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THfi
COMMON LAW PROCEDURE ACT,
1856
W4
C
<o>
THE
,' C
COUNTY COURTS' PROCEDURE ACT, 1856;
AMD THB
NEW RULES OF COURT,
Wim NOTES Of ALL DKOIDED OASES DIRECTLY EXPLAINIKQ OB OTHERWm
ELUCIDATINQ THE STATUTES AND BULBS:
TOOETHXR WITH
AN APPENDIX;
ooNTAnmra tn
COMMON LAW PROCEDURE ACTS OF 1857.
BT
EGBERT A. HARRISON, Esq., B.C.L.,
BABBISTIR-AT-UW ;
AVTHOB OP BOBHISOir* BAKBISOIf'S SIOEST; TBI STATUTES OF PKAOTICAL CTIUTT; THX HAM UAL OT
OOBIS IM OOUaiT 00UKT8 ; THB OOUNTT COURTS' BULKS; ASD JOINT lOITOH
OV IHS UPPXB CANADA LAW JOURNAL.
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"The Act Of Parliament ioTetts us with % large discretion to do what jngtioe requires: and w*
might, I think, to endeavour to carry the intention of the Legislature into effect"— {per JiBVU, 0. J.
In Messlter t. Rose, 13 0. B^ 165).
Since the Legislature has abolished spedal demurrers, we are bound to follow out that spirit and
■M glT* eflSKt to mere technicalities"— (per Pollock, 0. B. in Flowers t. Welch, 9 Ex. 273).
TORONTO:
MACLBAH & CO., 16 KINO STREET EAST,
A. H. ABMOUB * CO., AND H. B0W8BLI..
LONDON: V. R. STEVENS AND G. S. NORTON.
1868.
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Entered according to Act of the ProTlndal Legislature, in the year of our Lord one thousand
•Ight hundred and fifty-eight, by Robert Alizamdib HARi&soir, la the Office of tlie Registrar
of the Province of Canada.
■ t
4 V " I a ^ ZV.V
i^'Vi^-}M<y
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>> li !•
?;>'■! !
TO
THE HONORABLE
JOHN ALEXANDER MAODONALD,
ATTORNET-GBMBBAL
or
UPPER CANADA,
TO WnOBK ABILITY AS A LAWTBB,
ARB '
INTLUBNOB AS A STATESMAN,
TBI
PROFESSION ARE INDEBTED
THB AOTS HERE ANNOTATED,
THIS WORK '
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m
WITH THB MOST BINOERB BESPBOT AND ADMIBATION,
INSCRIBED
•THE EDITOR.
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PREFACE.
If
J
,
Thi law, and the administration of the law, are two things essentially
different. By the former we understand the great body of legal rights
and liabilities which teaoh that justice should render to every man his
due. By the latter we understand the practice of the Courts, or the
machinery used for dispensing justice. All laws are designed either to
prevent a mischief, to remedy it if committed, or to compensate the
sufferer if no other remedy can be applied. The proper application of the
remedy is thus of vital importance to the due dispensation of justice.
The spirit of modem legislation is to make the remedy coextensive with
the mischief intended to be prevented or redressed. For this the Courts
have at all times struggled ; for this the Legislature have labored ; and
for this has the Common Law Procedure Act, 1856, been passed.
I propose, jfirtt, briefly to consider the nature of the Act ; and, secondly,
the manner in which I have endeavoured to expound it.
Firtt. — ^Mr. Whiteside, a leading law reformer of Great Britun, in one
of his masterly speeches, sud, he objected to the triumph of form over
substance— of technicality over truth. He objected also to a suitor being
driven like a shuttiecock from a Court of Law to a Court of Equity, and
being sent to Chancery to be enabled to go to Common Law. He hoped
that a remedy would be applied to these abuses, and thought that, to be
satisfactory, the remedy should be searching, cheap and comprehensive.
The remedy so forcibly invoked has been partially applied in England, in
Ireland, and in Upper Canada : in England by the Acts of 30th June, 1852,
and 12th August, 1854 ; in Ireland by the Acts of 28th August, 1853, and
29th July, 1856; and in Upper Canada by the Acts of 19th June, 1856, and
10th June, 1857. Here and at home the like remedy has been applied
to like abuses. The triumph of form over substance is carefuUy guarded'
agfunst by the enactment of general rules of pleading, extensive powers
of reference, and liberal powers of amendment. The cruelty of driving
a suitor from Court to Court in the manner described by Mr. Whiteside
is also, to a great extent, prevented by the enlargement of the jurisdiction
of the Courts of Common Law. The remedy is searching, because of the
powers given to examine parties to a cause and their witnesses, under ,
VI
PREFAOK.
MrtAin oiroumstances, hj interrogntories. It in ohenp, because needless
•teps in a cause have been abolished, and the remaining stops made easj
and' simple. It is comprehensive, because the whole course of a suit,
from summons to execution, is made the subject of legislation in a single
Statute.
As to Pleading : Special demurrers are abolished, and forms are pro-
Tided for almost every case which can occur in practice. These forms are
simple, concise and intelligible. The work is done to the hand of the
practitioner in a manner convenient and complete.
As to Rfjcrtncta : Submissions of all conceivable forms are provided
for, and references of all kinds are much facilitated. There is a strong
desire evinced to encourage references to arbitration : indeed in matters
of account there is more than encouragement, for there is compulsion. As
to cases wherein there is no compulsion, there is strict and anxious sur-
teillanoe. Where the parties to any contract, anticipating the possibility
of differences arising, have stipulated that they shall be referred to arbi-
tration, there is provision made for staying any action that may be brought
in disregard of such stipulation. If the referee named by the parties be
dead, the Court may appoint a substitute. - If there be no provision for
the appointment of an umpire when one is necessary, the Court may
appoint one of its own choosing. If there be several arbitrators, one
of whom dies or becomes incapacitated, a successor may be appointed.
As to AmendmeiUa : There is almost unlimited discretion. The Judges
have at all times the power of amending all defects and errors in any
proceeding in any stage of the cause, whether there be anything in writing
to amend by or not. All amendments necessary to the determining of the
real question in controversy in the existing suit may be made.
As to the Enlargement of jurisdiction : The Courts of Common Law
have conferred upon them, to some extent, powers to give the redress
necessary to protect and to vindicate common law rights, and to prevent
wrongs, whether existing or likely to happen unless prevented. With
tiiese objects the strong arm of injunction is added, and the arm of maa-
damus is strengthened. The power to entertain equitable defences, in
eonsequenoo of the unsuited machinery of the Courts, is, however, very
limited ; but, so far as bestowed upon the Courts of Common Law, is an
enlargement of their jurisdiction. This enlargement does not at all oust
the Court of Chancery of any portion of its jurisdiction ; in truth, a great
portion of the latter still remains exclusive.
As to the Comprehensiveness of the Act, a glance at the repealing clause
will convey some idea of the change made in our statute law. Little is
left either of the Old King's Bench Act of 1822, or of the Common Pleas
Act of 1849, or of the Act of 1853, regulating and amending the practice
in these Courts. The Legislature, while engaged in the work of improve-
PBEFAOE.
til
ment, hare gone far towarda removing obscurities aod abuses. The Aoti
respeoting Absconding Debtors, Absent Defendants and Insolvent Debtora
havo been, in general, wiped from the Statute book, and restored in a sim-
ple and consolidated form. The Absconding Debtors' law, from session to
session of the Legislature, became obscure, owing to the accumulation of
amending Statutes. The Absent Defendants' Act, nearly allied to the
Absconding Debtors' Acts, served to malie confusion more confounded.
The Insolvent Debtors' Acts were nearly effete from sheer non-user of
many of their provisions. There was a widely scattered heap of law, of
which a great part was felt to be rubbish, and therefore removed.
It would be too tedious here to notice the changes in detail made in the
• steps of a cause from process to execution. SufSce it to say, that forms
of action have been in a meaoura abolished ; that with regard to the ser-
Tice and renewal of writs of mesne process, very decided improvements
are enacted ; that the appearance of defendants is placed upon a rational
\\ and intelligible basis ; that unusual facilities are held out for the speedy
trial of causes, and after trial equal fnoiltties, for speedy execution ; that
the description of property made subject to execution is much extended ;
and that for the revival of judgments when obtained wise and beneficial
provision is made.
Second. — ^A new Act is not always a new law. The Common Law
Procedure Act is not so much a new law as a re-enactment, with amend-
ments, of the old. For the sake of convenience, the provisions are brought
together in a compact and logical form ; but the provisions themselves are
, for the most part old and familiar. Tliey carry with them a long train of
decisions. To classify these decisions, and to bring them under the eye
in a convenient form, has been one of my great objects. The less a new
statute unsettles old and established practice, so far as consistent with
the object of its enactment, the better. The Courts, in a long series of
decisions, have given to particular words and expressions a definite
meaning. The Legislature, in Acts subsequently passed, have used these
words and expressions over and over again. Thus the language becomes
familiar and well known to Judges and lawyers under the epithet of legal
phraseology. Hence, when necessary to bring together Acts or legislative
enactments upon a particular branch of law or of practice, the collection
ought to be made as far as possible in the very words of the original text
Stability is more to be desired than novelty. To attain stability there
must be certainty, and to attain certainty there must be the preservation
of well understood words and expressions. When wo reflect upon the
cost, the trouble, and the vexation of working out an entirely new legislar-
tive provision, we are forced to acknowledge the value of old phraseology.
One important oharacteristio of our Common Law Procedure Act is that
in it words are used as lawyers have at all times used them. We ore
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PBITAOl.
enabled to fall back npoii th« old, for the oonttruotion of tho new law.
ImpreMed with the value of deoided caiei, I hare not failed to open vp
to the oonsideration of my profeMional brethren deoitioni apparently
oooeigned to obliTion, but in troth aa neceeaary for uae aa when flral
delivered from the Bench. Fairly to anderatand a new law, whioh ia in
fiine cues out of ten a remedial la\r, we moat not aparn that which ia by
the alteration thrown aeide.
9 We speak of a Statute such as the Common Law Procedure Act being
femedial — ^remedial of what 7 Of some law existing when it passed. Is it
not then necessary, in order to apply the remedy, to hare a knowledge of
the mischief intended to be remedied ? Before a lawjai^ can use a remedial
f tatute correctly and satisfactorily, he must generally hare some knowledge
of the pre-existing law. Actuated by thoughts such aa these, in stating
the changes effected 1^ the Common Law Procedure Act, I hare done so by
briefly showing what the practice was antecedently, and so presented the
law as modified or otherwise altered. A new code of practice is enacted.
IVhy 7 Because the old code was defectire. Then in what was it defective ?
The attempt mentally to answer this question opens up a true idea of the
work to be done. The real principle of expounding a remedial statute is,
I conceive, such as I have described. While acting up to this standard, my
0Min plyeot has been, by exhibiting what the law was, concisely to show
what the law b, and in such a manner that it wiil impress itself upon the
fnemcfy of the reader or practitioner. This I have done particularly in
poling a preamble introducing a number of sections on a given branch
9f practice. Qne example may be noticed. It is on page 94, being note g
to the preamble beginning, " And as regards proceedings against abscond-
ing debtors," Jbc. In carrying out this plan, I have upon all occasions,
when convenient, introduced the views of the English Common Law Com-
auesioners, usually in their own words. The result is, that both reports
of tibe' Commissioners are embodied in my notes, instead of being pub-
lished, as originally intended, in a separate form.
I may be allowed to observe, that I have had a great advantage over
my fellow laborers in England, and have endeavored to avail myself of
it eo as to render my book more complete and reliable than any similar
work hitherto published either in England or Ireland. I am tiie latest
oommentator on the Common Law Procedure Acts, and have not only the
benefit of the experience of my predecessors, but the benefit of decisions
pronounced by the Courts since tiie publication of their works. It is only
by degrees that a new or even a modified practice " setties down.'' Many
questions of construction are sure to arise and to require practical exposi-
tion. As the practice is studied and familiarized, and as doubtful points
teceive a^udication, its application becomes simple and easy to the prac-
titioner. It is, however, a work of gradual development, audit is only as
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PBIfAOI. 11
point after point of doubtful oonstruotlon it decided, that misapprobeuioii
ia obviatod and oertainty secured.
In oouidering each leetion annotated, I bar* endeatored to get al
Ihe reaaon of the section and the prinoiplei intohed in it. The meaning
of an Act of Parliament, ai well as a single section, can only be ascer^
tained by reforenoe to the principle which governs it. The Common
Law Procedure Act itt passed with a view "to simplify and eipedite"
proceedings in the Superior Courts of Common Law. The County Conrta
Procedure Act has a similar declared oljeot. Two cognate principles, a*
applied to the whole Act, are thus enunciated : the one, to simplify ; the
other, to expedite. This much predicated, it is for the Court to adranoe
the olyects proposed, and so carry out the principles invoWed. The known
aptness of the Court to respect precedents is a source whence there flows
much good. But owing to human frailty former decisions are sometimes
\ reluctantly doubted or oyemiled ; and from this arises a desire for the
Tery latest decisions on a doubtful point. When an old case is cited, the
question is often put by the Court—" Is there no later authority than
that?" The necessity for the latest oases, when solving a doubt, is
sufficiently known to all practitioners to render any further reference to
it here unnecessary. It only remains for me to sny, that I have been
most oareful in noting the late decisions, sheet by sheet, as this work went
, to press. Those since decided will be found mentioned in the Addenda.
More than nine hundred cases, decided since the passing of the English Acts
and of our Acts upon the construction of one or other of them, have been
noted in the work. No case, however, whether early or late, should, if pos>
sible, be viewed otherwise than as controlled by some governing principle.
In matters of practice certain principles may be discovered which are of
\ intrinsic value as the key notes of a great variety of cases. When it is laid
down in general terms that he who endeavors to upset an opponent upon
some ground of irregularity must be strictly regular himself, we have
before us a principle applicable to every oase of irregularity. When we
are informed that the law favors the liberty of the subject, we reasonably
conclude that in a proceeding to restrain the subject of that liberty there
must be no irregularity. When the Court sots aside an arrest because
the affidavit to hold to bail does not state that the debt is " due," we know
that it is set aside not merely because there is an authority in point, but
because that authority is consistent with reaaon and accords with the
general principle that the liberty of the subject is to be favored. The
Court in effect decides that the affidavit omits to moke out a good case for
depriving the subject of his liberty.
My only ambition in compiling this work was to produce a useful,
complete and reliable vade meoum for the legal profession in Upper Canada.
The only merit to which I lay claim is industry, and if that have not been
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PREFACE.
misapplied I am satisfied. I lay no claim to any display of originality of
conception, but have contented myself with treading the beaten but some-
times uncertain paths of the law. I have striven in my progress to prepare
the way for those who may have occasion to travel one or all of the paths
through which I have travelled. In some places, perhaps, I ha7e over-
stepped the limits of authority. In some instances I may have assumed that
to be law for which there is no authority ; but where such has been done it
has not been dono without a due sense of responsibility. Though law is
said to be a science, it is in truth a most perplexing science. Though
Beports and reported cases outstrip numerical calculation, yet cases do arise
for which there is no express authority. Cases will arise which the most
astute never could foresee ; and still the law is fur all cases, and must be
applied to all cases so far as reason and analogy can suggest the mode of
applicrtion. In the absence of decided cases I have frequently felt myself
bound to state my impression by way of suggestion. That such impres-
sions are free from error is more than I can expect. My only object in
:iuggesting a construction unsupported by authority, was the desire of
pointing the reader's attention towards what might be the right direction.
In palliation of any errors that may be discovered, I have only to draw
attention to the circumstances under which my impressions were formed.
Before me there was a new Act, with scarcely a decision of our Courts.
My task was to explain and expound it. I had not the advantage upon
every point of doubt of an able argument from contending counsel ; but
even Judges, notwithstanding these advantages, are fallible. Those who
are accustomed to speculate on the construction of new laws will, I am
confident, be the first to appreciate my difficulties, and the readiest to
bestow indulgence when needed. Many friends, upon whose knowledge
and standing I have been too glad to rely, have kindly read the proof
sheets, and so fortified my positions. Among these, I may mention the
names of The IIonodrable Chief Justice Macaulat and IIis Honour
Judge Gowax. Every page of the book, before it was worked off, was
submitted to their perusal, and it is to me as much a duty as a pleasure
thus publicly to acknowledge the advice and assistance with which I
have been honoured. To Adam Wilson, Esq^, Q. C, and Henry Eccles,
Esq., Q. C, I have to express my thanks for similar services. The notes
as to equitable defences have also been submitted to and approved by a
leading member of the Equity Bar. To many others, whose names need
not be given, I am greatly obliged for advice and assistance.
It is unnecessary to mention to .any one who may open this volume,
that it has been a work of great labor, not At all lightened by the respon-
sibility under which I wrote. The immense number of cases consulted
with a view to the extraction of guiding principles, being no less than
six thousand, and the placing of these cases, when approved, in proper
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PREFACE. ll
order, has been a t isk requiring no ordinary perseverance and patience.
TliiB, too, was done with the prospect of pecuniary loss, consequent upon
the size of the work uni the low price at which it was promised. Bearing
all these things in mind, I submit the work to those for whose benefit it
is designed, and only ask of them a candid consideration and a fair judg--
ment — more I do not ask, less I cannot expent. For tho completeness of
the Index of Subjects I am indebted to W. C. Keele, Esq., and of the
Index of Cases to Mr. David Alexander, Student at Law.
I have, OS promised, added the General Rules of Practice and Pleading,
with copious notes upon the same plan as the Statutes. They add to the
completencbs of the volume, so as to make it, as intended, a ready, com-
plete and reliable book of practice for the Common Law Practitioner.
The Common Law Procedure Acts of 1857 are also added, but without
notes. It was found that the work had grown to such dimensions under
my hands, that to annotate them would make the volume much too bulky,
\ \ and add much to tho delay which has already taken place in its issue from
the press. As I believe a very general impression was entertained that this
T volume would have appeared at a much earlier period than it does, I can
only say in excuse that it was not possible to furnish the book in less time,
while making it as complete as my anxiety to servo the profession led
me to believe was necessary. A contrary course might have, as it is well
known, saved me much trouble and no little expense. It is now, however,
in my powei to assert, with those kind friends who at much personal
inconvenience to themselves lent me the aid of ripe experience, that the
jL boc ' is of its kind the most complete published. It contains Uoice the
number of cases cited in the elaborate work of Finlason, and four times
the number of cases cited in Kerr, Thompson, Markham, or any other
work in general use. This statement I make in no boastful spirit, but for
the simple purpose of conveying to those inexperienced in the writing of
books some idea of my protracted labor, and as an apology for what other-
wise might be thought inexcusable delay.
R. A. H.
QcKEM Street West,
February, 1858
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TABLE OF CONTENTS.
MAI.
The Common Law Procedare Act, 1856 1
The County Conrts* Prooedure Act, 1856 551
The New Rules of Practice 587
The New Rules of Pleading 667
Forms 693
Table of Costs in Superior Courts 709
The Error and Appeal Act 717
The Co' .mon Law Procedure Act, 1857 728
The County Courts' Procedure Act, 1857 743
Index 753
Addenda et Corrigenda 819
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TABLE OF CASES.
,\\
Abbot y. Smith, 146.
V. Rugeley. 226.
T. Abbot, 282.
Abbott et ux. t Blofield, 163.
T. Bult, 822.
Abraham t. Cook, 699.
T. Davis, 647.
Abrams t. Moon, 691.
Adams t. Aokland, 61.
V. Polk, 229. ,^ ',
V. Andrews, 241.
▼. Jones, 387.
V. Andrews, 412.
V. Baines, 440.
v. Brown, 608.
T. Polk, 682.
Addison v. Corbey, 171
Addjr ▼• Broude, 496.
Ade T. Stubbs, 621.
Adkins v. Anderson, 247. , ..),„;<
Adrerant T. Shriver, 440. ' "
Aicheson ▼. Gargey, 171.
Aikins v. Pentland et al. 495.
Aitken t. Malcolm, 160.
—^— re Malcolm, 690.
Alcock T. Royal Exchange Asearance
Company, 809.
y. Taylor, 679. ,
Alder V. Chip, 484.
Al(»erley v. Storey, 283.
AldersoQ t. Johnson, 196.
V. Langdale, 487.
Aldiss V. Burgess, 683.
Aldridge t. Great Western B. Co., 160.
Aldred v. Hicks, 78.
Alerberry v. Walby, 153.
Alexander t. Harvey, 13. '
V. Milton, 42.
V. Adgle, 218.
V. Townley, 254.
T. Williams, 347. ' "
V. Strong, 486.
v. Milton, 642. .
Alford V. Fellows, 290,
Alfred T. Parlow, 218.
T.
V.
T.
V.
V.
Alkyns v. Kinnier, 282.
Allan ▼. Brown, 170.
V. Shead, 276.
Allen T. Bu^sey, 62.
T. Pink, 110.
Maxy, 143.
Francis, ji^.
Hopkins, 223.
Pink, 274.
Andrews, 872.
V. Walker, 678.
Allenby v. Proud ock, 176, 176.
v. Prodlick, 665, 671.
Allenson v. Midland Railway Co.,
Allison y. Wogstaff, 17.
Allott T. Rearcroft, 284.
Allsopp y. Smith, 847.
Alston y. Underbill, 24, 82.
AUwood y. Allwood. 201.
y. Ridley. 699.
Ames y. Kelsey, 329.
y. Birkenhead Docks Trust.
Amery y. Long, 886.
y. Smallridge, 619.
Amis y. Lloyd, 446.
Amor y. Blafield, 89.
y. Cuthbert, 828.
Amos y. Temperley, 151. ^^
Anderson y. Baker, 41.
y. Fuller, 170.
y. Anderson, 254,
270.
861.
li-
288.
Andrews y.
~ y.
— y.
-- y.
-- y.
— y.
Chapman, 257,
Southern, 649. .
Page, 16.
Robinson et al, 22.
Ritchie 44.
Eaton, 190.
Sanderson, 860.
Robertson, 639.
y. Digg, 648.
Angel y. Shea, 42.
Angus y. Coppard, 31, 64.
y. Medwin, 64.
y. Coppard et al, 64.
Ankestein y. Clarke, 163.
,.A.
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TABLE OF CASES.
Anon. 20, 44, 66, 74, 84, 96, 169, 220,
224, 858, 880, 888, 898, 899, 487,
468, 478, 690, 591, 593, 608, 627,
628, 629, 630, 631, 642, 648, 647.
Anaell ▼. Evans, 168, 192.
Anslie t. Chapman, 282.
Anstey et al. t. Edwards, 412.
Antram t. Chace, 188.
Applegard v. Todd, 291.
Apothecaries Co. v. BentleyBailey, 303.
Ashby T. Bates, 803.
T. Minett, 685, 690.
Ashley v. Brown, 280.
V. Flaxman, 288.
v. Bates, 803. '; "^^
Ashmore t. Ripley, 664.
V. Hardy, 690. »
Ashton T. Naull, 40.
Aslin T. Parkin, 426.
Astley V. Young. 257.
Astcn T. Greathead, 123.
V. George, 192. ' ,
V. Perkes, 227, 230.
Atkins T. Palmer, 844.
Atkinson t. Thompson, 48.
V. Howell, 70.
V. Warne, 242.
V. Davies, 245, 246, 886.
V. Thompson, 643.^
V. Hornby, 672.
V. Raleigh, 483, 686.
Atterbury v. Jarvis, 574.
Attorney-General v. Churchill, 9.
V. The Cor|>oration
of Worcester, 81.
V. Hallett, 215.
V. Donaldson, 251.
V. Hitchcock, 308.
t. Boret, 829.
— T. Radcliffe, 831.
— V. Radloff, 886.
T. Aspinall, 464.
Austin T. Debnam, 40.
V. Ornnge, 48.
V. Mills, 126.
V. Grange, 643.
Avery v. Bawden, 821.
V. Langford, 383.
Ayling v. Whichcr, 154.
Baby v. Milne, 446.
Bacon v. Ashton, 196, 222.
V. Jones, 466.
Baddley v, Oliver, 849.
Badlock v. Atkins, 846.
Badman v. Pagh, 290.
Baggott T. Prior, 168.
Bagshaw d. Asian ▼. Toogood, 896.
Bailey v. Sweeting, 280.
V. Baker, 261.
V. Bidwell, 802, 818.
V. Taylor, 446.
T. Bellamy, 606.
v. Davy, 682.
V. Bidwell, 80.
et al V. Sweeting, 271.
Bailie t. De Bernales, 60. >
Baines v. Hay ward, 671.
Baker v. Wills, 45.
V. Coghlan, 70.
V. Coe, 74.
V. Dewey, 161.
V. Booth, 174.
V. Hunter, 178, 170.
V. Brown, 216.
V. Walker, 247.
V. Rigway, 476.
V. Flower, 648.
Baldwin et al v. Slicer, 61.
. V. Flower, 154.
Ball V. Hamlet, 82, 209.
Ballantyne t. Taylor, 40.
Balman v. Sharpe, 26.
Balman et al v. Sharpe, 26.
Balmanno v. May, 46.
Y. Thompson, 206.
Ballard v. Wright, 12. ,
Bamberger et al. t. The Commercial
Mutual Credit Assur. Co., 212.
Banfield v. Darrell, 75.
Bank of U. Canada v. Murphy, 16.
V. McFarlafie et al. 21, 23.
v. Bethune et al. 201.
V. Widmer, 287.
V. Robinson, 280.
V. Covert et al., 284.
V. Bethnne et al., 288.
of B. N. A. V. Jarvis, 117.
v. Jones, 196.
V. Sherwood etal,- 219.
V. Ainley, 250, 267.
of Montreal v. Cronk et al., 623.
Banks t. Banks, 171.
et al v. Holmes, 178.
V. Rebbeck, 436.
Barber, ex parte, 87. . . ^
Barber ▼. Palmer, 225.
V. Barber, 608.
Barclay v. Adair, 608.
Bardell v. Miller, 62.
Barden v. Cowd-jll, 50.
V. Cox, 847.
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TABLE OF OASES.
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Barefoot y. Fry, 420.
Barebead t. Hell, 620.
Barford ▼. Nelson, 847.
Barker t. Glaidow, 279.
V. Holller, 518.
Barnard t. Wainwright, 179.
Barnardiston t. Fowler, 188.
Barnberry t. Salomon, 688.
Barnes t. Jackson, 214.
v. Ward, 605.
V. Pendrey, 606.
Barnett v. Newton, 220.
Barney t. Simpson, 91, 264.
Barnwell t. Sutherland et al., 877.
V. Williams, 682.
Baroness Dunsany, in re, 87.
Barrett v. Parry, 188.
Barrie v. Cambie, 886.
Barringer t. Handley, 75.
Barrow v. Pail, 476.
V. Gapreol, 583.
Barry v. Ecoles, 84.
Bartholomew v. Stevens et al., 857.
V. Carter, 691.
Bartlett t. Leighton, 226.
V. Pentland, 878, 879.
Bartley v. Godslake, 206.
Barton t. Brown, 685.
Bastard t. Smith, 205.
V. Smith et al., 819, 692.
Batev. Bolton, 127, 182.
V. Lawrence, 640, 641.
Bateman t. Phillips, 833.
Bates T. Townley et al., 185.
V.Cooke, 187.
V. 0'Don«»hue, 291.
Batty V. Marriott, 647.
Baxter V. Nurse, ^.2\. •- -r
V. Morgan, 608.
V. Bailey, 637.
Baydell et al v. Harkness, 215.
Bayley v. Baker, 248.
V. Taylor, 463. :- -
V. Thompson, 181.
Baynard v. Simmons, 857.
Beach v. Ford, 474.
Beames v. Farley, 649.
Beard v. Ketchum, 475.
V. Orr, 494.
Beardmore v. BAttenburg, 68.
Beare v. Pinkers, 40.
Beasley v. Stegman, 174.
v. D'Arcy, 478.
Beattie v. McKay, 357.
Beatson v. Forrest, 226.
V. McKenzie, 222. ... i,
2
B?atty y. McMasters et »1., 689.
Beauclerk v. Hook, 206.
Beaucroft v. Vivian, 689.
Beavan v. Tanner, 254.
Beazley v. Bailey, 207.
Beck V. Sargent, 187.
Bedford v. British Museum, 461.
Becve v. Secord et al., 151.
Beckman v. Jarvis, 116.
Beele v. Simpson, 886.
Begg V. Forbes, 9, 10, 591, 600.
Belcher v. Goodered, 83, 182, 690.
V. Smith, 166. ,
V. Cook. 272.
Bell y. Buchanan, 21.
V. Stewort, 217. »
V. Postlethwaite, 166, 484.
V. Alexander, 206,
y.Ingestre, 260, 678.
y. Graham, 279.
y. Twentyman, 801. '
y. Smith, 847.
y. Harrison 409.
y. Whitehead, 466.
v. Tidd, 608.
y. Gall, 630.
v. Bidgood, 648.
Benedict y. Arthur, 683.
Benge v. Swaine, 877, 879, 421, 604.
Benham y. Shaw, 291.
Benn y. Bateman, 267, 696.
y. Mortimer & Denn, 448.
Bennett v. Holbeck, 887.
y. Peninsular & Oriental
Steamboat Co., 674, 676,
684, 688.
y. Bull, 679.
v. Deacon, 687, 688.
Bennison y. Davidson, 678, 674.
Benson y. Duncan, 888.
v. Paull, 461. 463.
Benthall v. West. 279.
Bentley v. Knightley, 255. -^z
Benton v. Palkinhorne, 421, 604.
Benyon v. Davison, 684.
Berger v. Greene, 276.
Bergin v. Hamilton, 22.
., y. Pindar, 110, 118, 120.
Berkley v. De Vere, 264.
Bernasconi v. Farebrother, 820.
Berney v. Read, 192.
Berny v. Alderman, 809.
Bertie v. Pickering, 195.
Berwick v. Andrews, 380.
Besantv. Cross, 206, 679.
Betts y. Kimpton, 883. - ■..'
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XVIU
TABLE OF OASES.
Bettyes t. Thompson, 29.
Betins t. Hnlme, 204, 698. '
Bidgood 7. Way et nz, 154.
Bigelow T. Spragge, 91.
Bignall t. Oale, 666.
Bignell y. Harper, 150, 889.
Bill T. Bament, 684.
Billings et al. t. Rapalje et al, 17.
T. Barry et al, 64.
T. Reid, 280.
Bingham t. Robins, 229.
V. Stanley, 802, 680, 684.
Birch y. Leake, 206.
Bircher y. Colson, 682.
Bird y. Higginson, 260, 672.
y. Appleton, 411.
y. Atkins, 688.
Bird's Case, 628.
Bishop of Peterboro' y. Caterby, 214.
Bittleton y. Cooper, 817.
Blaok y. Adams, 44.
y. Halliday, 47.
y. Green, 66.
— i— y. Baxendale et al, 288.
y. Lame, 648.
Blackburn y. Edwards, 206.
y. Peat, 661.
y. Pogh, 686.
Blaokbome y. Oreayes, 164.
Blackford y. Hawkins, 626.
Blaokio y. Pidding, 248, 487.
Blackwell y. Allen, 48.
Blake y. Cooper, 76.
Blakely y. Porter, 888.
Blair y. Jones, 179.
y- Bruce, 246.
Blanchenay y. Burt, 869. — j
Bland y. Dax, 149.
Bleadon y. Rupallo, 218.
Bleakley et al. y. Jay, 145.
Bleeker y. Meyers, 686.
Blewett y. Tregonning, 808, 880.
Blewitt y. Marsden, 206.
y. Gordon, 206, 824.
Bligh y. HaU, 47, 48.
y. Brewer, 606. r . i
Blissett y. Tennant, 209.
Blogg y. Kent, 883.
Bluck y. Gompertz, 888.
Blue y. Toronto Gas Company, 208.
Blundell y. Blundell, 634.
Blunt y. Haslop, 126.
ex parte, 688.
Boasfield y. Edge, 206, 239.
Boddington y. Woodley, 61.
Bodenham y. Hill, 196.
Bodenham ex parte, 690.
Bodley y. Reynolds, 287.
Body y. Johnson, 205.
Bologne y. Vautrin, 028, 680.
Bolton y. Manning, 219, 618.
y. Corporation of Liyerpool, 886.
y. Lyster, 648.
Bolson y. Spearman, 200.
Bonar y. Mitchell, 887.
Bond y. Dawnton, 690.
Bones y. Punter, 205.
Bonner y. Charlton, 178.
Boodle y. Dayis, 171.
y. Dayies, 176, 808, 656.
Boorman y. Brown, 161, 497.
Booth y. Howard, 91.
y. Mills, 802.
y. Howard, 681.
Boozey y. Tolkoin, 214.
Bordier y. Bamett, 290.
Borley y. Moore, 682.
Borwiok y. Walton, 626.
Bosanquet y. Graham, 872.
Boston y. Mesham, 169.
Boswell y. Roberts, 78.
y. Ruttan, 245.
Botsford y. Stewart, 48.
Bottomley y. Buckley, 169, 192.
y. Belohamber, 642.
Bouhet y. Eittoe, 642.
Boulton V. Ruttan, 108.
y. Pritchard, 264.
y. Murphy et al, 440.
Bourne y. Alcock, 621.
Bousfield y. Godfrey, 338.
Bowden y. Horne, 421.
Bowditoh y. Slaney, 61.
Bowen y. Williams, 184, 190.
Bower y. Kemp, 148.
y. Hill, 616.
Bown y. Hawke, 202, 246.
Bowring y. Bignold, 600.
Bowser y. Austen, 76.
V. Colby, 481.
Boutillier y. Thick, 176.
Bowyer y. Cook, 462, 521.
Boyd y. Stader, 48.
y. Mangles, 137.
Boydell y. Harkness, 672.
Boyes y. Black, 172.
Boyle y. Webster, 134.
y. Humphrey et al, 171.
y. Wiseman, 840.
Boys y. Ancell, 232.
Bozzi y. Stewart, 267.
Bracebridge y. Buckley, 431.
\
TABLE or OASES.
six
i
Braoebr v. Dalton, 60.
BrAoeglrdle f. Peaoook, 202.
Braoey t. Carter, 674.
Bradbee v. GoTemors of Christ's Hos-
pital, 169, 461.
■ y. Gustard, 75.
Bradbury et al v. Loney, 17.
■ T. Lowry, 108.
__ . J. E.'iians, 205.
y. Long, 850.
Bradbunr y. Flint, 288.
Bradford y. O'Brien, 199.
Bradley y. Stunston, 177.
y. Phelps, 179, 184.
— y. Bradsley, 244.
y. Ricardo, 306.
V. Wyndham, 854.
y. Eyre, 872.
Bradshaw y. Mattram, 686.
Braithwaite y. Harrison, 268.
Bramah y. Watkins, 207.
y. Roberts, 679.
Bramwell y. Holcomb, 461.
Brandao y. Bamett, 684.
Brandford y. Freeman, 803.
Brashford y. Baokingham etuz, 158.
Brasher y. Jaokson, 137, 138.
Brasswell y. Seco, 872.
Braun y. MuUett, 666.
Bray y. Manson, 605, 648.
y. French, 886.
Brennan y. Howard, 482, 486.
Brest y. Leyer, 690.
Brett y. Smith 82, 41, 45, 47, 59, 628,
645.
y. Stone, 284.
Brettargh y. Dearden, 9.
Brewer y. Bacon, 280.
— y. Pierpoint, 287.
Brewster y. Dayy, 124.
Brider y. Stretton, 75.
Bridge y. Grand Junction B. Co., 688.
In re y. Wright, 82.
Bridger y. Austin, 180.
Bridges y. Smith, 880.
et al y. Gay, 486.
Bridgewater y. Griffiths, 290.
Brid^ord y. Wiseman, 289.
Bridgood y. Way et ux, 153.
Bridson y. MoAlpine, 461, 466.
— — ~ y. Beneke, 466.
Briggs y. Bernard, 82.
y. Aynsworth, 805.
Brighton B. Co. y. Wilson, 254.
Brin y. Wignard, 684.
Brind y. Bale, 676.
Briscoe y. Hill, 241.
y. Roberts, 409.
Brittain y. GrenyiUe, 449.
Britten y. Britten, 698.
Broadbent y. Leawood, 682.
Brock y. McLean, 9, 856.
Brokenshie y. Monger, 595.
Bromage y. Ray, 75.
■ — et al y. Lloyd et al, 260.
Bromley y. Gerish, 102.
Brook y. Edridge, 70.
Brooke y. Mitchell, 180, 801.
y. Willett, 256.
y. Lloyd, 287.
Brooks y. Rigby, 89.
■ y. Fitchborne, 816.
y. Hodgson, 640.
y. Farlar, 642.
Broomfield y. Smith, 674.
Brownsall, ex parte, 590.
Brown v. Palmer, 41, 40, 92.
et al V. Parr, 46, 48.
■ y. Fullerton, 81.
y. Watts, 91.
y. Yielding et al, 92.
y. Austin, 103, 206.
et al y. Emerson, 168.
y. Watson, 171. ,
V. Tanner et al, 174.
V. Collyer, 178, 188.
y. Taggart, 232.
y. Millington, 256, 269, 484
y. Wildmore, 279.
V, Clarke, 285.
y. Street, 321.
y. Bethune, 860.
.y, Bennings, 859.
y. Merrills, 860.
y. Mallett, 463, 461.
y. Bailey 637.
y. McMillan, 639. ' *
— — y. Nelson, 655.
y. Philpott, 680. .
Browne y, Collyier, 189, 190.
V. Murray, 304, 305.
y. Gisborne, 830.
y. Benuinger, 358.
Brown's Bail, 629.
Bruneau y. Joyce, 511.
Brunswick y. Pepper, 689.
Brynes y. Wild et al, 12.
Buchanan y. Rucker, 79.
Buckhouse y. Jones, 309.
Buckland y. Johnson, 804. .
Buckle y. HoUis, 160.
Buckler y. Angil, 886.
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XX
TABLE OF OASES.
Backloj y. Collier, 168, 164.
V. Buckley, 420.
et al V. Griffse, 500.
Buokworth ▼. Levi, 44.
Bud Jlo T. Willson, 289.
Bull T. Bull, 171.
T. Price, 880.
et nl V. Condly, 661.
BuUej T. Foalkes et al, 251.
Bulmer t. Boasfleld, 214.
Bulnoia t. Maokeniie, 601.
Bunting t. Jadis, 44.
Burdekin t. Potter, 608.
Bnrdett t. Abbott, 413.
Bardas t. Satehwell, 619.
Burgess v. Beaumont, 204.
T. Uoyle, 281.
▼. BoctefVier, 812.
T. Swayne, 602
— T. Brodgear, 681.
Burgoyne ▼. Cottrell, 468.
Barley t. Stephens et uz, 188.
Burn T. Cook, 288, 299.
Burnham t. Daly, 24.
Burnet t. Holden, 880.
Burrows t. Gabriel, 71.
Burton v. Warren, 220.
Barwell v. Hamilton, 687.
Bury T. Goldner, 206.
y. Clench, 645.
Bussey v. Bamett, 240, 677, 679.
Butcher v. Green, 257.
Butler ▼. Cohen, 82.
v. Browr, 39. ' '
T. Richardson, 91.
V. Meredith, 400, 402.
▼. Burke, 432. • '
V. Thomas, 497.
V. Fox, 662. ' - ^
Brett T. Howard, 886.
Buttermero v. Hayes, 678.
Byfield t. Street, 80, 81.
Byland t. King, 44.
Gabbett v. Gray et al, 223.
Gaboon t. Burford, 213, 669.
Gaila t. Elgood, 362.
Gakish v. Ross, 628.
Caldwell T. Blake, 31.
Callaghan t. Lesmore, 433, 434.
Gallagher t. Strobridge, 508.
Galium T. Leeson, 625.
Calvert t. Gandy, 592.
V. Baker, 678.
V. Moggs, 681.
Galzo Y. Littleton, 220.
Gamble v. Barry, 386.
Cameron T. Brantfurd Gas Co., 869.
V. Plnytor et al, 40.
T. Reynolds, 890.
v. Wheeler, 60.
T. McLeod et al, 506.
V. Ferguson, 24.
Cammock v. Gregory, 40.
Campbell t. Hamilton, 852.
V. Lemon, 501, 504.
V. Smart, 66, 67, 81.
T. Boulton, 176.
V. Ruttan, 24.
V. Peden et al, 860.
Cannam t. Farmer, 802.
et al T. Farmer, 802.
Canny v. Hodgens, 434.
Cantwell t. Earl of Stirling, 80.
Card V. Case, 688.
Carew v. Davis,' 839.
V. Drew, 341.
Carey v. Cho&te, 231.
V. Pitt 816.
V. Tate, 690.
Caricnller v. Wessells, 402.
Carmichael V Houchcn, 656.
Carnaby v. Welby, 246.
Came v. Mallins, 81.
et al V. " et al, 81.
Carpenter v. Lee, 847.
V. Thornton, 173.
Carroll et al v. Bull, 576.
Carruthersv. , 587.
v. Dickey, 600.
Carson v. Dowding, 81.
Carter v. Sullivan et al 51.
V. Mansbridge, 168, 801.
V. Carey et al, 358.
Cartwright v. Cook, 671.
Carter's Bail, 680.
Carwin v. Mosley, 60.
Case V. Benson et al, 606.
V. McVeijjh, 82, 43.
Cass V. Cass 48, 643.
Cnasidy v. Steuart, 88.
Castle et al v. Burdet et al, 108.
Castrique Roads Co. v. Dunn, 860.
Caunce v. Rigby. 45.
Cauty V. Gyll, 596.
Cave V. Aaron, 206.
Caymev. Watts, 172.
Cazneau v. Mornie, 618.
Cecil V. Briggs, 597.
Chnce v. Westmore, 176.
Chadwick v. Herapath, 228.
Challen v. Baker, 357.
( f
TABLE OF CASES.
XXI
Chftmb«rlain et al t. Wood et al, 38,
85, 88, 42
V. Wood, 48.
▼. Chamberlain, 673.
Chambers t. Donaldson et al, 158.
v. Donaldson, 153.
T. Wills, 698.
Chamley t. Qrundy 243.
C bander, ex parte, 588.
Channing t. Cross 74.
Chantler ▼. Lindsay, 140.
Chanter t. Leese, 673.
Chaplin t. Showier, 207, 214.
. ▼. Levey, 817.
Chapel T. Hiokes, 284.
Chapman t. Beoke, 50, 61.
V. Whitechurch, 62.
V. King, 82, 670.
^^ V. t'now, 84.
V. Giics, 271.
V. Hoslop, 287.
V. Rawson, 803.
V. Vaudevelde, 680.
Chard t. Lount, 523, 569, 579.
Charles v. Carroll, 174.
T. Hiokson, 190.
Charlesworth v. Ellis, 607.
Charnley v. Winstanley, 174.
Chase t. Gilmour, 280.
Checohi v. Powell, 289.
Cheetham t. Sturtevant, 880.
Cheltenham v. 0. W. Union R. Co. 275.
Chelwind t. Marnell, 333.
Chesley t. McMillan, 504.
Cheslyn v. Dalby, 184.
Chester v. Wortley, 338, 340.
Cheveley v. Morris, 216.
Chevers v. Partington, 268. ' ,
Chick's Case, 628. '_ ^ |;
Children v. Mannering, 271. * "
Child V. Horton, 301.
V. Marsh, 640.
Chilee V. Bradley, 9.
Chilton V. Carrington, 366. ' . '
Chipp V. Harris, 605, 607.
Chisholm v. Simpson, 283.
Chitty V. Hume, 254.
Choate v. Stevens, 46.
Cholmondeley v. Payne, 214, 669.
Chrisp V. Attwell, 287.
Christie v. Bell, 81.
V. Richardson, 107.
V. Hamlet, 170.
Christmas v. Eicke, 72, 73, 124.
Christopherson v. Burton, 354.
V. Bare, 684.
Chubb T. Nicholson, 628.
Church V. Barnhart, 91.
V. Perkins, 412.
Churchill v. Bank of England, 862.
Chrutobley v. London and Birmingbam
Railway Co, 206.
Cines t. Smith, 212.
City Bank v. Ecclcs, 598.
Claridge v. Mackenzie, 84.
Clark T. Dunsford, 10.
T. Johnson, 05. ,
y. Ashfleld, 95.
v. Baker, 181.
V, Dann,229,
T. Newson et al, 285.
V. Perry, 301, 804.
V. Withers, 372.
V. King, 380.
V. Dignam, 074.
T. Martin, 149.
Clarke v. Fuller, 12.
V. Cooke, 40.
V. Clarke, 44,
Clarke v. Proudfoot et al, 110, 111.
v. Stocken, 189.
v. Taylor, 242.
V. AUatt, 250.
— — — V. Rippon, 375.
v. Arden, 403.
v. Leicestershire Canal Co. 454.
V. Durham et al, 690.
Clarkson v. Miller, 14,
V. Lawson, 242. " '"^
Claxtonv. Hyde, 626. , ;
Clay v. Southern, 137.
V. Thackrath, 317.
V. Stephenson, 344.
Clayton v. Attorney General, 461. '"^'
Cleal y. Latham, 13. ,^"^7
Cloarera V. Sevens, 387. . . ' T*'
Clears v. Stephens, 387.
Clegg V. McNab, 503.
Clement V. Weaver, 83. ' ««
Clements v. Howitt, 178. ,
v. Flight, 682. ' '^*''
Clemow V. H. M. Ordnance, 11, 652.
Clerk V. Withers, 352.
Gierke v. Rowsell, 425.
Clubine v. McMuUcn, 192, 425.
Coates V. Sandy, 65.
V. Hornby, 73,
v. Stevens, 91, 229, 237, 681.
V. Birch, 325.
Cobb V. Beck, 137.
Cobbett V. Oldfield, 41. 643. ' '~~
Cochell V. Bridgmari, 487. '* -' '
! 1 '
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I
•^"""l^
zzii
TABLl or OASES.
Cofik T. Oent, 172.
▼. Urookburit, 867.
T. Coxwell, 678.
Cooker t. Tempest, 188.
Cookerell r. Van Dleman'a Land Co.,
826, 881.
Cooks T. Purdaj, 101.
T. Naah, 838.
T. Edwards, 607.
T. Brewer, 673.
Codrlngton t. Curlewis, 181, 407, 628,
666.
Cohen y. Williams, 41.
T. DaTiB, 681, 632.
T. Hannam, 680.
Coit y. Wing, 17, 851.
Colbome y. Stockdale, 243.
Colchester y. Roberts, 247.
Colebeok y. Peck, 880.
Coleman et ux y. Harcourt, 164.
Coles y. Sherrard, 68.
y. Bank of England, 688.
CoUard y. AUisi n, 461, 466.
Collier y. Clarke, 802.
Collin y. Jenkins, 10.
Collinridge v. Paxton, 862. ' ■- '■
Collins y. Johnson, 58, 83, 186.
—— y. Johnstone, 269.
y. Shapland, 78.
y. Aaron, 82, 271.
y. Rose, 208. '
y. Gibbs, 886.
■ y. Goodyer, 643.
, Re, 590.
CoUis y. Groom, 110, 274.
Colson y. Hall, 687.
Colt y. Bishop of Coyentry, 203.
Commercial Bank y. Bonlton, 16, 209,
270.
■ y. Hughes etal, 184,
149.
Commercial Bank et al y. Brondgeest et
al, 10, 18.
Compton y. Earl of Grey, 886.
Comshaw y. Cheslyn, 247.
Concoran y. Taylor, 497.
Condlin y. H. D. Mutual Ina. Co. 200.
Conger y. McKechnie, 617.
Connell y. Watson, 40.
Connop et al y. Levy, 249, 287.
y. Challis, 866.
Consumers Gas Co. y. Eissock, 280.
Cook y. Stratford, 186.
y. Ward, 217.
y. Smith, 298.
Cook y. Darwin, 487.
Cook y. Moylan, 674.
Cooke y. Hopewell, 281.
y. Petit, 886.
Cooling y. 0. N. R. Co, 244, 262, 264.
y. Great W. R. Co, 261.
Coombe y. Sanson, 622.
Cooper y. Wheale, 29.
y. Waller, 61, 82, 86.
y. Whitehouse et aL 142.
y.Nlas, 214.
T. BUck, 220.
y. Langdon, 264.
y. Hanohin, 888.
y. Tiffin, 421.
y. Pegg, 617.
y. Hawkes, 698.
y. HoUoway, 604.
y. Grant, 606.
y. Whitehouse, 678.
ex parte, 588.
Cooper's Bail, 680.
Goose y. Neemeegan, 298.
Cope y. Thames Haren & Dock Co,810.
Copeland y. Child, 824.
Copello y. Brown, 62.
Copley y. Day, 880.
Coppell y. Smith, 862.
Coppin y. Potter, 642.
Corbett y. Calvin, 81, 149.
y. et al, 146.
y. Powell, 206.
y. Lake, 606.
d. Clymer y. NiohoUs, 401.
Corby et al y. Cotton, 480.
Cork & Bandon R. Co. y. Goode, 206.
Cornish y. Hockin, 2, 81, 85.
y. Ross, 628.
Corporation of Ludlow y. Tyler, 226.
Corroll y. Faulkes, 82.
Cory et al y. Hotson, 279.
Costello y. Corbett, 40.
Coster y. Baring, 885.
Cotton y. Sawyer, 29-80.
y. Mackenzie, 165.
y. Browne, 688.
Couling y. Coxe, 887.
Coulter y. Lee, 113.
y. Willoughby, 579.
Court y. Ambergate R. Co, 212.
Coupland y. Challis, 674.
Courtnay y. Earle, 151.
Courtney y. , 461.
Cousens y. Padden, 678.
Cousins y. Paddon, 240, 242.
Covington y. Hognrth, 61.
Cowburn y. Wearing et al, 141.
TABLI or OASIS.
xzUi
Cowell T. B«tte1eT, 618.
9t UZ. T. Wfttti, 160.
Cowei T. Tajlor, 604.
Cowling T. Higgiamn, 247.
Cowne T. Q»rin«nt, 822.
Cowper T. F«irni«n at al, 200.
T. Jonei, 206.
Cox T. Tullook, 88.
— ▼. Thomaion, 218, 267.
— ▼. Thompion, 217, 671.
— T. Cannon, 006.
Cozhead t. Richardi, 680,
Coy T. Forrester, 091.
Coieni T. Ritchie, 41.
Craske t. Johnson, 886.
Oraren r. Sanderson, 616.
Craaford t. Cocks et al, 141.
Crawford t. Ritchie, 10.
T. Cobbledike, 284.
Crawshay t. Collins, 184.
— T. Thompson, 462.
et ol y. Barry, 204.
Creighton t. Brown et al, 176.
Crerar t. Sodo, 804.
Cresswell t. Qreen, 688.
Creswell t. Paokham, 888.
Crocker t. Fotbersill, 420, 427.
Croft T. Brown, 74.
T. Lumley, 401, 402.
T. Egmont, 608. >
Crofts T. Brown, 75. « -
T. Wilkinson, 622. -. .
Croke t. Powell, 889.
Crooks T. House, 10.
T. O'Orady, 22.
T. Chisholm et al, 172, 100.
T. Daris et al, 216.
Croomes t. Morrison, 888, 841.
Crosby v. Clarke, 44.
—— T. Hetherington, 866.
Cross y. Morgan, 44.
▼. Wilkins, 74.
et al T. Jordan, 428, 429.
ex parte, 589.
Crossfield y. Suck, 227.
y. Morrison, 887.
CroBsman y. White, 683. , f,
Crowy. Crow, 81,64. ...'.
y. Field, 81. t ■, ■
Crowder y. Wagstaff, 638.
Crowhurst y. Laverack, 137.
et ux. y. Laverack, 168.
Crowley y. Page, 808. 809.
Crowther y. Elwell, 672.
et al y. Dake et al, 289.
Crozer y. Filling, 856.
Cmoknell y. Traetnao, 249.
Crump y. Adn^^y, 242.
y. Li, 'Ion k B. K. Co., 208.
Cubbltt et al y. Thompson, 206.
Cully V. Doe d. Taylorsun, 411.
Culver well y. Nugee, 81.
Cumberlege y. Carter, 220.
Cumming y. Allen, 176.
Cunliffe, ex parte, 688.
Cunnaok r. Qundry, 218.
Curran y. Elphinstone, 841.
Currey et al v. Bowker, 208.
Curriey. Almond, 264.
Curry r. Amott, 264.
y. Almond, 669.
Curtis y. Headfort, 268.
y. Cutts, 466.
et uz y. Jaryis, 441.
CusHons y. Skinner, 818.
Cutts y. Surridge, 244, 268.
Dainis y. Hartley, 800.
Daintroe y. Hutchinson, 670.
Dakin y. Brown, 688.
Dalby y. Hirst, 886.
Daley y. Arnold, 220.
Dalrymple y. Mullen, 15.
Daltony. Lake, 118.
y. Mclntyre, 268.
Danieliy. Lewis, 268.
Daniell y. James, 66.
y. Barry, 267.
y. Beadle, 654.
y. Wilkin, 421.
Daniels y. Lewis, 255, 670.
y. Qompertz, 688.
y. May, 642.
y. Wealds, 664.
Darby y. Ouseley, 808.
Darbyshire y. Butler, 202.
D'Argent y. Viyant or Taylor, 84^ ..,
Darling y. Wallace, 404. ^
y. Wright, 628. , .
Darnford y. Trattles, 684.
Davenport y. Davenport, 461.
—^ y. Jones, 645.
Davidson y. Bartlett et al, 246.
y. Cooper, 264.
Davies v. Lloyd, 60.
y. Morgan, 73.
y. Thompson, 146.
y. Penton, 232.
y. Stanley, 271.
y. Williams, 388.
I
]'
y. Dod, 487.
T. Skerlock, 646.
■f*
ZZtT
TABLE OF OASES.
1^ !
Davis T. Fortune, 43, • -: > ' '
V. Carruthers, 81.
V. Skerlock, 83.
v. Cooper, 127, 128.
V. Davis, 160, 250, 257, 280.
T. Birdsall et al, 171.
V. Qethy, 192.
V. London and BlackwallR. Co.,
199.
V. Chapman, 245.
v. Dod, 487. '
-v. Trevanon, 605.
V. Jones, 623.
et ur. V. Downdes, 411.
Davison T. Gauntlett, 189.
V. Moreton, 239.
Davy V. Brown, 82, 641.
Daw V. Holt, 5-1.
Dawes v. Solimenson, 33, 58.
Dawson v. Collis et al, 204.
v. Macdonnld, 254, 678.
v. Wills, 643.
V. Moore, 683.
Day T. Clarke, 40.
V. Picton, 40.
Deacon et al v. Stodhart et al, 205.
Dearie v. Ker, 475.
Dearie v. Barrett, 229.
De Barnardy v. Harding, 151.
De Bastos v. Willmott, 623.
De Bode's Bail, 629.
Decker v. Shedden, 219.
Deere v. Kirkhouse, 655.
— — — V. Ivey, 6'0.
Delver v. Barnes, 176.
De Medina v. Norman, 212.
. V. Grove et al, 619.
Dempster v. Purnell, 263.
Dengate et ux v. Gardiner. 153.
Denham v. Talbot, 499.
Denisonv. Mair, 275.
Denn v. White, 426.
Dennett v. Hardy, 297.
Dent v. Bashan, 648.
Denton v. Great. N. R. Co, 224.
. V. Morland, 365.
De Pinna v. Polhill, 673.
Deposit Life As. Co. v. Ayscough, 485.
Deriemer v. Fenna, 268.
De Rothschild v. Shilston, 9.
Devenoge v. Bouverip, 333.
Dewar v. Swabcy, 6G9.
Dicas, ex paite, 645.
Dickens v. Lee, 4G3, 466.
Dickenson V. Eyre, 159.
Dickie et al v. Elmslie et al, 592.
(I
Dickson v. Boulton, 206.
Dighton V. Bartholomew, 886, 58T.
Dignam v. Ibbotson, 279, 282.
V. Mostyn, 282.
Dite V. Hawker, i;62.
Dixon V. Paul et al, 118. '■ ■ ■ ,
V. ThoroUI, 870.
V. Roe, 428.
V. Wigram, 446.
T. Sleddon, 647, 648.
Dobbs v. Passer, 401.
Dobie V. McFarlane, 12.
Dobson v. Blackmore, 453.
Dobson et al v. Groves et al, 171.
Doctrina v. Placitandi, 243.
Dodd V. Holme, 683.
Doddington v. I3ailward, 191.
Dodwell V. Gibbs, 442. -
Doe V. Bird, 317. - •
'« V. Brood, 603.
" V. Challis, 401.
«« V. Cotterell, 298.
" V. Cropper, 176.
V. Errington. 138.
V. Fllliter, 424, 442, 622.
" V. Fisher, 411.
" V. Gosley, 8C5.
" V. Harlow, 442.
" V. Harvey, 426.
" v. Long, 13r<.
" v. Louch, 447.
" v. Roe, 397. 398, 399.
" V. Slight, 333.
" V. Smith, 317.
" V. Street, 403.
" V. Wellsman, 426, 442.
" V. Whitehead, 302. '
" V. Wright, 426, 442.
" Baker v, Harmer, 409.
«* Blackburn v. Standish, 44&.
" Chambers v. Law, 448.
" Hamilton v. Atherly, 448.
Doe d. V. Roe, 398.
•' Agar V. 397.
«' Alton V. Beck, 394.
" Anderson v. Todd et al, 287.
" Anderson et al, v. Todd, 290„
" Anglesy v. Brown, 439.
" Aslin V. Summerpett, 437.
" Atkins V. Roe, 398.
«* Auldjo V. Ilollister, 27.
" Ausman v. Munro, 394.
" Austin V. Summcrsett, 437.
" Avery v. Langford, 333.
" v. Sumniersett, 437..
♦' Bacon v. Brydges, 394.
1.
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TABLE OF OASES.
XXV
Doe d. Bailey v. Bennett, 449.
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Baker v. Harmer, 409.
Baring t. Roe, 398.
Barnett v. Keen, 414.
Bath V. Roe, 397.
Bather t. Brayne, 803.
Bayes v. Roe, 398.
Beard v. , 437.
Beaumont t. Beaumont, 608.
Bell V. Roe, 398.
Bennett t. Roe, 398.
Birch y. Philips, 395, 404.
Bloomer v. Bransom, 593.
Boullott V. Roe, 397.
Boulton V. Ferguson, 24.
Bower v. Roe, 398.
Bowman v. Lewis, 406, 408.
Boys V. Carter, 393.
Burnham t. Simmonds, 24.
Bumbide v. Heclnr, 288.
V. Hector, 290.
Burrows v. Roe, 392.
Braby v. Roe, 398.
Bradford v. Roe, 436.
Brayne v. Bather, 448.
Bromley v. Roe, 398.
Brown v. Roe, 398.
Campbell v. Hamilton, 352.
Capps V. Capps, 446.
Cardigan v. Roe, 436.
Carr v. Jordan, 401.
Carter et al v. Roe, 436.
Carthew v. Brenton, 448.
ot al V. Brenton, 182.
Caulfield et al v. Roe, 438.
Chnffey v. Roe, 397.
Child V. Roe, 333.
Chippindale v. Roe, 392.
et al V. Dysoon et
al, 430.
Church V. Perking, 411.
Clarke v, Stillwell, 174.
Clifton V. Roe, 396.
Clothier v. Roe. 398.
Cock V. Roe, 634.
Cockburn v. Roe, 397.
Colson V. Roe, 396.
Cooper V. Roe, 645.
Cotterell v. Wylde, 298.
Courthorpe v. Roe, 897.
Cox V. Brown, 445.
V. Roe, 430.
Craw V. Clarke, 105.
Crippsv. Walker, 397.
Croley v. Roe, 397.
Crooks T. Cumming, 10.
Deed,
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Crooks et ux v. Gummings, 284.
Crouch V. Roe, 397.
Cundey et al v. Roe, 438.
Daniell v. Woodroffe 396.
Darke v. Bowditch, 428.
Darlington v. Cock, 892, 398.
Davenport v. Rhodes, 404, 405.
Davidson v. Roe, 634.
Davies v. Creed, 403.
Dempsey v, Boulton, 26.
Dickens v. Roe, 398.
Dinorben v. Roe, 397.
Dixon V. Roe, 428.
Dobler v. Roe, SS^S.
Dodge V. Rose, 288. ' '
Dolby V. Hitchcock, 634.
Dougall V. Fanning, 26. ' >
Dry V. Roe, 397. ] •
Dudgeon v. Martin, 321. '■*
Dunlop V. Roe, 634. '
Dunn V. Roe, 634.
Duntze v. Duntze, 154, 161.
Durant v. Roe, 439.
Eaton V. Roe, 397.
Eberts v. Montreuil, 154.
Edwards v. Gunning, 393.
Egremont v. Stephen, 415.
Elmsley etux v. Mackenzie, 24.
Errington v. Errington, 408.
Farn Combe v. Roe, 397. '
Felden v. Roe, 448.
Fellowes V. Alfoid, 401. *
Field V. Roe, 398. ' i
Fish V. Macdonell, 108.
Fisher V. Roe, 398. i
et ux V. Alford, 411.
Fishmongers' Co. v. Roe, 898.
Flanders v. Roe, 449.
Folkes V. Roe, 392.
Forster v. AVandlass, 428, 430,
435.
Foucan v. Roe, 438.
Fowler v. , 397.
Frith v. Roe, 396.
Frost.v. , 392.
Galbraith v. Walker, 167.
Geldart v. Roe, 437.
George v. Roe, 397. ^
Gibbard v. Roe, 897. '
Ginger v. Roe, 397.
Gowland v. Roe, 645. '
Graham v. Edmondson, 321.
Grange v. Roe, 397.
Grant v. Roe, 645.
Gray v. Roe, 397.
GreenshieldsT. Garrow, 16, 853.
I
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ZXVl
TABLB OF OASES.
Doed
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Greenshields v. Garrow et al,
853.
Oretton et al v. Koo, 429.
Greycoat Hospital v. Roe, 397.
Grocers' Co. v. Roe, 401.
Groove v. Roe, 397.
Haggitt V. Roe, 899.
Hall V. Wood, 436.
Harcourt t. Roe, 435.
Harleigh v. Roe, 898.
Harris t. Masters, 430, 434, 485.
V. Roe, 397.
Harrison t. Hampton, 415.
T. Louch, 446, 448.
Haverson v. Franks, 430.
Haxby v. Preston et al, 191.
Heighley t Harland, 448.
Hellier v. Roe, 390.
Hellings v. Bird, 414.
Hellyer v. King, 408.
Henderson t. Burtoh, 10.
Henson v. Roe, 890.
Hiblethwaite T. Roe, 400.
Hitchings v. Lewis, 429, 431.
Holder r. Rushworth, 438.
Hope V. Roe, 396.
Horton v. Roys, 400.
Horwood v. Lippinoote, 401.
Hudson V. Jamieson, 401.
Humphrey v. Owen, 283.
Hunter v. Roe, 396.
et al V. Roe, 397.
Hurst V. Clifton, 444, 445.
Hussey v. Roe, 448.
Innes v. Roe, 392.
James t. Stanton, 6\)2,
Jenkins v. Roe, 397.
Jessup v. Bartlett, 10.
Johnson v. Roe, 398.
Jones V. Powell, 189.
et ux. V. , 189.
Kerr v. ShofiF, 14.
Kimber v. Cafe, 407.
Kindersley v. Hughes, 437.
et al, V. , 437.
Kingston v. Kingston, G06.
Kirschner v. Roe, 398.
Knight V. Dean, 396.
Lake v. Davis, 449.
Lambert v. Roe, 435.
Laundy v. , 399.
Lawrence v. Shawcross, 428,
429.
Ledger v. Roe, 4G1.
Leigh V. Hunt, 286.
Levi V. Roe, 439.
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Doe d. Lloyd et al, v. Roe, 403, 404,
406.
Locke V. Franklin, 401.
Lowndes v. Roe, 396.
Macdonald v. Long, 167.
Mackay v. Purdy et al, 302.
V. Roe, 449.
Mackenzie et al, v. Rutherford,
446.
Mttdkina v. Horner, 176.
Mann v. Roe, 396.
Margan v. , 397.
Marks v. , 439.
Marriott v. Edwards, 392.
Mayhew v. Asby, 435.
Mayo V. Cannell, 178.
McDonald v. Twigg et al, 813.
McGregor v. Grant, 22.
Mcintosh V. McDonell, 27.
McPherson v. Hunter, 26.
Medina v. Grove, 888.
Mee V. Litherland, 401.
Meyers v. Meyers, 24.
Meyrick V. Roe, 401. ,
Middleton v. Roe, 398. "
Millburn v. Sibbald, 445.
Miller v. Tiffany, 352, 353.
Mills V. Kelly, 24.
Monough et al, v. Maybee, 821.
Morgan t. Rothcrham, 437.
438.
Morland v. Bayless, 897.
- V. Bayliss, 634.
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Morris V. Rosser, 191.
V. Roe, 333.
Mudd V. Suckermore, 815.
Mullarkey v. Roe, 401.
Murphy v. Moore, 398.
Nash V. Roe, 397.
Newstead v. Roe, 436.
Nottage V. Roe, 398.
Overton v. , 398.
Overy v. , 397.
Pamphillon v. Roe, 397.
Parsons v. Heather, 394.
Pattison v. Roe, 397.
Pearson v. , 400.
Pemberton v. Roe, 436.
Peterson v. Cronk, 154.
Phillips V. Roe, 436, 439.
V. Rollings, 160.
Pinchard ■». Roe, 448.
Pitcher v. , 413.
Place V. Skae et al, 302.
Pope V. Roe, 399,
Postlethwaite v. Neale, 421.
1|
TABLE OF OASES.
XZYU
\\
'
Doe d. Potter v. Roe, 401.
Powell V. , 429,
Presottv. , 82, 641.
Price V. , 892.
Protheroe v. Roe, 897.
Pryme v. Roe, 41.
Rabbits v. Welch, 804.
Ramsbottom v. Rae, 871.
Read t. Paterson et al, 279.
V, Roe, 397.
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Rees V. Dick, 291.
V. Howell, 423, 606.
T. Thomas, 449.
Reimerv. Glass, 291.
Reynolds v. Roe, 898.
Ringer v. Blois, 290.
Roberts v. Roe, 396, 602.
et al, V. Roe, 405.
Rossv. , 896.
Royle V. Roe, 897.
Sampson v. Roe, 489.
Sanders v. — , 437.
Sanderson v. — , 634.
Saunders v. Duke of Newcastle,
392, 405.
Saxton V. Turner, 892.
et al, V. Turner, 428.
Schofield V. Alexander, 428.
Schovell V. Roe, 392.
Selby V. Alston, 449.
V. Ashton, 603.
Selgood V. Roe, 437
Shannon v. — , 447.
Shaw V. Roe, 401.
Sherwood v. Roe, 634.
Shrewsbury v. Wilson, 428.
Shuter et al, t. Maclean, 445.
Simpson v. Hall, 394.
V. Roe, 899.
Sinclair v. Arnold, 394.
Smelt V. Fuchan, 430.
Smith V. Roe, 2, 391, 391, 398.
V. Webber, 408.
Spaflford v. Brown, 16.
Standish v. Roe, 448.
Steppins v. Lord, 290.
Stevens v. , 413.
Story V, Roe, 397.
Swinton v. Sinclair, 891.
Taggart v. Butcher, 883.
Taylor v. Coutes, 397.
V. Crisp, 380.
V. Johnson, 428.
Tenbrook v. Cole, 284.
Thomas v. Field, 436.
Thompson t. Hodgson, 441.
Doe d.
T. Roe, 401.
V. — ,397, 898.
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II
II
II
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II
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II
Threader
Tilyard v. Cooper, 400.
Timothy v. Roe, 892.
Tindal v. Roe, 317, 319, 436.
Topping V. Boast, 438.
Trough ton v. Roe, 401.
Tubb T. Roe, 444, 445.
Upton V. Witherwitck, 436.
Vanoott V. Read, 492.
Vastien v. Roe; 399.
Vernon v. — , 404.
Yisgen t. — , 896. ,.
Walker v. — , 645.
WatBon V. — , 897, 898.
Watts V. Roe, 437.
Wawn V. Horn, 408, 414.
Webb et al, v. Hull, 406.
West V. Davis, 428, 435.
WetUerall v. Bird, 817.
White V. Roe, 891.
Whitsides y. Hinds, 401.
Whitfield v. Roe, 437.
Whittington v. Hords, 413.
v. Hurd, 424
Whitty V. Carr, 615.
Williamson v. Roe, 899, 646.
Willis V. Birchmore, 403.
" Wingfield v. Roe, 397.
" Wright V. Smith, 317.
" Wyatt V. Byron, 435.
'« V. Stagg, 321.
" Young V. Smith, 852.
Dolby V. Mott, 475.
Donaldson v. Thompson, 677.
Donatty v. Barclay, 625.
Doncaster v. Cardwell, 282.
Donlnn v. Brett, 172.
Doc V. Batcher, 181.
Doogood V. Rose, 887.
Dorcns v. Hull, 50.
Dorman v. Rawsou, 16.
Dormay v. Burrowdaile, 462.
Dossettv. Gingell, 177, 180.
Dougall T. Bowman, 254.
V. Maclean, 83.
Douglas V. Bradford, 24.
V. Murchisor et al, 504, 508.
Dowbiggin v. Hnrriscn, 380.
Dowling A. Powell, 116.
V. Foxall, 431.
V. Hannan, 603.
Down V. Hatcher, 386, 387.
Downes v. Garbett, 29. 605.
Dowse y. Cone, 178.
Drabble y. Denbam, 632.
1
3k
i
X
xxviu
TABLE OF CASES.
Drage v. Bird, 75.
Dragg V. Brand, 278.
Drain v. Harvey, 480.
Draine t. Russell et ux, 290.
V. , 291.
Drake v. Lewin, 229.
V. Pickford, 282.
Drayson et al v. Andrews, 321, 822.
Drayton v. Dale, 387.
Drean v. Smith, 616.
Dreive v. Lainson. 854.
Dresser v. Clarke, 847.
Drew et al v. Baby, 285.
Driver v. Hood, 44.
d. Oxenden v. Lawrence, 400.
Dronfield v. Archer, 40.
Drummond v. Bradley, 91, 264.
V. Pigou, 683, 684.
Duberly v. Page, 257, 287.
Dublin R. R. Co. v. Black, 202.
Dubois V. Lowther, 74.
Ducat V. Sweeney et al, 150, 151.
Duckworth d. Tubley et al v. Tunstall,
435.
V. Harrison, 672.
Dudden v. Friquet, 226.
Dueer v. Tribuer, 205, 213.
Dugate V. Gardiner, 154.
Duggan V. Derrich, 56.
V. Bright, 164.
Duke V. Dive, 199.
Duke of Brunswick v. Sloman, 269.
Dukes V. Gosling, 684.
Duncan v. Scott, 343.
Duncombe v. Crisp, 641.
Dunford v. Trattles, 684.
Dunlop v, Higgins, 233.
Dunmore v. Tarleton, 205, 206, 252,
255, 261.
Dunn V. Harding, 63.
V. Loftus, 226.
V. Coutts, 284, 287, 290, 299.
V. Aslett, 307.
V. West, 618.
V. Warters, 655.
Dunnell v. Young, 230.
Durrant v. Biurton et al, 605.
Dwyer v. Collins, 319.
Dyer v. Manningham, 502.
Eades v. Everett, 672.
Eadon v. Roberts, 123, 214.
Eady, re, 48.
Eager v. Cuthill, 283.
Earle V. Oliver, 274. /.
v. Hinton, 372.
Easter t. Edwards, C27.
Eastern Cos. R. Co. t. Robertson, 172.
East. Union K. Co. v. Symonds, 285.
Easton v. Pratohott, C79.
Eastwood V. Kenyon, 078.
Eastwick v. Harinan, 91, 262, 681. ^
Eaton T. Shuokburgh, 284.
Eocles V. Cole, 80.
V. Johnson, 206.
Edden v. Ward, 208.
Eddison v. Pigram, 222.
V. Peagram, 239.
Eden v. Turtle, 244, 462.
Edenser v. Iluffman, 256.
Edgell T. Dallimore, 174.
Edgington v. Prouiman, 004.
Edmonds t. Challis, 813.
ex parte, 642.
Edmunds v. Keats, 030.
V. Groves, 680.
V, Grovor, 084.
Edward v. Monk, 497.
Edwards t. Collins, 32, 81, 83.
V. Jones, 40.
V. Dignan, 00.
v. Martin, 83.
V. Davies, 190.
V. Price, 226.
T. Bethel, 256.
v. Matthews, 803.
V. Martin, 882.
y. Blunt, 888.
V. Griffith, 890.
v. Lnundei?, 451.
v. Hodges, 483, 484.
V. Holiday. 608.
v. Collins, 040.
v. Dank?, 041.
Edwards et al v. Wakefield, 840.
Edwin V. Chester, 382.
Ekins v. Evans, 199.
Eldeoton v. Em mens, 272.
Elderton v. " , 243, 390.
Electric Telegraph Co. v. Nott, 401.
Eliot V. Morgan, 1 31.
Elkin V. Jansoji, 245, 302.
Elkington v. Holland, 007.
Elliot V. Bishop, 158, 163, 242.
V. Girtteridge. 627.
V. Thomas, 073.
Ellis V. Trusler, 281.
V. Gritlith. 368.
EUistou V. Robinson, 00.
Ellon V. Larkins, 317-
Ellwood V. Pearco, 02.
Elmore v. Colmun, 178.
W
TABLE OF CASES.
XXIX
•
W
Elridge v. Boyntown, 287.
Elwell V. Grand Junction B. Co, 239.
El wood V. Monk, 497. *
Emanuel v. Randall, 205.
Emblin v. Dartneli, 888.
Emery v. Miller, 233.
V. Webster, 237, 482, 483.
V. Wheeler, 262.
V. Howard, 298.
V. Clarke, 684. r
Emct V, Ogden, 181.
Emmett t. Slanden, 287.
Empey v. King, 48.
Empson v. Fairfax, 256.
Enfield v. Hills, 412.
England v. Watson, 227.
V. Came, 461.
V. Curling, 463. -'
Englehart v. Eyre, 85.
Engleheart v. Eyre et al, 33.
V. Eyre, 348.
English V. Everitt, 49.
Engstrom t. Brightman, 161.
Ens V. Mohun, 387.
Erwin v. Powley, 73.
Ernest v. Brown, 91.
Ernst V. , 681.
Esdaile et al v. Lund, 145.
Estcourt, ex parte, 688.
Ethersey v. Jackson, 297.
Evans v. Whitehead, 31.
V. Bidgood, 62.
V. Dublin & Drog'da R. Co, 72.
V. Fryer, 135.
V. Senior, 220.
V. Ogilvie, 247.
V. Kingsmill, 257, 386.
V. Delegal, 333.
V. Collins, 387, 391.
V. Elliot, 427.
— — V. Bremridge, 474.
V. Shaw, 509, 510.
V. Jackson, 674.
^— V. P., an attorney, 587.
Everard v. Paterson, 187.
V. Poppleton, 607.
Evitt V. Price, 464.
Ewer V. Jones, 247.
et al V. Ambrose, 306.
Ewing V. Lockhart, 642.
et al V. Lockhart, 42.
Eyre v. Walsh, 32.
V. Scovell, 247.
Fabian y. Winston, 428.
Fabrigas v. Mostyn, 412.
Failhorno v. Blaquiore, 605.
Fagan v. Harrison, 214.
Fagan, re, 643.
Faggv. Nudd, 200, 271, 272.
