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Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 mmm tmmmmmmr^^^ jiii^i. ii iiyi »|,j.i._i,|jiiJi , t \\ ]^^r ^is Tttfi Division Courts Act, RULES AND FORMS; sn^ WITH ALL OTHER ENACTifENTS AEFEOTINO PROCEEDINGS IN DIVISION COURTS, NUMEROUS PRACTICAL AND EXPLANATORY NOTES, MANY NEW AND USEFUL FORMS, A TABLE OF DIVISION COURT LIMITS, A CIIAITRR ON PROHIBITION, MANDAMUS AND CERTIORARI, AKZ> A VERY COMPLETE INDEX. BY HENRY O'BRIEN, ESQ., HAKIllHTKR-AT-LAW, Compiler of Harrison \- O'Brien's Digest, and one of the Editors of tlie "Canada ; Law .lournal." S R C O N I) E D I T I N WILLING ^ WILLIAMSON MUOCCLXXIX, ( I .... I^ntered according to the Act of the Parliament of Canada, in tlie year One Thousand Eight Hundred and Seventy-nine, by IIisnky O'Urien, in tlie Ottice of the Minister of Agriculture. ^ ,,A/,,o -^ y- ^ 4 > TO HIS H (-) K U L' K JAMES ROBE K T G W A I»J , One Thouaaiul )f the Minister TFIIS VOLUMK IS IXSCRIBEl), l.V APPRECIATKIN OK TlIK TALKNTS Willi II ADUUN Ills I'OHITKIN, AND OK HIS KXKRTIOKfJ. To KiiRWAKl) THE UHK AND SYSTKMATIC ADMINISTIUTION OK JI'.STICE IN Oni DIVISION COl'RTH ; AS WKLIi AS A SLUlllT A(KNO\Vl,KI)(tMKNT OK HIS 1N\ AI,I Alll.K AID IX TlIK I'llKrAllATION OK THIS WOKK, AND OK NlMHKIll.KHS Ol^llKIl KIND ACTS OK VIIIKNUSIIII' TO MIS SIXUKIIK, KKIKXI), TilK I'lDITOR. n c4 PREFACE TO FIRST EDITION. A sketch of tho legislation which has resulted in the present Division Court system, may shortly be given as follows : In 1792, Courts of Request were established by 32 Geo. III., cap. <), which gave power to two o/ more justices of the peace to decide matters of deb^ up to forty shillings. This Act was amended in several particulars in 1816 by 56 Geo. III., cap. 5, which also increased the jurisdiction of the Courts to £5. By the 3 Wm. IV., cap. 1, the jurisdiction was further increaaed to JIO ; commis- sioners were appointed to preside in the Courts in the place of justices of the peace ; a clerk and bailiflf were appointed for each Court, and the commissioners, clerks and bailiffs were all paid by fees. In course of time, the large majority of the oommissioners proved to be utterly unworthy of the confidence of the Government or of the people, and the evil was so great that a commission was issued in October, 1839, to investigate the subject generally, and, if possible, suggest a better mode of recovering small debts. The statute of 4 »fc 6 Vict., cap. 53, was the result of this inquiry. The Bill was introduced by the then Attorney-General, Mr. Draper, and was based upon the report of the commissioners, of which he was rjne. To the sagacity and energy, therefore, of the present gifted Chief Justice of Upper Canada do we owe the estabUshment of our present admirable system of local Courts, This Act abolished the old Courts of Request, and in their stead established what we now call Division Courts. The District Court Judges were appointed to preside over these Courts in each district and were authorized to make rules of practice in their own Courts; tlie jurisdiction was further increased, and various other improve- ments effected. This Act, however, with others passed from time to time on the subject, was repealed by 13 & 14 Vict., cap. 53, which emodeUed the Courts, and gave them much more extended jurisdiction, fol- lowing in a great measure the provisions of the Imperial Act of 9 VI PUKFACK TO FIItST EDITION. & 10 Vict., ciip. !)r>. Tlie subscquont statutes, 1(5 Vict., cap. 177, and 18 Vict., cap. 125, gave tlio Courts further powers, and remedied some of tlio uofects of the then existing huv. All these last-mentioned statutes, togcthev with parts of Ki Vict., cap. 180 ; 19 Vict., cap. 43 ; 20 Vict., cap. :5 ; 2(» Vict., cap. OS ; 20 Vict, cap. 5!) ; and 22 Vict., cai). ;i!{ (185!)), were, witli some slight alterations that were necessary to carry out fully tlie spirit of the various enactments, consolidated by the commissioners apixtinteil for tlie revision of the statutes. The result of their labours on this subject apjiears in chapter 11) of the Consolidated Statutes of Upper Canada. Further powers, referred to in the body of this work, have since been given to the Division Courts ; and it Avould not seem to be going too far to say that the law as it stands is, with a few imper- fections, as complete a system for the purposes lor Avhich it was intended as could well bo devised. It was not until 184() that the system of local Courts in England was established in the way in which it now exists. In their general features the English " County Courts" are the same as our Division Courts ; and most oi the decisions on English Acts are more or less api^licable here. Many of these cases are noted in their liro2)er places, whilst all the decisions in our own Coiirts Avhicli be.'ir f)n +ho text have been referred to at greater ov less length as their importance deserved. Many of the provisions of the Act have also been examined by experienced County Judges in eases brought before them — of this the editor has also availed himself. The object which the editor ha,'ginh()tli.tin v. Moore Hill. Invi' H indie V. Bhules Hir.sch V. C'oiites HoIiiU's \'. ^^(Mltzl' Holmes v. lleevo Holmes \. Tutton Hood V. (.'ronkite Hdjio V. (Jraves Hol»iiiT V. Warburton lloi-snail v. I:>iiiee Hove V. Hush 475, 174, •<5, ,'j(). 110, 40, 111 198 1!)9 196 174 220 48 176 i!:3) 476 141 177 47<: 55 241 11.3 75 47'! 117 180 156 43 180 218 Isaac V. Wylil 1. J. Kalar v. Cornwall Kny V. G rover Keanc v. Stednian Ivehot! V. Brown Kelly V. (iaCney Kemp V. Hiilne Kemp V. Owen, In n- Kennedy v. Hall Kent V. (iicat Western K. C'o. Kerkin v. Kerkin Kerudt V. Bailey Kerr v. Oornell Kimpton v. Willey Kinderloy v. .Jervis King V. Maeclonalil Kingan v. Hall Kinniug v. Buchanan Kinning, Ex tmrtv 2«8 115 m 2S2 \V. 220, 221 470 473 477 53 113 145 .T). 174 ;»o Jackson v. Beaumont .lackson v. Spittal .lacoml) V. Henry •laniieson v. Kerr •Icffcry v. Bastard .lohnson v. Kvans •lohnson v. Leigh Jollilie, Ex imvlt .lolly V. Baiues Jones V. Cook Jones V. Gooday Jones V. Johnson Jones V. Jones .loucs V. Thompson Jones V. Turner Joutis V. Williams Jordan v. Wilcoxon Judge of Klgii), In n Judgeof Elgin and Macartney, /iV 473 Judge of Northumborland, /« /v 56 407 61 1 56 i.'-.s 232, 233, 234 241 ta ■2^S 210 470 2-36, 237 223 233 470, 471 112 112 200 471 14, 473 Judge of York, /•/( re 80 liacroix, In re Ladouceur v. Salter, In n: 31 I Lambe v. Smith I Latham v. Spedding : Laverach v. Bean i Lawford v. I'artridge 40, Lee v. (iansel ! Lewis V. Teal 232, Lexden Cnion v. Southgate Lidstcr v. Borrow Light v. Lyons 52, Lille}- V. Harvey Linden v. Buchanan, Jn re 148, Liudon V. Hoo2)er Lloyd V. Jones Lo(;khart v. Grey 110 Lockyer v. Jones London v. Cox Longbottom v. Longbottom Lord Mayor of London v. Cole Lough V. Coleman Love V. Culham M. Macara v. Moriish 43 Macaulay V. Kuniball HO .Macdowall v. Hollister 108 31 62 61 42 478 144 176 233 469 219 53 42 473 234 42 235 84 468 476 39 220 239 , -.r^r ' "^^^^ XVIU TA15LE OF CASES CITED, 11!), Mackay v. (loodsoii 174, 17r>, Mason v. Tins JJirkeiiliead liu- lirovt'iiieiit C'oiimiissiouers May V. Howlaiul Mayor of Loiuloii v. C'nx M.'lJi.sli V. The BuflaUi B. K. W. MoUisli V. VaiiNorinaii .Mercer v. Staiiberry Meytiis V. Baker MiiUUelield v. (ioultl Miller V. Tunis Milner, E,f j/arlc Milward v. t'ailin Miron v. MtCabe, Moore v. G id ley Moraii V. Palmer Morris v. Cameron Mungean v. Wlieatley Munieipality of Augu.sta v. Mu- nicipal Council of Leeds and (irenville, In re Munsie v. McKinley 42, -'Ul, Munson v. Collingwood Murray v. McNair Mc. lt», 56, 57, 470, 18;3, 179 2-21 4()8 112 til 201 235 22 21 47;i 233 471 222 221 4f. 233 474 202 2(50 •20(i McArthur V. Cool 20,21, McCuUouh and the Jtidge of Leedci and Grenville, l{t McDonald v. McKinnon McDonald v. McDonald McDougall V. Peterson McDongallv. Waddell 145, 147, McFce, Ej: parte 200, 276, Mcintosh V. Vansteenburgh Mcintosh V. Mcintosh lit, McKay v. Mitchell 110, McKenzie v. Keene McKenzie and Kyan 52, 54, 55, 57, McLaren v. Sudworth McLean v. McLeod 110, 138, 162, McMartin v. Hurlburt McMurtry v. Munro McNaughton v. Webster McPhatter v. Leslie Mcpherson v. Forrester M cBafc V. Piobina McWhirter v. Bongard 109, N. ^cale V. Ellis 5;i S\'rlicli V. Clill'ord 4(!!t, 471 S'ohro, Ex pnrlr 477 'foxon V. Holmes 60, ()1 NTugent V, Chanil crs 476 o. Oakes v. Morgan O'Brien v. Irving O'Donohoe v. Wiley Oliphant v. Leslie Dram v. Breary Overholt v. Paris d lioad C'i> P. 198 472 o 165 220 IGO 473 222 201 lit) 475 56, 460 111 470 222 , 56 163 221 208 53 64 85 46, 469, 472 61 301, 216, 222 467 DunihiH 42 Pacand v. McEwan 241 I'alk V. Kcnney 21 !► Parker V. Bristol & Exeter U.W. 477 Parks V. Davis 14, 19, 21 Parton v. Williams 2iy Patterson v. McCarthy 146 Pearson V. Puttan 19, '219, 223, 224 Peai's V. Wilson Peck V. McDougal 168. 467 172 472 218 207 160 341 84 Peek and Peterhoro', hi rr Pfc])percorn v. Hofman Pierce v, James Playfair v. Musgrave Plumer v. Briscoe Polglass V. Oliver Poussett and the Court of Quarter .Sessions for County of Lamb- ton, In re 13 Powley V. Whitehead 40 Preston v, VVilniot 20, 21 Prudhomme v. Lazure 476 Purdy, Er parte Pyne v. Kiinia Q. Quackenbush v. Snider Queen v. Churchwardens of All Saints Queen v. Justices of Middlesex \%% 180 472 473 6S 4(!!», 471 477 CC, (!1 476 85 46, 4(59, 472 ()1 ^(U, 21ti, 222 407 DlllulilB 42 241 21 !> ;t.TU.W. 477 14, 19, 21 21U yr 14t' 219, 223, 224 4(>7 27, H!i^. 172 II 472 21S 207 160 241 84 rt of Quarter v of Lanib- ^ 13 I 40 20, 21 •e •17t> 17» 112 iler 180 •dens of All 472 MuliUeBex 47S TABLE OF R. Ralph V. G. W. R. Co. 61 liauce V. James 207 Keeon ler of Toronto, In re 210 Ui'gina V. Benson 110 <( V. Davidson 163 (< V. Doty 198 (( V. Duke of Kic'lmiond (>1 (C V. Evans 20!) <( V. Fleteher 473 ti V. Fust 472 l< V. Harden 474 <( V. Leeds & Liverpool Ua nal Company 472 «< V. Lel'ioy 210 tt V. Myott 209 ti v. Norwood 62 4( V. I'addington V^estry 472 (( V. I'utton 22 (( V, Potter 163 " V. Riehards 276, 473 V. Richmond 209 " V. South Holland Drain- age Cominittee 476 " V. St. Paul's, Covent Garden 4 " V. Sherlock 34 " V. Stapylton 276, 473 '* V. Townsend 472 " V. Twiss 469 " V, Widdop 460 " V. \Vithams'Sav'g8Bank472 Reid V. McDonald 197, 198, 200, 228 Ricardo v. Maidenhead Board ot' CASES CITED. 36136 Sayors V. Findu'.y lljl- Schaniohorn v. Traske m^ Scmayni's' ease HSi Sewell V. Jones ''^^^ Shanley v. Moore 112 Shiirpe V. Leitch 164 Siddiil V. Gibson 48. 469, 470, 475 Sloan V. Creator 21 Smart V. Miller 110,114 Smart and O'Keilly, Ji'r 99, 46i> Smyth V. NiehoUs 476, 477 Soloman v. London ('. & D. 11. W. Co. 477 Soules V. Jlorton, //( re 140 S(|uair v. Fortune 160 St. Michael's College v. Merrick 109 Stansl'eld v. Hellawoll 235 Stephens v. Stapleton • fi2^ Stogdale v. Wilson, A'c HH Stratford & Huron R. W. Co. and County of Perth, In re 472 Swift V. Cobonrg & Peterboro' R. w. Co. ieo Swire v. Leach 206 Switzer v. Wilson 86, 8S Sykes v. Biockville K. 1{. Co. 117 Symonds v. Dimsdale 476 Health Richards v. Acton Richards v. Martin Richardson v. Shaw Robertson v. Cornwell Robertson v. Womock Robinson v. Lenaghan Robinson v. Shields Rolston V. Lawson Ross V. McLay Rumble v. Wilson, In re 469 241 53 469 39,59,119, 409, 472 477 247, 469 148 233 220, 221 46 Rex v. Sheriff of Herefordshire Russell V. Williams S. Sandon v. Jervis 52 476 289 T. Tapp V. Jonea • HI Tate V. The City of Toronto 117 Taylor v. Addyman 44 Thompson v. Ingham 47(i Tiffany V. BuUer 110, 115 Toft V. Raynor 469 Township Clerk of Euphrasia, In re 473 Trainor v. Hoi combe 42, 472 Turner v. Berry 48, Si; Tweedale v. Appleton 168 Vaughan v. Weldon Verrall v. Robinson W. Walker v. Ganu Wallace v. Allen Walsh, Iti re 61 190 475 471 470 XX TAULK OF CASES CITKD. W'lilsh V. louitles \V:inl V. ViiiK'c 110, Wiinluii V. Cliisholiii Wiiinni V. Stouo \V:isliiiigtoii V. Wubl) li)7, Wiitt V. Viiuovcry, hi re W^ni^'h V. (.'ouwiiy Westbrookti v. lirowt'll \\'^est()ii V. Siioyd Westini V. Tlioinivs WustoviM' V. 'Piirncr \Vfith(!nill V. (iarlow ^Vllitl.! V. Morris Wliitctliorn v. Thomas Wickliain v. Lue Wilcoxoii V. Scarly Wilson V. l-)ini(liv3 Wifson V. Fniiiklin :!0;i llti, Vl'l •_':m •JDS •2(10, -JOi (iO r>() 47() ir.a 115, 124 40 j •220 j Yates v. Palmer (i-2 ! 44, r>8 I Wilson V. iluroii iiiid Hriii'e Wilson V. Wilson Wiusor V, l)iiiil'oi-(l Wimd V. I'crry Woods V. Ivcriiii'lt, III rr Woodcock V. I'ritcliard Woodiiiiiiis v. Newman Wofisti'i' Coal Co. V. Nelson \Vortliin.ntoii v. .leffries Y. IIO 7ti 207, 470 02 473 204 IS, ;'!() 79 4t)7 235 Z. •204 109 I Zavitz V. Hoover 4S : Zolnab v. Smith 2 4 (J, 288 247, 4(;9 ll Brui'i '. 11(1 7« 207, 470 I re 473 Yd 'J04 11 18 , M5 kelson 79 OS 4(i7 THE DIVISION COURTS ACT. REVISED STATUTES OF ONTARIO, CHAPTER 47. An Act respecting the Division Courts. Preliminary, sa, 1, 2. Constitution of Courts : — Nature of and number in each County, bs. 3-7. Time and place of holding, hb. 8-10. Alteration of Divisions and establishment of new Divisions, ss. 11-12. Establislinient on separation of United Counties, 88. 13-18. Judges or persons who may hold Courts, ss. 19-23. Clerks and Bailifls, securities by, Duties and Fees of, ss. 24-52. Jurisdiction of Courts, ss. 53-61. Process and Procedure, ss. 62-94. Witnesses and Evidence, ss. 95-105. Judge's Decision, ss. 106-108. Jury Cases, ss. 109-123. Proceedings to garnish Debts, ss. 124-146. Arbitrations, ss. 147-151. Confessions of Debt, s. 152-153. Costs, s. 154. Proceedings not to be set aside for want of form, s. 155. Proceedings to enforce Judgments : — Execution, ss. 156-176. Examination of Judgment Debtors, ss. 177-189. Absconding Debtors, ss. 190-208. Claims of Landlords and others in respect to goodi seized, ss. 209-215. I'.J • ' THE DIVISION COUHTS ACT. [Sec. I. Costs in nctioiiaon Division Court Jndgnicnts, s. 210. OU'enci's and lViiiiltii'8 : — Foi-«iui{ Seal, Ac, C. S U. ('., o. lit, h. 181, p. .';26. (Jontenii»t of Court, s. 217. Keaistinx Otlicers, (.'. S. U. ('., c. 19, 8. 148, p. f)2(!. Misconduct of Oiticcrs, 8. 218. Extortion by Otlicors, s. •21!>. Negligence of OHicers, ss. 2'20-222. Enforcement of Finos, ss. 2li.'?-225. Protection of Ollicers ucting under Warrants, s.s, 226-229. General provisions as to actions for tilings done under tliis Act, ss. 2:50-2:3;$. Disposal of Fines, a. 234. iJisposal of money in Court, .ss 2:J5-2:5G. (leneral Rules and Orders, ss. 2:57-244. Her ^r.ijesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : (a) (a) This Act came into forco, tofjetlier with the rest of the lie- vised Statutes of Ontario, by virtue of tlie proclamation of the Lii'iiten- ant-Ooverjior, who is tliereto cm- powered by 40 Vict., cap. (), sees. o and G. Tliat statute provides as follows : — "Sec. 10. — The said lievised Statutes shall not be held to oper- ate as new laws, but shall be con- strued and have effect as a conscdi- 2(5. iirranta, sa. I lings done 0. advice and ibly of the vs : («) hich tht' Acts ropeuled came any \»nut the said Revised ■llVct the srtixe jaled Alts and vhich they are s rcsiiects all la and things time when the Les take etl'ect, .ained in them as respects all rs and things time, the pro- rep'aled Acts lall prevail, ce in any for- in force, or in .• document to iiit so repealed, evisi'd Statutes , as regards any :tion, matter or rente to the en- evised Statutes, SKC.2.J INTEUI'KKTATION t'LAUSKS. 1. This Act may be cited as " The 1 )ivisi(»ii siiort title ..f Courts Act." (h) 2. In the construction of this Act, (e) " County " shall include two or more Coun- interpreiatiou. ties united for judicial purposes ; and in any form or proceeding, the words " United Coun- ties " shall be introduced where necessary C. S. U. C, c. 11), s. 1. having the same effect a.s such repealed Act or enactment." Tiiis proclamation was dated December 7th, 1877, and the Re- vised Statutes were declared to be in force from and after December Slat, 1877. 41 Vict., cap. (), confirms the Revised Statuti'S, which it declares to be in force from the last men- tioned day ; after which day the Acts in the third column of .Schedule A to the Revised Sta- tutes are to be considered as re- pealed, save only as to enactments in regard to which the Parliament of Canada has exclusive jurisdic- tion, &c. The third section of the same statute tlien declares that the Legislature of Ontario is not, by reason of the Acts of 40 Vict., cap. 6, or 41 Vict., cap. 6, to be deemed to have adopted the construction which may, by judicial decision or other- wise, have been placed on any of the statutes included in the lie- vised Statutes. (h) A sketcli of the legislation which resultL'd in the Division ('ourt system im to the time of the Consolidated Statutes of Upper Canada (cap. 10), will be found on ii ])revious page in the preface to the first edition of this work. Some alterations have since been made by the following statutes : 23 Vict, , cap. 45, giving Division Courts jurisdiction in certain cases. 27-28 Vict., cap. 27, C. (1864), which enacts that suits may bo entered and tried in the Court the place of sitting whereof is nearest to the defendant. 2!) Vict., cap. 31, C. (1865), which en ibled County J udges to establish further Courts in '.'eitain localities. 32 Vict., caj.. 23 (18G8-9), aa to entry of final judgment in certain cases if no notice of defence tiled. — Attaclunent of debts. — Duties of clerks and bailitTs. — Renewing writs, &c. 35 Vict., cap. 8 (1872), em- powering all persons to appear as advocates for others in Division Courts. 3(! Vict , cap. 48, sec. 362 (1873), and 37 Vict. , cap. 7, .sec. 72, as to Courtroom accommodation. 38 Vict., cap. 12, .as to the for- mation and holding of Courts. 39 Vict., cap. 15, giving power to issue commissions to take evi- dence in Division Courts, increas- ing the jurisdiction in certain cases, and otiier amendments. 31) Vict., cap. 17, as to sureties for public officers. 40 Vict., cajt. 24, as to the hold- ing of Courts in certain outlying districts. 41 Vict., cap. 8, sec. 6, amend- ing section o4 as to jurisdiction. (c) Rule 2 of the general rules of July, 1869, provides for the in- terpretation of a number of words used in the Rules and Forms. As U .;,:.: THE DIVISION COURTS ACT. [Sec. 3. Courts con- tinned. Number of Courts in Coun- ties and Cities. Designation of Court. Each Court to have a Seal. THE COURTS. 3. The Division Courts, and the limits and extent thereof existing at the time this Act takes effect, {d) sliall continue until altered by kw. C. S. U. C, c. 19, s. 2. 4. There shall not be ^ess than three or more than twelve Division Courts in eacli County, of which Division Courts there shall be at least one in each City and County Town, (e) C. S, U. C, c. 19, s. 3. 6. The Court in each Division shall be called " The First Division Court in the County of ," {or as the case may he). C. S. U. C, c. 19, s. 9. 6. Every Division Court shall have a seal, (/) with whicli all process of the Court shall be stamped or sealed, an 1 such seal shall be paid for out of the Consolidated lievenue Fund. C. S. U. C, c. 19, s. 4. to whether these rules have the effect of a statute, see sec. '241. {d) See the table at the end of this work, showing the various Division Courts as at present es- tablished throughout i/ntario, to- gether with the name and post office addresses of their respective clerks and bailiSs. (e) See sees. 10, II, 12,17, 18. (/) In olden times, a seal would have been delined as an impres- sion made on paper or parchment with wax ; and in fact, in those days that was the only kind of seal known. It has, however, been held that it is now unnecessary, in order to cons*-.'tute a valid sealing, that an in pression should be made with wax or wafer, but that an im- pression inink with a wooden 1)1 iciv will suffice (Iteii. v. St. Paul's, Co- vent Garden, 7 Q. B. 232). It was also considered, in Foster v. UciUles 14 U. C. K. 239, tliat an impres- sion on the paper, without any extraneous substance, would be a sufficient sealin,i{. In a'Idition t» this, tht' worel "stamped" is u^ed in this section. It would, there- fore, seem evident that a stam|> or print made with colouring matter, or an impression made on the paper rnquiring to be sealeil, by meaiis of a die or press, without theudditiiuiof waxorothei matter, would be a sufficient " seal." The Provincial Secretary now provides se^ls for the Courts, on application of the clerk, ceitified by the Judge. .1 I "^3* [Sec. 3. limits and ) this Act altered by ee or more County, of be at least . (e) C. S. ,11 be called County of ise may be). e a seal, (/) irt shall be all be paid nue Fund. wooden l)l'ick S7. Paid's, Co- 232). It was otitcr V. GciUles at ail impres- withont any e. would bo a n addition to inped" in iiNed. would, there- lat a stain 1 1 or lining matter, made on the be sealeil, by press, without irothei matter, t "seal." lecretary now he Courts, on ilerk, cei titled Sec. 7.] CONSTITUTION OF COURTS. 7. The said Division Courts shall not be held Not to be courts Of Kecord. to constitute Courts of Record, but the judg- ments in the said Courts shall have the same force and effect as judgments of Courts of Re- cord, ig) C.S.U.d, c. 19, s. 5; 32 V., c. 23, s. 1. The seal and process of the Court are protected from forgery and abuse by sec. 181, C. S. U. C, cap. 19, which will be found post, under the heading " Offences and Penal- ties," before sec. 216. (g) The last part of this section was added in the year 1869, by 32 Vict., cap. 23. It will be noticed that the section as it stands does not constitute Divi- sion Courts Courts of Record, but declares that their judgments shall hare the same force and effect as judgments of Covirts of Record. This provision would seem, there- fore, to give no increased power or jurisdiction to the Courts until suits are reduced to judgments, when they become matters of re- cord ; and the principal intention of this section probably was to F" love any doubts as to the dura- tion of Division Court judgments and to establish a uniform practice in all the Courts. Mr. Justice Morrison, however, in In re Judge of the Couvty Court of York. 31 U.C. R. 270,' stated broadly his opinion to be that this enactment of 32 Vict cap. 23 made Division Courts Courts of Record. This view was followed in the case of Corsant qui tarn v. Tai/for, 10 C. L. .1. 320 ( Elliott, Co. J. ). on the principle that " if the.«e judg- ments have all the qualities of records they must be records, and a definition of a Court of Record is, a Court where judgments are finally enrolled as records. One would suppose that if the legis- lature had intended them to be such, it would have plainly stated that they were Courts of Record, instead of merely providing that their judgment should have the same effect as if of Courts of Re- cord. But to hold that they are not Courts of Record would, it seems to me, involve a contradic- tion. " With all due deference, the writer is bound to express his dis- sent from these conclusions, inas- much as the amending statute did not repeal the Consolidated Act, but merely amended it. The jux- taposition of the two then and still existing clauses, as set out in the above section 7, makes it mani- fest that the original section, which still remains in force, waa not brought to the attention of the learned Judges. The writer took occasion in a previous edition of this w )rk (at p. KiS et si'q. ), to consider the dura- tion of a Division Court judgment, and especially with reference to the fact that by sec. 5 of the Con. Stat, U. C, c. 19, Division Courts were not to be held to coiistitute Courts of Record. Since that note Wiis wi'itten, the questions there discussed came up for considera- tion in the case of McDovald v. McKimion (not reported) in the Court of Queen's Bench. It was not necessary, owing to the passing of ,32 Vict., cap. 23, sec. I, to de- cide that case upon the law as it stood, but the learned Chief Justice ( Richards) in giving judgment, said that he entertained the opinion that such judgments were in force for M ^ ;v'' "^«*. 6 THE DIVISION COURTS ACT. [Sec. 8. Time and piacu 8. A Coiu't sliall be holcleii in each Division of hi>laiii)jr Courts. once in every two months {h) or oftener, in the discretion of the Senior or the acting County Judge ; and the Judge may appoint and from time to time alter {i) tlie times and places {j) within such Divisions, when and at which such Courts shall be holden. C. S. U. C, c. 19, s. G. 9. The municipality in wliich a Division Court is held, shall furnish a Court-room and other necessary accommodation for holding said Court, not in connection with any hotel, {k) 36 v., c. 48, s. 362. Division Courts acconiniodatioM twenty years, thus bearing out the correctnessof the opinions express- ed by the writer in the note re- ferred to. The argument there used, however, need not now be re- peated or the matter further dis- cussed, as the section before us puts Division Court Judgments on the same footing as judgments of Courts of Record. See also section 216, and note. (/() Except in cases provided for by section 10. There would there- fore be six Courts in the year. They need not be held at any regu- Lar intervals ; in fact, it would be impossible to do so ; the sound discretion of the Judge mustdecide. (t) See sees. 11 & 12, and notes. (j) See the next section, which provides for Division Court accom- modation. Since the j)assing of 27-28 Vict., c. 27, sec. 63, it has be- come of the greatest importance that the place of holding the Courts should not be moved from place to place ; for by that Act such place of sitting regulates, in certain cases, the venue of a suit. As to Courts in alternate places, see note (?') to sec. 63. (k) Until the Municipal Act of 1873 (3() Vict., cap. 48, sec. 362), there was no provision made by statute for Court-room accommo- dation for these Courts. For many years County Councils have been bound to provide all necessary and proper accommodation for Courts of Justice other than Division Courts (29-30 Vict., cap. 51, sec. 419) ; but as to the latter, their clerks were put to much trouble and expense in securing suitable rooms, and sometimes were com- pelled to hire some room in a tavern, to the great discredit of jus- tice. This last scandal cannot now take place. Moreover, the occa- sional removal of a Court-room from one building, and perhaps from[one village, to another, caused confu- sion and annoyance to all con- cerned. It has therefore been wisely provided tliat the local municipalities shall provide ac- commodation for their local Courts. It was found necessary, however, to make a further enactment in the premises, as will be seen by the second part of this section. Section 8 gives the Judges the discretion as to the places for '^ ■"% [Sec. 8. ih Division Bner, in tlie ng County t and from . places (J) which such , c. 19, s. G. a Division t-rooni unci lolding said 5tel. (/.;) 36 nicipal Act of 48, sec. 362), sion made by )oin accommo- rts. For many cils have been necessary and ion for Conrts than Division , cap. 51, seo, e latter, their much trouble uring suitable nes were com- le, room in a iscreditof jus- al cannot now ver, the occa- )urt-room from •haps from [one caused confu- e to ail eon- herefore been iiat the local 1 provide ac- ir local Courts, sary, however, lactment in tho e seen by the ection. he Judges the he places for Sec. 9.] CONSTITUTION OF COURTS. 2. In case a proper Court-room, and other "there be no necessary accommodation for the holding of thej"';,'";*''^^,*^^^^ Division Court, are not furnished by the muni- ^°i^^|^' ;i|>^e. cipality in which the Court is held, (I) the Judge may liold the Court in any suitable place in the Division, or in any other Division of the County in which suitable accommoda- tion is provided ; and the owner, lessee or holding the Courts. This is often exercised in the interests of suitors with a view to bringing the Courts to centres of business, to which fanners and busi^.^ss men resort. Those places, however, are not always geographical centres. It often happens that township halls are erected ii> places where geographical centres hivve been more aimed at for miinici4)al con- venience than other purposes. In some cases these halls are far away from where business of other kinds is done. Township Councils have urged that they should not be obliged to furnish Court-rooms in places selected by Judges when they have halls elsewhere in the municipalities, and for that reason have in some instances refused to pay, and even allowed themselves to be sued for the rent of halls occupied by the Courts elsewhere. The editor is of opinion that the obligation to furnish the Court- rooms must be coupled with the entire discretion of the Judges as to the places where they may think it best to hold the Courts (see sub-section 2). An office for the clerk should a^so be provided in connection with the Court-room, It con- stantly happens that, on the trial of a case, a reference to papers and proceedings in the case, or in some other case having relation to it, becomes necessary. If papers have to be brought some distance from the clerk's office, delay and inconvenience necessarily re- sult. It has been suggested that as the Court is always sitting for some purposes, the clerk's office comes within the word "accom- modation." Such, however, is not the law. There certainly ought to be a provision for clerks' offices. County Councils should also pro- vide safes, which might still remain county property, where clerks could keep valuable papers. In some Courts every paper has been burned, to the great inconvenience and loss of all parties concerned. {I) It seems to have been one thing to order the local munici- palities to provide accommodation and another to make them do it. It was therefore found necessary to provide for the contingency of their default. It might be well to compel a specific performance of their duties as required by the first part of the section. It is much easier to order the payment of a small sum of money out of a public chest than to take a little trouble to comply with an Act of Parliament which imposes no penalty for non-compliance. The above provision is taken from the Administration of Justice Act, 1874. ^?i5'r,T"'v, FT 8 THE DIVISION COURTS ACT. [Seo. 10. Expenses for rent. tenant of the building in which the Court is so held, shall for the use of the said building be entitled to receive from the municipality whose duty it was to provide proper accommodation for the Court, the sum of five dollars for every day on which the Court is held in said build- ing. 37 v., c. 7, s. 72 The Lieutenant- 10. If the Justiccs of the Peacc for any Governor may, , . " in certain cases, Coimty, in General Sessions assembled, certify regulate holding '' ' j of Courts. to the Lieutenant-Governor that in any Division of the County, from the amount of business, remoteness or inaccessibility, it is expedient that the Court should not be held so often as once in every two months, (m) 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. General Sessions H. ^he Justiccs of the Peacc in cach County, may alter num- •' of wvi^ion"''* ^" General Sessions assembled, may, subject to tlie restrictions in this Act contained, appoint, and from time to time alter the number, limits and extent uf every Division, {n) and shall (m) See section 8 . (n) By sec. 4 there cannot be less than three nor more than twelve in each county. There will bi; found in the pages oi the (J. O. Law Jour- nal, Vol. VII., pp. 112-146, some excellent obaerv'itions as to how the discretionary power of the magistrates in Quarter Sessions should be used. The population and extent of the inteuded divisions should be a leading guide. The divisions should, if pos3il)le, be of such asizethatsuitorscango to and return fr^m them in one day, and should be as uniform in extent and population as circumstances permit. No separate division should be formed unless the proltable amount of business would give a rea.«onable remuneration to the otKcers of the Court, nor shouhl divisions be mul- tiplied without an evident neces- ^i: [Seo. 10. 8ec. 12.1 CONSTITUTION OF COURTS. Court is so building be lality whose )mmodation rs for every said build- ice for any Died, certify ny Division of business, 5 expedient so often as Lieutenant- Court to be is meet, and but a Court east once in 19, s. 7; 38 ich County, ^, subject to ed, appoint, mber, limits ) and shall guide. Tbe possible, be of s can go to and one day, and 1 in extent and stances {lorinit. )u should be jbable amount va a rea.»onable otfic«ra of the 'isioiia be mul- ivident neces- number the Divisions, beginning at number one • but no resolution or order made under the ResoiuUous and ' orders as to provisions of tiiis section shall be altered or Divu^ions not to rescinded, unless public notice of the intention after notice, so to alter or rescind is made and proclaimed in open Court, at the next previous sittings of such General Sessions of the Peace, (o) C. S. U. C, c. 19, s. 8; 38 v., c. 12, ss. 2 & 3. 12. The Judge of a County Court may, in EHtabiishmeBt " . . bytheCountr his discretion, ip) upon the petition of the Judge of » uivi- ^ \i^ ' i: r g,Q„ Court in Municipal Council of any Township or United Townsiups on Townships in which no Division Court hasJownsMp already been established, praying that a Divi- sion Court may be established in and for such Township or United Townships, establish and hold a Division Couri, therein, ((7) and the Court so established shall be numbered and called the Division Court of the County in aity. If possible, each division should include some town, village, or place of business resort. The divioions should be Hxed with pre- cision, an I follow the established territorial division of the county into townships and concessions. This may be done by tracing the outer boundary in each case, or by setting out the towns, townships, or detached parts thereof, intended to be within the division. The case of a separation of united counties, where a division consists of a part of each, is ])ro- vided for by sec. 16. It would be well, however, for magistrates to keep tliat section also in view in appointing the divisions. (o) The latter part of this section was introduced by the Act of 1874. The provi-sion of the former Act was, that a less number of juatioes should not alter or rescind any resolution or order made by a greater number at any previous session, which has been done with- out any delicacy in numeroua in- stances. (p) The judge would, however, notwithstandiuji any petition of this kind, keep in view all the cir- cumstaiiiies, some of which are hinted at in note (?») to section 11, which might render a further sub- division of Ilia county inexpedient. There will always be a tendency on the part of litiganta or other inter- ested persona, to try and get a court as near to their own door as possible. (q) Provided the total number in the county does not exceed twelve (sec. 4). ;-#- ■'V,-y 10 Court must lie conflrnieil by Lieutenant- Governor in Council. On sei)arati<)u of Junior fn, in Senior County, Courts to con- tinue same till altered by Sesaicns. THE DIVISION COUUTS ACT. [Sec. 13 which such Townsliip or United Townships is or are situated, takin•) This is provided for by sees. 35 ct seq. of Rev. Stat., cap. 174, which enact tliat where a junior county contains 17,000 inhabitants or more, and if so requested by a majority of the reeves and deputy reeves of the county, the Lieutenant-Governor may direct the separation. The seniority of united counties is regulated by section 33 of the same Act, which enacts that "in every union of counties the count in which the county court an gaol ate situate, shall be th senior county, and the otht county or counties of the unio shall be the junior county counties thereof." (a) The case of Division Court: the territorial limits of which aj partly in eacli county, is provide for by sec. 16. ACT. [Sec. 13. Sec. 15.] CONSTITUTION OF COURTS. United Townships is lumber next after the )urts then existing in )e transacted in any establishment thereof County Judge to the 'ouncil, together with ,e same, nor until after I by the Lieutenant- iving thereof. 29 V., Linty separates from a of Counties, (r) the nited Counties which I wholly within (s) the lunior County, shall Courts of the Junior lings and judgments :l shall continue pro- of the said Division :l all such Division IS Division Courts of the same numbers re- fore, until the Justices nion of counties the county ch the county court and re situate, shall be tlie county, and tlie other or counties of the union ae the junior county or !S thereof." he case of Division Courts, ritorial limits of which are in each county, is provided sec. IG. of the Peace of the Junior County, in General Sessions assembled, appoint the number, limits and extent of the Divisions for Division Courts within the limits of such Junior County, as provided in the eleventh section of this Act. C. S. U. C, c. 19, s. 10 ; 38 V., c. 12, s. 2. 14. Whenever the Justices of the Peace of any County, in General Sessions assembled, alter the number, limits or extent of the Divi- sion Courts within such County, all proceed- ings and judgments had in any Division Court before the day when such alteration takes effect shall be continued in such Division Coitrt of the County as the Judge directs ; and shall be considered proceedings and judgments of such Court, (ss) C. S. U. C, c. 19, s. 11 ; 38 V., c. 12, s. 2. 15. In case a Junior County be separated from a Union of Counties, or the proceedings of any of the Division Courts of a Senior County are transferred to any other Division Court within the County upon the order of the Judge, the Clerks or other officers of such Division Courts who hold any writs or documents apper- taining to any such Courts or the business thereof, shall deliver up the same to such per- sons as the Judge directs ; and any person refusing to^ deliver up the same shall be liable to be proceeded against in the same manner as On alteration oi Divisions, Judge to direct m what Court proceedings to be continued. Clerks and offi- cers to deliver l)apers to such persons aa Judge directs. C. S. U.C.c. 19, 8. 4S. See p. 31. (hh) a formal order should be entered in the Court Procedure Books, setting forth the alteration and the Court in which the pro- ceedings are to be continued, and of which judgments are to become part. \ 1 \ 1 1 12 After separation of Junior from Senior County, proccedinis's in certain cases to be continued in Senior County. f 1 ' THE DIVISION COURTS ACT. [Sko. 16. persons wroiifffuUy holding papers and docu- ments under the provisions of the forty-eighth section of chapter 19 of the Consolidated Statutes for Upper Canada. (/) C. S. IT. C, c. 19, a. 12. 16. If after the separation of a «Tunior County from a Union of Counties, the territorial limits of any of the Division Courts of the former Union are partly within the Junior and partly within the Senior County, all proceedings com- menced in such Division Courts of the former Union shall 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 thereof directs ; and the Clerks and other officers of the said Division Courts of such Senior County in pos- session of any writs or documents appertaining to any such Court or to the business thereof, shall deliver over tlie same to the Clerk of such Division Court of such County as the Judge thereof directs. C. S. U. C, c. 19, s. 13. 17. At the first sittings of the General Ses- sions of the Peace for any Senior County, after the issue of any proclamation for separating a Junior from a Senior County, the Justices there present shall appoint the number (not less than three nor more than twelve), the limits and extent of the several Divisions within such County, and the time when such change of Divisions shall take effect. 2. If the Justices do not make such change (<) This section is reprinted hereafter at page 31. General Sessions of Senior County to regulate Divi- sions of Senior County after separation. Ilerk of such «l«. 18.] CONSTITUTION OF COURTS. " I'i at the first sittings, they may do so at any other sittings of such Court. 3. No resolution or order made under the Resolutions and n .1 • i- 1111. I 1 orders as to Dlvi- provisions oi this section snail be altered or sions not to b« reecinded, unless public notice of the intention notice so to alter or rescind is made and proclaimed in open Court at the next previous sittings of such General Sessions of the Peace. C. 8. U. C, c. 19, s. 14; 38 v., c. 12, ss. 2 & 4. . 18. The Clerk of the Peace, in a book to be cierks of the 1 1 • 1 i 1 1 1 1 1 T^ • • • , •■ Peace to record by him kept, shall record the Divisions declared time and pi»ce , r , , , . ioT holding and appointed, and the times and places of^"""^- holding the Courts, and the alterations from time to time made therein, and he shall forth- with transmit to tlie Lieutenant-Governor a > copy of the record, (tt) C. S. U. C, c. 19, s. 16. («) The fees of Clerks of the Peace Making out and transmitting are provided for by the schedule to copies of such Orders to cap. 84 of Uev. Stat., page 895. each Division Court affect- They are as follows : ed by the alteration $0 50 Making tip Book of Orders of ^^r each copy of Schedule of Sessions, declaring the lim- thf Division Courts, with its of the Division Courts, ^^>' Order of Sessions, for and entering the times and publication 50 plates of holding the It has been decided that under ^'ourts $1 00 the section from which the above Making out and transmitting '^ taken, and the schedule above a copy thereof to the iiov- referred to, the Clerk of the Peace ernnient 1 00 is required to record and notify to Making out and transmitting *•"" Government and to the Clerks copies (with lett. r) to the of each Division Court only the acts Clerk of each Division "/'/'" -Smt^ws with regard to the Court, of the Divisioas i',™™ "^ difTerent divisions, not ina if the evidence given before them justifies them m assuming that they had jurisdiction. And the ob- jection to their jurisdiction should be taken at the trial (Graham v. Smart et al, IS U. C. R. 482). But there is a difference, as to their liability, between their judi- cial and ministerial duties {Parkii V. Davis, 10 C. P. 229). See also notes to sec. 54. A Judge will not be compelled by mandamus to try a case when he refuses to do so on the ground that one of the parties is nearly re- lated to him (In re Judge of Ehjiii, 20 U. C. R. 588). As to where actions by or against a Judge are to be brought, which are within the competence of a Division Court, see section (56. (i') As to the appointment and powers of Deputy Judges, see Rev. Stat., cap. 42, sees. 6, 7. The section under consideration says in general terms that Deputy Judges shall preside over Division Courts, but section 7 of cap. 42 limits their authority to tlie contingency of the death, illness or absence of the County Judge ; and, notwithstand- ing the general words, the intention doubtless was only to give author- ity under the circumstances par- ticularly mentioned. (»') But though these are t' o presiding Judges, Courts may be held by otheis, as we see from sec- tion 20. It is provided also by Rev. Stat., cap. 42, sec. 13, that it shall be the duty of a County Court Judge to hold any of the Courts in any county other than his own, or to perform an> other duty of a County Court Judge in any county upon being required so to do l)y an order of the Governor- ( icueral, made at the request of the Lieutenant-dovernor ; or without any such order the Judge in any county may, if he sees fit, perform any judicial duties in any county other than his own on being re- quested to do so by the Judge to whom the duty for any reason be- longs." But see .sec. 20, and notes. By section 14 of the same Statute any retired County Court Judge may liold any Court or perform any other duty of a County CourtJudge in any county on the request of the Judge to whom the duty be- longs, or upon the authority of the Governor-General ; and this authority is not coupled with any restriction as to the illness or ah- I [Sec. 19. be presided or Junior or ictive Coun- 40 v., c. 7, 12. Deputy Judges )ivisiou Courts, 42 limits thi-ir tingency oftho iibsunce of the , iiotwithstand- is, tliu intention to give author- umstances par- 1. these are t' u Courts may be we see from seo- ovided also by sec. 13, that ty of a County old any of the nty other than form an} oth(!r Court Judge in eing required so if the Governor- le request of the or ; or without c Judge in any sees lit, perform i in any county ai on being re- jy the Judge to • any reason be- ;. 20, and notes. he same Statute ;y Court Judge t or perform any nty CourtJudge the reijuest of m the duty be- le authority of 3ral ; and tliis lupled with any le illness or ab- Sec. 20.] JUDdES. 15 ■2S 2. The Junior Judge for any County shall J'^j'j'^jiJj'^Jlf.f »" (subject to any other arranf,'ement from time to ^""'^''■ time made with the Senior Judge or made by the Judges of a County Court District (x) which includes such County) i)reside over the Division Courts of the County. (//) 40 V., c. 7, Sched. A (67). Sec 32 V., c. 22, s. 4 ; 30 V., c. 8, s. 47 ; 37 v., c. 7, s. 58. 3. The appointment of a Junior Judge shall senior Jiuiijfe to ^ ' ° hold Divisiun not iirevent or excuse the Judge of the County courts when ox- i " ... pedient. Court fiom presiding at any of the Division Courts within his County when the public in- terests require it. C. S. U. C, c. 15, s. 7. 20. In case of the illness or absence (z) of who to preaide ill case of illness the Judge, a Judge of the County Court of any <"■ ai'sencc of other County {a) may hold the Court, or the sence of the proper Judge, as in the case of a Deputy Judge or the Judge's deputy under section 20. {x) This refers to a .scheme intro- duced by 39 Vict., laji. 14, for grouping counties into districts, by which the Judges of tlie districts shall hold the various local Courts by rotation, in the manner pre- scribed by the Act. (»/) These Courts are therefore ]ie( uliarly under the supervision of the Junior Judges in countic'* wheri' there is more tlian one Judge. But the Senior Judge of the (.'ounty Court of the particular county, or the Junior or Dejiuty Judge thereof, the .hidge's deputy to be apjiointed under section 20, orthe Judge of the Court of anotlier county under that section, or under llev. Stat. cap. 42, sec. 17, or a retired County Court Judge unc"-r the same statute, section 14, ait each allowed to act. The distinc- tion between them is this : the Senior and Junior Judge of the county are clothed with the abso- lute right to hold the Courts not dependent upon any contingency ; whereas the Deputy Judge, the Judge's deputy, and the Judge of another county, or a retired Judge, act only on certain contingencies. (~) In the previous Act it was " unavoidable absence." The word " unavoidable " has been omitted. ((() It would seem that by llev. Stat., cap. 42, sec. 13 (see note (('•) to section li)),any other County Judge can act on the simple request of his brother Judge, though neither ill nor absent ; the provision in the present section would seem therefore to provide for the case of an emergency when there is no Junior or Deputy Judge and nosubstitute has been appoint- ed by the Governor-General or by the ill or absent Judge. ^ rtrC 16 THE DIVISION COURTS ACT, [Sko. 21. / I first mentioned Judge may appoint (b) some Banister of the Bar of Ontario to act as liis Deputy; and tlie Barrister so appointed shall, as Judge of the Division Court, during the time ol his appointment have all the powers and privileges, and be subject to all the duties vested in or imposed by law on the Judge by whom he has been appointed. C. S. U. C, c. 10, s. 17;40 V.,c. 7, Sched. A (G8). Lieutenant- Gov- 21. The Couuty Judge so appointing or the fled of appoint- Barrister so appointed Deputy shall forthwitli send to the Lieutenant-Governor notice of such appointment, specifying the nanie,rosidence and profession of such Deputy Judge, and the cause of his appointment. C. S, U. C, c. 10, s. 18. 22. No such appointment (c) shall be con- tinued for more than one montii without a renewal of the like notice ; and in case the Lieutenant-Governor disapproves of such ap- pointment, he may annul the same. C. S. U. C., c. 19. 8. 19. Clerks or j.'epiicy 23. In ciisG the Judgc or the acting Judge, (d) Clerks ro;..v ad- .,, " , , " * \ ' journ r..or if from illnfcss or any casualty, does not arrive in Judgi.' li'.cd not \ '' arrive in time, time or is not able to open a Division Court on the day appointed for that purpose, the Clerk or Deputy Clerk of the Court shall, after eight o'clock in the afternoon, by proclamation, ad- journ the Court to an earlier hour on the fol- (b) The appointment, it is .said, nished the editor with the form m.-iy be maile by jjarol, I'ut the used by him wlien occasion re- better opinion seems ti) be lliat it quires ^Form A). should be made in writing ( 1 1 Co. / \ rp. , • • . . , Rep. 4). The learne.l chairman . j-l^^ ?' ''! *", "rP"'"*'^^"' '^^^^ of the Board of Couuty J udges ^^ ^*^« ^"""'^ "'"''«•' ""^'"•- «*'«• ^O- (Judge Gowan) has kindly fur- (d) See notes to sees. 19 and 20. Ap|)ointnibnt, how long to con tinne. ^0r 18ec. 21. nt (6) some act as his lointed slmll, •ing the time powei'H and 11 the dutiei* le .hidge by ;. U. C.,c. 19, )intiiig or the all forthwith lotice of such residence and md the cause c. 19, s. 18. shall be con- ,h without a in case the of such ap- e. C. S. U. C, ing Judge, {d) not arrive in livision Court ose. the Clerk ill, after eight latnation, ad- ir on the fol- • with the form len occasion re- fpointmentTnadc go uiuk'r sec. 20. > sees. 19 and 20. Sec. 24.1 CLERKS AND HAILIFFS. It I lowing day, and so from day to day adjourning over any Sunday or legal holiday (c) until the Judge or acting Judge arrives to open the Court, or until he receives other directions from the Judge or acting Judge. C. S. U. C, c. 19, s. 20. THE CLEltKS AND BAILIFFS, ETC. (/) 24. For every Division Court there shall be a Everj- court to Clerk and a Bailiff or Bailiffs, {(/) who shall be Baiilffs.^'^ British subjects, and sh.'ill respectively perform (< ) Tliat is, to some hour hefore eight o'clock in the evening, usu- ally till noon, of the following day. All persons compelled by law to attend at the Courts are bound to reii.ain up to eight o'clock in the evening of the day appointed for hoUling the Court, and to appear at tlie hour to which it may be ad- journed the following day, and others who have business at the Courts can only be absent during those hours at their own risk. By the Interpretation Act (Rev. Stat., cap. 1, sec. 8, sub-sec 16) the word "holiday" shall include •Sunday, New Year's Day, Good Friday, Easter Monday, and Christ- mas Day, the day appointed for tlie celebration of tlie Queen's Birtliil.ay, and any day appointed by proclamation of the Governor- (ieneral or Lieutenant-Governor as a public holiday, or for a general fast or thanksgiving. It is prob- able that the T>resent Parliament of tlie Dominion (April 1879) will declare that the 1st July, not being a Sunday, shall be a legal holiday, and that when the 1st July is on a Sunday, the '2nd July shall be a holiday in lieu thereof. (/) The Common Law requires persons holding any office to be (ainongst other things) of sound mind, possessing sufKcient skill 2 and ability to perform the duties of the office, and not holding any office incompatible with such du- ties. The express disqualiKcations foi office are, not being a British sub- ject ; and, as regards a clerk, being a J ractising barrister or solicitor, or a County Court clerk, as men- tioned in the next section. The power of appointing to these offices was from the first vested in the Judges ; and it may not be out of place here to say, that the re- sult has been on the whole most satisfactory to all concerned. {g) If two bailiffs are appointed to a Court they do not constitute one officer. They may therefore act independently of each other, and each may perform all legal acts required of him, by himself and in his own name (Corrigal v. L. r (see Form B). r furnisliing the ed therein to the Judge, and ujiou il tiling of same, lintnient miiy he C!\, JMid sui!h ap- l be preservctl by the records of his us are taken from id used by Judge Ljipointment does hettome complete is approved of by !r sec. 27, and is e of the Clerk of see. 28, which see. r. C, cap. 1!», see. ic Crown was re- MS done away with 17, sec. 7. The in the following ed Stat., ca]). 15, every Clerk and Bailiff' of a Division Court shall cvnins^to give rinted in the forms in a subsequent page, as E and F. The amount in which the .several parties .are to be bound would be regulated by the probable amount of business to be done, and the standing of the clerk might perliaps be taken into con- sideration ; but this would be an unsafe guide. Each surety is usu- ally bound in a proportionate part of the .sum reciuired from the prin- cipal. It is the dnfij of the Judge to approve of the sureties and to settle the amount of the security {Mi //<•)■ v. Tunis, 10 C. P. 423), and a failure of this duty on the part of the Judge, if he jjermits the officer to enter on the discharge of his duties without giving proper se- curity, renders liim liable in an action at the suit of a person who has thereby suffered a loss {Parks y. Davis, 10 C. P. 220). But still it lannot be supposed that the Judge would be liable for a simple error of judgment, and certainly not if he takes the i^recaution of procuring from the sureties the necessary affidavits of justification. This section is directory and not mandatory, therefore the fact of the sureties being non-residents of the county in which the bailiff's duties lie does not avoid the cove- nant, the provisions being merely for the guidance of the Judge as to the class and chnracter of the sureties required (Pi'((rsuny. But- Ian, 15 C. P. 79; 1 L. C. G. 26). The sureties must be residents of '-*..» y.^pui ',VM' 'y ^ I I I THE DIVISION COURTS Before Clerk or 28. Before aiiY sucli Clerk or Bailiff enters Bailiff enters on * his duties, cove- upon the cluties of his office, the covenant of hini- tlie county ; but from reading sec- tion 31, it would seem that non- residence in the otticer's county would be immaterial. It is desir- able that they should be residents, that the contingency of death, inso!- vency, &c., might be more readily known to those interested. As to the particulars of claim in actions against clerks and bailitt's under this section and the form to be used, see Rule 6 and Form 18. There have been several deci- sions as to the force and efl'ect of this covenant, which it will be necessary here briefly to notice. McArthur v. Cool ct al., 19 U. C. R. 476, was an action brought on a covenant in the form given by the Act, against a bailiff and his sureties. It was objected that the defendants could not legally be sued in a joint action ac upon a joint undertaking, when bound in diflerent sums. Robin.son, C. J., said, " It is true that the covenant does limit the amount that each of the covenantors can be compelled to pay in all under the deed, l)ut nevertheless in tke form given l)y the legislature the parties are made to enter into a joint end scvaral covenant, and this covenant is in fact joint. * * * The proviso at the end of the deed * '^ * is not a part of the undertaking of the covenantors, Imt it makes it the duty of the Court to see that none of the parties are compelled to pay under it more in all than the sum set opposite to his name." The case of Prrsfoii v. IFilnwt ct (d., 23 U. C. R. 348, was an action brought against a clerk and his sureties, and is an instructive one to ofHcers. The facts were as fol- lows : The plaintiff and others, creditors of an abscomling debtor. sued out of a Division Court several writs of attachment, on which the bailiff seized certain goods. These goods were claimed by third parties as soon as seized, whereupon the plaintiff indemni- fied the bailiff, or, in other words, guaranteed to him that the goods seized were the property of the absconding debtor. The bailiff then sold them and paid tlie pro- ceeds to the defendant, who was the Clerk of the Court. They both 30 acted in the discharge of their offi- cial duty. Whilst this money was in the clerk's hands, the parties who claimed the goods seized and sold by the bailiff under the in- demnity, recovered judgments against the plaintiff for the value of the things seized, which he was compelled to pay. He then claimed that the money in the clerk's hands was in effect his. The clerk, how- ever, divided it ratably among all the attaching creditors, on the theoiy that it was the j)roceeds of the goods of an absconding debtor. Dkai'EK, C.J. , said, that the ques- tion was whether the money was the money of the plaintiff received by the defendant (the clerk) by virtue of his oflice. He held that it was, and that the clerk had acted properly in distrilmting it as he did. H.VGABTV, J., said ; " The re- recovery against the plaintiff no doubt made the property his •against the true owner who receives the damages in lieu thereof, as if he had waived the tort, and sued in assumpsit. No other person could claim them from him. * * * But the bailiff was made to sell the goods on the plaintitl's repre- sentaticm that they belonged to his debtor. * * * He thus has the ptopcrty sold to pay his claim, and [Sec. 28. Bailiff enters venant of lum- Division Court attachment, on T seized certain lods were claimed fis soon as seized, )laiutiff indemni- r, in other words, m that the goods property of the ;or. The bailiff xnd paid the pro- endant, who was Court. They both charge of their ofh- st this money was amis, the parties goods seized and liff under the in- red judgments ntiff for the value zed, which he was He then claimed n the clerk's hands 3, The clerk, how- it ratably among g creditors, on the vas the proceeds of absconding debtor, said, that the ques- ler the money was le plaintiff received int (the clerk) by ice. He held that it ;he clerk had acted itributing it as he J., said : "There- ist the plaintiff no the property his : owner who receives 1 lieu thereof, as if the tort, and sued No other person 3m from him. * * * was made to sell the plaintitfa repre- they belonged to his * He thus has the ;o pay his claim, and Sec. 29.] CLERKS AND BAILIFFS. m f"^ self and sureties, approved as aforesaid, shall be nam to^be filed filed in the office of the Clerk of the Peace, (7?i) the Peace, in the County in which the. Division Courtis situate ; and for filing and granting a certificate thereof the Clerk of ihe Peace may demand from such Clerk or Bailiff the sum of one dollar. C.S.U.C, c. 19, s. 26. 29. Such covenant shall be available to, and ^^"guft^rsf&c'''^ the proceeds by law are handed over to defendant, as officer of the Court, as money raised by sale of that debtor's effects, and the de- fendant distributes the proceeds according to law. * * * The clerk (the defendant) receives money in tlie ordinary way from the bailiff, applicable to several attachments as money realized by the sale of the debtor's goods. The plaintiff is the chief actor, as it were, in liaving the money so paid in. He asserts the goods to have been the debtor's : he indemnities the officer against certain claimants. I feel great difficulty in holding that he (the plaintiif) can be permitted afterwards to insist that a totally different state of facts existed, and that the money so paid was realized from sale, not of the debtor's goods, but of his, the plaintiff's own goods, against whom there is no process of Court. * * * This is not a claim recoverable on the covenants de- cl.ared on. McArthur v. Cool (see .above) is much in point as to the effect of this covenant. I hardly think that the clerk's sureties can be held liable for moneys that reached their principal's hands under the circumstances of this case." In Miller v. Tunis, IOC. P. 423, the covenant sued upon, though it should and was intended to have been executed by both the bailiff and his surety (the defend- ant), was in fact only executed by the latter. The question that arose was, whether the defendant's position as surety in a limited sum, and being jointly and sever- ally liable according to the form given by the Act, was prejudiced in any way by the non-execution by the principal. The Court held that it was not so prejudiced, and that the defendant was not thereby relieved from his liability under the covenant. Where an action has been brought against a bailiff for a tort, and part of the damages sustained by the plaintiff have been recov- ered, he cannot afterwards, in a suit brought on this covenant for the same cause of action, recover against the bailiff and his sureties tlie balance of his damages {Sloan V. Creasor el al., 22 U. C. R. 127), the plaintiff having elected to take his remedy for the tort. As to the parties to whom this covenant is available, see the above case of Preston v. IVilmot et al., and sec. 29, and note ()i) thereto. (m) No duty is imposed on the Judge with regard to this filing ; and he is not responsible if it is not filed (Prt7-/!s V. Davis, 10 G. P. 229). Tiie non-tiling of the covenant will not relieve the sureties of an officer from their responsibility as such sureties. — lb. ■w^^iw a ! i 99 See Utile C. THE DIVISION COUKTS ACT. [Sec. 30. Certified copy of covenant to bo received as evi- dence. If surct.N dies, a new surety til be furnished.' may be sued upon in any Court of competent jurisdiction by any person suffering damages (n) by the default, breach of duty or misconduct of any such Clerk or Bailiff. C. S. U. C.,c. 19, s. 27. 30. A copy of every such covenant, certified by the Clerk of the Peace, shall be received in all Courts as sufficient evidence of the due exe- cution and of the contents tliereof, without further proof C. S. U. C, c. 19, s. 28. 31. If any surety in any such covenant dies, becomes resident out of Ontario, or insol- vent, (nn) the County Judge shall notify the (n) There is nothing in the sta- tute or in the form of the covenant wliich confines the benelit of it to suitors only {Cool v. Siriizcr et al., 19 U. C. R. 15>9), and under this section, taken in connection with sees. 50 to 52, the sureties of a clerk are liable on this covenant to the bailiff for fees on the service of sunimonse.«, executions, and warrants received by such clerk for the bailiff and not paid over (lb.;Mldilb-tidd v. aould et al., 10 0. P. 9). ■ Section 24 of the C. S. U. C, cap. 19, required clerks and bailiffs to give security to the Crown ; but we have seen that that bond i.s not now required (sec. 27 and notes). OflScers are of course liable to the Crown as well as to others without any bond for misconduct or non- payment of moneys ; but their sureties would doubtless, under the covenant referred to, l)e as liable to the Crown as to private parties to whom it is available (see Reg. v. Pat f on, 7 U. C. R. 8.3), even without Rev. Stat. cap. 15, sec. 25, which declares that the covenant above spoken of enures to the betatit of Her Majesty, Although there may be a breach of duty on the part of an officer, a plaintiff cannot recover against him unless he can show that he has sustained actual damage (Brow)i v. m-iij/it, 35 U. C. R. 378). In that case a bailiff had not sold some chattels which had been seized by him under the plaintiffs execution, on thegrouTid that the defendant had previously made an assignment in insolvency. There was a delay in perfecting the assignment, and the plaintiff contended that the bailiff should have sold. The ( 'ourt, however, held that the plaintiff could not recover ; for even supposing there had been neglect by the bailiff, it would practically have made no difference in the final result to the plaintiff. {nn) This section throws a re- sponsibility on the .Judge which is hardly fair. The death, Ac, of the sureties of the clerk or bailiff would seem a matter more likely to come within the knowletlge of those officers than of the .Judge ; l>ut although there is no provision here made for their notifying the "% I w:f\. jJP' '"■% [Sfx-. 30. f competent damages (n) isconduct of !,c. 19,s. 27. ant, certified received in the due exe- eof, without 28. )venant dies, .0, or insol- 11 notify the nay be a breach rt of an oflficer, against Sec. 32.] CLERKS AMD BAILIFFS. 23 recover show that he actual damage t, 35 U. C. R. ^e a bailiff had ittels which had him under the n,on the ground b iiad previously it in insolvency, y in perfecting nd the plaintitf e bailiff should 1 'ourt, however, .intiff could not supposing then' by the bailiff, it have made no nal result to the )n throws a re- e .Judge whicii is 3 death, &c., of 3 clerk or bailiff tter more likely le knowledge of 1 of the .Judge ; •e is no provision sir notifying the i 1 Clerk or Bailiff for whom such person became surety, of such death, departure or insolvency, and such Clerk or Bailiff shall, within 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, (o) C. S. U. C, c. 19, s. 29. 32. Any person who has become surety for ^}{5®^'^C,i']|f„®/'** anv Clerk or Bailiff, and who is no longer dis- Division courts -■ ' '=' may (liscontume posed to continue such responsibility, may suretysiai). give notice thereof to the Clerk or Bailiff, and to the Judge of the County Court, and in such case the said Clerk or Bailiff shall, under penalty of forfeiture of his office, furnish the secuiity of a new surety in lieu of the surety so giving notice, and shall have the necessary bond or covenant approved by the Judge, and completed within one month after such notice ; and all accruing responsibility on the part of the person giving such notice shall ' / cease upon and after the perfecting and ap- .Tu ; see 40 v., c. 7, Sched. A (10). 17. No jict of any public officer of this Province whose security has been given; or registered, or de- posited, or the affidavit of justifi- cation of whose sureties has been filed after the time limited by this Act, shall by such default be void or voidable. 32 V., c. 29, s. 10 ; see 40 v., c. 7, Sched. A (10). 18. Where the securities of the 4 Jm [Sec. 33. Sec. 35.] CLERKS AND BAILIFFS. 25 rity. 89 V., h inclusive, , shall, with the Court" y to securi- a Division ss. 24-27 entered in the iginal security )r endorsed on ginal bonil or ; and the per- the security of 11 not lie sub- or penalty for I'ithin the time if he gives it ed period so 32 v., c. 29, the Court may urity given by r the attidavit by his sureties lough the same hied after the 9 Act ; and in or coniniisaion icer shall be ! been avoided Lit to have re- in in full force :. 29, s. 9 ; see A (10). r public otKcer ise security has stered, or de- avit of justiti- reties has been imited by this lefault be void , c. 29, 8. 10 ; L A (10). curities of the 34. Nothing hereinbefore contained shall dis- uawiitj of for- *'^" o , mcr sureties. charge or exonerate any of the parties to sucli former covenant from their liability, on account of any matter done or omitted before the renewal of the covenant as aforesaid, (pj)) C. S. U. C, c. 19, s. 30. Clerk's Duties, (q) ' f/,^. ^"'* ''• *" 35. The Clerk may (with the approval of the when ckik •' ^ niav u))i>i'int Judge) from time to time, when prevented from veimty. acting by illness or other unavoidable acci- principal and sureties have been executed atdifferenttinies (whether they were taken in one and the same bond, deed, or other instru- ment, or in different ones), the period limited for registering and depositing such securities shall be estimated from the time of execu- tion thereof by the person who was the last to execute the bond, deed, or other instrument, or the last bond, deed, or other instrument, as the case may be. 32 V. , c. 29, s. 1 1 . 19. No neglect, omission, or irre- gularity in giving or receiving the bonds or other securities, or in registering the same within the t)eriod8 or in the manner prescribed )y this Act, shall vacate or make void any audi bond or security, or discharge any surety from the obli- gations thereof. 32 V. , c. 29. s. 12. 20. All bonds or other securities hereby required to be registered and deposited, shall be registered and deposited by the proper officer, notwithstanding the period pre- scribed for registering and deposit- ing the same has expired ; but no such registering and depositing of any such bonci or other security shall be deemed to waive any for- feiture 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. 32 v., c. 29, s. 13." (pp) It is submitted that whilst the liability of the continuing sure- ty still exists, yet the diseontin- uing surety's liability would con- tinue for a period of one month, or two at most, after giving the notice mentioned in sec. 32 ; default in giving the new security within that time working a forfeiture of the office (section 31). (q) Besides the duties mentioned in this Act and the rules, the clerk has other duties assigned to him by statute, and hereafter re- ferred to : 1. In actions of Replevin under Rev. Stat., cap. 53 (see Appendix). 2. Duties with respect to the debt attachment clauses of the Common Law Procedure Act, un- der Rev. Stat., cap. 50, sees. 311, 312 (see Appendix). 3. Duties with respect to ap- peals from Fence Viewers, under Rev. Stat., cap. 198. sec. 11, and cap. 199, sec. 12 (see Appendix). 4. Duties under the assessment law to issue execution for costs on appeals from the Court of Re- vision, under Rev. Stat., cap. 180| sec. 59, tt scq. (see Appendix). 2a THE DIVISION COURTS ACT. [Sec. 36. dent, appoint a Deputy (?•) to act for him, with all the powers and privileges and subject to like duties, and may remove such Deputy at his pleasure ; and the Clerk and his sureties shall be jointly and severally responsible for all the acts and omissions of the Deputy. C. S. U. C, c. 19, s. ;5:'.. 36. The Clerk shall issue all summonses, which summonses shall be by him filled up and shall be without blankseither ind.ateor otherwise at the time of delivery for service ; (rr) he shall also furnish copies of the same with the notice thereon, according to the form prescribed by the Oeneral Eules or Orders from time to time in See Form ??, et force relating to Division Courts. C. S. U. C, c. 19, s. 34. Clerk to iss\ie Suninionses and funiisli iMijiies, See Jlulen u, 10, m. f': , T). Duties respecting appeals from Division Courts in matters pertaining to public schools un- der Rev. Stat., cap. 203, sec. 7, ct si'tj. (see Appendix). (/■) It may be difficult to say what the words " unavoidable ac- cident" cover. As the a]>pointnipnt rests with the clerk (subject to the Judge's approval), it may perhaps be i)resuiued that he will not exer- cise this right except upon suttt- cient grounds. The Judge, upon being satisfied that the deputy was a re.s/ionsihlr and reluibk person, would probably grant his approval at once. But inasmuch as the clerk's sureties are made responsible for the deputy's acts and omissions, the Judge would take care, in jus- tice to the sureties (who have no voice in the matter), to see that a com/jctcnt person was appointed. For a form of this appointment, see Form D. The deputy clerk, being an officer recognized by the statute, should sign all necessary documents as such. The Act makes no provision for the Judge appointing a deputy clerk ; in case, therefore, of the inability of the clerk to make the appointment, it would be neces- sary for the Judge to appoint a new clerk to perform the duties of the office. (rr) Many clerks are in the habit of retaining the original summons and handing the copy to the bailiff. (But as to this, see note {/) to sec. 70.) When this is done, the copy should be carefully compared be- fore it leaves the office, in order that the bailiff may be able to swear properly to the service. Clerks are directed in the form to use words and not figures in stating the Court day. See also section 68 and notes. [Sec. 36. r him, with subject to Deputy at lis sureties )oiisible for puty. C. S. summonses, illed up anul(l be neces- to appoint a n the duties of lie in the habit ;inal summons y to the bailiff, ote (/) to see. clone, the copy compared be- sdice, in order je able to swear ce. Clerks are 1 to use words iting the Court ! and notes. Se.-. 38.] CLERKS AND BAILIFFS. m b7. The Clerk shall cause a note of all sum- monses, orders, judgments, executions and returns thereto, to be from time to time fairly entered in a book to be kept in his office, (.s) and sliall sign liis name on every page of such book ; and such signed entries, or a copy thereof certi- fied as a true copy by the Clerk, sliall be admitted in all Courts and places as evidence of such entries, and of tlie proceedings referred to thereliy, without any further proof, (t) C. S. U. C, c. 19, s. 42. • 38. The Clerk shall also issue all warrants, precepts and writs of execution filled up and without blanks ; he shall tax costs (u) subject Clerk to keep a record of Writs diiil JuilfirniuiitH. See Rules 77, 121, l.','J, 103, and Forms U, 45, HI, itc. Clerks to issue executions, tax costs anil keui> account of fines, &c. 41 ( s) The effect of the omission of a clerk to enter in tliis book an order for commitment of a defend- ant on a judgment summons, was discussed in the case of Vcck v. M<-Dou(jfil, 27 U. C. R. 353 ; 5 L. C. (t. ()8. Hauarty, J., after refer- ring to the above enactment, and to Rule 55 (of the old rules), said : " Were it necessary to decide the point, we should hesitate before we should hold that the omission of a clerk to enter an order of commit- ment in the Procedure Book de- stroyed the validity of the warrant, and made the party applying for it a trespasser. " See section 38, note {w), (t) As Judges generally make a memorandum on the summons of the judgment given, it is presumed that before a clerk makes the neces- sary entries in the Procedure Book he will ascertain if this memoran- dum agrees with the note of the judgment made by him at the trial, wliicli note he should always make in hU list (i.e., one corresponding to the Judge's list). In case of a discrepancy, he should at once refer to the Judge on the point. A form of certificate is given hereafter as Form G. This certi- ficate should always bear the stamp of the Court. It has been held under the Eng- lish Act of 9 & 10 Vict., cap. 95, sec. Ill, which is similar to the above enactment, that this entry, or a copy of it, is conclusive evi- dence of the proceeding to which it relates, and cannot oe contra- dicted by a note or memorandum of the Judge {Dews v. R'jky, 20 L. J. C. P. 2, s. 36. •om time to t-Governor, ' mentioned in itain entries of as of suitors' isedare "smh (ojahle or paid is a frt.s/t book, iter audi lines I into Court." that he must vvhieli to keep ■,* 8 " payable. " ription of this lie 77, and its n Form 5, it nded that the to be kept in a 'h this section book for the 1 '■:?■ Sec. 41.] CLERKS AND BAILIFFS. shall submit his said accounts to be audited or settled by the County Crown Attorney, {ww) C. S. U. ^., c. 19, s. 37. 40. The Clerk of every Division Court shall, from time to time, as often as required so to do by the County Crown Attorney of his County, and at least once in every three months, deliver to him, verified by th6 affidavit of such Clerk sworn before the Judge or a Justice of the Peuce of the County, a full account in writing of all fines levied by the Court, accounting for and deducting the reasonable expenses of levy- ing the same, and any allowance which the Judge may make out of any such fine, in pur- .suance of the power hereinafter given. C. S. U. C, c. 19, s. 38. 41. The Clerk of each Division Court, when re(iuired by the Judge, shall from time to time furnish him with a full account in writing, veri- fied by the oath of the Clerk sworn before the Judge or a Justice of the Peace, of the moneys received into and paid out of the Court by any suitors or other parties under any orders, judg- ments or process of the Court, and of the balance in Court belonging to any sucl or parties, {x) C. S. U. C, c. 19, s. 40, County Crown Attorneys. Clerka of County anil lUvision Courts to deliver to County Cripwn Attorney a veri- Hed ucfount of lincsi. Clerk of Division Court to furnish Jud^o witli a verified uccount of moneys piiid in and out of Ciuirt. i^tors ( /'•«•) This clause originally related to tlie collection of fees for the Fee P\Hid, and it is not obvious why it ha^^ been retained, as no such fees are now payable to the Govern- ment or otherwise. Section 40 makes ample provision to secure thi- payment of tines. The only subject it would seem to touch would be forfeited fees. (.r) The Judge could no doubt at any time require returns, giving information as to the bu.>)ine.ss of the Court, and to enable him to see howthe duties were performed. The legi.slature seems certainly to eon- template such a supervision by the Judge, and expressly requires, in the case of a return resi)eeting moneys paid into or out of Court, ^ ■ .■ 30 Tin; DIVISION COURTS A -^ [Se.. 42. V i>ivi8i..i, Court 42. The Clerk of every Division Court shall, IMerkHtofuniiHli iMe.imiKi' with lijilf-vearly at least, tiinush to the Jiulse ot i.miitH<.ffii:s ],ig Court a detailed statement ol all lees and nndciiiiiliiiiicnts, SeeJiuh s.i. emoluments of his Court, (xx) which statement shall l)e sworn to before such Judye, and it shall be the duty of such Judj^e U) reciuire such statement, and to file the same with the County Crown Attorney. C. S. U. C, c. 10, s. 41. 43. The Clerk shall, annually in the month inlmiy'of Jiiuii'T'i'y' ^^'^^^ t)ut a correct list of all sums of money belonging to suitors in the Court, [>/) which have been paid int- ourt and have 6Vf A'K^ >'. ((//-/remained unclaimed for si rs before the last day of the month of December tlien last past, specifying the names of the parties lor whom or on whoso account the same were so l)aid. C. S. U. C, c. 19, s. 4:i ('(,,.> ofiistiobe 2. A copy of such list sliall be ]»ut up and put uii ill t'liurt • X 11 i' "11 rii 1 > ic 1 Hnusi' 111(1 ill remain at all times m the Clerk s omce, and during Court hours in some conspicuous part of the Court House, or place where the Court is held. C. 8. U. C, c. 1!>, s. 44. Disposal of Books and Papers u-hcn Clcrl' changed . 44. All accounts, moneys, books, papers, and Ckrk niinuiiUy to iiuiki' list of SuitorH" ill Court Clerk's olti(.i\ that the same shcjuld beiiiude under lh(! sanction of an oath. 'J'he re- turn that mny he required by tliis section is quite beside the staiidinf? periodical returns elsewhere ])ro- vided for, and is only made on speciiil order of the Judjjte as occa- sion may arise, or as lie may deem it expedient to call for it. (xx^ This return is to be made im- mediately after the .30th June and the 31st December in each year, without any special order from the Judge (Hule 83). A form is given by Form llf». (//) This list is to be made under oatii, according to Form 116, and transmitted in the month of January in each year by the clerk, together with the moneys therein mentioned, to the County Attor- ney ; and if no money remains un- claimed, that fact shall be stated in the aliidavit (Rule 84). [Se<'. 42. Sec. 44.] LLKHKS AND HAILIKKS. 31 Court shall, e Judge of ill fees and li statcnicnt dye, and it •e(|uire sucli the Counly , .s. 41. the month of all sums e Court, (^y) and have * before the % iv then last *• parties for ne were so lut up and office, and (icuous part ! the Court 1 crk changed . u papers, and | order from tilt* J I form is gi\ en -.X )e made undur '| '^orm 116, and le month of rby the ck-rk, oneys therein Jounty Attor- ly remains wn- liall I)e stated L' 84). Other matters in the possession of the Clerk by [>;•,. -;)X.r virtue of or appertaining to his office, slialLf-t^-'V!;!,^^^^^^^ upon his resignation, removal or death, ininiedi- a^,^;;";^;:,^;;^^^^^^^^ ately become the p. operty of the County Crown "^ i-i-- Attorney of the County in which the JJivision is situate, (:) who shall hold the same for the benefit ui the public until the appointment of another Clerk, to whom he shall deliver over the same, but not until such Clerk and his sureties have executed and filed the covenant hereinbefore mentioned. C. S. U. 0., c ll', s.47. [Section 4S of C. -S. U. C, c. 1!), is as follows : (.») 48. Any person wrongfully holding or getting pos- \;;^'^;:I^ZlnJu session of such accounts, moneys, lKK)k8, papers an^l }'"'•;."'« '"'"'•;',;;;; matters aforesaiil, or any of them, shall be guilty ol a juisdemeauor ; and upon the declaration in writing of the Judge presiding over the Division Court for the time being, that a person has obtained or holds such wrongful possession thereof, and upon the order of a Judge of either of Her Majesty's yui)erior Courts of Law, founded thereon, such person sliall be arrested by the Sheriff of any County in which he is found, and which now falls heavily on one per- son would be inappreciable to the ratepayers as a whole. The clerk at present would be compelled by mandamus to give up the books, &c., of his otHcu, should he refuse to do so upon his resignation or removal (see In re Lucroix 4 O. S. 339. ) (a) This clause, with others of a like nature throughout the Act, is placed here by the Commission- ers for the sake of convenience, but in a ditlerent type, to show that though still the law, ittouclies matters which are not within the province of the local legislature to re-enact or interfere with. \z) Attention here maybe called to what appears to be an injustice to clerks in this connection. A clerk is obliged, as we have just seen, to provide the necessary books for his ollice, and at his own expense. These books are costly, and it does seem a little hard that, .IS they become, after a single entry has been made, public property, no allowance should be made to the clerk or his representatives, should he vacate office or die the very next day. It docs not appear in- equitable that, where all the suitors of the (Jourt have a certain interest in these books, they should be pro- vided by the county. A charge W»Jl«**»-* j9i:> %it, k -y ^ .-- /' ■ I B2 THE DIVISION COURTS ACT. [te.EC. 45. shall by such Sherifl' be committed to the common gaol of his Comity, there to remain without bail until one of such Superior Courts or a Judge thereof be satis- fied that such person has n(jt and never had nor held any such matters or moneys, or that he has fully accoiuited for or delivered up the same to such County Crown Attorney, or until he be otherwise discharged by due course of law. 13, 14 V., c. 53, s. 13.] Diiticn of Bnilifs. (h) Bailiffs to serve 45. The Bailiffs sliall serve air' execute all writ-. Sec Rule u", et sumiuoiises, oidei's, warrants, precepts and w . l^o delivered to them by the CIp k or service, whether Bailiffs of the Court out of wliich the same issued or not, and shall so soon as served return the same (c) to the Clerk of the Court of which they are respectively Bailiffs, but, subject to the provisions of the sixty-third section, (d) they shall not be required (c) to seij. lb) Tliese duties cannot well be enumerated here iu detail, but will lie found under the various appropriate sections, and a sum- mary of them will be found in the index at the end of the volume. {r) An inducement to make this return promptly is an allowance of ten cents if the return is made within six days (see Rule 00). For H(ime practical details as to the mode of .serving papers and process, and the duties of the baiiiflF in respe't thereto, see notes to sec- tion 70, and Rules 46, 53, 82, and Form '24. (ay, when he finds a person commiv,!^'ng a misdemeanor, arrest him without a warrant, but not after the olTence has been commit- ted and completed, and there is no prospect of its being repeated, nor when there is no breach of the peace involved. There is a diifer- ence between "found committing" and "just about to commit " and "just after the o'^',.n"c has been committed." In tlie latter case, if the otlence has just been com- mitted before the constable gets to the spot, the oflfender may be pur- sued if he runs away, but the pur- suit must be coutiimed without any long interval. A constable, in execution of his o(l in (litncalt jystaiiilur to as- attur will hu in- il, even thoiii^h itislijd thiit tho ll)ela\vful(y.'(;/. . C. C. '20). fees at the end forms (Xos. 127 LCt as introduced Henry Draper, of the Court of s were remuner- m a graduated arc many who mge from salary iiovc in the right e collector of all t interest in pro- and in matters division Courts, lonest man, has in tliis way it 10 great hoilj' of jgly be relieved fee system, and a fair scale iii- ct, however, is c dilficulty, and t suggested any dealing with it ir to all parties. ted that it wouM crtain sum on a .ccordiug to the fiim to cover all to the hearing. recommend it, uveuience to the k'ould then know osts they would would alio save erks. controversy hai roper fees to be Sec. 49.] CLERKS AND BAILIFFS. 35 Rules or Orders applicable to Division Courts, paid by feeg. heretofore in force or hereafter to be made by the Board of Conn y Jud.ufes, and approved luuler the provisions of the two hundred and thirty-ei,i,dith section of this Act. 2. Until otherwise provided by sucli General Fees of .lurors Rules or Or.lers, the fees to be taken and received by Jurors and Appraisers shall be as follows (file C. S. U. C, c. 19, ss. 32 & 49 ; 32 v., c, 23^ s. 22) : Each juror sworn in any cause {out of the moneji depnuited with the clerk for jurors' fees) Ten eents. To each appraiser during the time actually employed in appraising goods (to be paid in first instance bi/ theplaiii' tiff, ami allowed in costs of the cause). . Fijty cents per day , 48. A table of all such fees shall be hung up table of fccs t^ 1 • i.1 iX! c l^ lie huiiff up in in some conspicuous place in the omces oi the cierk's office, several Clerks. C. S. IJ. C., c. 19, s. 49. 49. The fees upon every proceeding shall, on Fees to he paid or before such proceeding, be paid in the first 1^^1X111 in" instance by the plaintiff, or other party at 1 charged by officers of the Division Courts ; many chargiog what were without doubt illegal and exor- bitant fees. The Inspector of Divi- sion (,'ourts has called attention to some of these overcharges. There are some, however, to which he takes exception, which would seem to be legally chargeable. It would be well for the clerks and bailiffs in all cases of doubt to refer them for the consideration of the County Judge, and follow his direction, so as to keep, if pos- sible, within the law, and not sub- ject themselves to charges of ex- tortion. In order to settle these disputes and have an authoritative decision, the Board of (."ounty Judges have power, under the 'J38th section of the Act, subject to the approvul of the Judges of the Superior Courts of law, to settle all doubts which may have arisen or may arise, or as to which there have been or may be contlieting decisions in any of the Division Courts. As to forfeiture of fees for neglect, delay, or misconduct on the part of clerks and bailitl's, see section 52, and Rule 98. With a view to assimilate as much us possible the charges and fees in the several Courts, forms of bills ofoosts, as prescribed forclerks in the county of Simcoe, and some forms of bills framed for the guid- 36 THE DIVISION COURTS ACT. [Sec. 60. not paid. whose instance the proceeding takes place, (i) C. S. U. C, c. 19, s. 5U. How enforced if 50. If the fcGs ai'c not paid in the first in- stance by the jjlaintifV or party on whose behalf such proceeding is to be had, the payment thereof may, by order of the Judge, be en- forced by execution in like maniier as a judg- ment of the Court, by sucli ways and means as any debt or danuiges ordered to be paid by the Court can be recovered. (J) C. S. U. C, c. 19, s. 51. ance of bailiffs by the Judges of Oxford and Elgin, are furnished in the forms (see Form H). Every Judf;e has of course, in his own county, the right to tax all costs, on ajjjieal to him, and the items in the forma given may or may not commend themselves to him ; at all events, they may prove useful for reference on any such apjieal. (i) This and the following sec- tion are designed for the protec- tion of tlie clerk. Of course a clerk may, if he chooses to run the risk, eomnieuce and carry on a suit without receiving a deposit of the fees, but he cannot be compelled to do 80. If he does, and there are many cases in which it would be a hardship on suitors to refuse, the clerk should not sutler for the indulgence, and the next section is designed to prevent, if possible, any loss to him thereby. It is common in some of the large divisions, for the sake of convenience, to fix a scale of de- posits proportioned to the amount of the claim to be sued, which will be sulfieient, in the majority of cases, to cover the (iosts of the suit, up to and inclusive of judg- ment, adding something additional for any special circumstance which would increase the costs, such as mileage, which would seem, on re- ference to the forms of bills of costs given (see Form H), to be the only item of increase. \Vc have seen in note (h) to sec- tion 29, that under the covenant which a clerk is compelled to give, his sureties are liable to the bail- iff for fees for services performed by the latter. It is clear, there- fore, that clerks must, if they de-' sire to keep themselves safe, insist not only upon their own fees being paid in, in the first instance, but tlie probable fees of tiie bailill'also. The amount of such deposit must necessarily be in the dicoretion of the clerk. It is not a case that often hap- pens, but a suitor sometimes de sires not to proceed beyond a cer- tain point in a suit, and might claim not to be obliged to deposit more than enough to cover the costs up to that stage. Should the clerk accede to this he would not probaldy be compelled to go further until an additional deposit should be made, but it wouhl be much safer for him to establish a scale of deposits and adhere to the rule of his olfice. (j) As suggested in the last note, this section is apparently a sum- mary remedy for the benefit of Sec. 61.] CLERKS AND BAILIFF8. 37 51. At. the time of the issue of the execution, Bainrsfeesto be paid to Clerk the Bailiff's fees thereon shall be paid to the ^efore execution ^ issuea. Clerk, and shall by him be paid over to the Bailiff, upon the return of the execution, (k) and not before, but if the Bailiff does not become the clerk, who tor some reason or another has not exacted a deposit as allowed by the previous section. But j)robably the Judge would not grant this order without a summons to show cause, or till after hearing the parties at any sitting of the Court. See Rule 144. The remedy by this section seems to be cumulative, and the clerk can probably maintain an action for his fees. In the Superior Courts an attorney has in general a right to have his fees jtaid out of any fund in Court, and the Judges of Divi- sion Courts would, as fur as possi- ble, protect their clerks. A form of summons and exe- cution used in several coimties, and given hereafter (B'orins L, M), will be of use when required. (k) The bailiff can have the benefit of tlie covenant of the clerk and his sureties to recover the fees iiere alluded to, as well as fees for other services (see note (i) to sec- tion 49, and note (ji) to section 29). The sum required as fees to the bailifl' at the time of the issue of execution must also go through t'.ie clerk. There will of course be no necessity for a further sum being paid if the original deposit under sec. 49 is suflicient to cover the costs referred to in tliis section. The bailiff's fees are by this section very properly placed un- der the control of the clerk, and are not to be paid to the former until lie returns the execution, and then only such fees as the tariff allows, the clerk being bound to see that the bailiff gets his proper fees and no more. To carry out the system evidently contemplated by the Act, the bailiff should, after he has made the debt and costs on an execu- tion, at once pay the whole amount, including the sum he has made for his own costs, to the clerk, and at the same time hand the latter a bill of his fees, giving the items, which the clerk will tax, and return him the amount of the bill as taxed, if not forfeited under section 52. The clerk should i'l no case allow a bailiff to settle bis fees with tlie debtor, or, for that matter, with the plaintiff either. "Clerk.s, in certifying the bailifTs return (as ])rovided in Rule 94), guarantee the correctness of the bailiffs fees, and if they have over- paid them, would no doubt be liable to the party out of whose pocket tlie overcharge came. It often occurs tliat a settle- ment is made between the parties after the issue of execution, but before sale. In such case, the bailiff has still a right to look to the clerk for his fees actually earned up to tlie time of settle- ment. If the clerk has neglected to take the necessary deposit, he may find himself in a false posi- tion. It is desirable in every way that clerks should get these fees in advance ; by doing so they will ])revent loss to themselves, keep themselves independent of their bailiffs, and benefit suitors whe- ther creditors or debtors. 81 THE DIVISION COURTS ACT. [Sec. 52. II ir li If 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 whom the fees were received. C. S. U C, c. 19, s. 52. Bailiff to forfeit 52. If the Bailiff neglects to return any pro- fees if lie lies,'- . ■ 1 ■ , 1 i. • • J v lects to return gess or cxecutiou withui tho time required by law, he shall for each such neglect forfeit his fees thereon, (kk) and all fees so forfeited shall be held to have been received by the Clerk, who shall keep a special account thereof, and ac- count for and pay over the same to the County Andsuohfewto^'^^^^^^ Attorney, to be by him paid over to the J form part of the Con- solidated lleveu^e I'und. (l) C. S.U. C. c. 19, s. 53. See Rale 98. luid*^""" ^'''' Provincial Treasu'-' (kk) The "time required by law" for the return of executions is ' ' within thirty days from the date thereof," as provided by section 163. See a discussion in notes there- to as to whether any action can be taken on a writ after return day, and as to the mode of renewing writs. By Rule 98, a forfeiture of "all fees in such suit " results, in case the proceedings tlierein are hin- dered or delayed by the neglect or misconduct of the bailifl'. {I) As these fees go to the (rov- ernment, no discretion can bo used by the clerk as to their forfeiture. Such fees as the bailiff would have been entitled to in case he had done his duty as by law re;iuired, must, in fuse of his default, be p.aid tta > irocted by th« statute ; and if thf y have not neen retained by tlie cK-.'k, he is personally re- sponsible .'or them, and must ac- count ioi them and pay them over. A return of all such forfeited fees was, during the last session of the Provincial Legislature, ordered to be laid before the House (see sec- tion 234). By section 221, the bailiff is lia- 1 .e to an action for not rjturning an execution within thrte days after tlie return day. If, however, he does not return it witliin thirty days from the date of the writ, as he is thereby commanded, he for- feits liis fees on it, and the clerk must withhold them. Again, by Rule 90, the bailiff is bound to make a return to tho clerk within six days after the ser- vice of a summons. Failing so to do, he not only forfeits the ten cents allowed him for making the return in time, but also his fees for the service. '1 he same holds good with foreign sumnixn^es (see Rule 81). It is not stated when the clerk is to pay over these forfeited feei 52. Sec. 53.] JURISDICTION. 39 JURISDICTION OF DIVISION COURTS, (m) 53. The Division Courts shall not have juris- cases in which diction in any of the following cases : to the County Attorney ; but the neglect to do so at least once a year (if not requiroil to do so oftener) would very likely involve him in trouble. («)) It may be necessary either to compel Judges of inferior courts to perform a duty imposed upon them by statute, and thereby make them act up to their juris- diction, or, on the other hand, it may be necessary to i)revent them from proceeding in a cause whieh is beyond their jurisdiction. In the former case the remedy would be by writ of miindamus, and in the latter by writ of prohibition. The discussion of these modes of procedure is more conveniently placed in a separate chapter, to be found in the Appendix. This chapter treats as well of these writs as of the writ of certiorari (see section (il), and speaks of their nature, the cases where they can or cannot be invoked, and gives some practical instructions and forms which will be of use to practi- tioners. Statutes regulating the practice and procedure of a Court apply only to matters within its jurisdiction, and cannot be called in aid to give jurisdiction when it is in question (Ahn ns v. McG'illignf, 23 C. P. 171). If a defendant sutlers judgment to go against him by default in a Division ('ourt suit, he cannot afterwards, when seeking redress for a trespass in seizing goods under an execution in such suit, disiiute the jurisdiction of the ('(uirt which gave the judgment. Sir .loiiN r.uniNHON, C. J., said, in delivering tlic judgment of the Court in Graham v. Umart et al., 18 U. C. R. 482 : " If the want of jurisdiction was apparent upon the proceedings, then it would be open for him to question the right upon any steps taken upon a pro- ceeding in that manner as being coram non judice, but I do not think he can question the jurisdic- tion by bringing evidence to dis- pute the place where the cause of action arose after he has acquiesced in it by suffering judgment by de- fault." He should have appeared to the summons and raised the ques- tion then, or applied for a prohibi- tion. Two recent decisions are to the same effect. In these cases it was stated that where nothing appears on the face of the proceedings to show a want of jurisdiction, and the objection only arises on the showing of certain facts as to resi- dence of the defendant and as to local origin of the cause of action, it is discretionary to prohibit fur- ther proceedings when the objec- tion is not taken until after judg- ment (/?o6erAso7t v. Cormvell, 7 Prac. R. 297 ; Archibald v. BHshcij et al. , ib. 304 ; see also Lord Mayor of London v. Cole, 7 T. R. 583). A pjvrty not raising the question of jurisdiction on the Hrst trial of a cfise in the Division Court is not prohibited from raising the ques- tion upon the second trial, a new trial having been granted (Dead- man v. Acfricultarc and Arts Anso- elation, G Prac. R., lid). The moment it is apparent, either on the face of the summons or particulars , or in the course of the trial, that the Court has no jurisdiction, the Judge can make no order as to costs or otherwise : WT^. T 40 Court haa no Jurisdiction. THE DmSION COURTS ACT. [Skc. 53. 1. Actions for any gambling debt {n) ; or 2. Actions for spirituous or malt liquors drunk in a tavern or ale-house ; or there is an end of the matter, so far as the Court is concerned (frazir v. FothenjUl 14 0. 13. 298 ; LawJ'ord v. Partr'uhic, 2ti L. J. N. S., Ex. 147; Hopper v. War- burton, 7 L. T. Re|.. N. S., 722 ; Powkij V. Whitehead, 16 U. C. R. r>89 ; Wetherall v. Harlow, 30 U. 7(), e8tal)lishjs tliat Iho plea of " not possessed," in an action of trespass, mhe, 7 U. C. 1{. 548). But the rule is diiferent in the trial of inter|)leader issues, for it has been decided that in such cases a Judge may decide upon the i[ues- tion of ]iroi)erty in goods, even though the inquiry may iiiV(dve the title to land (.I/hh.mV v. Mc- Khih'i/, 15 C. P. oO ; 1 L. C. (J. 8.) In an action by a landlord against his ti.'iiant the latter is esto|i]icd from denying his landlord's title, V Sec. 64.] JURISDICTION. 43 r [1 vise, bequest or limitation under any will or the court has no ' * •' jurisdiction. settlement may be disputed ; (p) or 6. Actions for malicious prosecution, libel, (jr)/?) slander, criminal conversation, seduction or breach of promise of marriage ; or 7. Actions against a Justice of the Peace for anything done by him in the execution of his office, if lie objects thereto, (q) 0. S. U. C, c. 19, 8. 54. 54. The Judge of every Division Court may cases in whicii and cannot, as against him, set up any claim of title. If the dufund- aut let another into possession of the premisei. vohintarily, ho is still estopped ; bu. '' he is evicted by titlt! paramount, he is not [Emery V. liarmt, 4 U. C. L. J. 212 ; 4 Jur. N. ,S. 634 ; Macara v. Alurrish, 11 C. P, 74) ; and so if a thir.l party becomes entitled to the re- version and agrees to release the tenant npon receiving, and does re- ceive, possession from him (Camp- bdl\. Ditrhlmn, 19 U. (J. K. 222). Want of space prevents .any more extended refeience to the cases decided under this and analogous statutes. Many of them will iic found collected in Vol. VI., p. 145, of the Uj>per Gaiinda Luted," i.e. mUjht be disputed, or may be in dispute. From tin; u.se of the words " may be disputed," and I'oniparing tlii'iu with t!ie words " comes in tpiestion," as used with refereniu' to title to liind, it may be infern-d tliiit the Court will not liuve juris- •liction in any case so s^ou .is it appears tiiat the cause of action viaij depend \x\m\\ the validity of a devise, without any [iroof that it does so depend. (pp) In Hopper v. IFarlmrton, 7 L. T. Rep. N. S. 722, the particu- lars attached to a County [Division] Court summons were as follows : ' ' To damiages sustained by me by reason of your making a false charge of stc-vliug a tobacco-pouch and silk pocket-handkerchief, at the Clerkeuwell Police Court, and loss of character. " On an applica- tion for a prohibition, the Judge (Mellor) said that the jdaintilf's contention that the plaint was in effect for false imprisonment could not be sustained ; that it jiointed either to malicious prosecution or libel. Thewords used in this .sub section signify such well known forms of action, that it is not necessary to enlarge upon them. (if) Sec. 12 of Rev. Stat., cap. 73, points out the time and manner in which the objection is to be made, viz. : " If ttithin six days alter be- ing served with a notice of any such action, such Justice, or his attorney or agent, gives a writttni notice to tlie iilaintit!" in the intendinl action that he objects tr) being sued in such County or Division Court for sucii ciuse of action, no proceed- ing's shall afterwards he had in any such Court in any such action, ' .rnnti^-'' 44 THE DIVISION COURTS ACT. [Sec. 54. ii- . I the Court has hold plea of, and may hear and determine in a jurisdiction. g^j^^j^j^j.y ^y^y^ fo^ ov against persons, bodies corporate or otherwise : 1. Personal actions (r) where the amount (rr) claimed dees not exceed forty dollars ; («) and \w {r) Personal actions are those whereby a man citlier eliiims the specific recovery of a debt or jier- Konal eliattel, or satisfaction in damages for some injury done to his person or property (Ins. 4, 6, 15). The forms of personal actions in use are ^/(:A<, covenant and a.^sumpsit, founded on contract ; and detinue, trover, trei^pass, trexpaxs on the case, and replevin founded on tort, i.e., such wrongs as do not fall within breaches of contract. Debt lies for the recovery of a sum of money certain. Cuvennnl, when redress in dam- ages is .souglit for the breach of an agreement by deed. Assumpsit is the remedy assigned by law for the breach of a contract not under seal. Detinue lies when the object is to recover a chattel nnlawfully de- tained. It seems to be the better o])inion that an action of this nature may be brought in a Division Court (see Wickhavi v. Lee, 12 Q. B. 521 ; 1 Cox & Mac. HO ; Taylor v. Addyman, 22 L. J. C. P. 94 ; Lucas v. Elliott, 9 U. C. L. J. 147.) Trnner lies to recover damages for th) wrongful conversion of {)laintiir's goods. In Oinn v. Scott, 11|U. C. R. 542, the Court inclined to the oi)inion that trover for a deed would not lie in a Division Court. But would it not lie for the paper or parchment upon which the deed was written ? Trc.ipass lies when the plaintilf claims damages for an injury ac- companied with actual or implied force. It may be either trespass vi et armis, with force and arms, as a battery or imprisonment ; quare clausum'/reijit, breaking into an en- closed place ; or dc bonis as/iorlatis , seizing and taking away goods. Trespass on (he case lies in every case of damage to person or pro- perty nut included in trespass. Jieplcvin is the re-delivery by the sheriir or bailill", as the case may be, to the owner, of goods unlawfully detained, or unlawfully taken and detained, or distrained. Jurisdic- tion was given to Division Courts in replevin by the 23 Vict., cap. 45. The Act is given in full in the Ap- pendix (see also sec. 56 and note (a). (rr) It will be observed that since the first edition of this work was is.sued, the words "debt or dam.ages claimed," used in section 55 of the Act then in force, have been changed by the Commission- ers for revising the statutes to "amount claimed" I (Ter- ence must '"■ boi J in imi..i when speakin:' ' ' lostion of juris- dictiou xi note. (a) A nave said, the wm is of the stati. are "am untclainied," and not "(l(l>tor lamages claim- ed." In discussii , the extent of the jtirisdietiou under this sub- section, it will be necessary to find the meaning of the words "amount claimed " — wherein and to what extent they dill'er, if at all, from the words used in the former Act, and for this purpose to ascertain, as far as may be necessary for the Sec. 64.] JURISDICTION. 