANT-GovERNOR — Continued.
To be notified of appointment of deputy Judge, 20
May annul appointment of, 21
May appoint during pleasure, clerks and bailifu, ^
May dismiss clerks and bailiffs, 23
To be informed of all matters by inspector, 50
Limitation —
Under will, action for, not maintainable, 54, 71
Of action against officers and their sureties, 30
LiJiiTATioN OF Action —
For things done under this Act, 883
Limitation, Statutes of (see Statutes of Limitations), 180
Limits of Division Courts —
As existing when Act takes effect, to continue, 2
Alterations in, 10
On separation of junior from senior county, 12
Regulation of, on separation of a county, 14
See Division Courts
Liquidated Damages —
Agreements by way of, power of court to grant relief against (see
Relief), 88, 96
Liquors—
{See Spirituous or Malt Liquors), 66, 67
Action for, when drunk in tavern, etc., not maintainable, AH
List of Cases for Trial —
Suits transferred, to be placed on, 121, 122
Order in which actions to be placed on, 104
in jury case^^. 2'Mi, 'I'M
Lost Note —
Security to be tendered before action on, 128
Lunatic —
Service of process on (see Service), 135
Guardian ad litem to be appointed for, 1.'55
M.
Maintenance of Court House (see Court House),
Maintenance and Support —
What included in, 255
Maijcious Prosecution —
Action for. aot maintainable in D. C, 54
■W'
INDEX.
489
Malicious Prosecution — Continued.
Cannot amend by changing to false imprisonment, 59
In action r?r false imprisonment, Judge may consider matters the
subject of, 60, 71
Foundation for action of, what is, 71
Where particulars shew false imprisonment, action maintain-
able, 71
What deemed action for, 71
Cases held not to be, 71 ■
yiKvr LiQUous (see Spirituous or Malt Liquors), (36
Mandamus —
Judge's discretion, when exercise of may be conpelled by, 5
Definition of, 61
Where other remedies exist, will not be granted, 64
When application for, to be mi.de, 64
Judge, having decided tliat he has no jurisdiction, will not be com-
pelled to re-hear case, 61
Cases in which it wi.s held otherwise, 64
Jurisdiction must clearly appear, 64
Will not issue to compel alteration of adjudication in matters
within jurisdiction, 64
Xor to compel clerk to act in disregard of adjudication, 64
Nor to compel Judge to approve security on appeal, 64
Nor to certify proceedings after proper time, 64 .
Nor to revoke decision on poiat of practice, 64
Nor to exercise discretion in a particular way, 64
Will compel Judge to try cause before him unless interested, 64
Was granted on refusal to adjudicate in interpleader proceedings
on ground of insiiiirtcient claim, 64
A.nd to compel clerk to issue execution, 64
On refusal of clerk to transmit papers on order of chi.nging place
of trial, rJO
To compel clerk to certify proceedings on an appeal, 1,24
And to compel Judge to approve bond, 224
Application for, 64
how and where to be made, 64, (io
how proceedings entitled, 65
Mahkei' Ovr.rtT —
Purchaser at, cannot acquire title in Ontario, 8:5
Mauiukd Women —
Have same rights as other joint debtors, 4
Wlien competent as surety, 27
When, in proving separate estate, title may come in question, 69
490
INDEX.
Marribi) Women — Continued.
Speedy judf^ment may bo orlered against estate of, lo7
proof necessary in such cases, ln7
Not liable to commitment on judjjment summons, H22
Nor to be examined, 822
Nor to order for payment out of incom j subject to restraint on
anticiiiation, 822
Liability to such proceedings in Superior Courts, 822
Creditors' rights determined by statute at time debt contracted ^
322
Power of judge to order examination for purpose of discovering
separate estate, 822, 8!I4
Judgment against, personal not proprietary, .')',)i
CldimKhij and anninxt —
Right to sue and bo sued, 3!)4, 39o
Necessary to allege separate estate, 811 J
Practice in Division Courts, 805
Onus of proving separate estate, 895
Not necessary if debt contracted before marriajie, 895
pjffect of omission to prove, 395
Presumption that separate estate bound--
Contracts deemed to be in respect of separate estate, 395
Liability on joint contracts, 895
Not liable to equity as to payment of mortgages on lands pur-
chased, 3915
Nor for moneys received believing she was entitled thereto, 890
Liability for debts of her testator on alieniation by her of property,
396
Not liable for solicitor's costs without express contract, 890
Liability of husband for such costs, 39G
Exceptions —
Cases where presumption cannot arise, 396
Proof necessary when estate subject to restraint on anticipation
is paid over to her, 396.
What is separate estate —
Definition of, 897
Land, 397
Personal property, 898
Personal earnings, 898
Husband trustee for, when no other appointed, 898
\rUat is not separate estate—
Real and personal property not liable for debts, 398, 899
Restraint on anticipation —
What is, 899
To what property applicable, 899
INDEX.
■491
restraint on
anticipation
Married Women — Continued
Death of husband, effect of on, 399
During widowhood property not Hable for debts contracted during
coverture, 399
How restraint imposed, 399
Court may f>ive power to charge estate restrained, 399
In what cases power to charge estate given, 399
Death of hu8band-~
Effect of, 322, 400
Death of wife — . .
Rights of representatives, 400
Liability of husband, 400
Administration of estate by court, 400
Statute of limitations —
When actions barred by, 400 .
Provisions of Trustee Act, 400
Dispute between husband and wife —
Remodies for security and proteci,ion of property, 400
Rights and liabilities "^ parties, 400
Husband dealing with estate as his ow^n, effect of, 400, 401
Judgment against —
How recoverable, 401
Form of, 401
Personal, but execution limited to separate estate, 401
Not liable to imprisonment on, 401
What separate estate bound by, 401
For costs only, what bound by, 401
Property subject to restraint liable for debts before marriage, 401
Execution against —
What limited to, 401
Effect of, where property held by trustees, 401
Inquiry to ascertain separate estate and appoint receiver of it, 402
Who may be appointed receiver, 402
When defendant may be ordered to pay by instalments, 402
Trustees may be ordered to produce estate, 402
Injunction —
Cannot be restrained Ly, before judgment, from disposing of
estate, 402
Securitg for routs —
When order for, may be made, 402
SrASTER AND SkUVANT —
Goods reple viable by employer from, workman {see Replevin), 82
When servant cannot bring replevin, 83
When injunctions may and may not be granted as to contracts for
personal services, 92
492
INDEX.
Master and Servant— CoHf/ni/fti.
Infant not liable to action for breach of apprenticeship decl, i)8
Minors may sue for wages in D. C. up to §100 : 91)
Right of servant to recover wages (nee Wages), 100
Varioim terms of hiring, 100, 101, 102
Contract to be performed within one year, 102
liipht of master to dismiss, 100-102
Various causes giving right to dismissal, 100, 101, 102
Dissolution of contract, 100, 101
By death, 101
Parting with business, 101
Premises destroyed by lire, 101
Incapacity of servant from illness, etc., 101
Damages for wrongful dismissal, 100, 101, 102
Contracts between parent and child or persons occupying parental
position, 102
Contracts between brother and sister, 102
Services rendered in expectation of marriage, 102
Matter or Form —
Proceedings not to be set aside for, 292
May— •
And other words conforring powers, construction of {see Words), 5.
15
Mechanics' Lien —
Accepted order equivalent to payivient as against perKous claimin;.'
under, 128
When lien of sub-contractor takes effect, 279
Rights of sub-contractor as against attaching creditors, 270, 280
Merits —
Affidavit of, 148
Mejioranhu.m —
On ^ai-iiishee summons for claim of wiif,'es, etc., 257
Form of, 2;"»8
On attaching order after judgment, '2M
On garnishee summons before jadgni'-nt, 207
Of appraisement to be er. lorsed by bailiff on inventory in attach
meut, ;J44
MlLE.\GE-
Not to be allowed to bailiff out of couatj-, 41
How computed, 140
Bailiff noi entitled to on return of nulla bona, 305
hip deed, 03
02
pyinjj parental
{»ee Words), 5.
irsons claiming,'
tors, '279, 280
itory in attiich
INDEi.
493
Minor — (see Infant)
May sue in D. C. for wages not exceeding $100: 09
MiSCONDCCT —
What is, 29, 273
Damage is esnence of, in action for, 29
Of clerks and bailiffs (sec Clerk and Bailiff), 373
Extortion 373, 374
Penalty for, 373, 374
Must be intentional, 373
Negligence of bailiffs (see Bailiff), 374
If wilful, a criminal offence, 374
Money Demand —
Definition of, 14(5
Cases within the meaning of, 146, 147
Claims of, not exceeding $100 may be sued in D. C, 73
And if amount ascertained up to #200 : 73
Money and Bank Notes —
When liable to seizure under execution (see Execution), 314
Money Paid —
Under compulsion of legal process not recoverable, 4
MiSINTERl'RHTATION OF LaW —
Subject for appeal, not prohibition, 60 •
Moneys Collected —
Punishment of persons wrongfully withholding, 40
Account of, to be kept by clerk, 38
to be furnished to Judge, 39
List of, to be made out by clerk annually and put up in court room
and office, 39
By bailiff on process issued out of bis division, 139
On receipt of, clerk to mail notice, 387
See Suitor's Moneys
M()NE\ Had and Received —
Claim by mortgagor against mortgagee for surplus after sale may
be recovered as, 75
MoilTOAOE —
Claim by mortgagor against mortgagee for surplus after sale suable
in D. (/. when total realized less than #400 : 75
Interest of mortgagor in goods liable to seizure under execution,
814
Rights of purchaser in such cases, 314
Registered under Land Titles Act, procedure on seizure of under
execution, 315
494
INDEX.
MCNICIPALITY —
-<
To furnish accommodation for holding courts, 7
May be compelled by mandamus to furnish such accommodation
7
Establishment of courts on petition of, 11
Clerk of—
Duties and liability as to jurors (sec Clerk of Municipality), 23G,
239
Motion —
For prohibition (see Prohibition), 'jT, G2
For mandamus (see Mandamus), 0)4, (J5
For speedy judgment (••>^e Speedy Judgment), 153
Mutual Insuuaxce Api'k.als (see Appeal), 217
N.
>•■'
I
0^t^$it0
Nearest—
Meaning of, 114
To the residence of defendant, 114, 124
Justice of the Peace, 44
Negligence —
Of bailiff (see Bailiff), 374
Action against bailiff and sureties for, 375
Judgment and execution in such cases, 370
Nejt Fkiend —
Requisite in action by infant for anything but wages (see Infant),
99, 100
New Trial —
As to altering judgment on application for (see Judgment), 5
When granted on terms which are not complied with, prohibition
refused, 57
Clerk, on application, to forward notes of evidence to judge, 1G5
Application for —
May be granted within 14 days, 212
How time computed, 212
Time cannot be extended, 212
Exceptions, garnishee proceedings and on postponement of judg-
ment, 212
If granted after expiration of time prohibition will lie, 59
Distinction in respect of setting aside irregular judgment, 212
When refused. Judge's authority does not end, 212
jinmodation
ipality), 23G,
5 {nee Infant),
nent), 5
1, prohibition
) judge, 1G5
INDEX.
495
ment of judg-
e, 59
ment, 212
New Trial — Continued.