Fairbrass v. Pettitt, 48.
Faithful V. Achley, 288.
Fall et al v. Lewis, 662.
Fannin V. Anderson, 199.
Fanov. Coken, 132. ,. , ;
Far V. Deiin, 375. ,,
Farber ▼. French, 640.
Earn worth v. Chester, 386.
Farrant, re, 649. ^ :
Farrar V. geswick, 684. ,,
Farrell v. Gleeson, 371.
Farthing v. Castles, 289.
Farwig v. Cockleton, 209, 298.
Faulkner v. Saulter, 172.
V. Chevell, 681.
Faviell v. Eastern Cos. R. Co, 171.
Fay V. Prentice, 151, 453, 461.
Featherstono v. Cooper, 170.
V. Bourne, 290.
Feegan v. Robson, 686.
Felton v. Conley, 617.
Fenn v. Green, 278.
V. Grafton, 690. , ' ' '
Fennel v. Tait, 330. ' ' "
Fenton v. Anstice, 219.
Fenwick v. Laycock, 676, 679.
Ferguson v. Hill et al, 24.
V. Murphy, 43.
V. Mahon, 287. '
Fergusson v. Mitchell, 213. ''
Ferrer v. Oven, 173, 174. "'
Ferrers v. Shirlejf, 315.
Ferrie v. Tannahill, 83, 280. '"
v. Mingay, 357.
Ferrie et al v. Lockhart, 598.
V. Young, 661.
Ferrier v. Moodio, 408.
Ferry v. Williams, 386.
Fetherstone v. Cooper, 193.
Fewings v. Tisdal, 274.
Fibee v. Hopkins, 445, 447.
Fidgett V. Penny, 679.
Field V. Sawyer, 259, 269.
V. Pooley, 276.
V. Flemming, 317.
V. Partridge, 424, 617.
V. Woods, 678.
Filmer V. Burnby, 151, 648.
Finch V. Brook, 619. '
V. Cocken, 625.
Finlayson v. Mackenzie, 230.
Firley v. Rallett, 640.
H
9
in
XXX
TABLE OF OASES.
Firley v. Ratlett, 84.
Firmin v. Perry, 78.
Firmstone v. Wheely, 161, 401.
I: (h V. Robinson, 177.
Fischer t. Aide, 229.
Fish V. Horner, 626.
Fisher v. Brooks, 16.
" V. Thayer, 48.
Fisher v. Goodwin, 74.
——7. Ferris, 161.
v. Ford, 201.
V. Lediard, 290.
V. Ronalds, 311, 340.
V. Bridges, 389. ,,
V. Snow, 699.
V. Nicholas, 606.
V. Thuyer, 648.
-v. Thames Junction Co, 691.
Fisher et al v. Edgar, 13.
— V. Beach, 96.
Fitch V. Toulmin, 225.
Fitzgerald v. Evans, 62, 66.
V. Graves, 177.
V. Hussey, 432, 433.
V. Whitmore, 603.
Fitzwalter Peerage Case, 315.
Flagg V. Borsley, 271.
Flaherty v. Mairs, 196.
Flemming v. Ex'tors of Wilkinson, 16.
V. Simmington, 169.
Fletcher v. Lechmero, 149.
— V. Tayleur, 233.
V. Everard, 608.
Flight V. Smale, 252.
V. Thomas, 684.
Flitcroft V. Fletchar, 340, 388.
Flockton et al v. Hall, 205.
Flowers v. Welch, 282.
Flureau v. Thomhill, 232.
Foley V. White et ux. 52
T. Addenbrooke, 137.
V. Botfield, 162.
FoUett V. Delany, 326.
Foote V. Dick, 640.
Forbes v. Smith, v 7.
V. Crow, 281.
Forbes et al v. Smith, 127.
Ford V. Lusher, 95.
V. Beech, 241.
V. Gray, 414.
Forman v. Dawes, 691.
Forsham v. Lewis, 335.
Forster v. Weston, 40.
. V. Pryme, 207.
V. Hodgson, 604.
Forsyth v. Bristow, 205.
Forsyth v. Bristow et al., 205.
Foitv. Oliver, 881.
Fosberry t. Butter et al, 290.
Foster v. Pryme, 207.
y. The Bank of England, 888.
V. Pointer, 518. 620.
v. Jally, 679.
Foster et al v. Smith, 16.
Foulds v. Scarfe, 242.
Foulkcs T. Burgess, 637.
Fountain v. Smith, 153.
V. Steele, 603. ;
Fowell V. Petre, 640.
Fowler v. Coster, 302.
■ v. Rickerby, 871.
Fowler's Bail, 632.
Fownes v. S cokes, 84.
Fox V. Money, 84.
V. Chandler, 254.
Fralich v. Huffman, 656.
Fralick v. " , 20, 261.
Francis v. Brown et al, 105, 118, 119.
Frankman v. Hodginson, 368.
Frankum v. Falmouth, 684.
Fraser V. Newton, 677. *'
Frazer t. M. C. of Stormont, Dundas,
and Glengarry, 62.
Fre T. Hawkins, 594.
Frear v. Ferguson, 41.
Freeland v. Jones et al, 504. '
Freeman v. Donnelly et al, 198. '
v. Crafts, 263.
V. Steggall, 317, 609.
v.. Frank, 880.
V. Rosher, 381.
V. Tranah, 617.
Freer v. Savage, 441.
Fremlin v. Hamlin, 200.
French v. Burton, 283.
V. Archer, 679.
Friar v. Gray et al, 210.
Fiiden v. Bray, 283.
Friedlander v. London As. Co. 306.
Frith v. Donegal, 78.
Frodsham v. Rust, 290.
Fremont v. Ashley et al, 91.
Frost ex parte, 590.
V. Hayward, 643.
Froster v. Bettes et al, 246.
Fry V. Rogers, 130.
V. Moncton, 257.
T. Maun, 280.
Fryer v. Smith, 62,
V. Sturt, 656, 664.
Fuller V. Fenwick, 176, 232.
V. Hall, 230.
<mj^
k_i
TABLE OF 0ASE9.
XXXI
I
Palmer t. Bumby, 678.
Fulwell v. Hall, 280.
Furnell v. Smith, 867. ' ' '" ■"
Fynn v. Kemp, 641.
Gababdi v. Hazmer, 261. ' "*
Gabell v. Shaw, 218. • — -
Gable v. Mago, 801.
Gablentz' Bail, 630.
Gabriel et &1 r. Dresser, 242.
Gains V. Bilson, 281. ' -
Gale et al v. Iluyorth, 626.
Gall V. Winkes, 74.
Gallena v. Cotton, 576. —
Galloway y. Jackson, 888.
Galsworthy v. Strut, 232.
Galway v. Marshal, 217.
Galworthy v. Norman, 884, 838.
Gamble et al t. Russell, 15.
V. Jarvis, 117-
V. Rees, 218.
Gambrell v. Earl Falmouth, 257.
Gandell v. Motte, 290.
Gapp V. Robinsou, 67.
Gardener v. Burwell, 12. "
Gardiner v. Morrison, 45.
V. Gardiner, 845, 846.
— — T. Alexander, 673.
Gardner v. Stoddard, 377.
V. Baillie, 411.
Garley v. Garley, 479.
Garrard v. Cottrell, 151.
Garrells t. Alexander, 315.
Garrett et al v. Cotton, 255.
Garth v. Thomas, 447.
Gass V. Cocleugh, 140.
Gaters et ux v. Madely, 163.
GatliflFe v. Dunne, 187.
Gavin v. Allen, 290.
Gawler v. Jolley, 257.
Gay V. Hall, 607.
Gazten v. Robinson, 246.
Geach v. Ingall, 302.
Geach et al v. Ingall, 803.
Geary v. Norton, 468, 465.
Gell V. Curzon, 608.
George v. Elston, 619.
Geraghty v. Malone, 833.
Gerish v. Chartier, 309.
Gerry v. Hopkins, 330.
Gether v. Capper, 212, 262, 253, 254.
Gibb V. King, bol.
Gibbs V. Kimble, 60.
T. Goles, 283.
V. Tunaley, 616.
Gibbons v. Mattram, 598.
Gibson v. Cubitt, 284.
V. Varley, 148.
V. Washington, 287.
V. Toronto Roads Co, 803.
V. Harris, 675.
Gigner v. Bayly, 333.
Gilbert v. Kirkland, 287.
T. Oooderham, 309.
V. Hales, 214, 669.
Oilbertson v. Richardson, 237.
Gildersleeve v. Chilver, 661.
Giles V. Hutt et al, 260, 475.
V. Nathan, 862.
V. Hutt, 475.
Giles et al v. Groves, 242.
Gill V. Rushworth, 347.
Gillespie v. Nickerson, 495.
Gillespie et al v. Grant, 50, 621.
V. Nickerson, 83.
Gillet V. Green, 107, 516.
Gillett V. " , 519.
Gilling T. Duggan, 10.
Gillingham v. Waskett, 129.
Gilmore v. Melton, 287.
Gilmour v. Hall et al, 232.
Gilmour et al t. Wilson et al, 83.
Gilson V. Carr, 58.
Ginger v. Pycroft, 279, 612.
Gittens v. Symes, 465, 466.
Gladwin v. Chilcote, 170.
Glass V. Baby, 45, 49.
— — V. Cocleugh, 92.
Glasse v. Glasse, 216.
Glasse, in re, v. Glasse, 698.
Gledstane v. Havit, 195.
Glen V. Lewis, 220.
Glenn v. Box, 37, 038.
Glenville v. HutcL is, 40.
Glover y. Dixon, 205.
V. " et al, 245, 246, 247.
Glynn v. Dunlop, 17, 860.
Goatley v. Herring, 90, 681.
V. Emmott, 603.
Goddard v. Harris, 61.
Godee v. Goldsmith, 237.
Godson V. Good, 146.
GoflFv. Harris, 229.
Gogan V. Lee, 32.
Goggs V. Huntingtower, 72, 73, 74,
124.
Goldee v. Goldsmith, 238.
Goldie V. Shuttleworth, 317.
Golding V. Scarborough, 640.
Goldsburg v. Lessor, 262.
Goldstein v. Foss, 218.
Goldstone v. Tovey, 818.
I
1
Q
31
Q
I
3 ^
H
UBMM
xxxu
TABLE OF CASES.
Ooldthorpe t. Hardtnan, 453, 4G1.
Gompcrtz v. Denton, 40.
Goodall \. Wray, 655.
Goodburne r. Bowroan, 387, 390.
Goodchild v. Leadbam, 31, 81.
Qoodheart v. Lowe, 4(33.
Goodiffo V. Neave, 2, 120.
V. Neavea, 123, 127.
Goodliff V. Fuller, 333.
Goodman t. Morel), 254.
V. Pocock, 274.
Goodricke v. Turley, 643.
Goodright v. Thrustout, 397.
(1. Hare v. Ctor, 428.
V. Noright, 435.
V. Moore, 446.
Goodtitle V. Clayton, 306.
V. Badtitle, 369, 374, 392,
401.
d. Norfolk v. Notitle, 437.
V. LansdowD, 446, 447.
d. Fisher v. Bishop, 440.
V. Pope, 446.
V. Bishop, 447.
d. Waklin V. Fuller, 87.
Goodwin v. Sugur, 257.
Gorarn v. Sweeting, 243.
Gordon v. Fuller, 87.
V. Cleghorn, 279.
V. Smith, 287.
< V. Somerville, 351.
V. Ellis, 387.
Gordon's Case, 330.
Gorrie v. Beard et a1, 13.
Gorringe v. Terrewest, 74.
Goslin V. Tune, 13.
Goswell V. Hunt, 031.
Goudy V. Buncombe, 51.
Gougli V. Bryan, 683.
Gould V. Barnes, 131.
V. Oliver, 238.
Gourlay v. McLean, 128.
Govcrs V. Elkins, 229.
Govett V. Radnidge et al, 239.
Grace v. Wilmer, 600.
V. Meigban, 603.
Graham v Glover, 172.
V. Darcey, 175.
V. Furber, 259.
V. Edmondson, 321.
V. Clover, 329.
V. Pitman, 079.
Grand Junction W. W. Co. v. Key, 72.
Grand River Nav. Co. v. McDougal et
al, 321.
Grant v. Mcintosh, 14.
v. Flower, 641. •■'..«(
et al V. Fanning, 442.
Graves v. Waller, 36 .
V. Browning, 642. », ,
Gray v. Qwennap, 172.
V.Pindar, 222. ,, t
V. Wilcock, 346.
qui tam v. Dettrick, 636.
v. Leaf, 655.
et al V. Friar, 212. .,
Gray, Re, 645. -,, ■
Grealex v. Grealex, 463.
Greaves v. Hunifries, 135.
V. " et al, 142.
Greo V. Rollo, 421.
Green v. Kettleby, 81. ,
V. Marsh, 241.
V. Smithies, 682.
Oreenaway v. Holmes, 284.
Greene V. Bridges, 431.
et al V. Ward, 678
Greenfell v. Edgecombe, 655.
Greenfield v. 'i , 684.
Greenhillv. Shepperd, 143.
Qrwenshields v. Hxrris, 308.
Greensill v. Hopley, 628.
Greenway v. Titmnrsh, 10.
Greenwood v. Johnson, 39. ,
V. Selden, 74.
Gregory v. Slowman, 412.
V. Cotterell, 484.
V. Gurdon, 631. , » -
V. Hartnell, 674. , ,.
Grenville v. Stnltz, 320. . ,
Grew V. Hill, 084, 086.
Gribble V. Buchanan, 574. ,,
Griifin v. Smythe, 333.
et al V. Bradley, 82.
Griffith V. Selby, 254, 269, 071. .
V. Roberts, 254.
V. Williams, 380.
Griffiths V. Pointoii, 40.
V, Lewis, 218, 087.
V. Kynaston, 257.
V. Jones, 257.
V. Ivery, 315. -., •
V. Thomas, 617. . ,
V. Liversege, 617.
Grimsley v. Parker, 230. ,
Urimstone v. Gowor, 392. v
Clipper V. Bristow, 606.
Grisdale v. Boulton, 171.
Grissell v. James, 214. 669, 670, 671.
V. Stokes, 83.
Grounsell v. Lamb, 673. . v -
Grove v. Withers, 205. ,
Qaara
Guest
TABLE OF OASES.
• •t
XXXUl
Quarantoe Society, in re, 173.
Guest T. Elines, 188.
T. Elwes, 189,
Gulliver T. GumTer,-477.
Gully T. Biuhop of Exeter, 243, 244,
262, 264.
Guteris, ex parte, 68.
Guyard t. Sutton, 140.
Gwillim V. Howes, C32.
Gwinnell v. Herbert, 677.
G. W R. Co. V. Baby et al, 167, 171.
V. Dodd, 172.
V. Dougall, 172.
V. Hunt, 172.
G Wynne v. Davy, 161.
— — — V. Burwell, 245.
V. Burnell, 887.
V. SUarpe, 686.
Gynn v. Kirby, 69.
Haddock v. Williams, 645.
Hadley v. Baxendale, 234.
Hadrick v. Haslap, 289.
Hagger v. Baker, 176.
Haigh V. Frost, 606.
Haines v. Taylor, 461.
Halden v. Glasscock, 189.
Hale V. Mathieson, 177.
Hall V. Story, 10.
V. Brush, 42, 45.
V. Scotson, 75, 90, 123, 124, 125.
V. Redington, 81.
V. West, 83.
V. Ferguson, 167.
V. Ellis, 172.
V. Hinds, 176. ,
V. Rouse, 190.
V. Blandy, 218.
V. East India Co., 230.
V. Shannon, 321.
T. Brambridgo, 333.
V. Hall, 463.
V. Popple well, 597, 698.
V. Bowes, 601.
V. Dale, 606.
V. Wetherall, 637.
Hallot V. Hallet, 188.
V. Stanard, 201.
Hftllhcad V. Young, 303.
Halliday v. Bohn, 261.
Halsal V. Wedgwood, 396.
Halton V. White, 75.
Ham V. Mcpherson et al., 9.
V. Gregg, 287.
Hambridge v. Crawley, 347.
V. De La Courte, 648,
8
Hamer v. Lalng, 441. v
Hames v. Taylor, 401. ' j
Hamilton v, Mingay, 104,
V, Wilson, 171.
V. Davis et al., 203, 221, 246,
803.
V. Anderson, 511.
V. Dalziel, 639.
Hamlet v, Breedon, 207,
Hamlin v. Great Northern R. Co , 234,
235,
Ilammon v. Sedgwick, 463.
Hammond v. Teague, 254.
Hancock v, Bethune, 233,
V, Noyes et al., 262.
Handcock v, Bethune, 662.
Handly v. Levy, 40.
HandrcU v. Pawsey, 290.
Hands v. Clements, 42, 48, 645.
Hannah v. Wyman, 83.
Hannay v. Smith, 134.
Hanntuo v. Goldner, 673.
Hansard v. Robinson, 487. 488.
Hansby v. Evans, 287.
Hanson v. Shackleton, 82.
Harcourt v. Wyman, 137.
v. Ramsbottom, 170.
Harcourt et al. v. Wyman, 153..
Harden v. Clifton, 201.
Harding v. Forshaw, 172.
V. Barrett, 361.
Hardwell v. Jarman, 806.
Hardy v. Bern, 278,
Ilargravo v. Hargrave, 326,
Harlow v. Read, 187. '
v. Witstanley, 192.
Harman v. Teague, 205.
V. Jones, 464.
Harnett v, Maitland, 199.
Harper v. Brainton, 12.
V. Powell, 23.
Harper et al. v. Abrahams, 184.
Harrington v. Fry, 315.
V. Harrington, 402.
V. Representatives of By-
tham, 405.
Harris v. Holler, 58.
V. Montgomery, 91.
V. Butterley, 134.
V. Reynolds, 1 83.
V. Phillips, 195.
V. Bush ell, 230.
V. Hawkins, 284.
V. Goodwin, 387.
V. The Great Northern R. Co.,.
888, 615.
»■
Q
s
>
i
^ « knmnm^am
mm
f '
XXXIV
TABLE or OASES.
Harrison v. Turner, 40.
V. Iligby, 40.
V. Williftina, 77.
T. Wright, 83.
V. Miithews, 161.
V. Smith, 170.
V. Grundy, 40.
V. George, 41.
V. Watt, 288.
V. Ilenthorpo, 880,
V. Blakely, 476.
y. Dixon, (590.
Harrison's Bail, 630.
Harsant t. Busk, 231.
Hart V. MoGcrvia, 40.
V. Meyers, 190, 199, 636.
V. Longfellow, 213.
V. Bell, 264.
V. Cutbuah, 250, 271.
T. MiJvileton, 682.
V. Crowley, 084.
Hart et al. v. Boylo, 216, 209.
Hartley t. Radenhurat, 88.
Harvey v. Shclton, 192.
v. Brydges et al., 196.
V. Bridges, 201.
T. Watson, 200.
V. French, 218.
V. Pocock et al., 280.
V. Hamilton, 239, 255, 201,
078.
V. Lankestcr, 206.
V. O'Meara, 297, 831.
V. Morgan, 031.
V. Towers, 680.
Harwood t. Hard wick, 164.
Hasketh t. Flemming, 86.
Haslope v. Thorn, 042.
Hastings v. Champion et al., 146.
Hastings et al. v. Whitley, 202.
Hatfield t. Phillips, 462.
Hatton V. Macready, 110, 111.
Haverill t. Eastern Counties R. Co.
170.
Hawdone Be., 590.
Hawke t. Duggan, 190.
Hawkes T. Hawke, 218.
Hawkins v. Akrill, 823.
Hawkyard v. Stocks, 172.
Hawn V. Madden, 150.
Hay V. Fisher, 077.
Hayes v. Caufield, 200.
Hayne t. Robertson, 828, 484.
Haynes v. Powell, 48, 044.
Hayward t. Bennett, 266.
Hazleton t. Bruuidgo, 14.
Hazlewood t. Back, 267.
V. Do Bergue et al., 800.
Head v. Baldrey, 07».
Ileald's Bail, 01:9, 036.
Heap et al. v. Livingston, 146.
Hoaton v. Whittaker, 037.
Heath v. White, 78.
V, Durant, 210, 254.
V. Rose, 219.
V. Gurley, 620.
V. Durrant, 073.
V. Milward, 090.
Heath et al. v. Durrant, 670.
Heathcoto v. Wynn, 617.
Heatherington v. Robinson, 187.
Hedden v. Gregory, 6f^4.
Ilegingbotham v. South Eastci'n Steam
Co., 0^2.
Hemming v. Duke, 180.
V. Swinnerton, 193.
V. Parry, 239.
V, Power, C80.
Hemsworth v. Brian, 301.
Henderson v. Perry, 17.
▼. Harper, 47.
V. Williamson, 187.
y. Niobolls, 232.
V. Perry et al., 360.
Ilenfrce v. Bromley, 301.
Hcnkin V. Guersa, 150.
V. Guresa, 287.
Henkins v. Guersa, 201.
Henry v. Goldney, 140.
Henshall v. Roberta, 150.
Herbert ex parte, 688. ,
Kerch v. Coates, 802.
Hernod v. Wilkin et al , 213.
Heron v Heron, 200.
Herscbfield v. Clarke, 335.
Hesketh v. Flemming, 29, 75, 77.
Hether et al. v. Wallace, 107.
Hetherington v. Whelan ct al., 30.
Hever v. Aubin, 23.
Hewett V. Webb, 336.
Hewings v. Tisdal, 151.
Hewitt V. Macguire, 240.
V. Loosemore, 478.
Hey V. Moorhouse, 309, ''
Heyne v. Parry, 239.
Hihbert v. Barton, 607.
Hicks y, Marreco, 43, 026,
HifFeiman v. Langellc, 208.
Higginbottom y, Burge, 137.
Higgins y, Ede et al., 204.
y, Mchols, 321. .
Higgs y. Mortimer. 66.
Hirst
r^ I
■■■■mmmmmmm
mmtm
TABLE or OASES.
XXZT
I
m
i
nt((gs V. Evant, 480.
Highitm T. Rabbit, 242.
Hilbert ▼. Wilkiua, 41.
HilJgard v. Smith, 833.
Hilt V. Meule, 74.
T. White, 140.
v. Hillrl72.
V. Montague, 204.
V. Mills, 219 222, 641.
——v. Meanard, 236.
V. Philp. 837.
v. Guy, 4J2.
Hills V. Crull, 480.
V. Hunt, 480.
Hilla et al. v. Haymnn, 201.
IliltoQ V. MaoJonull et al., 12.
Hilton et al. t. Mucdonell, 20, 21, 088.
Hiude V. Gray, 241.
Hinton t. Stevens, 83. 040.
v. Grey, 187.
V. Acraman, 249.
Hirst V. Hannah, 000.
Hiscouka t. Kemp, 868.
Hiscott V. Cox, 08!).
Hitchcock V. Walford, 597.
Hoaro v. Lee, 214, 00''.
V. Silveroock, 086.
Hobbs v. Young, 60.
▼. Ferrars, 176.
Hobson T. Sbrand, 15.
V. Wadsworth, 181.
V. We lington District Mutual
Fire Insurance Co., 598.
Hndding v. Sturcbfield, 01.
Hodfield T. Manchester R. Co., 401.
Hodge V. Churchward, 9, 600.
Hodges T. Welsh, 406.
V. Jordon, 639.
Hodg'ns V. Hancock, 599.
HoJgkinson v. Watt. 300.
Hodgson V. Dowell, 49, 84.
V. Mee, 214, 032.
V. Cayley, 270.
V. Stevens, 288.
V. Walker, 045.
Hodsall V. Wise, 172.
Hodsden v. Harridge, 173, 174.
Hodson V. Campbell, 58.
V. Harrige, 174.
V. Pennel, 209.
Hogarth v. Penny, 302.
Holden v. Raith, 89.
v. Liverpool Gas-light Co., 683.
Holderness v Barkworth et al., 03.
Holdipp V. Otway, 275.
Holford V. Dunnett, 218, 670.
Holgato ▼. Slight, 428, 005. .. ;
Holland v. Tonldi, 207.
y. Tdaldi et al., 209.
T. Foi, 406.
Holland ex parte, 589.
Holland, In re, 690.
Ilollidiiy ▼. LaireM, 81.
Hollis V. Freer, 382.
llDlloway V. Turner et al., 236.
H limes V. Service, 75.
V. Henuegan, 164, 393.
V. Hopkiud, 107.
V. Hodgson, 195, 193.
V. Catesby, 201. i
V. Uugge, 219.
v. Tutton, -iOa.
V. Newlands, 808, 872.
Holmes v. Brown, 613.
V. London & S.W. R. Co., 643.
Holmes Re, 590.
ILilroyd v. Reed, 229.
Holt V. Forshnll, 256.
V. Kershaw, 607.
Homer v. Gibbons, 225.
Hompay v. Kenning, 84.
Honeyman v. Lewis, 321.
Hooker v. Townsend, 75.
Hookpayton v. Bu-'sell, 648.
Hooper v. Harcourt, 58, 69.
Hope V. Beadon, 317, 819.
Hopkin V. Dngget, 281
Hopkins v. Gruzebro >k, 282.
v. Logan, 272.
V. Stapers, 883.
Hopkins et ux. v. Logan, 272.
Hopkinson v. Salembier, 45.
V. Lee, 137.
Hopwood V. Adams, 69.
v. Thnrn, 087.
Horlock v. Lediard, 205.
Hornby v. Hornby, 9.
Home V. Tooke, 214.
V. Whitcombe, 633.
Horner v. Keppel, 206.
V. Flintoff, 232.
V. Dunham, 288.
Horsfall v. Mathewnian, 149.
Horsman v. Horsman, 333, 340.
Hnsking v. Phillips, 235.
Hough V. Bond, 209.
V. May, 652.
Houghton V. Hawworth, 74.
et al. v. Hudson, 10, H.
Houlden v. Fasson, 043.
Hounsfield v. Drury, 683.
Howard v. Brown, 47.
I i
i
Q
9
3
•5
Ik
I*
I
H
zzzt!
TABUB or 0ABK8.
I
Howftrd T. Crofts, 201.
T. Cautjr, 864.
T. Smith, 867.
T. Sowerby, 630.
Howarth t. Uubbersley, 608.
Howe ot ox. T. Tbompaoii, 168.
Howell T. Maine, 168.
T. Radford, 260.
T. Rodbard. 268.
Howen t. Garr, 260.
Howenden t. Crawther, 867.
Howett T. Clements, 178, 170.
Howorth T. Hubbersley. 268.
Hubbard t. Huggard, 608.
Hucman t. Fernie, 808.
Hudson T. Jones, 246.
Huff T. McLean et al., 12.
Hughes T. Jones, 47.
T. Mutual Fire In. Co., 174.
T. Pool, 206.
T. Thorpe, 264.
— — T. Rogers, 816.
T. Lumley, 820.
Hull T. Alway, 188. *
Hulme ex parte. 688.
Humber t. Russell, 60:
Humble ▼. Bland, 127.
V. Hunter, 187.
Humbleton t. Higginbotham, 618.
Hume ▼, Kent, 482.
T. Wellesley, 607.
Humfrey t. The London & N.W. B.
266, 680.
Humphrey t. Barnes, 116.
Humphreys t. Waldegreve, 206.
T. Waldegrave, 200.
V. O'Connell, 246.
T. Knight, 475.
Humphries t. Windsor, 46.
Hunslip T. Padwick, 282.
Hunt T. Hewitt, 834, 887.
V. Coxe, 857.
T. Penrice, 466.
T. Passmore, 620. ''
T. Blaquiere, 628.
Hunt's Bail, 630, 642. ' "'
Hunter T. Russell, 62. '
V. Wilson, 206.
Y. Hooper, 854.
V. Keightley, 401.
T. Gibbons, 477.
▼. Emmanuel, 483.
Huntingtower (Lord) t. Heelcy, 40.
Huntley v. Bulwer, 603.
T. Smith, 688.
Co.,
Hurdlej t. Roberts, 607.
Ilujon T. HewBon, 446.
llutohins T. Hurd, 626.
T. Hlrd, 640.
Hutchinson t. Street et al, 20.
T. Blaokwell, 167, 171.
v. Bernard, 844.
^— T. Johnson, 864.
Hutchinson ot al v. Greenwood, 418.
Hutchinson's Bail, 680.
Hutchison ex parte, 87.
Hutchison T. Sidaway, 670.
Huthwaite v. Phaire, 200.
Ilutson T. Hutson, 606.
Hutt ot al T, Giles, 270.
Ilutton T. Maoready, 274.
Huyselden y. Staflf, 678.
Hyde T. Barnhart, 402, 494, 495.
Iken t. Plevin et al., 297.
Iklnv. •• " 209.
Ilderton t. Burt, 828.
T. Sill, 424, 617.
y. Burt, 646.
Imray y. Magnay, 864.
Ingraham y. Cunningham, 50.
Inman y. Hodgson, 888.
Innes y. East India Co., 860.
Ireland y. Champneys, 876, 880, 881.
y. Harris, 888.
Irvine y. Mercer et aL, 858.
Irying y. Heaton, 44.
y. Baker, 264.
~ y. Manning, 274.
Isaac y. Farrar, 245.
y. Belcher, 684.
lyens v. Butler et ux., 882.
lyes y. Calvin, 91, 128, 601.
Jackson y. Clarke, 171.
- y. McDonald, 218.
— y. Carrington, 270, 287.
— y. Utring, 287, 289.
~ V. Gates, 298.
— y. Pesked, 886.
— y. Chard, 642.
y. Nunn, 142, 678.
Jackson et al y. Hall, 160.
Jackson ex parte, 688.
Jacob V. Hungate, 48.
Jacobs y. Tarleton, 805.
y. Miniconi, 880.
Jacobs y. Magnay, 698.
y. Neville, 608.
y. Fiiher, 674.
TiLBLl or OARBf.
zutU
81.
jMqo«f T. C«iar, 468.
jMqaet ▼. Boura, 1 10, 274.
Jkoquot T. Boura, 60.
Jftinei T. Askew, 80.
T. Dftwson, 40.
T. Franoea, 40.
T. Aswell, 124.
T. Atwood, 171, 172.
T. IisaoB, 106, 202. 208.
. T. Bourne et k1, 218.
T. Lingbam, 262.
T. Mills, 810.
T. Burns, 888, 840.
T. Harris, 600.
T. Bourse, 660.
James et a1 ▼. Crane et al, 160, 880.
Jameson's Bail, 632.
Janes t. Whitebread, 822.
Jeffrey ▼. OUrer, 867.
Jelkes T. Fry, 20. . , i
Jenkins y. Law, 44.
T. Phillips, 188.
y. Treloar, 214, 000,670.
y. Creeob, 264.
. y. Edwards, 264.
y. Betbam, 822.
y. Crouch, 678.
Jennings y. Newman, 160. . ;
Jenny y. Coutts, 807.
Jenny d. Preston y. Coutts, 684.
Jeremy y. Farrant, 230.
Jessel y. Gbapein, 450.
Jeseop y. Fraser, 206. , . ,^ ,.
Jewell y. Millingen, 833. ., .^
Jeyes y. Booth, 606. , ,. ,^ , ,,
Joel y. Dicker, 605.
Johnson y. Blrley, 60.
y. Rowse, 74. •
y. Sparrow, 140.
y. Poplewell, 148. , , ;.
y. Laiham, 170.
y. Hunter, 212, 250, 660.
y. Hedge, 218.
y. Smeadis, 860.
y. Wilson, 191.
y. Diamond, b60, 864.
y. Budge, 880.
y. Maodonald, 626.
y. Kennedy, 640.
y. Dodgson, 673.
y. Eastman, 686.
Johnson et ux. v. Lucas, 162, 153.
Johnstone y. Knowles, 262, 254, 250,
^670.
Joliffe y. Mundy, 421. ■ , .r — .-,
Joll y. Curton, 146.
Jones y. Smith, 10.
y. Scbofleld, 28u
y. Jehu, 80.
'^— y. Evans, 76.
y. Prince, 84.
— — y. Ilobinson, 187.
y. Carter, 187.
y. Hutchinson, 188.
y. Hmith, 140, 146.
— — y. Spenoe, 154.
y. Russell, 171.
y. Reid, 176.
y. Carry, 170.
y. Gibbons, 201.
y. Jones, 201, 247, 868, 608,
y. Stewart, 217.
y. Stephens, 218.
y. Gooday, 280.
y. Senior, 246.
y. Thomas, 274.
—— y. Harris, 288.
y. Gibson, 280.
y. Fatham, 208.
y. Palmer, 838.
y. Atherton, 854.
y. De Bergue et al., 860.
y. Jcnner, 364.
y. Broadhurbt, 886.
y. Owen, 486.
y. Williams, 610.
y. Vestrin, 628, 680.
y. Orier, 053.
y. Brown, 672, 678, 600.
y. Nanney, 678.
y. Chapman, 600.
Jones q. t. y. Chace, 636.
y. Robinson, 630.
Jones et al. y. Russell, 180.
Jones' Bail, 682.
Jordan y. Martin, 201.
y. Binckea, 354.
Jordon y. Crump, 201.
Jourdain y. Johnson, 213, 230.
Joyce V. Ellis, 201. , , :
Judkins y. Atherton, 288.
Jupp et al. y. Grayson et al., 167.
Kane v. Kane, 400.
Kay y. Panchimai,. 'Jl'S.
y. Mclntyre, 628.
Kaye y. Button. 272. .. .
Keane y. Smallbone, 608.
Keane v. Arden, 608.
Kearns y. Darell, 679. ^ .
'I
f '
GOT.
\ ■■
1
M q
b*'"
zxxviii
TABLE OF CASES.
Reefer v. Meritt et al, 49.
Eeene t. Deeble, 89.
V. Angell et al, 448.
Eeene d. Angel t. Angel, 448.
Keebar v. Empey et al, 91.
Eeightlevv. Watson, 187.
Ee Kendal et al, t. VIcKrtmmon, 100.
Eellogg T. Hyatt et al, 113.
Eelly V. Curzon, 44.
Eelly V. Flint, 238.
V. Villebois, 289, 677.
v. Staunton, 431.
V. Hooper, 4^3.
Eemble v. Mills, 199, 212, 603.
V. Farren, 232.
Eemp V. Warren, 65.
V. Watt, 678.
Eetnpland v. Macaulay, 354.
Eendell t. Merritt, 484.
Eendrew v. Allen, 39.
Eennard v. Jones, 1 1 6.
Eennett v. Westminster ImproTement
Commissioners, 361.
Eennett etal v. G. W Railway Co., 59.
Eeuney t. Hatchinson, 102.
V. O'Shagnessy, 395.
Eenningham t. Alison, 262.
EentT. Elstol, 176.
V. Hall, 387.
Eenworthy v. Peppiat, 32.
Eenyon v. Wakes, 91, 681.
Eepp V. Wiggett, 212.
Eepp et al. v. Wiggett et al, 200.
Eer et al v. Bowie, 592.
Eerr v. SheriflF of Middlesex, 48.
V. Cockshaw, 48.
V. Jeston, 188.
Eerr et al v Bowie, 641.
Eerrison v. Wallingborough, 129, 593.
Eerry v. Reynold. 1 29,
Eetchum et al v. Reefer, 123.
Ecy V. Thumbleby, 227.
Eey T Thimblebeg, 229.
Eeys V. HarwooJ, 311.
Eidd v. Walker, 230.
V. Davis, 645.
Eidwelly v. Brand, 428.
EilbournoT. Trot, 371.
Eillv. Hollister, 183.
Eilnerv. Bailey, 241.
Einderly v. Jarvis, 27.
Eing v. Robins, 13.
T. Hopkins, 29.
V. Monkhouse, 85.
Eing y. Rochdale Company, 1 15.
King T. Turner, 148.
T. Thorn, 150.
v. Simmonds, 159.
T. Norman, 244.
V. Pippett. 288.
V. Birch, 351, 619.
V. Keogh, 500.
King T. Dunn, 649.
King of Greece v. Wright, 603.
King Re, 590.
Kingsmill v. Gardiner et al, 235^ 50G.
Kingston, City of v. Brown, 74.
Kinnear v. Keene, 268.
Kirby v. Mitchell, 511. .
V. Snowden, 602.
V. Ellison, 648.
Kirk V. Dolby, 32.
V. Almond, 46.
V. Dan by, 81.
Kirkus t. Hodgson, 192.
Kitcenman v. Skeel et al, 150.
Kitchen *. Brooks, 216.
Kitchenman v. Skcel, 388^ 889.
Knight V. Warren, 32.
V. Pocock, 82.
^ V. Egerton, 229, 282.
V. Egerton et al, ilSQ.
V. Woorc, 241.
V. Brown, 257.
T. Gaunt, 288.
V. Hastie, 607.
V. Brown, 671.
Koyle V. Wilcox, 56, 630.
Kynaston v. Cronk, 688.
Kyniston v. Crouch, 685.
Lacet v. Umbers, 268. t
V. Foirester, 679.
Lackington v. Athertou, 642.
Lacy V. Reynolds, 387.
Ladbrook V. Phillips, 43.
Ladbrooke v. Williams, 287.
Ladd V. Thomas, 386, 888. ' -
Ladrigan v. Cullaber, 69.
La fame v. Malcolmson, 218.
Lafond v. Ruddock, 261.
Laforestv. Wall, 206.
Laing v. Cundall, 628.
Lakiu V. Watson, 81.
Lamb v. Micklethwait, 91, 681, 682.
Lambe v. Smythe, 146, 148.
Lambert v. Wray, 44.
V Taylor, 386, 387.
V. Purnell, 621.
Lambert et al v. Hutchinson, 189.
*..'■ *
TABLE or OASES.
XX XIX
Lamond t. Davall, 151.
LamoncI et al v. Davall, 676.
Lanark and Drunimond Plnnk Road
Company v. Bothwell, 128.
Land v. Burn, 22.
Land ot al v. Woodward, 151,
Lander v. Gordon, 348.
V. Farley, 649.
Landon v. Stubbs, 617, 656.
Lane v. Isaacs, 102.
V. Macdonald, 124.
V. Smith, 218.
V. Parsons, 220.
V. Ridley, 268.
Kingsniill, 503.
Mullins, 677, 681.
Tewson, 683.
Coomber, 148.
Hall, 178.
Langford v. Woods, 254, 691.
Langley v. The Earl of Oxford, 317.
Lannian v. Audlcy, 380. n
Lanyon's Bail, C80.
Lardner v. Dick, 257.
Larchin et al v. Buckle, 289, 375.
Latham v. Hyde, 619.
Lattimare'v. Garrard, 272.
Laughton t. Richie, 254.
V. Cotton, 330.
Launceston and Victoria Railway Co.
V. Brennan, 30.
Lancock v. Brown, 413,
Laurd et al v. Butcher et al, 157.
Lawrie v. Russell, 174, 175, 181.
Laverty v. Patterson, 10, 13, 25.
Law V. Bluokbarrow, 172.
V. Thompson et al, 2G4.
V. Sanders, 386.
Lawrence v. Wilcock, 110.
V. Stephens, 214.
V Wilier cks, 217.
V. Hooker, 333.
V. Hodgson, 380.
Lawrie v. Russell, 177.
Lawson t. Robinson, 611.
Leav. Tclfer, 153.
V. Welch, 386.
Leach v. Jarvis, 33, 69.
V. Dulmage, 287.
Leaf V. Tutton, 206.
V. Tuton, 673, 677, 678.
Leamon v. Beal, 110.
Lear v. Caldecott, 151.
Le Bret v. Papillon, 223.
Lo Claire et ul v. Tucker, 274.
Ledgard v. Thompson, 607.
Lee T. Simpson, 10.
V. Carlton, 140.
V. Maddox, 382.
Lee et al v. McClure, 46.
Leech v. Clnbburn, 216.
Lees V. Reffit, 619.
Legatt V. Marmoutt, 60.
Legear v. Lecroix, 484.
Le Gervas v. Burtchley, 347.
Legg V. Tucker, 274.
Legge V. Boyd, 204, 691.
V. Tucker, 582.
Leggett V. Finlny, 188.
Leggo V. Young, 166.
Leigh V. Sherry, 330.
Leighton v. Leighton, 426.
Le Mesurier v. Willard, 302.
V. Smith, 507.
Lemoine v. Raymond, 597.
Lempiere v. Humphreys, 689.
Leonard t. Buchanan, 245.
V. RlcBiide, 502, 508.
V. Glendennen, 503.
— — — V. Merritt, 505.
Leslie t. Richardson, 189, 190.
V. Leahy, 317.
Lettice v. Sawyer, 290.
Leuchart v. Cooper, 254.
Le Veux v. Berkley, 87.
Levinston v. Syer, 606.
Levy v. Drew, 139, 140.
V. Hailton, 205.
Lewin v. Edwards, 362.
Lewine et al v. Savage, 622.
Lewis V. Newton, ?0.
V. Davison, 34, 82, 85.
V. Gompertz, 46.
T. Campbell, 151.
T. Holbrooke, 184.
V. Dathie, 209.
V. Peake, 236.
V. Holding, 257.
V. Hastings, 275.
V. Henry, 282.
V. Wells, 302.
V. Sapie, 315,
V. Howell, 318.
V. Clement, 387.
V. Reilly, 387.
V. Kensington, 423, 500.
V. Fullarton, 406.
V. Grant, 504.
V. Hilton, 602.
V. Tankerville, 607.
V. Davidson, 640.
V. Browne, 641.
i
I
ft
>
^
If
i ---- K'
XL
TABLE OF OASES.
' T
Lewis T. Parker, 680.
V. Alcock, C83.
Lewis ex parte, 589. ^ ,
Ley V. Barlow, 333.
Leyland v. Tancred, 229.
Lidgett v. Williams, 461.
Liffin V. Pitcher, 48, 107, 208, GG5.
Lindsay v. Wells, 216, 625.
Lindsay et al. v. McFarliug, 442.
aiinfoot V. O'Neill, 662.
Linley ▼. Bates, 10, 40.
Linthwaite v. Balling, 89.
Linwood v. Squire, 206.
Lismore v. Beadle, 274.
Lister V. Mundell, 475.
Listle V. Newton, 184.
Listowell V. Greene, 426.
Litchfield v. Ready, 426, 442.
Little V. Newton, 192.
Littlechild v. Banks, 240, 679.
Littleton v. Lush, 225.
Livingston t. Ralli, 183.
Llewellen v. Norton, 61.
Lloyd V. Blackburn, 206.
V. Day, 257.
V. Howard, 260.
V. Kent, 424, 017, 618.
Lloyd, Re., 643.
Lock V. Ashton, 236.
V. Wilts R. Co., 247.
London, Bishop of. v. McNeill, 227.
London and Brighton R. Co. v. Fiiir-
clough, 244, 254.
London and Brighton R. Co. v. Wildon,
244, 252.
London Assurance Co. v. Perkins, 637.
Long V. Wordsworth, 61.
Loolcock v. Franklyn, 462.
Loosemore v. Radford, 285.
Lord V. Milliard, 207.
Loring, In re., 588.
Lorymer v, Holister, 693.
Losh T. Hague, 465.
Lossing T. Horned, 174.
Loucks y. Farrard, 22.
Lount T. Smith, 676.
Love V. Avmour, 282.
Loveless v. Richardson, 873.
Lovelock d. Norris v. Dancaster, 400.
Low V. Burrows, 679.
Lowe V. Lowe, 116,
V. Steele, 230.
V. Steel, 271.
V. Peers, 278.
Loweth V. Smith, 242, 265.
.Lowficld V. Jackson, 206.
Loyd V. Jones, 34.
Lucan v. Smith, 255.
Lucas V. Beale, 188, 218.
V. Wilson, 170.
V. Smith, 686. '• .,
Lucas, In re., 688.
Luce V. Tzod, 472.
Luck et al. v. Handley, 265.
Ludbrook v. Phillips, 626.
Lumley v. Thompson, 207.
y. Gye, 243, 249, 480.
V. Dubourg, 287.
Lunn V. Turner, 691.
Lupart V. Wilson, 174.
Lush v. Russell, 206.
LushingtoQ v. Waller, 608.
Luxford V. Groombridge, 42, 642.
Lyall V. Lambe, 167.
V. Higgins, 673.
Lycett V. Tenant, 298.
Lyman v. Brethren, 42, 80, 81, 642.
Lyman et al. v. Vandecar, 493.
Lynch v. O'Hare, 333.
Lyon V. Wells, 625.
Lyons ex parte, 588, 589.
Lyster v. Bou'ton, 47, 48.
Lyttleton v. Cross, 692. «
Macabthue V. Campbell, 180, 188,
Macarthy v. Smith, 408, 602.
Macartney v. Graham, 487.
Macdonald v. Maclaren, 370.
Macdonell v. Evans et al, 810.
Mncdougall v. Nicbolls, 256.
Macdowell v. Hallister, 360.
Macdougall v. Paterson, 389.
Macfarlane v. Keezar et al, 245.
Macher v. Billing, 255.
Mackay v. Wood, 206.
Mackenzie v. Russell, 96.
Mackinnon v. Johnson, 219.
Mackinson ex parte, 688.
Mackintosh v. Blythe, 1 77.
Slaolellan v. Howard, 254.
Macleod v. Jackson, 196, 200.
V. Marsden, 627.
Macmurdo v. Smith, 386.
Macpherson et al, v. Kerr, 359.
Madkins V. Horner, 176.
Magrath v. Hardy, 264.
Maguire v. Post, 236.
V. Kincaid, 012.
Mahony v. Zwick, 662.
Main v. Bailey, 487.
Maitland v. Brown, 291.
Mairv. McLean, 302.
301.
TABLE OF CASES.
zli
Malloch T. Johnson, 662.
Malone v. Geraghty, 431, 432.
V. Hardy, 493.
V. Handy, 495, 496.
Manby v. Cremoniui, 212.'
Manley v. Boycott, 887, 388, 889.
Mann v. Williamson, 290.
Manners t. Boulton, 321.
V. Poston, 411.
Mansell v. Burredge et al, 174.
Mansfield v. Breary, 60, 274.
Manworthy v. Page, 235.
Mantell v. Southall, 40.
Mara v. Quinn, 384, 385. '
Marcon v. Bloxam, 479.
Marey v. Butler, 22.
Margetson t. Rush, 283.
Marks v. Marriot, 1^1.
Maron v. Wallis, 189.
Marnotv. Stanley, 520.
Marse v. Appleby, 254.
Marsh v. Bulteel, 174.
Marshall v. Whiteside, 230.
Marston v. Alien, 260, 678.
Marterv. Digby, 218.
Martin v. Stone, 287. '
V. Martin, 287.
. T. Andrews, 327.
v. Hemmiug, 338, 339.
V. Nutkin, 461.
V. Wright, 466.
T. Smith, 679.
V. Stone, 684.
Martinez et al, v. Gerber, 151.
Masecar v. Chambers et al, 175,
190.
Mason v. Farnell, 196, 683.
V. Kiddle, 605.
V. Bradley, 678.
Massel v. Woodgate, 123.
Masson v Hill et al, 196, 239.
Masters v. Billings, 44.
V. Ibbertson, 680.
Mastin v. Garrow, 291.
Mathew v. Osborne, 426, 442.
Mathews v. Davis, 172.
Mathewson v Ray, 214.
V. Glass, 291.
V. Rowe, 386.
Bristow, 642.
Mattiee v. Farr et al, 089.
Maughan v. Walker, 636.
Mavor v. Spalding, 60, 81,
Mawman v. Legg, 466.
Maxwell v. Ransom, 203.
May V. ConncU, 189.
188,
May V. Seylor, 247. .. ,
V. Hawkins, 841. , ;
V. Footner, 483. ' ' '
V. Pike 693.
Maybury y. Mudie, 146, 147, 148.
Mayhew v. Blofield, 206.
Mayo V. Gonnell, 455. , ,,/,
Mays V. Cannoll, 192. . i
▼. Archer, 411.
McAlpin V. Gregory, 75. , , }
MoAlpine T. Magnall, 411. ,"..i
MoBean V. Campbell, 46. . , ;
McCague v. Cloihier, 287.
McCallum v. McCallum, 420. 'a
MeCarthy V. Low, 16. . t
McClaine T. Abrahame, 75. ..i .
McClure v. Ripley, 387. ,|
McColtum V. Davis, 302.
McCombie T. Anton 327. . ; >♦
McCormack t. Melton, 619. )
McCrea V. Holdeworth, 463, 466. i
McCuniflFe v Allen et al, 245. j.
McDonell v. McDonell, 24. , i
McDonell v. Evans et al, 312.
McDowall v. Lyster, 678.
McEwcn V. Stoneburne, 16.
McFarlane V. Allen, 8. .,u»
McGill V. Steel, 661. ,^)
McGowan v. Gilchrist, 20, 21.
McGregor v. Scott, 39. [
V. Gregory. 242, 685.
V. Graves, 388.
MoGuffin V. Cayley, 150. .i
McGuio V. Berjamin, 12.
McGuire v. Benjamin, 280.
V. Kincaird, 281.
V. Pringle, 607.
V. Smeath, 611. -j
Mclnherny v. Galway, 432, 433. \
Mcintosh V. White. 40.
Mclntyre v. Suthevland et al, 850.
. v. Miller, 697. ,;
McKee v. Huron Dist. CI., 150. .'
V. Irvine, 662, ; .i
McKellar V. Reddie, 65. /
V. Grant, 852.
McKenzie v. Reid, 46. <
V. McNab, 60.
McKinnon v. Burrows, 233.
V. Burrowes, 302. . ,j. •.
v. Johnston, 649.
McKnight v. Scott, 146.
McLaren v. Blacklock, 43.
McLean v. Cumming, 13, 48. . ;
v. Knox, 66, 68.
y.Keezar, 175.
I
^ ■
1
.«i,.
1.
^<
m
TABLE OF CASES.
McLean t. Tinsley, 232.
V. Philips, 238.
V. McDonald, 641.
McLellan et al v. Smith, 287.
McLeod V. McGhie, 237.
V. Eberts, 698.
McManon v. Coffee, 150.
' V. IngersoU, 235.
V. Mastdrs et al, 508.
McMiking v. Spencer 89.
MoMurrich v. Thompaon, 16.
McNab V. McDonell, 201.
■ V. Dunlop et al, 440.
V. McGrcth, 086.
MoNair v. Shelden, 9.
McNally v. Stevens, 809.
McNeil T. Williams. 465.
V. Train, 689.
McNider v. Martin, 36, 87.
McPherson v. Walker, 167, 175.
McBeav McLean, 179.
V. Osborne, 319.
Meagoe t. Simmons, 304.
Meddleton v. Woods, 208.
Medlicotc v. Hunter, 82.
Meeke V. Ozdale, 213.
Meighan v. Reynolds, 501, 510.
Meighan et al, v. Pinder, 96.
Melligh V. B B. & G. Railway, 3G2.
V Richardson, 488.
Melton V. Garment. 116.
Melznerv. Bolton, 219, 484.
Mengens v. Perry, 220.
Mens V. Thelupin, 203.
Menshall v. Lloyd, 354.
Mercer v. Whall, 302, 303.
Merchant v. Frankis, 368.
Mercy v. Galot, 90, 680.
Meredith v. Gi'lars, 82.
V. Gillens, 130. '
Merington v. Beckett, 205.
Meriton v. Coombes, 266.
Messin t. Massarane, 275.
Messiter v. Rose, 1, 205, 261.
Metcalf V. Booth, 269.
Metcalfe et al v. Boote, 383.
Metropolitan Building Society v. Mc-
pherson, 393.
Mewburn v. Langley, 287.
Mexborough v. Bower, ^J61.
Meyers v. Campbell, 46.
. V. Rathburn, 32.
V. Cooper, 637.
Michael v. Myers, 648.
Michie v. Allen, 51,
Middledltch v. Ellis, 151.
Middleton y. nUl, 872.
▼. Mucklow, C71.
Midland Railway Co., In re v. Ilem-
niing, 169.
Mileham v. Eicke, 677.
Miles T. Bough, 151, 880.
v. Harwood, 231.
V. Williams, 380, 017.
V. Head, 6:}2.
Miley t, Walls. 205.
Millard v. Major, 446.
Miller t. Munro, 151.
▼. fihut Jeworth, 1G9.
V. Robe, 177.
V. Jame», 503.
V. Miller, 691.
V. Scott^ 642.
Miller's Bail, 629, 630.
Millingen v. Piokcn, 462.
Millington t. Claridge, 192.
Millis T. Barber, 802.
Mills T. Gossett, 81.
V. Brown, 208.
V. The Guardians of the Poor of
Alder bury Union, 137.
V. Ody, 679.
Y. Barber, 680.
Milner t. Jordan, 204.
V. Milner, 163.
Milnes v. Dawson, 886, 387.
Milstead v. Grantield, 193.
Minchall v. Evans, 225.
Minohin v. CIcmeut, 821.
Minos Royal Society v. Mingay, 462,
468, 471.
Mitchell V. Stavely, 1 76.
^-^— V. Harris, 187.
V. Crasweller, 219.
V. Tarbutt. 239.
— V. Craswaller, 485, 683.
Mitohlnson v. Hewiion, 153.
Mitford V. Finden, 205.
Mittleberger et al v. Clark, 50, 51.
Moberly v. Baincs, 196, 271.
Molson V, Munro, 227.
Monday v. Sear, 84.
Mondel ▼. Steele, 229.
V. Steel, 235.
Monk V. Wade, 281.
T. Attorney General, 459.
Montfort v. Bond, 291.
Montgomery v. R obi net, 490.
V. Howland, 603.
Moody V. Morgan, 74.
T. Aslatt, 81.
V. Pheasant, 298.
r*'^
TABLE OF OASES.
zliii
James, 43, 644
Derley, 180.
Froster, 206.
HawkiDH, 225.
Butlin, 240,
Morgan t. Jones, 2. . i i
v. Edwards, 184.
V. Cubitt, 140.
T. Thome, 216, i|15.
V. Fernyhougli, 284.
V. i' jnes, 286.
V. Burgess, 368.
v. Painter, 882.
, V. Harris, 408, 602.
V. Pike, 483, 484.
T. Pebrer, 673.
Morley v. Newman, 171.
Morningtcn v. Witiiam, 386. '■'
Morris v. Smith, 30. ' '
V. Jones et al, 91.
V. Morris, 177, 178, 170.
v. Hancock, 208, 695.
V, Roe, 833.
V. Jones, 682
Morrison v. Trenchard, 211.
. V. Salmon, 616, 620.
Morrison Re, 641.
Morrow v. Sanders, 333.
Mortiudale v. Booth, 364.
Morton v. Burns, 349.
Mosier v. McCan, 98.
Moss V. Smith, 264.
V. Truscott, 315.
■ T- Daley, 628.
Mossop V. Eadon, 487.
Mostyn v. Fabricas, 599.
Motley V. Downman, 466.
Mott V. Gray et al, 23.
Mounsey v. Perrot, 673.
Mountford v. Herton, 196.
Mowatt V. Lord Londesboroiigh, 166.
Moyse v. Perrott, 673.
Mullins V. Armstrong, 100.
V. Scott, 256, 257.
Mullins et ai v. Ford. 282, 612.
Mummery-v, Paul, 683, 685.
Munden v. Duke of Brunswick, 148.
Mun. of Kingston v. Day, 176.
Municipal Council of Ontario v. Cum-
berland et nl, 600.
Munson v. Hamilton, 688.
Mure V. Kay, 201.
Murphy v. Boulton. 4P
— — — V. Donlan, ld4.
V. Brunt et al, 153, M6.
- T. Burnham, 215.
Murray v. King, 201.
V. Boucher, 205.
T. Bouchber, 254.
V. Stair, 278. ^
T. Starr, 278.
V. Gregory, 303.
V. Silver, 604. ;
Muscott V. Ballett, ii86.
Musdet V. Cole, 386.
Mussell V. Faithful, 290.
Musselbrook t. Dunkin, 180, 181, 801.
Muttleberry et al v. Hornby, 246.
Naisu t. Brown, 304.
Narrish t. Richards, 214. '
Nash V. Swinburne, 103, 279.
V. Brown, 196.
V. Breeze, 210.
Naihan v. Cohen, 42, 47, 642.
V Giles, 476.
Naylor's Bail, 630.
Neal V. Holden, 59-
V. Richardson, 209, 268.
Neale v. Snoulicn, 40.
V. Wyllie, 236.
V. Swind, 333.
V. Proctor, 677.
V. McKenzie, 691.
Neat's Bail, 632. ' .
Neave v. Avery, 406, 465.
Needbam v. Bristowe, 83.
V. Law, 254.
V. Fraser, 673.
Negelen v. Mitchell, 386, 387.
Neill et al v. Leight, 802.
Neilson v. Thompson et al, 466.
Nelmes V. Hedges, 519.
Nelson V. Griffiths, 213.
V. Sheridan, 275.
V. "Bridges, 452. *
Neven v. Buchart, 50.
Neville v. Harvey, 264.
Nevills V. Hervfy, 91.
Nevils V. Wilcox, 321.
Newly V. Mason, 213.
Newenham v. Mahon, 432.
Newkirk v. Payne, 690.
Newman v. Hickman, 74.
V. Parbnry, 189. «
et al V. Fiiucitt, 625.
Newnham v, Hanny et al, 209. , <
Newport v. Hardy, 674.
Newton v. Stewart, 147.
V. Allen. 201.
V. Holford, 227, 257.
V. Harland, 432.
1^
a.
t\
\\
xliv
TABLE OF OASES.
Newton V. Rowe, 515, 510.
v. Maxwell, 626.
v. Loudon & lirigbton B. Co.,
654.
et al V. Stewart, 147.
Newton's Bail, 632.
Niagara H. & D. Co., v. Smith, 95.
Nias V. Spratley, 219.
Nichalson d. Spafford v. Rea, 48, 043.
Nichol v. McKelvey, 124.
Nicholas v. Merit 698.
NichoU v. Cartwright et al, 13.
V, Forshall, 282.
V. Williams, 91, 081.
NichoUsv. Tuck, 241.
Nichols v. Chalie, 168.
Nicholson v. Allen, 39.
V. Dyson, 257.
Nickall V. Crawford, 17.
Nickalls v. Warren, 178.
Nicol V. Alison, 326.
Nicoll V. Boyne, 80.
Nioolls V. Bastard, 685, 090.
Nimmo t. FlanDigan, 199.
V. Welland, 358.
Noble V. Chapman, 483.
Noel V. Rich, 245.
V. Nelson, 385.
V. Boyd, 679.
Nonell V. Hullett, 360.
V. et al, 365.
Nordheimer v. Grover, 603, 509.
Norden v. Fox, 386.
Noeman v. Winter, 29, 30, 74.
. T. Climenson. 258.
Nosotte V. Page, 681.
Nosotti V. , 91. ,
North v. Mgamells, 689.
Norton v. Latham, 44.
— V. Mocintoih, 268. '
■ V Fraser, 648.
V. Schofield, 683.
V. Scholefield, 683.
V. , 685.
Nugent V. Philips, 426.
Nunnv. Curtis, 216.
V. Rogers, 631, 632.
Nuttv, Rush, 205.
Oakes v. Wood, 247.
Oakin v. London & N. W. R. Co., 461.
O'Brien v. Howling, 198.
V. Clement, 228, 229, 253,
686, 691.
O'Connor v. Anon, 50.
■ ■ — V. Hamilton, 235.
Odill T. Tyrill, 154. - *
O'Dougherty v. Eretwell, 167.
Ogilvle et al v. Kelly, 44.
Ogle V. Moffati, 285.
O'Keefe v. Dennhey, 438.
Oldhnm v. Burrell, 631. t '
Oliphant t. McQuinn, 14. , ,
Oliver V. Collings, 185.
V. Woodruffe, 605, 600, 007.
Oliverson v. Latour, 872, 621.
Oneil V. Bornbart, 283.
Onslow V. Booth, 148.
v. Homo, 212.
Oppenham v. Harrison, 59.
Orchard v. Moxey, 136.
Moxsy, 259.
V. Glover, 627. ' '
Ord V. Fen wick et al, 60.
Orgill V. Kemshead, 254.
O'Reilly v. Moodie, 687, 688.
Orrv. Stabback, 281,
Orser v. Stickler, 1 59.
Orton V. Butler, 151.
Osborn V. Thompson, 305.
V. Taturn, 645.
Osborne v. London Dock Co., 311, 835,
339, 340.
Othio V. Calvert, 256.
Ottiwell V. D'Aeth, 220.
Oulton v. Perry, 116.
Outcherlony v. Gib-on, 475.
Owen V. Challis, 674. "•
v. Knight, 682, 684.
Pacific Steam Navigation Co. t.
Lewis, 135.
Paddock v. Forrester, 257.
Padwick v. Turner, 268, 271.
Page V. Pearce, 107, 519.
Re, 643.
Paget V. Thompson, 132.
Pain V. Beeston, 309.
Paisenger v. Brooks, 075.
Psllister v. Palister, 639.
Palmer t. Beale et al, 141.
v. Johnson, 157.
— v. Reffienstein, 231.
V. Madbrooke. 254.
v. Richards, 260.
V. Trower, 306.
V. Cohen, 380.
V. Western Assurance Co., 493.
■ V. Justices, 628.
V. Dixon, 596. >..
Papineau V. King 206. ' ! ..
Parbury v. Newman, 190. ^
Par
Par
Pari
Par]
Pari
Pari
Pavl
Paal
Parr
Parr
Parr
Parr
Part
Pars
Pars
Pasc
Pash
PaBS(
Pate
Patt<
Patti
PaulT
Pawl
Pax]
lABLE or CASES.
xlv
Pardee t. Teret, 48.
T. Terrett, 648.
V. Price, 461.
Parey v. Fairhurst, 188. i
Paris T. Salkeld, 225.
Parke t. Anderson, 652.
et al V. Davis, 688.
Parker v. Riley, 245, 268.
V. Farebrother, 238.
V. Riley, 674.
et al V. Robert", 14.
Parkes v. Smith, 182.
" V. Mayby 245.
Pavkin v. Scott, 182.
Paaks V. Edge, 180.
Parr v. Jewell, 242.
Parratt v. Bennassit, 10.
T. Goddard, 206.
Parrett Navigation Co. v. Stower, 597.
Parry v. Fairhurst, 135.
Partridge v. Gardiner, 250, 258.
v. Suiter, 299.
v. Fraser, 608.
Parson v. Sexton, 235.
Parsons t. Alexander, 889, 483.
Pascall V. Horsley, 692.
Pashley v. Mayor of Birmingham, 690.
Passenger v. Brookes, 239.
Pates V. Pilling, 39.
Patterson v. Squire et al, 14.
V. Bushy, 28.
V. Hawkeshaw, 62.
V. Hall, 347.
V. Reardon, 442.
V. Miller 691.
Patton V. Williams, 662.
Paul V. Dod, 161.
V. Cleaver, 605.
Pawson et al v. Hall, 45, 47, 48, 49.
V. Wrightmah, 623.
Paxton V. Great North of Eng. R. Co.,
175.
V. Popham, 287.
Payno v. Acton, 39.
— — v. Massey, 176.
V. Deakle, 188.
V. Shenatone, 224.
T. Drewe, 354.
V. Hales, 674.
Peacock v. Bell et al, 215.
V. Nicholls, 227.
Pearson v. Reynolds, 219.
Peck V. Revis, 838.
Pedder v. Moore, 515, 519.
Peddie v. Pratt, 280.
Pegler et al v. Hislop, 41.
Peirce v. Derry, 424, 617. ,
Peneyor v. Brace, 868. * '*'
Penhall v. Clark, 261.
Penn v. Ward, 247.
Pennall v. Woodburn, 236.
Penneman v. Wince, 290. ".
Penniman v. " 288.
Penny v. Thomas, 75.
V. Harvey, 214. ' ''
Penson's Bail, 630.
Popper V. Whally, 31.
v. Chambers, 338,
Peppin V. Chambers, 836.
Percival v. Connell, 209.
V. Frampton, 680. -
Peretz v. Olega, 472. '\
Perkins v. Connolly, 17, 861.
V. Petit, 372.
-, v. O'Connolly, 493.
Perriman v. Steggall, 167.
Perrin v. Monmouthshire R. Co., 229.
v. Harris, 688. .
Perring v. Kymer, 646. ^r
Perrse v. Perrse, 51.
Perse V. Bowring, 31.
Perry v. Patchett, 60, 274.
v. Fisher, 138. ;
V. Lawless, 813.
V. Turner, 424, 617, 618.
Perry's Bail, 628.
Peterborough, Bishop of, v. Caterby,
214.
Peterson v. Davis, 828.
v. Ay re, 185.
Petrie v. Hanny, 150.
V. Taylor, 321.
Peyton v. TVood, 75.
Phelp in re, 642.
Phelps V. Prothero, 212, 474.
Phillips V. Turner, 46.
V. Claggett, 145, 154, 255, 366.
■ V. Hutchinson, 149.
V. Evans, 176.
V. Jones, 195.
V. Haywood, 227.
V. Dance, 290.
V. Harris, 318.
V. Birch, 351.
V. Smith, 371.
V. Gibbs, 423, 607.
V. Doelittle, 434.
V. liuth, 462.
V. Birch, 619.
V. Bradford, 642.
V. Hayward, 582.
{■■>
:8
Pbillipson t. Earl of Egromont.
XlTi
TABLE OF OASES.
PhiUiskirk v. Pluckwell, 168.
Philpot V. Manuel, 857.
Phipps V. Ingram, 171.
Phytblan v. White et al, 241.
V. White, 690.
Piokard v. Sears, G85.
Piokardo v. Machndn, 47, 87.
Plckerinj; v. Noyes, 883.
Piokman y. Collid, 83, 84, 86.
V. Robson. 621.
Piokwood V. Neate, 462, 685.
Pidding v. Howe, 461.
Pierce v. Blake, 205.
V. Street, 214. '
V. Dfirry, 'il9.
Pierpont v. Brewer, 630.
Pierson v. Hutchinson, 487.
• Pigeon V. Bruce, /3,
V. Osborne, 2G8. ,
Piggot V. Killick 608.
Pike V. Carter, 160.
Pilborow V. Pilbrow's Atmospheric
Railway Co., 30.
Pilgrim v. ^Southampton Railway Co.,
817.
Pilgrim v. Southampton & Dorchester
Railway Co., 665.
Pilias V. King, 060.
Pilmore v. Hood, 646.
Pim V. Grazebrook, 386.
V. Heid, 387.
Pinham v. So'ister, 2, 194, 203.
Pinku3 V. Sturch et al, 289, 375.
Pinna v. Polhill, 675.
Pistruici V. Turner, 321.
Place V. Potts 200.
V. Potts et al. 272.
Piatt et al v. EIso et al, 252.
Plevin V. Henshall, 475, 619.
Plock V. Pacheo, 81.
Plomer v. Ross, 387.
Pocklington v. Peck, 143, 219.
Pocock V. Pickering, 83, 423, 413, 607.
Pohl V. Young, 339.
Pontifex v. De Maltzhoff, 44.
Ponton V. Daly, 442.
Poole V. Goold, 74.
V. Pembrey, 143, 148, 149, 642.
V. Pain et al, 285.
V. Grantham, 250.
V. Warren, 313.
V. Palmer, 317.
v. Smith, 487.
- V. Grantham, 516.
V. Hobbs, 607.
V. Pain, 612.
Poole V. Tumbr'idge, 680.
Pooley V. Harradine, 472, 478.
V. Mullard, 487.
Pope V. Mann, 102, 618.
V. Fleming. 284.
V. Wyatt. 628.
Popjoy's Bail-, 629.
Popkin? V. Smith, 81.
Porchester v. Petrie, 475.
Portmore v. Gorring, 383.
Poston V. Stanaway, 257.
Pott et al V. Hirst. 603.
Potter V. Newman, 301.
V. Nicholson, 607.
V. Marsden. 626, 640.
Potts V. Sparrow, 679.
Pouchee v. Sevien, 010.
Poulton V. Dolmage, 222.
Powell V. Gott, 40.
V. Duncan, 226.
V. Lay ton, 239.
V. Bradbury. 247, 333.
V. James, 285.
V. Ford, 316.
V. Ansell, 362.
Power V. Fry, 595.
Powley V. Newton, 160.
Pownall V. King, 168, 193.
Prance v. Stringer, 886.
Prat V. Hawkins, 66.
Pray et al v. Kdie, 603.
Preedy v. McFarlane, 39. 40.
Prentice v. Hamilton, 68.
V. Elliott, 674.
Prescott v. Horsley, 226,
V. Flinn, 307.
Preston v. Perton, 371.
Pi ice v. Morgan, 110, 274.
V Quarrell, 160.
V.Jones, 176.
V. Price, 202.
V. Green, 232
V. Hewitt, 249,
V. Harris et al, 267.
V. Rees, 263.
V. Sams, 346
V, Carter, t^05, 607.
V. Hayman, 645.
V. Seeley,645.
Price et al v. Quarrell et al, 160.
Prince v. Nicholson, 148, 224.
Prince Albert v. Strang«, 461, 468.
Prince et al v. Nicholson, 225.
Prindle v. McCann. 202.
Pringle V. Isaac, 854.
Prior V. Nelson, 43. '
TABLE OF CASES.
xIvU
rritchard v. Leech, 823.
V. Smart, 383.
Proctor V. Young, 12, 84, G41.
T. Lninson, 843.
Prothoro v. Phelps, 472.
Proudfoot V. Trotter et al, 170.
V. Trotter, 177.
Prudhomme v. Fraser, 267.
Pryor V. Swayne, 606.
Pure d. Withers et al v. Sturdy, 435.
Purnell v. Young, 690.
Purslow V. Bailey, 174.
■ V. Daily, 176.
Putney v. Swann, 222. /
Pybris v. Mitford. 518.
Pylie V. Stephens, 265, 601.
Pym V. Grnzebrook, 259.
— — V. Grnzebrook et al, 254.
Pythian v. White, 671.
QuARRiNGTON V. Arthur, 250.
Queen v. Gamble and Boulton, 51.
V. Hunter, 126.
V. The inhabitants of Upton, St.
Leonards, 824.
Quinn v. School Trustees, 151.
Badrnhubst, In re., 588.
Radford v. Smith, 291.
Ragg V. Wells, 256.
Raikea v. Todd, 673.
Raleigh t. Atkinson, 462.
Ramra v. Duncomb, 208.
Ramme v. •« 640.
Ramsden t. Gray et al., 218.
V. Gray, 214,669.
Ramsey v. VVebb, 686.
Ramutz v. Crowe, 487.
Ranbury ▼. Morgan, 528, 524.
Randal v. Gurney, 173.
Randall ex parte 645.
Riindall et al. v. Malleson, 229.
Ratcliffe v. Bleasby, 838.
Rattray v. McDonald, 245.
Rawdon v. Wei tworth, 887.
Rawes v. Knight, 84.
Rawlinson v Gunson, 357.
Rawson t. Moss, 75.
■ V. Johnson, 386.
Rawsthorn v. Arnold, 181.
Ray V. Champney, 160.
V. Durand, 190, 191.
- V. Sharp. 285.
Rayner v. Hamilton, 41.
V. Grote, 137.
T. Allhasen, 884.
<(
Raynor V. AUhuson ' !.
Rea V. Bishop of ^uestcr, 246.
Read v. Lee, 82. y ' ,
T. Johnson, 219.
Reade v. Montmorency, 483.
V. Lamb, 678.
Reading (Mayor of) v. Clarke per cur.,
195.
Reaume et al. v. Guichard, 24.
Redit V. Lucock, 283
Reed v. Colcmnn, 333.
Rees V. Dick, 222, 291.
Rees d. Stepney t. Thrustout, 486.
Reeves v. Myers, 140, 616.
Regnn v. Reeve, 42.
Regil V. Green, 245.
R. V. Scale, 1.
Inhabitants of Crowan, 2.
Hunt, 9.
Fraser, 20.
Jarvis, 21, 22, 23, 639, 640.
Sheriif of Niagara, 21, 23.
Moodie, 21.
Hamilton, 22.
Sherwood, 22.
Ruttan, 23.
Hare, 47.
Norbury, 48.
Gamble & Boulton, 51.
Sheriff of Hastings, 54.
«' V. Rudge, 71.
'« V. Justices of Shropshire, 107.
Justicf s of Worcester, 107.
Justices of Huntingdonshire, 107.
Aston, 107.
Duke of Richmond, 148.
Hemsworth, 173.
The Sadlers Co., 204, 205, 211.
Justices of Shropshire, 208.
Archbishop of York, 218.
Woolett, 267.
Yeates, 302.
Holditch, 305.
Oldroyd, 307.
"V. Garbett, 811.
«' V. Bridger, 312.
" V. Whirehead, 312.
•' V. Ackroyd et al, 312.
"V. Cator, 815.
" V. Wood, 827.
«« V. Roddam, 830, 881.
" V. Burbage, 8c.O.
V.
V.
V.
V.
V.
V.
V.
V,
V.
** V.
" V.
" V.
" V,
" V.
" V.
•• V.
«« V.
" V.
" V.
•« V.
" V.
" V.
" V.
" V.
"V.
a
(3
i
en
I
V. Sayer, 330.
" V. Murray, 881.
" V. Amberaate R. Co., 334.
«• V. York & N. Midland R. Co.
834.
is
If 1
1
I
1
i
1 ]
II
,!! I'il
Ji
zlyiii
TABLE OF OASES.
R. T.
♦*T.
"▼.
•«T.
"T.
" V.
"T.
•«T.
••▼.
•« T.
"▼.
"T.
••t.
"V.
" V.
"▼.
♦•▼.
"V.
««T.
"T.
««T.
"V.
"V.
"T.
"T.
"V.
"V.
"V.
"V.
"T.
•«V.
"V.
"v.
"V.
"V.
"V.
"T.
"T.
"V.
•« V.
"V.
••v.
"v.
«« V.
"T.
«*V.
"V.
••v.
Alptn, 838.
Cohen, 367.
rhilips, 887.
Baby Turnpike, 451.
Hopkins, 453.
Margate Pier Co., 453.
Froat, 454.
Bristol R. Co., 454.
Justices of Woroestorshire, 454.
Ford, 454.
Mayor of West Looe, 454.
Wliitmarsh, 454.
Mayor of Stafford, 454.
Darlington School, 454.
Justices of Surrey, 454.
Thames Com'rs, 454.
Ingham, 454.
East Anglian R. Co., 454.
Baldwin, 455.
Ledgard, 455. " ' ■
The Mayor of London, 455.
Tithe Commissioners, 456.
Caledonian R. Co., 455.
The East &nd West India Dock!*,
and Birmingham R. Co., 455.
The Church Trustees of St. Pan-
eras, 455.
Kidwelly and Llanelly Canal
Tramroad Co., 465.
Ledgard, 456, 456.
Mayor of Herefoni, 45G.
Mayor of Gloucester, 450.
Mayor of Abingdon, 46G.
Poole, 456.
Mayor of Fowcy, 450,
Archbishep of Canterbury, 458.
Stafford, 458.
Trustees of the Balby Workshop
Turnpike Road, 458.
District Conncil of the District
of Gore, 458.
Bishop of Chester, 458.
Bristol Dock Co., 458.
St. Katharine's Dock Co., 458.
Windham, 468.
Damerel, 458.
Nottingham Waterworks, 458.
Rector of Birmingham, 458.
Hull and Selby R. Co., 458.
Eye, 458.
Justices of Lancashire, 458.
Bishop of Gloucester, 458.
Mayor of London, 458.
Justices of Yorkshire, 458.
South Easern R. Co., 458.
Hughes, 468.
R. T,
«« V.
" V.
" V,
«« T,
n
I
T.