45 purpose of the argument, the mean- ing attachable to the words used in the repealed statute. It will be more convenient to begin with the lust proposition, that is to say, the meaning of the words "debt or damages claimed. " It will be noticed that under 13 & 14 Vict., cap. 53, sec. '23, the Di- vision Courts nad jurisdiction over all claims and demands whatso- ever of debt, account, breach of contract, covenant, or money de- mand up to £25, "and in all torts to personal chattels, to and includ- ing the amount ')f ten pounds." 16 Vict., cap. 177, sec. 1, recited the expediency of extending the provisions of the former Act to all personal actions (with certain ex- ceptions) not exceeding £10, and gave jurisdiction in "all personal actions where the debt ur damages claimed is not more than £lO." The object of che 16 Vict., cap. 177, was to increase and not to diminish the jurisdiction of the Courts, and to give them jurisdic- tion in certain cases where before they had none ; and it was fairly presumable that any case which before that statute could have been brought up to the amount I *.25, could still have been so brought. Almost the only authority touch- ing the words "debt or damages claimed " was that of Aforris v. Cameron, 12 C. P. 422, and it will not be out of place to (luote it fully. It was an action brought for the recovery of the costs of a suit brought by the same plaintiflf against a ditferent defendant in the County Court of the United Coun- ties of York and Peel. The defend- ant subsequently promised, on be- half of the defendant in the County Court suit, to pay to the plaintiff his costs of that suit. The declara- tion set out the promise, the breach, and averred that the County Court suit was not of the proper conipe- tency of the Division Court. The plea set out the fact of the action having been brought for the breach of a warranty of a horse, and that only fifty dollars were recovered, anil alleged that the action could have been brought in the Division Court. The plaintiff demurred to this on the ground that the action was of the proper competency of the County Court. Dkapku, C. J., said (sneaking of the seitions as they tiien stood): "I think the 54tn sec. of the Division Courts Act has nothing to do with this case, for that points out the cases where the Courts have no jurisdic- tion at all. Here the jurisdiction, as to the mere cause of the action, is undeniabIe,provided the amount is not too large, and therefore the question arises whether it comes within the tivst or second sub-sec- tions of sec. 55. If the former, as a personal action, where the debt or diunage do not exceed $40, then the action is properly brought in the County Court. If the latter, as a claim and demand of debt ac- count or breach of contract, &c., then defendant is entitled to judg- ment. But for the word ' debt' in the first sub-section, it might be argued that the words personal ac- tions there used meant that class of actions to which the old maxim actio personalis vioritur cum per- sund applied. It is not easy to point out a personal action of debt to which the second sub-section would not apply. The English County Courts Act enacts that ' all pleas of personal actions, when the debt or damage is not more than £20 (afterwards extended to £50), whether on the balance of account or otherwise, may be hold- en in the County Court,' and then follow certain exceptions. I take it that there is no doubt an action for breach of warranty, within the limited amount, would lie in the County Court in England. The caae of Arts v. Orchard, 30 L. J. m 4G TllK DIVISION COUUTS ACT. [Sec. 64. Src. M i I Kx. 21 ; ;i L. T. S. S. 413, at^eui.t coiilu'ive oil this imicit In uiy o]iiiii') I US ti) tlris p li it till' *i'l«ii I- aiit Is iirir i- ! m) jii'li.Mii iit Tliisilfcisiai cuiririiKMl ili -opin- idii i'X|)ri'.sH,.- 1(11) the s.iiiib' |)oiiir liy tile ie.trilfil .hl.lfic iif till! t.'ouiity ('unit, an ' iiiiy If s.iiil pncticil- ly to hivi- ciccidi'd tiliU Kivisiiiii Courts li:iil jiirisiliutioii in all iier- soiiil notions within the st'opi' of that Act, wli'Tii the amount ilid not ixiecil SlOO, cXL-ept in actions for torts, which aipjitiared to he the only class of actions within the sta- tute not covered by the sccoml suli- section. This was the cou(dusion arrived at by the author in the first edition of this book, and we must now see whether the changa i i tiie words has in anv way extended the scope of this su1)-8ection, and so limited the jurisiliction under the second subsection. It is thought that the contrary is the fact. The dirticulties in jilacing a rea- sonable construction upon the two sub-sections of the old Act iiave been in a measure i amoved by the use of the word "amount." "Debt and damages" certuinly covered v.vavy claim, whether of a certain or uncertain character, but they caused confusion '" that they were similar to the ck-f' essions useil in till' second sub-section. The use of the word "amount" does not pre- sent that ditliculty, and seems to make more clear than before that the test as to whether $40 or $100 would in any particular case lie tho limit, is not >*hctlier it would como within the first sub-section, but whether it could not reason- ably ba placed under one of the classes of cases mentioned in the second sub-section, which, it will bo noticed, covers every claim for debt, account, or breach of con- tract or covenant, whether payable in Liioney or otherwise. This brings us to the case of In re lit'inblc V. U'Ukoii, 5 I'ruc K. .'5S ; 5 !-. '. <}. .'>S, whi'h, iioweve*, w;i- d.>'i led iiiiilei the til I .Act, ,uhi help () di tine the line wh' le cui.tr.ict ends aiil tort liegins. Tiic plaiiitill charged that tin- del' n.Luit liin-d ot Ilie p aiiitilf a horse to U'l from \ to 15 and liack, and a:.reed to take gnoil ca'c of him as a bailee, and avern-d tiiat the ilelendant so carcli "sly ilmvo the liorsi- that it was killed, an i that (laiiinL,'c was done to the ex- ti^nt of ."jS."). Tlie case was tried by a jury, and vcnlict given lor plaiiitiif. The ilefendant apjilied for a itrohibition ou the ground that the action was for a t.ut, and the amountwas beyond the juri.sdic- tioii. A. W'lr.soN, J., however, held that the plaint was in con- tract and not in tort, and the case came therefore under the second sub-section of the former section. And so (i.Ai.T, J., in ()' liriiii v. frriiKj, 7 I'rac. R. .SOS, decided that a claim for the value of a horse employed by the defendant, and which had been injured by being worked when sick, wher.by he died, was an action for breach of contract in ^ot taking care of the horse, and not for a tort. An action for a penalty of .?80 for not returning a conviction was held in Carsant ifui tain v. Tm/lur, 10 (!. L. J. ;}'20 (Ki.i.iorr, t'o".!.), to be beyond the jurisdiction of the Division Court, inasmucli as it was founded on a tort, although technically the form of action i.s " debt " (see also Ihaki' i/id tarn v. Prntou, ;$4 U. C. 11. 257). No argument can be foundeil on the words " personal actions," be- cause the causes of action referred to in the next sub-.scction would come under that general classiti- cation. Illackstone says : "Per- sonal actions are such whsreby a man claims a debt or personal duty or damages in lieu thereof; iwid likewise, whereby a man claims a 1^^^ Src. 54.] JUKISDICTION. •47 2. (s,s) All cliiiins and (leinainis of debt, ac- f''i»e8 :n which count or livt'iicli of contract, or covenant, or satisfiiutioii in damages for some injury dime to liis iji-i-soii or ]iro- ])('rty. Tlio t'uiiiii'r ure saiil to he foiiriilcd on contracts, tlie liittur u|)oii torts or wrongs. * * (Jt t\u- former tiuturt! are all actions uiion del)t or j)roniise.s ; of tlit: lat- ter, nil actions for ticspaHses, nui- sances, assaults, &c." It is conceived tliiit, in the latter class of cases only, tlic jurisdiction is limited (sulijcct to the exccjition in section 53) to $40 ; in the former to $100. To constitute a tort, two things nuist concur: actualorlegaldaniage to tiu' plaintiir, nnd a wrongful act connnitted by the defendant. The damage must not he too remote, and must he suliicicntly connected with the wrong ; but it is not ne- cessary to show that actual j)ecu- niary damage has been sustained, as every injury to a right imparts a diinmgc (Addison on 'I'orts). The following jjeiieral rules as to the measure of damages may be found useful : The amount which would have been received, if the contract had been kept, is the measure of dam- ages if the I jutract is broken. Where v party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to ho, ])lai;ed in the same situation with lesjiect to danniges as if the con- tract iiad been nerformed. Damages for oreaches of contract are only those which are incidental to, and directly caused by, the breach, and may reasonably be sup- |io8ed to have entered into the con- tem))lation of the parties, and not s))eculative proKts, ur accidental on conseiiuentiul losses. The measure of damagesin actions of tort, whichiuulude neitherfraud, malice nor ne.;ligeiieo so gr()>s as to amount to malice, is rc-uh'ted, as in actions (»f conn act, liy the jtrinciple of awaiding compensa- tion totlie injured party. Rut when a tort is accompanied by any of these circumstances of aggravation, juries may and ouglit to take into considi —ition such Iraud, malice or neglig< i.cc, and award not merely compeinatory, hut e.\cniplaij' or vindictive danuiges, in doing whicth their only safe guide will he a dis- cretion which must i)e regulated by the facts of each particular case. (Jcnerally in all actions of con- tract or tort forunlit|uidated dam- ages, a defendant may give in evidence any extenuating circum- staiUHS connected with the jiar- ticularease which tend to diminish the arnount of his culpability, or to throw it to some extent on the plaintiff; and such circumstances will be properly considered by the jury or Court in assessing damages (I'owcll on Kvidence). {xs) The words in the sub-section here i>rinteil give the law as it now stands, as altered by 41 Vict., cap. 8, sec. f), whii'h was jiasscd since the puhlicaticm of the Kevised Sta- tutes. The words in the Kevised Statutes were as follows: "All claims for debt or for any sum payable under or upon any con- tract for the jiayment of money, or for payment in labour or in any kind of goods or commodities, or in any other manner than in money, when the amount or balance claimed does not exceed $100." The Com- missioners for revising tfie sta- tutes thoutrht proper to alter the original enactment (C S. U. (". , cap. 19, sec. 55, .sub-sec. 2) in the way above stated, and appended to the clause HO altered the following 48 THE DIVISION COURTS ACT. [Sec. 64. the'ourthM uiduey (JemaucJ, whether payable iii money ur otherwise, where the ainount or balan(3e cliiiined (t) does not exceed one hundred dolhirs ; and except in cases in which a jury is legally demanded by a party as hereinafter provided, {a) the Judge shall be sole Judge in all actions brought in such Division Courts, and shall determine all ([uestious of law and fact in relation thereto, and he may make such oideiy, judgments or decrees thereupon as appear to him just and agreeable to e([uity and good conscience, (c) and every such note: "In the above section the language of the original has Ijeen slightly iiltereil, in order to express more clearly wliat iii conceived to be the meaning of the section." The legislature, howevei-, hy the 41 Vict. , cup. 8, sec. G, rejiroduccd tiie original enactment. (0 That is, when tiie parties have tiieinselves struck a balance, or where there have been payments on iU'count, or what is equivalent in law to a payment ( IFuoiUianu^ v. 2\i'iiiitiiii, 7 (". li. (i^-i ; Cdimron V. T/ii>iiijM>,i, 1 U. C. L. J. 0), and aiiytliing received by a bind- ing agreement between the parties in leiluction of plaintifl's claim is ecpiivaient to payment (Hurl v. Aash, 2 V. M. ± R. Xil ; Turiur V. Berry, T) Ex. 858 ; IViLson v. Friviklin, I (.'ox. A Mac. 497). This section is restrained, by bection 5U, to eases in whicii the wholeaecount, of which thebulnnce is claimed, does not exceed $400 (formerly $200). That provision, in connection with the present one, was necessary to prevent the trial in tliese Courts of long complicated accounts umouuting altogetiter to Uirge sums. The principal coses vu the sub- ject involved in the words "balance claimed" are refcircil to in note (/) to section 51*. ((/) See section lOS). ((•) T"he principles of ccjuity are tlius incorporated with Division (Jourt administration. It is now generally considered tl' it the words "just and agree- aliie to equity and gooil consci- ence," liave not reference merely to tiie (practically) limited equity admini.s^.ercd by the ( 'oiirt of Chan- cery, but refer to something more than that, and signify wliat has been termed " iiaturMl e{|uity," or that which is morally just between man and man in eadi particular ease, irrespective of the in-obablc or possible results logically conse- (lueiil upon a broad :(|iplication of llie principles deducibie from the sui)|)oseil e(|uitieH of such ea.se, ae- cordiiig to tUo view taken cd" them by a .Judge of average capacity. Though the subject was not dis- cussed at any length in Si/itnl v. '///m»/(, 17 IJ. C. H. !t8 ; 5 U. C. L. J. hi, the learned ' 'hief .lu.stice favoured the more extended inter- pretation of tlie words. A prohi- bition was asked to a Division Court, because a piaintitF was there JSk.' 54. JIKISDICTION. order, juilifuuMit, and (locroo, sliall be liiial and l)orinitto(l to ii-covi-r in an iictioii oil a i)r()niiss()iy lu'tu against an eniior.-scr wit iiout being riMiniiud to give evidenci' "f the iiie.sentnii'iit of the note for paynii-nt, or notice of non-paynient. The (.'onrt con- siduretl tiiat the .hidgc had jiiris- dietion to di.s|iose of the case "ai'- cording to his nh-as of law anil good conscieni'f," and so wonld not grant tlie writ, hut at tlie same time intirnate u{ small valu(> to go into (Jhancery, or to tile a hill on the e<|uity side of ii County ( 'ourt while the County ( 'ouits h; d an eipiity side, would in elleit, though not in form, he giving tin m no remedy. Here the aihounl hap- pens to be consiih r.ible, but the ((ueslioii is not allected by that ac- cident. The Uivisiou Courts, in the exercise of their onlinary jur- isdiction, are not meio Courts of Common Law, but are entitled, I apprehend, to take cognizani'e of all money dtniiaiKls within the amount limited by the statute, whether such demands are in their natures legal or equitalile ; and the Court or.ludge IS to 'make suchorlers, judgments or decrees as appear to him just aiid agreeable to eepiity and gi)od conscit U'C ;' and it is de- clared that 'every such order, judg- ment and decree, shall bo litial and conclusive between the parties.'" The ( 'ourt of Chancery in Kng- land was originally jiim'/itu Court of conscience. That it is not so at the present day is evident, for it holds itself bound by statutes that often o[)erate harshly in indi- vidual cases, ami has laid down many rules for its guidance which are applied with greater or less rigour according to circumstances. That any rules are in existence is an argument th-it thej'' are neces- sary ; antl if ncit;ssary in a Court which was orhiianlhi a Court of gooil conscience onlj', why are they not necessary in a liitely consti- tuted Court of "ei|uity ar.d good conscience." There is nothing in th>' term '" according to eiiuity ami good conscience" that would warrant a judge in violating any positive enactment, and the more closely he adheres to the principles of eipiity as administered in the Court of Chancery, the more likely is he to be ccuicit, and certainly, as a conseipiencc, juilgments will be more uniform, and therefore mure ITTlf* ^■^-^fOjHrt^,^ 50 THE DIVISION COUUTS ACT. [SkcSo. ' 1 conclusive between the parties. (/'•} C. S. U. C, c. 19, s. 00. .Tmigenmyor- KK Unon auy contiMct fov tlic pavmeut of a (ler |)iivtiiunt ill I 'J m.mujviitiio.ijrh certain in labour or in aiiv kind of goods or contnict iMit for '^"'" w v ^ i, u»mev""' connnodities, or in any other manner than lu money, the Judge, after tlie day has passed on whicli the goods or commodities ought to have been delivered, or the labour or other thing pcr- foimed, may give judgment fur the amount in money as if the contract had b:^en originally so expressed, (.'•) C.S. U. C, c, 10, s. oG. thii liulge, until Micli time as there is a fusion of law uuil e(iuity. (w) It would lie foreign to the olijuct of tliis work to discuss the advisability of an aiipeiil in certain cases from tlicso Courts, or the wisdom of jircvcnting litigation by witliliolding such a provision. The great di'sideratum of all laws, but one which can scarcely be ex- pected in tiicse Courts under the ]iri'S('nt system, is expressly recog- nized in tlie "Act respecting the Kdnoation l)e)>artment " (liev. Stilt., caji. 203, see. 7), which says: "It being highly desirable thiit uniformity of decision should exist ia eases within the eogniz- unce of the Division Courts, and tried in siuh Courts, in whirli School Inspectors, Ac. , acting under the provisions of this Act, are par- ties," &c. I>ut the practical ob- jections to an appeal are so cogent, that those most conversant with the worknig of tlie sy.stem are entirely opposed to it. The old Latin maxim is applicable, that it is for the good (if all that there should lie ;i speedy end of litigation. (,/■) And the measure of damages W(ndd be the value oftlie goods or of till work at the time of delivery or performance. generally satisfactory and benefi- cial. 'TZ-". After all, certainty and uniformi- ty in the administration of the laws are practically matters of prunary importance, and cannot tie too strongly insisted upon. TJie too numerous comidaints on tiiis head show that sometliing is wrong somewhere. To obtain certainty and uniformity, an intimateknow- ledge of and strict adherence to first princi;>li's on the jiart of the J.idge is indisjtensable, and this must be combmed with the salu- tary maxims of e(|uity, whii h are of imiversal a]>plication. Cases often occur in Division Courts where it is ditlieult to deiide upon which side the I'lpiities lie, and in sn( ii cases the maxim, "M'iieie the eipii- ties are ei|ual the law must ]ire- vail," would beii safe guide. With refeionee generally to this equita- ble jurisdiction in I )ivision ( 'ourts, as eoinpnrcd with County Courts, it must be very perplexing to an uninitiated suitor to tind that tiie Judge who decides in his favour on a chain for one liundicil dollars, on an exactly simihir state of facts de- cides against him in an action for one hundred and one dollars, lint BO it must be in a greater or less degree, according to the views of ui Sec. 58.] JUKIBDICTIOX. 61 56. The i^aid Division Courts .sliall also liaveJunsaiition in juiistliction iii all actions of replevin, where the value of the ooods or other property or ellects distrained, taken, or detained, does not exceed J,^^"^'"*'''^ ''^ the sum of forty dollars, as jn-ovided in " The Replevin Act." (a) 23 V., c. 45, ss. G and 7. 57. No privilege (/') shall be allowed to any n<> priviicu'c o . . II' exfiniit from person to exeini>t hiin from sum" and bems j>"-i"«i'«tiim sued in a Division Court, and any executor or administrator may sue or be sued therein, (f) and the judgment and execution shall be such as in like cases would be given or issued in the See nuie Gi. Superior Courts. C. S. U. C, c. 10, s. r.7. 58. A minor may sue in a Division Court for Minors nmy pr..- any sum not exceechng one Inindred dollars, due to him for wages, in the same manner as il'f^ecnukiieand J-'unn 7. lie were of full age. (d) C.8. U. C, c. 11», s. 58. ("I Hcplovin idiisi.sts in the re- delivery to tiieir owner of goods taken from him, anil the aetioii lies wiierevcr goods have lieen iiiilaw- fuily taken out of his pos.sessiou. It may here briefly he stated that the owner, upon showing eertain facts and giving certain security to )iro,He(Ute his suit witli etl'cct, is entith'd to a return f>t hi.>< goods. Shoidd he fail, he must either give up the goods agaiu or pay their value. The Act referred to in this sec- tion is given ('// i.i-fciisii in the Appendix, with references to the rules and forms appliealile thiTeto, together with Home suggestions whieh may he of use to otiicers and l>r!vctitioner.s. (/') .^ee notes to section 189. {r) The rules 04 to 7"), and forms there referied to, make full provi- sion as to proceedings against execu- tors ami administrators. ('/) "This clause does not appear to be hy any means intended as a restriction upon the right of in- fants to sue in the Division Courts, hut rather the contrary, the object being to enable an infant to sue for his lab )ur, contrary to the prin- ciple of the (Jommou Liw, which would give his earnings to his father. The clause leaves the right of infants to sue ujion other causes of action as it stood before, and no doubt an infant may well recover any demand that he may have for goods sold, nioney lent, &e. ; his infancy being a j)roteetion to himself, not to his debtor. We tind nothing in the statute respect- ing the mode in which infants may sue, no means being given of ap- pointing a next friend, nor any necessity inipost>d of doing so, or of giving security for costs" (per I'niUNSoN, C. .1., in Fcrrii v. la./; 11 U.C.It. :n2; 1 U. ('. L..I. 227 ). Tlie ju-ovision of section 244 52 TIIK lilVlSl(.)N COrUTS ACT. [skc. r.o. Il ^11 ^J (Causes ..f.uti.M 59. A causG of actiou sliiill not bo divided '"""•'"-"'"""'■ into two or mon^ suits lor tl.o inirj.oso of hrinnini,' the same within the jurisdiction of SeeRuiesand i)ivision Court, 0) aud no greater sum than Form •II. IV -^ » s / would (louUtlfssi (Dine into oiiora- tioii ill ciiHos other than those coni- inf? within this section. In Ih*' Suix'Hor Courts an int'iint u.si>;.'ily sues by "next friend," who is liable for costs, in like manner, an infant suing in a Division Court lor other claims than waives should .sue l)y "next friend," thus: " ^1 . />., an infant, by C. D., his next friend, v. L\ F." The rules under the Kni^dish County Courts .-Vt t [irovide for the bringing the next friend to the clerk's otlice when the plaint is entered, wliert he signs au utider- taking to beeonie resiionsible for any costs that the infant niiiy be ordered to i)ay ; and in tlie Kules of July, IStiO, the same jiraeti(e has been directed by I'ule I'JO. And if the jdaintiir fail or withdraw or discontinue his suit, and do not]iiiy the costs awarded aijainst him, proceedings may l)e had against the next friend as for the rt eovciy of an ordinary debt. Xo. 7 is the form given for the undertaking. ((') There has been much litiga- tion in England as to what is to be considered as a splitting of the plaintilF's deuiand, under an eniiet- nient simil.ir to the above. The leading cases on the subjeet, up to a certain jioint. are disi'ussed in the Ujiiii'i' Vnniiilii l.iiir Jdiinm/, Vol. Vlll., j.p. iW,'M,2.il. They have since been colleeted by the late learned Chief .Fustice of On- tario in III re MrK'ir.ii li: /'i/nn, 6 Pi ic. K. .'Via. The Chief Justice there says : "The old rule was, that if ther.' be one entire contract above forty shillings, aud u man sue for it in a Court Baron, si vcring it into 'liveis small sums under forty sliilliiigs, a prohibition shall be granted, beeause this is done to (u fraud the Court of the King. !!• Hen. VI. .H ; 1 H. .V .V.l. (573, note. If tiiere be several contracts between A. and \\. at several times for several sums, each under lorty shillings, ;inil they do all amount to a sum sutlieieiit to entitle the Superior < 'ouit, tliey shall be there put in suit, and not in a Court whieli is not of record (AtKin., I Vent. t!.")). W here a tra''esniau sn])i!,. !» V. 15. 7 lit; 1 I.. Si. & y. *2.S0; Ji<»i.- ; .\lrli,,,' V. Iluhlns, 20 C. V. 1:55; IMninls \: Marlin, 2; \V. I! «t.S)." In Mr/!i(( V. Iliiliiiix, tinli', the plaintitf had two scpariite causes of action ; one for work anil Ldiour, and the other for tiie recovery of a halance due for money jiaid l>y plaintiil' foi' goods in excess of the amount furiiished liini. It WIS iirld hy llrciIKS, Co. J. (KIgin), in Lhiht \, /.//mis r/ III., 7 r. C. L. .1. 74, thiitas the dividing the causH of action into two or more suits must he Jur the /lur/msi; of bringing the same within tiie jurisdiction, it is inapplicalih'W here the demands wlieii added togctlu^r would not anH)UMt to nim'e tliau SlOO, or !?4(>, as tiie case ndnht be, though the plaiiiliir would run his risk as to costs by harassing a defendant with more Huits than necessary, hut it has been held in an unreported division Court case (McDoN.M.ii, Co. J., Leeils and Crenvillel, that a cause of action w IS notdividcd wliere the plaintiil', who lent defendant $1 'lO, took two notes for .S7,"» each, with the ex- press object of enabling him to collect them if necessary in a |)ivi- sion Court. Should, however, tiie two notes, or a note and an account, together amount to jSldO or less, thej- .should be brought in one action. The reverse is a too com- mon praeti'c, and whether allow- able' or not as a matter of strict law, a .Uidge would doubtless (should it a|)pear that the iderk had, solely for the ]iurpose of in- creasing costs, entered two suits when one wouhl sulHfbe) disallow one set of fees, as an abuse of the ]irocess of the Court. 1 n (iilliiTl V. Gillii'rt, r.irciitri.e of II'. Gilbert, 4 C. L. J. 229, the plaintiil' sued for money paid by him lor the use of the ro- hibition, DuArri:, C. .!., said that the ease was precisely one of the casi.'s coverc'l by the statute, but ^.rj, yy^P'*-, '^^^■f f ^ "■'■J'"' 54 THE DIVISION COUin'S ACT. [Sec. 59. any action for the balance (/) of an nnsettlod doubted wliuthtr the pndiibitiou should not liave been apidied for in the (irst suit. Tlie result of the cases decided on this subject in I'Jiglfind (and in which our Courts ayrce) is laid down briefly in a standard text book as follows : 1. A cause of action on contract, and one for a tort, are in tlu-ir na- tures distinct, ami need never be joined together in the same plaint. 2. Causes of ai.tion for work and labour, money lent, goods sold and delivered, and tlie like, are /iriniii facie distinct, and need not in gen- eral be joined together in the same plaint. 3. A tradesman's bill, in whicli one item is connected with anotlier in the sense that the dealing is not intended to terminate with one contract but to be continuous, so that one item, if not jiaid, sliidl be united with anotlier and form one entire demand, forms one cause of action, and can only be the subject of one plaint. 4. Causes of action, originally separate, may, by act of the ]iar- ties (treating them as one demand), become so connected together as to form but one cause of action. 5. Where a bill or note is given for a portion of an aieount, snch bill or note and tiie balance of tlie account form distinct causes of action (see Lloyd's County Court Practice, p. 114). (/) In In lY Mi-Kin-ifi ,{• /,'//<»», C Prac. ]{. .'i2.-), Hai;I!IS(.n C. .J., says : " It is remark.iblc, as point- ed out in Mr. OBrien's useful work on the Division Courts Act, that the plaintiffs right of aban- doning tlie excess for the purpose of giving jurisdiction is nowhere expressly given except in section 20;') (now l!)(i), wliicli appears to refer exclusively to proceedings against absconding debtors. " That section was an alteration of the original enactment of l.'l and 14 \'ict., and it is dillicult to see the reason of it. It is, however, gener- ally admitted that this privilege is impliedly given by the present section. It follows, moreover, that the abandonment of the ex- cess in any suit in which judgment is given, is by the next section a discharge of all demands with re- spect to such excess so abandoned, for that section makes the judg- ment (see Form 51) a discharge in respect it/ the (imitint of which such suit was for the balance, ami there- fore of that part of the account which isal)andoned. Section Il>(>, already referred to, is more ex- plicit by sjieaking of the cause nf action. .\li the cases therefore with reference to abandoning the excess, though decided on the sta- tutes, before altered by the (Con- solidated Statutes, or under Eng- lish enactments similar to them, are still in ])<)int. The abandonment must be a posi- tive act done, and would appear to be an abandonment for all pur- poses, irrespective of whether the plaintiff recovers all his claim i\\> to the extent of the juiisdiction or not, and must 1)0 made by the plaintiff himself, or by some per- son autlnrized ]>y him for that liurpose, and the entry of jmlg- ment sitould be made accordingly (see Form .")1). Where the excess is abandoned, it must be done in the lirst in- stance on the claim (liule 8). .\n oiler therefore at the hearing would be too late. Hut according to the decisions in England, it seems tliat if the suminons or par- ticulars state a demand not ex- ceeding .*!100, and the excess ap- jiears in proof at the trial, such '. ul). tied Sei'. 50.] JURISDICTION. 56 account, (y) nor ^lifill any action for any such excess may tlieii lie ii))ivnilono(l. I'liat, liowevc, is saiil mit to lie tlic law here, for Haiuuson, (.'. .J., helil in /// /•<• JA7v''/(;/(; .(• Ji'i/fv, oiitr, tliat Hule 8, liaving tlie form of a statute, is imperative. He siiiil also that "if it ai)i)ear on tlio face of the claim that it is oiu? which from the first the Court liad no jurisdiction to try, tiie better oiiiuion would a])i>ear to be that it cannot be brouf^lit within the jur- isdiction by an otlVr at the hcariny to abandon the excess." See also on the (juestion of abandonment hiiac V. W iihl, 7 Kx. 1(5:$ ; In re Hill, 10 Kx. rHy, /i<>i/,,/lil, 7 Kx. 1()3, the Judge adding : " Looking at the claim as a single transaction, )ii)ii ri»i.'ifrohibition, H.vh.vutv, C. J., de- cliiied to mtcrfere, on the ground tliat the intention of the plaiutitl' to al)andon the excess sutliciently appeared in the summons. See also section 'A, sub-sec. 2. So much as to an abandonment by the plaintitl". There may also be an abandonment by the defend- ant who pleads a set-otF ; and this is regulated by section 1)4, which enacts that when the set-ott' ex- ceeds the claim, the plaintirt" may be nonsuited, or judgment may bo given for defendant, in which case the set-oil' shall be satisfied to the extent of the plaintitF'a claim as proved, and the defendant may afterwards sue for the balance of his set-otl'; and he may, under Rule 152, when judgment is given for him, issue execution and take pro- ceedings for such balance, if under •SlOO ; or if over 8100, he may abandon the excess over that sum (see note (./) to section 1*4). (.'/) " What is meant by an un- settled account does not appear very elearly, but I think the reason- able interpretation is, an account the amount of which is not ad- justed, determined or admitted by some act of the parties, such as by the giving of a note, a mutual stat- ing or balancing of tlic account or tixing the amount due" (perMoH- iirsox, .J., in AV Hall v. Curtain, 28 i:. C. R. 537). The term "unsettled account" is in legal parlance the converse of an account state tlic same ell'eut as if it were reduced hy payment. " for the rediietioii of the plaiiititl's de- mand hy set-oil' is no satisfaction until the verdict of the jury his pronounced ittohe such ;'' and this distinction must Ix' cicrcfully con- sidered ill detcrminin;,' the matter of jurisdiction (see ^l<■^fll|•ll•l| v. Munro, 14 U. C. 1.'. 171. and '.he cases tliere cited; Ctimt rmi v. r/,/ V. HiUii, L' U. (-'. L. .1. WW ; ll'or*./- lidiiiK V. y„ ,(• .1/c- C((h;; 4 Prac. 11. 171 (o.errule I) : Oiroii.r V. Yd'/'i; .v l". C !,. .1, 1!'. liiu in the construction of tliis section the later cases luuc not allowed the reduction hy payment to bring an account within this section. In Hiiiiiiiihiilhiiiii V. Mi'iiii, 'J I U. C. ii. ;i--'(i, the del.it si.lo of the plaintitr's claim exceeded o L'ave cre( lit.li leaving a lialanrc of .€73. II C'lQ 8s. M.; and he ahnndoKed the excess of .t'l S.v. 8'/., and clainien to recover l'^.'). KoiiiNsoN, ('. J., said: "Tiie jdaiiitill's claim, in stating an account of which the tlehit side exceeded f7'5, stated a case not within the jurisdirtion of the Court arcordinjfto the ."tilth sec- tion, althoii;,'h th(^ lialamc c laiiiicil was (jiily .l''jr) ; that is, il thewlnde account is to he taken as an account unsettled, notwithstanding there were among the items two notes w hieh in thcnisidves were li(jiiidated demands." In U'lUK/h V. <'iiinrau, 4 {'. L. J. 22>, Lotili:, (.'o. .J., when speaking of sec. .".'.tof the Coll. Stat. U. C., cap. Ml, says : " I have always held that I had no jnri.sdiction to try an nnliiiuidated account exceeding S2(M» (now .'<4<:0), though reduced hv payment to a sum hehiw SlOO; the intention of the legislature appaivntly heing to prevent these smalldeht Courts from in vestigatinj| large and import.iiit transa<^tions. ' This i-tliu)iilicr- hiiiil, 1!» C'. r. •J'.t'.t, declined to follow //( ;■' Minm A- M>Ciil"\ (intr. . In this c'se the idaintill's account was for >;8>4. lie gave credits for I'ash and harrels returned to an aiiiotint which hroULdit the account undi'i- •'^KH*. It was i once I'rac. 15. '62'A, IIaimm.son, ('. .[., in lefei- eiicc to section "fit, as ainen, sec. '2, after al- luding to the deliiiition ol an un- settled account as given in //( ;<: //(/// V. Curtain, iinU, says : " It is not the less an unsettled account hi;cause thi're have heen piiynicnts made generally on account, whieli reduces the aggregate amount of the account from a sum exceeding .•i^'JOO (MOW i^HK)) to a sum less than S10(t." It would seciii, thi'reforc, that suppo.sing an account exceeding 8 too, on which there is a balance due of .'ii'lOO r)r less, this balance may be sued for if the account has been settled at some amount not exceeding .•? 100 by some adjust- ment, determii'ation, ailmission or act of the parti ch as hy the giving of a note, a mutual stating or balancing of the account, or hy lixing in some way the amount, if tiie amount of the account has been reduced by payments, these payments arc not of themselves evidence to prove a settling of the account, though they may be a strong circumstance in favour of there having been a settlement or admiscioii of the amount due when such payment was made. If, how- ever, the j)ayments that have been made can he said to cover specific items in the account, so that the creditor could su ; ir the rest without reference to' (em, it could not ho said that the part sued for was a balance of an unsettled account exceeding the specificil amount. If in the course of the investi- gation the Juilgc (iiid an unsettled account exceeding .*!400, his duty is to stop, not to go any further, and not to nonsuit or award judg- ment of any kind (see .section Wi, note (iii). [It] The 'M Vict., cap. 15, see. •_', altered the sum from .S200 t ) •SlOO. Tiiis largely increases the jurisdiction ; in fact, gives th(! .Judge ]")Wcr to ailjudicato upon unsettled accounts involving traus- t )^^i}^ %.»% G8 TIIK MVISIOX lOl-KTS At T. [Skc. 00. ki U:-. .jii.k'iM.nt to i.c 60. A iu(l<'inent of a Division Court in)nu a (lill.lis.l.arifc. , , , , , .. / 1 11 suit l>iou,i,'lit tor the balunfo ot an account shall bo a full iliseliarge of all (loniands in re.s])ect of tlio account of which sut-li suit was for the balance, (/) and the entry of ju(ly;nient shall be i.ia.le a.'conliugly. (./) C. 8. V. C. c. 10, s. GO. caiiHcM niiiv 1.C 61. Incase the debt oi dauiaj^fes claimed in R'HIiiMmI to Sm- i.iri"r»',.iiri, iiy r^jjy j^yyH iji'oimlit ill a Divisiitu t'ourt amounts certidruri in riT- "^ '^ tijii casts. to forty dollars and u]»wards, and in ca^e it appears to any of the .hull's ol' the Siii)erior Courts of Coiniuon Law that the case is a tit one to be tried in one of the said Superior Courts, and in case any Jud<^e thereof grants leave for that purpose, sudi suit may, by writ of certio- rari, {/•) be removed from the Division Court into either of the said Superi(»r ("(jurts upon such I m actions to till' extent i.f .'^400 on both hides, wliLM'c the amount is re- (Uioeil from .*!JO(l to .?10fi by iiay- ment or what is eiiuivalcnt to pay- ment. (/) See notes (/') and (;/) to last section. 0) See Rules 8, 152, and B'orni 51. (k) A certiorari is an orij^inal writ i.ssuinf(out of Chancery or the King's Bench (but is umler this section confined to the J^uperior Courts of Common Law), directed in the King's name to the Ji Iges or otfiocrs of inferior rourts, eom- niandiu}' them to return the re- cords ot a cause pending before them, to the end the party may have the more sure and speedy justice before him, or such other justices as he shall assign to deter- mine the eause (Bacon's Alir. ). To entitle asuitor to this writ, it must be shown that — 1. Till' amount elainied is SlO and upwards. As to which, it n y be remarked (hat it is not as elenr as it might be, whetiier a debt of i? to is within the seetion, 'I'lie sec- tion is intended jiiobably to read so as to include such an amount, as though it said " to :?40 and up- wards of .•?tO." '_'. That the cause is a fit one to be tried in one of the Superior Courts ; that it will in all proba- bility bring up ditiiiult points oi law at the trial ; or that it presents some other circumstame wh' •'• wouhl render a trial in the Court above advisable ; and ;i. The leave of a Judge must be obtained. A chapter in the Aitpendix has been tlevuted to the tliscussion (tf the praetice and authorities all'ect- ing the subject of > ertiorari, to which the reader is referred. Sk.', f.-J.J PKOCK.SS AND ri{<)CEI»URK. 50 terms, as t(j ]»ayiii(Mit of costs or other terms, asefrti-mri. the .Tiul^'e miikinj^f the order thinks tit. C. S. r. C 0, 10, s. (JL i'RO(.'KS>; Ayn rnocEDUHE. Division in which Suits to he entered. (/) 62. Anv suit porjiiizable in a Division Court in wimtcourtu " Huits ni:iy 1)0 en- may be ent(U'ed and tried {hi) in the Tonrt tt^rod and tried hoMen lor the Division in which tiie cause of (/) P.y the operation of tliis uiul the next two 8ee of at'tion arose. '1. Ill the Court of the Division in which the defendant or any one of sevL'r;il defendants resides. ."{. In tilt! Court of the Division in which the defendant or any one of several defendants carries on business. 4. In the Court the jdaoc of .sittiii",' whereof is the nearest to till' ilefeiidaiit's resideueo ; and ."). l']ion iilitainiuj; the special order of a .Iudi,'o for that puri)ose, in tiie (Jourt of any Division in his (.'oiinty adjacent to the Division in whicli the defendant or one of .several defendants resides. {m\ The words "cognizable in a Division Court" are not in see. 71 of C. ,>>;. V. C, cap. lit, hut are found in 27, -S Viet., cap, 27, which was made a part and par.'el of that section. When a liinitid jurisdiction is j;iven l>y statute to Su)perior <.'ourts, they will be contincd strictly to the limits laid down ; but within these limits all fair jpre- sumptions will he made in favour of tile jurisdiction. The case of lirhlqis v, />iiiiii/ii.-i it- 1)1.111)1, 13 <'.1-,.I. .S'lS, decided on the present section, may be cited as an examplo of this. The plaintilf .sued one Douglas as maker, and Dixon as endorser, of a promissory noie. It was alleged by Douglas, by way of defence, that his cii-dei'endant Di.Kon was the real plaintilf ; that Dixon had endorsed the note and caused Douglas and himself to be sued by Bridges as a nominal ji'aiii- titf for the purpose of enabling the suit to be brought in the division in which he, Dixon, resided. Mou- lusov, .J., on an a]i|)lication by Douglas for a prohibition, said : " 1 cannot consider the motive of the defendant Dixon. .\s endorser on t'.e note he was liable to be joined as a ilefendant in the suit ; and that being the ease, sec. 71 of the Division Courts Act gives jurisdiction to the Division Ctmrt for the division in which either defendant resides to try the case." He accordingly refused to interfere. It was also thought liy (iwYXNK, J., that when an action is brought in a division in which neither the cause of action arose nor the de- fendant resided, and the defend- ant did not ajjpear at the trial and object, and judgment was given against him, his right to a prohi- bition was gone (Ilnhrrtson v. Corn- mil, 7 I'rac. 1! . 2!t7). In this case, however, the writ was granted, without costs, to prevent a proba- ble injustice. (ill iiii; nivisioN iHU'lS ACT. [Skc. fi2. action iimsc (u) or in wWu-h tlic drreiiilimt or (/() TIkmc lias l.ccii uimI still is ( .. ;it wiiirl. plai-o a li.ii^'ftm v coiisiiiuralili- iliU'iiciu't: of t>|iiiiiMii iiiailu as til tilt Coiiil ill wliicli an action f..r til ivcrv oi ■rtaiii at W.. anil tin- liaiyaiii \v;i.s may Tlif liul )roii''lit iiiidi r tliixf Willi lis fiillilldl l.v s.ii live" \' ,1111 cast- (( f / n i-i trull V. I'm '_•:< I'. ('. It. lUti (.leii-kil 1 i'|itaiicc, it was lulil lliat tlic fiMisc _ , ._ , t iii'tiiin ariisi' partly at (1. ami foit'th.'lali'Ai-ti.f •J7--'SVict.,i'ai>. partly at W., ami tliat tlir .lu(lj;i' 57), iliiiii;,'li (Piily til.- jiiiliriiii'nt of ol'tlic inuiity in wliifli \V. is HJtu- ■ ' ' .1 •- • ,^ ,,f thi' Court on an < '■ /"'W. apiilioa- ate had no authority in resiiiM rtaiit tioii tor a rtiii' «(>(, is an Kiipo juilicial (Jfiision on tiif suiiji'cl. Thf (IcffMilaiits, ri'siiliiii,' ;,t(ioiK'- ontnut at lirantfon! !•• I'ausi' ot ■ictnui (//. (hr h, 1 C. I... I., 71 : 1 I.. «' : 4 I.. ('. C. li:<. to .same I llrct. with iihiintiir to i;aI'Ki;, I pon .m action lnoiii-ht at Kin>; ('. I., Ill j^raiitinji the rule, saii" The word.^i ston hivisii.n ( Mint for the short- He of action' a^e. the .In ;:c held that he had iiav in the Kii'disli ( 'ouiit v < 'ourt iiirindictioii. .MoHiiisoN. .1., how- Act, heeii repeatedly deteiniiiieil •ver, iiianted a |irohiliilioii, on the in Kn;^daiid to iiic-m the "/i"/' ii/(fl!iiii .- in other words, what- ever the jdaiiitill' iiiiist prove to entitle him to ncovei. .Now, what is the can Not the contract onlv, hut the con- ^rtuuiii that the whole action ilid not arise theii .Uise The i.e\t ease is that of .\ '/. J/<>/, 1 1 <(/., '1\ (".I" o.ion ft 11, se of action in this <'asc. wlici-i- tln-.ln-l;;i s conliriurd the inle iwii in the previous cases in rouiitiy, liy lioldinj? that the ' c.'iuse of 11 tioii " iiiuan tlii> :ract iiiid the lireacli, for which the plaintilV claims d.miaecs. The tirst was made at llraiittord, lui . a' lish wen- to he iind Were deliv cd trait and lin-aeh of it The action mis wind'' cause of action (-on- to the plaiiititlal the r.iilway sta- as liroiii;ht in the I )ivision ( 'ourt tioii at (Jodcrich. The lueju-h of at lii^crsoll, in the coiintv ol ().\- ontract alleired is, tli.it the fi-li lord, e.i a promissory note niadi there delivered were uiisoiiiid. iVi and if true, tliia lu'euch at the placi- of delivery stiiuil.ited for hy the contract. The i-aiisc of at I n;,'iTsoll and dated there, liiit it liy the ill f(-iiilaiit, who resided at i-ii'd ^tl•athrlly, in the eouiity of Middle- •X. The note was made jiayaldi action, tluu'cfore. jirosi lartiv at lirantford .-iiid iiartly at (lodcrich d th ilaintiir .t I IIIIlL was piovcd tliat it was rcillv imide at Strathniy. Th. ('. \irt held that t Ill-action should li,i\ e la-eii iMniyhl fiouai" 'tiiliii'' t.i the si coinl alter- \\ here the deleiidant resided, th native (as j;iven in tin statut.- niiiiely. where tli - defend, lllt re Th sides or carries on liiisiiiess rul-^ ii'ni must issue." W'liere th" defeit'l.uit r.siileil at h aiise of action, i.i ., the whole ause ol action, did not arise at Igel • hred. TI >ll, I ii |ir. I nuxT.ss AM> i'i;n(i.iiri;K Gl hi I m aiiV olio (ti' s('\HM;il tlt'l't'IHluilts it'sitU'S I",' "V the ^<^t•til>ll (»'. S. r. ('., c ap. !(•. HOI'. 71) t'l'lHIl Wllilll till' |PrrMfllt fiiiii'tiiii'iit is tiikt'ii ; aiiriinf;lit at I. 'i- • Ion. It was In-Ill \>y l'',i,i.iorr, Co. .1., that as till' whole cniHc of action i!iil not arixc citlicr at I. on- (Ion, wlnrc ilic ticket was issiieil ami wliero tlie ilcfenilaiit sliouM liiivo lieeii carrJL'il hack to, or at DorclioHter, whore the e\|iiilHion took {ilaee, it iniiHt Ixt hroii^ht wliero the tU'fciiilant lesiileil or carrieil n lnisincss, which iijipeareil to he ;he city <>f iianiilton. There was much tliscnssioii in Kn^'lariil as to the iiieaniii;{of sonie- what similar wonls in an Iniiicrial statute. 'V\\v ( 'oiuts tilde were • liviileii ill o|iinioii, hut alter niiicli litij^atimi have, for the >ak- >'" iiiii- forniity, come to an iin
  • i->: (I \. .1. N. S. ;i'j.-,, ai,'iec>| to in ruini/iini V. ll'.liliDi, I,. 11, 10 <\ I'. l7). 'I'hese cases, how- ever, arc hot authorities on the present Hei'tioll. The more recont case of O' Ihniir /!>,.■ V. Wi/,1/ ,/.,/., m i;. ('. 1!. ;t.-)<) woujil seem at first sijjlit toovcmile .V'liDii v. Iliil iih-t, iiuh\ which has hei'fi above saiil to In* conclusive as to the wonls o| thu seutinn now uiiiler ilisenssion ; hut it will he notieeil that "'/',/)/«/,oc v. H'//c7 '/ (//. wa.s ilcciileil upiiii another statute ( l!iv. Stat., cap. ")i), sics. »!\ .•)(). C. 1,. r. .\ct), where the wiinliii;.', tliou;;li very similar, is not iilentical with the wopLs in the section hefore us, and the ( 'hief .lustii'c, in ,niviii^ Juilj^menf, rcfer.s to this. Iti this latter ease the <'oillt helil (followiiij,' .liirksmt v. Si,ilt,il, \.. !{., .-)('. I', -,4-2) that the woi'ijs "cause of action" ill the . entcnce oftlio section which I'cails "cause of action which arose in On- tario, or in respect ofalireaeli of con- tract maile therein, " iliii not mean the whole I atise of action, hut the hreaeli .iloiie. The ilistinct i '11 is so very tineas to lie almost impercep- *il>le ; liiit as the ilislinctioit is drawn, and the words " not iden- tical, and therefore .siisccptihle of a dillercnt interpretation " (per H.\ii- itisoN-, ('. ,1,, at p. M.'itl), we arc safe ill lookin;^ upon Xn.ron v. Ilti/iiirs as the liimliiii; .iiitljoiity. (i>) It ia dillicult to deline the word "lesidcH." \ learned. I udj{e in Kii;.!!and douhted if a i^encral definition could he foun I-.. I. Kx. N. S. '2H'). and a mans home is where his wife and family reside ^ /l^■;^ \. Ihi/rni l!ii/niin,ii/, i> T. I{. r.(i'l). I 'lit this is only the case iimiriillfi, because a man may reside in one iilaci' and his family in another. It has also been do- 62 THK DIVISION COUHTS A( T. [Skc. 63. (•ari'ios on busine.»s (y) at tlio time tlio notion is bron^'ht, iiotwitlistiMidiii^f tliat the ili't'ciitlant at siicli time resides in a ('. H. 4.'i7). Tiierc is ;i (liHenncf lietwci'ii ilfiiiicih aii'l i'( ■■'(i/iiirr. The hicter in iiioie transient iu its nature tlian the foiiuer ; and tiie eases siiow tliat a peison may havi in I'ai't t\V(i jilaces uf rewiilfnce at tile same tiuie( II iiil/iiiru V. TIdniitis, 7 M. A. (!. 1), tlilnKr, in tin- Province of (^ludiee, liut often Went to see his wife at Itochestervillc. The learned Chief .liisti' c held that he '■ rcsidid " at the latter place. The circumstances of this case showed that the ilcfeiidant had restricted his vi'.ii.s to his family after hearing ol t lie iHsuo of the summons againbt him \ pulilic iumpany !.•' .siiid to "dwell" where tliey \i:>v< t .e\r oliiie for the transaction ol tiieir husiiie.ss (see .sec. 1H3, and note). (/') "Carr;, ing on Imsincss" re- fers to a man's "calling" and not to an accidental occupation, and tlic Wolds do Hot apply to a mere < lerU in the elii|iliiy||n;nt of iHMtliel'. .\s to wiicri- a pulilic company is said to carry ui its Imsiuess, .sec note to 8ecti(jn 1,'W. ('/) There is a slight altciat ion ia the wording of this section from th:il ill the lornier .\.t, which does not, however, alter the meaning. (r) This enactment was intro- duced in 1^(M, and has proved of great heiielit and importiiiiee to Miitors ; for in the majority of casi . till- plainfiir lives ill the iiiiniediato ncighliourho.hl ,,| t|,i. dcfciidaiit. as also the wif.iesses likely t) ho c.illid : and threxpfiHc of suing a defendant increases wi'.h the dJN- taiice he miiy live from the Conn. The powers given nndc i the iieM Hfction.whi.hu ere seldom invoked, have hy means ot seetion >;;{ I,,.,.,, almost superseded, althuugh tlielo niay hf casi-8 wjieiv it will he ne- A. Sec. C3. ] rnOCF.SS AND PHOrKPrRK. 63 tried ami (lotcviuiiicd invsiicctive ul" the |ilaoe wliero the cause of action arose, and uotuitli- standin-,' that the del'endant at such time resides in a County or division other than the County or Division in w liu li such J'lvision Court is situate.nnd such suit entered. 27--8 V.,c. 27, s. 1. 2. It shall lu' sulhcicnt if the summons in st-rviteof Kum- tiKiiiK in bU 'li such case l»c served liy a llailitrof the Court "''•''»'• out of which it issues (s) in the inaniier pro- vided in the seventieth section of this Act; (/) ri'ssaiy to olitiiiii nii order uikIit that Hi'i'tioii, as, for iii.staiirf, wIhti' tluTf lU'i' two or more (lit'i'iiilaiits wlio.si' rositlciii I's arc not all iifarcst to r)m.' ami tlie >aiiic |ilafc of liolil- iiij; a Court. tluH .Act only Hpoakiii),' oi "the iloffiiilaiit," witlioiit ini- ilin;; tlu' words "or one of wviTal ilffiinlaiits," an in sections (('i and •i-1. Tiir .liid;,'o can, iiiid«i Miction (ij, cxt'ri'isi' his discK'tii/U as to thi- Court where the suit in to lie iiiteicd, aeeordiiij,' to the I'aets ol" eaeh jiarticnlar cane. As to the 111 'aninj^ of tlie word " resi(h'nee," see note (") to section <;2. Hide Ti provides that tliis claim ^hall contain the f llowin;,' state- nienl ; " And the jilaintitf enters liiiss\iil, and claims to have it tried and dcterniiiied in this Covirt, he- (•ause tl»e jdiice of silting' thereof is the nearest to dcfenilai.t's reHi- deme. " it is not stated what the ellect of an omission to rmni^li this state- ment wonhl ha\e. I'rohahly tin- •Ind^e Would idiow it to lie iiddecr o| slips on hand, with this statement |irintcd on them ; tiiis saves writing!;, and tiie cost is very ttnniil. .Some divisions .-ire larfje in terri- tory, ami consist of two or more municipalities, or jiarts Ihereol. ;:roUped. Some County .Iu(lj,'es iiold their Courts in more ])ln( cs than on<- in till' same division, and ofteii- ei tiian once in two months. In ail sneh cases the suits entered for a particular place of holding' the « 'ourt should lie tlcated throU;,diout their entile pi ceeilin;,'s as if there were no other place within the cli- vision whereat the Court is Indd. All notices on special summonses, all alias and pluries ordinary sum- monses and adiournnieiits, >ho\i1cl refer to the place set forth in the tiryt summons and at which the hearing ol a ca>e is comineiicecl, unless hy consent of parlies the adjouri ed hearing should he fixed foi another place within the divi- sion. It i.s conceived that althon^ih the Court may have two jdai es of alternate ^ittill^,^ a suit may he eii- tciecl, tried and detern; 'led in that Ciiurt whicli lias such alteiiiatc sit- tinjrs, pi'.ivicleil that the defendant he sieiimoiied Ni the place of sittiiijf which is nearest to hi.i residence, ami thus he within the letter ancl sjiirit of this eNceptioiial section. (s) .See se •tioii 4.">, ;ind notof. (M 'I'hat \>, ten days at lei»tl>o- forc its luturn day. «;4 TiiK DIVISION corirrs act, [Skc. 04. i Kxeciitioii. .Sk" Foriit S(i. and uiH.ii jii(l;j;iiieiit ivcovi'ictl in any snch suit a writ iA' Jim' fucids iv^nhist the floods and chat- tels of flic defendant, and all otlu-r writs, i)ro- cess and proceedings to eiil'orce the payment of tlic said jiulniiu'ut, (/') may be issued to llie liailiir of the ('curt, and he executed and en- I'oreed hy him in the County in which the de- lendant resides, as well as in the County in whieii the Judgment was recovered. 2r-2M V., e. -27, s. 2. w ;H'n Hiiits in '• 64. (/') Inciscauv i)erson desires to hrini; 1) ! linuiKliI ill ..... .1 owiur thiiii the mi action in a |)ivi.sinn other than as in tlie retfiiliir )M\i _ , si-'M!.. two next preceding sections mentioned, any ('(uinly .hidge may hy special order {v) au- thorize a suit to he entered and tried in the Sff lUiL-s 1,; ^-o'H't of any hiv'sion in his (.'ounty ailjacent ';'■/, m' ^'"'""t.o the Division in which tlu^ defendant or oiu^ of several defendants resides, whether such de- femlant resides in the County of the Judge granting the order or in an adjoining ('ounty. C. S. r. ('., c. Ill, s. 72. 0'^ TIk! si'ctioii from wliicli tlio fiilluwiiij,' i.s taki'ii fdiitaiiis a n-- cital ex|iliuiiiii;i tlic cxiii'iiiciiiy ol the pri)vi,sii)ii, wliicli i.s imw omit- ted. See iKitf {)■) to Inst seetion. (v) \Uu\vr H! Vict. iN-ip. 177, «i'o. J>, it was lieM that tin- a|ii)ii('ati.' may be, separately or jointly with any other «'""»• person in the Court of any next adjoining Division in the same County, in the same manner, to all intents and purposes, as if the cause of action had arisen within such next adjoining Division, or the defendant was resi- dent therein, (;iv) and no Clerk or Bailifi' shall bring any suit in the Division Court of which lie is such Clerk or Bailiff. C. «. U. C, c. 19, s. 8M. 66. Any suit or action, by or against a Judge Actions ajfatnst or Junior Judge oi a County Court, whicli is or stiptn.iinry ° ... Mii„'istiiitfH for witiiin the competence of a Division Court, may »'"•'"'"» «'*^''''" ■•^ . . 'J Division Court be brought in a Division Court of any County jurisUiction. adjoining that in which such Jutige or Junior .ludge resides ; and any suit or action by or against any Stipendiary Magit:trate, il the same is within the jurisdiction of any Division Court of his District, may be brought in any Division Court of any adjoining County or District. (.') 40 v., c. 8, s. 1-i. Sec also Kev. Stat., c. Ul), s. 45. (u<) AikI doubtless uudor this auction tlie plaiutitf would have ull the rights as to choosing his place of trial (except that no clerk or haililt' may sue in the <'ourt of whicli ho is such clerk or hailill) as are given by the previous sec- tious. A clerk or bailitf may be sued, though he cannot sue, in his own division ; the tirst part of the section is permissive, but the lat- ter part is cumpul ory. See note to section 143 (2). (x) This provision is new. It is nut often (liat any iiuonveuience 5 is felt for want of it ; but it gets rid of a dilHculty which has occii- Hionally arisen, and whicii in the nature ot things niigiit, but for tiiis section, hereaiter arise. In an action of ujectnient ag/vinst a County .Judge to recover lando in his own county (Audii. 4 I'rac. K. 'MO), the venue was changed to expedite the trial on the ground that but for the fact of the defendant lieing Clounty Judge, proceedings might have been taken against him under the Uverhold- ing Tenants Aut. Dkai'EU, C. J ., If' m i-M G6 THE DIVISION COURTS ACT. [Sec. 67. ciork to forward gijr The Clerk of any Division Court shall, Summonses for " • •' uTvu^ons" """^"^ when required, forward all suninionses to the Clerk of any other Division Court for service, (ij) • and the Clerk of any Division Court .sliall re- ceive 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, sliall receive the same from the Bailiff and return them to the Clerk from whom he received them, and every Clerk shall enter all such proceedings in a hook to l)c by him kept for that puriiose. (z) C. S. U. C, c. 1',), s. 7:3. See Rule SI. See little 77. wlicii making the order, aildeil: "It is possiWio t'liit the inure fact of defendant Ix.ing the County Jutlge of thi' county in which tlie trial would otherwise take place, might be suUicient to warrant a change of venue on grounds of public policy." The point waa then new, and we are not aware of its having since been discussed in our Courts. Tliia section would not.iiowevei', prevent a transcrijit of the judg- ment being sent for purpose of execution to a Court in the Judge's own coatity. The Wording of the section is permissive in form, but must be taken to be compulsory, tia of course a .I'ldge could not try a case in which he waa personally interested. ()/) >ee sec. "4. and note. {x) See Rule 81, whirli enlarges upon the mwle of procedure und>-r this section. The book here spoken of may be called thf "Foreign i'roeedure Book, " and !>e in a form aaaiogtMis to that of the " Procediirt Book " rerpiired by Rule 77 and Form 4, &c. li would seldom be possible and often inconvenient tor tlie trans- mitting clerk to know and send the exact sums that would be rc- ([uired to ])ay for servires in a foreign division ; it is tiierefore usual for eaili clerk to keep an account with otiiers to whom he sends summonses or other papers, in which to credit them the rharges that they make against him, antl which ari' endorscil on tlie ])ap('r.M returned, if he also kei'ps in his Foreign I'rocednrc Hocik, ln'sidcs the index of the namt^s of the suits, an al])habi-tii'al index of the names of the clerks semling him these suits, refeiring to each as it comes to him aiid i. numbered, lie can at any momeiit see what any such clerk owes him, and so maky many clerks, and answers all purposes. Mut where there is no s\ich under- standing betwtsen clerks, a sum should be sent on isccount of ser- vice, &c. In some cases ('ierks omit alto- gether to transmit fees for scrvi(!e3, or to take any notice of lettt-rs ask- ing for payment after services sre rendered, which greatly m.irs the •imenity which should exist among Sec. 68.] teNTftV Of CLAIM. 67 Untry of Claim, Service, &c. 68. The plaintiff sliall enter with the Clerk riaintur to en- "*" ^ ter copy of hU a copy, and, if necessary, copies of his account, ^'iil^jj" «'<■'» clainj or demand in writing in detail (and in cases of tort, particulars of his demand), [a) and officers of Division Courts. In onier to remedy this, some clerks ure obliged tu withliold auininunsua wliiih have been served, iind the atlidavits of .service, and notify the clerk who sent tlieni lor service, by ]iost card, that the fees nmount tu SI) much, and that the papers will be transmitted on payment of fees. It is (piite permissible for cleiks to decline to hand any p?" >- crs to their bailiti'a unless the proper fees are tirst transmitted ; and they m:iy well be excused for refusing to advance money for those who have once made default in paying their debts. No clerk to whom jjapers are sent for service has any right to do more than have the papers served and then return them. He has no right to tax the costs claimed by the home clerk, or to look to any one but hiin for his fees ; nor can he, excej)t in a friendly way for the i admit of showing the particulars in detail. An adjourn- ment to furnish these particulars is then always made at the expense of the pliiintilf, and he is thus made to pay both in time and monii/. A clerk is only permitted to issuo a special summons where the par- ticulars of the claim arc given with reasonable certainty and detail (see Rule 1'2). In case of a special summons, a ElaintifF is not entitled to judgment y default unless the particulars of his claim are given with reasonablo certainty and detail (sec. 79). Rule 4 explains what is here re- quired as to particulars of claim, and Forms 15 to 21 are given as iliuatr»tiuus. es THE DIVISION COURTS ACT. [Sec. 69. seeitnieis.i,,}. eacli sucli copv shall be numbered according to ' ' ' ' the order in which the copies are entered, and thereupon a summons shall be issued {h) bear- ing the number of the account, claim or demand See Forms '^wo q„ ^he margin thereof, (c) and corresponding in substance with such form as may be prescribed by the lleneral Rules or Orders relating to Division Courts, from time to time in force, according to the nature of the account, claim or demand ; and on the trial of the cause no evidence shall be given by the plaintiff of any cause of action except such as is contained in the account, claim or demand so entered, (d) C. S. U. C, c. 19, s. 74. I'laintiff to fur- 69- The plaintiff' sluvll furnish the Clerk with iiisli piirtiouliirs . .,.,. ■, , 1.1 .)f eiiums u. the tlic particulars ol his claim or demand, ami tlie Clerk tor Burvico. Clerk shall annex the plaintilT's particulars to seeR,iieii3,/,,5,^\^Q guuHnons, aud lie shall furnish copies there- of to the proper person to serve the same. C. S. U. C, c. 19, s. 35. (6-) 70. The sumrons, with a copy of the ac- count or of the particulars of th'^ claim or de- mand attached, shall be served (/') ten days Service of sum iiuiDs tu be ten Jays. The words, "uiul, if necessary, copies," would be applicable in the case\)f a cniicurrent suiiunons(Uule 17 ; see also Rule 8). (b) The issue of the summons is tlie coninuMicement of the action (Rule 10), aud it is either an "ordinary summons" or a "special summons,'- according to the nature of the claim (see Rule 104, apply- ing; to cases where a wrong sum- mons is issued by mistake ; also Rules 11, 12, and sees. 3G and 79). (c) See Rule 9. (rovision as the present section as to the time of service There is no general rule, as there was by No. 22 of the Rules of July, 18,')4, defining the mode of -computing time. See next note. (.7.7) The return day here is the Court-viay mentioned in the sum- iqoDs ; while in i^ special summooa Sec. 74.] SERVICE OF PROCESS. 71 72. In case the amount of the account, claim when »erviM to 1 1 • 1 i 1 11 ii .he pcmonalor or (Ipniand exceeds eiglit dollars, the service otherwise, shall he personal on the defendant, (h) and in case the amount does not exceed eight dollars, the service may he on the defendant, his wife or servant, or some grown person heing an in- mate of the defendant's dwelling-liouse, or usual place of ahodo, trading or dealing, (i) C. S. U. C, c. 10, s. 77. 73. The postages of papers required to b(( I'ostRuei. served o»it of the Division, and sent hy mail for service, shall be costs in the cause, (it) C. S. V. v., c. Ill, .s. 78. 74- (/) Wliero there is no liaililf of the Court ""« procesR. ^ _ _ &c., may liu ox- iu which tlie action is broutdit, or where any !'''"'■"'"''* *"■' summons, execution, subpcL'ua, process or other issiit'il under section 70, tlio return (lay is till' liny Imjiitcninf; ho many (liiyH al'tt-r service. {//) See note (/) to lust Buutioil. (/) .See .scelion ti2, and notes. 'I'ln! wonls used there iiro : "re- sides oreiirrie.s on business." The words in the present section are ai)]iarently synonymous. (//) Kule H.*) is au amplificntion of tiiis section. ij) Tliis enactment(which, how- ever, as will be seen by the next note, is limited in its oj)orntioii by Rule .'{4) was doubtless intended to j,'et over some of the difficulties experienced under section Llh", tiiough there is not much gained so far as executinns are concerned, as the same result could generally be arrived at by a transcript of judg- ment, which by the same Act (32 Vict., cap. 2:1). could be sent to antf Division Court. There is a slight increase in the expense by the transcript, but there is not under this section the supervision of Rules 1>,'} and !)4, which do not cover the case of executions sent direct to baililfs from foreign Courts. This want of supervision shows the undesirability of parties acting under this section if it can be avoided. The present section comes into operation either— (1.) When there is no bailiff of tlie Court in whiidi the action is broiiglit. (2.) At tlie direction of the party controlling the suit or process. (3.) On the order of the .Judge or clerk. C'ompare with this provision Rule .34 and sc 63 and 156, and notes there tfi. In Dan, ,. Johnson, .31 U. C. U. l.i.3, the Court thought "that the proper mode of procec ling, when afl. fa. issues under this section, was that the direction in the writ '4 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 Hi 115 Mj' ■^ K& |2.2 I 1^ ill 2.0 m 11.25 nil 1.4 6" 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716) S72-4503 ^: &L % <^ 72 THE DIVISION COURTS ACT. [Sec. 74. '!!.' 90. document, is required to be served or executed elsewhere than in the Division in which the 5ee«itJfl« 54, Si, action is brousht, it may, in the election of the on D ' 1 party, l)e directed to be served -^nd executed by the Bailift" of the Division in or near to which it is re(iuired to be executed, {k) or by such Gthar Bailiff' or person as the Judge, or Clerk issuing the same, orders, and may, for that pur- pose, be transmitted by post or otherwise direct to such Bailiff or person, without being sent to or through the Clerk. {I) 32 V., c. 23, s. 18. itself (or by endorsement) should be to the bailiff to levy of the goods, &c., being within his divi- sion (naming it), or near to it;" or, if directed to another bailiff or person, the writ should show that suc^. bailiff or person had been or- dered to act by the Judge or clerk. The Judge, in the above quotation, speaks of directing the bailiff to levy of the goods " within his division.' He dops not mean to say that his jurisdiction is limited to his division, for in the same judgment he assumes that the bail- iff can levy in the whole county. This section does not give any power to the Judge or clerk to issue an execution into another county, although the section is so worded as to leave that construc- tion possible were it not for Rule 34 (see next note). (/.) Rule 34 provides that a writ of execution may be directed by name of office to the bailiff of any of the Division Courts in the same. county, but cannot be issued to the bailiff of another county, and the returns must bo made to the clerk by whom the process was issued. This rule is limited to writs of execution. Summonses may, by section 67, be forwarded by the clerk issuing them to any other clerk for service. The pre- sent section seems to be an ampli- fication of that section, as it refers to any process, and Sfiys that it need not be sent through the clerk. (0 This plan of allowing per- sons not bailiffs to act may some- times save expense to suitors, but its fairness to the bailiffs may be questioned when it is remembered that bailiffs are hound to devote their time more or less to holding themselves in readiness to do the duties that may devolve on them, and are often obliged to incur ex- pense in so doing. It is presumed that the fees of "such other person" who is not recognized by the Tariff, which applies only to clerks and bailiffs, must be paid by the per- son employing him. Such is the rule with regard to services made by persons other than sheriffs in the Superior and County Courts. If the duties of this " person" had been limited to the service of Sapers it would have been better, udges and clerks will be very careful before acting under the power given them of appointing any person who is not a recognized responsible officer of the Court, £^ud has not given security for thQ !i Sec. 76.] PROCESS AND PROCEDUKE. 73 75. In cases mentioned in the last preceding Duties of Baina . 1 T» -i-rt. and liability of section, it shalJ be the duty oi such Bailin to sureties, serve and execute all such summonses, execu- tions, subpcBnas, process and other documents, and make return thereof, (m) 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 such Bailiff, he and his sureties shall be liable on their covenant to the parties aggrieved, as if such summonses, execu- see Rules su, ui, tions, subpoenas, process and documents had issued from or related to some suit in the Court of which he is Bailiff. 32 V., c. 23, s. 19. 76. The Clerk shall prepare affidavits of ser- cijrk to prepare t^ ^ affidavits of ser- vice {n) of all summonses issued out of his ^''=«' ' "=• Court, or sent to him for service stating how the same were served, the day of service, and the distance the Bailiff necessarily travelled to^^^ p^^^^^ jgg^ effect service, and the affidavits shall be annexed ^'^'^' m due accounting of all moneys re- ceived. Loss might easily occur to suitors by carelessness in ap- pointing an unsuitable "person," who, by the way, is not referred to in the next section when speaking of the bailiflTs sureties. (m) These returns must be made to the clerk by whom the process or document was issued (Rule 34, and see Rules 81, 90). It happens sometimes that a bailiff will wait till he gets tnore than one summons, &c., for the same part of his bailiwick, so as to save himself extra travelling. This is highly improper, and ren- ders him liable for any loss or delay that may befall the plaintiirs in consequence. This applies to the ordinary and regular, as well as to special bailiflfs under this section. (n) It was held in Clinc v. Mc- Donald, E. T. 2 Vict., that an action was maintainable against a bailiff for falsely swearing to the service of a summons, whereby judgment was given against the plaintitr. Clerks and bailiffs often omit to fill in the name of the particular defendant served, if there are more than one defendant, but only one is served. When tliis is done in the case of a foreign service, delay and expense oftea result, as there is no evidence as to which defend- ant has been served. 74 THE DIVISION COUKTS ACT. [Seo. 77. Sec. m ■m seeJixdet8i,9o. to or endorsed on the summonses respectively: but the Judge may require the Bailiff to be sworn in his presence, and to answer such ques- tions as may be put to him touching any ser- vice or milerge. C. S. U. C, c. 19, s. 80. One of several 77- In casc of a debt or demand against two partners may be , • l ^ ii • sued in certain or morc persous, partners in trade, or otherwise *^^ jointly liable, but residing in different Divisions, or one or more of whom cannot be found, (o) 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, notwithstanding others jointly liable See Rule 151. h^^ve not been served or sued, (p) reserving always to the person or persons against whom execution issues his or their right to demand contribution from any other person jointly liable with him. C. S. U. C, c. 19, s. 81. Bailiff may seire 78- Wherever judgment has been obtained on certificate of against auy such partner, and the Judge certifies that the demand proved was strictly a partner- ship transaction, the Bailiff, in order to satisfy the (o) In the Superior Courts, if one of several joint contractors be sued alone, he may plead in abatement the non-joinder of the others, un- less it can be shown that those not sued were out of Ontario. But here, if these partners or other joint contractors reside in difl'erent divi- sions, or if one of them cannot be found, any one or more of them may be served and sued, as though the p, rson not sued had not been a contracting; party. The words "cannot be found" are indefinite. It was evidently the iuteutiou of the legislature to re- move the restrictions of tlie Com- mon Law on this point ; the words cannot therefore refer exclusively to cases where the defendant is out of Ontario, but must also apply to cases where he cannot be found affcr fJiligent inquiry. It would be for the Judge, upon the question being raised, and before going into the merits of the case, to determine whether proper exertion had been Ufide to effect service. (p) Rule 151 provides for the case of a set-off where the plaintiff takes advantage of this section. Sec. 79.1 PROCEEDINGS ON SPECIAL SUMMONS. 75 the judgment and costs and charges thereon may seize and sell the property of the firm, as well as that of the defendants who have been served, (q) C. S. U. C, c. 19, s. 82. Judgment hy dcfmdt where specially endorsed Summons, (r) 79. In actions brought in any Division Court J" proc««dhigs o J "by specjul Sum- for the recovery of any debt or money demand,(s) """"^ ""*' i"^' iq) This section only applies to the cases referred to in the previous one. For certificate see Form N and note. As a general rule, only thedefend- ant's own goods, or his undivided share or interest in the partnership property, can be seized and sold under an execution against one partner, so as not to affect the ])ro- perty or possession of the other iiartner, and the purchaser would lave to discover what that interest might be as best he could (Johnson V. Evans, 1 D. & L. 935 ; Hohnes v. Mentzc, 4 A. & E. 131). (r) Before the introduction of the change eff'ected by the Act of 1869, great loss of time and ex- pense was occasioned by plaintiffs not knowing until the Court-day whether tlieir cases would be de- fended or not, or whether it would be necessary to prove the claim sued for, or what part of it. Tlie present enactment is similar to the proceedings in the County Courts and Superior Courts of law. The clerk is bound to issue a special summons, if the claim war- rants it, unless the plaintiff orders otherwise (see Rule 79). If, however, the wrong sort of summonshas been issued, nnamend- ment may be ordered by the Ju Jge (see Hale 104). (s) la the Courts spoken of in the last note this speedy process can be used when the claim sought to be re- covered "is for a debt or liquidated demand in money, with or with out interest, arising upon a contract express or implied, as, for instance, on a bill of exchange, promissory note or cheque, or other simple contract debt, or upon a bond or contract under seal for payment of a liquidated amount of money, or on a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt, or on a guarantee, whether under seal or not, where the claim against the principal is in respect of such debt or liquidated demand, bill, note or cheque" (Rev. Stat., c.50, s. 19). The present section operates in cases where the claim is for " debt or money demand." It is not therefore so restricted as the pro- vision in the Common Law Pro- cedure Act above cited, which uses the words, ' ' liquidated demand in money." The word "debt" has a technical or legal signification, which carries with it its well- known meaning, and if taken in its widest sense, and apparently what is intended here, may be de- fined as "a sum of money due by certain and express agreement : as by a bond for a determinate sum ; a hill or note ; a special bargain ; where the quantity is fixed and specific, and dues not depend upon 76 THE DIVISION COURTS ACT. [Sec. 79. Sbc. ment entered by where the particulars of the plaintift's claim, claim not disput- with reasonable certainty and detail, (t) are en- fid, &c. Ill 1 dorsed on or attached to the summons, anu a copy of the summons and particulars, with a notice in the form prescribed by the General any subsequent valuation to settle it " (Black. Com. II. 254). The words "money demand" are in- definite, and though they might strictly be said to apply to all actions where the rec )very of money, as distinguished from a specific chattel, is sought, it would seem tc have in its present connec- tion a less extended meaning, and to include claims which are not founded on damages for wrongs done. This section does not cover all the classes of claims spoken of in section 54, sub-section 2. The decisions on that enactment cannot therefore be taken as a guide. See sec. 124, note (v). (t) The plaintiff is in all cases required to furnish a copy of his account, claim or demand in de- tail ^see sections 68, 69, and notes); and this general requirement would seem, it might be supposed, suffi- cient to obviate the necessity of any repetition here of a similar direction ; but it was doubtless the intention not to allow a judgment by default to be signed unless such information should have been given as would have enablr I the defend- ant to know exactlj wiiat he was being sued for, without the neces- sity of his entering a defence for the purpose of obtaining further particulars (see Rule 4), or so that he might not suppose that he was being sued for one thing when the plaintiff meant another. Form 1 6 and notes give some illustrations of what would be required under these sections. Bearing iu mind the distinction between the wording of the Com- mon Law Procedure Act and the Act before us, it will be some guide to state some of the decisions of our own Superior Courts under that Act as to what claims may be specially endorsed thereunder : — The writ may be specially endors- ed : In actio- < on guarantees; for abalancedu n a bill of exchange, even thougn some of the items forming part of the amount are unliquidated, there being a bal- ance due on the bill itself; pro- test charges on a dishonoured note or bill, but not on an unaccepted draft ; interest on accounts or notes after time for payment has elapsed, and after default for non-appear- ance to the wHt. But accounts delivered and not liquidated by admission of defendant do not come within that Act. It is sufficient under the same statute to endorse a writ for the " balance of account due from dt- fendant to plaintiff for work and labour (as ease may be)," giving dates and items, and concluding with a claim for interest, or to say, "To amount of machines, $500," with specified credits for cash, showing that the amount was li- quidated. But it is not sufficient to claim a stated sum as the amount of an account rendered (Rob. & Jos. Digest, p. 2877). A subsequent judgment creditor of tlie defendant cannot attack a prior judgment for insufficiency in the endorsement, though he may if the defendant allowed the judg- ment to be entered by fraud to defeat his claim ( Wilson v. Wilson, 2 Prac. U. 374). Skc, 79.] PROCEEDINGS ON SPECIAL SUMMONS. 77 Rules or Orders (u) relating to Division Courts f««J^'^«»^/^«o, from time to time in force, annexed to or en- ^f^^^ «»>»'. dorsed on such copy, has been duly served, ^''-' ^^^• then, unless the defendant has left with the Clerk, within eight days after the day of such service (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 twenty days before the return), a notice to the effect that he disputes the claim, or some part, and how much thereof, (v) final judgment may be entered (m) See Rule 12 and ¥c:m 23. (v) It is provided by Rule 18 as to special summonses that they shall be returnable on the elev«nth, six- teenth or twenty-first day, as the case may be, after the day of ser- vice thereof, that is, giving ten, fifteen, or twenty clear days be- tween or exclusive of the day of service and the return day. It is unnecessary for a defend- ant to file this disputing notice, even though he intends to dispute the claim, unless the plaintiff has proceeded under this section. There are in fact two kinds of summons — one for claims within the present section, under which judgment by default may be en- tered by the clerk on the proper day after the service of the sum- mons if no dispute entered, and another for all other cases, the practice as to which is the same as it was before this provision was introduced (see 5 L. C. G. 49). This notice should be in the form given in No. 103, which may be modified as the facts may re([uire by specifying the appropri- ate ground ot defence as directed by Form 102. Form 103 also pro- vides for the case of an admission of part of the account, or of certain facts in connection with the claim, so as to save unnecessary expense in proof under Rule 132. The notice of defence under statute (set-off, statute of limita- tions or the like) may be conveni- ently given with the above notice of disputed claim, but the defend- ant will not be bound to ^ive them at the same time, though he must do so at least six days before the day appointed for the trial, pursu- ant to Rule 128. This disputing notice, it would seem, need not be served by the defendant on the plaintiff, but the clerk is required by Rule 88 to notify the plaintiff immediately of its having been filed. By Rule 21, the giving by the defendant of a notice of set-off or other statutory defence, or paying money into Court or pleading a tender, is to be deemed a sufficient disputing notice within the mean- ing of this section. When the defendant has neglect- ed to give the notice in proper time, the Judge may, under the next section, grant leave for that purpose. n THE DIVISION couhts act. [S£C. 79. See Bute 31. , I .ll ■ I by the Clerk on the return of such summons, (w) or at any time within one month thereafter for the amount claimed in such particulars, or so much thereof as has not been disputed, if the plaintiff is content with judgment for such (?^) It is a question upon which there is much diversity of opin- ion and practice amongst clerks, whether they can enter this judg- ment on their own motion, and us a matter of course, when tlie pro- per time arrives, should no dis- puting notice be filed, or whetlier they can only act at tlie instance and request of the plaintiff. 8ome careful clerks get over the difficidty by obtaining from the plaintiff a written request, on the entry of the claim, that tlie clerk should sign judgment if defendant should fail to give notice of dispute. Suitors as a rule think that when a "special" claim is put into the hands of the clerk, that nothing more is to be done unless and un- til advi.sed by the clerk that the defendant intends to defend ; and this can hardly be said to be an unreason ible supposition, knowing probably that there could be no real defence to the action, and after reading the words "final judgment may be entered by the clerk on the return of such summons." It is difficult also to see what harm can be done by the entry of judg- ment by the clerk without the spe- cial request of the plaintiff, and much loss might accrue to the lat- ter, who, supposing that judgment would be signed as a matter of course, would not think it neces- sary to attend to the matter, and would find afterwards, when going to order out execution, that not only was there no judgment, but that the summons was effete ; for if the judgment be not signed with- in the month, the force of that sum- mons will have been expended, and a fresh summons, and that an or- dinary one, must be issued (Rule 131). The subject, however, is not free from difficulty, and on tfie whole the writer would suggest that clerks should, if they have re- ceived the instructions in writing already spoken of, enter the judg- ment in com])liance therewith, without special instructions, after default made ; but tliat it would not be proper for clerks to act without these general or special instructions. Rule 88 seems to bear out this view. It is quite clear that, as to issuing execution, there must be definite instructions some- times given at the time suit en- tered (but this is dangerous, and not recommended) or at any subse- quent period when execution de- sired. These instructions should be in writing. It would be well if the matter were settled by the iioard of Judges. The section speaks of the "re- turn " of the summons. There might have been some question as to what day is here referred to, that is, whether it is intended to refer to the Court-day, or to the time of service. Rule 18, how- ever, which has the force of a statute, provides that every special summons shall be returnable on the eleventh, si.vteentli or twenty- first day, as the case may be, after the day of servi.-e. This rule settles the point in the manner most consonant with reason and in analogy to the practice in like cases in the Superior Court, and the section is thereby saved from being practically worthless. Skc. 80.] PROCEEDINGS ON SPECIAL SUMMONS. n i i ;h parts; (x) and execution may afterwards issue thereon at the instance of the plaintiff (y) 32 v., c. 23, s. 2. 2. The final judgment so entered may be in the form prescribed by the General Kules or Orders relating to Division Courts from tijie to time in force, (2) but no such judgment shall be so entered until the summons an d parti- culars, with an affidavit of the due service of both, have been filed, (zz) 32 V., c. 23, s. 3. 3. The Judge may set aside such judgment, and permit the case to be tried, on sufficient grounds shown, on such terms as to costs and otherwise as he thinks just, (a) 32 V., c. 23, s. 2. 80. The Judge, at any time before judgment (x) If he is not content, the par- ties must go to trial as to that item or part of the account which the defendant disputes, the remainder of it being in effect admitted by the notice as to a part. (2/) The Rules (No. 18 et seq.) give directions for working out this section. See also note (w). Execution may issue forthwith after judg- ment entered (Rule 149). (z) See Rule 32 and Form 52. {zz) The plaintiff will therefore take nothing by procuring the clerk to issue a special summons where full particulars have not been fur- nished. (a) A Judge would in all cases require an affidavit of merits from the defendant, which should not merely state tliat he has a defence to the action, but disclose the na- ture of the defence (see Bank of S^e Rulei SS, lliS, and Form 77. Summon*, par- ticulars and affidavit to be filed. See Rule Si. Judge may set aside judinnent and order trial of case. Leave to dispute R. Montreal v. Harrison, 4 Prac. 331 ; and Wooster Goal Co. v. Nelson, ib. 343), and in some way account for his neglect in not giving the required notice. The allidavit of the defendant should be supported, if possible, by corro- boratory affidavits. One condition which might occasionally be im- posed with fairness to the plaintiff would be to require the defendant to pay into Court the debt and costs or some part thereof to abide the result of the suit as a security to the plaintiff. Some Judges grant an order on an ex parte application under this section, and impose the condition of paying debt and costs into Court, but whether this con- dition were imposed or not, it would be the safer practice that the plaintiff should have notice of the application, and be given an opportunity of opposing it, as pro- vided in Rule 142, on an applica- tion for a new trial. li 80 THE DIVISION COURTS ACT. [Sec. 81. at any time be- actually entered, although the time for giving fore judgment. ^^^^^^ jjotice disputing the plaintiff's claim has expired, may, on suflicient grounds shown, and on such terms as he thinks just, {aa) grant leave to the defendant to dispute the plaintiff's claim, in which case the requisite notice disputing such claim shall immediately be left with the Clerk, and also sent to the plaintiff, by prepaid letter through the post or otherwise. 32 V., c, 23, s. 4. Trial. Judge may sum- Q1. Jq cascs in which a trial is to be had, the marlly dispose of cause or nonsuit defendant sliall, on the day named in the sum- plaintilf. » > j mons, eitlier in person or by some person on his behalf, (&) appear in the Court to answer, andi See Rules «y, (aa) This seution only applies be/ore judgment entered. If judg- ment has been signed.the defendant must apply under section 79, sub- sen. 3. It is not stated whether this is to be an ex parte application, or whether the plaintitt' is to be called upon to show cause. The usual practice now is to grant it ex parte, with exceptions, of course, under special circumstances ; and sometimes the condition is imposed that the defendant should agree to go to trial at the next sittings, and should pay the debt into Court, though it would be unreasonable to require this last, unless there was reason to suppose that the ap- plication was made in bad faith or for delay, and would endanger re- covery of the claim. {b) A good deal has been said about the evils and inconveniences arising from the too common prac- tice in this country of allowing unqualified persons or '* agents " to conduct cases in Court. Some Judges, prior to the 35 Vict. , cap . 8, sec. 1 (now embodied in sec. 84 of this Act), permitted profepsional men only to exercise this privilege of advocacy, whilst others did not think tliat they had power, or at all events did not like to exercise it, to prevent any " agent " from acting on behalf of the suitor who might employ him. That section, however, throws the Courts open to al', subject only to the right of the judge, when justice requires it, to prevent the exercise of such pri- vilege (sec. 8.5). The 35 Vict., c. 3, resulted from the decision in Jic the Judge of the Ooxmty of York, 31 U. C. K. 267 ; 7 L. C. (Gr. 87, where it was held that only barristers and attorneys, to the exclusion of unprofessional agents, were autliorized to conduct or carry on litigation for others in Division Courts, except possibly (one Judge thought) m cases of great necessity, where professional assistance could not be obtained. It is a pity the legislature meddled with the matter. The proper view Skc gl Skc. 82.] TRIAL. 81 ig 11' 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 nonsuit the plaintiff, (c) and the plaintiff may, before verdict in jury cases and before judgment pronounced in other cases, insist on being nonsuited. C. 8. U. C, c 10. s. 84. 82. If on the day named in the summons the I'roceeiiinjts in •^ /v • -I '''"^^ defendant defendant does not appear (a^ or sufficiently ex- iioes not appear, cuse his absence, or if he neglects to answer, the Judge, on proof of due service of the summons of the subject is expressed in tlie Local Courts (/(actte (Vol. VII., j). 81 ), when coiniuenting on the abov e decision. It is not desirable, liow- ever, in a work of this kind, to enlarge upon a matter wliich is not of a practical nature ; but it may be mentioned that tlie writer at one time (10 U. C. L. J. 2.')8) sug- gested the propriety of an allow- ance of a small counsel fee to l)rofes8ional men for conducting cases in Court, an a taxable itnn in the costs of the cause. This would to a certain extent have the effect of throwing the business into the hands of those best able to conduct it, and at the same time be a matter of justice to the successful suitor, who, under the present system, lias to pay money for the recovery of a just debt, or for defending himself from an unjust claim, as the case may be. (c) A nonsuit is a judicial decla- ration that the plaintiff is not entitled to judgment in his favour on the evidence produced on his behalf, supposing it to be true ; or G in other words, that his case as made out is not such as to entitle him to relief. A nonsuit only affects that particular action, but is not a bar to any further proceed- ing, or to another suit for the same subject matter. A defendant is in general entitled to his costs of defence on the plain- tiff being nonsuited, and section 154 authorizes the Judge in his discretion to award to the defend- ant his costs and other reasonable sum by way of satisfaction for his trouble and attendance. But some of the most experienced Judges apply the principles acted or. in the Court of Chancery as to c^sts, and do not always award the costs according to the event of the suit. Rule 122 declares that v*here the trial is by jury, the Judge has the same power to nonsuit as in ordi- nary cases. ((J) The df .ndant is bound to be ])vesent r.t the time appointed for the op jning of the Court, and to remairi in attendance till the case is called on. 82 TIIH DIVISION C'OriiTS ACX [Skc. 83. and copy of the plaintid's account, claim or de- mand, may proceed to the hearinf,' or trial of the cause on the part of the ])laintifr only, and the order, verdict or jud^^ment thereuj)on shall be final and absolute, and as valid as if both parties had attended ; and, except in actions of tort or trespass, in case of the perscjual service of the summons and of detailed particulars of the plain- tifl''s claim, the .Tud«^e may, in his discretion, give judgment without further proof, (c) C. S. U. C, c. 19, s. 85. JudKemayiui- §3 jj^ gr^gg ^^g Judgc tliink's it coiulucive to jourii henring of ~ cause tijg gnds of justicc, hc may adjourn the hearing of any cause in order to permit either party to summon witnesses or to produce further proof,(/) (e) But it is a very common prac- tice for Judges to require some prooi's of plaintiff's claim, notwith- standing the defendant's non-a]i- pearance, and often it is a safe thing to do. The nature of the ■ claim and surrounding circum- stances will generally be a suffi- cient guide to the Judge in exer- cising a wise discretion. (f) A construction was placed iipon these vords by the case of In re Burrowes, 18 C. P. 493. The cause having been jiartly iieard be- fore the Judge at the Courtroom in the usual manner, the Judge adjourned the case, to be heard before him at his chambers at a subsequent day in the same week. This was done to olitain the evi- dence of another witness whom the Judge wished to examine, but who was not present on the Court-day. Two days before that ajipointed for the adjourned hearing, the Judge directed the case to be further postponed for a week, on which occasion all the parties attended at the time and jilace appointed, and the witness was examined and cross- examined without any objection being taken by either ])arty. It was objected that the Judge could not adjourn the case in the way he did, and could not deliver judgment out of Court without having ffrst in open Court fixed a day and hour for delivering judgment. It was held that as there was nool)jection raised at the time, and as the ad- journment was to a place within the territorial limits of the division, the proceedings could not be inter- fered with. A further point was raised in tliis case as to the mode the Judge ad()i)ted in giving his judgment, which is referred to in note (/■) to section 10(). Some Judges absolutely refuse to adjouin a case after it has been' once entered u])on, unless it may be to jiroduce evi(lence asked for by himself, without which hetliinks he could not satisfactorily di8]>ose of the case. He liius has all the facts fresh before him, which he Sec. 86.] I'AYMKXT INTO COURT. B9 or to serve or give any notice necessary to en-SeeRuieiSi>,Ae. al)le such party to enter more fully into liis case or defence, or for any other cause which the Judge tliinks reasonable, upon such conditions as to tlie payment of costs and admission of evi- dence or other equitable terms as to him seems meet. (-/) C. S. U. C, c. 19, s. 80, 84. Any person may appear at the trial or ah persons em- liearing 01 any cause, matter or proceedn as is n>fents m agent r.rJ advocate for any party to any sucIid: "siincimrts. cause, matter or jiroceeding in the Division Courts, (k) oo v., c. 8, s. 1. 85. The Judge or acting Judge may, wher-j„dgenia.vpre- , . ..... , , vent anv one ever m liis opinion ju.^tice appears to require from acthiK as ,. • J ji BL'eiit or advocate it, prevent any person Irom appearing at the in certain eases, trial or hearing of any cause, matter or pro- ceeding in the said Court, as agent and advo- cate for any party or parties to any such cause, matter or proceeding. {Iih) 35 V., c. 8, s. 2. Tender or Payment of Money into Court. 86. If the defendant in any action of debt Piea of tender or contract brought against him in any Division woiild not have if lie broke off in tlie nufklle to hear the rest at an- other Court. Tlie Judge can go on adjourning his Court from day to day till all the business is concluded. It is submitted that the usual proclania- tion of opening .and closing should always be made in such a case. (g) IJules 130, 140, 141 and 144 make further provision as tt the adjournment of suits and putting oil' trials, and as to the mam. of application, and state in general terms the ordinary reasons for such applications. (h) See sec. 81, and note (6). (hh) Courts have some hoM over professional men (although the younger ones often waste much time without any good effect), but have none over non-professional agents, except through this sec- tion. There is much diversity of j)ractice amongst Judges on this subject, which it would be well to reduce as far as possible. m 1 ' ■■%!!' 1 ' 'f' ■' 84 THE DIVISION COURTS ACT. [Sec. 86. money into Court. Court, desires to plead a tender (i) before action brought, of a sum of money in full satisfaction of the plaintiff's claim, he may do so on filing his plea (J) with the Clerk of the Court before which he is summoned to appear, at least six days before the day appointed for the trial of the cause, and at the same time paying into Court (/i) the amount of money mentioned in (i) A tender must be made to the person authorized to receive it, and it must be unconditional. A tender of more than a man ought to pay is good, but it is not so if change is required. The ac- tual production of the money is necessary, unless di.spensed with. British and Canadian silver coin is a good tender, up to ten dollars ; copper coin to twenty cents. Ame- rican gold coin and Biitisli gold and silver coin are a good tender according to rates 8i)ecified by Act of Parliament (Con. Stat. Can. cap. 15). Country bank notes are, in England, a good tender, unless objected to at the time {/'oh/tds.s V. Olhrr, 2 C. & J. 15 ; Locki'ierv. Jvties, 1 Peake, 23!) »), n,"ul so doubtless would be our Dominion notes, and it is presimied our Pro: viacial bank notes also. (,/) This plea may be in the following form : ' ' [Stiik of Cuiirt ami cause. ] Tli e defendant says that lie is ready and willing to pay to the plaintitl the said sum of .§ ; and before action, on the day of 18 , he tendered the same to the plaintiti", who refused to accept it ; and the defendant now brings the said Ig into Court, ready to be paid to the plaintifl', less costs of defence." Or, if the defendant admits onlv a part of the claim, he might plead thus : ' ' The defendant says that he is ready and willing to pay to the D'aintifl' the sum ot" -S , part of the sum of $ claimed by him (if on an account, itc, specifying what part or items) ; and before action, on the day of ,18 , he tendered the same to the plain- tiff, who refused to accept it ; and the defendant now brings into Court the sum of $ , ready to be paid to the i>laintill". less costs of suit, and defends for the balance. " (If any statutory defence, it might conveniently be added here). If the defendant dciires to pay money into (.'ourt but has not mailc a ten.ii'r, lie is not recjuired to rile any plea, but simply to pay the clerk such sum as he admits to be due, with costs up to that date (see section 8!>), and the clerk is bound by Pail e 88, by this section and bv sec. HO, to inform the plain- tiff (see Form 102). 1 f the plaintilf is proceeding by siieeial summons, the plea of tender or paying money into Court, or giving a notice of set-off, shall lie deemed a sullieient notice to the clerk that he dis- putes the jilaintilf's claim, without anv lurtlier notice to that eifect (Hule20). (/■) Payment into Court admit the jurisdiction, aiul that a debt i due to thiit amount, in fact, every tiling that the plaintiff must have jiroved in order to recover. tl )' Sec. 88.] PAYMENT INTO COURT. 8( such plea, and notice of such plea and ipay- see nuie 8? and •■^ ' f ^ -^ Form log. ment (/) shall be forthwith communicated by the Clerk of the said Court to the plaintiff by fl^^w^^-^^^^, post (on receiving the necessary postage), or by sending the same to his usual place of abode or • business. C. S. U. C, c. 19, s. 87. 87. The said sum of money shall be paid to Amount to be J ' i)aid to plaintiff, the plaintiff, less one dollar, to be paid over to *<=• ^ the defendant for his troiible, in case the plain- tiff does not further prosecute his suit, (m) and all proceedings in the said action shall be stayed, unless the plaintiff, within three days after the receipt of notice of such payment, signifies (n) to the Clerk of the said Court his see Rules 87, 88, intention to proceed for his demand notwith- if.' '" standing such plea ; and in such case the action shall proceed immediately. C. S. U. C, c. 19, s. 88^ 88. If the decision thereon be for the defend- The mie as to costs in such ant, the plaintiff shall pay the defendant his cases. (0 Rule 87 directs the form of the notice in Form i02, clauses 9 and 10. (m) It has occurred, however, tiiat a plaintift', in seeking to re- cover more than the amount paid in, has been nonsuited, which it has been decided may properly b^i done (< hitter idijc v. Smith, 2 H. Bl. 374 ; Anderaoii v. Shaw, 3 Bing. 290). The (piestion then arises as to the (iisposition of the amount paid in. The Judge has by the nonsuit decided that the plaintiff has faile'l, at least in that suit, to prove his case, but the I'efendant lias, by paying the money into CJourt, admitted an indebtedness to the extent of the sum paid in. The rule to be observed under thesp circumstances is laid down in Oaki o V. Morgan, 8 C.L.J. 248, 8 L.C.O. 160, and is there stated to be to im- pound the amount paid in to satisfy the defendant's costs, and after the costs are paid, to hand the balance to tlie plaintiff. Rule 1.30 provides that no money paid in under i,he previous section shall be paid out to the jdaintiff until after the final determination of the suit, unless the Judge shall otherwise order. If the plaintiff does not afterwards signify his in- tention to proceed for the demand, it is presumed he has abandoned it ; and as this is a final determina- tion, there would seem to be no- thing to prevent the clerk paying out the money in Court to him, after the lapse of the three days, under the authority of this section, (n) This should be in writing, to prevent mistakes (see Form R). ;"i 86 THE DIVISION COURTS ACT. [Sec. 89. costs, charges and expenses, to be awarded by the Court, and the amount thereof may be paid over to him out of the money so paid in witli the said plea, or may be recovered from the plaintiff in the same manner as any other money payable under a judgment of the said Court ; but if the decision be in favour of the plaintiff, the full amount of the money paid into Court as aforesaid shall be applied to the satisfaction of his claim, and a judgment may be pronounceer 92. In case the defendant desires to avail Defendant to "five notice of {o) If this signification be given within tliree r perjury. A witness cannot be com; ,.•. . to answer any question wi'-ii answer may expose or ter.i'. t( pose him to a criminal char :>v any kind of punishment. The law requires the beat evi- dence of which the nature of the thing is capable. Deeds and wills which have been executed thirty years are presumed to hav(! been correctly executed. A tenant cannot dispute his landlord's title. Hearsay evidoice is inadmissible. A witness nmst only state facts, Sec, 95.] WITNKSSKS AND KVIDENCK. n and his mere personal opinion is not evidence . A declaration by a deceased per- son who had a competent know- ledge of a fact, and no interest to pervert it, and wliich declaration was against the pecuniary interest of tlu°deciarant at the time when it was made, is evidence as to third parties, and is evidence of every- thing stated in the declaration. In a matter between the same parties, tlie deposition of a witness at a former trial may be used on a subsequent trial : if the witness be dead ; or if he be sought and can- not be found ; or if he have been subpienacd and have fallen sick on the way. Tlie express admissions, or the adiiiissions implied from the con- duct of a party to a suit, are pre- sumptive evidence against him, as between himself and another party ; but they are not conclusive evi- dence, unless such other party have been induced by them to alter his condition, nor are they evidence as between third parties. A recital in a deed is evidence against him who executed the deed, or any person claiming under him. The issue must be proved by the party who states an alUrmative, not by tlie party who states a negative. The issue must be proved by the party who states the aflirmativ(! in substance, and not merely the affir- mative in f'^rm. In every case the burden of proof lies on the person who wishes to supjiort his case by a particular fact which lies more peculiarly within his knowledge, or of which he is supposed to be cognizant. It is enough if only tlie substance of the issue be proved. The evidence offered must cor- respond witii the allegations, and be confined to the points in issue. Handwriting may be proved by a witness who actually saw the party write or sign, — this is the most satisfactory evidence, — or by a witness who has seen the party write on otlier occasions, even if it be but only once ; or by a wit- ness who has seen documents pur- ])orting to be written by the same party, and which, by subsequent communications with such party, he has reason to believe the authen- tic writings of such party. A document which may be inad- missible in itsidf, will often be a. 101. The provisions of sections twenty-two and twenty-throe of tlie Kvidi^nce Act, (o) so far K. S., c. (i2, S8. 22 and 2;i made meeting apjiointed, tlie intciroga- torius to tlie ■witnesses settled us f.ar us possible, direetions given .is to th(! swearing of the ooniniission- ers lUnd witnesses, and as to the re- turn of the commission," &e. Due notice must be given of the tinu.' and phice of examination, so that the adverse i)arty may liavc an op- portunity of cross-examining tlie ■witness. After the eoimnission iias been n,*c.. til t retiiriDxl to with tlie evidence taken thereunder, and the '•'*';;'','" V';""^ papers returned therewith by the commissioner, curtOiork. be forthwith transmitted by the Clerk of the County Court to the Clerk of the Division Court . ' in which the suit to which the same relates is pending'. 39 V., c. 15, s. 5. 