May be granted on fresh material in such cases, 212
Notice of motion for, may be dispensed with, 212
Does not waive right to object to jurisdiction, 212"
Cannot be allowed whore non-suit taken on unfavorable charge to
to jury, 212
May be granted though juror withdrawn, 212
And where Judge decides he has no jurisdiction, 212
And where plaintiff takes non suit in deference to Judge's ruling, 212
Grounds for grantini) —
What are, a .^aestion for Judge, 213
Finding of Judge will not be reviewed on prohibition, 213
But may be set aside on appeal, 213
What held to be good grounds for, 213
When objection must be taken as to improper admission or rejec-
tion of evidence, 213
Principles of practice in High Court applicable, 213
Improper non-suiting of plaintiff, 213
Perverse verdict or verdict against weight of evidence, 213
Surprise and discovery of new evidence 213, 214
When judgment wrong in law or fact, 213
Not for production of corroborative evidence only, 214
Injury cases —
Where non-suit set aside defendant entitled to, 213
Not where verdict reasonably consistent with evidence, 213
Where finding inconsistent with answers to questions submitted, 214
Costs in snch cases, 214
Wiien damages excessive may be reduced, 214
When jury have not considered all elements of damage, 214
Judgment on application —
When tried by Judge, may be entered for either party, 213, 214
Affi.divits for, by whom made, 214
Requisites of, 214
Costs, usual practice as to, in such cases, 214
Appeal, lies from either granting or refusal, 217
Order need not be formally drawn up, 220
Nonsuit (see Trial)
Cannot be entered where title in question, 70
Efifect of, 91, 164
Plaintiff may insist on, 163, 164
May be entered against plaintiff's will, 164
After plea of tender (see Tender), 175
When granted without plaintiff's consent on opening speech of
counsel will be set aside, 213
406
INDEX.
or;
d:
U
NoTAnv PuiJMC —
Jiul^e cannot act as, 19
Affidavit may be administered by, 207
Note of Hand —
Meaning of {gee Illegal Promissory Notes), G8
Given for gambling debt or intoxicating liquors not suable in the
D. C, 54, G8
Notice —
Right of person to in proceedings aiTecting their interests, 120, 2C5
Of appointment of deputy Judge, to be sent to Lieutenant-Governor,
20
Absence of, when made a condition, ousts jurisdiction, u'J, 17H
When insufficient, cannot be amended, 69
On application to change place of trial, 119
To be given by clerk on transfer of suit brought in wrong court,
121, 122
Given by clerk to shew place and time of sitting in all cases, 1G2
Of tender and payment into Court, 175
Of payment into court in satisfaction of claim, 178
Of intention to proceed after tender or payment into Court, 178
Notice of set-off by defendant, 179
by clerk, 180
Requiring jury (gee Jury), 233, 234
Of return of nulla bona to execution on transcript of judgment, 307
Notice of Action —
Judge entitled to, 18, 383
Not necessary in replevin, 80
To be given to parties acting in pursuance of Act, 383
Persons to whom protection of statute extends, 383
Circumstances under which parties acting may claim the right to,
383
When necessary, 383, 384
Cannot be avoided by plaintiff suing in assumpsit, 383
When want of, must be raised, 384
Application of provision to requirements of statute as to notice of
statutory defence, 384
Requisite of notice, 384, 385
Effect of reference to statute not applicable, 385
Instances where notices and service held sufficient, 385
Service, time and manner of, 385
Notice of Alterations in Divisions —
Giving and proclamation of, in General Sessions, 10, 11
Duty of clerk of the peace as to, 11
Public notice of, to be given, 11
INDEX.
407
Notice or Alteration in Division CovmH—Coiitinue<l.
Effect of absence of, 11
No alteration to be made without, 15
Notice Dihpdtino Claim— («<• Defence)
Effect of, waives irregularities in service, 182
When to be entered, 140, 118
Judgment by default on failure to give, 145
Notice of statutory defence, set-off, etc, sufficient, 158
• May be allowed at any time before judgment, 161
May be withdrawn, 162
procedure thereon, 162
Payment into Court operates as, 178
Must be given on defence of no signed bill in action for costs, 187
Notice Dispotino Jchisdiction —
Where wages or salary sought to be garnished (see Garnishment),
256,257
Notice of Motion —
Jieqiii sites of —
For order enforcing payment of fees, 46
For prohibition, 62
For mandamus, 64
For speedy judgment, 153-158
Notice of Sale —
Of goods under execution, requisites of, 317, 318
Of sale of perishable property under attachment (see Absconding
Debtor), 352, 353
Notes of Evidence —
To be taken in writing in appealable cases, 164, 165
Absence of, does not deprive party of right of appeal, 220, 228
When in existence must be certified to Court of Appeal, 221
Not Guilty by Statute —
, Plea of, in actions against officers of court (see Officers of Court)",
381
General effect of, 381, 386
May be pleaded with plea of tender of amends or payment into '
court, 386
Non-Performance of Duties — • *
When officers and sureties liable for {see Sureties), 28
Non-Joinder op Parties —
Can be set up in action against one of several joint debtors, 140
exceptions, 140
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INDEX.
Nulla Bona —
Return of, what is, 310
Notice of to be given by clerk, 307
NcMBEUisG Divisions of Court —
In counties, cities and towns, 2
Alteration in, 10
Numbering Process —
Particulars of claim to be numbered, 127
Summons to bear number of claim, 127
0.
.*«»-
Oath —
Of office, omission to take, not to invalidate action of tribunal,
13
Verifying returns by officers, who to be taken by, 53
Commissioner to take evidence on commission authorized to
administer, 203
Of witnesses, {see Witnesses), 193
Affirmation may be allowed instead of, 193
Power of arbitrator to administer, (see Arbitration), 287
On examination of judgment debtor, power of Judge to administer,
324 ^
Offences and Penalties —
Contempt of court (see Contempt), 3G9-372
Resisting officers — assaulting bailiffs, 372
IMisconduct of clerks or bailiffs, 373
Extortion, 373, 374
Negligence of bailiffs, D74
How penalties enforced, 377, 378
Form of conviction for, 378
Officers of Court —
No business to be transacted until appointment of, 12
Regularity of appointment presumed, 13
To deliver up papers on separation of counties or transfer of pro-
ceedings, 14
To give security, 26
Nature of security to be given and liability of sureties thereon,
(see Sureties), 26-36
Inspector to see that duties of properly performed, 50
luspector may inquire into conduct of, 60
INDEX,
499
;horized to
Officers of Covni— Continued. -
To produce books, etc., for inspection, 51
May be compelled to ^ive evidence on enquiry by inspector, 'A
To inform inspector of appointment, 52
and of clianj»e in surety, 52
To produce to inspector certificate of tiling covenant, 52
To keep fee book, 53 -
To make annual returns to inspector, 53
When possession of goods depends on holding office, the facts must
appear to give right to replevy, 81 ,
Protection of —
Actions against, not to be brought until demand of perusal and
copy of warrant, 378
Protected even where court has no jurisdiction, 379 •
What officers and persons are protected, 37U
When protection extended to baiUff, 379
When extended to gaoler, 379
Upon whom demand must be served, 379
Requisites of demand, 379, 380
Perusal may be waived, 379
When demand unnecessary, 379 . ,
Service of, 378, 3S0
To what cases protection applicable, 380
Entitled to verdict on production of warrant, 380
Duty of, on being served with demand, 380
Necessity for production and proof of warrant, 380
Necessary when clerk and bailiff joined in one action, 380
Bailiff entitled to verdict when clerk joint defendant, 381
Effect of judgment against the clerk and for the bailiff, 381
Defendant may plead not 'juilty hi/ utatute, 381
Meaning and effect of plea, 381 '
To what persons right extends, 381
Practice as to, 381, 382 ' . .
Defects in proceedings —
Levy, etc., not to be unlawful, or person making it a trespasser, 382
Not to be deemed trespassers ali initio for subsequent irregularity,
332
' Persons aggrieved may recover for the special damage, 382
Entitled to notice of action, 382-386
<S'ee Notice of Action, 383-385
Limitation of actions —
Where and within what time actions may be brought, 382, 384
Tender of amends —
May tender amends or pay money into court, 386
May plead general issue, 380
Effect of, 386
•mmmmmt
500
INDEX.-
>--
c:.[.,
Zr:
^■ ■ lM»-<
Officehs of Covm—Coutinued.
Will not cure defect iu notice of action, 386
Need not be pleaded when made before action, 386
If not made, defendant may pay money into court with costs, 176,
386
As to what is sufficient tender (see Tender), 171-178
As to general issue (see Not Guilty by Statute), 381
Costs —
Plaintiff not to have unless verdict over $10, without certificate, 386
Offices — •
Of clerks in cities where there are two courts may be in same
division, 6
Obdeb of Commitment {see Judgment Summons), 328-330
Orders of Court—
Clerk to keep record of, 37
To be registered by clerk, 38
For commitment of person wrongfully holding books, etc., not ta
be conditional, 41
To be served by bailiff, 41
For enforcement of payment of fees {see Fees), 46
May be for payment in money though contract for payment in
commodities, 79
Division Courts muy commit for disobedience of, 90
Effect of neglecting to takeout or serve, 120
If abandoned or waived need not be set aside, 120
For postponement of trial, 167-169
Staying proceedings until further order cannot be abandoned, 175
Not to be set aside for matter of form, 292
Order in which Suits to be Tried —
Actions transferred, 121, 122
over »100 : 164
jury cases, 233, 234
See Trial
Overflowing Land —
Actions for, may be tried in D. C. thougli title in question, 70^
iosts, 176,
ficate,38G
111 same
tc, not ta
lyraent in
loned, 175
on, 7a
INDEX.
501
P.
Papers —
Of office to be delivered up on separation of <^ounty or transfer of
proceedings, 14
To be held by County Crown Attorney on death or removal of
clerk, 40
Punishment of persons vvrougf ally holding, 40
Forwarded from other divisions provisions as to service, 126
Parent and Child —
Contracts between for services of child discouraged, 102
Particulars —
Of claim to be made out in detail and delivered to clerk, 127, 145
To be numbered as received, 127
Evidence not to be given except as to matters contained in, 127
No charge to be made by clerk for copies of, 127
Clerk not bound to prepare, 127
Where debt assigned, should be entered in name of assignee, 128
Plaintiff to furnish clerk with, for service, 128
To be annexed to summons, 128
Effect of clerk's neglect to comply with provisions, 129
Service of {see Service), 129
Requisites of, 127, 145, 148, 151
Of set-off (see Set-Off), 179, 180.
Parties —
Witness admitting he is real debtor may be made a defendant, 55
To actions of replevin (see Replevin), 83, 84
In actions against one of several joint-debtors (see P ners), 140
When non-joinder may and may not be set up in Division Courts,
140
Judge may order addition of (see Adding Parties), 142
To garnishee proceedings (.we Garnishment), 246
Partners —
One of si'veral may be sued, when resident in different divisions or one
or more cannot be found, 140
Procedure in such cases, 140
Partnership debt not joint and several, 140
When one of several sued, non-joinder may be set up, 140
Ritjht of coHtribution (see Sureties), 30, 140, 141
Meaning of, 141
When enforceable, 141
502
INDEX.
> ■
c::.'
Partners — Continued.
Judgment against one —
Bars action against|others, 140
Cannot be'set'asidejto evade rule, 140
When assignable, 141
When partnership property -may be sold under, 111
Actions hij and against —
May be brought in firm name," 142
Effect of proceedings so'brougbt, 144
Proper manner of describing firm, 144
Service of summonsjinjsuch cases, 142
Affidavit of, to state name of partner served, 143
Foreign firms, effect of provision on, 143
Agent may be^served in Ontario, 145
Where no agent, caniiotibe reached. 144, 145
When firm dissolved, ;firm name may still be used, 144
Execution against firm —
How and against whom enforceable, 143, 145
Judgment against firm —
When sued?in firm name judgment must follow, 114
When judgment may be entered, 144 ^^
When one partner defends, judgment cannot be entered until after
trial, 144
Liability^of partnevp '-t'.served, 143, 145 -
Liability of nomini«i partners, 145 .
May be sued on, 145
Undisclosed partners —
Order directing statement of names, 143
Discharged if action not brought in proper firm name, 144
Admission of liability by, 143, 145
May be adjudged partner, 143, 145
May be added at trial, 143
Procedure to bring parties before court, 143, 145
Who may be adjudged partners, 145
Individual carrying on business in firm name, 145
Sj eedy judgment —
Service on one of several partners sufficiency of, 157
Executions against {see Execution)
Legal effect of, not altered by Creditors' Relief Act, 302
Liability of partners to examination as judgment debtors, 322
How and against whom enforceable, 143, 145
Garnislimeut proceedings {see Garnishment^ 246
Members of firm muat be set out in process, 240 , •
All partners should be parties to, 240
Liability where only one of several served, 240
INDEX.
503
ntil after
,322
Patents —
Questions concerning, cannot be tried in Division Courts, 71
Payment —
Of money under compulsion of legal process not recoverable, 4
O/i-Vt's, to be made in advance (s<?e Fees), 46
Reduction of claim by, so as to confer jurisdiction (see Unsettled
Account), 105
Accepted order equivalent to (see Mechanics' Lien), 128
Appropriation of, 185, 186
When not specially appropriated, how applicable, 211
Sufficiency of, to take claim out of Statute of Limitations, x8o
Of execution before'sale (see Execution), 304
On makint,', execution debtor to notify clerk, 293, 305
Effect of ne<;lect to give notice, 305
Ileotoration of goods on, 305
By oarnMiee, effect of, 262, 263, 272, 274, 275, 277
What is, 277 ,. , ,, . ,
Under order of court, effect of, in such proceedin-s (,ee OaniiMi-
ment), 275 ,
Payment into Court —
Of bailiff's fees in case of dispute (.set' Fees). 47
In detinue, 55
Plea of, in action on replevin bond, 87
With plea of tender (see Tender), 171-176
In satisfaction of Claim, nCi
Defendant may pay money in, 170
When to be made, 176
Amount requisite, 177
Where several matters included, 177
Effect of, 177, 178
What evidence may be given under, 177
May be pleaded to part of claim, 177
Costs in such cases, 177
Defence of denial not admitted after, 176
Effect of plea cannot be repudiated, 177
Effect of clerk receiving with plea of denial, 177
Operates as notice ri defence, 158, 178
Can be pleaded in I'eplevin, 178
No written plea required, 178
Costs, 178 '
Notice of, clerk to give, 178
Notice of intention to proceed on, to be given by plainti ff, 178
Effect of absence of written notice of, 178
Ofjudgme it, may be ordered (see Judgment), 211
604
INDEX.