V.
"T.
•' V.
••v.
" V.
"V.
«« V.
"v.
•« V.
"T.
"V.
"V.
«« V.
" V.
«'T.
" V.
"V.
"V.
«' V.
" V.
"V.
"V.
" V.
"V.
"V.
" V.
" V.
" V.
V.
((
((
V.
«« V.
" V.
«' V.
"V,
"V.
" V.
" V.
«' V.
"V.
" V.
" V.
" V.
" V.
"T.
Greene, 458.
East'n Counties R. Co., 468.
Baker, 458.
Monlacute, 458. '
Choere, 458.
Eastern Counties R. Co., 468.
The CommiHHioners of the Llan-
dis District Roads, 458.
Blackwell R. Co., 458.
Justices of Staffordshire, 458.
Pitt, 458.
Harrison, 458.
St. John's Coll. Camb., 468.
Bishop of Ely, 458.
Coleridge, 458.
London and North West R. Co.,
458,
Bridgman, 458.
Gilbert Heathcote, Mayor of
London, 458.
Norwich Savings Bank, 458.
Dayrell, 458.
Lords of the Treasury.
Brecknock and Abergavenny' R.
Co., 458.
St. Margaret's Vestry, 458.
Bristol R. Co., 458.
.Canal Co., 458.
Townsend, 458.
Conyers. 459.
Seale, 488.
Dillingham, 462.
Heathers, 490. • -
Kidd, 503. '^
Francis, 518.
Hales, 613.
Biinks, 613.
Burgesses of Caermarthen 618.
The Sheriff of Middlesex, 626,
627, 030, 631, 632, 640, 644.
The Sheriff of Essex, 627, 628,
632.
Courtenay, 027.
Wilson, 630.
Collier, 636. ' '■
Knapp, 636. *
Clifton, 636. i'
Sheriff of Niagara, 640. ' '
Sheriff of Surrey, 640. '
Reeve, 642. '
Trustees of Carnnrvon, 642.
Justices of Warwickshire, 648.
Blackwell R. Co., 643.
Mizen, 644. '
Anderson, 647.
Johnson, 654. ' ' ' '
Rich'i
TABLl or 0ASI8.
xlis
R. T. FrAser, 656
*• V. Jobnaun, 672.
Ilegnold'4 V Buikliart, 176.
Reid T. FrjfatI, 180.
T. Rew. 264.
V Hotikins, 821.
». Aahley, 515, 617.
Rdlly V. Clarke, 407, 468.
Rendell v. Bitiloy, 287, 290.
Rtinnelt et ux. v. Woodu, 62.
Reiinie v. Yoraton, 40.
Reiniie et ul. ▼ Bereaford et al.| 208.
R^'IllungtOD V. Tiiylur, 672.
Rdynolda v. CUrke, 151. /
V A-*k.!W, 175, 180.
V. Oniy, 187.
V, Sherwood, 648.
— — — V. Ivemv, 679.
Rlintlea et a1. v. Thomas et al., 289.
Rice V. Shut', 142, 678.
V Liii'.tod, 6J5, 606.
Rirt<ard!« v. Eiisto, 8.
V. Btuiirt, 60.
— — V. Hiiiiley, «6.
V. Setrcf, 148.
V Beavis, 199.
▼. .lainea, 223.
V. Bluck, 238.
▼. Hamar, 291.
V. Bennett, 387.
V. Frankum, «82.
V. Boulton, 686.
V. Syinona, 689.
Riohardaon v. Northrop, 42.
V. N urne, 107, 176.
V. Phiphen, 245.
V. Melliah. 411, 412.
Rickarda et al. y. Middleton, 287.
Riokots V. Barman, 821.
Ricketts v. Ourney, 173.
V. Noble, 889.
Ricketts et al. v. Noble, 39.
Riddell v. Briar, 893. 408.
V. Brian, 395, 396.
Rid)rway v. K >berts, 462.
Rigby V. Great Western R. Co., 461.
Ring V. Rothoroagh, 195, 213.
Ringer v. Blake. 461.
Riplingv. Wattia, 209.
Ripon V. Hohart, 461.
Rippon V. Dawson, 29.
Ritchie et al t. Van Oolder, 482, 486.
Ritohley v. Pr.»one, 205.
Riv's V. Hatton, 421.
Rizzi V. Folletti, 287.
Roach T. Potash et al., 18.
4
Roakea ▼. Manaer, 201, 212.
Roberta v. Hasleton, 14.
V Spurr, 124.
V. Huell, 188. ^
V. Taylor. 201. - > ,
V. Tayler, 249.
V. Breit, 206.
V. Rowlnnds, eni.
V. Cuttill, 641. .;
R(»bert8on V. Ross, 100.
V. Burke, 102. i
V. Myera, 203.
V. Showier, 204.
V. Oantlett, 247.
V. B.iulton, 819.
V. Barker, 822.
T. Cooloy et al., 691.
Robina v. Maidstone, 802.
V. Porter, 464.
Kohinaon V. Powel!, 89.
V. Elaam, 40.
V. Hawkins, 60.
'— V. Watldington, 108.
V. Miirohant, 140.
▼. MoO ath, 220.
V. Harman, 220, 232, 233.
31
n
3
T. MfBsingHr, 267.
. V. Hall, 087.
Robaon v. Doyle, 135, 142, 484.
V. Lusonnibe, 201.
R chdale Canal Co. (Proprietors of)
Radnciffe, 242.
Rook V. Adam, 74.
V. Leighton. 872.
Rodger , V. Maw, 241.
V. Nowill. 4ij2.
R .dway V. Lucas, 89, 90, 126.
Rndwell v. Chapman, 64.
Roe V. Cock, 31.
- V. Fuller, 254.
V. Horsey, 386.
Roe d. West v. Davis, 434.
Roe V. Wardle, 447
R.ffuy V. Shoobiidgc, 110.
V. Shoebridtfe, 274.
Roi rs V. Hunt, 60, 89, 124, 127.
V. ^'ust'inoe, 2(13.
V Vandecrom, 287.
V. Turner, 335.
V. Lewis, 837.
V. Jones. 630.
V. Maplt'back, 632.
Rolfe V. Pigot, 128.
V. West, 199.
V. Buike, 645.
Rolker et al. v. Fuller, 20, 656. »
T.
\ i
TABIif. Of 0A8EB.
Rollnstoa t, Dixon, 677.
Rolph y. Peokham, 81.
Bolt T. WatBon, 487.
Ropor T ISheusbj, 40.
Roiioorla v. TbotnaH, 272.
Rose ?. Cook et al., 0.
— — ▼. Miiogregor, 282.
V. Oreve!), 461.
RosH T. Oaudell, 29.
T. Hard, 46.
T. Urquhart, 02.
y. Ross, 192, 103.
y. Hill, 19Q.
y. Uobsou, 206.
— — y. Qreen, 214.
y. Cliftou, 254.
y. Robeson, 267, 268.
y. Hamilton, 864.
y. Clifton, 691.
Rusa et nl y. Balfour, 10.
V. Balfour et al, 44, 49.
y. Tttit, 161.
y. Webster, 151.
— — — y. Cameron, 850.
y. MoMarkin, 852.
y. Brookes et al, 500.
Rosse y. Cummings, 244, 255, 200.
Rosaet y. Hartley, 48, 625.
Round y. Hatton, 172.
Routh y. Webster, 463.
Routledge y. Abbott et al, 241, 257.
y. Giles, 017.
Rowberry y. Morgan, 121, 123, 125,
665.
Rowbotham y. Dupree, 103.
Rowe y. Rhodes, 89.
- y. Brenton^ 809.
y. Howlden, 833.
V. Ames, 683.
Rowland y. Blaksley et al, 91.
y. Tyler, 608.
y. Blaksley, 681.
Rowth V. Nester R. Co., 461.
Roy y. Bristow, 214, 669, 670.
Rudall y. Hurd et al, 623.
Ruddick y. Simmons, 847.
Rugbar t. Clements, 684.
Rumbellow y. Whalley, 237.
Rumbelow y. Whalley, 238, 59G.
Ruudle y. Little, 690. - .
Rush y. Kennedy, 216.
Rushton y. Aspinall, 886.
V. Hulfield, 639.
Russell y. Atkinson, 40.
y. Rowe, 72.
li T. Enowlcs, 74, 75.
Russell y. Lowe, 128.
- y. Corne, 154.
y. Hhenton, 199, 453, 461.
y. Hill, 283.
- V. Ledsam, 462.
y. Bell, 681.
HuHsell et al y. McDonald et al, 487.
Ruasen y. Huyward, 270.
Rust y. Kennedy, 31.
y. Chine, 86.
y. Nottige, 212. .•,,., ^
Rutherford y. Mein, 81. .^
Ruthyon y. Ruthyen, 188.
Rutland y. Bayshaw, 887. "i
Rutledge y. Thompson, 12, 280.
Ruttan V. Ashlord. 69.
y. Shea, 236.
y. Wilson et al, 606.
Rutter y. Chapman, 816, 817, 609.
Rutty y. Arbour, 641.
Ryall V. Bramall, 195.
Ryan y. Clarke, 247.
y. Cullen, 490.
Rynn et al y. Leonard, 11, 128.
Ryl.»nd v. Worwald, 140.
Ryli^nd t, Noakes, 215. ,
V. Warmald, 665. , . -"j
Ryley y. Boissomas, 60.
Ryves v. Wellington, 468.
SACKExy. Owen, 170.
Siiinter y. Ferguson, 462. ., _ ..
Sale y. Crompton, 81.
Salkeld y. Slater, 189, 190.
Salter y, Purchal, 245. .^ _
Samuel y. Morris, 684.
Samuel y. Duke, 354, 685.
Sainsbury y. Mathews, 135, 138,
Sanders y. Pope, 432.
Sanderson v. Cummings, 41.
- y. Westly, 605.
Sargent y. Gordon, 31.
Satchtiwell y. Lawes, 031.
Saunders y. Sniith, 461, 466.
Saunder's Bail, 632
Saunders y. MoQowran, 880.
Saunderson et al y. Parker, 867.
Sayery y. Lister, 208, 695.
Sayage y. Dent, 891, 896.
Savignac v. Roome, 151.
Savory v. Chapman, 356.
Sayre et al y. Mansfield, 212.
Sayre y. Rochford, 247. ,
Scales y. Cheese, 488.
Schenck y. Godts, 206. ;
Schlenckerv. Moxey, 161.
806.
.i..
Sharpe
TABLl or OAKS.
4
Sohobell T. OUmoar, 175.
Bohreger t. Carden, 220.
fiohinulti T. Avery, Vi7.
SootUnd ▼. Ilenderuon, 290.
Boott V. Vnii Sandao, 170.
▼. Williama, 174.
▼. Atery, 183, 184. ,
— — T. Jones, 195.
V. OodwiD, 199.
T. Chappelow, 246, 267.
▼. MiirHhall, 288.
V. Van Sandan, 327.
V. Macauly, 836.
V. Waller, 886.
v. Walker, 880, 830.
V. Zygomala, 839.
V. Larkln, 867, 857.
—— V. Do Riohobourg, 619. ,
V. Benson, 039.
T. Cogger, G41.
Boott et al t. Hefiferman, 69.
Boudamore t. Stratton, 201.
Bealy ▼. Hoarne, 02.
Soarlc T. Brndsbaw, 200.
Scarson t. Small, 16, 865.
Beaton t. Benedict. 229, 220.
Seaward v. Howey, 174.
Sedlev t. White, 642.
Beiveking t. Dutton, 210, 078.
Solby V. The East Anglian K. Co., 200.
T. Robinson, 387. -i
Sellers v. Biokford, 201.
Semthurst v. Taylor, 309.
Senior t. MoEweii et al, 279, 282.
Sorres et ux v. Dodd, 163.
Severin v. Leicester, 208, 695.
Sewell V. Dale, 200 239, 077.
V. Thompson, 308.
V. Dray, 350.
Seymour V. Maddox, 84.
v. Maddon, 640.
Shackell t. Ranger, 208.
Shadull V. Bernett, 599.
Bhadwell v. Berthond, 205.
Shave v. Spode, 632.
Shanger v. Small, 365.
Sharland v. Leifchild, 210, 673.
V. Loaring, 241.
V. Soaring, 610.
Sharman v. Bell, 176.
V. Stevenson, 229. ,
Sharpo v. Hancock, 174.
V. Brice, 236.
V. Lamb, 317.
V. Dalmaine, 475.
V. Fox, 661.
•1
•r
I
Sharpo r. Johnson, 642.
Shatwoll V. Darlow. 40.
Shaver ▼. Curry, 91.
Shaw T. Evans et al, 507.
T. Evans, 608.
V. Hughes, 506.
▼. Atvanley, 254.
V. Holmes, 325, 888. i
v. Bank of England, 320.
V. Shaw, 226.
V. Turton, 171.
et al ▼. Niokerton, 83, 188, 511.
Shiel V. O'Neill, 164.
Sheehy v. The Pro. Life In. Co., 78,.
249, (202.)
Sheldon t. Hamilton, 250, 257.
V. Munford, 636.
Sherstone t. Baker, 24.
Shephard ▼. Shum, 84. {
Shepherd v. Duncan, 200.
V. Hall, 887.
Shopley v. Marsh, 298.
Shepphard v. Williams, 75
Sheridan T. Casserly, 438.
Sherriin v. Marshall, 607.
Sheriff v. Gresley, 82. |
Sherry v. Oake et al, 170. <
Sherwin v. Swindall, 520, 521. f
Sherwood v. March, 206.
V. Tayler, «9, 40.
et al V. Board of Worka, 72,
100.
Shillibeer v. Longwood, 238. ,
Shinder t. Roberts, 69.
Shirley ▼. Jacobs, 61, 82, 85, 681.
Shoebridge v. Irwin, 220.
Shore v. Shore, 219.
Shore et ux v. Bradley et al, 91, 207.
Short V. Campbell, 642.
V. Kftllerwny, 236.
V. King, '149.
D. Elmes v. King, 896.
Shouldice v. Fraser, 698.
Showier v. Stoakes. 219, 041.
Showes V. Holmes, 833.
Shrimpton v. Carter, 149. ; ■
Shuberg et ux v. Cornwall, 153. -?
Shuck v. Cranston, 493, 494.
Shuttleworth v. Cocker, 615, 518, 520.
Sibley v. Fisher, 678.
Sifton T. Anderson et al, 100.
Siggers v. Sansom, 63.
Sikes v. Giles, 462.
Simms v. Henderson, 826.
Sill 1^1 e V. Loudon and Birmingham R
Co., 401.
n
i
1
8 k
li
j;
i,
lii
TABU! OF OASES.
I
;il
liii
8imp8on ▼. Drummond, 42, 642, 642.
Bitupson's Bnil, 630.
v. Heath, 868.
— V. SadU, 328.
-- V. Bauisay, 80, 69.
~ V. Rand, 214.
— T. JackHOD, 216.
'- V. H*nley, 622.
I
Sims T. Jacqufttt, 40.
V. Edrutinds, 210,211.
Sidney v. Nevicson, 446.
Bisted T. Lee, 126. K
BkeltoD T. Hawliug, 872. <
BkiDaerv. Holcomb, 174. r,
— ; ▼. Lambert, 268.
V. London and Brighton R. Co.
270, 284.
Black V. Clifton, 670, 671. •" '
V. McEathron, 176.
V. Boowal, 386.
Blade v. Hawle.v, 241.
B'adden v. Smith, 611.
Blatter v. PointT, 282.
B'eeman v. The Copper Mine Co., 284.
Sloan T. Packman, 206.
Bloper V. Cotterill, 47/. .; «f
Siuales V. Dale. 414.
Small V. McKens,ie, 208, 686.
y. Strachan, 208.
V. Rodgers, 176.
V. Beaaeley, 84.
Smallcomb v. Cross, 354.
Smart v Rodger**, 134.
V. Hydj. 210, 676.
V. Sanders, 269.
V. Lovick, CO.
Bmeeton v. Colly er, 444, 446, 446.
V. Collier, 82.
Smethurst v. Taylor, 90, 681.
Smith T. Russell, 6, 8, S3.
Jackson, 9.
Cotton, 10
Bellows, 22.
K«id, 83.
Thompson, 43, 214, C69.
Kend-vl, 43.
Sullivan, 44. ; '
Mackny, 47. i " •
T. Ross, 49.
V. Lawrence, 60.
Bond, 68. . ,.
Smith, 60.
Wintle, 73. . ,
Brown, 110.
Wedderburne, 131, 666.
Knoneldoa, 135, 138.
— V,
— V.
— V.
— V.
— V.
— V.
— V.
V.
V.
V.
V.
V.
— V.
— T.
Smith T. Brnndran, 189.
V. Barrow, 160.
V. Blake, 169. "
V. Gotf, 171,
V. Symes, .^98.
V. blrtckwell, 206. ' «.r
V. Hardy, 206.
V. Milles, 212. ' ' ■ -»
V. Peat, 286.
V. Compton, 286. ^ • ' •
V. Parsons, 239.
V. Jones. 289. .
V. Koystou, 241, 690. '
Dixon, 244, 265.
Goldsworthy, 269, 269.
Monleiib, 267.
Hearn, 271,271. -
Brown, 274.
Davis, 290.
Martin, 602, *80. "
Bird etal, 816.
Winter, 883 679.
Duke of Beaufort, 885.
Great W. Road Co., 836, 887.
Dickent'on, 348, 348, 620.
Temperley, 860. ■ ■ -.
Mee. 874.
V. Hannan, 881. '
V. Parkes, 434.
V. Tett, 441,
V. Elzer, 461.
V. Jcyes, 468.
Re, 590.
O'Brien, 600.
V. Woodcock, 604.
V. Clarke. 641.
V. Truscott, 650. ' • -■<
V. Thomas, 688. '
Smith's Bail, 630.
Smith IX parte, t43.
Smith et al v. G^o ge et al, 176.
Smythe v. Tower, €00.
et al V. Anderson, 187.
Sneider v. Mangino, 836, 336. r
Snook T. Mattoch, 159.
V. Hellyer, 174. .
Snooks V Su ith, 347.
Soiires V. Glyu. 244.
Soilleux V De Horbest, 198.
Solly V. Neish, 246, 674.
Solomon v. Lawson, 218.
V. Nainby. 82.
Solomonson v. Parker, 208.
Somers v. King, 602.
Somerville V. Hawkins, 688.
Soper y. Draper et al, 129.
Stables
Stafles
Stalwoi
Standur
Stapleal
StarlinJ
Staley [
TABLE OF OASES.
Uii
Soalsby v. Hodgson, 187.
Souter V. Watts. 44fi.
South Eastern R Co. t. Hebblewhite,
244.
V. Hibblewbite,
254.
670, 670,
~ V. Sprot, 269,
V. Barnes, 670,
South Stafforduhire R. Co. v. Burnside
274.
South Shields Water Works Co. v.
Cuckson, 683.
Soutbey ▼. Sherwood, 463, 466.
Soward v. Leggiitt, 302.
Sowter v. Hitchcock, 601.
Spaiford t. Buchanan et al, 280.
—^^— V. Buchanan, 284.
Spam V. Cadell, 616. '
Speach v. Stade, 628.
Spear v. Chapman, 196.
Speck V. Philips, 229.
Speuce V. Healy, 20 ' .
V. Sheard, 173.
V. Barker, 76.
Speucer v. Parry, 161.
V. Hamilton, 25G, 257.
V. Newton, 173.
" V. Dawson, 239.
V. Hamerton. 671.
— — — T. Swaunell, 681.
V. Barough, 316.
V. Goter, 411.
V. London and Birmingham R.
Co., 401.
Spencley v. Shouls, 220.
Spicer v. Todd, 82.
Spiers v. Parker, 386.
Spoonesv. Danks, 40.
V. Brewster, 154.
Spots woode V. Burrow, 247.
Spottiswoode v. (Mark, 461.
Spradhery v, Qillam. 241.
Spurr, V. Rnynor, 287.
Spyer v. Thelwell, 213.
Squire v. Grevilli', 174.
V. Cambell, 4(51.
Stahles et al, v. Ashley, et al, 31.
Stafles V. Hay, 176.
Stalworth v. Innc, 173, 176.
Standclilfe v. Hardwicke, 688.
V. Har wick, 084.
Staples V. H'ly. 65.').
Starling v. Cozens et al, 257.
Staley ▼. Long, 267.
f^V**^
I
<.4
Standard t. Baker, 880.
Btarner ex parte, 688.
Startup T. Cortazzi, 233.
Starratt t. Manning, 608.
Stttton T. Burgis, 693.
Stead T. Williams, 462, 608.
Steadman v. Arden, 338.
Stedman t. Was'ey, 202.
Steele t. Haddock, 469.
Steel T. Sturry, 264. . r
▼. Morgan, 84. - < ,;
V. Harmer, 296. p s , .
Steers V. Harrup, 168.
Steill V. Sturrey, 206, 669.
St. John V. St. John, 386.
Steinheller t. Newtou, 344, 844.
Stephen v. Loundes, 124.
Stephens t. Pell, 282.
V. Foster. 844.
V. Cooper. 387.
V. Hill, 690.
Stern v. Yglesias, 679.
Stevens v. Keating, 461.
V. Sheldon, 16.
V Miller, 630, 632.
Stevenson v. Thorne. 65, 65.
Steward v. Dunne, 264.
V. Greaves, 264.
.*^tewart V. Crawford, 176. i*
Still V. Halford, 173. • .-
Stinson v. Hall et al, 478.
Stitt V. Compton, 654. .*.
Stockfort V. Hawkins. 370. rl.
Slocking V. Cameron, 356.
Stockton, Darlington & Co. T. Fox>
281.
Stokes V. Woodeson, 604. . ■ -j
V. Giissell, 82. 831.
Stones V. Menham, 328. ?
Story V. Finnis. 229.
Stonghton v. Kilmorey, 679.
Stovin V. Taylor, 40.
Stracey v. B ake, 810.
Stratton v. Greene, 178.
Stratwell v. Barlow. 40.
Street V. Cameron. 91.
V. Dobson, 2">0.
V. Cathcart, 2.')2.
V. Cuthbeit, 838.
V. Brown, «33.
Str^eter V. Bnrtlett, 313.
Strike V. Blanchnrd, 642.
Stringer V. Ammerman, 418.
Strong V. Foster, 472.
Stroubridge V. Davi^i, 61.
I
U
.i
f 1
ttv
TABLE or OASES.
Stroud V. Kano, 24.
▼. Watts, 517.
V. Gerrard, 181.
V. Kenny, 627.
Strutt V. Rogers, 177.
V. Farlar, 234.
Stuars T. Rogers, 289.
Stuart V. Gaverin, 642.
StuUv. Mcleod, 21.
Sturzs T. De La Rue, 465.
Suckling T. Wilson et a1, 228.
Sugars V. Concanen, 88.
Suker et al t. Neall, 289.
Sulsh V. Cranbrook, 281.
Summer T. Bntson, 81.
Sutolifl'e V. Brooke, 174.
Sutherland v. Wills, 137.
V. Pratt, 196, 244, 678,
676.
et al T. Patterson, 802.
Sutton T. Burgess, 61.
V. Bament, 116.
V. Bawling?. 444, 445.
y. Clarke, 602.
V. Bishop, 475.
Swain v. Roberts 601.
V.Stone, 648. •
Swan V. ClelandH, 369. >
8 wanton t. Biggs, 438.
Sweet y. Magna;. 72.
y. Cuter, 466.
y. Maughnn, 466.
Sweeting v. Asplin, 151.
Bwinburn y. Taylor, 596.
Sykes y. Ross, 44.
Symmers y. Wason, 48,
Symes y. Chaplin, 688.
y. Gooilfellow, 171, 176, 674.
Symons v. Bluke, 475.
Tabram y. Thomas. 61, 82.
Tadman y. Wood. 84, 81, 83,85, 186.
Taff Vale Railway Co. v. Nixon, 164.
Tagg V. Simmonds, 206.
Tait etal y. Atkinson, 174.
Talbot y. Hodson, 40.
V. Bulkeley, 247.
Talkhorn v. Wrigg, 886.
Tancred et al v. Chrisi^, 411.
Tannahill y. Mos'er, 44.
Tato y. Bodfield, 102.
Tatem y Perient, 244.
Tattersall y. Orooto, 171, 184.
y. Parkinson, 230.
Taverner y. Little, 684.
Tay y. Hall, 607.
Taylor v. Rolfe, 89.
y. Gregory, 68.
y. Best et al, 77.
y. NichoU, 96.
y. Whitworlh, 129.
— y. Marling, 160.
▼. Gordon, 178.
y. Needham. 200.
V. Carr, 218, 267.
y. McKinlny. 258.
y. Carroll, 254.
y. Williams, 818.
■ y. Thompson, 329.
y. '
y.
V.
y.
y.
y.
y.
y.
'^K'
It
..IT
Osborne, 838.
Harris, 880.
Holman, 884.
Devy, 886.
Shaw, 486.
Rolf et al, 516.
Joddrell, 694.
Nicholls, 606. •
y. Parkinson, 606.
y. Murray, 617. > , .
y. Evans, 632. ;
!- y. Hawkins, 687.
d. Atkins, y. Horde, 425. , .
Taylor et al y. Crisp, 160.
Tebbitt y. Holt, 519.
Tebbutt y. Selby, 386.
y. Ambler, 645. ,
Teede et al y. Johnson, 476.
Teggin y. Langf'ord. 82.
Tempany y. Rigby, 282.
Temperley y. Brown, 214, 669.
y. Willett. 336.
y. Scott, 344. . 1
Tenant y. Hamilton, 807.
Tennyson v. O'Brien, 483, 485. . =
Terry y. Starkweather, 687.
Teulon y. Gant, 207
Thackray y. Harris 8.'>7.
Thame y. Boast, 230, 238.
Tharpe y. Grisburne, 315. ., ^
Thatcher v. England, 157.
The Athenocum Life Assurance Co. t.
Pooley et nl, 462,
The Bank of Upper Canada y. Covert
et al. 287.
The Dnko of Norfolk y. Leicester, 873.
The King y. Nash. 302.
The King's College y. Maybee, 285.
Thelluson y. Stiiples, 664
The President, Directors and Co. of the
Gore Bank v. Gunn, 16
The Queen y. Black wall R. R. Co., 48.
— y. Hemsworth, 174.
TABLS OF OASES.
Ifi
!i.v
*it
•IT
The Queen v. Gompertz et a1, 821.
The South Eastern R. Go. t. Beg, 465.
Thirkell t. Strachnn, 176.
Thol T. Lenske, 840.
Thorn T. Huddy, 245. ■ ■•'
Thomas v. Pearce, 73, 74.
■ V. Jackson, 196. '•'
V. Vandermolen, 205.
y. Hawkes, 229.
V. Williams, 283. 872.
v. Baron von StuUerheim, 824.
V. Dunn, 838,
- V. Jones, 888,
V. Packer, 436, ' '
V. Walters, 486.
V. Phil by, 648-9. ■ ~-
V, Hawlies, 674. <
V. Morgan, 683.
Thotnell v. Bolnnts, 603.
Thompson v. Zwick, 14.
Dicns, 24, 82.
Atkinson, 89,
Calder, 78, 74,
Gibson et al, \Q'
Frtrr, 110, 113.
Sewell, 140.
Charnock, 188. .
Redman, 206.
Phepperd, 227, 280.
Jackson, 229, 25 K
Mursh et al, 236
Breakenridge et .il, 246,
V,
V.
▼.
V.
V,
V,
V,
V.
V.
V.
V.
V,
V.
rt
le
8.
H'lrdinge, 247.
V, Knowles, 248.
V, Le mard, 350,
— — V. Tomkin-on, 401.
V, Hugson. 612.
V, Gibson, 518, 519,
V, Billing. < 49.
V. Billingslev, 654,
V. Hornby, 672.
V. Clmblpy, 679.
Thompson et al v. Macklem, 175.
Thompson's Bnil, 629,
Thorn v. Leslie, 637,
Thome v. Mason, 47.
V. Neal, 605.
V, NentP. 648, *
Thornton v. VVhit(;l,end, 214.
Thoroton v. Wliitehend. 669,
Thorpe V, Plowden. 159,
V. Evre, 191,
V. Thorpe, 211.
V, Arultis, 882.
V, Anglic, 648. " •■ •
Threfall v, Webster, 383. < -
f'.if'i
Thrushout ▼, Jones, 892.
Thrustout dem Turner ▼. Qrej et al,
400.
Tibbs T. Bacon, 216.
Tierney Re, 643.
Tiffany v, Bullen, 12.
Tiffin V. Glass, 890.
Tiling T. Hodgson. 88.
Tillam v. Copp, 170, 171.
Til ley v. Henley, 641,
Tilslow V. French, 174.
Tilt v.< Dickinson, 823. if
Timmis y. Piatt, 677.
Tindal et al t. Ball el al, 236.
Tipping T. Johnson, 856.
Tipton V. Gardner, 40.
Toby V. Hancock, 88. '• >. -^
Todd V. EdwHrds, 74.
V. The Gore Bank, 150.
V, Emly, 224,226. -
V. Cann et al, 400. ' »•
Tollit V. Saunder-, 187.
Tolson T. Bishop of Carlisle, 591.
Tomlin v. Mayor of Hardwicki*, 174.
Tomlinson ▼, 'Bollnrd, 139, 269.
V, Hiirvey, 632.
Tompkins v, Chilcote. 61.
Topham ▼. Boast, 288. '■ • -
Toppin V. Field, 274.
Topping V, Brown, 290, ■- "
Topping et al v. S It, 862.
Torrance v. Glass, 608.
Tory V. Stevens, 216. . ' r
Totten V. Fletcher, 98. • .
Townley ex pnrte, 654,
Townsend v. Smith, 226, 226.
V. Syms, 615,
Townson v. Jnckson. 91, 681, 682.
Tracey v. Hodge t 1 76.,
Travis v. Collins. 333.
V, Wanless, 499. ' <■ <■
Treacher v, Hinton, 321. '
Treasure's Bail, 629.
Tremeere v, Morrison 8,
Tremenhere v. Tres'llnn, 178.
Tromlow v, Askey, 229.
Trickett v Jarman, 269, 483.
Trickey v, Lnrne, 113, <
Yenndell, 255.
Diieer, 254. = ~
Smidlev, f>95, 679. '
Tripppt V. Eyre, 185.
Trott V. Smi'h, 64 1 674, 681. - •
Trotter v, Bass, 61. 82.
Truscott V Lntonr. 290,
Truscott et al v Walsh et al, 498.
t
Tiibuor v,
Trinder v.
(4
Ik
I*.
il
I
Ill')
m
hi
TABLE OF 0A8B8.
,,11, ii
if I!
Hi -'^
ill
Truslove ▼. Whiteobarch et a1, 60.
T Whitchurch, 90.
Trust and Land Co. of Upper Canada,
V. Elmer, 400.
Tuck V. Tuck, 240, 241, 242.
Tucker ▼. Barnesley, 247, 269.
v. Coldgrtte, 640.
Tuckey ▼. Hrtwkins, 246. , v ,^ - .
Tuftou V. Wliiteniin, 844.
Tugman t. Kuniler, 229. ; .
Tullis V. Tullis, 206. i ,
Tunzell v. Allen, 333.
Turner v. Prince. 89. : , ^
V. Gill, 8.5. . .
V. Collins", 91, 681.
V. Alway, 174.
V. Lamb, 199.
V. Diaper, 299.
I V. Mery weather, 284.
V. Williams et h1, 350.
y. Coalhrook Steam Co., 426.
V. Pulman, 475.
V. Cary, 631. 632.
Turner et al v. Hawkins et al, 151.
Turnley ▼ The Londou and N. W.
Railway Comptny, 10.
V. McGregor, 205.
V. Mt'cgregor, 673, 678.
Turquand v. Hawtrey, 254.
Tuson V. Evans, 686.
Tuycrop v. King. 247.
Twight V. Prescott, 268.
Twiss V. Osborne, 40.
Tyldenv. Bullen. 313.
Tyler v. Gr vn. 88.
Tydall v. Ulleshorne, 268.
Tynn v. Billingsley, 310.
Tyrwhitt v. Wynne. 3lt9.
Tyson v. McLean, 35, 37, 38, 038, 049.
UuAi.t. ex parte. 588.
U iney v. East India Co., 160, 200.
Underbill v. Hmney, 268.
V Fuller, '68.
Unger v. Crosby, 2 0.
Unite V. Humplir»'y et al, 214.
Upper V. MoFnrland et al, K8.
Upper Canada (Bank of) v. Spafford,
97.
Urquhartv. Dick, 61, 82, 85.
Vait ▼. Noble et al. 689,
Vallance v. Rvatif, 671.
Valpy V. Oakley, 234
Vance et al v. Winy. 600.
Vane Y Whitiington, 317.
Van Nyrel ▼. Hunter, 40.
Vanorinan ▼. Leonard, 246.
Vanatimien et al ▼. Nai-b, 688.
Vausittart y. Taylor, 820.
Varley ▼. Mauton, 212.
T. Barrett 476.
Vassier ▼. Al ereon, 42, 642.
Vaughan ▼. Hubbs, 8, 10.
Glenn, 218. ... . :l,
T. Brown, 224. *.
y. Wilson, 880.
y. Harris. 604,
Veale y. Warren, 176.
Verbist y. De Keyser, 206.
Verey. Garden, 205.
y. Goldsborough, 264.
Vernon y. Ship on. 684.
Vertue y. Est Aitglian, 187.
Vidi y. Smith. 466. , ■ ;
VIgers y. Aldrich, 856. ' ,'
Vihnoty. Barry, 605.
Vivian y. Jenkin, 241. >
y. Shipping, 886.
Vogel y. Thompson, 369.
Vollum y. Simpson, 256.
Vorley y. Barrett. 472.
Vyse y. Wakefield, 204.
Waddilovk y. Barnett, 674.
Waddy y. Barnett, 290.
Wade y. Simeon, 126, 183, 196, 201,
448, 648.
Wadsw rth y. the Qneen of Spain, 865.
y. Marshall, 650.
y. Beu ley. 687.
et al, V. Boulton, 61.
Wagner y laibrie. 225.
Wain y. Bailey, 887.
Wiiinwright y. Bland, 608.
Wakefield y. Brown, 1 ^7.
Wakeling v. Watson. 8l. '
Wakcly v. Teesdale. 71, 74, 76.
«Valkery. Medbind, 65.
y. Need»,»tm, 111, 274.
y Court, 160.
y, Joneo, 195. ;
y. C.tley. 268.
y Lane, 283.
y. Thellnson, 372.
y. Goll.ng. 382.
y. Ganln. r. 606.
y. Mellor. 674, 678.
y. Mill.r, 676.
y Jones. 68H.
et al. V. Ilawke, 245. [286
Wall y. London & S. Western R. Co..
Wall)
W.ilti
Walb
Walli
Wall<
Waltl
Watsi
Warn
Warr
Wan
Waal
Was'
Watt
Wat«
Wat!
WatI
Waj
Wei
rMiP
TABLE OF OASES.
Ivii
Wallace ▼. Fraser, 122, 126, 214.
V. Grover, 2o6.
V. Bi'ook ay. 605.
Wilton T Smith, 225.
Waller V. Joy. 140.
V De R chinond, 637.
Wallii V. Lyons, a09. ;. , „
T. Brttadbt-ni. 674. , .. .
Wallop V. Iiwiii, 881.
Waltber T. Moms, 110.
Watsou T. Iliiy WHrd, 13.
■ V. The Uuivertial Salvage Co.,
71.
V. Chandler, 606.
Ward V. Skinner, 53. ^ .
V. Gregg, 63.
V. I'eardon, 186.
■ V. Harri", 195.
V. Ginsrttock, 196, 214.
V. Broom h«ad, 356, C62.
V. Bt'U, 670.
et al V. Sexmith, 8, 10.
Warner t Bluckiock, 269.
Warren V. Lc.ve, 131, 407, 628, 666.
V. Kirby, 226.
V. Smith. 288.
I V, Munroe, 46.S. , ,
V Ue Burgh. 629.
Warrington v. Lake, 102.
V. Leake, 1J5.
Warwick v. Iloopt-r, 465.
Washbiurn** v. Burruwes, 245.
Wa8''burii v. Ftitbergill. 91.
Waterman v Garden, 2t>5.
Waters v. Joyce. 43
V. Weatherly, 284
et al y. Towers, 238.
Watkins v B n8u^on. 266.
V. Morgan 216.
V. Giles, 290. •
V. Lee, 68:{.
Whtsonv. Colemiin. 60. 61.
V. Abbott, 110, 274.
V Blach. 172
V. Giis Co . 201.
V. Quilter, 377.
V. Alcock. 474.
V. Mafkell. 618.
Wat-on's Bail, 6X0.
Watts V. Jeffreys, 362.
V. George. 467.
Wawsell V. South w.>od, 172.
Webhv. Lawrence. 29. 13f>, 216.
V. Spicer, 137 386.
V. Cowdeil, 160.
V. Taylor, 172, 173.
Lee, 179.
Adkins. 210.
Page, 289, 688.
Hui-rell, 366.
Tiipp, 685.
Richards, 689.
Webb's Bail, 680.
Webber v. Paike«, et al, 242.
Webby V. Beard, 51.
Webster v. Watts. 205.
V. Horseburgh, 402.
Weeden v. Medley. 44.
Weeding v. Aldrich. 247.
Weeks v. Aigent, 678.
Weeton v. Woodcock. 214.
Welch, V. Vickery. 618.
Weld V. Baxter, 485.
Wi.ller V. Wallace, et al, 73.
V. Goylon, 1U.
V. Baker, 153.
Weller's Bail, H30.
Wellesley v. With-rs, 156, 160, 161
Wells V. Secret. 220.
V^elshv. Lywood, 630.
Westv. Radforl, 220. ' ' r
V. Nibbs, 262.
V. Sutton, 872.
V. Blackway, 387. ' ,
V. Cooke, 603.
West'.ey v. Jones. 73.
Westoby v. Day. 365.
Weston V. Woodbridge, 210.
V. Mason, 386.
V. Foster. 679.
Westoyer v. Biirnham, 42. 43.
Wetherall v. Langton, 137.
Wettenhall v. Graham, 206.
AVhale v. Lenny, 254.
Whallcy in re, 650.
y. Pepper, 683.
Wharton v. King, 173.
Whatelyy. Morland, 176.
V. Crawford, 336, 339, 341
Wheatley y. Eo.vd, 1.37.
y. Golney. 147.
v. Lane, 372.
y. Patrick, 684.
Wheeler y. Bavidge, 212.
Whesten y. Packman, 127.
Whipple V. Manley, 209.
White V. Neeld, 9.
y. Petch, et al, 21, 503.
y. Prickett 40.
y. Lowerby, 46.
V. G tscoigne, 143.
y. Farrer, 209.
.?
■n'
4 .-
it
T
f
J
1
. V
'4'd
? H
i
i I
rMP
lyiii
TABLE OF OASES.
White V. Feltham, 215.
V. Pelham, 215.
V. Boulton, 225.
V. Clarke, 282.
V. Teal, 684, 688.
et al V. Brown, 24.
Whitehead v. Fothergill, 69.
V. Harrison, 195. 20fi, 683.
V. Brown, 285
— V. Greatham, 386.
— V. Minn, 627.
— et al, V. Frith, 177.
Whitewell v. Scheer, 138.
Wittington v. Hords, 413. '
Whitling V. Des Agnes, 146.
Whitmore V. Nicholls, 267.
V. Green, 685.
Whittaker v. Mason, 245.
V. Edmunds, 680.
Whittingham v. Bloxam, 805.
Whittle V. Oldaker, 626.
Whitworth v. Hall, 386,
Whytehead re, 590.
Wickes V. Grove, 482.
Wickett V. Cremer, 475.
Widgen v. Birt, 645. ;
Wiggins V. Stephens, 632.
Wight V. Ferrers, 209.
Wilby V. Erlaton, 686.
Wilcox V. Montgomery, 201, 690.
"Wild V. Hall, 237.
Wilkes V. Hopkins, 317,
V. Broadbent, 386, 387.
V. Wood, 694.
Wilkie V. Gibson, 291. '
Wilkin V, Reed, 482, 486.
Wilkins v. Jones, 74, 75.
V. Peck, 176.
V. Blacklock. 261.
V. Bromhead, 320, 321.
V. Canty, 380.
V. Perkins, 617.
Wilkinson v. Time, 190.
- V. Shariand, 200, 272, 482,
484.
426.
- T. Small, 206, 213, 254,
- V. Page, 206.
--V. Kirby, 242, 243, 406,
- V, Willats, 291.
V. Tnixton, 444, 445.
Williams v, Higgs, 10,
V, Bryant. 31, 131.
V. Clough, 48, 643.
v. Williams, 66, 81,
244.
131,
Williams ▼. The Lords Commissioners
of the Admiralty, 71
V. Welch et al, 87.
T. Welch, 87, 873.
V. Strahan, 124.
V. Currie, 235.
V. The G.W R. Co., 242, 267.
V. Vines, 250, 669, 673.
V. Thomas, 302.
V. Jarman, 808.
— V. Archer, 367.
V. Germaine, 886.
V. Roberts, 475.
V. Crosby, 494.
▼. Mortimer, 616.
V. Webb, 638.
V, Hockin, 645.
V. The African Steam Navi-
gation Co., 670.
V. Bryant, 681.
V, Moshyn, 687.
Williamson v. Page. 327.
Williard, v, Woolcut, 17, 851.
Willis V. Hallet. 206.
Willoughby v. Willougliby, 184, 388.
Wills V. Dawson, 48, 643.
V, Robinson, 252. 261.
Wilson ▼. Blakey 48,643, 644.
v. The Caledonian R. R. Co.,
72.
V. Northorp, 82.
V. Wilson, 91.
V, King, 167.
V. Wymonald, 220. •
V. Craven, 254. ' •';
V. Ames, 254,
V, Westbrooke, 287.
V. .Janiiesnn, 868.
V. Bradslocke, 596. ?
V, Tucker, 698,
V. Northrop, 648.
V, Robinson, 687,
V. McCulloch, 687.
Wilson's B.iil, 630.
Wilton V, Chambers, 642. '
Wiltfcee V. Bloor, 60, .
Wimhurst v, Deely, 195.
Winpeiiny V. Batts, 193, 194.
Winter v. White, 173.
V. Lethbridge, 175. /
Winterbottom V Lees, 208. '
Wintle V. Freeman, 354. " ■/
Wise V, Hewson, 516. '■
V. et «1. 522.
Wodehouse et al v. Fiirebrother, 469.
Wolfe V. Collingwood, 64. '
TABLE OF OASES.
*-/
V- t,/ -.
/•
Wolfo T. Hooper, 671.
Wood y. Hume, 81, 82.
v. Harding, 83.
V. Hotham, 169.
V. Lenke, 170.
V. O'Kelly, 177.
V. Coopers Miners Co., 210, 471,
476, 479.
V. Peyton, 242.
V. Connop, 260.
V. Harding, 279.
V. Cox, 328.
V. Morewood, 826.
V. Furnis, 461.
▼. Dwarris, 472.
V. Dwarris et al, 478.
V. Duncan, 616. ,
y. Cassin, 630.
Wood et al y. Cnmpbell, 16.
Wood et ux y. Bletcher, 240.
Woodcock V. Kilby, 81.
Woodcock et al y. Worthington, 833.
Woodman y. Goble, 2701.
WoodruflF et al y. Davis, 689.
Woods y. Court, 150.
Woodyer y. Gresbam, 388.
Woolmer v. Devereux, 333.
Woolf y. City Steamboat Co., 31.
Woriey y. Qloyor, 78.
y. Lee, 214.
y. Harrison, 677.
Worten y. Smith, 59.
Worth y. Terrington, 265.
Worrall y. Grayson, 674. '
Wortham y. Tuck, 608.
Worthington y. Wigley, 209, 297.
Wragg y. Jarvis, 605.
Wren y. Heslap, 684.
Wright y. Skinner, 48.
— y. Clements, 199.
■ y. Burrowes, 225.
y. Goddard, 229, 386.
Wright y. McPherson, 282.
y. Wilcox, 305.
V. Beckett, 807.
y. Murray, 806.
y. Madocks, 874. ,-
y. Sharp, 411.
■ y. Johnson, 440.
y. Tallis, 462.
y. Menton, 074.
v.. ' ie, 680.
- V. lia 1, 683.
Wright et al y. .j.M, 499, 592, 638,
Wyatt y. Genney, 74.
y. Stocken, 281. ^ ,
y. Nicholls, 291. *
V. Treble, 049.
Wyland v. Pickford, 247.
Wylliey. Phillips, 61.
Wynn y. Palmer, 140.
y. Nicholson, 179.
Wythers y. Hemley, 354.^
Yabdlet v. Jones, 85.
Yates y. Tearle, 241.
Yorke y. Ogden. 625.
Youde V. Youde, 9.
Youlton y. Hall, 85.
Young V. Baby, 24.
y. Dowlman, 44.
y. Gatien, 44.
y. Crompton, 60, 62.
y. Walter, 167.
y. Gadderer, 205. ^
y. Fisher, 279.
y. Honner, 315.
y. Crooks. 347.
y. White, 466.
y. Rushworth, 003.
y. Cooper, 684.
Zachary y. Shepherd, 178.
656.
\ .ft,
a;
n
{I I
uK
I 11
f-4j
TABLE OP CASES
m ■
ADDENDA ET CORRIGENDA.
(pp. 763-762 IN0108IVE.)
< :
Ablktt t. Basham, 764.
Aikins In re, 767.
Allan T. Dunn, 758.
AUenburgh y. Thompson, 754.
Anvill V. Bricke, 758.
Arnold t. Jenkins, 754.
Arrimgim v Schofidld, 762. >
Atterbury v.aJarvie, 762.
•^— — V. Moore, 761.
Baltoub t. Eaton Fire Assurance Co.,
761.
Banes t. Hayward, 758.
Barton et al t. Nowlan, 758.
Baxter et al v. Dennie, 756.
Bayae v. Stock, 756.
Bell T. Richards, 761.
V. White, 761.
Benburgh v. Solomon, 754.
Blumenthale t. SoIomonH, 764.
Bouchier et al, t. Patton et al, 753.
Bray v. Finch, 759.
British Empire Shipping Co., v.
Soames, 759.
Buchanan v. Ferris, 756, 766,
Buffalo & Lake Huron 11. Co., y.
Gordon, 763.
Bulford y. Tomlinson, 766.
Carpenter, v. Tout, 762.
Carrall et al y. Bull, 757.
Cunzna y. Morris, 757.
Chase y. Scripture, 758.
Clarke y. Clarke, 754.
y. Mackintosh, 756.
Cleayes y. Frnser, 756.
Cleghorn y. Carroll, 763.
Cobbett ex parte, 754.
Collins y. Johnson, 755.
Cowburn y. Wearinz, 756.
Ci-aye et al y. Mnguire, 761.
Cros&field y. Such, 758.
Crump y. Crew, 763. " "'
Cuff V. Sproule, 756.
Davis y. Muckle, 768.
Dickie et al v. Elmslio et al, 766.
Dingley y. Robinson, 760.
Duke of Brunswick y. Sleraan, 755.
EoAH y. Cowan, 769.
Elliott 7. Mason. 761.
Evans y. Jackson, 767.
Fellet v. Enston, 759.
Ferrie v. O. W. R. Co., 759.
Fisher v. Sully, 766.
Fountain v. Chamberlin, 758.
Eraser v. Robins, 761.
Qallena y. Cotton, 757.
Gallusi v. Butler, 760.
Geraghty v. Sharkey, 760.
Gibson v. Vasley, 765.
Oilmour v. MoMullan, 764.
Gladstone v. Boucher et al, 758.
Goreby v. Gorehy, 702.
Gowan v. Parrott, 769.
Grace v. Wilmer, 763.
Great W. R. Co., v. Chadwick, 757.
Green v. Hortun, 753.
Greene et al v. Ward, 760.
Gribler v. Buchanan, 757.
Griswood v. B. B. & G. R. Co., 760.
Gregan v. Adair et til, 756.
Grove v. Scovill, 760.
Handley v. Iloldershott, 765.
Harris v. Andrews. 766.
y. Cooiiermouth & Worthington
R. Co., 759.
Hawkins v. Alder, 759.
Hayes y. Lehin, 761.
Hedley y. B. B. & G. R. Co., 760.
'U
1 ■?,
TABLE OF OASES.
Ixi
Ho'Igklniion y. pprnie, 759. ,
Hortou T. Bett, 759.
Hough T. iSdwardi*. 7«0.
Hoaghton ▼. G. W. R. Co., 766.
Hunter t. Gibson, 762.
Huttou T. Whitehouse, 756.
Insul et al ▼. Marghan 767.
Jabvis ▼. Durancl, 768.
Johnson V. Gosoett et al, 766.
Jones V. Grier, 765, 756.
V. MHrshall, 754.
et al T. Bront, 760.
Krbr ▼• Bowie, 766.
V. Wilson, 756,
Kerriok v. Harder, 762.
Lawrknob v. Hogben, 761.
Levi-oempte v. Pe cil, 761.
Lismore v. Bcadel, 756.
Lockwood V, Nash. 760.
Lyiniin et al v. Smith, 766.
Lyne v. Herfield, 758.
Marrns V. Steel et al, 762.
Miison V Muggeri Ige, 760.
May V. Hawkins, 769.
Mellesk t. B B. & G. R. Co., 760.
Mercer V. Bond, 761.
Montague t. Harris^on, 764.
Moore v G. W. R. Co., 768.
V. Roberts et al, 759.
Murgitroyd v. Robinson, 771.
Municipality of Ontario v. Cumber-
land et al, 753
of Sandwich v. Drouillard,
758.
McOallum ▼. Boswell, 761.
McDougall V. Gilchrist, 766.
NoRRis V. Irish Land Co., 761.
Orchard v. Moxey. 755.
0' foole V. Potts, 760, 762.
Oxford W. & W. Co., V. Sundamore,
759.
Palmbr v. The Justice Assurance Co.
765.
Patton V. Prov. Insurance Co., 758.
Pcnnell et al v. Walker, 757.
Perkins Y. National Asiuranoe Co.,
756.
RiKS et al, y. Scottish Life AsBurance
Co., 762.
Richardson v. Daniels, 763.
Rogers et al v. Joltnson, 756.
Ross et al, v. Cooke, 755, 766.
V. Johnstone et al, 762.
Rowe V. Cotton, 768. ' * "^
Russell V. Pellgreene, 767. .\
Yeaxman v. Distin, 758,
A
Scott v. Avery, 758,
Shaver v G, W. R, Co,, 769.
Sidbottom V. Adkins, 769.
Siinmond!4 v, Hughes, 767.
Smith V, McGill, 760,
V, O'Brien, 76=^.
Starratt v Manning. 70f^,
Stephen et al, v. Dennie, 765.
Stewart v, Johnston**, 763.
SN/infen v, Swinfen, 759.
Thompson v, Becke, 755.
-... V. Stiirte, 761.
V, Wtlsh, 701.
Tyerman v. Smith, 758.
Ulhobn v. Chapman, 754.
Vance et al, v. Wrny, 753. I
Wallis V. Hirsch, 727. ;
Wiitt V, George, 758. *
Wells V, Gwoski, 759.
West V. Stoliner, 759. ■-"•
Wheeler et al. In r-, 757.
Wicken et al, v. Steele, 756. '
Wilson V, Story, 7^7,
Wright et ai v. Hale, 756.
M
•A L-
m
fs-i-
m
TABLE
SnOWINQ SECTIONS OP THE ENOLTSH 0. L. P. ACTS,
^16 t 16 Vio. CAP. 70 ; 17 it 18 Vio. CAP. 12C),
NOT EiMBODIED IN THE UPPER CANADA C. L. P. ACTS,
(10 * 20 Vic. cap. 43 20 Vio. cap. 6 ; 20 Vic. cap. 67.)
' ' ENO. 0. L. P. A. 16 * la VIC. CAP. 76.
10. Repeal of part of an Act never in force in U. 0.
24. The same.
108. Trials in Counties Palatine.
104 to 116 inclusive. Juries andJury prooesfl.
120. Delay of execution after trial.
122. Writs to Counties Palatine.
128. Coats of Execution.
127. Charging in execution a person already in prison of the Court.
183. Form of appearance to writ of revivor.
142. Bankruptcy or insolvency of Plaintiff not to abate action.
161. Bail in error.
168. Proceedings in error in fact.
217. Ejectment by landlord against tenant. (Re-enactment of an Act never in
force in U. G.)
225. Rules of Court.
226. E€ect of injunctions to stay proceedings.
227. Interpretation of certain terms.
228 to 234 inclusive. Courts at Lancaster and Durham.
236. Act not to extend to Ireland or Scotland.
ENa. C. L. p. A. 17 & 18 VIC. CAP. 120
1. Trial of questions of fact, by Judge, vrith consent of parties.
2. Trial of two cases, by Judges of the same Court, at the same time.
6. Arbitration on order of Judge, when he tries the facts.
20, 21. Affirmation instead of oath in certain cases.
28 to 31 inclusive. Stamping documents at trial.
86. English Courts of appeal named.
88. Bail in appeal.
40. Rule nisi, how disposed of, when granted in appeal.
41. Judgment of Court of Appeal in such case.
42. Powers of Court of Appeal.
43. Error upon award of trial de novo.
49. Proceedings under an Act never in force in U. C.
64. The same.
69. Rules for summoning Jury.
88. Jurisdiction under an Act (Shipowners) never in force in U. C.
89. Perjury clause.
94. Executions before 24th October, 1852.
95. Sittings for trial of issues of fact.
96 to 107 inclusive. Provisions to facilitate the Judges in carrying this Act,
as distinguished from that of 1852, into effect, and as to the application
of its provisions to particular Courts by Rules, Amendment, &c. (The
Act of U. C. comprehending both the English Acts, no duplicate pro-
visions on these points are requisite.)
31
9 I
;■•?'
n
If ll*
-I'B
'III II
PHI
TABLE
SHOWING SECTIONS OP THR ENGLISH C. L. P. ACTS,
(15 A 16 Vic, oaf. 70; 17 * 18 Vic. oaf lift).
EMBODIED IN THE UPPER CANADA C. L P. ACTS,
(19 * 'iO Vio., CAP. 43; 20 Vio., CAP. 6).
KNQ. 0. L. I'. A. 16 * 10 VIO. CAP. 78.
(Thi> curntipoiKlliig iH<ctli)ni of ihe U. C. Act are Indlrnted.)
KuR. 0. L. K A.
10 A 20
V. c. 43.
aovia.
0. b.
' Bng. 0. L. P. A.
1
19 A «
v. e.4a
76
77
78
79
80
81
82
83
98
99
100
101
102
108
104
1 5
106
107
108
lii9
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
1
1
16
17
18
19
■1
25
26
27
28
29
80
31
82
83
84
85
86
87
88
89
40
41
59
GO
61
62
63
64
65
66
67
68
69
70
71
72
76
1
41
42
2
8
48
4
44
6
45
46
47 :
6
7
8
48
49
9
11
60
12
; 51
18
! 52 .:::::;:::;;:::::::::::
14
153
1 51
1 65
16
16
17
1 60
18
1 67
19
i 68
1 59
20
21
' 60
22
61
23
' 62
25
; (53
26
27
64
65
28
29
66
! 67
30
68
! 69
81
82
70
33
1 71
84
72
85
73
86
74
87
76
88
89
76
77
40
78
aovvh
M
TABLK or SECTIONS.
Ixv
j;.r--^j:-. ■■"■-.- :
Rug. 0. L. P. A.
10*20
V. C.43.
aovio.
0.6.
Eng.O. L.P.A.
io*ao
V.e.43.
30 VU.
0. ft.
7y
128
129
180
181
132
188
184
185
180
187
188
189
140
141
142
143
144
145
146
147
148
149
151
154
165
166
167
186
189
190
191
202
203
204
205
206
207
208
209
210
211
212
213
214
217
218
219
293
294
1
■
20
21
22
23
163
220
221
223
224
225
227
228
229
280
281
282
283
234
235
286
237
288
289
240
241
242
248
211:
2^5
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
24
80
164
26
81
166
26
82
166
6
H3
167
7
34
160
8
86
160
86
161
10
87
102
29
88
103
80
89
164
11
90
105
81
91
166
82
1)2
93
167
108
12
94
169
r -•
95
170
9G
97
171 «
172
08
173
"
99
174
175
100 ;
101
176
102
177
117
178
118
179
f
119
180
181
i-
121
ii
124
182
t ■
12.J
188
126
184
128
186
129
186
130
187
131
188
132
189
134
135
190
191
136
Il92
193
137 ,
138
194
i
139
195
i
140
196
t
141
Il97
143
198
144
Il99
- ,:'
145
146
|200
201
■, '5'
147
202
118
203
204
1
149
■.»■■-
160
i206
152
'206
•
I ' -'''4
■I
01
• :■ J, •
:' 'iir
i
Ixvi
TABLE OF SECXIONB,
Eng. C. L. P. A.
19& 20
V.C.43.
20 Vlo.
C. 5.
Eng. C. L. P. A.
1
19* 20
V.C.13.
207
208
209
261
262
263
264
266
266
267
268
17
216
218
219 ,
209
270
271
272
274
291-
313
314 I
317 ;
210
220
221
222
211
212
218
223
214
216
224
235
:0 Vie
c. 5.
ENG. C. L. P. A. 17 & 18 VIC. CAP. 125.
Eng. O.L.P.A
19 4 20
V.c;43.
20 Vlo.
c. 5.
Eng. C. L. P. A.
19&20
V.C.43.
20 Vio.
c. 5.
3
4
5
84
85
86
87
88
89
90
91
92
93
94
95
96
97
167
158
159
160
161
162
163
164
168
168
169
170
171
174
175
176
177
178
13
14
16
16
27
55
66
57
179
180
181
172
193
194
196
196
197
198
199
200
275
276
277
277
278
279
280
281
282
282
201
288
284
285
286
287
288
289
290
292
1912
210
215
273
7
8
58
60
61
62
9
10
11
12
13
63
64
65
66
14
16
67
16
68
17
69
18
70
19
71 ,
22
23
24
72
73
74
26
75
26
76
27
77
82
78
33
79
84
35
80
81
37
82
39
83
44
84
45
46
85
80
47
48
87
00
60
61
91
92
52
m
53
m
m
•
1
TABLK OF 8E0T1ONH. Ixvii
1?.
TABLE
8U0WING SUCTIONS OF UPl-iiK CANADA C. L. V. A., 1850, (Itf & iW VIC, CUAP. 43,)
KXPRB3SLY REPEALED, AMENDED OR EXTENDED BY THE UPPER CANADA
C. L. P. A.. 1857 (-20 VIC, CHAP. 67).
Aet 1866. ' ' Act 1857.
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THE
COMMON LAW PROCEDURE ACT.
19 Vic— Cap. 48.
An Act to amend, repeal and consolidate the provisions of
certain Acts therein mentioned, and to simplify and
expedite the proceedings in the Courts of Queen's Bench
and Common Fleas in Lpper Canada. [Assented to 19th
June, 1856.] (a)
Whereas it is expedient to simplify and expedite the pro- Pnunbie.
ceedings in the Courts of Queen's Bench and of Common
Pleas for Upper Canada : Her Majesty, by and with the advice
and consent of the Legislative Council and Assembly of Can-
ada, enacts as follows : (h)
n
3
VI
•i
9
il
%
(a) The modern plan, of naming a
Statute, found so convenient in prac-
tice, has been followed in this Act. In
citing the Act it will be sufficient to
use the expression " The Common Law
Procedure Act, 1860," (s. cccxvii.) —
Two hundred and eleven sections of
the three hundred and eighteen sec-
tions which the Act contains have been
made to apply to County Courts. (Co.
C.P.A., s. 2.)
(b) As explained in the Introduc-
tion to this Work, this Act is for the
most part copied from the Imperial Sta-
tutes, 16 & 16 Vic. c. 76, and 17 & 18
Vice. 125. These Statutes were prepar-
ed upon the suggestions of the Common
Law Commissioners appointed by the
Queen, on the 13th May, 1860, «« to
A
inquire into the Process, Practice and
System of Pleading of the Superior
Courts of Law at Westminster, &c."
On 30th June, 1851, their first Report
was made, upon which the Statute 15
& 16 Vic. cap. 76 was framed. On 30th
April, 1863, their second Repori was
made, which lead to the passing of the
Statute 17 & 18 Vic. cap. 125. Both
Reports will be found at length in the*
Introduction. They deserve a care-
ful perusal. Semble — The English
Statute of 1862 is confined to civil
proceedings— (Campbell, C. J., in R.
v. Seale, 24 L. J., Q. B. 221, 30: L.
& Eq. 350.) It has been held to apply
to personal actions commenced in in-
ferior Courts, but removed into the
superior Courts by Certiorari: (Met-
aiter v. Rose, 13 C. B., 162.)
i I
THE COMMON LAW PROCEDURE ACT.
[ss. i.
n.
i'; i<
P
:ii
IP' ^
nwnto?thig ^' ^^® provisions of this Act shall come into operation on the
A«*-' twenty-^ret day of August one thousand eight hundred and
ftfty-six. (c)
.fecUing and And with respect to the sealing and issuing of Writs and to
utmnywr . ^^^ officers of the Courts of Queen's Bench and Common
Pleas in the different Counties or Unions of Counties ; Be it
enacted as follows :
II. There shall he an officer appointed by the Governor of
appoiuted. this Provincc, who shall bo called the Clerk of the Process, (d)
Clerk of pro-
cess to be
UL eSu/. ek li>%zJf
(c) Questions may arise as to the
eflFect of the Act upon proceedings
in actions commenced before the
21st August, 1856. It is plain from
the wording of many sections that the
general scope of the Act is prospective
— not retrospective. But no gen-
eral rule can be laid down for all
cases. Still, the general maxim, "Nova
constitutio futuris formam imponore
debet non prceteritis," (2 Inst. 202)
must not be forgotten. The Act,
though in many respects prospective,
is in others retrospective. In regard
therefore to each particular case as it
may arise, reference must be had to
the section which governs it. The
judges in England in the cases before
them seem to have scrupulously confin-
ed their obt^ervations to the points for
the time before the Court It has been
held that in the case of an appearance
per Stat., entered before 24th Oct.,
1852, when the first English Statote
came into operation, that ss. 27 and
28 of that Act, (ss. Ix. and Ixi. of
ours) did not apply {Ooodliffe v.
Neave, 8 Ex. 134.) So it has been
held that special demurrers, pending
at the time the act came into force,
were not aff'ected by it : (^Pinhorn v.
Souster, 8 Ex. R. 188, 14, L. &Eq. 416.
So of the action of ejectment — ^if com-
menced before the statute came into
force, that the action might still pro-
ceed. {Doey. Smith v. Roe, 8 Ex. 127 ;
16L. &Eq. 504.) It may be held that
defects existing in proceedings before
the Statute came into force cannot
be cured by it. (See T/ie Queen v. Tn-
habitanta of Crownn, 14 Q. B., 221.)
Proceedings were amended under s.222
of the lstC.L.P.A. (s. ccxcli of our act)
though the action in which the amend-
ments were allowed, had been commenc-
ed before the act came into force :
(Comifh V. Hocking, 22 L. J. Q. B. 142.)
The section abolishing the old mode of
proceeding for judgment, as in case of
nonsuit (s. oxlix.of our net) was held to
apply to causes where issue had been
joined, and default made in going to
trial, pursuant to notice before the act
came into operation : {Morgan v. Jones,
8 Ex. 128.) But of these decisions in
their places — notes will bo found under
the different sections. In several sec-
tions special provision is made for
pending proceedings : for instance —
s. kxix. as to renewal of writs of sum-
mons; 8. lix., as to appearances ;
s. oxli., as to rules to compute; s.
cxlix., as to judgment in case of non-
suit; and see farther the repealing
clause, No. cccxviii.
(»/) «« There shall be an Officer ap-
pointed bg, j^e" — There is no qualifica-
tion for this officer prescribed by the
statute, and therefore any one who is
not disqualified by common law, maybe
appointed by the Governor of this Pro-
vince. The disqualifications at com-
mon law, are want of skill, or holding
some other office incompatible there-
with, &o. (As to which hereafter.) —
This office is, strictly speaking, one
of ''new creation." Before the year
1853, process in the Courts of Queen's
s. m.J
CLERK OF PROCESS.
8
III. The Clerk of the Process shall be deemed an officer of ^o^^^an
both of the said Superior Courts of Common Law, and ^^ ^^^y? av ^
shall keep his office in Osgoode Hall, and shall have a Teaaon-cA/p^£,j,^ if 5i ^i-
able allowance for printing, procuring and transmitting blank
Bench and Common Pleas were is-
sued by the respective Clerks of
these Courts. Then Statute 16 Vic,
cap. 176, was passed. It recited that
« it is desirable that the offices for is-
suing writs of summons and capias and
other writs of mesne or first process in
the Courts of Queen's Bench and Com-
mon Pleas, in Upper Canada, in the
County of Yort be united." It enac-
ted that the Clerks of the two Courts
should, from time to time, " select one
of their Clerks, whose duty it shall b«
to issue all Writs of Summons, &c."
The officer contemplated by the
section under consideration has differ-
ent duties to perform, and is differ-
ently appointed. His duties are
described in sections iv. and v. His
appointment now rests with the Exe-
cutive.
As the office is one of new crea-
tion, it may not be out of place to
state a few of the leading principles
applicable thereto, as a public office.
The Queen is the universal dispenser of
justice within her dominions. From
her all offices are said to be derived.
And yet she caanot create any new
office not warranted by ancient usage,
or written laws. (Bao. Abr. " Offices
and Officers B.") Within this Pro-
vince there is no such tiling as ancient
usage or immemoi'ial custom. The
body of written law or the common law
of England before 1792, must be the
guide. The Sovereign cannot of her-
self create any office inconsistent with
these, or prejudicial to the subject.
Hence the necessity for the express
declaration by Act of Parliament that
the Clerk of Process shall be appointed
by the representative of the Sovereign.
It is said that at common law all Offi-
cers of Justice had estates in their re-
spective offices during life, and could
not be removed but for misdemeanors.
But of late it is a settled practice for
the Crown to grant offices « during
pleasure" only, unless there be in the
Act creating the office, an express pro-
vision for a different tenure. Judges
of the Superior Courts in Upper Can-
ada hold office "daring good beha-
vior ;" but there is a statutory pro-
vision to that effect. The Clerk of
Process is, therefore, it seems, only
entitled to hold office during plea-
sure. Though the appointment is in
the gift of the Executive, the
Courts would not be bound to receive
tiie individual appointed if he should
be unfit for the office (/&. I.) It is re-
corded that where the office of Clerk
of the Crown was granted by the mon-
arch, to a person named Vintner, who
exhibited bis patent ; but who was
totally unsuited f<»r the office, the
Justices of the Kings Bench refused
to receive him. Afterwards they re-
commended a fit person, whom the
Monarch ore ttnva commanded to be
admitted, and was sworn. (Jh.) If an
office of learning be given to a man
utterly unfit, the grant is void. (Hob.
148).
It is an ancient rule of the Common
Law that no one person shall hold two
incompatible offices : Nemo duohit
utatur offieiia — (Co. Lit 3 a.) Of-
fices are said to be incompatible
and inconsistent, so as to be executed
by the same person, whep from the
multiplicity of business in them, they
cannot be executed with care and
ability, or where interfering with each
other a presumption is raised, that
they cannot be executed with impar-
tiality and honesty. Bac.Abr. " Offices
and Officers. K." By common law no
judicial officer can appoint a Deputy
(4th Inst. 88, 1 Salk. 86?,) but most
ministerial officers can do so unless
the office be of such a nature that it
must be presumed that the party
granting it trusted the grantee and
H \
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VA\
Iliif"
na
rill I.
4
THE COMMON LAW PROCEDURE ACT.
[S.
IV.
forms of all Writs and Process, (e) and for necessary books and
^"J^i^J'i^j^ stationery, and shall be subject to such rules for his guidance,
made. as shall be, from time to time, made according to and under
the powers for making rules hereinafter set forth. (/)
To seal the IV". The Clerk of thp Process shall have a seal for sealing
of both "' Writs in each of the said Courts, to be approved by the Chief
c.<>n. sijpJ a^ui'dt^ jxiBiiae of each Court respectively, (g) and he shall seal there-
at /^ § 56
him alone. (9 Rep. 49. Bro. Abr, Pa-
tents, pi. 66.) It has been held that
the office of Clerl: of Papers in the
King's Bench Prison, cannot be exer-
cised by deputy. Bac. Abr., "Offices
and Officers. K." The Clerk of Pro-
cess must perform his duties in person.
If an officer act contrary to the
nature and duties of his office, or if he
refuse to act at all, he forfeits his
office. (/6. M.) Every officer, •whether
such by common law or pursuant to
statute, is punishable for corrupt and
oppressive proceedings. He will be
punished according to the nature and
heinousness of the offence, either by
indictment, attachment, or action, at
the suit of the party injured. (lb. N.)
All Courts of Record have a discretion-
ary power over their own officers, and
are bound to see that no abuses are
committed by them, that may bring
disgrace on the Courts themselves.
{lb.) Extortion is punishable by fine
and imprisonment, and also by a re-
moval from the office, in the execution
of which it was committed. (lb. ) Ex-
tortion may ^be defined to be the tak-
ing money by an officer, by color of
his office, either where none at all is
due, or not so much as taken, or
where it is not yet due. (lb.) A pro-
mise to pay an officer a reward for
the doing of a thing for which the law
will not suffer him to take anything,
is void. This, too, however freely and
voluntarily it may have been made.
(lb.) Bribery is punishable by fine and
imprisonment, and forfeiture of office.
Such a crime may be defined to be the
receiving of an undue reward by any
person whomsoever, whose ordinary
profession or business relates to the
administration of justice, in order to
incline him to do a thing contrary to t'-.c
known rules of integrity and honesty.
(lb.) The giving or taking a reward
for an office of a public nature, is said
to be bribery, (lb. F.)
(e) The Clerk of Process, though
appointed by th6 Executive will be
subject to the control of the Judges.
As an officer appointed by Govern-
ment, he will be responsible to Gov-
ernment for the proper discharge of
his duties. But like other officers of
a Court of Justice, he will also be re-
sponsible to the Courts, and be liable
to be dealt with for improper conduct.
(See preceding note). For his guid-
ance in the performance of his du-
ties, he must look to the Courts. As
an officer of both Courts, he must obey
all regulations of the Courts not incon-
sistent with the provisions of this sta-
tute jK The allowance for printing, &c.,
though not so expressed, it is evi-
dently intended shall be paid by Gov-
ernment. Since all fees must be funded
by the officer, (s. v.) and he be paid by
salary, the moneys to be received by
him must be held to be public moneys.
His appointment would appear to be '<a
situation of public trust," and he "con-
cerned in the collection, receipt, - dis-
bursement, or expenditure of public
moneys. " Thi s being the case, it may
be held that he will be bound to give
security to the Crown, under statute
4 & 5 Vic, cap. 91, s. IWk.
(/) 8. cccxiii. J^-
(g) At common law a Court of Re-
cord has the power of ap'pointing a seal
as a necessary incident to give effect
to the authority delegated to it. The
principle as to corporate seals applies
\r
I-"-!'
s. iv.]
CLERK OF PROCESS.
(i
with and sign all Writs and Process whatsoever which are to
be issued from such Courts respectively; he shall keep each Ana «ipp^
Deputy Clerk of the Crown and Pleas supplied with all Writs 5*p^
and Process so signed and sealed in blank to be by them filled % i^- ' '"
up and issued ; and he shall in like manner keep the Clerks of
the Crown and Pleas supplied with all Writs and Process other
than those which he is required to issue; and the Clerk of the To isiue
Process shall issue to the partita or their J corneys all Writs parties and
of Summons and Capias and alias and pluries Writs of Sum- n©ys.
mons and Capias, and Writs of Capias in actions already com- ^^z ■> 9 ^«. A"
menced and concurrent Writs, and shall renew such Writs as
hereinafter authorized, which shall be required to be issued
from the principal office at Toronto ; And it shall be his duty
and the duty of each Deputy Clerk of the Crown, to issue ]^e ait^ '"
Writs for the commencement of actions alternately one from ^^'coiurt.™
each Court and not otherwise, provided that this shall not be
understood in any way to a£fect the issue of concurrent
Writs. (A)
to Courts. (See 1 Bl.Com.475 Bac.Abr.
"Corporations. D.") The eflFect of this
section would appear to be that each
Court may order a seal which must be
approved of by the Chief Justice of
such Court.
(A) The duties of the Clerk of Pro-
cess under this section are of a two-fold
character: —
First — To seal and sign "all writs and
process whatsoever " to be issued from
either of the Courts, and to supply
them in blank to the Clerks of the
Crown and Pleas and their Deputies.
Second — To issue all writs of Summons
rtnd Capias and alias and pluries writs
of Summons and Capias, &c., which
may be required to be issued from the
principal office at Toronto. Upon re-
ference to the repealed s. 1 of etat.
16 Vic, cap. 176, it will be found that
the duties last mentioned nearly cor-
respond with those enacted bj the
repealed provision. But as it was
then thought that the Clerk's time
would not be fully occupied he was
bound to act in the dischar^ge of such
other duties in connection with the
common law Courts as " either of the
superior Clerks should require." The
latter requirement has been omitted
in the section under consideration. In
lieu thereof the duties of the Clerk are
much increased and his authority ex-
tended. The present act is a decided
improvement upon the old law. The
system of issuing writs in dozens for
each Court was first authorised by s.
2 of Stat. 16 Vic, cap. 175. The recit-
al to that section explained the reason
of the system. It recited that much
public inconvenience arose from the
unequal distribution of the business
between the two superior Courts of
Common Law, they having a common
jurisdiction, (12 Vic, cap. 63, s. 8,)
whereby one Court was often insuffi-
ciently employed, while the other was
imduly pressed, to the great delay and
injury of suitors, and detriment of jus-
tice. With a view to equalize the busi-
ness of said Courts, it was enacted that
first process should be issued in rota-
tion by twelves. The alternate issue
of writs, "one from each Court," ad-
opted by s. iv., is much preferable
'%
■ j»"5 ^-
II
# THE COMMON LAW PROCEDURE ACT. [s. T
To make V. The Clerk of the Process shall make quarterly returns,
quarterly re- . , * t? /
turns to verified by his affidavits, to the Inspector General, of all Writa
GereraL and Process issucd by him in suits brought at Toronto or sup-
plied by him in order to be issued, to the Clerks or Deputy
cieiki and Clcrks of the Crown ; and such Clerks or Deputy Clerks shall
toJ^untM^'OOount for and pay over all fees receivable by them on such
at present, ^y^^ts and Proccss, as they are now bound by law to do in
^LXi '©spect to other fees received by them; {%) And the Clerk of
'^S/'tA the Process shall receive the fees on Writs and Process issued
to "rotation by twelves." Increased
facilities are afforded to such suitors
as may desire to make a choice of
Courts, and yet the business of the two
Courts as regards the number of writs
issued is not in consequence made
unequal. An exception to this rule in
favor of writs of capias issued during
the pendency of a cause is created by
8. xlii.
Semble — a writ is irregular if not seal-
ed : (Smith v. Russell, 1 U. C. Cham.,
B. 193.) Under the old practice a
writ was held to be sufficiently signed
when signed by the Deputy who issued
it, though not signed by the Clerk of
the Grown {lb.) The Clerk of Process
must, under s. iv, teal and sign all
process whatsoever.