103- 'i'lie costs of and attending the a])pli-Ji;;^,'; "'«""""'" cation for the issue, execution, return and trans- mission of any such commission shall be in the discretion of the Court in which the suit is pend- ins, and shall be taxed on the County Court .scale by the Clerk of the County Court out of which the same issued on notice to all parties interested; and the Clerk shall certify the result of such taxation, accompanied by a copy of the l)ill of costs as taxed, to the Clerk of the Divi- sion Court in which the suit is pending ; (2)) and such costs may be added to any other costs to be paid to the party entitled thereto, and may be recovered by the party entitled thereto sncli cxiiiiiinatioii, sworn before jvud certitied by tlio mayor or chief magistrate of tiie city or [dace ■where the same lias been taken, anil in case sueh commission, with sueli examination and atUdavit thereto annexed, is returned to the Court from wliich such eommission issued, close under the hand and seal of one or more of the com- missioners, the same shall primd facie be deemed to have been duly taken, exeeuted and returned, and 7 shall be received as evidence in the cause, unless it is made to appear to the C!ourt in which such exami- nation is returned and jiublished, or before which the same is ottered in evidence, that the same was not duly taken, or that the deponent is of sound mind, memory and under- standing, and living within the jur- isdiction of the Court at the time such examination is ottered in evi- dence to such Court. (p) .See note (I) to section 99. 98 THE DIVISION COUllTS ACT. [Sec. 104. Judge may re- ceive in evi- dence plain- tiff's or defend ant's books of account. in like manner as the ordinary costs of the suit are recoverable by the practice of the Division Courts. 3'J Y.,c. 15, s. G. BoflJiS of AccoMit, Jj/idarifs, dr., as evidence. 104. In any suit for a debt or demand, not being for tort, and not exceeding twenty dollars, the Judge, on being satisfied of their general cor- rectness, may receive the plaintiff's books {g) as evidence, or in case of a defence of set-off or of payment, so far as the same extends to twenty dollars, may receive the defendant's books as evide ice ; and siich Judge may also receive as evidence the affidavit or affirmation of any party or wituess in the suit resident without tl.e limits of his County. But before pronouncing judgment, the Judge may require any ?uch wit- ness or any party in a cause to answer upon oath or affirmation any interrogatories that may be filed in the suit. (/() C. S. U. C, c. 19, s. 10:^. 105. All affidavits to be used in any of the DC sworn ueiore _,... „ ,,. „, _, Judge, Clerk or Divisiou Courts or beiorc any oi the Judges Commissioner. , , , rt , -r \ thereof, may be sworn before any County Judge or before the Clerk or Deputy Clerk of any Division Court, or before any Judge, or Com- missioner for taking aflidavits in any of the Superior Courts. (//) C. S. U. C, c. 19, s. 1CI4. Affidavits may be sworn before S(e Rule 133. (f/' Tlie original bonks nio often V'itliliel(l,an(lpretinil('(lorg.irl)ie(l extiacts prodticed. .Judges vciy jiroperly insist ujion seeing tlie Looks in Avhich the original en- tries are made. (h) This right of tlie suitor to prcdnce as evidence the affidavit of an absent witness is a beneficial one, l)ut likely to load to at>usi! if not elo.se]y scrutinized bv the. Mid i^f. as the otner side loses tho advMii- tage of a cross-examination wliich might shako or alter the testi- mony of the witness. If the.Tudgc should require his attendance and he should nfit ajipear, he would probably place no reliance on his Jiiiidavit. mvi 'V\> I Sec. 107.] JUDGES DECISION. 99 JUDGE S DECISION. 106. The Judge, in any case heard before him, shall, openly in Court and as soon as may be after the hearing, pronounce his decision, but if he is not prepared to pronounce a decision instanter, he may postpone judgment, and name a subsequent day and hour for the delivery tiiereof 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 fo'-thwith enter the judgment, and such judg- ment shoU be as effectual as if rendered in Court at the trial. (/) C. S. U. C, c. 19, s. 106. 107. The Judge may order the time or times and the proportions in which any sum and costg recovered by judgment of the Court shall be paid, (j) reference being had to the day on which the summons was served ; and at the request of the party entitled thereto, he may order the Judge may give judgment in- stanter, or postpone judg- ment. See Form 75. See Rnle 1^9. JudKcmay di- rect limes and l)roiiortions in wliidi judc;- ment shall be paid. (t) This section wa? • ^viewed in the case of In re Biirrotcen, 18 C. P. 493. The f.^cts of tlie case are referred to shortly in note to sec- tion 83. After the close of the hearing of the case, the Judge an- nounced that he would take time to consider, and would deliver judgnie it at his Chandjcrs on a subsequent day. without naming any hour. Before that day arrived he sent a written .judgment to the clerk, who reail it in his own oflP.ce to the agents of both of the parties, no objection being then made. It was held that this was a sulficient compliance with the section. A somewhat similar state of fiicts arose in lie iimart v. 0' lie illy, 7 I'rac. 11. 364, but no ducision was given on the point, as the ca^e turned on the acquiesctr.ee of the defendant in the ]ircce(dirgstakin by the Judge. 8ee also section 83, note (/). {,/') Piule 149 gives general direc- tions on this subject, by providing that when payment is ordered of any debts, costs, &e,, the same shall be payable at the office of the clerk at the expiration of fifteen days from judgment, unless the Judge otherwise orders ; but when judgment is signed under section 79, execution may is.sue forthwith. In cases where a judgment creditor can show by oath or affidavit that his debt is in peril by delay, it is usual for the Judge to grant im- mediate execution (see sec. 164). 100 THE DIVISION conn's XCT. [Sec. 107. See Rule w. saiuG to be paid into Couit, and the Judge, upon the application of either party, within fourteen days after the trial, and upon good grounds being shown, may grant a new trial (/.■) ujion such terms as he thinks reasonable, and in the meantime may stay pi'oceedings. C. S U. C, c. 19, s. 107. New Trial. See Rule 7/,? and Form TO. I i lii its I . {k) The right of a suitor under certain circumstances to obtain a new trial is one of great imj)ort- ancc, especial! J' in Courts irom which there is no apjieal. It gives the Judge an opportunity of calmly reviewing his decision, without the unavoidable liurry and distraction incident to a crowded Court and a number of cases, presented for adjudication in a crude state, and not brought to a simi)le issue by tiie scii-nce of pleading, and generally unex- plained by experienced counsel. The power to set aside a nonsuit and grant a re- hearing is not ex- pressly given though often done. The fidlowing arc the ijrincipal grounds upun which neM- trials are granted in the Superior Courts, and which are ai)i)licable to Divi- sion Courts : Mistake of the Judge ; wrong nonsuit ; improper a.lniission or rejection of evidence ; defaull or misconduct of an oflicer of the Court ; absence of counsel, ujioii its being (dearly shown that the defendant has a good defence dU the merits ; default or miscimduct of, or being misled or taken by surprise by the opposite party ; ab- sence of material witnesses ; mis- conduct or jieijury of witnesses ; discovery of fresh evidence that is material, &c. And to these may be added, in juiy cases, ndsdirec- tiou of the Judge ; the imjnoper discharge of a jury ; default or misconduct of jury ; ]ierverse ver- dict, or verdict against law, or evidence, or Judge's charge ; that the damages are excessive or too small, iVc. For the reasons already suggest- ed in the first pait of tliis note, it would seem that Judgo should exercise the jiower of granting new trials lilierally, and in some cases wlieri^ they would not he granted in a Superiin- Court, liui new trials siiovi'.d not he gianted in any case where the a]i])lication is made on a ground tliat does not affect tlie eouity of the case. 'J'lie right to a new trial, lieing only by force of tlie statute, must 1)0 exenised strictly according to tlie terms of it. The application niay lie made either when both yiarties arc piesent on the day of liearing (l!ule 1 )"2), or within four- teen days after tlic tiial. .And it would ajipear that if the Judge hears an applii ation on the day of trial ami decides against granting it, he beeonus jinnit's I'jli'io, and a sid)Sri|Utnt application will be futile— the lirst judgment being final f/i'f ih'i'df Xdrllnrii 11. JT. Cn. & Mnsn.j,, U; C. B. r.KI; 4 AV. 1{. llti : 2 U. C. L. J. 19). HA(i.\irrv C. J., C. P., hcid in MiLnri, v. MtJ.iiiJ, r. Trac. IJ. 4(17, on an application for piohiliition that \\li(re the justice (jI' the case dtniands it. a new trial may b(> granted in gamisliint nt proieedings 107. Sec. 108. J JUDGE S DECISION. 101 108- E.Kcept HI cases wliere a new trial is Execution not . . to be postponed ''ranted, the issue oi execution shall not be for more than *= ' 1 , . .50 days. postponed for more than fifty days from service of the summons without the consent of the party entitled to tlie same ; but in case it at any time appears to the satisfaction of the Judge, by affidavit, affirmation or oMierwise, that any defendant is unable, from sickness or other sufficient cause, to pay and discharge the debt or damages recovered against him or any instal- ment thereof, ordered to be paid as aforesaid, the Judge may suspend ors^ v any iudgnient, ° "^ . . ' "^ \ ® , . * See Rule lU,, order or execution given, made or issued in and Form t. such action, for such time and on such terms as he thinks fit, and so from time to time until it appears by the like proof tliat such temporary cause of disability has ceased. (/) C. 8. U. C, c. 19, s. 108. afterthe lapseof fourteen days ; but this (Iceibion wa.-> raiseil npou the larger wor.Is of seos. 142 and 14.'). Where an application was duly made for a new trial in .July, 18tj8, within the proper time, and shortly afterwanla the .liulge died witliout having disposed of the application, it was held that tho.Jud.^e's success- or, appointed in October, 18<)S, liad power to order a new trial, and tiiat a delay until January, ISdO, did not deprive him of that power (/// re Appclh". V. Btd-cr, 27 U. V. W. 480). The author called attention in his lirst edition to the then state of the law, which made no provision for new tiials in interpleader cases. The defect as to the attaching or execution creditor was rcmetlied by the Act of 1809, and as to the claimant by 40 Vict., cap. 7, sched. A, 71 (see section 210, sub-sec. .3). The practice on this subject is minutely laid down in Rule 142, The form of order for a new trial is given in Form 76. (/) No provision similar to this exists in any of the other Court? of law or equity, and the large discretionary power here vested in the Judge should be sparingly exercised. An '.'■ parte order for an extension of time would be obviously unjust to the judgment creditor. An application should therefore be made to the Judge, eitlier viv(1 mcr at a sitting of the Court, or upon producing aiul tiling atlidavits disclosing the facts relied unon, for a summons headed in the Court and cause, calling upon the plaintiff, at a certain timeand place, to show cause why the defendant' should not have a certain number of days within which to pay the debt ; and so in like manner the plaintiir has power to show that 102 THE DIVISION COURTS ACT. [Sec. 109. m % When a jury may be had. Parties to ffive notice to Clerk if they require a jury. See Form J. See Form 3, JURY CASES. 109. Either party may require a jury, in actions of tort where the amount sought to be recovered exceeds ten dollars, and in all other actions where such amount exceeds twenty dollars. C. S. U. C, c. 19, s. 119. 110. In case the plaintiff requires a jury to be summoned to try the action, he shall give notice thereof in writing to the Clerk, at the time of entering his account, demand or claim» and shall at the same time pay to the Clerk the proper fees for the expenses of such jury ; (in) and in case the defendant requires a jury, he shall, within five days after the day of service of the summons on him, give to tlie 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 hereinafter contained, (n) C. S, U. C, c. 19, s. 120. the disability has ceased. The prac- tice is laid down in Kule 144. (m) This notice must be given at the time of entering the claim ; it would be of no avail if given at a subsequent period, though the Judge hasa right to impannela jury under section 122. There i.s no form given for this notice, and it is only necessary to statu the name of the suit, and that the plaintiff or defendant requires a jury. Form J is suggested as sufficient. Each 'juryman is entitled to the sum of ten cents for each cause in which he may sit as a juror. (n) The writer called attention in the first edition to what appear- ed to be the then unsatisfactory Htate of the law, viz. : that a jury could not be demanded in cases where a new trial was granted. This difficulty was removed by the Judges in the Kules of July, 1869. Rule 142 (f) gives the Judge dis- cretion to make it a condition of granting a new trial that it should take place before a jury whether the first trial took place before a jury or not ; but if either party re- quired a jury on first trial, he is entitled to it again on paying the fees. A Judge cannot dispense witli a jury called by the parties. Sec. 112.] JURY CASES. 103 111. All male persons beinjr subjects of Her who may iw 1 T • 1 jurors. Majesty by birth or naturalization, between the ages of twenty-one and sixty years, assessed upon the Collector's roll, and resident in the several Divisions respectively, shall be jurors for the Division Courts in such Divisions, (o) C. S. U. C, c. 19, s. 121. 112. The jurors to be summoned to serve at Jurors, how se- ^ Iccted and sum* any Division Court shall be taken from the Col- moned. lector's rolls of the preceding year, for the Town- ships and places wnoily or partly within the Division, and shall be summoned in rotation, beginning with the first of such persons on such roll ; {oo) and if there be more than one such Township or place within the Division, begin- ning with the roll for that within which the Court is held, and then proceeding to that one of the other rolls which contains the greatest number of such persons' names, and so on until all the rolls have been gone through ; after which, if necessary, they may be again gone through wholly or partly in the same order, and so on toties quotics. C. S. U. C, c. 19, s. 122. (o) Subject to the exemptions spoken of in section 117. (oo) Section 113 requires the col- lector to furnish clerks with lists of persons liable to serve as jurors at such Court, in the order in which they stand on the roll. Tliis seems an unreasonable imposition, and it is doubted whether the requirement is often complied with. When the country was thinly settled and the names few, it might have been well enough ; but in the present state of things it is absurd. All the male subjects of Her Majesty in one or more townships, between the ages of twenty -one and sixty, are called upon to be ready to form a panel of fifteen, out of which five are to be chosen to try perhaps one case at ten cents a head. Since these rolls are required to be made alphabetically, it usually happens, as a matter of practicfc, that the same persons are sum- moned year after year. Some pro- vision should be made to obviate these defects. 104 THE DIVISION COURTS ACT. [Sec. 113. Collector to fur- 113. Fov the purposGS of the last precediiio; iiish Clerk with r r r o list ot jurors, sectioii, the Collector for each place wholly or partly within any Division, shall furnish the Clerk of the Division Court thereof with cor- rect lists of the names of all persons liable to serve as jurors at sucli Court in the order in which they stand upon the rolls. C. S. U. C, c. 19, s. 123. 114. The Clerk of each Division Court shall cause not less than fifteen of the persons liable to serve as jurors to be summoned to attend at each session of the Court (j)) at the time and place to be mentioned in the summons, and such summons shall be served at least three days before the Court, either personally, or by leaving the same with a grown-up person at the residence of the juror. C. S. U. C, c. 19, s. 124. 115. Either of the parties to a cause shall be entitled to his lawful challenge against any of Jurors to be summoned for each Court. See Form 37. Purtics entitled to challenge. ( p) These words would lead one to suppose that tifteen jurymen must be summoned for each Court, whether a jury has been demanded by any suitor or not, as may be done under sees. 109 and 110, but this cannot have been the intention of the legislature. Such a course would entail a great deal of useless labour on clerks and bailitts, for which there is no provision for payment ; and Bection 122, which empowers a Judge in ids discretion to order a jury to be impannelled of "five persons present" in tlie Court, to try any disputed fact, does uot contemplate the presence of fifteen jurymen, summoned under the preceding sections, and in fact provides for cases on the supposition that there are no such jurymon present. Section 110, moreo .'er, shows that tiie clerk is to be set in motion by the parties, and fees deposited. Tiiere siiould, of course, be only one panel summoned i'or cacli Court ; so that if a jury is re- (juired for one suit, there is no necessity, siiould another suitor re- ijuire a jury, to summon another set of jurymen. See Form ■i7 for tlie form of the "Sununons to jurors." i Se(.'. 118.] JURY CASi;S. 105' the jurors iu like manner as in other Courts, {q) C. S. U. C, e. 19, s. 125. 116. Any juryman who, after being duly p;«>air„,ey. summoned for that purpose, wilfully neglects "'*'' '*^""™°"''- or refuses to attend the Court :'n obedience to the summons, shall be liable to a fine in the discretion of the Judge, not exceeding four dollars, which fine shall be levied and collected with costs, by the same process as any debt or judgment recovered in the said Court, and shall form part of the Consolidated Revenue Fund, (r) C. S. U. C, c. 19, s. 126. 117- Service as a juror at any Division Court service as juror *' '' .at Division shall not exempt such juror from serving as a court not to ■*• " " exempt him juror in any Court of Eecord or in the Court of from serving at •' '^ Supenor Courts. Chancery ; and no person sliall be compelled to serve as a juror in any Division Court who is by law exempted from serving as a petty juror in the Superior Courts, (s) C. S. U. C, c. 19, s. 127. 118- If any Collector, for six days after de- Procecdines , , , against Collector mand made in writing, neglects or refuses to f^r "«s>'i»i'^t'inK to (7) The juror must be challenged before he is swcrn. Th(>re jirc two kinds of challenge : (1.) To the array, which is founded on some matter personal to the ollicer by Avhom the jury has been summoned, and need not here be further spoken of. (2. ) To the [)olls, /.«., exceptions to the individual jurors, such as want of ([ualilica- tion, or well-grounded suspicion of bias or iiartiality. The want of qualification is a good ground of challenge, but it is not a good ground that he belongs to a religious persuasion allowed by law to atlirm instead of taking an oath (Rev. Stat., cap. 48, sees. 105, 107). Each party may challenge per- emjitorily, without assigning any cause, tliree of the jurors called (I/>. sec. 106). {)•) The form of the minute in the Procedure Book of imposition of tine for non-attendance is given in schedule as Form 72. (s) Tlie persons exempted !ind disqualified from serving as grand or petty jurors are set out in Rev, Stat. , cap. 48, sees. 7 to 12. lOG THE DIVISION COURTS ACT. [Sgo. 119. I furnish cioik furnisli tliG Clei'k af the Division in vvhicli the with Hst of ^ _ ... jurors. Township, Town, City or Ward for which lie is a Collector is wholly or in part situate, with a correct list of the names of persons liable to serve as jurors in the Division Court, according to the provisions of the one hundred and eleventh section of this Act, the Clerk may issue a summons, to be personally served on the said Collector three days at least betore the sitting of the Court, requiring him to appear at the then next sitting of the Court, to show cause why he refused or neglected to comply with the provisions of the said section. C. S. U. C, c. 19, s. 128. CoHector^for"'^ 119. UpOU prOof of the SCrviCG of such sum- breach of duty, u^ons, the Judge may, in a summary manner, inquire into the neglect or refusal, or may give further time, and may impose such fine upon the Collector, not exceeding twenty dollars, as he deems just, and may also make such order for the payment by the Collector of the costs of judge'sorderforthe proceedings as to the said Judge seems meet; and all orders made by the Judge for the pay- ment of a fine or costs shall be enforced against the Collector by such means as are provided for enforcing judgments in the Division Courts. C. S. U. C, c. 19, s. 129. 120. 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 severally called " The Judge's List" and "The Jury List," and the causes shall be set down in such lists in the payment by Col- lector, how en- forced. •ludf^e's list and Jury list. m\ Skc. 122.] JURY CASES. 107 order in which they were in the first instance entered witli the Clerk :— " The Jnry List " shall be first disposed of, and then "The Judge's List;" except where the Judge sees sufficient cause for proceeding differently. C. S. U. C, c. 19, s. 130. 121. Five jurors shall be impannelled and ,^^''^';™,';|ned. sworn to do justice between the ])arties 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, (t) and verdict to be the verdict ot every jury shall be unanimous. C. S. U. C, c. 19, s. 131. 122. In case the Judge before whom a suit jud(?e may order ° jury to be mi- is brought thinks it proper to have any tact pajmeiied to try ° ^ ^ "^ any disputed controverted in the cause tried by a jury, the fact. Clerk shall instantly return a jury of five per- sons present (u) to try such fact, and the Judge may give judgment on the verdict of the jury, (<) After the oath is taken, tlie clerk should call over the names of the jurors, who will say "sworn," if sworn. If persons allowed by law to affirm (as Quakers, Menon- ists or Tunker s) are on the jury, an affirmation is administered to them instead of an oath (see Forms 110 (;/) (h) for oat hs to jurors, and 110 ij) (k) for oat bs to the officer who has the jury i n charge). See also no te to Form 110 d. The jurors are therefore bound by the eviden ce produced, and must not give th eir verdict from any knowledge o r supposed knowledge they may h ave of the facts. If a juryman can give evidence he should state that fact, and not be placed on the jury, but give evi- dence as a witness in the ordinary manner. (m) This is permissive. There might be many cases where the Judge would prefer to have the assistance of a jury. It will be noticed that this power given to the Judge is to have the opinion of a jury upon some fact contro- verted in the cause, whilst a jury called by the parties is to try the cause. It may sometimes be a delicate and difficult task for the clerk to select the five persons, and per- haps subject him to ill-natured re- marks from disappointed suitors and others ; he should therefore be careful to choose men above sus- picion, and, if possible, strangers to the disputants, or at all events entirely unconnected with them in business or otherwise. It will not be necessary to make 108 See see. 107, note (k). THE DIVISION COURTS ACT, [Sec. 123. Judge may dis- charse jury nut agreeing, &c'. To ganiiah debto. or nicay grant a new trial on the application of either party, in the same way and nnder similar circnmstanccs as now triah are granted in other cases on verdicts of jnries. C. S. U. C, c. 19, s. 182. 123. If in any case the Judge is satisfied that a jury, after liaving been out a reasonable time, cannot agree upon their verdict, lie may discharge them, and adjourn the caiise until the next Court, and oriler the Clerk to summon 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 judg- ment accordingly. C. S. U. C, c 19, s. 133. PROCEEDINGS TO GARNISH DEHTS. (u) 124. Subject to the provisions of the next section, when any debt or money demand of the out a written summons. Tlic clerk, on the verbal order of tlie Judge, writes down the names of five persons in the (,'ourt-room, and calls them one by one to ap- pear and be sworn as jurors. The i)artie3 would, it is pre- sumed, have the same right of challenge in this case as wlien tlie jury is asked for by one of them. (u) The power here given to Di- vision Courts is one tliat is not given to the same extent to the Superior Courts. The jiovver to at- tach debts due to judgment debt- ors to satisfy judgments was given to executio i creditors in Superior and County Coiirt suits in 185(>. It is there confined to tiie satisfac- tion of any claim that has been reduced to a judgment, whilst this eection allows the attachment of debts to satisfy "any debt or money demapd" not strictly a eli.iin for damag.'s, whether on a Division Court judgment or otherwise ; that is to Mv, tlie ilebt to be satisfied need not be a judgment debt, but it must not be a claim for damages. The legislature, in giving to a creditor this extraordinary power of attaching debts before the re- covery of judgineut against the debtor, has apparently intended to confine it to cases where there is a tolerable certainty of something being really due from the primary debtor. To lock up for a consider- able time money coming to a man, on the ground that he may he cast in damages at the suit of another, is something the legislature woi-'d never sanction. Actions for dam- tiyes are very easily commenced. i \m m Sec. 124.] attaciimi:nt of dkbth. 109 •g- proper competence of the Division Co. rt, and not being a claim strictly for damages, is due and owing to any party from any other party, either on a judgment of any Division Court or otherwise, and any debt (v) is due or audit (.•oii8taiitlyhai)i)ensthat they Jia 'e very slender foundations. The clasa of men who are always ima- gining that their neighbours are in- juring them is a rumerous one, and they are very ready, on the least jirovocation, to l)ring an action, no matter how remote the damages may he. It is not a condition iireccdcnt to this remedy that the creditor should first have exhausted his remedy by execution. ((•) It is not every claim that can be attached ; it must be a (Jffht, that is, a sum certain, some- thing which comes w.thin the meaning given to the word as used in section 79 (see note (.t) there- to). It has been laid down as a general rule, that any debt which can be the subject of a set-off (see note ip) to sec. 92) can be attached {McNamihton v. Wvhstn; 6 U. 0. L. J. 17). Claims for unlicjuidated dam- ages, or claims for l>reach of con- tract for unlirjuidated damages, cannot be attached until judgment has been obtained upon tliem ; nor does the recovery of a verdict on such claims .alter the case, un- til the verdict has l)ecome a debt by means of a judgment (see Boiid ci al V . Ifajive.'^, 5 I'rac. R . 1 .'> ; Bauk of Toronto v. Bnrtov, 4 I'rac. It. oti ; aici/inir V. iiVcs, 2 Prac. 1\. 282). And it is also said that a ver- dict on an insurance policy, other than a life policy, is not attach- able, the contract of insurance being looked upon as a contract of indemnity [Bvyil et al. v. Ilaynes, 15 ; and see Dresser v. Johns, () C. B. N. S. 429). It must be a lajnl debt, Tue from a legal ilel)tor to a legal creditor, and therefore a debt due by the garnishee to a person who is trustee for the judgment debtor, and one who is therefore only the bere- Hcial creditor, cannot be attacl ed to satisfy the judgment debt {lb). In Miirdoic'iU v. HoUister, 3 Chy. Rep. 933, it was hidd that a creditor cannot attach a legacy given by a testator to the judg- ment di'btor while in the hands of the executor, unless there has been such an account stated with the ex- ecutor as would enable the legatee to maintain an action at law. Prior to the Administration of Ju.stice Act of 1873, there couM be no tloubt that ecxuitable debts were not attachable. For though Bank of B. X. A. V. Jlfatthev.'s, 8 Chy, R. 492, was a certain authority to the contrary, yet the later cases otGil/tcvt V. Jarris, 16 Chy. R. 265 & 20 lb. 47S, and Blake v, Jarvis, 16 Chy. R. 295 & 17 ib. 201, over- rule tiiat case. The case of Wilson V. Dnndns, 20 Sol. .1. 99, Tecided under the English .Judicature Act, seems, however, to be an authority in the opposite direction ; bu*^ whether this view of the law would prevail here, looking at the second section of the Administration of Justice Act, need not now be the subject of inijuiry. A late case, St. Michael's Cotlene v. Merrick, 1 .\p p. Rep. 1 10, appears to support t he old doci/i'ue, Init the judgineut in reality turned upon another poin t, : 110 THK DIVISION COURTS A( T. I Sec. 124. iukI it may he tluvt ii (lillVrent result would liave lu'uu anivcil iit liail the Superior Courts of l^awauil E(|iiity been intrusted with the jiowers eon- lerrcd ou iJivisiou Couits hy tiiis section. l>el)tH which have heeu assigned by the judgnieiit debtor cannot bo attached ; liut see furtlici' aa to thi«, note (//) to this section. And so an unsettled lialancedue by one [lartner to imotlier cannot be gamislicd ; but it is otlierwi.se if the balance has been ascertained by a settlement of aciounts {Cmn/j- hdl v. I'alaxi ill., U T.C. !,..!. (IS). Where the garnishee had given the jutigmcnt delttor, or, as he is calleil in this statute, the primary debtor, a bond conditioned that au agent of the debtor sliould pay over all moneys by hini receiveil, it was hchlthat liabilities incurred by the garnishee, even if estab- lished, would m)t be attachable (Urisiru/d V. Jj. JJ. if (f. llitilnnul Co., 3 U. C. 1., .1. 115). Tiie surplus money arising out of the sale of mortgaged ^lrl■mise^; in the hands of the mortgagee, is a debt within the statute, and at- tacliable ou a judgment against the mortgagor [Mrkaii v. MitduU, G U. C L. J. 01). And so is nioiiev made by and in the ha?-.'l!> of '.i sheritf under an execution, to sat- isfy the debt of the persi-u iVf whom he has made the inouey (Smart v. Milkr, .'i I'rac. 11. 385 ; and sec LovLlturt v. iiiion, r)n the eonvvrso of the above (jui'stion coining up, that ■when judgment is recovered against an executor, a debt due to the tes- tator's estate from a third ])ersoii may be attached. Mut see also Mncduliuix.ltinnlniU ,1 al., lH C. I'. -S4. .\ debt due to the estate of a deceased primary debtor cannot be attached until bis jiersonal repre- sentatives can legally be brought before the Court (see Cammr rcial Jhink V. irillianis, 5 U. C. L. .1. (i(i). There can be no garnishment iu the case of a judgment against a municipal council, with reference to moneys in tlie hands of a sheritF arising from the sale of lands lor taxes, as being a debt due from the sheriff to the corporation of the county, the statute making a spe- cific appropriation of the amount, whieli is e<[uivalent to a prior assignment ol the debt in ordinary cases ( iri/soii V. J/itroiiond Bnicc, 8 U. C. L. J. 13t)). The garnishee clauses do not apply to the Criwu [R'ii. V. liaisun, 2 \\ II. .S50). The debt sought to be garnished must be a debt iurespe<-t of whiili the judgment debtor has a bcne- licial interest {Hir,-n'h v. Coiitis, 25 L. .J. C. 1', 315) ; and therefore a debt due to an administrator in his representative character cannot be WM^ SF.r. 124.] ATTACHMENT OI" DEBTS. Ill owiiij,' ('//') to tlio debtor Ironi Ihci party to whom .such first attached to answer a debt duo by ail adniiiiistrator in liis private cajiaeitv {Jlnwinan v. JJnintiiiii, 10 U. V. li. .1. ;iO\ ; and Hce /ioi/il it a/, V. /fdi/nrs, Kiiiirii). It does not matter how large the indelttediii'Hs (if the garnishee may be, tlie matter may be gone into ; ))iit as soon as a siitlicient siiiii to pay tilt' delit and costs is shown to be due, it appears to be the duty ot' tilt' .lutlge ti) niakt^ the necessary onler against the garnisliei' with- out gtiiiig any furtiier. Tlie payment t>f the amount so oitlereil \\\\\ in; a satisfai'tion jiro liiitlixtf the garnishee's intiebtetl- ncss, ami may be so pieadi'il in a siil)Si'([uent action against him by the primary tlcbtor. Service of an attaching order, even though it does not onler payment, binds the nitmey, and is a gootl tlefence in an artion against the gnriiisliee for the ilebt thiisattacheil ((vry/ V. Biiiicroj't, 4 U. (,'. L J. 2(|f|). (to) " Due niul owing ;'" " iluo cr owing." It will be observed that ■when the relation between ])ri- mary creditor ami jirimary tlebtor is referred to, the former expres- sion is matle use of, but the latter when the relation between tiie gar- nishee anil tilt! ])iimary tlebtor is spoken of. TlieiliU'ereiu'e intendeil to be made between tliein is simply this ; that before a creditor can tuh^e any step to garnish a ilebt, Iti^ claim against the primary tlebtor must be line mill t)\ving, /,< ., due as irr// astiwiug, while the tlel)t he seeks tt) attach maj- either be (fiir or only mrinij. To uiiilerstanil this, we must make ourselves I'li rii/i/>o)-t, as it were, with the franicr of the section, who evidently, in his own miiitl, intemleil the word rlw^ U> mean mir/i as imts rapd/t/n of /wini/ at once nuult the subject of anadiun any otlier i)arty, mentioned debt fur itn rri'oirri), but the wortl on'inff tt) have a more limiteil application, antl to apply to a (/ihl nut >ii I due. If we look at sectif)n l'i7 we get the words "due or not due." Section 124 says: the primary crctlitt)r may attach any ilebt "due or owing." Section 127 specifies limr this may be ilone : that a .lutlge may make an order, " that all delits owiiuj to the ])rimary debtor, ir/irthrr ilur or not II III', be attached. " Section 128 then gives the etl'ect such an order shall have when servcil : namely, to bintl " all debts Dun oiritii/" by the garnishee, w bile the form of the order ( No. 41 ) has the worths " whe- tht^r line or accruing tluo." If the word " owing " meant " ilue," the service of the order fails to etl'ect what the onler was granteil for. On the whole, then, we may take a debt "owing" to mean a ilebt in pni'smli, with a so/vcni/ian in fiilnri). Again (by section 13'J), at the hearing, "the .Judge may give jutlgment against the garnishee for the amount so oirimj from him," and execution " to levy the same may issue thereon as of course, (/ (Ihi\ or irlirn and as it (ircomcs iliir." Although a tlebt accruing due may be attached, the garnishee will not be ordered to pa}' it over until tht^ period of credit or time when the debt shoultl be paid has ela])sed ; ami the onler to pay over Avhen the tlebt becomes payable, will be made at once without wait- ing until that time (llanlinii v, Bitrratt, 3 U. C. L. J. 31 ; Tcijiii v. Jonr^, L. \{. 10 g. H. f.91 ; ami see section 132 /"m7, anil forms). But a claim which may never be- come due — such as future rent — has been held not to be a ilebt within the similar iirovisioiisof the Common l.,aw Procetlure Act [Mc- Laren, el id. V. tindn:ortk ct ul., 4 112 Seeliulen. to es. THE DIVISION COUHTS ACT. [Sei;. 124. or iiK^ney demand is so due and owing {.r) (hereinafter designated tlie i)riniary creditor), may attach and recover, in the manner herein provided, any debt due or owing to his debtor (hereinafter designated the primary debtor) from any other party (hereinafter designated the garnishee), or suflicient thereof to satisfy U. 0. L. .1., "2.33; Commrrciol Banl- V. WiUi. 10: "This being a negotiable instrument, no ordec of ours can prevcr.^ it l>rii:g endorsed over "") ; imd ov.n if there were, his disobedieuci' ^^■ould not ail'ect the rights of a translen e for value, of the security ( see M<'lli.
  • . possiy>ly, in the hands of Ihnia jiilr holders for value, prior to the granting of the order to jiay ovrr. " The case of Pjiix v. K'nniit, .-in/ird, appears to overrule i/^(<\'. 77i'iiii/)- son, -27 L. .1. Q. 15. '2.sii. whirli was an authority the other wny. "It seems exjiedient that Juilges, under the discretion they have in these (?ases (see Jaiirs v. Turiifr, 25 li. J. Ex.;31!>), sliould decline to interfere in cases of Court (that is, if it Axas I hie), tliere to abide tlie issue of the exaiiiination f>f the primary delitorattlie trial asto who was tin? lawful holder of the security. If the note Was iidI ilxr, the attaching onler /i.iglit be keiit in force until tlie note matured, and then paid into Court l)y the garnisiiee, pro- vidcl no steps had in tlie meantime been takcii against jiim by a holder (tther than tlie jiriiiiary creditor. Again, it cannot always he kn 1 iiiociiaiiics, &c., workman, laliourer, servant, clerk, or employee for \va;jes not to , . , , ,, 1)0 uttiujtod, ex- for, or in respect ol, nis wages or salary, sliallcept to excess be liable to seizure or attachment under this (//) A garnishing order has no operation upon debts of which the judgment debtor has ah-eady bond Jiili! divested himself l)y assign- "nu'nt {/fir-fch v. Onati's, IS C. B. 757 ; Clark: v. (JlaH; 8 U. C. L. J. 107 ; Ferqiisson v. Carman, 'Hi U. 0. K. -Hi ; Grant v. McDuncU, 30 U. C. 11. 412) ; and it is not ne- cessary that tlio garnishee ahoukl have notice of tiie assignment (Brown v. McGuj/in, 5 I'rac. II. 2;U), thougli if he pay to any one else entitled, in ignorance of the assignment, lie will l)e ])rotected (see also Kimkrhy v. Jcrvis, 25 L. J. Chv. 5.38 ; and Ilmvan v. Lord Oxford, 25 L. .1. L'iiy. 299). A question will often arise as to what an assignment is. A case l.ilely occurred where B. gave A. an onler on V. for the balance due him on a contract. C. would not, or did nut, accept the order in writing, Ijut said he would pay it at a certain time *^hen named. Subsecjuently ('. was garnished at thesuitof anotherperson D. against U. ; an(' not appearing at tiie trinl, judgment was given against him on proof of his indebtedness to B. After an interval A. sued B. and ga-.dshed ('., who appeared at the trial aivl stilted that he owed B. no- thing, .liivingbeeu garnished in D.'s suit and judgment given against him. On proof of his jtromisc to i)ay the order 15. had given to A. on lini, he pleaded that he had not 8 accepted in writing, and invoked the statute. A. 's reply to this was, that B., having divested himself of the debt due from C. to him by assignment in writing (meaning the order first mentioned) to A., with the knowledge and consent of C, he (C.) should have appeared in D.'s suit, and stated his promise to accept B.'s order in favour of A., when, it was argued, the Judge would rule, as was equitable, that A. should have priority over D. 0. , however, contended that as lie was m)t liable to A. upon his verbal promise at the time D.'s attaching order was served upon him, be could not noir be made liable by being ordered to pay the debt a second time. As the money hn.d not yet been paid out to D. , a new trial was ordered in this suit to give (J. an opportunity to set up the facts stateil as a defence. But, senihlr, that the order to A. in the iirst instance amounted to an as- .«ignniont ; and that V., having notice of and assenting to it, could not set up the payment under D.'s attaching order as a defence. It is said that a debt cannot be attached in the hands of an as- signee for the payment of debts, l)efore the assignee has regularly declareil a dividend (ecifi I by the statute, ought to tal e ,; e- cinlenee of the otlio-, and ent' ;le him to the order asked against the garnishee '. Clerks will do well to follow the statute striotlj'. 'm. ^^^H ^^^^^B ■ ' ^B' ' I 1 ^^^^K ^^^^^H ^^^^■E 1 j i ^^^B' ^^^^^B ^^^^^v. ^^^^^^^t ^^^^B ^^^^B ' ^^^^^^B.» i ' ''i 1 ij ^H|i ■ L D ^^^^0^*^11 ^til:, ' 120 HIE DIVISION COUItTS ACT. [Sko. 131. How to lie served, etc. See liiiUa .•'•', ii/i, iifi. the amount unsatisfied ; which summons sliall be veturnahle either at any ordinary .sittings of such Court, or at such other time and place (to be named tlierein) as the Judge may permit or appoint, eitlier by a general order for the dis- posal of such matters or otherwise. 32 A^, c. 2o, s. G (4). 131> A copy of such summons and memo- randut i shall be duly served on the garnishee, or, if there be joint garnishees, then on such of them as are within reach of the process (/) at tlie time and in the manner required for the service of sunnnonses in ordinary suits for correspond- ing amounts, and also on the primary debtor^ if thought advisable, or if re(juired by the Judge. ("///) 32 v., c. 23, s. G (5). (/) "■\Vitliiii reach of the pro- cess," t^'at is to .say, ■\vhevo there &YQ joint garnishees, tliere is no ah- so'ute necessity for serving; more than one of them, if tlie oilier or otluTS are not "within reach of the process," tliat is, not in the Pro- vince, for Division Court ]ir(i(:es3 runs noAv tlirough the whole Pro- vince. If only one ran be found, the Judge might consitler it a case to make an order for sulistitutional service on him for the other, under Kule 55. This would render it unnecessary for the judgment to lie limited only to the interest of the one served, as in tlie case of part- ners or defendar.ts jointly liidjle (see sec. 77). The appearance of one of the joint garnishees and the hearing of his evidence would be sufHcient in most cases to war- rant the Judge in making such an order as was just. If the evidence of the garnisiiee a])peaiing was not sufficient of itself to support his contention (in case he disputed his liability), the Judge would i>ro- bably direct some further ell'ort ta be made to serve the other gar- nishees before giving judgment. Service of the summons on the garnishee binds the debt in his hands uiuler section 1.37. Pvule 53 ]irovides that the service of a summons on the primary debtor must be made according to sees. 70 and 71 of the Act, while service on a garnishee need only be made /(-/) days before the return day. The former inaji reside out of the county ; the latter cannot, if the ])rovisions of sees. 130 and 133 are followed. (»i) l!ule 54 does away with th& extreme vagueness of the last words of this section, by re(|uiring that the primary debtor shall In nil f«*'('.s be served, "unless disjjensed with by the Judge," meaning, of course, unless ii<:rcke on hun shall '*^ Sec. 132.] ATTACHMENT OF DKliTsJ. 121 132 At the heanuff of the siiinmons, or at •'iit, ■will not dispense with the service, unless some very urgent reason be assigned for doing so. Why such serviie should be dis- pensed with hr/orc Ju(/cf)iH)it it is liard ti) imagine, as, unless the i|ue8tii)n uf the ))rimary debtor's liability is first decided, entering njion that of the garnishees ■)iiai/ be waste time. This .service should be personal as in ordinary cases, but the Judge has i)o\ver, under Rule .55, to dis- pense with personal service, ann for the benefit of ci'editors, it does not se'jm riglit that unuiM'essary costs should, in taking advantage of it, be iiniiosed on debtors. If, then, a creditor has begun proceedings in the i)roper Court against his debtor by iird'inarii summons, hi,- sliould either go on to judgment in tliMt s>ut, and afterwards procecil under see. 1"27, or else he sliould as held tb'it garnishing proceedings against Grand Truidi Company in re of work doneon the leased line projicrly taken at l'irantforil,as that was tiie place where the company carrieil on business for such line. lint a railway company, as a gen- eral rule, does not live or "carry ou business" at iniy otlier place than at its heatl otlice. When, tln-re- fore, the garnishees, the tiraiid Trunk llaiKvay ComjKvny, which had a local station at lierlin in this rroviiice, were served witli a aar- nisiuesununonsout of the Division Court at lici'lin, on the ground that the < 'ompany "lived or carried on business there," it was held that the (.'ourt iiad no jurisdiction, and a l>roliibition was ordered (.•!//;■' /(•-■ V. Mra}iii' le cev'ainty and detail, (■•<) which summoii.s shul^ be returnable as reo.sit from tlic agency before tlie iigent was advised of the attaeliing order. A piiyinent out to liiiii would dearly disciuirge the bank, notwitlistanding the aervico on the head olliii', unle.s.s it eould be shown that tliey were negligent in ay the primary creditor, of the jjartieular moneys sought to he attached. A telegram to the agent would V) such a case he the safest course to pursue. We are informed of a case that lately happeneil, where tlie sum- mons was issued out of the Court of the division where the branch otlicc was situated, and where the money was lying. The primary dditor, on being served, hastened to Toronto at once, and there at the head office discounted a cheque for the whole amount to his credit at the blanch. Seeuotes(o)and(;))tosec. fii, and Brown w Co., 4 H. & .S. 3_'7. (•<) "Reasonable certainty and deta'l." These M'ords are similar to those used in section 7!', re- ferring to spfcia I summonses ; while the words in section 68, referring to (inlhiiirii summonses, are "in detail. '' There maj' or may not be any difference between the two ex- pressions : but, it maybe said, the more artaiittii and the more drtivl there is about the claim, the less probability there is of the defend- ant disputing it, if it is correct. (0 See section 1.31, note {<:). (it) See section 70, and Rule 5.3_ ((•) See section 131, note (;//), and Rule 54. The wording of this section is a little more stringent than that of section 131, as is natural where the f I 126 THE DIVISION COURTS ACT. [Sec. 135. Jiuls, .loiit in sucli ic. Ft i lit 1 .!>! ScclitdeiA 135. If in such case the primary debtor haa been duly served with a copy of sucli summons and memorandum, judgment (in the usual form in other cases) may be given against him at the hearing for the primary creditor, for the whole^ or such part of the cLaim (ly) as is sufhciently r roved, and execution may 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 (y) from tlie primary debtor, and also of the amount one reft'rs to procoedings (i/fci\im]g- lueiit, the other to proceedings hrfurc. Kuk' o4 is, howevtr, ap- plicable to proceedings hoth before and after judgment. It would be hard to lay down what would be a "sufficient reason "' for dispensing with service on the prinmry debtor. Each case must be governed by its own peculiar circumstances. The Judge would no doul)t sec that the interests ul' every party to the pro- ceedings are protected (see note {:.:.) to next section), (v:) That is, a claim on a debt or money demand, not a claim strictly for damages (see note (n) to section 124, and note (/;) to section 132). (.f) Do the opening words of the section govern the rest of it or not? They arc: " If the primary del)t- or has been duly served.' The second clause begins, '-And Mhe- ther such judgment is or is not given ; " it does not say, " whe- ther the primary debtor is or is not served." What is the meaning of "such judgment?" Is it not a judgment against a primary debtor icho has been duly xenu'il .' We would be inclined to think that the whole section referred to a case where the primary dtbtor had been scrrcd, Avere it not for the words "on sulhcicnt proof of the debt due and owing from the primary debtor." These wor'^s show, it appears, that it is a ease of iiuii-serria: on the primary debt- or, for otherwise there would be nothing to ])revent judgment going at once against him (stc note (//). It lias been conaidored by the .Judges that under this section t^ o distinct judgments are given — one against the primary debtor, and the other againsl the garnishee, (y) .Sec section 124, note {ic). Fro n this it seems that while the Jui'gc may not think himself war- ranted in giving judgment against the primary debtor, owing to his not having been duly served, still he may recpiire such a state of facts to 1)0 disclosed as would justify him in giving judgment against him had he been served, beftire he gives judgment against the gar- nishee. The result, as far as the l)rimary debtor is concerned, is, with one exception, the 3ame in both cases ; namely, the wiping out of the debt due to him from the garnishee, without any remedy agair.st the latter. The one e.eccp- tioa '.s, that if there has been no ad- Sec. '35.] ATTACHMENT OF DEBTS. 12T owing to him from the garnishee, may then, or at any adjourned hearing, give judgment against the garnishee (which may be according to tlie form prescribed as aforesaid) for the amount so see F^m io. 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, (z) towards the satisfaction of such claim, or in default' thereof -"j-ecution may issue to levy the same Ibrthwitl). or at such later period as the Judge may direct, (zz) whicli execution may be accord- See Rule 58, juilicatioii against him as between himself and the j^jrimary creditor, he may afterwards proceed against the latter in some sliape, with a view of siiowing that he was never indebted, and recovering l)ack the amount paid over liythe garnishee. In some counties it is the prac- tice for the Judge to refuse to give judgment against the primary debt- or if he has not been served with the summons, but to order the gar- nishee, on the debt being estab- lished as due by him to the pri- mary debtor, to pay the amount tt» the primary creditor on his executing the bond under sec. 143 (Form 47<')' (:) The option seems to be given to the garnisliee hinself : but Kulo 51 revokes this discretion, and for- bids any payment to the primary creditor before judgment against tlic primary delitor.except an order for tiiat purpose be first obtained from tiie Judge. It may be tiiat the Judge would think it necessary to order tliat a bond (see section 143) should be riled before the money was paid over. (vc) When the power was origin- ally given to Attach debts to satisfy claims not as yet reduced to judg- ment, IVars were expressed that great injustice might occasionally result from the extraordinary junvcrs given. It was a very risky thing, as is done by this section, to legalize the payment of a debt, due to the primary debtor by a garnish.o, to the primary creditor before the latter had established his right to recover anything from the primary debtor. The legisla- ture evidentlj' felt that dilKculties might arise, and by sees. 142, 143 ami 144 endeavoured to meetsome of them. .Section 134 also provided that, wherever i)racticable, the pri- marj' debtor shoidd be served. The Board of Judges also came tc the rescue by supplementing section 134 by Rule u4, and by promulgat- ing various other rules widch ope- rate as safeguards ; and notably so Kulc ■')8, whi'h provides that no I)iiyment shall be made by a gar- nishee to a jirimary creditor before judgmentgiven against theprimary debtor, except an order for that purpose be rirst obtained from the Judge. The Judge has also power (Kulc r>i) to adjourn the case, and to order other persons to be made parties and to be served with a ' m^ > ? See Form S7. THE DIVISION COURTS ACT. [Sec. 135. ing to the form prescribeil as aforesaid. 32 V., c. 23, s. 7 (3). summons to appear before him, that all interests may be protecteil (see sections 144, 14.')). Cases have occurred, liowever, where these sections have not only been very beneficial, but the powers granted have been said to have been too limited. For example, it has often happened that a contractor (say for taking out timber, railway ties, &e.) has employed a number of men and has failed to pay them, although he has received large advances on his timber, Ac. The contractor absconds, leaving little, if any, chattel property. His workmen garnish the money still due to their employer in the hands of the person by whom the con- tractor was engaged, but llnd a ditliculty in serving the latter. In the meantime, possibly, the gar- nishee pays the balance due the debtor into Court. The creditors cannot obtain judgment, as the debtor has not been served or for • some other cause, and the money remains in Court waiting for them, until judgment shall have been obtained, unless, what is a most rare thing in practice, tiie Judge .should order it to be paid out to them, eonstruing this section as an authority for that purpose ; for if he may order the garnishee to pay over to tlie primary creditor before judgMU'ut is given against the primary debtor, ho has, it is ap- prehended, a like power to order money paid in by the garnishee to be paid out to the primary creditor. Kule TiiS is not intended as an au- tliority to the .Judge to order the garnishee to i)ay over direct to the primary creditor (f.lthou,i;h there IS in it an implied authority for that imrposc), but simply to pre- vent the gariiisheo exercising the right to do so, as given by this section. If the Judge can do the one he can do the other, inasmuch as the primary debtor is aflFected alike by either course. By an order to pay over direct to the primary creditor, the gar- nishee is not more protected than by an order to pay into Court ; and the primary debtor's interests are no better protected should the debt due hinr from the garnishee reach the primary creditor's hands by a direotinstead of anindirect method. The best and safest course will be for the garnishee to pay the money into Court (if liable to do so), and then the .Judge has ample powers under Kule 55, which au- thorizes liim to order the service to be substitutional, or " insuchof/ie)' iiianmr " as he may direct. If ser- vice on some relative of the prinmry debtor's family is not possible, mailing a registered letter contain- ing a copy of the jirocess to his last known address may perhaps pro- voki^ a rejily from aim in some way. Failing these, the Jud<'e might think tit to order him to be served by jnihiicdtion, analogous to the practice in Chancery (see Rule iio). Possibly a special application un- der sectio'i 148 might meet some of the ditHcu'ties that might arise. And here it may be remarked that as the (leneral Rules in some things contract and limit, in otiiers amjilify and enlarge, and in many explain and make Dracticable the sections of th„ Acd now treated of, it would have been a boon to all concerned ha 136. In all cases under this Act, and whether ah parties intor- . , . . . ested mav show the claim of the primary creditor is or is not a cause, &c. Judgment, tlie 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 the primary debtor, which the latter would be entitled to set up in an ordinary suit, and also any such defence as between the garnishee and the primary debtor, and may also show any other just cause why the debt souglit to be garnished sliould not be ^aid over or applied in or towards the satisfaction of tlie claim of tlie primary creditor, (a) («) A somewhiit similar provi- sion is made by Rule 3(5, in tho disc of several attaching creditors against an absconding debtor. This section aH\)nl8, to a certain extent, a safeguard against fraud nil the jiart of a primary creditor wlio, liaving got the primary debtor out of the way, may proceed on a claim which has no foundation at all, or is largely in excess of that justly due. As a general thing, the .ludge is satistied with the evidence of the primary creditor to establish ihe unjlicient iiroof rvA{nircd by sec- tion 135. If any doubt is raised owing to some third party appear- ing under this section, he is at liberty to re(iuire further proof. Collusion between a primary ereditor and primary debtor, as well as between either of them and the garn'shee, is under this section made less likely, as being open to judicial investigation. Inthe caseof aprimary debtor ab- sconding, leaving large liabilities, 3 it gives an opportunity to Bubse- ({Uent primary creditors to disprove altogether or to reduce the claim of the hrst and each successive one, thus increasing their own chances of obtaining a share. For in the case of several primary creditors they rank, as we have seen, accord- ing to their priority ; while attach- ing creditors (proceeding under sec- tion 1!)0) share r<(tobhj (see section 197). It might be well to consider what would be the result were one or more creditors to proceed by at- tachment under section 1{*0, after another had commenced proceed- ings under the garnishee clauses, and the garnishee were to pay the money into Court. There would be no difficulty on the part of the attncliiiuj creditors in obtaining judgment, while the primary cred- itor might be unable to do so. Of course, if there was more than enough in Court to satisfy the pri- mary creditor's claim, the residue- 11 • ii\ .)nxdi\ ^1 1:!' i 150 Ni)tii:o of Stiit- utorv tiiifoneu. Service of summons on garnishee to THE DIVISION COURTS ACT. [Skc. 137. 2. Notice of any statutory defence shall be given to the primary creditor at the time and in the manner re(|uired in respect to .such notice in ordinary cases, (b) 32 V., c. 23, s. 8. 137- (c) In all cases under this Act (except where an attaching order has been served. would be liable to Sei-'.ure by the bailifif (under the direction of the Court, if necessary), to go towards the attaching creditor's judgments ; but if the assets were not sutlicient to satisfy all, the greater part of the Dioney might thus be locked up to await the time when the primary • creditor should obtain judgment ; and the Judge miijht require per- sonal service on tha primary debt- or. Would the primary creditor consent to share ratably with the rest, if the Judge ordered service in his case to be effected in a simi- .lar way to that upon which the attaching creditors obtained judg- ment ? (6) See section 92, and Knle 128. That is, such a notice as the primarj- debtor would be entitltHl to set up, and which he nrnjltt to setup in writing, if he would take advantage of it at the trial. Any statutory defence that the garnishee might have against the primary debtor must also be given in this way if set up by any thinl party. There appears to be nothing to recpure a garnishee to iile any such notice of defence, denial of indebtedness, or admission of liability as against the primary debtor. It would liave Ijeen well had there been such a rei[uirenicnt made. In the nbsence of any admission of li«bility or payment of money into t'ourt, the primary creditor may fairly assume that there is a denial of indebted- ness, and come prepared to pruve it. In such a case, where the gar- nishee does not dispute his lia- bility at the trial, it would be for the Judge to consider who sliould pay the costs thus occasioned. Should there be no defence by the garnishee, could they be fairly charged against the primary debt- or ? Under section 131) it might be argued that the garnishee is not liable for them, as he did not set up anil defence. Kut does he not occasion the very same costs as if he/uvl srf u/; an untenable defence? A defendant's neglect to tile an ad- mission, in the case of an ordinarii summons, makes him liable to the costs the plaintiff is ])ut to in prov- ing his case at the trial, even though the defeiulant makes no defence. Wiiy should not the same penalty l)e imposed on the garnishee, who is in reality the defendant in a suit, the primary debtor being the (nom- inal) plaintiff? It would save delay and ex})ense if the garnishee were in all cases compelled to tile a stiite- ment of some sort, as to how lie and the primary debtor stood towards eacli other, in lieu of or in aildition to the set-off or statutable defence tile summons calls upon him to make (see Forms 4:J uid i\). [c) I'ndur Ikule jVJ the warning to the gariiisiieo (Konn 12) is to be embuseil on the summons (Forms 4.'1 and 14), as well as on the attach- ing order. This warning howjver, is not referr'id to at the foot of Forms 43 and 44, as it should have been. Sec. 138.] ATTACHMENT OF DEBTS. ,i i alreidy provided for) (d) service of the sum- wnd debt un- moiis on the garnishee shall have the effect of attaching and binding in his hands (subject to the rights of other parties) (c) the debt sought to be garnished, from the time of such service until a final decision made on the hearing of such summons ; and any payment of such debt by the grrnishee during such period, to any one other than the primary creditor, (/) or into Court for satisfying his claim shall, to the extent of such claim, be void, and the garnishee shall be liable to pay the same again to the ex- tent of such claim, ((/) to satisfy the same, unless the Judge otherwise orders. (Ii) .'^)2 V., c. 23, s. 9. 138- If judgment be given for the primary and after . , . , , , , "^ judsnnent. c.i '' " against the garnishee, the debt gar- nished shall, unless the Judge otherwise orders, continue bound in the hands of the garnishee (i) to satisfy the claim of the primary creditor j and payment in such case by the garnishee of {(I) See section 128. ((') Tliis appears to refer to pm- oeerlings authorized by section 142. The ' ' riglits of other parties, " how- ever, cannot affect moneys thus liound Ly service of a sunnnons in any way. i bese riglits will (if they liave been proptrlv biought before the Court) be adjudicated upon at or before the final d'jcision ; and nothing but an order from the Judge can undo the etlVct of the Hervice of the garnishee summons. An ajjplication for that purpo,se may, however, be made at any time (see section 14"2). {/} As already observed, ])ay- ment "during such period " to the primary creditor is foibidden, ex- cept as provid<'d fur by llulv ilS. ((/) That is, provideil the claim does not exceed the amouut so paid to any other person. (/i) Which he would do, if it turned out that nothing was due from the ])riniary debtor to the lirimary creditor, or that nothing was rightly due from the garnisliee to the primary debtor. (/) Section 135 (as qualified by I'lule 58) already provides that if judgment be given against the garnishee, he shall pay the amount due into Court, or in default that execution may issue against him. This section, therefore, effects no- thing more than that does. It does not afford any stronger hold on the garnishee. \\ 132 THE DIVISION COURTS ACT. [Sec, 139. 11 ■^ i:.l= 11 I Costs. Sei' link '■■!. such debt to the extent of such claim, either into Court or to the primary creditor, (j) shall, to that extent, be a discharge to the garnishee, as between him and the primary debtor ; and any payiuent thereof, otherwise than last afore- said, except by leave of the Judge, shall he void ; and the garnishee in such case shall be liable to pay the same again (k) to satisfy the claim of the primary creditor, 32 V,, c, 2,3, s. 10. 139, The garnishee shall not be liable for the costs of the proceeding, [1) unless and in so far only as occasioned by setting up a defence which lie knew, or ought to have known, was untenable; and, subject to this provisi ,ne costs of all parties shall be in the disci-etion of the Judge, (m) 32 V,, c. 23, s. 11. (./') Seu iioti' (/) to last section. {k) rrovitU'll it (lid not exceed the amount of tiie iiriniiiry creilit- or's claim, (/) See section 1,1() ('2), note(/<). The <,'arnisii(e is liable, liy Itiile (!1, to the costs ot'exccution mid baiiifl's fees, should the iirimavy creditor be obliged to issue executionagainst him, (?«) Then- is some diversity of practice aiiiou<,'st tlie .Fiidgi s, as to the costs incurred by a jiriiniiry creditor in garnishing ;i debt wliiih exceeds in amount the sum neces- sary to cover both sueli costs and the amount remaining unsatisfied on the judgment when garnishee process is sued o\it. It would seem reasonable in such case that th'j-".' costs should be jiaid out of the gar- nished fund ; this takes notldng from the garnishee, as he still owes a balance to the primary debtor, and it would be unreasonable either to make tiie primary creditor pay for recovering money due himself, or to make sucli costs recoverable from the |vriniarydel)tor, who may be as- sumed, under such circumstances, to be execution proof. If the amount coming to the primary debtor fiom the garnishee is sullicicnt to pay the whole debt and rdsts, it is liut reasonable that till' itriniary creiiitor should be allowed all taxable costs he has been put to in the matter. If it be a case (i/tir jiahpnrnf, it is the non-pay nieut of the judgment by the debtor that makes be subse- i[uent proceedings necessary ; and the primary creditor sli.iuldnot be )iut til any expense in taking these jiroeeeilings, any more than he would for the costs and fees in- curred in enforcing a writ of exe- cution. If it is a ease bi-forejudijment, the ])rimary creditor would be entitled to be kept free from any costs, if i'ii li l\ It Sec. 140.] ATTACHMENT OF DEBTS. 133 140. Judgment shall not be ffiveU either summons and ~ memorandum of against the primary debtor or the garnishee particulars mod. imtil the said siinimons and memorandum, with tliere was a fund to pay tliem out of, provided lie hatl acted in good faith throughout, and that his acts were such, and such only, as were necessary for his own protection. .So much for what seems to be the most reaxonable view of the matter; but there are many unreasonable things in tliese garnishee clauses ■which are verj' loosely drawn, so much so as to be almost unworka- ble, were it not for the rules passed by the Judges. On the (question un- der discussion a number of Judges hold that whatever may be sai(l as to what ought to be the construc- tion, by the i)eculiar wording of sections 128. 120, 135, 137 and 138, the (h'ljt only and not the costs are secured to the primary creditor; and that for the payment of that otilfi is there a discharge to the gar- nishee, and a legal attachment of the debts ilne by him to the pri- mary debtor. A critical examina- tion of these sections gives much force to this view. The only provision for costs is that set forth in this section, The first part of it i)rovides that the garnishee shall not be liable for costs of the proceedings (either out of the debt due by him to the pri- mary creditor or otherwise, if the latter view is correct) unless he has needlessly set up a defence which is untenable, and then, as a matter of course, the Judge would onler him to pay the costs he had occasioned bj' his defence out of his own pocket; and, subject to that provision, the costsot all the pai ties are in the discretion of the Judge. The only ca.ses on this (piestion of costs are Jiaid- of Montreal v. Yarrinfiton, .3 U. O.'L. J. 18.5, and Evans v. Erann, 1 C. L. J. H», 51. Their result is in favour of allowinji such costs in the Superior Courts. But we have to deal with the words of the present Act ; and by reduc- ing the (piestion to a legal issue, it comes down towhatis the meaning of the words "extent unsatisfied on such judgment," .sec. 128, and "claim" in sec. 138. As between the primary debtor and the gar- nishee, there is no discharge to the latter on his paying the primary creditor beyond .such sum as is re- jjresented by those words, and these words clearly do not include costs: rrijo, there can be no costs allowed. It is no uncommon thing for a garnishee, when served with an attaching order or a garnishee summons, to pay into Court the "amount unsatisfied," which he finds out from the document served on him. A primary creditor is usually content with this, and ap- ])lies to have the money paid out of (Jourt. As nothing has been paid by the garnishee towards the costs of the.se la.st proceedings, it seems as though the creditor must pay them himself. It is clear he cannot come on the primary debtor, as the " amount uiLsatisfied" on the judgment against him, as declared in the primary creditor's own sum- mons, has been paid by the primary debtor's debtor (the garnishee) for him. A garnishee has no right to any costs for attending at the hearing of the case, unless it was necessary for him to appear. If it was .simply to admit the debt, he could have done so by notice to the clerk. Where, however, lie does not owe sufficient to pay the primary credit- or's claim, or where the debt is not yet due, he is warranted in attend- ing to see that no imjiroper advan- tage is taken of his absence. 134 THE DIVISION C0URT8 ACT. [Sec. 141. No cxt'cutioii till (farnishcc'sdebl due. Applitatiim to discliiirjfe dftit from attiu'h- tlUMlt. See Rules r,j,A-c. an atfidavit of the due service {n) of both on the proper parties, are Hied, unless the Judge for special reasons orders otherwise. 32 Y., c. 2H, s. 12. 141- No execution shall in any case issue to levy the money owing from any garnishee until and so tar only as such money has become fully due. {o) 32 v., c. 23, s. 13. 142. 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 pay- ment thereof by the garnishee, apply to the (/i) It would be tliHicult to lay down any particular state of facts whicli would show the application of this section. As a general thing, nothing can he done till the sum- ujons and other ])apeis wliich form the record arc l)efore the Court. It sometimes happens that thougli a party lias been served, tiie sum- mons is not returned in time from a "forrhfu" Court. Thougli this should be so, if tlie party served appears, there seems no good reason why the case sliould not be gone into if the clahn is before tlie Court, and is not disputed as being tlic one annexed to the summrms. The " f^HC service " is eitiicr that upon the parties niinicd in tiie summons, or that upon some otlier parties, or in some other way as directed by the Judge or allowed by him at the trial ; and it must be made in accordance with tiie mode laid down by section 70 and following sections, and by Itule 5.3. The probable purjiosc of tliis sec- tion is thiit tlie garnishee may be safe and have the record to refer to, so that he may show his dis- charge fiom the debt by operation of law, not having a receipt from the primary debtor. (()) This section limits, as being a more exjiress ena('tment, the dis- cretion allowed to the Judge by the latter part of section l.S.l. The wording of that section ( which re- lates to cases where tlie ptimaiy creditor's claim is not a judgment) might well on this point have fol- lowed that of section I'.VI ; which is, as to the ca.es it api)liesti>, very similar to the present section. This section provides against any injustice to the garnishee. The gariiish(!e is not to be allowed to siid'cr injustice or inconvenience, or have bis original liability as to time of [)ayment changed by the circumstance of the debt being at- tached. If the nniount found due by th(! garnishee should be payable by in- stalments, it will be neeessaiy that the judgment and the entry of it in the I'rocedure Hook should con- form to this fact, and state when the amounts are severally to be jiaid ; otherwise there might be some trouble in issuing more thau one execution upon it. Sec. U3.] ATTACHMENT OF DEBTS. 135 Judge for an order (which the Judge is hereby authorized to make) to the effect that such money or debt be discharged from the claim see Rule co. of the primary creditor ; and thencefortli such money or debt shall cease to be attached or bound for such claim ; and sucli an application and such an order may also be made, if the Judge thinks Ht, after such money or debt has been paid over Ijy 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 such debt or money, whose payment shall not be alfected thereby, but shall be and remain an effectual discharge to him. (p) 'S'2 V., c. 2o, s. 14. 143- ('/) If the Judge, on the hearing of any security from , , . , . , ,. priinarvcredi'or summons under this Act, or on special appli- {/)) This is intended to gn.ard against some of the ditlicultics which would otiierwise arise from the hirge powers given under sec- tion 1.'];') (see note thereto). lUile 5[) provides for tlie mode of nialving this application, and gives additional protection to the primary debtor by enabling liini to call npon the primary creditor to siiow cause why ho sliould not pay over the money to him. The rule is so worded as to end)race not only tliese parties, but any other per- son who may be inter-sted for or through them, or otherwise be en- titled to apply for lelief, or be liiible to repay the money paid to him ivecording to the circumstances of each particular case. This section is a very beneiicial one, inasmuch as it does aw.ay with the necessity of waiting till the re- gular .sittuius of tlie Court, until which time the money must other- wise remain tied up. A man whoso wages may be attached, on which the support of his fannly depends, has thus an opportunity of at oni:e testing the primary creditor's right to take such a step. The applica- tion will, by Rule 59, be by sum- mons, and wouM be similar to or- dinary chamber applications in the higher ('ourts. It would call on ((// l/ii' other piirfii'.'< to the proceed'- ings to show cause. If the applica- tion were madcafterthe garnishee had paid over tin; money to the primary (creditor, it would be use- less to call upon fii)n any further, as by such payment he has been effectually discharged, unless in- deed he has done so without an order from the .fudge. iq) This section is of the same intent as the previous one, viz. : the protection of the primary debtor (see note thereto, and note to sec, 135). ill m n ! 130 THE DIVISION COURTS ACT. [Sec. 144. RhU 60 and Form/,7. See Riili' nil and Form ', cation for the ])urpose, thinks proper, he may, before givinjf judgment against the garnishee, or at any time before actual payment by the garnisliee, order sucli security to be given as may be a])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 i'or such repay- ment ; 2. Such bond shall be to the Clerk by his name of oOlce, and shall enure Ibr the benefit o^ all i)artios interested in or entitled to the money, and may by order of the Judge, 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, (s) .'52 V., c. 23, s. 15 (1). ciaiims""''^""^"' ^^^- ^" ^^^^ any one other than the primary creditor or primary del)tor claims to be entitled to the debt owing from the garnishee, by as- signment thereof or otherwise, (f) the Judge* (r) Rule tJO ileclares that this bond shall be approved o)' by the clerk. (s) For further particulars as to this bond, see Rule (iO. It is pre- sumed that suit would be ordered to be brought on it in tlic Court of which the obligee is the eleri<, sec- tion 65 to the contrary iiotwitii- standing, inasmuch as tiie suit would be brought "inthcnninr of' the ckrL" and uot bi/ the clerk. By section 207, however, leave is given to sue on any bond given in the course of any proceeding under this Act in any Division Court of the county in which tlie bond was executed, and that no matter liow liirge tlie penalty in it may be. Tile person benehcially (^ntitletl would have t(t ajiply for an order for the delivery up of the bond to him, when it is likely the Judge would direct in wliat Court it should be sued, having in view the lessening of the costs as much as possible. (0 In the case of an assignment of the debt to a third party, if tlie assignee lias not given ncjtice of it to the garnishee before the money has been paid into Court by him. Sec. 145.] ATTACHMENT OF DEDTS. 137 when a(lj»idicatin<^ in any of the cases afore- said, or by calling the proper parties before him by sunnnous for tiie pnrpose, may intjuire into and decide upon such claim, and may allow or gi'B effect to it, or may hold it void as iigainst the prim.'iry creditor for being a i'raud upon creditors, or otherwise, as the jus- tice of the case may rec^uire, (a) and for such ])urpose he may require the attendance of such parties and such witnesses (their con- duct money Ijeing first paid) as he may tliink necessary, (c-) :V2 Y., c. 23, s. 15 (2). 146. The Judge may postpone, or adiourn-'>i'i««'ii:vv P"st- *^ ^11' ^ |,„„g „r adjourn from time to time, the hearin^'- and other pro- procvedinas. ceedings in all garnishee cases, to allow time lie wuuld 1)6 obliged to file ,a notice of claim witli the Tierk, or apiiear at tlio liearingaiid set up his claim. 'J'he former is the safest mode, as a siil)se(|iient assignee or tither claimant might, before the (.'ourt sat, make an application under this section, and procure an ad- judication in his own favour, or under section 14'2, with a view to having the attaching oidei- dis- charged. («) The powers here given, to- gether with the course of action laid down for them in section r>4, confer upon Judges as full and ample ]iowers, both legal and e(|uit- able, of dealing with all cases com- ing before them under this Act, as it is possible to conceive. It has been said in an earlier page that while in cases coming under these garnishee clauses, claims l)etweeii the garnishee and primarj* debtor may bo inquired into no matter how large the amount involved may be, yet as soon as an indebtedness is shown sullioient to satisfy the claim of the primary creditor, further in- quiry should cease. It would thus seem as though the Court was in reality only dealing with an amount within its jurisdiction ; but to give (■fleet to such an adjudication, it may be necessary toexercise powers which are generally considered to be only within the jurisdiction of the Court of Chancery. There have been eases in which the magnitude of the claims at stake was so great, that the Judge either refused to proceed further with the inquiry, or suggested the propriety of filing a bill in Chancery, in order that the case niight receive that full consideration which its importance merited. (/•) It will not generally appear what persons are interested other than the primary creditor, debtor and garnishee, until after the gar- nishing process has come before the Judge. The next section enables him to take the necessary steps to bring all parties properly before him. 188 THE DIVISION COUHTH ACT. [Skc. 145. ]■ ^ j Ss? iilii for giving oinittotl notices of defence, or to pro- duce further evidence, <»r for uny other pur- pose ; (jr) and may re(|Mire service on, and notice to, other or additional parties, and may prescribe and devise fornjs I'oi' any proce ediufi, and may amend all summonses, memoranda, claims, accounts, notices and other papers and j>roceedings, and c()[»ies thereof, as justic e may reciuirc. (,/;) .".2 V., c. 2:!, s. 10. (?/•) (ircat hanlsliiji u\i\y often result toil piiiiuiry delitor, wIkou w<"ij,'(s are tic-1 up foi' si'Vfial montlis, wliile a gaiiiii-liec, iilln r from ncgligoiict! in giving tlio jiro- per notice of dcfiMice, or witli the object of getting longer tinn', ob- tains a postiioueuient of tlic trial till a latci' sitting. No doubt, the inonicnt wv/r/cs arc attached, tlic Judge, on an a]ndication undi r sec- tion 112, would dischaice the at- tachment, exccpl as to any excess over 82.") ; but it woulil hiive to 1 e estiiblishcd to the satisfaction of tlie Judge, and on notice to the primary creditor, that th" ■ be taken in its connection \ particular clauses of the sta *,- ferreil to, a.id cannot be con- as giving a .ludge power to gi new trial after the statutory time when, in his opinion, justice woubl seem to recpiiro it . That he certain- ly could not clo, though this ease would seem to be an authority to this extent, that under certain circunist.mces, when the suit is rightly before him, a Judge may interfere to prevent injustice, even red nil a , Skc. 147.] AUBITHATION. 1:59 146. The Clorks of tlio several Division im.i Atuch iiu'hl Itouk. Courts shall keep in thoir respocti/e offices a Debt Attachment Book, according to the form proscribed by the Cleneral liules (tr Orders from time to time in force relating to Division Courts, iy) in which shall bo correctly entered the names of parties, the dates, statements, amounts ami other proceedings under this Act, {z) as indicated by the said form, and copies of any entries matle therein may be taken by any one on application free of charge. 32 v., c. 2:;, s. 20. AUIHTHATION. {(l) 147. The Judge may, in any case, with the Ji»J»e may <.r ^ . . . (lor cause t.i b( consent of both parties to the suit, or of their bo though the party applying for re- lief may not have .strietly brouf^ht hiniseh witliiii the words of tlie statute as to time and manner of applieation. Under no eireuni- >tances, liowever, ean a new trial he granted as between primary ere- • litoraml primary debtor, after the expiration of fourteen days from the day of trial. But aeeording to the ease just <'ited, there is nothing to prevent a Judge granting a re- lu'arinjg as between the other par- ties, eitlier original or added, if he tliinks the justice of the case re- quires it. (11) Attention was called by the .author to a defect in the form given by the st;itute from which the pre- sent ctioh is taken, in that it diil not provide a column for the date of the service of the summons or order. This is now remedied by the lorm given by the Judges, whicii also, in accordance with Hnle (>'J, is t' ahow when tiie attaching or- der or garnishing summons tirst issued (see Form ti). (;;) The words "this Act" were used in tlie original statute, wiiich was composed of little else tliau these garnishee clar.ses. Here, if taken literal);) , ciiey would refer to tile wiiole of the Division C r.rts Act. In tlie revision of the statu te.-», tluiy should have been made to I'ead " under sections 1'23 to 145 of this Act." (a) Suitors do not often take ad- vantage of these provisions, fnnling generally that there is more satis- faction in tiie decision of an ex- perienced Judge who has power to decide the dispute upon e(iuitable grounds, than in the award of an inexperienced layman, wlio, with the best intentions, m.ay possibly make an award that must in the end be set aside by the Judge. In matters of long and conipiicate«l accounts which the Judge has not u4 140 THE DIVISION COURTS ACT. rSEO. 148. I referred to arl.i- a^Cllts, Ol'doi' tllG saUlG, witll 01" witllOUt Oilier tratioii. ■- .-,. 1 i'/i\i- inattt'vs 111 dispute between such parties (w) beii'g Avithiii tlie jurisdiction of the Court, to be re- ferred to arbitration to sucli person or persoiis> and in sucli manner and on sucli terms as he thinks reasonable and just. C. S. U. C, c. I'.J. s. 109. oi.iyrovn.ai.ie 148. 8uch refcrencc shall not be revocable with Jiul^'o's as- • , , n j i sent. hv either party, except with the consent ot tlie Judge. C. S. U. C, c. 19, s. 1.10. Awar.it<. 1.0 in- 149_ The awai'd of the arliitrator or arbitra- tereil us jiidjr- """'t- tors or umpire (c) shall be entered as the judg- tinie to exiimine, and as to wliirli then i.s in tln' Suiierior Courts a provision tor a coniiiulsory refer- ence, the service's of ;iii intelligent arbitrator would he very usel'ui. I a that elaps of eitscs, and in eases gn.vving out ol' family (juarrels, when the l)i(kenn,i,'S and exposures in open Court would embitter the !)artios ami perhaps alienate them or life, the adjustment ))y arbitra- tion may he well resorted to. {!)) There is no express jirovision for compulsory reference in the Division Courts as in the Suj)e- rior Courts, and so referer.ce to arbitration can only be had by consent of parties ; unless, indeed, the .hid^'e might feel himself war- ranted, under section 'J44, in direct- ing a reference as in the Superior Courts; and it would certain') seenj more in the inter»>:.ts of speedy justice to suitors in the Division Courts that long accounts should be referred rather than entered into at the rjittingb of the Court where u number of o;>.ses are to be dis- po.sed of. When consent is once given to a reference, tiie .ippoint- iiient of an aibitrator, and tlie terms, &c., belong to the Judge. Should the reference be of mat- ters in the sail, icif/i othi-r mattfrg in di-i/iii/i', and the arbitrator found the ((■/(()/(' to be beyond the juris- diction of the Court, he might, without going beyond his ])OW('rs, ente' upon the matters in the suit onl^ . or, as some think, those and so much of the olfier innttern as would, altogether, not exceed tl)' jurisdiction. A f(Uin of reference containing all necessary provisions, togethi'r '.a fuU instructions to arbitra- t.»rs, taken from that in use bj'the senior and junior Judges in the county of Simcoe, is given in the api»endix of forms as I'orm I. It is very c. n])>lcte, ami will be found very useful. ((■) Form 3.') n gives a form for the ap]iointment of an um])ire. Where a ease is referreil to the award of two persons, and in case of disagree- ment, to the decision of a third, either as an umpire or third arbi- trator, tile parties have the right to insist ui)on producing befoi-e him all the evidence given before the two arbitrators, and to state their case once again to him (la re Soulr.s V. Morion, I Prac. U. 24U). It ia Sec. 150.] ARBITRATION. 141 ment in the cause, and shall be as binding and sec ruU iso. effectual as if j^'iven by the Judge, (d) C. S. U. C. c. 19, s. 111. 150- The Judge, on application to him within Jimtre may set fourteen days after the entry of sucli award may, if he thinks fit, set aside the award, or may, with the consent of both parties, revoke the reference, and order another reference to be made in the manner aforesaid, (c) C. S. U. C, c. 19, s. 112. therefore better citlier to iippoint one jierson, or. in case it is desired to have the voice of a majority, to appoint three persons a.s arbitra- tors, who will thun jointly hear the whole case from the bcginnin<,', and thus save time and expense. It is said that where two arbitrators dis- af,'ree in some items, and during tlie investigation call in some om- as an uiiipiri; to give his ()i>iiiion, and then ado[)t suih opinion as thei'' own, he need not sign the award {/a re (Juii/ii/v. MrMitlh n, .•} I'. C. K. 124). 'Thia practice, Ih.w- cver, is not recommended, as it tends to weaken the sense of re- sponsibility on the jiart of the arbi trators to whom the case has been entrusted. The arbitrator, or all of them if more than one, must notify the par- ties in writing (see Korm JSo h of the timi' and place for i)roceeding on tiie reference ; and in ease of tiie absence of citiier party, after proof of serv ice ol'tlie a[)pointment, which shoidi' le [)crs(iiial, tln' hear- ing may, if the arbitrator thinks proper, proceed in ids al)scncc. Section IT) ))rovidcs for issuing summonses t.> witnesses in arbitra- tion eases. When a suitor desires to compel tlie attendance of a wit- ness, he should taketiie arbitrator's appointment to the clerk, who will thereupon issue a summons to the witness, whi( h may be as in Form 39. The arbitrator cannot enlarge the time; for making the award, which will l)e tixed by the order of reference, uidess the latter gives him power. Hut this will generally be provided for by the Judge, as it often jirevents a waste of time and tiie expense of a fresh arbitration. The enlargement s'>ould be enIlf^;.^sioIIS. Seeltiilex-iO,l,n, and Ftinnt, 10.',, 151. Any of such arbitrators may administer an oath or affirmation to tlie jiarties, and to all other i)ersons examined before such arbitra- tor. (/). C. S. U. C.,c. 19, s. 113. CONFKS.SION.S OF I»KBT. 152. Any Bailifl' or Clerk, before or after suit commenced, may take a confession or acknow- ledgment of debt from any debtor or defendant desirous of executing the same, wliich confession or acknowledgment shall lie in writing and wit- nessed by the Baililf or Clerk at the time of the taking tliereof ; nnd upon tlie production of such confession or acknowledgment to the Judge, and its being ])roved by the oatli of such Bailiff or Clerk, judgment may bo entered thereon, {g C. S. U. C, c. 19, ,s. 117. and tlio practice shoiiLl be similar to tliivt oil 1111 iipplication for a new trial (see Jlules 142, 144). in some cases referred liatk to the arbitrator : if the arbitrator has oxceedeil bis authority or iiiiseon- (lucted himself, or made a mi8taij>osi'.c party to en- able him til ojipose it if he sodi'sires, (/') Sec Form 110 (m), and Rev. Stat., Cap. l)taiii final Judgment under the Act of 18()<).''' The rule gees on to declare that " the co.sts and dis- bursements of transmitting such confession to the Judge to obtain tilt' Older for entering of judgment >liall be costs in tile cause." Some .liidges, under this last clinise, as- ."suine the power to make orders for the entry of judgment at once upon tlie production of the confession. 'I'lieie is nowhere any jiower ex- pressly given to make any sucl. order. It almost looks as though this j)ower were intcniied to be given, but was omitted ; not having been given, however, it is doubtful M liethi'r a .ludge would grant such an order, which would have tin; e'll'ect of putting the ilefendant, wiio pi'ol)ably signed the confes- sion to save costs merely, in a position of having execution issued against him befi'ic the time when «ui'li a contingency wouhl be [xis- sililc, even under the cxp' itions procedure of the Act of lS()'.t, On the other liand, the plaintitl' should not be placci! in a worse position by the defendant confessing the action ; and it m.ay be argued that the rule seems to take it for grant- ed that as there is a confession the act iiiust be taken notice of, and tliDt under section ].o2 such confes- sion must bo produced to the Judge before judgment can be enteied on it (by the clerk) ; and to jirevent the necessity of following out the old practice, which rendereil it necesi-ary to make tlie application "at a Court holden,"&c.. this rule provides for transmitting the con- fession to tire Judge for an order to enter such judgment, as tiie clerk liimself cmild have done if there had been simply no defence, without any confession. IJule '2<) (which provides for the case of an action commenced by special summons where there are several defendants, some of whom have l)ecn served but have not given a disjiuting notice, and others have not been served but have con- fessed) certainly gives a direction to the clerk to jnoduce that con- fession to the Judge for his order for judgment, but does not afl'eet the i>oint uixler discussion. I'"orm No. 104 gives a form of confession after suit commenced ; No. 10^, the allidavit of execution ; No. ")!<, the minute of judgment under I'ule 2t) ; Nos. K and K", judgnicuts before and after action. (/<) See Form 108. 144 THE DIVISION COURTS ACT. [Sec. 154. r .IikIkc may ap- piirtioii rostK. .lll(l(,Tlll'flts nut to tic rcviTKi'd COSTS, (i) 164. (j) The costs of any action or proceeding not otherwise provided for, shall be paid by or apportioned between the parties in such manner as the .Fudge tliinks fit, and in cases where the plaint ilf does not appear in person or by some ])erson on 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 f<»r liis trouble and attend- ance, (//) 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 tiie event of the action, and execu- tion may issue for the recovery thereof in like manner as for any debt adjudged in the Court. C.S. U. C, c. !'.», s. 114. ' IMiOCEKUIN'GS NOT TO UK SRT ASIDK FOR MATTKIt or F()I!M. 155. No Older, venlict, Judgment, or otiier proceeding hiul or made concerning any matter only to casis wliurc tlic Court has Jurisdii-tiuii : foi- wlien; the (/unit liivs lui Jurisilictioii, the .ludj^e has no |Ki\ver to awaitl costs {Fnr-ir V. Folliirii'ill, 14 C. li. '2!t."> ; I,(tw- I'ord V. I'lir/ri'li/i, '20 L. .1. N. S., Kx. 1(7). (^1 (<■) Thi- onse of cos-' ^ in suits of the proper conipctcnie of hivision Courts, brouglit in Co\inty Couits or a Superior Court, is provuled for by Itev. Stiit., <■. i>0, s. :U'>, i vision Courts, by sec. '2Xi of tliis Act. As to tlio clerk's dutit's in taxing costs, see sec. :58, Rule 170 and Form H. For judgment against ilefciidiiiits for plaintitls, costs, preparing lor trial, .see Form Q. (j) The following section applies See sees. 84, S,'). (/) In whidi case the.Fudge would proliably give judgment of non- suit (see note to section 81). (//) It is not usual to allow more than taxable costs, but this provi- sion will enable a Judge to make some re<;ompense to a defendant who has been iiarassed by uune- ccHsary litigation. Sec. 156.] JUDGMENT AND EXECUTION. 145 or 'liiiiu under this Act, shall he (luashed or for want of vacated for any matter of tonn. {in) C. S. U. C, see iMe m. c. ID, 8. 191. JUDGMENT (w) AND EXECUTION, (o) 156. In case the Judge makes an order for where money the payment 01 money, and in case ot delaultsuunt to order, of payment of the whole or of any part thereof, (m) That is, if theproin'rinirtics are before the iimpcr trilninal (see Kcant V. Stahnan, IOC. V. 435 ; .see also Hule 143). (n) As to tlie nature, elleet ami duration of a Division Court judg- Tuent, see note to section 7. (o) Before considering the sub- ject of executions generally, it will lie necessary to see what provision has been made to regulate any conflict which may aiise as to priority between exec^utions issued respectively from the Superior or County Courts and Division Courts against the same debtors. Hev. Stilt., eap. (iti, sec ;5;{, en- acts that, " Where a writ against the goods of a party has issued from any of the Superior or County ( 'ourts, and a warrant of execution against the goods of the same party has issued h'om a I )i vision (,'\ said: •' The writ (of execution) indeed had issued in .lanuary, but that ilid not signify ; it could not bind the property hiforr it came into the IxilHirn kanils, if, indeed, it could before (in orluiil staurc was made under it, for it is not to be assumed that an execution from an inferior court binds from the time of its delivery to the bailiff." Ciuler section ItJ of the Statute ot Frauds, writs of execution bind from the time of the delivery there- of to the sherillor coroner to be exe- cuted. This provision obvion»ly applies only to writs issuing I'roui » )l\ M m\ 'ill ■T~1 Ml ■,\ i hih [If 14() THE DIVISION COURTS ACT. rSKO. 15(1. exocutinii taililfs of the Court, (;•) who by virtue thereof Superior or County Court, and docs net affect Division Courts, whicli arc inferior courts liavin^ only a atat itory existence, and whose otii- cers have only the powers express- ly given liy statute. Sherifl's, on the contrary, are ollicers having gi nit i)owcrs and piivileges under the Comn.on Law ; the provision of the Statute of Frauds in fact lim- ited the foi iner opeiation of writs. There seems to be noConinioa Law right, as there is nothing in the statute, which would give 1 ailill's povver to hold goods under execu- tions from Division Courts until they had actually taken possession of them in the manner authorized by the statute. There seems there- fore to lie little doubt, and it is the generally received opinion, that Division Court executions bind from the time of nctinil sriziirr only. A different rule would doubtless ])revail in cases of a conllict be- tween sherill's and bailill's under the enacinipnt above referred to. Mut it i.s thought that that provision cannot have the effect of alterim' or interfering with the law wiieie there IS no such contlict. It may Iw that as Division ('<'urt judg- ments now have the force of jiidt, ments of Courts of Kecord (section 7), the writ would have as large an authority as Superior (.'ipurt writs, but probably not. In Kii'^land Superior Court writs oidy bind the debtor's property, ac- cording to recent legislation, lioni (the time of seizure, It has been held in relation to these judgments and executions, that sec. T)!) of the Insolvent Act (if ISO!), which sjieaks of the "issue or delivery to the Sheriff of any writ of execution," applies to Divi- sion Court executions, the word sheritV in that connection being held to include a Divi.sion Court bailiff (I'ulln-sim v. Mr.Carthj, 35 U. C. K. 14). ( ji) It used to be, iind still is with many, the impression that all a jilaintitl' has to do to recover a claim is to leave it with the clerk, and piove it if necessary at the trial, and that the clerk will, when the j)roper time arrives, issue exe- cution foi' the amount of the judg- ment. This is ((uite an erroneous view, and such a practice would lend to much mischief. All that the clerk has to do is to issue; execution lU'ter default, at the n-- r/ii,:sl of the judgment creditor. Some deiks iei|niie that suitors should give dii(;ctioiis in writing, and some keep (trder books for the purpost>, a system which saves mistakes and disputes, and method- izes work. Clerks shfiuld ()eware of Verbal onlers (sec note (»/•) to sec. 7'.' ; see also note to liule 77). (e executeil, or such other bailill" or i)erson as the Judge or clerk may order (section 74 and Eulc 34). As to suits bionght in Courts nearest defendant's resi- dence, see section (iS. The English County Court I'ules require the bailitl" to attend once at least every day at the clerk's otficc to receive writs, Ac. A simi- lar practice is followed in many Courts ill this country, with much advantage to otticers and suitors. As a p\iblir; othcer, .Judges doubt- less woulil, without an order, define hrielly the duties of haililfs, autl various sections and rules providi; for some of them in respect to writs of .//. ,/W. delivered to tliein for execution, and will be found on lefereiiec thereto (see also note (, decided that a judgment in a, l>ivisionC'i)urt may be set-olf iigainsi a judgment of a Superior Court of llecoid. This was. JKiwcver, allowed under the e(juitMliIc jiiiisdiction of the latter Couit.and w.is not an adjudication upon the prcM'iit section. It would be necessary, it is thouiilit, that the .Judge should make an order, after notice to the opposite party, before this se(;tii)U eoulil take effect, as there might be good reasons why the set-olf sliould not tiike place, or why some special order slmuhl be ma""ty «xe.ni. ' tioii ohtainablo County without satisfyin;.^ the judjTment, the '""""*» *^"""'y- County Judge of the County to which such party has removed may, upon the production of a copy of the judgment duly certified by the Judge of tlie County in which the judgment has See Ruif8,v„m. been entered, order an execution for the debt and costs, awarded by the jiulgment, to issue against such party. {■>') C. S. U. C, c. 19, s. lo7. 160. If the party against whom an execution if party before sale pays to Clerk has been awarded, pays or tenders to the Clerk ">• iiaiuff of . . : Court out of or Bailiff of the Division Court out of which the which execution (v) Except in oases where the plnintifT lias brought his action in a Division ('ouit, the place of sit- ting.; whereof is nearest the resi- denc(^ of the ilufendant, umh-r tiie provisions of L'7 & 28 Vict., axp. 27, see I (now sec. (!■'{ of tiie present Act); under whicli circumstances, the writ may be executed in the county in which defendant resides as well as in the county in which the judgment was recovered. See also sees. 74 and 156, and notes thereto. (.'•) This section is practically superseded by section lf>l. \\y llule 1G2 this section cannot be acted on when the proceedings have id)ated, or in a case where no warrant of execution or judgment summons shall have issued on a judgment more than six years old, unless such judgment shall have been revived. ! "^ If '<3 -..Jl a i fS(! \mv m 150 THE DIVISION C0UHT8 ACT. [Skc. Ifil. iHtm.1, extru- ('xiHiutioii issiit'd, (//) bc'loro .III actiuil sale oi' tidii ti> lie HMpir '"-■''«^''- liis ^'oods and chattels, siieii sum of money as albi'csaid, or .such part thereof ns the party in \vho.se favour the execution ha.s been awarded agrees to accept in full of his ilebt, togetluir with the fees to be levied, tiie execution shall thereupon be superseded, and the goods be I'cleased and restored to such party. (J. S. V . (J.> c. \\\ s. l:'.H. Clerk of iu.v igi, Tiie Clerk of any Division Court sliall, Cdiirt 111 which **** J t t (^"^" ^'^^ •'^oGnt), having an unsatisfied Judg- nu'ut in his favour in such Court, ])repare a transcript of the entry of such judgment, ('0 i^'i'^ any dthcr Hivi Bii'ii Cimrt. ((/) Even without this ])r(>visioii, (tayment to the jn'oiicr ollicer would \w ]ira('tically it wtiiy of all jiro- ct'e(liii{,'s. If proceedings were taken under section 74, it would ]h' most iniip- projiriate to pay the huilitl of the Court out of whieh the eNecutioii iHBued, as he would have notliiiij,' to do with the matter : hut in such isase the debtor eould safely jiay tlie l)aililf holding the writ, as he and his sureties are respoiisilile under section 7r». {(i) No transcri[it under this sec- tion, or copy of judgnient under sec. If)!*, can he issued or acted on when the j)roeeedings have abateil, or in a case where no execution or judgment summons shall have issued on a judgment more tlian six years old, luiless such judgment has been revived (l{ule lii2). By liule 1,5(), no execution or jiroccBs shall, without leave fif a .Judge, issue on a judgment more than six years old, unless some jiay- inent has been nnule within twelve montiis previously. .And with re- spect to this rule, if a judgnient is more than six years old, it would be advisable tiiat the transcript should show that a payment iiail been maile cm tlie judgnient, or that an (jxecution or judgnient suminous had liceii issiu^l within a year from tlie time of obtaining the judg- ment, as the ease might lie. If one or other of these facts did not ap- )iear, til" v,I"rk, liefore acting upon a judgn.ent, siiould be satistied that the liavi' of tiie .ludge, ill whose coiiiitj the jiidj;iiient was origin- ally recovered, had been obtained. It is tiionght by sonic, to whose opinions much weight is due, that a transcript so sent, received and entered ;>s provided by this section, Ix'coiiies ;i judgiiu'nt of the new Court ; and to support tliis view, reference is made to lkule77, which sjieaks of the entries to be made by the receiving cle *k, and iiule Ki.'i, which says the entries are to be ill the form of an ordin.iry suit as near as may be, and that the Skc. KM.l TK.VNsnUl'T OF .lUDOMKNT. i5r sliiill HOiid the s!Uiu', to the Clerk of any other -S"" «"''•" '«/. "^ Ills, I'll, ami Division Court, whether in the same or any ^'"'■""''"'. '""• 4 i I'rocpduro Hocik shall lor tliat pur- |H)Se he the tninsciiiit of .Iiiclgineiit r.ook rci|iiir((l hy the Act ; iiinl, what is 8tron;,'cr Htill, that under thi' former jiracticc (heforc the hiih'H of .Fuly, iStl'i) tlicre was no ■sucli |provi«ion as that of liule If)!*, au alVfctcd hy Huh' '.Ki, whidi [ire- ventH the rlcrk transmitting mon- eys to till' elerk of thi original Court witliotit tin' ordi'r of the jiarty entitled to the money. In fact, tliat all the dealings of the suitor are with the new rlerk, and it is to him that the latter must look for instrui'tions. Section 177 also speaks of the rvinoral of the judgment. It is suhmitteil, however, that the hettoropiiuon istlie other way. It is (|uite true that the new clerk must aMd ItKi, wliivdi jiro- viih.' that a judguu'ut may he re- moved from a hivision Court to a County Court, and lni'imii n jwlij- nil lit of the latter Court. The use aii(l intention of this tiaiiseri])t is to give the foiL'ign iletk all necessary informatimi as to tiie state of the e.iUM', so as to enalde him to en- force the judgment in his division. In the Suiierior ( 'ourts the attorney is the jierson ]iroperly cognizant, in the first place, of the position of the suit, hut in division Courts his jdace is. in the majority of instances, practically lilled hy the clerk. Moreover, although Ilule 161 provides tint no further proceinl- ings shall hi' had on the judgment in the original Court, it adds the words "without an order from the •ludge," which sh'iw clearly that the judgment is intended still to remain a Judgment of the original Court. Kor these reasons, the writer suggested on a former occa- sion that it nnght ha com[)etent under this section to issue any numher of transcripts to as many tuninties, in analogy to the prac- tice in the Superior Courts of is- suing as many writs of executiiui as may he n-ijuired to different sheritl's; hut however that miglitbe, it could not now be done without a .Judge's order and under very sjiecial ciieumstaiiees, and at the risk of the party as to costs. Ihit it is not necessary to discuss this matte -further, as the practical (litficidties which often arise in rel'erenee to the working of i\v' Act in cases of "foreign" (sum- monses and transcripts of .judg- ments to " foreign" Courts are now jtrovided for hy the rules, and the practioe is pretty well understood. Uule !(.'), whicdi spijaks of the duties of till- new .)r hireign clerk on receiving moneys on ;i tran- script, tloes not express very clear- ly to whose oi-iler tiie money is held ; hut as explained in note thereto, it must mean the order of the party enlitleil and not of the luMU'.' devk with whom the suit was entered. In the case of moiu;v heing paid to the foreign clerk hy a (U'htor, there was no provision, until Rules !*') anil l.'»!» were passed, for a re- turn of the amount to the home clerk. T'hose rules now make sulli- cient provision. To facilitate their working, it is suggested that it ill ' 1, ■- i m I I /] i 152 THF. DIVIHION COUUTS ACT. [SBC. KJl. a*«Hui»*'Mj:.K other ('ounty, (/>) with a ccitificiito at tlio foot tlieri'oi' signed by the (Jhirk who Ljivos the same. (/;) and sealed with tlie seal of the Court ut' whicdi he is CMerk, and aihh'esscid to the (Merk 1)1' the Court to whnni it is intended to Ito delivered, and stating the amount tinjiaid upon surh judgment and the date at whicdi the would 1m' coiivenit'iit to liiwo tin- " writtoii (iiiltM- of tlio jiiiity <'ii- titli'il tlitMvtii," H[)ok»'!i of in Itllli' 1. ''(!», priiitnl oil tlif iKii'k or nl tlio )"ollowiii,ii form, which is now usfl by iiiftiiy ciirolul clerks : "Sill, — Plcasf issiii' fxeeution -iu th(,' iiliovn oiiUHe I'oithwith, ;m'l on receipt of return thereto from the l)ailiir of your Court, make proper return to tliis otiice. If money made, you will jilcase remit the sanii- hy a post ollicu money order to this oUice, if the jpost otiice of your i)luoe is a money order olRce. otherwise remit said mom-y in a registered letter in this oHiee at my risk, and (»h]ige, Yours, &!