Si*:
I.:
«-:;;,.
Pay.mi'.nt into CociiT — Continued,
On garnishee proceedings {see Garnishment), 2G2, 274
Effect of such payment, 274, 275
As security in appeal (see Appeal), 222-228
Pex.vltiks —
For neglect by officer to furnish security (see Sureties). :',))
For wrongfully holding moneys, books, etc., 40
Authority of legislature to impose, 41
For disobedience to subpoena, 193
For contempt of court, 369-374
Resisting officer, assaulting bailiff, 372
Misconduct of clerks or bailiffs (see Clerks and Bailiffs). 373
For extortion, 373, 374
Negligence of bailiff, 375
How enforced, 377, 378
Form of conviction for, 378
Penalties and FonFEixuitEs —
Powers of Division Courts to grant relief against (see Relief), 88-96
When courts will hold sura payable a penalty, and when liijuidated
damages, 93
PEiiisiiAnLE PuoPERTY, (sce Abscoudiug Debtor)
What is, 352
Provisions of Absconding Debtors' Act respecting, 351
Disposal of, under attachment against absconding debtor, 352-354
Personal Actions —
Under ^60 may be brought in Divi&ion Courts, 75
Definitions of, 75
What causes subject of, 75
Pleadings —
Trial to take place without, 162, 1G3
Postage and Registration —
Of papers transmitted to be costs in cause, 138
Post Office Address —
Defined, 52 •
Of sureties to be given to inspector, 52
Postponement —
Of judgment, mBiy he m9.de,20S
Effect of, 208,220
If not in accordance with statute may be prohibited, 208
Of trial-
Judge may order, 167
INDEX.
505
ef), 88-96
t]ui(lated
1-, 352-354
Postponement — Continued.
In jury cases, 109
When new trial may be granted in such cases (Kee New Trial , 21'2
In f^arnishee proceedings (see Garnishment), 282
Powers — ,
Discretionary or enabling (ser Discretion), 5, 15, IC.
Of County Judge (see Judge), 17-19
0/ Division Courts (see Ilelief),88
May grant injunctions and commit for disobedience of orders, 00,
371
May appoint receivers, 90
May order sequestration, 90
Of enforcing orders by attachment, 91
Of High Court, conferred on, 88, 91
In which action brought to have full power before and after judg-
ment, 109
0/ Judges (see Judge)
Discretionary, how exercised, 5
Words conferring, how constructed, 5, 15, 16
Inherent, over process of court, 352
Of Legislature —
To delegate authority to inspector (see Inspector), 24
To appoint board of county judges (see Board of County Judges), 894
To impose penalties, 41
Pound Keepers —
Replevin not maintainable against, 85
When property is impounded, 85
Practice —
Mere matters of, not subject of prohibition, 00
Principles of, in High Court, applicable to Division Courts in
certain cases, 91, 393
Cannot be applied to cases provided for in Act or rules, 393
Powers and procedure of High Court not extended to Division
Courts, 393
Rules of High Court held inapplicable, 339, 394
Cases in which principles may be applied, 394
On application for prohibition (see Prohibition), 63
Preference —
Replevin of goods under bill of sale having effect of, 85
Confession of debt does not have effect of, 288
Premium Notes (see Insurance)
Provisions as to actions by mutual insurance companies on, 217
506
INDEX.
PniN-ciPAi, AND Agent {see Agent), 78
PiuNciPAi. AND SuRETV {sce Suretv)
PniouiTY OF Execution {see Execution), 297
From High Court or County Court, 341
None over attachment in Division Courts, 311
Effect of attachment on rights of execution creditors, 342
PRIVIIiEOE —
No persons exempt from suing or being sued in Division Courts, 99
Of witness from arrest {see Witness), 1111
Does not attach to telegrams in hands of telegraph operator {see
Evidence), I'JO
Process —
Meaning of, 3
To be sealed, 2, 3
Disposal of, on F;eparation of county, 14
Not to issue for improper or illegal purpose, 3G
Return of, bailiff to forfeit fees for neglect {see Ktturn), 47
How served or executed in absence of bailiff, or at a distance, 138
Inherent power of Judge over {see Judge), 3iV2
Defect in, not to render levy, etc., unlawful, 382
Procedure Book —
To be signed by clerk on each page, 37
Entries in and certified copies thereof to be received in evidence, 37
Proceedings —
Transfer of, when action entered in wrong court {sec Territorial
Jurisdiction), 120-122
On submission to arbitration {see Arbitration), 284-2S0
Not to be set aside for matters of form, 292
Definition of, 38, 4u
Mere irregularity in, not subject of prohibicion (see Prohibition), 62
Stay of {see Staying Proceedings)
See Process and Procedure
PROCEDCliK —
When title to land claimed, G9
In replevin, 76-81)
How far principles of, in High Court applicable {see Rules of High
Co".rt:), 91, 92, 393
Court where action may be tried to have full puwer before and
after judgment, 109
Courts in which suits may be entered and tried (.-('<.' Territorial
Jurisdiction), 109, 114, 115, 116 "
1NI>EX.
r)()7
Courts, 99
erator {>iee
17
ivnce, 138
iilence,37
Cei-i'itoi'ial
bition), 62
esof Hi^h
before and
i'erritorial
PnocEDunE — Continued.
Af^aiiist Foi'eign Corporations, 116 •
When action entered in wron^' court, 120
In actions aj^ainst clerks and bailiffs, 123, 124
On transcripts of judt^ments against clerks and bailiffs, 121
In actions against Judges and Stipendiary Magistrates, 125
On summonses forwarded for service from other divisions, l'2i>
Entry of claim for service, and suit, 127
Service where no bailiff, 138
of process to be executed at a distance, 138
On failure of defendant to appear in court, 160
On plea of tender and payment into court {see Tender), 17.5
On judgment by default on special summons, 145
Propttction of Documents —
On examination of defendant on motion for judgment (h'c Speedy
Judgment) 154, KiO
May be compelled by subpoena duces tecum, 188, 191
When excused, 191
Privileged communications, 190, 192
Proof {see Evidence) ■
Of claim when amount under $15 : 166, 167
Claim must be proved in actions for tort or trespass, 107
PROIIiniTIOM —
May be granted, on exercise of jurisdiction not warranted by
authority, 55
Only given against court having power to pronounce jiulginunt or
order, 55
Cases in which order for may be granted, 55
When want of jurisdiction apparent —
May be grart d at any time, 56
When applic.i' \on to be made for, 56
What deemed lo be apparent want of jurisdiction, 5()
Total want of jurisdiction not cured by assent of parties, ."(j
Judge in inferior Court having no jurisdiction, no bur to action in
other court having jurisdiction, 56
Court bound to issue writ, 56
When appeal prevents, 58
Where defect not apparent —
Writ of right, but not of course, 56
Not granted where defendant appearing does not object, 56
When and in what manner objection should be taken, M
When suit brought in wrong division, 56, 121
When right waived, 5(i, 57
Motion for, v^^hen made, 57
Delay in making effect of, 57
.jO.S
INDEX.
>'•■
a::
ft"""'
PiioniniTiON — CoHttniietl.
What delay held fatal, oT
Default iu respect of order for payment of costs, effect of, 57
Other ^{rounds for refusal of, 57, (lO
Acts of defendant I: eld not to waive right to, 57, 58
Where title comes in question, will be grante.l, thouj,'h not appa-
rent, G'l
Granted to home court though transcript issued to another
court, 30(1
Appeal does not necessarily prevent, 58
Hut should not be allowed if defect not apparent, 5H
While appeal pending, will bo refused, 58
Will be granted when cause of action divided, 103
rdrdcitlar issue —
Exception must be taken in court below, 57, 58
Effect of prohibition, 58
upon affirmative decision, absolute, 58
upon negative decision, inferior court pro-
ceeds with action, 58
May be granted as to part where breach of contract without
jurisdiction, 58
Also to restrain action for recovery of land so far as freehold, but
not as to leasehold, 58
Judge may strike out count ousting jurisdiction, 58
Denial or perversion of right —
Refusal of copy of libel or valid plea, 58
Refusal of statutory time for defence, 58
Assumption by Judge of functions of jury, 58
Granting new trial after 14 days, 59
Absence of written notice required by statute, 51>, 178
Where court has discretion, must be refused, 59
Amendment to give jurisdiction —
No power to amend where plaint beyond jurisdiction, 59
But excess may be abandoned, 59
If not abandoned, court prohibited as to excess, 59
Where claim of interest causes excess, partial prohibitio:i may be
granted unless abandoned, 77
Wlure Judge interested —
Cause cannot be tried, 59
No objection to disinterested deputy, 59
Where plaintiff Judge's servant, 59
Authorities as to, 59
When prohibition icill he refused —
Where facts extrinsic to jurisdiction, 60
When subject of action within, but matter started beyond juris-
diction which court does not try, 60
INDEX.
500
Pboiiihitios — Continued.
Irregularity in proceeiliiif^a merely, CO
Ui rise or unjust jiidt^ment, GO
Mere matters of practice, 00
Doubtful jurisdiction, (iO
Judf^ment against law and good conscience, fiO
Improper reception or rejection of evidence, GO
Order against (^ ' tor claiming to be discharged insolvent, 00
Excessive levy of goods by b liliff, GO
In action for false iini|H isonment matters relating to malicious
prosecution considered, GO
Erroneously holding debt attachable, GO
or that debt due, GO
Misconstruction of a statute, GO
Kefusal of new trial in first instance and afterward granting
same, GO
Finding that plaintiff fictitious, GO
Misinterpretation of common or statutory law within jurisdiction^
GO-Gl
Jxirindiction depending on contested facts —
Court may try, if suit prima facie within jurisdiction, GO
Cases within rule, GO
Not granted in such cases until Judge has decided question of
jurisdiction, GO
Judge's finding conclusive, CO
Erroneous judgment, no ground for, CI
Unless court has no jurisdiction, Gl
Cases in which finding of Judge held not to oust right to, Gl
Where finding on question of law and facts reviewed, Gl
Finding facts will not give jurisdiction to courts of limited juris-
diction, Gl
Erroneous finding on points collateral to merits on which juris-
diction depends reviewable, Gl
As wrongly deciding title not in question, 62
On application for, additional evidence shewing jurisdiction may
be given, 62
Where title in question—
{See Actions for Recovery of Land), 68-70
Court must be satisfied title really in qnestion, 70
Application for —
When to be made, 56, 57 -
By whom made, 62
Onus of proving jurisdiction, 62
Material in support of, 62
Notice of motion for —
Service of, 62 , nn cq
Clerk to be served, if application to restrain ministerial act, 62, bd
510
INDEX.
Pkohibition — Continued.
Jiules of court —
Practice, 63
No suggestion necessary, 63
Application to be made on affidavit, 63
No writ to issue, 63
Order for may be discharged, varied or set aside by D. C. subject
to appeal, 63
Appeal —
To Court of Appeal and Supreme Court, 03
Notice of, must be given to Judge, 63
Stay of proceedhyjs —
Order cannot be made by High Court, 63
If execution levied or money made, re-payment miy be ordered, 63
Judijment on transcript to higher court will be set aside, 03
Declaration in prohibition —
Court may direct, 63
Where proceedings resorted to, 03
Practice in such cases repealed, 0''
Cos/s-
in discretion of court or Judge, 63 .