(t) By 12 Vic, cap. 63, it is
enacted '* that the said Clerks of the
Grown and Pleas, in each of the said
Courts, respectively, shall, on the four
quarterly days hereinbefore mention-
ed, (1st Jan., Ist April, IstJulyandlst
October ; see s. 5. of same Act) make
np and render to the Inspector General
of Public Accounts of this Province,
a true account in writing of all the
fees, dues, emoluments, perquisites and
profits received by, or on account of
the said officers, respectively, in such
form and with such particulars as the
said Inspector General shall, from time
to time, require ; which said accounts
shall be signed by the officer rendering
the same, and shall be declared before
one of the Judges of the Court to which
he belongs ; and such officers, respec-
tively, shall, within ten days after the
rendering of such account, pay over
the amount of all such fees, dues, emol-
uments, perquisites, and profits to the
Receiver General of this Province ; and
if default shall be made in such pay-
ment, the amount due by the officer
making such default, shall be deemed
a specialty debt to H«r Majesty."
(s. 16.) And " that the several Clerks
of the County Courts in Upper Can-
ada, shall be ex-offleio Deputy Clerks
of the Crown and Pleas in the said
Courts of Queen's Bench and Common
Pleas." Provided, &c., (a saving in
favor of existing incumbents.) (s.
11.) And by s. 16 of the same
statute " that the Clerks of the Goimty
Courts in Upper Canada, acting as the
Deputies of the Clerks of the Crown
and Pleas in the said several Courts
of Queen's Bench and Common P'
shall make up and render to the in-
spector General of this Province, the
like accounts, tn like manner, and at
the same periods hereinbefore appointed
for the said Clerks of the Crown and
Pleas, respectively." (See commence-
ment of this note.) " Which said ac-
counts shall be signed by the officer
rendering the same, and shall be de-
clared befoi e the Judge of the County
Court to which he belongs ; and every
such officer shall, within ten days after
the rendering such account, pay over
the amount of all fees, dues, emolu-
ments, perquisites, and profits received
by him as such Deputy Clerk of the
Crown, to the Receiver General of this
Province ; and if default shall be made
in such payment, the amount due by
the officer making such default, shall
be deemed a specialty debt to Her
Majesty."
S8.vi.vii.] VENUE. ^ T ,
«.. ^-^^'
by him as aforesaid at Toronto, and shall in like manner, C'"'"!J"'*'«>^
' ceM to pajr
account for and pay over such fees to form part of the Conso- "\'"' '*• re-
'^ '' .a cclTud by t
lidated Revenue Fund of the Province. - iiim. | ^ ^/
VI. In oases in v^hioh the cause of action shall be transitory, p^^ ^ ^^^^
the Plaintiff may sue out the Writ for the commencement of*""" taking ^««.iW«./)V'
out writi ill
the action from the office of the Clerk of the Crown and Pleas tranMtory
of either of the said Courts, or from the office of any of the e^STAf i^] ^^''■^'
Deputy Clerks of the Crown and Pleas. U) ^'^ ^^ % ^y.
VII. When the venue is local, the Writ for the commence- when <be
ment of the action must be sued out from the office within the local. ^ ^ ^
proper County. (Z'j c4 2 2 g g
¥•
(J) Actions ore : —
Transitory, ■where the cause of ac-
tion might be supposed to hare ac-
crued or happened anywhere, such as
debt, contracts detinue, slander, as-
sault, false-imprisonment; and usu-
ally, all matters relating to the person
or personal property, even though all
the facts arose abroad. As a general
rule actions may be considered transi-
tory when the idea of locality does not
necessarily attach to the cause of ac-
tion.
Local, where the cause of action
could have accrued or happened in
one County only. Thus, if the action
be trespass for breaking the plaintiflf's
clo!<e, the action must be commenced,
and the venue laid where the close in
situated. Such trespass could not have
happened anywhere else. (See Smith
on Action 78, Steph. PI. 288, Chit. PI.
I. 280.) Generally it may be stated
that actions may be considered local
when the cause of action could by pos-
sibility and in its nature have refer-
ence to a particular locality only.
It should be i^oticed that some ac-
tions are made local by statute. For
example, actions brought against per-
sons for something done by them in
the performance of a public duty, or
when noting under the express pro-
visions of certain Acts of Parliament.
Xhe statute for the protection of Jus-
tices of tl^® Peace, (16 Vic, cap. 180)
may be referred to as an instance.
Section enacts that in actions brought
against a Justice of the Peace, for any
thing done by him in the execution of
his office, " the venue shall be laid in
the County where the act complained of
was committed. &c." An arrest by a
Justice of the Peace, if illegal, may,
under this section, be deemed a local
cause of action ; whereas if the same
act were committed by a private indi- * •
vidual, the venue would be transitory.
No action should be commenced against
any person who could reasonably sup-
pose that he was acting under the au-
thority of an Act of Parliament, until
it has been ascertained by reference to
the act, whether any and what provi-
sion is made with respect to venue.-hA^ta u.dUx^i*^^
{k) The Testatum Writs Act, 8 Vic. A- ^^^
cap. 86, has been repealed (s. cccxviii.)
Though repealed, the principles of
it are retained by this statute. The
section under consideration is an ex-
tension of the principles of the Tes-
tatum Writs Act. In all cases where
the venue is local "the writ for the
commencement of the action must be
sued out from the office within the
proper county." Beyond all question
actions of ejectment nre embraced
within this enactment — if any doubt
could be entertained upon the con-
struction of this section, a reference to
B. ccxxi. will remove it. With res-
pect to the action of ejectment it is
% ■
L
i .
;
t ' THE COMMON LAW PROCEDURE ACT. [8. vui.
^nT.'^^ th^Tenuo'bo VIII. Tho venuo in any action may bo chanf^ed according
^ '^Cj ^ - haniwd.
A:.4
there provided that the writ " shall be
issued out of the office in the County
or Union of '^ounties whorein the Innds
mentioned in such writ lie." The Tes-
tatum Writ s Act, s. 0, enacted "that all
writs against lands shall be issued out
in the office of the Clerk of the Crown
at Toronto." The last Ejectment Act
(14 & 1 5 Vic. c. 114) allowed an election
to be made between the principal office
at Toronto and the office of the Deputy
of the County in which the land
was situate. In practice it waa op-
tional to issue from either. Now it is
imperative to issue from the office of
the County in which the lands are sit-
uate. It ia apprehended that hence-
forward there will be no election in any
local action ; but that the proceedings
must be necessarily commenced, and
conducted in the office 'of the County
where the cause of action accrued.
In an action on a recognizance the
venue should be laid in the County
in which the recognizance remains
of record : {McFarlane v. Allen, 4 U.
C. C. P. 438 ; f^mith v. Rmaell, 8 U.
C. Il.,387.) As to venue made local
by Statute, see conclusion of note
(y) to s. vi. In local actions lay-
ing the venue in the wrong county
has been held to be a ground of non-
suit: (Bot/es et al v. Uewetson, 7
C. & P. 127; 1 Saund. 241 n.)—
But with reference to our new prac-
tice, it should be noticed that in
•^ome local actions, (ejectment for ex-
ample,) if the writ be issued from any
county •' other tlian the proper coun-
ty," the error will appear on the
face of tho writ itself. It is appre-
liendcd that in such a case the writ
would be irregular, if not void, and
might at once be taken advantage of,
upon motion. In other local actions,
(trespass for example,) the error might
not appear till d claration or other
proceeding subsequent to the writ.
The error when made known to the
opposite party raight in this case too,
it is apprehended, he moved against.
In some actions, local by statute, (ac-
tions against magistrates for example)
the er^or might not disclose itself un-
til the trial. A nouHuit in this case it
is apprehended, would not ho impro-
fier. The effect of laying the venue
n a wrong County in local actions,
uurler tho new practice, has ndt yet
been judicially decided. There is no
enactment in either of tho English
Common Law Procedure Acts similar to
our s. vii. In the case of a local notion
brought in a wrong County, it was held
under the old practice that a judge in
Chambers had no power to amend the
proceedings. ( Vauyhan v. llubb» et al,
1 U. C. Cham. Rep., 70 : Mncaulay, J.
But see Wardetal v. Sexmith, 1 U.C. Pr.
C. Rep., 882, nnd further, see s. cccix,
as to the practice under this act.) A
summons was sued out before the
separation of Ontario from York and
Peel,' directing the defendant to appear
in the office of the three United Coun-
ties. It was not served until after the
separation. The venue in the declara-
tion was laid in the three United Coun-
ties. Demurrer. Held not to be frivo-
lous. (Plaxton v. Smith et al, 1 U. C.
Prac. Rep. 228.) Under the old prac-
tice besides being a ground of non-
suit, it has been said that (Jfcfcndant
might demur or otherwise specially
plead to the error: (Tremeere v. Morri-
son, 4 M. & Scott, 609 ; Richards v.
Easto, 16 M. & W., 214.) It is now
probable that amendments, whenever
practicable, would bo allowed under
s. ccxci.
Unnecessary delay and expense
may sometimes be occasioned by the
trial of a local action in the county
where the cause of action arose.
To remedy this stat. 7 Wm. IV. cap.
3. 8. 14, has been passed. It en-
acts "that in any notion depending in
the Court of King's Bench (or Common
Pleas, see 12 Vic, cap. 63, s. 8,) the
venue in which is by law local, the
the Cuurt or anyjud^^e thereof may,
on application of either party, order
the issue to bo tried or damages to be
assessed in any other district than that
in which the venuo is laid, and for
that purpose tho said Court or a Judge
>« :>.
■\
8. viii.] OnANOTNO THE VENUE.
to the practice now in force, (/) but notwithstanding a change
of the venue, the proceedings shall continue to be carried on
thereof, may otilcr a suggeHtion to be
entered on the record, tliat the trial
may be more conveniently had or dam-
ages aHHessed in the district where
the same is ordered to talce place. This
practice is one that has for a lon(r time
prevailed in criminal cases. (See Arch.
Crown Office, <5(».) The form of sug-
gestion may be the same mutatit mutan-
di», as thnt followed in criminal cases.
(See The King v. Hunt, 8 B. & A., 444.)
{I) Venue may bd changed ••accord-
ing to ihepraetiee now in force." The
•• practice now in force " is made up
of decisions as well as rules of Court,
&o. And it may be considered that
decisions heretofore given, and not
doubted or overruled, will, to a certain
extent, have statutory effect. T}«e
practice as to changing venue may be
noticed under the fitllowing heads :
1 . For a Review of the Practice — See
Attorney General v. Churchill, 8 M. &
W. 171. Formn—Ch\t. F., 6 Edn., p.
559, et seq.; 7 Edn., p. im.m-
2. Time for Application — Application
may be made by defendant at any time
after declaration and before plea, on
common affidavit. (Chit. Arch., 8 Edn.
1167; Bag. Cham., P. 250.) At all
events should be made before issue
joined. {De Rothschild v. Shilston, 8 Ex.
508.) If (//Vcr issue joined, special affi-
davit necessary. (See Yotide v. Youde,
4 Dowl. P. C. 32; ITodge v. Church-
ward, 6 C. B. 495 ; White v. Neeld, 80
L. & Eq. 504.) f
3. Change hg Defendant on Common
Affidavit — Actions and causes of action
are either transitory or local, (ss.vi.vii.)
In the former, plaintiflF may lay his
venue in whatever County he pleases.
In the latter, he must lay it in the •'pro-
per County." (Chit. Arch. 8 Edn. 1164';
Bag. Cham., P. 248; Bag. Prac. 319.)
Plaintiff's right in transitory actions
to lay his venue wherever he chooses,
is subject to that of the defendant to
change it upon the "common affida-
vit." (Chit. Arch., 8 Edn. 1164; also
Dc Rothschild V. ShiUlon, 8 Ex. 608 ;
Chilee V. Bradley, 18 C. B. 604 ; Degy
T. Forbet, lb. 014 : Ramsden v. Skipp,
18 C. B. 601, e contra.) The common
affidavit alleges " that the cause oi .,c-
tion, if any wholly arose" in the County
to which defendant desires a change.
To this rule there are some exceptions.
(See Chit. Arch. 8Edn.ll64.) When de-
fendant is under terms to plead •• on
the usual terms," or to take '• short
notice of trial, if necessary," venue
will not be changed on common affida-
vit. (Brettarghy. Dearden, McL. &Y.
106; Chilee v. BrdHJei/, 13 C. B. 604.)
In our Courts the following authorities
are to be found ; R. & H. Digest, tit.
••Venue." Venue not changed at in-
stance of defendant, in an action on a
bond where application made on the
common affidavit. (Losaing v. Horned,
Tay. U. C. R. 103.) Not changed where
Sheriff was defendant, and applied be-
cause he could not attend trial. {Brock
v. McLean, Tay. U. C. R. 812.) Not
changed on common affidavit, in an
actioL against carriers. (Ham v. Mc-
Pherson et al, M. T., 5 Vic. ; MS. R.
&H. Dig., ••Venue" 8.>ff
4. Change by Defendant on i>pecial
grounds — Chit. Arch. 8 En. 1170;
Bag. Prac, 320; Bag. Cham., P. 251.
Not changed from A. to B. on ap-
plication of defendants who were
more numerous than plaintiffs, and
intended to be witnesses upon their
own behalf. [Rose v. Cook et al, 2
U. C. Cham. Report 204.) It is no
ground for changing, that a person re-
quired as a witness at one Assize, will
be an associate at another, and that
from the distance he cannot attend both.
(Smith V. Jackson, M. T., 1 Vic. ; MS.
R. &H. Dig., " oases omitted," Venue.d
5. Change how affected — (See Chit.
Arch., 8 Edn. 1167.) Venue not chang-
ed by Judge's order and service nlone.
It must be in fact altered. (McNairy.
Shelden, Tay. U. C. R. 698 ; Hornby v.
Hornby, 3 U. C. R. 274.) (|A
« '. '■ " "
00 K M /. "
m
to
ill I x
THE COMMON LAW PROCEDURE ACT.
[i. iz.
Pmeoudlnitl
to Iw (-arrled
on
in the ofHco from which tho first process in the action was
sued out. (m) • . ; , 7
IX. All proceedings to final judgment shall bo carried on in
I In omc« the office from which tho first process in the action wos sued
iMUM, Aa. out, (n) and the service of all parsrs and proceedings subse-
(wp«n, Ac. quent to tho Writ, (0) shall be made upon thu Defendant or
(App. oa. c.) his Attorney, (/)) according to tho practice now in force, unless
special provision is otherwise made in this Act, and if the At-
6. Riffht of Plaintiff to bring back
Venue — This plaintiff maj do on un-
dertaking to give "material evidence."
(Chit. Aroh., 8 Edn. 1108.) As to what
is material evidence — see Linleff t.
Bates, 2 C. St J. 659 ; Collin v. Jenkint,
4 B. N. C. 225; Oreenway v. Titeh-
marsh, 7 M. & W. 221 ; Qilliny y. Dw
{/an, 1 C. U. 8 ; Jones v. Smith, 2 Ex.
461 ; JIall v. Story, 16 M. & W. 63 ;
Clark V. Duns/ord, 2 C. B. 724 ; Lee
v. Simpson, 3 C. B. 871 ; Purratt v.
Benassit, lb. 884 n.
7. Change of Venue on application of
Plaintiff^A. bpeoial affidavit is neoes- 1
sary. Plaintiff's application should be
properly an application to amend his
declaration. (Chit. Arch., 8 Edn. 1172 ;
Bag. Prao. 322 ; Crawford v. Ritchie,
Tay. U. C. R. 104; Doe Crooks y. Cum-
ming, 3 U. C. R. 65 ; Ward et at, ▼.
Sexsmith, 1 U. G. Prao. R. 382 ; but see
Vaughan v. Hubb el al, 1 U. C. Ch. R.)
After issue joined, the Court will not
amend an application of plaintiff, un-
less very special grounds be shown for
it. (Crooks v. House, 8 O.S. 308 ; Smith
V. CoUon, 1 U. C. R. 397. ))ir Affidavit,
by whom to be made, in such oases :
{Williams v. Higgs, 6 M. & W., 133.)
If plaintiff is entitled to amend as a
matter of right. Court will not impose
terms : (Turnley v. The London and
N. W. Railway Company, 32 L. & Eq.
377.)
4. 8. Present Practice in England —
When defendant is entitled to change
venue on the common affidavit accord-
ing to the old English practice which
we still retain, the order was absolute
in the first instance. lu England the
practice has been lately altered. By
♦ •■«» o.d.iU'^d.a. L fft
T '• •• "
rule 18 of H. T., 1868, it is ordered
" that no venue shall be changed with-
out a special order of the Court or a
Judge, unless by oonsent of parties.
The meaning is, that no venue shall
be changed by a common order issued
as of course : (Per Martin, B., in Begy
V. Forbes et al, 26 L. & Eq., 809.)
No such rule prevails in Canada.
(m) Section 2, of the repealed Tes-
tatum Act, provided " That the Court
of Queen's Bench, or any .Tudge there-
of in Chambers, on making an order
to change the venue in any suit, might
order the papers in such suit to be
transmitted to and filed in the office
of the Clerk of the Crown at Toronto."
(n) The Court, under the old prac-
tise, set aside judgments entered upon
cognovits by Deputy Clerks of tho
Crown, no previous proceedings hav-
ing been bad in their offices : (Com-
mercial Bank et al v. Brondgeest et al
6 U. C. R. 325, Laverty v. Patterson,
lb. 641. But see s. z. ff-
(0) Service of writ in ordinary ac-
tions, see ss. xzxi., xxxii., xxxiii.,
xxxiv. In Ejectment, see s. ocxxiii.
(p) See Houghton et al v. Hudson,
1 U. C. Prao. R. 160. Burns J. speak-
ing of the provisions of the Testatum
Writ, Act 8 Vic, cap. 86, s. 2, (now
repealed,) is reported at page 169, as
follows: — "The provision of the sta-
tute is only for the service of papers
upon the defendant or his Attorney.
It would seem not to apply to service
upon the Plaintiff's Attorney, * * *
and it may be said in such cases that
the defendant must serve his papers
upon the Plaintiff's Attorney, wherever
he may reside." Such is precisely the
g. ix.]
SERVICt: OF PAPF.R8.
It
tornoy of either party do not reside or have not a duly nuth<
orined agent {q) residing in the County wherein such action
wus comuiencod, then Borvice may be made upon the Attorney
wherever he resides, or upon his duly authorized agent in
Toronto, (r) or if such Attorney have no duly authorized agent ^
there, then service may be made by leaving a copy of the papers
for him (s) in the office where the action was commenced. fr>g ..
marked on the outside as copies left for such Attorney. (0
enactment of the Legislature in the
tjubseqacnt part of this section, as
applied to oitlier party, whose Attor-
ney does not reside, or has not a duly
authorised agent within the County
in which the action was commenced.
(9) This contemplates, as applied
to our counties, the appointment of a
special agent by the Defendant's At-
torney. The agency at Toronto may bo
looked upon as a general agency, but
the agency in outer counties is con-
fined to actions commenced in the sev-
eral counties in which the agents may
be appointed. There is no rule mak-
ing it imperative for a practitioner to
appoint agents for the general transac-
tion of agency business in the outer
counties of Upper Canada. But as
regards the appointment of an agent
in Toronto, the rules in force are very
decided, (n. r post). The old rule
of M. T., 4 Geo. IV., (Dra. Rules 2,)
admitted the appointment of an agent
in outer counties, but such were con-
sidered special agents. (See remarks
of Burns J. at the conclusion of his
judgment in Uoughton et al v. Hud-
aotu)
* (r) " Eyery Attorney not resident in
the Home District, shall enter, in al-
phabetical order, in a book to be kept
for that purpose by the Clerk of the
Crown, his name and place of abode,
and also, in an opposite column, the
name of some practising Attorney in
the City of Toronto, as his agent, who
may be served with notices, summonses
and all other papers not required to be
personal; and if any Attorney shall
neglect so to enter his name, with that
of his agent, as before mentioned, fix-
ing up the notice, summons, or other
paper, in the Crown Office, shall bo
deemed good service." Rule M. T. 4,
Geo. IV. (Dra. Rules 8.)
And " it is ordered that every Attor-
ney residing in the Home District, and
not having lan office in the City of To-
ronto or the liberties thereof, shall have
a booked agent in the said city conform-
ably to the rule of this Court of M. T.
4, Geo. IV., upon whom papers may
bo served, as is provided in that rule
with respect to Attornies not resident
in the Home District, and subject to
the same consequences, in case of the
neglecting to enter the name of him-
self and his agent in the Crown Office,
as directed by the said rule." — Rule
H. T., 10 Vic, (Dra. Rules.)
The Rule M. T., 4 Geo. iv., (Dra.
Rules 2,) regulating the service of
papers in a caubo on an attorney re-
siding out of the District in which ac-
tibn was brought, was held to apply
equally to all Districts, (including the
Home District,) and to Attornies, for
both parties in the cause. {Clemow v.
H. M. Ordnance, 6 U. C. R. 468.)
(«) As the papers may be left j^r
Mm, it is presumed that be (the Attor-
ney) upon demand, would be entitled
to receive them at the bands of the
Clerk. This feature is new in our
practice. The old practice was to put
up the papers in the Crown Office,
whence they were seldom if ever taken.
{() Service of declaration on defend-
ant after he appeared, by attorney,
was held to be irregular. {Ryan et al
y. Leonard, 8 0. S. 807.) It is ir-
regular to serve papers by delivering
them to a clerk, at a distance from the
*
4
i> <u
tLM.d^'^—^^ /I. '^ /<t
12
THE COMMON LAW PROCEDURE ACT.
[S.
As to juig-
mentM on
X. Final judgment may be entered upon a cognovit actionem.
>i ^'lsT^^'"''% ^"^ Warrant of Attorney to confess judgment, which shall have
at^^Li. '^ iws^- been given or executed, in the first instance and before the su-
ing out of any process in any of the said offices, (u) or* at the
i 111
1
a :
& l'1
Attorney's residence or place of busi-
ness. {Tiffany y. liullen, 5 0. S 137.)
Service of a notice on Good Griday, is
good service. (Clarke v. Fuller, 2 U.
C. R. 99.) Declaration served on an
Attorney who had not appeared ir-
regular. {Dobie V. McFarlane, 2 0. S.
285.) In this case the Attorney when
served did not deny that he was acting
for defendant, and the Court in con-
sequence, though they set aside the
proceedings without costs, intimated
that upon a proper appiifcation they
would make the Attorney pay them.
(/6.) Service of a notice of assessment
on an Attorney who had been in the
habit of accepting service for defend-
ant, good: [Rutledgew. Thompson, 1 U.C
Pra. Rep. 275.) Declaration cannot be
regularly delivered before appearance
{Ballard v. Wright, 2 0. S. 218;
but see ss. lix., Ix, andlxi. of this act.)
Where declaration was served before it
was filed, defendant, who allowed in-
terlocutory judgment to be signed and
notice of assessment given, was held
to be too late to object. {^Proctor v.
Young, H.T., 4 Vic. MS. R. & H. Digest
"Irregularity" 15.) Service of a notice
assessment by throwing it over defend-
ant's fence to defendant's son, who
refused to have anything to do with it,
irregular. {McGuin v. Benjamin, 1
U. C. Cham. R. 142.) If one of two
defendants appear by Attorney, it is
irregular to serve papers for both on
that Attorney. {Huffy. McLean et al,
6 0. S. 69.) Notice of action— proof of
service by Bailiff. (Gardener v. Bur-
we.ll, Tay. U. C. R. 64 ; Brynes v.
Wild et al, 7 U. C. R. 104.) Notice of
trial — time of service, (see s. cxlvi.)
Summons for attachment on Sheriff —
proof of service. {Hilton v. Macdonell
et al, 1 U. C. Cham. R. 207.) Contra-
dictory Affidavits. (Harper y. Brdinton,
1 U. C. Prac. R. 267.) Services of all
rules, orders, and notices must be made
before nine o'clock at nightWRule II.
T., 13 Vic, No. 47 (Dm. Rul. ' '8.) See
further as to Service of Notices — (Chit.
Arch. 8 Ed., 308, 741 ;" Bag. Prac. 111.)
Service of Rules — (Chit. Arch. 1415;
Bag. Prac. 281.) Service of Summons
or Order— (Chit. Arch. 1433; Bag.
Prac. 291.)
(«) " In any of the said Offices, ,j-c."
** Any" must relate either to one of
the Principal Offices at Toronto, or to
any of the offices in outer Counties ;
*' Unless some particular office * * *
be expressly stated, ^-c." It seems
cleai that this statement, if made,
must be in the body of the- document.
The intituling of a cognovit would only
indicate one of two Courts^ and not
one of several offices. Warrants are
no ; intituled in any Court.
A cognovit is a confession by the de-
fendant, of the plaintiflf's cause of ac-
tion to be just and true, whereby judg-
ment Is entered against him without
trial: (Smith on Act'on 21, note a.)
A Warran t of Attorney is an author-
ity given by the debtor to an attorney
named by the creditor, empowering
him to confess judgment: (lb. note 6.)
In Upper Canr_!a cognovits are
much more in general use than war-
rants of pt'orney. And here the prac-
tice with resj,''ct to cognovits has
always varied from that of England.
In England the cognovit differs from
the warrant of attorney in that the
action must be commenced by the issue
of a writ before a cognovit can be taken
which in the case of a warrant of at-
torney is unnecessary. In Upper Can-
ada no such difference has ever, in
fact, existed between these two instru-
ments. It has been usual to take cog-
novits before the issue of a writ and
* " Or " should hive been omitted. It appears to bo a mistake iu tlie Act.
ill
X.]
JUDGMENT ON COGNOVITS, ETC.
•
option of the Plaintiff, unless some particular office in which the
judgment is to bo entered be expressly stated in such cognovit
or warrant.
41
i'
the Courts have sustained the practice.
Walton V. Jlcnjward, 2 0. S. 473.)
he object was to save expense. —
Though no writ was in fact issued, yet
the judgment roll on a cognovit has al-
ways presupposed a writ and declara-
tion. The cognovit may be taken at
any stage of a cause ; but, if after plea
pleaded it is proper that it should con-
tain an agreement to withdraw the
plea. From what has been said, it
will be observed that s. x. is merely
declaratory of an existing practice in
Upper Canada. Perhaps it will bo held
that the act goes further than the old
practice. As it now expressly enacted
that final judgment may be entered on
a cognovit given before the suing out
of process, it may he inferred that the
judgment roll need not for the future
presuppose the issuing of writ. A
judgment entered on a cognovit without
common bail held to be irregular: (Gos-
liii V. Tune,A U^ll. R. 277.) The au-
thoi'ity of this case is rendered doubtful
by the now Practice. S. lix., enacts
that "no appearance need be entered
by the plaintiff for the defendant." A
judgment entered upon a cognovit by
a Deputy Clerk of the Crown, no pre-
vious proceedings having been had in
his county, was held void : (Laverty v.
Patterson, 5 U. C. R., 641 ; Commer-
I'ial Bank et al v. Brondgeest et al, 5
U. C. R., 325.) Where a cognovit
was given by one practising attorney
Mud witnessed by another, who was
absent from the Province, leave was
given to enter judgment upon proof of
the hand-writing of the defendant and
and the witness : {Cl^al v. Latham, 1
U. C. R., 412 ; Km>/ v. Robins, Tay.
U. C. R., 409.) Tl-e Court gave leave
to enter judgment against one defend-
ant, the other beina; dead, .-nd a sug-
gestion to that effect entered of re-
cord : {Nicholl V. Cartwright c' al, Tay.
U. C. R., 689.) Sed. qn. In eonacxion
with this case, see st:\t. U. C. 1 Vic. cap.
7, and ss, ccxi, ccxii, ccxiii. of this
act. Where there are several defendants
and a cognovit intituled in the cause
against all, is executed by some only,
judgment cannot be entered against the
latter alone : (Roach v. Potash et al,
T. T., 2 & 3 Vic, 3IS. R. & H. Dig.
«' Judgment" 8. Where a cognovit was
given with a stay of execution till
a future day, and a mem. was en-
dorsed deferring payment of part of
the debt for a longer time, and at the
day of judgment was entered for the
whole amount — the Court restrained
the levy according to the mem., with
costs— (/YsAer et al v. Edgar, 5 0. S.
141; Alexander v. Harvey, T. T. 7,
Wm. iv., MS.Vi. & H., Dig. "Judg-
ment" 9. Where defendants, as exe-
cutors in right of their testator, gave
a cognovit which might be held to
bind them personally, upon which
a judgment against them as indivi-
duals was entered, the Court allowed
the judgment to be amended, and set
aside an, execution issued against de-
fendants in their individual capaci-
ties : {Gorrie v. Beard et al, 6 U.
C. 626.) By Rule K. B.f E. T., 9
Geo. iv. : (Dra. Rules 12.) "It is
ordered that the 7th Rule of M. T. 4
Geo. IV., shall be rescinded, and that
in future no judgment shall he entered
on any warrant of attorney to corfess
judgment, or upon any cognovit ac-
tionem, that shall not have been ob-
tained through the intervention of
some practising attorney of this Court,
whose name shall be endorsed on the
warrant or cognovit ; and unless the
affidavit shall state the same to have
been obtained through the interven-
tion of some practising attorney, whose
name is endorsed thereon." This rule
does not it seems apply to cases where
an attorney is himself plaintiff. (Mc-
Lean V. Cumming, Tay. U. C. R. 240.)
And the rule has been held to be suffi-
ciently complied with where an attor-
ney prepared the cognovit, and endor-
sed his name upon it, though neither
8
♦ t>^e, CLClti4,ftA.ela
fiif
14
THE COMMON LAW PROCEDURE ACT.
[s. xi.
XI.
execution ^^' ^^^ ^^^ Writs of Execution may issue from the office
d^u. .(*, wherein the judcmont is entered, or after the transmission of
ill
he nor his clerk was present at the
execution of it. {ThompaoH v. Ztoick,
1 U.C.R. 338, P. C, MfLean J.\ dark-
en V. Miller, 2. U. C. 11. 9G P. C. ;
Jones J.; Pattersonv, Sqi'irectal, 1 U.
G. Cham. R. 234.) In the last case, the
late Mr. Justice Sullivan gave away to
the weight of authority, though ho
disapproved of the practice. His words
as reported are, "that if ho had to
decide the point in the first instance,
he should have hesitated in coming to
the same conclusion" as in the pre-
vious cases. Where one of the bail to
a Sheriff, whoso principal had left the
Province, acting under the impression
that his principal would not return,
gave a cognovit to the Sheriff, pro-
ceedings were stayed upon an afiidnvit
of merits. (Roberta v. Ilazlcton, Tny.
U. C. R. 35.) Costs in such a case (Sec
Ilazh'ton V. Bniniliije, Tay. U.C.R. 106.)
Semble — if a cognovit bo so given,
with a power to enter judgment and
issue execution, but by contempora-
neous verbal agreement it is under-
stood immediate oxecution sliould not
issue, the Court will in some cases act
Tipnn the agreement. (^I'urkcr et al v.
Roberts, 3 U C. R. 114.) If plaintiffs
improperly described, are so describe A
in the subsequent prooeodings, defca '-
ant who signed cognovit, without ex-
ception cannot afterwards take advan-
tage of the error, (/i.) In I^ectnient
plaintiffs were non-suited for not con-
fessing lease, entry, and ouster. Sub-
sequently defendant executed a cog-
novit; held that he had waived pre-
vious formal objections. {Doi Kerr v.
Shoff, 9 U. C. R. 180.)'
m By Rule H., 11 Vic, (Dra. Rules 12)
it is ordered, that '* after tlio first day
of next term, judgment shall not be cii-
t«red up on any cognovit given in a
case in which no process shall have
been served, without the order of the
Court or fiat of a Judge, in ca.ses
where, from lapse of time, an order or
fiat would bo required, in order to en-
ter up judgment on a warrant of at-
torney, and the practice as to obtain-
ing such order or fiat, shall be the
same as upon warrants of Attorney."
Within a year and a day from the date
of a warrant of Attorney, judgment
may be entered as of course, but not
after that time, without the leave of
the Court or a Judge — (Chit Arch.,
8 Ed., 800, and cases there cited.) The
Court refused leave on a cognovit 15
years old, where plaintiff had taken
an assignment of personal property,
though unproductive in satisfaction of
his debt. {Grant v. Mcintosh, [exe'rs
of] IV. 0. S. 184.) Leave was
grunted when the cognovit was seven
years old, upon an affidavit from
the plaintiffs of the whole debt being
due, and also stating, that having
received a letter from defendant, the
plaintiff believed him to be sti'.l alive
—{Oliphant v. McGuinn, 4 U. C. R.
170.) Final judgment upon a cogno-
vit or warrant of attorney to confess
judgment for a sum nc^ excaeding
£100, may be eiJI#ed in County
Courts. (Co. C. P. A. s. 6.) In accord-
ance with previous legislation and the
current of authorities, it may be pre-
sumed that when a plaintiff enters up
judgment on a cognovit in a Superior
Court, when the same falls within the
cog'uizance of the County Court, that
only County Court costs will be taxed.
If the sura confessed be £100 or less
than that sum, the County Officer will
bo bound to notice the fact and act
accordingly. Cogr,ovit, — Judgment —
Execution, &c. See (hit. Arch., 8 Edn.
844; Tidd'sNewPrac, 287; Bag. Prac.
305; Forms, Chit Forms, G Ed., 308;
Tidd's Forms, 6 Ed., 217 ; Warrants
of Attorney— ividigmeni — Execution,
&c., Chit Arch'd, 852; Tidd's New
Prac, 275 ; Bag Prac, 395 ; Forms,
Form, 313; Tidd's Forms,
ditty's
212.
(u) All Writs of Execution may issue,
<5t. — " May" indicates a choice — the
word is sometimes synonymous with
" must ;" but such l.« not the case here
!ft b fM a^ <it.i.< ci tc
X ^f
S. xi.] WRITS OF EXECUTION.
the roll to the principal office, such Writs may, at the option
of the party entitled thereto, be issued out of such principal
office.
15
as appears from the context. There
is a choice of offices held out to plain-
tiff—either the office in which judg-
ment is entered, if the office of a
Deputy Clerk, or the office of the Chief
Clerk at Toronto. The latter only ap-
parently "after the transmission of the
roll." Mr. Justice Draper, under the
old practice, in a case before him, in
general terms, expressed himself as
follows : " In order to justify the is-
suing of any writ of execution, alias
and pluries, and a fortiori original
from the office of a Deputy Clerk of
the Crown, it ia necessary that the
judgment should be entered there-" —
(Dalrymple v. Mullen, 1 U. C. Prac.
R. 327, note). The facts of the case
were, that on 6th February, 1844, afi
fa, issued from the piincipal office at
Toronto, to the Sheriff of Gore, which
was returned to and filed in the same
office, on 18th March, 1852. A Ji fa
against lanas, i«Hied from the office at
Toronto, on 15th March, 1853. On
6th November, 1852, an original vrit
against goods, issued from the office
of the Deputy Clerk of the Crown at
Hamilton, (n,proe.c>pe for that writ be-
ing the only paper in the cause in that
office,) directed to the Sheiiff of Wel-
lington, Waterloo and Grey. Writ set
aside, upon the ground that it was
" irregular to issue a writ of execution
out of the office in which there have
been no previous proceedings in the
cause, and in which there is no judg-
ment entered, or other matter upon
which the officer of the court is pre-
sumed to found the execution, the
award of which is tschnically pre-
sumed to be upon the roll." Subse-
quently, it was decided by Mr. Justice
Richards in a case before him, in
Practice Court, where the papers had
been filed in the office of a Deputy
Clerk of the Crown, though judgment
was entered in Toronto, that a pluries
writ of fieri facias issued from the
office of the Deputy Clerk was regular.
(The Preifident, Directors and Co. of the
Gore Bank v. Cunn, 1 U. C. Prac. R.
323). In cases where after entry of
judgment in the office of a Deputy
Clerk of the Crown, the roll is trans-
mitted to Toronto, it may be held un-
der this Act, that the Deputy Clerk of
the Crown, not having the roll, has no
further right to issue writs of execu-
tion. The Statutes, 12 Vic, cap. 63,
s. 36, and 12 Vic, cap. 68, which
were at variance with this opinion, have
been repealed. The point is open to
discussion, and will probably, at no
very .distant day, receive a judicial
solution. Those in doubt will receive
much assistance from the two cases
already noticed.
Execntions in general. — It is no part
of an Attorney's duty, under the or-
dinary retainer, to issue execution —
his authority ceases with the jiulg-
nient — (^Searson v. S7nall, 5 U. C. R.
259). An Attorney has power to iiit-
charge defendant from cut-tody on a
ca sa, (s. cxci.) The Court has no poiiv.r
to compel a plaintiff to issue execu-
tion for the benefit of a Shoiiff whi
claims indemnity, but is a Strang* i to
the judgment. — [Gamhleet aly. Iv-
xcll, 5 0. S. 839). An executi*.;, is-
sued by plaintiff's Attorney in ,• : ause
where plaintiff had fled from t.ie Iro-
vince, and been absent for seven years,
was stayed until such time as the At-
torney could show that plaintitT" was
home, and had given him authority to
issue execution. — (/ioi.wn v. IS/iond,
3 U. C. R. 74.) An assignment of a
judgment by plaintiff fr a vnluable
consideration, cannot be considered a
satisfaction of his debt, so as to pre-
vent his assignee issuing execution in
the name of the original plaintiff. —
(Com/iiircial Bank v. Boulton, 6 U. C.
R. 627). Plaintiffs, when paid their
debt under execution, cannot consent
to the issue of a second execution,
3
.'ai
16
TIIK COMMON LAW PROCEDURE ACT.
[s. xii.
m
Revision of
t&xatlon of
C0.^t8.
^cTTx ■aiftt ax fee.
XII. Either party may as of right, upon giving two clays'
notice to the opposite party, have the taxation of costs made
by any Deputy Clerk of the Crown and I'leas, revised by
^1-' '' I
though, for the purpose of making
good the title to land sold by the
Sheriff under the first writ. — {Bank
U. C. V. Murpfn/, 7 U. C. 11. 328).
Nothing can be done under a spent
execution, unless to perfect what had
commenced while the writ was current.
— (Doe d. Oreenshielih v. Giirroiv, 6
U. C. R. 237). An execution against
goods may be made returnable within
an interval of several terms. In this
case it was issued on 18th July, 1854,
returnable on 1st W. T. T., ISoG.—
(Foster et al v. Smitk, 13 U. C. 11. 2-43).
A writ against goods placed in a
Sheriff's hands, with instructions
not to sell until another Avrit comes
in, is not in his hands to be exe-
cuted, and will not bind cither
<ta^ agent, a subsequent excg utor, or a
bona fide purchaser for value. — (//>.)
Where a ^ defendant had been dis-
charged from arrest, as having been
irregularly charged in execution, the
Court ' pheld a fieri facias, afterwards
issued against his goods. — Dorman v.
Ramon, Tay U. C. R. 37(i). It is
irregular to issue an execution against
lands until after the return of the
writ again,«t goods. — {Doe d. Spafi'ord
v. Brown, 3 0. S. 02). It is irregular to
issue an execution against goods after
a levy has been made on a writ against
lands that has not been returned. —
(Steven.^ V. Sheldon, T. T. 3 & 4 Vic.,
P. C, Macaulay, MS. R. & II. Dig.,
"Irregularity," 14). A judgment a-
gainst an executor, to recover di- bonis
kstatoris, will warrant the issue of an
execution against testator's lands, on
the return of 7itdla bona as against
his goods. {Doe d. Jcasup v. Bart-
Ictt, 3 0. S. '206.) An original writ
of fieri faeias having been lost, plain-
tiff was allowed to issue a duplicate,
iu order to obtain a return, upon
which to found an alias. (.)fch'urn
v. Stoneburne, T. T., 7 Wm. IV.;
J/>S'., R. & II. Dig., " Fieri Facias"
10.^ The Court will not restrain a
plaintiff fx'om levying the whole of his
debt on one several defendants. (Zavitz
V. Hoover Hal, M. T., 2 Vic, MS.:
II. & H. Dig., "Execution," 2.)
Qurere — Can an Elegit be regularly
issued in this Province tc the preju-
dice of the remedy of other creditors
whose satisfaction from the sale of the
lands would bo indefinitely postponed ?
(J)oc. d. Henderson v. Burtch, 2 0. S.
614, Robinson, C. J.) Form of en-
dorsement on executions. See Ru le 44 ^j,x. otU
Trjn. T., 1 3 Vic . See further as to ^■*"?
executions in general. (Chit. Arch.,
8 Ed., 510 ; Tidds New Prac, 294 ;
Bag. Prac, 243 : also ss. Ix., Ixi.,
Ixvi., olxxxvi., clxxxix., and ceil., of
this act.)
irr/Af of Fieri Facian. — A fi.fa. di-
rected to no one, it» void, and cannot
be amended. ( Wood et al v. Campbell,
3 U. C. R. 209.) Xfi. fa. lands tested
after the death of defendant, is void.
(McCarthy v. L->w, 2 0. S. 853.) An
amendment was allowed in fi. fa. after
a sale under \t by the Sheriff. {Flem-
ing V. Executors of Wilkinson, T. T.
1 & 2 Vic,— J/k, R. & II. Dig.,
"Amendment" I. 1.) The Court al-
lowed an original fi. fa. to an outer
Dii ct, to be amended by making it
a testatum and an original writ, to
warrant the testatum to be sued out
after the first writ had been placed in
the Sheriff's hands. ( Fisher v. Brooks,
3 0. S. 143.) The testatum writ act
has been repealed, (s.cccxviii) Ground
writs are unnecessary, (s. clxxxvi.)
General powers of amendment(s.ccxci.)
\fi. fa. was amended so as to have
relation to the day of entry of judg-
ment. (Audruss V. Pa(je, Tay. U. C. •
R. 478.) Fi. fa. to one County upon
which XIO levied. — After return day,
.//. fa. to a second County for original
debt, and without noticing £10 levy.
Second writ set aside. {McMurrich v.
Thompson, 1 U. C. Prac. R. 258.) After
I
il >.|ilife!
i..i.»4
.s. xii.]
REVIEWING TAXATIONS.
17
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the principal Clerk of the Court wherein the proceedings were
had : and it shall bo lawful for such Court or a Judge, by rule c?"*" "' ^^
or summons, to call upon the Deputy Clerk who taxed any^<jhar(;ed
Bill, to show cause why he should not pay the costs of revis- in <;«rtiiiu
ing his taxation and of the application, if in the opinion of the
(jourt or Judge, on the affidavits and hearing the parties, such
Deputy Clerk has been guilty of gross negligence, or of wilfully
taking fees or charges for services or disbursements larger or
other than those sanctioned by the Rules and Practice of the
Court. («')
tlio expiration of fi. fa. against lands,
upon which proceedings had been stay-
ed by agreement between the parties,
the Court allowed an alias to issue,
returnable at such a distance of time
as to allow the Sheriff to advertise, &c.
(Nickall V. Craiv/ord, Tay. U. C. R.
376 ;) see further. Chit. Arch. 8 Ed.
537; Tidd. N. P. 569; Bag. Prac.
246.
Writs of Ltipias ad Satisfaciendum, —
Issue of a Writ of Ca. Sa. allowed
upon an affidavit, sworn before a Judge
ot Lower Canada. (^Coit v. Winff, 3 0.
.S. 439.) On a return ot devastavit, a
Ca. Sa. does not issue, as a matter of
course, Avithout enquiry. ( Willard v.
Woolcut, Dra. Rep. 211.) Court re-
fused to set aside a Ca. Sa. issued
several terms after the return of a /?.
fa. goods : ( Glynn v. Dunlop, 4 ' j.
111.) New Ca. /Sa. refused although
debtor discharged from first writ by
plaintiff's attorney, acting upon the er-
roneous impression that the debt had
been compromised: {Bradbury et al
V. Loney, H. T., 5 Vic, M.S., R. & H.
Dig., "Capias ad Satisfaciendum" 9.)
A Ca. Sa. commanding Sheriff to de-
tain defendant in custody until ho
should satisfy plaintiff, without stating
amount of debt to be recovered, held
void : [Henderson v. Ferry et al, 3 U.
C. R. 252; Billings et al v. Rapclje
>'.t al, E. T., 4 Vic, M. S., R. & H.
Dig., "Amendment" I. 2.) Where
the christian name of a defendant was
erroneously given in a Ca. Sa., the
Court refused to allow amendment:
Bag.
(Allison V. Waffstaff, M. T., 7 Vic, M.
S., R. & H. Dig. "Amendment" I. 3.)
Not necessary for ^'-^iDtiff who had
two christian names to state the se-
cond in an affidavit of debt, where his
identity sufficiently appeared by the
affidavit : {Perkins t. Connolly, 4 0. S.
2.) Affidavit for Ca. Sa. ; see cases
collected in R. &. H. Dig., "Arrest"
div. I. passim ; see further Chit. Arch.
8 Ed. 608 ; Tidd. N. P. 568 ;
Prac. 265.
(w) This provision for the summary
punishment of Deputy Clerks, if not iu
the nature of a penal enactment, will
probably be construed strictly by the
Courtu, and unless " ^ros« negligence"
is brought home to the '^guilty" party,
the complainant will be left to his re-
medies at common law. Indeed, as the
Deputy Clerk in taxing costs occupies a
quasi judicial authority, little short of
what would sustain a criminal proceed-
ing, would, it is apprehended, move
the summary and rigorous interference
of the Courts. Nevertheless, the pro-
vision is a wise enactment. The power
given for the punishment of gross or
wilful misconduct could not be more
safely reposed than in the "Court or a
Judge." The appearance of such an
enactment in the Statute book, is to
some extent, evidence that tno evil
of hasty and ill-judged taxatiors by
Deputy Clerks ha^ n<ft been unki own
to the Courts. In any view of the
matter, it is extremely imporlflnt that
such Deputies should act on uniform
principles in the taxation of costs,
■1
as
I
r
1
i 1
( ■
W
iiiii^'^
' U-
lilil
18 THE COMMON LAW mOCEDURE ACT. [s. xHi.
cfeffio • ^^^^- ^^^^ Deputy Clerk of the Crown and Picas shall, if
''ffl^s^'^^th P'^^P^' accommodation bo afforded him, keep his office in the
C""'"' »''»'* Court House of his County, and until ho can obtain auch accom-
ifposBible: •';
jindifiiot.atmodation, he shall keep his oiBco in some convenient place in
some conve- ' '/ ,) , ,
nient piaco the Couuty Town J and every Deputy Clerk s office shall (except
town. between the first day of July and the twenty-first day of
Hours of at- August) be kept open from ten o'clock in the morning until
" three o'clock in the afternoon, Sundays, Christmas Diiy, Good
Friday, En^tcr Monday, the birth-day of the Sovereign, 6nd
any day f:))polntcd by Royal proclamation for a general fast or
thanksgi'> u:g, excepted; and between the first day of July
and have aripn- materials to guide
them, subject, ly I '.oy viilbe, to strin-
gent rcguiaticiitJ ai tho dischargo ol'
multifarious Jut =*)£ '} > : Thief Clerks
at Toronto, will d^i ' ■: 'iiS deem it
incumbent upon them kit least to pre-
pare instructions for their Deputies,
cmbraciug forms of bills, and meeting
cases of usual occurrence by showing
the charges and fees that should pro-
perly be allowed on ordinary taxations.
This would be eminently calculated to
secure uniformity in the outer counties,
and to some extent save unnecessary
appeals for revision to the chief tax-
ing officer at Toronto, feet aitat, A, % /^
The old practice provided that
either party might sue out a rule
for taxation in Toronto : (Stat. 8 Vic.
cap. 36, s. 3, 12 Vic, cap. 68, s. 1.)
Now that the powers of Deputy Clerks
of the Crown have been so much en-
larged, the protection of suitors and
the due administration of justice alike
demand some such check as that im-
posed by this enactment. The powers
of Deputy Clerks to tax costs have
been gradually extended, until at
length, by ss. ix. and xi. of this act,
they have full authority to tax costs,
enter judgment, and issue executionin
actions commenced in their respective
Counties. The tendency of this legis-
lation is greatly to decentralize the
administration of justice. With res-
pect to revisions of taxation, it may be
said that the Courts are in general dis-
inclined to interfere with the decision
of the taxing officer who has exercised
a sound discretion. But if it can be
shown that he acted upon an errone-
ous principle, a rule for revision will
be granted. Upon application for a
revision to the Court or a Judge Ihey
will frequently refuse to interfere
where the objections raised were not
taken before the officer. The applica-
tion for revision must be supported by
affidavit, pointing out specific ot,„ '•
tions to the taxation with which th*.
party applying is dissatisfied : (Chit.
Arch. 8 Ed., 1395 ; Tidd's N. V. 664 :
Bag. Trac. 202.) For the rules of
Court governing taxations and costs,
see Dra. Rul^a. p. 15. and cases there *««»«<(
noted. Also, see R. & II. Dig. "Costs," As«o
where more than 100 cases decided in
our Courts, upon the subject of costs
between party and party, have been
collected. As to costs between attor-
ney and client, see same Digest, "At-
torney" '■" At' to costs upon rules
served c. 5heriir,3 to retui-n process,
see notes to s. xiv. Also see 'be var-
ious seed : 1.3 throughout this act, un-
der which josts are imposed ,or refus-
ed. It was ordered in the King's
Bench, by Rule 1 of M. T., 4 Geo. IY ..,^^^A
that " In 'tiiture the jaractice of the p.^VH
Court, as well as the quanlum of costs
to be allowed in all proceedings, is to
be governed (when not otherwiec pro-
vided for) by the establislie<l practice
of the Court of King's Bench in Eng-
land." The meaning of this rule is,
that the general practice of the Court
111
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a. xiii.] OFFICES of deputy clerks. 19
and the twenty-first day of August, sucli offices shall be kept, ,
open from nine in the morning until noon, (x) ^ • r - '-
in Uppor Canada, shall be regulated
by the practice of the Court of Queen's
Bench in Englrnd, unless otherwise
regulated by acts of our Legislature,
or by rules of our Courts : ^er Sher-
wood, J., iu Rosa ti al y. jBalfour, 5
O.S., C84.) The statute 2 Geo. IV.,
cap. 1, 8. 88, enacts, "That the aZ-
lowance of costs to either party, plain-
tiff or defendant, in all civil suits and
penal actions, be regulated by the
Statutes and usages which direct the
payment of costs by the laws of Eng-
land."
(z) Two things are to be observed
upon the reading of this section. First,
the place iu which a Deputy Clerk of
the Crown should keep his o£Gice.
Second, the hours daring which his
ofSce should be open. The place is
sufficiently designated and needs no
remark. The time may require some
comment. The year, excepting holi-
days, is, by the section, divided into
two periods. The long vacation, from
1st July to 21st August, and the re-
mainder of the year not embraced
within those days. In vacation, the
office is to be kept open from 9 o'clock
in the morning, till 12 o'clock, at
noon. For the remainder of the year,
tne hours are from 10 o'clock, in the
morning, till 3 o'clock, in the after-
noon. The latter provision coincides
with s. 12 of 12 Vic, cap. 06, which
is still in force. It is as follows : —
"And be it enacted, that from and
after the passing of this Act, each and
every Clerk of any such District Court,
and the Deputy Clerk of the Crown in
each District, shall hild his office in
the Court House, or in some other
convenient place within the District
Town of his respective District, and
shall keep such office open for the
transp/jtion of business appertaining
to such office, (Sundays and the legal
holidays exceptedj) from the hour of
ten in the forenoon, to the hour of
three in the afternoori, and in term
time from the hour of nine of the clock
in the morning, to the hour of four of
the clock in the afternoon." It will be
noticed that a regulation has by this
section been made for term, which
has been dropped in the C. L. P. Act.
The difference, in point of time, is one
hour. The latest hour under 12 Vic.,
during term, being 4 o'clock, and not
3 o'clock, as under 19 Vio. It may
be possible, in construing the two
Acts, ^to reconcile them. Stat. 12
Vic., cap. 63, s. 11, enacts " That the
several Clerks of the County Courts
in Upper Canada, shall be cx-officio
deputy Clerks of the Crown and
rieas." Now, under this enactment,
th> one man must discharge the duties
ot ttTO distinct offices. Then if both
12 Vic, cap. 66, s. 12, and 19 Vic,
cap. 43, s. 13, are to be taken to-
gether, during term in County Courts
he would sit till 4 o'clock ; but in Su-
perior Courts only till 3 o'clock. It
is presumed that the Legislature lost
sight of the former Act in the repeal-
ing clause of the C.L. P. Act (cccxviii.)
As it is, it may, on the other hand,
be held that the latter Statute does in
fact, as regards the office of Deputy
Clerk of the Crown, supersede 12 Vic.
cap. 66, 8. 12. Another point of dif-
ference is, that Stat. 12 Vic. excepts
"legal holidays," which, under the •
Interpretation Act, (12 Vic, cap. 10),
includes Corpus Christi and other days
not usually observed as lega^ holidays
in Upper Canada. The C. L. P. Act,
it will be observed, however, judi-
ciously specifies the days, and leaves
nothing in that respect to statutory
interpretation.
The section under consideration is
confined to offices of " Deputy Clerks of
the Crown and Pleas." The offices of
the Clerk of the Crown and Pleas, are .
regulated by rule of M. T.. 18 Vio. -«.g<i ad^>9i.O
" It is ordered that the 18th Rule of
Court of Hilary Term, 13 Vic, be re-
scinded, so far as regards the opening
of the offices of the Clerks of the
Crown and Pleas, and that from and
3
9
20
THE COMMON LAW PROCEDURE ACT.
[s. xiv.
^ sl^ /T »uif.8 to re- XIV. (x) Every Deputy Clerk of the Crown and Pleas may
^ (f ^i" i-J turn process, \ y •/ tr j j
\ 'r"^ m»y w «s- sign and issue rules on any Sheriff or Coroner to return Writs
after the end of this present term, the
offices of the Clerks of the Crown and
Pleas be kept open as follows, that is
to say : During term from 10 o'clock
in the morning, until 4 o'clock in the
afternoon, Sundays, Christmas Day,
Easter Monday, New Year's Day, and
the Birth-day of the Sovereign, and
any day appointed by general procla-
mation for a general fast or thanks-
giving, excepted, and that between the
first day of July and the twenty-first
day of August, the said offices shall be
open from 11 o'clock in the forenoon,
until 2 o'clock in the afternoon. A
writ issued by the officer at his own
house, and before office hours, was
decided not to be illegal : (Rolker et al
V. Fuller, 10 U. C. R. 477). The
Court, though refusing to set aside the
writ, animadverted upon the inconve-
nience of the practice, both as regards
the profession and the officer himself.
(/6.) It is irregular for a Deputy
Clerk of the Crown to file papers at
his private residence apart from his
office, and out of office hours: {Fra-
lick V. Huffman, 1 U.^C. Cham. R. 80.)
The delivery of a paper to him in the
street, is not "filing or entering it."
{lb.) When the de^ndant's attorney
is present at the opening of the office
in the morning, to file a joinder in de-
murrer, and the plaintiff's attorney
is also present to sign judgment, the
former is entitled to precedence : (lb.)
An attachment was granted against a
Deputy Clerk of the Crown, for hav-
ing issued process without authority :
{R. V. Fraser, 3 0. S. 247.) After-
wards, on his appearance iu term to
answer interrogatories, the Court or-
dered him to be dismissed from his
office, and to pay the costs of the pro-
ceedings : (lb.) Deputy Clerks of the
Crown are paid by Government —
salary in no case more than £100, or
less |than £20 per annum : (Stat. 12
Vic, cap. 63, s. 12.) No British
subject, whatever his profession, call-
ing, or employment, is disqualified
from holding the office : (Stat. 12 Vic,
cap. 66, 8. 12.) Stat. 8 Vic, cap. 86,
8. 7, now repealed, enacted that such
Deputy should not be "a practising
Attorney, or an articled clerk to a prac-
tising Attorney."
(z) This section resembles the re-
pealed enactment 8 Vic, cap. 36, 8. 9.
It was in these words — " That it shall
and may be lawful for each and every
Deputy Clerk of the Crown, to issue
rule» upon the Sheriff, Coroners, or
Elisors of his District, for the return
of any Writ of Mesne or Final Process
to him directed, in the same manner
as may be now done in the principal
office." The new practice authorises
the Dejmty Clerk not only to issue,
but to sign the rules ; yet restricts
his authority to writs and process " is-
sued out of the office of such Deputy."
The repealed Stat. 8 Vic, cap. 36, men-
tioned Writs of " Mesne or Final Pro-
cess." The words "Writs and Pro-
cess issued, &c., " used in this section,
mean the same thing.
The Sheriff or Coroner upon being
served, is to return the writ to the
office " from which such rule issued."
It was under the old practice held
that a rule to return a fieri facias
could not be issued out of the office of
a Deputy Clerk — as the writ itself did
not issue out of that office : (Anony-
mous, jyvs,. 'Rep. 2iQ.) A Sheriff hav-
ing been ruled to return a writ vrith-
out stating to what office, and it ap-
pearing that the writ had been issued
from the office of a Deputy Clerk, to
which office the Sheriff might have
returned it, the Court refused an at-
tachment against him, on an affidavit
that the writ had not been returned to
the Crown Office at Toronto : (^Scott v.
Benson, 1 U. C. Prac. R. 32.)
The rule for the return of process
may issue in vacation : (McGowan v.
Gilchrist, H.T., 7 Vic, P.C, McLean
3., MS., R. & H.Dig., " Sheriff" II 2.)
It should be a six days rule : (Hilton
ct. al V. Macdonell et al, 1 U. C. Cham.
a. xiv.]
RULES ON SHERIFFS, ETC.
21
and Process issued out of the office of such Deputy and "^c^ ^y ^
directed to such SheriflF or Coroner ; and it shall be the duty (^App. «,. c)
R. 207.) Computation of time: (Re-
tina V. Jarvis, 3 U. C. R. 126.') At
the time of service tlie Original rule
should be shown to SherifiF: {Hilton v.
Macdonell et al, ante.) If he do not
return the writ within the time limited
by the rule, the Court will impose the
costs of the rule upon him : {McOoioan
V. Gilchrist. R. & H. Dig., "Sheriff"
II 2. ; Bank of Upper Canada v. Mae-
Farlane et al, 4 U. C. R. 396.) It is
no sufficient ground for opposing a
rule for an attachment for not return-
ing a writ against goods that there is
a question pending before the Court
as to the title to the goods: (StuUv.
McLeod, I U. C. R. 402.) Where the
rule served was for an attachment,
because the Sheriff had not brought
up the body under his return of cepi
corpus, held that it was a good answer
to such rule that the defendant was
arrested under the ca. sa., and placed
in close custody, and was afterwards
admitted to the limits, and that he
had not since been confined to close
custody by any process whatsoever:
( Whitev. Fetch et al, 7 U. C. R. 1.)
In connexion with the subject of re-
turning writs as provided for in the
section hero annotated, it becomes im-
portant to refer to Stat. 7 Vic, cap, 33,
of which a summary must suffice, as
the Act is too long for insertion. —
It is intituled " An Act to render
more summary the means of enforcing
the return of process by Sheriffs
and Coroners, &c." Sec. 1. — If any
Shei'iff or Coroner neglect to return
process within the time when he shall
be ordered to return the same, it
shall be lawful for any Judge of the
Court to issue a summons, to show
cause why an attacbraent should not
issue. Upon the return of the sum-
mons, the Judge may give further
time, or oi'der an attachment. Sec. 2 —
Sheriff, if in default at the expiration of
furiher time, liable to have attachment
issued ngainst him. Sec. 3. — Judge to
have saoie powers as the Court in regard
to habeas corpus, committing Sheriff
to close custody, or taking bail. Sec.
4. — Habeas corpus may bo made re-
turnable in vacation, on a day which
shall not be more than thirty days fVom
the time of the issuing of the attach-
ment or habeas corpus; same as re-
gards Judges of District(County)Courts.
Sec. 5.— Sheriff not returning writ
within three months after attachment,
to forfeit his office. If he act after
the expiration of the three months,
liable to a penalty of £100. Sec. 6.—
Costs under this Act in the discretion
of the Court or Judge. Sec. 7. — Act
not to interfere with existing remedies.
It has been said that personal service
of a summons for an attachment, with-
out showing the original, is sufficient :
{Hilton et al v. Macdonell et al, 1 U. C.
Cham. R. 207). The summons should
name the Sheriff, instead of calling
upon him by designation of his office :
(lb.) An attachment wv granted
against a Sheriff who was a Member
of Parliament, for not returning a
writ, pursuant to order, served upon
him: {Bell v. Buchanan, M. T., 1
Vic, MS., R. &H. Dig., "Sheriff,"
II. 7.) Before the passing of Stat.
7 Vic, cap. 33, it was held that a
Judge in Chambers had no power to
grant an attachment : {Rex v. Sheriff of
Niagara, Dra. Rep. 343). It is unde-
cided whether, since that Statute, a
Judge in Chambers has power to pass
judgment upon a Sheriff for contempt,
when the object of the Statute has
been attained by the return of the
writ: {Rex v. Jarvis, 6 U. C. R. 558).
Where the Sheriff returned the writ
to the Crown Office, but it was not
filed, because the postage was unpaid,
and the plaintiff, with notice of these
facts, obtained an attachment upon
the usual affidavit, that the writ " was
not on the files," the Court set the at-
tachment aside : {Regina v. Moodie, 1
U. C. R. 410). Though the proceedings
were characterized by the Court "as
sharp and harsh," the Sheriff was
55
9
,
SB THE COMMON LAW I'llOCEDURE. ACT. [fl. xiv.
of cf'.ch Sheriff or Coroiior to return such Writs to the office
miidoto pay I' o costs, because, in or-
der to make is return olToctual, he
was bound to pay the postage • f/i'.\
Where the writ was enclosed to tbj
Clerk of the Crown, three or four days
after tue expiration of the rule, so that
it was not on the files when the search
was made, but was produced in open
Court by the Clerk, an attachment
was refus 1, though asked, for the
purpose of making the Sheriff pay the
costs : (^Anditwi V. liolerUon el al, Z
0. S. 301).
The U. C. Stat. 3, Wm. IV., cap.
8, B. 17, does nof appear to liavo
been repealed. It s as follows: —
"That upon any application for, or
granting of, by any of the Courts of
this Provinco, any rule or r'llcs, upon
any Sheriff, for the return ol any writ
or writs, or for the performance of any
other duty or matter relating to the
said office of Sheriff, such Sheriff shall
be liable to and pay to the party making
Fuch application,or obi iiiiincr such rule
or rules, all taxable costs thereon, in
less the Court shall otherwise order :
Provided always, that if any such appli-
cation shall be made, or any such rule
■ ■'♦cd previous to the day next after
. * -nch return shoiild have been
I .2 ;.' such duty or matter por-
! .1 \ , t, Ti Sheriff, against whom suc?i
...- !< Hi' 'hall be made, shall not
bo » . .V. ibr any costs or charges
which inaj arise or occur upon the
same ; And provided also, that if
upon such application for a rule or
rules, it shall appear to the said Judge
or Judges of the said Courts respec-
tively, that the same is frivolous or
vexatious, the said Judge or Judges of
the said Courts, respectively, may, upon
discharging such application, order
that all taxable costs and expenses
for opposing the same, be paid to the
said Sheriff." A Sheriff cannot be
attached for non-payment of the costs
of a rule to return a writ under this
Statute, unless there has been a rule
specially calling upon him to do so :
[Marcy v. Butler, H. T., 2 Vic, MS.,
Dot d, McGregor v. Grant, T. T., 2 &
8 Vic, MS. R. & H. Dig., «« Sheriff"
II., 11). A party who ruled a Sheriff,
and afterwards gave an order to stay
proceedings for a certain time, held
not entitled after that time, (the writ
11 jt having been returned) to proceed
by attachment under liis rule: [Ber-
lin V. Hamilton, M. T.. 2 Vic, MS.
U. & II. Dig., " Sheriff" 11. 2). Where
after the delivery of . writ against
lands to the Sheriff, luo plaintllF and
ikfendant agreed to conipronii.«e, and
after a delay of more than two years,
the com 'omiso was not effected, and
the plamtilF obtained a rule for an
attachment against the Sherill", the
rule was set aside: (^Crooksy. O' Grady,
1 U. C. R. 400). Attachment refused,
when applied for more than a year
after the issue of the rule : (^Lourlcs v.
Furrard, 4., 0. S., 5). An attach-
ment will not be granted, for not re-
[urning a writ, pursuant to rule, iiiisued
on ho Slime day that the writ was rc-
tnrnoMe: {llrginay. Hamilton, E.T., 2
Vic. , MS. R. & II. Dig. «« Sheriff" II. 13).
Till! Sheriff cannot be regularly sci-ved
with a rule to return a writ until the
return day is past. i^Ucgina v. Jorvia,
n U. C. R., 125.) If an attachment
1 -ue on such a rule the proper course
ifi to set aside the attachment and not
the rule. (lb.) A rule to return a
writ was issued in Trinity Term (June) .
In July following the writ was in the
hands of plaintiff's agent. In August
attachment i.=«ned. The Court set it
aside, upon pa^ inent of costs, up to
the time the writ was returned. (Hex
V. Sherwood, 3 0. S. 305.) Where a
Sheriff had three writs of execution
against goods, and having seized and
sold, and partly satisfied the first
and third writs, a stranger claimed
the property. The plaintiff on the
second writ refused the Sheriff indem-
nity, and he did not return his writ.
An attachment was issued. (Land
V. Hum, T. T., 3 & 4 Vic, MS., R.
& II. Dig., " Sheriff," II. 18.) An
attachment may be granted for an in-
sufficient return. (Sniilh v. BcUoivs,
H. T., 4 Vic, MS., R. & II. Dig.,
ecpi I
11.41
In
icccLoul 1853,
/""ii-O in te
lerei
)f at
KUr.ES ON SIIERIFl'S, ETC.
s. xiv.J
from wiru'h such rule issued, in case ho shall bo served with
any such rule.
28
rfhonfT, IT 111.) Whore tho writ was
rctur 110(1 licfni-o tho attachment issued
thou':!i tho return wag disputcfl as
ftilst!', tho Sherifl' was relieved from
the attachment on payment of ccsta.
{The Bank of Ujtper Canada v. McFur-
lane et til, i v. C.R. 390.) If the return
wore in fact false, tho Sheriff would
be liable to an action for it. (///.) An
attachment may issue against a Sheriff
for returning «' goods on hand " to a
venditioni exponas : {Harper v. I'owell,
E. T., 2 Vic, MS., R. & II. Dig., Shcr-
iflF, II. n.) Imficrtinent matter in a
return is considered as a contempt in
the Sliciift": {Jones v. Schofield, Tny.
U.C.R., tilO., R. &II. Dig., "Sheriff,"
II. Ii4.) Attacliment refused where
tho Shcrilf had been more than si.'c
months out of oihce, before rule issued
against him : ( Ladi v. liurivell et al,
E. T., 3 Vic, MS., R. & II. Dig., Sher-
iff, II. 17; Mott V. Gray et al, 1
I U. C. R. 302). AVhere a return of
'repi rorjuts was made, the Sheriff
ruled to bring in the body.and attached
for default, and the attachment set
aside lor irregularity ; but while in
existence, defendant having given bail,
was discharged by supersedeas, the
(.'ourt hold a second attachment on a
second rule, to bring in the body
issued eight months after the setting
aside of the '"st attachment to be ir-
regulfvr : ( A'. , v. Sheriff of Niagara, 2
0. S. 12G). SccoDd attachment re-
fused, until costs of setting aside a
former one, for irregularity, were
paid: {R. v. Rattan, ;5 0. S. 155).
The Court will sometimes, under spe-
cial circumstances, relieve a Sheriff,
by allowing tho return of a writ, even
after a motion has been made to bring
in his body on the Coroner's return of
cepi corpus : (Rrr/ina v. Jarvis, 1 U. C.
11.415).
In England, by rule 132 of It. T.,
iitJLcuid. 1853,^ the return of process, both
^''^9 in term and vacation, is to be or-
dered by a ^ide bar rule. Tho writ
)f attachment, both in England and
Upper Canada, is directed to the
Coroner, (rhit, F., Ed. 1G!I; //>. 7
Ed. 818.) If there be several Coroners
for tho same county, ^rcat cn'o must
,\'
ncul.
mudc
••"oled
itor
[1, /re
bo used in directing I'lc
Tho practice is not clear,
of practice are silent ujxm
in which the writ ought Iw
under such circumstances.
is not in a position to do i
than to put tho practitioner upon hi,^
guard. If tliere arc sev-ral Coroners
in a county, tho plaintiff, it would .seem,
cannot do wrong by having his writ
directed to all the Coroners by tlieir
name of office. (2 Ilawlc, P.C, cup. 9,
s. 45.) And although one only exe-
cute the writ, it seems tiic return
must bo in the name of all. ( [b. )
AVhero there are several Coron-
ers, some of whom only are inter-
ested, tho process must bo directed
to and executed by tlie otliers. (Jervis
Off. Coroners, 61.) If the writ be di-
rected Coronatorihiis, where thero are
more than two Coroners in the county.
and after the writ issue one Coroner
die, tho writ may be executed by the
survivors. Uut if one only survive he
can neither execute nor ret\irn tlie
writ, until the appointment of another
Coroner. (/A.53.) The writ of attacli-
ment should be personally delivered to
the Coroner : in order to bring liini in-
to contempt, it is not suflicient to deli-
ver it to a clerk in his office. [Hirer v.
Auhin, 1 H. & W. 3.12;) See furtliev :
Rag. Cham. I'rac. 79, Chit. Arcii., 8
""" ~'~ Tidirs N. P., 168; Bag.
/.'o/-m— Chit. F., Ed.,
7 Edn. ,^17.
A Sheriff is liable to a further pen-
alty if he do not return writs witliin a
proper time. " No Sheriff shall bo
entitled to any fees on any writ placed
in his hands fifteen days before the
return day mentioned therein if he
does not return the same to the Attor-
nej^ from whom ho received it idtldn
four days after the return thereof, or
enclose the same by post within that
Ed., 717:
Trac, 430.
230; {Ih.)
41
■ 4
9
ki. i
,%. ^'V-
IMAGE EVALUATION
TEST TARGET (MT-3)
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112.0
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Photographic
Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, N.Y. 14SB0
(716) 872-4503
€S
v
\\
1^
24
THE COMMON LAW PAOCIDURE ACT.
[S. XV.
s. s
iMewtof -^"^ whereas many titles to land depend upon Sheriff's
.jheriff's gales upon executions, and it is therefore important to provide
for the preservation of evidence of the judgments upon which
such executions issued, and also for the more speedy registra-
tion of judgments ; Q/) Be it enacted as follows :
jj^ ^^ XV. E'^ery Deputy Clerk of the Crown and Pleas shall
ciOTksto keep a regular book, in which shall bo minuted and docketed
fwminuMnBall Judgments entered by such Deputy Clerk; and such
ments, &c. minutc shall contain the name of every Plaintiff and Defendant,
the date of the commencement of the action, (z) the date of
time to the Attorney, unless delayed
on an order in writing from the party,
his attorney or agent, placing the same
in his hands." (Stat. U.C, 8 Wm. IV.
cap. 8, s. 18.)
(y) The purchasers title to land,sold
by the Sheriff, is prima facie good,
when the sale is made upon a legal
writ and the debtor is in possession at
the time of sale: (Doe d. Boulton v. Fer-
(/u«sora,6U.C.R.515.) A defendaLt seek-
ing to defeat the title, on the ground of
a defect in the proceedings anterior to
the writ, must show clearly and con-
clusively that there was such a defect :
[lb.) The title is not liable to be de-
feated by irregularity in the proceed-
ings anterior to the judgment : [lb.)
So long us the judgment subsists in full
force, it supports the execution, and
the execution tupports the sale : (lb.)
Further annotation upon the subject of
Sheriff's sales, would be foreign to the
text. Such as desire to pursue the
subject, can refer to B. & H. Dig.,
'« Sheriff's deed" paatim — " Sheriff's
sale" — under which heading 19 oases
have been collected ; " Title" cases 1,
2, 8, 11, 12, 13, 14, 15, and 16; also
to McDonell v. McDonell, 9, U. C. R.
259 ; Doe d. Bumham v. Simmonds,
lb. 436 ; Doe d. Meyers y. Meyeri, lb.
465 ; Doe d. Elmslty et ux v. McKen-
zie, lb. 669 ; In re Campbell and Rut-
tan, 10 U. C. R. 641 ; Bumham v.
Dali/, 11 U. C. R. 211; Ferguson v.
JIUl, et al, lb. 530 ; Shenston v. Baker,
1 2 U. C. R. 175 ; White et al v. Brown ,
lb. 477 ; Reaume et al v. Guichard, 18
U. C. R. 276 ; Stroud v. Kane, lb. 459 ;
Doe MilU 7. Kelly, 2 U. C. C. P. 1 ;
Douglas T. Bradford, 8 U. C. C. V.
469 ; Young ▼. Baby, 4 U. C. C. P.
687.)
(2) The writ is the commencement
of the action : both in personal actions
and ejectment: (ss. xvi and ccxx.j
And the action is commenced for all
purposes on the day when it issues :
{Castrique T. Bemabo, 6 Q. B. 498.)
And see Rule E. T., 5 Vic, which pro-
vides that "In every case the suing
out of process shall bo regarded for all
purposes, as the commencement of the
action." The writ bears date on the
day when it issue : (s. xix.) and such
date will properly appear on the Nisi
Prius Record and Judgment Roll. In
ejectment the writ itself must be set
forth on the Record : (See s. ccxxxii)
It was the old practice both in England
and Upper Canada, to hold that the de-
claration was the commencement of the
action : (Cameron v. Ferguson, 8 0. S.
818.) In England, since the Uniformity
of Process Act 8 & 4 Wm. iv., cap. 89,
sec. 1, and in Upper Canada since the
rule above quoted the writ has been
deemed the commencement : (Alston v.
Underhill, 1 C. & M. 492, 8 Tyr. 427;
Thonvfson t. Dicas, 1 C. & M. 768.
8 Tyr. 873 ; Castrique v. Bemabo, C
Q. B. 498.)
I
a. XV.]
DOOKETINO JUDOMENTS.
26
the entry of such judgment^ (a) the form of action, (b) the
amount of debt or damages recovered, the amount of costs
taxed, and whether such judgment was entered upon, or by "^
verdict, default, confession, non pros, non-suit, discontinuance, " § ^4 ^
or how otherwise r and within three months after the entry of,
... Judgment*
each judgment, the Deputy Clerk shall transmit to the princi-tobeaim
pal Clerk of the proper Court in Toronto, every such judgment- Toronto,
roll, and all papers of or belonging thereto, and such judgment
shall be also docketed in the principal office, (c) and in case if the wigi-
the original judgment-roll be lost or destroyed, so that no ex-bBt.'oopiss
emplification or examined copy thereof can be procured, a copy a*^ " '
of the entry in either of such docket books, certified by the
Clerk or Deputy Clerk having such book in his custody, shall,
be evidence of all matters therein set forth and expressed:^ §^^y
and when any such Deputy shall enter up any Judgment in D,p„ty
either of the said Courts, he may give to the party on whose ^/^^^^JJJ^
behalf it is entered, or to his legal representative, a certificate ^1^'^^^^
signed by him, of such Judgment, containing the like particu-«'»*««"«^ ^
(a) i. e. Entered under ss. ix. & x.