•.■' If the hailitl returns an execution issued on a transcript uhIIh Ikhih, there is no reipiirement in the sta- tute or rules comiiellin^ tlie for- eign clerk to notify tlie home clerk or the suitor. I'A'ery clerk, how- ever, desiring to do his duty fully, would take this trouhic for the credit of his Court, even if he had no eye to the very likely contin- gency of further proceedings heing tiaken by the creditor in tlie way of a judgment Hiimmons or other- wise. A party is entitled to a transcript «to another Division Court when the judgment is " uiiHatislied." lie can obtain a transcript ton County (Jourt " in case an execution is re- turned inil/ii hiiiiii" (section Ki")). .As to the construction lobe|daceil on the woiiK in the liittcr section, sec note thereto. There is no hucIi nM|uirement in the |iri!seiit section ; it is siillicient if there \n: still smnc- thing due on the jiidgniciit. The idiject of taking a transcript to a County Court is to reacdi at the debtors' lands. There is no suidi power on a Division Court judg- ment. See notes to llules !>.'> and ir>!>. (/') Under the old Act the tran- script could not go to a clerk of a Division Court in the saine county. (c) It was the practice under the old titritl' in some eountiea to charge for the certilieate ms well as for the copy of the entry of the judgment, or the transcript, literally speaking. Ihit this is not so now. The clerk of the home Court, by the existing taiitr ( l""orni 127), can only charge twenty-live cents for "transcript of judgment," and the foreign clerk can only charge lifteen cents for " receiving claim, numbering and entering it in Procedure Hook."' There is nothing in the existing tar- ill' that warrants any other charges for this service, either to the clerk of the home ( 'ourt or of tlu! foreign Couit, than the fi>n'going. / 8kc. 1(53.] Ul'AlV.U. OK JUDGMKNTS. 153 same was recovered ; and the Clerk to whom sucli certitieate in addressed shall, on the receipt ol' such traiis(Miitt and ('eriifi(!ate, enter the tronscrii)t in a liook tit l>t' kept in his oilice for tli<' purpose^ and the ani(»iint due on the judj,'- nient act'<)rdinf:f to the c('rtili(;ate; and a 1 p^o- ceedinijs may l)e taken I'or the onforcini,' and Cdllectinj,' the judj^Muent in such last mentioned Division Court by the olUcers thereof, that could he had or taken for the like purpose upon juilj^ments recovered in any Division Court, (d) €. S. r. C, c. 11). s. l:'.0 ; :52 v., c. 2:^ s. 25. 162- Incase of the death of either or both ncvivai of jmu- iiioiit in cusf of of the parties to a iud'Muent in any Division ''eath of iKirty Court, the party in whose favour the jud^nneiit has heen entered, or his personal re])resentative in case of his death, may revive such jiulf^Muent a^'ainst the other party, or his personal rejjre- sentativc in case of his death, and may issue execution thereon in conformity with any rules which apply to su(di Division Court in that hclialf 0) C. S. U. C, c. 19, s. 140. 163- Kvery execution shall be dated on the kxcuUch, when dated day of its issue, and shall be returiuxble within an.i returnable. thirty days from the date thereof. (_/") but may, ((/! See note (n) milf. See Forms !>S jviid 100 for t'orina of triiuscri|tt.s from one division to anotlier ; US a.s to a transcript on a judgiiioiit on a "special" sinn- luons ; ami 100 on an ordinary summons. («=) Tlie rules applicable are Nos. I.'i4, l.i.")and ir»7. The forms pro- videil are 30, IV.i, «)8 and (J!>. {/) In the Sujierior Courts a writ cannot be executed after it is re- turnai)le, and on this principle it was deeitlcd in Wtxtoii v. Thomnit, C. U. C. L. .J. 181, by L«j ami Lake Huron Ry. Co. V. JirouhKhiinkx, 16 U. C. II. 33". assumed that after the thirty davs *ii s 154 THE DIVISION COURTS ACT. [Sk(. 163. See Jtttk m. i'nnn time to time, be renewed ( (j) liy the Clerk, at the instiince ol" tlie execution orei'itor, tor fl had ex]iiri'(l u writ from the Divi- sion Court had ct'.iseil to he cur- rent, and couMnot hi- iu-t''tl on. For a hiiilitr to take any lU'tion on a writ alter its expiry, oi even itt reel ivo money from thi' del'enil- ■.iiit, may render iiim liahie to an aetion. In /hiit'jiiii V. A'/Vso;/, 'J(i U. (". U. 3h!, it was remarked that it \vonh\ he a fatal objection to the title of any piirehas.-r at r. haililf's sal", that iiotiiinj,' had l)een dom- to- wards sei/inj,' under the writ until after it had he;.'onie returnahlt. It may occur, liowcver, that tlie bailill has goods \indi'r seizure, seized during the enrrcney of the writ, wliiili he lamiot ^ill I'nder such eireumstanees. in the luLdier Courts the sheritV would return the writ to the attorney '"goods on haiul for want of hcyers," ami the attorney would then issue an- other writ, iommandiiig the siieiill to sell the goods for the hest priie he coidd, itc. There is, howi'Vei', no sueli ]ir<)visioii a^ to llivisiuii Courts. Tlie haililf is liound, under penalty of forfeiting his fees, to return the writ within the time limited His duty is to act promptly on receipt of the writ, so as to cnaMo him under ordinary eiri'ui'istanee'- to have notices given and faU maije, if necessary, so as to have the money ready in due '.Oiirse. Should, however, such a coiitingeney arise as has heen sug- gested, the projier courst; for him would he to consult witli hisrlerk, who Would notify the execution ereditor, who would (louhtiess ri!- new the writ. The 1 lilill' might he in an av.kward diieji ma s!. .uhl the writ not he ren-wed, Imt the hailiU' would have oidy himself to thank. He should he prompt in his duties, as well for his own jirotec- tion as for the lienetit of the eredit- or. This woultl meh^uhtedly throw an ailditioiwil amount of work on tlie ch'ik, for which there does not sci'u; to he any remuneration, hut it seems *,lie only feasible course to adoj),; (see note (a) to Rule 7ii). Hailill's constantly return wiits iiiil/ii limiii within a few days after the receipt thereof, (inding notiiing that eat' lie seizetl. This is a dail- treious practice, hecause lliedefeiid- .iiit might t lie made hel'ore the expiration of thirty days from the dale of the writ isee llule l.")S, wliii h gives the form). If not renewed, the writ euuld not 1m> ai'teil oii(>ee picvious note). The renewal <'an only he m .de by the eh'rk at t! • instance of tin; 1,'reditor, and h" should insist ujion the latter giving him a written order for the jiurpose. The clerk has no ,' tlioiity to renew of his own motion, nor can he act at the rei|Ucst of the bailill'. iiltliough til, it has been ilone before now in ■in attempt to overcome some such di.'liculty as has been previously -iiggested. Xs''. 1C5.] srKKDV EXKCUTION. 155 tliirty (lays from the date of such i-enewul, in Rev. sui. f m the same manner and with the same effect as Hke writs from the Courts of Jtecord may be renewed under tlie provisions of the Act re- spectiiig Writs of Execution. C. ^S. U. C, c. 1'.)^ s. 141 ; :V2 v., e. 23, s. 24. 164- In case the Judge is satisfied upon .iiuIkc may ... , 1-11 onlur an oxccu- ai)j>hcation on oatli made to liim by the ])arty tiontoisHuo ., . ., 11 '•"'"'■^ regular in whose favour a Juil'^' aiuduuts to tlie sum of forty dollars, (0 the plaintiff or defendant may olitain a transcript of the Judgment from the C'lerk, under his hand {h) This is ahvays an «.'■ /itir/r aiiiiliiatioii, j^uiKraily made at the tr'iil, but not ncci'SKarily so. 'I'he a|i|ilication can he niadi- wliuii juilLTnirnt given, wlieii tlie .liulge would re(|uire the oath ut' the party or some other ]ie:soi) fami- liar with the facts ; or if made sub- se(|Uintly to tiie hearing, as the statute permits, it would generally hv necessary to ])roduee an allida- vit. If no sjiecial order is made at tlie trial, execution may issue at the expiration of liftecn days fi'om the rendering of judgment in ordi- naiy cases ; bui when judgment is signed on a sj'i > 1 summons, exe- cution may issue fortiiwith (Rule 14!t). The rule has reference to the day of trial, but the present section gives the creditor a right to apply at any lime. (/) The words "the sum re- maiuing uiisatislied " clearly indi- cate that the .'?4() luay be partly made up of cojt'^ and |)Ossibly in- terest also, thougli this is not so certain. Interest accruing subse- (piently to an entry of judgment is no /i.trf of the judgment, although the collection cf it may be enforced by execution. i'f i, f , f 156 THE DIVISION COURTS ACT. [Sh(!, 165, se^ ftui,:< luo, ami soakMl with the seal of tlie Court, which tmuscript shall set forth, (_/) I. The proceedintTS in the cause ; (/) 'I'lii.s triiiisiTipt is (liiroront from til it ivferrctl to in .section 1(11, ami slioulij 1)0 (Ui't'fully ilnvwii in accorilanci' witli the Ai't, t'oUowiiiL; as fiir .'iH iiiis.sihlt! tlie form given iu the selKMJuit^ (\o. W). Tiie tran- script uniier this section is often the foninlation lor important snli- aeijuent piooeudings, sticli as sales under cxeention against lands is- sued from the County Court to •\vhieh the transcript goes. In itiir- i,,-ss V. '/'"//" '/ "/., -21 C. v. ')■)■ . it was held tu he Ml)Si)lutely necessary that the |iic)visi(>ns of the Division Courts A>'t shonlil be strictly fol- lowed (see this case, /lo.sl). ]\y iluic liio the transcript must bo written in a plain hand, nr print- ed, without coiiiraction of worils or tii'ures, u!)on a lull sheet of f.olsi'ap paper folded to the iisual si/e of Judgment Itollsin the Courts nf i!e- eoni. This provision was necessary, because in some cases transcri[ils were sent to the County Court on small seraps of ))aper unlit to form tlie record of any Court. The following are the ))rincipal authorities in our Courts on this subject : In F('rr\\ Jtohhis, 12 C. P. .",."), the clerk of the 1 )ivision ( 'ourt who made out the transcript evidently acted uiuier the i;i9th section of the former Act (sec. ItiM, as though it were intended for another Di- vision Court instead of a County Court. He omitted the Htntemt^it of the issuing of the.//, y"". goods and the return thereof. The tran- script was accordingly held to he informal and insutlicicnt to sujiport a. judgment in the County Court in which it ha>it in order that the transcript may become a judg- ment of record, they have recjuircd that it siiould, among other Ihings, show the date of issuing ihe e.xe- cutionagainst goods, and the return to that writ, in order to avoid any contliet with or departure from the •J.'>'ind see. of oh. '22 of Con. Stat. I'. ('., which enacts that no exe- cution shall issue against lands and tenements until tiic return of an execution against goods and chat- tels." This case was followed in ./«roiiih V. //,///•//, laC. 1'. :<77, which ile- eided that a tr:\nscript was defec- tive and invalid whi(di diii not contain a statement of the proceed- ings in the cause. The next case is that of //ope v. C'/VNv.<, 14 C. J*. :{{>:?. Mere the judgment had been obtained on ]iroccedings ill the Division Court commenced l>y an attaidiinent. The summons, which was issued the same day, was served by nail- ing a copy, with a copy of the attachment, to the door of the defendant's last residence. The transcript was in the usual form, and dill not set out the proceed- ings by attai'hment, and stated th.at the detendant had been ". The Piailill's return oi imllo hona tliercon, as to the whole or a part. C. S. U. C, c. 19, s. 142. .arc strong reasons wliy the tran- script shoultl sliow thiit the pro- ceedings were coniinemed by ,at- t.ichni ji;t, for there may li.ave been goods or money in tlie clerk's li tiids iipiiliciible to tlic judgment. A . . fcndant .aL'iiinst whom a jud^- ineni liiis been obtained by attach- ment cannot bo examined as to liis ed'ects nnder a .hidj^t '>; order, but under tliis transcri])t a.s it now itands th(! defembint niiniit be sub- ject to such exaiuin.uion bj" tlie Judj;c of the County Court, wiio would iiave no olbcial kni)wK'd<;e that tiic ]>roccedint^.s in tlic in- ferior court were by attacdiment. " And it was accordingly hehl that the transcript was ilefectivt-, and tluvt the jiroceedinj^'s taUi'U thiTc- on in the County ('ourt couM not lie sustained. Some iiMpcirtant pojuts were de- cided in thi- late case of />'(//•(iTi|)t ill otlii't- lit" 1^,1.1 i • » i;..iiiit.v Curt i)tt\(',i' of the ClcvK of tlio ( ounty Court, m the clerk, JiKU'iiit'iit 1 . -i 11 1 • 1 to U) jll.l^Mm■llt Coiintv whore .such luil'Muent Ims bet'ii obtainou, . ;)f that Cdiirt. '' . or in the County wherein the dei'enJant's or ])hiintill"s hnuls are situate, the same sliall be- come a ju(l<,MU(!nt of such County Court, (/.) and tlie Clerk of such County Court shall file the transcript on the day he receives tlie same, jvnd enter a memorandum thereof in a book to be by him provided for that purpose, (7) whicli memorandum shall contain, 1. The names ,,. Lhe plaintifVand defendant ; 2. The anu)unt oi' the judjj;ment ; ;}. The amount rcnnainini; unsatisfied thereon; and 4. The dale of tilinjj; ; for which services the Clerk of tlie County Cotu't shall be entitled to demand and receive from the i)erson filin*,' the same the sum of fifty cents, (!. S. U. C, c. 10, s 143. 167. Such book shall at all reasonable hours be accessible to any per.S(jn desirous of examin- ing the same, upon the payment to the Clerk ol ten cents. ('. S. U. C, c. I'J, s. 144. 168. Upon su(di filing and entry the ])laintitf or defendant may, until the judgment has betni roiinty Court Clork'H 'look to bo Ul'CVtIMlltlf. Parties nmy profiecuti' jiiilif- ing iitLsatisfied on tlie ju'l^'int'iit inuHt apiM'iir in tlu' tiMii.Miript (sue Huotioii I (it) and l''- plemoiitoil tiy Koriii '.'8). (A") And in this rcsjicct dilliers from 11 triiuf.criiit nvut tVimi uno Division Court to .tiiotlier {srv. note 0) to section ltl.">). .Set'tioii Mi.S cur- ries out the Siiuu' intent (set) note 'thereto). (/) In the id)senc(> of jirooftothe c'onti.iiy, it would lie ureHunied that tlie clerk had tiled tlie tniuserijit, !iiid made ti.e net t^^jsavy ontrie.s to ouiilile the xuciitiou creditor to take the sam remedies to enforce it a;* he Won' i have to take to enl'orce n jude:,i(;nt oi" the County Ccmrt (J--.„mh V, ll,nr>u l.'J C I'. IWl t. Se.\ im).] EFFECT OF KXKCUTION. 15'J fullv paid ami satisfied, pursue the same remedy '»o"t >" ooui.tv ■ '■ ' "' Court. tor the recovery tliereof or of the balance due tlioreon, as if the judginent had been originally ol)tained in the County Court, (m) C. S. U, C, c. 10, s. 14"). 169. On any writ, ])reeci)t or warrant ofrinMnterosiof a execution against goods uml chiittels, the Sheriff t'"""'^'""^^; or other officer to whom the same is directed ^:;]j| '" '''"''•■" )nay sei/(? and si'll the interest or equity of re- rovi(le8, that u[um tiling tlie re(iuireil triinscript in till' (itiice of tlu- County Court, the Division Court juiigjneiit kIki/I l,rri,i,i>' i\ juilgnu'utof sucli Couiity Court, and directs tliu clerk of the latterCourt to make ecrtainentries in a hook to he jirovidiMl f(U' that ]iurj)osi' : and this section enact.s, that \iiton su'I; ^i!::.g and entry the lilaintitl' or tlefcndant) ma if iiuraue tiio sain J ri'niedifs thereon as if the juilynont had heeu originally oh- tain';d in such County «,"ourt. A judgment cannot he a judg- ment of two Couits at the same time ; if, therefore, a judgment ^^lli^•h was originally a judgment of ;i. Division ( 'nurt luw "hecome a judgineiit of i ( 'ounty Court," it necessarily ceases to he a judgment o( the former Court, and all pro- ceedings to enforce it must there- lore he taken in the latterCourt. The jiriniijial object in tunung a Division "ourt judgment into a < ounty Court judgment is to vu- aide tlie ci(>ditor to proceed against the debtor's lands. Ihit he is en- titled to III/ tlio ijmedies of the • ounty Court ; a id ao it has been decided under these sections that a judgment debtor is bound to ;ip. pear and be examined as to debts ami liabilities, iVc, under I'ev. Stat., cap. r)0, sec. U04, and may be imprisoned u[)on default {Kr v. Brown, l;5 C. 1'. MH) ; and it is a matter of eveiyday practice to ob- tain garnishing orders on such judg- ments. Ciider Rev. Stat., ea]> (iti, sec. •JO <■/ sctrson (/*) (o) " If tin iii()itf;ii<,'iir is in I'dssts- tioii, there can lie no i[ntyti of redi nijition, I annotseli thegoods thelnsilves, or take them fp'm the eustody of tin inortvagce and tiaii.sfer them to tin '•nrehaser (///..■ Si'-ij/ ,t ,i/. \ . C. houni iiiiil I'll) ihiirii' /.'. /r. (.'().. .") r. ('. I,. .1, •j.-,;{). In case of the sale of an "inter- est (ir ei|tiity of redi'mption" in anv goods, the haiiilf's ail\ertisemeiit JiUd proeeediiig" slionlil .^how the laet I hai l\ , and should nlei- to ti^<' I'hattel mortgagi-. rill' inti rest of a nidtgagoo in goods is n..t .'11 intt nst that can hi; sold under an exei ution {F l\ C. iU 'J4I). (/'* That is to .-ay. the personal j.'oods of the di'l.tor : or, as is said m Jhiij./iii V. Kiix'iii, 20 V. ('. It. .'{|(i, "sui'hi'liatteis us are s'lhjiet to distress find sale under warrants from jiiKtiees or Courts of inferior jui'isdietion, and under liy-lawsor otherwise ; " in faet, " sueh things as he can deliver over to the pur- chaser, or such things as the latter part of the section expressly au- tliori/es till' seizure of." not elaims or dciiiands, or i'host'8 in aetion. The scetion thi'ri'fori' was held not to authori/.i' the soi/uic and sale of I hattels real, iis, for instance, a lease or term of years. The sann' reasons would seem to show that stock in incorporated llank'- or otlur ( 'omjianics are imt iiuluded uniUr the Wolds "goudsand chat- tels." Mutgiowingiiops.it has re- cently lieen held, being chattels at Common Law, are sei/.al>le under this section [Mr Iti ui/illl V. W'lul- '/•ll, "J.s C. I'. I'.H). It is considered in Knglanil that terms for years ma\ he t.iken un- der an execution issued from the County Courts (see IJoyd's i\ C. I'rae. .VJ7, I'iiiiii'nir \. M 'isijrti r, |4 M. it \V. '.'.T.M. Somi weighi, was attached in Ihniiinn \ Kitnim t'« the fact that a o.iilitf "t a division ( ourt has no t—\\ of .ilhce. Ah to this, it does not uppear that high hailiti's of ('ountx i 'ourts in Kng- lau>i or slieritl's m tliis I'rovineu liaxe any sueh nrr'serihed seal. hiiiiiiiii V. h'i'siiii Lks not met with entire appro\ al in deciding that a !.-:i8u IS not sul>|ect t«i seizure under •M execution froiu alMvision ( 'ourt. See also, a*- * • meaning of word "ch.ittel," /i^iiiilsiiii V. II- ijniililn, cited in mite 7I See note ((( to liule 7'). Skc. 170] i:\r.MrTioNs fhom kxfxutio.v. 161 (except those wliicli are by seizure) (7), and may also se (7) Tlu! wonln hi-twcfii lirackets wiTc substitutfil l>y -',\ Vict,, oap. Uf), sou. '2, for tlio wonlH "the We.iring apiiivrel autl bedding of Huch ])orHoii or his fiiinily, and tliu tii.)l.s and iinpliMuontM of his trade to tht! value of t\V(?nty dolhirn, vhicli sliall to tliat ext<'iit be pro- tected from seizure," wliieh were the words of tlie ori<^inai \et. 'Ihe articles now exempted from sei/uro by Rev. Stat. , cap. (i(i, see. 'J, are : 1. 'lilt bed, bodiling anil bed- steads in ordinary use by tlie di!>tor and his family. 'J. The neci'ssary ;mil ordinary weaniij,' appand of the debtor and his family. '.i. One stove and pi|ies, ancl one iTJine ami its ajijiendaj^es, and one pair of andirons, one set (.f eookin;,' utensils, tiiu' pair of tonys and shovel, one table, six chairs, six knives, six lorks. six plates, six teai'U]>s, six M;ui''ers, one suj,'ar basin, one milk Jul,', ■hw tea|iot, six spoofis, all spinning wheels and we.iving looms in dtuncstic use, and ten V()luines of bookH, one axe, one saw, one gun, six traps, and such lishiih{ m-ts and seines as aii in eotnmou use-. t. .Ml iiece^s.iry fuel, meat, tish, (lour and vcj,'etidiles, actually pro- vided for family use, not more ;han sullicient iur the ordinary consump- tion of the debtor and his faunlv for thirty days, :ind not exei^eding in value the sum of forty dollars fi. One cow, four sheep, two hogs and food theiefor' for thirty d.iys. tl. Tools an0. 7. BccB reared and kept in hivea to the extent of liftuun hives. 11 law exoiiipt from ize and tiikc any By the fifth section none of the articb's mentioned in sub-8ceB. ,'{, 4, ;'i, (! and 7 are exempt from seizure in satisfaction of a debt contracted for such identical chat- tel, an'OV'v/' v. Dmni, 7 U. «.". Ii..).*-'7;J). Hut till' author questions the soundness of this latter decision, for it was not an ininlenient of tlie debtor's trat must be determined up- on tlie wlioie evidence ; ami tiie fact that at a forced sale it ))r(>ught a sum under f}i>0 is not conclusive evidence that it is within tlic ex- emption clause (,l/('.l/('(7/y( V. Ilitrl- hurt i:t III,, "J App. Hep. 14t!). The articles specitied arc declar- ed to be "exempt from scizuie ;" ami if tiiere were only one article not exceeding; the value of sixty dollars of the class exempt, it would lie tlie duty of tlie bailill' to refrain from seizing or selling that article. Hut where tiicie arc seve- ral of the value of SilO each oriels, we think it would dcv(dve upon the debtor to make ;i selection, and should he neglect or refuse to do so upon proper notice from the liai'- ilT, it would necessarily devolve on that olficer to make the selection for him. Dittteulties havealsoariscii where there is one articles "uly coniin^ within (dause (j, wliicii would lie clearly exempt if it wen? not of greater value than -S'iO. Now, a norse or a sewing machine, or any other exeinpteil article exceeding sixty dollars, does n.ot come under this desciiptioii ; and as it is in its natureindivisiblc, a dilliculty nrises as to the application of the Act. The article sought to be exempt must not only be within the limi- tation as to kind but also as to value ; and so, if exceeding ^ixty dollars in Aalue, would certainly not be exempt, and not being ex- empt, of cour>e might be legally seized and sold by tlie bailill'. The Act makes no provision for the re- turn of a portion d its jiroceeds to the debtor wjiere the jiroceeds ex- ceed sixty dollars ; and in the ab- sence of such a provision, thi' whole Jiroceeds wouM seem tii be a|iplic- able to the execution. The nn'icil'iil intent of the legislature will tlius often fail, but it is one of those things upon which it is of necessity very dillicult to h-gislate satisfac- torily. The opinions expressed on the points above ;illuded to weri' those of the author when answering some ipiestions on the subject in the J.iinif Ci>in-ts GiKrtfi' in 18(i(i (Vol. II., ji. 4"), and he has seen no re;i- son to change the on!. .ion then ex- [iresscd. A similar exemption law is in force ill many of the I'nittMl States of Aiiierica. In the LdchI ('mn'/.^ (!ii-.,'lh- for I&t;7 (Vol. 111., p. 73) will be foniiil the note of a case de- cidcil in Kentucky [Aiif/ion// v. U'liili'), wherein it wasdeenled that the owner of iiroperty wliieh is ex- empt from execution in Kentui ky has the light to sell such property at his pleasure, and such sale passes thealisolute title to the purchaser, without rendering the property liable to execution for the debts of the owner. Siich a sale is no fniud upon the cieilitois of the ownei' of the pro; erty, because the projierty [Skc. 170. H";, liill.s ol" speciiiltie'' iis it is ill its lliLMiltyiiiiM's , ol' the Alt. () l)c cxtiiiid hill the liiiii- it also iLs til ■et'iliiig .'•ixty iilil ocrtaiiily lot liciiig t'x- ht ho h'gally hiiiliir. 'I'lie i>ii for tlif If- jiroci'cds to ]>ro(H'i.'cU ex- ml ill tlie all- 1)11, till' whole to lit' a]i]ilir- 'Ihc iiifiiil'iil are will tluiH dill' of those is of iieei'Ssity ilate satisfdi,'- I'S.sed on the to won' those iMWeriugsiiiiie ilijei't ill I lie ill KSdt; (Vol. IS seen no re;!- ;..ion then ex- ion law is ill T'liitfil States • l.iiriil I'diirls .1. ill., 1.. 7:?) :e of a case dc- {Anlhoiiij V. IS ileculeii that ;y which is ex- 1 in Iveiitr.i ky .surh piopi-riy iK'li salepasHi s the imreluiser, the proiKity ir the ilclit-s of ale is no fniiul f the ownei' of e the projierty Sec. 170.] KXLMl'TION.S FIJO.M K.XKCUTION. 103 or r^ecuritios for monoy l>olonfi;inrj to such per- son. (/•) '('. S. U. C, c' l'.>, s. lol ; 23 V., c. 2n, s. 2. gave no such delusive oreilit to the owiur, the law of exemption being sutlii ieiit iiotiie to all ireditors, that the iiropeity was not suhjeet to their ileniandri. This ease was fol- lowed liy .ludge HnoiK.s, in a well consiileri'd judgiiieiit (in Tn-iolnlc V. .liijiI'liDi, rejioiteil ill !^> \.. C. y tlu; execution or so nineh thereof an Svc Jiuie V: iijj^ ,n,j l„.^.„ ,,ther\viso levjeil or niiseil, (.s) and the i»laintin', when the (inu! of iiaynieiil thereof has arrivetl. may sue in the nanw of the defend- ant, ov in the name of any jierson in whose name the defendant nduht have siu'd, for the reoovery of the Slim or sums seenreil or math- payahle therel.v. (/) C S. l". ( !;• s. hVJ. int'H attdiiicv. Itoi'.ivsiiN, ('. .1. ri'tinn, statin^; tlif Nii/.»iri ofscciiri- held till' Hii/iiic illi'):>'l. xi'viiiK ti»^ tau iilly hiilli- tliat iiiiili'i till' Ai-t, till' l.aililV. Ao 'iiiiit to s.itislv till' writ, ainl that fdiilil (nilv *«i/i' nioiiiy wiiiiii is tlu'\ ninaiii in lii». liaiuls i.iii>uaiit ill tlir liaiiils i>t llir ili riiiilant, and Xi> tiiis hniiun. imt in till- liandH n\ a third [larlN , And HI) it lias lu'cii dfcidi-d that iimncy made uniltr an rxci'iitinn at till' snit lit" A. faniint \iv ntaiiud Wy the slii'iill as sri/rd under an i'XfcutH>naL'aiii>l A., and tin' ( ourt (1) Th >tl til r Miich n.iincy tn l>c [lai d will ' (iviT to him imlwilliNtaiidin^; tin 8fi/iiri' {Sliiir/i' V. l.iiirli, '2 ('. I.. .J. l.-VJi. Sue till' next mrtion as tn the iK'rty ot tin' dtl'tm Kit' IS imtinnj: iii tins »vc- tioii to wjiirant u jiractii c whirli is said to |iii'\'ail in some (oiiits, i>t Mlili^' HI tile liailio of the ]dailltlll, or ill fact in tlii' iiaini' of any as- si;;iifi' of ordinary I k drhtH or otiur rhoHcH in artion of that iia- tiiri T It' a< t ion must in tilt' n.mu' <j)ly on the plaintill'.s deiuaiid, and the overplus, if ovurpiiw, any, shall ho I'orthwitii ]>aid to the deftaidant in the oriu'inal suit, under the direction of the .lu.l-e. ('. S. IJ. (;., c. I'.t, s. i:.4. 174. Till' r»iiiilf, after sci/iuir ^'oods and ii:»iiiffaft.-rHoiz. , 1 I . , ,. !• 1 II 1 lire i(f hii'mIh to chattels l>y virtue ol an e.xeeutuui, snail endorse! eiidi.rso .into of , ' • 1 i ,• I • / Holziirc and i;lvo oil sucii e.xecution the itate ot the seizure, (//') nutitu of HaU;. Sec til"' CilMO of .JA:/>o;m/Miij;lit ill iv .Supi'i'iKi- ( "iiurt uiiiliT tliojii' )iri)visioiis. (ii) Sl'c \\n\o !.'», iiiulHiictiiiii 171. (i>) Tlii-s is nitluT imlftinitt', ami is rmiiiirkml upon in Mi-l>.iiiiih/ v. MiDitHdld r( (d., iiiUc, where Kuii- 1NM(N, {'. .1.. .s;iy.s : '■ I Hiippose it iiicaiis wliiit is not stateil, tliat the |iiiyei3 or holilor of the note, ite., whose iiaiiic IS to l)e used in the iii'tioii as iiliiiiiiiir, must 1)0 sei^ureil ;n,'aiiist liiihility for eosts, if the (l('feiiKi;, C.J. , in Campbell v. Coulthard, 2.") U. C. Jt. 624). (;) That is to say, eight clear days, not reckoning the day of post- ing the notices or the day of sale. 'I'he sale should be for casli only —the bailiff has no power to sell goods on credit. (-'are should be taken not to sell more than is suflieient to satisfy tlie exicution, and it is the duty of the bailiff to stop the sale as soon as sulHcieut moiiey is realized to cover tlie execution. There is no objection to the plain- till' purchasing his dol)tor's goods at a s:de by the bailiff, i)ut it must be a hotuljilr. sale, or if there lie no bidding, they must be fairly valued, an 1 the amount credited on the execution. lu such a ease, how- ever, it would b3 well for the bail- iff to protect himself by calling in m a r U^i 168 THE DIVISION COURTS ACT. [Skc. 177. See liule.i 7, Sr>. and Funns J?, 98, procure from the Court wherein tlie judgment has been obtained, if the defendant resides or carries on his business (c) within the County in which the Division is situate, or from any Divi- sion Court in any other County into which the j iidgmeut has been removed under the one hun- dred and sixty-first section of this Act and within the limits of whicli Division Court the defendant, resides or carries on his business, {d) a summons in tlie form prescribed by the General Kules {e) or Orders from time to time in force relating to Division Courts, and such summons may be served (/) either personally money ordered to be paid in res])ect of a debt, damages or costs, and either on a judgment for a plaintiff on his claim, or for a defendant on a set-off. It was thought by Haoautv, .1., in Peckv. McDoKfjal/, 27 U. C. R., 353 ; 5 L. C. G. (i8, that the issue and return of an execution is not a condition precedent to the procur- ing a judgment summons under this section. But if, on the return of auch a summons, it should appear that the debtor was possessed of property sufficient to satisfy the debt under an execution, a Judge would not in all probability make any personal order for payment ; and the analogy of the practice in the Superior Courts would be in favour of such refusal. It is not at all likely, however, that a creditor would resort to this section if he could obtain his money in the ordinary manner. (c) See notes (o) and (^j) to sec- tion 62. (d) In the former case the sum- mons being obtainable if the debtor resides in any part of the county in which is situated the Division Court wherein judgment was re- covered. But it' the judgment has been removcid by a transcript to another Court in another county, the summons must be taken out there, provided the defendant re- sides or carries on his business within the limits of such Division Court, It is therefore necessary, whenever a debtor removes from the county wherein the original judgment has been obtained, or when he resides in a county ntlier than that in which the judgment was recovered, to send a transcript to the Division Court within tlie limits of which the debtor may re- side, &c. See also Peck v. McDougall, ante, and notes (o) and (/*) to section (32. (c) The course to be pursued by the creditor is laid down in Rule 7 and the forms there referred to. ( /) Rule Sf) says that the sum- mons "may be served by deliver- ing to the defendant a copy there- of," which means neither more nor less than personal service. This section allows the service to be Sec. 179.] JUDGMENT SUMMONS. 169 upon tlie person to whom the same is dh-ected; 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 Avith some grown person there dwelling, re(|uiring him to appear at a time and place therein expressed, to answer such things as are tlierein named ; and if the defendant appears in pursuance thereof, he may be examined upon oath touching his estate and effects, aud the manner and circumstances under which he contracted the debt or incurred the damages or liability which formed the sub- ject of the action, and as to the means and ex- pectation he then had, and as to the property and means he still has, of discharging the said debt, damages or liability, and as to the dir.posal he has made of any property, C. S. XJ. C, c. 19, s. 16(1. 178- The person obtaining such summons And witness- ■^ '^ . es, &o. and all witnesses whom the Judge thinks re- c[uisite, may be examined upon oath, touching the ini[iuries authorized to be made as afore- said. 0. S. U. C, c. 19, s. IGl. 179- The examination shall be held in the The examii.a- tion to be iii Judge's chamber,' unless the Judge otherwise jfif^ffe's oham- directs (;j). C. 8. U. C, c. 19, s. 162. niatle at the debtor's usual or last place of abode. Was the rule in- tended to limit the mode of service to a, personal service"! If it were so intended, it would not have used the word "may;" we must therefore assume that personal ser- vice is not n<3cessary, and as a mat- ter of practice, it is as often served one way as another. See further as to evi! resulting from this pry- vision, section 183, note (o), and note (/«) to section 182. As to mode of service generally, see note {b) to section 70. (7) The object of this provision is to obviate any unnecessary ex- posure and annoyance consequent upon an exumination in open Court. ;5 V 170 THE DIVISION COURTS ACT. [Sec. 180. The costs rro- igQ. The costs of sucli summons and of all yvln\ for. proceedings thereon shall bfc depnied costs in the cause, unless the Judge otherwise directs, (h) C. S. U. C, c. 19, s. 163. a,KfdistSge.f 181- In case a party has, after his exam ina- yummonedfei- tiou, bccu discharged by the Judge, (/) no fur- cept,&c. ^i^g^, summons shall issue out of the same Division Court at the suit of the same or any other creditor, (j) witiiout an affidavit satisfy- It would, however, be both uselec and cruel to insist upon the attenn- ance of a debtor before the Judge at liis chambers in the county town. It is therefore the usual practice forjudges to direct th.at tiiese ex- aminations shall take place in tlie court-room of the Courtfrom whence the summons issues, or in some con- venient place in the neighbourhood after the rest of the business is dis- posed of. (/() There is no provision made for the payment of the debtor's expenses to the place of examina- tion. The latter part of section 1 S3 seems to intimate that such pay- ment is not contemplateil by tliis Act ; and it is submitted tliat it would be very unfair to creditors to insist upon it. The remedy is of 'ourse an extraordinary one ; but it is the least a debtor can do, if he cannot pay his debt, to ex- plain the reason why, and disclose his financial position without being paid for it, and especially so if he can only be examined o-ioe (see section 181 and note (,/). Tiiere is diversity of practice on the subject amongst County Judges. (/) That is, discharged as not being in a position to make any payment on the judgment recover- ed against him. (,/) These words are embarras- sing. Suppose, for example, a cred- itor living at Cornwall recovers a judgment there on a cause of action arising there. The defendant, how- ever, lives in London, where an- otiier creditor sueshimand recovers judgment. The defendant is ex- amined on the latter judgment at London, under section 177, and tl'.e debtor is discharged on that ex- amination, the Cornwall creditor knowing nothing of the ]iroceed- ing wliatever. Is the latter to have no right to examine the debt- or 1 It would seem not, for the section is imperative. It is true that it speaks of the "same Division Court," Imt in the case suggested the creditor could not (under sec- tion 177) examine the defendant under any circumstances without sending a transeript to the London Court, which would then be the "same Division Court" in which the debtor hiul been previously examined. Tlie clerk, after an ex- amination had, and a discharge or- dered thereon, is not at liberty, without a Judge's order, to issue a second judgment summons. There may be a ditfereme, how- ever, if the "any other creditor" is not himself a Ju s. 1G4. 182. If the party so summoned Consequenraof ^ '' neglect or ru- 1. Does not attend as required by the sum- f' *• ^ attend, mons, or allege a sufficient reason for not attend- ing ; or 2. If he attends n->A refuses to be sworn or to declore any of the things aforesaid; or 3. If lie does not make answer touching the sauic to the satisfaction of the Judge ; or 4. If it appears to the Judge, either by the exami nation of the party or by other evidence, that the party, (a) Obtained credit from the plaintiff or in- curred tlie debt or liability under false pretences, or by means of fraud or breach of trust, or gin where a debtor was examined by a judgment creditor and dis- cliiirged. Sub.sequently to this an- otJR'r ori'ditor sued, and having obtained judgment, issued a judg- ment summons without having ob- tained a .Fudge's order. It was ob- jected that the debtor had already been examined and discharged, and could not therefore be again exam- ined, unless a proper case were made out under tiie latter ])art of this section. 'I'lie learned Judge, however, held that the second judg- ment creditor was not "any other creditor " Avithin the meaning of the section, which it wrs thought meant either a person who at the time of the examination was a, judo- mcnt creditor, or some person who, by. a proceeding in revivor or the like, might tconie .t party to the samcjudi/mcnt. It may be, however, that the legislature did not intend th.at a debtor should be harassed with re- peated examinations ; though, in answer to this, it might reasona- bly bo urged that possibly the only examination had was not conduct- ed in such a way as to get out the facts, and that in the Superior Courts there may be a similar ex- amination by every judgmert cred- itor. Strangers to legal proceed- ings are not generally bound as parties are. I I r 1 1 ■ \ W^^ \ 1 1 I H H ^H I ^M WwM 1 ':Wl 1 II in 1 11 ' 1 1 ^■i ? 5 ^^1 ^^B 1 1 'i| s; I _.v ^H ^ ' 1 fl ) ^D -A ^ *■ j |H r H ^H H i 1 1 i 172 THE DIVISION COURTS ACT. [Sec. 182. (b) Wilfully contracted the debt or liability without having had at the time a reasonable expectation of being able to pay or discharge the same, or (c) Has made or caused to be made any gift, delivery or transfer of any property, or has re- moved or concealed the same with intent to defraud his creditors or any of them ; or 5, If it appears to the satisfaction of the Judge (k) that the party had when summoned, or, since the judgment was obtained against him, has had sufficient means and ability to pay the debt or damages, or costs recovered against him, either altogether or by the instalments 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 (l) whether before or after the return of the summons ; {k) These worils are connneiiteil on iu Peck v. McDowjall, 27 U. C. K. 353 ; 5 L. C. G. 68, wheifi, on an objection being taken to an order of commitment on a judg- ment summons, in that it did not set out that the plaintiff was ex- amined on oatli, or that other evi- dence was adduced before the Judge, the Court said : ' ' Tlie warrant pro- fesses to commit the jtlaintilf be- cause it appeared to the satisfac- tion of the Judge that the phiintiff had contracted the debt under false pretences. We are not pre- pared to hold that it would be ab- solutely necessary in all cases to take evidence on oath. We can readily suppose a case in which, when a debtor is brought up for examination, a writing purporting to be signed by him might be pro- duced, which, if genuine, clearly proved by his own admissions that he had contracted the debt by false pretences, or that he had done something of which his creditor accuses him, or showing that he had abundant means to pay if he pleased. If the Judge showed him the writing, and he then admitted he had written it, and did not ex- plain it or ask to be examined on oath (wliich his replication does not assert) to explain or contra- dict, we do not see why the Judge might not accept and act on his admission, as he might in dealing with any admissions made in Court on the trial of the suit between him and his creditor. We do not lay down any general rule on this point ; we merely take the case as it appears in the pleadings. We think this objection fails." (I) Either at the time judgment was given, or by any subsequent order under section 187. Sec. 182.] JL'DGMENT SUMMONS. 173 tlie Judce may, if he think.': fit, (m) order tiwch f^eeitiiieidi.and ° *' Fonnn 03, 34. party to be committed to the (Common Gaol of the (m) Subject, however, to the re- quirements of the next section. Imprisonment for debt has been s^vept away ns a relic of barbarism : It was not intended by this pro- vision to revive it in Division Court administration. There are not a few, liowever, and eveti some niiiong the County J ud^es, who .still use the power here given as thougli that inhuman practice had still an ex- istence. Whether they act from a mistaken view of the law, or do not take the pains to utilize to the full (and, ic is admitted, with some trouble to them.selves) the beneficial provisions of the present enact- ment, it is undoubtedly a fact that there have occasionally been and still are great hardships existing under the pj'etended sanction of the power of commitment here given. It is much easier to make an order of committal than carefully to scru- tinize the conduct of tlie debtor, to ascertain whether he liasbecu con- tumacious in resjiect to the first three clauses of this section, or has l)rought himself within the lu'xt tlirce clauses. it is confidently asserted that if the conimitinent of judgment debtors under these sections falls into discredit, and if, as it often is, the law is spoken of as harsh and unjust, the fault lies not with the legislature, but with those few who administer the law in a perfunctory manner. The great principle to be kept in vii^w is that these sections are intended, and intended solely (1) for the purpose of discovery, (2) for the punishment of contempt of Court, and (3) for fraudulent con- duct on the part of the debtor to- wards the creditor, and not for the mere non-payment of a judgment awarded, the tenderness with which the legislature desires to deal with the debtor, is evinced by the fact that, by section 183, no order to commit can be made unless his non-attendance is shown to be wil- ful, or that he has failed to attend after having licen twice summoned. But here may properly be pointed out, without wandering from the argument, what seems to the writer to be a defect, and that is, that as it is not necessary (see note (/) to sec. 177) that either .summons should be jjersonally served, and in conse- quence that it is tpiito possible a debtor might be committed with- out having heard anything of these judgment summonses, it would be much better that there should be only one summons as formerly, with a requirement that it should, be served jiersonally, and some ap[tropriate provision in case the party should evade service. It is moreover found in practice that the necessity of a second sum- mons only tends to make debtors careless, and in case of fraud, throws an obstacle in the way of justice. All this, however, detracts nothing froin the manifest intention of the legislature to punish only for con- tempt and fraud. And if this be so, it is clear that no order of com- mitment should go as of course. The matter should be fully inquired into. The debtor is in the position of a person charged with an otfence, and is entitled to be considered in- nocent until the contrary is proved, either out of Ins own mouth or by other evidence, or b)' a concurrence of circumst.inces which are incom- patible with the theory of inno- cence. If found guilty of contempt or fraud, the punishnu it of the delinquent should be as sure and certain as if he had been charged 174 THE DIVISION COUIiTS ACT. [Sec. 182. County in whicli the party so summoned resides or carries on his business, for any period not ex- ceeding forty days, (n) C. S. U. C, c. 19. s. 165. and found cuilty of any crime on the statute book ; the ])unishnieut awarded beins; of course in propor- tion to the offence committed. Much has been written and said on this subject, and we might well ([uote V ■ w/.s(^/^ it was decided in Chambers by J. Wilson, J. (2 C. L. J. 2^0), anil by the full Court (27 U. C. l\. 263), that a clerk of a County Court or deputy-clerk of the Crown is only i)rivi eged from arrest under an order comniitting him for non- payment of A monthly payment on a Division Court judgment whilst engaged in his olHcial duties, or while going to or returning from his othce. Tlic privilege is founded on the duties they have to perform to the i)ublie, and it also, in the same sense, apijlies to attorneys and soli- citors. The last work on the sub- ject (Cordery's Law of Solicitors, 112) says : "The privilege exists in favour of solicitors attending County (Division) Courts, Judges' chambers. Master's oHice or other professional appointments ; and as the ])rivilege exists for the sake of the client, it matters not that the solicitor is uueertiricated; but it .;li.!l Sec. 181,] JUDGMENT SUMMONS. 175 183- A party failing to attend according to i" what cases „ , ""'.V the party the reniiirements of any sucli summons as afore- suinmoiiea may ^ "^ be comiuittecl said, shall not be liable to be committed to gaol '•"• "o'l-uttoiui- ' " ance ; costs for the default, unless the Judge is satisfied''""".*""''"'''^ ' o cortuiu cases. tliat such non-attendance is wilful, or that the party has failed to attend after being twice so summoned (o), 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 such hearing the judgment creuitor 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 otlier judgment of the Court. C. S. U. C, c. 19, s. 16G. 184. Wherever any order of commitment as coininitnient in ,< • 1 1 1 1 , 1 /-n 1 /. 1 /-. '^'^se of refusal. aioresaid has I)een made, the Clerk ot the Court shall issue, under the seal of the Court, a war- rant of commitment, (^>) directed to the Bailiff must appear that he left home for the purpose of attending the Court, anil that he is actually practising at the time." Barristers are si- milarly i>rivilegeil, but managing clerks are not. An order or certificate in bank- ruptcy or insolvency is not avail- able to discharge a debtor from any order of commitment (C. 8. U, C, cap. li>, sec. 172 ; see p. 17!)). Nor will a discharge in insolvency pre veut his being committed {Mack'nj V. t.T'jodsou, ante), [0) If tlie debtor does not appear upon the first summons, th ) bur- den of proof lies upon the creuitor desiring to have him committed, to show that such !;on-attendance has been "wilful ;" but the failure to attend on being summoned a second time raises the presumption that such non-attendance was "wilful," thereby subjecting the debtor to punishment for non-attendance. See further as to this section, note (?«'* to section 182. ( p) Form 93 is a warrant of crm- mitnient on default of appearance, and Form 94 a warrant after ex- amination . These documents are to bear date on the day on which the order of commitment is enter- ed in the Procedure Book, and shall I 17f5 See Rvlex 101, lOi, WH, and CotiBtiililcs, fiV. to execute war- rants. TIIK DIVISION COriiTH ACT. [Skc. 186. of nny Division Couit v.-itliiii the County, and sncli liailiir may by virtue of such warrant take the person against whom the order has been made, {q) C. B, U. C, c. 19, s. 107. 186. All Constables and other Peace Officers within their respective jurisdictions shall aid in the execution of every such warrant, and tlie gaolor or keeper of tlie gaol of the County in which such warrant has been issued, shall re- ceive (r) and keej) tlie defendant therein until discharged under tlie provisions of this Act or otherwise by due course of law. C. S. U. C, c. 10, s. 108. liave endorseil tlieveoii the niiiount of debt ami costs on such jirocccd- iiigsOvwle 101). This hitter jiro- visioii is to eiiiil)]o the debtor, tlirough the intei'ijosition of scc- ti. It is a eominou practice for bail- ills to employ persons to assist them in their duties, and even to make arrests under this section. It may be (juostioneil whether such an assistant, tiiero being no provision for the appointment of deputy bailiffs, couhl safely act under this section, unless indeed he were a constable or peace officer of the county (see Addison on Torts, ,')54). (/•) Rules 103 requires thebailiff, when he delivers the person arrest- ed to the gaoler, with the warrant, to endorse the number of miles, showing the amount of mileage, and also to state in writing the actual day of the arrest. Sec. 187.] commitiM?:nt of dehtous. 17^ 186. Any per.son imprisoned under tlii.s Act whon deUor in *• "^ ' custody Hhall he who lias satisfied the debt or demand, or any J'^«i'"geii. instalment thereof payable, and the costs re- maining due at the time of the order of impri- sonment being made, together wilL the costs oige^'Ruiemand obtaining such order, and all subseqiient costs, ^"'''"''^' ,shall, upon the certificate of such satisfaction, signed by the Clerk of the C' irt, or l)y leae of the Judge of the Court in which li"^ order of ijniiiisonment Mas made, be dixhurged out of custody, (s) C. S. U. C, c. 19, s. 1(30. 187. The Judge before whom such sunnno'^'.'u.isoma.vmakij is lieard may, if he thinks fit, rescind or alter mter ana i!..'iify any order lor payment, previously made against any defendant so summoned before him. and may make any further or other order, either for the payment of the whole of the debt or dam- ages recovered and costs forthwith, or by any instalments, or in any other manner that he thinks reasonable and just. (/) C. S. U. C, c. 10, s. 170. (s) Without some svicli provision as this, the mere i)ayment of the debt and costs would not entitle the debtor to his discharge, inas- much as the committal is as a pun- ishment for contempt or fraud {Hoidi'mon v. JJlchnon, 19 U. C R. 592). A form of oertiticate of discharge under this section is given in No. 97. ^ it) That is t. say, instead of com- mitting a de )tor for any reason which seems to him siitHcient, he may exten ,. the time for paj'- meut, or order the payment of the debt by instalments. Upon any 12 default made in payment of the debt as ordered on this second occa- sion, or in payment of any instal- ment, the debtor will be liable to be again brought upon a fresh sum- mons, and thereupon aoiilt with as provided for in section 182. It has been said that the section in the English Act which is simi- lar in its terms to the present sec- tion, ' ' shows that there is nothing in the nature of a final judgment in these Courts. The Judge lias still jurisdiction over this very judgment on which this action is brouglit " (per Lord Campbeli, in Berkcloj v. Eldcrkin 1 E. & H. 808, 178 Part: js may be examined, when THE DIVISION COUKTS A. [Sec. 188. 188. Ill case the defendant in any suit brought in a Division Court has been person- ally served with the summons to appear, or personally appears at the trial, and judgment is given against him, the Judge, at the hearing of the cause or at any adjournment thereof, may examine the defendant and the plaintiff, and any other person, touching the several things hereinbefore mentioned, and may commit the defendant to prison, and make an order in like manner as he might have done in case the plaintiff had obtained a summons for that pur- pose after judgment, {tt) C.S.U.C, c. 19, s. 171. cited in DontlUj v. Stcvart, 25 U. C. K. 398 ; 2 (". L. J. I8G). The action referred to was an action brought in a higher Court on a Division Court judgment, which, in the face of this section, it was hchl could not be brought. (it) It is not intended that the ^rudge shouUl commit a debtor to ]irison for not having paid a claim — perhaps a disjjuted account be- tween the parties — only settled by judicial interjjosition a few mo- nicntspreviously. TheJudge I'ould, liowuver, it is presumed, make such inquiries as he miglit think neces- sary, lor the i)urpose of obtaining iiil'ormation as to the debtor's abili- ty to jiuy, and thereuj)on make an order for payment of the debt, by instalments or otherwise, and upon which, if default .shauld be made, the creditor mi'dit have the debtor ;:iin summoned and proceeded al against under section 182. j.incipal benelit of this 'But the section appears to consist in the ]H)wer it gives of i)unishing sum- marily any frauu on the part of the debtor coming within the fouith clause of section 182, which may be proved at the hearing (see Ey'pmie I'urdy, 19 L. J., C. P. 222 ; 9 C. B. 201). Such an order can only be made if the debtor * ' iiersonally appears at the trial," or has been ])erson- ally summoned to appear, and has thus an opportunity of defending himself ; nor would a Judge, except in a very clear case, exercise the liowers given to him ; and where the debtoi- could show any reasonable ground for leading the Judge to believe that lie might be able tliere- after to clear himself from the fraud charged against him, the Judge would prope-ly refuse to make any order of coiMinittal. Cases have occurred where the power here given has been of great use : for exami)!e, a nuiu was once sued for goods purchased whi.di he refused to pay for, although he had ( large sum of mcney in his pocket. Tliis was proved at the hearing, and an order at om e made for his com- mittal, He was immediately ar- rested, and as i)rom])tly paid the debt and costs. Sec Kx pnrtc J'urdij for a form of warrant under the cor- responding enactment in England. Sec. 189.] COMMITMENT OF DEBTORS. 179 [C. S. U. C, c. 10, s. 172, is as follows: (n) 172. No protection order or certificate granted by any Party committed Court of Bankruptcy, or for the relief of insolvent debtors, chartfcd for in- sliall be available to discliarge any defendant from any solvency, order of commitment as aforesaid, (i') 13, 14 V., c. 53, s. 95, the end]. 189. No imprisonment under this Act shall Debt iiot to be extinguish the debt or other cause of action on which a judgment has been obtained, or protect tlie defendant from being summoned anew and imprisoned for any new fraud or other default rendering him liable to be imprisoned under this Act, (w) or deprive the plaintiff of any right to take out execution against the defendant. C. S, U. C, c. 19, s. 173. (u) See note (a) p. 31, ante. (v) Nor will a discharge undor the Insolvent Act prevent a party from being committed under such an order ( In rcMackaij ct al. v. Good- son, 2 C. L. J. 210 ; 27 U. C. K. 2(J3 ; 5 L. C. G. 39 ; Ahleyv, Dale, 1 1 C. B. 378). ( iv) The sections referred to as to commitment of a judgment debtor after examination, or for refusing to bo examined, jjartake as we have seen (sec 182, note m) of the nature of jienalties either for fraud or for contempt of Court, as the case may he, the power of imjirisonment not being by w:iy oi satisfaction of the debt ; though a discharge niiy, un- der section 18G, be obtained by pay- ment of the debt and costs. Questions have arisen and are often likely to arise as to the con- struction to be jilaced upon the words •' any new fraud or other de- fault." It would be against the first prin- ciples of justice that a person should be punished twice " tr the same olfence ; and so it has been held in England, under a similar enactment, that a debtor could not be twice imnrisoned for the same default, although he unquestionably could be summoned anew and imprisoned for each new or other default in paying another instalment when due (Fletcher v. Watts, 51 Law Tirtus; 7 L. C. G. 140). That case, which was the decision of aCounty Court Judge, wouldseem to state the law correctly under our statute ; and though it would un- doubtedly be illegal, after a com- liiitment has once been made for any of the causes mentioned in sec- tion 182, to commit the debtor again for the same identical cause, it would be going too far to say that he could not be twice committed on the same judgment ; for ex- ample, the first commitment might be for wilful default in attending to be examined ; a second commit- ment might projierly be made for fraudulent acts discovered on ex- amination at a subsequent period ; and neither of these would ensure security to the debtor from a further committal in case he should neglect 180 THE DIVISION COURTS ACT. [Sec. 190. j'i. Absconding iDebtors. ABSCONDIXCr DERTORS. 190- In case any person, being indebted in a sum not exceeding one hundred dollars, nor less than four dollars, for any debt or damages arising upon any contract, express or implied, (x) or upon any judgment, 1. Absconds from this Province, 0/) leaving personal property liable to seizure under ex- ecution for debt, (z) in any County in Ontario, 2. Attempts (a) to remove such personal pro- perty, either out of Ontario or from one County to another therein. 3. Keeps concealed {h) in any County to avoid service of process ; and in case any creditor of such person, his ser- vant or agent, makes and produces an affidavit See Rule 3s and ox affirmation to the purport of the form pre- scribed by the General liules or Orders from time to time in force, relating to Division Courts, (c) to pay the debt -when he hail siiHi- cient means and ability to do so, Ee, Boycc, 2 E. & B. 521, is an au- thority as to this. The lati'st eases on the subject and to the same effect are horftiiail v. Briirc, L. K. 8 0. P. 378 ; Eranx v. Iflll, L. E. 1 C. P. Div. 229. A caroful .Judge, however, wouhl hesitate before ordering a second CO nmitment, unless he were satis- fied that the matter in respect of which it might be asked was not and could not have been brought to his notice, or in the mind of the creditor when first order made. (a:) See note to Form 16 for con- cise statements of various claims .on contracts. (y) It is not sufficient that he is nlioiit to a1)Scond (Uoi/le v. Ward, 11 U. 0. P. 416). (;) See section 170 as to what goods are covered by these words. (a) An attachment will not be warranted by an intfiitinn to leniove property ; there must have been an (iti.nni)t (Hood v. Cronkilc, 29 U. C. P. <)8). (h) "Keeps concealed," not is conceided, which might mean some- thing ditVerent ^see Quarkenhush el al. V. Siudn; 13 C. P. 201, and note ('•). (c) Pule 35 directs that this form shall be according to No. 11. The aflidavit must not be in the .alternative, and must comply with the form. In Qucckmbusli cf, al. v. Snider, 13 C. P. 201, the affidavit, Sec. 190.] ABSCONDING DEBTORS. 181 and in case the said affidavit or affirmation (d) be iiled with the Clerk of any Division Court (c) in Ontario, then such Clork, upon the application of such creditor, his servant or agent, shal^ Issue a warrant under the hand and seal of such Clerk, in the form prescribed by such General Eules or Orders, directed to tlie Bailiff of the Division Court within whose Division the same is issued, or to any Constable of the County, commanding such Bailiff or Constable to attach, seize, take see Fonn. ix and safely keep all the personal estate and effects of the absconding, removing or concealed person within such County, liable to seizure under exe- cution for debt, (/) or a sufficient portion thereof to secure the sum mentioned in the Ayarrant, (g) with the costs of the action, and to return the warrant forthwith to the Court out of which the utter stating the indebtedness, fur- ther stilted tliivt the defendant had good reason to l)c'lievo, &c. , that th.e said debtors had abscomlcd from the Provinee of Canada with intent and design to defraud him of said debt ; or that the debtors were about to abscond from said ])ro- vince ; or leave the county of, &e., with intent, &c., taking away per- sonal proiicrty liable to seizure, under execution for debt ; or that the said debtors wcrcroiiirnlcd with- in the county of, &c. , to avoid being served with process, with intent, &c. Drai'KR, 0. J., said th;vt tiic affidavit did not contain any one of the throe alternatives contained iu the statute. " The last alterna- tive is the one most nearly ap- proached ; but there is an obvious difference between kcepinq conceal- ed and simply being concealed, which might be on a single occasion to avoid being served with process. " (d) See Form 110 (o), *" , for affirmations by Quakers, &c,, and Form 110 («) for jurat by illiterate persons. ((') See section 191 and note (/), and section 193 and note {I). (f) See section 170 and notes. The exemption clauses apply iu these cases (Rev. Stat., c. H6, s. 3). ((j) "All the personal estate, &c., or a sufficient portion thereof to secure the sum, «&c. ," may be a c'umsy way of saying that the bailifif is to seize enough goods to satisfy the debt and costs, or if there are not enough for that pur- pose, then all ; it can scarcely mean that the bailiff is to seize all the debtor's goods liable to seizure, whether or not such seizure be largely in excess of what would be a "sutficient sum." But l hough this would seem to be the appar- ent meaning of the words, it can- 182 THE DIVISION COURTS ACT. [Sec. 191, same issued. C. S. U. C, c. 19, s. 199 ; 40 V., c. 7, Sched. A. (70). When JuKtioe of jgj ^,-,y Countv Judfte, or a Justice of the the Peat'u may ^^ * J ^ J o ' issue attauh- nients, <.^u. Form 12. Peace for the County, may take (h) the affidavit in tlie last preceding section mentioned, and upon tlie same being filed with such Judge or Justice, the Judge or Justice may issue a war- rant under his hand and seal in the form pre- scribed as aforesaid, and such Judge or Justice shall fortliwith transmit the affidavit to the Clerk of the Division Court within whose Divi- sion the same was made or taken, to be by him filed and kept among the papers in the cause, (i) C. S. U. C, c. 19, s. 200. not be denied that such a iTadiug leads to many difficulties which would have been obviated (at least if the debtor had ab.-icomlnl)hy au- thorizing the baililF to attacli nil the property (see sections 105, 198, and notes thereto). It is suggest- ed in note (u) to section 198 that a distinction may be drawn be- tween the cases of absconding, re- moving or concealed debtors in respect of the quantum of goods to be seized. (/() The word "take "here means ' ' administer." But the use of tliis word, and of the words "made or taken " in -^^e latter part of the section, points to a serious incon- sistency. And with reference to these words "made or taken," one would think that they must have betn used by mistake for made or produced (i.e. produced to the.Iudge or Justice). It can scarcely have been intended that a Judge should not be allowed to act on an affi- davit sworn before some one other than himself. Under section 100 it is sufficient for the creditor to make the alKdavit before any com- petent authority, and when it is proiliicrd to the clerk, the latter, on the application of the creditor,must issue the warrant. The words in this section would, however, seem, if taken literally, to have the some- what al)surd effect of limiting the powers not merely of a justice of the peace but of a County Judge to cases where the affidavit is " made or taken " before himself. (/■) It frequently happens, from ignorance on the part of those who apply for relief to magistrates who act under powers given by the above provisions, that mistakes are made in the alfidavits produced, or else the magistrate makes a blunder on his part, so that the proceedings are irregular. The Marrant is of course issued at once, but the mistake is not discovered until theatKdavit reachesthe clerk. It is of course no fault of his so far ; Init he would be to blame if he dill not at once call the atten- tion of the parties to the matter, and he would probably get the Mb 91. v., Sec. 192.] ABSCONDING DEBTORS. 183 192. Upon receipt of such warrant by the BaiUfi or con- •^ *■ '' stable to seize Bailiff or Constable, and upon being paid his a'»J "lake in- lawful fees, including the fees of appraisement, such Bailiff or Constable shall forthwith ex- „ ,. ,,, ecute the warrant, and make a true inventory (7) ^'"• 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 free- holders, who being first sworn by him to appraise the personal estate and effects so seized (k), shall •'^^« ^"'•"'« ^-^ then appraise the same and fortliwith return the inventory attached to such appraisement to the Clerk of the Court in which the warrant is made returnable. C. S. U. C, c. 19, s. 201. plaintiff to make a fresh affidavit and issue a new warrant. Tlie bail- iff, on discovering that the warrant was irregular, would have to con- sider what lie should do ; and if satisfied of the irregularity, would probably stay his liand. After the decision in Orai/ v. McCartu it ai., 22 U. C. R. 568, ci'editors will not willingly insti- tute proceedings before a magis- trate, and magistrates on their part will be chary of acting under this section. In the case referred to, the defendant M., at the request of defendant W., gave a warrant to defendant K. to attach the goods of tlie plaintiff, but through some neglect or ignorance the necessary atlidavit was not made and filed. Upon tliis warrant some goods of the plaintifi's were seized. On ac- tion f)rought, the Court considered that all the defendants were liable ; and that as the affidavit was not made and tiled, the magistrate, as well as the attaching creditor, was a trespasser. An application to the clerk of a Division Court, who would have known what was neces- sary, would have saved all this loss. But whilst it is necessary that the atHdavit should be made and filed with the Judge or Justice, it is not necessary, in order to give the Judge or Justice jurisdiction, tliat the affidavit should in due course be filed with the clerk, al- though the neglect to do so would be a l)reacli of duty (^foore v. Gid- Inj, .32 U. C. R. 233). .\ justice of the peace, acting within his jurisdiction under these sections, would be entitled to no- tice of action {lb.) (j) See Form 120. {/:) See Form 121 for a form of tlie oath to be administered by the baililf, who should endorse a memo- randum thereof on the inventory, after the appraisers have done their duty. The appraisement must be in writing in Form 122, and be en- dorsed on the inventory (see T,.\riff of Fees, Form 3). 184 THE DIVISION COURTS ACT. [Sec. 1931 Proceedings may be con- tiuued in Court out lit which attachment isijucd. Proceedings conimenceil before attach- ment to con- tinue. Property at- tached may be sold under exe- cution. 193. In any case commenced by attachment, in a Division Conrt, the proceedings may be conducted to judgment and e.Kecution in the Division Court of the Division within which the warrant of attachment issued. (/) C. S. U. C, c. ] 9, s. 202. 194. Where proceedings have been com- menced in any case before the issue of an attachment, such proceedings may be continued to judgment and execution in the Division Court within which the proceedings were com- menced, (in) C. S. U. C, c 19, s. 203. 195. The property seized upon any warrant of attachment shall be liable to seizure and sale luider the execution to be issued upon the judg- ment ; or in case such property was perishable, and has been sold, the proceeds thereof shall be applied in satisfaction of the judgment, (w) C. S. U. C, c. 19, s. 204. « I (I) Section 190 says that if the application for attachment is made to a clerk, the attidavit shall he filed with the clerk "of an;/ Divi- sion Court ;" or if to a .Judge or Justice, the affidavit shall be trans- mitted to the clerk of the Court ■within whose division the same was taken (section 191). Whether, therefore, the warrant is issued by a clerk, a Judge or a Justice of the Peace, the Court of the division wherein the affidavit is made and the warrant issues is the Court in which all subsequent proceedings must be had. The jurisdiction as to locality is not therefore govern- ed by the same rules which apply in suits commenced by summons in the usual manner. If, however, so commenced, and an attachi;ieut is subsequently issued, the attach- ment (iocs not I'liauge the Court (see next section). (m) In botli these' cases, if tlie defendant hw riot heen personally served, the h".;; - • • r>r tvial shall not take p'aiv, ....,;, ,•■ ., -cntli after the sfcizuifl I'lOt ,. .iLtaclunent (Rule 35) ; the -i pose of whicli is to allow ail .;•: creditors who may sue out attachments within the month after the issue of the first attachment, to share in the proceeds of the sale of the goods seized, in the event of there being insufficient to satisfy the claims of all (see section 198 and note). (h) Cases of several attachment* are provided for by sections 197 and 198, but there is no express provi- Sec. 195.] ABSCONDING BEBTORS. 185' sionforany conflict betweenattach- ing and non-attaching creditors of the defendant. There can bo no question but that an execution issued on a judg- ment obtained in the ordinary manner, and placed in the bailifl's hands before an attachment from a Division Court, and necessarily, therefore, before an execution to be obtained in sucit attachment suit, has the priority. And, further than this, it seems to be the more general opinion, and that acted upon by the majority of the County Judges, that although the debtor's goods are seized under an attachment, they are neverthe- less liable to tlie execution of any creditor who may obtain a judg- ment, and deliver the execution issued thereupon to the bailiff, be- fore judgment is obtained and exe- cution issued by the attaching cre- ditor. The case principally relied in in support (ff this view is that of Francis v. Brown, 11 U. C. \\. 558; 1 U. C. L. J. 225, in which the above rule was laid down, but witli this difference — that there, the execution of the non-attaching creditor was issued from a Supe- rior Court (see also Fisher v. SulUij, 3U. C. L. J. 89.) If such be the rule respecting executions from Superior Courts, uhere would seem to be no reason, particularly looking at the broad ground taken in the judgment in Francis v. Brown, why it should not likewise be applicable to exe- cutions from Division Courts. Proceedings by attachment are either to compel the appearance of, or rather to ed'ect service upon a defendant, or to obtain security to the plaintiflF lor his claim ; in neither case, it is argued, would it be reasonable, that by taking a step for such a purpose a creditor should obtain priority over another creditor who commenced proceed- ings before him, such proceedings bemg finally carried to judgment and execution. Again, section 202 provides that an execution shall forthwith issue upon a judgment obtained in a suit, wiiereiu the summons was person- ally served before the seizure of any property under any warrant of attachment, that is , any w.^rrant in some suit other than that in which the summons was personally serv- ed (if such be the meaning of the section). If this is not intended to give the plaintiff, who had com- menced his proceedings by personal service, the advantage of priority of execution, what is the object of the provision that the execution should issue forthwith ? The rule — that laid down in Francis v. Brown — appears to be, (lui prior est in tempore, potior est injure. On the other hand, it is urged with much force, that carrying out this doctrine to its full extent would work great hardship and injustice to attaching creditors ; and it is argued in this way : Where proceedings are com- menced by an attachment obtained on tlie ground that the defendant is removing goods out of this Pro- vince, or from one county to an- othei, to defraud his creditors, any other creditor may commence pro- ceedings and serve the defendant with process personally, immedi- ately upon the seizure of the pro- perty under the attachment, and ten days only before the sitting of the next Court for tiie division. This creditor so effecting personal service may thus obtain judgment and execution two months in ad- vance of the attaching creditor, unless the attaching creditor suc- ceeds also in effecting personal ser- vice of his summons. Again, it may happen, it is urged, that several of a number of attach- ing creditors might be unable to 186 THE DIVISION COURTS ACT. [Skc. 195. {)rove their claims, as required by aw, at the first Court, ami an ad- journment be obtained until a fol- lowing Court. Executions would issue on the judgments in favour of some of the attaching creditors un- der which property might be sold, but the Judge might direct that no distribution should be made until the other creditors, the plaintiffs in the adjourned attachment suit?, had an opportunity of obtaining judg- ment at the following Court. In the meantime, other creditors at that Court might obtain judgments in suits where the summons had bi en personally served, and if the execu- tions on such judgments were al- lowed to attach upon the property in custody of the clerk under the at- tachment, the attachment creditors would be deprived of the benefit of the security o])tained by tlieir pro- ceedings, and instead of saving tlio jiroperty for themselves, they would merely have beiiciited a ]iarty who did not move in the matter until the property was in tlie hands of the law . If the ground upon which an attachment could be obtained in the Divi.sion Conrt.s was only because the defendant had absconded, so that personal service could not be elfected after the issue of an attach- ment, no conllict could arise, and all creditors wishing to obtain any- thing from the debtor's ]iroperty would have to proceed by attach- ment under section 198 in order to obtain judgment and execution to be entitled to rate. It is also objected that there is a much sti'onger reason than the supposed e(|uities of the case for thinking that attaching creditors have prioiity, and that the piinci- ple to be applied is that the goods when once attached and handed over to the clerk are in the custody of the law, and are not therefore liable to seizure under execution. It is contended that there is noth- ing in the Act to interfere with this principle; in fact, that sees. 190, 19r) and 202 all uphold it. If the principle referred to doesnot govern, where is the sense of enacting, as an apparent exception to the general rule, that property seized under an attachment may be seized or sold under an execution to be issued in snch attachment suit. But this sec- tion says nothing about any other execution. The rights of a judgment creditor, who has commenced his .suit and served his summons personally upon the defendant before the seizure of any of his property under an attach- ment, are referred to in section 202, and it is provided that his suit shall proceed as if no attachment had is- sued, and that he shall have execu- tion forthwith 07i his judgment; If it were intended that other credit- ors should be able to acquire an advantage by obtaining judgment on a personal service after the sei- zure of property under an attach- ment, it would have been provided for. The silence of the Act respecting the rights of judgment creditois in the iSujicrior Courts was hehl not to deprive them of their rights to pri- ority. When in a Division Court attaching creditors obtain by means of su(!h attachments a security for tlieir debts — the]noperty being held in the custody of the law for that purpose — unless the rights of others arc ))rovided for, where their claims conllict, the security provided to attaching creditors by the Act must be upheld against the claims of others whose rights are not provided for or referred to. It is also thought by some that after a seizure has been made under an attachment, the non-attaching creditor ought not, unless he should already have commenced his pro- ceedings by personal service, gain £ Sec. 197.] •ABSCONDING DEBTORS. 187 196. No plaint itf shall uivide any cause o ■■ Piai'itiir not t^ '- '' U' .do caune of action (nn) into two or more suits for the pur- ^-ti'>". pose of bringing the same within the provisions of the preceding sections, but any plaintiff hav- ing a cause of action above the value of one see huie s. hundred dollars, and not exceeding two hun- dred dollars, for which an attachment might be issued if the same were not above the value of one hinulred dollars, may abandon the excess, (o) and upon proving his case, may recover to an ♦amount not exceeding one hundred dollars, and the judgment of the Court in such case sliall be in full discharge of all demands in re- spect of such cause of action, (2)) and the entry Fm-w :,t. of judgment therein shall be made accord- ingly. (^) 0. S. U. C, c. 19, s. 205. 197. In case several attachments issue against if several atucu- any party then subject to the provisions con- '"^'"'^ '*""'"'■ tained in the sixteenth section of the Act re- finy advantage over the attaching creilitoi by subsec^nently efl'ecting personal .service. It Wiis probably tho intention that all the creditors wlio take tho necessary steps within the ])roper time should share ratably ; but to prevent wluit would often be a great injustice to one or more of them, the bailiff should in the case of an absconding debtor seize r; Wilis avail- able goods (see note (?/) to section 198). The matter is one of considerable difficulty, and whichever may be the better o])inion on these points, it is (piite evident that the legisla- ture has carefully abstaineil from throwing any unnecessary light on the subject. Thongli the section does not ex- pressly so direct, there would seem to be nothing to hinder the clerk from causing the property to be sold, whether perishable or not, on the issue of the tirst execution, and hold the proceeds until after the month spoken of in section 198 ; but this could only be done when the de- femiant has absconded and other claims are expected to come in (see also .section 200). (nn) See section 59 and note {e). (o) See note (/) to section 59, and Rule 8. ( p) See section fJO. ('/) See Form 51. 188 THE DIVISION COURTS ACT. [SKf. 107. ';' specting AbscoiuUng Debtors, (r) the proceeds of the goods and chattels attaclied shall not be paid over to the attaching creditor or creditors according to priority, bnt shall be ratably dis- tribnted among such of tlie creditors suing out such attachments as obtain judgment against (/•) Rev, Stcit, cap. t!8. The sec- tion referred to providis that if a sheriff to whom a writ of attach- ment has been di'livered for execu- tion, finds any property or etlVcts which have been sold as perish- able, or the j)roeeeds of any pro- perty or effects belonging to the absconding debtor, in the hands or custody of any constable, clerk or bailiff, under a warrant of attach- ment from a Division Court, the sheriff shall demand and take from such bailiff, «S:c. , all such property or proceeds thereof, whicli such bailiff, &c., is bound to deliver to the sheriff upon demand by him, and notice of the writ of atfach- ment, under a penalty of forfeit- ing double the value of the amount thereof, to be recovered by such sheriff with costs of sale, and to be by him accounted for, after de- ducting his costs, as part of the property of the debtor ; but the creditor who has taken out sucli warrant of attachment may pro- ceed to judgment against the debt- or in the Division Court, and on obtaining judgment and serving a memorandum of the amount there- of and of the costs, to be certified under the hand of the clerk, every such creditor shall be entitled to satisfaction in like manneras, andiu ratable proportion witli, the other creditors who obtain judgment, as mentioned in section '28, which en- acts, that the property in the sher- iff's hands shall be rataiily distri- buted among each of the plaintiffs in such writs as obtain judgment and sue out execution, in propor- tion to the sums actually due upon such judgments, and the Court or a Judge may delay distril)ution in order to give reasonable time for obtaining judgment. Section 'J!) further enacts, that every creditor who ]iroduces a cei- tideil memorandum from tiie clerk of any l)ivi.sion Court of his judg- ment, shall be considered a plaintiff in a writ of attachment who has obtained judgment and sued out execution, and shall be entitled to share accordingly. In case the property is insutK- cient to pay all the creditors, sec- ti(m 30 ])rovides that none shall be alloweil to share unless their w-its or Avarrants of attachment, as the case may V)e, were issued and de- livered to the sheriff, or Imilitf, or constalde, as the case may be, (or execution within six months from the date of the first writ of attach- ment. The enactments in the Abscond- ing Debtors' Act that have been referred to are intended to provide for eases where writs have been issued from both Superior Courts am/ Division Courts, but the pro- visions of the Division Courts Act only to cases of attachments from such Courts (see note to section 195). When several persons sue out attachments, each attaching creditor may contest the claim of the other to tiie same extent that the debtor himself might do (Rule 3G), and for the obvious reason that the fewer the claims the greater Sr. KtS.] ABSCONDINO DEBTORS. 189 tlic debtor (.s) in proportion to the anionnt really Rev. Nut.. c. es, dim upon sucli j"u(l<4inei.ts ; (t) and no distribu- tinn shall take place until reasonable time, in tlie opinion ol the Jud^,fe, has been allowed to the several creditors to proceed to judgment. €. S. U. C, c. 1 9, s. 200. 198. Where the goods and chattels are insuf- if i^oods insuf- ,. -ij' !• /•Ill 1. tlfieiit. ticient to sati.siy tne cuiims ot all tJie attaching creditors, no such creditor shall be allowed to sliare unless he sued out his attachment, and, within one month next after the issue of the lirst attachment, gave notice t hereof to the Clerk of the Court out of whicli the first attachment issued, or in which it was nuade returnable, (u) C. S. U. C, c. 19, 8. 2(J7. liis chance of being jiaid in full in case of a deliciency. (,v) There is n{)]>arently no neces- sity to issue execution ai tlie suit of tai'h attaching creditor. (/) Tlie "amount really due" would include costs, the iiniount fciuiid due and the costs together cciniiirising the Judgment debt. It Mould he unreasonable were it ;iki(1m uUaclicil. 190. All the j)roperty seized under the pro- visions of the preceding sections shall be forth- with handed over to the custody and possession of the Clerk of the Court out of which the war- rant of attachment issued, or into which it was made returnahle, and such Clerk shall take the same into his charge and keeping, (v) and shall be allowed all necessary disbursements for keep- ing the same. C. 8. U. C, I'J, s. 208. bai lifT should seize enough tosatisfy the debt of the attaching creditor, but that in the lalUr case lie should seize everything, so that a proper divisionniay be made, asisevidently intended by the.se sections ? There arc arguments ■which might be used against this suggestion, but it is the only one that seems to meet the dil'- licidty. If the debtor bus abscondc I, all his ellects should be in the hands of the law for distribution ; if he is onlyconcealed orremoving, thesum- mary means of calling his attention to his position is sufficiently satis- iied, imder the language of section 190, by seizing a portion of his goods. The next section seems rather to favour this view. To give this suggestion practical efl'ect, it would be necessary that the war- rant under which the bailiff acts should state (as possibly was the intention, as it is worded in the alternative) whether the defendant is an absconding, removing or con- cealed debtor. Bailiffs very often cut the gor- dian knot by seizing everything. Under an cxenUion he dare not make an excessive seizure, as he knows exactly how much money lie has to make, but rnuler an at- tachment he has no such certain knowledge. The warrant directs him to seize enough to pay the claim, ' ' toijcth cr with th e cunts of the xuU thereiijxm." Those who adept tliis course argue thus : How is a bailill'to know how much the costs ■will be ? If hedid not seize enough, and there were more goods, he woiUd be liable. The plaintiff's costs ma;/ be very large. Then there is the expense of keeping the goods, es- jiecially if the Judge allowed fur- ther time to dilatory creditors. All this, however, would bo no legal answer to an action for an excessive seizure under all circum- stances. As a matter of practice, bailiffs can generally judge pretty well of the best and safest course to pursue, and would generally in- quire as to the probable creditors of the defendant. See Kule 35, as to restraining the hearing until one inonth after the seizure. (v) The goods so in the possession of the clerk are in custody of the law, and the clerk would not be liable in an action of trespass, trover or detinue ( ycrrall v. Robinson, 2 C. M. & K. 49.-) ; Clurlc v. On; 1 1 U. C. 11. 43G ; C'aroii v. Graliam, 18 U. C. 11. 315). It was also de- bated in the last case whether re- plevin would lie ; but sec now as to this llev. Stat., cap. 5^, .sec. 3, which enacts that "no party to a suit or proceeding in any Court shall replevy, or take out of the custody of the sheriff, bailiff or other officer SRC. 201.] A15SC0NDING DEBTORS. 191 200. In case any i)er.son against whose estate f>n what urms '' * "^ , k<)0(1h attacheil or ellects any sucli attaehnient lias isGueu, or "'ay »)« r«i»t<.rou any person on his lielialf, at any time prior to the recovery of jndgment in the cause, executes and tenders to the creditor who sued out tlie attachment, and files in the Court to which the attachment has been returned, a bond (w) with good and sufficient sureties, to be approved of by the .ludge or Clerk, binding the obligors, 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 commenced against the person, pay the same, or the value of the property so taken and seized, to the claimant or claimants, or produce such property whenever thereunto required, to satisfy such judgment, such Clerk may supersede the attach- ment, and the property attached shall then be restored. (,c) C. 8. U. C, c. 19, s. 209. 201. If within one month from the seizure if the debtor as aforesaid, the party against whom the attach- "^"^^ "'^^ "''i"''''-- ment issued, or some one on his behalf, does not I ,j|i1'r any personal property scizcil In' him uiulcr procL'Ss iigainst .such l>arty in sueli suit or i)r(p('('cdin,:^. " Thi.s provision wouKl doubth'ss apply to }iropcrty handed over to the clork under tiie present section. See note (/() to section '6 of Keplevin Act. (w) The formal parts of the bond might be similar to that ia Form 126 ; the rest of it could easily be framed from the wording of the section. {■'■) This section will in practice apply only tj a concealed or re- moving debtor. It is open also to an absconding debtor, but is not often likily to be used by him. The reciuirement of the bond is to pay the judgment to be recovered by the attaching creditor or the value of the goods seized; not to pay all the claims that may come in against the defendant as an ab- sconding debtor. 'fw 192 THE DIVISION COUUTS ACT. [Sec. 202. If suinn mod liersoiuilly. . See Rule 3:.-. Proceedings aifainst delitors where )>riicus9 not previous!}- served. Rev. Stilt., c. S3. 14 and 10. 08 appear and give such bond, execution may issue as soon as judgment has been obtained upon the claim or claims, and the property seized upon the attachment, or enough thereof to satisfy the judgment and costs, may be sold for the tatis- factiou thereof, according to law, or if the pro- perty has been previously sold as perishable nnder the provisions hereinafter made, enough of the proceeds thereof may be applied to satisfy the judgment and co.sts. C. S. U. C, c. 19, s. 210. 202. Where the property of any person has been seized under any warrant of attacliment as aforesaid, and a-summous had been personally served on such person before seizure, (//) then the trial of the cause shall be proceeded with as it no such warrant of attachment had ueeu issued, and after judgment execution .shall forth- with issue, unless otherwise ordered by the Judge. C. 8. U. C, c. 19. s. 211. 203. Subject to the provisions contained in the fourteenth and sixteenth sections of the Act respecting Absconding Debtors, (c) in order to proceed in the recovery of any debt due by the ])erson against whose property an attachment issues, where process has not been previously served, the same may be served either person- ally or by leaving a co})y 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 also note (n) to section (y) Wliere the suninmns is not personally served, thetrialsliall not take place until one montli af trr tlic ■ seizure under the attachment ( Uule 195] see (;) llev: Stat., cap. C8 (.see section 197, note (r). Sec. 204.] ABSCv)NDING DEBTORS. 193 found ; and in every case, all subsequent pro- ceedings shall be conducted according to the usual course of practice in the Division Courts ; and if it appears to the satisl'act'ou of the «Tudge ou the trial, upon affidavit or other sufficient proof, that the creditor who sued out an attach- ment had not reasonable or probalile cause for taking such proceedings, the Judge shall order that no costs be allowed to such creditor or plain- tiff, and no costs in such case shall be recovered in the cause. C. S. U. C, c. V.\ s. 212. 204. Subject to the provisions contained in Peiisimbie fourteenth and sixteenth sections of the Act disposed ot. respecting Absconding Debtors, (a) in case any horses, cattle, sheep or other perishable goods have been taken upon an attachment, the Clerk of tlie Court who has the custody or keeping thereof (the same having been first appraised), in the manner in the one hundred and ninety- second section of this Act mentioned, may at the req'"^'st of the plaintiff who sued out thcRev. stat.,c. os, warrant of attachment, ex])ose and sell the same ^^' ^* *'"* ^'^' at public auction, to the highest bidder, giving at least eight days' notice (b) at the office of the ' Clerk of the said Court, and at two other pub- see Form. /m. lie places within his Division, (e) of the time and place of such sale, if the articles seiiied will admit of being so long kept, otherwise he may sell the same at his discretion. C. S. U. C, c 19, s. 213. (a) See section 197, note (r). (b) See section 175, note (c). (c) See section 174, note {xx). Tliis section specifies the clerk's 13 otlice as one of tlie three public places for posting notices. Sec- tion 174 does not do so, but in the note thereto it is .suggested that it should be one of the places. 194 THE DIVISION COURTS ACT. [Sec. 205. See Form lif>. Creditor to give 205- It shall iiot be conipulsorv upon the oond to iiidem- ^ j r nify the officer, bailifl' 01 constable to seize, or upon the Clerk and ttv no filed. ' ^ to sell such perishable goods, until the party who sued out the warrant of attachment has given a bond to the defendant therein, (d) with good and sufficient sureties in double the amount of the appraised value of such goods, conditioned that the party directing such seizure and sale will repay the value thereof, together with all costs and damages incurred in consequence of such seizure and sale, in case judgment be not obtained for the party who sued out such attachment, and the bond shall be filed with the papers in the cause. C.8.U.C., c. 10, s. 214. 206- The residue, after satisfying such judg- ments as aforesaid, with the costs thereupon, Khali be delivered to the defendant, or to his agent, or to any person in whose custody the goods were found, whereupon the responsibility of the Clerk, as respects such jiroperty, shall cease. C. S. U. C, c. 19, s. 215. 207- Any bond given in the course of any proceeding under this Act, may be sued in any Division Court of the County wlierein tlie same was executed, and proceedings may be there- upon carried on to judgment and execution in such Court, notwithstanding the penalty con- tained in such bond n)ay exceed the sum of one hundred dollars, (r) C. S. U. C, c. 19, s. 210. Residue, how disposed of. Bond may he sued in the Diri- Bion (-'oiirt. {d) See Form 125. (»-) It is not expressed that the damages under the bond may also exceed the §100 without ousting tlie jurisdiction; but that is (!vi- dentiy the intention, as tiie pen- alty is, in actions in the higher Sfxi. 209.] INTERPLEADER. 195 208. Every such bond shall be delivered up Judge may ■^ ^ deliver up bond. to the party entitled to the same, by the order and at the discretion of the Judge of such Court, to be enforced or cancelled as the case may require. C. S. U. C, c. 19, s. 217. CLAIMS OF LANDLORDS AND OTHERS IN RESl'ECT TO (J-OODS SEIZED. (/) 209- In the next six sections the word " lai^d- interpreution of tho words lord " shall include the person entitled to the "Landlord," immediate reversion of the land, or, if the pro- perty be held in joint tenancy, coparcenary or tenancy in common, hallinchide any one of the persons entitled to such reversion ; and Courts, the sum for which judg- ment woukl be entered, and the damages cannot exceed the pen- alty. Tlie judgment in a Division Court would, however, be given for the damages, i.e., tiie true sum tlie defendant should pay. (/) The following sections might be more popularly described under the heading " Interpleader," which is the word used in reference there- to in the Rules (see ^o. .37 ct seq.) For a proper understanding of tho subject, it will be necessary to consider (1) the nature of the in- terpleader ; (2) the projicr parties to it — which matters are spoken of hereunder ; — (:j) the subject mat- ter for adjudication ; and (4) the disposition of the goods pen»' 198 THE DIVISION COURTS ACT. [Seo. 210. Rev. Stat., c. 68. tliG party against whom such process issued, (i) then, subject to the provisions of the Act respect- ing Absconding Debtors, the Clerk ot the Court, upon application of the officer (j) charged with 16 U. C. R. 232, then the claimant may, by reason of his own consent, be bound by sucli adjudication ; or if, witliout a prior consent to such adjudication in such a case, he lias afterwards adopted the ad- judication, and has accepted the proceeds of the wrongful sale, it may be that he would be l)arred of all further claim against the bail- iff' .s vendee, as he would against the bailiff hinisi'lf ; bnt that it would be optional with the claimant to adopt or reject such an adjudica- tion, and stand upon his right of jiroperty. MrArtlnir v. Cool, 19 U. 0. II. 47(J, seems to be an au- thority. Secondly, as to the disposition of the goods seized. This is, during the pendency of the interpleader issue, in the ab- sence of any special order by the Judge, left to the discietion of the bailiff. It is very conmion for him to take a bond for the production of them, but this course, though advantageous to the person who shall eventually prove to be the owner, is not without risk to tlie otKcer. If the goods are perishable, or likely to deteriorate in value, or be very expensive to keej), the safest course would be to sell the goods and pay the proceeds into Court ; and he could hardly lie blanu^d in such case, should a claim be made, as in licht \. Mr- Donald, unless the claimant should make his claim promptly, and in- demnify the bailiff' against loss in keeping the identical articles until an adjudication should be had. If the articles are not perishable, he might deposit them in a safe place under his own control. The character of the jiarties and the nature of the goods will generally be a guide to him. In Ilarmvr \\ Cowan, 23 U. C. R. 479, the defendant, a bailiff, seized certain goods under an ex- ecution, which were claimed by the plaintiff'. The bailiff, intending to apply for an interpleader summons, sold the goods subject to the claim. The i^rice of the goods was not paid to the bailiff", and they were to remain in his custody until judgment should be given on an intended interpleader application, M'hich was subse(iuently adjudi- cated upon. Hao.\k'iv, J., said : "However we may be inclined to agree with the plaintiff' that a bailiff' cannot make a conditional sale, we do not see how Ave can tlierefore turn his objectionable proceedings into an absolute sale, vesting the property in his vendee. We incline to consider the sale wholly nugatorj', and that the ex- ecution was not executed, and the goods still remained, in the words of the Act, ' taken in execution.' " &c. (/) See note (f) ante, p. 195. (,/) This application should be in writing, addressed to the clerk, and shoidd contain, as fully as possible, all the facts with refeience to the seizure and claim that are referred to in the form which is given as 2s o. 111. An interpleader summons issued by a clerk without a previous re- (piest by the bailiff' would beirregu- lar, if not void {Rcif. v. Doty, 13 U. C. 11. 398), u. , ). 210. Sec. 210.] INTERPLEADER. 199 )oui't, with the execution of .such process, may, whether see iiuie ,n, . . , , , ^ and FonuH 10. before or after the action has been brought ^^ w. •'''. 7/, w. against such officer, issue a summons calling before the Court out of which such process issued, or before the Court holden for the Divi- sion in which the seizure under such process was made, as well the party wlio issued such process as the party making such claim, (k) and thereupon any action which has been brought whon actions in in any of Her Majesty's Superior Courts of Ee- SsTJ'pecu ;:ord, or in a local or inferior Court in respect of l.'Jattermay be* such claim, shall be stayed. (/) ''''''^'"^- (k) See Form 2i> for an iiiter- pleitder siiiuinoiis to elai iiiunt wlio will be the idaiutill' in the iuter- plemler issue (llule 37), ami Form 20 for suiiunoiis to tiie execution or attaehiugcreditor, wlio, by the same rule, will Ix' the defeinlaut in tlie interpleader issue. Tiie service of tliese summonses is also provided for by llule 'Al, which directs that they shall be served in the same manner as an ordinary summons to appear (see section 70). There seems no reason for having one form of summons to the claim- ant and another to the execution creditor. It would be ([uite possible to frame a form which would em- brace both, as is done in the Supe- rior Courts, and also under the gar- nishee clauses. The present plan is perhaps more complete, but it en- tails the expense of two original summonses where one would have answered the purpose. Rule HS pro- vides for a statement of tlie par- ticulars of claim (Form "21), which may be inspected by the creditor on application at the clerk's otJice, five days before the day of hearing, a,iid a notice to this etfect is to be given at the foot of the summons (see Form ■2(i). Where an execution plaintiff di- rects goods to be seized, or per.iists in opposing the claimant's title to them after they have been seized, and the issue is decided in favour of the latter, he has a good right of action against the former for dam- ages sustained by the seizure ; and the result of the issue is conclusive as to the claimant's right to the goods (Ilartnr.r v. Goainlock, '21 U. C. R. 2()0 ; May ft nl. v. Hoioland ctal., 19 U. (J. 11. ()6). ' (I) Xot only may such an appli- cation be made ( which is referred to hereafter), but until the inter- pleader claim is disposed of, there is no jurisdiction to go on with the original suit or any execution there- under. "Indeed, as it seems to me, upon the claim being made by a claimant, co ins f ant i, as far at least as anything atl'ecting his rights is concerned, the claim which consti- tutes the interjileader acition must be determined before any legal or elfectual proceedings can be taken upon the execution ; and if, after claim made to the goods seized, a i' n there is noth- ing Init what he had authority to do, and 1 do not feel at lil)erty to inquire, on this aitplication, into the I'egularity or mode of the pro- ceedings themselves wliich end in this adjudication" {Finloi/son v. llovur!l, 1 I'rac. 1!. 224 ; 1 U. C. L. J. 04). T'he (|uesti(ms that arose in seve- ral cases as to the position of the jiarties when the goods had been replevied from a bailiff under a Superior Court writ, are set at rest by the enactment of the Jieplevin Act (Iter. Stat., cap. o,'?, sec. 3), that "no party to a suit or pro- ceeding in any Court shall rejilevy or take out of the custody of the sheriff, bailiff, or other officer, any personal |>roperty seized by him under process against such party in such suit or proceeding " (see ■posL), Sec. 210.] INTERPLEADER. 201 of all proceedings had upon such action after the issue of such summons out of the Division Court. 8. The County Judge having jurisdiction in adjudYcat"''Sp sucli Division Court shall adjudicate upon the"'" '^'''""• claim, and make such order between the parties in respect thereof, and of the costs of the pro- ceedings, as to him seems tit, (m) and such order to pon The Court will not interfere if it appears that tlie Division Court Judge has not awarded damages to the claimant for the seizure by the execution creditor (Mnrcr v. .S7«/(- hn-ni, 4 W. K. ()49; 2 U. C. L. .1. 177). In interjdeader issues, contrary to tlie general rule, a Judge ot'a Di- vision Court may try the (juestion of property in goods, oven though the incjuiry may involve the title to land (Minisic v. MrKinlci/, 15 C. P. r)0; 1 L. C. G. 8). The ground of tliis decision was that the trial of an interpleader issue is a col- lateral matter ; and that whilst jurisdiction is expressly given to try the right to property under this section, there is no limit to the jurisdiction as to amount, as there is in cases where an action is brought. In fact, it must neces- sarily frequently happen that the goods in ([uestion are of much greater value than -SIOO. It was therefore hold in the above case that in interpleader the Judge might try the right to crops, al- though the in(|uiry might bring the title to land in ([uestion. Form 71 gives tlie form of the minute of adjudication on inter- pleader ; but even though this min- ute be informal, advantage cannot in general be taken of such infor- mality {Olljiliant V. LesJic cl al., 24 U. C. K. 398). In that case the minute stated an adjudication that the goods in dispute were the pro- perty of the execution creditor, in- stead of saying that they were not the claimant's or were the execu- tion debtor's ; but as it was in sub- stance evidently intended as a dis- missal of the plaintilf's claim, the bailiti' was held to be protected. (There is an error in the head-note of this case which at first is mis- leading). Had it been necessary, the aiil of section 155 might also have been invoked to get over the dilliculty in this case. [in) The Judge is not here ex- pressly directed to decide ques- tions under this section according to c([uity and good conscience, as he is in section 54 ; but that was doubtless the intention of the leg- islature, and such was the opinion of MowAT, V. C, in Jfclntosh v. Mcintosh, 18 Chy. Rep. 58. Ilia observations, as appropriate to the subject of Division Court jurisdic- tion in general, are (quoted in a note to section r)4 (page 49). After s])eakingof the etiuitable authority of the Courts, and referring to the words of section 54, he continues as follows: "Under the inter- pleading jurisdiction it is not with a money demand tliat the Judge has ordinarily to deal, but with questions of property and chattels; and in such cases the legislature has not rc([uired that the Judge should give judgment for one party '■ ;.,■'' ' t ■.V- -J 111 u i ia 202 TFIE DIVISION COIJUTS ACT. [Sko. 210. shall be enforced in like manner as an order made in any suit brought in such Division Court, and shall be final and conclusive be- tween the parties, except tliat upon the appli- cation of either tlie attaching or execution creditor, or the claimant, within fourteen days alter the trial, the Judge may grant a new trial (n) upon good grounds sliown, as in other m or the other siinpliciter ; but has authorized him, as seems to me to be the phiin reading of the Act, to mould his order, judjjment or de- cree so as to meet the justice ol' the case. Tiie letter of the enact- ment warrants, if it does not de- mand, this construction ; it is tlie •construction whicli justice to suit- ors ami general convenience re- quire, and Aviiicii is in accordance with the spirit of the enactment giving jurisdiction to tlie t'ourts in ordinary suits, and defining;; tlie SrinciiiU's which are to govern tli(! udge in tlie exercise of that juris- dictum. I think the Judge had jurisdiction to disjjose of the (jues- tion as to the ecjuitable as well as to the legal title of the ]iiaintitf. It was held in the 'asc of Mun- sic V. McKinlni, 1.5 t". \\ T.O ; 1 (A L. J. 12 ; 1 L" C. G. S, that the words, "The County . I udge, &c., shall adjudicate upon the claim," are imperative upon the .Judge to decide all intcrpleador issues with- out ths aid of a jury. It is sul)- mittod that there are other and stronger reasons than the mere words of tlie section above referred to, why a jury could not be called in interplcaiier issues ; such as, amongst others, the provisions as to jury cases under section 109, which s.ays that "either party" ni.iy require a jury in *' actions" for the recovery of debt or daimfges, thus alluding throughout the section to a sulistantive action and not to a collateral iiupiiry, such as an in- tcr])lea(ler issue is. The words re- ferred to in the above judgment are not very dill'ereiit from those in section 54, which certainly do not mean that juries cannot be liad in ordinary cases ; and it may be ri;- marked that tlie words, " the County .ludge having jurisdiction in such Division Court shall adjudi- cate \\\)0\\ the claim," are used in contradistinction to the ap])licatiot) to be made to a dillerent Court or .ludgc in the ]irevious ])art if the section (see JFashiiKjlun v. IVM), 16 U. C. R. 2:52). But iKnvever this may be, it is a very common and very convenient ])racti(;c, and one wliiidi has receiv- ed the sanction of some of the best of our County .ludges, for the, Juilijc to c;dlto bisassistaiici^ 'i.jiiry under the provisions of section 122, to try "any fact controverted in the cause," adopting or not their find- ing in his discretion. This section does not ajipear, from the report of Maimc V. McKiiili'j/, to have boeii referred to, either i)y the Court or by counstd, on the argument. (n) Until 32 Vict., cap. 2.3, sec. 26, new trials could not be had in interpleader issues. That .statute gave the right to the attaching or execution creditor, and it was fur- ther extinidcd to the claimant by 40 Vict., cap. 7, sched. A. 71. Sec. 211.] CLAIMS FOR RENT. 203 <1 8 Anno, 0. 