How usually awarded, 63
Authorities as to, 03, 64
When question of title raised, 70
IhmuKjeti —
Wiien action for, will lie after prohibition, 64
Po-^tponing decision —
Will be granted, if postponement without complying with statute,
208
Party complaining must be prejudiced, 208
llight may be waived by assent to delivery of judgment when
ready, 208
Garnishment of Wayes —
Failure by garnishee to give notice disputing jurisdiction ousts
right to, 250, 257
Judgment Summons —
As to application for on defective affidavit, 323
PuoMissouY Note —
For gambling, debt or liquors drunk in tavern or ale-house not
to be sued in D. C, 53
Action for such note not maintainable even by innocent holder, 68
Instrument defective as, may be sufficient acknowledgment, 78
Must be filed on entry of claim for writ, 127
When lost, security must be tendered before action, 128
Pboikctio.n of Officers (see Officers of Court), 378
C. subject
DVilered, 63
!, 03
ith statute,
ent when
3tion ousts
'■house not
t holder, 68
iient, 78
INDEX. 511
Pbovisional Judicial Distuicts—
Alterations in divisions of courts in, 10
PuL'i/TC Officers—
Exercise of judf^ment by, IG -
Act respecting security of, 26
Security may be in guarantee company, 26
Liability of sureties on covenant, 26-31
Provisions of Act respecting, to apply to Division Court officers, 'di
Protection of (sec Officers of Courts), 378
Purchaser —
Replevin of goods from, 82
May replevy goods from vendor, 82
At public sale obtains no better title than vendor's, SH
At bailiff's sale, title acquired by (see Execution), 290
Putting Off Trial, (see Trial), 167-109
III
Railway Cojipany —
Where deemed to be "resident," 112
Where deemed to "carry on business," 113, 137
Where head office out of Ontario, service of process on (see
Service), 137
Who deemed agent of, for service, 137
Record, Courts Of —
Division Courts not to be, 3
Judgments of Division Courts to have force and effect of judg-
ments of, 4
Judgments of, bear interest, 4
Reasonable and Probable Cause — .
What deemed to be, 351
Receivers —
Appointment of —
Provision of Judicature Act as to, 88
Power of Division Courts to appoint, 90
Effest of, 94, 95
in respect to proceedings in attachment, 2)1
Application for, 94
Cases in which appointment may be made, 94
Older for, 95
512
INDEX.
Receivers — Continued.
Usually made on notice, 95
When made ex parte, 95
Bights of prior incumbrances should be reserved. 95
Status of —
Not that of assignee, 95
Bight to bring action and assert claims, 95
Actions by —
In name of debtor, 95
Leave to bring, 95
Accounts of, to be passed, 95
Bemuneration of, 95
When money in hands of, attachable, 248
May be appointed as to husband's interest in lands o' wife dying
intestate, 248
Where order made for application of part of fund to support of
debtor, 248
Becovery of Land {see Actions for Becovery of Land)
Action for, not maintainable in D. C, 54
Prohibition granted to restrain action for, so far as freehold, but
not as to leasehold, 58
When jurisdiction in action for, ousted, 68
When not ousted, 69
Procedure in such cases, 69
Hereditments, title to, 70
Exceptions —
Actions in which title to land does not oust jurisdiction, 70
Referknce to Arbitration {see Arbitration), 283
Kelease of Sureties {see Sureties), 29
Remote Codrt —
Time of holding may be regulated by Lieutenant-Governor, 9
Remote Part of Province —
Examination of witnesses in, 203, 204
Definition of, 203
Relief —
Division Courts to have full power to grant, in same manner as
High Court, 88
Provisions of High Court respecting, 88
injunctions and receivers, 88
against penalties and forfeitures, 88 ^ '
equitable claims, 88
counter-claims and third parties, 89
INDEX.
513
wife dying
support of
3ehold, but
11,70
rnor, 9
manner as.
Belief — Continued.
Provisions respecting equities appearing incidentally, 89
stay of proceedings if action for same cause pending
out of Ontario, 89
giving effect to legal claims, 89
stipulations not of the essence of contracts, 89
Power of Division Courts to relieve against penaltiea, forfeitures
or agreements by way of liquidated damages, 91, 96
Not now subject to appeal, 91
Defences and counter-claims (see Counter-claim), 91, 98
Only abstract powers of High Court conferred, 91
Against third parties (see Third Parties), 98
Appointment of receivers (see Receivers), 91-95
Removal of Action — ■
By certiorari (see Certiorari), 233, 234
Rent — '
Rent of court room —
How paid, 7
Actions for —
Jurisdiction of D. C. in, 61 |
Where jurisdiction ousted in, 69
Claims for —
May be subject of interpleader, though title in question, 70
Stranger whose goods distrained on tenant's premises cannot
question landlord's title, 81
Replevin of goods distrained for, 81
Justification of distress by landlord, 85
When attachable by garnishee process, 247
Landlord's claim for, 355
Provisions as to such claims (see Landlord), 365-367
Replevin —
Entry in procedure book "struck out for want of jurisdiction,"
etc., not evidence of judgment in, 37
Action of —
A personal action, 75
Jurisdiction in, 79
Value of property recoverable not to exceed $60, 79, 80
Damages recoverable under Consolidated Rules, 79
Consolidated Rule as to bond in, 79
Whether Consolidated Rules applicable to D. C, 80
Replevin Act, provisions of, applicable, 80
Court in which action may be brought, 80
When property removed from one cOunty to another, 85
Questions of title to land now oust jurisdiction in, 80
D.C.A.— 33
514
INDEX.
u
Ekplevin — Continued.
Verdict in divisible, recovery may be for part of goods, 80
Notice of action not necessary in, 80, 81
Questions of taking or detention, matters of defence at trial, 81
Right to bring, 81
Where maintainable by person with bare possession, 81, 84
Will not lie for goods seized by Collector of Customs, 81
Not maintainable by debtor in attachment, 345
But may be by third party, 345
Will be stayed on issue of interpleader summons, 345
Provision of Municipal Act as to quashing of by-law before action,
not applicable, 81
Where lien on goods, it must be discharged before action, 81
Will lie for gOods taken by force or fraud, 81, 83
When innocent purchaser protected in such case, 83
Demand necessary when goods in possession of third person, 81
Will lie against wrong-doer with bare possession, 81, 84,
Maintainable by agent of foreign company entitled to possession, 81
Evidence necessary when brought on facts which would sustain
trover, 81
When maintainable on distress for school rates, 81
Procedure in such cases, 81
On goods seized for taxes, 81
Will not lie on distress warrant for non-payment of fine, 85
When purchaser of goods may bring, 82
Bailiff cannot sell goods and interplead for proceeds when claimed
by third person, 82
Purchaser in such case may replevy, 82
Hirer of goods under terms of hire receipt may bring, 82
Maintainable in Superior Court for goods seized under attachment
inD. C, 82.
When maintainable against assignee or guardian in insolvency, 82
Will lie for share of increasei of farm stock, 82
Second action maintainable for same goods but not against same
party, 82
Employer may bring for goods on which work done though money
due thereon, 82
Will lie for growing crops, 84
What may be taken when goods wrongfully intermingled, 84
Where goods stolen or found owner may bring, 82, 83
And notwithstanding sale or transfer of goods, 82, 83
Where taking of goods not justified under warrant of arrest, 85
Taking of goods under search warrant, 85
Goods seized for distress under illegal conviction, 86
Maintainable for goods borrowed, 83 ,
Articles carried about the person or worn, not subject of, 83
.
INDEX.
515.
)
•ial, 81
84
)re action,
,81
•son, 81
session, 81
id sustain
, 85
n claimed
2
ttachment
)lvency, 82
linst same
Ligh money
id, 84
rrest, 85
•f, 83
Replevin — Continued. "
Of goods by vendee mider bill of sale having effect of preferring
creditors, 85
Will lie for a swarm of bees, 83 • '
for money in a box, 83
for leather made into shoes, 83 "
for increase of animals, 83 .
for a ship and sails, 83 ^
for goods distrained off premises, 83
for vessel acquired under proceedings in reni, in foreign
Admiralty Court, 83
for leases or titlo deeds, 83
Will not lie for animals /ene natime and unclaimed, S3
Nor for goods seized by sheriff or bailiff under process against
plaintiff in, 80
Will lie for growing timber sold and cut into logs, 83 . '
Certiorari not applicable to, 84, 107 • ■
Liability of officer for not executing writ, 84
Where sheriff, liquidator for plaintiffs and as such institutes the
action, 85
Parfies, who must join in, 83
Mere servant of owner cannot bring, 83
Proceedings in — . •
When order required, 83 ...
Affidavit for order, 83
When made by agent, 84
No formal pleadings necessary, 80
No other action to be combined with, 83, 84
When discontinuance may be obtained, 84
Plaintiff to recover all consequential damages in, 83
Where writ issued with blanks for defendant's name, claim of
property no waiver, 86 . .
Return to Writ — . ^
Necessity for, 84
What is a good return, 84 ...
Pleadings in —
Denial by bailiff of taking, effect of, 84
When brought for detention only, claim to be framed as in
detinue, 84
Description of Propertj/ — .; .
What sufficient, 84
Service avd Execution of Writ, 84 ,
Fees how ascertained, 84 .
Damages in — ,
What recoverable,f^84, 86
516
INDEX.
Beplevin — Continued.
On claim of special property by sheriff, 86
Demand —
Evidence of, necessary, 84
Impounding Property —
Will not lie against pound keeper, 85
When property is impounded, 85
Jury in— ^
When party entitled to. 85, 232
Payment into Court in, 178
0/ Goods Distrained —
Under landlord's claim for rent {see Landlord), 368
Effect of, 368.
Replevin Bond —
Sureties required in, 86
Duty and liability of bailiff in respect of, 86, 87
When assignable, 86
Action on, power of court to stay proceedings in, 86
Court averse to staying proceedings in, 87
When maintainable, 86, 87
Subject of, 87
Set-off and payment into court, 87
Where to be entered and tried, 87
Damages recoverable in, 87, 88
Assignee may sue on, 86, 87
Though irregular, may be good as voIriLt^- y b-ud. 87
How enforceable in such cases, 87
Release of sureties in, 87
what deemed to be, 87
Liability of sureties, 87
in ordinary cases, 87
in distress for rent, 88
Liability of landlord for act of bailiff, 88
Residence — '
What deemed to be, 31, 111
Where defendant resides, 111
Gases in illustration, 111, 112
Where company ' domiciled or ordinarily resident," 112
Applied to companies for manufacture and sale of goods, 112
building contractors, 112
joint stock companies, 112
foreign corporations, 113
When acquired for purpose of giving jurisdiction, 112
See Carrying on Business
INDEX.
517
Besident —
Definition of, 31
Within the county, meaning of, 31
Resisting Officers —
AssauUing bailiff or assistant in execution of duty, 372
What constitutes such assault, 372
Provisions of Criminal Code as to, 372
Procedure and penalty against offender, 372
Liability of bailiff for acts of assistant, 372
Restoration of Goods —
On payment or tender of amount of execution {see Execution), 30-i
In attachment, on what terms goods restored {see Absconding
Debtors), 348
Return — *"
Of Process —
Neglect of bailiff as to {see Bailiff), 47
To writ of replevin, 84
When summons cannot be served {see Service), 131
Executed by bailiff of foreign division, 139
Of execution {see Execution), 308, 310
Of judgment summons {see Judgment Summons), 322
Of warrant of attachment {see Absconding Debtor), 336-340
Of Emoluments, etc —
To be made annually by oEficers to inspector, 53
Of business of office to be made by clerk to Lieutenant-Gover-
nor, 53
Of jury fund to county treasurer, 242
in cities forming separate divisions, 243
Of committals to be made annually by clerk to inspector, 335
Return Day—
Meaning of, 129
Summons to be served at least 10 days before, 129
When defendant out of county, service to be 15 days before, 129
Revision op Statutes —
Effect of, on existing rules and order, 390
Revision of Taxation {see Costs)
Judge to revise, 38
Proceedings on, 38
Revocation op Award {see Arbitration), 285
Reviving Judgments —
Not necessary if execution issued within 6 years, 5
a:
cc:
518
INDEX.
m
Reviving Jcdoments — Continued.
Effect of, 5 ' ' ■ '
When application for, nocessary, 5 - . • • '
When and how application to be made, 5 ...
In case of death of party, 308 .....
Revivino Proceedings —
Action may be revived against executor de son tort, 308
Right to be Heard —
Every one entitled to, 36, 265
Riot —
Bailiff may arrest for, within hearing of court, 48
Offence defined, 44
Rules and Orders —
(See Board of County Judges), 389-392
Rules OF High Court — ■• .. • : ' ^ . "."; '
Applicable to Division Courts, 88-91
As to non-suit, not applicable, 91 " ' '
As to service of parties, not applicable, 91
As to speedy judgments acted upon in Division Courts, 92
As to discovery, not applicable, 92
Applicable to commissions issued out of Division Courts, 204
See Practice, 393 ^-
{ ■
U.