(6) As the form of action need not
be mentioned in the writ of Summons,
(s. zvii.) and as the writ is the com-
mencement of the action, the Clerk in
some cases will have difficulty in en-
tering the "form of action." He will be
compelled to delay that part of his
entry until declaration is filed. If
judgment be signed before declara-
tion, he may be unable to make the
necessary entry. Even after declara-
tion, since the forms of pleading in
the several actions are now so gen-
eral, (s. c.) the form of action may be
uncertain. The Clerk is also required
to make an entry containing besides
the form of action, "the amount of
debt or damages recovered, the amount
of costs taxed." By s. cxliv. of this
Act, the sum recovered may be awarded
generally by the judgment, " without
any distinction being therein made as
to whether such sum is recovered by
way of debt or damages." This lan-
guage is not consistent with that of
the sec. under consideration, and may
occasion some difficulty. It will, pro-
bably, be sufficient for the entry to be
made generally without distinction as
to debt or damages, where no such dis-
tinction is made in the Judgment Boll.
And the s. 7 of the Co. C. P. Act, (a
similar enactment) not containing the
words " debt or damages," would seem
to confirm this opinion. Both sections
are pari materia:, and have but one
common object in view — ^the preserva-
tion of evidence of judgments.
(cj It will be noted that upon trans-
mission of the judgment roll and pa-
pers to the principal office, the judg-
ment is only to be docketed. The 8
Vic, cap. 36, sec. 4, (now repealed)
required the judgment upon transmis-
sion of the papers, to be entered of
Record, and docketed. There is a
distinction : (See Laverty v. Patterson,
6 U. C. R. 641, Draper J.) The for-
mer act prescribed an entry both by
the Deputy Clerk, and at the principal
office. The present act in case of
entry by the Deputy, renders neces-
sary simply a docketing at Toronto.
J
\ i.
V H?"^
r -.
S;1
; k xfi-i
26 THE COMMON LAW PROCEDURE ACT. [s. XV.
Mrttfoatw"^^*™ as are required in certificates of Judgments given by the
• . SJtored to ^^^^^ 0^ *^® Crown and Pleas, (d) and such certificate may
fte proper \)q registered in the Begistry Office of any County in Upper
bind lands. Canada, and the same certificate and the registration ther;;of,
shall have the like force and effect in binding or operating as
a charge upon lands, tenements and hereditaments situated
within such County, as if the certificate had been granted at
^^^ § H/^^- *^® principal office at Toronto, (e)^^^
The object of the act is to secure du-
plicate entries — that one may be forth-
coming if the other be lost, or that one
or the other may be forthcoming '* in
case the original judgment roll be lost
or destroyed, so that no exemplifica-
tion or examined copy thereof can be
procured."
(d) i. e. "In the Court of (as the
case may be) I hereby certify that
judgment was entered up between
A. B., plaintiff, and C. D., defendant,
on the day of
in a plea of-
-for-
pounds, debt, (or damages) and
pounds, costs : E. T., Clerk"
(9 Vic, cap. 84, s. 13.) This certi-
ficate for the reasons given in n. (6)
supra, is not strictly applicable to judg-
ments entered up, under this Act. No
doubt a form of certificate will be
given by the Judges in the rules to be
issued by them, which will set at rest
the difficulty pointed out in that note.
Deputies under repealed Stat. 16
Vic, cap. 175, s. 6, were supplied
with these certificates by the Clerks of
the Crown and Pleas. By the new
Act, the Deputies are themselves em-
powered to sign the certificates.
(e) See Stat. 9 Vic, cap. 34, s.
13, as explained by 13 & 14 Vic, cap.
63, ss. 1 and 2 ; see also ss. 7 and 8
of the latter Statute. H When a party
purchases land upon which a judg-
ment has attached, he holds the land
subject to a right of sale, under a^.
fa. to be issued by the judgment credi-
tor: {Doe d. McPherson v. Hunter, 4
U. C. R. 449 ; Doe d. Dougall v. Pan-
ning, 8 U, C. R. 166.) The meaning of
the 13 B. of 9 Vic, cap. 34, is that
judgments shall bind lands from the
date of their registry, not with refer-
ence only to remedy by elegit, but for
the purpose of sale under a fi. fa. :
(Doe d. Dempsey v. Boulton, 9 U. C.
R. 632.) If the ^. /a. be issued at a
time subsequent to the entry of judg->-<«<i^>(
ment, plaintiff, in order to avail him- ^^*P
self of this act, should make his fi. fa.
retrospective upon the face of it. The
ordinary writ oifi. fa. speaks from its
date, and is dated when issued. It
commands the Sheriff that of the lands
and tenements of CD. he should cause
to be made, &c This intends the lands
and tenements of CD. at the time the
writ is placed in the Sheriff's hands.
But if judgment were entered and re-
gistered sometime previously, and if
C. D. had subsequently thereto, but
before fi,. fa., conveyed away these
lauds, then with a view to the sei-
zure of them, ihefi.fa. must have a re-
trospective effect. The English forms
of elegit, may in this particular be con-
sulted with advantage: (Chit. Forms
6 Ed. 179, 7 Ed. 324 ; Bag. Prac.
264 ; Tidd Forms 451.) It directs
the Sheriff to deliver to plaintiff all
such lands and tenements as the said
CD s seized or possessed of, "on
the ' day of
[the I ^ on which the judgment loas en-
tered up,"] or at any time afterwards,
any disposing power." [The very
words of Stat. 13 & 14 Vic, cap. 63,
s. 2.]
As to the estates and interests in
land upon which judgment attach — see
Stat. 12 Vic, cap. 71, ss. 5 & 13, as
amended by 14 & 15 Vic, cnp. 7, s.
5. Also see Stat. 13 & 14 Vic, cap.
SI. xvi.] ^VRIT OF SUMMONS. - 0':
And with respect to the Writs for the oommeDcemcnt of^ritsfor
personal actions in the said Courts, against Defendants, ^^s-JJJ^j^^",
ther in or out of the jurisdiction of the Courts; Be it enacted
as follows :
XVI. (/) All personal actions {g) brought in the said Mode of com- ^^ 523^ i/h
Courts where the Defendant is residing or supposed to reside sonai actions ^•<^*^ zi
within the jurisdiction thereof, (K) [except in cases where it is dant resfdw
G3, S.1 . The words nsed in the latter
enactment, are substantially the same
as the words used in English Stat. 1 & 2
Vic, cap. 100, s. 18. Under the Eng.
Stat, it has been recently held that an
heir takes a beneficial interest in such
of the descended lands of the ancestor
only as are required for the payment
of the debts of the ancestor, and that
the beneficial interest only of the heir
in descended lands is affected by a
judgment entered up agtunst him, whe-
ther before or after the death of the
ancestor. (Kinderley t. Jarvis, 27,
L. T. Rep. 245.)
It would seem to have been held,
before these Statutes, (though the
point was long doubtfiil) that an un-
registered judgment was no lien 'jpon
lands. The land formerly was only
bound from the delivery of the execu-
tion to the Sheriff: (Doe d. Mcintosh
T. McDonell, 4, O. S. 196^a leading
case upon the point, afterwards con-
firmed by Doe Auldjo v. Holliater, 5 0.
3. 739.) To remove all doubts, the
Le^slature have recently made an ex-
press declaration of the law upon the
subject. " No judgment of any Court of
Record in Upper Canada, shall create
a lien or charge upon any lands, tene-
ments, or hereditaments within the
same, or upon any interests in lands
that are now or may at any time here-
after be liable to seizure or sale, on
any execution against lands — (See 12
Vic, cap. 71, ss. 6, 13, as amended by
14 & 15 Vic, cap. 7, s. 5) — until such
judgment shall be registered in the
manner now required by law for regis-
tering judgment in the Registry OflBce
of the County or Union of Counties in
which such lands are situate :" (Stat.
18 Vic:, cap. 127, B. 1.)
(/) Taken from Eng. Stat. 15 & 16
Vic, 76, s. 2. — Applied to County
Courts. — Founded upon 1st Rep. of C.
L. Commissioners. (As to Writs of
Summons, see Report ss. 1 — 14, in-
clusive).
(gr) Personal Actions (one of the
three classes— real, personal and mix-
ed — ^into which actions have been di-
vided) may be taken to mean those
actions which arj|^^jought for the spe-
ofS^s and chattels orA«^,f»^^
cific recovery ofigo
wrongs done to the person or proper
ty. The Stat. U. C. 4 Wm. IV., cap.
1, s. 89, abolished all real and mixed
actions, except three — ^writ of Dower
— vrrit of Dower unde nihil habet — and
Ejectment. The distinction between
the two former has been practically
removed by the Act IS & 14 Vic, cap.
58. Our enactment of 4 Wm. IV. cap.
1, s. 39, is adopted from Eng. Stat. 8
& 4 Wm. rV., cap. 27, s. 36. The Eng.
act saves a fourth action which has
never been in use in Upper Canada.
(Quare Impedit) As to procedure in
Dower, see Stat. 13 & 14 Vic, cap.
58. As to Ejectment see s. ccsx. et
seq.
(ft) The territorial jurisdiction of
the Common Law Courts both of supe-
rior and inferior jurisdiction may not
be inaptly mentioned here. The Com-
mon Law Courts of superior jurisdic-
tion are two — the Queen's Bench and
the Common Fleas. The former was
the first Court established in Upper
Canada, with power to hold plea " in
all and all manner of actions, causes,
or suits, as well criminal as civil, real,
personal and mixed, arising, happen-
ing or being in the Province,^' ( Upper
Canada i) (Stat. 34 Geo. III., cap. 2,
8. 1.) Therefore, territorially con-
,. /b. *2<7
', !
1
i
'V
■', *
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' k-.
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iVfU.
28
THE COMMON LAW PROCEDURE ACT.
[s. xvi.
SffiucUon io'cnded to hold the Defendant to special bail, (i)] shall be
commenced by Writ of Summons according to the form con-
A. 1852.8. 2! tained in the Schedule (A) to this Act annexed, marked No.
(Afp. O). c.) 1, Q") and in every such Writ and copy thereof, the place and
\ county {k) of the residence or supposed residence of the party
Bidered, this Coart received Jurisdio-
tion extending over the irhole of Upper
Canada— Lower Canada then being a
separate Province. The jurisdiction
exercised or ei^oyed by the Court of
Queen's Bench, is exercised and ei\)oy-
edby the Common Pleas. (See 12
Vic, cap. 63, a. 8.) Both Courts in
ihia respect at least have elearly a co-
ordinate jurisdiction. The only class
of Inferior Courts having Common Law
jurisdiction is County Courts. As the
name signifies, each such Coiirt is cir-
cumscribed in jurisdiction to the Coun-
ty or Union of Counties in which it is
situate. (Stat 8 Vic, cap. 18, s. 2,
in connexion with Stat. 12. Vic, cap.
78, s. 4.) Then with respect to navi-
gable and other waters not included
in the boundaries or limits of any sur-
veyed county, it is enacted " that the
Lakes. Rivers, and other waters of this
Pro'rince which are not comprehended
within the defined limits of any Town,
Township or County, shall be taken
to beKparts of the Districts [Counties]
respectively, within the^eotisa side
lines of which any such lake, river, or
other water would^, and^ if such
exterior side lines were produced in
that direction to the utmost limits of
the Province" (Upper Canada) : (2
Wm. IV., cap. 2, s. 1.) On the North
the Province is bounded by the Hud-
son's Bay Territory. But even over
that Territory and over every other
part of North America not wiUiin the
existing British Colonies, and not sub-
ject to the civil government of the Un-
jS,ft»Xu> ited^our Superior Courts of Common
Law have civil jurisdiction. (See stat.
1 & 2 Geo. IV., cap. 66.) Beyond
these limits our Courts have no com-
plete jurisdiction. A peculiar and
necessarily partial jurisdiction has
been conferred upon them in regard
to persons resident in foreign parts, by
ss. XXXV., xxxvi. of this Act.
(t) The words in brackets are not
i;i the English Act. Defendants in
Upper Canada may be held to special
bail by a writ of capias, which writ is
for all purposes the commencement of
the action (s. xxii.)
(y) A reference to this Schedule, and
a comparison of it with Schedule A of
12 Vic, cap. 63, will disclose in what
respect our old praptice is superseded.
The time for appearance is ten days —
former^ it was eight. The office in
which appearance to be entered, ("by
filing your appearance, &c.") is omitted
in new form. Form of action ('< in
an action on promises, &c.") omitted.
Writ to be in force six months, (s.
xxviii.)— /our formerly: these are the
principal changes in the form of the
writ. Then there are certain endorse-
ments as to which, see ss. xxi., xxvi.
and xli. The omission of the memo-
randum. — " This writ is to be served
within six calendar months," &c., is
an irregularity .- (Patterson v. Bmhy,
5 M. & W., 621.)
{k) The expression, "Place and
County,"' means more than County
only. The word "place" is of doubt-
ful meaning, as applied to Upper Ca-
nada. Stat. 12 Vic, cap. 63, s. 22,
required "the City, Town or Town-
ship and County," to be mentioned.
The question will bo whether "place"
in the new Act, will be construed to
mean City, Town or Township, or it
more specific description, as Street
and number of House. In England,
the descriptions are usually very pre-
cise. But it may be mentioned, that
the words "place and county," were
used in £ng. Stat. 2, Wm.IV., cap. 39,
s. 1, and that our Prov. Stat. 12 Vic,
cap. 63, s. 22, was copied from the
latter Act ; but the Legislature omit-
ted the words " place and county."
WRIT OF SUMMONS.
a. xvi.]
Defendant, or wherein the Defendant shall be or shall be sup-
posed to be, shall be mentioned. (J) -
29
substituting "City, Town op Township,
and County." Even in this Act there
seems to be a Legislative exposition of
the word " place." It is provided by s.
xxi. that if the plaintiff sue out a sum-
mons in person, the name of the City,
Town, Incorporated or other Village, or
Tovmthip within which he resides, shall
be indorsed on the writ. Referring to
English authorities, as regards " place
and county," we meet with the fol-
lowing: *« Tnfton Street, in the County
of l^iiddlesex," sufficient without nam-
ing the parish: {Cooper V. Wheale, 4
Dowl. P. C. 281.) " Kent Street, in the
•bounty of Surrey," sufficient : ( Webb
V. Lawrence, 1 C. & M. 806; 3 Tyr. 906,
2 Dowl. P. C. 81.) " A. B. of the City
of London," without specifying any
place or street therein, insufficient :
(Cotton V. Satoyer, 2 Dowl. N. S. 810.)
In this case it was observed by the
Court, that " it would be sufficient to
describe a perton at of an ordinary
town in a particular County, but Lon-
don is an exception." It is presumed,
therefore, that in Canada, where all
our cities and towns, compared with
London, are " ordinary towns," a de-
scription as of a township, town, city,
&c., would be a sufficient compli-
ance with the Act. The point, how-
ever, must ere long be decided by the
proper tribunal, " Parliament Street,
in the City of Westminster," not nam-
ing the County, insufficient : {Ross v.
Gandell, 7 C. B. 766.) The place sta-
ted must be within the County men-
tioned in the writ : {King y. Hopkins,
18 M. & W. 685 ; Balman v. Sharpe,
16 M. & W. 93) "Township of To-
ronto'— tn the County of York" — insuffi-
cient, that Township being in Peel :
{ Hutchinson Y. Street etal, 1 U. C. Prac.
K. 867.) Where an objection is made to
the writ, that defendant's residence is
improperly described as being in one
County instead of another, which ad-
joins the affidavit, ought to be positive
as to the fact, and ought to aver that
there is no dispute about boundaries :
{Lewis V. Newton, 4 Dowl. P. C. 366 ;
see Jelks v. Fry, 8 Dowl. P. C. 87.)
Judicial notice cannot be taken that %
particular place is situate in a known
County: {JRippon y. Dawson, 7 Dowl.
P. C. 247. Sed qu — see remarks of
Robinson, C. J. in Hutchinson v. Street
et al, 1 U. C. Prac. R. 867.] The omis-
sion to insert the County of the defend-
ant's residence, is a mere irregularity
that should be taken advantage of
within a reasonable time: (Ross v.
Gandell, 7 C. B. 766.) Amendment of
same when allowed: (a. xzxvii.)
(I) This applies to two states of
facts: First — where the defendant's
residence, or supposed reudence, is
known, and he is known or suppos-
ed to be residing there. Second—
where ho has lelt his place of resi-
dence, and is known or supposed
to be in some other place : (per Cole-
ridge, J., in JDownes v. Oarbett, 2 D.
& L. 94 i.) It would seem useless
for defendant to deny that he resides ^
at the place mentioned in the writ, so
long as plaintiff is prepared to assert
that his supposition that he did reside
there: (See Windham v. Fenwick, 2
Dowl. N. S. 783 ; Balman et al v.
Sharpe, 16 M. & W. 93; Jelkes v. Fry,
3 Dowl. P. C. 37 ; Rippon v. Dawson,
6 Bing. N. C. 206.) Meaning of the
words "supposed to be," Bee Hesketh
V. Flemming, 80 L. & Eq. 260 Cole-
ridge J. Defendant may be supposed
to reside anywhere if there be a rea-
son for the supposition, but his sup-
posed residence must be described
correctly. (See King v. Hopkins, Al-
derson B., 2 Dowl. P. C, p. 639.)
Although a correct description of a
supposed residence will satisfy the sta-
tute, yet it is clear an incorrect des-
cription of an actual residence, is open
to objection. '(See lb. per Pollock, C.B. ^ ^
p. 638.>r Tto defendant may be de-^^f^
scribed as of his late abode : {Norman '^
V. Winter, 5 Bing. N. C. 279, 7 Dowl.
P. C. 304; Betteyes v. Thompson, 7
Dowl. P. C. 822 ; also see Cotton v.
A
80
THE COMMON LAW PROCEDURE ACT.
[s. xvii.
- T_^ o ^"^ "'""^ XVIT. It shall not be necessary to mention any form or
C»*s, % CSX 0(j tlon noed -nr • tf a • •
u-.ttx^yt^o, not be men- cause yf fiction m any Writ of Summons, or m any notice of
Kng. c. L. P. Writ of Summons issued under the authority of this Act. (m)
A. 185a. ■.3, .^ \ /
. ., r^ (-<;». Co. c.) XVIII. (n) Every Writ of Summons (o) shall contain the
"■■■'■ %m
fii!
Sawyer, 2 Dowl. N. S. 810; Simpson
T. Rammy, 6 Q. B. 871.) But he
Bhould not be described aa " now or
late of, &o. :" {Pilbroto v. PUbrow'$
Atmospheric Railway Co., 8 C. B. 780.)
It will be sufficient to describe a Cor-
poration or Public Company, as of the
place where their fiinotions are exer-
cised : (See Norman v. Winter, 6 Bing.
N.C. 279; Launcetton^ Victoria Rail-
way Co. T. Brennan, 8 Jur. 196 ; Cotton
V. Sawyer, 2 Dowl. N. 8. 810.) The de-
fendant's addition need not be inserted :
{Morris y. Smith, 2 CM. & R. 120.) The
residence of plaintiff need not be
stated : (See form No. 1, in Soh.) Nei-
ther is it necessary to state whether the
parties are suing or being sued in a
representative capacity: (1 Dowl. P.
C. 97 n.) Nor is it necessary to state
whether defendant has privilege of
Parliament, &o. : (See Cantwell v. Earl
of Sterling, 8 Bing. 174.) In actions
upon bills or notes, defendants may be
described in the process or declaration
by the initials or contraction used by
them in such instruments: (Stat. U.
C. 7 Wm. IV., cap. 3, s. 9.) The
" form" of the writ is given, but the
omission to insert or endorse in or
upon the writ the matters made ne-
cessary by the act, does not make
it a nullity : it is only an irregularity
that may be set aside or amended.
(Sec. xxxvii..) Writ of Summons gen-
erally :— (See Chit. Arch. 8 Edn. 142 :
Tidds N. P. 65 ; Bag. Prac. 71 As to
concurrent writs, see s. xxvii.
(in) Taken from £ng. St. 16 & 16
Vic, cap. 76, s. 3 — Applied to Coun-
ty Courts— Founded on Ist Rep. of C.
L. Comrs., (s 2). The Commissioners
reported that the statement of the
form or cause of action "was utterly
useless and lead to captious objections,
and to much fruitless delay and ex-
pense.'' They recommended one gen-
oral form of writ for every action.
This recommendation has been fol-
lowed by the Legislature. It is no
longer necessary "to mention any form
ov cause of action in any writ of sum-
mons, &c." But if mentioned, the writ
will neither bo a nullity, nor be liablo
to bo sot aside. Qu. la it now neces-
sary to state in notices of action re-
quired to be given under particular
statutes, the form of action which
plaintiff intends to bring ? As it is un-
necessary to mention the form ^faction
in the writ, it may be thought use-
less to require its insertion in a notice
of action. Notwithstanding the enact-
ment contained in the section under
consideration, it cannot bo well said
that forms of auilon have been abol-
ished. True it is that the same nicety
in choosing a form of action, or iii
stating it when chosen, is not now as
formerly required. But for many pur-
poses, such as Stats, of Limitations,
and some other statutes in which parti-
cular forms of action are mentioned,
the existing forms must still be preserv-
ed. Causes of action of whatever kind,
provided they bo by and against the
same parties, and in the same rights,
may be joined in the same writ : (See
8. Ixxv. and notes thereto.)
(n) Taken from Eug. Stat. 15 & 10
Vic, cap. 76, s. 4 — Applied to County
Courts. Tliis section also corresponds
with ourfttle, 1 H. T. 13 Vic, (Dra.
Rule 73,) which appears to have been
copied fVom Eng. Rule M. T. 3 Wm.
IV., Nc 1, (Jervia N. R. 84,) and is re-
medial of the old practice. It may be
noticed that the English rule extends
to "writs of capias and detainer" which
ours does not. Formerly it was held
that no more than four defendants could
be included in one writ; and that
/our separate causes of action, against
four separate defendants, might be
S. xviii.] WRIT OP SUMMONS.
names of all the Defendants, {p) and shall not contain the ^^^^,
name or names of any Defendant or Defendants in more ac- ^^^J^ „
tions than one. (o) A.miu.*'.
■* (■^PP- 0). c.)
joined in the same writ. In both re-
spects the practice is now and for
some time past has been altered.
(o) Qu. And Capias? See b. xix., n.
(s) and 8. xxi., n. (y.) In Englond, the
Summons is the only writ for com-
mencing all personal actions ; but in
Upper Canada, a capias may be used
for that purpose in certain cases : s.
xxii.
(p) Cliristlan and surname of de-
fondant ought to be correctly stated :
( Williams v. Bryant, 5 M. & W. 446.)
Defendant may bo addressed by the
name which he bears by reputation :
(lb.) In actions " upon bills of ex-
change, promissory notes, or other
written instruments," when defendant
signs by initial letter of his christian
name, designation by such initial let-
ter in process, &o., is sufficient : (Stat.
U. C. 7 Wm. IV., cap. 8, s. 9, copied
from Eng. Stat. 8 & 4 Wm. lY., cap.
42, 8. 12.) With reference to the lat-
ter, see the following cases : Sar-
gent \. Gordon, 7 D. & R. 268 ; Solph
V. Peckham, 6 B. & C. 164, 4 D. & B.
214 ; Summery. Bataon, 11 Moore 89 ;
Ru»t y. Kennedy, 4 M.& W. 586, 7 Dowl.
P. 0. 199. It is sufficient to describe
a defendant by the name which usage
has given to him, both as regards his
christian and surname : ( Williams y.
Bryant, 6 M. & W. 447.) If the ac-
tion be against a Corporation, they
must be sued by their corporate name.
(1 Tidd 121 ; also see Woolf v. City
Steamboat Co., 7 C. B. 103 ; Attorney
General v. the Corporation of Worcester,
16 L. J. Ch. 398.)
(q) This section is a copy of the
English Rule 1 of M. T., 8 Wm. IV.,
(Jervis N. R. 94) with the exception :
the original rule extends to '^writs of
Capias and Detainer." OuMule of H.
T. 18 Vic. No. 1, was also denTcd from
same source. If too many defendants
are joined, some may be now struck
out under s. Ixx. If too few, after
plea in abatement for non joinder,
plaintiff may amend^^s. ixxi. It was
decided under the old practice, that
the Court could not amend the writ
by adding a defendant: {Goodchild y. ■
Leadham, 6 D. & L. 383.) Qu. Has the
Court the power, before plea in abate-
ment, to do so now under s. xxxvii. ?
A plaintiff may issue several
writs of summons for the same
cause of action of the same date, and
upon the same praecipe, if all the de-
fendants be named in each writ : (An-
gus T. Coppard, 8 M. & W. 57 ; Crow
y. Crow, 1 D.& L. 709, and see s. xxvii.)
Tl 3 term *' you" in the writ, when
there are several defendants, is taken
to apply distributivoly : (^Engleheart v.
Eyre et al, 2 Dowl. P. C. 145.) Plain-
tiff can neither declare against a de-
fendant not named in the writ, nor
declare separately against defendants
named in the same writ : {^Pepper v.
Whalley, 1 N. C. 71, 2 Dowl. P. C.
821.) I3ut he may declare against
some only: {Caldwell y. Blake, '1
CM. & R. 249, 6 Tyr. 618 ; Knowles v.
Johnson, 2 Dowl. P. C. 653 ; Evans v.
Whitehead, 2 M. & R. 367 ; Stables ct
al y. Ashley et al. 1 B. & P. 49) The
defendants, however, who h.r/e ap-
peared may sign judgment ;. x their
costs: {Roe y. Cock, 2 T. R. 257.)
And plaintiff declaring against some
cannot afterwards declare against the
otheni in a separate action : {Caldwell
y. Blake, 2 C. M. & R. 249.) On a
joint contract by three, all must be
sued, if, within the jurisdiction of the
Court. If one is without, the remain •
iug two must be sued. One alone
cannot be sued, if there bo two re-
maining within the jurisdiction : {Cor-
bett y. Calvin, 4 U. C. B. 123.) It
was held that between bailable and
non-bailable process there was a dif-
ference — in the former it being neces-
sary for plaintiff to declare against all
the defendants named in the writ:
(Carson y. Dowding, 4 Dowl. P. C.
297 ; Woodcock y. Kilby, 4 Dowl. P.
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82 THE COMMON LAW PROe£DUR£ ACT. [s. ziz.
DatoofWrit. XIX. (r) Every Writ of Suinmon'a ^or Capias} («) issued
^"[^••j^P- under the authority of this Act, shall bear date on the
ipp.^. c.)jay on which the same shall be issued, (0 and shall be
tested in the name of the Chief Justice of the Court from
which the same shall issue, or in case of a vacancy of such
office, then in the name of the Senior Puisne Judge of the
said Court. (ti)l*^
%f
C. 730.) Qu. Does the distinoHon
still exist? S. Ixvi. appears to be re-
stricted to cases of non-bailable pro-
cess.
(r) Taken from Eng. Stat. 16 & 16
Vic, 0. 70, 8. 6.— Applied to County
Courts: originally copied from the
first part of Eng. Stat. 2 Wm. IV.,
cap. 89, 8. 12 ; and as regards writs
of summons and capias, substantially
a re-enactment of Prov. Stat. 16 Vic,
cap. 175, 8. 6.
(s) Not in English Act.
m Not to be issued unless cause of
action complete : {Alston t. Underhill,
1 C. & M. 492 ; Thompton t. Dieat,
1 C. & M. 768, 2 Dowl. P. C. 93;
Cattrique v. Btrnabo, 6 Q. B., 499.)
The date may be either in figures or
words at length : — Oogan v. Lee, 6
Taunt. 651, overruled. —(iTyr* v.
WaUh, 6 Taunt, 833 ; Butler t. Cohen,
4 M. & S. 835 ; Solomon v. Nainby, 7
Dowl. P. C. 459.) If writ dated on day
other than that on which issued, it is
irregular: (Kirk v. Dolbtf, 8 Dowl. P.
C. 766, 6 M. & W. 636.) If dated on
a Sunday, it is void : {JIanton t.
ShacUeton, 4 Dowl. P. C. 48, 1 H. &
W. 842 ; Kenworthyy. Feppiat, 4 B. &
Al. 288.) If no date, it is irregular,
not Toid : (Se9 Ball t. ffamUt, 3 Dowl.
P. C. 188.) Agreed by the Judges of
the Queen's Bench, Common Pleas,
and Exchequer, that a writ of Sum-
mons may be amended, so as to render
it conformable to the precipe on which
it is founded : (Kirky. Dolby, 8 Dowl.
P. C. 766, per Parke B.) Amendment
allowed by striking out "28rd Febru-
ai^, 1824, in the fourth vear of our
reign," and inserting in lieu thereof,
"31st January, in the fifth year of our
reign : " {Myert y. Rathhurn, Tay U.
C. B. 159.) It will not be safe to rely
too much upon this case, as the report
is very unsatisfactory. For the law
as to amendments generally, both as
regards omissions and mistakes, see
Bs. xxxir. and ccxci. of this Act. Al-
though the act gives ample powers for
amendment, still it is presumed that
the Judges will, in the exercise of their
discretion, be governed by cases al-
ready decided, 80 far as applicable. If a
defective writ be resealed, it ought to be
dated on the day of resealing : {Knight
V. Warren, 7 Dowl. P. C. 668.) A mis-
take in the year in the teste of a copy
of a Summons, the writ itself being
right, is a mere irregularity which is
waived, if the defendant does not come
to the Court before the time for ap-
pearance has elapsed : {Edwards v.
Collins, 6 Dowl. P. C. 227.) An offer
by defendant, after having been served
with the Summons, to pay half the
debt and coats, is a waiver of a mis-
take in the teste of the Summons
copy : {Briags y, Bernard, 6 Law J.,
C. P. 216.)
(u) The latter part of this section
is not new in Upper Canada : (See
Casey. McVeigh, T. T., 8 & 4 Vic,
MS. B. & H. Dig., « Capias ad Res-
pondendum" 2, and see 12 Vic. cap. 63,
s. 27.) Unless there is a " vacancy in
the omoe," the writ must be tested in
the name of the Chief Justice. His
absence from the Province does not
make it improper to teste writs in his
name : (Brett v. Smith, 1 U. C. Prac
Rep. 809, Richards, J.) In County
Courts, if there should be but one
Judge, of course writs will be tested
in his name. If there should bo for
88. XX. XX!.] WITT Of SUMMOSIS. it
XX. The Clerk or Deputy Clerk of the Crown and PlewglSi'Sbr <v.. sr.fJL.^,
who shall ustte aqy Writ, («) ehdl mark in the margin »^'|^" ck -x » ^T ^
memorandum, staiiog from what offioe and in what Countj^^^ ^^^ *
8Uoh Writ was issued, and shall suheoribe hb name to such ^ •
memorandum. (ic)
XXI. (a) B?ery Writ of Summons (or of Capias) shall be gSi w^*" ^
indorsed with the name and pUMje of abode of the Attorney P«^»««g« ^
actually suing out the same, (^) and when the Attorney actu- »P»«" •» •*•
Cevk S2m.l /l
ally suing any Writ, shall sue out the same as agent for »ny ^^her
Attorney, the name and place of abode of suol
Attorney shall also be indorsed upon ihe said Writ, («) and ini^ i^*^
other
luch other ««^.»
rUintiff iM & 1^
I
'*ir
case no Attorney shall be employed to issue the Writ, then it
any one GountT; both a Senior and a
Junior Judge, writs alionld b« tested
in tlie namo of tlie Senior Judge : (See
atat. 16 Vie., cap. 20.)
(v) t. «. The Clerk of Froeess at
Toronto, or Deputy Clerks of the
Crown in outer Counties : (s. i?.)
(w) This is a ro-euaetment of oar old
praetiee. See form ef Bomdmos and
Capi»a Sohd. to 18 Vie., eap. 68; also
see old Rule 1, H.T., 18 Vie. : «* Bveiy
writ of Sttiamoas or Capias shall state
in the nargin the 'citj, town or
plaoe,' at whioh the same was issued."
As to the-words " oity, town orpUwe,"
see remarks of Draper^ /., in OhambiT'
Iain et al r. Wood «t a/, 1 U. C. Pnic. R.
199. The city, town, or place of issue
is now unnecessary, if the oiAee and
county be stated. It was held under
Stat 12 Vic, cap 68, that the writ was
sufficiently signed, if signed in the
margin by the officer who issued it:
iSmithy. MuMell, Smithy. Beii, 1 U. C.
Cham. B. 198. Le^eh ▼. Janii: Jb,
264. But see old Bule 11 H.T. 18 Vie.)
It should be obsMved here, that under
the present practice, it is necessary
not only that the writ should be sealed,
but signed by the Process Clerk: (s.
iy.) The mem. in the margin made
necessary by s. jur., is therefbre addi-
tional. The result is, that the writ
must be signed by the Process Qerk
in all cases, and B^;ned in the mar>
gin by Deputies, when issued by them.
It is not required that the date of issue
should be written in the maiigin. The
teste of the writ is the proper eridenoe
of date of issue : (s. six.)
(x) Taken firom Eng. Stat 16 ft 16 ^
Vic, cap. 76, sec. 6— Applied to Coon-
ty Courts — substantially a re-enact-
ment of Eng. Stat 2 Wm. ir., cap. 89,
sec 12 ; and Eng. Bale, U.X., 8 Wm.
rv.. No. 9, flrom which the latter part ,
of our ProT. Stat 12 l^c, cap. 68,
sec. 27, was copied. The origin of tike
practice seems to hate been mg. Stat
2 Geo. ii., cap, 28, sec 22.
(y) f. e. The indiridual attorney,
or the name of the firm ; (Bartltjf t.
Radmhurtt, iDowl. V.C. 148 ; JEnglf
k«art y.Rfre«tal,2 Dowl.P.G.146; Pick-
man y. CoUit, 8 Dowl. P. C. 429 ; Form
of indorsement, see Sch. A. No. 1. The
name and address of the attorney is
required in order to inform defendant
where he may settle the action: (Dawet
y. S9limetuon, 6 Scott, 696.) The form
is giyen for the purpose of illustration :
{Haftnaky. Wyman, 8 Dowl. P.C. 678.)***«.«"*^
(«) Same as old Rule 9, H. T., 18 h '^^
Vic An Indorsement thus: — ''This
writ was issued by C. F. ft S. of
Nc 1 B. R., London, agents for Mr.
J. T. of Exeter, in the Countf of
D., the plaintiif within named," was <!«h^
held to be bad, ^inasmuch as it
neither showed ihat the writ was is-
sued by the Attorney for the plaintiff,
nor by the plainUff in person : (SToiy
▼. Bancoek, 4 D. ft L. 886.) Where the
pp. I
m:-.
i >
H THB OOMlfON LAW raOOIfiUBS ACT. j. [l. Xxii.
X L p '^^ ^ indorsed with a memorandum expreming thai the same
. "* A^uii,t.e:iiai been raed out by the Plaintiff in person, (a) mentioning
(4jv»a».c)the City, Town, incorporated or other Village or Township
^^kJi^if> within which such Plaintiff resides^.* \b)
OommanM-
■rat of M-
j^ XXII. (c) In all such actions wherein it shall be intended
(fhXt^ '^'"' <ioM wbtra ^ anest and hold any person to special bail, the process shall
•dtolKdd -~ . «. . ,1^ * ....
Dtflmdut
be by a Writ of Capias, according to the form contained in
writ wai iuaed ont by a London agent,
til* deMription *' agtnt for plaintiff in
p perion," was held to be insufSoient, al-
though the plftintiff was himself an
attorney : (Loj/d t. Jonet, I M. & W.
610.) Any such irregularity would now
be amendable either under s. zzxtH.
or a. oozoi. of this Act. Where the
process was indorsed only with the
name of the agent and not of the
attorney immediately employed, the
Court held this irregular, and set
aside the process : (Shephard r. Shum,
2 C. & J. 682; 2 Tyr. 742 S. C.)
Indorsement, ** M. 0. & Co., agents
for S.," without speoifying christian
names, is sufficient : {Piekman r. CoU
lit, 8 Dowl. P. C. 429.) If writ issued
by plainUff in person, actual residence
must be fl^yen : (LetoU r. Daviion, 1 C.
M. & R. 666; 6 Tyr. 198, 8 Dowl. P.
C. 272.) The object of these indorse-
ments is to- direct defendant where
to call for the particulars mentioned
in s. zzT. of tills act And it is order-
ed «< that .if the plaintiff or his attor-
ney, shall omit to insert in or indorse on
any writ or copy thereof, any of the
matters required by the said act, (12
Vic, cap. 68) or by any rule of Court,
to be by him inserted therein, or in-
dorsed thereon, such writ or a copy
•thereof, shall not on that account be
held Toid, but the writ or the senrice
thereof, may be set aside as irregular,
upon application made to the Court
out of which the same shall issue, or
to any Judge :" (Rule 10 H. T. 18 Vic.)
It is ordered that no application to set
aside process or proceedings for irreg-
ularity, shall be allowed, unless made
within a reasonable time; nor after
the party applying has taken a fresh
step after the irregularity :" (Rule 22
H. T. 18 Vic.) These two Rules hare
been annullea by virtue of the New
Rules of T. T. 1866. But s. zzzrii. of
this Act is identically the same as the
first And the second, though annul-
ledyjs. t9i> beneficial in practice to be ActaMnj
nesleoted. ~" " Affio
(a) When plaintiff in person sues
out the writ, his description should be
▼ery dear, full, and preoise. Non-pro-
fesuonal men are not so easily found
out as Attorneys of the Courts, whoso
offices are generally well-known.
(b) The English Act proceeds, '*and
also the name of the hamlet, street,
and number of the house of such plain-
tiff's residence, if any such there be."
The designed omission of these words
should be borne in mind when examin-
ing English authorities. The Judge in
Chambers is to ezeroise his discretion
in determining whether the description
is sufficient or not. If he decide the
question, the Court will rarely review
his decision: (Tadman y. Wood, 4 A.
& E. 1011.)
(e) This section is substantially a
re-enaotment of the repealed Act, 12
Vic, cap. 68, s. 24. The only variation
being the insertion of the words be-
tween brackets. It may be well here
to point out in what respect the Capias
in Upper Canada differs from the Ca-
pias in England. The Summons in
England is tiie only writ wherewi[th to
commence personal actions: (Eng. ■
But 1 & 2 Vic, cap. 110, s. 2.) A
Capias may be issued, but only as
collateral to the main proceedings:
(lb. 8. 8.) The Summons must first
issue, and then if necessary and al-
lowable, the Capias. Whereas in Up-
per Canada, the Capias so far flrom
being an auzilUary writ may, in oases
ii: w;
I. xxii.] •'- ^& WRIT or oapias. 85
Bohedule (A) to this Act annexed, and marked No. 2, (d) andg,'P*ei^
may be directed to the Sheriff of any County or Union of
Ooantiea in Upper Oanada, (e) and so many copies of such '''
process, together with every memorandum or notice subscribed
thereto, and all indorsements thereon, (/) as there may be
persons intended to be arrested thereon or served therewith,
shall be delivered with the original Writ, to the Sheriff or
other officer who may have the execution or return thereof.
a.
t ' ;. ■■■
i ■ ■
where it !■ intended to liold the de-
fendant to bail, be the first and only
prooess: (See l)fion t. MeLtan, 1 U.
0. Prao. R. 889.) After apeoisl bail
hM been put in, plaintiff may proceed
witL his action " in like manner as if
the aotion had been oommenoed by
writ of Summons, and the defendant
had appeared thereto : " (s. xzit.)
This will explain why our Legis-
lature, in adopting many of the
English proTisions, have, after the
word "Summons," generally added
<'or Writ of Capias." Both writs in
Upper Canada, as regards the oom-
menoement of aotion, being upon an
equal footing. The one to be used in
non-bi^able, the other in bailable ac-
tions.
(</) The form in the Schedule (which
see) follows very closely the form
given in No. 2 Soh. to 12 Vic, cap.
68. It is worthy of notice that even
tiieform of aotion, (<'inan action on
promises, or debt^ &c.,") though un-
necessary in a Summons, (s. vii.) is
retained in the Capias : (See Schedule
A No. 2.) But it must be recollected
that these forms are given as much for
illustration as any other purpose. The
retention of the words " on promises,"
jtc, shows that as a general rule a
Capias now can only be sued out as of
right for a money demand or *<debt,"
in the popular sense of that word.
Between the form given to this Act,
and the one in 12 Vic, cap. 68,
Uie following may be mentioned as
the particulars in which the^ differ.
The time for special bail is 'W<n
days"— not eight, as under 12 Vic.
This agrees with the time for defen-
« r
dant's appearance to non-bailable pro-
cess: (Sch. A, No. 1.) Defendant,
instead of being called upon to put in
"bail to the action," is required to
put in bail " according to the warning
hereunder written or indorsed." This
is more a dilTerenoe of form than of
substance. Writ to be returned im-
mediately after the execution thereof;
or if the same remain unexecuted,
(and shall not bo renewed according
to law,) then to be returned, &o. The
words in parenthesis are new, and evi-
dently relate to s. xxviii. of this
Act., which prescribes the time and
mode of renewal. Writ, if luexe-
outed, to be returned at the expiration
of Ax calendar months— /our under 12
Vic. Here, too, a resemblance to
writs of Summons is preserved : (See
Soh. A, No. 1.)
(e) Writs of Summons may be served
in anv County of Upper Canada : (s.
xxxi.) Testatum writs are aboUdied.
So as regards executions ; they may
be directed to the Sheriff of any
County without reference to the County
in which the venue is laid. Pro forma
or Ground Writs are abolished: (s.
olxxxriO
(/) The orij^al writ, with every
memorandum or notice subscribed
thereto or indorsed thereon, and copies
with like memoranda subscribed and
indorsements, shall be delivered to the
Sheriff, &o. Qu. — If matter required
to be subscribed on an original writ is
indorsed, or vice vena, would the writ
be bad ? (See Chamberlain et al y.
Wood et al, I U. C. Prac. Rep. 199,
Draper J.) It would seem as regards- <
a copy, that if it have at the foot m
i,.
I.
: 1 ■; ■■
r
W'
ti
86 THX COMMON LAW HMOBDUBE ACT. [s. Zzii.
EzMiittoaof/0'\ iiQ^ «}iQ shall upon or immediately vSiex the ekecution of
such process^ cause one such copy to be aeliverea to every
indorae- person UDon whom such process shall be executed by him. whe-
m«iit thereof*^ . '^ . n.i,», « i n • a t. -nr •
u) on writ ther by service or arrest, (a) and shall indorse on such Wnt
t*4,xWX9 ^^^ ^^ ^^ ^^ ^^ execution thereof, whether by service or
arrest; [within three days at furthest after such service or
V.S).S<c%i<j'^77. ajjest,] (ty-kud if any defendant be taken or charged in cus-
tody upon any such process, and imprisoned for want of sure-
ties for his appearance thereto, the Plaintiff in such process
copy of the indortement ohtlie ori^^oal
writ, there would be no irregalarity:
(lb.) **t «t^'*' /• ^^ 0.
(ff) Sheriff or Other Offietr, |-e.— The
process may be deUvered to the Cor-
oner, if there should be any just ex-
ception to the Sheriff: (Jerris Cor.
60.) Upon the death of the Sheriff the
Deputy is entitled to act until the ^>-
pointment of a successor: (Stat U.C. 8
Win. IV., cap. 8, s. 28.) Process when
intended for the Sheriff should, pro-
perly Bpeaking,be deUvered to him at his
office. ' ' The Sheriff of each County or
United Counties in Upper Canada, shall
keep his office open each day, except
Sunday, Cristmas Day, Good Friday,
and the Birth-day of the SoTcreign,
firom ten o'clock in the forenoon until
:four o'clock in the afternoon, and dur-
ing an tiiat time the sud Sierif^ bis
iDrouty, or some Clerk competent to
do Duuness for him, shall be present
'to trnnsaot the business of the office :*'
(St. 16 Vic, cap. 175, s. 14.) This
set does not except "Easter Honday,"
: and '* any day appointed by Boyal
'Proclamation for a general fast or
- thanksgiving," as in the case of Depu-
'ty Clerk8 of the Crown : (s. zUL)
(A) It is sufficient to serve a oopy of
the writ imfiudiaU^ •fUr the arrest:
(JTe^iVferT.jrar^M, 1 U.C.Prae.R.iH)5.)
<lf a party when arrested, refose to re-
ceive a copy of the writ offered to hhn,
he will not be allowed aftenrardi to
urge as a ground for his discharge,
' that a copy of the writ was not left for
him : {HethermgConr. W^km etal,lV.
C. Cham. B. 168; MeJfider v. Mariui^
1 U.C. Prac. B. 206.) It has been the
practice, simply to serve a copy of the
Capias on defendants who are n&c in-
tended to be held to bail. The prac-
tice is retained by this Act. (See last
proviso to this section.) With respect
to the time, place, and mode of ser-
vice of writs of summons, see ss. xzxi.
and xzxiv. of this Act, with notea
thereto.
(0 ComirmatoryofoldR. 8, H. T.
18 Vic. " Hie Sheriff, or other offi-
cer to whom any writ of Cq>ias shall
be directed, or who shall have the
execution or return thereof, shall,
within three days after the execution
thereof, whether by service' or arrest,
indorse <m such writ the true day of
the execution thereof, and in default
thereof, ehall be liable in a eummary
way to make eompmeaiiem for any da-
mage vhieh mayretvlt from hie negleet,
ae the Court or a Judge thall direct."
The words in italics, though to be
found in the B«le quoted, are not, it
will be perceived, copied by this Act
Tlie Courts no doubt would punish a
Sheriff for audi miseondnet, compel
him to make the necessary indorse-
ment, and pay the oosts of application.
Besides, at common law it is dear that
a party damified by the misconduct
would be entitied to claim f)rom the
Sheriff, ftiU compensation in an action
on the case. There is also the statu-
tory remedy against him and his sure-
ties under their covenant: ^St 8 Wm.
IV., cap. 8, B. 2.) It was in one case
held that the omission to put the in-
dorsement upon the writ, as directed
-■a
8. xxii.]
VBXr OF CAPIAS.
m
nay, (J) hffate the end of next term after the arrest of ^uolijj^'^"*
Defendant, deolare (X) against sach Defendant and proceed gJ^^J^JT^'L
thereon, in the manner and according to the directions con- jmpriaoned , ^
tained in the third and fourth rules of the Court of Queen's uii. t <
Bench, made in Easter Term, in the fifth year of Her Majesty's ^J*^ f^asf eA at^s*
Beign : (2) Provided always, that it shall be lawful for die - r '
Plaintiff or his Attorney, to order the Sheriff or other officer Soma Defen-
to whom such Writ shall be directed, to arrest one or more of twamrtS,
the Defendants therein named, and to serve a copy thereof on^t.°
one or more of the others, which order shall be duly obeyed
by this ml9 of Coart, was hq ground
for setting aside the arrest : (MeNider
T. Martin, 1 U. 0. Prao. Bep. 206.)
Qu. Wliether the bailiff who makes thfa
serTice is the proper party to indorse
the writt He is not the person
who has the ezeonUon and return
of the writ : (lb.) If there be seToral
defendants upon whom process has
been Herred or executed On different
days, the indorsement should oonfonn
to the ihots. See as to similar endorse-
ment required on writs of Summons :
(s. xxzii. and notes thereto.)
(/) "ifay," construed "shali:"—
iSee Tyson t. McLean, 1 U. G. Prao.
lep. 889.) This eonstruotion is owing
to the reference, subsequently (note I)
made to Rules of Court that make it
imperative to declare before the end of
the term next after the arrest : (R.)
And this rule in its turn accords with
the leaning of the Courts in favor of
the liberty of the subject
(k) Merely filing the Declaration is
not " Declaring," within the meaning
of this section. It must be served:
(See l^son v. McLean, ante P. C.,
Rioharda, J., page 344.)
i.dKu4^ (I) Bvi.i8. — <'In all cases in which
'Vst^a defendaut shall have been or shall
be detained in prison, on any writ of
Capias, or being arrested thereon,
shall go to prison for want of bail ;
and in all oases in which he shall have
been or shall be rendered to prison
before declaration, on any such pro-
cess, the plaintiff in such process thall
declare against such defendant I}efore
the end of the next term after such
arrest or detainer, or render and no-
tice thereof ; otherwise, such defend-
ant sliali be entitled to be discharpd
firom such arrest or detainer, upon
entering a common appearance, un-
less farther time to declare shall hare
been given to such plaintiff by rule of
Court or order of a Judge."
)C RviB 4. — "A copy of every de-*-"^
daration and suhsequent pleading, ^
shall be served on the opposite party,
whether the case be bailable or non-
bailable, and whether the action be
agiunst any person having privilege
or otherwise, and as well when the
plaintiff has appeared for the defend-
ant under tiie Statute, as when the de-
fendant has appeared in person or by
Attorney."
See the history of these Rules : —
{Tyton V. McLean, ante P. C, Rich-
ards, J., page 842.) The object of
Rule 8, is to hasten proceedings
against prisoners in gaol. Therefore
if dofbndant be on bail, plaintiff is not
bound to serve his declaration " be-
fore the end of the next term after the
arrest" He, in such case, would be
entitied to the usual time for that pur-
pose: (QUnn V. Box, 8 U. G. R. 182.)
The first part of Rule 8 applies only
to the oases of ipersous who having
been previously in custody are '* de-
tained" in prison upon a writ subse-
quentiy issued. The next clause ap-
plies to the cases of persons arrested
on a writ of Capias, and who go to
prison for want of bail : (/&.) If de-
«A6
■ ■
m
" ,1
THE COMMON LAW PBOOEDURE ACT.
[S.
XZUi.
Elbetof M
vice as to
tluiM not
siTMted*
AffldtTlt for
by such Sheriff or other officeiy^m) and such gervice shall be
of the same force and effect as the service of the Writ of Sum-
mons hereinbefore mentioned; and no other, (n)
^{^in. (o) H^h'td]^ n(J^>be kncfiil te4a»ie.of^sues>itt-an7
■j i J
fendant be snpersedable because a
declaration has not been delirered to
him in dae time, subsequent offers of set-
tlement will not prevent him from being
discharged: {I^ton v. McLean, ante^
(m) If it be not imperative under this
section that the order here mentioned
should be in variting, sheriffs will, for
obvious reasons, expect that the direc-
tion should not rest on a mere verbal
communication. The written order
may be oonvenientlj indorsed on the
capias and should be signed by the
pldntiff or his attorney. Where, under
the old practice, the action was com-
menced against several defendants by
Summons, and after commencement
of action, plaintiff desired to arrest
one of the defendants : Held that he
might do so by Capias, without serv-
ing more than the defendant to be ar-
rMted: {Chamberlain et al v. Wood
et al, 1 U. G. Prac. B. 199.)
(n) Ss. Ix., Izvi., cxlii., etc.
(0) Amendment and consolidation of
repealed Stat. 2 Oeo. IV., cap. 1, s. 8,
and 8 Vic, cap. 48, s. 44 — AppUed to
County Courts.
It thall not be lawful to ittue or tu^
out, ^e. <' Issue" probably refers to
the Clerk. « Sue out," to the plaintiff
or his attorney.
And that the amount thereof, J^e. —
t. e. of the cause of action. This ex-
pression is not strictiy correct. It
will it is presumed be taken to mean
the amount due in retpeet to the eauae of
action. Plaintiff though he may have
a cause of action for an amount ever
so large, is bound before suing out a
capias, to give credit to defendant for
set offs and other like credits : (As to
which infra.)
Being in no caie lett than ten pounds,
4*6. Qu. Is a plaintiff suing for £10,
who commences his suit by capias,
in either the Superior Courts, as of
right entitied to full costs ? Division
Courts have no jurisdiction to hold to
bail. But it is different with County
Courts. They may hold to bail "in all
cases within their jurisdiction:" (Stat.
8 Vic. cap. 18, s. 14.) They have
jurisdiction « of all per tonal octiont
where the debt or damaget claimed is
not more than £50 ; and of all cauaea
or <uite relating to debt, covenant, or
contract, where the amount is liqui-
dated or ascertained by Jie act of the
parties or the signf.ture of the
defsndant to £100.' (Co. C. P.
Act, 8. 20.) Then it is enacted,
that in any suit brought in a Supe-
rior Court, of the proper competence
of the County Courts, "no more costs
shall be taxed against tiie defendant
than would have been incurred in the
District (County) Court in carrying on
the same action,", unless the Judge
who presides shall certify, &o. : (8
Vic, cap, 13, 8. 69.) There never has
been a doubt but that this enactment
applied to bailable as well as non-
bailable actions. It could not have
been the intention of the Legislature
by inference to repeal, supersede, or in
any way affect an enactment so impor-
tant and so well established. The diffi-
culty above suggested, however, must
be set at rest by legal abjudication.
Plaintiff at all events should take good
care not to arrest for a larger sum than
is actually due to him, after giving to
defendant all necessary credits. It is
enacted by Stat U. C. 49, Geo. III.
cap. 4, s. 1 : " That in all actions to
be brought in Upper Canada, from and
after the passing of this Ac^ wherein
the defendant or defendants shall be
arrested or held to bail, and wherein
the plaintiff or plaintiffis shall not re-
cover the amount of the sum for which
the defendant or defendants in such
action shall have been so arrested and
held to special bail, such defendant or
defendants shall be entitled to costs of
8.ZZIU
suit, to 1
tom of t
shall ha
shall be
faction c
tion is 1
made in
upon het
that the
action hi
bable cat
or defen€
to specit
aforesaid
Court sh(
de? of th<
costs shal
or defen
plaintiffs
der being
abled froi
for the su
tion, unU
and then
same shal
taxed cost
dants in s
sum recov
be less th
«f the de
tkxed as
fendant
tied, aftei
recovered
in such ac
her or the
said, to
costs, in
defendant
•Q other I
For the
see B. & !
The sect
£ng. Stat
Althouj^
England,
1 & 2 V
ttoally in(
Noble, 8 E
on it will
" That
defendant
4md ktldi
""*'%Jte*<
8. ZXlll.J
afvidatit to hold to bail.
m
onoh yriti nf ^*p**fj un less a tn-affidayit-Jbe firsi- made by (rateb^jj^ns oat (licJ»Mtx^e^-€y
cspiu.
8uit, to be taxed aooordtng to tbe cus-
tom of the Court in which such action
shall have been brought, proyided it
shall be made to appear to the satis-
faction of tibe Court in which such ac-
tion is brought, upon motion to be
made in Court for that purpose, and
upon hearing the parties by affidavit,
that the plaintiff or plaintiffs in such
action had not any reasonable or pro-
bable cause for causing the defendant
or defendants to be arrested, and held
to special bail in such amount as
aforesaid; and provided that such
Court i^all thereupon, by rule or or-
der of the same Court, direct that such
oo6ts shall be allowed to the defendant
or defendants, and the plaintiff or
plaintiffs shall, upon such rule or or-
der being made as aforesaid, be dis-
abled from taking out any execution
for the sum recovered in any such ac-
tion, unless the same shall exceed,
and then in such sum only, as the
same shall exceed the amount of the
taxed costs of the defendant or defen-
dants in such action ; and in case the
sum recovered in any such action shall
be less than the amount of the costs
«f the defendant or defendants to be
taxed as aforesud, tiiat then the de-
fendant or defendants shall be enti-
tled, after deducting the sum of money
recovered by the plaintiff or plaintiffs
in such action, from the amount of his,
her or their costs to be taxed as afore-
said, to take out execution for such
costs, in like manr.eras a defendant or
defendants may now by law have costs
{q other cases."
For the decisions under this Stat,
see R. & H. Dig., p. 135. Costs IV. (1.)
The section itself is copied from
Eng. Stat 48 Geo. III. cap. 46, s. 8.—
Although the English Stat has, in
England, since the passing of Stat.
1 & 2 Vic, cap. 110, become prac-
tically inoperative : {Rickettt et al v.
Noble, 8 Ex.521,) yet, the decisions up-
on it will be useful in Upper Canada.
«« That in all actions, ^c, where if'
defendant or defendanla shall be arrested
4uid held to special bailf" — ^there must
be an arrest, as well as holding to bail :
(Patet V. PiUinff, 2 C. & M. 874
4 Tyr. 281; Amor v. Blofield, 9
Bing. 91, 1 Dowl. P. C. 277 ; Jamet ^
V. Askew, 8 A. & E. 851; Roiiuson
V. Powell, 6 M. & W. 479.) Where
defendant was arrested and imprison-
ed, held that this was an arrest and
holding to bail, within the meaning
of the Statute : {JPretdy v. MeFarlane^
1 C. M. & R. 819; 6 Tyr. 855;
Ricketts et al v. KobU, 8 Ex. 521, Ace,
U.C. Mc6reffory.8cott,Ta.y.TJ.C.IiM.\A^ as^f, vt-O
" Or wherein the plaintiff or plaintiffs
shall not recover." — The recovery must
be by judgment, and therefore, when
defendant paid into Court a less sum
than the sum sworn to, which plaintiff
accepted, held that the Statute aid not
apply: (Brooks v. Rigbjf, 2 A. & E. 21 ;
Butler V Brotm, 1 B. & B. 66 ; Rowe
V. Rhodes, 2 C. & M. 879.) It might
be different if plaintiff replied dam-
ages ultra, and obtained a verdict less
than the sum sworn to: (See Taylor
V. Rolfe, 18 L. J. Q. B. 89.) The Sta-
tutes do not apply where a compro-
mise is made : {Linthwaite v. Balling^
2 Sm. 677.) Or where there is a vol-
untary reference to arbitration: {Keene
V. Deeble, 8 B. & C. 491 ; Payne r.
Acton, 1 B. & B. 278; Sherwood v.
Tayler, 6 Bing, 280.) Contra.— It
a verdict be taken subject to a refer-
ence: (^Turner v. Prince, 6 Bing. 191 ;
Jones V. Jehu, 6\'Doyrl. P. C. 180;
Aec. U. C. Kendrew v. Allen, T. T.,
4 & 5 Vic, MS. R. & H. Dig. Cost«
IV. (1) 4 : Nicholson v. Allen, M. T.,
6 Vic MS. lb. Case 5 : McMikiny v.
Spencer, H. T., 6Vic JfS. Jb. Cased.)
Or if the arbitrator having power, order
judgment to be entered: (Holden v.
Raith, 4 N. & M. 466.) But if the
submission stipulate that the costs
shall abide the event, then the Statute
will not apply: (Thompson v. Atkin-
son, 6 B. & C. 198.) And if the arbi-
trator having the power, does not
make any award as to costs, the Court
will not assist either party under this
Statute: (Greenwood v. Johnson, S
Dowl. P. C. 606.)
L I
:,■
<'. s
41 THE COMMON LAW PKOOIDVRK ACT. [s. ZZlii.
PlKmtifi^JuaiiBn«nt0riigeBtn>^-ilM^ of action,
1
•»
** Provided iha* it ahall be made
to appear to the eatie/attioH of the
ifourt m i»AieA tueh action m brought."
— Defedchuit wist apply to the Gowt
in whioh the aetion was eoBimeiM«
•d: (Coetelh r. Corlttt, 4 Bing.
474; Maitdkg T. Levjf, 8 B. & C.
687.) And before taxation of costs:
LBeHnie r. toreton, 8 Boirl. P. G. S26.>
If the aetioB be oommenoed in aii vtL'
ferior Court, and afterwards removed
into a Bopetior, the latter Conrt win
mot interfere nnder the Statute; {Cot-
iMo T. Cetlett, 4 Bing. 474 ; Handley
V. Levy, 8 B. & C. 687 ; Jamee t.
Jftmson, 1 Dowl. P. C. 841 ; Connet
^:Wateon, 2 Dowl. P. C. 139.)
^'AndupoH heating tlepartiee bjf affi-
davit.**—Th» affidavit must fltate that
defendant was Arrested without leason-
HbleorprobaUe cause: (U.C. XeJhtoth
t. White, t*y IT. C. B. 67,) and most
ibow for what snm Plaintiff recovered
his verdict: (U. C. Pourell v. Oott, 1
V. C. K 415.) Bat affidavits wUl not
be received to impeach the verdict:
(Tipton y. Oarduer, 4 A. & £. 317;
Twite V. Oeborne, 4 DoWl. P. C. 107.)
Befwenoe may be made to the Judge's
Ifotes : (Van Jiyvel v. ffunttr, 3 A. &
£. 248.)
« 21UU the pUnntijf m euch action
)utd not anif reaeonable er probable
eauee /er tauting the defendant or
difeaclante to be arretted, and held to
tfwitd bail." — The onut is on defendant
to show that plaintiff had not reason-
able ground for arresting for the
amount sworn to : (£d«ardt v. Jonee,
2 M. & W. 414; White v. Priekett,
6 Dowl., P. C. 446; Day v. Clarke,
6 Bing. N. C. 117.) If plaintiff acted
on a conscientious persuasion that
the sum sworn to was due, defendant
will not recover his costs of defence :
(Clarke v. Cooke, 4 Bipg. N. C. 269 ;
Spooner v. Dankt, 7 Bing. 772 ; Man-
teU V. SouthaU, 2 Bing. N. G. 74.) De«
fendant ie only entitled to costs where
the plaintiff arrests him for a sum
■Mterially larger than the amount
due: (Shervooi v. Tayler, & Bing.
280; Rop«r v. Sheatby, 1 C. & M.
496.) The effect of the Statates of Set
Off, is to make the balance really
dae, the debt for which plaintiff
ought to arrest: {Dremfjleld. r. Archer,
6 B. ft A. 618 ; Auttin v. Debnam, 8
B. ft G. 189 ; Aehton v. NaM, 2 Dowl.
P. C, 727 ; SUme v. Jaequeet, lb. 800 ;
Beare v. Pinkut, 4N. ft M. 846 ; Fort-
ter V. Wetton, 6 Bing. 627.) The cases
followiiig may be referred to upon the
subject of reasonable or probable
cause : Day v. Pieton, 10 B. ft €. 120 ;
Ruetell V. Atkineon, 2 N. ft M. 667 ;
Oomptrtt V. Denton, 1 Dowl.F.C. 628 ;
Lord Huntingtower v. Meeley, 7 D. ft
R. 869 ; Mobinion f. lUtam, 6 B. ft A.
661 ; Griffitht V. Pointon, 2 N. ft M.
676; Linley v. Battt, 2 C. ft J. 669^
Stovinr. Taylor, 1 Dowl P. C. 697 (n) ;
Pteedy v. MeForlane, 1 C. M. ft R.
819; White v. Priekett, 4 Bing. N. C.
287 ; Shatwat v. Barlow, 8 Dowl. P.
C.709 ; Ballantyne V. Taylor, 6 A. ft £.
792. And with respect to the sub-
ject generSlly, see the following oases:
Talbot V. Hodeon, 2 Marsh 627 ; Cam-
mack V. Qregery, 10 East 625 ; Jamte
V. Ftancet, 6 Price 1; Glenville v.
Hutchint, 1 B. ft C. 91; Tipton v.
OardnM-, 4 A. ft S. 817.
The words of the enactment here
annotated are the same as stat. 8 Tic,
cap. 48, 8. 44, upon whiA numerous
decisions have been delivered by our
Courts. It is proposed to group these
decisions and others taken from tiie
English books, under the foUow^g
distinct heads: —
1. Sight to arrett, and liability to be
arretted. — Residents of Upper Canada
are dearly entitied to arrest their
debtMTs, and are as dearly liable to be
themselves arrested. But the pro-
priety of extending eitiier the privi-
lege er the liability to foreigners, ha»
been much questioned. The legality
of an arrest bv a foreigner, or of a
foreigner on civil process, has been
much doubted. Where an affidavit to
hold to bail was made while the debtor
was in the United States, and was left
in this Province*in readiness in case
s. zzui
he shou
arrest a
Rep. 17
belief th
Provinci
and has
and wh
made in
he will
Spirit o
and an
the Coui
the plai
habitant
had con
witii the
few houi
plaintiff
arrested
held to \
ton, M. 1
"Arrest'
ties have
allow an
ces, won
upon our
of debtoi
the case
another
pose of
Burnt J.
Cham. B
this case
Draper,
red with
the rule
«e«.ai^termsA .
A«^ law that
arrest tli
here on t
tending i
country ;
ply to th
of Upper
a residen
for a tei
Smith, 1
There wa
to believ
ed from '.
commeno
same cau
S. Xxiii.] '. ATFIDAYIT TO HOLD TO BAIL. t 4P
>«d"lBfct- th o a mo n nt 'iirereof (being in-no easei^Mt&an ten
he Bhonld oome otot, the Court set the
arrest aside : {Cogent ▼. Eitehie, Dra.
Bep. 176.) To make an affidavit of
belief that the defendant will leave the
Frovinoe, when he is already out of it,
and has been so for a length of time ;
and when that affidavit is evidently
made in the hope and expectation that
he will return to it, is contrary to the
Spirit of the Laws of this Erpvince.
and an evident abase of thejStXS'oi
the Court : (Per. Cur. lb.) Where both
the pluntiff and defendant were in-
habitants of a foreign country, and
had oome together into this Province,
with the intention of remaining only a
few hours, and daring their stay here,
plaintiff made the usual affidavit, and
arrested defendant ; the arrest was
held to be regular: {Raymrf. Hamil-
ion, M. T., 2 Vic, MS. R. & H. Dig.,
"Arrest" IV. 2.) Subsequent authori-
ties have much doubted this case. To
allow an arrest under such circumstan-
ces, woold now be considered a fraud
upon our laws. <' Our law for the arrest
of debtors, ought not to be extended to
the cases of one foreigner following
another to this country for the pur-
pose of maUng the arrest :" (Per
Burnt J. itklYear v. Ferguton, 2 U. C.
Cham. B. 144.) The learned Judge in
this case mentioned that Robinson C. J.,
Draper, J., and Sullivan, J., concur-
red witii him in a previous case, where
the rule was laid down in similar
kcu^termsA Although it is now established
\^ti.(J law that one of two foreigners cannot
arrest the other, who happens to be
here on some temporary business, in-
tending dearly to return to his own
country ; the rule was held not to ap-
ply to the case of pldntiff, a resident
of Upper Canada, arresting defendant,
a resident of England, who came here
for a temporary purpose: {Brett v.
Smith, 1 U.C.Prao.B.809; Richards,!.)
Thwe was besides in this case reason
to believe that defendant had abscond-
ed from England, to avoid proceedings
commenced against him there, for the
same cause of action : {lb.) Neither the
circumstances under which the debt
was contracted, nor the conduct of the
debtor upon his liability after it was
contracted, can be i t^ems tried upon
affidavit : {Frear v. Fer<juton, 2 U. C.
Cham. R. 144.) The practice is now
different in England : (Pegltr et al v.
Hitlop, 1 Ex. 487.)
2. A0idant— Title.— l\%\t of Court
need not be inserted in affidavit at the
timeof themakingthereof; maybe add-
ed when suing out the process : (See last
proviso to section under consideration).
Where an affidavit was intituled " In
the District Court" instead of *' In the
Queen's Bench ;" held under old prac-
tice to be irregular, not void: (Sander-
ton V. Cumminge, M. T. 8 Wm. IV., MS.
R. & H. Dig., " Arrest" 1. 24.) Where
there is a cause pending, as under s.
xlii., the affidavit to issue a capias
must be intituled in that cause : (See
Brown v. Palmer, 8 U. C. R. 110.)
The title should, it seems, contain ttie
christian and surnames of all the parties
to the action : (see Anderion v. Baker,
8 Dowl.P.C. 107 ; Cohen v. Fi«ta»i«, 8
Dowl.P.C. 418; Doe d. Pryme v. Roe, 8
Dowl. P. C. 840.) Initials or contrac-
tions as a general rule, are not suffi-
cient An exception is created by
Statute, in action upon bills of ex-
change, promissory notes, or other
written instruments, itny of the par-
ties to which are designated by an ini-
tial, letter, or letters, or some contrac-
tion of the christian or first name
or names, as. used in the instrument :
(Stat. U. C. 7 Wm. IV., cap. 8, s.
9.) In these oases it shall be suffi-
cient to designate such persons in the
affidavit, by the same initial letter or
letters, or contraction of the christian
or first name or names, as used in the
instrument. {lb.) The affidavit pro-
perly speaking should show that such
initials have been so used in the instru-
ment, &c. : {Hubert v. Wilkini, 6 Dowl.
P. C. 189.)
8. Deponent. — The true abode and
addition of deponent should be stated in
an affidavit: {CobbettT.Oldfield, 16 M.
\\
m-
Vh
THE COMMON LAW PBOOEDTRX ACT. [0. Xziu.
poQRcU) is juiStly-and^ truly dtte-te the Haintiff ; and also
^ «r. a. «UL
A BOO
& W. 469 ; Hdtt r. Brtuh, T. T., 8 &
4 Vic, MS. R. & H. Dig., "Arrest" I.
81.) Under our rules, of T. T. . 8 & 4
Wm. IV .. and E^JLJ IKHLiy., It i«
not necessary in affidavits made after
aotion brought to state either tlie de-
ponent's abode or degree. The affidavit
ought to be entitled in the cause, and
deponent described as "Plaintiff,"
or " Defendant" in such case. (Ewinff
et al ▼. Loekhart, 8 U. C. B. 248 ; see
also Angel ▼. Ihler, 6 M.& W. 168 ; Ly-
manr.Brahron, 1 U.C. Cham. B. lOJ .)
The rules in question are as follow:
" It is ordered that every affidavit
shall contain tiie christian name or
names and surname of the defendant,
written at length, (with his place of
abode and addiUon.") (T. T. 8 & 4
Wm. IV.) "It is ordered that the
rule o: this Court of T. T., 8 & 4 Wm.
IV., which requires that every affida-
vit shall contain the christian name or
names and surname of the defandant,
written at length, (with his place of
abode and ad£tion, be rescinded, so
far as respects the place of abode and
addition of the defendant:" E. T. 4
Wm. IV.) The first of these rules is
the same in effect, though not exactly
in words, as that of M. T. 16 Car. II.
in the King's Bench, England. The
only object in contemplation by the
Court when firaming these rules, was to
identify the deponent : (Ewing et al v.
Loekhart, 8 U. C. B. 248.) The rules
only apply to a case when there is a
"plaintiff" and "defendant"; but as
there cannot, strictly speaking, be
either until after the issue of first
process, which is the commencement
of an aotion, the case of an affidavit
made upon which to issue first pro-
cess, (Capias) would not seem to be
effected. The affidavit should set
forth deponent's name in words at
length: (Richardion v. Northrop, Tay.
U. C. B. 462.) It should contain all
the christian names of deponent in
ftill: {Weetover v. Burnham, T. T., 8
& 4 Vic, MS. R. &. H. Dig., " Arrest"
I. 29.) An affidavit described the de-
ponent as "Edward Charles Pownall,"
but the signature to it was " Charles
Edward Pownall," sufficient: {Hanth
V. Clementt, 11 M. & W. 816.) If affi-
davit be made by a person not a party
to tiie cause, it is clear that both his
residence and addition or degree should
be stated. This holds good, equally
if deponent be the "servant or
agent " of the plaintiff. Cases as to
the sufficiency of statement, addi-
tion, or degree, have arisen in Eng-
land — " Merchant," " Manufacturer,"
&c., sufficient: (Vattier v. Alderton,
8 M. &S. 166.) So "late Clerk to,
&c. :" {Simpson v. Drummond, 2 Dowl.
P.C.478.) So "Agent of the Plaintiff in
this cause :" (Luxford v. Oroombridge,
2 Dowl. N. S. 882.) So "B. J., late
of the City of W., Victualler, but now
of, &c. :" {Angel v. Ihler, 6 M. & W.
168.) "Assessor," insufficient: {Na-
thany. CoAen, 8 Dowl.P.C.870.) "Act-
ing as Managing Clerk, &c." or " Arti-
cled Clerk, &o.," if not stated to whom,
or in what profession,insufficient: {Re-
gany. Reeve, 4Q. B. 211.) If so stated,
sufficient: {Alexander v. Milton, 2 C.
& J. 24.) An affidarit to ground a
capias may be made by the "plaintiff,
his servant, or agent." Donbtftil whe-
ther it should show that deponent is
or is not the servant or agent of plain-
tiff. In England it is sufficient that a
positive indebtedness should be sworn
to by some person without showing his
connexion with the plaintiff. Botnone
of the English Acts declare as ours
does that the affidarit shall be made
by the plaintiff, "his servant or agent:"
(See Chamberlain et al v. Wood et al, 1
U.C.Prac. B. 196, Bums J.) Where it
was averred in the declaration against
the defendant for a malicious arrest,
that by virtue of the affidavit of the
defendant, he the defendant malicious-
ly caused a writ of Ca. Sa. to be sued
out, and arrested the plaintiff, when he
had no probable cause for beliering
that the plaintiff had made any fhradu-
lent assignment of his property ; and
that he further maliciously caused the*
B. Zziii.] AFVIDAVIT TO HOLD TO BAIL.
that suo^ PHint^ his^fifirvaojl) or ageni, hath good reason to
48
writ to be endorsed and delivered to
the Sheriff, &c. ; held that these facts
if found by the Jury, constituted in
themselves the agency of the defend-
ant: (Davia r. Fortune, 6 U. G. R.
597.) An agent, though he do no
more tl^n make the affidavit, if mali-
ciously done, is liable to an action on
the case, for causing the writ to be
sued out, and to be endorsed and de-
livered to the Sheriff, and the defend-
ant arrested thereon, &c. : (Davis y.
Fortune, 6 U. G. R. 281.) But where an
action for malicious arrest, is brought
against the agent who made the affida-
vit, the mere production of the affida-
vit is not sufficient evidence. It must
be proved that he made the affidavit,
and that he was plaintiff's agent, un-
less such agency be alleged in the
affidavit made by him. (McLaren
▼. Blaekloek, 14 U. G. R. 24.) Such
an action cannot be mnintained
against a principal for an arrest made
upon his agent's affidavit, alleging his
own apprehension that the defendant
would leave the Province, &c., if the
affidavit and arrest both were made
without the principal's knowledge,
privity, or procurement: (Smith v.
Thompson, E. T., 6 Vic, MS. R. & H.
Dig., " Malicious Arrest" 18 ; Cameron
y. Playter, et al, 8 U. G. R. 138.)
4. Description of Defendant. — It is
almost needless to say that great accu-
racy aust be observed in describing a
defendant. The nature of the proceed-
ing necessitates correctness. The law
favors the liberty of the subject. An
error in defendant's name may be fatal :
thus, where defendant, whose name
was " Patrick," was called " Peter"
in the affidavit, the arrest was set
aside: (Botsfordv. Stewart, E. T., 11
Geo. IV. MS. R, & H. Dig. "Arrest"
I. 17.) All his Ghristian names must
be inserted: (^Westover v. Burnham,
T. T., 8 & 4 Vic, MS. R. & H. Dig.
"Arrest," I. 29; Waters v. Joyce,
1 D. & R., 150.)
But it is ordered that " where the
defendant is described in the process
or affidavit to hold to bail, by initials
or by a vrrong name, the defendant
shall not be discharged out of custody,
or the bail bond delivered up to be
cancelled on motion for that purpose,
if it shall appear to the Court that due
diligence have been us<^d to obtain
knowledge of the proper name :" Rule
T. T., 8 & 4 Wm. IV. Nearly the
same as English Rule, K. B. No. 82,
H. T. 2 Wm. IV. As to what is " due
diligence," see Hicks v. Marreco, 1 G.
& M. 84, 8 Tyr. 216 ; Ladbrook v.
Phillips, 1 H. & W. 109. And see
Rosset V. Hartley, 6 N. & M. 416; 1
H & W. 581. See also Chit. Archd. 8
Edn. 672.