14. cast's under this Act, upon such terms as he tliinks reasonaljle, and nmy in tlie meantime stay proceedings. C. S. U. C, c. 10, s. ITH ; 32 v., c. 23, s. 20 ; 40 V., c. 7, sched. A. (71). 211. So much of tlie Act passed in the F>r..visi()ns in relation to rent* eighth year of the reign ol (Jueen Anne, en-Juotoiunaiords. titled •■' An Act for tlie better security of Kents and to prevent Frauds committed by Ten- ants," (o) as relates to the liability of goods taken by virtue of any execution, shall not be ) and delivered to the I)aililf making the levy, claim any rent in arrear then due to him, not exceeding the rent of four weeks wlien the tenement has been let Ijy the week, and not exceeding the rent ac- cruing due ill two terms of payment wliere the tenement has been let for any other term less than a year, and not exceeding in any case the See Form 9.0. (o) Section I of this Act (8 Anne, cap. 14) ]ir()vi(l('S that no goods shall he taken in rxecution nnleas the cxi'cution creditor, before re- moval of the goods, pays to the landlord the rent due. Ihit it will ho seen that the following sections are suhstituted for tlie jirovisions of the statute of Anne. (mt) It is no uuL'oinnion thing for landlorils siuiply to claim so much rent as due, hut not specify the terms of liokling. In such a rase it is presumed that the bailiff would take no action upon the claim, as not being such a claim as the Act ])rescril)es. For instance, should the landlord claim a year's rent, it niij>ht be that the tenancy was a monthly one, in which cjise only two months rent would be due. Should the bailiflf levy the year's rent, as claimed, he would be liable, no doubt, to an action. ( p) See Form 20. 204 TIIK DIViyiON COURTS ACT. [Sko. 2lir. Udw thf liiiiliff ll t« |ir, see. 2, which rc<|uires an appiaiseniunt of the goods by two sworn up- praisurs, wiiose duties would iiu the same as tho.se re(|uircd in attach nieut eases un ; 1 C'ux & Mae. 428), provided he does not Seize more of such exempteil goods than iire sullicient to satisfv the rent ; .;nd .section 214, which re- cognizes the right of replevin in these cases, coupled with the sub- sequent ^Vet of 2;{ Vict., cap. 45, see. 8 (now amended and appear- ing as sec. 3 of Uev. Stat. , cap. 53), support this view. Tlie Act under which this case was (heided did not contain, if it would make any difference, any provision similar to that of section 215. Wouikock v. Pritchanl does not appear to have been expressly overruled ; but, on the other hand, tlic later cases of llrin-il V. Knhjilt, 27 I^. •!. (l- U. ;i5!t; I, Fur. N."s. 782; and ir//co,io// V. Searhi, 20 \,. J. Kx. If. I, to the cU'eet that the goods of a stranger on the prenuses, which, as a gen- eral rule, are liable for rent in arrear, are not distrainable untb.'r this section, arc suilicient to found a strong arg'.nneut against the for- mer case, combined with the fact that the bailill's right to levy is derived solely from the writ of ex- ecution, unb:ss indeed it can be considereil that he becomes, upon receiving the notice of claim, the bailill'of the landloid as well as of the Court issuing the writ, as was suggested in ]\'uo(hiiose of nuiking the nu)sl on 1)oth claims in his hands, tir.st to sell the ex- empted articles (as though for rent), so that there might be a greater residue for the execution. This construction would often work harshly upon defendants who are tenants ; but until sucli time arrives tliat the tenant is entitled to the unconditional exemijtions of a debtor, there would be no help for it. A landlord, as a rule, would only sell enough to cover rent and not the exempted articles, the bailiil" on an execution c(uild notsellthem, and so the debtor would be pro- tected. It must be observed that all per- son.il chattels found on the pre- mises (as a general rule) may be distrained for rent whether they be the chattels of the tisnant or of a third person. But to this there are exceptions: o.'. */r. , tenants' fix- tures are not distrainable; nor are beasts broken to harness, and regu- larly employed in work connected with the ordinary cultivation of the land; nor sheej), or implements of a person's business or profession, 80 long as there are other distrain- able chattels immediately avail- iiblc ; nor is wearing .i .)parel actu- ally on the person of the owner, or money; nor are quickly perishable articles ; nor is the property of strangers standing on the demised premises, in the actual or construc- tive possession of such strangers, or necessarily placed there for trading or manufacturing purnoses ii iiil 206 THE DIVISION COUUTS ACT. [Skc. 213. ii'ii r# Fees of uaiiifi in 213- Foi evGiy additional distress for rent in arrear, the Bailiff of the Court shall be en- titled to have, as the costs of the distress, in- stead of the fees allowed by this Act, the fees Rev. Stat. c. (jr.. allowed by the Act respecting Distresses for small Eents and Penalties, (n) C. S. U. C, c. 19, s. 178. 11 replevin made. 214. If any replevin is made of the goods distrained, (/') so much of the goods taken under the warrant of execution shall be sold as will satisfy the money and costs for which the said warrant issued, and the costs of the sale, and the surplus of such sale and the goods so dis- trained, shall he returned as in other cases of (Addison on Torts, 441, &c. ; Wof.d- fall, Sbe-.STG ; Tudor's Ileal I'lo- perty Cases, 188-lt»0 ; ol Hen. III. stat. 4; aS'h'?>c v. Leach, 18 C. B. X. S. 479). So that a bailiff acting nnder sections 211 and 212 would be obliged to be veil guarded as to the way in which he discharges his duty. (s) Rev. Stat., cap. 65. The fees under this Act arc as folk)w.s : Levying distress under .$80, unr dollar. Man keeping possession, per diem, >scventij-fl^i' Cents. Appraisement, wliether by one ap- praiser or more, tmo ccittn in tlie dollar on tiio value of the goods. If any printed advertisement, not to exceed in all one (lolhir. Catalogues, sale, commission and delivery of goods,,//* fc/i^s in the dollar on the vX produce of tlie sale. Bailiffs have no right to charge poundage in cases of this kind (.see Murray v. McNair, 2 L. C. C 14). Under section !) of this Act, every person wiio malces a distress shall give a copy of the demand, and of the costs and charges of the dis- tress, signed by him, to the person whose goods are levied upon. Tlie strict letter of this Act might per- liajiH not include bailill's acting under the above sections, but it would be advisable for thoiii to do the same thing. (t) The proceedings under sec- tions 211 and 212 are not intended to restrain the rights of a tenant to replevy his goods in case of an illegal distress for rent. It is of course impossible to distinguish be- tween what is seized for rent and under the execution, and tliis si'C- tion gives the tenant the right to replevy on tliis form of ilistress all such goods as may not lio lenuired to satisfy the execution debt and costs. The tenant's rights are thus preserved against an illegal dis- tress. The appraisement would he a guide as to what he should re- plevy. 213. Src. 216.] RENT — ACTIONS ON JUDGMENTS. 207 distress for rent and replevin thereof. C. S. U. C, c. 19, s. 170. 215. No execution creditor under this Act when landlord's claim to rent is sliall have his debt satisfied out of the proceeds to be first i.aid. of such execution and distress or of such exe- cution only where the tenant replevies, until the landlord who conforms to the provisions of tliis Act has been paid the rent in arrear for the periods hereinbefore mentioned, (u) C. S. U. C, c. 10, s. 180. 216. No costs shall be recoverable in anv ^'''"^}^ ""'■ 'ecov- " criibie m any suit broujfht in any Court for the recovery ol ^'^i'"" "" '\'vi- " •' ^ sion Court judg- any sum awarded by judgment in a Division '"^"'^^''^''ou*' Court without the order of the Judge of the Court in which such suit is brought on suffi- cient cause shown, (v) C. S, U. C, c. 19, s. 115. iSir. also liev. Stat., c. 50, s. 344. (u) From this it is tilear tliat sec. 8 of Kev. Stat., cap. 53, (the Replevin Act, sec /loxt) which en- acts that no party to a suit or proceeding in any Court shall re- plevy out of the custody of the bailiff or other oHiccr any pcrsonul property .seized hy liini under pro- cess against such party in such suit 01' imicceding, does not touch cases where the bailitl' distrains for rent as well as on an oxciiition. The larKUord, therefore, unless the goods are replevied, is to be paid first, and any l)alaiice is to go to tlie execution creditor ; anything more than this must of course be re- turned to the debtor, {t>) This provisi, Haoartv, J., giving as an addi- tional reason for sn])i)orting the same views, that if the defeiulant were s\ied in a higher Court he would lose several important a) by order of the Court, or before a Justice of the Peace of the County or City, and to be imprisoned for 'iny term not exceeding three months, and the IJailill'of the ('ourt, or any peace ofhcer, may in any sucli ca^e take the offender into custody (with or witiiout warrant) and bring him before oUch Court or Justice accordingly. 13-14 V., c. .")3, .<«. 100.] Misconduct of C/erks, Bail iff s, d^c. (<•) 218. If any Bailifl' or oflicer, actiiio; urulei- colour or pretence of proces.s of the Court, is jiuilty of extortion or misconduct, or does not duly pay or account for all money levied or re- ceived by him by virtue of his office, the Judge, at any sitting oi' the Court, if a party aggrieved thinks fit to ciuiiplain to him in writing, may the contempt was the publication by a solicitor of a letter complain- ing of the conduct of a .Fud^e in a cause in whicli lie was inteiested {Ex imrtr JulHlfr, Nci/. v. Li'I'roit, L. R. 8 Q. B. m ; !) C. L. J. N. .S. 182) ; sec also In rr. lircorth r'of To- ronto, 10 U. C. L. J. If)'2 ; Td U. (". R. 376). See section 22,') for form of con- viction. Form 73 gives tlie minute of an order ior the imjiosition of a tine ; and Form Dii is for a wairant of connnitmcnt for contempt. See also section 4(! and note ((j). (a) See note {a) p. 31, cvte. {ail) A bailifl" who has Iwen as- aaulted may, not«it!:standing a conviction, and that tlie person lias been fined under this section, bring an action in a Division t'oui t or any other Court for the damage wiiieh lie has Su'jtained (Jn ?v; JJnr V. (fricH, 1) Ex. iO-i). {h) See section 4(5, note (,7), and section 22r> for form of conviction. ('■) Section ii'2 an, s. 180. Nrijli(jencc of Jiai/ijfk {<) ,1 Bai.rt- I.e.'- 220. In case any Bailili' eniploved to levy ait let their .liuv 111 . "^ , 1 " , "■ relation to ixe- oxcciitioii ayaiiist good.s uiul cliattcls, bv ueg- k'ct, connivance or omission, loses the oppor- tunity of so doing, then upon complaint of tlie party thereby aggrieved, and upon proof by t lie oath of a crcdi1)le witness of the fact alleged to the satisfaction of the Court, the Judge shall order the Bailiff to pay such damages as it appears the plaintiff has sus- tained, not exceeding the sum for which the execution issued, and the iSailiff shall be liable thereto ; and upon demand made thereof and uu iiis refusal to satisfy the same, payment shall be enforced by sucli means as are ]tr<)- \\wd lor enforcing judgments recovered in the C.nivt. (/) C. S. V. C'.,c. Ill, s. U7. 1)1' aiipointod oven by the Crown, ami the .rinlgcs are houinl to notice it (see f;7 : and (^iilli/on/ v. L'drduiuhU, 1 Salk. W'>, wliicli flei'i'le and ex- ])liiin what is ))uyiug and selling ortires within the meaning of the statutes). (( ) This section applies where the bailifl' has lost the oiiportunity of making the money on an exemi- tioii ; section '2'21 to cases where the hailitf iieylects duly to return any execution, or makes a false re- tnin thereto ; and section "JlJS to discs where the hailitl' has made the money but has not paid it c)ver (see also section 52 and Kule 98). ( /') This is a summary remedy against the bailiti', entirely irre- Sec. ■221.] NEGLIGENCE OF BAILIFFS. 213 221. If any Bailiff neglects to return any Action against . ■; , , "^ Bailiff anil siiro- execution witlun three days after the return »•«« 'or neu'iect ■' of Bailiff ill re- day tliereof, or makes a false return thereto, ('/) tuniini,' oxucu- ^' ' tioii. the party who sued out such writ may main- tain an action in any Court having competent jurisdiction, against such Bailiff and his sure- ties on the covenant entered into 1)y them, and shall recover therein the amount for which the execution issued, with interest thereon from the date of the judgment, or such less sum as in the opinion of the Judge or jury the plain- tiff uii ler th,^ cirj;rn>ta'i;3s is .justly entitle to recover, (//f/) C. S. U. C, c. 19, s. 148. sjiei'tivc of the ri<;ht of an iiggrievi'd party tu sue the bailiff iiml his sure- ties on the security coviMiant. re- ferred to in seetions '27, '28 and iJO. Tlie jilaintiH's course under this section wouhl 1)6, to make a phain statement of the facts and liand the same to tlie ch-rk to he served on the bailiff, and produced before the Judj^e on the next Court-day, or sucdi day as he might appoint for hearing the matter ; on which day till' plaintiff should be in attend- ance with his witness or witnesses to prove his case ; the bailiff and his witnesses would then be heard, and should the complaint be sustain- ed, an onler would be made on the bailifl' to pay such damages to the plaintiff as tlie Judge might think I)ro]ier, and that in default thereof execution should issue against the baililf. The plaintiff should then have a copy of this order served upon the bailiff, and at the same time demand from him the amount mentioned in the order (or what Would be better, endorse on the order and copy a demand for the amount). Upon the refusal of the bailiff, or his neglect, which would amount to the same thing, to satisfy the demand, the plaintifl'shouldgo to the clerk with the person who served the order and made the de- mand, himself to make an affidavit that the bailiff had not paid the amount, and that it was still due to him, and the* person effecting service and making demand to make an affidavit of such facts. Upon this the clerk would be justi- fied in issuing an execution against the bailiff for the amount due. As the proceedings under this Act are somewhat complicated, and nut genei'idly known to injured suit- ors, parties usually proceed by or- dinary action against the officer and his sureties on the covenant. (//) See note (c) to section 220. (77) Pr'imiA facie, the amount re- coverable in such an action as this would be the execution debt and interest. In the Superior Courts something might depend as to tiiis upon the form of action (see K'nvian V. Hall, 24 U. C. K. 248) but that of course would not affect an action brought in a Division Court. Under this section, the amount recover- ■ M 214 THE DIVISION COUirrS ACT. [Ski', 222. 1 Executkm may 222. It a judi ^ , , . ami if Haiiiffhas af^ainst tlic Bailiff and liis .sureties, execution sureties never- shall inimediatelv issue thereon, and m case of tlieloss lialile. '' the departure or removal of .such Bailiir 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. C. S. U. C, c. 10, .s. U\K I I'Miies, hciw (Mifdrced by Division Courts. H(i\v eiiforcecl b> Justices nf tlie Peace. FINES, now ENFOKCEP. 223. lu case a Division Court imposes any fine under authority of this Act, the same may be enforced upon the order of the Judge, in like manner as a judgment for any sum ad- judged therein, and shall be accounted for as herein provided. C. S. U. C, c. 10, s. 187. 224. In all cases in which by this Act any penalty or tbrfeiture is made recoverable Ijefore a Justice of the Peace, {h) such Justice may, with or without information in writing, sum- mon before him the party complained against, and thereupon hear and determine the matter of such complaint, and on proof of the oH'ence convict the offender, and adjudge him to pay the penalty or forfeiture incurred, and proceed to recover the same. C S. U. C, c. 10, s. 188. able would seem to be tlie v.ahie of the execution. The Judge -would be entitled to consider all the cir- cumstances which would allect the jirobability of the execution credit- or obtaining piiymeut of his debt, even by means of pressure on the defendant under the judgment sum- mons clauses, and these circuni-^ stances might be of such a nature as to warrant substantial damages. (/() ksucli as sections 4(), -17. A County Judge is r.r iij/icin a justice of tlie peace in every county, but as he can in all lases where neces- sary act without this section, and as lie is not named in it, it was not intended probably to include him. Sk.c. 22f;.J I'HOTECTION OF OFFICERS, ETC. 215 225- III ill! cases wlioiv a eouvictiou is had Form of con- vktion. i'ur anv olfeiice comimttecl a''aiust tliis Act, tlie t'ortn 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 3'ear of our Lord , A. B. is convicted before , one ((>/' two, (IX tJui m.tc maij he) of Her IMajesty's Justices of the Peace for the County of or before , a County Juhnnl V. 'LisUi' H III., 24 U. C. R. :i\)S). Aithough it has been held that a bailiir acting in o})edience to a war- rant, without a seal, can claim notice of action (Amlcrsonw. Gnice i-t ill., 17 U.C.H. !)()), yet it will be observed that /// /.« section expressly refers to the warrant being under tli(! hand of the clerk and the seal of the (.'ourt, and a liailitf could not justify under the following .sections unless the warrant was so signed and sealed. {./) Sec last note. (Z) The object of this provision is to show the authority of the otti- ccr as acting under legal ])rocess duly issued, and of giving such in- formation as will enalde parties comi'laining of wrongs, to proceeil against those who are legally liable, 'i'lie warrant is only valid if i.ssued by oiu! having authority and juris- diction, as regards tlie subject matter and the place where the power or order is executed. This is illustrated by Kalar v. Cornniall I't el., untc, where the officer acted in ol)edience to a justice's warrant. The officer is only protected un- der the statute by pioving that the >F.r 228.] rKOTF:(."TioN OF oFFicKRs, i-yru. 217 tlio jury shall tjivo their verdict for the de- I'eiidiiiit, iiotv/ithstanding any defect of juris- diction or other irregularity in or appearing by the warrant. (/) C. S. U. C, c. 10, s. 19G. 228. (in) U an action is broupy (see judgment of Ha(!AHty, (". J., in .1 raolt V. Jinvlhi, 28 C. P. G). If the person accept a copy and make no further demand for a perusal of the original, he iray be held to have waived it (Atl- !>< v. Kilhi/, 11 A. & K. 777). If ]!■ it'i er copy nor perusal are given, the oliicer stands in no better position than the ma- gistrate (^< ;•/(«KC i2\i. Di'fduiimt limy 229- Til any such action llio (Icfcndant mav lllliul ^JflllTlll "^ , i»i*"i'- plead the gonoral i.ssne, and n assist- ing iiiui in the execution of it, altliough there nuiy have been ir- reguhirity in the previous proceed- ings. If, however, the person against wlioin the process lias is- sued has sutiered injury by such irregularity, his remedy is still preserved against the author of the injuiy in an action for the special damage. For example, if the clerk makes out process against the wrong person, the bailiff or per- son acting under him would be protected, and the clerk would be liable to an ac^tion at thesuit of tlie person aggrieved by such irregu- larity for the special damage ; lie- eause the executive ollicer carrying out the process of a Court cannot be supposed to go behind the i)ro- cess in order to ascertain if the pro- ceedings u]ion which it is founded are regular. On the other hand, if tiie otiicer has no warrant, signed and .-^ealed, or has acted beyond the authority of the warrant, he is liabb' for the excess, and no demand of a copy of the warrant under section 22(1 is necessary. For instance, if he take, or distrain, or levy on the wrong person's goods, or if the warrant direct him to take the goods of A. and he take the goods of I!., or executes the warrant beyond the limits prescribed by law, he is not within the protection of this sec- tion (see I'e/)/i"8"f ])(a\son for anythin" ilone in imrsuance of this t'''v-'* ''"."« ' ./ o I ^ ^ iimliT this Act. Act {(/) shall be commenced within six months {,])) TreHjiass ii/> luttio, or, fniiu tlic l)L'L;iiiiiing, occiii'S in this way ; When OIK! who Iiuh authoiity hy hiw for iiij; an act, but innteatl of acting hiwi'iilly muUsr tliat au- thority al)U8i'H it, sucii abuse turns the act into trcsjiass, ami the jkt- son becomes ii trutijiasscr iili ittiliresence of the .luilge, and tlie defendant then refused to give them ui» for reasons which he thought sufficient. It was held that a notice of action was neces- Sec. 231.] NOTICE OF ACTION. 221 coinniitted, and notice in writing of such ac- tion and of the cause thereof (r) shall be given siiry, ina.smuch a.s the dctVudant was fill tilling a imblic duty, ami this was an act done in the per- formance of such duty within the words and intent of the statute. The distinction in this respect seems to be as stated by liK'iiAKD.s ('. J., in .Uaraii V. Pabmr, 13 V. V. o'JS, that" when what is complain- ed of is a negligent omission to do w hat the defendant was called upon to do in the discharge of the duty of his ollicc, then no n. tice of action would be re«|uired ; but wliere the party neglects to do an ;ict, and ill that way carrying out the law according to his erroneous idea of lii.s duty, then he is entitled to notice of action.'' In many of the previous cases a distinction was made as regards public ollicers claiming the benefit ot similar statutes between mere iinnfcasanceand luiilfeasaiu'e. The liuc is a dilHcult luie to dr.iw ; the coiise([uence is, that the cases a.re not entirely consistent, and hardly (li.stiiiguisliable. Kiiit V. (I'rrii/ ]Vi Cii., 3 V. V>. 714, was a case whero the defendants hail, contniry to the Iirovisions of their charter, made excessive charges for tiic carriage nf goods, iind claimeil and received tlic aiuouiit from the ]ilaintiir. It was held in an iiction for money had and received, brought to reeover Isick the sum so extorted, that the Coiiipaiiy were entitled to a notice of action, because l)y the charter it was enacted that no ,ac- tiiHisiiouid bebroughl for anytliing done or omitted to be done in piir- suauee of the Act or in the execu- tion of the powers or authorities given tliereby unless twenty days' previous notice should he given. Tlie case of //(«.•< v. MrLnii, above referred to, gives various decisions to the like eflfect which bear on this section. 'J'he reference in the next sec- tion to the Act to protect .lustices of the Peace and other Officers from Vexatious Actions (Hev. Stat., c. 73), creates a ditHculty as to whe- ther the provisions of the Ip.tter statute are a]iplicable to notices of action under this section so as to render it necessary to state certain facts in the notice which are re- quired by that Act. It would seem, however, from the language of DuArKK, C. J., in MrPlmttir et ah V. LixlU' it ((/., 23 U. C. II. 573, that a notice of action to a Division Court clerk Is sulKcient if it com- ply with this section. He says: "The Con. Stat. U. C, cap. 19, sees. 193, 194 (Hev. Stat., cap. 73), provide expressly for notice and limitaiioii of action for anything done under that Act ; and though the enactments of 14 and 15 Viet, are re-enacted by Con. Stat. U.C., caji. \'H.), it ajipears to nie we can- not liolil that the latter chapter was intended to overrule or vary the provisions of cliajiter 19 (.sec. 1'31 iind 23'J of present Act) of the same statute, but that they were establisliing rules for distinct cises. I think, therefore, that the clerk ill this case having been served with a notice of action such as the Division Court Act reipiires, can- not suicessfully object to the want of iidiiitioiial foi II lalitiet. which chap- ter 12t) letiuires." (/■) The notice must be "of such ai'tioii. "It must therefore ilistinct- ly state that an action will be brought {Miimiii v. Tin- /lirlvn/nnil /iii/iroci iiii'til Ciitiitnissioiicrs, (f H. •V N. 7-). It has been derided at Nisi Prius that a notice stating that the action will be brought in a par- 222 THE DIVISION COUKTS A(rr. [Sec. 232. r ■!' to the defendant one month at least before the connnencenient of the action, (.s) C. S. U. C, c. 10, s. 193. Dpfemiant may 232. If tender {t) of suthcient ainend.s is and pioiui tho niatle ijetore action brougiit, or it the delend- .,'entra is.sui,,^ t. ^^^^^ ^^^^^ actioii brouglit, j)ay.s a sutticient sum of money into Court with costs, the plaiutilf ticular Court will not .siiHice if it lie hroimht in unother Court (A's- sloh V. Wriiiht, 17 ]i. T. Itep. 2«)0). This case was followed in Slr- plirnsv. Sfdplt'fDii, 40 r. ('. H. .Sf).'}, where it was heltl that Con. Stat. 'U. 0., cap. 126, was inai(i)li('alilt; to the case of a Division Conrt bail- it!' acting uniler an execution, the above sections of the 1 livision Conrt Act having " made ..)>ei;ial pro- vi.sion of the most ample character." This ease was confirmed by ,)/«,•- Mart in v. llurlhttrl rt ol., '2 Ap)). Rep. 14(), so that the law on that point is now settled. In thesi! two eases the ijuestion arose as to whether it was neces- sary to endorse on the notice of ac- tion the name and place of abod" of tlii^ ])laintitl', and it was held in the negative. Knt it is necessary to state in the notice the time and jiiace of the alleged trespass (Mnorvx. Oldlni, 32 U. V. l\. 233 ; /livrsc v. JrMein et ni, 4Q. B. nSo). If the notice volunteers inf'iima- tion which is incorrect, it will be bad. In /,'»-■• -,-. llinit.i; 20 U. C. K. 43(i, liuiiiNsoN. C.J., says: "If this notice had given no informa- tion whatever in regard ti' *'hi' Court ill which the action would be brought [necessary under chap- ter 12ti), there woidd be less ditli- culty in holding it to be sulKcient, though it is usmd in all these no- .tices to state the Court in which the ])laintitf intends to sue. Rut here the plaintiff has given incor- rect information on a jjoint on which the statute does not e.\- pressly leijuire that he should hav: given any, and we cann4)t say ii;:'.t we think the learned .ludge was wrong in holding it bad on account of its tendency to mislead." [s] The month hen; sjioken of is a calendar month, and begins at nuiinigbt of the ilay uj)on which the notice is given, an>l ends at midjiight of the day with the cor- responding nundier in the ne.xt month in the calendar ; so that, if notice be given on the first day of the nn>nth, the action nnvy be com- menced on the seconil day of the next month {Frri'tnnn v. Jlmd, 4 I>. AS. ]74). A clear calendar month must intervene between the notice given and the t'omuu'iieement of the suit. The statute is therefore com- l>lied with if the notice ia served, for in.stance, on the 28th of March, and the writ taken out on the 2!)tli of April [Mr[ii/i>.sfi v. V(in>8). (0 See uot(! (i) to section M. 11 Ski-. •-';!•:.] TENDKU OF AMKNDS. wu O shall not recover, (v) and in any such action (v) the tlefendant may plead the general issue, (?/;) and give any special matter in evidence under that plea, (x) C. S. U. C, c. 19, s. 194. And .svv the Act to protect Justices of the Peace and other Officers from Vexatious Actions, llev. Stat., c. 7:'. ((/) Tender of aineiuls is no de- fence ;it (.'omnion Law in an action for a wrong. It is made a defence in .some cases by particular statutes, of wliiili tliis section is an instance. It may lie made and the defence relied on liy the general i>sue by statute (ISuilen & Leake, '2nd Ed., This section aj)i)liea to all actions brought ag^iinstanypeison for any- thing dnni- in jiursuiiiice of the Act, and jjermits him to tender amends hi fori action brought, or to pay a sutlicient sum of money into ("(nirt n/'fir action bi'ought, irn spective of the cause of action ; and the ile- fence may be relied on under the plea iif general issue by statute. It is true that, under section 108 of the Common Law Procedure Act, money cannot be paid into Court by way of compensation ,'ain.st the bailiff and themselves take ad- vantage of want of notice of actio)i to tlie hailitr or to themselves, or of any otiier defence given hy statute for the protection of tlie former. Hut in a joizit action against the bailiff' as princijial, and his suieties, the recovery must he against all ornone — the period of six years after, the same were paid into Court, or to the othcers thereof, and all sums of money, when this Act takes effect or afterwards in the hands of the Clerk or Bailiff, paid into Court, or to the officers thereof to the use oi any suitor, shall, if unclain^.ed for the period of six years after the same were so paid, form part of tlie Consolidated llevenue Fund, and be ])aid over by the Clerk oi Oflicer iioldinjj; the same to the County Crown Attorney ol' his County, to be by him paid over to the Treas- urer of the Province, and no person shall be entitled to claim any sum which has remained unclaimed lor six years, iii) C. S. U. C, c, 11), s. 4.5. 236. No time during which the person en-i'iaimsof per- . , , , . , . , sons under liis- titled to claim such sum was an miant or oi ability n.-i to . be i)roju(Jic;u(l. unsound mind, or out ot the 1 rovince, shall ])e taken into account in estimating the six years. C. S. U. C, c. 10, s. 4G. tlKNEUAL HULKS AND ORDERS. 237. The existing Board of County Jud-jjes, J'"f'''>f '"'ix-* vv-ith authority to make Iiules relating to l)\- ^•""t'""'-''J- vision Courts, shall continue until superseded or revoked by the Lieutenant-Governor; and (a) The suretifs of Division Court oflicevs ui'f, under this sec- tion, liable to the ("lown by virtue ■jf the covenant Ijy tiieni given 16 (see .sections 27, 28, 2!t and notes thereto, on j))!. 18 to 22 ante, and schedule to this Act). 226 THE DIVISION COUliTS ACT. [Sec. 238, all liules and Forms heretofore marie relating to Division Courts and in force when this Act takes effect shall, so far as applicable, remain in force until otherwise ordered vmder the pro- visions of this Act. 0. S. U. C, c. 19. ss. 1, G2,70. The Licutciunt- 238- Tlic Lieutcnant-Oovemor may from (i(ivtriii)i' iiiav ;ii.iM.iiit live ■ time to time ai)T)oint and authorize five of the (imiitj .lii(l},'is ' *■ tM fninif niks, Couutv Judujes, wlio sliall be styled "The I'oard of County Judges," (h) to frame general rules and forms concerning the practice and proceedings of the DivisiDU Courts, and the execiition of tiie jn'ocess of such Courts, with power also to frame ri;: . 'ul orders in relation to the provisi(Uis 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 have been or uiay l)e conflicting decisions in any of such Courts, (c) C. S. V. C, c. 10, s. G3 ; :i2 v.. c. 23, ss. 21 22 ; 27-2S V., c. 27, s. '.). 2. The Licutenant-dovernor may appoint any retired County Judge to be one of the mem- bers of this Slid J'.oard. 4() V., c. S, s. 1".. Utiles rcsincti.i- ;',_ xhe said lioard may also iVom time to < Ui'Us and •' time make rules Ibr the guidance of Clerks and Bailiffs, and in rehiti)n to the duties and .ser- r.ilircil .lii(lj,'u iiia.\ hv a|i- iHiiiiteil. l.uilitVs. [i') 'I'his Hiiaid, ai)i)tiiiitfil iiniUr o'J N'iut., laj). 23, WHS tdiiHlitutcd ( II "24111 Maiili, ISGit, .iiul coiisist- t(l III Jutlyo (iowaii, ot Siincoe, (.'haiiiiiau ; Jui j^e JoiiLf, of JJiaiit; •lud^c llu^liLS, of I'ilgiii; .Jiulf^o Daiiit-Il, of l'i(..iC(>tt and liusbcU ; ami Jii(lf,'c Sii.itli, of N'ictoria. lianuiliattly .".iter their a|iiJoinl- lueiit tht-y t'lnimi'iicud tlii'ir labours aiii' proiinilgated the rules of April, 18u!(, wliiuli, liowcvcr, weruonlyof a tfiniiorary cliararter, and were followed liy the luhsuow in force, which were }(roniulj,'ated on 1st July, I8t)!), .Judge Maedonald ot AN'ellington is now a incndjcr of the Hoard in jilaceof Judfjc Sndth, ilcceased. (' ) JJce note (.»•) to Iluli' 120. Lk: Sec. 240.] FRAMING RULES AND ORDERS. 227 vices to be performed, and to the fees to be received by tliera ; and may also substitute other fees in lieu of fees payable to Clerks and Bailiffs under any rule, order or statute. 32 v., c. 23, s. 22 ; 37 V., c. 7, s. 91. 4. The said Board may from time to time Aiiicn.iiiKtitof alter or amend any rules or orders made for the Division Courts, and may for any Division (.'ourt division embracing a city, or part of a city, ostablisli a lower tariff of fees from that established for County Division Courts, (d) 27-28 v., c. 21, s. 3 ; 32 V., c. 23, ss. 21 & 22. 40 v., e. 7, Sched. A. (72). 239. Tlie Board of County Judges or any Koani m certify r. 1 1 11 1 1-11 ■ rules ti.lh.M'liirf tlirce ot them shall, under their hands, certity •'usticcf ti.ct;. ' -^ H., ti. lie laid In- to the Chief Justice of the Court of Queen's f"r«-' tin; -'udHw. P>ench all rules and forms made after this Act takes efi'ect, and tlie said Chief Justice shall submit the same to the Judges of the Superior Courts of Law, or to any four of tliem. C. S. U. C, c. 19, s. 64. 240. The Judges of tlie Superior Courts of*^"^'""'r;i' '^ Law (of whom the said Chief Justice, or the*'^'^^''"''^''"' Chief Justice of tlie Court of Common Pleas, sluill bo one) may appprove of, disallow, or ((/) This was enacted in view of tlio fact tliat in a few cases the emohnnents of some city clerks were very large, ami out of jiropor- ti()n to those of other jjultlic ofli- cers. In most cases, however, at ])rcPent tliese large Courts have been divided, thus rcnderinjf any action under this secticni unneces- sary. Un the other hand, some of those clerks iu small localities who iiavc to keep up tlie expenses of an olileo, and arc practically unalilctu engage in any other Ijusiiicss, migLt with some show of reason aiguc that if the h.w allows i'ees to be le- dueed where the aggregate receipts are excessive, it shouldallow tin ni to be increased where the business is so limited as scnrrely to ailoid ?» livinj:. 228 THE DIVISION COURTS ACT. [Sko. 24]. n t't3 itt; Ami have fnrce of a StiitiiU'. The Juiltfcs to tniiisiiiit L'opii'S to the Lt.-t;uv- ^riior, &o. amend any such Itules ur Furnis. C. S. U. C, c. I!), s. ().-. 241. The liules and forms so approved of shall have the same force and effect as if they liad l)een math; and included in this Act. («) C. S. U. C, c. 10, s. i]G. 242. The Judges who make any Iiules and Forms approved of as aforesaid, shall forward copies thenjof to the Lieutenant-Governor, and the Lieutenant-dovernor shall lay the same be- fore the Legislative- Assemlily. C. S. U. C, c. 1!>, s. (i7. 243. The Lieutenant-Governor may by war- rant direct the Provincial Treasurer to pay, out of the Consolidated Revenue Fund, the con- tingent ex])enses connected with the framing, approval anil printing of such rules. C. S. U. C, e. 11), s. ()X. sunerior omrts 244. lu any ca.sc uot expressly provided tor tij bo fiilloweii in , , i • t i. i • i- i> i i mi uui.n.viiifii by this Act or by existing lailes, or by Kule.s made under this Act, the Cimnty Judges may, in their discretion, adopt and apply the general principles of practice in the Superior Courts of Common Law to actions and proceedings in the Division Courts. (/) C. S. V. C, c. 1!), s. 6!t. Expenses pro- •videil for. Traflice of the ('■) And liave been so treated in lumierous cases wliero they have ■coiiio up for (li.scusHioii in cdiiucc- tioii witli variou.s section.s of tlio Act. I!ut tliey woiiM be void if not witliiu the jiurview of section '2HS, which only iinpowers the .lud^is to make ruh's concerninn practice and jirocfcdinj^.s, and to settle doiiht.s or conflicting detMsions (oee lii'l V. McDonald, 2t) V. V. 102). ( /") Thi.s section is of no interest primarily to any one hut Judges and professional men who may i)0 engaged in the practice of these Courts, and to them it will in gen- eral he ea^ily ap])lied to the case in hand. Some ditlicult (piestions may, iiowtivei', occasionally arise ; hut thou;;h it would not h(( pos- sible or desiralde here to suggest them, it will not be out of place to w c, of hey ('0 Sec. 244.] FOiiM OF covp:nant. 229 S. SCHEDULE. {Svctiu7i 27.) COVENANT HY CLERK OR BAILIFF. (//) Know all men Ly these presents, tliat we, J. B., Clerk (or Bailiff, a.'- the case maji he) of the [ ] Divi.iion (Joiirt^ in the County (or United Counties) of , S. S., of , in tlie said County of (Esquire), and P. M., of , ill the said County of (Gentleman) , do herehy jointly and severally for ourselves, and for each of our heirs, executors and iidniinistrators, covenant and promise that J. B., Clerk (or Bailiff) of the said Division Court shall duly ])ay over to such person or jiersons entitled to the same, all such moneys as he shall receive hy virtue of tiie said olHce of Clerk («;• Baililf), and shall ami will well and faithfully do and perform the duties imposed upon him as such Clerk [or Buililfj by law, and shall not misconduct himsi-lf iu the sai, :}. Short title, s. 1. When goods rople viable, .ss. Replevin in County Courts, s. 4. Keplevin in Division Courts, s. 5. Writ of Keplevin : — When order for issue required, s. (J ( 1 ). Discretion of Judge in such case, s. 7. When order may be granted by a ('ounty Judge, s. 8. Wlien issued without order, s. (i (2), (3). Applications by defendant to discharge, s. 9. Form of, s. 10. Keplevin bond, form, Sic, ss. 11, 12. Eeplevy by Sheriff— Before service of writ, s. 1 3 . Not witliout order where writ issued without order, 8. 14. Where projjerty concealed, ss. 15, IC. Return to writ, s. 17. Capiaa in withernam, s. 18. flKC. 2.] WHKN r, 001)8 RKPLEVIA.RLK. 231 Service of writ, hh. 19, 20. ProceedingB if defendant does not appear, s. 21. Proceedin<,'S if he appears, s. 22. Venue, s. 23. pleadings, ss. 24-27. l)ainag('s and costs on judgment 1)y default, ss. 28, 2'J. Her Majesty, by and with the advice and consent of tlie Le^'islative Assembly of the rrovin(!e of Ontario, enacts as follows : 1. This Act may be cited as "The Replevin .s)i..rt utio. Act." (a) WHK:' goods KEl'LEVIAnLE. 2. Wherever u: y <>oo(ls, cliattels, deeds, w>«"{foo>i»i"av JO' ' ' i,g repleviua. bonds, debentures, promissory notes, bills of exchanfre, books of account, papers, writings, valuable securities or other pers(jnal property or effects luive been wrongfully distrained under circumstances in which, by the law of Eng- land, on the fifth day of ])ecember, one thou- sand eight Imndred and fifty-nine, (h) replevin {ti) Tliis .Act ciimc into force at the same time .lud under tlie same proclamation H8 the Division Courts Act (see page 2, note (".), and paye 3, note (/') (intf). Kcpleviii is the Icfjal jiroccss to obtain restoration of goods wrong- fully taken from any person iiaving an absolute or qualified property in them. It is almo.st exclusively con- lined in practice to the rc-delivery of goods taken by way of distress for rent or for damage feasant, that is, damage done, or where the goods ■ ^! - { ' ■ li ' [ Mm m :JH 2:V2 THE IIKI'I.EVIN ACT. [Rec. 2. iiii,i,flit have lit'.eii n).'ulo, the j)orson (c) complain- in^f of such distress as uiihnvl'iil niayo])tain a writ of replevin in the manner prescribed 1>y this Act ; or in case any such floods, chattels, ])r()- perty (jr elfects have been otherwise wrongl'ully taken or dt;tained, tlu! owner or otlier ]»i'rson, or cf)rporation cajjableot' maintaininjj; an action of trespass or trover for })ersonal property, may brin;; an action of rejilevin for the recovery thereof, {(/) and for the recovery ol' the dam- ages (c) sustained by reason of such unlawlul I .<: vincial Act, Ifi N'ict. , lap. (i4, it was extended to all wrouj^ful dis- tresses, and takings and detainers of personal projieity, where the person whomii^ht briiiji tlieaetioii is capaMo of maintainini,' an aetion of trespass or trover tlierefor, in the Mime way as iniL'ht hi' dcjiie when the last luentiuned Act took effect (fith Decenil.er. isr.it), ac- cording to the law of I'lni^ianil (see ju(lf,'inent of (i\\\NNK, .)., in Jamhson \. Ki rr, (i I'rac 11. (I). (c) Any party who has either an absolute or (jualilied projierty in thef,'oods may reph'vy ((Jill). IJepl. 151). JjXecutors may have reple- vin of the goods of tlie testator taken in his lifetime (///. l.")(i), and it may be against the ]iarty who actually took, takes or detains or orders the goods to be taken or detained, and it may lie against both the taker and iiinnvho orders the taking (H'- 1">-). 'J'lie action lies to secure goods taken or seized in execvition under a distress warrant of a justice of the peace in a case wliere he has no jurisdiction {(r'niri/r v. (J/unn- bcrs, IIM. & W. l-i!))'. Notice of action is not necessary in replevin {Fo/!ihli.i v. Crxihs/iniik, l,.l!.8('. 1'. 1.^4 ; 42 L.J.('.1'.-J7.S). The plaintiff may recover as dam- ages the value of any jiropcrty in Sk(!. 3. GOODS SEIZED IN EXECUTION. 233 iiii- his H'o- c. caption and detention, or of such unlawful (h't(!ntion, in like manner as actions are broujiht and maintained by persons complaining of un- hiwful distresses. (/) ( '. S. U. C, c. 21», .s. 1. 8. No party to a suit or ])roceedin'f, in any <''>"J» •■'•-•'i'-o'i i ' "• '■ r>' J cxociitiiiii not Court, shall rcijlevy or take out of the custody ''^-rifi'ii^^viod by , . . parties. of the Sheiiff, Uailiff, ov other officer, any per- sonal property seized by hiin under process (y) ai,'ainst such party in such suit or proceed- ing. (//) 40 v., c. 7, Sched. A (!)2). in to the ilefendiiiit's liaiids iit tlie time (if tliu ianuiug tln^ suiiiiiioiis to wliiidi tlio i)l;iiiitill' iirovus liis right — though not .ictuiilly rople- \\rd(/\'<'/!'alv.J'ot./rr,'Ati\J. V. It. .^.78 ; Lrwiiv. Teak, .S2 U. C. K. lOs). (/) This caiiiiot ho joined with .any other form of iiction (.see Uule 4 1 , and /iar/nr v. A riiis/riuiif, .') I'rae. i!. LW ; t/rai/ JVi-Mrnt ' Riiihrmi Vii. V. Chmhnrh; 3 U. C. I.. .J. "J!)'; Munijcan v. W/ifdllfi/, 6 Ex. 88). See al. so note (,/') to .sec 12, pus/ {ni/ijf'iuit\ says nothing of the clcr/.; wlicreas the goods seized by a bailill' under an attach- ment are to be delivered into "the custody and possession of the e'lerk," who shall take the same "into his charge and keejiing " (see sec. I'.l'.l of the Division ("ourts Act, and ne.xt note). It would be reiisonable, however, to interpret the words "other olliicr" as in- ch', ,iing tlie clerk. Where the bail- ill' seizes under an execution, and makes a levy at the same time lor rent, he would be aciing under the execution, and come witliin this section (sec sec. 212, note (r). (/() Where the person is acting without authority in issuing pro- cess, the taking is simply unhiw- ful, and it is presumed the pro- ceeding must be such a one as can b supported under the sanction of law, or replevin may be maintained against the iiersou issuing the war- rant as well as those who take a more active j)art in the seizure (Jones v. Jiili)iS(in, .') Ex. 862), If the seizure is made for a duty to the L'rown as for customs or in- land revenue, or in order that the goods might be condemned under the revenue laws, there can be no replevin (Ctiirt/ioriic v. C(nnj)lnll, 1 Anst. 212; see also Milward \. Cijliu, 2 W. 151. l;r30, Gilb. Dist. i;i8). The action does not lie against a jioundkeeper lawfully a])- pointcd unless in a case where he has been guilty of a breach and vi(dation of something particularly directetl by by-law (or, as it is pre- sumed, where he detains the goods for unlawful fees, the lawful fees 234 THE REPLEVIN ACT. [Sh«:. 4. RKPLl'VIN LV COUNTY COURTS. County Courts A. In casG the value of the goods or other niuy i^raiit writ i • • i i where value of propeftv ov ettccts ai.strained, taken or de- Sfoods (loos not i- i ^ exceej^-'oo. taincd, does not exceed the sura of two huu- tlred dolhirs, and in case the title to land is not brought in question, tlie writ may issue frijui the County Court of any County wherein such goods or other property or effects have been distrained, taken ov detained. C. S. U. C, c. 20, s. 15. REPLEVIN IN DIVISION COURTS. 5. In case the value of goods or other pro- perty or ert'ects distrained, taken or detained, does not exceed the sum of forty dollars, (i) the In cases uiiiler $40, writ iiiiiy issue from Divi- sion Court. being tendered), owing to n'liicli the owner of the things impounded sull'ered some particuii'r damage not recoverai)le again^ c tiie dis- trainor or party iniiuMnding (see Wariirn v. Clti.shnhii, !> ('. V. VIS). It is believed that the prineiph-s elucichated in tiiis ease e.stuhli.sli that the action will not lie against a clerk of a iJiviaiov. iirt holding goods attached, be , i3e "lie is a public olKeer discharging a public duty, prd that consists as mucli In the keeping as in receiving goods" (seejudgnientot'LordM \NSKiKi,i>in Lbulin\. lloi)iiir,Vu\\\\. 414). i!e- plevin lies against him wlio takes or him wiio commands the taking ; brj the situation of tlie clerk is that of a public d(!poMtory and not that of a servant to che distrainor. An otHcial assignee appointed under the insolvent A( t of 1^7.") is within V. S. \'. ('., cap. '2'.), sec. 2, PC tb'it goods in his po.ssession can- n(tt be replevied {/linrlin/ v. Siillnn, 7 I'rac. K. 14); but goods are reple- viiible out of the hands of a guar- dian in insolvency (Jamieson v. Ktrr, ti I'rac. 1!. ti). The question as to liow far goods seized under an execution or attachment are pro- tected from this remedy is di.scu.ssed ill same ease. (/) 'I'liis section is in eiFect the same as section .">(! of the Division Courts Act. 1 1 is remarkable that the framers of the Act do not seem to have C( n- sidered it necessary to declare the same restriction U])on the Division Courts, as by tlie })revioiis section is placed upon tlie County (Jourts, M'liich liave a higher jurisditstioii, by withholding cases in which the title to land may bo brought in •juestion. Milt this Act and the Division Courts .\rt must be read, uiiilersuli- sec. '1 of see's, for purposes of a suit in the Division Court, as if they for.ned one Act ; ami the fi.'Jrd sec- tion of the Division Courts Act has the same ell'ecl as if the word.s used in section 4 wereembodied hero (see c^r Sk.'. 5.] I'KOCKDUHK IK OIVISION COURTS. 235 vrit may issue from the Division Court for the Division within which the defendant or one of the defendants resides or carries on business, (m) or where the goods or other property or effects have been distrained, taken or detained. 23 V., <•. 45, s. (i. 2. Tlie matter shall then be disposed of with- i'r"t<'i'irein DivisioiiOourt. out formal pleadings, (_/) and the powers (•'" the Courts and officers, and the proceedings gone- note (o) ti) section ')'.), iJivision Coiuts Act, pajfo 41, iiiitc). As section (il of the Division Courts Act limit's the riglit to cer- tiorari to a cause from tiio Divi- sion Court to aSuju'riorl^'ourt, ami .as there is no i/rlif, and in >;eneral only nominal damages, it is ques- tiniiahlc how far it allects a suit in vi'iileviii (sec .!/»//(' /'.s v. Hak'r, 'H\ U. C. i;. Hi). Where it was sliown clearly that a plaintitl in re[il<,'vin had reason to believe tliat the title to land woidd lie hrought in i|Ues- tion hy the defendant, a certiorari was granted (llratitn. v. Cm nirn//^ 4 I'rac. n. 1 -18). [f the plaintitr does not jmieeeil with the action o. the ground that tile Court has no jurisdiction on account of title t< land coming in <|Ui'stion, itc. his hond would not lie forfeited; hut in sui'h cMse, if the damages claimed amount to Sit), lie should remove the e.ause into a Su|ier!or Court hy certiorari (see sectiim ti4 of Division ( 'ourts Act). The defendant has also sucdi right of removal Isi'e lioiri ii v. Eroiix, W Kx. 11] I. liut if he iicciuiesces in th<; trial [iroceeding, i»e would lose his riglit to prohibition (see Yntis v. I'alnur, (! D. & L. '-'H.'i ; .S7a;,.s- /cW v. /f.://airr/l, 7 Hx. UTA ; and chapter on I*rohibili(m, posf). (ii) Si.e section 02, and uotes (o) and {f)). (./) The course of practice at the liearing is to be the same as in ordinary e.ases, and according to section 10!» of the Division Courts Act (if tliat section is apjilicable to these actions, and it is thought it is), trial by jury may bo had at the instaneo of either party, provided the valnu of the goods, itc, described in the summons, or the damages tdaimed for their detention, exceed in value !^U) ; or if that alleged value be under >f\0, the defendant may reciuire a jui y, in case his claim against the jilaintiir, for which he sei/eil or de- tained the goods, exceeds^lO. The reason for this suggestion is found- ed upon the pecidiar nature of tlie action itself and its results, it is a remedy for a tort ; and as said by .Mr. Mayne in his Treatise on Dam- agt's, "an anomalous one in this respect, thatlujth the plivintiir and defendant are actors in the suit ; in fact, it consists of two cross actions ;;. «l:'ch one party clainia (b':..iiges for having his goods seiz- ed, whili! the other party claims satisfaction for some demand out of which the "eizure arose. One result of this peculiarity is, that cither party may obtain damages. Should a verdict be obtainetl for the |ilaintill', the jury assess the danniges as in an ordinary action uf trespass. Unless special damage ^^m 1: 230 TIIK IIErLEVIN ACT. [Sec. (i. \ rally in the suit, shall be, as nearly as may he, the same as in otlier cases whicli are within the jurisdiction ol' Division Courts; and this Act sluill, so far as any such suit is concerned, l)e Kcv. sut. (. 47. lead as if it formed part of "The Division Courts Act." 23 V., c. 4;", s. 7. \Vh(!ii (inltT fcr vrit ri'i|iiitTil. See Form 1'. ruocEDi'in:. 6. No writ of replevin (/.) shall issue out of either of the Superior Courts of Law or any Comity Ct»ui't, (/) 1. I'uless an order (?») is <,'ranted for the writ on an ailidavit (ii) hy liic j)ei'son claiming; the jjrojtcrty, or some other }ierson (o) showing to the satisfaction of tlie CouVt, or .Tud,L;e, tlie facts of the wroU'^ful takinij (tr dett-ntion wliirh i.slai(l, they aro generally i>nly oosts (if the replevin homl * » * tliey now ilepenil on the iunount distrained for. Tliese :ire ail ln' is in fairness entitled to. us he has already had j^'iveii l>ail< tohiiu |i , oi- if tlie Judge thinks that a /irini'i j'i"-ic easeisoidy made out as to part, he siiould .so st.ite it (see note { n. (//) The ailidavit should i'c as in Form 1:5. C'l This ailidavit may 1h' made liy any peisou or liy any numlur of persons ; not necessarily, as in suh-sec. 2, l)y tiie ]ilaintilf, his ser- vant or agent. In the ease where an ordei' is applied for, the .Judge has to lie satislicd ihat a writ should be granted ; hut where it is sought to issue the writ without an order (K\ili-sec. 'Ji, the legid.i- ture has thoiight it expi liirnt that the plaint ill', his servant or agtMit, who Would he the persons presnin- ahly conversant with the facts of the case, should make the ailida- vit. The ailidavit mu-.t he sulli- ricntly explicit to enable f hebaiiiH to identify the projierty. or the writ may be s<'t aside (si;e ./"/((■*■ V. Cook;''^ J'rar, K. 31)0). If; Si:c. fi. 1 AFFIDAVIT FOR WHIT. 2:57 is c(»inpiiiiiiod of, as well as the value and de- srription of tlic property, (p) '<^^^'^ that the person (•iaiiuiiig it is tlie owner thereof, or is lawfully cutitk'd to the possession thereof (q) (as the case may he) ; 2:! V., c. 4;"), s, 1. L'. Or unless the person clainiin'j; the pro- without ;iii perty, his servant or agent, (/•) makes an affi- davit (.s) which shall be entitled and filed in the Court out of which the writ is to issue, stating, (a) That the person claimiug the proiiertv isAffi'iavitto ' .' , olitain writ the owner thereof, or that he is lawfully entitled w'ti>i>ut a" to the possession thereof (descrihing tlio pro- perty in the aflidavit) ; (b) The value tiiereof to the best of his belief; (c) That the i)roperty was wrongfully^ taken out of the p()ss(>ssion of the claimant, or was tVauihdently got out of his possession, withui two calendar months lu'xt before the making of the allidavit ; (/>) As the .Iiulge has only lic- fore him tlie o' rfr .stati'inciit of thf {(l;iiiitifV, it ii';i,rly always haii- jioiis tliMt llu; (inliT is inade in tliu tffniN of the alliilavit ; l)iit this is 11 mutter of (liscrt'tiou with the •liiil,;;c, ami ho would limit it as Mcrasiini nmiirt'il, or only j^iant a siiinnioiisto show oaiisi! why a writ slimiltl not iasue pursuant to st-c- tion 7. (7) That is, as having general or a s[)ei'ial jiroperty or lien in the gooils (sue note ((•) to section 'J). (/•) Bu! ,f tlie fait of tlie (It'i)on- ont licing the agent ean be gathered from the alliilavit, it may he sutii- cient, although he is not so /(/ V. Ilumilton, I Prac. It. 'J()3, the deponent not being the plaintitl', did not describe himself as his servant or agent, but used the words ' ' now acting for the sMid"(t!ie plaintitl). KoiUN- suN, ('. .J., held that this alone would have been insuflicient. but as the allidavit went on to state l)articularly the position and •) Tlie atfidavit must besuHieient to enable the defendant l)y it to itientify the property (Joni'x v. Cook, 2 Prae. 11. 3'Jt)). A form of allidavit i.s given in Form U. 238 THE KEPLEVIN ACT. [Sec. 6, ■i:-:v I ' (([) That the deponent is advised and be- lieves that the ehiiniant is entitled to an order tor the writ ; (e) And that there is <,'Ood reason to a])])r('- hend that unless the writ is issued without waiting for an order, the delay would mate- rially projudiee the just rights of the claimant in respect of the property. C. S. U. C, c. 29, s. 4; 2:5 V.,c. 45, s. 1 (2). Writ may issue :',. Or (in easc the property was distrained withniit oriltT if ^ i ihv pr-.purty \va« [ov n'Ut or (hunagc feasant), (0 unless the person (listriiinod for " . rent or y day, list tin' cattle bhuulil iiiuupi'. Knlf 4.S canii's into Division Couit inactice, in rfplcviii cases, thepiovisioiisof -1 Htn. VIII.,ca|i. IS», as to distress for(/a»/a';/i I'liisuiil, ami <;ivusdiie('tioii8astotlie nature of tlif iiid;'nR'nt. >'). SEr. 8. J DISCRETION OF JUDGES. 23l> 1.0- ■(Icr 7- Where an application for an order is made, discretionary '■ *■ |)ower of the the Court or Jud'^e may proceed on the c:c parte ^"^^^ '"• •'»"'«'■ n ^ ^ 1. 1. when an applieu- application of the plaintilf, or may fiyawi a rule tion fc.r an ..rdei or order on the defendant to show cause why the writ shouhl not issue; and may, on the ex ptriic application, or on the return of the rule (•!■ order to show cause, grant or refuse the s«« Fom li?. writ, or direct the Sherilf (//) to take a bond (c) in less or more than treble the value of the pro- perty, (/'•) or may direct him to take and detain \\\v property until the further order of the Court, instcael of at once replevying the same to the plaintiff; or may impose any terms or conditions in j^ranting the writ, or in refusing the same, on the return of a rule or order to show cause, as under the circumstances in evi- dence appear just. (//) 22 V., c. 45, s. 3. 8. Kxcc])t in the County of York, a Judge of .lu.iuas of conn- ^ , ^ tv Courts (cx- the County Court ot tlie County where tlie eept in vork) , , " . niav i^-sue orders •roods arc winch are sou'jtit to be replevied for'writ of '^ . . replevin. shall have the power of issuing the order in the same manner as by law the Judges of the Superior Courts of Law are empowered to issue the same. :i4 V., c. 12, s. 0. (ii) In rciuliiig tliis Art as piirt of tli<; l)ivisii)ii (,'(iiiits Act. the Word /(«///// >li(ml(l of c'liiasf Iju.suh- i>titutc(l forllie wtml " sliorilf." ((•) See Form 117. ^ (/•) Tlie very ineaniriKloss words " lessor more'' iire not UHed in sec- tion 11, wliirli speiiks of the lumd to lie yiven liefore the baiiifl' jiro- cceda to replevy. ((/) This section, wliieli is very seldom invoked, is intended to give the .ludge full power to make an e(|uitaljle disposal of the applica- tion, as the special circumstances before him would seem to reiiuire. 'rhe.Jiidoe can, in fai't, impose such teinis upon the idaintitlas will fully indemnify the defendant for all damages he may sustain by reason of the action (Jilitcher v. Burns, \) i'\\y. 1!. 412.") ; and set; C'uUtavi v. Liivr, and Lwc v. Cutham, 30 U. C. It. 410). 240 THE REPLEVIN ACT. [Sk(i. !). 11 Dt'f ■nciant may 9- (::) Til case a wiit ol' vciilovin is issiuul. "pply .'ira nil.' ^ , * ' to siiow cause ^vllotlu>r witli Of williout ail (Ji'der, or in case why the writ, &o. should n,.t anv nilo or order is made under the seventh ■^'■'- or eightli sections, the dofeiKhint may, at any time or from time to nine, a])i)ly to the Court or Judge, (a) on alhdavit c i otherwise, for plied for, should not he granted to the defendant, with respect to the return, safety or sale of the property or any ])art thereof, or otherwise ; and tiie Court or Judge may make such rule or order thereon as, under all the circumstances, best consists with justice l)etwcen the parties. 2'A V., c. 45, s. 4. 10. The writ (b) shall state the des(;ri])tion and value of the property, and shall he tested in Kev. stat.,c. 50. t''^' saiuc manner as a writ of summons under the Common Law Procedure Act, and shall he returnable on the eighth day alter the ser- Ci intents nf writs and how to be testeil. (:) Tliis section, wliichia intend- ed to iirevent injustice and loss ow- ing to tlie proceeding's liaving l)eer 80 far (V parti\ may otten eualile a Judf^e, (in tlie ajiplication of a de- fendant, to intert'ere for bis relief in caaew wliere furtlier proceedings under tlie writ would lie either unjust, iinprojjer, or iinneeesharily oppressive. The pmceei lings are in .tlie full control of the Judge after the issue of the writ, as they are uiiiier scition 7 h> fore its issue. (a) See note (//) to section 7. An obje'.tion that there was in fact no taking or deteiition is no ground for setting aside the writ ^see (HI- r/irist V. Co,ir!ff,i)oforniio tdiall take a liond {rr) m trel)le tlie vanie of the '""ui- projierty to be reidevied, ((f) a.s stated in the writ; wliicli l)ond sliall lie assij^nabh' to the ilefendant ; and the boml and assiti,innent (c) tlieroof may be in tlie words or to the effect of Form 2 in the Schednle to this Act, the condi- Se (■""'!' w. tion being varied to correspond witli the writ. C. S. U. C, c. 29, s. 8 ; 23 V., c. 45, s. o. wliicli tliis section preaciibes for (.'oiirts uf I'rcord. (c)Seeiiote(f/)to8chctlule, p. 2^<0. (cr) For form uf Imiid see No. 117, wliit'h is tiikiii from tliat given by tiii.s statute. (i/) 'I'iiis ihity must not l>o iicr- fornii'd liy tlie liailillin a porfiine- tory way. " 'I'reblo tlu; value of tlie jiidlicrty to 1)13 ruplovieil " is not all that isii'ijuired ; it is his duty to see that a bond with sunieieiit sureties is f^ivou to cover damages in the cviut of its lieeoming necessary to assign the bond to the defendant. If the bailill makes a re-delivery without taking any security, he and his sureties would be liable to an action on their covenant. 'I'hey would also be liable if the bailiil' ■were, without proper imiiury, to accept of ptMsons who turn out to be msutlieient linancially, or by reason of infancy or the like ( A'iV'A- arda v. Ac/on,' 2 VV. lil. \-2'20 ; Pluvier V. lii-iscoi; 1 1 g, B. 40). Hut IG he will not be answerable for their sutiicii'ucy unless he has negleeted to make pro])ei' iiKpiiries (Ilhitl/i: v. 7>'/ryr/«.v. ,") 'raunt. ■J'J;")). If, know- ing nothing of the parties, he satis- fies himself of their suMieicncy by nn-ans of an alhdavit of justiliea- tion, and they turn out to be in- sullit-'icnt, he may he held liable, as he ought not to depend on tlieir mere statements, though on oath (Jr/rn/ V. Jii.s/an/, 4 A. & E. S'lli). («') A form of this assignment is given in No. IIS, which is takea from that referred to in this sec- tion, and has l)een adapted to the use of division Court.s. 'i'lie defcuil'vnt can demand an assignment of the Itond when a re- turn of the gooils is adjudged to the defendant, or if the ])laintirt' becomes nonsuit, or fails to proceed in his action with dtie diligence, or tails to make a leturn of the goods (see /'iifiiH'/ V. Mr Emm, :5l U. C 11. .'^■2'^, and note (/) to next sec- tion). ;;! ;1 m Hit itjl it ' t'l III < ' ti .. ill i^ >m 242 TJIK liKl'LKVIN ACT. [Skc. 12. Roplevinhnmlt.. 12. Sucll 1)011(1 sllilll bo SUlij(3Ct to tllC imK t.i' sill.jfcl til S " * f/'s^^s"" '"'"■ "^i'''i'^'>*^ ^^ ^^'^ eighth section ol' the A(;t passei.l by the Iiiijierial I'ailiaiuent in tlic eighth aii'.l ninth years of tlie icign (jf lliy Majesty King- WiHianithe Third, and chaptered eleven. {/) )>'.) v., c. 7, H. 8. Sheriff not t.. 13. (ii) Tile Sherifr shall not .serve a C()i)y of sirvo writ till Iif '" _ ^ •' iiasivpicviid. ^]jQ y^.yii iiiitil he has replevied the ])roi>erty, or some part nl the projierty therein mentioned, if he tannot replevy the whole in con-sec^uence of the defentlant having eloigned the same out of his County, or bciause the same is not in the possession of the defendant, or of any jierson for him. C. S. U. C, c. 2!i, s. 7. 14. ill) Inease the writ is.-uc without an order, the Sheriff shall take and detain the pro])('rty, and shall not rejilevy the same to the plaintiff without the ordei' of a Judge or a rule of the C(jurt in that helialf ; liut niay, within fourteen days fidni the time of his taking the same, re-dt'liver it to the dele-ndant, uidess in the Wliiit Slu riff >li;ill ilii wlit'M ilic writ i>Mifs uitliiiiit 1) •Jiul^'c's (irdiT. (/) The .statute rclorrcd to is as to the as-sigiiiiuiit <>t lut'iu'lu's nii tin Ijoinl ; and ciuK-ts that llic [ilaiiitill must deliver jiaitiiiilai.s ol' tiic lireaeh thertol' oil wliiiii lit- nliew. liut lie can only leeover nominal (huiiiigis ■wlu'ii til"' liieatli iis.siLjnfil is the not in'ociMiliii;,' without de- lay ; and the ii;jht to Mdist.mtia! dania;;eH nillMt dipeiid oil tli<' lilial result of tile .suit (.see '//'(iiil> lUiiili, '2 I). &, 11. l.'{, and note (/) to section ,">). (;/) This section contains the same jirovisions as Itule 47, wliieh was: taken from it, (/M This section was not em- bodied in the rules as some others were, and has thus eseajied the at- tention of many ollicers. It will be seen that if the writ ha.s issued without iin order, the ciist; cannot be set down I'or trial, unless in the meantime the order has lieen ob- tained. Skc, Hi. J MODK OF UlCl'LKVYING. 24;^" lueantinie tlio plaintiff ul)taiiis and serves on till) Sliuritt' a rulu or order directing a dillerent disposition ot the property ; but this section shall not ap))ly in case of a distress for rent or damage feasant, tinder the third suh-section of the sixth section of this Act. 2:] V., c. 45, s. 2. 15. In case the i)roiterty to be replevied or ifi'r"i>t";t> to be any i)art thereof is secured or concealed in any - [leily is loiiciiili'il Viy the tlefeinl- aut or any othei person. It must lie uhfierveil that whatever is hire; laiil ilown iiiiist lie strictly follow- eil, antl the hailiti' shoultl uet willi eaie as well as (.leterniination, iis any ucit^s wtiultl rentier him lialile to an aetioii in a ease where a tlis- jRisition is inanifestetl ttj set the proce.-s anil the law at ilcllaiice. 3-!' Mil. i i I i • M 244 TilK l!Kri,.:VIN AH". '! [Sro. 17. What silifilulr 111 I'diitaiii. (lelivevanco tlicrodi, iuid (lelivernnce is woft. lectod or roi'iised, he may, iiiid if necpssavy shall, search ami ('xaiiiinc llic person (,/) mihI ])re- mises (/) of (he dereiulaiit or ot" such other person i'oi the ]Mirpose ol' replevying such ])ro- perty or any jiart thereoj', iind shall make I'e- l)levin aceoi'diii^ to the urit. C S. l'. (",, (•. 2l>, s. 1(». whon vMii to i>o 17. {/) The Sheriti' shall ivturn the writ ()n} rctiiriuil with , ,. , i ^ i r i i n H.iiLMiiiioan- at or l)eh)re the ret urn day tnereol, and sliall transmit, annexed thereto — 1. The names ol' the sureties in, and the date ot the hiiud taken I'rom tln^ jilaintih', and the name (U* names of tlu^ witnesses thereto ; 2. The place ol' residence and adilitions of the sureties ; ;^. The numher, (ju.intity and (|uality of the articles of projierty rei)h'vied : and in cas(> he lias replevied only a ]iortioii o| tla; ]n'oj)erty mentioned in the writ, and ciiniiot replevy the I'csidue hy reason of the smiie haviiiL? lieen eloigned out ol his ('(^unty by the delendant, or not lieiii;:; in the ])ossessioii of the defendant, or of any other ])erson for him. he shall state in his return the articles v.hieli he canimt (,)') Such a ])rocectliiif;,wi'i(' it not for tlie ]>i'ovisions of this sei'tioii, wouM sul)jei;t tiie Imilill' to an im- tion of trespass as an infringement of the rights of jx'r.sonal seeuiity ; foraooonling to the (.'mnnion l,a\\, thegener.\i legal rights of mankind would lirotei't a defemlant Ironi search ot his person in the execu- tion of process in a civil suit ; and as suggested in the note to the i>re- vious section, the remedy must he strictly (il)scrvcd. (/,-} See note to section 1.'). (/) This section contains the .same ilirections as llnle 4'.>. {)ii) This return is one to wliieli section ")■_' of Division Courts Act and liule IMi would bv hehl to ap jily (see notes (W) ami (/), page 38 (iiitr. and Hide '.'Si. Sec. 1!». SKKVK !•; OF WEUT. 241 ivplcvy, luid the reason why not., C. S. U. C, c. 21), s 11. 18. (ii) irtlu'Shovill'uiiikes such aretur!i of the ifsia.rifrrotumH , !• i • 1 1. 1 It- 11 • Unit tlioiirippiTt.v property (listnimod, tuUoii Dr (Uitiiuicd, luivm<^' iiaMi.LunuioiKn- hecn i'loi,L;ne(l, iis would warrant the i.ssuin^L;' ol' in'tL, nam \uixy a c(ipi((ii ill loillufii'iiit l)y tliu law cd" En;,dand, un the liftli day of I)t'cenil)t5r, one tlionsand ei^dit liundr(!d and fifty-nine, {(>) then npon the filiii'' of sneh retnrn, snch a writ sludl be issned -s,;' tiuic mi ' _ ami runn \ . hy the otlieer who issueil the writ of replevin, in the worils or to the elfeet (d' Form 3 (/') in the Schednle to this Act, and before exeeutingsneh writ tlu! Sherilf shall take pledj^e;^, according' to the law of England, on the said day in that behalf, in like manner as in eases of distress. C. S. U. C, e. 29, s. 20. 19. ('/) A coi)y of the writ shall be served on e.ii.> ..f wriit.. the defendant personally, or, if he cannot be I'uund, by leaving' a coj»y at his iisnal or last place of abode, with his wife; or some other thrown person, bein^ a memljer (tf his house- (ii) 'I'liis is tlio samu in I'lli'ct aa l!ule TiO. ((/; Hy tlie law of Kiij^'land un the .Itli Dciciiilicr, 18.'i!', it'tlirj,'i(cs in wUIk r- iKiiii. might 1)(' i.ssuud, hy virtue of wiiiih, goods and chattels of the ilefcndant, to the value of thorn- taken hy him, might be seized and delivered to the pliiintiH', whieh the idaiiitill was entitled to detiiin in jiledge and use \ Wilkinson Itep. •2U ; Kitz. N. 15. 74). If, however, the ilefendant uame and pleaded that he did not take the goods, or idaimed property in those first dis- traineil, he would he entitled to a return of those taken under the ciiinas ill wil/icrnam (Ld. Kayni. GU). ip) For form of writ ot capiat in icillii'ruam, adapted to the pro- ceedings of the Division Courts, see Form V, which is to the .same ef- feet as the one given iu the statute, whieh is not reproduced here. ('/) This section is the same as lUile 48. 24(5 Tin: i;i;i'm:vin act. |Skc. 20. Il(|ili'\ ill |rii- ITl'llillJJS «lu'll , s. II. 20. Ill case it is .shown liy iiMi(i liavini; jm-isdiclion in the civso, that tho (h^l'iiiKhmt cannot lie sorvod with a(!0]ty ol' the writ in any of tho modes authorized by the; itrcccdinj,' .sec- tion, the (Jourt or .ludye, it' the del'endant has not ai)i)eared, may either reiiuire some i'nrthci- attempt to ell'ect service, or ai>])oint .some act to he done or some notice of the ])roceedin^'s to lie ])\il)lislit!d in snch mannci' as tlie CJoui't or .Ind<;e deems ]>ro]>er ; and thereu])on (or njton th(; lirst ai)])lication it' the (.'onrt oi' -hid^e tJiink.s titj tli(! (.'(Mirl or .Indge may authorize the ]daintirr to proceed in the action in snch manner and srihject to .such conditions as the Court ol' Judge directs or imi>oscs. (,s) I'.T \'., , r- •)•- C. < , S. . M . {>•) I'lT-soDiil .scvvirc ol till; suin- liKdis was iiniH'ct'ssavv {/^m-il: v. Jli,(>v,r, -M. T., 1 Vi'it.) l.y the firacticr- of tlic (.'oiirtu of llt'curd uikIpi- tlio old Act ; tlii.s scrtion makes it necessary, if practii'uble. As to scrvii'c of ]ir(icc8s <^iMiiMally, see note (/) to section 70. If tlie (Icfcnflant ciinnotlic foumi, tlien sulistitntional service may l)e cfTcctcd in tlie manner jioiiiteil out, and the trial may ]>roc(ed as if persomtl service liad hcen ell'ectcd. In case tlie defcndint ha.s ab- sconded, or lias no jilace of aliode, or no wife or lionaeliold, or tlu^ic lie no grown \\\i pel son in his liouse- liohl in case he has siK^ii, it i.s appre- hended that jiroof of the summons liaving come to the knowledge of the defendant would he held .suffi- cient ; l)Ut lis to the mode of pro- cedure in this event, sec ne.vt sci'- tion and note. (,s) This section is taken from a statute which was not in cxistem > when the rules were jirepared. Had it heen, it would douhtles.s have lieen endxidied in them, as w;is the ]>rcvious section. It is clear from this section that the .Judge has entire jurisdiction over tin; matter, and may proeeeil to the hearing of the cause on the nierits on the jiart of tlie jilaintifl' only ; and that a jmlgment would he attended with the same e(»nsc(juenees as if the de- fendant had a])peared wluMi )ier- sonally served with the summons, provided the directions given by i| I .v^flt^^toai Skc. 22.] I'ltMCKDritK AITF;!! SKItVKJK. 24' lie i'roccduro. 21. Ill case tlie (Icrcndant has becMi duly h 'I'lfi-ticiiint »orve(l with a roitv ol' the; writ, and does not Htrvdi .low not (Mitcr his ai)|K'aranco in the .suit at the ivturu (IiciiM)!', it shall not be necnssa-y lor tlu; plain- ApjH'urunoo i.,v •/ I or fur ilt'ii'iiil kill till' to (!nt(!r an apixwanoif for tho (h'tendant ; (0 '"" '••^^'i"""'"'" hut the jilaintill' on lilin;,' the writ and an allldavit of service thcreol', or a rule oi" Court or a Judjfe's order lor leave to ])roceed, may proceed in the action in the same manner as in an action connuenced i)V an ordinary writ of summons. (J. S. U. C, c. 2!), s. 12 ; 37 V., c. 7, s. ;;8 22. (/') In any such case, or upon an appear -if'iofL"'i'"it , , , , ' ' . appeir, pliiiiilitf ance henif,' duly (Mitered by the delendant in tDiiuihiru, iv.. the ollice of the Clei-lv or l)e])uty Clerk of the ("rown, or ol" tlu; Clerk of the County Court from wliose ollice the writ of replevin issued, the plaintiir and defendant respectively shall (in the absence of any ])rovision herein or in any Kules of the Sn])erior (,'ourts of Comi.ion s^.eH„ie^u, liaw to th(! contrary) declare, avow, reply, rejoin ],f ' "'"' ^''""" and otherwise plead to issue and take all subse- quent proceed! nj^s to trial and jud;4ment accord- hiin us suggi'stcil hy the section an: jiroporly <>'>scrvc(l(si'(! Jlohinsun V. Lii'i'/hini, '1 Hx. 8:{:{ ; 17 L. J. Kx. 17 »; /.ohrahx. Smith, fi I), k L. <;:$.-) ; 17 !.. .r. V- H- 174). (I) Tiip section up to tins point i.M inapplii'.iliio to Division Courts. Hut as to tiic lattur jiortion, it would he pr()i)or and necussary to file tlie .summons with the atlidavit flf stTvii'c thereof, or the Juili;e's order for leave to proceed, het'ore tlie plaiutiir could in any event proceed with his action. (/«) Tliia section applies c-xi'lu- sively to tho practice and prooecil- ings in a Court of Record whiTi- written pleadings are used. The defouces and (daims which it might lie desired to set up in an action of replevin in a Division Court would liave to be governed hy tiio prac- tice of such Courts in otiier matters ; where there are cross claims, such asset-otr, statutory ilefenoo^ or the like, the sauK! notices should he given as are reiiuired in other cases (see Rule \'16). m m mi 248 THE IJEI'LEVIN ACT. [Sv.r. '.a !j8l^£j iMli'i *r. iiig to tlu; iiructice in rcpunin in Eiv^laiul, on the said tilth chiy of Deciiiulu'r, lS;"i!», so lar us n|)i»lic",ilik! to thii Court liaviiij; co^ni/auco <>!' the case, but ail .such proceedings sliali '.)o talvt'u r('s))C'ctivcly witiiin the saiiio time as in luv. Slat. (. .'.'I. otlicr i)t'r.sonal a'tious in tlu; saiiui Court, and in case of dci'ault so to do, tlio ]>artiis rcspiv- tively sliall Ix; liaMc to (he like; judgment and proceedings as in siieli jxirsonal act inn nndei tlie C'uinion Law i'rocedure Act. C. S. ['. C, c. 2!», s. 14. 23. Where! the replevin isl)rouglit for goods, chattels or other i)ersonal proixn ty distrained for any cause, the venue shall lu; laid in tlie County in whicii the distress has been made, I ait in other cases it may be laid in any County, (r) C. S- U.C, e. 2It, s. IM. rorni of (liilaia- Oi aim . .i ,• • r i i lion fur wruii-iui «■»■■. ^* '"^'i*^' tlie actiou IS louudt'il ou a V. rong- (ll'U'lltioll \r. !• 1 1 1 i • 1 i il •■1,1' !• lul detention, and not on the origuial taking ot See Form /.wuk/ the property, the declaration (/") shall ('onrorm to the writ, and may l>e the saine as in an acLioii of detinue. (.-■) C. S. C. C., c. L'!t, s. 17. WImtl- vi'iiiu t liL- liiid. ((•) Si'ctiiiii .") (if lliis Act j.ilaiutiff to state svr a-k/c « a/icf in his cloclaration {//) a ^jlace (HMtain within the City, Town, Township or Village, as the place at which the property was taken. C. 8, U. C, i. -J'.', s. IS. 26- {■-) " 111'' defendant iustilies or avows wiun (iif.ivtuut ■ _ tn stall' II |ilaio the riudit to take or distrain the property, in or "if^'i" in his Upon any placi; in respect ol' which the same iiiinht 1)(! lial.li' to forfeitnre, or to distress for ivnt, or for dainaii;e I'oiisant, or lor any custom, rate or duty, l»y reason of any law, usaije i)V aZt^Fonnil''^' custom at the tini(3 existing and in force, he .•f»- iiKiri Law i'rocedure Act. 28. In case the ]»la!ntiff hv!(;onies entitle(l iiaiiia-cs.>ii to sign judgment liy i'Iy to Division Courta. (/*) 'I'liis bciii^' a jud^'iueiit signcil liy ii ik'ik of a (.'oiirt uf iiecord, ftir wliic'h tlieri! in no analogous |iri>c('('iling in a I )i vision Court, this section iIoch not ai'l)!)'. Sec note («') to section 2. i!;i ri' B m 250 THE REPLEVIN' ACT. [Skc. 29. M ■ Costs (7 V,, c. 7, s. ?l\l 29. In ease upon an assessment afore-;) ''1 after interh)Cutory judgment by (Udan ',(' ilie ])laintin' does not recover a hirger amount thnn tlie said sum of iive chdhars, lie sliall tax such costs only as lie woidd have obtained had he signed final judgment for the said sum under the preceding sections, unless a ,Iudg(^ other- wise orders. :>7 V., c. 7, n. 40. SCIIKOrLK 01' I OR MS. ((I) ((•) Sec note to section 28. ((/) The fi>nns ^\\i'n in tliin st.i- tute are not in.sertcd lierc, as .sub- stituted forms arc fnruislietl liy tlic Division Court liulcs : see Korni .JVo. 24 for the summons in reple- vin ; No. 117 for the replevin l)i)nii ; No. lis for tie- foiin of assignment ; ainl I'orm V for tlie writ of riipidsln vUhfrmrm, wliirli is iidnpted to the Division (Jourts, and is to the ell'eet of Form :5 in tlie sulii'dule to this Act. 2(t. SKr. II. ArrKAI.S rilOM rKNCK-VIKWKIIS. iT.l vit v., I.Ml lie PR()('KKI)IN(JS ON Al'PKALS FROM AWARDS BV Fi:XCi:-\'FEWEIiS. Tlic fiillnwiiiL; (lutii"< divdlvc on Division Court clovks in coiinoc- liiin witli ii]i|p(iiis fnmi awaiils nuulo I'V fcnci.'-vii;wcrs, under the J,int' Ft-nci's Act I!. v. Stat., cap. '.!)«, .«<■(•. in and tlio Ditches and \Vat.'iroui>o- Act (l{.v. Stat., cap. llMt, sec. 12). The tullowinj,' sec- tions are copied trciii tlie t'oiiiier Act ; tliey are .similar to tho.so in the otlier Act, except that sub-sec. (5 does not appear in the latter. Tliesf provisions wvw t'cirnicrly included in one Act (22 Vict , c. .')7): 11. Any i^'v.'^on dissiitisticd with the award Apiiuais. niiuli' may ajtjx'iil tliondVoiii In tlu> diuioc of iho County Ciuirt ol' the Counly in which llic hinds an; sitiititL', and the jn'occiMiiii^fs on .stic.li ajipeal shall \>o as I'oUows : 1. The apiiellant shall scive upon tlu! Fence- N"^''«»"f viewers, and all ])arlies intiMcsted, a notice in writinu of his intention to ai)))(>al within one week iVoni the time he has heeii notified of the award ; wliiili notice may he served as other notices mentioned in this Act. 2. The appidlaiit shall also d(diver a copy ofToeu-iii. such tiotice to tlie Clerk of the Division Court of the Division in which the land lies, (») and the Clerk shall im^iuMliately notify the Jiidoe >!' such appeal, whereiqxm the Judge shall a]»i;oin'i, a time for the hearing thereof, and, if he thiidvs fit, oi'ijcr such .-;\ini of money to he ]>aid hy the nppclhint to the said Chu'k as will he a suln- cient inil'Mnnity against costs of thf ap]»ei!'i. .">. The .fudge shall order the time and jjlace Nmito ..f hoiu-- for the licaiing (d' the a])])eal, and communicate '"'^' ((•) And tlic clerk .sliuidil receive from him a deposit to cover lues and pDHtages as in ordiiiiiry cases. Siif .ill ,. /: "(I HI I I i S w lynasaSclfrwCSuiRSli',^ 252 AI'I'KAI.S rilflM FKN('i;-VIi:WKRS. [Srr. II. I'owcrs <>i ilii Judgf. tlio sainu to tlio Clerk, wlio shall iiotil'y the Fence-viewers, uiid all parties iiiteuested (/) in the manner hereinhelure provided lor the ser- vice of other notices under this Act. 4, '{"he .liid,<;e shall hear and determine the appi'al, and set aside, alter or allirm the award, (•.. .tltered orconlirmcd, shall he dealt with in all res[)ects as it wnuld have hecn if it had not been appealed iidm. '1. Tilt' ]tractice and jirocecdin^s on the ap- peal, inchnlinj^f the fe(!s payable for snbpiemis, and the conduct mom^y ol' witnesses, shall be the same, as neai'ly as may be, as in the case of a suit in the hivisidu Court, (y) (/) Tlir parties iutiicitcil hIk.uIiI (;/) Kor hkiiic uiiiicii)uiital)K! n;ii- ii]i|>«ti;r, tVoiii till' iiwai'd and llu- sou nr l)y ovcr.si^^lil, tliis Hul)-ai.'o- iioticc servfil undiT ilic luooeil- tioii Ih not found in tliu hitclies ing siili-Hcttinn. 'I'lir cIitU lias no and Watiri'imrHus Ai't. I'DuldJcss, otiici ollicial means of usicit^iniiiL.' h.iwi'Vcr, tiio Hamo i»r.u'tiie would tlicui. 1)0 t'oUuwcd as tliouj,'li il wuir tlu're. Dci-iitiiiii lit •ImlKvtti \iv [Siv. 11. Kttify the VA (J) ill the ser- •luiiie the If luvanl, may ex- iikI, if lie and may and tix II' award. t with in I liad not 1 the ap- il'ltti'iias, shall he le ease of iiitiil)lc n.'a- lis Hlllt-Sctj- lic l)itclius I'i)Ul)tlf.s.s, ■ticu woulf tlie Assessiiicnt Act (Rev. Stat., cjip. 1^0) duiks of Divisiiiii Cfiurts may be cilled upon t<> issue oxecutioiis fur ousts (if iiitpo.-il from Courts of Revision. Tliese sec- tions are as follows : 63. The ('(jst of any '. roceediny hefore the •'"■ustniM-tii. ^ ' piTtiiiiit'il liv the Court (if Ilevision (ir helore the Judoe as afore ■'"'ii.'tiimi ii.-w said .^hall he paid hy (»r apportioned hetween the ]>arties in .such manner as tlie Court or Judoe tliinks fit ; and where cicstsare ordered to he paid hy any ])arly (dainiiii,u' or o1)jectin;.,' or ohj'ected to, oi' hy any A,sse.ssor, Clerk of a IMunieii)ality, or other person, the same shall he enforced, mIumi ordered hy the Court of JJe- vi.sion, liy a distress warrant under the hand of the Clerk and the eorjKjrate seal of the ]Muni- • cipality, and when ordered hy the Judoe, by <'\eruti<»n to l)e issm'd as the JmlLre may direct either from the County Court or the Division Court within the County of which tiie ]\Iuni- . wis in any ease may he the costs of witnesses and of ))rocurino- their attendance and none other; and the same are to he taxed according to the ullowance in the Division Courts for such costs; and in cases wjiere execution issues, the costs thereof, as in tlie like Court, ai'.d of enforcing the same, may al.so be collected tiiereunder. I ! 254 API'KALS L'NDKU EDL'CATION ACT. (Sk( . 7. m rilOCKEDlNGS ON APPEALS I'NDEUTHE EDUCATION ACT. An upiiual i.s allnwed fioui tliu decisinii nf ( 'uimty Jiitlgcs in Division Court suits in which Scliool Insjujctm-^, Sclujol Trustut-s, Teiiclifis iunl utliers arc parties, under tlu; Act respecting Eilucatinn (Rev. Stat., cap. 'Jo.'J . The sections wliicii are applicable are as follows ; .\ii|it'uln from lliNisinll t'olU'tS. Kiv. St;it. 21' I, -JO.'). 7. It being highly dcsirablu that uiiiforiuity of decisiuu should exist in c.iscs within the I'ooiiiziince ul' the Division Courts and trietl in «uch Courts, in which the School Inspect uis, Trustees, Teachers anil otiiers acting undi-r tin; provisions of tiu; I'ulilic Schools Act and the llioli Schools Act are oarties, the .lud'-e of any Division Court wherein any such action is tried may, al the rc(iucsi ol' cither party, order the entering of juduuienl to Ik: delayed for a uitiicient time to i-nalih 'lU' h party t(t a I'l'ly to the Minister of Kducation to ai)peal tlic case. 8. The ^linistei may, witiiin one month after 'h'c.iVitt'ii. the rendering of Judgment in any such case, a[)- NUiiistcT iiiiiv All i.f tl r Snpe- rinr (Hurts ul Law. 1 jea 1 f roni the decisiiju of the Divisitui Court dudge to either of tiie .Superior (.'(Uirts of [.aw at Toronto liy serving notice in writing of such a[)peal upon the Clerk of the Division Court ajipealeil from, whicii a|»[ieal sliall lie entitled, "The Minister of Kiiucalion for Ontario, Ap- pellant, in the in;ittei- IiCtWeen {\. I'., dc C. I* )" .iiiriiiv t.iHtiui 9. The Judg(.' who- decision is thus aiipealeil Court. from, >hall thereupon certd'y under Iih liandto tlu! Superior (.'o' -i apiiealed to, the summons and statement oi claim and other proieeding.s in the case, together with the evi-lence and his r;or 7. N III •cs, i as Skc 16.] AI'I'EALS UNDKU EDUCATION ACT. 255 own jiulgiiieiit tlieieun, uiul all oltjections imule thereto. 10. Al'ter notice of appeal lias been served ^" f!''t'">P''"- ^ '■ _ iTtthiii,' til t>e as hereinafter provided, no further proceedin'>s".''*^'";'"'^^''"".'- _ *• ' _ ^ " tlcu of itppeul. sliall be had in such case until the matter of appeal has been decided by the Superior Court. 11. On the Jud'^e receivinjf an intinuition ofitKiyiito minify ~ " |irinic(liiius to appeal from his decision (under the authority '''^' •^''"''*^*^'''« (if this Act), he shall thereupon ctntify under his hand, to tlu; ^Einister of Education, tht; statement t»t' claim and cither proceeding's in 'he case, together with the evidence and his own Judj^naent thereon, and all objections thereto. 12. Tht' matter shall be set down tor argu- s.uiimciMwu ment at the next term of the Superior Court, omrl'.' ''*"''" "'" 13. Such Court shall give such order ordnkithtm.ii. direction to tlie Court below touching the judgment to be given in the matter as law and C(piity reipiire. 14. The Cdurt may also, in its discretion, costs, award ctxsts against the appellant, which C(jsts shall be certitietl to and form part of the judg- ment of the Court l»clow. 15. All c(jsts awarded against an aDpellant, I'"".'';"', 'i''".' •^ ' ' ' l;illt to 111' jMlil and all costs incurred by him shall be })aid by ''> •"^"'"'•^i*^'- the Minister and chaiged as contingent expenses (if hi.s otlice. 16. rpdU rec(M|it (if such order, direction ^'rorciMiin^sir .,,... Iiivisidii ("niiit and certihcate, the Judge ol the Division Court «1ii.ii;im»-mi sliail lorthwitli proceed in accordance tlierewith. u iitn! 25G CARNISItMF.NT IX SUPKIUOK (ontT.S. [Skc. f?!!. CiAKKlSHEK J'UOCKEDINCS IN Sll'EliHiH OR COUNTY rOUKTS. Uinlor tho <'oiiiiii(in i.fiw I'rocodiiro Act (IJev. St.vt., liip. f)!)), where, in Superior or County Court casus, tlic .imount ganiislictl is within the Division Cmirt jurisilictinii, tlie ;,';iriiishro is to apiuiir before tlie Coiinty .Juil;^'e or a Division Ci.nrt ('Icrk, as tlie casi> may he, ami tlio machinery of the Division Courts is to he useil to the extent set fortli in tlie following seclions : wiiun 1,'iiriiisiKc 311- 1 n ciiso ill tlic Siiix'rioi' Cotu'ts, wlioiv I tlui iuiiDunt claiiiu'il as liiu' tnnn aiiv oaniisiiee Ciiuntv Cimv .Iiid'.'c ill ca^i"* ill Supiiior f 'iiiirts. is Nvitliin the jurisdiction ol' a ('ouiity i»r Divi- sion Court, tho onh'i' to aiiitoar niadf uiiih'r the tlii'C'i-' huiitlriMl and ciLjlitli section shall he tor the garnishee to appear heloiv thedudije of the County Court of the County within which the oarnishee resides, at some day and jdace within his County, to he a[ipointed in wiitiiio; hy such Ju doe aiK 1 written notice therool' shall 1 )0 F.vociUioii fri.iii Ciitiiily or i)i\i- sliiii C 1,'ariiiMlu'i' lines f^iven to the oarnishee at the time of the ser- vice ol' tli(> order. 312. It till' garnishee does not forthwith ])ay urt ittiKti,^. anionnt due bv liini, or an amount e(iu.il to HC lines » ' 1 iHit iiisputf Ui.' the judoinent debt, and does not dispute tln' debt due or claimed to lu' due I'loni him to the Judoment debtor, or if he does not ai)pear beibie the diidoc named in tlu' order at the day and jtlace aiij)ointe(| by such .ludue, then such l^n I uatj[e on proof of service of the order and ai)])ointment having been made iour days pic- vioiis, may make an order directino- execution to issue out of the County Court or out of a Division Court, accordino to the amount due, and such order shall, without any previous suit Sk.. f?1«.I CARNiailMF.XT IN SUPERIOR fOURTS. 257 or process, be suflicient authority for the clerk of either of such (Jourts to issue execution for levyiug the amount due from such garuishee. 314. The Shei'iir oi' Bailiff to whom such'f;|;^,.^J'«;;if[;;;: writ of execution is directed, sliall levy the""-'"'"""'" ^^'"' ' •' fusts and Icui. uuiount mentioned in tlu; said (execution, to- wards satisfaction of the judgnu-nt deht, together with the costs of the proceeding to be taxed, and liis own hiwful fees, according to the pi'ac- tice of the Court from wliich such execution has issued. 315. If the ;iarnish(^e disputes his liability, I'looeeUinifsU he " ' •' ' disputes tliu then such .Judge of the County Court may order J»-bt. that the jiulgment creditor shall be at liberty to ])roceed against the garnishee according to the usual practice of the County or Division Court, as the case may require, for the alleged debt or for the amount due to the judgment debtor if less tlian the judgment deltt, and foi' costs of suit. 316. In cases in the County Courts when riay the amount due by him, or an amount e([ual 17 8iun Cuurtti. ^\ i 1 (■ 1> 258 r.ARNISIIMENT IN SrPERIOR mURTS. [Sue. .Ilfi. fr'sf'^r* '"■ ^^ ^^^^' judj^ment debt, and does not dispute the debt due or claimed to be due from him to the judi^ment debtor, or if he doea not appear before the Division Court Clerk named in the order at his otHc-e, at the day appointed by such Judge, then such Jud^Lje, on proof of the service ot the order having' been made four days previous, may make an ordt-r directing execution to issue out of the Division Court of the Division in which such garnishee resides, according to the amount diu', and such order shall, without any previous summons or process, be sulKcient authority f(tr the (;icrk (if the said Division Court to issue execution to levy the amount due from such uarnishee, aiul the Bailiff to whom such writ of execution is directed shall l)e thereby authorized to levy, and shall levy the amount mentioned in the said execution towards satisfaction of the judgment debt, together with the costs of the proceeding t(» be taxed, and his own lawful fees ; but if the garnishee disputes his liability, then such Judge nuiy order that the judgment credit- or in the said County Court shall be at liberty to })roceed against the garnishee, according to the practice of the said Division Courts, (//) for the alle tlic tiiiii' the rules of the Court wovdd ordi- that they would he oMiyod to i>ay iiaiily apply to them. Ic would be the jui|,i,'meut -subject, of course, jiropcr, tlierefore, for a teacher to the limiliitiou in respect tlicreol' bringing u suit in this 'ourt, if made by tiie "Jnd sub-section. (Ij) Thi^ clearly give.^ e.\clusi\-e jurisdiction (irrespective of the amount claimed), on the subject treate'l of in this section, to tin l)ivision Courts (sul)jeet toappea From the use of the wordx " by the the sum claimed is for than •SlUO, to allege in his p.^riiculixra that it "is brought uuder the pro- visions of the l(5,')th section of the Tublii Schools Act," lest it might i> otheiwiseappear that the I'oui t had no iurisdiction I ■ M i ,1: 1 Irl i ■ I .^J^. IMAGE EVALUATION TEST TARGET (MT-3) .^^ i^\4i^ 1.0 I.I Li£12.8 no ^^* ■» 140 KS llll ■2.5 2.0 1.8 L25 IIIIIU IIIIII.6 V] W v: V /^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MSSO (716) •72-4503 7/^ k ^ iV 260 SCHOOL .TEACHERS SALARIES. I Sec. in.'.. Rev. Stat e. 203, ss. 7-ir. Issue of execu- tion. 2. The decision of any County Judge in all sucji cases may be appealed from, as provided by the Act respecting the Education Depart- ment, (c) 3. In pursuance of a judgment or decision given by a County Judge in a Division Court, u'idei'tUe authority of this section, and not ap- P' •; jfi from, execution may issue from time to time, ■.(' recover what may be due of the amount wlr"i'''„ tiio Judge may have decided the plaintili' entiled to, in like manner as on a judgment recorded in a Division Court for a debt, together witli all fees and expenses incidental to the issuing thereof and levy thereunder, (d) 37 V., c. 28, s. 94. {() See section 7 of the Aot re- ferred to, avte, J). 254. (f/) In case there is no proiierty on which the bailiff can levy the amount, a Superior Court would, upon apjilication of the plaintili' showiuf,' a demand for the trustees to levy a rate wherewith to pay the teacher, and their neglect or refusal to do so, issue a mandamus to compel them {Munsoii v. Colliny- n-ood, 9 C. \\ 497). I'V GENERAL RULES AND ORDERS KOR REGULATING THE PRACTICE OF THE DIVISION COURTS IN THE PROVINCE OF ONTARIO, AND FORMS OF PROCEEDINGS THEREIN. Sec. 2S8. (a) By the Division Courts Act, it is enacted that liecUal. the Governor may appoint and authorize five of the County Judges from time to time, to frame gener- ' al rules and forms concerning the practice and proceedings of the said Division Courts, and the execution of the process of such Courts, and with power also to frame rules and orders in relation to any of the provisions of the said Act, or of any future Act respecting such Coui'ts, as to which doubts have arisen or may arise, or as to which there have been or may be conflicting decisions in any of such Courts, that the County Judges so ap- pointed, or any three of them, shall, under their hands, certify to the Chief Justice of Upper Can. ada, all rules and forms by them made, and that the Chief Justice shall submit the same to the Sec. m. Judges of the Superior Courts of Common Law, at Toronto, or to any four of them, and that the Judges of the Superior Courts (of whom the Chief Justice, or the Chief Justice of the Court of Com- mon Pleas shall be one) may approve of, disallow, or amend any such rules or forms, and that the rules and forms so approved of shall have the same force and effect as if tliey had been made and included in the said Division Courts Act. (a) These marginal references are to the dififerent sections, and are to be understood as made to those of the present Division Courts Act (Rev. Stat., cap. 47), unless some other enactment or statute is speci- ally referred to or named. ■Mil 262 Recital. DIVISION COURT RULES. Sic. 'JJS. 11* Board nf County Judges. And whereas by the Act of the Legislature of this Province, passed in the 32nd year of Her Majesty's reign, intituled " An iVct to amend the Acts respecting Division Courts," it is enacted that trhe County Judges so to be appointed as aforesaid, shall be styled "The Board of County Judges," and shall have authority from time to time, in addition to [their present pov/ers, to make rules also for the guidance 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 that the said Board may, from time to time, altc* or amend any rules or orders made for said Courts. And whereas the Lieutenant-Governor of this Province, in exercise of the power so given to him, on the 24th day of March last, appointed James Robert Gowan, Stephen James Jones, David John Hughes, James Daniell and James Smith, five of the County Judges of this Province, to frame new general rules and forms concerning the practice and proceedings of the Division Co'.xrts, and the execu- tion of the process of such Courts, and also to frame new rules and orders in relation to the Divi- sion Courts Act, and any subsequent Act or Acts respecting such Courts, as to which doubts have arisen or may arise, or as to which there have been or may be conflicting decisions in any of such Courts, and also to make rules for the guidance of clerks and bailiffs, and in relation to the duties and ser- vices to be performed, aud the fees to be received by them. PrnmiiintttUm. Xow, in pursuance of the powers vested in us, we, the said James Robert Gowan, Stephen James Jones, David John Hughes, James Daniell and It ;i Rule 2,] INTERPRETATION RULE. 263 James Smith, have framed the following mien, Sec. S37,et seq, orders and forms for use in the said Courts, and to be in foi'ce until otherwise ordered as aforesaid, and we do certify the same to the Honourable the Chief Justice of Upper Canada accordingly. Toronto, 1869. RULES. (/>) TIME OP OPERATION. 1, The rules of practice and the forms now in use in the several Division Courts shall, on and from the second day of August, A.D. 1869, cease to be used, and in lieu thereof, the following shall, on and from such day, be the rules, orders and forms in force and used in said Courts. But any action, process, order, judgment or proceeding, pending, existing, or in force in any Division Court at that time, shall not be thereby affected, but shall continue and remain, and so far as necessary, be proceeded with under these rules and forms, if applicable, or otherwise under the rules and forms hitherto in use, or as the Judge may direct. INTERPRETATION. 2. In construing these rules and forms, unless otherwise declared or indicated by the context, the following words shall have the several mean- fl! (6) As to the framing and author- ity of these rules, see ss. 237, 238. By seetion 241, these rules and forms have the same force and effect as if included ;n the Act (but see note (e) to section 2,38. In reading these rules and forms it will be noticed that the sections spoken of in them refer to the sec- tions of the previous Acts, which are now embodied in chapter 47 of the Revised Statutes, but the editor has for the sake of convenience noted in tlie margin the sections of the existing statutes applicable to each rule and form. Such rules or portions of rules as have been re- scinded are not reproduced, but are noted in their appropriate place. 264 DIVISION COURT RULES. [Rule 2. I A tl' Interpretation. The Act (R. S. cap. k7). Party. Persntt. Persiiii nr Party. Executor. AdminUtraior Gender. Sworn ttiul on oath. Home Court and Home DivUiun. Foreigii Court and Foreign Divinion. ings hereby assigned them over and above their several ordinary meanings, viz. : — (1) The words " the Act " (c), shall mean the Division Courts Act (Consolidated Statutes of Upper Canada, chapter 19); and the words "the Act of 1869" shall mean the 32 Vict., cap. 23 (2) " An Act to amend the Acts respecting Division Courts ;" (2) The word " party " shall mean a party to a suit or proceeding; (3) The word "person" shall mean any person, whether a party to a suit or proceeding or not ; (4) The words " person" or " paHy " shall include, and be understood to mean a -dy politic or corporate, as well as an individual ; (5) The word " executor " shall be held to embrace and mean " of the last will and testament," and extend to parties acting as such of their own wrong : (6) The word " administrator" shall be held to embrace and express " of the goods and chattels, rights and credits, which were, &c. ;" (7) Every word import- ing the singular number shall, where necessary, be understood to mean severa! persons or things, as well as one person or thing ; (8) Every word importing the masculine gender shall, where neces- saiy, be understood to mean a female as well as a male ; (9) Tli« word " sworn," and the words " on oath," shall bt understood to mean affirmed or on oath viva voce, ov by affidavit or affirmation ; (10) The words " Home Court " and " Home Division " shall mean respectively the Court and Division from which process originally issued; (11) The words " Foreign Court " and " Foreign Division " shall mean respectively the Court and Division into which process is issued from another Court ; (12) (c) Tho Act ter 47 of the now in force is chap- RevisoJ Statutes of Ontario, and styled "The Division Courts Act." Rule 3.] CLAIM AND PARTICULARS. 265 The words " Judge " and " Clerk " respectively Judpc and shall be takeri to extend and be applied to the Junior, Deputy, or Acting Judge, or Deputy Clerk (as the case may be or require); (13) The words " Plaintiff" and "Defendant " respectively shall be PiainUff and /. .1 Defendant. mutual. / transposed, where necessary, tor the pro- per application and construction of any of these rules or the forms herewith, or for giving effect thereto; (14) The word "County" shall include coioK-y. any two or more counties united for judicial pur- poses ; (15) The worde "the claim," shall mefin aaiw. the demand or the subject matter for which any suit or proceeding is brought or instituted in u Division Court; (16) The word "process" shall PcoceM. mean any summons, writ, or warrant issued under the seal of the Court, or Judge's summons or order ; (17) In any form or proceeding, the words "United United Counties " shall be introduced nccording to law, and circumstances rendering the same necessary. CLAIM AND PARTICULARS. 3. Every claim should show the names in full, {d) ponmhuo Vl and the present or last known places of abode of the parties, and must be written in a legible man- ner, and delivei-ed to the clerk at his office ; pro- vided that if the plaintiff is unacquainted with the defendant's Christian name, the defendant may be described by his surname, or by his surname and the initials of his Christian name, or by such name as he is generally known by ; and the defendant (d) This rule is very commonly neglected, and suits are often enter- ed for or against several persons in partnership, using the iirm name only, or with merely the initial letter or letters of a Christian name, and this often unintelligibly written. The rule is a very proper one. and should be strictly observ- ed. If Judges were more strict in enforcing it, the evil would soon cease. 266 DIVISION COURT RULES. [Rule 4. Rule 111',, "/ See secH. 6S lid 6U. Sec. 'i.f, nnri Form SO. Sec. S7, et »eq Form lii. .Sec. V? may be so described in the process, and the same may be taken to be as valid as if the true Christian name and surname had been stated therein ; and q. all subsequent proceedings thereon may be taken in conformity with such descri2)tion ; or, when the defendant's true name is discovered, the pro- ceedings may be amended accordingly, on such terms as the Judge thinks fit. 4. The claim shall, in every case admitting thereof, show the particulars in detail ; and, in other cases, shall contain a statement of the par- ticulars of the claim, or the facts constituting the cause of action, in ordinary and concise language, and the sum or sums of money claimed in respect thereto (Forms 15 to 21 are given by way of illustration). But in all cases the Judge, in his discretion, and on such terms as he thinks tit, may adjourn the hearing for a statement of particulars or further particulars. 5. Where a plaintiff sues a defendant, under the provisions of the Act 27 and 28 Vict., cap. 27, the claim shall contain the following statement : "And the plaintiff enters this suit, and claims to have it tried and determined in this Court, because the place of sitting thereof is the nearest to the de- fendant's residence." 6. In all actions in Division Coui'ts against ofiicers and their sureties (under the 25th and sub- sequent sections of the Act) on the officer's security covenant, tho paiticulars of the claim shall be ac- cording to Form 18. The process and subsequent proceedings to be the same as in ordinary cases. 7. Where a party, having an unsatisfied judg- ment, desires to proceed under the 160th and subse- mn Kui.E 12. 1 PROCESS. 267 quent sections of the Act, he shall enter with the Form 2 \ clerk a minute in writing according to Form 27, or to the like effect, which shall be numbered in the order in which it shall be received ; and, if he pi'oceeds in a Division Court other than the one in which the judgment was entered, he shall, with the minute, deliver to the clerk a transcript of the judgment ; and thereupon a summons (Form l',^)^,^ :$. 28) bearing the number of the minute shall issue. 8. Where the excess is abandoned, it must be ivxs. .;9. i\<&. done, in the first instance, on the claim, (e) PROCESS. 9. A.11 first process issued under the seal of the sg^. 36 „„d gg. Court shall be signed by the Clerk, dated the day on which the claim is entered, and numbered to correspond with the claim on which it issues, (ec) 10. The first process issued in a suit under the Sec». 3S (0 as. seal of the Court shall for all purposes be held to be the commencement of the action. 11. The first process for the recovery of a debt ^''"■"' "• or money demand, or for a tort or other personal action, may be a summons, and called " Ordinary Summons " (Form 22). 1 2. In actions for the recovery of a debt or money s«c. n. demand, where the particulars of the plaintiff's claim are given with reasonable certainty and detail (under the Act of 18G9), the first process may be a summons, and called " Special Summons," and may be in the Form 23 set forth in the schedule ; and " Warning No. 1 " therein shall stand in lieu (c) See note (/) tos. 69, and s. 196. (ec) The day of holding tlie Court must always, and in all forms, be stated at length, in words and not in figures (see N. B. at the foot of Form 22). 268 Fnrm ?'(, aud Hep. Act, SCI'. . PI VISION COl'HT liULKS. [Rule 13. Sec. 171. Sec fi/,. Rule 1S3, and Fontti S and :y. of Form A in the schedule in the last mentioned Act. (/) 13. In actions of replevin, the first process shall be a writ of replevin and summons, called " Summons in Replevin " (Form 24). 14. An alias or pluries process ( \ Form ??. of 18G9, as ho may elect. The costs and disburse- ments of transmitting such confession to the Judge to obtain the order for entering of JTidgment, shall be costs in the cause. 31. In case judgment be not entered by default, on a special summons, within one month after the return of the summons, the clerk cannot enter it afterwards ; but the suit shall not thereby abate or be considered as discontinued, but the plaintiff may continue and revive the same at his own expense by suing out an alias summons in the ordinary form of summons to appear (Form 22), with the same particulars attaclied or endorsed as were at- tached to or endorsed on the special summons, which shall be duly served upon the defendant in the usual way, and the suit may then proceed as in ordinary cases. 32. The judgment sliall be entered by the clerk in the Procedure Book, according to the form to these rules appended (Xo. 52), in lieu of Form U in the schedule to the Act of 1869. 33. The execution to l)e issued on a judgment under the second section of the said Act shall bo in the form set forth in the schedule of forms to these rules, No. 77. Sej'. ~irt)i«/7/;.s\ 34. Where, under the provisions of sec. 18 of the Act of 1809, a writ of execution is required to be executed out of the division, the writ may be directed by name of olllce to the bailiff of any of the Division Courts in the same county, but can- not be issued to the bailiif in another county. The returns recpiired to be made under sections 18 and 19 must be made to the clerk by whom the process or document has been issued. Form r>-i Sec. 79 and Fnrm 77. Rule 37.] ATTACHMENTS — INTERPLEADER. 275 ATTACHMENTS. 35. The form of affidavib for an attachment shall Form ii, and sec. I'JO be according to Form 11. In all cases where an attachment shall issue (whether the suit be com- menced by attachment in the first instance or not), and the summons against the defendant shall not be personallj' served, the hearing or trial shall not take place until a month after the seizure under the attachment (k) 3G. When several persons sxie out warrants of attachment against an absconding, removing or concealed debtor, each one of such attaching credit- ors may enter a defence, call and examine, and cross-examine witnesses as to any debt or claim proved or attempted to be proved against the debtor, in tli(! same way and to the same extent as the debtor himself might do were he jiersonally to ujjpear and defend the suit on any ground what- ever. (I) INTERPLEADER. 37. (in) When any claim shall be made to, or Seen, ^oo, ^lu in res])ecb to, any goods or chattels, property, or security, taken in execution, or attached under the process of any Division Court, or tlic ])roceeds or value thereof, by any landlord lor rent, or by any person not being the i>arty against whom sucli ja-o- ccss lias issued, and summonses have been issued on tlio ai)plication of the officer charged with the execution of such process, such summonses shall be served in such time and manner as is directed Forni!^ I'J, SI, T 1' 1 i i ' 1 ' ' ' ' ! if ill [k) Tliis is to carry into ellect tlio provisions of section 1!)8. (/) Tiiis was tho i'oiinor practice of tlie Suj)ei'ior Courts of Common Law under the Attachment Law. See also section L36, note (a), where a similar provision in gar- nislice cases is spoken of. (in) See sec. 210, ami notes . 