Salary —
When garnishable (see Garnishment), 253-258
Sale of Goods —
Under Execution (see IStxecxition), Sn
Procedure prior and subsequent to, 817-320
Notice of, 317, 318
Not to take place for 8 days after seizure, 318
Officers not to purchase at, 320 ' : ' "
May be made after, if seizure before expiry of execution, 295
In attachment (see Absconding Debtor), 345
Sailor—
Rights respecting wages {see Master and Servant), 101
School Rates —
Replevin of goods seized for (see Replevin), 81
When distress for, justified, 81 ' '
INM)E>
510
Seal —
Each court to have, 2 - : '
Process to be sealed or stamped, 2 - ,
To be paid for out of Consolidated Revenue Fund, 2
Requisites of, 2, 3 ' ' ,
Absence of, effect of , 3
Application for, to be made to inspector, 3
Search Warkant—
Replevin of soods taken under (see Replevin), 85
Security — * j
Of Division Court Officers—
Clerks and bailiffs to give, 2G -
Means sufficient security, 26
Nature of, and liability of sureties thereon (see Sureties), 26-31
Judge to fix amount of , 26
How same should be regulated, 26
Should be free from objections, 31
To be tiled with clerk of the peace, 31
May be sued in any court of competent jurisdiction, 32
To be available to suitors, 32
To be renewed on death, withdrawal, etc., of surety, 33
Procedure when surety discontinues, 33
Provisions of Act respecting public officers to apply, 34
Sections of that Act made applicable, 3i, 35
Powers given by, to be exercised by Judge, 34
Liability of former sureties for acts previous to renewal, 35
Forfeiture or penalty on failure to give, may be remitted by the
the Judge, 34
Time for giving, may be extended for two months, 35
May be approved, if given after time limited, 35
Acts of officers not void by delay in giving, 35
Executed by sureties at different times, when to be registered, 35
Surety not discharged or bond vacated by irregularity in, 35
May be filed after time expired, 35
Property of office not to be delivered until after bond executed, 40
Duties of inspector as to, 50
Information to be given to inspector as to, 52
Certificate of filing to be produced to inspector, 52
In replevin (see Replevin Bond), 86
In garnishee proceedings (see Garnishment), 277, 278
In Attachment (see Absconding Debtor), 348, 349, 353
. On release of goods seized, 348, 349
On sale of perishable goods, 353
In Ajypeal (see Appeal), 222
520
INDEX.
Security — Continued. . ,
How given, 223, 224, 227
Approval of, 224, 226
Sureties in, 224, 225
Who may be, 225
Objections to, 226
Justification of, 225
May be waived, 224
Securities for Monky (see Execution) —
Liable to aeizure under execution, 314, olo
Circumstances under which money seizable, 315
Procedure on seizure of, 315, 316, 317
Seizure (see Execution) —
Formalities of , 294
Goods liable to, 294
Moneys and securities, 314, 315
Mortgagor's interest in goods, 314
Of goods under warrant of attachment, 340
Seduction —
Action for, not maintainable in D. C, 54, 72
Senior County —
On separation from junior, divisions to continue, 12
Papers to be delivered by officers as Judge directs, 14
Proceedings to be continued in certain cases, 14
Sequestration —
Division Courts have power to order, 90
Where remedy applicable, 95
Effect of, 95
Separation of Junior from Senior County (see Senior County), 12, 14
Service —
Bailiff to serve all process, 41
not bound to make out of his division, 11
Mileage on, not payable out of his county, 41
If insufficient as to time prohibition will lie, 58
Of writ of replevin (see Replevin), 84
Of summons, when suit brought in court nearest defendant's resi-
dence, 114
Of order changing place of trial, 117, 120
Of summons forwarded from other division, 120
Of summons, when to be 10 days and when 15 days before return,
129
Meaning of "return day," 129
INDEX.
521
2, 14
; s resi-
return,
Seuvice— CoHftiJ'wd.
Persona!, when claim exceeds $16 : 130
Ho^ made when claim does not exceed $15 : 130, 132
Due proof of, what is. If
Of subpoena (see Subpcsna), 189, 192
Of notice of motion for speedy judgment, 155
Of notice of executing commission to take evidence, 197
Of attaching order after judgment {see Garnishment), 200 •
Effect of, 2G0-262
On ga'rnishee, of summons after judgment, 265
Bights of persons as to, on proceeding affecting their interests, 2():>
On garnishee, of summons before judgment, 263
Where garnishee a foreign corporation, 268
Of judgment summons, 322
Of process in attachment against absconding debtor, 350, 351
Personal Service —
Meaning of, 130
What held to be, 130, 131
Original to be shewn if required, 130
What held not to be, 131
On county corporations, 131
On other corporations, 131, 132
On foreign corporations, 1 32
On Sunday void, and cannot be waived, 131, 132
After amendment of particulars must be re-served, 131
Procedure when party refuses to take copy, 131
Judgment in default of appearance on personal service, 166, 167
Irregularities in —
Effect of, 131. 132
Waived if not promptly moved against, 131
When judgment set aside for, 131 .
Duty of bailiff on failure to effect, 131
When and by whom to be made, 131, 132
May be in any county by any bailiff, 131
May be while defendant attending court, 132
Effect of on wrong person, 132
Admission of, waives all irregularities, 132
And also appearance at trial, 132
Mode of, where not required to be personal, 132
Duty of bailiff in such cases, 132
Not necessary to be by bailiff, 132
Effect of when personal in action on foreign judgment. 132
Whether good or not, a question for Judge, 132
Substitutional —
\Vhen order for,will be granted (see Substitutional Service), 133.13(>
522
INDEX.
C'f.
'
c,i:
Li.
Sehmcz— Continued.
Facts not sufficient to shew, may bo ({round for substitutional
service, 134
On official of j^aol in which defendant confined, not sufficient, 134
On person out of jurisdiction, of no effect, 134
Unless he has an office and an agent in Ontario, 134, 135
On a lunatic, 135
Necessity for guardian ad litem in such case, 135
Wilfully evading, what is, 13(J
On Foreign Corporation Firm or Indifidual —
May be on agent whose office within division or nearest thereto, 136
Corporations to which provision applicable, 137
Of process where there is no bailiff, 138
When required to be served out of division, 138
Affidavits of — • ••
To be prepared by clerk, 130
To be annexed to or indorsed on summons, 13!> ' •
To state distance travelled, 140 •
How mileage computed, 140 . . "
Other requisites of, 151 • . • . .
May be received notwithstanding defects, 151
On one of several partners or joint debtors —
May be made in certain cases {see Partners), 140
On partners in action against firm {/ee Partners), 142-145
Of proceedings in Appeal — r •
Parties to appoint agent for, 227 "
Of Summons to Jurors (see Juvors),2'67 -. n
Set Off —
As to crediting of, in order to give jurisdiction (see Jurisdiction),
59, 75, 106
May be pleaded in action on replevin bond, 87
Reduction of claim for over ^100, not sufficient to give jurisdiction
(see Unsettled Account), 106
Available in action against one of several joint-debtors, 140
What it signifies, 179
Powers of Division Courts in respect of, 170
Distinguished from counter-claim, 96, 170 '
Effect of distinction on question of costs, 180 • • '
Notice of —
To be given 6 days before trial, 179
To be sufficient notice of defence, 158
Particulars of —
To be given with notice, 180
Kequisites of, 180 ■ '
Service of, 180 ' ■ -' ••' ■ *'
INDEX.
523
titutional
cient, 134
r '
jreto, 130
isdiction),
irisdiction
140
Set OTT—Cont hived.
No evidence to be given as to matters not contained in, 187
Amendment of, 187
Notice hy C/<?rfc—
To be Riven stating the sittings, etc., 180 '■
StatHtes of Limitation — .
Not a bar unless G years elapsed before action, 182
Evidence —
Not to bo given except as to matters contained m particulars, l»7
Excess over plaintiff's claim—
Defendant may have judgment for, if within jurisdiction, 187
When amount beyond jurisdiction, 188
Adjudication in such case to be no bar to recovery of excess, 188
Where matter beyond jurisdiction involved {sec Defence), 99
Costs —
Defendant only entitled to costs of defence, 188
Cross-judgments —
May be set-off (nee Execution), 303
Skttino Aside Proceedings— -^
In certiorari (sec Certiorari), 107, 108
For irregularity in service (see Service), 131
Order for substitutional service (see Substitutional Service), 135,
136
Judgment by default (see Judgment by Default), 145-150
Subpojna duces tecum (see Subpoena), 192
Irregular judgment (see Judgment), 212
Attachment of debts (see Garnishment), 277
Process of court not to be set aside for matters of form, 292
Award of arbitrators (sec Arbitration), 287
Judge has inherent power to set aside proceedings improperly
issued, 339
Execution (see Execution), 301
Attachment of goods (see Absconding Debtor), 339, 352
Powers of High Court as to, not applicable to D. C's., 394
Setting off Judgments —
Cross-judgments may be set off, 303
Effect of, 303
Settlement —
Action on, not maintainable in D. C, 54
Shall (see Discretion) —
Meaning of, 5, 15, 16
Sheeiff —
To be one of tribunal for altering divisions of courts, 11
524
INDEX.
a::
cr'
u.
Shekiff — Continued.
Execution of writ of replevin by, where instituted by him as liqui-
dator of plaintiff, 85
Return by, to writ of replevin, 84
May put in claim of special property in replevin of goods by
grantee of judgment debtor under bill of sale, 86
Ri<;ht of, to intervene and take goods seized by bailiff of D. G. {see
Execution), 302, 319
How proceeds of goods to be distributed by, 302
Bailiff's fees in such cases to be paid by, 302, 819
Procedure by, on failure to make money on Division Court judg-
ments or certificates filed, 302
Proceedings by, for attachment of debts due to execution debtor
under Creditors' Belief Act, 280
Right of, to recover money attached in Division Court, 279, 280, 281
Entitled to all money in Division Court under attachment against
primary debtor, 279-281
When Division Court attachment superseded by {see Absconding
Debtor), 340-342
SiGNAXURF, —
Of Judge not necessary to be by his own hand, 18
What is a, 77
Sufficiency of, on ascertainment of amount, 75-78
Of deponent to affidavit, 119
Of commissioner or clerk to jurat, 119
Sittings of Courts —
Time and place of holding, 5, 6
Accommodation for, 6
Number of, in Toronto, 6
Number requisite in cities and towns, 6
Where to be held in cities where two courts established, 6
Municipality to i arnish accommodation for, 7
When no proper court room furnished, 7
Payment for accommodation, how made, 7
Not to be held in connection with hotel, 7
In county town to be held in court house, 9
In remote districts, how regulated, 9
Clerk of the peace to keep a record of, 16
Where held when general sessions at same time, 19
Who to preside at (see Judge), 19
in case of illness or absence of judge, 19
Slander —
Action for, not maintainable in D. C, 54
Defined, 72
Cases held to be, 72
INDEX.
525
SOLICITOB —
Judge not to practice as, 19
Clerk not to practice as, 22
What held to be practising as, 22
May appear for parties at trial, 164, 170 -
Judge may be compelled to hear, 170
Power of Judge to exclude, 170, 171
COKtS of—
In action for, defence of no signed bill, statutory defence, 187
Lien for —
Priority over garnishee proceedings, 252
Does not prevent attachment by creditors of judgment debtor, 252
Notice of , must be given, 252
effect of, 252
Set off not allowed to prejudice of , 3G3
Speedy Judgment —
Rules of High Court not applicable to, 92, 154
Claim must be over *40, 154, 161
Summons and particulars, requisites of, 161
Motion for —
When and to whom made, 153, 155, 158, 161
To what cases applicable, 154
Right to, dependent on jurisdiction, 154
Affidavit for, 153, 155
requisites of, 155
. defective, effect of, 157
copy of, to accompany notice, 155
Notice of, 156
requisites of, 157, 158
service of, 153, 156, 158
when returnable, 153, 158
waiver of, 157
who to give, 157
and affidavit to be filed, 158
ratification of, when given without authority, 157
Setting up Defence —
By affidavit or otherwise, 158
What affidavit to shew, 158, 159
Bringing Money into Court, 153, 160
Defence on, not to be allowed without affidavit of merits, 160
Who entitled to money paid in, 160
Defence as to Part, 163, 154
Judgment for part undisputed, not as to recovery of remainder,
153, 160
If part admitted judgment may be therefor, 164, 161
526
INDEX.
i - 1 -
or
Speedy Judgment — Continued. _...,..
Part admitted, cannot be ordered to be paid, 154, ]61
Examination of Defendant —
May be ordered by Judge, 153, 160
When plainti£f entitled to order, 160
Effect of disobedience thereto, 160
Production of documents, may be ordered, 160 , ,„ ,
Costs of, 160
Execution on — • •
For part admitted, may be stayed until dispute decided, 161
Amendment —
Of summons after service of notice of motion, will not give juris-
diction, 161
Leave to defend —
When to be allowed, 154, 161 •. .