6. Cause of action. — The affidavit
must clearly disclose the grounds of
the defendant's liability. It should be
so explicitly done that perjury can be
assigned upon the affidavit,if it turn out
to be false. The defendant can have no
opportunity to deny the truth of the
statement, and, therefore, nothing
should be left to intendment. The
affidavit must be direct and positive
as to the cause of action. It should
not be argumentative or by way of in-
ference or reference to books, accounts,
notes, or bills of exchange, or "as
deponent verily believes :" (per Camp-
bell C. J. , in Ferguson v. Murphy, Tay.
U. G. R. 278. ^ When from the nature
of things, as in the case of executors,
it is impossible to swear positively,
knowledge and belief is sufficient. (lb.)
An affidavit that the defendant is in-
debted to the plaintiff upon a certain
bond or obligation is insufficient. It
ohould state that the sum s' ught to be
recovered upon the bond is due and
payable : (Prior v. Nelson, Tay.U.G.R.
230 ; Smith v. Kendal, 7 D. & R. 232.)
It should also show to whom the bond
was made: (Case v. McVeigh, T. T., 8
& 4 Vic, M.S. R. & H.Dig. "Arrest" I.
28.) An affidavit that "the defend-
ant was indebted to the plaintiff in the
sum of £50 for the use and occupation
of a certain tenement," held sufficient,
though not stated that the tenement
was let by the plaintiff to defendant :
(Ferguson v. -Murphy, Tay. U. C. R.,
; -k
44 THE COMMON LAW PROOBDURB ACT. [s. ZXui.
believe ani^Hreril^N^th believe tbat the I^ofendaniiB imme-
/t- <ia.o
271.) An Affidavit itating defendant
to be indebted to tlie plaintiff in respect
of a certain "sale" of land in possea-
Bion of defendant, iasuffioient, unleu
farther stated that the premises were
conveyed : (Syku v. Ross, 2 Y. & J. 2 ;
Younjf V. Dowlmafi, 2 Y. ft J. 81.)
In a case where the affidavit stated the
debt to be " for principal and interest
due on a bond,'* without ataUng the
bond to be conditioned for the payment
of money, affidavit held sufficient:
{Byland r. King, 7 Taunt 275.) So
where defendant was stated to be in-
debted to deponent under a deed, by
which the defendant covenanted to pay
money at a time now past, &c. : {Lam'
bert T. Wray, 8 Dowl. P. C. 169 ; 1
C. M. ft B. 676.) Also where defen-
dant was stated to be indebted to
the plaintiff in £500, <• upon a certain
indenture of mortgage by which the
defendant covenanted to pay the said
sum of money to the plaintiff, at a day
now past : (Masters v. Billing, 8 Dowl.
P. G. 751.) Affidavit sufficient in both
these caaesAAn affidavit on an award
should state the submission, the mak-
ing of the award, and that the money
was payable forthwith, or due at
a day past: {Anon, 1 Dowl. P. G. 5.)
If the award direct the money to be
paid by defendant to plaintiff on de-
mand, a demand should be stated:
{Driver v. Hood, 7 B. & C. 494.) An
affidavit that the defendant was in-
debted for damages awarded and for
coats taxed, has been held sufficient :
{Jenkins v. Law, 1 B. ft P. 866.)
If on a promissory note, the note
must be stated to be "payable:"
{Smith V. Sullivan, Tay. U. C.R, 678 ;
Andrews v Ritchie, Dra. Rep. 5.) Such
an affidavit must show the amount for
which the note was drawn : (yorten
V. Latham, M. T., 8 Vic, MS., B. ft
H. Dig. " Arrest," I. 43.) If against
the indorscr of a promissory note or
drawer of a bill of exchange the affi-
davit must state the default of the
maker or acceptor : (Ross et al v. Bat-
four et al, M. T., 2;yie.„MS., R. ft H.
Dig. "Arrest" I. 22; Crosby r. Clarke,
1 M. ft W., 296 ; Buckworth v. Levi^
1 Dowl. P. 0. 211 ; Cross v. Morgan,
Jb. 122; Buntif^ v. Jadis, Jb. 446.
But see Weedsn v. Medley, 2 Dowl. P.
G. 089 ; Irving v. Meaton, 4 Dowl. P.
G. 088.) In these two last oases thert
were distinct and positive allegationt
that the bills sued upon became due and
were unpaid. An affidavit, that the d«>
fendaut was indebted to plaintiff in a
certain sum due "before the commence,
ment of this suit," insufficient: (Robin-
Bou,C. J. tdissentiente.) The affidavit was
made several days before the writ
issued: {Clarke v. Clarke, 1 U. C. B.
895.) If made for goods sold and de-
livercJ, the affidavit mast show a re-
quest : ( Watkins et al v. Liebshitz, H.
T. 7 Wm. IV. MS,, R. ft H. Dig.
Arest. I. 11 ; held otherwise in Ogil-
vie et al v. Kslly, 4 U. G. R. 898.)
An express request, therefore, seems
to be unnecessary : (lb.) But it must
be shewn that the goods wera sold
and delivered by ihe plaintiff to the
defendant : (Young v. Oatien, 2 M.
ft S. COS.) An affidavit that the
goods, the sulyeot of the action,
were " made and manufactured for,"
but not stating that they were deli-
vered to defendant, insufficient : {Pon'
ttfex V. De Maltzoff, 1 Ex. 436.)—
Semble. — The request must be stated
in an action for money paid : (Ogilvie
et al V. ^0%, 4 U. C. R. 898.) Need
not be stated in action for money lent :
(76.) An affidavit for money had and
received on account of the plaintiff,
ought to state it to have been received
by the defendant to plaintiff's use;
(Kelly V. Curzon, 4 A. ft E. 622.) It
is not necessary in an affidavit of debt
for money lent, paid, and an account
stated, to mention the sum due on
each account: (Tannahill v. Master,
2 O. S. 449 ; Black v. Adams, E. T.,
8 Vic, MS. R. ft H. Dig., " Arrest"
I. 25.) But an affidavit on a promis-
sory note for £80, and also for goods
sold, not specifying the sum due on
each account, nor whether the goods
S. Uiii.] AKHDAVIT TO HOLD TO BAIL. 46
diately ahottt to le(^e UppecjDanadQi^ with intent aa4 design (Afp. a. c.)
■old formed the oonsideration of the
note, it bad: (MeKetuie ▼. Jieid, 1
U. G. R 896.) An affidatit for work
and labor withoat stating request, is
defeetiye : (Hall y. Bnuh, T. T. 8 ft
4 Vie, MS. R. & H. Dig., <« Arrest" I.
81.) fVord malieiout spelt with a " t"
instead of a " c," no defeot: (Oardner
T. Morriton, H. T., 4 Vic, MS. B. &
H. Dig., " Arrest." I. 82.) An affida-
yit stating defendant to be indebted to
plaintiff, "on an aooount stated be-
tween them," sufficient: {Balmanno
y. May, 6 Dowl. P. C. 806.) If on
soTeral different promissory notes, the
affidavit need not state the aggregate
sum, but the amount of each note
must be mentioned : IRott y. Hurd,
1 U. C. Prao. R. 168.) The dates
of the notes should be set out in
words, but the use of figures will
not make the affidavit defective : (lb.)
U need not be stated that the note is
due at the time of making the affidavit,
if the dates given show this to be the
ease : (lb.) When some of the demands
are well and others badly stated, the
affidavit is not bod as to all : (lb. Also
see Caunee v. R^by, 8 M. & W., per Al-
derson B. p. 67 ; see also Baker y. WiUt,
1 G. & M. 288.) But the defendant will
be released on putting in bail for the
sum properly sworn to': (Rot$ v. Hurd,
1 U. C. Prae. R. 168.) If made by
the indorsee of a note the affidavit
must state that it was indorsed to the
plaintiff and by whom : (Olatt y. Baby,
1 U. C. Piac. R. 274.) Where stated
that defendant was indebted to plaintiff
in £500 of sterling money on a bill of
exchange drawn, &o., for the payment
of £660, not saying of what money,
still affidavit held sufficient: (Pawaon
el al V. HaU, 1 U. C. Prac. R. 294.)
The affidavit stated the bill to be "pay-
able at a day now past," and that it
was presented on the day when it be-
came due, and then, after stating the
several sums for which it was intended
to hold to bail, the affidavit concluded
"and that the said several sums of
money are now justly due and payable
as aforesaid." Held that it sufficiently
appeared that the bill was unpaid at
the time of the making of the affidavit :
lib.) The defendant was stated to b«
indebted in the amount of the bill, and
in £6. 19s. 8d. sterling money afore-
sdd, "for interest thereupon, being
for jMdnoipal money and interest, the
sum of £665. lOs. 8d. of sterling money
aforesaid : " (lb.) Where the affidavit
stated the amount in sterling, adding,
to wit, the sum of £704. 6s. 7d.
currency, " or thereabouts" of lawful
money of Canada— statement in cur-
rency bad, it not being precise and
positive: (lb.) But the insufficient
statement was held not to vitiate the
affidavit, as it is sufficient to state a
debt due to the plaintiff in England in
sterling money only: (lb.) The amount
for which bail should be taken was
ordered to be reduced to the true sum
in currency, as it appeared that the
amount stated in the affidavit was ez>
cessive : (76.) In the affidavit it was
held sufficient to describe a promissory
note as being " for the payment tx>,"
instead of " payable to" the plaintiffs t
(76.); Where it was stated that defend-
ant was indebted to deponent in £1217.
16s. 6d. "upon and on account" of a
bill of exchange for £1000 sterling,
(describing the bill ;) that neither the
defendant nor any other person had
paid the said bill or any part thereof,
and that the sum of 19s. was paid by
deponent for notarial charges in pro-
testing the same." Held that the
amount due for the bill was sufficient^
distinguishable from the notarial
charges, which ought not to have been
included: (Brett v. Smith, 1 U. C.
Prac. B. 809.) Plaintiff need not state
expressly that he is the holder of the
bill at the time of making the affidavit :
(lb.) An affidavit by endorsee against
the drawer of a bill not averring pre-
sentment to and default by the acceptor
— insufficient: (Hopkinton v. Salem-
bier, 7 Dowl. P. G. 493.) So a state-
ment that defendant was indebted in a
bill of exchange for principal money
and interMt, without showing that the
interest was made payi^e under a oon-
m
K** '■' ' !'
I
a
:l
r ■*.■
49 THE COMMON LAW PROOEDURB ACT. [fl. Xxiii.
PiotIm: t<HkfnkudNAe PloioUflt of the^jaid cl«ht: Piwidod always,
':ii
tract: (NeaU r. Snoullen, 2 0. B.,
820.) The oun«nt of aathorities
on this snbjeot sooma to ahow, that
•ither the deponent ahould diaoloae a
eontraot for the pajment of intereat,
or atate adebt to an adequate amount,
ezeluaire of the claim to intereat:
(lb. per Tindal, 0. J. ) If intereat only
be aonght to be reooTcred aa a debt,
the affidavit must ahow an ezpreaa
contract : (Ilarriton y. 7\imer, 4 Dowl.
P. G. 72.) It need not atate the amount
of the principal, nor the time when it
began to run: (White t. Soteerby, 8
Dowl. P. C. 684.) With respect to
billa and notea generally, the following
authoritiea may be noticed : — When the
debt ariaea on billa or notea, they
ahould be atated to be unpaid : (Kirk y.
Almond, 1 Dowl. P. 0. 818.) If a note
be payable by inatalments, it ahould be
ahown what inatalmenta are due and
unpaid : (Hart t. MeOtrvitfi Tyr. 288. )
It ahould appear how the defendant ia
liable whether aa acceptor, drawer, or
endorser: {Httmphriea y. Winthor, 6
Taunt. 681.) It ahould alao, it seems,
shew in what character the plaintiff
claims, whether as endorsee, bearer, or
payee : (Chit Arch.8 Edn.eSO; Ib.QEd.
696,) If on a bill, it need not expressly
state that the bill was dishonored:
(PhiUipt y. Turner, 1 C. M. ftR. 697.)
An affidavit for principal and interest on
a bill " drawn upon and accepted*by
defendant" is sufficient, without stat-
ing who is the drawer : {Ilarriton y.
Rigby, 8 M. A W. 66.) But held that
an affidavit for a sum due to the plain-
tiff as endorsee of a bill of exchange
must stato by whom the bill is endorsed.
Steting that it was "duly endorsed"
to the plaintiff, is insufficient : {Lewie
V. Oomperfz, 2C. &. J. 862.) Further,
see oases as to the " cause of action"
collected in Chit. Archd., 8 Edn. 652,
et eeq. lb. 9 Edn. 688. et seq.
6. Conclution. — *' Hath good reason
to believe, and verily doth believe, that
the defendant is immediately about to
leave Upper Canada, with intent and
design to defraud the plaintiff of the
said debt." The words of the Act
muat be cloaely followed. If the
Court allowed parties to depart flrom
the worda preacribedin an Act of Par-
liament aa proper to be uaed in an
affidavit to hold to bail, there would be
no knowing where to atop : (See Ckoate
V. Stevtne, Sherwood J., Tav. U. 0. R.
622. ) An affidavit concluding with an
expreasion of belief that *' the defend-
ant would leave the Province of Can-
ada," instead of "Upper Canada," is
insufficient: (^rotrn et al v. Parr, 2
U. C. R. 98. ) An affidavit stating that
plaintiff " had reason to believe," &c.,
instead of "hath good reason," &o.,
bad : {Meyerey. Campbell, 1 U.C.Cham.
R. 81. )X Held unnecessary, since the«'44>«((4(
passing of 8 Vic. cap. 48, sec. 44, Qt ^ fxo
which the present section is a re-enact-
ment, to negative any vexatious or
malicious motive required by the Stat
2 Geo. IV., cap. 1, ■> 8 : (See Let
et al T. MeClure, 8 U. C. R. 89.) When
more than one debt is mentioned in the
affidavit, and the debts are not com-
bined, and the aggregate atated, the
affidavit must clearly expresa the
plaintiff'a belief that the defendant is
immediately about to leave Uj^per Ca-
nada with intent and deaign to defraud
the plaintiff of the aeverol debts:
{Jiroten v. Palmer 8 U. C. R. 110.)
Where three distinct causes of action
were alleged, vis. :— 1st. £613 'cur-
rency for lands, &o. ; 2d. £618 cur-
rency on a bill of exchange for £618
sterling ; and 8d. on an account stated,
and thO'plaintiff concluded "that the
said sum of £618 is still doe and ow-
ing to deponent," &o., affidavit bad :
{Barry v. Feelet, 2 U. C. R. 888.) It
was considered that a creditor might
arrest his debtor if he be going to leave
Upper Canada, whatever might be
the canse of absence, or however pro-
bable it was that he would return:
{Perrin v. Joyce, H. T., 6 Vic. JU.S. ;
McBean v. Campbell, H. T., 6 Vic,
M.S. R. & H. Dig. "Malicious arrest"
1.) It is necessary to caution practi-
tioners that in Upper Canada there have
been several Statutes on the subject of
arrest Cases therefore, may appear
m pursu
veil as
committe
have beei
(per Robi
R. p. 6
been thre
of which
the credit
terfere ai
111.) In
or proseoi
cause is
Judge an(
C. R. 615
p. 85, an
s. 26 of t]
7. Com
in Superic
Judge of
\ mm » I h
8. xxiii.] ArriDATiT to bold to bail. ^
that whei« the oftuae of afltion it other than a debt certain, a ^^^th*
to bo inooniitt«nt or othenriM eon-
illotiiig. To prcTent mistake it should
bo montionod that oaoh oaM ohoald bo
rooolTod more oopociallj with rofor-
enoo to tho Btatato undor whioh it
waa dooidod, or tho arrott mado. Tho
following Statutes may be referred to :
2 Goo. IV., cap. 1. ss. 8, 10, 14 ; 10
Geo. IV.. oap. 2 ; 7 Wm. IV., oap. 8,
B. 9; 8 Vic, cap. 48, s. 44. The
mere fact that deponent was told bj
one or two persons that they thought
he would be Justified in arresting de-
fendant, otherwise ho would lose his
debt, does not thereby rolioTO him tlrom
all responsibility, and all obligation
to enquire for himself : (Thome t.
JIaaon, 8 U. C. R. 286. ) If plaintiff did
in fact reoeiTO infonnation of defend-
ant's moTemonts and probable depar-
ture, the jury in an action for maliolous
arrest, are not at libwty to surmise
that the deponent did not beliOTO what
he was told, and what he swears he
belieyed, when there is really nothing
in the eyidenoe to show that he ac\,ea
otherwise than sincerely, and when in
the conduct of the debtor as proved at
the "^ )urt, there was OTOrything to
create suspicion : (per BoUnson, C.J.;
Smith T. Maekay, 10 U. G. R. 412.) It
is of tiie utmost importance that par-
ties should be protected to a fair extent
in pursuing their civil remedies, as
well as in prosecuting for offences
committed, or which Uiey believe to
have been committed against them :
(per Robinson, C. J., S. C. ; 10 U. C.
B. p. 615.) But where there had
been three new trials in a cause, each
of which resulted improperly against
the creditor, the Court refiised to in-
terfere any fUrther : (S. G. 11 U. G. R.
111.) In an action for malicious arrest
or prosecution, the question of probable
cause is one for Uie decision of the
Judge and not the Jury : (S. C. 10 U.
C. R. 615.— Also see Tay £v. 2d Edn.
p. 86, and oases collected in note to
8. 26 of that work.)
7. Commutioner. — The a£Bdavit may
in Superior Gourtsbe sworn before any
Judge of the Gourt, or a commissioner
for taking affidavits. In County Courts
It may be sworn before tho County
Judge, or any of tho siid commis>
sioners. It is not necessary that a
commissioner should put his initials
opposite interlineations in tho affida-
vit : (Ly$ttr v. BouUon, 6 U. C. R.
682.) Signature of commissioner suffi-
cient without words showing him to
bo such : {Jfendtrton v. llarprr, 2 U.
O.R. 07, and see cases noted under sub .
div. *<Jnrat."/K>«^) Qu, Does this rulo
of practice apply to affidavits to hold
to bail ? The Court, in Howard Brown,
4 Ring. 898, cancelled a bail bond,
on the ground that the orat of tho
affidavit to hold to bail did not state
the person before whom it was sworn
to bo a commissioner; also see M. v.
Jlart, 18 East. 189 ; then see Paw-
ton «t al V. JIall, and Bligh v. Hall,
1 U. C. Proo. R. 294. An affidavit
to hold to bail before action com-
menced, may bo sworn before tho
plaintiff's attorney : {Brett v. Smith,
1 U. G. Prao. R. 809.) Where tho
oommissioner had not attached his sig-
nature to the affidavit at tho time cf
tho arrest, held that he was too lata
to do BO after arrest, and motion mado
to set adde the proceedings for irregu-
larity : (Black V. Halliday, T. T., 6 &
6 Vic, MS, R. & H. Dig., "Arrest."
I. 85.) If the person who adminis
tor tho oath is not duly qualified, de-
fendant will be discharged : (Hughtt
T. Jone*, 1 B. & Ad. 888.) In England
the point was raised whether an affi-
davit to hold to bail could be properly
made before a British Counsel in a
foreign country, but as the Court was
equally divided, no opinion was given :
{Pickardo T. Maehado, 4 B. & C. 836,
see also s. xl. of this act)
8. Signature of Deponent. — If depo-
nent be able to write, the affidavit
should be signed by him ; if not, his
mark will be sufficient The signature
may be in a foreign character : {Na-
than V. Cohen, 8 Dowl. P. C. 870. ) The
usual signature should be appended
though it differs firom the names given
to deponent in the affidavit: {Uande
II''
I. 'i
• ,'(
^L
;||.
41 THE COMMON LAW PBOOIDCmi ACT. [■ Zxiit.
MoDtoottMr vn^ oi oapka ma]rbe iaroed and laed ont to arrest and hold
>;
'?' .;*
▼. CUnunU, 1 D. & L. 870.) An Affl-
daTit withoat dapontnt'i flgaatar*,
mad* la a foi«i«n aoaatiy, wm ad-
mitted, It apataiiag that raoh wm th«
SMtioe in tat fttniga ooontiy : (J?<
<fy, 6 Dowl. P. C. 616.) If aa affl-
datit b« re^awom, it nMd not b«
■igned a Moond time : (LMn t. Pitehtr,
ll)owl. N. 8. 767.)
0. •/Mro/.— Where aa alBdavit wm
Nworn bj an illiterate person, en
omiaeion of the statement in the Jurat
that deponent appeared to nnderatand
it, WM held to DO (htal : (Moore t.
Jatiui, Dra. Rep. 246; Uayneiy. Po»-
»ll, 8 Dowl. P. C. 609; Kerr t. Sker-
W of MidiUtet, 4 Dowl. P. C. 766.)
When deponent makes his mark, it
should appear fVom the Jurat that the
mark wu mede . ( WtUom r. BUtkey,
9 Dowl. P. C. 8C2.) An affidsTit made
hj two persons, not stik'Jng distinotlj
in the jurat thikC bot^ were sworn,
oannot be read: {Ifie tleon d. Spetf-
ford T. Rea, 8 0. S. %\ See Role in 7
I. R. 82 ; see also Pwioe r. TerrtU 12
L. J., C. P. 148 ; 6 M. & 0, 201, B.
C. ; Laekington t. Atherton, 2 Dowl.
P. C, N. 8. 004.) In a ease where a
motion was made to Mt Mide an at-
taehment, beeause of a defect similar
to the iMt in the affidavit, the Court
allowed an amendment by the inser-
tion of both names in the Jurat i
{Fuher T. Thaytr, 6 O. 8. 618.) An
affidaWt not oouAdored insuffioient,
beoause the plMe of taking it was
omitted in the Jurat: (JUeLean r.
Cumminjf, Tay. U. C. R. 240; Sifm-
mert t. Waeon, IB. & P. 106 ; Fair-
brau T. Ftttit, 12 M. & W. 458; but
see Boyd t. Stad-Tr, 7 Price 602 ; Kerr
y. Coekthaw, 2 N. & M. 278 ; Com t.
Ca»», 1 D. & L. 698.) The date of
swearing must be stated : (Blackwell
T. AUen, 7 M. & W. 146.) Jurat suffi-
cient if it contain the signature of
Commissioner, without the addition of
any words showing him to be a Com-
missioner: (Ifendenon v. Harper, 2
U. C. R. 97 ; Brown et al ▼. Parr, 2 U.
C. R. 98 ; Murphy ▼. Boulton, 8 U. C.
R. 177; upheld in Patceon et al t.
Malt, and Btigh r. Hall, 1 U. C. Prao.
Rep. 204 ; oonllrmed in Brett t. Smith,
1 U. C. PrM. Rep., 810.) Omission
of the words ••before me," fhtal: (R. r.
Nortmry, 6 Q. D. 684, n. (a.) Where
the wonls •* before me " were struck
out and Uie words «< By the Court,"
inserted in lieu thereof held no ottJeo*
tion: MiMfNi t. Orange, 4 Dowl.
P. C. 676.) An alteration in the
Jurat or oUier parts of an affidaTlt
after it is sworn, will nullify the
affidaTlt : ( Wright t. Skinner, 6 Dowl.
P. C. 92.) No erMure or interlinea-
tion is permitted in the Jurat, by rule
M.T. 87, Qeo. III. (7 T. R. 82.) A line
drawn through two words in the Jur-
at, leaving them perfecUy legible, is
an erMure within the rule : (Williame
T. Clough, 1 A. ft B. 876 ; The Queen
T. Blaekwell R. R. Co., 9 Dowl. P. C.
568.) But striking out a figure
in the Jurat, and inserting another
over it, will not vitiate: (Jacob v.
Hungate, 8 Dowl. P. C. 466.) The
first page of an affidavit not being
capable of containing the whole of the
jurat, the words " a Commiasioner for
taking affidavits in this Court," were
erMed ftrom It, and were, together
with the rest of the jurat, placed on
the other page — held that the erasure
did not vitiate : ( WM* v. Dawton, 2
Dowl. N. 8, 465.) An erasure over; but
not in the jurat, is not within the rule :
(Atkintony. Thompton, 2 Chit. R. lO.j
interlineations in the affidavit itself,
need not be noticed in the Jurat : [Lyt-
ter V. Boulton, 6 U. C. R. 682.) An
affidavit sworn at a Judge's Chambers,
need not state in the jurat that it was
sworn "before" the Judge: (Empeyy.
King, 18 M. & W. 619) Further see
Chit Arch. 8 Edn. 1452.
10. Irregularitiet — how taken advan-
tage o/.— Where the original affidavit
to hold to bail wm transmitted to the
Deputy Clerk of the Crown, in Cham-
bers, at the request of defendant's at-
torney ; held that such original might
be acted upon in moving to set aside
the arrest, instead of filing a verified
copy : {Chamberlain et al v. Wood, 1
^1
■A i
ii
I. ZxHi.] OBDEK TO UOI.n TO BAIL. j|i
the Dofon^nt to spooial bail, n Ji^dge's order having ^<)on |^^j^o*^*
first obtainod fbr that purpose, in such ca.-sefl and iu %iioh man-
aerashaahorotorarobeen thepraclir^'; (r^ Provided alaoUhat
U. 0. Prao. R. 196.) Bat the original
•hooid not have b««n tranamlttMl at
tha request of an attorney. If it were
necoMarj to liave it in cfbambers, the
Deputy Cleric ehould have waited for
a Jadge'a order : (lb.) Where after an
arreet on prooeai, iiaued f^om a Die-
triot Court, the prooeedings were moT-
ed into the Queen's Bench, by habeat
eorput, and a motion then made to set
aside the writ, and arrest for a mani-
flnt defect in the affidavit, the rule
was made absolute, though it was
shown in the return of the writ, that
a similar motion was pending in the
Court below, on which no Judgment
had been given : (Englith v. Everitt, 1
U. 0. R. 886.) A defendant does not
waive a defect in the affidavit by ap-
plying for particulars: {Uodgaon v.
Dowell, 8 M. & W 284.) An under-
taking to put in special bail, is not
a waiTcr of an irregularity In the
writ: ((7/<t««v.i9a6y,l U.O.Prao.R.274)
And it was held that when defendant
had put in special bail, thathewaa
not thereby prevented from objecting
to any irregularity in the arrest: {Ro»»
tt al V. Balfour et al, 6 0. 8. 688.)
It is ordered by N.R. 106, T.T. 20 Vic,
as follows : " No application to set aside
process or proceedings for irregularity,
shall bo allowed, unless made within a
reasonable timo ; nor if the party ap-
plying has taken a ftresh step after
knowledge of the irregularity." Where
a defendant moved to set aside an ar-
rest, on the ground that the debt was
paid, and the rule was reflised, the
plainiff denying payment on affidavit;
he was afterwards prevented firom
moving for a defect in the affidavit of
debt : (Smith v. Rom, T. T., 8 & 4 Vic,
MS. R. & H. Dig., " Arrest" 1. 40.) An
action for malicious arrest, is not a
waiver of objeotiona to the affidavit on
which the arrest was made: {Pavoaon
et al V. ffall, 1 V. C. Prac. R. 294)
The Court will not set aside an arrest
upon the ground of irregularitv io the
affidavit, after the prisoner has es-
caped: {Ke^er v. Merrill et al, Tav.
U. C. R. 675.) See further Chit. Areh.
8 Edn. 1271 ; and also s. zxxvU. of this
Act, with notes thereto.
(r) Though substantially the same as
Stat. U.C. 2, Geo. IV. cap. 1, a. 10, it is
to be observed that the latter statute is
not repealed. The reference made
to former practice, in the words " in
such cases and In such manner as has
heretofore been the practice," may b«
taken to relate to the old provision. It
is as fuilows — " And be it enacted, Ac,
fhat in all oases in which the cause of
;inl ou (thall be other than a debt cer-
tc'.n, of which affldavita may be made
as iiervinbefore mentioned, (s. 8 of
same statute, now repealed,) it shall
and may be lawfiil to hold the defend-
ant or defendanta to bail, a Judge's
order having been first obtained for
that purpose, in such oases and in such
manner as is provided by the law and
J)ractioe of the Court of Queen's Bench
n England:" (17th January, 1822.)
Arrests in civil actions may be made
in two oases : — Firat, where the cause
of action is a '*debt certain" ^as to
which see note /s. xxvi. ) in whicn case
a capias may be issued upon affida-
vit, as of course, and the affidavit can-
not be contradicted before the ar-
rest ; teeond, where the cause of
action is '* other than a debt cer-
tain," in which ease an order is
necessary. Stat. 2, Geo. IV., cap. 1,
formerly regulated the practice in both
these cases. Section 8, which applied
to the first case is repealed. Sec. 10,
which applied to the second, is in
force. Then with regard to the latter,
(holding to bail when the cause of ac-
tion is other than a debt certain,) s.
xxiii. of this Act refeia to the practice
heretofore in use, which causes us
to fall back upon sec. 10 of 2 Geo.
IV., cap. 1, and it we find refers us to
50
FroTlso:
THE COMMON LAW PROCEDURE ACT. [s. xxiii.
nothing in this Act oont:iiaed, shall subjeot^my person to arrest
who b^eas3ta„of any privitBge, usage, or otherwise, may now
the practice of the Court of Queen's
Bench in England on or before 17th
January, 1822. Ours is built upon the
Bnglish practice that existed anterior
to that date. It is necessary to make
this distinction, since of late the Eng-
lish practice has undergone very great
changes.
Where & defendant had been arrested
on a Judge's order, made pursuant to
sec. 10 of 2 Geo. IV., cap. 1, the Court
did not think it necessary for the cre-
ditor to make use in his affidavit of the
precise words pointed out by sec. 8
of the same statute which prescribes
the contents of an affidavit to hold to
bail : {Barden y. Cawdell, Tay. U. C.
B. 669.) The exact form in cases of
de'bts due cannot be followed in an
action for seduction where it is sought
to hold defendant to bail : (Neven y.
Butchart, 6 U. C. B. 196.) As there
must be some departure from it, it is
for the Judge to whom the application
is made, to. exercise his discretion in
determining that the law of arrest has
been complied with according to its
spirit: {3. per Bobinson, C.J.) The
Legislature did not intend by the sec-
tion above set forth to encourage
arrests, but left it to the discretion of
the Judge to decide whether the case, as
disclosed before him, warranted such
a preceding : [Ingraham y. Cunningham
per Macaulay, J., Dra. Rep., p. 117.)
Where the creditor, a Quaker resident
in New York, made an affirmation of
his claim before the Recorder of that
city, and his agent in this country,
also a Quaker, made another affidavit
proving the handwriting of both the
plaintiff and the Recorder, and further
proving that the plaintiff was a Quaker,
and that the person styling himself Re-
corder was such and had authority to
take such affirmation, and alleging that
he was apprehensive defendant would
leave the Province, &c., the Court
granted an order to hold to bail : {Smith
y. Lawrence, 3 0. S. 18.) The form pre-
scribed by Stat. 8 Vic. cap. 48, s. 44
(of which the first part of section here
annotated is a re-enaotment) is of the
affidavit on which the creditor himself
may sue out a capias as of right : (per
Robinson C. J., in Nevent y. Butchart,
6 U, C. R. 196.) But the affidavit for
an order to hold to bail must, it would
seem, contain the ordinary conclusion
that defendant is immediately about to
leave,'&c. : (See Wiltaee v. Bloor, E.T.
2 Vic, MS., R. H. & Dig. Arrest I.
28. ) A^miZe— That the belief of a de-
parture from Upper Canada should
even be more strongly asserted, than in
an action of attumptit, (See Ingrahatn
y. Cunningham, 1 Dra. Rep. per
Macaulay, J. p. 118.) In trespass de
bonis atportatia an affidavit that " the
defendant broke into plaintiff's dwell-
ing-house, and by force expelled him
therefrom, and took possession of the
plaintiff's goods, to the value of £100,
and still keeps possession thereof,"
sufficient: {lb.) Arrests in actions of
trespass are very rare. If the taking
possession of the goods were not sworn
to in the above case, and the matter
depended upon the trespass to the per-
son, a more special affidavit would be
necessary: {lb., per Robinson, C.J.)
By the form used in England in the
year 1830, it would appear that in an
action of trover, no special statement
was required : {lb.) There is no ma-
terial ^fference in this particular be-
tween trover and trespass de bonis
asportatit : {lb.) An order to arrest
was refused in actions for malicious
arrest and libel : {O'Connor v. Anon. ;
Doreus y. Ifull, T. T., 2 & 3 Vic. M.S.
R. & H. Dig. Arrest IV. 4.^
(«) If a party to a suit, his counsel,
or witness, be arrested by process of the
Court, while going to, attending on, or
returning from a Court of Justice, he is
entitled to be discharged : (Per cur in
Mitileberger et al v. Clark, 5 0. S. 718.)
Not so privileged as against the ser-
vice of non-bailable process : (See s.
xxxiv., later part of n#|.) The reason
for the exemption is that the possession
'TV'
S. zziii.] PBIVILEQE FROM ABBEST.
hjijaw be-^cxempt— *herefromt-(«) Provided also, that it
of liberty by the party in question, is
necessary for liis attendance about bu-
siness depending in the Courts :(iftcAte
T. Allen, per Robinson, Q. 3.,l U. C.
R. 482.) In the House of Lords it has
been lately held that a party whose
cause is set down, or about to be set
down in the paper for hearing, is
privileged from arrest while bona-fide
going to attend such hearing : (Perrse
V. Ferrse, 27 Law T. Rep. House of
Lords cases 224.) But such party dur-
ing the hearing of the cause, is not
at liberty to go " when and where he
likes:" (7%. per Lord St. Leonards.) It
has been held that a suitor attending a
Court of Requests, was privileged from
arrest : {Baldwin et al t. SliceVf 4 0.
<x4U%. 181. )X The Court give this privilege
^1 <?2.c7a large and liberal construction, and
it is not confined to Courts of Record :
{Per cur. lb.) It extends to witnesses
before arbitrators : (s. Ixxxvii pote/.)
An attorney coming to Court in
term time, on business which has
been disposed of, is not privileged
from arrest on final process : {Strou-
bridger. Davis, M. T. 2 Vic, MS. R. &
H. Dig., "Arrest" IL 2.) The manu-
script report of this case is not to
be found, so that as to the precise
ground of the decision, the Editor is
McoitSfOgnorantX A person who attended as a
/. v;<J grand juror at a Court which adjourn-
ed for a few days, went into an ad-
joining District on private business,
was held not to be privileged from ar-
rest there during such adjournment :
{Mittkbcrger it al v. Clark, 6 0. S. 718. )
It was held that an officer of the Court
while employed in executing the pro-
cess of the Court, is privileged from
arrest : ( Welbg v. Beard, Tay. U. C.
R. 415.) This would seem to hold
good more especially if the officer be
a iole officer, such as Clerk of the
Process. If such an officer were ar-
rested, the machinery of the Court
might be completely stopped. Clerks
of Division Courts may be fairly in-
cluded within the same category. As
to these latter, there have been no cases
decided. A barrister is exempt from
arrest on mesne process : {Adama v.
Ackland, 7 U. C. R. 211.) In the
case of a barrister who is Judge of a
County Court, the public interests re-
quire that the protection should bo
carried further. He cannot be arrested ,
either on mesne or final process : {lb.)
The Judge of the Surrogate Court
also is, on grounds of public policy,
exempt from imprisonment for debyt :
{Michie v. Allen, 7 U. C. R. 482.) A
member of the Provincial Parliament
is also privileged during the sitting of
Parliament, and for a " reasonable
period" before and after the sitting :
( Wadstcorth et al v. Boulton, 2 U. C.
Cham. R. 76 ; the Queen v. Oamble j*
Boulton, 9 U. C. R. 646.) The privi-
lege exists 40 days before, and 40 days
after the meeting of Parliament, dtad
the rule of privilege is the same in all
cases of dissolution or of prorogation :
{Ooudy v. Duncombe, 1 Ex. 430.) This
privilege extends in effect as long as
Parliament exists, for it is seldom pro- ,
rogued longer than four score days :
(1 Black Com. 165.) Where defend-
ant was arrested on a day more than
40 days after a dissolution of Parlia-
ment, but within 40 days before the
return of the writ of election under
which he was re-elected; the arrest
was set aside : {R. v. Oamble ^ Boul-
ton, 9 U. C. R. 546.) The fact of
the member being an attorney of the
Court, and attached for disobedience
to a rule of Court ordering him to pay
over money to his client, makes no'
difference in this respect: {lb. per
Draper J., &|; p 553.) This last was a
case in which nearly all the authorities
bearing upon the subject, were cited
either by counsel or the Court, and ably
reviewed by the latter. It is now a
leading case as regards the privilege
of members of the Provincial Parlia-
ment. Clergymen also are privileged
in going to or returning from church,
or when performing divine service :
(Prov. Stat. 4 & 5 Vic , cap. 27, s. 23,
taken from Eng. Stat. 9 Geo. IV., cap.
81, 8. 23 ; see also Goddard v. Harris,
7 Bing. 320.) Married women aropri-
w
J/AV
I
4 M
"■■'Mk -
'■■iif^.
1 1 !H''
52 THE COMMON LAW PROCEDURE ACT. [s. Xxiv.
Act not to gha^I not be necessary that any sulch afiSdavit shall be at the
arreat time of the niakins thereof, entitled of or in any Court, but
prtrsuns now \ -V, «,« - ■, ■, ■, \ i .
i-xempted. that th&^yle and title of the Court dKiy be added at the time
tnentitiioK of suing oot the process, and shall be tihat of the Court out of
"'^ ■ which the proftess is issued, and that such\style and title when
so added, shak be for all purposes andMn all proceedings
whether civil or^minal, taken and adjudged to have been
part of the aflSdavit o^ initio, (t)
(Afp. Ok c.) XXIV. («) Special bail maybe put in and perfected accord-
vileged : {Foley v. White et ux, 2 U. C.
Chatn, R. 51, in which case there is a
great collection of authorities.) Married
vomeu are privileged, though living
separate from their husbands, and hav-
ing allowances from them : (Bennett et
MTV. tt'oods, 11 U.C.R.29.) But arrest-
ifig a married woman under such cir-
cumstances, is not a trespass: {lb.)
Militia pensioners while enrolled in a
local Police Force, are exempt from
arrest for any sum under £30 : (14 &
16 Vic, cap. 77, a. 4.) Every person
is privileged from arrest on Sunday,
except in cases of treason, felony, or
breach of the pence : (Tidd. Prac. 9
Ed. 219.) And in bis own house at
all times, as against civil process, pro-
vided the outer door be shut: {lb.
219.) And in any place where the
Queen's Justices are actually sitting :
{lb.) X ^^culdi i. <i20.
\t) The object of this enactment is
to prevent . delays that might other-
wise occur in the issue of writs of
capias by the Clerk or Deputy Clerk,
under s. iv. He is bound to issue
them alternately, one from each of the
Superior Courts of Common Law. It
might be that an affidavit to hold to
bail when produced to the Clerk would
bo intitlcd in one Court, while the
Clerk was bound to issue the writ in
the other ; in which event, in the ab-
sence of ^-ome such provision as the
above, plaintiff would be necessarily
delayed. The practice as to intituling
affidavits to hold to bail, used to be
otherwise both in England and Upper
Canada. In England it was first re-
laxed by R. G., H. T., 2 Wm. IV. No.
1, which was to the eflPect '* that an
affidavit sworn before a Judge of any
of the Courts of King's Bench, Com-
mon Pleas, or Exchequer, shall be re-
ceived in the Court to which such
Judge belongs, though not entitled of
that Court" It has been held in Upper
Canada, that where no cause was pend-
ing, an affidavit, though not intitled
in any Court, will be sufficient if it
appear to have been sworn before a
Commissioner of the Court in which it
is used: {Frazery.JI. C, of Stormont,
Dundat, and Glengary, 10 U. C. R.
286 ; see also Perse v. Browning, 1 M.
& W. 361 ; Tyr. & Gr. 864.)
(m) ** According to the practice now
in force, ^-c." — The Statutes in force
regulating the practice of special bail,
are: —
In the Queen's Bench — 2 Geo. IV.,
cap. 1, ss. 11, 12, 13, 40, 41, 42, and
4 Wm. IV., cap. 5.
In the Common Pleas — Same as above
(12 Vic, cap. 63, s. 8.)
In County Courts — 8 Vic, cap. 13,
ss. 20, 26, 27, and 50, as explained by
12 Vic, cap. 66, s. 7.
It is not possible in a note of this
description, to set forth all these pro-
visions in words at length. For the
major part, the practitioner must be
referred to the Statute book. A con-
solidation of the Acts would be a great
convenience to the legal profession and
to suitors. It is not too much to ex-
pect that the day is not far hence,
when it will be effected. There is no
proceeding more intricate than that
s. XXIV.
ing to tl
of «putl
measure
mation ii
books.
1. Bai
command
ant and b
have giv
or until li
be disoha
capias u[
originallji
mit, and i
rests at tl
(3 Bl. Coi
tntea pen
•«M)ther oas(
L^g 2^ appears t
And altho
power at (
(2 Saund.
Edn. 221,;
ti9n to do
fore oompi
and expenj
replegtandi
by which
literally
To remedj
23 Hen.
This St
persons
(Rogers v
U. 421) d
prison al
arrested,
any actioi
sureties oj
their days
doth requi
This,
correction
of the rea
by the Sfa
could it
process co
formation
and even
most alwq
^ioned the
Stat. 2,
S. Xxiv.] y ; * BAIL. 50
iog to the practice now in force ; and after special bail is so put Declaration
of "putting in bail," owing in a great
measure to the manner in which infor-
tnation is scattered through various
books.
t. Sail — what. The writ of capias
commaads the Sheriff to take defend-
ant and bim safely keep until he shall
have given him (the Sheriff) bail
or until he shall by other lawful means
be discharged from his custody. The
capias upon which arrests are made
originally issued for injuries, vi et ar-
mii, and in such cases only were ar-
rests at the Common Law allowable.
(3 Bl. Com. 281.) Various early sta-
tutes permitted arrests to be made in
^«««d!iA>ther cases ^ but the power to arrest
/fXOfiPV^'*'^^ to have been much abused.
And although it seems the Sheriff had
power at common law to admit to bail,
(2Saund. 60, note 8; Tidd's Pr. 9
Edn. 221,) yet he waa under no obliga'
turn to do so. Prisoners were there-
fore compelled to resort to the tedious
and expensive proceeding << de homine
replegiando" to recover their liberty,
by which writ, if obtained, they were
literally replevied by their friends.
To remedy this state of the law, Stat.
23 Hen. VI., cap. 9, was passed.
This Statute which extends only to
persons arrested on mesne process,
(Rogers y. Reeves, per Duller. J., IT.
11. 421) directs Sheriffs to let out of
prison all manner of persons by them
arrested, or being in their custody, in
any action personal, upon reasonable
sureties of sufficient persons, to keep
their days in such place as the yiidt
doth require.
This, however, was but a partial
correction of the evil for the amount
of the reasonable surety to be taken
by the Sheriff, was not defined, nor
could it well be ascertained, as the
process communicated no further in-
formation than the form of action ;
and even that might be and was al-
most always fictitious. This occa-
sioned the passing of the 13 Car. II.
Stat. 2, cap. 2, which required the
true cause of action to be expressed
in the writ, otherwise no greater se-
curity should be taken than £40. Also
see 12 Geo. I. cap. 29, s. 2.
Under the joint operation of these
Statutes, the Sheriff is now obliged
to admit to bail persons arrested on
mesne process ; provided good and
sufficient sureties are tendered to
him, but not otherwise. The bail
when taken is known as Sheriff's bail,
or bail below ; and is an undertaking
by the sureties " to keep their day when
the writ doth require." The writ at
present in use, requires defendant to
put in special bail — that is bail to ac-
tion, or bail above, as it is technically
called, within ten days after the exe-
cution of it upon him. It is in the
power of defendant at any time witl^n
these ten days, to avail himself of the
Stat. 2.^, Hen. VI., cap. 9, by tender-
ing bail to the Sheriff. The bond to
be taken by the Sheriff, recites the
writ and arrest, and is conditioned to
be void "if defendant do put in special
bail to the said action, as required by
the said writ."
By special bail, or bail above,\s meant
the procuring of two or more persons
to acknowledge a recognizance of bail
in the sum sworn to, and mentioned
on the face of the bail-piece. It may
be remarked that the English practice
differed in the several Courts. In the
Queen's Bench, the bail acknowledged
a sum certain, being double the sum
sworn to in the afiSdavit ; while in the
Common Pleas no specific sum was
stated. The practice of the Common
Pleas in this respect, seems to have
been adopted in Upper Canada. But
in any event, the liability of the bail
is the same in all Courts ; thttt is to
say, the amount sworn to and costs : (Pe-
tersdorff. Bail, 350, 351, N.R. No. 89.)
The condition of the recognizance must
follow ou.' Statute, which enacts that
" if the defendant or defendants shall
be condemned in the action at the suit
of the plaintiff or plaintiffs, he, she.
or they will satisfy the costs and con-
i]
,%
U-
64 TUE COMMON LAW PROCEDUBE ACT. [s. Xziv.
and further in, the plaintiff may proceed by filing a declaration or otherwise
«
'M
demnntion money, or render himself,
herself, or themselves to the cnstody
of the Sheriff of the District (County)
in Vrhich such action shall be brought,
or that the cognizees shall do so for
f uch defendant or defendants" : ( 2
Geo. IV., cap. 1, s. 11.)
It would also appear that the
Sheriff is empowered, at any time to
take from defendant, confined in gaol,
either upon meane or final process, a
bond to the /tmt7« ; upon the giring of
which defendant would be entitled to
be released from custody, but to abide
within the limits of the gaol, which
now embrace the whole of the County
in which the gaol is situate: (See
8. cccii. of this Act.)
Notwithstanding these several Sta-
tutes, authorizing the Sheriff at his
option to take either bail below, or
bail to the limita, it seems that the
Sheriff will be equally liable, as before
the Statutes, to be called upon by the
plaintiff, to bring in the body of de-
fendant ; or in default thereof, to be
attached. The conclusion, therefore,
appears to be this — that the Sheriff,
though he mat/ either, under 23 Hen.
VI., cap. 9, or s. cccii. of this Act,
take bail, yet such bail in either case
is at his peril, and only for his security :
(See Wolfe v. Collingwood, Wils. 262 ;
Sellon Pr. I. 136.) Plaintiff after
breach of the condition, may if he see
fit so to do, instead of attaching the
sheriff, take an assignment of either
bond, and in his own name sue the
Sureties therein mentioned : (Chit.
Arch. 8 CJn. 721 ; also s. cccv. of this
Act.)
If defendant cannot find bail to the
Sheriff, or to the limits, or to the ac-
tion, he must remain in custody. —
Though in England defendants are
permitted under Statute 43 Geo. III.,
cap. 46, instead of giving bail, to de-
posit the sum endorsed upon the writ
and .£10 more, this practice does not
prevail in Upper Canada, there being
no" statutory or other provision to
warrant it. Bail to the Sheriff, and
to the limits, and to the action, must
as a general rule consist of two per-
sons at least. (See N. B. No. 75.) If
defendant will not or cannot put in
speciad bail as directed by the writ, the
plaintiff, nevertheless, may proceed
with his action : {R. v. Sheriff of Hatt-
inffs, 1 U. C. Cham. B. 230.)
2. Bail — how put in. — Bail is "put
in" by acknowledging before the Court
or a Judge, or a Commissioner for tak-
ing bail, an instrument called a bail
piece : (See a form Chit. Forms,
6 £dn., p. 289.) The bail piece usu-
ally states that the defendant having
been arrested, is delivered to bail on
a cepi corpus, to (naming his bail) and
the amount for which the arrest was
made. When taken before the Courts
or a Judge in Chambers or elsewhere,
(12 Vic, cap. 63, s. 9) or before a
Commissioner, and filed, (2 Geo. IV.,
cap. 1, s. 40) the bail-piece becomes a
binding recognizance. Th3 condition,
when set out, must follow the words
of 2 Geo. IV. cap. 1, s. 11, already
mentioned, unless modified with refer-
ence to the 4 Wm. IV.cap. 6, by adding
"or of the County in which the de-
fendant may be resident or found.'*
The Editor is not aware that in
practice there has been any deviation
from the original form under 2 Geo.
IV., s. 11. A bail-piece conditioned
to reader the defendant to a Sheriff
of a District, in which venue is not
laid, is not void: (Billings et al v.
Barry et al, E. T., 2 Fic, MS. B. &
H. Dig., Bail III. 8.) ^«— How far is
this case affected by ss. vii., viii., and
ix. of this Act ? When acknowledged
out of Court, it is signed by the Judge
or officer who takes the acknowledg-
ment, and may be afterwards en-
rolled according to the practice of the
Court: (Petersdorff Bail 360, 1.) The
officer who takes the acknowledgment
is an officer of the Court, and when
filed, the bail-piece is as if taken in
Court: (2 Geo. IV., cap. 1, s. 40.) It
must state in the margin the County
from which the process issued : ( Ward
vmce, or
; III i "
S. xxiv.] BAIL.
to judgment, in like manner as if the action had been com- proceedings.
V. Skinner, 3 0. S. 163.) Where there
vere two plaintiffs with the same
surname, " Michael and Robert Mei-
ghan" — the non-repetition of the Bur-
namo aftev the oristian name of
each, was held to be only an irregu-
larity : (Meiffhan et al y. Brown, Dra.
Rep. 176.) A bail piece may be
amended in the names of either the
plaintiff or defendant, with the con-
sent of the ball : (fianitll v. James,
H. T., 4 Vic, MS. R. & H. Dig.,
••Bail" III., 8.) The liberal powers
of amendment conferred upon the
Court or a Judge, by ss. xxxvii. and
ccxoi. of this Act, may include baila-
ble oases. So much for the form of
bail piece. Next as to the mode
of puting in and justifying bail.
The 2 Geo. IV., cap. 1, s. 18, is
as follows :— " That if any defend-
ant or defendants shall be taken or
detained in custody in any District
of this Province, on mesne process,
issuing out of any Court of Record
in this Province, at the suit of the
plaintiff or the plaintiffs, and shall be
detained or imprisoned thereon, after
the return of such process, it shall
and may be lawful for such defendant
or defendants, except in term time,
within the Home District of this Pro-
vince, or District (County) where the
Court shall be holden, and upon due
notice thereof given to the attorney or
attorneys of the plaintiff or plaintiffs
in such process, to put in and justify
bail, &c." Some doubt has been enter-
tained upon the reading of this enact-
ment, as to whether when it is intended
that bail should be put in before a Com-
missioner, and forthwith justify by
affidavit, it is necessary that a previous
notice of such intention should be given.
It is apprehended that the notice men-
tioned in this section, (see forms thereof
Chit. F. 6 Edn. 242, 248) is only ma-
terial, when it is intended to put in
bail, and forthwith justify before Court
or a Judge, having power to examine
into their sufficiency, and to grant an
order for the allowance of such bail.
A Commissioner for taking bail has no
authority to inquire into the sufficiency
of the bail, either for the purpose of
allowing or disallowing such bail : (See
and compare 2 Oeo. IV., cap. 1, s. 18,
which is taken from Eng. Stat. 48
Oeo. ni., cap. 46, s. 6, with 2 Oeo.
IV., cap. 1, s. 41, which is taken from
Eng. Stat. 4 Wm. & M., cap. 4, s. 2.)
A defendant may, under 4 Wm., cap.
5, 8. 2, put in bail in vacation, whether
he is or is not in actual custody.
Then as to County Courts, it is en-
acted, '* That every prisoner arrested
upon process, issued out of any of the
said District (County) Courts, whether
detained by the Shmff or other offi-
cer, upon the original arrest, or upon
the surrender by his bail, shall and
may be admitted to bail in term-time
and vacation, upon the same terms
and in the same manner as if he were
a prisoner under the like circum-
stances in the said Court of Queen's
Bench :" (8 Vic, cap. 18, s. 26.) In
fact the practice in both Superior and
Inferior Courts, is uniform. It is
enacted tiiat "in any case not ex-
pressly provided for by law, the prac-
tice and proceedings in the several
County Courts in Upper Canada, shall
be regulated by and shall conform to
the practice of the Superior Courts of
Common Law at Toronto, &c :" (Co.
G. P. A. 8. 19.) The recognizance
of bail, when taken before a Commit
sioner " shall be filed in the office of
the Clerk of the Crown, in the Dis-
trict (County) where the same shall
be taken, together with an affidavit of
the due taking the recognizance of such
bail or bail piece, by some credible per-
son present at the taking thereof;
(See Form Chit. F. 6 Edn. 254) which
recognizance of bail or bail piece so
taken and filed, shall be of the like
effect as if the same were taken in
open Court:" Provided, "that noth-
ing herein contained ^hall extend to
preclude any party from excepting
to the bail, in the manner and within
the time prescribed by law :" (2 Geo.
y
IN
3
2
68*
THE COMMON LAW PBOOEDURE ACT. [s. zxiv.
menoed by writ of summons and the defendant had appeared
IV., cap. 1, 8. 40.) Such bail-piece is
not perfect as a recognizance till filed :
(OUhapie et al t. Grant, 8 U.C.R. 400)
And it is a rule that "bail is no bail
until notice:" (Petersdorff on Bail 292,
298.) The next thin;;, therefore, to be
done, after • 'putting in bail," is to giro
notice to the attorney of the plaintiff:
(8.18of2Geo.IV.cap.l. N.R. No.81.
Forms— Chit.F.6 Edn. 241, 264, 266.)
The design of the notice is to give to
plaintiff the meanb of inquiry as to the
sufficiency of the bail It is proper for
the notice to state the names of the
bail, their degrees, their residences,
and whether house-keepers or free-
holders: (Sellon Pr. I. 148; Peters-
dorff on Bail, 268, 278, 292, 840.^
Plaintiff must, by note in writing
(See Form Chit. F. 6 Edn. 25&) and
due notice thereof, (See Chit. Form
.%i,M^40y,^, 6 Edn. 244)X" except," that is,
o^oot to the bail or else if the bail
be put in within the proper time,
they become absolute : (Sellon Pr. I.
160; also N R. Nos. 82, 83.) If
regularly excepted to, they are obliged
to " justify," that is, to prove their
sufficiency. In practice, however, it
is usual in Upper Canada for the bail
to make an a adavit of justification at
the time they become bail: (See
N". R. Noa. 80, 81 and 84.— Form of
' affidavit, N. R. 81.) This prevents
future trouble, expense and loss of
time, in the event of exceptions. The
time within which bail must justify,
seems to depend upon the English prac-
tice : (Arch. N. P. 186; Chit Arch.
8 Edn. 765 ; N. R. No. 86.) If the
defendant be in close custody, or if
he allow the time for putting in bail
.0 elapse, the bail must justify, and
a rule or order for their allowance
must be obtained although not ex-
cepted to. The persons before whom
bail may justify, are as follows: —
They may personally justify before
the Court, out of which process
shall have issued, or before any Jus-
tice thereof, or before the Judge pre-
siding in Chambers, or by affidavit,
duly sworn before a Commissioner for
taking affidavits, appointed by either
of the Superior Courts : (2 Geo. IV.,
cap. 1, ss. 18 and 41 ; 4 Wm. IV., cap.
5, s. 2; 12 Vic, cap. 68, ss. 9 and 48 ;
Petersdorff on Bail, 886, —6.) The se-
cond of these acts empowers the Courts
" to make such rules or orders as to
them may seem fit, respecting the
manner of justifying and perfecting
bail as aforesaid, and respecting the
notices to be given previous thereto,
the attendance of bail before a Com-
missioner or before a Judge, and the
affidavits or examinations to be re-
quired, &c." See N. R. T. T. 20 Vic.
Nos. 66-91, inclusive, all of which re-
late to these subjects. The affidavit of
justification, cannot be sworn before the
defendant's attorney: {Koyle v. Wil-
cox, 2 0. S. 113.) Bail will be allowed
to justify by affidavit, made at the
time of the acknowledgment, though
an exception to them be afterwards en-
tered, where nothing is shown to repel
such affidavit, or to impeach their sol-
vency : (Duffgan v. Derrick, H. T., 6
Wm. IV. 5 0. S. 75.) Bail, after due
notice of eroeption by plaintiff, or of
justification by defendant, may justify
in Court, or before a Judge, and the
affidavit just mentioned will be suffi-
cient, if no new matter be shewn : (lb.)
Bail excepted to in vacation, must jus-
tify in vacation, and have not till the
following term for that purpose: (Jfc-
Kerniev. McNab, E. T. 2 Vic, MS. R.
&H. Dig., "Bail" I. 3.)
8. Bail — before whorr. put in. — Bail
may be, during term, put in before the
Court, whence process issued: (1
Sellons, Pr. 188.) In vacatiou, be-
fore any Judge of such Court: (s. 13,
2 Geo. IV., cap. 1.) Or the Judge in
Chambers for the time being, no mat-
ter to which Court he may belong:
(12 Vic, cap. 63, s. 9.) Ai.y
Judge of assize on his circuit mu,y
take recognizances of bail, which be-
ing transmitted, shall be received with-
out oath: (2 Geo. IV., cap. 1, s. 42.)
Judges and Clerks of Ccunty Courts
are empowered to take bail in pro-
ceedings had in these Courts : (8 Vic,
Judge
I'f r.
m
s. xxiv.]
thereto.
BAIL.
57
cap. 13, s. 20.) The commoa mode
both in Superior and County Courts,
is before a Commissioner appointed by
either of the Superior Courts : (2 Geo.
IV., cap. 1. s. 40; 12 Vic, cap. 68,
s 48.) These commissions were is-
sued " for all and every the several
Districts of this Province." Districts
have been abolished, and Counties
substituted: (12 Vic, cap. 78, s. 1.)
But all laws applicable to Districts,
or the Courts, Officers, or other in-
stitutions thereof, shall be applied to,
and have the same operation and effect
upon the said Counties, and their re-
spective Courts, officers and other in-
stitutions, as Counties: {Jb s. 8.) Many
of the Districts were sub-divided into
senior and junior Counties ; the former
being the County in which the Court
House, &c, was situate. The Qore
District, for instance, consisted of the
County of Brant and other Counties, of
which Brant was the junior County.
It has been held that a Commissioner
appointed for the Qore District before
the division, had no power afterwards
to act as a Commissioner for Brant ;
(Carter v. Sullivan et al, 4 U. C. C. P.
298.)
The various steps thus enum-
erated and noticed, explain the manner
in which bail maybe "put in." One
thing more remains to be done. The
act says bail may be put in and
"perfected," according to the practice
now in force. A rule of Court or the
order of a Judge for the " allowance
of bail," must be obtained : (See
Forms Chit. F. 6 Edn. 2-51, 257.) In
the Home County, if bail be put in du-
ring term, the rule may be obtained
from the Practice Court. If bail be put
in during vacation, before a JusUce of
either of the Superior Courts, or before
a Commissioner, such Justice or the
Judge presiding in Chambers, may,
"if he think fit, order a rule to issue
for the allowance of such bail, and
may further ordor such defendant
or defendants to be discharged out of
custody, by Writ of Supersedeas, in
like manner as may bo done in term-
time:" (Stat. 2 Geo. IV., cap. 1, s.
18 ; 12 Vic, cap. 03, s. 9.) In Coun-
try cases, the following rule applies :
" When bail which has been put in, in^
the country, is to be justified in Court, *
the bail piece, with the affidavit of the
due taking thereof, nnd the affidavit of
justification, shall be transmitted by the
Deputy Clerk of the Crown, for the
County in which they have been filed,
to the principal office in Toronto, to be
filed and produced in Court, upon the
motion for allowance, on proper notice
being given such Deputy Clerk to pro-
duce the same :" (Rule T. T. 20 Vio.
No. 80.) This rule is substantially a
re-enactment of old rule of T.T. 8 & 4
Wm. IV., which by the New Rules is
annulled. It was provided by the old
rule that the bail piece, after being
transmitted, should be filed in the
office of the Clerk of the Crown and
Pleas at Toronto. If bail be put in
and justified before a Commissioner,
any Justice of the Court from which
process issued, or of either of the said
Superior Courts, in Chambers, (12
Vic, cap. 63, s. 9) "upon receipt of
the said bail-piece and recognizance
from such Commissioner, may, if he
shall think fit, [after proof of due no-
tice of justification, or upon cause
shown,] order a rule to issue for the
allown ce of such bail, &c :" (latter
part of s. 13, 2 Geo. IV., cap. 1.) If
a rule or order for allowance be ob-
tained, it should be served on the attor-
ney of the opposite part, in which
event the bail is considered perfected,
and the bail below discharged, or the
defendant, if still in close custody,
entitled to be liberated upon a Writ of
Supersedeas : (See Form Chit. F. 6
Edn. 258.) The rule of allowance
having been served, everything has
been done on the part of the bail,
which is required by the practice of
the Court ; and the bail are, there-
fore, said to bo " perfected :" (Sellon
Pr. I. 164.)
4. Bail — Stirrender of Principal —
!*>■*
\
■|:-|
68
THE COMMON LAW PROCEDURE ACT.
[8. XXV.
{App. Co. C.)
Attorney
XXV. (v) Every Attorney whose name shall be endorsed (w)
whoM name ^^ ""y ^"' ^^^^ ^'^^ '^® Commencement of any action (x)
M»the**writ ^^^^> ^^ demand in writing made by or on behalf of any
to declare Defendant fy), declare forthwith whether such writ has been
wnotoor lio
«««d It out, issued by him or with his authority or privity, and if ho shall
piaintiri answer in the affirmative («), then he shall also, in case the
ta ordered. Court or a Judgo shall so order and direct, declare in writing,
within a time to be limited by such Court or Judge, the pro-
fession or occupation and place of abode of the PlaintiflF (a),
on pain of being guilty of a contempt of the Court from which
See Stats. 2 Geo. IV., cap. 1, a. 12;
4 Wm. IV., cap. 6, sa. 1 & 8. As re-
gards County Gourta, see 8 Vic, cap.
18, B 27. Also see R. & H. Dig., "Bail"
I., cases 4, 5, 6,7, 8, 9, 10, 11 & 12;
and N. B. 87, 88.aZ>« ««*,«-/• »•••»< -
5. Proceedings against Bail. — In Su-
perior Coarts, see B. & H. Dig., Bail
II. In County Coarts, see Stat. 8
Vic., cap. 18, s. 60, as explained by
12 Vic, cap. 66, s. 7. Also N. R. 67,
68, 69, 71, 72, 89.
6. Bail generally. — See Chit. Archd
8 Edn., 784 etseq ; 9 Edn. 768 ct seq;
Forms— Chit. Forms, 6 Edn., 289 et
seq ; 7 Edn., 898 et seq.
\v) Taken from Eng. St. 15 & 16
Vic, cap. 76, s. 7. Applied to County
Courts. Muoli resembles repealed Stat.
12 Vic. cap. 63, 8. 81, which was a
transcript of Eng. Stat. 2 Wm. IV.,
cap. 89, 8. 17. The object of this
and 8. zxi. is to give the defendant full
information as to the place where he
Qi^y go> ^ order to settle the action :
(Seel>awe»v. Solimenson, 6 Scott 696.)
(w) As to which see s. zxi. of this
Act and notes.
(x) Applies equally to writs of capias
and summons: (see Qilson y. Carr,
4 Dowl. P. C, 618.)
{y) No time is mentioned within
which the demand must be made. It
would be clearly too lato after yerdict :
(See Hooper y. Hareourt, 1 H. B. 534.)
It should be made at least soon after
the circumstances which render it ne-
cessary have come to defendant's
knowledge. In this there would be an
analogy to the well-settled practice re-
gulating applications for security for
coat : (Chit Archd. 8 Edn. 1234 ;
Forms of demand. Chit. Forms 6 Edn.
12, 7 Edn. 68.)
(2) If the attorney answer in the
affirmative, and defendant insist upon
knowing the plaintiff 'a profession,
abode, &c, defendant should take out
a summons for the purpose. Plaintiffs
attorney is only bound to deliver such
particulars "in case the Court or a
Judge shall ao order and direct." In
one caae an order was refused where it
appeared that the object of the appli-
cation was to arrest plaintiff on a cri-
minal charge : (Harris v. Holler, 7 D.
& L. 819.)
(a) A temporary abode at a coffee
house ia insufficient : Defendant enti-
tled to ask for a better residence: {Hod-
sony. Gamble, 8 Dowl. P.C.I 74; Gilson
y. Carr, 4 Dowl. P.C. 618.) If the in-
formation given be insufficient, a sum-
mons should be taken out for better
particulars: {Smith v. Bond, 2 D. &
L. 460.) If the information be false,
the parties who give it are punishable
for contempt: (lb.) In a case where
the particulars were false, an applica-
tion to stay the proceedings made after
trial was refused, as it did not appear
that the defendant had sustained any
real prejudice from the fraud practised
upon him ifllb.) The liability to costs «««(<«Ci/
of an attorney who brings an action A '^.f/
without knowing or being able to give
the address of his clients, was much
discussed in a recent case. No deci-
sion was come to ; for the case went
off upon other points : (See Collins v.
Johmon, 16 C. B. 588.)
INDORSEMENTS ON WRITS.
59
S. XXV.]
such writ shall appear to have been issued (&) j and if such J'^°'j^*||.'JJ
Attorney shall declare that such writ was not issued by him J**''"""' •••
or with his authority or privity, all proceedings upon the same it out.
shall be stayed, and no further proceedings shall be taken iJJfS'^gl';^"^'
thereon without leave of the Court or a Judge, (c)
XXVI. (d) Upon the writ and copy (e) of any writ served (^w- ^'^'0^^1x0^,.'
*Ti
4'
(6) Where an attorney received in-
structions by a letter dated at " Brid-
port," and afterwards received from
the plaintiff another dated at " Lynn,"
and an order having been obtained he
gave " Bridport" as the place of resi-
dence; it afterwards appeared that
the plaintiff had left Bridport before
the action was commenced, and a se-
cond order was obtained, upon which
the attorney gave " Lynn." This, too,
turned out to be incorrect. The Court,
upon motion for an attachment against
the attorney, ordered him to pay the
cost of the inquiry and of the motion,
and stayed proceedings until such time
as a true address could be given:
{Neal v. Ilolden, 8 Dowl, P. C. 493.)
Under the old practice, when an at-
torney refused to comply with the
Judge's order, the Court allowed de-
fendant to non.proi. plaintiff, and order-
ed the attorney to pay the costs : (Gynn
V. Kirbij, 1 Str. 402.)
(c) These latter words, "all pro-
ceedings upon the same shall be stay-
ed," &c., were not used either in 12
Vic. cap. 63, s. 31, or in the English
act 2 Wm. IV. cap. 39, s. 17, whence
it was taken. The provision is a new
one founded upon Eng. Bute, No. 14
of M. T., 3 Wm. IV: (Jervis N. R. 4
Edn. p. 98, from which our Rule, H.
T. 13 Vic. No. 12 was copied.) It
is not clear but that the Court, inde-
pendently of this enactment, has the
powers therein conferred. In Oppenham
V. Harrison, Burr. 20, proceedings
were set aside on the ground of an
attorney's name having been used with-
out his authority. See also Ilopwood
V. Adams, Bur. 2660, where a judg-
ment was set aside under like circum-
stances. The attorney, besides, is an
officer of the Court, and as such bound
to obey orders of the Court in refer-
ence to actions by him conducted.
The general jurisdiction of the Court
gives it power to control its ow^i pro-
cess, and prevent that process from
being abused : (See Johnson v. Birlei/,
6 B. & A. 540; Worlen v. Smithf
5 B. & A., 543 note a ; Bracehy v.
Dalton, 2 Str. 706) An attorney
cannot be compelled to disclose his
client's residence afterverdict: (Hooper
V. Uarcourt, 1 H. B., 534 ; Shtndcr v.
Roberts, Barnes, 126.)
(d) Taken from Eng. St. 16 & 16
Vic, cap. 76, s. 8. Applied to County
Courts. The provisions of this section
are such as were formerly required by
Rule of our Courts, T. T., 3 & 4 Wm.
IV., No. 3, which was rescinded by
Rule of H, T., 13 Vic, No. 4. The
old Rule of T. T., 8 & 4 Wm IV., No.
3, was taken from the Eng. Rule of
H. T., 2 Wm. IV., No. II. : (Jervia
N. R. 90.) A nominal compliance
with it by plaintiffs, and inattention to
it by defendants, was said to be the
cause of its rescission. Indorsements
of sums far exceeding the true debt
and costs, were commonly made in
total disregard of the rule.
(e) "Upon the writ and copy of
any writ served or executed," is mani-
festly intended to include both bailable
process and serviceable process. A
true copy of non-bailable must be serv-
ed on defendant : (Scott et al v, Hef-
ferman, 5 0. S. 821, R. & H.
Dig., "Process" 3.) In the absence
of proof to the contrary, defendant
may assume that tho copy served
is a true copy, and that if the copy be
defective, so also is the writ: {Chap-
man V. Becke, 3 D. & L. 350.) The
omission of the letters " L. S.," or any
mark to denote a seal to tho copy of
'
I H
CO THE COMMON LAW PROCEDURE ACT. [s. XXVi.
debt"imd'' '^^ executed for the payment of any debt, (/) the amount of
oMtiofwTit the debt shall be stated, (q) and the amount of what the
on It, Ac Plaintiff's Attorney claims for the costs of such wnt, copy
and service, and attendance to receive debt and costs, {h) and
it shall bo further stated, that upon payment thereof within
ttdn nouw. eight days, ( i) to the PlaintiflF or his Attorney, {j ) further
a writ, is not an irreguliirity : {Cam-
eron V. Wheeler, 6 U. C. R. 865.)
(/) Tbis section AppUen only to
debts — that is, to sums certain, or
money demands that can be estimated :
(See Perry v. Patchetl, 2 Dowl. P. C.
667 ; Carwm v. Moaely, 1 Dowl. P. C.
482.) It would therefore seem un-
necessary, if not improper, to put the
indorsement on a writ claiming for
any other cause of action : (See Ed'
wardi T. Dignam, 2 Dowl. P. C. 240.)
The section does not apply to a qui
tarn action : (See D iviea v. Lloyd, 6
Dowl. P. C. 173 ; Ilobha v. Young, 2
D. & L. 474.) Nor to an action on a
bul bond : (See Smart v. Loviek, 8
Dowl. P. C. 34.) Nor to a replevin
bond: (See Rowland v Daykeyne, 2
Dowl. P. C. 832 ; but see Robinson y.
Hawkins, 1 Jur. 813.) Nor to any
case where the party claims unliqui-
dated damages, as well as a debt:
{Perry y. Pateketl, 2 Dowl. P. C, 067,
and Mansfield v. lireary, 1 A. & E.
847 ; Jacquot v. JJoura, 5 M. & W.
165. Soe also Rogers v. Hunt, 10 Ex.
474, decided under s. xli. of this
Act.) Where the writ, under the old
practice was in trespass on the case,
and the endorsement for a debt, it was
held to be bad : (Richards v. Stuart,
10 Bing. 319; see aliio notes to s.
cxlii.) ^M.—What would be the
practice if the plaintiff bring one
action for several causes of action,
some of which are liquidated demands
and others not ? (s. Ixxv.) If defendant
seek to take advantage of tlic omission
to indorse process n.sabove required, he
must show distinctly by uflidavit, that
the cause of action is a debt: (Legatt
y.Marmontt, E. T. I' Vic, MS. II. & H.
Dig., *' Indorsement," I. 9 ; Ourwin
V. Moaely, 1 Dowl. P. C. 432 ) Where
the omission of the indorsement on a
bailable writ, was supplied within two
hours after the arrest, before bail was
put in, and before application to set
aside proceedings, the old Rule 3 T. T.
8& 4 Wm. IV., was held to be suffi-
ciently complied with: {Smith v. Smith,
4 0. S. 10; Sed. Contra. Gibbt T.
Kimble, 1 U. C. R. 408.)
{g) Not directory, but compulsory :
{Ryley v. Jioisaojnas, 1 Dowl. P. C.
383.) If a larger sum than is due be
indorsed, proceedings will bo stayed,
upon payment of the real debt with
costs of the Writ only : {EUiaton v,
Robinaon, 2 Dowl. P.C. 241 ; Young ▼.
Crompton, 2 D. & L. 557 ; see also Wat-
son V. Coleman, 7 M. &G.422.) For this
purpose a summons sh< aid be taken
out in the usual manner.
(h) Plaintiff may abandon his costs
if ne prefer to do so. If such be lu8
intention, he should not serve such pro-
cess upon defendant as to leave him in
doubt : ( Trualovc v. Whitechurch et at,
8Dowl. P.C. 837.) For instance, "the
plaintiff claims £85 8s. 6d. for debt,
and £ for costs" — this is irregu-
lar : {lb. ; see Humber v. llusaell, 6
Scott, 1. ; Young v. Crompton, 2 D. &
L. 557.)
( i) Within eight day a, ^c, t. e. fton.
the service of the writ — both first and
last days it seems inclusive. See
N.R.1G6. ''Four days " in English Act
from which this section is taken. So it
was in the old Rule of 3 & 4 Wm. IV.
(/) The rescinded Rule 3 & 4 Wm.
IV., made some distinction in this par-
ticular, between writs issued by attor-
ney and by plaintiff in person; "and
that upon payment thereof, within
four days, to the plaintiff's attorney,
or to the plaintiff when the writ shall
have been i^isued by the plaintiff in
seem,
costs:
0. 424
shoulc
,««» ^} Danrti
/t «*/ within
and CO
'^
g. zzvi.]
1NDOR8KM1NT8 ON WRITR.
61
prooeodings will be stayed, (t) which indorsement shall beDai^adtnt
written or printed in the following form, or to the like effect : ^f, uuu.
(y) "The Plaintiff claims £. for debt ond X for
« costs ; and if the amount thereof be paid to the Plaintiff or
« his Attorney within eight days from the serrico (Je) hereof,
person :" (Rule 8, T. T., 8 & 4 Wm.
' IV., Cam. Rules, p. 11, "rrocose" 2.)
It may be that the words " Plaintiff
or bis Attorney," as used in the see.
here annotated, mean the came thing.
(i) The object of the indorsement is
to show the defendant, in express
terms, what the plaintiff is contented
to take, in order that the former may
tender it, together with the costs,
within eight days : {Chapman y. litcke
3D.&L.352, per Patterson, J.) Indorse-
ment held to be unnecessary on a pro-
ceeding by bill, against an attorney.
{Lkmllen v. Norton, 1 Dowl.P.C.4l 6 ;
Lonff V. Wordsworth, 4 B. & Ad. 467.)
Since held to be necessary a<< ])roceeding
by bill is abolished : {Totnjikina f. ChU-
cote, 2 Dowl. P. C. 187.) It is appre-
hended that if the debt be understated,
pluntiff, if tendered tlie amount in-
dorsed, would be bound to accept it, and
thereby lose the difference between the
sum stated and the sum due, unless in
the case of very special circumstances.
If the plaintiff refuse the amount ten-
dered, whether the sum endorsed or
less, such refusal may be noted by the
Judge on a summons, and if after such
proceeding plaintiff recover no more
than tho sum tendered, he will, it would
seem, bo liable to pay defendant's
costs: (Sceirrt/soHY. Coleman, 7 M. &
G. 424. ) The sum tendered, if refused,
should be paid into Court : ( Clerk ▼.
4«»«Jd i>an;iyp.&L. 513.) If defendant do not
/t «*/ within the time limited pny the debt
and costs, he cannot afterwards do so
as a matter of right: (Bowditch v.