27G DIVISION COURT RULES. [Rri.F. 38. 13 tor service of an ordinary summons to appear ; and the case shall proceed as if the claimant were the plaintiff, and the execution or attaching cteilitor were the defendant. P'o'-iii "I- 38. The claimant shall, not less than six days before the day appointed for the trial, leave at the office of the clerk of the Court, a particular (v«) of any goods or chattels, property or secuiity, alleged to be the pro))erty of the claimant, and the grounds of his claim, set forth in ordinary and concise lan- guage ; or, in case of a claim for rent, the amount thereof, for what period, in respect to what pre- Fonnso. mises the same is claimed to be duo, arvl the tenus of holding : and any money paid into Court shall be retained by the clerk until the claim shal be adjudicated upon ; provided that, by consent, an interpleader claim may be tried, although these {?i) The object of these rules is to liave the claim decided on its merits; and if the Judge errone- ously decides against the claimant on a mere technicality or a pre- liminary point, a Judge of a .Supe- rior Court of Law would prohibit the bailiff from proceedint; with the execution until the < ' um had been heard on its merits, or would grant a mandamus to the County Judge so to hear it { A'.c part<' Mc- Fee, 9 Ex. '2rtl ; 23 L J. Ex. ^^l ; Jleq.y. titapylton, 21 L.J. Q. B. 8 ; Heg. V. Rieharth, 20 L. J. Q. B. 3.^.1). Tlie delivery of particulars of claim as directed by the rule is a condi- tion precedent to the right of the plaintiff to have the case so tried : and if no particulars are delivered, it is in effect an abandonment of the claim (see Lloyd's County Courts Practice, 546). What areaufficieut particulars in individual casos within I'nle 38 is a question for the County .hidgt; ; but if he decides erroneously that the particulars are insulficicnt, and refuses to hear the case on the merits, or for that reason makes an order adjudging the goods to be the property of the execution debt- or, a Superior Court would grant a mandanuis to compel him to hear the claim {lb. Ml). The current of the decisions in the reported cases suggest that the County Judge ought not, fiom any mere technical or cajjiious objec- tion to the particulars on the part of the execution creditor, refuse to hear the claim. If merits are pre- sented, and the claimant appears to support his contention, it would be better, under Rules 3!( and 118, * to allow an amendmetit, and if ne- cessary postpone the hearing. ^ Rule 43.] INTERPLEADER — REPLEVIN. 277 rules may not have been complied with : and the summonses, the particulars, and the order thereon, shall be accox'ding to the forms given or to the 71, 01. like effect. 39. In case the claimant shall not have complied with the rule in respect of delivering a particular of his claim, the Judge may, upon such terms as he shall direct, order the trial and proceedings to be adjourned, so as to enable him fully to adjudi- cate upon the claim on the merits. (0) 40. Where the claim to any goods or chattels, property or security, taken in execution or attached, or the proceeds or value thereof, shall be dismissed, the costs; of the bailiff shall be allowed to him out of the amount levied, unless the Judge shall other- wise order. REPLEVIN. 41. In actions of replevin no other cause of {*'"""* {f- ^^'• ' 7S' anil J'i. action shall be joined in the summons. 42. Where the distress is for I'ent, and the defendant succeeds in the action, if the defendant requires, tiie Judge shall find the value of the goods distrained, and if the value be less than the amount of rent in arrear, judgment shall be given for the amount of such vahie ; but if the amount of the rent in arrear be less than the value so found, judgment shall be given for the amount of such rent, and may be enforced in the same manner as any other judgment of the Court, (p) 43. Where the distress is for damage feasant, and s«c. ';, sub-sec 3 the defendant is entitled to judgment for the return, "f ^'i>'<">"' ^"f- if the plaintiff requires, the Judge shall find the ((>) See last note. in these cases the provisions of 13 (/>) This rule carries into effect ^/'ar. II., cap. 7, sec. 2. 278 DIVISION COURT RULES. [KuLE 44. Form 70. Sec. sn. n ' |i|ii amount of the damages sustained by the defendant, and judgment shall be given in favour of the defendant in the alternative for a return, or for the amount of the damages so found. Forms 70 and 85. 44. In any other action of replevin, the judg- ment for the defendant shall be for a return of the goods replevied with the costs of suit, together with such damages as the defendant shall sustain by the issuing of the writ of replevin, if damages are awarded. 45. In case the defendant in an action of re- plevin shall pay danuigos and costs into Court, under the 90th section of the Act, and shall leave with the clerk a consent that the replevin bond be delivered up to be cancelled, and an express waiver of all right to the proiterty replevied, and the plaintiff accept such damages, the proceedings in the said action of replevin shall thenceforth cease and be discontinued. 46. Before the bailiff replevies, he shall take a bond in treble the value of the jiroperty, to be replevied ((/) as stated in the writ, which bond shall be assignable to the defendant, and the bond and assignment thereof may be in the form given, the condition being varied to correspond with the writ. Sec. 13 Rep. Act. 47. The copy of the summons in replevin shall not be served iipon the defendant until the bailiff has replevied the property, or some part of it, if he cannot replevy the whole in consequence of the de- fendant having eloigned the same out of the county in which he is bailiff, or because the same is not in Fniitm 117 and US. {q) See section 11 of tlio Uepleviii Act, and notes tliereto. Rule 50.] PROCEDURE IN REPLEVIN. 270 the possession of the defendant, or of any other person for him. (r) 48. A copy of summons in replevin shall be Uep- Act, gees, served on the deienuant personally, or, if he cannot be found, by leaving the cojjy at his usual or last place of abode, with his wife, or some other grown person being a member of his household, or an inmate of the house wherein he resided as afore, said, (.s') 49. The bailiff shall return the summons in re- plevin at or before the return tlay thereof, and shall and Foniui'i ' annex thereto : (a) The names of the sureties in and the date of the bond (t) taken from the plaintiff', and the name or names of the witnesses thereto. (b) The place of residence and additions of the siu-eties. (c) The number, quantity and quality of the arti- cles of property replevied, and in case he has re- plevied only a portion of the i>ro[)erty mentioned in the sunmions, and cannot replevy the residue, by reason of the same having been eloigned out of the county by the defendant, or not being in the possession of the defendant, or of any other person for him, he shall state in his return the articles which he cannot replevy, and the reason why not (Form 119). ' 50. If the bailiff makes such a return of the pro- Sev.isRip. Act, perty distrained, taken or detained, having been eloigned, then upon the filing of such return, a writ ia withernam (C. S. U. C. , cap, 29) shall be issued 03. (>•) See section 13 of the Hoplevin Act, which was enibod ied in tlie form of a rule for conveniince of officers and suitors in a Division Court. (s) See section 20 of tlie Reidevin Act, and note thereto. (t) See sectiDU 11 of the Replevin Act, and notes thereto. 1 I.R 280 DIVISION COURT RULES. [Rule 51. Formn 11, 1*0. Form It'J. Sect. 70, 71, un. Sec. 7i. :,/ 1 |Ki; l\ule as. by the clerk who issued the summons in replevin, and before executing such writ, the bailiff shall take pledges (sureties) in like manner as in cases of dis- ti"ess. GARNISHEE PROCEEDINGS. 51. The affidavit (Form 40) required by sec. 6 of the Act of 18^9 (?/) shall be made by the primary creditor, his attorney or agent, and should state (in addition to the facts required by that section) the nature of the debt sought to be garnished, and the amount thereof, if known to the applicant ; and the application to the Judge may be ex parte. r)2. The warning (Form 42) shall be endorsed on or subjoined to the attaching order issued under sec. 6, sub-sec. 1, and on the summons referred to in sec. 6, sub-sec. 4, and sec. 7, sub-sec. 1. (w) 53. The service of the summons on the garnishee shall in all cases be made at least ten days before the return thereof, and the service on the })rimary debtor or debtors, ten, fifteen, or twenty days (ac- cording to the places of residence of the parties to bo served) before the return thereof. If the amount of the ])rimary creditor's claim exceed eight dollars, the service must be personal, unless the Judge order otherwise ; if such claim does not exceed eight dollars, the service may be personal, or on some grown-u)> person being an inmate of the dwelling or usual place of abode, trading or dealing of the person requiring to be served, (lo) 54. The primary debtor shall in all cases, unless dispensed with by the Judge, be served with every ■ ! (v) See section 127 and notes, and for forms setting forth nature of debt, refer to Form 11. {v) See sections 127, 130, and Form 42, and note (c) to section 137. {w) See sections 70, 71, 72 and 131, and notes thereto. Rule 59.] GATINISHEE riJOCEEDINGS. 281 take f dis- (rarnishee summons, and if not served, the Judge may, on such terms as to him may seem meet, ad- journ the case until such service be effected, and may also order any other')»er8on to be made a party to such suit, and to be served with such summons. 55. The Judge, in any such garnishee proceed- ing, may order that the service need not be per- icos. ij/, j.5j. sonal, but may be made on any person or persons to be named in the order, or in such other manner as the Judge may direct, (x) 56 If the garnishee or the primary debtor, sccs. I3n, 132. 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, are served, the Judge may give the same judgment against those served as in ordinary cases, (?/) 57. Where the summons, under sec, 6, sub-sec. 4, gg^ h^q „„^ is to be issued from any Court other than that in f,lj'^'' ^^^' ^'''' which the primary creditor has obtained judgment against the primary debtor, a transcript of such judgment shall be filed with the clerk of such first mentioned Court, previous to the issuing of the sum- mons against the garnishee. 68. No payment shall be made by a garnishee to a primary creditor before judgment given against the primary debtor, except an order for that pur- pose be first obtained from the Judge, (z) 59. The application under section 14 must be by sec. m. summons obtained from the Judge, returnable at any time and place the Judge may appoint, and (x) See section 1.35 and notes, as (z) See sections 129, 130, 142, to the scope of this rule ; also sec- note (h) to section 128, and note tion 131. {zz) to section 135. (y) See section 129 ; also note (ji) This rule is in effect a restraint to section 132. "P°° ^'^^ latter part of section 128. 282 Sec. l/,2. Sec. l/,3 b'linn U7 a Sec. i:i:i, and W. and Form H. DIVISION COURT KULES. [Rule 60. calling ui)on the garnislieo, primary creditor, or such other person or persoris as the Judge in his discretion sliall think tit. If the mone" has been l)aid over, the primary creditor or r uer person may be called upon by the summons, chonging the form to suit, to show cause why he should not pay the money to the primary debtor or other person applying. The order, if granted, may be ii. accord- ance with the summons, and may be gi'anted if parties summoned make default, or otherwise, as in ordinary chamber applications in the Superior Courts. 60. The bond to be given under section 15 shall be executed by the prinuiry creditor, or his agent, with one sufficient surety in double the amount of the debt ordered to be paid by the garnishee, and shall be an ordinary bond to the cleik, by his name of office, conditioned for the repayment of the money in case repayment be ordered, and such bond shall be approved of by the clerk (Form 47 a). Gl. In addition to any costs that may bo awarded against a garnishee under the 11th section, if the j)rimary creditor is obliged to issue execution against him, the costs of such execution and the bailiff's fees thereon may be also levied of the gar- nishee. G2. The forms subjoined to these rules for gar- nishee proceedings shall be in lieu of the forms for like proceedings in the schedule of the Act of 1869, and the entry in the Debt Attachment Book shall commence when the attaching order or gar- nishee summons, as the case may be, first issues, and each subsequent proceeding shall be entered therein when taken. l! i-f. I %\ Rulk66.] executors AND ADMINISTRATORS. 283 tor, or 63. In the proceedings against garnishees under the Common Law Procedure Act, sections 292 to 296 inclusive, (a) the forms 48, 49, 50, 90 may Uv' used ; and the same proceedings may be taken in a s. cap. an, the Division Court against the garnishee as pro- vided in the Act of 1869, and in these rules und forms, made under the said Act, as far as applic- able. PROCEEDINGS BY AND AGAINST EXECUTORS AND ADMINISTRATORS. 64. A party suing an executor or administrator .se... .'nami may charge in the summons, in Form 32, that the defendant has assets, and has wasted them. 65. In all cases, if the Courts shall be of thci.vm.s5/,.w,hv). opinion that the defendant has wasted the assets, the judgment shall bo, that the debt or damages and costs shall be levied dc bonis testatoris si, (Oc, ct, si non, de bonis projyriis, (h) and the non-j;ay- ment of the amount of the demand immediately, on the Court finding such demand to be correct, and that the defendant is chargeable in respect of assets, shall be conclusive evidence of wasting to the amount with which he is so chargeable. 66. Where an executor or administrator denies i.^o,.,n»(;/,sj,s/,. his representative character, or alleges a release to himself of the demand, whether he insists on any other ground of defence or not, and the judgment of the Court is in favour of the plaintiff, it shall be that the amount found to be due, and costs, shall be levied de bonis testatoris si, ike, et, si non, de Rule m. bonis proprr"*. (a) These sections are now sec- tions 311 to 316 of Rev. Stat. , cap. 50, and will be found on page 256, ante. (b) That is, of the goods of the testator, if any, or if not, of the goods of the defendant. 284 DIVISION COUKT HULKS. [Rule (i7. t'nrmuM S3,S!,. Fnrm»ss,fiS,sit. 67. Where an executor or aflininistriitor admits Ills rpprest'utative character, and only denies the demand, if the |daiutift'j)rove it, the judgment shall be, that the demand and costs shall be levied de bonis taxtafori'x, .s/, ,S;i,H.',. Forwn ffi, S3 and SI,. (c) That is, when they shall hare come into his hands. «♦» Rn,K73.| KXKCl'TORS \N1) ADMtNISTRATOHS. 285 shall be forasHets, tjiimnio aw'uhnnt, ami the phiin- tiH" sliall pay th»» defendant's costs of proving the athninistration of assets. 71. Where tile defendant admits his representa- FormHi'.r,,»n,s!,. tivo character and the phiintifl''H (h-niand, but alleges a total or partial adniinii.tration of the assets, b»it does not prove the administration alleged, thtfjudg- iiient shall be, to levy the amount of the demand, if so much assets is shown to have come to the de- fendant's hands, or so nnich as is shown to have come to them, and costs, il« hon!n fi'staforis si, ifc, ef, si non as to the costs, de doiiin proprils ; and as to the residue of the demand, if any, judgment of assets, (jaando accidcrint. 72. Where judgment has been given against an Form su. executor or administrator, that the amount be levied upon assets of the deceased, qiuindo accile- riiif, the plaintiff, or his personal re])resentative, may issue a summons (Form 34) ; and if it shall appear that assets have come to the hands of the executor or administrator since the judgment, the Court may order that the debt, damages, and costs be levied (J)' boni.'i tcstatoris si, ^'c, vt, si non, as to the Form o?. costs, ossession of them" (Lloyd's County ("ourts Practice, 524). As to what goods may be seized on an execution, see section 170, and notes thereto. As to wliose goods may be taken, it is laid down in the books of prac- tice that the bailiff can execute the writ on goods of the defendant only ; and if he seize goods or chattels be- longing to a third party,, he will be liable to an action, and this though they be in possession of the defend - ant and apparently his propertv (Chitty's Arch. 581). If a third party puts in a claim for the goods, the bailiff's proper course is to ap- ply for a summons of interpleader under the 210th section. The goods of a testator or intes- tate cannot be taken in execution for a personal debt of the executor or administrator unless tlie execu- tor or administrator has by some act made the goods his own (1 Wins. Exors, 489, 505). If one of several defendants die after judg- ment and before execution, the writ should in form be against all, but it can be executed only against the goods of the survivors. As to executions against part- ners, see note (7) to section 78 and note to Form N . Care .should be taken not to sell ve than is sufficient to satisfy the execution, and the bailiff, if he sells more than is necessary, will be liable in trover for the excess, as a sale under an execution is pre- sumed to be for ready money. It is the duty of the bailiff to stop the sale as soon as sufBcient money is realized to satisfy the execution (Cook V. Palmer, 6 B. & C, 739). As to tliis subject in the case of attachments against absconding debtors, see section 190, note (y), and section 198, note (u). A frequent subject of discussion with bailiff's is as to the priority of executions. The conflict that may arise as between executions from a Superior or County Court and from 288 DIVISION COURT RULES. [RuLK 76. 1 ■■ '!. a Division Court, is spoken of in note (o) to section 15o. The cases of attacliing and non-attaching cre- ditors under the absconding debt- ors' clause, are fully discussed in note (n) to section 195. 'fhe subject of priority as be- tween execution creditors in Divi- sion e'ourts is simple enough. If the writs are in the hands of the same bailiff, the first takes preced- ence, and must be first satisfied— unless, indeed, stayed by the plain- tifl" either in express terms or by implication. For example, if lie tells the bailiff not to sell untjl an- other writ comes in, the writ is not in his hands for ejxdition, and will therefore be postponed to a writ delivered to the bailiff at a subse- quent period [Foster e.t al. v. Smilh, 13 U. C. R. 243). A difhcidty may sometimes arise, however, where executions against the same person are delivered to two or more bailiffs in the same county, over the whole of which, as we have seen (see note {t) to section 15G), each has jurisdiction. But here doubtless the bailiff who first seized would properly claim priority for the writ in his hands, irrespective of when the judgments had been recovered or of the date of the delivery of the writs to the bailiffs ; and in determining the priority of writs, the Court will look to the fraction of a day {Beck- man V. Jarvis, 3 'J. C. H. 280 ; Converse v. Mkkle, 16 C. P. 167). If a plaintiff has an execution against several defendants, he can- not be prevented from directing the bailiff to levy the whole amount out of the goods of one of them {Zavitz v. Hoover ct al., M. T. 2 .Vict). As to a warrant of commitment, it may be executed at any time of day or night, and on any day ex- cept Sunday, and the arrest may be madeatany time before thewarrant expires; but the bailiff should exe- cute it within a reasonable time, or he would probably be liable to an action at the suit of the party in whose interest the warrant was is- sued if he could prove injury result- ing from the neglect (Lloyd's Coun- ty Courts Practice, 579). It may be also executed within the county of which the officer is either a con- stable or bailiff, but it cannot be executed in a court of justice with- out leave of the Judges. The bail- iff cannot break open an outer door of a person's house, nor can any force be used in order to gain ad- mittance to the house, even if it be only the lifting of a latch that is anyhow fastened, " for every man's house is his castle" (Scmayiie.t' Case, 5 Coke 92). A violation of this rule would render the bailiff subject to an action, and the arrest would be a nullity; but this pro- tection is confined to the outer tloor. So that the apartment of a lodger may be broken into, provid- ed the bailiff has effected a peace- able entrance into the house. The same rule applies where the judg- ment debtor is in the house of a stranger, though if, after being once lawfully arrested, the debtor escapes and shelters himself in the house of another, the bailiff' may use violence in order to enter and take him, provided it be done in J'resh jiursuit (Semai/ncs' Case, 5 Coke, 92). If the bailiff has reason to believe that the judgment debt- or is in his house, he may enter peaceaVdy in order to arrest him, but he cannot justify even a peace- able entry into the house of a stranger, except by proot that the judgment debtor was actual ly there (Cook-e V. Birt, 5 Taunt, 765; John- son V. Leiijh, 6 Taunt. 245). In cases where it is necessary to em- ploy force, it is advisable, in order to justify it, to demand admission, and to exhaust every reasonable ;;ii.. , Rule 79.] clerk's books. 289 77. The following books shall be kept by the clerk, (e) and the necessary entries fairly made '''"'"*'<'''. '^. c. tlierein, namely : 1st, a book to be called the " Pro- cedure Book," in which shall be entered a note of all px'ocess issued, and of all orders, judgments, de- crees, transcripts received, Avarrants, executions, and returns thereto, and of all other proceedings in every cause and at every Court ; 2nd, a book to be called the " Cash Book," in which shall be entered an account of all suitors' moneys paid into and out of Court ; and 3rd, a " Debt Attachment Book :" which books shall be according to Forms 4, 5 and G, and kept, as nearly as may be, in the manner shown in the forms. 78. The clerk shall number every claim in the *'f • 6'>'.""<' order in which it is received b^ him : the number- ing to show the standing of the suit, in respect to the whole number of suits entered in the Court for the then current year. 79. In any case where the proceeding by special means heforc resoi'tinfjto it (Lloyd's ('(jimty Courts J'raL-ticc, oSO). An arrest may liu mado l)y merely toucliing the [person, sayint; at the same time such words as " Vou are my prisoner," or "I arrest you," &r. ; and so, if an otficor put his hand tlirougli au open window and toui'h the prisoner, he may after- wards break into tlie house to take him into custody {,Samlon v. Jer- ■ns, E. B. & E. <)3."»). But it is not always absolutely necessfl ry to touch the person, for if, after being told by the officer tiiat he has come to arrest him, he goes with the otK- • I'r, it is a legal arrest. See also notes {/>) and (i/) to scn- tidu 184, and note (ff) to section 4G. ((•) See note (n) and {ir) to sec- 19 tion 38, which refers to the Pro- cedure Book, and section (J7, which speaks of the " Foreign Procedure Book." As has already ))een sug- gested in the previous pages (see note (ic) to section 79, and note (p) to section liiO), it would be well tor clerks to keep, in addition to tlie books mentioned above, an " Order Book," in which should l>e entered all Oldens given to clerks by suitors for tlie taking any step in the cause wliich shoulil originate from the suitor, or for the issue of execution or other process, and thus })revent suitors from denying their having given such orders, and as a guide to the daily duties of liis othce. A suggi.'stion to tliis ell'ect was made by the author in G L. C. G. 45. ■kfat ■If h 290 DIVISION COURT RULES. [Rule 80. Rtile 3, and Forma 10 to 27. kule 2, anil nect!. 67, Ti, 7. 70, summons is warranted, it shall be adopted by the clerk '.inless otherwise ordered by the plaintifl". (/) 80. Tlie clerk shall annex to eveiy summons (whether original, alias, pluries or renewed) the copy of claim, entered with him according to Rule 3 ; and to each copy of summons to be served, shall be likewise annexed a copy of such claim ; and the clerk shall, without delay, issue the same for s(!rvice. 81. In case process is required to be served in a foreign division, and the plaintift" does not elect, and the Judge or clerk does not make any order as to how it shall be served, it may by transmitted by mail, by the clerk issuing the same (on receiving the necessary postage and fees), to the clerk of the division where the same is required to be served : and such last mentioned clerk shall forthwith de- liver such summons, or other process, to the bailifl of his division, to be executed; and such bailiff shall serve the same, and forthwith make retuiii Jiule yu. thereof to the clerk of his Court, in the manner re- quired by Rule 00 ; and such last mentioned clerk, on return made, shall forthwith transmit the papy this form. The items and fees now charge- *l Rule 90.] CLERKS FEES. 293 90. Every bailiff receiving a summons for service Seen. Uo, ik, 75. from a clerk, shall, within six days after service has been effected, make a return to such clerk, showing the mode of service, and for every such I'oturn and attending at the clerk's office to make the necessary affidavit of service, the bailiff will be able are very easily understood ; I'or instance, "copies of process and claim" are one charge, 20 cts. The clerk has therefore no riyht to char, and tiote. Form IMi. entitled to a fee of ten cents, to be allowed as costs in the cause ; but he shall not be entitled to such fee unless the return be duly made within the six days mentioned. And where a summons has not been served, the bailiff shall, immediately after the time for service has expired, return the same to the clerk, stating the reason for non-service, in writing, on the back of the summons. 91. The bailiff shall attend every sitting of the Court at the i)lace appointed for holding the same, at such time as shall be required by the Judge, and see that all suitable i)reparations are made for the proper accommodation of the Court. He shall make all necessary )>roc]amations, preserve order, call the ])arties and witnesses, and perform such other duties as may be imposed by the Judge. And for calling the ])artics and their witnesses he shall be entitled to receive, in every defended case, the sum of fifteen cents, to be taxed as costs in the cause. 92. The bailift'sliall keep a book (see Form 126), to be called "The Bailiff's Process Book," and he shall enter therein every warrant, process, order or execution which he has been recpiired to serve or execute, and shall enter, from time to time there- in, what he shall have done under or with each said warrant, process, order or execution, and if the same be not executed or served according to the exigency thereof, why it was not so executed or served ; and the biiiliff shall, at all reasonable times, give to a suitor or his agent every informa- tion he may require as to the execution or service, or non-execution or non-service of any warrant, process, order or execution which has been issued IJ » i ^^ LE 91. Rule 94.] RETURNS BY BAILIFFS. 295 costs such 10 six IS not r the me to :'e, in at his instance; and the book so required to be kept sliall at all times be open to the inspection of the Judge or clerk. U3. At every Court, and at such other times as Form me. tlie Judge shall require, the bailitf shall deliver to the clerk of the Court a statement or return on oath (Form 120) of what shall have been done since his hist return under evei'y warrant, precept and ■ writ of execution, which he shall have been re- quired to execute. ( j) ii-t. The returns mentioned in Rule 93 shall ^,«^^^''f^^'«' lit! tiled i)y the clerk in his office, and be open, without fee, to the inspection of any ])orson inter- ested ; and the clerk shall examine such returns, and if found correct and complete, within ten days after the receipt thereof, endorse thereon a memo- randum in the following words : " I have carefully examined the within return. The same is full, true, and correct in every particular, to the best of my knowledge and belief. Dated the day of ,18 , , Clerk." And if such returns be found by the clerk to be incorrect or iuconq)lete, he shall forthwith notify the same, with the particulars thereof, to the Judge, and if no ij) Besides this general return, tlieie .should ])e a return endorsed u])i)ii t'ach writ of execution stat- iiii; wiial lias been done under it, wliether " money made, " " no ;;oo(ls," &e. , as the case may be (see forms of returns 124 a, b, c, d, and note). For return to writ of rc- jileviii see Form 119, and inventory of floods replevied. Form 120. Tlu- return spoken of in this Kule (9;{) does not cover the case of an execution received from a Court other than the one of which he ia bailiff, as under section 74 ; for by Rule 94 the clerk must certify to the correctness of a return which, as to executions from other Courts, hi! can know nothing about (see note to section 74). It would be a proper practice, in order to secure the objects of this and the next rule, for the execution to be trans- mitted to the bailiff through the clerk of the division of which he is bailiff, as the latter part of sec- tion 74 is permissive. I" :i 296 DIVISION COUKT KULKS. [Rule 96. Rule W.). see. IGt. (lilll ,'IS. 'I.I. Sees. /,'.!, r,(l, i-,1. Rule l.'iU and aee. Jll. return be made, lie shall notify the Judge thereof accordingly, (/r) 1)5, (/) In case the clerk sliall receive money for any party, by virtue of his oflice, he shall, without charge therefor, forthwith notify the party entitled thereto, or tlu* clerk from whom ho received the trjinscript, that the same is received and subject to his order, and if he shall fail so to notify the party and pay over the money upon| demand, he shall be subjected to the loss of his office, (m) 9G. Every bailiff receiving any money by virtue of his olKce shall, within six days after the receipt thereof, pay over or transmit the same to the proper clerk, and neglecting or failing to do so, shall be subjected to the loss of his office, (ti) 97. The clerks and bailiffs of the Court shall not, upon any pretence whatever, withhold any moneys received for suitors, on the ground that the clerk or bailiff may be indebted to the officer holding such money, either for fees or costs or otherwise ; but all such moneys, when received or (/•) Tlie usefuhioHS of the Court lai'ffoly (Icpends on the |)roin])titu(le of the oHk'urs, and the rciuliness with which iiiforiiuitinii is ad'onlcd to suitors concerning husincss com- mitted to their care. In many divisions these returns arc entirely neglected. This brings the Courts into discredit, and must in the long run be injurious to the best interests of the clerks. Judges .should be sti'ict in enforcing the rule. (/) See note (a) to sec. 161. (m) The money is payable at the oflice of the clerk, subject to the order of the p.arty entitled thereto, and not of the clerk from whom the transcript was received. The; words "subject to the order" mean the plaintill's or defendant's order, because in no case is the receiving clerk bound to transmit moneys to the clerk of another Court with- out the written order of the party entitled thereto, or his authorized agent (Rule 159). (n) The bailifi" is not justified in retaining atn/ money in his hands, as is too often done, until fhe whole of an execution is settled. When- ever, in the words and according to the intention of this rule " any moneys " are received, the bailiff is bound to pay them over or trans- mit them to the clerk. lllII.K 100. MISCONDUCT OF OFFICERS. 297 collected, shall at once be duly paid over to the Older of the party entitled to the same, without reference to such accounts, (o) 98. In case the jn-oceedings in any suit shall be '^ecu hindered or delayed by the neglect or misconduct of the clerk or bailift' of a foreign Court or of the home Court, the clerk or bailiff causing the same shall forfeit all fees in such suit, and shall, in ad- dition thereto, pay any loss or damage that may result fi'ora such hindrance or delay to the party suflering therefrom, (p) 99. No clerk or l)ailifl[' shall, directly or indirect. .S'cm. .'(;,/, ly, purchase or be concerned in the purchase, or hare any personal interest in a suit or judgment or claim in suit, in the Court of which he shall be an officer, and any clerk or bailiff transgressing this rule shall be subjected to the loss of his office. (7) 100. No clerk or bailiff shall, either by himself St-c. m. iness, SI. ,/?<-. Or his partner in bus be engaged as agent for (o) Tlie Board of County Judaea \V(Te (lonl)tk'ss desirous, when they friimcd this rule, of avoiding:; the complications and disputes which invarial>ly grow fi-om irregidar modes of doing Imsiness. Suitors' moneys must not Lo dealt with otliei'wise than held at the dis))osal of and for the benefit of suitors, and nnist not he withheld by offi- cers of the Court on any pretence. The law affords every protection by sections 4!), .W, and 51 (see notes thereto) to the officers that can be re(iuircd, by necessitating the de- posit of fees before services are rendered. (p) It not infref^iently happens, notwithstanding this rule, that the ollieers of a foreign Court delay the return of process until after the sittings of the Court to which the defendant is SHinmoned, or until the month is expired within which the clerk issuing it may enter judg- ment. This rule aniplilies section 52, and applies to clerks as well as bailiffs. ((/) Section 153 requires the ofli- ccr taking a confession to swear that he has not received, and that ho will not receive anything from anyone except his hiwful lees for taking it, and that he has no in- terest in the demand sought to be recovered ; section 17(5 prevents an officer making any purchase of goods at a Court sale; see also Rule 100. By section 26 the Judge can dismiss any officer at pleasure, and should do so wherever tiO above objectionable practices exisu. % m III 298 Si'r. IS J ,'l sii/. Jll", Fill iii\ :i.i, Fiinii.s '.1,1, :i.',, •jii. DIVISION COURT \IVLKH. [Ilui.E 101. any iiarty, during tlio conduct of the cause in Court ; aiul any clerk or ])ailifr trn nsgrtjsaing this rule shall be subjected to the loss of his ollico. (/•) WAIiUANTS OF t'OMMITMKNT. 101. Warrants of coniuiitment sh'-'l bear date on tli(( day on which the order for conuuituKuit is (Uiterod in the I'rocedure I»ook, and shall have endorsed thereon the amount of debt and costs on su(;li proceedings, or of lino and costs w|» to tin; time of its delivery to the bailiff for execution, and shall continue in foice for three calendar tnonths from such date and no longer, unless renewed l)y iinix /Mit'fa order of tlie Judge ujjon allidavit show- ing the cause of the non-execution, and that the moneys payable thereunder have not been satisfied. I Oii. The renewal of a warrant (.s-) may be made by the clerk marking on the margin, or endors- ing thereon the following words : " llenewed by Judge's order for three months from the day of. A.D. 18 X. Y., Clerk." 10;1 Tlu) bailiff or other orti.^er executing any warrant of commitment (/) siiai!, ai the tiiue of du- {>•) Tliis is ;i i)cn!il olfciice uiulur thc! Eiiglish(!ouiity Courts Act, iuul the ('(lurt of Qucun's Hfucli in Kiiglauil ceiisurcMl a Imiliin'or mak- ing aiiplicatioii Inra wai'niiit oi'av- rost of an ahsiHiiuliiiL; dobtor in a caso iKjt fouling strictly within tho nicaningof tlic .Vet — oven aithougli he was not liable to the penalty — tiie (Jourt considering tliiit he had by so doing acted very improperly {lV). {/) Sec section 184 as to the issue and execution of thc warrant against a dLd)tor, section 18(5 as to his discharge on jiayment of deVit, section "JIT as to commitments for contempt in open Court, and note ((/) to Hule 7fi as to tiie manner of executing warrants of connuitment. IlULK 107.] AMKNDMKNTS. 290 liveriiig tho party ariestcd, with tlie wiirrant, to the gaoler, endorst* on tlio warrant the number of miles, showing tho amount of mileage, and also state, in vriting, tho actual day of the arrest. AMENDMENTS. 104. In case a special summons is issued when &•,,,.«. ;.^ ,'/,/, ,. 1 I 1 u • 1 • -'"'<. "I'd Hull' an ordinary summons sliould be issued, or vice ;.,_ versa, the same may be alteiful or amended by order of tho Judge, eitiier before or at the hearing, on such terms as the Judge may direct. ((«) 105. The plaintit!" shall bo allowed to amend his Stc. ~"./, .'/(/.. proceedings b}' striking out a defendant's name at any tiii'c, upon payment of such costs as the Judge shall order, or tho Judge in his discretion may allow the plaintiff to make such amendment, and order a judgment to be entered as in case of noii- *'' ' '^^' suit against the plaintiff in favour of the defendant whose name has been struck out. lOG. In case an action shall be brought in the name of an assignee or person beneficially int(!r- csted upon a chose in action which is not legally iissignable (v), the Judge may at any time order the |)roceedings to be amended by substituting tho name of the person legally entitled to sue foi* that of the plaintiff, upon such terms as to indemnity for costs or otherwise as to him may seem meet. 107. Where a party sues or is sued in his own right, and it appears at the hearing that he should have sued or been sued in a representative char- acter, the Judge may, at the instance of either party, and on such terms as he shall think tit, {u) See note (0 to Rule 18. (y) As to what choaes in action are lej^ally assignable, see Rev. Stat., cap. 116, sec. 6, ct se. Where a party sues or is sued in a repre- sentati\e chai'acter, but at the hearing it appears that he ought to have sued or been sued in his own right, the Judge nniy, at the instance of «>ithpi' party, and on such terms ns he shall think fit. amend the ])roceedings acconlingly : and the case shall then proceed in all respects, as to set-off .uid other matters, as if the proper description of tlie party had been given in the summons. 117. Where, at the hearing, a variance ajipears between the evidence and the matters stated in any of the proceedings in a Division Court' sucli pro- ceedings may, at the di.scretion of the Judge, and on such terms as he shall think tit, 1)3 amended. 118. The Judge nuiy at all times amend all de- II., r lUii.E 123. MISCELLANEOUS RULES. 303 fects and errors in any proceeding, wlietlier the Sees. ni.t^U. defect or error be thsit of the party applying or not, and all sncb amendments may be made with or without costs, and on such terms as to the Judge seems fit. (w) CiKNEHAT. RULES, (x) 120. Claims by husbands in their own right may iien.Btat., be joined with claims in respect to which the wife must be joined as a ])arty. 121. Where the Court gives leiive to take any .svc ;;•,/•'(//•(« /, proceeding, such leave shall be minuted in the Pro- cedure Book, but it shall not be necessary to draw up any order. 122. In cases where the hearing is by jury, the cj,,^, si. .Fudge has the same jiower to nonsuit as in ordi- naiy cases. 12.3. Under section 72 of the Act. the leave to ((") There are ci^rtnin "defects ami errors" wliieli eiiiiiiot ])0 innmd- cd ill iiCourtof limited jurisdiction. For instivnee : if a cause of .action sued for be one and indivisible, it must have arisen wholly within the jurisdiction ; if any portion of it arose elsewhere, an absolute pro- hibition would be granted in cases in which the juris,7, '.ll.i,'.U,(tntUinle Sis, i:is, w,. (//) This rule was framed in the inti-rest of clerks as well as suitors ; and although some clerks pay no attention to its provision, it is so niuiifeatly to their advantage and for their protection, that it is mat- ter of suri)rise that it is not more observed than it is. (•-) As all letters and papers pass- ug thronj;h the post oHice nuist now he prepaid, a deposit of stamps or a autlicient sum to cover postages would be indispensable. Some un- reasonable peoi)le expect that clerks are to write letters and jirepay postage on them on Division Court business without remuneration. The editor ventures to suggest that in all such oases, whilst it would very much benefit the clerks to promptly answer all reasonable let- ters and givi! all proper information to parties respecting their suits, they are by no means obliged to do so unless necessary postage stamps are furnished to carry the letters by mail (see also section 73, and Rule 1 45). iV RiTi.E 127.] INFANTS — CON TIN U ANC E. 305 satisfied that the letter had either not reached the party, or that there has not been sufficient time after service of the process for either party to be prepared for trial, or to get the notices served. INFANTS. 126. Where an infant applies to enter a suit for sec. as and any cause of action (other than for wages), he shall procure the attendance of a next friend at the office of the clerk, at the time of entering the same, who shall undertake to be responsible for costs ; and the cause shall proceed in the name of the infant by such next friend, but no order of the Court shall be necessary for the appointment of such next friend. If the plaintiff fail in, or withdraw or dis- continue his suit, and do not pay the amount of costs awarded against him, proceedings may be taken for the recovery of such amount from the next friend, as for the recovery of any ordinary debt. CONTINUANCE OF ACTION. 127. In order to prevent the operation of s^^y ^ec.siJt,and statute whereby the time for the commencement of ^"'** ''^ ""'' ^^" any action is or may be limited, it shall be only necessary to issue the first process or summons ; and it shall in no case be necessary to serve or to attempt to serve the same, or to issue an alias or pluries or successive summonses, or otherwise to do any act for the continuance of the action other than serving the defendant with the process, and the l)rocess when served shall be a continuance of the action on and from the day on which the first sum- mons or ])rocess issued. -Provided that no process shall issue after twelve months from the issue of tlip first proces ". without the order of the Judge ; 20 ■I s i.5 i :.ill i ;8a M ' 306 DIVISION COURT RULES. [Rule 128. : I)! in Forms 10.', 10-1. and the Judge sliali make no such order after the lapse of eight years from the time when the cause of action accrued, unless it be made to appear to him that service has not been effected by reason of the absence of the defendant out of the Pro- vince, (rt) STATUTORY DEFENCE. ' . case the defendant desires to avail him- self of the law of set-off, or of the statute of limita- tions, o'' of {.P" defence under any other statute having tlie fovon -"f Lw in this Province, he shall, not less than six days befoi'e the day api^ointed for the trial, give notice thereof in writing to the plaintiff, or leave the same for him at his usual place of abode, if living within the division, or, if living without the division, shall deliver the same to the clerk of the Court in which the action is to be tried ; and in case of set-off, he shall deliver to the clerk a copy of the particulars of such set-off, to be kept with the papers in the cause, and also a copy for the plaintiff, if his usual place of abode is not within the division. And the clerk shall {a) This rule is substituted for the mori- complicated practice wiiich, under section 244, would liave to be followed as set I'orth in the 27th section of the C. L. P. Act (Kev. Stat., cap. 50), If there be an intention to serve the process and go on with the ac- tion, the return day, i.e. the day for the defendant to appear, would necessarily have to be iilled in, whether it were a special or an or- dinary summons. If the former, the cierk should, if a day has been inserted before, insert a new notice under Rule 19 ; if the latter, he should amend the return liy insert- ing the day for that sitting of the Court which would afford sullicient time to effect service. If a jirocessbe issued merely to save the operatiou of the statute, without an inten- tion or endeavour to serve it, from the fact that the defendant is out of the Province, there would be no al/sofufc need, until a service could be effected, for inserting any Court day. The day of issuing should })e correctly inserted under Rule i). The process is in force only for twelve months, and cannot issue for service without a Judge's order after tlie expiry of the twelve months. Rule 131.] PAYMENT IXTO rOURT — CONFESSION. 307 for';hwitli give to sucli plaintiff a notice of such set-off, by mailing the same to him in a letter duly registered, addressed to his usual place of abode or business, according to form 102 (4), together with one of the copies of lae particulars of such set-off. PAYMENT INTO COURT. 120. When the plaintiff shall, in accordance ^.v,.,.. s-rt».?;/a with the 88th or 91st sections of the Act, signify to the clerk his intention to proceed for tlie re- mainder of his demand, and such signification shall be given within three days after he received notice of the payment into Court, but after the rising of the Court at which the summons was returnable, the case shall be tried at the them next sittings of the Court, and be put upon the list for that Court in the regular order. 130, In case of payment of money into (^onvt sec^. so n mi hu. under the 87th or 90th sections of the Act, the same shail not be paid out to the plaintilf until the iinal determination of the suit, unless the Judge shall otlierwise order, (b) CONFESSION BEFORE ACTION. 131. Every confession or acknowledgment of, debt (c) taken before suit commenced, must show Sec. 152. (I)) See note (m) to section 87. (<•) The form for confession given in the English County Courts cov- ers any sum claimed, whetlier for tlebt, ttontraet or tort. In the Superior Courts of Conunon Law any form of personal action may be ••onfesseil. The Division Courts Act anil rules, however, seem "to contemplate only a confession for tlebt. It hiis Ijccn tin.' practice of some clerks to cliarge for a sum- mons where the coufession ia given before suit, but as this is clearly uiniecessary, the cliarge woultl be illegal. The summons, although the commencement of the action, is to bring the defeuilant before the Court ; but, us a confession may be taken he/ore. or after suit com- menced, there is no need of this formality wlien the defendant ac- knowledges the debt in ! sucii a form that tlie plaintiff may there- upon obtain judgment and execu- tion. It is the privilege of the de- 308 DIVISION COURT RULES. [Rule 133. ForniH 10, 10',, lOS. therein, or by statement thereto attached at the time of the taking thereof, the particulars of the claim for which it is given, with the same fulness and certainty as would be required in proceedings by special summons ; and unless application for judgment on such confession shall be made to the Judge within three calendar months next after the same is taken, (d) or at the sittings of the Court next after the expiration of such period, no execu- tion shall be issued on the judgment to be rendered without an affidavit by the plaintiff or his agent, that the sum confessed, or some and what part thereof, remains justly due ; and applications for judgment shall be made at a Court holden for the division wherein the confession was taken. Sec. 100, Fiiriii 100, et sPq. AFFIDAVITS AND OATHS. 133. Every affidavit, in any proceeding in the Court, must be entitled in the Court and cause (if a cause has been commenced), stating the Christian and surname of the parties as in the summons, and also that of the deponent, and his place of abode and addition ; and if an affidavit be sworn by an illiterate person, the jurat must contain a certificate of the clerk or commissioner administering the oath, that the affidavit was read in his presence to the party making the same, and that such party seemed perfectly to understand it ; and there shall be no erasure or interlineations in any jurat; but the fcndaiit to give a confession if he is desirous of doing so, and the clerks and bailiff's should be al- ways prepared to receive it. {d) This rule provides the very proper safeguard that the t'oufes- sion may not be held over a de- fendant for all time, and limits the period within which it may be aeted upon. It used to be the case that partial payments were made upon current and continuous ac- counts, and the confession helil back by a plaintiif as a sort of se- curity against the defendant. See also section 152, note (if). Rri.K 1.37.1 INSPECTION OF DOCUMENTS. 309 Judge shall not be bound to reject, as insufficient, any allidavit not complying with the above requi- sites, or any of them, but may, in his discretion, receive the same. 134. Oaths and affirmations ( <:3 :;i,:?r -? 310 DIVISION COUHT HULKS. [Rule 138. PorM X, desirous of inspecting any deed, bond or other in- strunient or writing in wliich ho lias an interest, and wliich shall be in the possession, power or control of the plaintiff, ho may, within four days from the day of the service of the summons, give notice (h) to the ])laintitf by prepaid and registared pust-lotter or otlierwise, that he desires to inspect such instrument, at any place to be appointed by the plaintiff, within the division on which the suit is brought ; and the plaintiff shall appoint a [Aiwa accordingly ; but if the plaintiff neglects or refuscjs to appoint such place, or to allow the defendant or his agent to inspect it within three days from the date of receiving such notice, the Judge may, in his discretion, on the day of hearing, adjourn the cause for the purpose of such inspection, and make such order as to costs as he shall think fit. DISCONTINUANCE. Sec h'onn ln-i 138. If the plaintiff be desirous of not proceed- ing in the cause, he shall serve a notice thereof {?') as provided, respecting the service of a notice of set-off, and pay the defendant's taxable costs (if any), and after receipt of such notice, the defend- Ruic m. Form ^^^^ ^[^^n j^^^ i^g entitled to any further costs than those incurred up to the receipt of such notice, un- less the Judge shall otherwise order ; but if the plaintiff fails to give such notice and pay such costs, and does not proceed to trial, the suit may be treated as still ponding, and the defendant will be entitled to his costs, as in ordinary cases of non- suit or of default by plaintiff (j) (/() Form X is suygestud as sulli- cient fur tliis purpose- (i) See note to Form 103. (j) Sei! Form Q'^ for minute of judgment uiuler tiiis rule. Ex- ecutioii may be in the usual form. The last part of this rule (re- ^ Rule 142.] NKW TRIAL. 311 ADJOUNRMENT OF SUIT. . 139. Where a cause is adjourned, ro order of'^^^'''- adjournment shall be served on either party, except by direction of the Judge, {k) 140. When anything required by the practice of^^"''' H'l- the Court to be done by either party, before or during the hearing, has not been done, the Judge may, in his discretion, and on such terms as he shall tliiuk tit, adjourn the hearing to enable the party to comply with tlie practice. PUTTING OFF TRIAL. 141. Either party to an action may apply to the s<'i: si, and Judge in writing, and as required by Rule 144, at any time before tliu hearing, for an order to put oil' the trial on account of the absence of a material witness (whose name should be stated), or other sufficient grounds to be disclosed on affidavit, and the Judge, in granting or refusing the application, may order the payment of costs, or impose such terms as he thinks fit. (Z) ^ NEW TRIAL. 142. Application for new trial may be made sec. 107, and viva voce, and determined on the day of hearing, if ^'"■"'''' ''^' ^''^• both parties be present ; but if made when both parties are not present, it shall be in writing, and fcrring to stamps), as it originally appeared, having been rescinded by Rule 168, is not now reproduced. (k) The latter portion of this rule, which referred to stamps, has been omitted. (?) It frequently occurs that parties come to the Court having prepared for trial at some expense ; and if one of them is unable to proceed on account of the absence of a material witness, the trial would be put off on payment of costs. This rule, therefore, is in the interests of all parties. That it is not more actcil on is largely owing to the fact that many who have suits in the Courts do not know of the existence of such a provision, or that professional men are engaged in the case too late to make the practice under it avail- able. I \\\ i 1 M 312 DIVISION COURT UULKS. [Kin,K 142. U K ahow briefly the grounds on which it is made, which grotinds, if matters of fact requiring proof, ahull be supported by allidiivit. (a.) A copy of the application, and of every such attidavit, shall be served by the party making ilw same on the ojjposite party or his agent, or loft iit his usual place of abode or business, if witliin the division ; or if without the division, then witli the clerk, who shiill transmit the same forthwith to the opposite i)arty. (//t) (b.) The application and aflidavits (if any), to- gether with an atlidavit of the service thereof, shall be delivered to the clerk within fourteen days after the day of trial, to bo by him, on receiv- ing the fees and necessary postage, transmitted to the Judge, with a copy of the original claim, and other papers requisite to the proper understanding of the case, which delivery to the clerk shall operate as a stay of proceedings until the Judge's final decision on the application is communicated to the clerk. (c.) The Judge, after receiving such papers, shall delay for six days deciding upon the application, to enable the opposite party to answer the same in writing or by affidavit, if facts stated by the appli cant in his affidavit are disputed ; and the derision of the Judge (Form 76) shall be transmitted to the (m) It is the practice of some clerks to send the copy ol' applica- tion and affidavits to the clerk of the Court within the limits of which the opposite party resides, and have them served through him instead of sending them by post. This course has the advantage of greater certainty, and would be more satisfactory to the Judge, who will tlien know that the oppo- site party has had notice of the application. It would also prevent anotlier difficulty, for it will hv noticed that sub-sec. (a.) permits the application papers to be sent by post ; whilst under sub-sec. (b. ) there is no stay of proceedings un- til they have been delivered to tuo clerk, with an affidavit of service. i,K 143,1 STWING PUOCEKDINGS. 31:^ clerk by mail, who shall, if a new trial be orclerod, Forms 7e,iot. notify tho parties thereof by mail or otherwise, and the suit shall bo triod at tho next sittings of the Court, unless the Judge shall otherwise order (see Form 101). (d.) If tho application be refused, or if the party applying shall fail to comply with the terms im- posed by tho Judye, the proceedings in the suit shall bo continued as if no such application had been made. Tho Judge, instead of deciding the same, may hear the parties on ^he matter of such \)plication at llio next sittings of the Court, or at uch other time and place as ho may appoint, which decision shall bo sent to the clerk, and be by him communicated to the parties in like manner. (e.) Tho Judge may in his discretion make it a condition of granting a new trial, that it shall take place before a jury, whether* the first trial took place before a jury or not ; but if either party required a jury to try the case in the first instance, he shall be entitled to another jury on depositing the necessary fees for summoning such jury ; and in such case the order for the new trial shall direct the summoning of a jury (see Form 101). (f.) Where, under tho lOGth section of the Act, Sec ion. judgment in writing is delivered at the clerk's office, application for a new trial may be made within fourteen days from the day of delivering such judgment. SETTING ASIDE OR STAYING PROCEEDINGS. 143. The Judge may, in any case, refuse to set s<-c. s/A, and aside or to hold void any of the proceedings, on account of any irregularity or defect therein, which shall not, in his opinion, be such as to interfere 314 Sees. lOS, 2!,i, uiul Forms. 0i 1} ' See. 73, and Rule isr>. DIVISION COURT KULES. [Rule 144. with the just trial and adjudication of the case upon the merits ; and may at all times amend all defects and errors in any proceeding, whether the defect or error be that of the party applying or not, and all such amendments may bo made with or witliout costs, and on such terms as to the Judge seems fit. 141. All applications to the Judge to set aside or stay any order, judgment, pi'ocess or proceeding in any cause or matter in a Division Court, and all other applications, except in matters which may bo disposed of upon an ex parte application to the Judge, and applications otherwise specially provid- vx\ for by these rules,' may be made viva race at any sitting of the Court, if both parties be present, or upon affidavit, the o[)posite party having notice of such application and of the groimds tliereof, and the order or decision of the Judge upon such application, if made at a sitting of the Court, shall be entered by the clerk as in other cases of order made ; if made upon affidavit elsewhere it shall be mailed to the clerk by the party obtaining the sauie, and the Judge may enlarge the motion for further affidavits or evidence to such time and place as he may choose, on such terms as ho thinks tit, in) POSTAGE AND KEGISTKATION OF LETTERS. 1 15. All letters enclosing any papei"s in a cause sent from one Division Court officer to another, or to a party to a suit, or to the Judge, aud all neces- sary notices sent by the clerk, shall be j)repaid and registered, (o) and the costs of such postage and registration shall be costs in the cause. (n) For form of .summons and order under this rule, see Form S. (o) Sec section 73, note {ii), and Rule 125. EuLE 147.] WITNESS FEES, 315 [Rule 146, as to costs of appeal from Court of Kevision, is rescinded by Supplementary Rule 168, which see]. WITNESS PEES. 147. The clerk shall determine (subject to appeal Sees. 3S, ;>,•>, to the Judge) what number of witnesses shall be allowed on taxation of costs ; the allowance for whose attendance shall be according to the scale (For'- 1 3), unless otherwise ordered; but in no Form 3. case to exceed ' • •' scale, except the witness att-^nds ur ' ■ "ulijmna froia the Superior Courts, and, be- loio allowing disbursements to witnesses, the clerk shall be satisfied that the witnesses attended, and that the claim for fees is just; and if a witness at- tends on two or more trials, the fees shall be ap- portioned between the different causes, (p) {})) The .38th section of the Act authorizes the clerk to tax costs, subject to the revision of the Judge. Section 98 provides for the special case of a witness attending the Court from another county under a suhpu-na issued from one of the .Superior Courts of Law. This rule authorizes the clerk to tax costs as to witnesses generally, subject to similar revision of the Judge. Any person giving evi- dence before the Judge is entitled to his fees, whether attending un- der a subpcena or not, and in some cases whether sworn or not, be- cause the defendant by his defence, or the ]>laintifl'by the nature of his claim, may have necessitated the attendance of sui'h witness. If, in the opinion of the Jndge, a witness is material, he would, if attending on a subprena, be en- titled to be paid, even though it should not be found necessary to call him. The witness fees allowed by the tariff arc : for attendance in Court per day, 75c., and travelling ex- penses per mile, one way, lOc. The latter part of the lule gives the clerk a 7«a.st judicial position, and requires that he should act with judgment and caution. He must be satisfied — 1st. That the witness for whom fees are claimed has actually been jmid, not that he it to be paid. 2nd. That he actually attended and was present in Court when the case was undei investigation, and ready to be examined if called, though he might not have been actually examined. 3rd. That he was a material and necessary witness, of which the fact of his being examined before the Judge would be sufficient evi- dence, unless the Judge should state that what he had to testify had nothing to do with the case, or, for any other reason, order that he should not be allowed witness fees. If the witness were not ex- n 11/ t5f ll^ If 316 Sees. 238, 2U. DIVISION COURT RULES. [Rule 148. AS TO UNAUTHORIZED FORMS AND PROCEEDINGS. 148, All pi-oceedings, books and documents shall be in forms similar to the forms to these rules appended, where the same are applicable, and no l)rinted forms shall be used by any clerk or bailiff of a Division Court unless first approved by the Judge, in writing, as being in accordance with the forms appended to these rules ; and if an unauthor- ized form sliall be used, no fee shall be payable to the officer in respect thereto ; and in cases where no forms are provided, parties shall frame the pro- iunined, and no order mnde by the Judge on tho subject, it would de- volve upon the clerk to exercise his judf{nient as to whether the evidence of the person could be considered material or necessary. To satisfy himself on this point, it would generally be necessary for him to have before him the state- ments on oath of the plaintiff or defendant, and such other evidence and explanations as could be ad- duced. 4th. That he attended only in the one case in which fees are claimed; for if he was a witness in more than one, the fees pai"y only be alio wedl besides t he per diem allowance), instead of mileage, the ordinary fare, and anything he is obliged to pay besides owing to delays caused by casualties; but in no case to exceed what the mileage would be if that mode of calcula- tion were adopted (see Form S). In nearly every case the clerk will find it to his advantage, both for his information and as a jirotcc- tion against fraud, to insist upon the production of an atHdavit of disbursements by the plaintiff or defendant claiming witness fees. Such affidavit may be in Form ll'J. It is a very convenient jiractice, ado])ted by some clerks with the sanction of the Judge, to ascertain what witnesses have attended ami what distances they have travelled, whilst all the parties are jiresent in the Court, and if the person who has to ])ay the fees do not insist U])on the ]jroduction of an affidavit, then and there to settle what should be allowed. This would in many cases avoitl the dissatisfaction which often arises from a large iimount being allowed lor witness fees without the knowledge of the parties, and the inconvenience of parties attending before the clerk afterwards, and the trouble and expense of procuring affidavits of disbursements on a re-taxation of costs. Rule 151.] JUDGMENTS. 317 ceedings or documents, using aa guides those ap- pended to these rules, (q) JUDGMENTS. 149. Every judgment, order, and decree of the seci. 37, 79, 106, Court, shall be entered by the clerk in the Pro- 75.' cedure Book (r) according to Forms 45 to 75 in- clusive, or to the like effect ; and when any order is made for the payment of any debt, damages, costs, or other sum of money, the same shall be payable at the office of the clerk, at the expiration Sec. 79. of fifteen, days from the rendering of judgment, unless the Judge otherwise order ; but where judg- ment is signed by the clerk under section 2 of the Act of 18G9, execution may issue forthwith. 150. After an award is made and filed (with an secs. i/,7, m, affidavit of the due execution thereof) under sec- ■'^''' ^'"•'" '"•''• tions 109, 110 and 111 of the Act, the duty of the clerk is forthwith to enter the judgment on such award, and issue execution thereon, at the request of the party entitled to such execution, witliout any order from the Judge, (s) 151. Where a plaintiff avails himself of the secs. 77,7s. provisions of section 81 of the Act, and proceeds 11 !! I f'i 1 -h (7) Tliis rule was necessary, from the fact that some clerks persist- ently used forms which were not preserilied, aoiue of which did not answer tlie end for which forms itre given, and might liave led to trouble. The forms framed by the .hulges do not furnish all that may lie necessary ; hut as suiiplemented by those prepared for this work, they will be found almost eomi)lote. .Section 241 says that the forms prepared by tlie Judges shall have tlie same force and effe(^t us if made and included in this Act. This rule, which also has the force of a statute, only speaks, however, of these forms as being suggestive. (r) Section .37 requires, amongst other things, that the clerk's name shall be signed on every page of the Procedure Book. As this is neces- sary in order to complete the record, clerks should not, as they too often do, neglect it. (,y) Notwithstanding the entry of the judgment imder this rule, the Judge, on application to him under section 150, may set the award aside. 318 DIVISION COURT RULES. [Rule 152. Sec. 9li, Furms r,7, OS. against only one or more of several persons jointly liable, the defendant sued may avail himself of any set-off or other defence to which he would be entitled, if all the persons liable were made defendants. 152. When judgment is given for the defendant on a set-off, he will be entitled to issue execution and to take proceedings as in ordinary cases for the recovery of the^ balance of his set-off which exceeds the plaintiff's claim, if such balance does not exceed $100, or the defendant is willing to abandon the excess over $100. {t) (t) The statute which introduced the law of set-oii'in England (5 Geo. 11., cap. 22, .sec. 13), did not enable the defendant to recover judgment lor any excess in his favour ; that was an adilition of later years. ^V'hen this rule was made, sec- tions IK") and 1)6 of the Con. Stat. U. C, cap. ly, and section 17 of the Act of 1«G!>, were all in force on the sul)jeet of set-off. Sections 95 and !)(> have been repealed, but all their provisions are not embod- ied in section 94 of the present Act. Under those sections the Court might have given judgment lor the dc'fendiint for the balance found in his favour, if the defend- ant's set-olf (after remitting any portion of it lie pleased) did not ex- ceed $100 ; and where a set-off was set up, the judgment thereon was a full discharge as well of the amount allowed to be set-off, as of the amount by which the claim of tiie defendant exceeded $100, and the judgment was to be entered accordingly. The next enactment was that of the 17th section of the Act of 18G9 (32 Vict., cap. 23), which declared that when the set- off, proved to the satisfaction of the Judge, exceeded the amount shown to be due to the plaintiff, the plaintiff was to be nonsuited ; or in his (the plaintiff 'sJT election, judgment might be given for the defendant, in which case the set- off was to be thereby satisfied only to the amount found due to the plaintiff, and no further ; an.' See Rnlenii'i anil u:i. (lays from tlie date Ijereof. Dated day of 18—. X. Y., Clerk." suitors' moneys : how payahle. 159. It is the duty of parties entitled to nionoys collected by oiHcers of the Court to direct how the same are to be transmitted to them. (//) The clerk shall not be bound to transmit by post any such moneys, nor to procure and transmit post ofiice orders therefor, except upon the request and at tlio expense of the party entitled thereto. Without such direction and request, all moneys are payable to the parties at the olhce of the clerk without tlie payment of any fee whatever : in no case is tlie clerk to transmit moneys to the clerk of another Court, without tho written order of the party en- titled thereto, or his authorized agent, (z) (y/) This rule is for tho security .■xud indfinnity of clerks receiving and ) laying out moneys, it is very C(jninion for clerks to receive per- emptory onlers to send, ami some- times abusive letters from parties or tlieir iittorncys or agents for lujt sending moneys, i^vcn before tiiey are collected, although they have given no onlers fur the mode of transmitting, such persons, even wlieu moneys iire transmitted, often refusing to allow for hank charges on chetiue.s or drafts, or fees on post oHico orders. It would he well for the clerks, in places where tliere is a chartered bank, to open a deposit account for suitors' moneys, and in all cases to pay by chei[ue to the orders of the parties entitled. Should suitors re- fuse a cheipie they could then pro- vide their own mode forhaving the moneys transmitted. (:) With regard to the latter part of this rule, tlie e, having an unsatished judgment in iiis lavour, a transcript of the entry ot such judgment, under section 139, or a transcri^jt of the judgment under section 142 of the Act, is issued from the Court in which the judgment has b,!(!n recovered, an entry thereof shall be made by the clerk in the I'rocedure liook, and no further proceedings shall be had in the said Court upon the said judgnient, without an order from the Judge. 1G2. No transcript or copy of a judgment shall Secg. ir/j, loi, be issued or acted upon under the 137th or 139th iju and i'>7. ' siictious of the Act, where the proceedings have ;il»iit(Hl, or in a case where no warrant of execution or judgment summons shall have issued on a judg- meut more than six years old, unless such judg- ment shall have been revived. that i;lerk as it w.)uM bo to prove t!i:it till! party rocoivod tlio money. Tluj viMii'lior sliould bo in the liinnU of t li ■ oliii'ks pivyiay out tlu; money, ami tliat is wiiat tlii; rule was in- lemled lo provide for. Clerks of Courts issuing trivuseripts have no rigiit to assume that they are agents of tlie parties, or be treated liy clerks reoeivingand paying out uioiieys a-i entitled thereto, simply boeause judgments were obtained in the Courts of which they are clerks. Wiien suitors cause tran- scripts to be. transmitted, orders written over their own genuine sig- natures should direct how moneys are to be transmitted to them, and provide for the expense of it. Note (a) to section 161 makes fur- ther suggestions ou this subject. if J I i' ! 324 Ste. IGl. DIVISION COURT RULES. [RULK 163. 163. The entries of proceedings on a transcript, under the 139th section of the Act, may be made in the Procedure Book, in the form of an ordinary suit, as near as may be. And the Procedure Book shall, for that purpose, be the transcript of Judg- ment Book required by the Act. [Rule 164, as to fees to officers, is in effect re- .«icinded by Supplementary Rule 170.] 165. So far as applicable, these rules shall extend and apply to the judicial District of Algoma and to the District of Muskoka, and the several Courts established or to be established therein, and to the proceedings in such Courts, (a) 166. The regular meeting of the Board shall be held in the City of Toronto, on the 3rd Monday in June annually. Dated Toronto, 1st July, 1869. J AS. EOBT. GOWAN. S. J. Jones. D. J. Hughes. James Daniell. Jas. Smith. Approved : Wm. B. Richards, C.J. John II. Hagauty, C.J.C.P. Adam Wilson, J. John W. Gwynne, J. Thomas Galt, /. (a) The Act respecting the ad- ministration of justice ill unorgan- ized tracts extends these rules to Division Courts of all temporary judicial districts ; except that the provisions authorizing the signing of judgment by default, for want of a notice disputing the plaintiff's claim, or authorizing the garnish- ment of debts or money demands, do not apply. See Rev. Stat. , cap. 90, sec. 13, which makes provision for Division Courts in the unor- ganized tracts ; cap, 6, sec. 19 et Kcq., as to the same Courts in the Provisional County of Haliburton ; and cap. 7, sec. 18 et seq., as to the Territorial Districts of Muskoka, Parry Sound and Thunder Bay. I Rui,E 168.] SUPPLEMENTARY RULES. 3215 SUPPLEMENTARY RULES, (h) [Rule 167, respecting stiinips, was rescinded by the next rule, which see.] 168. Whereas, by the ninetieth section of the siiid " The Administration of Justice Act, 1874," it is provided tliat no fees or charges shall be pay- able for the benefit of the Crown upon ajiy pro- ceeding had in any Division Court ; Therefore, from and after the first day of July, A.D. 1874, rules numbered 135, 136 and 146 of the said General Rules of the first day of July, 1869, and the Supplementary Rule numbered 167 of 3rd September, 1869, shall be rescinded ; and (b) The following Rules 166 and 167, wi're pa.s8ed ou September 3, 1860 ; Rules 168 to 170 are dated 28th June, 1874. The following is the introduction, as given by the Judges to those of June 28 : " We, the undersigned, ' Tlie Board of County Judge?, acting un- der and in pursuance of the powers vested in us by law, as recited and set forth in the General Rules for regulating the Practice of the Divi- sion Courts of Ontario, dated the first day of July, 1869 ; and also under the powers and in pursuance of the 91 st section of "the Admin- istration of Justice Act, 1874,'' have framed the following Supplementary General Rules and Orders, to be in force until otherwise ordered ; and we do hereby certify the same \^o the Honourable the Chief Justice of Ontario accordingly. " The rules are signed by — J.v MEs Robert Gowan, SeMior Judge, Co. Simcoe, Chairman. S. J. Jones, County Judge, BraiU. D. J. Hughes, County Judge, Elgin. James Danikll, CouHty .Judge, Prescott and Russell. Approved by — \Vm. I?. Richards, C. J. John H. Haoarty, C. J. 0. P. Jos. C. Morrison, J. John W. Gwy nne, J. Adam Wilson, J. Thomas Galt, /, 326 SUPrLEMENTARY IIULES. [RuLK 169. P Hliij ffi tlic following rules in the said Generul RuIch of Ist July, 1809, shall bo umcmled as follows, viz. : Rule nunibcrcil 01, the word "five" in the last part thereof shall be struck out, and the word " fif- teen " inserted in lieu thereof. Rule numbered \^S, the last twenty-three words shall bo struck out. Rule numbered 139, all after the word "Judge," in the second line thereof, sliall be struck out. Rule numbered 142b, the words "and stamps" shall be struck out. 169. From and after the said first day of Julj, 1874, so much of Form numbered 1 1 4, or any other form attached to the said Rules of 1st July, 1809. as indicates or refers te stamps for fees payable to the Fee Fund on proceedings had in the said Courts, shall be rescinded and cease to be used, (c) officers' FEH8. 170. The fees set forth in the tarilf hereunto an- nexed, marked " Schedule of clerks' fees " (Form 127), and " Schedule of bailifi^s' fees" (Form 128), shall, from and after the first day of July, A. D. 1874, be the fees to be received by the several clerks and bailifTs of Division Courts in Ontario, for and in relation to the duties and services to be performed by them as oflicers of the said Courts, and shall be in lieu of all other fees heretofore re- ceivable for the same proceedings. (, hccm replaced by l''(iniin /»•;, /?,s'. T2< and 128, whicli now provide taritl's of fcos for Ai'/. s;/, /i()<(^(/). clorks and bailiffs]. 3. Allmnance to witnesKes. Attendance per ctH. Travelling expenses, per mile, one way 10 cts. ^'''"'- '■"'< •'"'. •''''• N.B. — If n witness travels by railway or other public ''"''' ">'■ conveyance, ho may only bo .'vllowed, (besides the per (lic'in allowance) instead of mileage, the ordinary fare, and anything ho is obliged to pay besides, owing to delays caused by casualties, but in no case to exceed what the laileage would be if that mode of calcuhition woro adopted. Feeti to jurors. ' . K.ach juror sworn in any cause, out of the money ,.,, ..^^ deposited with the clerk for jurors' fees, 10 cts. /'as to iqipraisers of gooils, dc, nche.d under tvnrraid of attachmcHt. To each appraiser, 50 cts. per day during the time ^. , ^,^,, actually employed in .appraising goods, to be paid in the first instance by plaintiff, and allowed in the costs of the cause. 4. rrnccihire Book. Division CVmrt in the County of Ensuing Sittings, 2Gth October, 1878. No. -K.0. A.D. 1878. X. Y., Clerk. ,,,„,,,,, „,^„ Ja ks Biri), of the Township of , vs. Titos. ''''• Fisii, of the Village of . 1878. Itlt. Oi;t. ■211(1 " Sth " ir)t!i " irth " IStli " .'Olli " 25tli " llcccivcd iiiirtioulars in dctiiil of claim for 812, ])lniutitT paid $1 toward)) costs. Ih'humI n|ii' -ial suiuinons to bailiff, costs .^ , l)osidi's luiloaL Snmiiioiis iinicd, served Otli Oct., 5 miles travel. Wrote plaintiff that no defence put in. Plaintiff writes re(|iie8tinf{ jnd(,'mont to be signed and exe- cution issued. Judgment siicned by clerk, "The defendant liaviii]^' been served with special summons and particulars of claim, and •'! disputint; same, it is adjudged that the jilain- tiff .ver .*12 for debt, and § costs." ^ Issued ex .iition to bailiff. liailiff ri'turned execmtion "feci" and paid amoinit .* to clerk Hjimc day; wrote plaintiff iiiforminj; liim thereof. I'aid plaintiff »12 debt, and SI deposit, in full. 328 FOllMS. No. 401. A.l). 1878. John White, of the Township of vs. Thomas (Jrken, of the VilUige of ■ [FoK.M 4. 3rd Oct. 4th " nth " nth •• 28th " 31st " lU'ct'iveil purticuliira of flaiiii (for tort) for i'Zfi ; plaintifT |iaiil ,i>t on coat!), and directed two BuliiMvnas, iind gave notico (if Jury. Is8ue dauia^'es, and i* costh in full • same day mititled plaintiff of payment, by post. I'aid plaintiff tsl^t daniajres, »4 deposit and $M witness fees in full. No. 402. A.D. 1S78. Jamf;s .Tonk.s, of the Township of ■ cveilitor, Thomas Ci.aiik, of tho Town of - tlehtor, and -, pnniary -, primary Gkorgk CJooi), of tlie saino phict ; garnishee. ."itb Oct. lUeceived of primary days." (Jth Nov. I Prin'ary creditor paid costs $ and stated suit is settled ny the parties. c c r/. K.6k. FORMS. 329 t4 o O W o Rule. 77, o I fl O . •5x •r* r- .£:« Q-" b « s> . o * ■»J ^1 o $4 «o into ing 1 u "2 a •3 « a ^o «i u ii -w • 1-^ 3 m •lunoiuv •piwf iu)tiJo • d tS C £ S ^ I J3 CO Q p JO JO I- -■ 53 »i "n 5.2 5 . :« : •p.1A!3.1 la'S^ -0.1 IIIOI|M Baili Plain J. Co uit. :| . II m im ■ o w s. - O '•-i " ■• " i ■^ ■* M a* • e • • 6 4-) • tS-x §•-5 a« '^'^^ Is •Ob 2Sc >« ^ s S 2 £ ^a ^4^ ^ l« oo> w •psAia.i r '* « — C-l -W nsiiM -II 5 o « •H ill S o S o c 3 1 r « . — ^ — ■J 3> -J CO Q 00 3 £ CQ o 3 03 33" 330 FORMS. [Form 6. Rule 77. ■a F ;^^:-5 ; ft O H W W k: 1 -.viiisiii '(siiiiuniins f> .1 q s ! II .1 V. rf .11 1 .Mli.ii) Jiiiui.mu'i |ci .1.11 \.108' JO f)11I(J 1 •Sllnlll - Ill n V ,),i i| K ; II -.1 11" .1 II a,) |i.i(i .-iiMl.ivUi: .|M ■|l \' .I'iMIl !.l(l llliMI .ilip |>iiiio) iniioiiiy 1! mini.) J! '11.1(1 ^!li;siiii luiiiniiv i 1 'lU.illl -'.pur t; iii;i:|,i i| •lii.'iiiilpnf JO .ipi(i •liiv ; pii.>.Mp.io.ioiM''|i uiiiiiud JO ,)imi\ •,U!Piiv|il .1 o .1 o ) j p ,1 J .) vimuuil JO .iun!\ i\i 16. FOKM 8.] FORMS. 331 : 7. Undcrtakinij by next friend of infant to l)e rorpon- aiblc for defendant's costs. In the Division Court in the Connty of Rule /.?';. I, the undersigned, E. F., being the next friend of A. B., who is an infant, and who is desirous of enter- ing a suit in this Court against C D. of , Ac. , hereby undertake to be responsible for the costs of the said C. D. in such cause, and that if the said A. 1>. fail to pay the said C. D. all such costs of such cause as the Court shall direct him to pay to the said C. D., I will forthwith pay the same to the clerk of the Court. Dated this day of 18 — . E. F. Witness ^J n^ >^. Affidavit for leave to sue a partu rexidimj in an adjoining dinsion. In the Division Court in the County of I, A. li., of , yeoman {or I, E. F., of • flcrlinn '.■',, Hull's //;. t:,i, - , > l.i.l, h'linii no, yeoman, agent for A. !>., of, iVc), make oath and say : /, ti,'>. ist. That 1 have a cause of action against C. D., of yeoman, who resides in the division of the County of {ifhymjent, "That the .said A'. 1?. has a cause of action .against C 1). of yeoman.") 2nd. That I {or the said A. R) reside ';: the division, in the County of . ;5rd. That the distance from my residence {i>r frum the said A. IJ.'s residence) to the place where this Court is held is .about — miles, .and to the place where the Court is held in the division in the County of , is about miles. 4th. That the dist.ance from the said C. I). 's residence to the ])l.ace where the C(mrt is held in the division wher'j he resides, is .about miles, and to the place where this Court is lieM a1)out miles. 5th. That the paid division and this division adjoin each other, .and that it will bo more easy .and inexpen- sive for the parties to have this cause tried in this division than elsewhere. Sworn, &c. A. B. {or E. F.) 'I ^ 332 DIVISION COURT FORMS. TFoRM 9, "' I 9. Affidavit for leave to sue in a division ndjoiniufj one in which debtors reside, ti'here there arc several. In the Division Court in the County of . 1, A. B., of , yeoman, (or E. F. of , yeo- man, agent foi- A. B., of, iVrc.), make oath and say: 1st. That I have (or that the said A. B. has) a cause of action) respectively against each of the tlebtors named in tlie tirst cohunn of the schedule on this ath- davit endorse I 2 So 'A '■n £•« >-S-5 » Q a Q .**- ' «)«•-• 4J § 5g 1 3 C.2 — — 'S'o = 1 "§^ "x 1 .2 1- 5 111 tr » ;s » 2 C 'x ^ "> .2 \>ij-a '>C S' a Q o'2 J 5 lifi W w' * - r4 1^ 3 1 l> — », iS j: s 5 iS>« Mc. Si, anrf Rulet 16, IZS, ISS. I ll i ( ■ i !; Ml; 334 FORMS. [Form U. Si'c. I'.ni, Uutfti .■;.<, /,".; ; Kfc. iii'i, t'uriHll(J,l, ii,u. 11. Aipilavlt for attachment. I If iiiatlo iiftor suit (•iiniiUL'iict'tl, insert stylo tif Ccmrt and causol. I, A. |{., of the — : in the County of {or I, E. F., &c., agent for the said A. B., of, &c.), make oath and say : Ist. Tliat C. D., of {or late of) ■ in tlie County o. is justly and truly indebted to nie {or to the said A. B,) in the sum of dollars and cents on a promissory note for the payment of dollars and cents, made by tlie said C. D. payable to me (or tlie said A. ii,), at a day now past ; Or for gooils sold and delivereil ^ <>r for goods bargained and sold | by me((>c the said O/- for crops bargained and sold )■ A. IJ.) to the Or for money lent said C. D. ; (Jr for money paid for the said C. D. ifr for and in respect of my ^or the said A. B.) having relin(|uished and given up to and in I'avour of the said C. I)., at his re(iuest, the beuetit and advantage of work done and materials found and provided and moneys expended by me {or the said A. B.) in and about tlie farming, sowing, cultivating, and improving of certain land and premises ; Or lor tlie use by the said C D. , by my iiernussion (o/- by the permission of the said A. B. ), of messuages and lands of me {or the said A. B.) ; Or for the use by the said C. D. of pasture land of me ijir the said A. B.) and the eatage of the grass ami herbage tliereon, by the permission of me {or the said A B.) ; Or for the wharfage and warehouse room of goods deposited, stcnved and kept by me {or the said A. B.) in and upon a wharf, warehouse and premises of nie {or the said A. B.) for the said C. D. at his re(iu('st ; Or for liorse-meat, stabling, care, and attendance provided and bestowed by me (or the said A. B. )in feeding and keeping horses for the said C. D. , at liis re(£uest ; or for work done and materials provided by me {or the said A. B.) for the said C. D. at his re([uest ; Or for expenses necessarily incurred by me {or the said A. B.) in attending as a vvitness for the said U. D. at liis re(juest, to give evidence upon tlie trial of an action at law then depending in the Court, wherein the said C. D. was plaintilf, and one IC. F. defendant ; Or for money received by the said U. D. for my use (or for the use of tlie said A. B. ) ; Or for money foun. l)y deed coveuauted with mc (or A. B.) to pay to mo(t»?' A. B.) on the »hiy of -, A. \). 18 — , together with intereaC thcri!- oiiatthe rate of per centum per auiiuiu, but (lid not iiay the same. For sarririiiif purtitir].— 'Vhni the said ('. I), is justly indebted to nu' in the sum of for (ijooils sold aiul (ifflici'red), &c., by myself and oue T. T., snice deceased, to the said (J. 1). at his rcipiest. For e,e<'cnlor or ailmhtislrator].— I, A. B., of, &c., e.vec,utor(oradnnn- istrator, of \j. M., deceased, make oath and say that V. l>. of , &c., is justly and truly indebted to me as such administrator of the said b. .\I., deceased, in the sum of — ^^ dollars and cents, &c. For assignee of an insolvent]. — A, B. of, &c. , is justly andtrulyin-. dcbted to mo as assignees of the estate and etlect of 1). L., an insol- vent under the Insolvent Act of 18 — , Ac, in the sum of for goods solil and delivered by the said I). L., before 1 l)ecame such assiguee . For dijlstnicnt]. — For the agisting, feeding, and keeping by me (or the said A. B. ) in feeding and keeping of horses (or cattle or sheep) for the said C. I>. at the renuest of the said C. D. The form of stating the diirereiit causes of action as particulars in cases of contract may be adapted to this aliidavit (sec Form l(j). It uuist lie recollected that an attachment cannot issue for any- thing but a debt or damages aris- ing upon any contract, exiu'css or implied, or upon a judgment, nor for a sum less than four cbillars (see section (JS and ni>tes). {h) The words given in this form by the Board of (Jounty Judges were suited to the statute in force in lS(;i»(sec. 1 1)1) of Division Courts Act -Con. Stat. IJ. C"., cap. ll>), in which the words " this I'roviaee " meant the whole of Upper and Lower Canada ; the present Act w m :^36 FORMS. [Form 12. (Or, instead of matter between the asterisks), the said C. D. hath attempted to remove his personal property liable to seizure under execution for debt, out of this Province ; or the said C. D. hath attempted to remove his personal property liable to seizure under execution for debt, from the County of to the County of in this Provhice ; or the said C. D. keeps cun- cealeil in the County of in this Province to avoid service of process), with intent and design to defraud me (or the said A. H.) of my {or his) said debt. 3rd. That this affidavit is not made by me nor the process thereon to be issued from any vexatious or malicious motive whatever. Swoni, &c. A. B. {I Si' 12. Attachment against an absconding or removing debtor. Sec. 190, and To A. B.j bailiS' of the Division Court in the Kiile ii,ii. gaid County of , (or to A B., a constable of the County (c) of , as the case may be). Vou are hereby commanded to attach, seize, take, and safely keep, all the personal estate and effects of ** C. D. {naming the debtor), an absconding, removing or concealed debtor, of what nature or kind soever, liable to seizure under execution for debt within the County of {here tuime the county), or a sufficient portion thereof to secure A. B. {hrre name the creditor) for the sum of (hrre .ttate the amount sworn to be due), together with the costs of his suit thereupon, antl to return this war- rant with what you shall have taken thereupon, to the clerk of the {here state the number of the division) Divi- sion Court in the county aforesaitl forthwith ; and herein fail not. AVitness my hand and seal {or the seal of the said Court) the day of , one thousand eight hundred and . [Seal] X.Y., Clerk, or Justice of the Peace {as the case may be). (section 170) contines the delin- quency for which an attachment may issue to the Province of On- tario. The editor has therefore thought it better to cliange the form iu this purticulur (see Cozens V. Ritchie, Dra. Rep. 107; Brown v. Parr, 2 U.C. R. 98.) (c) Tliese words include any con- stable within the county, such iis a constable of any town tlierein ( Je- lany v. Moore, 9 U. C. R. 294). , .1 ,.; , 1 i., 'I nil Connty of , ) I, A. B., of , make oath p„n„ iw,i,n,o. To wit. ) anil say : Ist. That I am the owner of {ih'xcrlhe prnpprt\i fidhj) at present in tlie jMissession of C. D. ; or, tliat I am en- titled to tiie immediate possession of {dcscrihi- propi' rt ij), as lessee (bailee, or agent) of K. F., the owner there- of (of, as trustee for E. F., or hk titr i-usf imnj In-), at [ire- sent in the possession of C D. 2nd. That the said goods, chatt property are of the value of exceeiling §40. ;{rd. That on or about the day of , the said goods, ehattels, and personal ])roperty, wore lent to the said ('. D. , inr a period which has expired, and that although the said goods, chattels, and [lersonal property have been demanded from the said C. I)., lie wrongfully withholds and detains the same from me. els, and jiersonal dollars, and not the said A. B. ; or, that on or aboiit the (lav of , the said C. 1)., fraudulently obtained posses- sion of the said goods, chattels, and personal projierty by faLsely representing that (ln'rc ufatf the falv rrpn-- sv)tfatiiinn) nnd now wrongfully withholds and_ detains the same from me ; (or, that the said goods, chattels, and personal jn'operty were on the «, srttiiui viit thr fiirts of the irroiuifitl tiihimf i>r detention compluimd of with certai)itti iind prrriiiitn). 4th. That the said C. D. resi above form will lie Hulfloierit to obtain writ without order]. i fiecn. .'C, 61', RuU Ul. RuUtS, t,, 0, H, unil 1,1. No. 15. Claim in replevin. A. D. 18— In the of . A. B.,of- or about tlie Division Court in the - states that C. D. , of — ,liiy of . A.D. 18- Count- did on take and unjustly detain {or detain, as the ease may be), and still doth detain his goods, chattels and personal projjerty, that is to say {heic set unt th>: description nf pruptrti/) which the said A. B. alleges to be of the value of dollars, whereby he hath sustained damages, and the said A. B. claims the said property with damages in this behalf as his just remedy. A. B. No. IG. Particulars in cases of contract. A.D. 18—. A. B. of ^ of claims of C. D., of the sum — the amount of the following account, viz., {or " the amount of the note, a copy of which is imder written "), together with the interest thereon ; or, for that the said C. 1). promised {here state shorthj the promise), which undertaking the said C. D. hath not performed; or, for that the said C D., by deed under his seal dated the • day of A.D. 18 — , cove- nanted to, tfcc, and that the said C 1). hath broken said covenant whereby the said A. B. hath sus- tained tlamages to the amount aforesaid; or, for money agreed by the said 0. I), to be paid by the said A. B., together with a horse of the said C. D., in exchange for a horse of the said A. B., delivered by the said A. B. to the said C. U. ; or, for that the said C. D., by warranting a horse to be then sound and quiet to ride, Form 16.] FORMS. 339 11 sold tlio said hnrso to tho said A. B., yet the said horse was not then sound ami qniet to riile ; ')/•, for that tho said (J. D., in consiileration tliat the 8aiin[)aid. (il) iTlio aldive fciriiis are hWl'W moroly as examploH of HtateinuntH of laimc'H of action, and the plaiiii must hIiow such further iiurtituliirs un tliL' facts ipf thu case rf(niire|. -'I ((/) The fdllowing concise forms (if statements of causes of action on contracts will be found useful by uou-itrofi'ssional persons, though tlic iiuiltiplicity of causes of action tluit arc continually arising pre- vents tiic possibility of providing a tiiiin to meet every case. For that the suid ('. I), is intlebt- I'd to the said A. H. in the sum of $ for (ijfUi'nd CDiiniiencfiucnt). For . to tlie said C. D. For rrii/is .soft/]. — Crops bargain- el and sold by the said A. B. to tlie said ( '. I). For oiifijoi)!;/ 1 1' limits' rijhts], — For and in respect of tlie said A. B. having leUniiuished and given up to, and in favour of the said C 1)., lit ills request, the benefit and ad- vantage of work done and materials found and provided and moneys expended by the said A. B. , in and about the farming, sowing, culti- vating anil improving of certain land and premises. For the Ksi' (if II house, anil laml]. — 'I'he use by the said C. I)., with the said A. li. 's permission, of mes- suages and lands of the said A. B. For the nsn of /mature laud anil cdttii/i: of ijrasn]. — The said C D.'s use of pasture land of the said A. B., and the eatage of the grass and herbage thereon by the said A. B.'s permission. For H'harfnijc awl irnrehouse room]. — The wharfage and ware- house room of goods deposited, stowed and kept by the said A. B. in and upon a wharf, warehouse, and premises of the said A. B. for the said (.'. D. at his request. For hor-'^i' kcip, sfahlini/, ti-c] — Hoise-ineat, stabling, care and at- tendance provided and bestowed by the said A. B. in feeding and keeping of horses for the said C. D. at his rc([uest. For land sold]. — For a dwelling house lor land) and premises with the appurtenances, sold and con- veyed by the said A. B. to the said C. D. at his request. /'()/• lodijimj]. — For the useand oc- cupation of rooms and apartments, together with furniture and chat- tels of the said A. B., held and en- joyed by the said C. D. at his re- quest, as tenant thereof to the said A. B. t% . sa 340 FORMS. [FOKM I /. Sew. cs, 0:i, anil S, ,(li(l, oil , A.D. 18~, at the , nnlawfnlly [take unci convert one 17. Particulars in cases nf tort No. — , A, D. 18—. A. li., c»f — — , HtiitoHthat C. D., of or about tlio — — day of — TowiiHliip of — cow and ono calf, the ])roportv of tho aaid A. 15. l)rcak and injure a waj,'^on of tliosaid A. li. ; or I'alHcly rcprcsont L. (). as tit to be tniHtod, the said C. D. iit tlie same time knowiiif^ tliat the .said L. O. was in- Holvi lit, wheieliy tlit? Haiti A. B. was induced to irive liiiii credit : "/■ assault aud beat the said A. H. (or hi fill' rase nidil /»«', sf(iin\'iii'tiii('iits ami fiii- nituie lit' till- saiil A. I>. by tlic said (.'. I*., Iicld, lisril. ;iih1 clljoyi'd at the rc(|ii(st i>i tin- said <,'. 1). ; and tor iii(';it, diinU, tiring, iieat- iiig, liglit, iittfiidiiiu'c. chattiilsaiid other iicci'Hsarics jirovidt'd bv the said A. B. for tlir said V. D. (-'/• tlie said C. I), anil otlieis) ;it his re- quest. The forms given in the allidavit for attacliment will suggest hc\ cral not given licre. If the suit is eiitired under the ((.■^id section of the Act, add the following to the ]iarticuhirs under liule r. : "And tiic ])lainlitr cnteiH this suit ami claims to have il fried find determined in this Court, be- cause the jilace of sitting thereof is the nearest to the defendant's residence." If the plaintill' sues under the 17lst section of the Act, he ahouM add to the notice ;uid warnings on the suininons the following : '• The defendant is informed that I. K. (in.ii r( till' mtiiv of thi' lunijiriiil jila'ititiff) only has power to dis- charge this suit, the subject mut- ter thereof having been seized un- der execution (see Itule 1;')). If the plaintiff sues in a spe- cial or representative character, it should be so .stated. By Kule (>4, aynit'nt whereof the saiil ('. D. uniluly withlioMs. And alsn (s/k////;/ in lib; )iiH)iiiir ((nil otlwr siinilur rli(iiii)~-\iir tlie .sum of $ for dania},'e8 sustained liy tliesaid A. J'. throuj,di the misconduct (or neglect) of tho said C. D. in the per- fnriiianco of the duties of the said ollice. Kor that on the day of , at (iliscrilx' Itt oriHiiurii hiHijtiiiijf the neglect or miscondtirt lohcrehijthe damiuje wan (la'dsioncd)], A. I?. rertuiii ^'(xhIs, chattels and cattle, of the said A. IJ., and (;arricd or drove away, or, iin]iouiided {n.s the rase nuiij he), and dctaiiUMl tlic sjtnic until the said A. li. paid tliesaid C. P. the suiii of .? ■— , or, and roii- verted and disposed thereof to his own use, whenjby the said A. 15. iiatli sustained, &c. For tres/xtss in . converted and disposed of to his own use certain goods and chattels {as the ease nun/ he.) of the said A. ]i. as assignee of the estate and eifects of K, 1^., an insolvent under the Insolvent Act, iVc. {here insert the rest according to Form 17). 1 342 fire, till, n/ I'i'ilifffor hitrtjilcuilcr. Division Court in the County of In thi Hetweon A. B., plaiutifF, and C. D., dufendant. I'y virtue of a writ of execution (or attachment) in this cause, dated tiio day of , 18- , from this Court, I ilid, on the day of , 18 — , .seize and take in tixccnthm (sperify (ii)(uts,rhnttdii, dr., Kt'i::eil) as the property of the defendiuit. K, F., of the Town-ship ol" , &c., now claims the .saiue as his i)roperty (nr now claims the .said and . as his i)roi)erty), and that th-^ value thereof is .? ; yoa will tlieiefore he pleaseil to issue an interpleader sunnnons to the phiintiff and to the sai(' E. F. accord- ing to the statute in that behalf. V. W., Bailitr. To the clerk of the aaid C.)urt. Dated, i:in f ■1 J FouM 22.] FOKMS. 343 (.s/)rri'/j/ the (londu and chattels, or chattels or moneys, tir., iloimed) and the grounds of claim are {set forth in ordi- \iiir\i lnn;fu%ge the particulars on which the claim is ifrotniv .1, as how aapured, Jrom ivhom, when, and the cont>ul:yation paid or to he paid, and when), (g) and this the said E. F. will luaintdn and prove. E. F. Dated this day of , 18 — . N'.H. If any iictiim for the .seizure has been commenced, state in whicli Court and how the iiction stands. 22. Ordinary summons to appear. In the Division Court in the County/)f . No. , A.D. 18—. [Seal] lietWL'un A. li., plaintiff, and C. D.,dofon, Rulo n. Sii. I J, .-I Ill KORMS. [I'OKM '23. {(nil if fill' iriiiili lii!e given against you liy de- fault. In case you give such notice disputing the claim, the cause will bo tried at the sittings of this ( 'iiurt , to he helil at in the said county, on I If next after the day when the summons is returnable, at which time .ind place you are ref the plaintiffs claim hereunto annexed, in order that the plaintiff may have his just remedy in that behalf. And you, the said defendant, are herel)v summoned to be and appear at the next sittings of tliis Court, to he hohlen at . in the t!(mnty of ,on the — - day of , A.I). 18—, at the hour of ten o'clock in the forenoon, to answer the above-i"*ined I'i. f!e»' X. II tn Funit .','. 346 FORMS. [FuKM 25. plaintiff in an action of replevin for the I Sick, 2ii0, 210, 211, KiilcK.Uet causes .set forth in the plaintitTs statement of claim hereunto annexed ; md in the event of your not so appearing, the plaintiti" may proceeil to obtain judg- ment against you by default, (ii) Dated the , day of , A.D. 18—. By the Court, X. Y., Clerk. r';;ii,i for return ot goods, and damages to. .S Costs, exclusive of mileage WAKNINU.S TO TUK UKKKNOANT. 1st. In case you do not appear to this writ at the tiuK' sjiocitiod in the summons, the plaintiti" Uiay, on (ilnig the writ, and atlidavit of dvie sorvi*-. , proceed thereon as if you had appeared, and obtain judgment against you by default. •2nd. If you chiim a I'ight to the ])os8e.ssioii of the goods by roii on of any claim which you may have to uigi! under any statute, or tn , at the hojir of , A.M., at ...^.. ._ . — — . , — ..... .,.. -, touching a claim made by you to certain goods and chattels [or moneys, i^Lc, <>/• securities (,etsen. Court in this action (or by a justice of the peacu), and in default of your then cstahlishing such claim, tlie said goods and chattels will bo sold (or the said moneys, Ac, jmid and deliveriMl over) acconling to the exigency of the said process : and take notice, that yon are re- quired, aix days before the ilay appointed for the said trial or hearing, to leave at the clerk's oflicc u particular of the goods and chattels {or as the rasr »(i.(j/ In) s<; clainu'd i)y you, and tlie grounds of your claim. Given under the seal of the Court this day of , 18-. X. Y., f'lerk. To E. F., the above-namo»l claimant. 2(). SummotM to plaintiff on intcrphunhr. In the Division Court in the County of . X„. , A.D. 18—. [Seal.] Between A. B., ])laintiff, ami C. 1)., defendant ; K. F., clainuuit. Whereas, E. F., of hath madt- a claim to cer- .s,.r m./-' im/c tain goods ((»r to certain securities or moui'y (((v tin: Form J'. /•'/.«• niati /)(■)], viz. : (hfrr ijicrify), which have been .seized anned '.o be and appear at a Court to be Iiolden at , on , at the hour of , s,-r .v. /;. i„ when the saiil laim will bo a, and IttS. See S. n. Form J2. to FORMS. [FoiiM 28. due me by the judgment of tho .said Court of tlie Division Court of tlie County of , on my behalf, u minute whereof is hereunto anncxef this Court, to be holdt-n at ,on the day of , at the hour of , to be then ami thei'c examined by the .Judge of the said Court, touching your estate and ell'ects, and the manner and cireuiiistanci's under which j'ou contracted tlu' said dei)t ("/• incurred the damages nr liability), which was the subject of the action in which the said judgment was obtained against you, and as to the means ;ind t \pectations you then had, and as to the i)roperty muI means you still have, of discliarguig the said ilel)t {nr damag(!S oc liability), and u^ to the disposal you may hav(^ maile of .\ny of j'our property. And take notice, that if you do pot apjiear in obedience to this summons, you may, ))\ order of this Court, l)e Pwuimitteil to the common gaol of the cu'uity. Given under the seal of the Court this day .f 18—. iJy the Court, X. Y.,CUri£. Amount of Judgment fi Costs of this summons istied jinlgiiient " proeiiros " from the Couit the JiKignient suinnums; and as some plaintiHs and agents unjustly accuse clerks of making unnecessary costs, ami sonietnucs deny the verbal or yoncral ■ nlcrs they give, attention to Kule 7 will afford some safeguard to the clerks ag.iinstunscnipnlousdenialsofsuch orders. m Form 23.] FORMS. 349 29. Sumvioas to ilcfcndant after default. In the Divisifiii Court in the Ctninty <>f — Nu. , A.D. 18—. [Seal] J'etween A. \i., plaintifl', luiil (J. D., defentliint. Whereas at the aittiny.s of this ('(turt, (i>r of, iVrc. hohk'n at the - County of on in the Town of , in the th( ihiy of , 1«- , Si'iK. 177, I Hi, ' Uuien sr,, im. the above-named phiintitl' oht.aineil a ju(l<,'nuM»t a<,'ain8t you for tlie sun) of" $ for peur itpoti the Jii\it ttut did iipoti a mcotid snnmunin, recite nc ■oriliinihi). And whereas upon your appearingthereto, and ui»on examni iifion and luiaring of both piirties (or oi y ou. and the evidence, //" a mi), it aiii)eared to the satisfac- tion of the said .Fmlge, that you then had (or had since the judgment obtained against you, on the ra.te iiioij lie) sulhcient means and ability to pay the said debt and the interest thereon, ami costs so recovered again.st you ; and the said .Judge did then antl there order and direct that you should pay to the said ]ilaintiir the .sum of ^- iccr\ieil, ;ind §- di'ltt. and interest thej >sts am I als costs of the said last mentioned summons, to he paid as follows, that is to say, tlio sum of .^ to be paid on the iiy .f 18- the further sum of Hi- jtaid on the day of the case nimi lie). to bo 18—, or forthwith (iw And whereas the plaintilf alleges that you have not i J 350 it 1*1 See X.B. ^. Farm ',','. See. 07, and Riilen Ifn, 1/,S. FOUMS. paid the and instaliuenta of [Form 30. each ((ir the said sums), so onlorutl to be paid. Von arc tlierefon^ hereby summoned to appear at the next .sittinj^'s of this Court, to ho hohlen at the in the town of -, in tlie t/'oinitj- of , on the (hiy of , IH— , at the hour of of the clock in the forenoon, to be tlien and there examined by the Judge of the said Court touching your estate and etlects, and the manner and circuiu- stances under whicli you contracted the said delit, wliicli was tlie subject of tlio actiim in which tlie said jiul<,'ment was obtained against you, and as to tlu) means and expectations you then iiad, and as to tlic proi»erty and means you still have, of di.scharging the sailaintitl', as ex- ecutor afoiesaitl, chiinis to liavo execution tliereof ; you are hereby simiiuoned to appear at tlio sittings of tliis Court, to heliolden at . on , at Set- A'.fl. tu in tlie forenoon, to show cause, if any you luive, wliy '''•""' -^ tlie said plaintilf, executor as aforesaid, sliould not iiave execution a,t,'ainst you of tlie Haid judgment, ac- cording to the force and effect of the said I'ocovery, and, in the event of your not appearing, judgment will be entered against you by default. By the Court, X. Y , Clerk. Dated this day of , 18 — . Claim 8 Costs, exclusive of mileage N. U. Thin form imiy lie aitered ti) suit olliur facts showiiiH a rlmiijce uf the parlies luititli-il to I'xecution, wliicli iiiakt> a revival usoussary. ;{1. »S«Hl.»H())/s iHt (I ihri(sf((vit. {I) In the Division Court in the County of . ho. , A.D. 18—. [Seal. I i?etween A, li. , plaintitt", and C. D., executor (ar administrator) of E. F. , deceased, d fendunt. To C. !)., the above-nameil defenr as often before) you Sec. :'7, HnUt werej summoned to be and appear at the sittings '^''' ^''^• of this Court, to be holden at , on the - — — day «,>(> s.li tu of , A.U., 18—, at the hour of in i\iQ Form ^m. forenoon, to .uiswer the above-named plaintiti" in an action, for that you, the defendant, have withheld and wasted divers goods and chattels, which were the pro- perty of E. F., deceased, at the time of his death, and needs, therefore, issue in the name of his executor or iuhuinistrato;', but as tiiere may be no one adnun- istering the estate, or no estate to administer, the assignee slioulil pro- ci-eil hy this suuunons on Ids own beludf and in liis own rigiit. In case tlie judgment plaiiitillhad died and was not insolvent, and had assign- ed the judgment ilebt before his det:ease (under Rev. Stat., caj). ll'j, sec. 7, or otherwise), it is pre- sp.med the assignee might, by this ])ro(a'e(ling, cause himself to be made party to the judgment, and so be entitled to execution. (/) This form is intended to be used after judgment against the ex- ecutor or administrator, but is in the nature of a new suit. I • M m. % ¥Vi 'i. 