Terms of, 154, 161
Splitting Demands —
Causes of action not to be divided, 102
Meaning of " dividing causes of action," 102
What is a cause of action, 102
Prohibition wiil be granted on, 103
Divisible demands, 102, 103, 104
Demands, not divisible, 104
Distinction between demands which are single and those which are
several, 104
Consolidation of different causes depending at same time, 101
By Assignment (see Assignment of Choses in Action), 128
In Attachment {see Absconding Debtor), 345, 346
Spirituous Liquor — • i
Action for, not maintainable in D. C, 58
Nor for promissory note given therefor, 53
When jurisdiction is and is not excluded in such actions, ()6
Whether drunk in a tavern or ale-house, a question for Judge, 66
Question whether spirituous or malt, a question of fact, 67
Liquors deemed to be spirituous or malt, 67
Legal items separable from illegal, and recoverable, 67
Appropriation of payments on such account, 67
Cross-demands may be settled by, 67
Right to pay for not prohibited, 67
Meaning of " drunk " or " consumed on the premise?, " 68
Squares —
Definition of, 44
Stakeholder —
Liability of, for money in his hands (see Gambling Debt), 66
INDEX.
527
Statutes op Limitations —
Judgment not enforceable after 20 years, 4, 181
Effect of revivor within tj years, 4, 5
Foreign juclgment barred in 6 years, 5, 181
Limitation of action aj^ainst officers and sureties, 30, 383
Where question of application of would arise, certiorari granted, 107
Notice of defence of, to be given, 179
how and when to be given, 179
* When statute begins to run, 180
Fraudulent concealment does not prevent, 180
Except in actions over which Court of Chancery had concurrent
jurisdiction, 180
In actions accruing after death, 180
for fraudulent misrepresentation, 180
of account or for not accounting, 180
for mercantile accounts, 180
for rent on indenture of demise, 180
on a bond or recognizance, 180
. • • : ^- on award in writing under seal, 181
for an escape, 181
for money levied on execution, 181
for a penalty or statutory damages, 181
for the recovery of land or rent, 181
rent, including annuities and sums charged on lands, 181
for a solicitor's bill, 181
against mortgagor in possession, 181
on covenant to indemnify, 181
judgment of foreign country, 4, 181 ^
claims of executor against testator, 181
for malicious prosecution, 181
for calls for shares, 181
for conversion, 181
on a covenant in mortgage, 181
, on judgment of court of record, 181
, on a demand note, 182
on a bill of exchange, 182
on settlement of partnership accounts, 182
against solicitor for negligence, 182
when damages gist of action, 182
for wages earned by minor, 181
When action stops, 180
Plea of, and of set off, good defence on the merits, 180
Interest recoverable for whole period, 180
When superseded by special statutory limitation, 182
Procedure to keep claim alive, 182
528
INDEX.
Statctes of Limitations — Continued.
Personal representatives before administration, may bring action
so as to bar, 182
Sufficient Acknowledgment to Bar —
Must be before action, 185
Must be in writing, 183
Must import distinct and unqualified acknowledgment, 184
Must be certain and unconditional, 182, 184
Legal effect of, 182, 183 *
Cases held to be sufficient, 182, 188
When by doubtful or ambiguous language, how question deter-
mined, 185
Acknowledgments held not to be sufficient, 184, 185
Invalid acknowledgments, — physical or mental weakness, 185
judgment on voluntary settlement, 185
Acknowledgment, to whom to be made, 185
When acknowledgment by part payment sufficient, 185, 186, 187
Trustees —
When statute applicable to executors, administrators and trustees,
187
Statctory Defence —
Notice of, must be given, 170
Defence in action on bill of costs if no signed bill, 187
Notice of to be deemed notice of defence, 158, 178
-Staying Proceedings —
On application for prohibition, 63
In replevin, 86, 87
When action for same cause pending out of Ontario, 89
On plea of tender and payment into court, 175
Order for stay until further order of court cannot be abandoned, 176
Of execution on ground of inability of defendant to pay, 215
On appeal, 222, 223
On issue of transcript to Division Court, 306
In action of replevin, on issue of interpleader summons, 345
Stolen Goods —
Replevin of {see Replevin), 83, 85
Streets —
I If..
Meaning of, 44 '"'■•-.
Striking onr Count —
Judge has power to strike out count ousting jurisdiction, 58
Sdbp(ena—
Judge compelled to attend on duces tecum, 19
INDEX.
529
ng action
184
ion deter-
18, 185
iment, 185
186, 187
I trustees.
doned, 175
,215
345
1,58
SUBPCENA — Continued.
Parties may obtain from clerk, of any D. C, 188
Necessity for, 188
Applicable to any resident of the province, 188
Cannot be issued in blank, 189 ■ ,
Must name place of trial, 18y
May contain any number of names, 192
Witness resident in foreign country may be served here, 189
Conduct money in such cases, 189
How to be served, 189, 193
To be served reasonable time before trial, 189
May be served by any literate person, 192 . ■ • - -
Proof of service. 192, 193
Duces tecum {see Witness), 191 .
When issuable, 188 r •
Production of documents under, 191, 192
Penalty for disobedience to, or for refusal to be sworn, 193
Setting Aside —
Duces tecum for production of irrelevent documents, 192
Service of, out of county, 194 ^, . . .
Witness fees in such cases, 194, 195
As to witness fees (see Witness), 189-192
Contempt —
When witness guilty of, 189, 193
Penalty of disobeying or refusing to be sworn, 193
Substituting Parties —
Witness admitting that he is real debtor, may be substituted for
defendant, 55
Substitutional Service —
May be ordered upon defendant, primary debtor or garnishee, 133
Affidavit for —
Requisites of, 133, 134 ■, ■-
Application for —
To whom made, 135
Wnat must be shewn on, 133, 134
Order for —
Grounds for granting, 133, 134
When it may and may not be granted, 133, 184, 135
For service on persons out of jurisdiction, 134, 135
Principle of, 135
When defendant has absconded, 133, 135
When out of Ontario, but has an office and agent within province,
133, 135
When summons deemed to have come to knowledge of party,
134, 135 -
D.C.A.— 34
630
INDEX.
Sdbstitutional Service— CowtiH«<?d. •
Usually made c^ 2)0 r/c, 135
Irregularities in, may be waived, 135
What should be prescribed by, 136
Application to Set Aside Order —
Time and manner of making, 135
Affidavit for, requisites of, 136
May be set aside for good cause if properly made, 136
Terms of, 136
Proceedings after Order, 136
Must conform to order, 136
Wilfully Evading Service —
Meaning of, 136
Absconded —
Meaning of, 136
Of attaching order (see Garnishment), 260
Sufficient Cause —
What is, 215
Suitor's Money —
Clerk to keep account of, 38
Verified account of, to be furnished to Judge when required, 39
List of, to be made out by clerk annually and put up in his office
and in court room, 39
Collected by bailiff on process issued out of division, 139
Clerk to mail notice of, payment of, 387
How notice to be sent, 387, 388
Form of notice, 388
See unclaimed money, 388, 389
Suits—
Where to be entered and tried (see Territorial Jurisdiction;, 109-124
By and against clerks and bailiffs (see Clerks and Bailiffs), 123, 124
By and against Judges, etc. (see Judge), 125
SUUMONS —
Clerk to issue, 36
To be filled up without blanks, 36
Is commencement of action, 36
Effect of neglect to issue and serve, 36
May be waived by defendant's appearance, 36
Not to issue when want of jurisdiction apparent, 36
Nor if sought for improper purpose, 36
To be a perfect process when delivered for service, 37
Clerk to keep record of, 37
Bailiff to serve, 41
INDEX.
531
squired, 39
p in his office
139
tionj, 109-124
iliffs), 123, 124
Summons— CortttHMcd.
By inspector on inquiry by him, 61
In replevin, issued in blank for defendant's name, 86
How to be numbered, 127
Indorsements on —
Of notice respecting change of place of trial, 129
In what cases notice material, 130
Time for making cannot be enlarged, 130
Service of —
When suit brought in court nearest defendants' residence, 114
When forwarded from another division, 126
To be served 10 days before return, 129
When defendant out of county, to be served 15 days before
return, 129
When to be personal or otherwise, 130 .
When there is no bailiff, 138
When required to be served at a distance, 138
In Attachment —
When proceedings commenced by, 345
Service of, 350
Affidavits of Service —
To be prepared by clerk, 139
Requisites of, 139, 140
Mileage to be stated in, 139
Special —
Judgment by default on {see Judgment by Default), 145-14H
Alias —
When requisite, 150
To jurors (see Jurors), 235-237
On garnishment of wages, 257
memorandum to be endorsed, 257, 258
To garnishee ajter judgment, 263
requisites of, 263
from what court to issue, 263, 264
when returnable, 263, 264
mode of service, 265
To garnishee before judgment, 267
from what court to issue, 267, 268
memorandum on, 267
service of, 268, 269
effect of, 273, 274
In case of conflicting claims, 278, 282
Support and Maintenance -
Of debtor's family, what necessary for, 255
532
INDEX.
BnRETIEB —
or
Responsibility of for deputy-clerks and bailiffs, 24, 25, 27
Liability of clerks' and bailiffs', 26-31
Guarantee company may be, 25 . • T
Covenant of, enures to suitors, 27, 32
Joint suretyship of other surety part of consideration, 27
Meaning of " sureties," 27
Who may be, 27, 30, 31 .... • 1.
Liability generally on oi!icial bond, 27
The scope of the covenant, 27 • "
Not liable where no legal appointment, 27 y .
To what default liability attaches, 27 . . -
in paying over money, 27, 28
non-performance of duties, 28 ; . v
misconduot, 29
Demand, when necessary, 29 , ,
Parties to action against, 29 ' . : . '■
Belease of, 29 ...
Several actions — limitation of liability, 30
when proceedings will be stayed, 30
relief in such cases, 30 '• ■
Contribution, 30, 140, 141 , : . J:
what is, 141 -
extent to which judgment enforceable against others,
30, 141
Death of, 30 ,•.*..;•.■
new security to be given, 30 . .
liability of other sureties in the meantime, 30
Rights of sureties against officer, 30 . ' '
Statute of limitations, when action barred, 30 -
Must be freeholders, 30 ■■-
Residents of county, 31 , .
Liability if not residents, 31 ..
Amount of covenant, how regulated, 31 . » .
Judge to approve covenant, 26, 31
Covenant to be verified by affidavits of execution and justifica-
tion, 31
Should be free from all possible objections, 31
To be filed with clerk of the peace, 31 ...
Not discharged by officers' omission to execute, 32
Where covenant may be sued, 32
Certified copy of covenant to be evidence, 32 .
Entries by officer to be evidence against, 32
Covenant applicable to person who has ceased to be an officer, 32
Proceedings on death, withdrawal or insolvency of, 33
Forfeiture of office on failure to comply with statute, 33, 34
INDEX.
533
.. <• ^-o.
BvRT.nsB— Continued. ' ■ •
Procedure on disconti^iuance of, 33, 34
Act respecting public officers applicable, 34 ...
Powers conferred by such Act to be exercised by Judge, 34
Provisions of that Act set forth, 34, 35
Liability of, on withdrawal for matters previous to renewal of
covenant, 35 , . . . ' .» ;. -- " -
Duty of inspector as to, 50 f.' '
Officers to inform inspector of names, etc., of, 52 "
and of new sureties, 53
Liability of, in respect to process served or executed at a distance,
139
When co-surety may compel an assif^nment of jud;4ment, 141
In Beplevin (see 'ReT^lemn Bond), 86 ^^_ .. ; '•■,
Release of, 87 , ■ ..; - .
Liability of, 87, 88 ' _^ . • -
J« ^ppeaUsee Appeal), 224-227 ' V,"" /
Justification of, 224, 225 ... _ ' _ ... -
Who may be, 225
Objections to, 226 '.