Slaney, 4 Dowl. P. C. 140.) Plaintiff
may in his declaration insist upon an
increased sum : (/&.) And defendant
will be liable to any additional costs
which the Master may allow : (Pi.) It
is otherwise if plaintiff's attorney re-
ceive and retain tho money r.fter the
expiration of the eight days : {Ilod-
ding y. Sturchfield, 7 M. AG. 067.
See also Wjillie v. J'hillipa, 8 Bing. N.C.
770 ; Covington v. Hogarth, 2 D. & L.
010.)
{j ) This is substantially the same
indorsement as that prescribed by the
old Rule of 8 & 4 Wm. IV.
(k) The word " execution," substi-
tuted for " service^" has in England
been held to be an irregularity
even in bailable actions : (Shirley y.
Jaeoba, 1 Scott 07 ; Urquhart v. Dick,
8 Dowl, P. C. 17; Boddington y.
Woodley, 1 Jur. O'-iO, W. W. & D. 581.)
Bed. Qu. In Upper Canada? The
words of tho section under considera-
tion are, " Upon the writ and copy of
any writ served or executed." The
objection, if good in Upper Canada
as in England, would not be such as
to warrant the discharge of defend-
ant out of custody. An amendment
of the indorsement would be allowed to
Jlaintiff.upon payment of costs. ( Urqu-
arty. Dick, Littledale, J., 3 Dowl.P.C.
17.) Where the indorsement required
the defendant to pay the debt within
four days from the '-'arreat or service"
thereof, held to be sufficient, as the
words *' arr3st or" might be rejected
as surplusage: (Sutton y. Burgeaa, 1
C. M. & R. 7/0.) "Defendant mubt
know the time he was served, and
that he had four days from the
service of the copy, within which to
pay the debt and costs, to avoid any
fiirther expense" : (lb.) Wliere the
indorsement was to pay the amount
within four days from the •• arreat
hereon," held to be a fatal irregularity :
(Cooper y. Waller, Tabram v. Thomas,
8 Dowl. P. C 107.) An amendment of
the indorsement, by altering tho
amount of the debt mentioned in it,
was refused: (Trotter y. £ass, 3 Dowl.
P. C. 407.) It might now possibly be
allowed under s. ccxci. of this Act.
\ »
i • '
I
".
I
62
THE COMMON LAW PROCEDURE ACT.
[8. zxvi.
15 k 10 Vie. " further proceedings will be stayed ;" (/) Hut the Defendant
c«p. 76, 1. 8. ^^^jj 1^^ ^^ liberty, notwithstanding such payment, to have the
costB taxed, and if more than one-sixth be disallowed, the
Plaintiff'* Attorney shall pay the costs of taxation, (m)
(0 Tho writ must bo bo Indorsed
that nn unlettered person may at onoe
be inforiuod what is demanded of him :
(Truilove v. Whilechurch, SDowl P.O.
887.) It must state clearly what is
claimed for debt and what for costs :
{lb.) If interest be claimed, tho
amount must bo stated, or the period
from which it is reckoned : (Chapman
y. Becke, 8 D. & L. 850; Fryer y. Smith,
6 M. & G. COS ; BardeH v. Miller, 7
C. B. 763.) "The plaintiff claims
£20 debt, with interest from 10th
March last" is sufficient : (Copello v.
Brown, 8 Dowl. P. C. 106; Stahi
V. llearne, 8 Dowl. P. C. 190.) It
will bo intended that the interest
claimed is legal interest: Allen t.
Bu»»cy, 4 D. & L. 430.) Tho fol-
lowing additional cases may bo consult-
ed as to when this enactment is or is not
sufficiently complied with — Evans v.
Bidgood, 4 Bing. 63 ; Patterson v.
ITakeshaw, 1 Hod. 816 ; Fitzgerald t.
Evans, 6 M. & G. 207. The want of
tho indorsement would be an irregular-
ity: (Truilovey. ITAj/ccAurcA, 8 Dowl.
P. C. 837.) Amendable probably
under s. xxxvii. of this Act. As to
special indorsements see s. xli.
(m) Defendant may have tho costs
taxed, though he pay less than tho
sum indorsed, and though plaintiff's
attorney accept the same : {jiunter v.
Kussel, 6 M. & G. 001 ; but see Young
y. Crampton, 2 D. & L. 657 ; also see
ex parte WooUett, 1 D. &. L. 693.) If
defendant desire to have costs referred
to taxation, notwithstanding payment,
he should take out a summons to
show cause "why the bill of costs
indorsed on the writ of summons paid
by him, should not be referred to tho
master for taxation," and " why if
more than a sixth be taken off, ho
should not refund tho surplus, and pay
the costs of taxation." Tho enact-
ment here annotated, and Prov. Stat.
16 Vic, cap. 175, s. 20, aro pari
materia, though tho latter enactment
appears to relate only to costs as be-
tween attorney and client. The ma-
terial part of it is in these words : —
" And if such bill when taxed, be
less by a sixth part, then the bill
delivered, &c., then such attorney,
&c., shall pay such costs, (the costs
of reference.) And if such bill when
taxed shall not be less by a sixth
part than the bi'l delivered, &o., then
the party chargeable with such bill,
making such application, or so at'
tending, shall pay such costs." This
provision proceeds further than the
Eng. Stat. 2 Oeo. II., cap. 23, s. 28.
In tho latter Statute, tho words used
aro much tho same as tho words of
8. xxvi., under consideration. " If
the bill taxed bo less by a sixth part
than the bill delivered, then the attor-
ney or solicitor is to pay the costs of
taxation; but if it shall not bo less,
the Court in their discretion shall charge
the attorney or client, in regard to the
reasonableness or unreasonableness of
such bills." In reforonoe to this enact-
ment, Baron Park said : " It has been
held by the Court of Common of Pleas,
that the Statute directing the pay-
ment of costs, is not correlative : {El-
wood V. Pearce, 8 Bing. 88.) It does
not necessarily follow that tho defend-
ant is to pay the costs of taxation,
though less than one sixth bo takon
off; although if more bo disallowed,
tho plaintiff's attorney is b:<und to
pay these costs. The Court have a
discretion which they may exercise
according to the reasonableness or
unreasonableness of the charges in
the bill, whether thoy will make the
defendant pay tho costs or not. I have
always understood that where an attor-
ney wilfully inserts any item of charge,
even one shilling which he must know
ought not to be charged, he is not
sary ai
Edn., 1
by tho
Commisi
force
note J.)
a. zxvii.]
CONCURRENT WRITA.
68
XX VIT. (n) The PlaintiflF in any action may, at any time (jtj>p. o>. c.)
durinff six months from the issuing of tho original Writ of riaintiir «^' ^^*' '^
Summons [or of capias] (o) issue from tho office whence the contumtu « ^a^^f^
original Writ issued, cue or more concurrent Writ or Writs of*^' " ,> ^^
tho same kind (/>) to l)o tested of the same day as the original "■§ * -^
f'
IV
entitled to tbo coats of taxation : "
{l/oUtrtifna V. Barkworth et at, 8 M.
& W. 8il.) Defendant ebould pay,
within tlio eight days, tlio costs in-
dorsed on tlio writ. If ho pav more,
h« docs 80 of liis own fault : ( ward v.
Oreffff, 6 Dowl. P. C. 729) Where
therefore, in addition to the costs in-
dorsed on tho writ, defendant paid a
sum of 5s., demanded of him by plain-
tiff's attorney, nnd afterwards on tax-
ation a sum was talcen off, which, with
the 5s., was more than one-sixth, but
without it, load than one-sixth of tho
bill ; it was held that the attorney was
not bound to pay the costs of refer-
ence: (If>.)
(n) Taken from Eng. Stat. 15 & 16
Vic, cap. 75, s. O^Applied to County
Courts. The practice was first al-
lowed by the Courts as being neces-
sary and convenient: (Chit. Arch. 8
Edn., 158.) Being such it is continued
by tho C. L. P. Act : (See 1st Rep. of
Commissioners, s. 5.) Original writ in
force only for six mouths: (s. zvi.
note/)
(o) Suppose original writ to be re-
newed under the next following section,
(xxviii.) would the time for issuing
concurrent writs be thereby extended ?
Would there be six months allowed
from tho date of the renewal, for the
issv of a concurrent writ? What is
the meaning of the expression, " ori-
ginal writ." Does it mean original
writ Its contra-distinguished to '* Re-
newed" writ ? These questions have
recently been judicially considered. It
has been held — 1. That a concurrent
writ can only be issued within six
months ond no longer from the first com-
mencement of the action by the " original
writ." 2. Thatif a writ, issued before
the act came into operation, be renewed
under the act, becomes, by such first
renewal quasi, the "original writ," on
which a concurrent writ may be issued
within six months from such renewal.
8. Where therefore, a writ of summons,
issued before the first Eng. C. L. P. A.
came into force, was renewed Arom
time to time under that act, and
within six months after the last re-
newal, but more than six months from
the first renewal, the plaintiflf issued,
for the first time, a concurrent writ
for service abroad, that writ was set
aside as irregular: (Coles f, Sherrard,
2G L. T. Rep. 188 ; 83 L. & Eq. 464.)
(p) These writs are issued when it
is desirable to proceed against a de-
fendant without delay, and it is doubt-
ful in which County he resides, or if
known it is anticipated that he is about
to flee from one County to another.
Under the old practice a defendant
was described in the writ as of "Mid-
dlesex ;" but it being afterwards dis-
covered that he resided in " Surrey."
The writ was altered by plaintiff's
attorney, by substituting the latter
County for the former. The writ not
having been re-sealed, the Court set
the proceedings aside: {Siggers t.
Sansom, 2 Dowl. P.C. 745.) To obviate
the trouble and difficulty which may
arise in oases of this nature, it is en-
enacted that concurrent writs may bo
issued. Besides it is now enacted,
" that the writ of summons mny be
served in any County : (s. xxxi.) —
Concurrent writs are in fact original
writs, describing defendant as resid-
ing in different Counties. One writ only
is nt-ctissary for the commencement of
an vction : (s. xvi.) If several be is-
sued, defenaant is only liable to the
costs of the writ' served upon him :
{Dunn V. Harding, 2 Dowl. P. C. 803.)
Even of concurrent writs of capias,
defendant cannot complain, as he can
be arrested only once : {lb.) It was
therefore held, that concurrent writs
L U
64
THE COMMON LA.W rROCEDUBE ACT.
[s. XXTii.
Their date, Writ, (j) and to be marked by the Clerk or Deputy Clerk
*"• issuing the same, with the word " concurrent^' in the margin,
Uai^ «!i^»x~^**'' with the memorandum required by the twentieth Section of
.><*3«*-na; ^AVc.L.P.tiiis Act: (r) Provided that such concurrent Writ or Writs
A. 1862, 8.9. / v. ^
shall only be in force for the period during which the original
Writ in such action shall be in force, (s)
^ „ , ^ n XXVIII. CO No original Writ of Summons (or capias) (u)
<S*^S2»f J i/,,., within what , „, . „^^ „ " ,. • xu / x r X i if
<3Si 5L1. Cj ' time Writs shall be m force for more than six months {y) trom the day of
of capias might issue into dififerent
Counties : (Rodwell v. Chapman, 1
C. & M. 70; Anffut v. Coppard, 3
M. & W. 67 ; Anffua v. Medwin,
7 L. J. Ex. 10.) Concurrent writs
of Summons, wliere there is only
one defendant, may not, under the
C. L. P. Act, be as necessary as for-
merly. It is sufficient in the Sum-
mons to state the residence or " sup-
posed residence" of the party defen-
dant: (s. zvi. and note 2 thereto.)
And the writ when issued, may be
served upon defendant in any County
in which ho may be found : (s. xxzi.)
The main object of this enactment is
to meet the case of several defendants
residing in different Counties. And
a concurrent writ for service, within
the jurisdiction, may be marked as
concurrent with one for service with-
out the jurisdiction, and vice versa :
(a. zxxiz.) Concurrent writs will there-
fore be a great convenience where there
are several defendants resident in dif-
ferent parts, and it is desired to proceed
against all without delay. They cannot
be nn inconvenience to any one de-
fendant, for he would be liable only to
the costs of the writ served upon him
individually : (Anffua v. Coppard et al
3 M. & W. 57 ; Croio v. Crow, 1 D.'&
L. 709.)
( q) Though tested on the same day
aa the original writ, it must be remem-
bered that the ccr current writ need
not be issued on that day. It may be
issued at any time " during siz months
from the issuing of the original writ."
(r) Memorandum stating *' from
what office and in what County such
writ was issued."
(4) Original may be renewed and
continued in force for a period longer
than siz months : (s. zxviii.) The
difference between a concurrent writ
under this Act, and an alias writ under
the old practice, appears to be this : —
A concurrent writ must be issued
while the original writ is in force ; an
alias was only resorted to when the
ezigency of the original writ had been
spent.
(<) Taken from 15 & 10 Vic, cap.
79, s. 11 — Applied to County Courts.
The Commissioners were not in favor
of the Writ of Summons having an in-
definite duration. They recommended
that "it should have a limit, but that
it might be renewed, and if renewed,
should for all purposes be renewed in
the same manner." The object being
to provide for cases where plaintiffs
may be really unable to serve the
writ within the period limited by
the original writ : (See 1st Report,
8s. 6 and 7.) The Legislature have in
this provision followed their sugges-
tions. The effect of the section will
be, first — to prevent the necessity for
alias and pluriea writs ; and, secondly,
in oases where the Statute of Limita-
tions is pleaded to prevent the trouble
and expense of making up and proving
the roll on which the writs and con-
tinuances were formerly entered. The
Stat. 12 Vic, cap. 63, s. 25, which
authorized the issue of alias aud pluries
writs has been repealed : (s. cccxviii.)
(u) Words in brackets not in Eng-
lish Act.
(v) i. e. Calendar months : (see In-
terpretation Act 12 Vic, cap. 10, s.
6 sub s. 1.) The old practice was
1%'-
•t! ![(.
B. xxviii.]
BENEWAL or WRITS.
65
the date thereof, including the day of such date; (to) but if "JJJl^^j^^
any Defendant therein named, may not have been served ^^^8
therewith, (x) the original or concurrent (y) Writ of Sum-
mons (or capias) may be renewed at any time before the expi-„
ration, for six months from the date of such renewal, (z) andA.,i852,8.ii'.
ao from time to time, (a) during the currency of the renewed
«fonr months:" (12 Yio., cap. Q8,
8. 26.)
(w) The original 'writ is to be in
force for six months from its date,
« inoluding the day of such date." t. e.
A writ issued on 1st Janmary, would
expire on 80th June : {Black t. Oreen,
per Matde J. ; 29 L. & Eq. 262 S. C,
15 C. B. 262.) A defendant who has
been served with a writ, after its exi-
gency has expired, should not treat it
as a nullity, but apply to set
the service nside: (Kemp v. War-
ren, 2 Dowl. N. S. 768.) And
where a writ under these cir-
cumstances was served at defend-
ant's request, in order to save expense,
tiie service was held good: (Coatesy,
Sandtf, 2 M. & O. 818.) It was held
not to be a waiver by defendant, but
an agreement to accept service after
the time for service had expired : (lb.)
As to the course to be taken by parties,
served by mistake: (see Walkery. Med-
land, I'D. Si L. 169'; Rieharday. Han-
ley, 10 Jur. i066 ; Stevenson v. Thome,
18 M. & W. 149.) It isnot necessary
for a party so served to state in his
affidavit when applying to set aside the
copy and service of the writ, that he
is the defendant in the cause. (Steven-
ion V. Thome, per Pollock, C. B. 18
M. & W. 160.)
(z) Service on a wrong person, is
the same as no service at all: (See
Clark V. Johnson, 2 B. & C. 96.)
iy) See s. xxvii.
(;) Original writ issued on 1st Jan-
uary. Renewed 80th June following.
Is not the- -^newed rrit to be in force
until 80th December, and no longer?
The difficulty arises from the fact that
the original writ is declared to be in
force "from the day of the date
thereof, including the day of such date,"'
E
and may be rx^nowed at any time before
its expiratien >=for six months from
the date of such renewal." Maule, J.,
inferred that it was the intention of
the Legislature that the two periods
should be computed in the same way.
The question is undecided, and it is
this — whether the six months for which
a renewal writ is to be available are to
be reckoned inclusively or exclusively
of the date of renewal ? In two cases
in 'which the point arose, the Courts
directed the officer to renew the writs
nunc pro tunc. No opinion having
been given as to how the cause of
action would be affected by such re-
newal : {Black v. Green, 15 C. B. 262,
twice reported in L. & Eq. Bepts. ;
28 L. & Eq. 837, as « Anonymous ;"
29 L. & Eq. 260, under the proper
style.) It is doubtfhl whether or
not our 2 Oeo. lY. cap. 1, s. 22, will
aid in the soluti(Hi of the difficulty.
It is in these words, <'The first and
last days of all periods -of time limited
by this (Act E. B. Act,) or hereafter
to be limited by any rules or orders of
Court for the regulation of practice, be
inclusive." See also N. B. No.
166. The common law construc-
tion is that the first day be exclusive
and the last day inclusive. Under
the Eng. Act 2 Wm. IV. o. 39, it was
held that in order to renew an original
writ by the issue of an alias, when
the original writ would expire on 7th
May, the subsequent process should be
entered of record no later than 6th
June : {McKellar v. Reddie, 4 M. & 0.
769.)
(a) It is to be understood that a 'writ
once renewed may be again and again
renewed, if necessary. The renewal
of the first to be effected within six
months from the <late of the original
|^(, 1 4
ji^Ml
M
'^ I
J
i5 .'■■■:
66 THE COMMON LAW PBOOEDURE ACT. [s. XXViii.
newaiM to^ Writ, by being marked in the margin, with a memorandum to
iJmitottoiu. *^® ^^^^^ following : (6) " Renewed for six months from the
" day of ," signed by the
Clerk or Deputy Clerk who issued such Writ, or his successor
in office, upon delivery to him by the Plaintiff or his Attorney,
ot&prsectpe, in such form as has heretofore been required to
be delivered upon the obtaining of an alias Writ ; (c) and a
Writ of Summons, (or capias) so renewed, shall re: aain in
force and be available to prevent the operation of any Statute
whereby the time for the commencement of the action may be
limited, and for all other purposes from the date of the issuing
the original Writ, (d)
writ, including such date. The second
and subsequent renewals to be effected
within six months from the date of the
first renewal. When a writ has been
once renewed, the time does not run
from the date of the original writ, but
from the time of the renewal: —
(Anon. Grompton J. y 28 L.&Eq. 224.)
If the time expire on Sunday 6th, the
writ ought to be renewed on Saturday
4th. Plaintiff has not till the follow-
ing Monday. (lb.) The method of
renewal here provided is intended as
substitutionary for the issue of alicu
and pluriea writs. The cases decided
under the latter practice were the fol-
lowing — An indorsement on an aliai
or pluriet writ must oontsdn the date
of the first writ and return thereto :
Williamsv. Williamt, 2 Dowl.N.S.209.)
But an amendment in this particular
was permitted : (lb.) And see Mavory.
Spalding, 1 D.& L.878.) Where an alicu
had not issued in due time, the Court
refused to amend the date of the preced-
ing writ, in order to admit of its issue:
(Vampbell t. Smart, 6 C. B. 196 ; & D.
s L. 885.) An alias was amended by
inserting the date of the first writ:
(Culvermll v. liupee, 4 D. & L. 80.)
(b) Eng. act "By being marked
teith a teal," &c.
(c) The prceeipe for an aliaa writ
only differed from the ordinKj praeipe
by the insertion of the word " alias."
The
writ
of—
form
of —
now will be, "Renewal
-for A. B. against C. D.,
-in the county of-
»
(d) The production of the writ, with
a mem. purporting to be signed as
above required, and showing such writ
to have been renewed, is sufficient evi ■
dence of renewal: (s. xxx.) The
question of renewal arises on an issue
joined on a plea ofthe Statute of Limit-
ations: (see Jfiggt y. Mortimer, 6 D. & L.
757.) Where the writ issued within six
months after the cause of action accru-
ed and was not duly continued, pursuant
to Eng. Stat. 2 Wm. IV. cap. 89, s. 10,
it was held that the defendant was not
bound to plead such non- continuance
specially, but might take advantage of
i^ under the general plea that " the
cause of action did not accrue within
six years next after the commencement
ofthe suit: (Pratt v. Ilawkina, 16 M.
& W. 399.) For this purpose the last
writ served was held to be the com-
mencement of the suit: (lb.) Where
the original aliat and pluries writs of
ca. re. had been sued out and the last
writ served, it was bold that the plain-
tiff, in order to acquire the advantage
of having the notion considered as com-
menced by the first writ, with refer-
ence to a plea of payment or the Sta-
tute of Limitations, should show at the
trial that the first writ was returned :
(McLean v. Knox, 4 U. C. R. 62.)
8. xxix.]
RENEWAL OF WRITS.
-lU >■
67
XXIX. (e) When any Writ of Summons [or Capias] in jfYg^-^^j^o-
any such action shall have been issued before, and shall be in „
, i« t • 4 Renewing
force at the commencement of this Act, such writ may, at any and return-
time before the expiration thereof, be renewed under the pro- iisuud before
visions of, and in the manner directed by this Act ; (/) and mencemeut
where any writ, issued in continuation of a preceding Writ, Ac.
according to the provisions of the Act passed in the twelfth issued in con-
year of Her Majesty's Keign, intituled. An Act to make fur- prcmung"
ther provision for the administration of Justice, hy the estab-oie Act. ^^
lishmcnt of an addditional Superior Court of Common Law,
and also a Court of Error and Appeal in Upper Cunada,
and for other purposes, (<jr) shall be in force and unexpired, or
where one month next after the expiration thereof, shall not
have classed at the commencement of this Act, (K) such con-
tinuing Writ may, without being returned non est inventus,
or entered of record according to the provisions of the said
Act, be filed in the proper office of the Court, within one
month next after the expiration of such Writ, or within twenty
days after the commencement of this Act, {%) and the original
Writ of Summons or capias in such action may thereupon, but
within the same period of one month next after the expiration
■ (e) Taken from Eng. Act 16 & 16
Vic, cap. 76, s. 12 — Not applied to
County Courts. But see a similar pro-
vision as regards these Courts : (Go.
C. P. A. 8. 8.)
(/) See preceding s. (xxviii.)
ig) Stat. 12 Vic, cap. 68, s. 25,
which was copied from Eng. Stftt* 2
Wm. IV., cap. 89, s. 10.
(A) In this section proTision is made
for three several cases : —
1. Where an " original writ," issued
before 21st August, 1856, was unex-
pired on that date.
2. Where a "writ, issued in con-
tinuance of a preceding writ," issued
before 21st August, 1856, was unex-
pired on that date ; and
8. Where " one month next after
the expiration thereof," had not elap-
sed before 2l8t August, 1856.
In a case where an original writ of
flommons had expired before the d«y
fixed for the 1st Eng. C. L. P. Act to
take effect, the Court in order to save
the Statute of Limitations directed au
alias writ to issue, under the Uni-
formity of Process Act (2 Wm. IV.,
cap. 89) then repealed : {Gapp y. Rob-
inson, 12 G. B. 828 ; 14 L. & £q. 258.)
The Court refused to alter a writ of
summons by striking out a true date
and inserting a falae one, in order to
enable plaintiff to proceed with an ac-
tion, to which otherwise the Statute of
Limitations was a bar : (Campbell \.
Smart, 6 C. B. 196 . 6 D. & L. 385.)
Every writ of summons or capias, is-
sued under the authority'of our C. L.
P. Act, '< shall bear date on the day
on which the same shall be issued :"
(s. xix.) As to the issue of concurrent
writs, founded on renewed writs, see
note 0, to s. xxvii.
(t) f. e. 21st August, 1856, (s. i.)
l-t
I
t
■$
68 THE COMMON LAW PROCIDURE ACT. [«. XXX.
of the continuing Writ, or within twenty days after the com-
mencement of this Act, be renewed under the provisions of,
and in the manner directed by this Act; and every such Writ
shall, after such renewal, have the same duration and effect for
all purposes, and shall be, if necessary, subsequently renewed
in the same manner as if it had originally issued under the
authority of this Act. (J) " "' ' ^ ^
( .ifp. ci>. c) XXX. (k) The production of a Writ of Summons or Capias
'*'0^tKi-xl Kn<.c.L.p.A.with the memorandum signed as required in the foregoing
^ 1862, 8. 13. ggQtjQQ^ Q^ shewing such writ to have been renewed accord-
arw^'''of ""ing to this Act, (m) shall be sufficient evidence of its having
been so renewed, and of the commencement of the action, (n)
as of the first date of such renewed Writ, for all purposes, (o)
: ,,', .-(,1 J !, -ivi
I
writs.
(/) Under the old practice (before
Eng. Act 2 Wm. IV., cap. 89,) it was
held that where a suit had been ac-
tually commenced within six years
:ifter the cause of action, continuance
might have been entered at any time,
. tor the purpose of avoiding a plea of
the Statute of Limitations : (Beardmore
V. Rattenburt?, 5 B. & A. 462 ; Taylor
V. Gregory, 2 B. & Ad. 257 ; 2 Wma.
Saundert, 63, and notes ; McLean v.
Knox, 4 U. C. R. 52.)
(A Taken from Eng. Act 15 & 16
Vic, 'np. 76, 8. 13 — Applied to County
• Courts.
(I) i. e. 8. xxviii. The mere prodno-
' tion of the writ with the necessary
memorandum, purporting to be sign-
ed, &c., ia ail that is required. No
' extrinsic proof as to the genuineness
of the officer's signature, seems to be
necessary. It will be assumed prima
facie to be his. It has been held
that the production of first process,
with the minute of the Deputy Clerk
of the Crown, "issued 6th Aug., 1843,
W. D. Xi.— D. C. C," waB prima faeie
proof of the fact and date of issue :
( Upper V. McFarland et al, 6 U. C. R.
101.) The Court observed that it has
long been the practice so to treat the
writ at Nisi Priut, ard as the practice
is convenient and saves expense to the
partieii, it ought to be upheld : (per
Robinson, C. J., lb. 103.) The new
practice only makes it necessary to
state in the marginal mem. the office
whence the writ issued : (s. xx.) The
writ must bear date on toe day when
issued : (s. xix.) The date of issue
will therefore appear from the teste,,
and not necessarily from the marginal
note, as formerly.
(m) i. e. Under s& zxviii. or xxix.
(n) See note d to s. xxviii.
(o) It may be a question whether
the writ so produced, can be looked
upon as a Record of the Court. If a
record, then parol evidence would not
be admissible to contradict it. It might
be argued that as the new method of
renewing writs, by signing a mem. in
the margin, is to have the effect of an
aliat or pluriet writ; so by analogy
the production of a writ thus renewed,
would be the same in effect as the
production of a continuance roll un-
der the old practice. A continuance
roll from the proper custody, has been
held to be a Record of the Court, and
as such not to be contradicted by
parol testimony : (Prentice v. Hamil-
ton, Dra. Rep. 410.) The objection to
the renewed writ being so considered
if left in the possession of plaintiff, would
perhaps be that it did not come from
the " proper custody." The point has
sot yet been raised for decision. Bot
8S. xzxi. zzxii.]
SKRyiCE OF SUMMONS.
69
XXXI. (p) The Writ of Summons in any action may ^Q^J^:^i,%^,^2fT/f*^
served in any County in Upper Canada, (j)
A. 1852, 8.10.
Serrire ii;i
any County.
XXXII. (r) The person serving (s) the Writ of Summons (^^. ^fe. c.)
it is a general rule that no part of a
written instrument (in the absence of
fraud) can, as between parties privy
thereto, be directly contradicted by
parol evidence : (Tay. £v., 2 Edn., ss.
1085, 1038.)
(p) Taken from Eng. Stat. 15 & 16
Vic, cap. 76, s. 14 — Applied to Coun-
ty Courts — Founded on 1st Bep. C. L.
Comrs., s. 8.
(q) The old practice required the
writ to be served within the County
•'therein mentioned, or within two
hundred yards of the border thereof,
arid not elsewhere:" (12 Vic, cap.
63, 8. 22, copied from Eng. Act 2 Wm.
IV., cap. 39, 8. 1 ; also see Simpson
V. Ramsay, 6 Q. B. 371) Formerly if it
were discovered that defendant had re-
moved to a County other than that <'in
the writ mentioned," it became neces-
sary to issue an alias or pluries writ,
describing defendant as being << late of
the County of, &c : " (OldR.5 H.T. 18
Vic.) This mode of proceeding caused
both delay and expense, and was besides
wholly unnecessary, inasmuch as the
writ was directed to the defendant,
and not to the Sheriff of any particu-
lar County. The Commissioners una-
ble to see " any advantage whatever
arising from the restriction," advised
its removal.
(r) Adopted from Eng. Act 15 & 16
Vic, cap. 76, s. 15 — Applied to County
Courts — Substantially the same as our
old Rule 3 H. T. 18 Vic, which was
copied from Eng. R. G. M. T. 3 Wm.
IV., Nc 6: (Jervis N. R., p. 95.) The
origin of the rule is Eng. Stat. 2 Wm.
IV., cap. 89, s. 1, from which our 12
Vic, cap. 63, s. 22, was talcen.
(») Who is the proper person to
serve a writ of summons ? Under the
old practice, the service of a non-bail-
able writ of ca. re, the process then
in use for the commencement of non-
bailable actions, could only be effected
by the Sheriff, his Deputy, or Bailiff ;
(Stat. 2 Geo. IV., cap. 1, s. 4, now
repealed by s. ccoxviii. ; also see White-
head v. Fortherffill, Dra. Rep. 210; and
Landrigan v. Callaber, M. T. 1 Vic
MS.) This was held to be the law
even in a case where the deputy wad a
party to the suit : {Ruttan v. Aihford,
3 0. S. 302.) The direction of the
Stat. 2 Geo. IV., cap. 1, s. 4, was
positive. Though this Statute was so
construed, it was thought that the
spirit of the act had a contrary lean-
ing: (Dra. Rep. 210.) Before non-
bailable writs of ca. re. were ad-
opted, writs of summons were in
use. When the ca. re. wag substi-
tuted for summons, (2 Geo. IV., cap.
1, s. 4) it became necessary to enact
that the Sheriff should serve it, for he
could not otherwise have been bound
to serve a copy of process which on
the face of it required the defendant to
be arrested. Hence when non-bailable
writs of ca. re. were abolished, and
writs of summons restored, under 12
Vic, cap. 63, it was held by Macaulay
J. that service by a person other than
a Sheriff, his Deputy, or Bailiff, was
not irregular : (Leachy. Jarvis, 1 U.C.
Cham. R. 264.) Plaintiff's right to tax
costs for such services, was doubted
by the learned Judge : {lb. ) Subse-
quently Stat. 16 Vic, cap. 175, s. 18,
(now repealed, see s. ccoxviii.) wa»
passed, which enacted that " no fees
shall be allowed for the service or
mileage of writs of summons or other
mesne process, unless served by the
Sheriff, his Deputy, or Bailiff, &c."
For a review of our Statutes bearing
upon the subject, anterior to 16 Vic,
cap. 175, see 1 U. C. Cham. Rep.
269. Since the latter Stat, has been
repeal«id, it must be taken that the
law is the same as if it had never
been enacted. Then the law would
be that laid down in Leach v. Jarvis,
by Macaulay, J. Service by any per-
son other than the Sheriff, his Deputy,
\if
'-'
1
i .
41
■ '
3w
■\
3 Wi
h
I' '
70
THE COMMON LAW PROOED^^RE ACT.
[s. xzxii.
C»t,sti^cP fTssifcis* ''^*'^> (0 ^^^ ^^ hereby required within three days at furthest
ft.c!.«^i\ '^ after such service, to indorse on such Writ, (t^ the day of the
>#vyi77 **"'"» ***y of month and week of the service thereof, (v) otherwise the Plain-
♦^ * ♦ / service on ,., . f
tho writ. tiff shall not be at hbcrty m case of non-appearance to proceed
under this Act; (w) and every affidavit of service of such
or Bailiff, is not irregular. Such is
the law in England at the present
time. *« The writ may be served by
the attorney or his clerk, or in fact, by
any person who can read and write,
80 as to be able to swear that he
served a trae copy of the writ, &o. :"
(Chit. Arch. 8 Edn. p. 155.) There is
no Legislative declaration to the con-
trary now in force in Upper Canada.
With respect to the costs of service
when the writ ^.s served by any other
than the SI eriff, the law is as follows :
" Service ol each copy of writ, if not
done hy the Sheriff or an officer employ-
ed by him, when taxable to the Attor-
ney— 28. 6d." (N. R. Schd. B.)
(f) It is not dear whether the sum-
mons here meant, is the ordinary sum-
mons under s. xvi. and no other. Pro-
vision is made by this Act, for the
bsue of two other forms of summons,
one to be served on British Subjects,
resident abroad (s. xzxv.) ; and the
other on foreigners, also abroad, (s.
xxxvi.) Since writs of summons
on foreigners are not to be served
but, only a notice thereof, it may be
presumed that the section under con-
sidoraton will not apply: (s xxxvi.)
Until a decision to the contrary, it will
be advist^ble to indorse the time of
service of writs served on British
tu'ij'ectt abroad, as prescribed by this
section : ( Chit. Arch. 9 Edn. 175.)
It would seem that s. xxxvii., as to
amendment is not applicable to an omis-
sion of the kind in question.
(u) The indorsement may be made
by a marksman, if able to read writ-
ing or printing : (Baker v. Caghlan,
7 C. B. 131.) The rule is sufficiently
complied with when all but the hand-
writing is either printed, or in the
handwriting of a stranger. The party
putting his mark to it, thereby be-
comes responsible for the whole : (Per
Wilde, C. J., lb.) Computation of
time, see note A; to s. li., and N.R. 166.
(p) The object of the rule is ««to
pin the party to a precise date of ser-
vice:" (Maule, J., /&.) Tho form may
be thus : — •' This writ was served by
me, X. Y., on C. D., on-
-day of-
-18-
-the
X. y. :"
{w) The penalty for neglect under
the old rule, was that the plaintiff
should not be at liberty to enter an
appearance for the defendant. This
was almost in effect to prevent plain-
tiff from going on with his ruit, if
defendant did not voluntarily appear,
and the consequences of such neglect
seem to be still the same. The indorse-
ment shall be made, " otherwise the
plaintiff shall not be at liberty in case
of non-appearance, to proceed under
this Act." Appearances per Stat, are
virtually abolished : (s. lix.) Where
defendant snatched the original writ
out of the hands of the person serving
him and kept it, and the party who
served the writ was in consequence
unable to make the indorsement on
" such writ," the Court granted a rule
to show cause why the defendant
should not return the writ or why in
default of his so doing plaintiff should
not be allowed to enter an appearance
for him without indorsement, t. e., << to
proceed with his suit:" (Brook v. Ed-
ridge, 2 Dowl P. C, 647.) But when
the original writ was sent by plaintiff
to defendant at his request, and he
kept it and did not appear, the Court
refused to allow the plaintiff to enter
an appearance for defendant without
the indorsement : (Atkinson v. Howell,
7 M. & W., 213.) Plaintiff in this case
brought himself into the difficulty by
not following the usual course. No
doubt, as a man of honor, defendant
wos bound to appear ; but in point of
from E
s. 16—1
Courts.
{z)A
sonally
cecding
gate, is
scg. Se(
(a) S
tho Con
must be
'i
L m
I
Of}
a. xxxiii.] ' • seevioe op summons. 71
Writ, shall mention the day on which such indorsement was /^
made, {x)
XXXIII.
Corporation aj
den, Reeve,') President, or other head Ofl&cer, (a) or on the against Cor- **''^ '^(^iZ.
TownshipjTown, City, or County Clerk, Clerk, (5) Cashier, Man- now served, j'y '"
ager, Treasurer, or Secretary, (or Agent of such Corporation,) Who shall be
or of any branch or agency thereof in Upper Canada; (c) and agents of
Q/) Every such Writ of Summons issued against a t^^^n^ p? /« (^T~^ n
aggregate, (2) may be served on the Mayor, (War- Aot,i862,B.ia ^ v()
\ President, or other head Offiner. (a\ or on theaiMinstCor- ' "^^^l?
law if he did not choose to do so, the
Court was not bound to assist plaia-
tiflF: (/A. Per. Cur.) Where the "three
days " for making the indorsement had
been allowed to elapse owing to the
falsehood of defendant in denying her-
self to b& the party named in the writ,
the indorsement was allowed to be
made : (Burrows ▼. Gabriel, 4 D. & L.
107. ) Where a person who made the
service died witLin the " three days,"
a Judge at Chambers allowed the subs-
titution of an affidavit by plantiPs at-
torney of the facts, and his belief of
the service: {MS. Lash. Prac. 261.)
(x) The affidavit should show that
the writ and indorsement were regular :
(Wakebj v. Teesdale, 2 L. M. & P. 86.)
It should be made by the person who
served the writ. If an officer of the
Court, he might be compelled to make
the affidavit : (R. v. Rudffe, 1 W. B.
432.) Compulsion may be used under
s. clxxiv., which see. Form of affida-
vit—Chit. Forms, 6 Edn. 17. As to
affidavits generally, seeN.B. 109 etseq;
also s. xxiii.. note divs. 8,7,8, 9, headed
" Deponent," " Commissioner," " Sig-
nature of Deponent," and "Jurat," p.
41 of this work..
(y) Finit part of this section taken
from Eng. Stat. 15 & 16 Vic, cap. 76,
s. 16 — whole section applied to County
Courts.
(?) A corporation sale must be per-
sonally served. The old mode of pro-
ceeding against Corporations aggre-
gate, is pointed out in Tidd N. P. 81, et
tcq. See also Ang. & Ames Corp'ns 575.
(a) Semble — A Summons directed to
the Commissioners of the Admiralty,
must be served upon each : ( Williams
V. The Lords Commissioners of the Ad-
miralty, 11 C. B. 420.) It was inti-
mated that defendants were not a Cor-
poration: {lb.)
(6) "Cicr*"— Some principal Offi-
cer IS meant, not a mere Clerk for
instance in the office of the Secretary
to the corporation : (See Walton y. The
Universal Salvage Co., 16 M.& W.488*)
(c) Substantially a re-enaotment of
Stat. 12 Vic, cap. 63, s. 28. The
words in brackets have been added to
the repealed provision, and the whole
re-enacted. Th» words of the Eng.
C. L. P. Act, " Mayor or other
Head Officer, or on the Town Clerk,
Clerk, Treasurer, or Secretary of
such Corporation," are the very
words made use of in Eng. Stat. 2
Wm. rV., cap. 89, s. 18. It may be
observed that our Stat. 8 Wm. IV.,
cap. 7, has not been repealed by the
C. L. P. Act. It provides "that all
writs and process at law hereafter to
be issued against any body or bodies
corporate, in the commencement of
any action ; and all papers and pro-
ceedings before final judgment in any
such action, may be served on the
President, Presiding Officer, Cashier,
Secretary, or Treasurer thereof, in the
same manner as upon any individual
defendant in his natural capacity, or
on such other person, or in such other
manner as the Court in which the action
shall be brought, may direct.^' The
officers named are all included in our
C. L. P. Act ; but if it be held that
this Act is not superseded by the C.
L. P. Act, it is important to notice
the wide discretionary power vested
in the Courts by the sentence itali-
5§
t
I
TS
TUE COMMON LAW PROCSDUUE ACT.
[a. xxxiy.
in'Mrtoia'"" ®very person who shall, within Upper Canada, transact or ca^ry
cases. on any of the business of, or any business for any Corporation
whose chief place of business shall bo without the limits of
■> Upper Canada, shall, for the purpose of being served with a
< ' Writ of Summons issued against such Corporation, be deemed
the agent thereof, (d) ,
wc /Ir f^J^\l\^^^ XXXIV. (e) The service of the Writ of Summons where-
^ ^ % ^ ^ A.,i86i B. it! ever it may be practicable, shall, as heretofore, be personal j (/)
oised A service on any one, other than
the offieert named in the Statute, should
at all eventa be made upon some per-^
son who represents the interests of the
Corporation: (Sherwood el al v. The
Board of Worke, Hagerman, J., 1 U. C.
R. 517.) It was held that where the
Corporation— the Board of Works —
were in Lower Canada, but had work
under contract in Upper Canada ; pro-
cess could not be served on the engi-
neer in chai'ge of the works in Upper
Canada, as there was nothing to
show that he had any share iu making
the contracts, or that he had authority
to bind or represent the Corporation :
and the Court refused to direct that
a copy of the process put up in the
Crown Office, should be deemed valid
service on defendants: (76.) Before
taking proceedings against a Corpora-
tion, created by or in pursuance of an
Act of Parliament, it will be advisable
to consult the particular Act, as it may
prescribe a mode of procedure differ-
ing from that laid down iu this Act,
and may be obligatory on the parties
to pursue its special provision. It
would seem that the form of pro-
cess against Corporations, prescribed
by Rule T. T. 2 Geo. IV., (Cam. R. 4)
is superseded.
{d) The latter part of this section
appears to be an entirely new enact-
ment. It authorizes proceedings
against a foreign Corporation, pro-
vided such Corporation have an
agent in Upper Canada for the trans-
action of the business of the Corpor-
ation. This provision in cases of con-
tract, can only apply either where the
contract has been entered into in Up-
per Canada, or entered into abroad,
to be executed in Upper Canada. In
connexion with this note, two English
decisions may be mentioned, though
each of them turned it is conceived
upon the particular circumstances of
the case. 1. ( Wilson v. The Caledonian
R.R.C., 6 Ex.822.)— Where the princi-
pal office was in Scotland, service on
the Secretary while in London on tem-
porary business, was held good.
2. {Evanay. Dublin^ Drogheda R. Co.
2 D. & L. 865.)— Where the principal
office was in Ireland, and there was no
office in England, service upon one of
the Directors of the Company in Lon-
don, was held to be null and void.
(«) Adopted from Eng. Act 16 & 16
Vic, cap. 76, s. 17— Applied to County
Courts. >»«* arf^/l. f Jt/
(J) Before this enactment, the Judges
in England came to a determination
that as a general rule the service should
be personal in all cases: (Ooggt t.
Huntingtower, 1 D. & L. 699 ; Christ-
mat V. Eicke, 6 D. & L. 156.) There
was no proper Equivalent: (Grand
Junction Water Works Co, y. Jiey, 16
L. J. C. P. 200; Russell v. Rowe, 2
Dowl. N. S. 288.) Notwithstanding
an undertaking, though verbal, by an
attorney to appear, was and is enforce-
able by attachment : {Anon. 2 Chit. R.
86 ; Sweet v. Magnay, 12 L. J. Q. B. 93;
also see N. R. 8.) If defendant avoided
service, then plaintiff was driven to a
writ of distringas : (Chit. Arch. 8 Edn.
174.) Service wherever "practicable,"
must still, as heretofore, be personal
Personal service means serving thede-
K«
e. zxxiv.]
SGRVIOE OF SUMMONS.
78
but it shall bo lawful for the Flaiutiff to apply from time to Bonrico to be
pcmonal.
fendant with a copy of the process,
and showing him the original if he
desire it : (Vogga v. ITuntinglower, per
Alderson, B., 1 D. & L. 699.) The
copy of the writ must be left with and
not merely shown to defendant : ( Wor-
ley V. Glover, 2 Str. 877.) Though
defendant refuse to take the copy, if the
person serving it bring it away with
him, the service will be defective :
(Pigeon V. Bruce, 8 Taunt. 410.) A
Sheriff's officer takes a writ really for
one person to another person of the
same name. He is informed by de-
fendant of his error, and takes back
the writ saying that he will go to this
other party, the defendant having
agreed that if he were wrong in his
supposition, he would consider the
service good if the writ were left for
him at the house of a third party
named. The ofiKcer neither served the
other party nor left the writ for de-
fendant as directed. The plaintiffs,
nevertheless, proceeded against de-
fendant. The service and all subse-
quent proceedings were set aside for
irregularity : (Erwin v. Powley, 2 U.
C. B. 270.) The original writ need
not be shown, unless defendant at or
within a 'reasonable time after ser-
vice, make a demand to see it : {Petit
v. Ambrose, 6 M. & S. 274. ; Thomas
V. Pearce, 2 B. & C. 761.) A quarter
of an hour held to be a reasonable
time : ( Westley v. Jones, 5 Moore 162.)
Where, at the time of service, an in-
spection of the original was demanded
and refused, the service was set aside
with costs : ( Weller v. Wallace et al,
M. T. 1 Vic. M.S. R. & H. Dig. «« Pro-
cess" 4.) " Personal service" has
never been defined by the Legislature.
Each case is left to depend on its own
particular circumstances. The Courts
have not held it necessary to put pro-
cess into the actual corporal possession
of the defendant to constitute a per-
sonal service ; but have looked more
to the object of the service — timely
notice to defendant of an action com-
menced against hyn : (See Sheehy v.
The Prof. Life Ins. Co., 18 C. B. 787.)
Whether under the particular oiroum-
Btances of each case this object has
been accomplished is a question for
the Court or a Jud^e. Various cases
under the old practice shew that the
expression "personal service," is not
to be understood in the strict sense of
that term — thus : — Where a writ
was put through the crevice of a
door to defendant, who had locked
himsell within, the service was held to
be sufficient : {Smith v. Wintle, Barnes
405.) So where the writ had been
enclosed in a letter to defendant, which
he received, and out of which he had
taken the copy : (See Boswell y. Ro'
berts. Barnes 422 ; Aldred v. Hicks, 5
Taunt. 186.) Service upon a 'wife,
agent, or servant, is not personal ser-
vice : (See Frith t. Donegal, 2 Dowl.
P. C. 527 ; Davies v. Morgan, 2 C. &
J. 287 ; Goggs v. Huntingtower, 1 D.
& L. 599 ; Christmas v. Eicke, 6 D. &
L. 156.) Where the officer on seeing
the defendant at his window, told him
in a loud tone, that he had a writ
against him, at the plaintiff's suit,
and holding out the copy, threw it
down and left it in the garden, in de-
fendant's presence ; held not a suffi-
cient personal service : (^Heathy. White
2 D. & L. 40.) In a case where ser-
vice was denied by the defendant, but
the officer swore positively to its ser-
vice personally on defendant, an ap-
plication to set aside proceedings wns
refused: (Coates v. Hornby, 1 U. C.
Cham. B. 185.) If there be more de-,
fendants than one, each should be
served as if he were sued alone, except
in the case of husband and wife, when
service on the husband for both, will
be sufficient: {Buncombe v. Love, 1
Barn 293; Collins v. Shapland, lb.
108.) Incase of mi8Joinder,&c. plaintiff
may afterwards apply to strike out
the name of one or more defend-
ants : (s. Ixx.) It is irregular to serve
process on a witness while attending
a Court of Nisi Prius, under subpoena :
{Thompson v. Colder, I V. C. R. 408.)
w
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.J
74
THE COMMON LAW PROCEDURE ACT.
[s. xxxiv.
KxeoptJon: fn„(j^ (,„ affidavit, (ff) to tho Court out of which tho Writ of
Summons issued, or to a Judge, and in case it shall appear to
sorvironmv ^^^^ Court or Judge, (/i) that reasonable efforts have been
witll'r tho' "^''*^° *^ ®^'°^' personal service, and either that the Writ has
Court or a ^.q^q ^q j^q knowledge of tho Defendant, or that he wilfully
am«uvit of evades service of the same, CO »"<! ^^^ not appeared there-
certain foctn. ' v -' ^ i
Hervioe upon a dofen Jnnt while attend-
ing the Assizes, as plaintifi' in a civil
action pending and entered for trial,
held good : — Thompson y. Colder,
doubted— <7»7y of Kingston ▼. Brown, 4
U. C. B. 117; see also i'oo/e T. Oould,
27 Law T. B. 110.) It does not resem-
ble the case of an arrest under similar
oircumstanoes, in which event defend-
ant would be privileged : (lb.) As to
which see s. xxiii, note s.
(ff) As to affidavits generally see
N. B. 109, et »eq ; also s. xxiii., note
sub-dlvs. 8, 7, 8, 9, inUtled •« Depo-
nent," "Commissioner," "Signature
of Deponent," and "Jurat," p. 41 of
this work.
(A) t. «. Court in term time — Judge
in vacation— ( Wyatt v. Oenny, 22 Law
T. 92 ; Todd T. Edwards, 22 Law J.
105.) The practice as to the Sittings
of the Judges, is regulated by Prov. St.
13 & 14 Vic, cap. 61. S. 1— Practice
Court. S. 2— Clerk of such Court
S. 8— Judge in Chambers.
(t) This provision is a new one,
substituted in lieu of the practice,
by distringas to compel an appear-
ance. The distx'ingas is superseded,
because there is no longer any neces-
sity for it. Wherever, under the
old practice, a distringas could have
been obtained, it may be laid down
as a general rule that an application
made under this section will succeed.
Of course there may he exceptions.
That of a lunatic defendant noticed be-
low is one. As to the distringas, see Chi t
Arch. 8 Edn. 1. Two cases ore contem-
plated by this enactment. 1. Where
the writ has come to the knowledge of
defendant. 2. Or where he wilfully
evades service of the same. In sup-
port of the application, it is very clear
under this section, that the affidavit
must shew — 1. That reasonable efforts
have been made to effect personal ser-
vice. The efforts should be discloKed
so as to raise a presumption. 2. That
the writ has come to the knowledge of
the defendant. 8. Or that he wilfully
evades service of the same. 1. As to
what will be considered reasonable efforts,
Ac, see Oale r. Winkes, 8 Bing.
N. C. 294 ; Croft v. Brown, 14 L. J.
Q. B. 282 ; Russell T. Knowles, 2 D.
& L. 596 ; Cross v. Wilkins, 4 Dowl.
P. C. 279 ; Rock v. Adam, 16 L. J. C.
P. 192 ; Greenwood y. Selden, 9 Dowl.
P. C. 72 ; Norman v. Winter, 4 Bing.
N. C. 637 ; Raker t. Coe, 1 Ex. 153 ;
Anon 2 D. & L. 1001 ; Johnson v.
Rowse, 1 Dowl. P. C. 641 ; Afoodt/ y. Mor-
gan,! Doml.V.C. Hi; Newmany. Hick-
man, 9 Dowl. P. C. 646 ; Hill v. Meule,
2 Dowl. P. C. 10 ; Fisher v. Goodwin,
2 C. & J.94; Wakeley y.Teesdale, 2 L.
M. & P. 85; Dubois y. Lowther, iC.B.
228 ; Oorringe v. Terrewest,1 L. M. & P.
12. 2. As to the writ coming to de-
fendant's knowledge, see Thomas y.
Pearce, 4 D, &. R. 817 ; Goggsy. Lord
Huntingtower, 1 D. & L. 599 ; Russell
y. Knowles, 2 D. & L. 696 ; Heath y.
White, 2 D.& L.40 ; Christmas v. Eicke,
6 D.& L. 156. 3. As to defendant's keep-
ing out of the wag to avoid service, see
Houghton v. Hawworth, 4 Dowl. P. C.
749 ; Channing y. Cross, 9 Dowl. P.
C. 118 ; Wilkins y. Jones, 15 L. J. C.
226; Gorringe v. Terrewest, 2 L.& M, 12.
Though an attempt has been here made
to separate cases, it will be evident
that the two latter states of circum-
stances must be more or less blended.
If defendant wilfully evade service of
the writ, it must bo presumed that it
has come to his knowledge. If it has
come to knowledge, and he cannot,
after repeated cfibrts, be personally
kU
6'
8. XXXV.] SERVICE OP 8UMMO!f8. 75
to; (_/) it shall bo lawful for such Court or Judge to order (A) that
the Plaintiff bo at liberty to proceed as if personal service had
been effected, subject to such conditions as to tho Court or
Judge may seem fit. (0 ^ p, * n
XXXV. (m) In case any yefondunt being a liritiuh sub- (><n». <^ c) u^4*.(»^ x.t
seryec), it may be presumed that lie
wilfully evades serTice of tho same.
The presumption must appear to the
Court or a Judgo upon facts to be dis-
closed upon affidavit. The plaintiff
(should detail the attempts at service,
and then show why service has not
been effected. The case of a lunatic de-
fendant does not seem to be sufficiently
provided for by the Legislature. The
Court reftised to supply tho omission
in a case before them, and refused to
grant an application made under this
section, where defendant was a lunatic,
and it was not shown that the writ
bad come to his ku< wledgc, or that ho
wilfully evaded service of the same :
(Holmes v. Service, 16 C. B. 208 ; 28
L. & £q. 855.) Under the old prac-
tice, a distringas would havo been
granted in this case : (See Rawaon v.
Mous, 8 Dowl. 412 ; Jones v. Evans,
8 Dowl. P. C. 425 ; Blake v. Cooper,
11 C.B. 680; WilkiHt v. Jones, 8 D.
&L. 747; Sheppard y. Williams, 11 C.
B. 682 ; Banfield v. Darell, 13 L. J.
Q. B. 202.)
(y) The affidavit must, in addition
to the above, shew the fact that no
appearance has been entered: (See
McAlpin V. Gregory, 1 C. B. 2J)9;
Drage v. Bird, b 1). & L. 617.) The
search for appearance should be as
recent as possible before making ap-
plication : (See Hooker v. Townsend, 1
Hodg.204.) If possiblo.onthesamodny
that application is made : {Spcnce v.
Barker, 8 Dowl. P. C. 290.) Tho affi-
davit must show when the search was
made : {McClaiiiev. Abrahams, 3 Scott,
N. K. 474; 10 L. J. 0. P. 318; I'en-
neg v. Thorns, L. J. C. P. 05.) Tho
day of search musk be shown to bo
after the expiration of the time limited
by tho writ for defendant to appear :
{Brim v. Strelton, 1 C. & M. 74, 1
Dowl. 642.) The service of the writ
must be shown to havo been regular :
(Waklet/ T. Tersdale, 2 L. M. & P. 6 ;
Fitzgerald v. Evans, 6 M. & 0. 207, 6
Scott N. R. 220.) If the affidavit be
amended, and delay thereby ensue, a
fresh search must be made : (McClaine
V. Abrahams, 8 Scott N. R. 474.) Tho
old practice also made it necessary for
the affidavit to state the place of de-
fendant's residence, or else explain
that efforts to find tho same were un-
availing : {Crofts v. Brown, 2 D. & L.
935, 7 Q. B. 284 ; Halton v. White, 2
M. & G. 296 ; Bowser v. Austen, 2 C.
& J. 46 ; Bradbee v. Oiistard, 1 Dowl.
N. S. 295 ; Russell v. Knowles, 7 M. &
0. 1001.)
(k) Order in general absolute in first
instance, and need not bo served :
(Barringer v. Ilandley, 12 C. B. 720,
14 L. & Eq. 264.) An order so ob-
tained was set aside upon an affidavit
made on the part of defendant "that
at the time of the issuing of the writ
and down to tho time of tho swearing
the affidavit, the defendant was out of
the Jurisdiction:" (Jleskethx. Flemming,
30 L. & Eq. 259. ) An application to re-
scind the order may, it seems, be made
upon affidavits, contradicting those
upon which tho order was obtained:
{Hall V. Scotson, 9 Ex. 238, 24 L. &
Eq. 478.)
(l) The application, though it can-
not be made until tho expiration of the
time limited for defendant to appear,
should not be delayed for an unreason-
able time thereafter : (See Bromage v.
Bag, 9 Dowl. P. C. 569.) Two months
have not been considered an unreason-
able time : (See l\yton v. Wood, 15
L. J. Ex. 847.)
(ct) Taken from Eng. Stat. 15 & 16
Vic, cap. 76, s. 18 — Founded upon
Ist Rop. G. L. Corors., ss. 11, 12,
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76 THE COMMON LAW PROCEDURE ACT. [s, XXXT.
j["%5;^j^jeot, is residing out of tho Jurisdiction of the said Superior
Courts, (n) it shall bo lawful for tho I'laintiff to issue a Writ
jJ'"|j.^°'J^j^*<» of Summons in tho form contained in the Schedule (A) to this
BritiKh N.ii). ^Vct annexed, marked No. 8, (o) which Writ shall bear the
u"t oftiiu indorHcmcnt contained in the snid form, purporting that such
of tho sola Writ is for service out of the Jurisdiction of tho said Suoerior
Courts. _ , 1 • /• 1 » »x
Courts, and the time for appearance by the Defendant shall bo
regulated by the distance fVom Upper Canada of tho place
whero the Defendant is residing, having due regard to the
means of, and necessary time for postal or other communica-
tion^ (p) and it shall be lawful for the Court or Judge, upon
Forrlco
thereof, Ac.
13.— Applied to County Courts, rro-
oeedingti to out-Inwry hnve been done
away with, and tlie present enactment
is subttituted therefor.
(n) Reaidintf out of jurit .iction, ^c.
— See Story's Conf. Laws, as. 41-43.
See also note < to s. zliii. of this Act.
The Eng. Act adds : " In any place ex-
cept in Scotland or Ireland." This
omission is here noticed because tho
practitioner may find decisions in Eng-
land to him otherwise unaccountable.
As to the Jurisdiction of the Courts of
Common Law in Upper Canada, see
note A to s. xvi. of this Act.
(o) One point of difference between
this and tho ordinary writ (xvi) is,
that this writ does not specify the
time for appearance, ^note p. infra ;)
but as a general rule tne law already
explained with respect to the contents
of a summons, ss. xvi., xvii., xviii.,
xix. — the issuing of a summons, (s.
XX.) — the indorsements, (s. xzi., xxv.,
xxvi.) — and the renewal of a summons,
(a. xxTiii., xxix., xxx.) will apply to
writs issued under this section. Tho
indorsement of the "debt" and costs
under s. xxvi, when the summons is
issued for tho recovery of a "debt,"
differs from the indorsement nindo
necessary by this sectioti in one par-
ticular. Under s. xxvi., the time al-
lowed for payment of the debt and
costs, is "eight days." Under this
section it is " two days less than the
time limited for tippcaranco : (.See
Scb.A, No. 8.) Inelfoct, however, both
provisions coincide as tho time limited
for appearance in the ordinary writ, is
10 days (s. xvii.) It is uncertain whe-
ther the indorsement required by s.
xxxii. applies to this writ. It would
appear that the special indorsement
required by s. xli. does not apply.
(p) From whnt has been already
mentioned, it will be observed that
proviiiion is made by this Act for
two forms of writs of Summons. The
first (s. xvi.^ contemplates tho case of
a person, who either is or is supposed
to bo residing wif/iin the juritdietion,
and in such case tho timo for appear-
ance is fixed in all cases at ten days, and
certain proceedings may be taken in
case personal service cannot be eflPected
(h. xxxiv.) The second form of writ,
that given by this section, (p. xxxv.)
provides for those cases where tho de-
fendant, being a British subject, is re-
sident out of the juriadirtion, and in
this case tho time for entering an ap-
pearance is to be regulated by the dis-
tance tho defendant resides from Upper
Canada. Two different cases are sepa-
rately contemplated. Where, therefore,
defendant, being a British subject, re-
silient v'ilhout the jurisdiction was pro-
ceeded against under s. 2 of let Eng.
C. L. P. Act (s. xvi. of ours), which
provides for tho case of defendants
wjtliin the jurisdiction, an order ob-
tained under s. 17 of the same Act (s.
xxxiv. of ours) allowing plointiff to
proceed, ns if personal service had been
9. XZZT.] DEFENDANTS WITHOUT THE JURISDTOTION.
n
being satisfied, (q) that there ia a cause of action which arose
within the Jurisdiction, or in respect of the breach of a con-, fg,,,.,,^,
tract made within the Jurisdiction, (r) and that the Writ was^JJJ^"*'*
personally served upon the Defendant, or that reasonable efforts
wore made to effect porsonul service thereof upon the Defend-
ant, and that it came to his knowledge, and either that the
Defendant wilfully nc»t;locts to appear to such Writ, or that he -
is living out of the Jurisdiction of the said Courts, in order toordprinmioh
defeat or delay his creditors, to direct from time to time, thatcvll^rtorn"
the riaintiff shall bo at liberty to proceed in the action, («)Afflj^vit?
in such manner, and subject to such conditions as to such
Court or Judge may seem fit, having regard to the time al-
lowed to the Defendant to appear being reasonable, and to the
other circumstances of the case : (<) Provided always, that the
eifooted, was set aside : ( Heakflh t.
Flemminff, 80 L. & Eq. 629.)
( q) <' % affidavit" in Engliah Act.
It U not known wliether the omission
of tliese words bv our Legialiiture was
intended or accidental. Wliothcr or
not, the usual mode of satisfying tho
Court in cases like tho present is "by
affidavit." It may be stated that tho
only mode of aatiafying a judicial tri-
bunal is by legal evidence — either writ-
ten or oral, — and that the clause under
consideration must be read consistent-
ly with the common law principles.
An affidavit, if used, should contain
averments of — 1. The cause of action ;
2. The residence of defendant ; 8.
Service or attempted service. (See
note /, infra.) In preparing such an
affidavit, plaintifif's attorney cannot do
wrong in following the form of affida-
vits to hold to bail so far as applicable.
(Sees, xxiii. not' p. 41.) An irregular-
ity in the affidavit may be waived by
attending before the Master: lllarri-
wnv. Williams, 24 L. T. Rep. 143.)
, o^ui {f%^ ^rit of summons having boon
/t 911 served on the defendant in France, he
appeared by .attorney, and the declara-
tion having been delivered, he obtained
an order to inspect, and inspected the
promissory notes on which the action
was brought. He then applied to set
aside the writ and subsequent proceed-
ings, on the ground that the action was
brought for a breach of contract made
beyond the jurisdiction. Held that he
was estopped : (Forbes v. Smith, 29 L.
& Eq. 415.) There is such a thing as
attornment to the jurisdiction. Where
tho Secretary of a Legation otherwlsa
privileged bv virtue of his office appear-
ed and pleaded to an aation commenced
against him : Held that by voluntarily
attorning to the jurisdiction ho was es-
topped from applying to tho Court to
strike out his name, or to stay proceed-
ings on the ground of his privilege:
(Taylor v. Best et al, 14 C. B. 487, 26
L. & Eq. 888.) A ottt. «u«rf /l.^^J.
(«) i.e. " As if personal service had
been effected," (s. xxxiv.) Proceed-
ings to be taken by plaintiff should be
under s. Ixi.
{fy Before being entitled to proceed
under this section, it is necessary for
plaintiff to catisfy the Court upon one
or more of these heads : — 1. That there
is a cause of action which arose within
the jurisdiction, &o. (As to which see
p.48,s.xxiii, notediv. 5, intitled "cause
of action.") 2. That the writ was per-
sonally served on defendant, or that
reasonable efforts were made to effect
personal service, and that it came to
his knowledge. (As to "personal ser-
vice," see s. xxxiv. note /; "reason-
able efforts, &o.," see same sec. note t ;
i|
78
TUB COMMON LAW PROCEDURE ACT. [s. XXXVi.
f i
piuintiff I*laintiff shall be and he is hereby required to prove the amount
must prove of the debt or damages claimed by him in such action, either
before a Jury on an assessment in the usual mode, (ii) or by
reference to compute in the manner hereinafter provided, (y)
according to the nature of the case, as such Court or Judge
may direct, and the making such pj^opf shall be a condition
6*^c Jj/^ ^ precedent to his obtaining Judgment, (m?)
Sittfl a\, ^*^^^" *• ^ XXXVI. (x) In any action against a person residing
tt..e. •A.^^j^ng.c.L.p.out of the jurisdiction of the gaid Courts, and not being a
British subject, the like proceedings may be taken as against a
<iant be not British subjcct resident out of the Jurisdiction, (,y) except that
••writ coming to defendant's know-
ledge," see same note.) 3. That de-
fendant either neglects to appear to
the writ, or is living out of the juris-
diction in order to defeat or delay his
creditors. " Wilful neglect to appear,"
or " living out of jurisdiction to defeat,
&c.," these can seldom be sworn to as
positive facts. They must arise as
presumptions from the facts disclosed
to the Court. To prove simply that
defendant has not appearedifrom which
the presumption arises that he has
neglected to appear, it will undoubt-
edly be necessary to show that no ap-
pearance has in fact been entered. (As
to which see s. xxxiv. note y.)
A. B., who had contracted a debt in
England, went to Melbourne, in Aus-
tralia. He was there sued by his cre-
ditor, who issued a writ under the sec-
tion in the English Act, which corres-
ponds with the one under consideration.
He was required by the writ to appear
within five months. Having been per-
sonally served, and no appearance
having been entered, application was
made by plaintiff for liberty to proceed,
without giving any notice of declara-
tion. An order was thereupon made
by a Judge in Chambers, •'that the
plaintiff should be at liberty to proceed
in the action by filing a declaration
against the defendant, requiring him to
plead thereto in eight days, and by
sticking up a notice of such declara-
tion in the Master's office, and that in
default of the defendant pleading iKthin
the said eight days, it be referred to
one of the Masters to examine into and
see that the plaintiff's case is proved
by affidavit or otherwise, as the Master
shall see fit, and that the plaintiff shall
be at liberty to sign final judgment, for
the amount found due by the Master :"
(Firmin v. Perry, 27 L. T. Rep. 72.)
(w) As to which see Chit. Archd. 8
Edn. 443.
(v) In 8. cxliii. of this Act.
(w) It is apprehended that judgment
once obtained will carry with it the
incidents of any ordinary judgment.
The fruit of the judgment is of course
the execution. It may be issued in the
usual mode, and perhaps issued forth-
with. (Seess. clxxxii-ccv. of this Act.)
There does not seem to be any good
reason against holding that certificates
of judgment may be obtained and regis-
tered as in other cases. (See s. xv.)
(x) Taken from Eng. Act, 15 & 16
Vic. c. 76, e IV. — Founded upon 1st
Rep. C. L. Com. (ss. 11, 12, 13, 14.)
Applied to County Courts. This is also
a substitution for the tedious, expen-
sive, and unmeaning process of out-
lawry, which has been abolished.
(j/) In a former note (s. xxxv. note
p) writs of summons were said; to be
of two classes — those issued against
defendants within the jurisdiction ; and
those against defendants without the
jurisdiction. It is now necessary to
subdivide the latter class into —
1. Those against British subjects ;
2. Those against persons not be-
S. XXXVi.] DEFENDANTS WITHOUT THE JURISDICTION. 79
the Plaintiff shall, instead of a Summons mentioned in the next I ^''/^'f '
. . Subject.
preceding Section, issue a Writ of Summons according to the
form contained in the said Schedule (A,) marked No. 4, and
shall in manner aforesaid serve a notice of such last-mentioned
Writ upon the Defendant, which notice shall be in the form
contained in the said Schedule, also marked No. 4, (z,) and
i?iff British subjects, resident a-
abroad. For this latter description of
defendants the present section pro-
vides. It will seldom happen that
proceedings will be taken against de-
fendants resident abroad, unless such
defendants have property liable to ex-
ecution in Upper Canada. Proceedings
under any other circumstances woald
be, in most cases, comparatively use-
less. The Common Law Courts may
by their process, act upon property
within their jurisdiction ; but in no
case can they affect the person of a de-
fendant without their jurisdiction : (See
Buchanan v. Rucker, 9 East 191.) In
the case of a defendant resident abroad
there can \>eno complete remedy against
him, unless by suing him in the courts
of the country where he resides. The
rule is, that those wllo seek redress
from a foreigner or others resident
abroad, must resort to the forum of the
defendant. The enactments here an-
notated attempt to make such a de-
fendant in a manner amenable to our
Courts.
It is sought to accomplish this end by
acting upon the property of defendant,
and thereby notifying him of its dan-
ger, in order that he may,if so disposed,
satisfy the claim against him. The C.L.
Commissioners very justly observed
that wherever property was situate
within the jurisdiction, the probabilities
were that some means of communica-
tion with the owner would be found
to e^ist. Defendants being foreign-
ers, without the jurisdiction, may
be considered as of two descrip-
tions : 1. Such as were at one time
resident in Upper Canada, but have
gone abroad ; 2. Such as are and
always have been foreigners, never
having been in Upper Canada. With
respect to these, the Act does not seem
to make any distinction. True it is
that the notice given in ^,aa schedule is
addressed to -< C. D., late of the city of
Hamilton in Upper Canada," but it
continues •' or (now residing at Buf-
falo, in the State of New York) :" (No.
4, Sch.) The word "or" seems to
place matters in the alternative, i.e.,
defendant may be addressed as " late
of, &c., or now residing, &c." This
must be the meaning, for it never could
have been the intention of the Legisla-
ture that the remedies prescribed by
this section should be confined to the
case of parties at one time resident in
Upper Canada. As regards these latter,
a further remark may be made. If a
defendant having been a resident in
Upper Canada, and having acquired
property therein, and contracted debts
subsequently, depart from the Province,
leaving the property behind him, it
maybe that he can be proceeded against
as an absconding debtor: (See ss. xliii.
to Iviii. of this Act.) One distinction
would appear to be this : — Proceedings
against an absconding debtor are com-
menced by a writ of attachment sued
out shortly after his departure. Pro-
ceedings against a resident abroad
may be had at any distance of time
after his departure from the Province,
provided the Statutes of Limitations
do not interfere. Besides a compari-
son of the sections here annotated,
with those relative to absconding deb-
tors will show that there are other
cases in which a plaintiff's remedy
must be exclusively under the sections
here annotated.
{z) The only material difference be-
tween the forms here given and those
under s. xxxv. is in the notice and its
service. A notice, the form of which
80
THE COMMON LAW PROCEDURE ACT.
[s. xxzvii.
such service or reasonable efforts to effect the same, (a) shall be
of the same force and effect as the service or reasonable efforts
to effect the service of a Writ of Summons in any action
against a British subject resident abroad (b), and by leave of
the Court or a Judge, upon their or his being satisfied by. affi-
davit as aforesaid, the like proceedings may be had and taken
thereupon, (c)
C-^^hU (^ UQ, ^f'PP-c^ <^) XXXVII. (d) If the Plaintiff or his Attorney shall omit (c)
'^'ii ^ ^ft. A.,i86i8."2o.*to insert in or indorse (/) on any Writ or copy thereof, (^r)
Amendment any of the matters required by this Act to be inserted therein
I !■
is given in the Schedule addressed to
defendant, and informing him that a
writ has been issued, must be served
on defendant in lieu of a copy of
the writ. This is to prevent a
difficulty which occurred to tbs C.
L. Commissioners in the service of
the process of one Court within the
jurisdiction of another, on a foreigner
resident within the latter. Instead of
serving the writ itself, it is thought
that the difficuly will be obviated by
serving the notice made necessary by
this section. In other respects, the
proceedings made necessary by this
section resemble proceedings against
British subjects residents abroad: (see
S. XXXV.)
(a) Reasonable efforts — what. See
s. XXXV. notet.
(b) As to such see s. xxxv., and
notes thereto generally.
(c) The C. L. Comrs. in their sug-
gestions for the enactment of the prac-
tice set forth in this section, had before
them the example of France. Refer-
ence was made by them to Le Code
Civil, Art. 14, which, translated, is as
follows : "A foreigner non-resident in
France can be cited before the French
tribunals for the enforcement of obli-
gations contracted by him in France
with a Frenchman. He can also be
summoned before the French courts for
obligations contracted by him in a for-
eign country with a Frenchman : (See
Code Napoleon, "By a Barrister,"
Story's Conflict of Laws, 452. )
{d) Taken from Eng. Act, 15 & 16
Vic. c. 76, 8. 20.— Applied to County
Courts. Also a verbatim copy of our
old Rule, 10 H. T. 13 Vic, which was
taken from Eng. R. O. 10, M. T. 8
Wm. IV. : (Jervis N. R. 96 ; 9 Ring.
445.)
(e) " Shall omit," &c. This s«ction
seems to apply only to omissions in
writs or indorsements. Mistakes are
provided for by s. ccxci. If this be the
true construction, applications under
this section will be much narrowed
down. The word "omit," as used
here, has not yet received a judicial
interpretation. (See note *, infra.)
(/) Th« expression " Insert or in-
dorse" applies as well to the contents
of the writ as to its indorsements. If
the forms in schedule A, Nos. 1, 2, 3,
4, 5, and 6 be not strictly followed,
this section will apply.
(ff) The Court always had power to
amend the writ, which was the act of
the court; but not the copy, which
was the act of the party : (see liyfieldv.
Street, 2 Dowl. P. C. 739 ; Fccles v.
Cole, 8 M. & W. 537 ; Lj/man v. Breth-
ron, 2 U. C. Cham. R. 108: Nicoll v.
Boyne, 2 Dowl. P. C. 761 . ) An amend-
ment, therefore, when made of the ori-
ginal writ, but not of the copy served,
often caused a variance which placed the
party affected in a worse position than
before amendment. The powers for-
merly vested in the Courts as regards
original writs is by this section ex-
tended to the cop;/ also. Still it re-
mains a question whether a copy can
be amended after service, so as to
s. xxxvii.]
AMENDMENT OF WRITS.
81
or endorsed thereon, such Writ or copy thereof shall not on 'fi^o pioin-
■ ' . , '■'' . tiff omits any
that account he held void : (K) hut it may be set aside (x) as thing in the
, ,,v -I i^iN !• . 1 \ indorsement
irregular, (Je) or amended, {I) upon application to be made to on, or in the
make such service good. The copy
under such circumstances, instead of
being under tlie control of plaintiff is
in ttie bands of defendant: (See Mac-
mara on Nullities, 192 ; Syfieldy.Street,
ante; also see Crowv.Field, SDowl.P.C.
231 ; Hall v. Redington, 5 M. & W.605.)
Even if defendant were directed to
produce the copy served for the pur-
pose of amendment, the Court by or-
dering the amendment would be order-
ing a fiction by making it appear that
defendant had been served with the
amended copy: (see Cornish v.
iu.a^IIockin, 1 El. & BX602.) Amendment
^ ^2/ allowed on terms of re-service : {Davis
^ v. Carrutke- Chambers, Sept. 22,
1856, Bur: ^, J Where after arrest
made on a de.' " ■ apias, the writ was
amended; I ■. :^' ndant discharged,
the Judge Teumva to impose the condi-
tion that defendant should be again ar-
rested on the writ as amended : {Lyman
y.Brethron,2 U.C.Cham.R.108.) Where
a Judge in Chambers improperly order-
ed a writ and service to be set aside, the
Court above lu ended his order by set-
ting aside only the copy and service :
{Tadman v. Wood, 4 A. & E. 1011.)
(A) An irregular proceeding is good
for many purposes. It remains in
force until set aside. A nullity has no
effect whatever. A nullity is therefore
incapable of being amended : (Macna-
mara on Nullities, 24.)
(t) '* May be set aside," &o. This of
course intends an application to be made
by the party adverse to the party whose
proceeding is defective. But it is ap-
prehended that the party in fault may,
if he be the first to perceive the irre-
gularity himself, apply to have it
amended : (Lush. Pr. 2 Edn. 750 )
(k) An irregularity is defined to be
the want of adherence to some pre-
scribed rule or mode of proceeding. It
consists either in omitting to do some-
thing that is necessary for the due and
orderly conduct of a suit, or doing it
F
in an improper manner : (See TiddN.P.
261.) By the former is meant " omis-
sions," by the latter " mistakes."
(l) An amendment has been gener-
ally allowed where the situation of the
parties was not changed by it, and
where otherwise there would have been
a failure of justice : (Plock v. Packed,
Alderson.J., 1 Dowl.N.S.388; seealso
Goodchild V. Leadham, 5 D. & L.
383 ; Macnamara on Nullities, 48.)/«« a-Ud/m
Where an irregular proceeding was
amendable, as of course the Court re-
fused to set it aside : (See Popkins v.