'i\ % 352 FORMS. tFoKM 32. wliioli Ciiiiu' to tlu' IiivikIh nf you tho defoiulant, us exe- cutor (or adniinistrivtor) of the Hiiiil E. F. to be adiiiin- istcred, wluToby a curtain judgment recoveretl against you by the phiintitl' in tlus Court on the day of A. I). IM . fori? remains unsatishetl and in the event of your not appearing, the phiin- tiH* may ])roci'ed to obtain judgment against you by default. Dated tlii.s day of \H X. v., Clerk. Si-c. : ••1 •!. iir r I mm fi '^i* ',\2. Sinifii'afltui of tlentsfavit on oriijhial mmmom. (m) itiitc i;i, {('iiiiniiviiri' ii'Hli fonn of mmvions, 'ti((tor, iinil iulilUiij uflvr th>' ironl " d« defeniiant, have money, good.s, and ciiattelH which were tlie property of the sjiid C. D., deceased, at the time of his deatli, and which ciiuut to your hands as sucli exitcutor (or admin- istr.'itnr) to lie administered ; and if not, that you liave withheld or wasted tlio same. See. WW. Summons io revive judifmeiU ayuinst an exmifur. In the Division Court in the County of . No. , A.D. l.s- . [Seal.] I'.etwcen A. 15., ])hiintifl', and C. E., executor of E. h\, deceased, defendant. To C K., tlie above-named < ititl' Inst and chattela of the said E. F., docoft»e(l, in your lianda to be adniiniatered ; and in the event ol your not apjieuiing, judgment lierein will bo entoretl against you by default. Dated this day of , 18—. liy the Court, • X. Y., Clerk. .\iu(iunt claimed $ Cimts, exchisive t»f mileage N.li. — This r( itu!: itliur fiictsgliuuiiittu inaiiHfe ii( tlif |>artie!t liuble tn'i-xuoutloii, which mukf ;\ ivvival neuexHiirv. mm ;J4. SummuHHto exec nt or ur adminialntlor, ivhere plain - t'ift' !ntt'niL< tit iil'i'lil '" tin' Ciiiirt, itUvijinij that assi'ts /i((C«' cuhh' /<> //i»' di'feinUtiit's Itanils nincr JHiliiiitfnt. In the ' Division Court in the County of , N... , A.D. 18-. I Seal. I I'etween A. H., plaintiff, and C, D., executor (or ad- iiiinistrattir) of K. K. , deceased, ilefendunt. The plaintifl" having learned that the pr(ii)erty of Si-c. ■'■:, lini'-^ till' said deceased has come tu your hands as executitr •'■ '•'' (i.( administrator! since the jmlgnient herein, to be iidminislereil (ami that you have withheld and wasted the same), intends to !ii)ply at the next sitting of this t'niut,toi)eholden at , on the day of -, s«v .\.lt ii> at the hour of , for an order that the debt and '''"''"' '•' msts be levied of the good.s and chattels of the said deceased, ii you have .so much thereof to be adminia- ti-red (and that if you have not, then that it shall be levied of your own proper goods and chattels), and that the costs be levietl of your proper goods and chattels. You are thereujMjn hereby sunnnonod to appear at the saitl Court, at the time and ]tlace aforesaid, to answer touching the matter aforesaid. Date.l this day of , 18—. X. Y. , Clerk. To the above-namcti defendant. 23 ^^J^. o >f*>^ IMAGE EVALUATION TEST TARGET (MT-3) M !.0 I.I 1^ ■luu 1.8 — ™l-^ IM 6" ^ /, Ta / /A Photographic Sciences Corporation iV 1 \ ^ <^ «-■ ». 23 WEST MAIN STREET WEBSTER, N.Y. MSSO (716)872-4503 % > 354 FORMS. [Form 36. 35. Order of reference, (n) In the Division Court in the County of • . Between A. B., plaintiff, and C. D., defendant. S*«. 11,7, tt »»q By consent of the plaintiff and defendant {or actenta if so) given in open Court {or produced in writing to the Court) it is ordered that all matters imdifference in this cause {and if consented to, add, ' ' and all matters within the jurisdiction of this Court in dift'erence be- tween the said parties ") be referred to the award of • so as said award be made in writing, ready to be delivered to the parties entitled to the same, on or before the day of , and that the said award may be entered as the judgment in this cause {add any terms that the Judge may prescribe, or the parties may agree upon). Given under the seal of the Court this day of , 18-. X Y., Clerk. a. Appointment of umpire to be endorsed. We hereby apijoint , of, &c., as a third arbi- trator with us for determining the matters in dispute within referred to us. Or, We hereby appoint , of, «tc., as an umpire as to certain differences of opinion which have arisen between us as arbitrators of the matters within referred. b. Appointment for meeting on reference. In the, &c. B. ^ I appoint the day of next, V. > at the hour of , at , for proceeding on D. ) this reference. , Arbitrator. To (both parties). c. Enlarqemcnt to be endorsed, I enlarge the time for making my award respecting the matters referred to me by the within order of reference, until the day of , 18 — . — ■ , Arbitrator. Dated, «&c. (n) See Form I, which contains fuller provisions and instructions to arbitrators. Form 38.] FORMS. 355 36. Award. The award, when endorsed on the order, may be in the toUowing form : After hearing and considering the proofs laid before Sec. ii,9, et sey., me (or us) in the matter of the within reference, and ^«'* ^^'^• in full determination ot the matters to me (or us) re- ferred, I {or we) do award that the within named A. B. is entitled to recover from the within named C. D. the sum of $ , together with the costs of this suit, and also the costs of this reference {or as the cane may be), and that the same shall be paid by the said C. D. within days, and that judgment be entered in the within mentioned case accordingly. Dated this day of , 18 — . ^ Witness. Arbitrator. {Add affidavit of caption), (o) 37. Stimnions to jurors. In the Division Court in the County of • [Seal.] You are hereby summoned to appear and serve as u sec. n/,, and juror in this Court, to be holden at , op , ^'-^^ '" ^''"■'''*-- at the hour of . Hereir. fail not at your peril. Given under the seal oi the Court this day of T< -, A. D. 18—. X. Y., Clerk. 38. Summons to witness. Ill the Division Court in the County of yu. [Seal. J Botween A. B., plaintiff, and (?. D., defendant. You are hereby required to attend at the sittings of Sea. 9', tliesaid Court, to be holden at , on the day ^t^^ y K of , 18 — , at thehour of in the forenoon, to Form 'a give evidence in the above cause, on behalf of tlie above named [and then and there to have and pro- duce (state particular documents required) and all other papers relating to the said action, in your custody, possession, or jiower]. (liven under the seal of the Court this day uf , A. D. 18—. To X. Y., Clerk. (()) Tills is given in Form 109 ; sen also Form I for instruction tu arbitrators as to the iiiakitig and publishing their awards. m m ill ■ 1 i'^'i 356 FORMS. [Form 39. Sect. 95, £/C- See iV. B. to Form an. Sect. 105, 1IS7, et »eq , Rulet SI, 1st. 39. Summons to witness to appear before arbitrator. In the Division Court in the County of [Seal.] Between A. B., plaintifl", and C. D., defendant. You are hereby required to attend before , the arbitrator {or arbitrators) to whom this cause stands referred, at , on , the day of , A.D. 18 — , at o'clock of that day, being the time and place appointed by the said arbitrator for a meeting upon the said reference, to give evidence in the above cause on behalf of the above named and then and there to have and produce (state the par- ticular documents required) and all other papers relating to the said action, in your custody, possession, or power. Given under the seal of the Court this day of , A.D. 18—. To X. M, Clerk. 40. Affidavit for order to garnish debt. In the Division Court in the County of . Between A. B., plaintiff, and C. D., defendant. I, A. B., of the , of , in the County of , the jilaintiff in the suit (if the afjidavit be made by the plaintiff's attorney or agent, make the necessary (ilteration), make oath and say, that judgment was re- covered in this case against the above-named defendant on the day of , A. D. 18 — , for the sura of .** debt and costs {or according to the judgment), and that the same remains wholly unsatisfied {or that $ part thereof yet remains unsatisfied). That I have reason to believe, and do believe, that E. F., residing at , within this Province, is {or if the person indebted to the defendant be not knoivn, say " that one or more persons residing in this Province, whom I am unable to name, are'^ indebted to the defendant in the sum of $ {or if the amount be un- known, say "in an amount which I am unable to name"), for goods sold and delivered by the defendant to the said E. F. {or otherwise, according to the nature of the debt sought to be garnished). A. B. Sworn before me at the of , in the County of , this day of , A. D. 18 — . X. Y., Clerk. Form 43.] FORMS. 357 41. Judge's attaching order. In the Division Court in the County of . Between A. B., plaintiff, and C. D., defendant. Judgment entered in the Division Court in the County of , on the day of , A. D. 18 — . Amount unsatisfied, $ On the application of the plaintiff and upon reading Scc. 12!, Rule his affidavit [or "the affidavit of A.B. his attorney "•''«'«^'? -"»''''' • {or " agent," as the case may be) J, it is ordered that all debts now owing to the defendant from any party in this Province, whether due or accruing due, be and the game are hereby attached, to satisfy the judgment in his cause. Dated the day of , A.D. 18—. geo. m and , Judge. 1S6. {Add xoarniwf as in tiext Form). 42. Warning to garnishee. To D. E., garnishee. You are hereby notified that from and after the time ^^^g 12s and of the service of this ("order" or "summons") on'no- Rules 52, you, all debts due or accruing due from you to the ■'•^' ""'^ ^~- above-named C. D. , are attached, and if you pay the same to any one otherjthan to the person holding the proper order to receive the same, or into Court, you will be liable to repay it, in case the Court or Judge so order. 43. Summons to garnishee and primary debtor after judgment. In the Division Court in the County of . [Seal] No. , A.D., 18—. Between A. B., primary creditor, and C. D., primary debtor, and E. F., garnishee. Judgment recovered on the day of , A. D 18 — , in the Division Court in the County of Amount unsatisfied, $ ■ You, the above named garnishee and the primary „ ,„ ,,, debtor, are hereby summoned to appear at the sittings Rules s^'to 62. of this Court, to be held at , on the day of , A. D. 18 — (or before the Judge presiding at 3fi8 FORMS. [Form 44. See N.B. to Form Z.'. , on the day of , A.D. 18—), at of the clock in the noon, to state and show whether or not yon the said garnishee owe any and what debt to the above-named primtuy debtor, and why you shouhi not pay the same into Court, to the extent due on the above-named judgment, to satisfy tlie same ; and take notice, that if you have any set-off or other statutory defence, as between you and the primary debtor, you must give notice thereof, to the primary creditor, six days before the day you are so required to appear. You or any one interested may also show any other cause why the said debt should not go to satisfy the said judgment, (p) Dated the , day of , A.D. 18—. X. Y., Clerk. li\i" m Sees. ISS Hules .5? Ste S.B. Form ^2. 44. Snmmoiifi to primary debtor (before judgment) and (larnishee. In the No. Division Coiirt in the Comity ot A. D. 18—. Between A. B., primary creditor, and C. D. , pri- mary debtor, and E. F., garnishee. J, J The primary creditor claims from the primary debtor to «^, the amount of the annexed account ((jiving the account or claim in detail). You, the above-named primary debtor, are hereby summoned to appear at the sittings of this Court, to be held at , on , the day of , A. D. 18 — {or at , on the day of , '" A. "). 18 — before the Judge then and there presiding) to answer the primary creditor, who sues you for the recovery of the annexed claim, and yoU) the garnishee, are required to appear at the same time and place to state and show whether or not you owe any and what debt to the jjrimary debtor, and why you should not pay the same into Court, to the extent of the primary creditor's claim in satisfaction thereof ; and take notice, that if either of you have any set-off, or other statut- ory defence, as between you, or as between the said ip) Sub-section 2 of section 136 rcqun-es that any statutory defence shall, be given to the primary cred- itor in the same manner as is done in ordinary cases. It would be well, therefore, to add at the foot of this summons the notice at the foot of Form 22. The warning required by Rule 52 (see last form) should be endorsed on or subjoined to this. ' Form 46.] FORMS. 359 primary debtor and the primary creditor, you must Sect, iss, w,. give notice of all such defences to the primary creditor • not less than six days before you are so required to appear. You and all others interested may also show any other cause why the debt owing from the garnishee should not be paid and applied to satisfy the said claim of the primary creditor, (q) Dated the day of , A. D. 18—. X. Y., Clerk. 45. Minute in Procedure Book of judamenl against garnishee on judgment already recovered. Judgment entered on the day of in the Division Court in the County of . Amount unsatisfied, f . On hearing all parties \or on " hearing the above- named" {thei}artiesap}WMri'ng)yi\iQ above-named - Seci,. 1S2, lUO, nnd Rules 62, 11)9. having mac' -i default, it is adjudged that the garnishee is indebted to the primary debtor in $ now due (or rotning due as follows ) which {or $ of which) ought to be applied in satisfaction of the said judgment, (>•) and that the said primary creditor do recover against the garnishee, for levying whereof ex- ecution may issue at any time (or if the debt be not due, or time for payment he given, add) after from this date, unless the garnishee shall sooner pay the same into Court, to satisfy the said judgment. Entered the day of A.D. 18 — . 46. Minute in Procedure Book of judgment against pri- mary debtor and against garnishee. On hearing all parties [or " on hearing the primary S's'- ^•^'. ^i''. creditor (or as the case is) the primary debtor (or as "^p'' ^"'''* "*' the case is) having made default], it is adjudged, 1st, That the primary debtor is indebted to the primary creditor in $ , and $ , costs. 2nd, That the garnishee is indebted to the primary debtor in (q) See note to Form 43, which is also applicable to this form. (r) After this word, if the gar- nishee is ordered to pay costs under sec. 139, insert the words, "and in- asmuch as the said garnishee has set up a defence which he knew, or ought to have known, was unten- able, it is adjudged that he do pay the costs of the said procweding, amounting to $ . ' S 860 KOKMS. [Form 47- ml Sec. Inn, nnil Rulen '>:?, IV. Snb-ncr. H of kec. llfi, niul l''(>iiii II.'. $ -, wliicli (if fhc (janiixlicu'n debt be larger than the primary creditor's claim, say, " to the extent of the two first mentioned sums ") ought to be applied in satisfac- tion thereof. 3rd, That the primary creditor do recover affainst the garnishee the said sum of ^ in , days {as tim£ may be given fur payment, or debt become due) (s) in satisfaction as aforesaid. , . 47. Minute of judgment in fainmr of garnishee. On hearing all parties (or on hearing the garnishee' the primary crediti>r having made default), it is ad- judged that the garnishee is not indebted to the pri- mary debtor as claimed by the primary creditor, and that the primary creditor pay the garnishee $ — ■ for his costs, to be paid in days. 47a. Bond under section IJfS. Comiuenocnient ami conclusion same as in replevin bond, cdndition as followa : (m) Whereas in a certain garnishee proceeding under the D ivision Courts Act, (0 wherehi the said A. B. is pri- mary creditor, 0. D. primary debtor, anil E. F. gar- nishee, a certain debt of $ , diie from the garnishee to the primary debtor, has been garnished to answer the debt of the primary creditor, and whereas the Judge of the said Court, acting under the 16th sectioK of the said Act, ordered that upon payment of the said debt by the garnishee to the primary creditor, security should be given by or on behalf of the primary creditor, for the repayment thereof into Court by the primary creditor. ^J ow the condition of this obligation is such that if the above bounden A. B. do pay into Court the said debt, in case a proper order shall be made for such repayment, within five days after notice of such order, then this obligation to be void, else to remain in full force. 48. Clerk's memorandum of non-aj^pearance of gar- nishee (C. L. P. Act, section 316). Memorandum . I, X. Y., clerk of the Division Court in the within order named, attended this day of (s) If necessary, here insert the words in note to previous form, (ss) This bond is to be to the clerk of the Court, as obligee, by his name of office. (t) Originally 32 Vict., cap. 23. Form 51.] FORMS. 3fil -, 18 — , at the place within mentioned, from o'clock in the in the • .Sec. /i.? ct Mq. -noon {as the case ntay he), till P^^* «' y'\^^/ "/d^ noon (as the case may be) of the same r,^^ ^,',,( yj'/jje ej. (lay, and the said J. K. (garnishee), did not aiJ|jear be fore me according to the said order. ::. Y., Clerk 49. Mcmomnduvi of admission of debt, vhen siyncd h\i garnishee (C. L. P. Act, section 316). Memorandum. On this day of , 18 — , the 'vithin-nanied '^c nhnvf. (garnishee), appeared before me according to tlie within order,* and admitted that he was and i.s indebted to the M'ithin-named G. H. (judgment debtor) in the sum of $ (if the' whole debt be not admitted, add, " and no more.") (If the garnishee be willing to sign the admission, add, " and signed the sub- joined admission in my pre.sence "). X.Y., Clerk. — , within-named, admit that there is a — (if the whole debt be not admitted, add, "and no more") due from me to the within named (judgment debtor). J. K. (Garnishee's signature). I, J. K. debt of 3- 50. Memorandum, ivfierc garnishee denies debt (under G. L. P. Act, section 316). On, &c. , (as in previous form to the asterisk*), and ^^' above. disputes the debt claimed to be due from him to the within named . , Judgment debtor. (// the garnishee be willing to sign the denial of debt, add, " and signed the subjoined denial of debt in my presence "). X. Y. I dispute the debt claimed to be due from me to within named. J. K. (Garnishee's signature). MINUTES OF JUDGMENT IN PROCEDURE BOOK. 51. Of judgment against defendant for debt or damages. Judgment for the plaintiflf (arfrf, on verdict by inry\<:;ec. we.etseq., if such be tlie fact) for $ and $ costs ; to be and Rule ao 362 FORMS. fFouM 52. paid in clays {ivhen an cxcesn has been abanrlnnrd , add, being " in full discharge of his cause of action set forth in the claim "). Rnicg so, ,11, a*, and l/,0. 52. Of judgment under section 79. The defendant having been served with special .summons, and particulars of claim, and not disputing same (or "not disputing $ part thereof, and plain- tiff being content with judgment for such part,") it is adjudged that plaintiff recover $ for debt and 3 costs. Dated day of , 18 — . Rulen 2(1 ami }t,rt •")3. Of jwUjment v^herr some defendants have been served ivlth special summons, and others have confessed. The defenilant, C. D., having been served with special .summons and particuLars of claim, and not dis- puting S part thereof, and the plaintiff being con- tent with juflgment for such part, and the defendants E. F. and G. H. having conf<3ssed the same sum as due to tlie plaintiff, it is adjudged that the plaintiff recover ^ for debt and $ for costs. 54. Of j>idcimev,t of nonsuit or dismissal for want of prosecution. Sei-f. siamiivi. Judgment of ncmsuit, "or that the cause be dis- missed " (_lf costs, d:c., ordered, add, " and the plaintiff pay S for defendant's costs," or $ for de- fendant's tiouble, and $- in days). for his costs ; to be paid 55. Of judrimeut on award. fici: J4'?, nnd Judgment for the plaintiff (or defendant) for 8 • Hull's ;.», m. ^^^^^ ^^^, f^j. ^-^^ g^j^ ^f ^ ^^^ ^ ^.^g^g^ pursuant to award ; to be paid in days. Sec. 15!,, and Rule WJ. 56. Of judgment for defendant. Judgment for the defendant {add on verdict by jury, if such be the fact), {or for the defendant for $ costs ; nr $ for his trouble and loss of time, and also $ for his costs ; to be paid forthwith). f Form 61.1 FORMS. 363 57. 0/ jiidgmeit,t for dejatdaiii on, net-off, irhere set off in part satisfied. It appearing that the defendant's sat-off exceeds the Sec ni,,ai\d plaintiff's claim as proved, by over ^100, it is adjudge;i! 63, RnlesfiHanri :!,0. • Of jmbjmcnt aqahtst an executor or administrator, ivh,cre he admits his rejiresentative character hut denies the dem,and, and alleges total or partial ad- ministration of assets : and tJie plaintiff proves his demand, and the defendant proves administration. Judgment for the plaintifl" for $ debt, and also costs, to be paid in fiays ; the plaintiff's vfe n fMn demand, which was denied, having been proved and full {or partial) administration also having been proved, which was tlenied, the said costs to be levied of the yoods and chattels of the deceased ; failing such goods, then of the defendant's proper goods ; the said debt to be levied of the goods and chattels of the deceased, hereafter to come to the defendant's hands to be ad- ministered, and ordered that $ , the costs in proving such administration, be paid by the plaintiff in days. 64. Of judgment against executor or administrator, tvhere the defendant admits his representative charac- ter but denies the dernand, and alleges total or par- tial administration of assets, and, the plaintiff proves his demand, and the defendant does not prove adr yninistration. Rules 69 and lU'J. Judgment for plaintiff for $- costs, to be paid in debt, and also days, to be levied of the goods and chattels of the deceased ; failing such goods, then the said costs to be levied of the defend- ant's proper goods, and the debt to be levied of the goods and chattels of the deceased, hereafter to come to the defendant's hands to be administered, the FonM67.] FORMS. 365 plaintiti"'8 demands having been proved, which was ' A T c $ a t( a FouM 88,] FORMS. $ money owing from him to the defendant, and wliich has been attached to satisfy the judgment in this case ; and what you shall have done herein return with this writ within thirty days after the date hereof. Dated the day of , A.D. 18— . X. Y., Clerk. 87. Against [farimhee on judgment recovered against him and primary debtor. In the Division Court in the County of • — . No. , A.D. 18—. rSen'J Between A. B., primary creditor, and C. D.,Rulesr,. primary debtor, anil E. F., garnishee. Amount adjudged due from the primary debtor ti) the primary creditor the day of , A.D. 18—, for debt $ For costs Total sum Amount adjudged to the primary creditor for iiKiney owing from the garnishee, the day of , A.D. 18— 8 , To V. W., bailiff of the said Court. You are hereby required to levy of the goods and chattels of the garnishee (not exempt from execution) 3 money owing from him to the primary debtor, and which has been adjudged to the primary creditor to satisfy his said claim against the primary debtor ; and what you shall have done herein return with this writ within thirty days after the date hereof. Dated the day of , 18 — . ' X. Y., Clerk. 88. Against primary debtor and garnishee. In the Division Court in the County of . No. , A.D. 18—. [Seal.] Between A. B., primary creditor, and CD., primary J^^^lge^ debtor, and E. F., garnishee. Amount adjudged due from the primary debtor to the primary creditor, the day of • , A.D. 18—, for debt $ For costs Total debt and costs KOKMS. ! KoKM «S>. m Ri'tr «il. Etc. IS'.K Amount adjudged to the primary creditor for money owing from the garnishee, the day of , A.D. 18— 8 To V. W., bailifl' of the said Court. You are hereby recjuired to levy of the goods and cliattels of the primary debtor, in the said County of (not exempt from execution), 8 aljove adjudged to be due to the primary creditor i'roin the primary debtor, together with the costs of this precept, and your hiwful fees in executing the same. And if so much goods and chattels of the primary debtor be not found in the said c unty as will satisfy the said judgment, then that you levy of the goods and chattels of the garnishee in the said county (not exempt from execution) S' (ur so much thereof as utiy he nece.t- sarij to sati.'^fii the anid juflfjmevt), money owing from the garnishee to the primary debtor, and which has been adjudged to the primary creditor ; and what you shall have done herein return with this writ within t hirty days after the date hereof. Dated this day of , A.D. 18—. X. Y., Clerk. In the No. S9. h'or garnishee's costs. Division Court in the County of ■ A. D. 18—. [Seal.] Between A. B., primary creditor, and CD,, primary debtor, and E. F. , garnishee. To V. W., bailifl" of the said Court. > Whereas at the sittings of this Court, holden on the day of , 18 — , at , it was adjudged that the garnishee was not indebted to the primaiy debtor, as claimed by the primary creditor, and judg- ment was given for the garnishee against the primaiy creditor for $ for his costs to be paid at a day now past, and the primary creditor has not paid the same. You are hereby required to levy of the goods and chattels of the above-named primary creditor in the said County of (not exempt from execution), for his said costs, together with the costs of this precept and your lawfiil fees in executing the same ; and what you shall have done herein return with this writ within thirty days after the date hereof. Dated this dav of , 18 — . X. Y., Clerk. ■Stf. KoH.M {»1. FOKMS. 877 yO. Ejrecution under 312th and S16th xectioni* of the C. L. P. Act. - Division Covert in the County of )ie Court of (Queen'a C!()unty Court of the defendant, and In tlie — [Seal,] In the matter of the suit in Bench, or Common Pleas, o' County of ). Between A. B. , phiintiflf, and C. D E. F., garnishee. To V. W., bailift' of the said Division Court. You are hereby required to levy of the goods a.\\d See page ^.v,. chattels of the above-named garnishee, in the said Ccunty of (not exempt from execution), 8 , money owing from him to the defendant, which has been attached to satisfy the judgment of the said Co\irt in the said cause, and which, by the order of the Judge of the County Court of the said County of , dated the day of , A.D. 18 — , the said garnishee was ordered to pay to the plaintiff ; and what you shall have done herein return with this writ within thirty days after the date hereof. Dated the day of A.D. 18—. X. Y. Clerk. "iT 91. Execution ayainst the goods of claimant on inter- pleader. In the Division Court in the County of . N (). A. D. 18—. [Seal.] Between A. B., plaintiff, and C. D., defendant: E. F., claimant. AVhereas on the day of , A. D. 18 — , the Section Jio. plaintiff duly recovered in said Court, holden in and for said division, judfjment against the defendant'- for § debt and $ for cost of suits which re- mained unsatisfied {when the jndgwent ha,^ been revived add the following words: '"'And on the day of , A. D. IS — , the said judgment was duly re- vived"), and the said moneys not being paid, an exe- cution issued against the goods and chattels of 'the defendant, under which certain goods and chattels were seized (if the interpleader teas in respect to goods attached, otnit all the preceding after the word ' ' claimant" '■-■\M 378 Section JlO. FORMS. [FoKM 92. See page S51. and say in lieu thereof as follows: "Whereas a writ of uttuchment was sued o\it of this Court, or issuod by n justice of the peace, under which oertaiu goods and cliattols, itc., were seized and attached") to which tlio above-named cliiiiuant made chiini, and which claim came on to be heard and decided upon interpleader summons at a sitting of this Court held on , at , and at such last mentioned Court it was ad- judged, touching the said claim, that the goods for the goods, chattels and moneys, or proceeds of the gotxls, &c. («.s ihc ruKi' »i((;/ he)] mentioned in the interpleader summons [if onlij for a juirl of the (foods, rfr., add the ii'ords " hereafter mentioned, that is to say" {here cnmncratc them) \ were not the property of E. F. {the claimant) ; and it was ordered that the sum of $ , the costs of that proceeding, should bo paid by the said claimant to the clerk in days, for the use of the said plaintiff ; and wherejis the said sum of $ lius not been paid, iiiirsuant to the said order, you are hereby required to levy of the goods and chattels of the defendant, in the said County of (not ex- empt from execution) the said sum of $ and your lawful fees, so that you may have the same with- in thirty days after the date hereof, and pay the same over to the clerk of this Court for the plaintiff. (iiven under the seal of this Court this day of , A. D. 18—. X. Y., Clerk. To V. W., bailiflof said Court. Judgment § Interest Subsequent costs . . This execution Levy the sum of $ , besides your own lawful fees upon this precept. 92. Execution under the Acts respecting Line Fences and Watercoiwsea. — Division Court in the County of . In the — No. , A.D. 18—. [Seal.l * Between A. B., plaintiff, and C. D., defendant. Whereas under the provisions of the Line Fences Act {or The Ditches and Watercourses Act, as the case may he), A. B., of the Township of , C. D., !»2. KiiiiM !»'J. FOHMS. 379 of tht) 8111110 place , and E. F., of tlio Haine place ''''"' Fenccn , throo foiuu-viovvci'H duly appointed for the naid '*'''■ TowuHliip of , in the County of , having heen sununoued l»y (i. U., a justice of the ])eace in and for the Comity of , and residing within the Biiid township, to ascertain the amount payable hy the ahove-nanied defendant to the above-named plaintiH", " for making his share of a certain fence," " water- course," or " ditch " (as the case may be), in the said Township of , did on this day of , A.I). 18 — , make their rletermination between tlio saitl ]>laintiil' ami defendant of and concerning the same, and of and concerning the amount the said defendant sliould jiay tlio plaintifl", as follows (here sfate the airanf nf till' fencc-rieii'crx), and duly reported the aanu' in writhig nn. ih, , at , it was adjudged that E. F. did .s,'c^.is',,i,,tlis:i, th^ii and there in open Court wilfully insult me , 'io2, iaj, ^ ' Jwdge {or Deputy or Acting Jiidge) of tlie .said Court [or did, in view of the Court, wilfully insult , clerk {or bailifi") of the said Court, during his attend- ance at such Court {or did unlawfully interrupt the Form 97.] FORMS. 383 proceedings of the said Court)] ; And it was ordered , Sec. Sl7, Rules that the said E. F. should forthwith pay a fine of loi, los, 101. ^ , for such offence, and in default of payment, be committed to the common gaol of the County of for days ; And whereas the said E. F. did not pay the said tine, in obedience to the said order : These are therefore to require you, the said bailiff and others, to take the said E. F., if he shall be found within the said Cotinty of , and deliver him to the said gaoler of the common gaol of the said County of ; and you the said gaoler are herflby required to receive the sail! E. F., and him safely keep in the common gaol aforesaid, for the term of days from the arrest under this warrant, unless the said, tine and costs, the costs amounting to ^ , and also the expenses attending the commitment, amounting together to the sum of ^ , be sooner paid. Given under my hand Ij. xl., (L.S.) m presence oi ( j, j, ; J^ ^ j {Add affidavit of caption). f 105. ne in b. Form 107.] FORMS. AFFIDAVITS AND OATHS. 106. Affidavit of service of ordincmj summons. 391 In the — Between defendants. I, V. W., bailitt Comity of — Division Court in the County of ■ A. B., plaintiff, and C, D., and E. F. of the Division Court in tlie seci,. fis to 7fi, 'i * (or " of the said Court "), make oath i'«. no. and say, that I did on the day of , A. D. '«"''"''*''■"'• '^'• 18 — , duly servo each of the above defendants (or if butane served state " C. D., one of the defendants,") with a true copy of the annexed summons and state- ment of claim, by delivering' the same personally to each of the said defendants (or if but one served, "to C. D. , one of the said defendants ") {or if the service v)as not personal, state how and on whom served ; see Division f,^^ jg^ Courts Act, sec. 72), and that I necessarily travelled'' miles to make such service. Sworn, &c. V. W,, Bailiff. {Or this form may he used when the affidavit is endorsed on the summons). L swear tliat this summons and claim therewith were served by me on the day of , by delivering a true copy of both, personally, to the defendant {or to the wife or servant of the defendant, or to a grown up person being an inmate of, and at the defendant's dwelling), and that I necessarily travelled miles to do so. Sworn, &c. V. W., Bailiff. 107. Affidavit of service of special summons. [n the Divisicm Court in the County of— Between A. B., plaintiff, cind C. D., defendant. I, V. \V., bailiff of the Division Court in il>.Q Seci. 70 et. ttq. said County of {or of the Court), make oath and tj, 105, iCo. say, that I did, on the day of , 18—, dxdy R^^^»82, 90, serve the above-named defendant with a true copy of the summons, notices and warnings therein, and the particulars of claim therewith in this cause, by deliver- ing the same personally to the said defendant {or if the service was not personal, state how and on whom served ; see Division Courts Act, sec. 72), and that I necessarily Sec. 7i. travelled miles to make such service. Sworn before me at , this day of , ' 18—. It 'tli m Clerk. V. W., Bailiff. 392 FORMS. [Voim 108. Sfc. rs. (Or, this form may be iint'd irJien the ajfidnrit in endvrml on the summonn). I ,swt«if tliat this suiumons and tho notices and wurnin<,'H therein, and tho particulars of claim there- with, wore duly served by nie on the day of , A. D. 18 — , by delivering a true copy of each to the defentlant personally (or if the neriiife ir<»,s' not pernonal, ntatehov ind on whom nerved; nee Divixion ConrtH Act, ncc. 7'J), and that I necessarily travelled miles to eifect such service. Sworn before nie at , this day of — , 18—. . Clerk. V. W., Bailift'. Ill Hi !'■ 13.). lOS. Affidavit of execution of confession. In the Division Court in tho Cotmty ol- Between A. B., plaintiff, and C. 1)., defendant. I, clerk (or bailiff) of the Division Court in the County of (or of the said Court), make oath and say, that I saw the above {or annexed confession) duly executed by the defendant, and that I am a Rubscribing witness thereto, and that I have not received, and am not to receive anything from the plaintiff or defendant, or any other person, except my lawful fees, for taking such confession, and that I have no interest in the demand sought to be recovered in this action. X. Y. (or V. W.) Sworn before me, &c. Sec. lOo, Rule, ISS, Form 110. lO'.' Affi,davit of exectction (caption). Division Court in the County of- In the Between A. B., plaintiff, and C. D., defendant. I, 0. P., of the, &c., make oath and say that on the day of -, A. D. 18 — , I was present and saw G. H. and K. L. (as the case may fee) duly sign and execute the annexed award (or bond, or other instrument). That the names G. H. and K. L. at the foot of the said award (or as the case may be) are of the proper handwriting of the said G. H, and K. L., and that the name O. P., subscribed to the same as the witness thereto, is my proper handwriting. Sworn, &c. 0. P. Kou.M 110.1 FORMS. 393 110. Forms of oath, ttc. (a.) Toil witnoHs at tho trial who swears upon the •^^''' '"•'. ««<« Bible: •"*• ** The evidonco you shall give to the Court (and jury sworn) touching the matters in (juostion Vietwcon tho parties, shall be the truth, tho wholo truth, anil nothing but the truth. So help you dod." (b.) To a witness who swears with upliftoil hand ; Add to tho foregoing after tho last word ^^ truth,'' "and this you do swear in tho presence of tho over- living God, and as you shall aus\\^r to God at tlio groat Judgment day. So help you God." (c.) To a Jew : He is to be directed to cover his head, the Pentateuch is to lie opened and placed before him, then proceed as in the tir.st form, nily make use of tho name ^'Jehovah" instead of " God.'" (d.) To a Quaker, Menonist or Tunker, or other per- son allowed by law to affirm : Tho witness is to be directed to repeat his name, after tho clerk, and the following: "I, K. L,, do solemnly, sincerely and truly declare and affirm that I am one of tho Society called Quakers " {or oh the rasr may he), after which, the affinnant repeating his name, "I, K. L., do solemnly, sincerely and truly t.oclare and affirm that the evidence I shall give to this Court touching the mattei-s in question, &c." (h) (o.) To an interpreter (where witness cannot speak English, or is deaf and dumb) : " You shall truly interpret between tho Court (the jury), the parties in this cause, and the witness pro- duced. So help you God." (f.) To a witness sworn on Voire Dire : (now effete). • (g. ) To jviry called by parties : '* You and each of you shall well and truly try the matters in difference between the parties, do justice (h) Since the foregoing form was framed, the legislature (Rev. Stat., cap. 62, sec. 13) extended the right of making affirmations instead of oaths to persons other than mem- bers of the religious bodies named, provided the unwillingness to be sworn proceeds from conscientious motives. The form may be a solemn affirmation or declaration in the words following, viz. : — "I, A. B., do solemnly, sincerely and truly affirm and declare, that the taking of an oath is, according to my religious belief, unlawful ; and I do also solemnly, sincerely and truly affirm, and declare , &c. " {then state the facts of the obligation under lohich the party, or witness, or juror {as the case may be) is to be bound). 't *i( 394 Sec. lOo, 1S3, ISU. .1 J J. \'^ . 1 Sec. 1.51. FORMS. [Form 110. Rules between them according to the beat of your skill and ability, and a true verdict give according to the evi- dence. So help you God.'" (h.) To jury called by the Judge : " You and eacli of you shall v.'ell and truly try the facta controverted in this cause between the parties, (i) and a true verdict give according to the evidence. So help you God. " (i.) To a defendant who appears upon a judgment summons : " You shall truaianswers make to all such questions as shall be put to you touching the subject upon whicli you have been now summoned to appear for examina- tion ; and what you shall state i-especting the same shall be the truth, the whole truth, and notliing but the truth. So help you God." (j. ) To the officer who conducts a retiring juror out of Court : " You shall retire with such jurors as have leave of absence from this Court ; you shall not spe?k to them yourself in relation to the subject of this trial, nor suffer any person to speak to them, and you shall re- turn with them without unnecessary delay. >>'o help you God.^' (k.) To the officer, when the jury retire to consider their verdict : " You shall keep every person sworn on this jury in some private and coin'<^uient place without meat or drink ; you shall not sufl'er any pei'sou to speak to them, or .speak to them yoursolf, except to ask thenx whether they have agreed on their verdict. So help you God." (1. ) To a deponent or affirmant swearing to an affi- davit or affirmati(jn : " You do swear (or affirm) that the contents of this affidavit {or affirmation) to which you have subscribed yf)ur name (or made your mark) are just an verted facts. If so, it should he stated to the jury what fact or facta tlioy arc to try. III f t (/I > 110. Form 111.] FORMS. 395 and evi- the in this reference, shall be the truth, the whole truth, and nothing but the truth. So help you God." (n.l Jurat to affidavit by illiterate opponent : Sworn by the above-named deponent, A. B. , at • in the County of , on , and I certify that the affiiavit was first read in my presence to said A. B., who seemed perfectly to understand the same, and wrote his signature {or made his mark) thereto in my presence. X. Y., Clerk, «fcc. (or as the case may be). (^o.) Affirmation by Quakers, &c., and jurat there- to : (ii) (Court and style of cause). I, A. B., of , &c., do solemnly, sincerely and Uer.Stat., cap. truly declare an '*"<=• '~' called Quakers (or Menonists, Tunkers, Unitas Fratrum or Moravians, o.s the case may be), and I do also solemnly, sincerely and truly declare and affirm as follows, that is to say (state the facts). A. B. Solemnly affirmed at] ,in the County of , on , before me. X. Y., Clerk, &c., (or as the case may be). 111. Affidavit of justijication. In the Division Court in the County of . Between , plaintiff, and , defendant. We (C. D. and E. F., of, Ac), the sureties in tiifi sec. io,i and annexed bond named, do severally make oath and say, iiuics lis, t3U. as follows : First, I, deponent C. D.,for myself, make oath and say, that I am a holder, residing at , and tliat I am worth property to the amount of $ over and above what will pay my just debts. Secondly, I, deponent E. F., tor myself, make oath and say, that I am a holder, residing at , and that I am worth property to the amount of $ over and above what will pay my just debts. C. D. The above-named C. D, sworn before me at the day of E. F. and E. F. were severally — , in the County of , A.D. 18—. X. Y., Clerk. (ii) As to other persons affirming besides those named, see Fown 110, note (A). >. 396 FORMS. [Form 112. m Sec. lit,, Rules jss, i.v,, 1!,:, and Fuim J. 112. A^ffiduvit nf disbnrfsments to several toitnesses. In the Division Court in the Coimty of • Between A. B., plaintiff, and C. D., defendant. I, A. B., of , the above jilaintiff (or C. D. the above defendant, or E. F. , agent for the above plaintiff or defendant), make oath and say : Ist, That the several persons whose names are men- tioned in the first column of the schedule at the foot hereof were necessary and material witnesses on my behalf (or on behalf of the said plaintiff or defendant), and attended at the sittings of this Court on the day of , as witnesses on my behalf (or on behalf of the said defendant or plaintiff), and that they did not attend as witnesses in any other cause {if other- mse, state the facts). 2nd. That the said witnesses necessarily travelled, in going to the said Court, the number of miles respec- tively mentioned in figures in the second column of the said schedule, opposite to the names of each of the said witnesses respectively. 3rd. That the several and respective sums of money mentioned in figures in the third column of the said schedule opposite to the names of the said witnesses respectively, have been paid by me (or by the plaintifl" or defendant) to the said witnesses respectively as in the said schedule set forth, for their attendance and travel as witnesses in this cause. A. B. Sworn before me at 18—. -, this day oi X. Y., Clerk. iichedule referred to in the foregoing affidavit. Names of Witnesses. Miles. Sums paid. Form 113.] FORMS. 397 113. Affidavit for revival of judgment. ' In the Division Court, in the County of . Between A. B., plaintiff, and C. D., defendant. 'jiuies^i'ss^.^m, I, A. B., of the of , in the County of ^■'^' "* **9' yeoman {if the affidavit be made by the plaintiff's attorney or agent make the necessary alteration), make oath and say as follows : lat. On the day of , A. D. 18—, I re- covered a judgment of this Court against the above- named defendant for $ debt, and ^ , costs of suit. 2nd. No part of the said moneys so recovered has been paid or satisfied, and the said judgment remains in full force (oc " the sum of ^ , part only of the said moneys, has been paid, and the judgment remains in full force as to the residue of the said moneys so recovered thereby). " 3rd. I {or "the said plaintiff") am entitled to have execution of the said judgment, and to issue execution thereupon (for the sum of ^ ). as I verily believe. Sworn before me at in the County of this day of , A.D. 18—. A. B. n m m 5. 398 FORMS. [Form 114. 1 14. Bill of costs upon a claim for say $30. ( j) Upon Special summons to judgment entered. $ c. ff"; V.^A ^^^', Clerk's tees — Receiving claim, «S;c 15 Rule 170, and t ■ • ^ /i ^.t. Forms iii7, US. Issuing special summons 30 Copies of process and claim 20 Affidavit of service and oath 25 Entering bailiff's return 10 Notice of admission 10 Entering final judgment 40 Postages 20 Bailiff's fees — Service of summons 20 Attending to make return and proving \ 10 6th Oct., 18—. Taxed costs at $2 00 X. Y., Clerk. Upon claim for say $60, defended, tried andjiidgmnt entered. $ c. Clerk's fees — Receiving claim, &c 15 Issuing special summons, &c 40 Copy of process and claim 20 Affidavit of service and oath 25 Entering bailiff's return 10 Summons to witness, 10 cts. ; 2 copies, 10 cts 20 Entering notice of defence 20 Notice to plaintiff and postage 1;} Entering judgment 40 Bailiff's fees — Service of summons, 30c.; 2 miles 22c 52 Attending to return and proof.. .. . 10 Service summons on witnesses 5^0 Mileage (2 miles) 22 Duties at trial 1.") $3 22 Allowed witnesses 2 00 Oct. 18—. Taxed costs at ^5 22 X. Y., Clerk. (V) See an explanation of this 89. See also Form H. for some form, and a discussion as to the other bills of coats, and directions taxation of costs, in note(<) to Rule in relation thereto. / Form 115.] FORMS. 399 115. Clerk's return of emoluments, (h) Return of X. Y., clerk of the Division Court in sec.ia,Ruies8S, the County of , of all fees and emoluments {lo, «»"' ^'o»"»i from first day of , to the day of — , 18 — , both days inclusive, made in pursuance of the Division Courts Act, section 42 : 127. ON WHAT. t'ct'ssary ( Not exceeding S20 idgineiit- KxocediiiL' S20 No. Receiving elaiin, numbering and entering in Procedure Booli Issuing summons, witli nc notices lliereon, or judgm^,..^ , .. summons ( I'^xceeding SOO Coi)y of |)rocess, or claim, or set-olf, or otlier pajjer re- quired for service ut transmission to Judge, eacli. . . Summons to witnesses, witli any number of names tlierein For every copy to serve Drawing every necessary affidavit, and administering oatli Entering bailiff's return to iirocess, or Judge's order Entering notice of set-oiT, plea of ])iiymcnt or otber de fence requiring notice to the plaintiff or notice of admission as to claim Taking confession of judgment Every notice required to 1)0 given by clerk to any party to a cause or ])roceeding, or to the Judge in respect to the same and mailing Entering every judgment, or order made at the hearing, or final order made by the Judge, or final judgment entered by clerk . . Sununons for each juryman, when called by the parties, j Keturning Judge's jury Order of reference, attaching order, or other order drawn and entered by clerk Transcript of judgment Every writ of execution, warrant of attachment or war- rant for arrest of delinquent Every bond when necessary, including affidavit of justi- fication. Necessary entries made in the Debt^Attachment Book in each case (in all) Transmitting pajiers for service to another division or to Judge, on application to him, including the neces- sary entries but not including postages Ueeeiving papers from another division for service, en- tering the same, handing to the bailiff, receiving his return and transmitting same Searches cts. 15 30 40 60 20 10 5 25 10 10 40 10 25 15 25 40 60 20 20 I, X. y., above named, make oath and say that the foregoing return contains a full and correct statement, in every particular, to the best of my knowledge and belief, of the fees and emoluments of my oflice, received or receivable on business done during the period above mentioned. X. Y., Clerk. Sworn before me at , in the County of > this day oi" , 18 — . (^') The timouiUs uiid ratt'.-i have been nuule to suit the tariff in Form 127. 400 PORMR. [Form 116. 11(5. List of unclaimed moneys verified. See. f,s, Jtnir ,s'. List of unclaimed moneys paid into Court, or to me as clerk thereof, which remain unclaimed for six years ending on the Slst day of December last past. i:n) Si'f paqe ?/,l. For whom or on whose account money paid. When paid. Style and No. of Suit. Amount. § cts. I, X. Y., clerk of the Division Court in the County of make oath and say that * the fore- going return is full and correct in every particular* {or if no moneys remain unclaimed, instead of the matter between the asterisks, say, "no such moneys paid into Court, or to me as clerk thereof, remain unclaimed for six years next before Slstday of December last past"). Sworn, etc., X. Y., Clerk. BAILIFFS FORMS. 117. Replevin bond. Know all men by these presents, that we, A. B., of, &c., W. B., of, «fec., and J. S., of, &c., are jointly and severally held and bound to V. W., bailiff of the Division Court, in the County of , in the sum of f , to be paid to the said bailiff, or his certain attorney, executors, administrators or assigns, for which payment to be well and truly made we bind our- selves, and each and every of us in the whole our and each, and every of our heirs, executors and adminis- trators, firmly by these presents, sealed with our seals and dated this day of , A. D., 18 — . The condition of this obligation is such, that if the above bounden A. B. do prosecute his suit with effect and without delay against C. D. for the taking and unjustly detaining {or unjustly detaining, as the case may be) of his cattle, goods and chattels, to wit : (hviy set forth the property distrained, taken or detained), ami do make a return of the said property, if a return thereof shall be adjudged, and also do pay sucli dam- Tin Form 119.] FORMS. 401 ages as the said C. D. shall sustain by the issuing of the writ of replevin, if the said A, B. fails to recover judgment in the suit ; and further, do observe, keep and perform, all orders made by the Court in the suit ; then this obligation shall be void, or else remain in full force and eflfect. Signed, sealed and delivered ( -.^ A in presence of ( r ^ 118. Form of amijnment to be endorsed, if required. Know all men by these presents, that I, V. W., 5««p«;/?n/. bailiff of the Division Court for the County of , have, at the request of the within named C. D. {the defendant), assigned over this replevin bond unto the said C. D., pursuant to the statute in such case made and provided. In witness whereof, I have hereunto set my hand and seal of office this day of , 18 — . Signed, sealed and delivered ( in presence of j ^. ^^ j-^^^j ^ \^\ m 119. Bailiff" ■■i return to writ of replevin. In the Division Court in the County of . Between A. B., plaintifl", and C. D., defendant. In pursuance of section 17 of the Replevin Act, I see pagt tuu. have taken from said plaintiff a bond, conditioned as hy said Acts required, made by him anil two sureties, namely , of the of , in the County iif , yeoman (or an the case may he), or, of the same place {or as the ease may be), which bond bears date the day of , 18 — , and is witnessed by And by virtue of the annexed writ to me directed, I have seized and delivered to the plaintiff the goods mentioned in said writ, that is to say {describing the (joods hy number, quon ly and quality, or if only a part have been replevied, say, a portion of goods in writ men- tioned, that is to say {describing them), and I cannot make replevin of the residue of such goods, namely ' {shortly describing them), as by said writ commanded, by reason of the same having been eloigned out of this county by the defendant {or as the case may be). 2U •I mm m n ■ ( m if jM m 402 Secx. 17/,, lyS, and Hep. Act, tec. 17. Xee I'ja. S*e. 199. Sees. 171,, 17i, and 1 TO. rORMS. [Form 120. 120. Inventory of (joodx neixed or replevied. An inventory of property and effects by me this day seized (or replevied) in the Township of , by virtue of a writ of {as the case may be), issued by A. B., clerk of the Division Court of the County of {or as the rase may be), on behalf of E. F. against C. D. ; that is to say, one lumber waggon, &c. {stating all the articles seized). Dated the day of , A,D. 18—. V. W., Bailiff, &c. 121. Appraiser\'i oath in attachment cases. Tou, and each of j'ou, shall well and truly appraise the property and effects mentioned in this inventory {holding it in his hand) according to the best of your judgment. So help you God. 122. Appraisement to be endorsed on inventory. We, B. B. andB. D., being duly sworn by the bailiff, V. W. , to appraise the property and effects mentioned in the within inventory, to the best of our judgment, and having examined the same, do appraise the same at the sum of § . Witness our hands this day of , A.D. 18—. B. B. B. D. 123. Notice of sale. By virtue of an execution issued out of the Division Court for the County of , and to me directed, against the goods and chattels of , at the suit of , I have seized and taken in execu- tion one bay horse, &c. All which property will be sold by public auction, at — , on , the day of , 18 — , at the hour of o'clock in the noon. V. W., Bailiff. Dated the day of 18- ;iii Form 125.] 40J 124. Returns to executions, tbt. (a.) Nulla feojia.— The within defendant {or plaintiflT) ffl*,!^^ " *"'■ hath no goods or chattels in the said County of ,• ' *'"''• whereof I can make the moneys to be levied as within commanded. V. W., Bailiff. Dated the day of A. D., 18—. (b.) Feci. — By virtue of the withhi execution, I have made of the goods anil chattels of the defendant (or plaintiff) the moneys within mentioned, and have paid the same to the said clerk as within connnanded. V. W., Bailiff Dated the day of A.D., 18—. fc.) Part made. — By virtue of tlie within execution, I have made of tlie goods and chattels of the defendant, {or plaintiff) § •, and have paid the .same to the said clerk, and the defendant (or plaintiff) hath no more goods or chattels in the said County of wliereof I can make the residue of the said moneys, or part tliereof. V. W., Bailiff Dated the — day of A.D., 18- JFhen rent levied by bailiff. (d. ) By virtue of the within execution, I have made S''<^- '^" <"' ««*•. of the goods and chattels of the plaintiff (or defendant) S , part whereof, ^ , I have paid to O. B., landlord of said plaintiff (oj- defendant) for one quarter's rent in respect of premises when levy made ; and a further jiart, 8 , I have retained as fees on execu- tion. The residue, ^ — , I have paid to the said clerk as within commanded. V. W., Bailiff. Dated the day of — A.D., 18—. 125. Bo}i.(l on seizure or mle of perishable property. In the Division Court in the County of Between A. B., plaintiff, and C. D,, defendant. Know all men by these presents that we, A. B., of ^^^ f^,^ {insert place of reddence and addition), the above named plaintiff, E. F., of, &c., and G. H., of, etc., are, and each of us is, jointly and severally held and firmly bound to C. D. , the above-named defendant, in the 404 FORMS. [Form 125, Sec. i05. sum of $ , to be paid to the defendant, his cer- tain attorney, executors, administrators and assigns, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, and each and every of us binds himself, his heirs, execu- tors and administrators, firmly by these presents. Sealed with our respective seals, and dated this day of , A.D. 18—. Whereas the above-named plaintiff hath sued out of the said Court {or from a justice of the peace), a war- rant of attachment against the goods and chattels of the defendant, and hath requested that certain perish- able property, to vnt [specify jiroperty), belonging to the defendant, may be seized, and forthwith exposed and sold under and by virtue of the said warrant of attach- ment [or whereas certain perishable property, to wit, , belonging to the defendant, hath been seized under and by virtue of a warrant of attachment issued • out of the said Court {or by a justice of the peace), in the above-named cause, and hath been duly appraised and valued at the sum of 8 , and is now in the Pf.rinn ito, isi, hands of the clerk of the said Court ; and whereas the ^**« plaintiff hath requested the said clerk to expose and sell the said goods and chattels as perishable property], according to the form of the statute in that behalf. Now the condition of this obligation is such, that if the said plaintiff, his heirs, executors or administra- tors, do rejjay to the said defendant, his executors or administrators, the value of the said goods and chattels, together with all costs and damages that may be in- curred in consequence of the seizure and sale thereof, in case judgment be not obtained by the plaintiff, according to the true intent of the 203th section of the Division Courts Act : then this obligation to be void ; else to remain in full force and virtue. Sealed and delivered f in presence of I A. B. L.S. E. F. "l.s.J G. H. L.S. Tin FiiRM 126. j: c n n " - ^ 5 *i- — «>0 a,-? rf •"■ F— ^ ■^ 2 3 = ^ .y « ja u ~^ e u d OS « ■; 4) (D ^Si = >..** > 3 « C ff 1) I- ; o <15 S _, ^ o e -i « :• - tc ;j tc c •-■ c"® ® «♦ ■» <- IS •s.s o ^ o I c^ |o.2 ^ 5 ® J? « 01 o o fIJ CO K., *^ ii S* .5 ^ c3 ■J = 3 M u, «l o O c ~ 3 3 o ! g 5 « (U t; i- — TO T-H "■S C 3 J= 5 *^ V: ^ ^ rr 6> Z^ r\ ^2 FORMS. ■^ >^ s u $ s i 00 ^ G J3 a F <5 2 iS t^ u S« 3 o r «» *? f ^ » « gfeii ?'— b ilJ 3.= -3 <» •a 1 .2 > i; 00 3 « Q ^ 3 O <- «» S 3 o 5^- *i o rg 2-" «• a < U-* '"^ ^ 00 « 00 Ms: iH s *i^ *S si "i o ^ m I/l n t. 1 55 0) to g 'c to o ,=1 -73 c3 C3 O -d ^ ^ "SIS - r 5 " >'1 o O •00 I— I 3 a 405 Hulei OS, H. o S o '-S 9 a> '^ ^ a •= « 1 -i bo «> S d .2£ u -w o lij if:! ') ii '1 ^^* J^!- i'l Jh ,1|| 40fi FORMS. [Form 12«. The foregoing forms were promulfjated on the first dp * Alling parties and [Form 128. FORMS. 409 $ c. (In no case is mileage to be allowed for a greater Bailiff's fies. distance than from the clerk's office to the place of service or seizure). Mileage to arrest delinquent under a warrant to Rule* 89 no be at 11 cents per mile, but for carrying delinquent to prison, including all expenses and assistance, per mile 20 Every schedule of property seized, attached, or replevied, including affidavit of appraisal, when necessary — Not exceeding ^20 30 Exceeding $20 and not exceeding $60. .. 50 <• Exceeding $60 75 Every bond when necessary, including affidavit of justification 050 Every notice of sale not exceeding three, under execution or under attachment, each 15 There shall be allowed to the bailift", for remov- ing or retaining property seized under exe- ciition or attached, reasonable and necessary disbursements and allowances, to be first settled by the clerk, subject to appeal to the Judge There shall be allowed to the bailifi" five per cent, upon the amount realized from the sale of property under any execution, but such percentage not to apply to any over- plus therei>n. Dated at Toronto this 26th day of June, 1874. Ja!S. Robt. Gowan, Senior Judge, Co. Siwcoe, ' Chairman. S. J. Jones, County Jihdcje, Brant. D. J. Hughes, County Judge, Elgin, James Daniell, County Judge, Prescott and Rui^scll. Approved. Wm. B. Richards, C, J. John H. Haqarty, C.J.C.P.' Jos. C. Morrison, J. , Adam Wilson, J. John W. Gwynne, J. Thomas Galt, J. * their witnesses in every defended would be entitled to this 15 cents case, to the sum of 15 cents, but it on a mere "time defence." is questionable whether the bailiff 410 :ii:i i: i ii' ' ' FORMS. AJ)DITIONAL FORMS. [Form A. The following forms have been either compiled for this woyk, or selected from those in use in difl'erent counties and authorized by the judges thereof. A. Appointment of Deputy Judge under section SO, To all to whom these presents shall come. Know ye, that I, A. B., Judge of the County Court of the County of — , for divers good causes me hereunto Sec. 2IK Sect, sn, *T. moving, do appoint C. D. of barrister of the Bar of Ontario, my deputy in the office of Judge of the Division Coiirts of the .said County of , to act in and liold such office for and during the period of — ~ days, from and inclusive of the day of the date hereof (nr as the exigency may require) ; and under and by virtue of the Division Courts Act, the said C. D. shall, as Judge of the Division Courts during the time of his saiil appointment, have all the powers and privileges and be subject to all the duties vested in or imposed by law on me as such Judge ; and all persons are to govern themselves accordingly. Done pursuant to the statute in that behall'. Givi'u under my hand and seal this day of, «S:c. A. B., Judge. B. Judge's direction on^ appointment of clerk or bailiff under section 27. I, A. B., Judge of the County Court of the County of , do by virtue of and in pursuance of the powers to nie given by the Division Courts Act, hereby appoint C. D., of — , clerk (or bailiff) of the Division Court in the said ('ounty of , to hold the said office during my pleasure. And I do direct that the said C D. shall give security for the due execution of his office, by entermg into a covenant in the manner and form required by il,c statute, with two sufficient sureties. Tilt- spccitied liability thereunder, as against the said (J. D. , to be not less than $ ; and as against said sureties not less than $ each. Such sureties to be approved by me. Given under my hand and seal this day of, &c. A. B., Judge. !l' ! I!' i ni Form E.l FORMS. C. Formal appointment of clerk or bailiff after covenant approved by Judge. Tn the Division Coui't in the County of . SecH. H, i7, :8. Upon the appointment by the Judge of the County Court of the said County of of C. D. , of the of , as clerk {or bailiff) of this Court, and it appearing that the said C. D. has given the security required by law — It is ordered that the said C. D. be and he is hereby appointed clerk (or bailiff) of this Court. Given under the seal of the Court this dav of , A.D. 18—. By the Court. [Seal.] , X. Y., Clerk. D. Appolntinent of ilfpiity clerk under section Sit. [, A. B. , clerk of the Division Court in the Sec. X'. -, in pursuance of the statute in that County of behalf, do hereby (with the approval of the Judge of the said Court) appoint C. D. of , to act for me as my deputy in the said office of clerk, with all the powers and privileges, and subject to the like duties, as I my- self. The said C. D. to hold the said office of deputy clerk during ray pleasure. Given under my hand and the seal of the said Court this day of , A. D. 18—. A. B., Clerk. Approved by nie, , Judge. E. Affidavit of execution of covenant by clerk. County of , Province of Ontario. I, G. H., of the of , in the County of , make oath and say as follows : 1 . I am the person whose name is subscribed to the set. f?, mtc (f), annexed bond as the attesting witness (or, one of the "»rf ^ft: Stat., attesting witnesses) to the execution thereof, and the "*^" '^' signature , set and subscribed thereto as such attesting witness, is of my proper handwriting, and my name and addition are correctly above set forth. 2. I was present and did see the said bond duly Bigned and executed by the several parties thereto {or 412 FORMS, [Form F. by A. B. and C. D., two of the parties executing the same, or as the case may be), 3. I am well ac(i[uaintecl with all the said parties {or with the said A. B. and C. D.) G. H. Sworn before me at , in the County (or United Counties) of , this day of , 18—. E. F., J. P. for the County of , or Commissioner, &c. Sec. 37, note (I), and Rev. Stat., cap, lii. F. Affidavit of justification. County of , Province of Ontario. I, A. B., one of the sureties in the annexed bond named, make oath and say as follows : 1. I am seised and possessed to my own use of real (or, real and personal) estate in the Province of Ontario, of the actual value of (the amount for which the party has become liable on the bond) dollars, over and above all charges and incumbrances aftectiug the same. 2. ( Where the party haa real estate). The said real estate consists of (describing the property), 3 I am worth (the amount for which the party has be- come liable in the bond) dollars over and above my just debts. 4. My post office address is as follows : (insert the name of the post office), A. B. Sworn before me at -, in the County (or United Counties) of , this day of , 18 — . C. D., J. P. for the County of , or Commissioner, Ac. G. Certificate under section 37, I, A. B., clerk of the Division Court in the County of , do hereby certify as follows : '^*<' '^^ That in the Procedure Book of the said Division Court the following entries (and no others) appear in a certain cause in the said Division Court, wherein one C. D. is plaintiff and one E. F. is defendant, which said entries are in the words and figures following, that is to say : (here copy entries verbatim). And I further certify that the page of the said Pro- cedure Book on which said entries are made is sijjued with the name of ■ j and such signature 19 of I [if 1 Form H.] FORMS. 413 the proper handwriting of me, A. B., as such clerk {or of G. H., the then clerk) of the said Court. Given under my hand and the seal of the said Court this day of , A. D. 18—. A. B., clerk of said Division Court. H. Bills of costs of bailiff's fees on executions, andimtruC' tions relating thereto, {p) 1. When the bailiflF receives an execution for say jf^ueg S9, no, $20, if he proceeds to the defendant's residence and and Fmm lis. simply demands the money, his fees are as follows, viz. ; For enforcing $0 40 Miles travelled (say 4) 44 $0 84 2. On the same amount, if he makes a seizure, the proper sum to demand would be thus : For claim $20 00 " enforcing 40 " schedule 30 " advertising 45 " miles travelled (4) 44 821 59 3. If he sells (not otherwise), he should charge per- centage in addition at the rate of 5 per cent, upon the amount realized, only, thus : Plaintiff's claim for debt and costs $20 00 Bailiff 's fees for enforcing 40 " schedule 30 " " advertising 46 " " 4 miles travelled 44 " " percentage.... 1 08 $22 67 The payment of this sum settles the matter. (p) The bills given in tlm form "If the bailiff removes the goods, and thefoUowing instructions were he is entitled to th ; neuessary dis- prepared by the Judges of the bursementa in addition ; or i f he Cauutiej of Oxford and Eldu, for takes a bond, then to 50 cents in- the use of their officers. TUe in- stead, and to be paid for as sist- structions alluded to arj as i'ol- ance if that be necessary ; all lows: charges for which are to be sub* 414 FORMS. [Form I. Sec. 1>,7. I. Special form of reference to arbitration, with imtructiorif to arbHrntnrs. (q) In the Division Court, County of — . Between A. B., plaintiif, and C. D. , defendant. By consent of the above-named plaintiff and defend- ant, it is ordered that all matters in ilifference in this cause {o)ul if uthennatter or nil matters in dispute between the parties are to be settled, so state it), be referred to the award of , so as said award be made in writing ready to be delivered to the party entitled mitted to the clerk for taxation. These charges aj iply only to amonnts up to and under $20 ; but in other eases the same rule will :ipply. In order that the bailiff's pro- per fees only may be allowed and taxed, the bailiff sliould endorse all his charges on the back of the exe- cution, or state them in a separate slip of paper, so that the clerk may tax the bailiff" 's fees, and keep a memorandum of his taxation for future reference. This is recpiired so as to enable the clerk to certify the bailiff's returns properly. Bailiffs should return the execu- tions within the thirty days i)re- scribed by the Act, unless they are renewed at the instan<;o of the person claiming satisfaction of a judgment before the expiration of the thirty days. The whole of the money for by writing endorsed hereon, from time to time enlarge the time for making the said award, or on or before any later day to which the County Judge may enlarge the time for making the said award. And it is further ordered as follows : 1. The costs of this cause, as well as of this refer- had better be in the form of a writ- ten notice addrtissed to the parties, and may be to <.he following effect : {state the Court and style of cause as in the above appointment, and add) You are requested to furnish the arbitrator herein with a statement in writing of the particular mat- ters in dispute (other than those included iu the cause referred) which you desire the arbitrators to take into consideration as matters in dispute under this reference. Dated, &c., , Arl)itrator. To the above-named parties. The arbitrators should appoint a day, hour and placu for the first and every subsequent meeting, to proceed in the reference. This is best done by notices in writing, signed by the arbitrators and serv- ed on the parties, and should be according to Form 35b. Witnesses are to be summoned to appear before arbitrators in the same way as before a Judge, except that the special form of summons (No. 39) is to be used. In swearing witnesses, use the form of oath following, viz. : '.You shall true answers make to all such questions as shall be asked of you touching the matters in difference in this reference. So help you God . ' For form of affirmation for Quakers, Menonists and Tunkers, and tfiose wlio object to taking an oath, see Form 110 d, note (h). If it becomes necessary to en- large the time for making the award under a power given in the order of reference, it may be done in tlie following form (see Form 3i)c), endorsed on the order : ' I (or we) enlarge the time for making my (or our) award respecting the matters referred to me {or us), by the within order of reference, until tlie day of , 18—. Arbitrator. Dated, &c.' The arbitrator's power as to the costs will be found in the order of reference. If the costs are to abide the event of the award, the arbi- trator has no authority to make order respecting their payment. But in all cases the particulars of the costs of reference and award ought to be fixed and stated by the arbitrators. When the arbitrators have come to a decision, the award should be endorsed on the order of reference, and signed by the arbitrator or arbitrators in the presence of a subscribing witness, who can make the necessary affidavit of execu- tion. A form of an award in favour of plaintiff, with costs, is given in Form Sf). Other forms suitable to other cases may be framed to suit the particular case. The award should be sent to the clerk of the Court, with an affidavit of the execution attached, and a bill of particulars of the arbitrator's ciiarges and other costs on the re- ference." m m m m 416 FORMS. [Form I. Arbitration and aivard. See. 11*7, Jce. ence and award, shall be in the discretion of the said arbitrator. 2. The arbitrator shall be at liberty to direct such judgment to be entered in this cause aa to the arbitra- tor shall seem fit. 3. The witnesses on the reference (and the parties, if examined) shall be examined on oath or affirmation, if allowed by law to affinn. 4. The parties respectively shall produce before the arbitrator all books, papers, writings, and documents within their power or control which the arbitrator may retiiiire and call tor as relating to the matter referred. 5. The arbitrator shall be at liberty to proceed ex parte with this reference in case of the non-attendance of either party, or the witnesses of either party, utter reasonable notice, unless good and sutlicient cause for omitting to attend be shown to the arbitrator, (i. The arbitrator shall have all the powers, as to amendment and otherwise, that might be exercised by the Judge of a Division Court on the trial of a cause ; and the parties respectively shall do all acts necessary to enable the arbitrator to make a just award, and neither of them shall do or cause to be done any act wrongfully to delay or prevent the arbitrator from making his award. 7. In case the arbitrator shall allow the time tor making the .award to expire, or any arbitrator dio, refuse, or become incapable of acting before the matter referred shall be determined, the County Jiulge of the said county may enlarge the time for making the award to any day he may think tit ; and may also in his dis- cretion appoint another or other person or persons instead of any arbitrator dying, refusing, or becoming incapable of acting; and every arbitrator so to bo appointed as a substitute, or any succeeding arbitrator, shall have the same power and authority as the arbitra- tor for whom the substitute is made would have had, had he acted. Given under the seal of this said Court, this day of , 18—. [Seal.] , Clerk. FormK.] ™hms. 417 J. Notice (li'.mnnrHnfi trial hii jtirij. In the Division Court in the County of . Between A. B., plaintiff, and 0. D., defendant. Take notice, that I demand that a jury may be sum- Si-ci. lou, iiu, moned to try this cause. «'"' ^'«''' "'^' «• , A.D. 18—. Dated this day of — A, B., the ahove named plaintiff (or defendant) To , clerk of the said Court. K. Jmhjment against a defendant on confession before action under section. 1-',J (r), C. D. being indebted to A. B. in the sum of $ Sfc. » '? for a debt, and having acknowledged the same in writ- ing (with particulars attached thereto), before G. L., clerk {or bailiflf) of this Court, and the same being duly proved and produced to the Juilue, and the said A. B. reijuesting judgment thereon, it is adjudged that the said A. B. do recover against the said C. D. the said sum of $ for debt, and S for costs. Kn. Jndfiment on confession after action. The defendant having been served with summons and Sfc. t'^^'. jiarticulars of claim for a debt, amountiTig to § ((!/• the plaintiff having consented to take the defeml- aut's acknowledgment for the sum of § , part thereof, anil abandoned the residue ; or having allowed the defendant's set-olf thereout ; or made certain deduc- tions claimed therefrom), ami the defendant having confessed the same in writing Ixjfore G. L., clerk {or baililf), and the confession being duly proved and pro- duced {conclude as m the itrecedituj form). (r) Where a ()laintiff consents to take the confession payable by iu- stalments or for less than his cLiini (intending to abandon the residue or allow for defendants' set-off or for proper deductions), he should sign a written consent to that effect and abandon the residue, or set fortli that he has allowed for the defendant's set-off or for proper de- ductions. 418 FORMS. [Form L H m L. S)imiHonn for costs under section Fin. In the Division Court in the County of No. -, A.D. 18 S«c. 5y, note (j). SmN.B. to Form ?i. . [Seal.] Between A. B., plaintiff, and C. D., defendant. Whereas cm the day of , A.D. 18 — , cer- tain proceedings were instituted by you {or on your behalf) in this Court and in this cause, and whereas the fees upon the said ])roceedings were not paid by you (as they should have been) in the first instance, and have not since been jmid according to law, and it is right to enforce the payni»!nt thereof under the piovision of the 50th section of the Division Courts Act, you are therefore hereby summoned to be and appear at the next sittings of this Court, to be holden at , on the day of , at the hour of , to show cause why the payment of the said fees should not, by order of the .Tudge, be enforced by execution in like manner as any judgment of the Court. A statement of the said fees is hereunto annexed, and if you desire to set-off any denian the gaoler of the connuon gaol of the said County of . Whereas at the sittings of this Court, holdon in the said county on the day of — , A.D., 18 — , the plaintitr obtained judgment against the defendant for the sum of § , for debt {or $- for damages) and $ costs ; and thereupon it was ordered by the Judge that the defendant should pay the same to the clerk forthwith. And whereas the defendant having been personally served with the sunnuons to appear {or personally Form U. FORMS. 425 lirrital. Form 29. ivjipeared at tlio trial), the Judge at tho lieaiinii; nl' tlic Sec. isn sfiiil cause ("r at au adjourned hearing of the cause), exaiuiiied tlio defendant, who was then present in Court (leave out the. vordH " the defendant, who was tlicn present in Court," if lie did tint ctppmr), and the otlier evidence {if nnij) touching,' his estate and efi'ects, and tlio manner and circunistancos under which he contracted the said debt {or incurred thy damages or liability which was the subject of the action in which the saiil judgment was obtained against him), and as to the means and expectations he then had, and as to tlu' proi)erty and means he had when so examineil of discharging said debt, and as to the disposal ho might liave made of any of his property. And wlioroas it appeared, on such examination, to the satisfaction of the ,hidge of the said Court, that the said did incur tho said debt (or liability) under false jjreten'os, {or by breach of trust or fraucT, or that he obtained credit from the plaintiff, or wilfully contracted the debt or liability without having hail at the tinu' a reasonable exjjoctation of being able to pay or discharge the same, or had made (or causetl to 1)0 iiiado) a gift {or delivery, or transfer) of his pro- perty ; or removed (or concealed) his property, with intent to defraud his creditors {or the plaintitf); or, and whereas it appeared to the satisfaction of the Ju<•/• S.n. tn l-'iiriii .'?. V. Citpias in withernam. \\\ the — — Division Court in the C'ounty of . No. -, .V.D. 18—. [Seal]. Hetwoen A. B., plaintiff, and C. 1)., defendant. To V. \V. , bailiff of the said Court. Whereas you were lately comnuinded that without delay you should cause to be rei)levied to A. B. his goods, chattels, ami personal property, to wit, &c. (scttinii onf the deacrijitiov of the jiroperty) which C. D. had taken and unjustly detained (or unjustly detained) as it was said, accordiii},' to a sunnuons in replevin issued out of this Court in that behalf, and you after- wards returned that the j,'oods, chattels antl personal property aforesaid were eloigned by the said C. D. out of the said county to places to you unknown, so that you c()uld in no wise replevy the same to tho said A. B. Therefore you are conuuanded that you take i)i iritliirnaii) the goods, chattels an Judge of the said Court, at the time last aforesaid, to answer to the said A. B. of the taking and unjustly detaining of his goods, chattels und personal property aforesaid, and have then there this writ, and that you return an answer to this mandate at the next sittings of the said Court, for which this shall be your sufficient warrant. (Jiven under the seal of the Court this day of , A. D. 18—. X. Y., Clerk. W. Ej-crntion agains( ijarnishec for costs under secdnn 130. In the Division Court in the County of . [Seal.] Between A. 11., primary creditor, and C. D.. primary debtor, and E. F., garnishee. Amount ailjiidgod due from the primary debtor to the primary creditor the day of , A.D. 18--, for debt 8 For co.sts Total simi Amount adjudged to the primary creditor for money owing from the garnishee the day of , A.D. IS— .! 8 To V. W., bailitl'of the said Cor.rt. '\'ou are liereby recpiired to levy of the goods and chattels of the garni.shee (not exempt from execution), $ — , money owing from him to the primary debtor; " and inasmuch as the said garnishee set uji a defence to the said claim which he knew (or ought to have known) was untenable, the .Fudge ordered that lie should pay the costs of the said jiroceeding, amount- ing to !? . You arc therefore further recjuired to levy of the said goods and chattels of the said , garnishee (not exempt as aforesaid), the said sum of .^- to satisfy the said costs," and what you shall have done herein return with this writ within thirty •lays after the date hereof. Dated the day of , 18-. X.Y., Clerk. 11 I ."-.C'-. /.n. P! 428 Rule ;«;. FOILMS. [FoilM X. X. Notice demnndiiKj insj)ection of documents. ()S7;//c nf Court and cantic.) Take notice, tliat I desire [or G. N., my attorney (or agent), desires] to ins))ect tlie documents and instru- ments in your possession or power, or under your con- trol, hereinafter described, at any place within the division, to 1»e appointed bj you under the jjrovisions of Rule 137; and I ro'iuest you to appoint the said place according to tlio said rule. Dated this day of , 18 — . A. B., (ir C. D., plaintiflVir defendant. To A. B., plaintitl", nrC. D., defendant. {Here describe the documents required.) II TABLE OF DIVISION COURTS, LIMITS AND OFFICERS IN ONTARIO. (<) DISTRICT OF ALGOMA. Judge — Hon. Walter ^IcCrea, Sault Ste, Marie. LIMITS AND OFFIl'EHS. I. — Bounded west by Thunder I'ay District — 87tli parallel of west longtitude — and east by Bar Kiver, including all the islands in front. Clerk — E. Higgings ; Bailijf — John Dawson, Sault Ste. Marie P. O. 11. — Bounded west by Bar River, and east by Serpent River, including St. Joseph's Island and other islands in front. Clerk — Jas. B. Dobie ; Bailiff- — Thomas Collins, Bruce Mine* P. O. III. — Bounded west by Serpent River, east by the eastern boundary of the district, including that part of the Island of Manitoulin lying north of the lino between the (Jth and 7th concessions of the Township of Sheguiendah, the 4th and Hth concessions of the Township of Bidwell, and the Gth and 7th concessions to the line between Lots Nos. 17 anil 18 in the Township of Billings, together with all other islands in front, except Barrio Island and that part of ^lanitoulin not described as above. Clerk — Samuel McLean ; Bailiff- — Donald McKeu- Jiie, Little Current P. O. IV. — All that part of Manitoulin lying east of Manitowan- ing and South Hays, anil south of the line between the Gth and 7th concessions of Sheguiendah, the 4th and 5th con- cessions of Bidwell, the Gth and 7th concessions of Billings, to the line between Lots 17 and 18 ; thence southerly along said line to Lake Mindenioya ; thence south-westerly along the shore of said lake to the town line between Billings and Carnarvon ; thence westerly along said line and through the Township of Canii)bell, between tlie Gth and 7th concessions, to the westerly boundary thereof ; thence southerly along said boundary to the {t) When the clerk and luiililT have the same 1'. O., the adilress given is iipijlicable to h(tth. 430 LIMITS AND OFFICKRS. ;if shoreBof l^ake Jliiroii. i'lcrl,- — Williiun Stolen Francis ; Bailiff — Edward Henry, Manitowaning 1'. O. V. — All that part of Manitoulin not contained in Divisions III. and IV., and of Barrie Island. Clerh- — Janies M. Fraser ; i9ai7t^^— Edward H. Jackson, Gore Bay P. O. COUNTY OF BRANT. Coxiuty Judge — Stephen James Jones, Esq., Brantford. LIMITS AND OFFICERS. I. — The Town of Brantford and that part of the Township of Brantford not included in the other divisions hereinafter de- scribed. Clerk — J. Robinson ; Bailiff — -Tosepli Jack.son, Jirant- ford P. O. II. — The Town of Paris, and that part of South Dumfries west of the line, between Lots \i^ and 19, and that j)art of the first concession of the Township of Brantford lyiiii; west of a continuationof the lust mentioned line. Clerk — W. (Jouinlock ; ^ot7//?— Albert Huson, ]^iris P. O. III. — The remainder of the Township of South Dumfries ami of the first concession of the Township of lirantford. Clerk — J. P. Galloway ; /i'/<7/^— .Miller B. Laurason, St. ( Jeorge P. < t. IV. — The ten northern concessions of the Township of IJiir- ford, and that part of the .second, third, fourth and fifth conces- sions of the Township of Brantford west of the line between Lots Nos. 10 and 11, and that portion of the Kerr Tract west of a continuation of the lust mentioned line. Clerk — Henry Tox. Burford P. O. .; Bailif—.]ofi. Jackson, Brantford P. O. V. — The Townshij) of Oakland, the four southern concessions of the Township of Hurford, and Lots Xos. i to o inclusive, in the Ranges east and west of the Mount Ploa.sant Road, in tli<' Township of Brantford, adjoining the Township of Oaklainl. Clerk— A. P^oster ; /i'/ ////?- -Charles Wiieeland, Scotland P. ( ). VI. — The Townships of Onondaga and Tuscurora, and that part of the Townshij) of Brantford lying seutii of the main mad from Brantford to Hamilton, and cast of Kairchild's Creek. Clerk — J. Henderson ; liailiff — Mattln'W Day, Onondaga I'. <>. COUNTY OF BRl'CK. County Jin/t/e—,]. J. KixtiSMiu,, Esg.. V.'alkerton. LIMITS AND OIKICEHS. I. — Town of WalkertDU, Township of Carrick, and all nf the LIMITS AND OFFICERS. 431 ' Township of Brant south of line between 11th and 12th con- cessions. Clerk — William 'JoUins ; Bailiffs — E. A. Healy and W. A. Healy, Walkerton P. O. XI, — The Townships of Culross and Kinloss ; that portion of the Township of Greenock soutli of the line between the 11th and 12tli concessions, and the Villages of Lueknow and Tees- Avater. Clerk— \\. L5. O'Connor, Teeswater i\ U. ; BaUiffa— Peter Corrigan, llolywood P. 0., and Wni. ^lills, Teeswater P.O. III. — The Town of Kincardine, the Township of Huron and the Township of Kincardine, except tlie lOth, 1 1th and llith concessions. (Jlcrk — Joseph Darker; Jiailiff^b\ A. Loscombe, Kincardine \\ (.). IV. — That portion of the Townshi]) of liruce lyijig to tiie east of the side road Ixitween Lots 25 and 2(1 from 8th con- cession to 14th (!once.ssion, l)oth inclusive. That portion ol' trreenock norln of tlie line between concessions 1] and 12;' tiiat part of Brant north uf tlie line between concessions 1 1 and 12; the Townsliip of Elderslie, except Lots 1(5 to 3G inclusive in 12th, 13th and 14th con, and soutli of tla; production ol' the town line between Arr.in and Elderslie, to the .Saiigeeii Uiver. (J/rrk — K. Grange ; Jiidlill' — ^^ • ^^ • U^^gyi Paisley P. U. V. — The Villages ol .Southainplon aiiil Port Klgiii ; that portion of Saugeen west of tlie line between J^cjts 2)S and 29, and north of tlie ])rodu(tion of the town iiiui between Arran anil Elderslie to the Saugeen KivtT ; that portion of the Town- ship of Arran lying west of the line between Lots 10 and II and north of Arran Lake, and the outlet of said lake ; and that part of Amabel lying south of tlie lOtli concession line. Clerk —Cyrus Carroll ; 7y«///^— Matthew Hunter, Port Elgin i'. (). VI.— The loth, 11th and 12tb concessions of the Township of Kincardine, and the whole of the Townshij) of Bruce, ex- cepting that jiart east of the side line between Lots 25 and 26, from 8th to 14th concession, both inclusive. Clerk — Hugh Munav, Uliderwood P. U. ; Ji(ii/i(f''~iioov<^o l)eigliton, Tiverton P. (). ' VIL — All the Township of Arran lying ea^st of the side line between Lots 10 and 1 I and south of Arran Lake, and the out- let of said lake, and Lots 1(1 to 36 inclusive, in 12th, 13th and 14th concessions of the Township of Elderslie. Cli^rk — George Stirke ; Bailiff — Abraham Neelands, Invermay P. O. 432 LIMITS AND OFFICERS. VIII. — All iiortli of tho 10th concession line of the Town- shij) of Aiiiiibcl, iind the whole of the Townships of Alboiiuirle, Eastiior, Lintlsiiy iiml St. Ivlinuiuls. Clerk — B. H. Miller • BaiUff- — Henry Trout, Witivton P. O. COUNTY OF CAKLETON. CoHiiti/ Jh(/(ji'—Wm. Aiui) 1\o.s8, Esq., Ottawa. Junior Jmliji' — KoiiKur Lyon, Esq., Ottawa. LIMITS AND OFFIC'EKS. I. — The City of Ottawa ; tliat part of the Townsliip of N<'pean, we.st of the Kiver Kiileaii to the concession line between tlie 1st and 2nd concessions, Kidean Front, ami to the boundary line between Lots 2') and L'O, Ottawa Eront ; the Township of Oloii- cester to Lot 15 inclusive, Kideau Eront, and concessions 1 to G inclusive, Ottawa Front, with the islands in this Ottawa opposite thereto. Chrlc — (leorge \i, liurkt- ; litiilijl'- — Kubcrt Hamilton. Ottawa I'. O. n.— Tht^ T(.wnship ..f Ooulbmii ; the Sth, !>tli and lOtli r..ii- cessions of the Township of Marlboi'ou«,di ; and all that poitioii of Nejtean south of llu; iviver Cioodwood, and tin- 4tli, r)tli and Gth concessions thereof, north of the same river to the boundary line between Lots 20 and 21 in the last mentioned ((inccssion. Cleric— \L iiielly ; B< i il ijf— \a.vo\\ \Vri-,dit, Richmond 1'. O. HI. — The Townships of March and Huntley. Clerk — .John Fenton ; BaUljj'- — Alex, dohnston, Huntley W O. IV. — The Townships of Fit/roy and Torboltiui. Clerk — W. Taylor : Ba/l!J'~ll T. Sjiiilh, Fitzroy Harbour P. O. V. — The Township of North (rower, Lonj,' Island in thf Kideau Kiver. and the 1st, 2nd, '.Wd, 4th, oth, titli. 7tli and Stii contx'ssions of M;irlb(jriiu,uh. Clerk — Jas. Katemaii ; /Idilij/' - 'iii.<: Johnston. North Gower P. O. VI.— The Townsiiip of Os^'ooilc; th.- 7th, Siji and i)tli <-..ii- cessions, Ottawa Front; and from Lots 10 to .'{() indusivi', Kideau Front of tlu! Township of (Ihnicester. Clerk — Ira Moru;an ; liiillitf—W . M. Sutlu-rland, ^leteall'e, Osi,'o(.d('. VII. — Lots I to 5 inclusive, in the 1st, 2nd, ."ird and llli concessions of the Township of March ; the T'ownship of Nej)ean, except the portion of the 2iul and 3rd concessions, Kideau Front, lyin^' south of thi; Kiver Goodwood, and Lots 1 to 20 inclusivt! in the Ith, fith and (!th concessions, llideau Eront. Clerk — Frederick W. ilariner; BalliJ- — Alex. Wilson, Bell's Corners P. (J. i !■ LIMITS AND OFFICERS. 43:; fOll- iisivc, —Ira (JOUNTY OF ELGIN. Count If Judge — D. J. HuoiiKs, Esq., St. Tlionms. LIMITS AND OFFICERS. I. — ComprisiiifT the TownHhip.s of Bayhara, South Dorcheator and Malahido. CA-r/t— Ahix. Love ; Bailiffs—^. W. Whit.' and Roswt'll Mott, Aylmor 1*. O. II.- -Comprising the Townships of Soutliwold and Yarmouth. Cli't'k — (.'harlos Askew; BdUifi' — Lauchlin Campbell, St. Thomas P. U. IIL— The Town of St. Thomas. 6'Zer/.-— C'harl.vs Askew : //(8on, < (akvillc P. O. flL— Tho five easterly concessions of the Townshi]) of Psquesing. Cleri -^ohn Ilolgate, (Georgetown P.O. IV. — The six westt^-ly concessions of tlie Townsliip of Escpiesing. Clerk — James Matthews; Bailiff- — William Hum- strut, Acton I*. 0. V. — The Township of Nassagaweya. Clerk — Samuel K. Li«ter ; B(illl[}- — Epbixaim Chapnuui, Nassagaweya P. O. VI.— The Township of Nelson. Clerk— liohi. Miller; Bailiff — John W. Henderson, Burlington P. O, M ■ : 11 1» , LIMITS AND OFFICERS. 437 I. Clerk O. of North . Clerk P.O. e, Jarvis ON. m. en, Stan- aiul Hin- . Minden (iuilford. 1, CardiH'. ('lias. A. U. on. II the line I'vt'V, west ts IS and , Ckrk- 'rrafiil,f;!ir. 1, ( »akvillt.' vn.slii]) of iViisliip of iam Huiii- amuel K. .0. ir ; Bailiff COUNTY OF HASTINGS. County Judge — Hon. George Shehwood, Q.C, Belleville. Junior Judge — T. A. Lazier, Esq., Belleville. LIMITS AND OFFICERS. I. —City of BolloTille. Cleric—^. G. Hulme ; BniJi fa— John Bull anil Win. H. Stiusun, Bidlcvillo P. O." 11. — All that part of tho Township of Sidney which lies oast of tlio line hctwoen Lots Nos. G and 7 in tho sev(iral conoossions of said township, and south of tho 0th concnssion. Clerk — P). \l Kotchoson, Wallhridge P. O. ; liii!li(f'—^o\\\\ K. Bloecker, Fraiikf Htli concession of saiil township; and all that part of the Townshi]) of Kawdon which lies to the 8011 th of the 9th concession, (l/cr/c — (!. K. liull ; Bailiff — Chas. Hutler, Stirl ^' P. O. Vi. The Town |i of Matloc and Tudor; and all that part of tlic Township of Liiiienck lying south of the 1 1th conces.sion and east of Lot No, 2G, in eaidi conces.sion south of the said 11th cdiicL'ssion of the .said Township of Linierick. Clerk — G. D. Uawe ; Bailiff— Rcnvy Bull, Madoc P. O. VII. Tho Township of lluntinfi;' ;i. Clerk — Thos. Emo ; IhiiJiff — John B. Fox, Ivanhoe P. y). Vlll.- -The Townsnip of Thurlow. CUtrk — Jacob Sills, Can- ifton P. O. ; Hail iff— Wwx. H. Stinson, Belleville P. 0. IX. — The Village of Trenton ; and all that part of the Town- ship of Sidney which lies to the west of Lot No. 7 in each of the concessions of tho said township, including JMill Island. Clerk — Jeremiah Simmons ; Bailiff— -Lowis Cruicksliank, Tren- ton P. ( ). X. — The Townships of Marmora and Lake; and all that part of ihc Township of Rawdon which litvs to tho north of the 8th concession of the said Township of Kawdon. Clerk — David Uentley, Marmora P.O.; Bailiffx — Thomas Warren, Marmora P. 0., and Charles Butler, Stirling P. 0. XL — The Townships of Elzevir and Grimsthorpe, and all that part of tho Township of Cashel lying south of the 11th 4:'.H r,IM!TS AND OI'FICKliS. 'r, ; y if i yi' ; (;onces«ion of tlu' siiid tuwiishi]). C'Av7r — flames Mairs, Bridge, water P. O. : y;angor, Carlow, Moiitoaj,dp, l)\ingan]ioii, and Mayo; and all that part of the Townshiii of (.'ashel lyinj; north of the 10th concossion of said towiishii) ; and all llinsa parts of till' Townsiiip of Liineri(0< lying north of the ' th con- cession and wt'st of Lot No. 20 in each conoessi«in Ruulh of tho llth cnnccssion nf the said Township of Limerick. Clo'k — John Wilson; Ihiillj}' (lenrgc i\I(;Loan, L'Amablo P. O. CorNTY OF HURON. Cnmitij Jii'hir -\Y. \{. SyinKU, Hsq., Goderich. Juainr .III, lor [. F. To.Ms, Es«^, (iodt;rieh. I IMITS AM) OKFICKItS. L — That part of tho Townsiiip of (Joderie.h to tin. n. •: i of the cut line and the Huro*! lioad, until the same meets tho road allowance hetwoeii the l.'Jth ami Llth concessions; tlicn hack along the Huron Load to its junction with the cut liiu- ; then west by tlu; road allowance, hetween coneessions 1 1 ar.ther with the 'I'ownship of (Jolborue. C'Ar/:— Jolia S. McDougall ; Iktillf—,] . C. Currie, (Joderich V. O. IL— The Township of iMcKillop, tlie Town of Soaforth, and all that ]H)rtion of the Township of Tuekersmith not inchuleil in the 3rd division. ('hrk—L. Meyer ; /)V(/7///'-doiiepii Brine. Si'aforth P. (.). IIL — The Township of Hullett ; that part of the ToM-nship of (ioflerioh not included in Nos. 1 and 7; 1st, 'JnJ, Ih-d and 1th concessicms Township of Stanley ; 1st and '_'nd concessions Townshij) of Tuekersmith, London Road Survey, north of Lot L5 ; and that portion west of side road hetween ijots 25 and 20 Huron Load Survey ; and the Town of (Jlinton. Clerk -Vf. VV. Fanan ; linilif^ \) Dickinson, Clinton V. O. IV.-— The Township of (h-ey : all of the Township of Morri.i east of siih- road between Lots Nos. 10 and 11 ; and the Village of Brussels. Ckrk—V>. Fralick ; iirt/////"— Thomas English, Brussels P. O. v.— The Townships of Ushorno and Stephen, tho first four concessions of the Township of Hay. and the Village of hx- cter. C/cr/c— Thos. Trivett; Bai/iJ—.l. D. Ellis, Exeter P. O. II - liiidgc- lorscliel, lol lyiiif; U tiio.se 'th con- h of tho Clerk — O. LIMITS AND OFFICERS. 439 VI, — The Townships of West "Wawanosh and Aahficld. Cli'rk — John Cooke ; Bailiff- — Robert na<:an, Dnngannon P. 0. VII. — Tlio Townsliip of Goderioh south of llie cut lino and Huron Road until the same joins tlio road Ijotwecn the 13th and 14th concessious of the T(nvnship of (iijderich ; thence alonj? Sciid concession until the same joins the River Bayfield ; all Stanley not included in No. 3 ; all Hay not included in Xo 5 ; and the Villa<;.> of IJayficdd. C/crk—W. W. Connor ; Ba )' 1 1 ff—llohcri Baxter, Bayiield P. O. VI II. — The Village of Wiusham : th^ Township of Turn- berry and East AVawanosh ; all the Township of Morris not included in Xo. 4 ; and the \'illaj,'e of IMytli. (.'Icrk — -Dixie Watson ; /?a/7///--Wm. McConnell, Wingham P. O. IX. — The Township of llowiik and the \'illaLre of Wroxeter. CUrk — (Icorge Gibson ; Ihiillff — Jos. Cowcn, Wroxeter P. O. COUNTY OF KEXT. CoHuty Judge — AurniiiALn lUu.i., Esq., Chatham. LIMITS AND OlFICKRS. I. — The Town of Chatham, and those parts of the Townships of Tilluiry East, RaleiLjli, Harwich, (Mintham and Dover not included in the divisions lu'rcinaftci desirilud. C'/rrk — AVm. 13. Wells, Jr.; linililfs — Charles J, Moore and T. II. Nelson, Chat- ham P. O. II. — That p.art of the Township of Howard south of the 2nd ami .'h'd concession line liy the eastern boundary (known as the Pxitiiny Road), and that p..rt of the Townsliip of Oxford .south of the eleventh concession. CUrk—.]. Duck ; JinHlff- — William Tcetzel, M(U-i>eth P. (). III. — That part of the (ioreof Camden lying west of the 11th concession ; that \r.n\ of the, Townsliip of Camden lying Avest of the side line between Pots G and 7, the A'illageof Dresden and that part of the Townsliip of (Hiatham north of the 5th con- cession and east of the side road between Pots DJantl 13. Clerk — S. Wallace ; Iiullij[h — dames Stephens and Cliarles Stephens, Dresden P. O. IV. — That part of the Township of llarwii h south of the r)th concession, from the River Thames by tlie eastern botmdary, and of tlie 3nl concession by the western boundary ; and that pr.rt of Raleigh .south of the 15th conc'ssion. and Avest of the side road between Lots 12 and 13, and the read to Lake Erie through If 440 LIMITS AND OFFICKHR. Lot 147 on Talbot Road. aierk—G. Youii,th concossion, and west of tho sitU^ road liotwocn Lots 12 and 13, and road to Lake Krio, through lot 147, on Talbot Road. C/erk D. R. Famuhtir^on, Tilbury Kast P. t).; /)'a/7///"-Michacl Dollon, Morlin P. O. COUNTY OF LAMHTON. County hi( lye -i'uAnuEH Robinson, E.sq., JSarnia. LIMITS AND 0KKICKU8. I.— Town and Township of Sarnia. (Jlrrk — IT. M. Poussett ; /i,u'll(r Robert Millor. Sarnia P. O. [1.' -Townshij) of Warwick. Clerl:—A. I). Klliott ; Bailiff— •lauios T. Elliott, \Yatford P. O. ril. — .'ownships of Dawn and Etiphomia. Clerk — Wni. \Voli.stor; /fa/////— Thomiis Mead, Floronco P.O. rV. — Township of Soiubra. Clerk — P. Cattanach; Bailiff— Wilson Cornwall, Soml)rn P. O. V.--Township of Plymi>ton. Clerk T. R. K. Scott; AVnV///'- William Scott, Ogema P. O. VL — Townshiji of Rosanr|uot. Clerk — T. Kirkpatrick ; nailif John AUou, Thodford P.O. Vi I. Township of Mooro. Clerk— Wohi. Dale; Bailiff— Robt. Richmond, .Mojretown I'. O. VIII. -Township of Knniskillon. Clprk-\\. O. Frascr ; Bailiff— ^o\xu Sinc'.iir, I'.trolia P. O. firiiliffs— John nn V. O. Chatliam ; that 1 2tl» <'onc('ssii)ii 3, and that pari 'i- — .fuhn Lillio ; cniKossion ((ir nrth of the lOtli II of Both well ; i'ti'c of (jaindoii he '!'!nviishi|i of iitl 7. ain-h— '•on J. 'J'lioiuas, the fliird cnii- part ol' J\alci.i,'li if road iH'twocn ll^dl h.f I 17, nil iiiry Kast IM)., i., Sainia. H. M. Poussott ; Ih'ott ; Jinillff— C/cr/c~\\'m. nuch; J)'aili[/— K. K. Scott; Kirkpatrick ; [)alc ; liai/ijf— W. G. Fraser; ,«-:ir.l f.TMTTS A^'l) OFFICKKS. 441 I X . — Township of Brooke. Clerk — John W. Brennan ; BaUifi —Thomas Cahill, Alvinston P. 0. COUNTY OK LANARK. County Judye — \V. 8. Senklkk, Esq., Pertli. LIMITS AND 0K^'1CER^^. r.- Tho Town of Perth, tho Townships of Drinninond. liathnrst, Sontli Shorbrooko, North IltirLfcss ; and all (hat part of till' 'I'ownship of Elinsloy north uf the liidcau Itivor, wilhin till' (Jonnty of Lanark, and west of Lot No. \'l in oarli con- ci'ssion. Clerk — IJ. .Taniioson ; Ihiillffs — Ji'.iiies Patterson and Duncan McKcrracher, Perth P.O. ir.— Tiie Town.sliips of Lanark, Dalhousic, Darlin;,', Jjavant and North Slierbrookc and Village of Tianark. Clerk — W. A. Field.; liaillti'—W'U-x Kerr, Lanark P.O. IlL The Township of Beckwitli, and liOts No.<;. L 2, .'5, 4, ;■) and (I, in tlie Lst, 2n(L ^rd, 4tli, r)th, , •I, 5 and (J, on the Lst, 2n(l, ;{rd, 4th. .'"•Ih, Gtli and 7th conces- sions of the said townsliip, and the Village of Almonte. Clerk .lohn Patterson, Almonte P. O. ; //r////'//i— George McPherson ami .John McPherson, Garleton Place 1'. O. UNITED CM^UNTISS OF LEEDS AND GRENVTLLE. Cotiufi/ Jiidije — IL 8. Macdojjald, Esq., Brockville. LIMITS AND OPI'ICKRM. L -The Town of Mroekville and the 1st, 2nd. '.hd, 4th, .')th, fith and 7th rniieession.s, and brok-Mi front of the Township of Elizabi'thtown, and tlie conce.ssinn roads iietwecn them. Clerk — I>avid M. Jones; Iktilifn — .Amos AhlMitt and lleniv M^Phali. lirockville P. U. J II fm\ i' W m 442 LIMITs> AND OFFICERS. II.— Tlip Town of IVrsLolf Mild \]\o Ist, 2nil, .'?r(], 4tli and r)tli «-oiu'(\ssi(in.s and hrokon front, and tliat purl of tlio (Itli, 7th and 8th conct'ssions from the town lino of F'^dwardsbnri,' to Lot No. IS inclnsivo, of tlio Townsliip of AuLrnsta, and the con- cession roads between tht ni, C/rr/t — U. Wiiitc ; lioiliffs — •lohn Stitt nnd Janit'.s Jenkinson, rro.srt)tt I*. ( >. in.— The, Villat^'c of Ciananoquc and the l.st. L'nd, .'5rd, 4th and r)th cuncossions and br«ik:-!i friml of thr Townships of Lfods and LansdowiK' respectively, and the concession roads between them. (Jlrrlc — .S. iMcCamnion ; l>m the we.'^t side lino of Lot Xo. 11, in ."dl the concessions to the eastern bickin- son, Kempt ville P. < ). V. — The Township of Wolfnrd (except the 7th and Sth con- cessions, an of Klizabeihtown in rear of the 7th < iicession of aitil west of Lots jSo.«». 18 in the Sth, nth, 10th and Uth ( ..ncessions, and the alhjwaiices for roac parts of North Frederick.-^laugh and Adol]>hnstown lying north of May Hay. Cleric — Charles James ; Bailiff— Z\w\ Ham, Xapanee W O. ri. — Tho ist concession of the Township of Emestown ; tho Village of Bath; and the 2nd, 3rd ami Ith concessions of the I'ownship of Ernostown, from the west limits thert;of to the west linol of Lot No. '1\ in each concision; and the wLjIo of the Township of Amherst Island. Cl:rl:—(\ L. Kogcrs ; /tuilil/'— Kowland H. Finkle. Rath I'. ( ). III. Tin' Township of .South Fredericksburgh and all that t TiT 444 LIMITS AND OFncKRR. part of North Froilr'ricks])iir<,'li and Adolphustown not inrluflod in tho limits of Division No. 1. Clerk — J. J. Watson ; Bdlliff --Daniel Davcrn, Adoli)hu.stown I'. O. IV. — Tlu! l.st, 2nd and 3rd concessions of tho Township of r'amden and the Village of X(!\vl)ur[,'h. Clerk — PotorJohnston, Camden East \\ O. ; Bail!f—7Ani\ Ham, Napanoe P. U. V. — That ])art of tho Townshi]i nf ( "amdcn not inehided in the limits of Division No. 4. Clerk — William Whelan. Contre- villc P. O. ; ^'ol)cay;;('Oii Road ; those; parts ol' th(! Townships' of St(;phenson, iJrnncl and Franklin Ivin;; north of tholint' hctwt-on t\w Uthanil 10th con- cessions of the said townsliips. f'lcr/: — JJornard Phillips; // -#^- # *^V»' ■^ «>• '■^ y Photographic Sciences Corporation 23 WEST MAIN STtEET WEBSTER, N.Y. MSSO (716)872-4503 ^:^ A ^ 448 LIMITS AND OFFICERS. :f'\ li! « I" iii: ' U 1: it; the middle of the main channel of said lake, and along the middle of the main channel of French River to the Georgian Bay of Lake Huron ; thence along the shore of the said bay westerly to the place of beginning. Clerk — John McMeekin; Bailiff — Samuel Simpson, Mattawa P.O. COUNTS OF NORFOLK. County Judge — Thomas B. McMahon, Esq., Simcoe. LIMITS AND OFFICERS. I. - ar't of the Township of Woodhouse, and the Town of Simeo'\ Cierk — William R. Griffin ; Bailiff — Nathan Pegg, Simcoe P. vK II. — "'he Township of Townsend. Clerk — Edward Matthews ; Bailiff -Edward Grace, Waterford P. 0. III.— -The Township of Windham, Clerk — Robert Green, Windham P. O. ; Bailif—D. C. Wood, Simcoe P. O. IV.— The Township of Middleton. Clerk— C. S. Hairis , Bailiff— RohGxi Power, Delhi P. O. v.— The Township of Charlotteville. CUrh—^Y. Hewitt ; Bailiff— W. C. Doyle, Vittoria P. O. VI. — The Township of Walsingham. Clerk — Simon Pitt Mabee ; J^a/Z/^— Charles Ross, Port Rowan P. O. VII. — The Township of Houghton. Clerk — Thomas Chani- berlin, Houghton Centre P.O. ; Bailiff — Thomas Pierce, Clear Creek P. O. VIII. — TJie 1st, 2nd and 3rd concessions of the Township of Woodhouse, east of side line, between Lots 5 and 6, and that part of tlie 4th Sth and Gth concessions lying east of side line between Lots 12 and 13. Clerk — L. Skey ; Bailiff" — Hiram Fairchild, Port Dover P. O. UNITED COUNTIES OF NORTHUMBERLAND AND DURHAM. County Judge — George M. Boswell, Esq., Cobourg. Junior Judge — Or. M. Clark, Esq., Cobourg. LIMITS AND officers. I. — The Town of Bowmanville and Townshi])s of Darlington and Cartwright. Clerk — Frederic Cubitt ; Bailiff — Peter Cole- man, Bowmanville P. O. II. — The Townships of Clark and Manvers. Clerk — Samuel Wilmot ; Bailiff- — James Coleman, Newcastle P. (). * LIMITS AND OFFICERS. 449 III. — The Town of Port Hope and the Township of Hope. Clerk— Q. M. Furby ; Bailiff— 3. T. Henwood, Port Hope P.O. IV. — The Townships of Cavan and South Monaghan. Clerk — John Hunter; Bailiff- — Henry Atkins, Millbrook P. O. V. — The Town of Cobourg and Township ot Hamilton. Clerk —A. G. Boswell ; Bailiff— 0. Dean, Cobourg P. O. VI. — The Townships of Haldimand and Alnwick. Clerk — T. Bingley ; Bailiff— Thomo,^ Patterson, Grafton P. 0. VII. — The Township of Cramahe. Clerk — W. Johnson ; Bailiff— Henry Hicks, Colborne P. O. Vill. — The Township of Brighton. Clerk — George S. Bur- rell ; Bailiff— Wm. Martin, Brigliton P. 0. IX.— The Township of Percy. Clerk— E. P. Hurlburt ; Bailiff— Ban. Piatt, Warkworth P. O. X. — The Township of Murray. Clerk Garrett ; Bailiff — C. W. Smith, Wooler P. O. XT. — The Township of Seymour. Clerk — Daniel Kennedy ; Bailiff— Rohert Cook, Campbellford P. Q. COUNTY OF ONTAIIIO. County Judge — Z. Burnham, Esq., "Whitby. Junior Judge — George H. Dartnell, Esq., Whitby. LIMITS AND OFFICERS. 1. — The Town and Township of Whitby, and Town of Oshawa. Clerk.— D. C. Macdonell ; Bailiff— J. "H. Addison, Whitby P.O. II. — Tlie Township of Pickering. Clerk — M. Gleeson, Green- wood P. 0. ; Ballif—ChavhsW. Matthews, Brougham P.O. III. — The Townships of Eeach and Scugog. Clerk — J. W. Burnham ; Bailiff'— A. H. Shaw, Port Perry P. 0. IV. — The Townships of Uxbridge and Scott. Clerk — James E. Walks ; Bailiff— John C. Widdifield, Uxbridge P. O. V. — The Township of Brock. Cler/i — Charles Burnham ; Bailiff'—^. Baird, Caunington P. O. VI,- -The Township of Thorah. Clerk — Charles Eobinson ; Bailiff — Donald Ross, Beaverton P. O . VII.