Suspension of Officers (see Clerks and Bailiffs), 22, 23 - ;.
st others,
T.
justifica-
fficer,32
34
Table of Fees — * -
To be hung up in clerk's office, 44
Tabiff —
Of fees to be hung up in clerk's office, 44
Officers not to take fees except as provided by, 47
And statute prescribe all lawful fees, 50
Taverns and Alehouses —
Action for liquors drunk in, prohibited, 53
Meaning of, defined, 67
Character of, not destroyed by additions to, 67
When jurisdiction ousted (see Spirituous Liquors), 67
Meaning of " drunk or consumed " on the premises, 68
Taxation of Costs —
Is a " proceeding," 12 ,
Procedure on (see Costs), 38, 45
Revision of, 38
Taxes —
Replevin of goods distrained for, 81
534
INDEX.
f
a- m
u.. ""^■
TEIiEORAMS —
Proper person to produce on subpoena, 190
Telegraph Company —
Foreign corporations, having office and agent in Ontario, service
of process on, 137
Tenant — (See Landlord)
Where estopped from denying landlord's title, jtirisdiction not
ousted, 69
Tender—
Plea of—
When to be filed, 171
Payment into court to accompany, 171
To what actions applicable, 171
Operation and e£ect of, 171
Admissions by, 171
Stay of proceedings, 175
When interest stopped by, 174
Plaintiff may be non-suited after, 175
liy tchom made —
By servant or agent, 171
'To whom made —
Peisons authorized to receive payment, 171, 172
Where there are several demands, 172
To an executor, 172, 173
Waiver of, 172, 173
Set-off not applicable in reduction of amount due, 172
Blode of making, 172
In silver and copper, 172
Bank notes, 172 «
By cheque, 172
£(tde?jce o/, 172, 173 ,=
Production of money, 172
When dispensed with, 172
Cases thereon, 172, 173
Eequiring change, 173
Where plea may or may not be supported by tender of larger sum,
172, 173
Demand of receipt, 174 '
Not good if accompanied by demand of receipt in full, 17i
But condition may be waived by creditor, 174
Receipt for amount tendered may be demanded, 174
Whether absolute or conditional a question of fact, 174
Under protest, may be made, 174
INDEX.
535
service
on not
[er sum,
Tesder— Continued.
Jhmand of i^nymjut— « . ^i n^
By creditor prior or subsequent to, effect- or, 174
What deemed to be sufficient, 174
Onus of proving, 174
lie/iiMl of, 175 ■
Not t?round for action, 175 ,
Notice of defence of , 115 . _.
To be given by clerk to plaintiff, 17o
. '""^^;ZZpl^^. unl- notice o. intentioa to proceed
given, 175
Suit to be determined before payment out, llo
Notice of intention to proceed-
To he gWen in yrritins Within three d&ya, no
Effect of failure to give, 175 ^
Tf given, case to be tried at next sittings, 17a
Stay of proceedinns— ^ ^ • , 17.-,
To take effect if notice to proceed not given, 17a
Effect of, 175
Practice as to, 175
Costs —
Rule as to, 176
What included in, 170
Effect of decision on question of, 176
Of amunt of execution before sale, (see Execution), 301
Tender of AMEKDS-(Sce Officers of Court), 386
Territorial Districts— -
Holding of courts in, 21
Division Court Act, 1880, held not to apply to, 55
Territorial Jurisdiction—
When objections to, must be raised, 56
In replevin (see Replevin), 80 ,^-^ iao
Court in which actions may be entered and tried, 109
Where cause of action arose, 109-111
Where defendant resides, 111-113
Where defendant carries on business, 113, 114
Court nearest to defendant's residence, 114
Service of summons in such cases, 114
Enforcing execution thereon, 114
In actions on insurance premi".'- notes, 115
In actions by building societies for calls, 115 ^g
When suits may be brought in other than regular dms,ons, 116
Division adjacent to that in which defendant resides, 115
Judge's order necessary in such case, 115
536
INDEX.
Or.
u.
TERRiTonTAii Jurisdiction — Continued.
In actions against corporations, firms or individuals («(-,■ Corpora-
tion), 116, 136-138
Where claim exceeds $100, and payable out of Ontario, 116
Where claim exceeds flOO and payable at a particular place, 116
Place of trial may be changed in such cases, 116-1'iU
Where action brought in wrong division, 120
Transfer of proceedings in such cases, 120
Proper division in which to sue, 121
When application for transfer to be made, 121, 122
'•••Who may make application, 122 • . .-
Effect of transfer, 120
Costs to be certified to court to which transfer made, 121-123
Affidavit of want of jurisdiction, 122 • -
Procedure after transfer, 121, 122
Suits by and agaiust clerks or bailiffs, where to be brought, 123
124
Suits by or against Judge, etc., where to be brought, 125 ,» .
Trial by consent may be in any division, 135
In garnishee proceedings after judgment, where summons to issue,
263, 264
Where garnishee out of jurisdiction, 268
Third Party —
Served with process and appearing at trial not entitled to prohibi-
tion, 57
Relief against, 98
Consolidated rules respecting, not applicable to Division Courts, 98
Conditions to be complied with, 98
subject matter to which relief relates, 98 ...
persons against whom relief sought, 98
No objection that third party could not have been joined in action, .
98
May appeal («ee Appeal), 217
Timber — ^ • . . .
Sold and cut into logs may be replevied, 83 ;,
Time, CoMPCTATioN OF— ,' '
Month, meaning of, 21 .
Within one month, 33 ..
Within so many days, 52, 118, 148, 175, 212, 256, 803
Within six months, 384 . ^
Not less than two clear days, 158 - . . .
Not less than six days, 178 , .'
Clear days, 212 .' • -^
Not more than 50 days, 215
m
INDEX.
537
Time, ToMrcTATioN OF— C(i;in';iH<?J. "" • ■' •' " •
For six days, 239 \ ' . "
One month at least, 38() ...
Time and Pi-ace of IIoldino Courth—
May be regulated by Lieutenant-Governor in certain cases,
See Courts
Title of Act, 1
Title Deeds —
Replevin may be brought for, 83 • . .
Title to Land (see Actions for Recovery of Land)
Questions of, not to be tried in Division Courts, 51
When in question, amendment to fiive jurisdiction not allowed, 59
When involved, prohibition granted, G2
When jurisdiction ousted by, C8
When jurisdiction not ousted by, 69 ".
Procedure in such cases, 69 ,
Exceptions, 70 --, . •
Jurisdiction in replevin ousted by, 80
Toll— '
Questions of title to, not to be tried in Division Courts, 54
Definition of, 70 - -•;
, What requisite to oust jurisdiction, 70, 71 :
Charges of a railway company not included in, 70
Harbour rates are, 70 'h' . ' '• , - • v
Payments for use of locomotive power, as distinguished from use
of railway are not, 70
Right to take must be clear, 70
Mere claim of, not bona fide, does not oust jurisdiction, 71
Toronto —
Number of courts and sittings in, 6
TOBT— . . J • \
Actions of, within competency of Division Court? (see Jurisdiction ) ,
73,75
What are, 75
Town (see County Town)—
Number of courts in each-, 2
More than 6 sittings each year usually required in, 6
Township —
Definition of, 12
Establishment of courts in, 11
How same numbered, 12
3
538
INDEX.
X
Tkanscbipt of Judgment —
To Division Courts —
Against clerks and bailiffs may be enforced in adjoining division,
124
To be prepared and transmitted on application of judgment
creditor, 305
Clerk not to prepare and send without authority, 305, 306
Requisites of, 305, 306
Clerk receiving, to enter, 306
Effect of, after transmission, 306
Proceedings thereon, 307, 308
No further proceedings in home court withoi u Judge's order or
affidavit, 306, 307
Requisites of such affidavit, 30G, 307
Where home court without jurisdiction, effect of, 306
Prohibition in such cases, 306
Bailiff of foreign court not accountable to Judge of home court, 306
Notice of return of miUa bona to execution on, to be given by
clerk, 307
Effect of absence of registration certificate of such notice, 307, 308
Return of nulla bona in heme court not requisite before issuing, 308
To County Court —
May issue on unsatisfied judgment of $40, 310
Execution to be returned nulla bona, 310
Such return not necessary from home court when transcript to
another division, 308, 310
Requisites of, 310, 311, 312
Return of nulla bona, what is, 310
What included in " sum remaining unpaid," 311
Fraudulent conveyance not impeachable by creditor for less than
HO: 311
Irregularities in, effect of, 312
Power of county court to set aside for want of jurisdiction in
Division Court, 312
Effect of pendency of judgment summons proceedings in Division
Court, 312
On filing to become judgment of County Court, 312
Formalities requisite on filing, 312
Where to be filed, 312, 313
Judgment in County Court void if no valid judgment in Division
Court, 313
Effect of prohibition to County Court, 313
Proceedings subsequent to filing, 312, 313
TUANSFEU OF PkOCEEIUNOS —
On separation of county, 11
INDEX.
539
Transfer of Proceedings— Coiifunicff.
"Where suit brought in wrong court {see Territorial Jurisdiction),
120123
By certiorari (see Certiorari), 104, 107
To High Court where defence involves matter beyond jurisdic-
tion, 99
See Changing Place of Trial, 118
Trespass —
Judge not liable in, for erroneous judgment, 17, 18
To goods, action of, within jurisdiction of Division Court, 60
Claims in, not to exceed $60, 73, 75
Where action for, maintainable, so also is replevin, 81
Officer acting under defective process not to be liable for (see
Officers of Court), 382 ^
/I ?; nu't 10, what is, 382
Trespass on the Case —
What wrongs subject to action of, 75
Jurisdiction of Division Courts in, 73, 75
Trial -
Pi«ctf 0/ (««<> TerritorialJurisdiction), 109-120
change of (see Change of Place of Trial), 110-119
By Jiuhje —
Defendant to appear at, 1G2
To proceed in summary manner, 163
Striking out cause not usual on, 163
Judge to try cause and give judgment, 163
should hear the whole case, 163
when judgment may be reversed, 163
not to try cause in plaintiff's absence, 164
should try ca-ase alone. 240, 241
In actions against absconding debtors (see Absconding Debtor),
346, 350
By Jury (see Jury), 232
Judge may non-suit if no evidence to submit, 163, 240
When judgment will be reviewed, 163
When jury may be required (see Jury), 232
Party cannot be deprived of right to, 232, 234
Case not to b? withdrawn from, 232, 240
♦ Order of trial (see Jury), 239, 240
Empannelling jury, 240
Verdict to be unanimous, 240
Non-stdt —
Plaintiff may insist on, 163, 164
May be ordered against plaintiff's will, 164
540
INDEX.
>-
a:
Trial — Continued. ■ ., ."
Effect of defendant examining witnesses after moving for, 164
May be after payment into court, 164
To be taken before verdict recorded, 164 •"
Effect of, 164 ;• :
Not to be granted on motion for new trial on grounds not taken
at trial, 164
Procedure at, 164, 165 ,
Order in which actions to be tried, 146
Cases transferred from other divisions, 121, 122
Jury cases to be tried in same order as other actions, 233, 234
But jury list to be disposed of before Judges' list, 239, 240,
Cases over 9100 to be at foot of list, 164
Evidence in appealable cases to be taken in writing, 164, 165
Postponement of, 167
When order for, to be made, 167 - - "
Practice as to, 167, 168 _. . i
Costs on, 168, 169 ...
Other terms, 169 . .
In jury cases, 169 -. -
Effect of, taking benefit of terms, 169 •' • • -'
Order for, may be re-opened before acted on, 169
Consent to, not to be withdrawn, 169
Who may appear at, 170 . '.
Mandamus will lie to compel Judge to hear agent, 170
Judge may exclude anyone, 170
Party may appear in his own behalf and as witness in the cause,
170
Procedure where defendants appear by different counsel, 170
Advocate may appear as such and as witness, 170
Authority of agent or solicitor to bind client, 170
Trial List —
Judge's list and jury list to be made out, 239, 240
Order in which actions to be tried {see Trial), 164, 233, 234, 239, 24a
Trover —
Action of, for a deed, whether maintainable in Division Court, 55
Action of, not exceeding 960 maintainable, 73, 75
Trcstees —
Statutes of limitations applicable to, (see Statutes of LimitationB)^
187
When debts in hands of, liable to attachment (see Garnishment),
246, 247, 249, 252
INDEX.
541
64
taken
34
u
Unclaimed Moneys—
Disposal of, 388, 389
Action for to be barred if not claimed withm 6 years, 389
When time begins to run, 389 . ,. , ooa
Claims of persons under disability not to be prejudiced, 389
Unjust Pbeference —
Replevin of goods under bill of sale having effect of (see Replevin),
85
Confession of debt not within statute respecting, 289
Unsettled Account — •
Jurisdiction in Division Courts in actions for balance of, 105
Meaning of, 105
Cases held to be within the jurisdiction, 105 ,
Plaintiff may abandon excess over $100 : 105
ICffect of such abandonment, 106
Claim reduced by set-off not within jurisdiction, 106
Effect of judgment in action for, 106
Form of judgment, 106
Where proper form of judgment pointed out, 104
cause,
'0
ir
Validity of Devise—
Action respecting, not maintainable in Division Courts, 54
When jurisdiction ousted in such cases, 71
Venue
39, 24a
rart, 55
a.tionB),
iment),
When suit brought in wrong court defendant may waive right to
prohibition, 56
No amendment can be made in such case, 59
In replevin (see Replevin), 80 „ ., . , , • a-^
Where actions may be entered and tried (see Terntonal Junsdic
tion, 109-120
In actions on insurance premium notes, 115
In actions for calls of building societies, llo
Change of (see- Changing Place of Trial), 116
In actions against clerks and bailiffs, 123, 124
In actions against Judges and stipendiary magistrates, 125
May be laid by consent in any division, 125
After removal of action by certiorari (see Certiorari), 108
542
INDEX.