— The Townships of Mara and Rama. Clerk— H. E. O'Dell ; Bailiff'— C. E. Hewitt, Atherley P. O. IJ.isI 29 1-4 '■ "'a \i If 'V I 450 Limits and ofMceIis. COUNTY OF OXFORD. County Judge — D. S. McQueen, Esq., Woodstock. LIMITS AND OFFICERS. I. — The Town of Woodstock, the Township of Blandford, the Township of East Zorra, tlie Townsliip of East Oxford, and that part of Nortlx Oxford situate east of Lot No. 16, and as much of West Oxford as lies east of Lot No. 7 to the Stage Road ; thence on the north side of the Stage Road to where the said road inter- sects the Township of East Oxford. Clerk — Fred. W. Mc- Queen; BaUiff—Wn-i. H. McKay, Woodstock P. O. II. — The Township of Blenheim. Clerk — Jeremiah Cowan ; Bailiff — Chas. W. Cowan, Princeton P. O. III. — The Townships of West Zorra and East Nissouri. Clerk — D. Matheson, Embro P. O. ; Bailif—TLoB. Cowan, Ingersoll P. O. IV. — The Township of Norwich. Clerk — James Barr ; Ball itf— William Stroud, Norwich ville P. O. V. — So much of the Townships of North and West Norwich- ville (Oxford nut inchided in the first division), the ToAvn of Ingersoll, and that part of tlie two first concessions of the Town- ship of Dereham west of the middle town line. Clerk — David Canfield ; Bailiff— Thos. Cowan, Ingersoll P. 0. VI. — ^That part of the Township of Dereham not included in the fifth division. Clerk — Charles Hawkins ; Bailiff- — Matthew Dillon, Tilsonburg P. 0. DISTRICT OF PARRY SOUND. tStipendiari/ Magistrate — P. McCurrt, Esq., Parry Sound. LIMITS AND OFFICERS. I. — ^The Townships of Foley, McDougall, Cowper, and Car- ling, and all that portion of the district lying to the west ot the east boundary of (Jarling, produced to the French River. Clerk— J. A. Foley ; BalUf—T. W. George, Parry Sound P. O. II. — The Townships of McKcllar, Croft, Ilagerman, Fergus- son, and all that portion of the district lying between the east boundary of Ferrie and the west boundary of Fergusson, pro- ducrulmiu' lying northward of the southern boundarieH of Lots Nos. 20 in the first, second and third concessions respectively, west of Huiontario Street, and in the first, second, third, ff)urth, nttli, sixth, seventh and eighth concessions respectively, cast of Hurontario Sti'eet, in the said township ; that portion of the Townshij) of Tossorontio lying northward of Lots Nos. •j") ill the first, second, third, fourth, fifth, sixth and 'Veuth concessions rus])ectively ; that portion of the Township of Essa lying northward of Lots Nos. 25 in the first and second con- cessions respectively ; that portion of the Town, ^p of V'espra lying wcstw ird of the left bank of the main stream of i.lie NottawHsaga Iliver. Clerk — Angus Bell; Bailiffs- -11 Nee- liiiii's, W. Neelands, Kew Lowell P. (). XII. — Those portions of the Township of Essa lying south- ward of the northern boundaries of Lots Nos. 19 in the seventli, eighth, ninth, tenth and eWenth concessions thereof respectively, and lying southward of the north.ern boundaries of Lots Nos. 25 in the first, second, third, fourth, fifth and sixth concessions resi)ectively ; that portion of the Township of Innisfil lying westward of the eastern boundaries of Lots Nos. 5 in the first, second, third, fourth, fifth, sixth, seventh and eighth concessions thereof respectively ; Lots Nos. 1,2,3, 4 and 5 in the fourteenth and fifteenth concessions of the Township of West Gwillimbury ; the fourteenth and fifteenth concessions of the Township of Tecumseth ; that portion of the Township of Adjala lying northward of the southern bound- aries of Lots Nos. 28 in the sixth, seventh and eighth con- cessions thereof respectively ; that portion of the Township of Tossorontio lying southward of the northern boundaries of Lots Nos. 25 in the sixth and seventh concessions thereof re- spectively. Clerk — Thos. Gordon; Bailiff— F. M. Woolcock, Alliston P. 0. Note. — Each of the said several divisions shall include all allowances for road embraced within its external limits, and shall also extend to the centre of every allowance for road lying external and adjacent to every such division, excepting always where any such last-Mentioned allowance is herein- before declared to belong to or form part of any particular division. ~r 460 LIMITS AND OFFICERS. ■ ; UNITED COUNTIES OF STORMONT, DUNDAS AND GLENGARLY. County Judge — J. F. Pringle, Esq., Cornwall. LIMITS AND OFFICERS. I.— The Township of Charlottenburgh. Clerk— G. H. McGil- livray, Williarastovvn P. O.; Bailiff — John A. Eobertson, Mar- tintowu P. 0. II.— The Township of Lochiel. Clerk— C. D. Chisholm ; Bailiffs — Robert Macdonell and Samuel R. McLeod, Alexan- dria P. 0. III.— The Township of Cornwall. Clerk— Jaa. F. Pringle ; Bailiff— Donald McDonell, Cornwall P. 0. IV. — The Township of Osnabruck. C/er/c — Cyril Archibald, Dickenson's Landing P. 0. ; Bailiff's — Lyman Warner, Osna- bruck Centre P. O., and Hiram Bush, Lunenburg P. O. V. — The Township of Williarasburgh. Clerk — J. W. Loucks ; Bailiffs — James P. Kiney and John Styles, Morrisburg P. 0. Vi.— The Township of Matilda. C/e?-/i-— John Sylvester Ross ; Bailiff — John G. Brouse, Iroquois P. 0. VII. — The Township of Mountain. Clerk — William John Ridley ; Bailiff" — Asa Redmond, South Mountain P. O. VIII.^The Township of Finch. Clerk — John A. Cockburn, Crysler P. O. ; Bailiff's — John Thompson, Berwick P. 0., and Lyman Warner, Osnabruck Centre P. O. IX. — The Township of Lancaster. Clerk- — Peter Stuart j Bailiff — James Stuart, Riviere aux Raisin P. O. X. — The Township of Winchester. Clerk — William Rae ; Bailiff — Alexander StuUmeyer, Chesterville P. O. XL — The Township of Roxborough. Clerk — Donald Mc- intosh ; Bailiff— Fetev Mcintosh, Monckland P. 0. XII. — The Township of Kenyon. Clerk — J. A. McDougall; Bailiff — Robert McDonald, Alexandria P. 0. DISTRICT OF THUNDER BAY. Stipendiary Magistrate — Robert Laird, Esq., Prince Arthur's Landing. LIMITS AND OFFICERS. I. — Jurisdiction west from the meridian of 87 degrees of west longitude, to the meridian of Hunter's Island. Clerk — Charles Kreusman ; Bailiff — John Bourke, Prince Arthur's Landing P. 0. (see Rev. Stat., cap. 7, sees. 20, 22 ; and cap. 90, »ec. 16). LIMITS AND OFFICERS. 461 \.S AND 1. 3. McGil- son, Mar- ihisholm ; , Alexan- Pringle ; Lrchibald, er, Osna- ). Loucks ; ^P. 0. Sylvester am John ). oclrburn, *. 0., and * Stuart J am Eae ; [lald Mc- :Dougall ; Arthur's egrees of Clerk— Arthur's and cap. 11. — Increased jurisdiction within that portion of Thunder Bay lying west of the said meridian of Hunter's Island ; all the territory within Ontario west of said meridian of Hunter's Island. Clerk — John Aikens; Bailiff- — Joseph McKinnon, English Kiver P. 0. (see 42 Vict., cap. 19, sees. 1 to 14, and 16 to 21. COUNTY OF VICTORIA. County Judge — William Warren Dean, Esq., Lindsay. LIMITS AND OFFICERS. I. — The 15th concession of the Township of Mariposa and the Township of Eldon. Glerk—^. W. Millar; Bailiff— Thoraas Trumer, Woodville P.O. II. — All of the Township of Fenelon, except that portion lying east of Scugog River and south of Sturgeon Lake, and including all that part of Somerville lying west of Lots No. 12 throughout the various concessions, and the Townships of Bexley, Laxton, Digby, Longford and Oakley. Clerk — C. G. Cunningham ; Bailiff— John Kerr, Fenelon Falls P. O. III. — The Township of Verulam ; that part of Somerville lying east of Lot No. 13 throughout the various concessions; the Townships of Lutterworth, Anson and Hindon. Clerk — Irvine Junkin ; Bailiff- — Thomas Chutham, Bobcaygeon P. O. IV. — The Township of Emily. Clerk — Dr. Higginbotham ; Bailiff— Wi\\ia,m Balfour, Omemee P. O. V. — The Town of Lindsay and the Township of Ops and that portion of Fenelon lying east of Scugog River and south of Sturgeon Lake. C/er/o-— James McKibbon ; Bailiff— George McHugh, Lindsay P. 0. VI. — The Township of Mariposa except the 15th concession. Clerk — J. F. Cunnings ; Bailiff— John W. Pattendent, Oak- wood P. O. VII. — The Townships of Carden, Dal ton, Ryde, Draper and Macaulay. Clerk — S. W. Millar ; Bailiff— Thorns^ Tremere, Victoria Road P.O. COUNTY OF WATERLOO. County Judge — William Miller, Esq., Gait. Junior Judge — A. Laoourse, Esq., Berlin. limits and officers, I. — All that portion of the Townsnip of Waterloo lying north of the block line on the west side of the Grand River ; and that ':S' m , ! 1 I 'iii'i I 46^ LIMITS AND OFFICERS. part of the upper block in the said township lying on the east side of the Grand Eiver north of Lots 115, 109, 104, 87 and 95, to the Guelph Township line, including the Town of Berlin. Clerk — Andrew J. Peterson ; Bailiff — John Klippert, Berlin P. 0. II, — All that part of the Township of Waterloo south of the hiock line on the west side of the Grand River ; and that part lying on the east side of the Grand River south of the northern boundary of Lots 115, 109, 104, 8G and 95, to the Guelpli Township line, including the Village of Preston. Clerk — ^Otto Klotz, Preston P. O. ; Bailiff— John Kirkpatrick, Gait P. 0. III. — All that part of the Township of North Dumfries, lying east of xjot 19, in the 7th concession, and running a coursewitli the eastern boundary of the said lot in a northerly direction \\\) to the 12t]i concession, thence along the eastern boundary of Lot 33, in the said 12th concession to the township line, includ- ing the Town of Gait. Clerk — Peter Keefer ; Bailiffs — -Tolm Kirkpatrick and Tlioiuas Field, Gait P. O. IV. — All that part of the Township of North Dumfries lying west of Lot 18, in tlie 7tli concession, thence along the western limits of the said Lot 18 in a northerly direction to the 12tli concession, thence along the western limit of Lot 22 to the township lini!. Clerk — W. D. Watson, Ayr P. O. ; BailiJ— Ed. Bouchier, Washington P. O. v.— The Township of Wilmot. Clerk— Johu Allchiu; Bailiff— \\. R. Plum, New Hamburg P. O. Vi.— The Township of Wellesley. Clerk— J{. Morrison; Bailiff- — R. Tliompson, Hawkesville P. O. VII— The Township of Woolwich. Clerk— John L. Wiile- man, St. Jacob's P. O.; Bailiff— H. Tliompson, Hawkesville P. O. COUNTY OF WELLAND. Count!/ Judge — Rolland Magdonald, Q.C, Esq., Clifton. LIMITS AND OFFICERS. I. — The Township of Crowland ; that part of the Townsliip of Thorold lying south of the line between Lots 178 and 195, running through to Pelliam ; that pax't of Pelham lying soutli of the fourth concession ; and that part of Humberstone lying north of the conceesion line between the fourth and fifth con- cessions, being the whole of the fifth concession. Cle7'k — G. L. Hobson ; Bailiff— B,. C. Macdonald, Welland P. O. l-f/' ttMlTS AND OfPlCEliS. 46^ 11. — The Township of Wuinfleet. Chrk — Edward Lee ; j^ailif—Edwavd. Henderson, Marshville P.O. III. — The Township of Bertie, the Village of Fort Erie, and those i-arts of the Township of Humberstone not included in Nos. I. and VI. Clerk — Thomas Newbigging ; Bailiff- — George Graham, Fort Erie P.O. IV.— The Township of Willoughby, the Village of Chip< pawa, and that part of the Township of Stamford, south of the line between Lots 136 and 137, easterly from the western limit of the township to the south-east angle of Lot No, 133 ; thence north on the line between Lots Nos. 132 and 133 to the northern boundary of the township (including the Town of Clifton) and Navy Island. Clerk — John A. Orchard ; Bailiff — James D. Fralick, Drummondville P.O. V. Those portions of the Townships of Stamford, Thorold, and Pelham (not included in any other division), and the Town of Thorold. Clerk — George Keefer ; Bailiff — Geo. McArthur, Thorold P.O. VI.— All the Township of Humberstone lying south of the fifth concession and west of the side lines between Lots Nos. 9 and 10 in the several concessions thereof, and the Village of Port Colborne. Clerk — Adam Kilman Schollield ; Bailiff — Thomas Bate, Port Colborne. COUNTY OF WELLINGTON. County Judge — Archibald Macdonald, Esq., Guelph. Junior Judge — Austin Coopeu Chadwick, Esq., Guelph. ' % ' LIMITS AND OFFICERS. I. — The City and Township of Guelph. Clerk — A. A. Baker; Bailiff— V\n\\\^ Spragg, Guelph P. 0. II. — The Township of Puslinch. Clerk — William Leslie, Puslinch P. O.; Bailiff— Thoa. Ingram, Aberfoyle P.O. III. — The Township of Eramosa. Clerk — Henry McCarthy ; Bailiff — Wm. Hemstreet, Rockwood P. O. IV. — The Township of Nichol, except 11th and 12th con- cessions; Village of Fergus, the first eight concessions of Gara- fraxa. Lots 1 to 18 inclusive, in concessions A and B of Peel, Lots 13 to IS inclusive, in concessions 18 and 19, and Lots 19, 20 and 21, in 17tli concession of Township of Peel. Clerk — Thos. A. W. Gordon ; Bailiff— Arthur Perry, Fergus P. 0. v.— The Township of Erin. Clerk— Wm. Tyler ; Bailiff— James Broddy, Erin P. 0. 7-3 'n »1 m i;5 : iUi; 464 LIMITS AND OFFICERS. VI.— The Township of Pilkington, the Uth and 12th con- cessions of the Township of Nichol, the Village of Elora, and Lots nmnbers 19 and upwards in the 9th, 10th, 11th, 12th, 13th, 14th, 1.5th and 16th concessions of Peel. Clerk — John McLean, Elora P. 0.; Bailiff— Da,\\^ Findlay, Salem P. O. VIL — The first seven concessions in the Townships of Peel and Maryborough. Clerk — William Allan ; Bailiff— 'WiWidim Mellish, Glenallan P. O. VIII. — That part of the Township of Arthur south and south-east of Lot 15 on the west side of the Owen Sound Road, Lot IG on the Owen Sound Road, and Lot 12 east of the Owen Sound Road, in the Township of Arthur; that part of the Township of Luther from Lots 1 to 21, both in- clusive, and Lots 1 to 12, both inclusive, of the 17th and 18th concessions of the Township of Peel ; Lots 5 to 11, both inclusive, of the 19th concession of said Township of Peel, and Lots 19 to 23, both inclusive, of concessions A and B of said Township of Peel. Clerk — Cornelius O'Callaghan ; Bail- iff— WiWisim. P. Johnston, Arthur P. 0. IX. — The Town of Orangeville and Townships of Amaranth and Garafraxa, except the first eight concessions and the Gore of Garafraxa, and Lots 22 to 32, inclusive, in Township of Luther. Clerk — Guy Leslie; Bailiff- — Ed. Leslie, Orange- ville P. O. X. — The Township of Minto, Town of Harriston and Tov.'n of Palmerston. Clerk — A. C. R. Saunders ; Bailiff- — John Livingston, Harriston P. O. XL — The Town of Mount Forest, and that part of the Town- ship of Arthur, north of Lot IG and west of the Owen Sound Road, Lot 17 west of the Owen Sound Road, and Lot 13 east of the Owen Sound Road. Clerk — .lames C. Wilkes ; Bailif — Alexander Godfrey, Mount Forest P. O. XII. — Concessions 8 to 17, both inclusive, of the Township of Maryborough, and concessions 8 to 16, both inclusive, of the Township of Peel, except Lots 19, 20, 21, 22 and 23 of those concessions in that township. Clerk — Donald Macdonald ; Baili^—S. B. Trask, Drayton P. 0. fiiii 1 2th con- ilora, ftnd .th, 12th, rk — John (iR 0. js of Peel -William outh and 2n Sound 12 east of mr ; that , both in- 17th and )11, both ) of Peel, . and B of lan ; Bail- Araaranth 1 and the Township 5, Orange- and Toi'n lif- — John the Town- i^en Sound ot 13 east s ; Bailiff Township ive, of the 3 of those acdonald ; LIMITS AND OFFICERS. 46^ COUNTY OF WENTWORTH. , County Judge — J. S. Sinclair, Esq., Hamilton. LIMITS AND OKKICKHS. X. All the Township of Barton east of line between Lots U and 15, and all that part of llauiilton City east of Hugh- son Street. Chrk — H. T. Bunbury ; Ba'tUfn — E. B. Smith and Samuel Davis, Hamilton P.O. IX. The Avhole of the Townshij) of Flamboro' West. Clerk J5s. Snasdell, Greensville; Bdiliff — Francis P. Hanes, Dun- das. XXI. — The whole of the Township of Flamboro' East. Clerk — Jas. ^NIcMonies, Jr.; Baih'if'— John Graham, Waterdown, XV. The whole of the Township of Beverley. Clerk — W. McDonald ; Bailiff- — Richard Bannan, Pockton. v.— The whole of the Township of Saltfleet. Clerk— \\. R. Smith, Winona ; BalUf- — Stev. Springster, Stoney Creek. VX. — The whole of the Township of Ancaster. Clerk — L. A. Gurnett ; Bailiff — Marshal J. Wright, Ancaster. VII.— The whole of tlio Township of Glanford. Clerk— T. Choate, N. Glanford ; Bailiff- — John Eustice, Hall's Corners, IHnbrook. VIII. — The whole of the Town.ship of Binbrook. Clerk — W. Ptolemy, Woodbiirue ; Bailiff— John Eustice, Hall's Cor- ners, Rinbrook. IX. — All that part of Barton Township lying west of line between Lots 14 and 15, and that part of Hamilton City west of irughson Street. Clerk — W. M. D.ividson; Bailif- — Robert lluntei', Hamilton. COUNTY OF YORK. Count!! Judge — Kknnetii McKenzie, Esq., Q.C. Junior Judge — John Boyd, Esq. LIMITS AND OFinCERS. I. — The City of Toronto east of Yonge Street. Clerk — A. McLean Howard ; Bailiffs — James Severs and H. John Severs, Toronto P.O. 11. — Concessions five to eleven inclusive, of the Townshij) of Mavkhani, and concessions five to ten inclusive, of the Town- ship of Whitchurch, from Lot 1 to 10 inclusive, together with the Villages of Markham and Stouifville. Clerk — John Stephen- son, Uuionvillc P. O. ; Ballif- Jas. Stewart, Toronto P. O. 30 VffA si Mi m i; 466 LIMITS AND OFFICERS. III. — Concessions one to four inclusive, of the Township of Markham, and concessions one to four inclusive, of the Town- ship ot Whitchurch, from Lot 1 to 10 inclusive ; concessions one to three inclusive, of the Township of Vaughan, and conces- sions one and two of the Township of King, from Lot 1 to 10 inclusive. Clerk — J. M. Lawrence, Richmond Hill P. 0. ; Bailiff— James Stewart, Toronto P. O. IV. — Concessions one and two of the Township of King from the line between Lots 10 and 11 northward ; the Township of Whitchurch from the tine between Lots 10 and 11 northward, and the Township of East Gwillimbury. Clerk — Jolin Cook, Newmarket P. 0. ; Bailiff-— Wm. Malloy, Sharon P. (). V. — Township of Georgina and North Gwillimbury. Clerk ■ — Wm. Fry, Sutton P. 0. ; Bailiff — E. A. Sheppard, Georgina P. o. ■ VI. — Concessions three to twelve inclusive, of tlie Tjwnsliip of King, and concessions eight to eleven inclusive, of the Town- ship of Albion. Clerk — Arthur- Armstrong, Jr., Lloyd town P. O.; 5at7(^— Edward Pottage, Pottageville P. 0. VII. — Concessions four to eleven inclusive, of the Town- ship of Vaughan. Clerk — Jo(jl Eeaman, Woodbridge P. 0. ; Bailiff — James Stewart, Toronto P . O. VIII. — All that portion of the Township of York lying west of Yonge Street; and the Township of Etobicoke. Clerk — John Paul, AVeston P. 0. ; Bailiff — J as. Stewart, Toronto P. 0. IX — The Township of Scarboro' ; and all ihat portion of the Township of York which lies east of Yonge Street ; and the Village of Leslieville. Clerk — John 11. Richardson ; Bail- iff— W'aU&cq Luke, Highland Creek P. O. X.— City of Toronto west of Yonge Street. Cl^rk—E Duggan ; 7i«i7/[/i^^EdAvard (legg, Toronto P. O. }[. i^nship of he Town- jsions one d conces- it 1 to 10 11 P. 0. ; Ling from vnship of Drthward, Im Cook, O. y. Chrk Georgina Tjwnship the Town- iloydtown le Towii- je P. 0. ; ying west Clerk- Diito P. 0. )ortion of ireet ; and ion; Bail- ie- P. il. WKITS OF PROIIIBITION, CERTIORARI AND MANDAMUS. PROHIBITION. I. Nature of the mit.— A prohibition is an original writ issuing out of a Superior Court and directed to the Judge of an inferior Court, or to a party to the suit in such Court, commanding that no further proceedings be taken in some particular cause. It is in many re- spects the converse of a mandamus, the latter being used to compel inferior Courts to perform their functions, the former to prevent their overstepping such functions. It is a writ of right {Jackson v. Beaumont, 11 Ex. 300), and is not taken away except by express enactment {Oram v. Breary, L. R., 2 Ex. D. 340), and a statute giving an appeal does not therefore pre- vent prohibition {Pears v. Wilson, 20 L. J. Ex. 381). II. Party to apply, and discretion of Court in granting. — The appli- cation for the writ may be made either by a party to the suit or by a stranger, and it has been laid down that the Court is bound to inter- i'ere and grant this writ at the instance of a stranger as freely as to a party to the suit {De Haher v. The Queen of Portugal, 17 Q. B. 171 ; Baker v. Clark, L. R., 8 C. P. 121 ; Bridge v. Branch, L. R., 1 C. P. D. U33). Where a Superior Court is clearly of opinion, both with reference to the facts and the law, that an inferior Court is exceeding its juris- diction, it is hound to grant a writ of prohibition, whether the appli- cant for the prohibit!' ,i is the defendant below or a stranger. In such a case neither the smallness of the claim in the suit below, nor delay on the part of the applicant, is a reason for refusing the writ {'iVorthingtou v. Jeffries, L. R. , 10 C. P. 379). In Chambers v. Green L. R., 20 E<|. 552, the Court (Sir Geo. Jessel, M. R.) refused to fol- low Worthlngton v. Jeffries, and held that where a writ of prohibition has been issued to restrain proceedings in an inferior Court on the application of a stranger to the suit, it cannot be sustained unless he can show that the Court has exceeded its jurisdiction both with reference to the facts and the law, and then it is a matter of dis- cretion with the Superior Court whether or not to set it aside. The 111* 468 PROHIBITION. If.'' ? ' is (i^:-; Court of Common Pleas, in Ellis v. Fleming, L, R., 1 C. P. D. 237 expressly adhered to their former decision, and no Canadian case has gone the length of holding that the Court has any discretion as to the granting of the writ, when satisfied as to the want of jurisdic- tion, and no question arises as to acquiescence. III. Time of applyimj, and effect of delay or acquiescence. — -ft has been laid down by the House of Lords, that where an inferior Couit proceeds in a cause properly within its jurisdiction, no prohibition can be awarded until the pleadings raise some issue which the Court is incompetent to try. But when the foundation for the jurisdiction is itself defective, a pi'ohibition may be applied for at once (Manor of London v. Cox, L. R., 2 H. L. 2.39). A defendant is not therefore bound to wait for a trial in the inferior Court when the matter is beyond its jurisdiction, but may at any time move for a prohibition {Seiccll V. Jones, 15 Jurist, 15:3). The case in L. R., 2 H. L. 231) is the leading case on prohibition, and is in itself a treatise on the subject. Lloyd on Prohibition says that the result of the authorities seeius to be that — 1. Prohibition will in all cases, when it lies, issue at any tinie after the commencement of the action and before judgment. 2. It will issue after judgment in all cases where the want of jur- isdiction is apparent upon the face of the proceedings. 3. It will also issue after judgment in all other cases exce])t wlien the party applying appears by his conduct to have acquiesced in tlie jurisdiction of the Court below. 4. In all cases where it will issue after judgment it will cilso issue after execution, except 1st, where there is no one having a right to interfere in the matter who can be prohibited ; 2nd, where there is nothing capable of being restored, or to which prohibition can attach. In the majority of cases in the Division Courts the want of juris- diction does not appear upon the face of the proceedings, and nuist therefore be shown by aflSidavit. The question whether the party applying has estopped himself by acquiescing in the jurisdiction, fre- quently arises. It has been held that where a defendant appears at the trial, and while the case is proceeding makes no objection to the jurisdiction down to actual payment of damages and costs, it is too late to apply for a prohibition — unless the want of jurisdiction ap- pears on the face of the proceedings -even though the party had no mi\ PROHIBITION. 469 opportunity ol' applying earlier (Reri. v. IVidJo^, L. R., 2 C. C. 3 ; filakc V. Bccrh, L. R., 1 Ex. D. 320). If a person sues in a wrong Division Court, ami proceeds to judgment with the defendant's ac- quiescence in tlie jurisdiction, the defendant's strict right to move for a prohibition is gone, although, under the circumstances of the special case, the Judge may gi'ant it (Robertson v. Cornwell, 7 Prac. R. 21)7 ; Archlhald v. Bushcy, 7 Prac. R. 304, and see note thereto). Where the Division Court Judge at the trial postponed giving his decision without naming a special day for giving it as required by sec. !()(), neither party objecting at the time, a prohibition was re- fused {Re Smart and O'Eeilly, 7 Prac. R. 364), and aparty cannot ob- tain prohibition in regard to an order made at his request and acted upon (Rlrhardxoii v. Shaw, 6 Prac. R. 296 ; see also In re Cleghom and Mnnn, 2 C. L. J. 133). It may be taken as settled, that, except under very special circum- stances, prohil)ition will not be granted when, if the want of jurisdic- tion does not appear upon the face uf the proceedings, the objection has not been taken until after judgment. If the want of jurisdiction is ap])arent upon the proceedings, the writ can issue even after exe- cution {Graham v. Smart, 18 U. C. R. 482). In Nerlich v. Clifford, 6 Prac. R. 212, Richards, C. J., refused the applicant costs because he ai)plie(l for a prohibition before raising the question of jurisdiction in the Division Court ; and the proper course to take would seem to \w to raise the objection to the jurisdiction by a notice of defence (see sec. 53, note (m), page 40) and also at the trial, and then, if the Judge proceeds in the action, to apply for prohibition. IV. Ground,^ for obtaining writ. — The sole ground for the issue of rlie writ is that the Court below is exceeding its jurisdiction, and it will thereibre only be granted when it clearly (Ricardo v. Maidenhead Board of Health, 2 H. & N. 257 ; lure Birch, 15 C. B. 743) appears that no view of the facts will give the inferior Court jurisdiction {Re MeKcudc and Ryan, 6 Prac. R. 323 ; O'Brien v. Irving, 7 Prac. R. 308). If the Judge has jurisdiction in a cause, his proceeding in it will not be restrained even though he decides against law and good conscience {Siddallv. Gibson, 18, U. C. R. 98 ; 5 U. C. L. J. 84), nor for any mistake in law {Toft v. Rayner, 5 C. B. 162 ; Lexden Union V. Sonthgate, 10 Ex. 201 ; Robinson v. Lenaghan, 2 Ex. 333 ; Foster V. Teviple, 5 D. & L. 655 ; Ellis v. Watt, 8 C. B. 614 ; Zohrab v. Smith, 5 D. & L. 635 ; Reg. v. Tv.iss, L. R., 4 Q. B. 407 ; In re I 470 PROHIBmON. Grass v. Allan, 26 U. C. R. 123), as otherwise the oft'ect woukl bo to allow an appeal from the Judge's decision, which it is provided sliall be final and conclusive between the parties (sec. 54) ; but wliero a Judge assumes jurisdiction, not by deciding on conflicting facts, but on a wrong assumption upon a point of law, the 00111+ ciin review his decision by prohibition (Re Elstou v. lioi^e, L. R,, 4 Q. B. 4), and his decision on contlicting facts, necessary to give him jurisdiction, is not final, but can be questioned on an application for prohil)itiou (Thompson v. Inciham, 14 Q. B. 710 ; li) L. J. Q. B. 189). A mere irregularity in practice is not any ground for interfering by prohibition {Ec McLean v. McLeod, 5 Prac. R. 467 ; EUh v. Waii, 8 C. B. 614 ; Jolly v. Jkdncs, 12 A. & E., cited in Hig(j\nhothain\, Moore, 21 U. C. R. 326), unless such irregularity is such as to amount to an excess of jurisdiction, as where a Judge, after finally giving judgment, attempts to alter it [Jones v, Jones, 17 L. J. Q. B. 170) ; nor is a reception of improper evidence sufhcient (IVinsor v. Dtiuford, 18 L. J. Q. B. 14). It had been held that the writ did not lie where the inferior Court had jurisdiction over part of the matter (Carslakc v. Maplcdoram, "i, T. R. 473) ; but the rule now is that prohibition may be granted as to part of a claim, leaving the plaintiff to proceed with the balance of the claim (Fitxsimmons v. Mclntyrc, 5 Prac. R. 119 ; In re JValsh, 1 E. & B. 383 ; KerJcin v. Kcrkin, 3 E. & B. 399 ; Ellis v. Flemhirj, L. R. 1 C. P. D. 237). Where the matter is immaterial, the suit below being merely nugatory, prohibition will not be granted {Butterirorth v, Walker, 3 Burr. 1689). As to when a Division Court is exceeding its jurisdiction, see the notes to the various sections of the Act. V. Method of ohtainincf. — Formerly the mode of obtaining a writ of prohibition was by entering a suggestion or a surmise in the nature of it of record, and if the want of jurisdiction did not appear on the face of the proceedings, it was necessary to file aSdavits in support of the suggestion (Lloyd's C. C. Practice, 240) ; but now, by Rev. Stat,, cap. 52, sees. 2 and 3, the usual practice is to apply on affidavit to a Judge in chambers. The affidaNdts on which the application is made must be entitled in one of the Superior Courts (Siddall v. Gibson, 17 U. C. R. 98 ; In re Miron v. McCabe, 4 Prac. R. 171), but not in any matter, as there is no cause in Court ; although, if entitled " In the matter of a certain cause in the Division Court of the L PROHIRITION. 471 County of -, in which A, B. is plaintiff and C. D. defendant," the validity of the affidavit is not affected {In re Burrows, 18 C. P. 493). A form of affidavit whereon to found an aividication for a prohibi- tion is given hereafter. The applicant must be careful that the whole of the proceedings in the (.'oiut below are placed before the Court (In re Grass v. Allan, 26 U. C. R. 123). Upon the application, the Judge may, apparently under the statute, make an order for the issue of the writ ex parte (sec also Jonlatt, v. Wilcoxon, 3 E. & B. l!)3); but the almost invari- able practice is to issue a summons in the first instance, which should be directed by the Judge to the opposite party (see form of sum- mons given hereafter). The grounds upon which the application is based need not be stateil in the summons (Eversfield v. Neivman, 4 C. B. N. S. 418), but it is better to set them out shortly. No stay of proceedings can be granted pending the application {In re Mirun v. McCabe, 4 Prac. R. 171). The party called upon may file affidavits in answer to those filed by the applicant, which should be entitled in the same way as the summons {lie Grantham, 4 D. & L. 427); and where the affidavits are contradictory, a certificate of the Judge has been held to govern {In re Clarke, 2 C. L. J. 266). The application is subject to the same rules as other chamber applications; and upon the return of the summons, it is either discharged or an order made for the issue ot the writ, in which case the order is taken to the clerk of the Court to which the application is made, who issues the writ (see form of order given hereafter). VI. Costi^. — A prohibition may be granted with costs (Rev. Stat., cap. 52, sec. 2 ; Wallace v. Allen, L. R., IOC. P. 607), and apparently independent of any statute {Jones v. Jones, 17 L. J. Q. B. 170). The decisions on the (juestion of costs have not been numerous in Ontario. It has been held that moving for a prohibition without taking the objection of want of jurisdiction in the Court below, disentitles the party moving to his costs {Nerlich v. Clifford, 6 Prac. R. 212) ; that where the plaintiff sues in a wrong Division Court knowingly he is not entitled to his costs of opposing an application for a prohibition, although such application is refused because the defendant did not take the objection in the Court below, and allowed judgment to be •ntered there {A rchibald v. Bushey, 7 Prac. R. 304) ; that delay in i 471* >rANn\Mis. ! 'f iipidyiii;,' tnr ,i ]ii()liiliilioii iiiuy ilisciititlc tlio apitlitiint in costs, altliougli llu) proliihition is yrantod {Ruhrrimn v. Vornvcll, 7 Pmr. R. 2!>7), and that the fact of the applicant askin;^ for costs in his smnnions is a reason why this summons, if discharj,'ccl, should bo dis- charged with costs {Ollricny. Irvinij, 7 Prac. R. ;}()8). MANDAMUS. I. Xiitnn of fli9 ii-flt, A mandamus is a liigh ]»rerof,'ativo writ, issuing from one of the Superior (."oiirt.s, directed to any i)er.son, cor- poration, or inferior Court, retiuiring tlunu to do some particular act therein sjx'cilicd \\hich'appovtains to their oHico and duty ; although, in its application, it may be considered asconlined, as agcnernl prin- ciple, to cases where relief is sought in respect of the inl'ringement of some ])ublic right or duty, ami where no effectual relief can be obtained by an action at law (Iniiiey on ^landamus). The writ does not, however, in tlijs Province, seem to stand ui)on the sanie footing as in England (In rr the Strntford ct Jlitrnh li. W. Go. mifi The (Jimnty of Perth, ;J8 U. C. R. 112). The writ is a prero- gative writ and not of right (3 Bl. Com. 132 ; Iie 'i' i ' Affidavit where defendant sued in the wrong Division Court. In the Queen's Bench {or Common Pleaa). I, A, B. , of the of , in tlie County of , make oath and say : 1. That I was on the ciay of , A.D. 18 — , served with the paper writing hereunto annexed marked " A," purporting to be a copy of a summons and particulars of demand issuing out of the Division Court of the County oi . 2. That I am the defendant mentioned in the said summons. 3. That on the day of , A.D. 18 — , I caused to be filed in the office of the clerk of the i=aid Division Court, n notice of defence, a copy of which is hereunto annexed marked " B," objecting to the jurisdiction of the' said Court. 4. That tlie claim for which the said suit is brought is for the amount of a promissory note made by me at , in the County of , and payable at , in the County of , both said places being outside the division of the said Division Coiu-t, and I say that the cause of action in said suit arose wholly outside of tlie said division. 5. That I reside at , in the County of , outside of the said division, and have resided there continuously before and .since the commencement of said suit. 6. That at the trial of the said suit, on the day of ■ -,A.D. 18 — , counsel on my behalf again objected to the jurisdiction of the said Court, and the evidence given at the said trial showed that the said note was made and was payable as above stated, and no evidence was given to show, or coidd have been given to sliow, that I resided within the said division. 7. That the said Judge, notwithstanding my objection and the objection of my counsel, did proceed to hear and determine the said cause, and give judgment against me for .$ , together with costs. 8, That I have not paid the said damages and costs or any part thereof. 0. That execution has {<>r has not) issued against me in said suit. Sworn, «fcc. Uh FORMS IN PROHIBITION. 479 Affidavit where title to land broufiht into question {adujited from Lloyd). 8. Court. —, make erved with •ting to be ing out of mens. ised to be t, a notice ked " B," is for the le County , both said urt, and I ide of tlie side of tlie ) and since ,A.D. don of the (I that the I, and 110 sliow, that II and tlie le the said ither witli r any part said suit. In the Queen's Bench (o?' Common Pleas). I, A. B., of the oath and say : 1. That I was on the of. in the County of make day of A.D. 18 — , served with tlie paper writing hereunto annexed marked "A," purporting to be a copy of a summons and particulars of demand, issuing out of the Division Court of the County of . I 2. That I am the defendant mentioned in the said summons. 3. That on the day of , A.D. 18 — , I caused to be filed in the office of the clerk of the said Division Court a notice of defence, a copy of which is hereunto annexed marked "B," objecting to the jurisdiction of the said Court. 4. That the claim for whic... ..aid suit is brought is for trespass to Lot — , in concession — , in the Township of , alleged to be committed by lue. 5. That I attended at the said Court in pursuance of the said sum* mons, and did then and there object to the jurisdiction of the said Court to entertain the said plaint, inasmuch as I claimed to justify the trespass for which I was sued, by right and title to the said close at the time when the said trespass was alleged to be committed. G. That I did then and there offer to prove before the said Judge that I did bund fide claim a right and title to the said close, and that the same was my close, soil and freehold. 7. That I bond fide claim, and at the time when the said trespass was committed did bond fide claim, the soil and freehold of the said land by virtue of a certain conveyance thereof heretofore made to me by one A. B., by a certain indenture of grant, bearing date, &c. 8. That the said plaintiff in the said suit claims the said land adversely to me. 9. That the said Judge, notwithstanding the said objection, and notwithstanding my said offer to prove my said title as aforesaid, did proceed to hear and determine the said case, and did give judg- ment in the said plaint against me for the sum of ^ , damages and costs. 10. That I have not paid the said damages or costs, or any part thereof. 11. That execution has {or has not) been issiied against me there- for. fSworn, itc. LAHUlavits tor otliur cases can easily lie drawn from the above. ] :■ H > m !.i hin t-,; Im f m 480 FORMS IN PROHIBITION. Summons for prohihitwn. In the Queen's Bench {or Common Pleas). Upon reading the papers and affidavits filed, let • the Judge of the Count}' Court of the County of -, Esquire, and {namt of plaintiff) their attorneys or agents, attend upon the presiding Judge in chambers at Osgoode Hall, in the City of Toronto, at eleven o'clock in the morning of the day after the service hereof, to show cause why an order should not be made directing the issue out of this Court of a writ of prohibition directed to the said , prohibiting him from further proceeding in a certain cause or plaint in th(; Division Court of the said County of , wherein the said is plaintiff and is defendant, upon the ground that the said Divi- sion Court has no jurisdiction in the said cause, the cause of action, if any, not having arisen in the said division, and the de- fendant residing outside of the said division {or that the title to Lot No. , i/(/ the euncessioii in the Touniship of is brought in question in the said suit), and why the said should not pay to the said , the costs of and inci- dental to this application. Dated, &c. Order for prohibition. In the Queen's Bench {or Common Pleas). Upon reading the summons granted herein on tlie — , A. D. 18 — , and the affidavit of service thereof, and iipoii hearing counsel for , and for , no one appearing for , Esiiuire, the Judge of the County Court of the County of , although duly served with the said summons (or as the case may be), I do order that a writ oi' prohibi- tion do issue out of this Court directed to the said Judire of the day of County Court of the County of ther proceeding in a certain cause or Court of the said County of is plaintiff and the said do further order that the said the costs of this application. , prohibiting him from fur- plaint in the Division , wherein the said is defendant. And I do pay to the said Dated, &o. l.'ii, LIST OF FORMS. ■t.s And I tlio said No, 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. If). 1(>. 17. 18. 19. 20. 21. 22. 23. 24. 2.") 2()! 27. 2S. 29. 30. 31. 32. 33. 34. 35 3fi, 37, 38 39, Scihediilc of clerk's f(>GS (sec Form 127). Scliedule of bailiff'.s fees (see Form 128). Allowance to witnesses. Allowance to jurors. Allowance to appraisers. Procedure Book. Cash Book. Debt Attachment Book . Undertaking for costs in suit by infant. Affidavit, leave to sue defendant in another Division- Allidavit, leave to sue where several defendants. Schedule to above affidavit. Affidavit for attachment. Attachment against absconding debtor. Affidavit for order for writ of replevin. Affidavit for writ without order. Claim in replevin. Particulars in contract. Particulars in cases of tort. Particulars in actions against officers and sureties. Application for interpleader. Landlord's claim for rent. Particulars of claim in interpleader. Ordinary summons to appear. Special summons. Summons in reidevin. Interpleader summons to claimant. Interpleader summons to plaintiff. Application for judgment summons. Judgment summons. Judgment summons after default. Summons by executor to revive judgment. Summons on a devastavit. Suggestion of devastavit in summons. Summons to revive judgment against executor. Summons to executor and alleging assets siniic judgment. . Order of reference. a. Appointment of umpire. b. Appointment, meeting on reference. c. Enlargement to be endorsed. . Award. . . . Summons to jurors. Summons to witness. Summons to witness before arbitrator. 831 482 LIST OF FORMS. Vl!! ;ti> IN' \'ii; ' : No 40. 41. 42. 43. 44, 45. GARNISHEE PROCEEDINGS TO JUDGMENT. Affidavit for order to attach debt. Judge's attaching order. • Warning to garnishee. Summona to garnishee, &c., after judgment. Summons to garnishee, &c., before judgment. Entry of judgment against garnishee, after judgment against pri- mary debtor. 46. Entry of judginent against garnishee and primary debtor. 47. Entry of judgment in favour of garnishee. 47a. Bond under section 143. 48. Clerk's memorandum of non-appearance of garnishee. 49. Admission of debt by garnishee. 50. Denial of debt by garnishee. 51. 52. 53. 54. 55. 5G. 57. 58. 59. 60. 61. 62. 63. 64. 65. m. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. ~78. 79. MINUTES OP JUDSMENT IN PROCEDURE BOOK. Against defendant for debt or damages. Against defendant on special summons. Against some defendants who are served with special sumnioiis, and others confess. Of nonsuit or dismissal for want of prosecution. On award. For defendant. For defendant, where set-off partly satisfied. For defendant, for balance of set-off. Ordinary judgment against executor, &o. Against executor who has wasted assets. Against executor who denies representative character, &c. Against executor who admits representative cliaractcr, but denies the demand. Against executor who admits representative cliaracter, but denies demand, and administration alleged and proved. Against executor, administration alleged, but nol j)roved. Against executor, where plene .idministravit alleged and proved. Against executor, where pleuc administravit alleged but not proved. Against executor, on devastavit after judgment. To revive judgment against executor. For executor to revive a judgment. , Of judgments in replevin. Adjudication on interpleader. Imposition of fine on a juror. Imposition of fine for contempt (in open Court). Imposition of fine on witness. Postponed judgment, (section 106). * Order for now trial. i EXECUTIONS. Against goods of defendant. Against goods of plaintiff. For balance of set-off. •H i : gainst pri- sumnioiis, but denies but denies kl. proved. not proved. LIST OF FORMS. 483 No. 80. Under section 63, where judgment obtained against a defendant residing in fi foreign county. 81. On transcript from one JJivision Court to another. 82. For executor on judgment revived. 83. On judgment revived against c.vecutor. 84. Against goods of testator. 85. Jn replevin against plaintilt' for return of goods, &c. 86. Against garnisiieo on judgment already recovered. 87. Against garnishee on judgment against him and primary debtor. 88. Against garnishee and primary debtor on like judgment. 89. For garnishee's costs. 90. On garnishee proceedings under sections 312, 316 of C. L. P. Act. 91. Against goods of claimant in interpleader. 92. Under Act respecting Line-fences and Watercourses. 9.S. Warrant of commitment in default of appearance. 94. Warrant of commitment after examination. 95. Warrant to levy tine upon witness. 96. Warrant of commitment for contempt in open Court. 97. Certificate for discharge of party committed. TRANSCRIPTS. 98. To another Division Court of judgment on special summons. 99. To County Court of judgment on special summons. To County Court on ordinary summons (p. .S85). 100. To another Division Court of ordinary judgment. NOTICES. 101. Of trial by jury and new trial. 102. Clerk's notices to the plaintift. (1) Of confession. (2) Of claim disputed or not disputed, (3) Of claim partly disputed. (4) Of set-off. (.'}) Statute of limitations. (()) Discharge under Insolvent Act. (7) Of certain items of claim admitted. (8) Admission of making promissory note, &c. (9) Of payment into Court. ' ' (10^ Of tender before action, &c. (11) That plaintiff not a certificated attorney. (12) That note not duly stamped (or stamp not duly cancelled). (13) That notice of action not given. (14) Action defended under protecting clauses of Act. 1C3. Defendant's notice to plaintiff or clerk. IP' GENERAL FORMS. 104. Confession after .suit commenced. 105. Bond on supersedeas to attachment. 106. AfHdavit of servici^ of ordinary summons. ilj ! Hi. m tl s-ui 484 No. 107. 108. 109. 110. LIST OF FORMS. Affidavit of service of special summons. Affidavit of execution of confession. Affidavit of execution of any instrument. Forms of oath, &c. : (a). Oath to M'itness at trial who swears on Bible. (b). Oath to witness who swears with uplifted hand. (c). Oath to witness who is a Jew. (d). Oath to witness, Quaker, Meuonist, Tunker, &c. (c). Oath to an interpreter. (f). Oath to witness on iJOJrc rf/re. (g). Oath to jury called by parties. -, (h). Oath to jury called by Judge. (i). Oath to defendant on judgment summons. ( j ). Oath to officer when a jury retires. (k). Oath to officer when jury retire to consider verdict, ( 1). Oath to deponent as affirmant to affidavit, &c. (ni). Oath to witness by arbitrator or umpire. (n). Jurat to affidavit by illiterate person. (o). Affirmation by Quaker, &c., and jurat. 111. Affidavit of justification. 112. Affidavit of disbursements. 113. Affidavit for revival of judgment. 114. Form of bill of co.sts. • 115. Clerk's return of emoluments. 116. List of unclaimed moneys verilied. bailiff'.s forms. 117. Replevin bond. 118. Assignment to be endorsed thereon. ' 119. Returns to writ of replevin. , 120. Inventory of goods seized or replevied . 121. Appraiser's oath in attachment cases. 122. Appraisement to be endorsed on inventory. 123. Notice of sale. 124. Returns on executions, &c. (a). Nulla bona. (b). Money made. (c). Money ("partly made. (d). Rent levied liy bailiff. 12.''>. Bond on seizure or sale of peri.shable propertj'. 12(). Form of return and Bailiffs Trocess Book. 127. Schedule for clerk's fees. . 128. Schedule of bailiff's fees. Covenant by clerk or bailiff (p. 229). \' . ADDITIONAL FORMS. A. Appointment of Deputy Judge under section 20. B. Judge's direction on appointment of clerk or bailil!' under .section 27. C. Formal appointment of clerk or bailiff after covenant approved by Judge. m : it i LIST OP FORMS, 485 Appointment of (Icputy clerk under section 35. Affidavit of execution of covenant by clerk. Aitidtivit of justifieiition. Certitieate under section 37. Bills of costs of bailiirs fees on executions, and instructions relating tliereto. Special form of reference to arbit ration, witli instructions to arbi- trators, and ui)pointment of tiiird arbitrator. Notice demanding trial by jury. Judgment against u defendant on confession before action under section 152. Kii. dudgnu'ut on confession after action. L. Summons for costs under section 50. Kutry in Procedure Book ordering execution in default of payment of costs under section 5o. Execution for costs under section 50. Certificate under section 78, to be endorsed on the summons at the trial. Entry of satisfaction under section 157 where there are crosa-juilg- ments between the same parties. (2). iMitry on the judgment for tiie smaller sum. (;{). Entry of judgment of both equal. Notices' of defence on the ground of want of jurisdiction, .ludgiueut against defendant for plaintiQ's costs of preparing for trial under section 154. Qa. Entry of judgment for defendant's costs under Rule 138. U. riaintiirs notice under section 87. S. Summons and order on an application under Kule 144. Order absolute on the foregoing sunmions. T. Notice of claim to goods seized. IJ. Warrant of commitment after examination under section 188. V. Capias in withernam. W. Execution against garnishee for costs under section 130, X. Notice demanding inspection of documents. Plea of payment into Court (p. 84). 1). i'l. K. (1. H. 1. J. K. bf(. M. N. 0, P. ection27. jproved by GENERAI. INDEX. f ItM"! ABANDONMENT OF EXCESS. right of, impliedly given, 54. a (liHchiugo of all demanils, M, 187. must be positive act, 54. stated on claim in lirst instance, 54, 267. when intention sufficiently shown, r),*). by defendant pleadinj^ set-off, 55, 87, 318. plaintill' proceeding by attachment, 187. fonn of judgment where excess abandoned, 3()1. ABATEMENT. death of parties before and after judgment, 319. of solo plaintiir or defendant, 320. ABODE, PLACE OF. of parties to be stated in claim, 265. ABSCONDING DEBTOE. what meant by "absconding," "removing" and "concealed," 180, attachments, when and how to issue, 1 80. affidavit to be made and produced, 180 — Form of, 334. must com])ly with form and not bo in alternative, 180. clerk to fde and issue wariant, 181. County Judge or justice of peace may take, 182. liable to action it m'' filed, 183. warrant, how to be direct? J, li '.. — Form of, 336. what scizable under, ISl. exemption clauses to .ij) ily, 181. bailiff to seize goodt: on receipt of, 183. when should seize all goods, 189. to make inventorj' and appoint ap])raisers, 183. to return inventory and appraisement to clerk, 183. fees to appraiser, 327. form of inventory, 402. • oath to appraiser, 402. appraisement, 402. proceedings, in what division to be conducted, 184. trial, when to take place, 184. property attached to be sold, 184. conflict between attaching and non-attaching creditors, 185. cause of action not to be divided in order to attach, 187. excess may be abandoned, 187. form of judgment where excess abandoned, 361. distribution, if several writs issued, 187. when issued from both Superior and Div. Courts, 188. OENKK.U. INDEX. 487 ABSCONDING DEBTOR— C(w'1''.s. ADVOCATES. all persons may act as, 83. Judge may prevent persons from acting as, 83. AFFIDAVIT. formal requisites of, 308. certain persons allowed to make affirmation instead of, 309. before whom to be sworn, 98. GENERAL INDEX. 489 of absent witness, received us evidence, 98. (if service, requisites of, 69, 73 — P'onn of, 391. for attachment, form of, 334. to prove confession of debt, 142 — Form of, 392. for order to garnish debt, form of, 356. to obtain order for writ of replevin, form of, 337. for issue of writ without order, form of, 337. of disl)ursements, clerk sliould retjuire, 316— Form of, 396. of execution of instrument, form of, 392. of justification, form of, 395, 412. for revival of jud<;ment, form of, 397. for leave to sue party residing in adjoining division, form of, 331. in division adjoining one in which debtors reside, form of, 332. form of schedule to, 333. jurat to, by illiterate deponent, 308 — Form of, 395. .VKFIRMATION. certain persons allowed to make, 107, 309 — Form of, 393, 395. AGENT. unprofessional, may act on behalf of parties, 80. officers not to act as, for ])arty in cause, 297. of landlord, meaning of, 196. ALGOMA, DISTRICT OF. rules to apply to, 324. ALIAS PROCESS. what, and how to be dated, 268. fees on, 309. A^IENDMENTS. power of Judge as to, in general, 302, 314. in garnishee cases, 138. where wrong form of summons issued, 299. by striking out defendant's name, 299. where action brought in name of person not legally entitled to sue, 299. representative sues or is sued in his own right, and vice versa, 290, 302. name or description of plaintiff in summons incorrect, 300. parties improperly joined or omitted, 300, 301. defendants not all served, 301. description of, incorrect, 301. substituted at hearing, 302. varianf'e between evidence and proceedings, 302. AMENDS, TEND^il OF. Sec Tendek of Amends. AMOUNT CLAIMED. interpretation of, discussed, 46. 490 rrKNKllAL INDEX. iMh mi] APrEAL. from judgment of Division Court, question of, considered, 50, APPRAISERS. fees of, 35, 183, 327. fS'ee Absconding Debtok. ARBITRATION. Judge may order reference to, by consent, 139 — Form of, 3.')4. usefulness of this provision, ] 3!). special form of reference, with instructions to arbitrators, 414. reference to, may include other matters in dispute, 140. not revocable except with consent of Judge, 140. compulsory, no express provision for, 140. powers of arbitrator where matters in dispute beyond jurisdiction, 140. arbitrator to notify parties in writin ;, 141. form of appointment for meeting, 3ri4. may administer oaths to parties and witnesses, 142. procedure vvhen umpire called in, 140. form of apijointn^ent of umpire, 354. witnesses, how to be summoned, 141. award, wlien time for making may be enlarged, 141. form of enlargement, 354. when considered as published. 141. judgment on, how and when to be entered, 140, 317. need not be signed by umpire, 141. Judge may set aside or order now reference, 141. on what grounds may be set aside, 1 12. when and how ap])lication to be made, 142. form of award, 355. ARREST. of disturbers at Court by bailifif, 33. authority of constable to make, 34. of judgment debtor for contempt. Sec Judgment Summons, legal, how to be made, 289. ASSAULT. committed on officers, penalty for, 210. ASSIGNEE. of chose in action, amendment where action brought by, 290. of primary creditor may attach del)ts, 114. of debt claimed by primary creditor, how should proceed, 136. in insolvency, when debt in liands of, iittacliable, 1 13, official, goods in hands of, not repleviable, 234. ASSIGNMENT. of debt, prevents its being garnished, 113. notice of to garnishee unnecessary, 1 13. what constitutes, 113. ,li, I, ■■■I :-■■ >.' GENERAL INDEX. 491 I, 50. f, 3.')4. ra tors, 414. urisdictioii, ONS. , 290. I, IDO. ASSISTANT. ' bailiir cannot safely employ unauthorized, iu making arrest, 176. ATTACHING OPiDEH. -See ArrACHMENT of Debts, ATTACHMENT. See Absconding Debtor. ATTACHMENT OF DEBTS. powers of Division Courts as to, more extensive rlian those of Su- perior Courts, 108. "primary creditor," " primary debtor, " " f;arui.shec," what meant what claims may be garnished, and ca.ses in point, 109 rt scq. claim must be a dehf, and not for unliquidated diiniages, 109. a legal debt, and not a mere equitable interest, 10!). a debt in which jiulgment debtor has bcncliciiil interest, 110, Court officers liable to, for moneys in their hands, 110. liability of mortgagee, 110. of executors, 110. debts secured by negotiable instruments, 112. amount of garnishee's indebtedness not important. 111. *' due and owing," "due or owing," meaning of, 1 11. Claims not suhjext to attachment : against the Crown, 110. ' future rent or unearned salarj'. 111. debt which has been ionr^y/rZe assigned, 113. debt to raechanics, clerks, &c,, uncler S2.')...113. object and .application of this provision, HI, exception as to certain debts, 114. against company having head office in foreign country, 115. Garnishee procecdimis vhere claim a jxidtjmcnt : application to be made on affidavit, 114. affidavit, who may make, and what to contain, 114, 280— Fonn of, 85(j. attaching order, ell'ect of, 115 — Form of, 357. warning to be endorsed on, 280— Form of, 357. meaning of " proper order" in, 118. service of, how to bo effected, 116. in what sense to bind deist, 117. garnishee may be subprenaed as witness, 116. first order to have priority, 116. payment by garnishee, effect of, 117. may be made into Court, 117. to primaiy creditor on certain conditions, 117, 281. when to be void, 118. summons to garnishee may issue, 118 — Form of, 357. warning on, 119 — Form of, 357. to be sued out of division in which garnishee resides, 118. this rule sometimes violated by consent, 119. when transcript of judgment necessary, 119, 281. when returnable and practice as to, 119. i;v.- *]' % m 11' i lis t§ II: mi '•■ "ii= *' j ' ' 402 GKNIIKAL INDKX. ! ( ' , ATTACHMENT OF \M<]\\Tt^—Conlinvnd. scivico of, how ell'i'cted, 120. personal, ]iowcr ol' Jmlj^c to disiicusu with, 281. in case of joint giiniishees, 120. hinds (lcl)t, 120, 130. judgment ;ij,Miii.st ganiialiou at hearinf,', wliuu f,'ivcn, 121— Form of, .Sf)!). execution on, when to issue, 122 — Form of, 374. O'urnis/icc procciiliiu/s vhcrc claim not a jiuhjmcut : advantages luid disadvantages of, discussed, 122, 127. safeguards against abuse of, 127. summons, from what division to issue, 123 — Form of, 358. ■svlicn more tlian one necessary, 123. memorandum to be annexed giving particulars, 125. partieuhirs, liow to be given, 125. warning on, form of, 357. how to be I'eturnable, 125. service of, how effected, 125. wiicn primary debtor bound to ai)pear, 123. primary creditor, how should ])rocoed, 123. judgment (m return of summons, 12() — Form of, 359. against primary debtor, if duly served, ]2tj. garnishee on sullieient proof, 120. if primary debtor not served, 12G. amount of, when to be paid to primary creditor, 127'. Judge may reipiire bond, 127. powers of, in reference to ordering payment, dis- cussed, 128. in favour of garnishee, form of, 300. execution, when to issue, 127 — Form of, 375. General provlnhniti us to : all i)arties interested entitled to show cause, 129. beneht of this provision, 129. notice of statutory defence to be given to primary creditor, 130. garnishee not reipiired to file notice of defence as against pri- mary debtor, 130. advisability of changing this jjractice, 130. liable for costs of untenable defence, 132. of execution issued against him, 282. costs to be in discretion of Judge, 132. judgment not to be given till certain papers filed, 133. • object and operation of this enactment, 134. execution not to issue till garnishee's debt due, 134. where debt payable by in'^talments, 134. application to discharge debt from attachment, 134, 281. when and by whom may he made, 134. practice as to, 135, 282. security to be given by primary creditor in certain cases, 135. bond to be approved l)y clerk, 136, 282— Form of, 360. to be sued in name of clerk, 136. adverse claims. Judge empowered to adjudicate on, 136. Ins « 1:1) ' : GENERAL INDEX. 493 81. tl-Fonn 358. lent, (lis- tor, 130. iiist pri- ses, 135. }60. ATTACHMENT OF DEBTS— Co7i/in« erf. wide extent of powers conferred on Judge in garnishee cases, 137. liberal interpretation of, by Superior Courts, 138. Debt Attachment Book, to be kept by clerks. 139— Form of, 3.30_ Proceedings in Superior or County Courts : sections of 0. L. P. Act as to, 256 et seq. proceedings to be taken in Division Court iinder, 28". form of memorandum of non-appearance of garnishee, 360. of admission of debt by garnishee, 361. where garnishee denies debt, 361. ATTORNEY. See Solicitor. AWARD. See Arbitration. BAILIFFS. one or more for each Court, 17. but if two, do not constitute one officer, 17. duties should be properly divided, 1 7. must be British subjects, 17. i Judge to appoint and remove, 18. forms of direction and appointment, 410, 411. appointment should be in writing, 18. securities to be given by. n v'it, 295 — Form of 403. to make return on oath to clerk, 295 — Form of, 405. to keep Process Book, 147, 294— Form of, 405. entries to be made in, 147. no action to be taken after expiry of, 153. liable to action if this rule violated, 154. if tfoods left on hand unsold, 154. danger of making too hasty return of nulla bona, 154. What may be seized under execution : partnersliip property on Judge's certificate, 74. interest of mortgagor in goods, but not tiiat of mortgagee, 159. question of possession in such cases, 100. advertisement should show facts clearly, 11 — Form of, 390. of indeninity by attaching creditor, 194 — Form of, 403. given in proceedings under Act, where to be sued, lSt4. to be delivered up to party entitled, 19,5. taken by bailiff in replevin— Form of, 400. Sec Rki'LEVIN. form of assignment of, 401. BOOKS. to be kept by clerks and bailiffs, 28, 289- Forms of, .327 vl ftr'/. on death or removal of clerk, to become property of cnunty attorney, 30. mandamus would lie to compel didivcry of, 31. penalty for wrongful possession of, 31. ^ of account. .SVe Account. BREACH OF PROMISE. no jurisdiction in actions for, 43. BUSINESS. action brought where defendant carries on, 02. where company is said to carry on, 1 24. , what meant by carrying on, 02. CAPIAS IN WITHERNAM. when to issue, 245 — Form of, 426. , CASH BOOK. to be kept by clerks, 28, 289— Form of, 329. CAUSE OF ACTION. not to be divided to give jurisdiction, 52, 187. division of, what constitutes, [>2. cases as to, and general result of, C3, .')4. to mean " whole cause of action," 60. this rule discussed and cases considered, GO. ifii ;;» t; ' ii^'-; "■ m ii^H Lli: ,i; OENERAL INDEX. 497 ent, 410. CAUS?: OF ACTION— Coui!in?«crf. English interpretation different {Jackson v. Spittal), 61. not extinguished by imjn'isonment of defendant, 179. iu contract, forms of statements of, 339. CERTIORARI . Tiature and effect of writ, 58, 474. wlicn writ lies, 58, 476. wlio may obtain, 47'). method of obtaining, 476. costs of, 477. ent, 191 N. 7 .Sfv/. of county CHALLENGE. 5ce Jury. CHATTEL. interpretation of, to include animals, 161. CHATTEL MORT(i^AGE. what interest in, may be sold under execution, 160. how sale affected by possession, 160. CHATTEL REAL, f^ee Lkase, Term of Years. CHOSE IN ACTION. amendment where sued on by person not legally entitled, 299. CLAIM. what to include, 265 — Forms of, 338 et seq. to be numbered, 289. re(iui.sites of, as to names of parties, 26r(. form of, when suit brought under section 6.3 of Act, 266. agiunst officers and sureties, 266 — Form of, 341. on ai)plicatiou for judgment summons, 267 — Form of, 347. when excess abandoned, 267. particulais of. Sec Particulars of Claim. CLAIMANT. See Interpleader. CLERK OF PEACE. to record divisions, &c., 13. cicts of sessions only, not Judges' orders, 13. to file and give certificate of covenant, 21. fees of, 1.3, 21. CLERKS. otiico for, 7, 286. retjuisites and disqualifications for office, 17. not to hold office of bailiff, 18. Judge to appoint and remove, 18, forms of direction and appointment by Judge, 410, 411. how appointment made, 18. securities to be given by. See Securities, Covenant. 32 498 GENERAL INDEX. ''i i* !'; I'R' 5 it I'll CLERKS— Oonfinui'd. " '. ' may appoint deputy in certain cases, 25 — Form of appointmeat, 411. not to have interest in suits, or act as agents, 167i 297. fees, to be paid by, 34. evils of fee system, 34. doubtful cases should be referred to Judge, 35. ^ table of, to be hung up in office, 35. account of, to be furnished to Judge, 30 — Form of, 399. construction of certain items in. 293. to be paid in first instance by plaintifl', 35. of bailiff .should also be prepaid, 36. duties and responsibility of clerk in regard to, 37. not compelled to proceed till deposit paid, 36. payment of, how enforced, 36. form of summons for, 418. execution, and order for issue of, 418, 419. forfeited, how to be disposed of, 38. schedule of, 407. duties of, in general, how regulated, 18, 26. to number claim and annex copy to summons, 68, 289. to issue summonses and copies, 26 — Forms of, 343 et seq. See Summons. when new process required, 306. to keep Procedure Book, 27 — Form of, 327. should sign every page, 27. certified copy of entries to be evidence of same, 27. form or certificate, 412. to tax costs, 27, 292. See Costs, forms of bills of costs, 398. to keep account of fines and suitors' money, 28, to submit accounts to county attorney, 28, 29. to keep certain books, 28, 139, 289— Forms of, 327 ef. seq. such books to be public property, 31 . J to furnish Judge with certain accounts, 29, 30. to make and post up list of unclaimed money, 30, 291 — Form of, 400. list and money to be transmitted to county attorney, 30. to forward summonses for service in foreign divisions, 66, 290. to receive summonses sent from such divisions, 66. proceedings to be entered in Foreign Procedure Book, 66. tees for such services, proper practice as to, 66, 67. respective duties of home and foreign clerk defined, 67. to prepare affidavits of service, 73, 74 — Forms of, 391. to issue specially endorsed summons in certain cases, 75. See SUM-MONS. such summons to be issued when possible, 289. entry of final judgment in such cases, 77, 270 et seq. whether clerks may enter of their own motion, 78. • to give notice of plea of tender to plaintiff, 85, 292 — Form of, 388. of payment into Court, 86 — Form of, 887. lit*- : GENERAL INDEX. 499 m iutment, 39. ). f seq. See 27. aeq. 91— Form ley, 30. G6, 290. Book, G6. 17. ed, 67. 1, 75. See seq. in, 78. -Form of, CLERKS— Co».<('h»/«/. to give certain other uotieus to plaintiff — Forms of, 387. to take confessions of debt, 142 — Forai of, 389. affidavit as to, 143- '?onn of. 392. on appeals from awards of fence- viewers, 251. from Courts of Revision, 253. As to juries .• to summon jurors, 104. summons, how and when to be served, 104— Form of, 365. to proceed against collector if jury lists not furnished, 106. to keep separate list of jury cases, 106. to call over names of jurors when sworn, 107. to return jury instantly when ordered by Judge, 107. how this duty should be performed, 107. In coniipcflon idUIi 'TS. afhdavit of, clerk should require, 316 — Form of, 396. DISCONTINUANCE. notice of, to be given by plaintifT, 310 — Form of, 389. if not given, judgment for defendant's coats, 310 — Form of, 422. ill; IL il. amcs on on, i»!>. if, «•_'. ilge, G4, m certain ilineut al- m of, 422. 1 GENERAL INDEX. 50.5 DISIHTTINO NOTICE. to he filed by defendant in certain cases, 77, 270 — Form of, 389. wlien necessary, 77. may be for part of claim, 77, 270. notice of, to be given by clerk to plaintiff, 270, 292 — Form of, 387. when to be filed, 77. unnecessary when certain other notices filed, 77, 270. judgment to be entered in default of, 79 — Form of, 3(52. duty of clerk as to, 78. leave given to file, after time exi)ired, in certain cases, 79. conditions imposed, and practice in such cases, 80. niSQUALIFK'ATlON. of officers for certain offences, 211. DISTRESS. bailiff' to levy, for landlord's rent, 204. certain chattels not liable to, 205. bailiff"s fees for, 206. if goods taken in, replevied, 20C. DIVISION OF CLAIMS. Sec Calse of Action. DIVISIONS. limits and ofhcers of, in Ontario, 429 ct seq. number and limits of, regulated by (ioneral Sessions, 8. not to be altered without notice, 9, 13. how affected by separation of united counties, 10, 12. how established in townsliips where no Court existing, 19. in what, suits may be entered, 59 ct scq. County Judge may order .suits to be tried out of regular, C^i, .303. application to be made on affidavit, 268 — Form of, 331, 332. DOCUMENTS, INSPECTION OF. .SV. Inspection of Documents. DOMICILE. .V(vr Ke.sidence. "DUE." distinguished from " owing," 111. EDUCATIOJN ACT. proceedings in a\)peals under, 251. EJECTMENT. no jurisdiction as to, 41. EMOLUMENTS. Sef ¥ekh. EyUITABLK DEBT. whether garnishable since passing of Administration of Justice Act, 110. Ili!:' 5U6 GENERAL INDEX. 111; •; EQUITY. decisions of Judge to be regulated by, 48. extended meaning of, as here applied, 48. Judge to have cognizance of equitable interests and claims, 49, 201. not warranted in violating positive enactments, 49. fusion of, with law, recommended, 50. EQUITY OF REDEMPTION. in chattel mortgage may be sold under execution, 159. EVIDENCE. leading rules as to, 90. in garnishee cases, power of Judge as to, 137. in arbitration cases. See Arbitration. certified copy of surety's covenant to be, 22. entries in Procedure Book to be, 27. may be taken as to whether title to lands involved, 42. extenuating, may be considered in assessing damages, 47. only to be given of cause of action contained in particulars, 68. same rule applicable to proof of set-ofiF, 88 . what required, if defendant does not appear at trial, 81. persons in Court may be called on to give, 92. when Judge may receive books of account as, 98. affidavit of absent party or witness, 98. witnesses, compelling attendance of. See SunpcENA. fees to, rules for guidance of clerk in taxing, 315. to be paid on service of subpcena, 92. proof of payment to be made by affidavit, 93. form of affidavit, 396. where subpoena obtained from Superior Court, 94. scale of fees in such cases, 94. forms of summons to, 855, 356. Commisnon to take evidence : Judge to have power to issue in certain cases, 95. object of, and method of procedure, 95. not applicable to residents of Ontario, 96. sections of Evidence Act applicable to, 96. transmission and proof of, 97. costs of, to be in discretion of Court, 97. to be taxed on County Court scale, 97. EXAMINATION. of judgment debtor. See Judgment Summons. EXCESS. ABANDONMENT OF. See Abandonment of Excms. EXECUTION. writs of, to be issued by clerk, 27 — Forms of, 369 et scq. retjuest from plaintiff necessary, 146. not to issue on judgment more than six years old, 321. how to be directed, 71. if required to be executed out of division where issued, 274. m m ' GENERAL INDEX. 507 s, 49, 201. rs, 68. )4. EXCE«R. 21. issued, 274. KXECUTION— CoH/!t«Merf. to issue within 50 dajs from service of summons, 101. except where new trial ordered, 101. or postponement granted by Judge under section 108... 101. how application to be made, 101, 314. form of summons and order on, 423. to issue fifteen days after judgment in ordinary cases, 317. forthwith when judgment .signed in default on special summons, 317. at such time as Judge may order, if suHiciont cause shown, 155. how and when application to be made, 155. where to be enfo'-ced, 64, 147, 149. when to be returnable, 1 53. cannot be executed after time for return expired, 153. liability of bailiff if this provision violated, 154. for not returning in time, or making false return, 213. renewal of, provisions as co, 154, 321. clerk not authorized to renew, unless at retiuest of plaintiff, 154. What nmij be mzed. and sold under : interest of mortgagor in goods, 159. See Chattel Mortgage. goods and chattels of debtor, with certain exceptionb, 160. exemptions from, 160 et seq. interpretation of " goods and chattels " in connection with ex- emption clauses, 160. with reference to chattels real, as leases and terms of yeais, 160. what articles entitled to benefit of , 161. limitation of in certain cases, 161. family of deceased debtor to retain exempted articles, 161. difficulties in connection with, discussed, 161. as to value of article sought to be exempted, 162. how value to be determined, 162. exempted property may be disposed of absolutely, 162. judgment in Jweedale v. Applelon on this point, 163. ihe Crown not bound by, 163. money and seciirities for money liable to, 163. secuiities for money, what included under, 1 63. bailitl to hold for plaintiff's benefit, 164. plaintiiV may bring suit on, in defendant's name, 164. original defendant not to discharge debt, 165. party enforcing to pay or secure costs, 165. overplus to go to original defendant, 165, sale under, duties of bailiff as to. See Bailiffs. manner of conducting in general, 166, where goods of peculiar nature or great value, 1 66. not void, if held in different division from that in which goods taken, 166. not to take place till eight days after seizure, 167. purchase by officers at, absolutely void, 167. I 508 GENERAL INDEX. ii'i !ir S't ', hi, Ell n EXECUTIONS— CoM^ return of, ordered by legislature, 38. to form part of consolidated revenue fund, 38. FELONY. person forging seal or process of Court to be guilty of, 208. FENCE-VIEWERS. duties of officers on appeals from awards by, 2.51. form of execution under Acta respecting Line Fences, 378. FIERI FACIAS. .See Execution. FINES. clerk to keep account of fines paid in cash book, 28. another book necessary for fines payable, 28. Judge to examine account of, 28. , verified account of, to be delivered to county attorney, 29. may be imposed on persons disobeying subpa-ua, 9.3. how levied and applied, 93, 214. minute of imposition of, 368. on jurors disobeying summons, 105. minute of imposition of, 367. for contempt of Court, 209. minute of order for imposition, 367. for resisting officers, 210. justice of peace may enforce, 214. disposal of, 224. FOREIGN PROCEDURE BOOK, 66, FORFEITURE. See Penalty. FORGERY. of seal or process, how punishable, 208. GENERAL INDEX. 511 FORGERY— CojiS. one of Hevnral may be summoned, 120. Sep ArrACHMENT of Debts. JUDGES OF COURT. ' powers of, as to time and pliioe of holding Courts, 6. as to postponemunt of proceodinga, granting amendments, &o., 138. uy to impriHonnieut of judgment debtors, how should be exer- cised, 173. County Judge may establish now divisions, and how, 9, 10. may be County .ludges, or Junior, or Deputy Judges, 14. appointment and powers of, 14. distinction between, as to nature and extent of authority, 15. liability of — distinction between judicial and ministerial duties, 14. may perform judicial duties in other counties than tlieir own, 14. may appoint barrister to a't as deputy, 16. appointment to Ije notified to Lieutenant-Governor, Hi. how long to continue, IG. form of, 410. to appoint and remove clerks and bailiffs, and approve security, 18. forms of direction and appointment, 410, 411. liable to action for neglect as to such security, 19. to notify officers as to death, &c., of their sureties, 22. remarks as to responsibility thus cast on Judges, 'J'2. as to form aiul service of notice, 23. to require verified account of fees from clerk, 30 — Form of, 399. jurisdiction of. See Juri.suiction. decision of, to be tinal and conclusive, 48. to be regulated by "equity and good conscience," 4 ' interpretation of these words discussed, 48. may alter or modify order for payment previously made, i 7. bearing of this provision on finality of Division Court judg ments, 177. actions by or against, where to be brought, 65. contempt of Court, empowered to punish by fine and imprison- ment, 209. to what kind of contempts this provision applicable, 210. •See JuuuMKNT, Tkial, New Trial. JUDGMENT. duration of, considered, 5. where to be continued on separation of counties, or alteration of divisions, 10, 11. not to be set aside on technical groumls, 144. OENKRAr, INDEX. 515 orin of, 402. r OF Dkbts. luuiita, &o., lid be exer- 10. lority, 15. I duties, 14. own, 14. Hi. security, 18. 2-2. of, 399. Court judg imprison- !, 210. dteration of J U DO -M K WH—Conlinited. by default, on special Hummoiis, ITi. when to 1)1' (.-ntiTcd, 77, 270. practice to bo fcdlowml l)y clerks in entering, 78, 270. may issue for part of claim undisputed, 78. certain papers to be Hied before enterinK, 78. when may be set aside and trial ordered, 79. alHdavit of inerita necessary, 79. case where some defendants have confessed, 271. execution on. .SVi! Exkcittion. delivered by .Juiige at trial. may be oiven instanter or postponed, 9JJ. time and manner of payment, 99, 317. again.st garnishee, 121. not to be given till certain pa])ers filed, 133. Judge may set aside though more than 14 days have elapsed since trial, 1H8. on award, to be entered without .Judge's order, 140, 317. on confession of debt, wlien to be entered, 142. in actions by or against executor or administrator. See ExECUTOK .\Ni» Administrator. costs in actions on, 144, 207. cross-judgments, may be sct-olF against one another, 148. but must be between same parties in same rights, 148. order to be made after notice to opposite party, 148. forms of entry of satisfaction, 420, 421. transcript of. .SV Thanschii't ok Judumknt. revival of, summons may Ix' obtained for, 153, 321. forms of summons to revive, by, and against executor, 350, 352. of judgment in such eases, 36(5. of affidavit for, 397. Forms i>f in'inutr.'i i)f judgment in Procedure Bool: against defendant in general, Sfil. by default on special summons, 362. where some defendants served with special summons, and others iiave confessed, 362. of nonsuit or dismissal for want of prosecution, 362. on award, 362. for defendant, 3fi2. on set-off, where satisfied in part, 363. for balance of set-off, 363. against executor. See. Executor and Administrator. in replevin, 366. on interpleader, 367. wliere postponed by Judge, 368. on confession before, and after action, 417. against defendant for plaintifl's costs of preparing for trial, 422. for defendant's costs where plaintiff has not proceeded to trial, 422. JUi MENT DEBTOR. examination of, in general. See Judoment Summon.s. uuder transcript of judgment to County Court, 159. 'WW ! i 61G GENERAL INDfiX. H' 1 SSI' ' li fM : ■ (i; !l' JUDGMENT su\nroNs;. who iiijiy obtiiiii, iiiid when, and for what purposps, 1(58. application loralxmld lie in writing. .S47— Form of, 347. from what Court to ho ohtainiul, 108. form of summons, 348. issue jinil return of execution, not condition precedent to obtainine, 1(18. in what i-ases transcript of judgment to be sunt out of county, 108. service of, liow ell'ecteil, l(i8, 2iH. not necessarily jiersonid, l(i8. parties and witni;sscs may be examined on o.ath, If!'.), oxaniination to be held at Judge's chaml)er, IGU. practice as to, 170. costs of, in general to bo costs in tlie cause, 170. no provision fur payment of debtor's exjjenaea, 170. eflect of examination and disciiargo of debtor, 170. atlidavit necessary before new summouH issued, 170. case of creditor issuing summons, not hvin^ jtoliiiiKii/ creditor at time of examination, 170. what atlidavit should eoutf in, 171. in what cases debti)r may be connnitted to gaol, 171 <( xcij. no ol)je(;ti(>n that evidence on oath not taken, 172. thisiirovision not intended to revive imprisonment frndibt, ITS. but for purjiose of iliscovery and i)uiiiahment of fraud ami contempt, 17:i. order for comndtment should not go as of eoursi;, 1715. summons to debtor to show cause should first be obtained, 174 -Form of, :54'.t. no personal privilege to jirofoct from arrest, 174. discharge in iiisolveiu'y not to prot. order for conniiitiiient when to be made, 17."). ulien wilfulness of non-attendance ))resumed. 17"'. hardshiii of this rule on dcditor in some cases, IT^i. when compensation t be awarded to debtor, 17;'). warrant to be issued by ei .'k on order being made, 17'). form of in default of ajjpearance, ;}S0. after exanunation, 381. endorsement tiiereon, -ind intention of, 17(!. how long to continue in force, and how renewed, 17''. when may be executed, 17<). constables and jteaee oHi.'crs to aid in execution of, I"'!, duties of baililfs and clerks as to. S,f {{aii.IU's, Ci.r.KKS. when and hoiv debtor in custody to be discharged, 177. ! crtilicate of satisfaction to be signed by clerk, 177 Foriii of, li.sli. Judge may alter or modify order for payment previously made, 177. may direct payment of debt by instalments, 177. i.eaiingof this provision on i|nestion of linality of Division ("ourt judgnicmts, 177. Judge may t.ike ^irocecdings on day of trial sindlar to thostf taken on return of, 177. usefulness of these ju'wers, and manner in which they should be exercised, 178. . ) . 7:!. il. I7r.. , 17'!. «»f, 17ti. I'J I.KKKS. 77. 177 I''(HIII in.'ii f. 177. isidi 1 Court 108( tukeii hey slioulJ GKNERAL INDEX. 517 JUDGMENT SUMMONS -Comeyond. Hcc PuomBrnoN. statutes regulating practice of Courts cannot give, 39. objections to, will not lie after judgment by default, 30. ; may be raised after new trial granted on such trial, 39. defendant should tile plea showing, 39. wlieii no jurisdiction, no costs can be granted, 39. wiiere several causes of action, srinhle that Judge may strike out tiiose over which he has no jurisdiction, and proceed with the rest, 40. Judge cannot by amending particulars give, 40. consent does not give, 40. tiiis doctrine evaded by theory of ac([uiesceuce, 40. iieads under which jurisdiction noticetl, 40. Aclio)u^ in which I)ici,sion Courts hare no jiiri/ofifhoii, : for g:!nd)ling debt, or intoxicating li([Uors .drunk in tavern, 40. on notes of hand given for sucli debt or li(juors, 41. of ejectment, or involving right or title to hereditaments, 41 . exception in case of interpleader issues, 42, 201. where any toll, custom, or franchise comes in (juestion, 41. corporeal and incorporeal hereditaments delined, 41. distinction between " rigliv " and " title " discussed, 42. where jiOKticiitiiDn of lands i . ipiestion, 42. title must be shov.n to conie Imiiii Jidc in fpiestion, 42. wiiere validity of will .nay be disputed, 42. alHrnuitive proof apparently not requisite, 43. for nialii'ious prosecution, 43. libel or slander, 43. erim. con., seduction, or breach of promi.se, 43. a'^ainst justici; of peace for anything done in execution of his office if olijection made thereto, 43, when and how obji'ction should be made, 43. AilioiiM ill ii'hirh Diri.iiiiii Caur/s hare jitrim/ir/inn .- perMuial, where amount claimed not exeeuding .?10...43. deliu' (I and (dassilied, 44. effect of wiirds " amount claimed " discu.ssed, 44. oi" words "debt or damages claimed" in repealed statute, 4r». torts only covered by tliis sub-section, 4'). distinguished from contracts illustrative cases, 46. what neeessaiy to constitute, 47. w rii^ 'Ml 518 GENEIUI, INDEX. I whore balance IjAi.ami; ok Ai- 48. JURISDICTION-Oontinaed. involving; debt, account, breach of coutnict, &c. claimed not exceeding §100. ..48. on bonds given in proceedings nnder Act, l!t4. Sa: COUNT, replevin. tSce Rkvlevin. Judge to hnve solo jurisdiction except in jury ciiscs, IS. to make orders "agreeable to ((juity and good conscience,' reference of this ])rovi8ion to " natural equity," 48. to adjudicate upon ecjuitable interests, 4H. decisions of, to be final and conclusive, 49. not justified in violating legal principles, 49. no privilege to exempt from, ftl. presumptions will be made in favour of, ;'>!•. cause of action not to be divided to bring suit within, 52, Cause of ArrioN. none, where amount of unsettled account exceeds 9400,., 55. Balance of Accov.nt, AnANnoNMF.NT of ICx(k.ss. in what divisions suits to be entered, 50 ct scq. Srf |)i\ isions of arbitrator. Ser ArbiTkation. on appeals from awards by fence-viewers, 251. garnishee proceedings in Superior or County Courts, 256. proceedings under Public Schools Act, 259. JUROR. Sec JvRY. JURY. may be had in certain ca.se8, 102. parties to give notice to clerk, and pay fees for, 102. form of notice, 417- may be had when new trial granted, 102. Judge cannot dispense with when called by parties, 102. may discharge, if not agreeing, 108. in interpleader, 202. , when new trial had, 313. separate li.st to be made out of cases to be tried by, 1 06. Judge may order, to try di.sputed fact, 107. duty of clerk with reference to such jury, 107. .Sr^ S>r Jurors . f It & who may be, 103. mode of selecting and summoning, 103. fees of, 35, 327. clerk to summon, for ejvch (Jourt, 104. unneces.sary, where jury not demanded by any suitor, 104 form of summons, 355. either party entitled to challenge, 104. different kinds and grounds of challenge, 105. may be fined for diFrbeying summons. 105. form of minute of impo.sition of line, 367. exemptions and disqualifications, 105. five to be impannelled, 107. allowed to make affirmation instead of oath in certain cases, 107. mu^ re balance N<'i; (JK A( - I'licc," 48. 4S. , 52, ,SVr i...r.r). .9f, ISIONS. suitor, 104. cases, 107. iENEKAL INDEX. 519 J I'll Y — Conlinued. form of oath, to jury culled by parties, 393. to jury called by Judge, 394. to officer conductiuf,' retiring juror out of Court, 394. to officer when jury retire to cousider verdict, 394. JURY LIST. to bo made out by clerk, 106. to be first disposed of, 107. JUSTICE OF PEACE. may punish disturbers of order in (Joiirt, 33. no jurisdiction in actions against, if objection taken, 43. how and when objection should bo taken, 43. may take affidavit and issue warrant for seizure of goods of abscond- ing debtor, 182. liable to action if affidavit not made and filed, 183. entitled to notice of such action, 183, how to enforce fines, 214. protection ol, from vexatious actions, 223. Si-e (4KNEKAL Sessions. LANDLORD AND TENANT. when tenant prevented from denying landlord's title, 42. claim of luudlord for rent, sectioiis as to, lO.^ rlscq. interpretation of "landlord," "iigent," in these sections, 195, 19(). interpleader by bailiff in respect of, 190. Sfr Interpi.eadeh . to be in writing, and delivered to bailiff", 203 — Form of, 342. terms of holding should be fpecitiod in, 203, how bailiff to proceed as to, 204. .SV*" Raii.ifk.s. does F.xemption Act apply in such cases, 204. to have priority over claim of execution creditor, 207. proceedings if replevin made of goods distrained, 20()'. LANDS. rjf judgment debtor, reached by transcript of judgment to County Court, 156. See Transcript of Judgment. LEASE. is it seizable under execution, 160, LEGISLATION AFFECTING DIVISION COURTS. sketch of, up to time of Con. Stat., cap. 19. Scr PreJ'ao to 1st Ed. alterations made by various statutes since that time, 3. LEVY. Sec Execution. LIABILITY. of Judge for mistake in law, 14. of officers for things done in pursuance of Act, 218 et seq, of bailiff for negligence, 286. i I I 1 1 I s'' i' I !;; li I III • 520 OKNEKAL INDEX. LIBEL. no jurisdiction in actions for, 43. LIEUTKNANT-fiOVKRNOR IN COUNCIL. to regulate holdinj; of Courts in (Certain cases, H. approval of, necessiiry to formation of new ilivisious, 10. LIMITATION OF ACTIONS, 219 ct seq. ,S,t Actions. LIMITS OF DIVISIONS, 429 ct srq. LIQUOKS, MALT OH SPIRITUOIJS. drunk in t.ivevn, no jurisdiction in actions for, 41. or in actions on notes given therefoi', liOi. MALICIOUS PKOSECUTION. No jurisdiction in actions for, 43. MANDAMUS. nature of writ, 472. who may obtain, 472. when to be applied ior, 472. grounds for granting or refusing, 1 4, 472. to clerk of Division Court, .31, 47.'{. method of obtaining, 473. costs of application for, 474. appeal from decision of Judge, 474. MILEAGE. not allowed to bailiff for travel outside his county, 32. exception to this rule, 3,3. bailill'to endorse on warrant, when delivering prisoiui', 170. MINOR. may sue personally for wages to amount not exceeding ■^'lix). ..;')!. construction of this clause discussid, t>\. " next friend " to bring suit on behalf of, 52, 305. to bo liable for costs, 52, 3((5. form of undertaking by, 331. no order necessary for appointment of, 305. MISCONDUCT. of ofHccre, how punishable, 210, 297. See Extortion, XK(!i.iia;M i;, MISTAKE. Judge not liable for, if acting within jurisdiction, 14. MONEY. of suitors, clerk to keep account of in Cash Book, 28. not to be withheld by ollieers on any pretence, 29(i. directions as to transmission of, 322. precautions proper to be taken by clerks as to, 322, 323, when made on transcript of judgment, 151, 322. -Ill } Iti u CENKItAL INDRX. 521 /<). W)...iil. (:i.i(a;Mi;. 23. MC ^ E\— Continued. unclainii'd, tlcrk to make list of, 30 — Form of, 400. to be trausmittuil with liat to County Attonu'y, o. NEW TKIAI.. ■ludgc may grant, and when, 100, .'11 1, apjilieation for, how and when to be made, 100, .'ill. regulations as to practice on, 312. importance of, considered, 100. princi[)al grounds on which may lie granted, 100. right to, to i)e governed strictly by statute, 100. in garnishee cases, may be granted even after 14 days, 100. I il ! ; i !' ii n< '-i m m if" '; Ipi 111- If 522 CtKNKRAL INDiX NEW TllIAT^-(7o»//(nMe(/. to Quaker or other person allowed by law to affirm, 393. to interpreter, 393. to jury, 393, 394. to officers in charge of jury, 394. to judgment debtor, 394. to deponent swearing to affidavit, 394. OFFENCES AND PENALTIES. See Penalty. OFFICERS OF COURT. to deliver up papers on order from .ludge, 11. not to be pnrchasers at bailiflPs sales, 167. ])enalty for resisting, 2l0. provisions as to protection of, from actions, 2\b et seq. ~i vision Courts in Ontario, 429 ct »cij. list of, for Divi See BAIUFF8, Clkrkjs. ORDER BOOK. suggestion that clerks should keep, 289. OVERCHARGE. See Extortion. PARTICULARS OF CLAIM. to be entered by plaintiff with clerk, 67. amendment of, only granted on payment of costs, 67. Judge cannot, by amending, give jurisdiction, 40. to be annexed by clerk to summons and copies served, 68. evidence to be given at trial only of cause of action shown in, 68. in interpleader, 196, 276. Forms of particulars : in cases of contract, 338. iu cases of tort, 340. inactions against clerk or bailiff and sureties, 341. on interpleader, 342. PARTIE.S. amendments when wrongly joined, omitted or described, 299 et seq. PARTNERS. one or more of several, may be sued, 74. bailiff may seize partnership property on Judge's certificate, 74 —Form of, 420. case of joint contractors, and executions against in Superior Courts, 74. "cannot be found," meaning of, 74. set-off in such cases, 318. only undivided share of defendant can be sold, 75. unsettled balance due by one, to another, not garnishable, 110. of clerk or bailiff, not to act as agent of party in cause, 297. r)24 (iKNKKAL INDEX. 1 PAYMENT. letluotion of account by, 65. (lut'.Hti(tn (lisuu.sHed witli reference to unsettled accounta, .1,5 el si-q, wliat equivalent to, 5(5. liy ^'iirnishce, how restrnincd, 118, 281. power of Jutlf;e to direct, in garnishee cases, 128. of amount clue, to supersede execution, 148. .should bo made to bailiff holdiufj; writ, l.'iO. order for, may be modified or altered by Judge, 177. 'S''*' .Monkv. PAYMENT INTO COURT. effect of, 84. IfVtcH tcmlcr pleaded : what constitutes good tender, 84. when plea to be filed and money paid, 84. to be sufficient disputing notice, 84. ' form of plea, 84. notice of plea and ])ayment to be given l)y clerk to plaiiititr, 85— Form of, US8. amount to be paid to plaintifl', 85. how disposed of where phiintiH' nonsuited, 85. plaintifl jnay proceed for whole demand on notifying clerk, 85. rule as to costs in such caseii, 85. l\ I, Wlun fender not jilcaifed : defendant may make, and when, 86. clerk to send notice of, to plaintiff, 86 — Form o when money to be paid to plaintiff, 86, ;i07. plaintifl' may proceed for balance, and when, Sti, when liable for defendant's costs, 87. by garnishee, 117. by executor, 285. in replevin, 278. f, :{s; lit/. PENALTY. for wrongfully getting or holding Court books or papers, 11, :!1. on ofHcer for neglect to furnish security, 2.'J. for negligence in general, 2C 7. for purchasing interest in suit, 297. for acting as agent of party in suit, 208. on bailiff for neglect to pay over monc^ys received, 'IW. for not returning execution in time, or making false return, ■Ji.'l. for resisting officers, 210. for breach of peace or disturbance at Court, ;i;j. on juror for disobeying summons, 105. on c(dlector for neglecting to furnish jury lists, 106. for disobeying judgment summons. .SVr .JiixiMKNr .Si'.MiMon.s. for forgery of Court seal or process, 208. PERISHABLE GOODS. seized under attachment, disposal of. See Abscondino Debtor. OEN^RAL iNDfiX. 626 PERSONAL ACTIONS. liow detiued and classified, 44. meauinf{ ol' term discussed with reference to Division Court juris- diction, 48 et acq, I'KHSONAL SERVICE. of onlinary summons, when necessary, 121. of fjivrnislicc summons, may be dispensed with by Judge, 121. of judgnunit summons, when necessary, 1(J8. of summons before issue of attachment, efl'ect of, 192. PLAINTIFF. aniendnu'uts where improperly described, or joined as party. 2119 rf. seq. rLuiiiEs riiooESS. wliiit, and how dated, 2(58. fees on, IJOD. POSSESSION. of cliuttel iiiortgagiu', ellect of, KiO. of hinds, (juestion of jurisdiction in case involving, 42. I'OSTAGES. costs in the cause, 71. deposit on account of, should be made, 304. of letters and notices to be prepaid, 314. POSTPONEMENT. of trial, .ludge may grant order for, 311. See Trial. application for, how ami when to be made, 311. of garnishee proceedings, power of .Judge to grant, 1.S7. POUND-KEEPER. when replevin will lie against, 233. 1 IMUMARY CUEDITOR, PRIMARY DEBTOR, dctiuition of, 112. See ArrACU.MKNT ok Dkuts. PIMORITY. of executions, 145, 288. as to claims of attaching and non-attaching creditors, 185. primary creditors rank according to, 129. PIMVILEOE. not to exempt from jurisdiction, 51. not to protect judgment debtor from arrest, 174. PHOCEDUREBOOK. to be kept by clerks, 289— Form of, 327. formal order should be entered in, when divisions altered, 11. effect of omission to enter order for commitment in, 27. 526 GENERAL INDPIX. PROCEDURE HOOK— Continued. name of clerk to be signed on every page of, 27. entries in, or certified copies thereof, to be evidence of proceedings, 27. PROCEEDINGS. wliero continued on alteration of divisions, 11, 12. in what Courts to be entered, 59. not to be set aside for want of form, 144, stay of, when new trial applied for, .312. how application for, to be made, 314. in interpleader matters, when granted, 199. no order necessary when leave j^iven to take, 303. setting a.sido, discretion of Judj^e as to, 31.3. how a))plication to be made, lili. form of summons nud order, 423. PROCESS. of Division Courts runs throughout the Province, 120. forgery of, how iiunisiiable, 208. under seal, to be signed by clerk, 267. first, to be commencement of action, 207. alias and pluiies, how to be dated, 268. when second may issue in place of first, SO.*). order from .Judge ne(!essary in some cases, ;iO(i. duties of clerk as to issue of, .300. renewal of, fees on, .30!\ PROCESS BOOK, .sv, Hailikk's Proi-khs Book. PROHIBITION. nature of writ, 467. who may apply for, 4(57. when Court will grant, 467. when to be api>lii'd for -effect of delay, 468. grounds for obtaining writ, 46y. method of obtaining, 470. application to be made on affidavit, 470. form of atlidavit, where defendant sued in wrong Division Court, 478. where title to land brought into (|Ucstion, 478. costs of application for, 471. summons and order for, forms of, 479, 480, PROMISSORY NOTE. Sn- Notks of Hand. PROTKCTION OF OFFICERS, 21.1 W ««g. PUBLICATION. service by, recommended in certain caees, 128. of .iward. .SVc AuntrnATioN, GENERAL INDEX. 527 PUBLIC OFFICKRS. Act respectinj}, to ftpply to securities given by officers, 24. PUBLIC .SCHOOLS ACT. jurisdiction of Division Courts in proceedings under, 259. RAILWAY COM P AM V. Se<- Company. RECORD. Division Courts, not Courts of, 5. RKFERKN'CE. .^ee Arbitration . REGISTRATION. of documents sent by post, when necessary, 311. Sfi' Posta«E3. REMOVAL OF (JOODS. .See Abscondi.no Debtor. REiNEWAL OF PROCESS. See Prockss, Execution. RENT. claim of landlord for. See Landlord and Tenant. action for balance of, when within jurisdiction, 50. REPLEVIN. jurisdiction of Division Courts in, 51, 230, '234. where title to land involved, 234. of County Courts in, 234. how far provisions of Act applicable to Division Courts, 230. delinitiou of, 51, 231. practice in, how regulated in Division Courts, 247, 277 el seq. will not lie for goods seized under attachment and in custody of clerk, 190, 233. of goods distrained for rent by bailiff when levying execution, 20G. sliort title of Act, 231. when goods repleviable, 231. liy executors, 232. ' notice of action not necessary in, 232. measure of damages in, 232. cannot l)e joined with other forms of action, 233, 277. goods seized in execution not repleviable, 233. will not lie for goods seized on behalf of Crown, 233. writ of, when and where to issue, 234, 236. when order for, required, 236. atHdavit to bo made, 236— Form of, 337. when writ to issue in first instance, 237. affidavit to be made, 237— Form of, 337. how baililf to proceed when writ issued without order, 242. if goods concealed, 243. when property distrained for rent or damage feasant, 238. altidavit in such case, 238. discretion of Judge on application for, 239, r^ 528 GENERAL INDEX. I ' ;' I' in]V\.K.\'lS—('ont!nih,l. m;iy isHiu; unltT for, uxLc|)t iu Viirk, 23U. i»i!< III n Jill rill : to 111' lirst proLiiHs, iJfiS — Form of, H4r». I'oiiiliiiH'H writ with siiiiiiiioiib to ili-ft^niliiiit, '2^(1. Iiow ti'sti'il .111(1 wlifii ri'tiiriial)l(!, '240. not til 111! si'rvnl till n-iiU'vy iniuli', '2I'J, '2~S. to lii^ rotunii'il with hcIu'iIuIc iimu'xiiil, •2\i, "27'.' l''iirni nl, ||)|. Horvici' of, how to l>o ollVi^toil, '24'), '2"!i, l)ro('ut'ilin;,'8 whi'ro (liilVnilivnt (Miinnt Im Mcrvcil, '24(!, '27!i. wlicri) (li'fi'iiiliiiit iloi's not !iiiii('.ir .-vftir ^crviit?, '247. Iioml to lio tiikiMi Iiy l);iiliir liclbrc rcplnvyin;:, '211. '27S. iluticM iif liiiilill'iiH to, '2i\. when :i.ssi^niilili' to
  • l'\inn of, J'2(i. claim in, for wronu'fnl detention, or taking and dctt-ntion, 248— Kovm of, :!;"i.S. payment into ( 'ourt, oH'ect of. 278. lees in, .'WS>. JiiilijiiK lit ill : for iilaintiir, (urm of, .SfiO. for defonilaiit, wlu'n distross i.s for rent, '277 — I'nrm of, :?(i(!. wlien distress is for d;vmaj,;(' feasant, '277 -Korm of, !M(i. ill other cases, '278 — Koriii of, ;{•!(>. form of execution on, :i7ii. i| \ i t I i ' 1 l>i!< l!|; nE.SIDKX('K. of defendant, how aH'cctint,' division where action hmught, (K) il .v/. what iiieimt by, (il. distin;i,'uislied from "domii'ile," (5'2. of imlilic comiianv, f)2, 1"24. of j^'ariiishei', to determine division whcnec Humiiions to issur. 1'2;?. in ease of joint garnishci's, l'2."{. of riiihviiy eompany, said to Ix! at its lu^ad otlii'e, I '21. where 8ubdine leased Ity coiiiiiany, i'2l. of banks and other corporatiuns, 124. RKSISTIN(; OFFICKU.S. [lenalty for, 210. REVISED STATIJTK.S OF ONTAb'TO. Division Court Act a jiart of, '2. when provisions of rejiealed Acts to prevail, !2, 3. eontiriiicd liy 41 N'ict., cap. . S.VIii'",. >'<■ KxKrrnoN, Baii.ikks, Abscomunu Debtok. Si-;AL. eacli Court to have, 4. wliiit constitutes valid sealing, 4. •Iud<{e to choose and appoint, 4, protected frr)ni forjjery, 4. SKCUItlTIKS. to lie f,'iv(!u liy clerks and bailiff's by covenant with sureties, 18. liond to Crown no longer necessary, 18. covenant to be approved by Judge, 1!>. f^iKuantce bond of company may be given in lieu of, 19. icipiisites of, 19. not avoided by non-residence of sureties in Comity, 19. force and elfect of, discussed, and cases as to, 20 I't seq. how may be sued on, 20. non-execution by principal not to relieve surety, 21. to be tiled with clerk of peace, 20. non-tiling not to relieve surety, 21. iivailal)le tetany iierson sulfering damage, 21. ccrtitied copy to he evidence of, 22. death, removal or insolvency of surety provided for, 22. enures to benefit of Crown, 22. |& actual dania<;e must be shown in action on, 22. lurctics may discontinue suretyship, and how, 23. 3-1 r 530 GENERAL INDEX. U SECURITIES-Co»i0. by mailing or publication, 128. personal. See Personal Sekvii e. substitutional, in garnishee cases may be allowed by Judge, 121. proprie'.y of txtendmg this provision to other cases suggested, 121. SET-OFF. in what actions mi>y be pleaded, .S7. notice of, to be given to plaintill', 88, 30(J — Form of, 387. regulations as to time and mode of giving, 88. to be accompanied by particul.UB, 88, 30(5 Form of, J89. defendant may have, tliougli liis ilaim beyon^. jurisdiction, 87. doctrines of e(iuity to be followed in cases of, 88. no evidence of, allocable except as contained in particulars, 88. practice where proved to exceed anu.unt due to plaintill", 89, 31 f» legislation on this subject considcLi'd, 318. defendan' may abandon excess, ',i\S. debt which ma v be subjtut of, is attaihable, 109. by partner when other partners not sued, 317. of cross-judgments. Sec Juuc.'B.nt. SHERIFF. money in hands of, attacliable, 110. interpretation of, to include baililF in certain cases, 148« GENERAL INDEX. 531 ^HKlilFF^Conthiutd. how to proceed under writ of attachment, when goods seized under Division Court attachment, 188. SLANDER. MO jurisdiction in actions for, 43. SOIJCITOIt. may not, while in practice, act as clerk, 18. how far privileged from arrest, 174. SPKCIAL SUMMONS. Se^. Summonb. SI'IRITUOUS LIQUORS. Sc- layuoKs. SPLITTING DEMAND. Srr (aisk op Action. STAKEHOLDER. .S'ec Gamumno Dr.irr, STAMP. apparently a sulficient sealing,', 4, STATUTi: OB' LIMITATIONS. debt barred by, cannot hesct-otl, 87. how and when to be pleaded '^'<. notice to ho given to pla iff, 306— Form of, 387. STATUTORY DKFENOKS. how and when to be pleaded, 87. notice of, to bo given to plaintiff, ;{()() Form of, ,387. to primary creditor, iK'ci'Hs.-vrv, I HO. how to be served, ;{<)(). See Set-okk, Statittk ok FiiMnwTluK?, STAY OF PROCEEDINGS. Sre P..oi eki)IN(..s. STIPENDIARY MAGISTRATE. where actions by or against to be brought, 65. SrBP(ENA. clerk to supply to suitors, 89. to give copies, 92. service of, how to be made, 92. how proved, 02. fees for, 92. penalty for disobeying, 93. how fine levied and applieil, 93. form of minute of imposition of fine, 368. action will he against person disobeying, 93. when to be obtained from Superior Court, 94. scale of fees in such cases, 94. ,r I '■'I m^. K 532 (GENERAL INDEX. SUMMONS. orij,'imil, how to be printed, 291. to 1)0 issiind by clerk and copies made, '26. to be forwarded to foreign division in certain cases, 66. ordinary and special, what meant by, 267. (Jrdinary summons : how to be issned and numbered, (i.s, '2(57. service of, provisions as to, 68, 70, 200, when to be personal, 68, 71. when not necessarily personal, 68, 60, 71 . Ser Pkr.sona !, Sek viru. form of, 'M'i. Special siaiunoiis : when and how to bo issued, TTi, 267. to be used in suits for recovery of " ilcl)t or incuiey demand,'" 7."), 267, similar to specially endorsed Hummons in hij^her Courts, 7.'). nature of claims in whicii to be used, 76. clerks to use when poss.jle. 289. particulars of claim, ami notices to be annexed to, 76. forms of notices or warnings, 31.'). rules as to practice in connection with, 26!» r/ sn/. when to be returnable, 77, 269. defendant to tile disjmting notice, or in default judgment to bf entered, 77. what to constitute suiiicient disputing notice, 270. Si'f OlSI'l'TINd NoTICK. revival of action on, 274. judgment on, iJwc JuiMniKNT. form of, 344. Other forms of summons: in replevin. .SVr ItEl'i.KviN. in iiitcrpleailer. Sec iNTKitn.KAnEU. against garnishee. A'cc ArrAriiMKNT ok Dkhts. to examine judgment debtor. Sfc .FrixiMKN r SrMMoNs. on interlocutory application, 314 — Form of, 123. for costs not paid in iirst instance, 36 — Form of, 418. concurrent, when may issue, 268, , .SUKETY. See Securities. TENANT. Sec I.andlohu and Tenant. TENDKK. legal, what necessary to constitute, 84. plea of. -SVc Payment into CornT. of amends by otHccr when sued, 222. procedure in such cases, 223. TERM OF YEARS. is it seizable under execution, 160. ' GENERAL INDEX. TITIJ', TO l-AND. no juiisiiiitioii iu uaso involving (question of, 41, I'Xifptiou .18 to interpleader issues, 42. distinguished from right to land, 42. docs " ri>,'ht" include " possesaion, " 42. must b»- provcil Imniijide to come in (|uestion, 42. wlicn tenant prevented from denying landlord's, 42. TOLL no jurisdiction in ({ucstion involving, 41. TOOLS. interpretation of, with reference to exemption clau&es, Ifil. 533 1 ;in\ limits of jurisdiction in actions of, 44. distinguished from rontrnct, 46. wh.it ni'ccssary to i' iistitute, 47. meiisun- of damages in actions of, 47. forms of particulars in cases of, 340. TK.VNSCIUrT OK .lUUOMKNT. against Judge may be sent to his own county, (i. defects in, as afTecting validity of proceedings under, 15ti. cases on this subject discus-sed, 166. omission of statement of issue and return oiji.J'a., 15<{. of statement of proceedings in caus., 156. where execution not issued from Court in which judgment obtained, \Tu. to become judgment of County Court for all purposes, 15S. memorandum of, to be entered by clerk of County Court, 1S8. particulurs to be contained in, 158. Hi I m . »)■ if I' !ii III 534 GEyi^^TlAL INDEX. TRANSCIUIT OK Jl'DCMENT -CW/nmf. book containing, to be accesaible to all persons on payment of fee, ir.8. ]irosuinptioj made of clue filing and entry, 158. all remedies of County Court may be obtained on, 159. after Ixing obtained, all proccedinga to be taken in County Court, 159. prineipi'.l object to reach debtor's lands, but other remedies also given by, 159. judgment debtor may be examined, or imprisoned on default, 159. garnishing onlers obtained on, 1.59. personal ]iroperty, not liable to seizure under Division Court execution, may be reached, 159. Forms : transcript of judgment on ordinary summons from one Division Ci art to another, 386. of judgment on sjH-cial summons, 384. of judgment to County Court on apecial or ordinary summons, 38"). TRESPASS. i(h ini'ioy what meant by, 219. THESl'ASSEPv. person making levy not liable as, in certain cases, 218. THIAI,. .Judge to give decision at, SO. defendant to appear jicrsonally or by agent, 8(). all persons empowered to act as agents, 83. proceedings if defendant does not aj)pcar, 81. postponement of, n.ay be granted, and when, 82, 311. practue on sucli application, 314, now. See Nkw Tiual. UMPIHE. Set: ARniTKATioN. UNCi.AIMKD MONEY. .S'te Money. UNITED COUNTIES. use of these words in forms, 3 seniority of, how regulated, 10. U NORG A N IZ !•: D TRACTS. how far rules applicable to, ,124. UNSETTLED ACCOUNT. .SVc Account. VAKIANCE. See AME.vr).MENT. ' VERDICT. of jury to bo unanimous, 107. Judge may discharge jury disagree! v^ on, 108. mt » GENEEAL INDEX. 535 VOLUNTEERS. arms Oi, exempt from seizuri^ umlcr execution, 163. WAGES. infant may sue for, up to $100... 51. of mechanit;, &e., exempt from attachment, except as to excess over $'25... 113. meaning of "due or accruing" a.s applied to, 114. ditticulty uf tlistiuguisliing from contrn. t debt in tiume cases, 114. WAKNING. Forms of: to defendant on special summons, .34.'). on summons in replevin, 340. to garnishee, '457. WARRANT. of commitment against judgment debtor. Ser JrnoMENT SdmmoNS. tor attaeliment of goods of absconding debtor. See Absuo.nuinu Ukiitok. bailiti entitled to demand of perusal of, before action, 215. what necessarj' for validity of, 216. Fvrm.t : of commitment in default of appearance, 380. after examination, 381. for contempt in open Court, .382. to levy tine upon witness, 381 . of attachment, 336. WILL nr jurisdiction in case involving validity of, 43, Wr.NESSES. See Evidence, SubP(K.na. Words, interpretation of. ^V*- Intkupretation. WRIT. See PRuuK.sa, Exkcution. TUK (il.OHK IKINTINtl ANII ENUKAVINU niMl'ANV, TOKOSTO, UNT,