Venoe — Continued.
In garnishee proceedings after judgment, 263, 264
In actions against officers, etc., acting under process, 38 i
Vebdict —
In replevin, may be divisible {see Replevin), 80
May be given by Judge instanter or postponed, 208
May order times and proportions of payment, 211
Setting aside (see Jury), 213-215
When attachable under garnishee proceedings, 248
Not to be set aside for matter of form, 292
See New Trial — Appeal
w.
0:-
Wager —
Definition of, 65
Action for, maintainable by common law of England, 65
What is and is not illegal (see Gambling Debt), 65, 66
Waoes —
Infant may recover for, in Division Court up to flOO : 99
Earned by minor belongs to himself, 100
Right of servant to recover (see Master and Servant), 100-102
When adjudication by justice of the peace repecting, bars action in
D.C., 54
Or salary, when garnishable (see Garnishment), 253-258
Waiver —
Omission by defendant to take advantage of defences open to him, 4
Issue and service of summons may be waived by defendant, 36,
131, 132
Taking step in suit before raising question of jurisdiction, effect of,
66
Defendant may waive right to prohibition, 56, 57
Of irregularity in proceedings for substitutional service, 135
Of defects in notice of motion for speedy judgment, 157
What it consists of, 198
Application for new trial does not amount to, 212
Of irregularity in proceedings before arbitrator, 284
Warden of County —
To take part in proceedings on alterations of divisions, 10, 11
Warrants —
And writs of execution to be issued by clerk, 38
INDEX.
543
^W\T<v^\^X1a— Continued.
To be served and executed by bailiff, 41
Of distress for non-payment of fine, goods seized under, not
repleviable, 85 ■, ^ c \
Of commitment on judgment summons {see Judgment Sum mons),
330-333
Of attachment (see Absconding Debtor), 336.340
Execution of, by unauthorized person, effect of (see Absconding
Debtor), 340 ,.-•.* o-o Q7i
Of commitment of officer for misconduct, requisites of, 3.3, 374
Protection of officers, etc., acting under, 378
Demand of perusal of copy of, before action, 378
If clerk and bailiff joint defendants, bailiff entitled to verdict on
producing, 380 , . , j ooi-
What costs plaintiff entitled to in action for things done under, 38b
Defendant may plead not guilty by statute, 381
See Officers of Court, 378-386
Waste—
When injunction may be granted against, 92
Water —
Floodinn of Land htj — . . „ ^ ^x. ^i,
Action for damage by, maintainable in Division Courts though
title in question, 70
Division Courts may grant injunctions restraining, 92
Wearing Apparel —
Definition of, 300 . , • ui qj
Articles carried about the person or worn, not repleviable, 83
Exemption of, from seizure under execution, 299
Action on devise, bequest or limitation under, not mamtamable m
Division Courts. 54
When jurisdiction ousted in such cases, 71
Withdrawal of Jdror —
Does not neoessarily end cause, 212, 233
Withdrawal of Notice of Defence—
Procedure on, 162
Withdrawal op Surety —
Procedure on (see Sureties), 33
Winding-up Act—
Debt due by company in liquidation under, when garnishable, 248
Procedure necessary in such cases, 248
544
INDEX.
{'
u.
Witnesses—
Affidavit of disbursements to, to be furnished to clerk by success-
ful party, 38
If fees not paid, must be disallowed, 38
Clerk not bound to pay successful party fees of, out of money
deposited by plaintiff for costs, 45
Attendance of, compellable on inquiry by inspector, 51
Admitting liability, raay be substituted for defendant, 55
Subpoena and service thereof on {see Subpoena), 188-190
Fees and Conduct Money, 189
To be paid or tendered to, 189-192
if not paid, not called upon to give evidence for party subpoenaing
him, 193
Recovery back where attendance countermanded, 189
" Effect of refusal of, 189
May be examined by opposite party without payment or tender
of, 189
Cannot refuse cross-examination in such case, 189
To married woman to be tendered her, and not her husband, 190
Action for, maintainable though evidence refused on ground of
non-payment, 190
Solicitor not responuible for, 190
Paid by both parties, not recoverable by either, 190 >
Party to suit about to attend on his own account, not entitled
to. 190
When party to suit entitled to, 190
What Fees Payable to, 189, 192
To witnesses resident out of county when subpoenaed, 194, 195
Tariff of, such fees, 195
To architects, etc., when summoned to give professional evidence,
192, 193 . . .
Service of subpoena does not affect right to, 195 . .
lion-attendance of — '. >
Effect of, 190 . , .. '[-.-.
What is, and is not sufficient excuse for, 190
Penalty for, 193 * '-' .* - " "• :"
To be liable to contempt must be material, 190
Bequisites of service in such cases, 193
Where a larger sum is bona fide demanded than witness entitled to,
he will not be brought into contempt, 189
Person charged with contempt has right to be heard, 194
Action Against —
May be sustained, 190
Actual damages must be shewn in, 190
Witless receiving full fees from one party and nominal fees from
the other is liable to, 190
INDEX.
)45
Witnesses— c?oH(/««f(?.
Pi-ivileiied Commiinkations —
No privilege ftttacliablo to tolegrams in pobiicsjiou of tLkgiMi li
operator, I'.IO
What deemed to to, 191, l'»2
What held not to be, 192
Privilcfjc of—
From arrest, 190
Cannot while going to or returning from trial bo arreat.d un civ J
process, 190
What held to bo civil process, 191
Power of court to order discharge, 191
In Gaol—
Attendance of, obtainable by lutbeax cuqms, 191
Expenses in such cases, 191
False affidavit of disbursements, effect of, 191
JCidiniiiation of, 191
Procedure when witness hostile, 191
Party conducting his own cause may be, 170
Advocate may act as such and as witness, 170 •
rrudiiction of Boohs, etc., 191
Witness producing, need not be sworn, 191
May be cross-examined if sworn, 191
Not excused on ground of lien, 191
or that document not material, 191
Compellable when in possession of witness in court, 191
Not compellable by servant against master's orders, 191
AH documents relevant to issue must be produced, 191
When deemed to be excusable, 191, 192
rfrnoiin in court —
May be called on to give evidence, 193 ,
Oath of—
To be according to religion, 19:5
Only dispensed with by statute, 19:3
Of Pagan Indian admissible, 193
Affirmation may be allowed instead of, 19:)
Kxamination of on commission (.<ee Commission), 195
Where attendance of, cannot be procured (se^ Lvidencu), KM
Examination of where resident in remote part of provmcc (...
Evidence), 203 . ^, 1 / . i.'vi
Where aged, infirm or unable from sickness to attend (so Evi-
dcnce), 203 ,, • , \ ..(>•<
Where resident at. distance from place of trial [sec Evidence), 203
U.C.A.— 35
546
WiTNEssKs -Continued,
INDEX.
Material and neccBsary, who is, '200
Costs of, where claim disputed and defendant afterwards confesses
judgment, 291
Examination on Arbitration {see Arbitration), 28i
Words and Piiuases, Inteiu'iiktaxion of —
Absconder, 13(5, 137
Absconding debtor, 337
Adjacent division, 123
Adjoining county, 124
Agent, 13(5, 355
Agreement in writing, 1(5(1
All courts, 32
Any person, 170
Any party to a cause, 217
Any place named therein, 118
At all times, 50
At least 7 days, 230
Board and lodging, 254
Breach of the peace, 43
trust, 327
By virtue of his office, 28
Carries on business, 111
Carrying on business, 112, 113 .
Casualty, 21
Cause of action, 102, 109
Clear days, 122, 212
Concealment to avoid service, 338
Consent, 125, 12(5
Consumed on the premises, 68
Contempt of court, 309, 370
Contested case, 290
Coparcenary, 355
Corporal hereditaments, 70
Costs, charges and expenses, 176
Costs in the cause, 138
County, 1, 2
County town, 2
Courts of Record, 3
Custom, 71
Debt, 245, 246
Debt or money demand, 146
Debt or money payable, 118
Defendant, 176
INDEX.
U7
Wonns AND PnnASKS, Intehprktvtion nv-C,nili,iiifi,1.
Directly or indirectly, 4ft
Discretion, 5
Disturbances, 44
Diviclinj^ a cftHRC of action, 102
Domicile, 111
Domiciled or ordinarily resident, HI
Drunk or consumed olT the premises, ()8
Due, 245
Due and owing, 24r)
Due or owing, 245
Due proof, 150
Dwells, 111
Employee, 253
Extortion, 373
Execution, 293
False pretences, 207
Family, 255
Filed, 32 *
For cause, 23
Forthwith (see Immediately), 23
Franchise, 71
Fraud or breach of trust. 320, 427
Freeholder, 30
From time to time, 308
Hereditaments, 70
If thought advisable, 205
Immediately, 40, 102, 371
Implements of trade, 301
Incompetency, 23
Incorporeal hereditament, 70
In detail, 123
Insolvent, 33
Insult to the judge, 251
In the opinion of the Judge. 251
In writing, 120, 100
Is empowered, 241 ,
It shall be lawful, 241
Joint tenancy, 355
Judge, 20 ■
Judgment, 13, 330
Judgment recovered, 204
Landlord, 355
of a tenement, 305
Levying on execution, 293
Lodger, 254
548
INDKX.
WoillS AM) PlIllVBl'.H, T\TF.nrilKTAIION OV- < 'out i llllid .
Miiiiitcimiinc ftiiil snpport, y")"!
MiilicioiiH proRPciilioii, 71
May, ];V2, 'ill
MiHcoiulnot, 'i^^'^
Money i-fcoivod Ijy virtiip of liis olliop, 2H
Montli, 21, HH
Near, 44
Nearest juRtico, 44
Nearest to tlio residence, 114
Necessary acconnnorlation, 7
Necessary for support, 2')'>
No'{li.i.;(!ntly; neglect or refusal, no^^'lect or oinmission, 2;i9
Notes of hand, 70
Not less than two clear days, 158
six days, 170
fifty days, 215
One month, 21, 33
(Jn suflicicnt grounds, Kil
Open court, 152
Otlier sufliciont cause, 210
Otlierwisc, 151
Party to a cause, 217
Payment, 277
Proceeding, 13
Process, 3
Reasonable and prohable cause, 351
certainty and detail, 148
efforts, 133
share, 8
Recovers, 178
Remote, 204
part of the province, 203
Resident, 31
Resides, 31, 111
Return day, 129
Riot, 44
Salary, 253
. Satisfactory reasons, 119
Seal, 2
Security, 20
Senior county, 12
Servant, 338
Shall, 15
be lawful, 241
INDEX.
WnniiH AND PiniAaRS, Tntkhpiikiation ov—Coiitinucl.
Slmll keep, r»:»
if ho (Icuins il aiiviaable, '21 1
BqnaroH, 44
■ HulMitutecl sevvicp, l:\')
Butticient t^roundH, ICd
reasons, HSfi
BUVCticH, iU
Sum in difiimte, 218
Support and nidiiitinanec, '2!t')
Sureties, 27
Tenants in common, Hf)')
Tenement, H05
Toll, 70
To abscond, 337
To be consumed on the premises, «;«
To " neglect " doinfi, 23<)
Tolls, 301
Township, 12
Under his hand, 31, 371
Unsatisfactory, 320
answers, 32(1
Upon payment of costs, KH)
Usual place of residence, 111
Void, 274
\Va«es or salary, 253 ,
Weaving apparel, 300
Wilhin the county, 31
one month, 21, 33
so many days, 52, 148, 175, 212, 25(5, 308
one week, 221t
two weeks, 220
a reasonable time, 44
Wilful, 13(i
insult, 371
Wilfully evades service, 130
Without further proof, 32
Writing, written, 120
Wrongfully, 41
Workmen and Laboukeus —
When wages of, garnishable (nee Garnishment), 253-258
r,i!)
WuoNG Division —
Procedure where action entered in {sec Territorial Jurisdiction),
120-122
nf)0
INPTIX.
ail
a:
i
WiioNd Division -r(i;///)(((('(/.
Prohibition may ho wiiivod in fiiicli caaos, M
No anicndmont can he niado, OT
WnoNo DoEns — •
Replevin maintainable aftainHt, by porflon liavingbaropo'^segHion, HI
WiioxoFnu.Y —
Meaning of, 41
IIolilip.>» monevfl, books, etc., of courts, 40, 41
f I inted liy TuE CAnswEI.L Co., liW., 22-30 Adtluiilo St. K.
sion,84