Smith, 7 Bing. 434.) Since the Uni-
formity of Process Act in England, it
has been unusual for the Judges to
amend the forms of Process prescribed
by that Act, except where the Statute
of Limitations would otherwise be a
bar to the action, or where the irregu-
larity was a mere clerical error: (See
Lakin v. Watson, 2 Dowl. P. C. 633 ;
Mills V. Gossett, 1 Scott 313 ; Partridge
V. Wellbank, 6 Dowl. P. C. 93 ; Brown
V. Fullerton, 18 M. & W. 666 ; Christie
V. Bell, 16 M. & W. 669 : Came v.
Mallins, 20 L. J. Ex. 434 ; Green v.
Kettleby, 8 Dowl. P. C. 783.) The fol-
lowing cases, though not strictly ex-
amples of "omissions," mayberefer.>
red to in illustration of these remarks :
(1.) Name of Plaintiff— Moody v.
Aslatt, 3 Dowl. P.C. 486; Came et al.
v. Malint et al. 2 L. M. & P. 498.
(2.) Ifame of Defendant — Carr v.
Shaw, 7T. R. 299; Rutherford v. Mein,
2 Smith, 392 ; Wood v. Jfume, 4 D. &
L. 186 ; Goodchild v. Leadham, 5 D.
& L. 883 ; see also Sale v. Crompton,
2 Str. 1209.
(3.) Date of Writ— Kirk v. Dalby,
8 Dowl. 766; Williama v. Williamt,
10 M. & W. 476 ; Mavor v. Spalding,
1 D. & L. 878 ; Culverwell v. Nugee,
4 D. & L. 80 ; Campbell v. Smart, 6 C.
B. 196.
(4.) Teste of Writ— Wakelingy. Wat-
son, 1 C. ^ J. 467 ; Edwards v. Collins,
"■'J
C4;
fi ,'. ;• h
mn:
82 THE COMMON LAW PROCEDURE ACT. [s. XXXvii.
the Court out of which the same shall issue, or to a Judge j (m)
Iff:;
;i!. IS;' ill I!
5 Dowl. P. C. 227 ; Corroll v. Faulkes,
6 D. & L, 590 ; JHyera v. Rathburn,
Tay. U. C. R. 159.
AH important cases vritb respect to
the amendmeut of process, decided
since the Uniformity of Process Act
will be found collected in a note to
Wood T, Hume, 4 D. & L. 139 a.
The reluctance of the Court to amend
the writ when not in strict compliance
with the Uniformity of Process Act did
not extend to indoraementa upon the
writ. A distinction was made between
Don-compliance with the terms of an
Act of Parliament and of a Rule of
Court: (See Cooper V.Waller; Tabram
V. Thomea, 3 Dowl. P. C. 167.) The
forms of the writ were prescribed by
the Eng. St. 8 & 4 Wm. IV. c. 39. The
indorsements were made necessary by
Rules H. T. 2 Wm. IV. R. 11. and M.
T. 3 Wm. IV. No. 6. The following
cases in reference to amendment of in-
dorsements may be useful : —
(1.) Indoraement required by a. xxvi.
of our C. L. P. Act aa to debt and coata
—See Urquhart v. Dick, 3 Dowl. P. C.
17 ; Shirley v. Jacoba, 3 Dowl. P. C.
101 ; Cooper v. Waller, 3 Dowl. P. C.
167 ; Trotter y. Baaa, 3 Dowl. P.C. 407.
(2.) Indoraement on pluriea writ, of
date of issue of former writ — Medlicott
T. Hunter, 5 Ex. 34.)
The writ and indorsements as re-
gards amendment must now be
deemed upon an equal footing. The C.
L. P. Act makes no distinction. An
enactment similar to the one here an-
notated has been introduced into the
recent Bills of .Exchange Act in Eng-
land. Where a writ issued under that
Act omitted the name of the maker of
the note sued upon, the Court allowed
the indorsement to be amended :
{Knight v. Pocock, 17 C. B. 177.)
{m) 1 — Generally aa to proceedinga
by Summona and Order. Unless a dis-
tinction is made in a Statute between
the powers of a Judge in Chambers
and those of the Court, the Judge has
the same powers as the Court : (Smee-
ton V. Collier, per Parke B. 1 Ex. 459.)
And where a Judge exercises the duties
which belong to the Court, it is to be
taken that he is to exercise them in the
same manner as the Court itself, unless
there is something in the context of the
Statute which leads to a different con-
struction : (lb. p. 463.))tlf the Judge tot>«*tJi
whom an application is made, having A***
in the matter before him concurrent
jurisdiction with the full Court, refuse
the order applied for, an appeal as a
general rule will lie to th-" full Court:
(See Chapman v. King, 16 L. J. Ex.
15 ; Teggin v. Langford, 10 M. & W.
656 ; Stokea v. Grisaell, 2 N. C. L. Rep.
730.);^A Judge in Chambers has the.d«(ci«
same jurisdiction in respect of the costs ""^(t
of a summons as the Court whom ho A^'
represents has over the costs of a rule :
(Doed. Preacott v. Roe, 9 Bing. 104;
In re Bridge and Wright, 2 A. & E. 48 ;
Sheriff V. Grealey, 1 H. & W. 688 ;
Davy V. Brown, 1 Bing. N. C. 460;
Witaon v. Nor thorp, 4 Dowl. P. C. 441.)
The practice formerly was otherwise :
(See Spicerv. Todd, 2 C. & J. 165;
Read v. Lee, 2 B. & Ad. 415.) The
Judge who makes an order may, if so
disposed, fix the amount of costs:
(Collina v. Aron, 4 Bing. N. C. 283.)i*^(^*<
If the Judge in any matter before him A^^'
exceed his jurisdiction, it is the duty
of the party affected by his order, to
apply to the Court to vary or rescind
it, on the ground that it is not the re-
sult of a correct exercise of discretion.
It is said that there is no inflexible
rule as to the period at which such ap-
plication should be made ; but the
party must at least apply within a
reasonable time. Two years is an un-
reasonable time : (Griffin et al v.
Bradley, 6 C. B. 722.) Reasonable
time means at all events before next
step taken : (Meredith v. Gillara, 22 L.
J. Q. B. 373.) Alf an order appear to«a««l«i
have been made **by consent," thehli;
Court cannot presume that it is incor-
rect. A party to the order cannot
move the Court to set aside an order
made with his own consent. If the
words •♦ by consent" were improperly
8. XXXV!
aad sue
inserted,
made to
aside : (
Under th
by consot
dispute, t
consent o
be a good
who had
Wright, :
Court can
on a sumi
time by ai
(Wood v.
B. 969.)
no force
Goodered,
for an uur
has been
that order
Court, he
it aside:
C. J. 3 M.
has once b
applicatioi
rule of C
order is
also Casi
G. 439,
Court to
the affiJa\
obtained s
(Needham
Pocock v. .
The rule,
up on rei
Chambers
21 L. J.
2 N. C. L.
As to Rul
see N. Rs
2— Par
under thia
In ordi
•hould
the irregu
the appl
made in
2 Dowl.
b(
<ins, 4 Do
Pr. 96.)
satisfied v
and an ap
8. XXXvii.] ; AMENDMENT OF WRITS. 88
and such amendment may be made upon any application to set
insortcd, then application should be
made to the Judge to set the order
aside : {Hall v. West, 1 D. & L. 412.)
Under the Interpleader Acts, an order
by consent disposing of the property in
dispute, though bad for not stating the
consent on the face of it, was held to
be a good award between the parties
who had consented: {Harrison t.
Wright, 18 M. & W. 816.) The
Court cannot take notice of a consent
on a summons unlcsi followed in duo
time by an order drawn up and served :
( Wood V. Harding, per Maule J. 3 C.
B. 969.) And generally an order is of
no force till served: (See Belcher v.
Goodered, 4 C. B. 472.) If a party lie by
for an unreasonable time after an order
has been made and served, and after
that order has been made a rule of
Court, he cannot move the Court to set
it aside: {Clement v. Weaver, Tindal
C. J. 3 M. & 0. 555.) When the order
has once been made a rule of Court, the
application should be to set aside the
rule of Court in which the Judge's
order is merged : {lb. 563 ; see
also Cassidy t. Steuart, 2 M. &
Q. 439, n. a.) On a motion in
Court to rescind a Judge's order,
the affidavits on which such order was
obtained should be before the Court :
{Needham v. Bristowe, 4 M. & G. 262 ;
Pocock V. Pickering, 21 L. J. Q. B. 366.)
The rule, if obtained, should be drawn
up on reading the affidavits filed in
Chambers: (See Edwards v. Martin,
21 L. J. Q. B. 87 n ; Grissell v. Stokes,
2 N. C. L. Rep. 730, and notes thereto.)
As to Rules, Summonses, and Orders,
see N. Rs. 119-160 inclusive.
2 — Particularly as to applications
under this enactment.
In ordinary cases the application
•hould bo made in Chambers. If
the irregularity happen during vacation
the application should always bo
made in Chambers: {Cox v. Tullock,
2 Dowl. P. C. 47; Hinlon v. Stev-
ens, 4 Dowl. P. C. 283, Bag. Cham.
Pr. 90. ) If the party applying be dis-
satisfied with the decision of the Judge
and an appeal to the full Court be in-
tended, the motion should be made a>>
early as possible during the following
term : (See Sugars t. Concanen, 5 M.
& W. 80 ; Collins v. Johnson, 16 C. B.
688.) When notice of intention to move
necessary: {SeeDougall v.Maclean,l>ra.
Rep. 330; and Ferric v. Tannahill, lb.
340. ) If the question before the Judge
in Chambers be whether the application
to net aside process for irregularity, i»
made in sufficient time, it is a question
for his discretion, and it would seem
that the Court will not review his de-
cision : (See Tadman v. Wood, 4 A. &
E. 1011.) The Court will very seldom
entertain an appeal against the decision
of a Judge in Chambers, declining to
give effect to a motion for irregularily :
{Oilmour et al. v. Wilson et al., 4 U.
C. R. 154.) Semble although the Judge
himself might entertain the application
a second time, yet he is not bound to
do so upon a mere irregularity : {lb.
per Robinson, C. J.) A Judge in
Chambers has authority to open again
an order granted by himself, or even
to rescind it before it has been carried
into effect, upon his discovering that
that he has made it inadvertently, or
that he has been surprised into making
it by any perversion or concealment ot
facts : {Shaw et al. t. Nickerson, and
Gillespie et al. v. Nickerson, per Ro-
binson, C. J. 7 U. C. R. 643.) The
motion should be either that the writ
be set aside or amended at the costs of
the plaintiff. All such applications,
whether to the Court or a Judge, should
be promptly made — as a general rule —
within the lime allowed by the writ for
appearance: {Tiling v. Hodgson, 13
M. & W. 638; Tyler v. Green, 3
Dowl. P. C. 437 ; Herbert t. Darley,
4 Dowl. P. C. 720 ; Edwards v. Col-
lins, 6 Dowl. P. C. 227 ; Davis v.
Sherlock, 7 Dowl. P. C. 630; Child
v. Marsh, 3 M. & W. 433.) It must
be borne in mind, when referring to
English authorities, that the time lim-
ited for appearance in ordinary cases
used to be, there as here, only eight
days. It is now ten days in both coun-
tries. Coses, therefore, under the old.
JJHi
I
:i /■
^ I
1.
.,:jl
iS/^
V I
II
I '.
Ill;
m ^i
t «
84 THE COMMON LAW PROCEDURE ACT. [8. XXXvii.
aside the Writ, upon such terms as to the Court or Judge may
seem fit. (n)
practice deciding that applications
made eight, nine, or ten days after
knowledge of the irregularity were too
late, cunot be reoeiTcd as positive
authority under the new practice. By
rule of Court " It is ordered that no
application to set aside proeeia or pro-
ceedings for irregularity shall be al-
lowed unless made within a reasonable
time, nor if the party applying has
taken a fVesh step after the knowledge
of the irregularity" : (N. R. 106 T.T.
20 Vic. ) This rule must not be rigidly
construed as applying to persons in
close custody : (Barry t. Eecles, 2 U.
0. R. 888, P. C. Hagerman J.) Sed
qu. " We cannot admit the argument
advanced on behalf of the defendant,
that because she is a prisoner, she is
entitled to greater favor than any other
person": {Claridge v. McKenzie, Tin-
dol, G. J., 2 Dowl. N. S. 898. Also
see Chit. Arch. 8 Edn. 1271, and cases
cited in note n. ) The rule applies to the
representatives of the party as well as
to the party himself: (Chit. Arch. 8
Edn. 1271.) But it applies to the
party's own acts only, and not to acts
done by the opposite party for him :
(/6.)
1. "Reasonable time," a» applied to
the tetting aside of mesne process — five
days reasonable : {Firlejf v. Rallett, 2
Dowl. P. C. 708.) Six days reasonable:
(Smith v. Pennell, 2 Dowl. P. C. 654.)
Twenty-three days not so : (Fotvnes v.
Stokes, 4 Dowl. P. C. 125.) From 4th
June tillfoUowingM.T. too late : (Lewis
T. Davison, 3 Dowl. P. C. 272.) Arrest
28th Augu8t,application 6th November
following, too late: (Parker i.Bayley, 5
D. k L. 296 ; also see Chit. Arch. 8 Edn.
1271.) The time begins to run from
the time when the party complaining
had the means of knowledge, though in
fact he did not know of the irregularity
till afterwards: (Lewis v. Davison,
1. C. M. & R. 655; Seymour y. Mad-
dox, 1 L. M. & P. 643.)
2. "fVesh step" after knowledge of
the irregularity as applied to process —
Too late after appearance : (Fox v.
Money, 1 B. & P. 250 ; Ilompay v.
Kenning, 2 Chit. 286 ; see also Steele v.
Morgan, 8 D. & R. 460.) Too late after
justification of bail : (Jones v. Prince,
1 East. 81.) Too late after bail per-
fected : (Chapman v. Snow, 1 B. & P.
132.) For this purpose the affidavit to
hold to bail is part of tbo process :
(D' Argent v. Vioant, otherwise Taylor,
1 East. 830.)
The following have been held to be
" fresh steps" so as to estop defendant
objecting to previous irregularities.
An undertaking to appear: (Anon. 1
Chit. 129 ; Ilolliday v. Lawes, 3 Bing.
N. C. 541.) Payment of part of debt
and costs : (Monday v. Sear, 1 1 Price
122.) Admission of the debt with a
request for time: (Rawes v. Knight,
1 Bing. 132.) Demand of declaration
not a fresh step : (Hodgson v. Dowell,
3 M. & W. 284.) A defendant having
appeared and examined evidence on an
assessment of damages which had been
carried down by a writ of trial issued
from the Queen's Bench, under our
St. 8 Vic. c. 13 3. 64, was held by such
conduct to have waived irregularities in
the proceedings before then had in the
Queen's Bench: (Small v. Beasdy, 3
U. C. R. 141.) If defendant lie by
and allow plaintiff to take several steps
he thereby waives all previous irregu-
larities in his proceedings : (Arnold v.
Fish, 6 0. S. 140 ; Proctor v. Young, H.
T. 4 Vic. M.S. R. & H. Dig. " Irregu-
larity" 16.) If he move a Judge in
Chambers, he must state all the irre-
gularities he relies upon, and cannot
afterwards in term resort to other ir-
regularities, which, though existing at
the time of the application in Cham-
bers, were then passed over without
objection : (Arnold v. Fish, 6 O.S.140.)
The summons should state the several
objections intended to be insisted on :
(See N. R. 107.)
(}t) It is thought that the Court will '
impose costs upon the plaintiff only in
cases of irregular proceedings, such as
before theactwould have been set aside.
(Lush. Pr. 250.) Formerly it was not
8. XXXVlll.
XXXV
contained
respective!
be substiti
advertenci
proceeding
parte appl
applicatioi
and whetl
or not, be
usual to sei
was a subsl
Act, or R
(See Yardl
C. 45; L
198; Pickn
429;
145;
175;
120;
Engle
Youll
Ardei
Rust'
King v. Moi
These case:
authorities
our laws, i
usual for tl
when there
ance with
Rule of Co
upon its
The discre
bars in s
cised by hi
by the Com
4 A. & E. :
appears tb
section wil
adverse pa
be by a dei
proceeding!
them amen
cases if the
be held the
pay the co
occasioned
quhart v.
Turner v. .(.
Icy v. Jai
Cooper V.
If the ru
8. xxxviii.]
AMENDMENT Of WRITS.
85
m
'i M
be substituted for any other of them, (p) such mistake or in- if one form
of writ bo
advertence shall not be an objection to the Writ or any other Bubstituted
proceeding in such action ; (j) but the Writ may, upon an ex anoTh °r. *°'
parte application to a Judgt (r^ ether before or after any
application to set aside su. Wri» any proceeding tht-'n,
and whether the same or notice thereof shall have been served
or not, be amended by such Judge, without costs. («)
usual to set aside process where there
vos a substantial compliance with the
Act, or Rules regulating the same :
(See Yardley v. Jones, 4 Dowl. P.
C. 45 ; Lewis v. Davison, 6 Tyr.
198 ; Pickman v. Collis, 3 Dowl. P. C.
429 ; Englehart v. Eyre, 2 Dowl. P. C.
145 ; Youlton v. Hall, 7 Dowl. P. C.
175 ; Arden v. Jones, 4 Dowl. P. C.
120 ; Rust y. Chine, 3 Dowl. P. C. 565 ;
Kingy. Monkhouse, IDovl. P. C. 221.)
These cases are noted not so much as
authorities applicable to the state of
our laws, as proofs that it was not
usual for the court to set aside process
when there was a substantial compli-
ance with the governing Statute or
Rule of Court. Each case must rest
upon its particular circumstances.
The discretion of a Judge in Cham-
bers in such matters when exer-
cised by him will bo seldom reviewed
by the Court above : {Tadman v. Wood,
4 A. & E. 1011.) In the first place, it
appears that application under this
section will in general be made by an
adverse party. It will, in most cases,
be by a defendant seeking to set aside
proceedings for irregularity, or to have
them amended by the plaintiff. In many
cases if the application succeed, it may
be held that plaintiff ought of right to
pay the costs, inasmuch as his error
occasioned the application: (See Ur-
quhart V. Dick, 3 Dowl. P. C. 17;
Turner v. .Gill, 3 Dowl. P. C. 30 ; Shir-
Icy V. Jacobs, 3 Dowl. P. C. 101;
Cooper V. Waller, 3 Dowl. P. C 167.)
If the rule or order be moved with
costs, and be afterwards discharged
without any special directioua as to
costs, it will be understood as with
costs: (SeeN. II. 108.)
(o) Adopted from Eng. St. 15 & 16
Vic. c. 76, s. 21. — Applied to County
Courts.
(p) The preceding section (xxxvii.)
applies to omissions in process gen-
erally. The present section applies
only to the erroneous substitution of
one of the three forms of writs giv-
en in the Schedule for any other of
them.
(?) Where the form No. 1 to be usnd
when the defendant resides within the
juriadiction was substituted for form
No. 8, the defendant being resident
without the jurisdiction, the Court,
though they did not set aside the writ,
set aside an order obtained by plaintiff
allowing him to proceed as if personal
service had been effected : {Ilasketh v.
Flemming, 30 L. & Eq. 259.) But in-
dependently of this enactment, the
Court, it seems, has the power to order
all amendments to be made necessary
for determining the real question in
controversy between the parties : (See
s. ccxci, of this Act, and Cornish v.
Uoekin, 1 El. & B. 602.)
(r) This is an enabling clause, and
it is the plaintiff who is to avail him-
self of it: (per Coleridge, J. in Hasketh
V. Flemming, 30 L. & Eq., p. 261.)
(s) The difference between this and
the preceding section (xxxvii.) with
respect to costs, should be noticed.
I '-
iSU-
as
86 THE COMMON LAW PROCEDURE ACT. [S. XXxJx. xl.
^Shcl^-qu.s. (^w**^) XXXIX. (0 A Writ for service within the Jurisdiction
<*^«^ ^ a ^ \l 6 Bn^-^- ^-^ may be issued and marked ns a concurrent Writ with one for
service out of the Jurisdiction, and a Writ for service out of
writs may be the Jurisdiction maybe issued and mnrked as a concurrent
•iurront" Writ with one for service within thc Jurisdiction, ('w)
OksAtI d7 (^fP- ^"^ <^-) ^^' (^^ "^"y affidavit (w) for the purpose of enabling the
<sAx7 ^/^T. Kng.o. L. p. Co'*'^* ^^ ^ Judgo to direct proceedings to be taken against a
^^/p/- ilt 8 q *■' ^®^'*"'^'" Defendant residing outof the Jurisdiction ofthe said Courts, (a;)
." '' A«Bdavit« may be sworn (y) [before the Chief Justice or Judge of any
proceedingii Court of Superior Jurisdiction in the country wherein such
a^ainnta Defendant shall rcsido or be served, or before the Mayor or
I the jurliidio- Chief Magistrate of any City, Town, or place wherein the
whomto'be Defendant shall reside or bo served, or] before any Consul
*"* *' General, Consul, Vice-Consul, or Consular Agent for the time
being, appointed by Her Majesty, (z) at any foreign port or
place [at or near which the Defendant shall reside or be
served, (a)] and every affidavit so sworn by virtue of this Act,
Amendments under ibis section shall
be made without costs. Amendments
under the preceding section shall be
upon such terms as to the Court or
the Judge may seem fit.
(t) Adopted from Eng. Act 16 & 16
Vic. c. 76 8. 22. — Applied to County
Courts.
(u) Thiswillassist plaintiff when in
doubt as to whether defendant is resid-
ent within or without the jurisdiction
of the Court, as he may issue concur-
rent writs of different forms atone and
the same time, so as without delay to
proceed against defendant in either
event. Or if after the issue of an ori-
ginal writ plaintiff discover that he has
been mistaken as to the residence of
defendant, it only remains for him to
issue a concurrent writ of a different
form and so to rectify his error, while
continuing his proceedings. In the
case of several defendants, some resi-
dent within and some without the jur-
isdiction of the Court, the practice will
be no less convenient. Though not so
enacted, it must be intended that con-
current writs issued under this section
should bear the same date as the original
writ, and be in force only during the
period when such original writ shall be
in force : (see s. zxvii. and notes.)
(v) Taken ft-om Eng. St. 15 & IG
Vic. c. 76 8. 28. — Applied to County
Courts. There are some variations
between this and the English section,
which will be noticed presently.
(u>) As to affidavit generally, see p.
41 ante s. xxiii. note divs 3, 7, 8, 9,
intitled "Deponent" ** Commissioner "
" Signature of Deponent," and "Jurat."
See also N. Ks. 109, et seq.
(x) t. f., the proceedings mentioned
in or referred to in ss. xzxv. and
xxxvi.
(y) Words in brackets throughout
this Section are not in the English Act.
(z) ** Appointed hy her Majesty " &c.
From these words it would appear
that deputies or other consular officers
not so appointed have not the power to
act under this Act. It may be that if
the affidavit purport to be sworn before
a consular officer, the Courts will pre-
sume an appointment by the Crown till
the contrary appear.
(a) It seems, according to the cur-
rent of authority in England, that nci-
i
8. xl.] AFFIDAVITS SWORN ABROAD.
may be used and shall be admitted ia evidence, saving all just
exceptions, (b) providing it purport to be sworn (c) before
[such Chief Justice, Judge, Mayor, or Chief Magistrate],
Consul General, Consul, Vice-Consul, or Consular Agent : (d)
81
^>y//
ther a British Consul nor a British
Minister is entitled, by virtue of his
office, to administer affidavits : ( Wil-
Hams V. Welch et al. 8 D. & L. 867 ;
Le Veux v. Berkelei/, 2 D. & L. 81 ; In
re Baronets Dunsani/, 7 C. B. 119.
See also Picardo v. Machado, 4 B.& C.
886, where the point which arose upon
an affidavit to hold to bail tal<en abroad
was discussed but not decided. The
Court was equally divided. See also
Ex parte Ilutchituon, 4 Bing. 606.)
The power, especially as regards
proceedings to be had in a Court of
Justice seems to be a statutable one,
and only exercisable when the statute
is express. The powers conferred by
this Act upon certain public officers
named does not authorise them to ad-
minister all affidavits of either party to
a cause. It is restricted to •« any affi-
davit for the purpose of enabling the
Court or a Judge to direct proceedings
to be taken against a defendant resid-
ing out of the jurisdiction of the said
Courts," that is, to affidavits made by
or on behalf o{ n. plaintiff, who is desir-
rous of proceeding with his cause. A
general Act (6 Geo IV. c. 87, s, 20,) was
passed in England to enable Consuls
General and Consuls to administer affi-
davits and oaths; but the powers there-
by given only place these officers upon
the same footing as notaries public:
{Ex parte Barber, 2 Scott, 436.) It
has been held that even under that Act
neither a Consul General nor a Consul
is empowered to take an affidavit in a
cause pending in England: (Le Veux
V. Berkeley, 2 D. & L. 31 ; Williams v.
Welch, 3 D. & L. 357.) Thoujrh not
entitled to administer any such affidavit
himse1f,lhe Consul may certify as to the
handwriting and authority of the pj^rty
before whom it is sworn : (Ex parte
Barber, ante.) An affidavit in one
case taken in Madeira before a Bri-
tish Consul who in the jurat describ-
ed himself as " authorised by the
laws of Madeira to administer oaths in
the Island of Madeira," which fact hav-
ing been certified by a notary public
the affidavit was received and filed by
the Court: (Ex parte Hutchinson, 6 C.
B. 499.) The only general Act upon
the subject in Upper Canada is that
of 12 Vic. cap. 77, and if applicable at
all, it can only apply where the defend-
ant is resident in Lower Canada. The
Courts in Upper Canada are authorised
by that Act to appoint resident Com-
missioners in Lower Canada " to take
and receive all and every such affidavit
and affidavits as any person or persons
shall be willing and desirous to make
before any of the persons so empowered
in or concerning any cause, matter, or
thing depending or hereafter to be de-
pending, or in anywise eoncerninff any of
the proceedings to be hud in the said Court
of Queen's Bench, or in any other Court
of Record in Upper Canada," Though
not strictly applicable to the section^
under consideration, a reference may
be here made to Eng. St. 6 Geo. II.
cap. 7 8. 1 as to affidavits to be made
in England in proof of debts sued for
in this Province. In connexion there-
with read Gordon v. Fuller 5 0. S. 174.
(b) i. e., the affidavit if not conform-
able to our Statutes and Rules of Court
so far as they can be justly held to
apply, will be open to " exception."
(c) " Signed by " are the words used
in Eng.C.L.P. Act. The official seal of
office does not seem to be made neces-
sary either by this or the English Act.
(d) The Eng. C. L. I'. Act continues
" upon proof of the official character
and signature of the person appearing
to have signed the same." The omis-
sion of this proviso by our Legislature
is not without significance. It will
throw upon the sentence •* provided it
(the affidavit) purport to be 8Wom,&o,."
the burthen of elucidating how and
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89
TH£ COMMON LAW PROCEDURE ACT.
[8. Xl
i t
Ac.
^"'•■^ Provided always, that if any person shall forgo any signature (e)
Punishment to any Buoh affidavit, or shall use or tender in evidence any
aiKn«tuio8, such affidavit with any false, [forged,] or counterfeit signature
thereto, knowing the same to be false, forged, or counterfeit,
he (/) shall be guilty of felony, [and shall, upon conviction,
be liable, at the discretion of the Court, to be kept confined at
hard labour in the Public Penitentiary of this Province, for a
term not less than four years nor more than ten years,} ^^) and
every person who shall be charged with committing any felony
under thia Act, may be dealt with, indicted, tried, and if con-
victed, sentenced, and his offence may be laid and charged to
have been commiiLed, in the county or place in which he shall be
6^^ ^ AoeeMoriM. apprehended or be in custody j (A) and every accessory before
' or after the fact to any such offence, may be dealt with, in-
dicted, tried, and if convicted, sentenced, and his offence may
be laid and charged to have dcen committed, in any county or
place in which the principal offender may be tried; '^Pro-
vided also, that if any person shall wilfully and corruptly make
Tri(ii,punUh- a false affidavit before such [Chief Justice, Judge, Mayor,
raont, Ac.,for _ > ^ a / ,/ t
taking fiOia Chief Magistrate,] Consul General, Consul, Vice-Consul, or
Consular Agent, every person so offending shall be deemed and
1^)
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in what mannor an affidavit so sworn
shall bo receivable — whether purport-
iag to be signed by a person having
authority, it shall bo prima facie
taken to have been so in fact ; or whe-
ther, before being received, it will be
necessary to prove dehors the affidavit
both the official character and the sig-
nature of the party who signed, &o.
These doubts must be left to the Courts
for decision.
(e) This may apply either to the sig-
nature of the party who administcrud
the affidavit, or of the deponent who
signed the same. Probably to both ;
but certainly to the former.
(/) Two descriptions of offenders
are here contemplated, 1. Persons who
shall forge, &o. ; 2. Persons who shall
tandor in evidence any forged affidavit
knowing the same to bo forged, &o.
(g) Substantially the same as St.
10 Vic. cop. 198. 11 (first part,) but the
latter act proceeds further, and provides
that the Court may direct that the forg-
ed document shall be impounded. The
punishment for forgery under the
general Act 10 & 11 Vio. c. 9 s. 14 is
" Hard labour in the Public Peniten-
tiary of this Province for any term not
less than three years nor more than
seven years," &c.
(A) Any felony under this Act. Qu.
Is it intended that this provision should
have a general bearing upon all offences
made felony under this Act, and all
felonious offences committed against
the Act ? The provision itself as
to the crime of forgery, is much
the same as the latter part of s.
11 of Stat. 16 Vic, cap. 19, and
10 & 11 Vic. 0. 9 s. 17. Both these
Statutes have been taken from Eng.
St. l»Wm. IV. c. 66 8. 24 : (Russell
Cr. 7th Am. Edn. II, 388, 410.) The
place in which the offence was com-
mitted and language in which the do-
cument was written, are equally im-
' I
8. xli.] SPECIAL INDORBEMRNT ON WR1T8. H^
Ukcn to bo gnilty of perjury, (t) in like manner as if such false "Jl'j'*^^'*""*
affidavit had been made [in Upper Canadu] before competent
authority, 0") and may bo dealt mih, indicted, tried, and if
convicted, sentenced, and his offence may be laid and charged
to have been committed, in that county or place where ho shall a^ /•-
have been apprehended or bo in custody. (^) ^''^
XLT. (0 In all cases where the Defendant resides withinC-^iV- «>-^0^^^^,2^^4 ^.
the Jurisdiction of the Court, (m) and the claim is for a debt (n) ^"f' J: ^^- ^ ^^^ § ">
or liquidated demand in money, (o) with or without interest, ( j?)
arising upon a contract express or implied, (q) as for instance,
,-)\
material where the oifenoo comes under
St. 10 & 11 Vio. 0. : (Soo 15th seo.)
(t) Same as statutes last mentioned.
(j) Substantially the same as St.
12 Vic. 0. 77 s. 4.
(k) The Eng. C. L. P. Act continues
"as if his offence had actually been
committed in that county or place."
(0 Adopted from Eng.St.l5& 16 Vic.
0. 76 8. 25. — Applied to County Courts.
Founded upon first report G.L. Comrs.,
B. 66. The object of this enactment
is to prevent the expense of a declara-
tion : {Rodway v. Lucas, per Pollock
C. B., 10 Ex. 667, 29 L. & Eq. 398.)
The very great mtyority of cases in
which actions are broughtare "debts,"
or *• money demands," to which there
is no defence. It has been considered
extremely desirable that in such cases
the parties should bo put to the least
possible expense : (Per Martin B. same
case.)
(m) This section dofes not apply to pro-
ceedings taken either under ss. xxxv.
or xxxvi., for in each of those cases
defendant is supposed to be " without
the jurisdiction of the Court."
(?j) "Debt" — meaning thereof : seo
s. xxvi. note/.
(o) It should appear upon the fnco
of the indorsement that tl»e claim is for
a liquidated demand : {Rogers v. ffiuif,
per Parke B. 10 Ex. 474, 28 L. & Eq.
469.) Where in an action on a bill of
exchange, the indorsement on the writ
was £31 8s 9J, being balance of prin-
cipal, interest, ami expenxf.1 of noting "
&c.: Held that the latter item was not
a liquidated demand : {lb.) The en-
dorsement consequently wns treated as
a nullity, and plaintiff bfld bound to
declare in the ordinary manner : {lb.)
(p) The indorsement applies solely
to claims which are liquidated, and do
not depend on the finding of a jury :
i Rodway y. Lucas per Parke B. 10
3x. 667, 29 L. & Lq. 398.) The Court
in a later case said, " We wish that it
should be distinctly understood by the
profession, that in all cases except bills
of exchange and promissory notes (as
to which it is the usual practice of the
Court to allow interest as a matter of
course when the jury give a verdict for
the plaintiff), if we find that any party
not entitled to interest under an ex-
press or implied contract shall never-
theless claim it by special indorsement
on the writ, in order to gain an im-
proper advantage, and in default of
appearance sign judgment for a larger
sum than he is really entitled to, we
will not only sot aside such judgment,
but visit the attorney with the conse-
quences of his abuse o^ the law, by
making him pay the costs" ; (Rodway
v. Lucas, Pollock C. B. 10 Ex. p. 674,
29 L. &Eq. p. 401.) As to interest
allowable on protested bills of exchange
see Stat. 12 Vie. cap. 76. Same as to
" all debts or sums cartaia payable at
a certain time or otherwise," see Stat.
7 Wm. IV. cap. 3 s. 20. And as to
interest in the nature of damages over
and above the value of goods sued for
in actions of trover or trespass de bonis
asporlads, sec same Stat. a. 21.
(fj) Where the claim is for a
debt, &c., '*wilh or without interest,
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t<klii pikrllcii-
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incl(irt«<«l 1)11
thu writ.
No fiirtlinr
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ordur.
THE COMMON LAW PROCEDURK ACT. [«. xll.
on a Bill of Kxchan{:,o, Promissory Nolo, or Chc<|UO, ur other
simple contract debt, or on a bond or contract under bcmI for
payment of n liquidated amount of money, or on u etntuto
where the Hum sought to bo recovered i.s n (Ixed nuin of
money, (r) 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,
the Plaintiff shall bo at liberty to make upon the Writ of Sum-
mons and copy thereof, a special indorsement (») of the parti-
culars of his claim, in the form contained in Schedule (A) to
this Act annexed, marked No. 5, or to the like effect j (/) ond
arising upon a contract express or im-
plied," &c., moans with or without in-
terest arising upon a contract express or
implied, and does not apply to. any caso
where it is optional with the jury to
give interest as they may bo advised
according to the justice of the case :
{Rodwat/ v. Lucas, per Parke B. 10 Ex.
p. 672, 29 L. &Eq. p, 400.)
(r] Qui tarn actions included : (See
Ilally. ficotson, 9 Ex. 288.)4<*u*J^.ia/
(s) The indorsement necessary under
s. xxvi. is compulsory. This indorse-
ment is discretionary. Plaintiflf, if ho
omit it, must declare in the usual
manner, and deliver his bill of particu-
lars according to N. R. 20. Pro-
vided that if the case be proper for a
special indorsement and the same be
omitted, then plaintiff shall not be en-
titled to the costs of the declaration,
&o. : (s. Ixi. ) Nearly all the indorse-
ments necessary or proper to be made
on writs of summons have been noticed
in the preceding sections. Two more
at least remain to be noticed. If
plaintiff intend to claim either a writ of
mandamus or of injunction, he must
indorse his writ of summons accord-
ingly: (88. cclxxv. cclxxxiv.)
(t) A reference to the form given in
the Schedule, by way of example, will
show that plaintiff may in his indorse-
ment give credit, as has boon commonly
done in particulars of demand under
the old practice. Where in assumpsit
for goods, the particulars contained an
item of payment "Cr. by bills, XICOO" :
Hold that it was to be taken as payment
by the defendant to plaintiff: {'Smeth-
urst V. Tai/lor, 12 M. & W. 545. ) If a
plaintiff give credit in his particulars
of demand for a sum paid by dcfcntl-
ant, such payment is held to be upon
the same footing as if there had been a
plea of payment : {Goatley v. Herring,
12 Law J. C. P. 82 ) But it cannot
be taken as an admission as against
defendant with respect to any particu-
lar items in the account : {lb.) The
Court held in one case that they could
not compel plaintiff to state the items
or sums of money for which ho volun-
tarily gave credit in his particulars :
(Myatt V. Green, 18 M. & W. 837.)
It was also hold that plaintiff was not
precluded from explaining admissions
in the particulars of payments made to
him by the defendant, and of showing
on what account such payments were
made: [Mercy v. Galot, 8 Ex. 851.)
It is not necessary for a defendant in
Upper Canada to plead payment of any
sums credited in the particulars. The
following are the rules upon the subject:
'* In all cases in which the plaintiff, in
order to avoid the expense of the plea
of payment or set off, shall havo given
credit in the particulars of his demand
for any sum or sums of money therein
admitted to havo been paid to the
plaintiff, or which the plaintiff admits
the defendant is entitled to set-off, it
shall not be necessary for the defend-
ant to plead the payment or set-off of
given.
Our ol
\Rowl
403;
57.)
of don
Q B.
9. Xil.]
BPKCIAfi INPOnHFMKNT 01' 1VHITS.
01
when a Writ of SuininonH lins bcoii indorj-cil in the Kpceiul form
hcrcinboforo inciitionoil, the indorsement hImII bo oonttidercil
as particulars of demand, and no furtbcr or otbcr particuluiH
need bo dolivorod, unless ordered by the Court or a Judge, (u)
gnchnutn orsumsof tncnoy. liiit this
rule \a not to np|i1jr to oiiHes Tvhcre tlio
plitintitt', nftor stuting tho nniouiit of
his iKmand, states that ho neeks to re-
cuvora certain bahincc, witliout giving
creiMt tor any parliciilar Ktim or stitm,
or to CI18C8 ' i" set-off whore the plaiutitr
does not stttte the particulars of n\ic\\
set-off": (N.R. PI. 13.) Payment shnll
not in any case be allowed to he given
in evidence in reduction of damages or
debt, but shall bo pleaded in bar." —
(N. 11. PI. 14.^ It will bo proper to
romark that these rules do not come
into force until Easter Term, 1867.
And that in the meantime the old rules,
orders and regulations, (made in pur-
suance of tho Act of Upper Canada,
7 Wm. IV., cap. 8,) shall remain in
force. The N. Rs. 13 and 14 are sub-
stantially a re-enoctment of our old
RulelGof E. T. 6Vic. And the latter
was copied from tho Eng.Rulo 19 of T.
T. 1 Vic. The Eng. rule was mode
to settle doubts which arose in the eases
of JCrnest v. Brown, 8 Ring. N.C. 674 ;
NichoU V. Williams, 2 M. & W. 758 ;
Kenyan v. Wakei, 2 M. & W. 764 ;
Coaler V. Stevens, 2 C. M. & R. 118;
JJoofh V. Howard, 5 Dowl. P. C.
438. Since the English rule 19 of T.
T. 1 Vic, where, to an action of
debt for £44. 8s., the defendant
pleaded payment of £15 in satisfaction,
tho plea was hold to be good : {Turner
V. Collhia, 2 L. M. & P. 09.) Tho
reason being that since credits given in
the particulars of demand nceil not now
be pleaded, a less sum than the debt in
the declaration might, with credits so
given, be equal to such debt: (/'>.)
Our old rule does not apply to set off :
'{Rowland v. Blakdey ei al., 1 Q. R.
403 ; Toicnson v. Jackson, 14 L. J. Ex.
57.) Further as to credit in particulars
of demand, see Morris v, Jones et al., 1
Q, R. 397 ; Lamb v. Micklelhwait, lb.
400 ; Keesnr v. Ewpnj et al., 4 V. C. R.
47 ; Knstuirk v. Jlurman, 6 M. & W,
13; Nosottiy. I'aye, HO Law J. C. P.
81 ; Harris y, Munlyovirri/, lb. 1^21.
(m) Qu. — Can a defendant, who has
indorsed his writ ntider this section,
Kubseriuently deliver fresh jiarticulars
with his dcclarat.ju and ])rocced
thereon ? The words "need bo" raner
argue that plaintiff may di-liver rUier
particulars if he chooces : {Fromcnty,
Ashley et al., per CiJiipbell ' J. 1
El. & R. 724, 18 L. & Eq. 217.)
If plaintiff have not tho right to
do BO and notwithstanding deliver iVesh
particulars, such a step will *'o irre-
gular only and the irregularity »,!-jved
ifdefondant plead over : (lb. ficTorc
tho C. L. P. Acts, in a case where
there was no waiver by defendant, it
was held that plaintiff was concluded
by tho particulars ho first delivered,
and was also held to bo unable to cure
any defects therein by delivc. ^ng fresh
particulars: (Brown v. ira//«, 1 Taunt
353.) Further as to particulors of de-
mand generally, see Chit. Arch. 8 Ed.
1251 ; Tidd N. P. 301 ; Rag. Prac.
113; Butler v. Richardson, 8 0. S. C06 ;
Wilson V. M'ilson, 3 0. 8. 297 ; Church
V. Barnhart, T>ra. Rep. 223; Wash-
burn V. Foth'-,i;u'\ Dra. Rep. 489;
Shaver v. Cu. / •/, H. T. SWo.M.S.
R. & H. Big. ••Particulars of Demand,"
4 ; Shore et fix. v. Bradley et al, T. T. 4
& 6 Vic. J^r.S. R.& II. Dig. "Judgment of
NonPrc." 1 ; Barney v. Simpson, 60.
S. ."!(; ; lb.; Street v. Cameron, H. T. 2
Vic. M.S. R & II. Dig. •• Particulars of
Demand, 6, 7 ; Bigelow v. Spragge, II.
T. 6 Wm. IV. M.S.I b. •' Non-suit" 10 ;
Nevills V. Hervey, T. T. 3 & 4 Vic. M.
S. lb. •' Particulars of Demand," 8;
Drummond v. Bradby, Dra. Rep.
254 ; Ices v. Calvin, 1 tf. C. Chum. R.
8 ; and a number of cases there noted
by Macaulny C. J. C. P.
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92 THE COMMON LAW PROCEDURE ACT. , [B. xlil.
|CjHSfe(.git.<..<'^-w<*<^) XLIL (v) It shall be lawful for the Plaintiff, after the
9.x%/^3, piiiintiPf conunencement of any action by Writ of Summons, but before
mny obtain j ,/ ^ ' ^
capiaitin Jud^raent in such action, upon makinff and filing an affidavit
certain casos '^ . . . .
;<L. P. r. **^'*^'" •^"°*" conformably to the provisions of the twenty-third section of this
|^>*«-^l5X Pf. menciufc the .
lz.Sne<»£c -J suit by writ Act, («') or ou obtaining a Judge's order for that purpose, (x)
s2aYif;.ri^ Affldavit ro^ to sue out of the officc whence such Summons was issued a
Writ of Capias, and one or more concurrent Writs, (y) and to
renew such Writs in manner directed by this Act (a) — which
Writ of Capias in every such case shall be in the form con-
tained in Schedule (A) to this Act annexed, and marked No.
quirod.
(v) The first part of this section is
substantially a re-enactment of Prov.
Stilts. 16 Vic. c. 175 8. 3, and 2 Geo. IV.
0.1,8. 14. The whole section is applied
to County Courts. There is no such
provision in either of the Eng. C. L. P.
Acts. The object of it is to allow
plaintiff, if he see cause for so doing,
to arrest defendant on mesne process
during the progress of an action.
(tp) As to the requisites of the afiida-
vit see notes to s. xxiii. p. 41. The affi-
davit under this section must be, it is
apprehended, intitled in the Court and
cause: (See Brown v. Palmer, 3 U. C.
R. 110 ; Glass v. Colcleugh, E.T. 3 Vic.
M.S. R. & H. Dig. " Arrest," III. 9 )
No cause can be said to have com-
menced until after the issue of the
first process, be it summons or Capias.
Under this section it is taken for granted
that a summons has issuea, and conse-
quently that the action is pending. In
this,consi8ts the difiference which exists
between the section under considora-
tionand ss. xxii.,xxiii. Under the latter
no cause is in existence until after affi-
davit made and writ issueii thereon,
the affidavit being in such case neces-
8 iry before the action can be said to
be commenced.
(x) As to arrest under Judge's order
see note rtos.xxiii. p.49. Thoiiitention
of the Legislature appears to be to
keep up the distinction between actions
where the cause is a •» debt certain"
and actions where the cuase is " other
than a debt certain." In the foimer
no Judge'd order is necessary to war-
rant an arrest. In the latter no bailable
writ can be issued or arrest made with-
out such order. This distinction was
overlooked by the Legislature when
framing the old St. 2 Geo.IV.c. 1, s. 14,
allowing plaintiff, after commencing his
action by non-bailable process upon
affidavit, to issue an al. bailable Ca. Re.
Nothing was therein enacted concerning
cases in which a Judge's order was ne-
cessary. And the Court subsequently
held that in such cases no arrest could
be made under an al. Ca. Re. pursuant
to that statute : {Brown v. Yielding et
al, U. T. 2 Wm. IV. M.S. R. & H. Dig.
" Arrest" IIL 11.) It was afterwards
held that the enactment only applied
to cases where the cause of action was
a debt : (^Ross v. Urquhart, M. T. 7
Vic. M.S. R. & H. Dig. same title,
case 10.)
( »/) See s. xxvii. as to the issue of
concurrent writs.
(2) See ss. xxviii. and xxix. as to
the rene\val of writs.
(a) The form of Capias hero given
resembles that given to s. xxii.,
where the writ of capias is made
the commencement of the action. The
dissimilarities are just such as might
be expected and such as are necessary,
owing to the difference in the practice.
Tlie writ here given sets forth u state-
meut that the action has been already
commenced : " V. R. To the Sheriff,
&c. Wo command you that you take
C. D., &c., and him safely keep, until
he shall have given you bail in the
action, itc, which A. 13. has com-
8. xlii.]
CAPIAS AFTER COMMENCEMENT OF ACTION.
93
Copies.
6, (a) and may be directed (b) to the Sheriff of any county orFormofwrit.
union of counties in Upper Canada, and so many copies of such JP^^*^"^
Writ, with every memorandum or notice subscribed thereto,
and all endorsements thereon, as there may be persons intended
to be arrested thereon, shall be delivered with such Writ to the
Sheriff or other officer who may have the execution or return
thereof, and who shall immediately, upon or after the execution
thereof, cause one such copy to be delivered to every person o„(, copy to
upon whom such process shall be executed by him, and shall t^g^ch^pe^
indorse upon such Writ the true day of the execution thereof, tJle^^rit**""
within three days at farthest after such execution; and thCg'^J^j.^^
proceedings in any such action may be carried on to Judgment
withou' regard to the issuing of such Capias, or to any pro-*^*'**''
ceedings arising from or dependent thereon (c) — andon entering
Judgment, the Plaintiff shall be entitled to tax the costs of
such Writ or Writs of Capias and the proceedings thereon, in
like manner as if the suit had been commenced by Capias, {d)
together with the other costs incurred and taxable in the
tnejiced against him, and 'which action
is now ponding, &c." The clauses re-
quiring defendant to put in special bail
-within ten days, though transposed in
the two writs, are verbatim the same
in each. The im'orseraents of necessity
0, little vary.
(6) The clause of tl'° -'"•tion begin-
ning with the words «' may be directed,
&c.," and ending with the words,
"within three days at furthest after
such execution," is a verbatim copy of
a portion of s. xxii. The notes/, ff, h,
and {, to that section apply equally
to this.
(c) It is declared by this section that
the capias may be issued at any
time after the commencement of an
action by writ of summons, but before
judgment in such action. No matter
at what stage of the c:iuse it be issued
the progress of the suit will not be
thereby affected. The suit is to pro-
ceed iu the same manner step by step
as if no such capias had issued. In
short the capias to be issued undev
this section is not so much a step iu the
suit as something collateral to it. The
capias intended is in the nature of mesne
process. Being such, the reasons for
enacting that it must be issued before
judgment are obvious.
(5) In so far as relates to the taxa-
tion of costs, the costs of the " ca-
pias and the proceedings thereon,"
shall be allowed "in like manner as if
the suit had been originally commenced
by capias." This may raise a doubt
as to plaintiff's right to tax the costs
of the summons. If the capias is to be
taken for the purposes of taxation as fk
substitution for the summons, then the
costs of the summons should not be
allowed. But if the enactment as to
capias is to be taken cumulatively,
then plaintiff would be entitled to the
costs of both writs. The latter con-
struction would be the more just of the
two, nnd will probably be held to be
the true one, if ever made a question
fur judicial decision. The sentence if
read as follows would remove all doubts
— " the plaintiff shall be entitled to tax
the costs of such writ or writs of capias
and the proceedings thereon {from the
issue of such capias) in like manner as
■
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THE COMMON LAW PROCEDURE ACT.
[s. xliii.
m
Writ to'issue ^^"^0 : (e) Provided always, that notwithstanding anything
from the contained in the fourth section of this Act, such Writ shall be
samo Court ^ ^ _ ....
•Bthoorigi- issued in the Court out of which the ori^^inal Writ in the cause
Dal writ. °
was sued out. (/)
And as regards proceedings against absconding debtors who
dl^bbT^'"^ shall have real or personal property, credits, or cfifects in Upper
Canada; Be it enacted as follows : (^7)
f^SJi a,//l''r/(''i'P-'*- ^•) XLIII (/t) If any resident in Upper Canada, indebted (i)
, I ■■
if the suit had been commenced by
capias."
(e) " Together with the other costs
taxable and incurred in the cause,"
&c. This favors the idea that the costs
of the summons should be included and
taxed as costs in the cause.
(/) Sec. iv. provides for the alternate
issue of writs, one from each Court.
No delay can occur where the suit is
commenced by capias for it is express-
ly provided that the affidavit need not
be intitled of any Court, so that in
such case the writ may bo issued from
cither Court : (s. xxiii.) But under
this section the writ of capias must
be issued from a particular Court — the
one from which the original writ in
the cause was sued out, and to prevent
delay and difficult\, an exception is
made to the alternate system,in respect
to the capias in suits commenced by
summons.
(ff) Sees, xliii. to Iviil. inclusive of
this Act consolidiite and amend the
provisions of our laws concerning ab-
sconding debtors. The old provisions
scattered over the Statute books, crude
in arrangement and in several places
inconsistent with each ot! r, have
been repealed, (s. cccxviii.) and all the
really useful provisions re-enacted.
The whole subjeci. matter has been re-
arranged, and the several sections now
present the subject in logical order.
The law respecting "absconding debt-
ors " has ttt last been rendered clear
and complete in itself by the admira-
ble consolidation which this Act effects.
Departures from the old law and other
amendments will be noticed under the
sections in which they occur. The laws
as to absconding debtors have for a long
time becnpeculiar 10 Upper Canada,and
the provisions uro original, not having
been directly copied from the statute
book of any foreign state. In Upper
Canada the lead has been taken even
of England. The first Eng. Act
upon the subject was 14 & 15 Vic.
c. 22, passed 1st August 1851. It falls
far short of the completeness of ours.
The object of these laws is to secure
the property and effects of an abscond-
ing debtor, and indirectly to force him
to put in special bail. The law of arrest
is designed to attain the samo end by
different means. In cases of arrost the
body of the defendant and not his
estate is taken into the custody of the
law. The points of similitude between
the two modes of procedure, in matters
of practice, is very great. It should bo
mentioned that the enactments in the
Div. Court Act 13 & 14 Vic. c. 53, al-
lowing proceedings to be taken against
absconding debtors for amounts within
their jurisdiction are neither repealed
nor superseded by this Act. For a
very full and interesting review of all
our laws upon the subject of abscond-
ing debtors, and a comparison of re-
medies given in Division Courts with
those in the Super". )r Courts, see
Francis v. Jirown et al, 11 U.C.R. 658.
(A) This section in some respects
resembles the repealed enactments 2
Wm. IV. c. 6 s. 1, and 14 & 15 Vic. c.
10 s. 1.
((■) " If ani/ rexidmt," &c. The re-
pealed .Vet 1 Wm. IV. c. 5, s. 1, did not
thus describe defendant. It was simply
as follows, " If any person being in-
debted, &c., shall, &c." And there
ings
occasion
latitude
as resid
Lusher,
Nicholl,
arrests <
railari
p. 40.)
residci
Act.
an atta(
an abs(
that
Canad
brin£
Act,"hc
the Coi
Smith,
'« Absc
dischai
mcnt
tinctly
npplyii
defendi
a pers
land
settle
ferrcd
S. xliii.] PROCEEDINGS AGAINST ABSCONDING DEBTORS.
95
to any person, (^j) shall depart from Upper Canada with intent ^"'■">«>f^'"'*
to defraud his creditors, and shall at the time of his so depart- ^"•'"ling
' . ^ Debtors, Ac.
ing, be possessed (Zr) to his own use and benefit, of any real or
was much difference of oniDion as
to wliether the Legislature really
did not intend to restrict the Act to
defendants absconding who had been
formerly residents. The several opi-
nions of Robinson C.J., Sherwood J.,
and Macaulay J. upon this question
will be found in Fordy. Lusher, 3 0. P.
428. The Absent Defendants' Act, 14
& 15 Vic. c. 10 8. 1, was express upon
the point, so far as concerned proceed-
ings taken under that statute, i. e.,
♦' Proceedings may be commenced, &c.,
against any person who, having resided
in Upper Canada, is absent therefronj,"
&c. What is the scope of the term
'•resident," as here used, and under
what circumstances can a deAjndant be
said to be a resident ? Persons whose
usual and accustomed home is in a for-
eign country but who come to Canada
occasionally on business, cannot by any
latitude of construction be described
as residents of Canada. See Ford v.
Ltishtr, 3 0. S. 428, and Taylor v.
Nicholl, 1 U. C. R. 416. (As to when
arrests can or cannot be made under si-
milar circumstances seenotes to s.xxiii,
p. 40.) Further as to what constitutes
residence, see note dio s. Ixxiii. of this
Act. If a defendant seek to set aside
an attachment issued against him as
an absconding debtor, on the ground
that " he never lived or was in Upper
Canada for such time or purpose as to
bring him within the meaning of this
Act,"hemustshowtheae facts clearly to
the Court : (The Niagara H. ^- 1). Co.y.
Smith, M.T. 7 Vic. M.S. R. & H. Dig.
" Absconding Debtor," 22. ) The Court
discharged a rule to set aside an attach-
ment where these facts were not dis-
tinctly made out, and where the party
applying had not described himself as
defendant in the suit : (fb.) Where
a person usually residing in Scot-
land came to Upper Canada to
settle some aCFairs, and while here re-
ferred disputes concerning them to
arbitration, upon which an award was
made against him, but not payable for
two years. Before the expiration of
the two years he left the Province.
Held that he was neither a *' debtor"
nor an •'absconding debtor" within
the meaning of the 2 Wm. IV. c. 6 :
(Taylor v. Nicholl, 1 U. C. R. 416.)
As to "debt" and "indebted" see note
/to 8. xxvi. The word " indebted" as
used in this section would beem to ex-
clude the presumption that an attach-
ment can be granted for an unliquidat-
ed demand, unless the demand be
of such a nature that plaintiff can
make oath to the amount thereof
as in ordinary affidavits to hold to
bail. Such, for example, as de-
mands for work and labor — goods
sold and delivered, &c., where
no specific price has been agreed upon
and the amount of indebtedness de-
pends upon a quantum meruit or quan-
tum valebat: (See Clark y.AJifield, fcl.T.T
Wm. IV. M.S. R. & H. Dig. " Abscond-
ing Debtor," 17.)
(j) The old restriction as to the
party beinj; indebted to " an inhabit-
ant of this Province," (2 Wm. IV. c.
6 8. 1) in order to warrant proceedings
has been abandoned. Indeed, it was
repealed as e.arly as 5 Wm. IV. c. 5 s.
6 of that year and reign. Where de-
fendant being sued as an absconding
debtor under the old practice, moved
to set aside the attachment and subse-
quent proceedings several months after
the last proceeding was had, on the
ground that plaintiff was not an inha-
bitant of Upper Canada, but did not in
his affidavit negative indebtedness to
some inhabitant of Upper Canada, his
application was refused : (Fisher et al.
v. Beach, 4 0. S. 118.)
(k) Possessed. Qu. What is the
meaning of this word. — Is it to be con-
strued liberally, or restrained to its
strict import ? The exact meaning of
the word becomes important, for pos-
'i
I
t
^ ''
1,
•
1 „
;2 :- ■ 1
55 ;■ U
s -te
t ' \
06
THE COMMON LAW PROCEDURE ACT.
[s; xliv.
f'>,
personal property, credits, or effects in Upper Canada, he shall
be deemed an absconding debtor j (I) and his property, credits,
and effects aforesaid, may be seized and taken for the satisfying
|/- of his debts by a Writ of Attachment, (^w?) which shall also
contain a Summons to the absconding debtor, and shall be in
the form in the Schedule (A) to this Act annexed, marked No.
<^^ %'^ 7, (n) and such Writ shall be dated on the day on which it is
sued out, (o) and shall be in force for six months from its
Duration of date, (j») and may be renewed for the purpose of effecting
Renewal, service on the Defendant, in like manner as a Writ of Summons
issued under the authority of this Act;{q)
13)
U
C^^STKt f),u?. (App. Oo.C.)
XLIV. (r) Upon affidavit (s) made by any Plaintiff, his
in
M. .y :■
session is a condition precedent to the
right to attach. Must the property bo
in possession at the time of the depar-
ture ? Property real or personal may
devolve upon a debtor after be has
absconded.
[1) As to the ordinary proceedings
against defendants, \rhether British
subjects or foreigners, out of the juris-
diction of the Court: See bs. xxxv.,
sxxvi.
(m) If plaintiff desire to have the pro-
perty of the absconding debtor taken
into the custody of the law, so as to pre-
vent him or others from making away
withit, proceedings under this section by
attachment is the best if not the only re-
medy. It is preferable to proceedings
under s^. xxxv. and xxxvi., even when
proceedings can be safely taken under
those sections, because under them
there is no power to seize the property
until after judgment.
(n) The attachment under the old
law did not contain any form of sum-
mons to the absconding debtor : (See
form in Meighan et al, v. Finder, 2 0.
S. 292.) It merely directed the She-
riflF to *' seize and safely keep" all de-
fendant's " estate, real as well as per-
sonal." It was a proceeding incidental
to the suit, and did not interfere with
the summons or other ordinary steps
in the cause. The form given to this
section requires the absconding debtor
to put in special bail, and informs him
of the seizure of his property. The
writ of attachment is now the com-
mencement of the action. Consult
the form in Schedule, as to the in-
dorsements necessary.
(o) i. e. in conformity with the prac-
tice enacted as to writs of summons
and capias : (see s. xix.)
{p) Also in conformity with writs of
summons and capias : (see Schedule
A, Nos. 1 and 2.)
(q) i.e. Under ss. xxviii. and xxix.,
which see, togetherwith notes thereto.
(/•) Much resembles St. U. C. 2 Wm.
IV. c. 6 s. 1, — Applied to County
Courts.
(») The safest rule in framing these
affidavits will be to follow as closely as
possible those relating to common affi-
davits of debt : {Anon., per Robinson
C.J. 2 0. S. 292.) The same certainty
must be observed in affidavits for suing
out attachments as in affidavits to hold
to bail. The debt to be as certainly
sworn to in the one case as in the other :
{Mackenzie v. Russell, per Robinson C.
J. 3 0. S. 345.) To allow any unlimited
degree of uncertainty in them would
of course lead to abuse. An affidavit
for an attachment in which the debt
was sworn lo as being for money lent
and advanced to the defendant, without
saying by whom, was held lo be defec-
tive : {lb.) As to affidavits to hold to
bail, see notes to s. xxiii. p. 41 , in which
all the principal cases decided in £ng-
S. xliv.] ISSUE OP ATTACHMENT.
servant, or agent, (f) that any such person so departing is
indebted to such Plaintiff in a sum exceeding twenty-five
pounds, (u) and stating the causes of action, (y) and that the
Deponent hath good reason to believe and doth verily believe
such person hath departed from Upper Canada, and hath gone
to (stating some place to which the absconding Debtor is
believed to have fled, or that the Deponent is unable to obtain
any information as to what place he hath fled,) (if) with intent
to defraud the Plaintiff of his just dues, (x) or to avoid being
arrested or served with process, [i/) which affidavit shall be
accompanied by the affidavit of two other credible persons, (z)
that they are well acquainted with the Debtor mentioned in
the first-named affidavit, and have good reason to believe and
do believe («) that such Debtor hath departed from Upper
Canada with intent to defraud the said Plaintiff", or to avoid
being arrested or served with process, (i) it shall be lawful for
either or the said Courts or a Judge, or for the Judge of any
97
Proceellngs
upon afflila-
vit thnt the
Defendant
hath dupitrt-
ed, Ac, from
Upper Cana-
da, for the
purpose of
avoiding
payment or
service of
process.
Further
Affidavit in
conflrmatiuii
of the for-
mer.
land and in Canada have been brought
togethtr. if-a^ <*.eLd. A~*i ^ f .
(<) A8 to the neccBsity for showing
on the face of the affidavit a connexion
between the person who makes it and
the plaintiff, see s. xxiii.,,note sub-
div. 3, intitled «* Deponent/' p. 41 of
this work.
(m) The former minimum limit was
five pounds : (2 Wm. IV. c. 6 s. 1.)
The minimum is hero stated to be £flh,
obviously with reference to the Div.
Courts Act, which gives a remedy by
attachment in those Courts for any sum
not exceeding twenty-five pounds nor
less than twenty shillings :" (13 & 14
Vic. c. 53 s. 64.) At the time when
the former Acts were passed, fixing
the minimum at £5, the inferior Courts
had not the jurisdiction just mentioned.
(r) As to the proper statement of the
cause of action in affidavit, see s. xxiii.
note sub-div. 5, intitled "Cause of
action," p. 43 of this work.
[w) " Hath departed this Province,
or IS concealed within the same," were
the material words of the old Act : (2
Wm. IV. 0. 5 s. 1.)
(r) As to when there is a debt of
Q
which plaintiff can be defrauded under
this sec, see note i to s. xliii. of this
Act.
( y) These words are substantially
and in some parts exactly the same as
those used in repealed stat. 2 Wm. IV.
c. 8. 1.
(z) Qu. Are witnesses "credible" if
pecuniarily interested? No person
can now be excluded by reason of
crime or interest from giving evidence
either in person or by deposition on
the trial of a cause, &c. : (St. 16 Vic.
c. 19 s. 1.) Under this section the
affidavit of plaintiff himself is admis-
sible.
(a) The persons deposing as to the
absconding of a debtor should state the
grounds of their belief where they live
at a considerable distance from the
debtor's late residence : {Bunk of
Upper Canada v. Spafford, 2 0. S. 373.)
V/here the debtor resided at Brockville,
and the persons making the affidavit in
the town of York (now Toronto), an
attachment was refused, the grounds
of belief not having been stated : {lb.)
{b) For sufficiency of statement by
two credible witnesses under the old
98
THE COMMON LAW I'ROCEDVRE ACT.
[s. xliv.
^£j^
(i
^?>.
I'
/J^^a
tL'hm^^'to County Court, by rule or order, to direct that a Writ of Attach-
issua. ment shall issue '(c) (to be in the "Inferior Jurisdiction," if
the case be within the Jurisdiction of the County Court, and
to be marked and the costs to be allowed accordingly, ^^''(rf) and
to appoint in such nile or order the time for the Defendants
putting in Special Bail, which time shall bo regulated by the
distance from Upper Canada of the place to which the abscon-
ding Debtor is supposed to have fled, having due regard to the
means of and necessary time for postal or other communica-
tion ',\e) and such Writ of Attachment shall issue in duplicate
and shall be so marked by the officer issuing the same (the
jJ^I'j^''* •*"!*" costs of suing out the same being allowed only as if a single
Writ issued), and one Writ shall be delivered to the Sheriff, to
Wilt of At-
tnrUmcnt
law, see Totten v. Fletcher, T. T. 2 & 3
Vic. JH.S. R. & H. Dig. " Absconding
Debtor," 20.
(c) Under tlie Act of 2 Win. IV. c.
5, It was held (Macaulay J. dissenti-
cnte) that an attacliment could be regu-
larly issued against an absconding
debtor, though he had been previously
held to bail for the same cause of
action and the bail discharged by a re-
ference to arbitration : {Mosier v. Mc-
Can, a 0. S. 77.)
(d) This enactment, though allowing
Judges of County Courts to order at-
tachments, might have been held to
depriveCounty Courts of all jurisdiction
incases of absconding debtors, but for
the provisions of Co. C. P. A., 19 &20
Vic. cap. 90. By sec. 2 of that Act, how
ever, the sections of the C. L. P. Ac^
relating to absconding debtors, witii
many others are extended to County
Courts " in the same manner as if
repeated at length" in the County
C. P. Act. And all the powers under
sections so extended " exercisable by
the Courts of Queen's Bench or of
Common Pleas, or by any one of the
Judges thereof, shall and may in like
manner be exercised by the Judges of
County Courts respectively. "And these
as well as the other sections adopted,
are alsojsubject to " such modifications
as may be necessary to give full and
btnffieial effect to the several sections in
their extension and application to Coun-
ty Courts, and all actions and proceed-
ings therein within the jurisdiction of
the same Courts respect! vely: " (/6. s. 2. )
The effect of both enactments appears
to be this : In all cases to be com-
menced in the Superior Courts, whe-
ther upon a cause of action only cog-
nizable therein or upon a cause of ac-
tion within the jurisdiction of a
County Court, but entered in the
"Inferior^urisdiction" of the Supe-
rior Court, that any judge of the
Superior Courts or any County Court
judge (acting within his local jurisdic-
tion) may direct the issue of an Attach-
ment. And that where the debt is for
an amount within the jurisdiction of a
County Court and the creditor pro-
ceed in a particular County Court, the
judge of such Court ajting within his
own jurisdiction will have all such and
the same powers in respect to pro-
ceedings against absconding debtors
as are possessed by the judges of the
Superior Courts in cases instituted in
the Court Queen's Bench or Common
Pleas. Thus leaving the law of at-
tachment as respects jurisdiction on
very much the same footing as it stood
before the passing of the C. L. P. and
Co. C. P. Acts.
(e) The same words as used in f.
XXXV., allowing service of process on
defendants without the jurisdiction
s. xlv.]
whom t1
for the \
XLV
or a Juc
the Deft
personal
his knov
such a n
be obtait
for such
Bail, eitb
to appoii
service, (
so seem £
may proc
oftheCour
given in S(
blank to 1
with this e
(/) Thi
on defendn
fected. I
enacted foi
old law th(
the guidan
cess was i
thereof at
of such pc
&o.: (2W
(^) A I
County Co
(A) Qu.
be legally
tice of anj
tion or ott
residing ii
fendant ho
ed by that
affidavit f(
Judge to d
against a (
jorisdictio
Common
to affidavij
6ub-div8.
" CommisJ
s. xlv.]
PROOEEDINQS AFTBR SERVICE.
99
whom the same shall be directed, and the other shall be used
for the purpose of effecting service on the Defendant. (/) ^ /
\ ^
If
p
c
1
k- ,,
XLV. (.7) Upon its appearing on affidavit (/t) to the Court (^i^. cb. c.) <,v s^?
or a Judge, that a copy of the Writ was personally served on Further pro-cw: c -6' > s.s;<?
the Defendant, (i) or that reasonable efforts were made to effect after nervice
personal service thereof on him, and that such Writ came to MrTic*"''
his knowledge, {j) or that the Defendant hath absconded in
such a manner, that after diligent inquiry, no information can
be obtained as to the place he hath fled to, (k) it shall be lawful
for such Court or Judge, if t^"* Defendant has not put in Special
Bail, either to require some further attempt to effect service or
to appoint some act to be done which shall be deemed good
service, (I) and thereupon, or on the first application, if it shall
so seem fit to the Court or a Judge, to direct that the Plaintiff
may proceed in the action in such manner and subject to such
of the Courts. The form of attachment
given in Schedule A. No. 7 contains a
bl&nk to be filled up in accordance
with this enactment.
(/) This intends a personal service
on defendant, if the same can be ef-
fected. It is a new provision, now
enacted for the first time. Under the
old law the attachment was issued for
the guidance of the Sheriff only. Pro-
cess was s'orved " by leaving a copy
thereof at the last place of abode of
of such person within this Province,"
&o.: (2 Wm. IV. c. 1 a. G.)
(^) A new provision. — Applied to
County Courts.
(A) Qu. Can the affidavit in any case
be legally sworn bofore the Chief Jus-
tice of any Court of superior jurisdic-
tion or other officer named in s. xl. and
residing in the country to which de-
fendant has fled? The officers empower-
ed by that section may administer "any
affidavit for the purpose of enabling a
Judge to direct proceedings to be taken
against a defendant residing out of the
jurisdiction" of the superior courts of
Common Law in Upper Canada. As
to affidavits generally see s. xxiii. note
8ub-divs. 3,7,8,9,intitled " Deponent,"
<*CommisBioaer," "Signature of De-
ponent," and " Jurat," p. 41 of this
work.
(e) As to what constitutes " personal
service," see note /to s. xxxiv.
{j) As to '• reasonable efforts" and
"writ coming to defendant's know-
ledge," see note i to same section.
(k) To make application under this
s. to the Court or a Judge, it must be
shown on affidavit, either (1) that the
writ was personally served on defend-
ant, or (2) that reasonable efforts were
made to effect the same, and that the
writ came to defendant's knowledge ;
or (3) that defendant absconded in such
a manner that after diligent inquiry
no information can be obtained as to
the place to which he fled ; and (4)
that no special bail has been put in for
him. ^-ec «Ld(i /i. ^3l/.
{f) ** Or to appoint some act to be
dons which shall be deemed good ser-
vice." Words of similar import are
used in St. U. C. 3 Wm. IV. 0. 7, which
is the old law regulating the service of
process on corporations. In a cas«
under that Act against a corporation
resident in Lower Canada, application
was made " that service by affixing a
copy of procesi in the Crown office
should be deemed good service on de-
I'
I
if
I
i ,.i ,■
:!■■:
!vv I
100
THE COMMON LAW PROCEDURE ACT.
[a. xlv.
4' I . ■•
i
*'■ ■'
^4
('^^ 9. conditions as the Court or Judge may direct or impose ;'(m)
pwnSff Provided always, that the Plaintiff shall prove the amount of
muit prove the debt or damages claimed by him in such action, (n) either
before a Jury on an assessment, or by reference, to compute in
the manner provided by this Act, (o) according to the nature
of the case, and the making such proof shall be a condition
precedent to his obtaining Judgment, and no execution shall
Further affl- is^uc Until the Plaintiff, his Attorney, or Agent, shall make oath
S1iff'"o^ the sum justly due by the absconding Debtor to the Plaintli/,
ih»ub!aue. ^^^^^ giving him credit for all payments and claims whi<;». might
be set off or lawfully claimed by the Debtor at the time of
making such lost mentioned affidavit, (p) and the execution
fondants:" Hagerman J. <*Ab to
directing that the copy of process put
up in the Crown office should be deem-
ed a valid service, I think no such
order can be made in this case more
than in any other case. When a party
has been duly served with the first
process issued in a suit, it is compet-
ent, unless under particular circum-
stances, to direct that putting up copies
of subsequent proceedings shall be
deemed good service, but I apprehend
in no other instance" : (Sherwood et al.
T. Board of Workt, I U. C. R. 617, P.
C.) Where before this Act came into
force a writ of attachment had been
sued out and executed, nmi notice of
the attachment inserted in the Qrzette
according to the old practice, and upon
application by plaintiff, after this Act
came in force, to be allowed to pro-
ceed with the service of his declara-
tion under the old practice, the follow-
ing order was made : " That the plain-
tiff be allowed to proceed in this action
by filing the declaration and notice
to plead in the office of the Deputy
Clerk of the Crown at H., and that
such filing shall be deemed good ser-
vice," also "that filing notice of as-
sessment to the defendantjshall be good
service according to the practice in
force before the Common Law Proce-
dure Act, 1856." - (Ke Kendall et al
V. MeKrimmon, Chambers, Sept. 18th,
1866. Burns, J.)
(m) The repealed enactment 2 Wm.
IV. 0. 5 8. 6 made it necessary for plain-
tiff to wait three months after notice
of the attachment published in the &a-
zette before taking further proceedings.
The advertisement in the Oazette is no
longer required. Nor is it requisite
that plaintiff should await the expira-
tion of three months before proceeding
with his suit. Proceedings by attach-
ment are much assimilated to proceed-
ings against defendants "resident
abroad:" (ss. xxxv. xxxvi.)
(n) The St. 2 Wm. IV. c. 5, s. 7,
made it incumbent on plaintiff " to
prove his cause of action in the same
manner as if the general issue had
been pleaded," ' ".. Under the C. L.
P. Act it woulu seem that when the
defendant does not appear, the cause
of action, whether sounding iu debt or
damages, is taken jt^ro confesso against
him, rendering it only necessary to
prove the amount of such debt or dam-
ages ; (See Robertson v. Ross, 2 U. C.
C. P. 198 ; also see Prov. St. 16 Vic.
cap. 19 s. 2. ) The Court under the old
practice felt themselves bound in an
action against an absconding debtor
to see that sufficient was stated and
proved to warrant a recovery against
him : (Sifton v. Anderson et al. 6 U.C.
B. 805.)
(o) Rules to compute are abolished :
(s. cxli.) but other proceedings are
substituted therefor: (s. cxliii.)
(p) Substantially the same as re-
pealed enactment 5 Wm. IV. c. 6 s. 7.
-L H-1^
fl. xlvi.] OONOURRENT WRITS OF ATTACHMENT.
shall be endorsed'to levy the sum so sworn to, with the taxed
costs of suit or the amount of the Judgment, including the
costs, whichever shall be the smaller sum of the two. (3) '^ * f-
XLVI. (»•) The Plaintiff may at any time within six months q^ ^^ n
from the date of the original Writ of Attachment, (s) without ^' ^'^ a.«.<fh z^*)
further order from the Court or a Judge, issue from the oflBce may'obtaiii ^ '''**
whence the original Writ issued, one or more Concurrent Writ writ"to*Sth.
or Writs of Attachment, to bear teste on the same day as the *' ^'""^•
original Writ, (<) and to be marked by the Officer issuing the
same, with the word " Concurrent" in the margin, (u) which
Concurrent Writ or Writs of Attachment may be directed to
any Sheriff other than the Sheriff to whom the original Writ j^^ ^j^^"^
was issued, (v) and need not be sued out in duplicate or be f^^^^'
served on the Defendant, (w) but shall operate merely for the property,
attachment of his real or personal property, credits, or effeota
in aid of the original Writ, (z)
(q) Plaintiff is not called upon to
swear now as formerly " that the sum
allowed to him by the jury is justly
and truly due to him by the defend-
ant." He is to make oath of the sum
justly due to him by the defendant,
irrespective of any verdict, and after
having allowed to defendant all neces-
sary and legal credits. If the sum so
sworn to, with costs of suit, be less
than the verdict rendered by the jury,
together with costs, or vice versa, then
the execution must be indorsed for the
lesser of these two sums.
(r) A new provision, prepared in
conformity with' the enactment of s.
xxvii. — Applied to County Courts.
(«) As to computation of time, &c.,
see note to s. xxvii.
(t) The concurrent writs may issue
at any time within six months from the
date of the original, but must be tested
on the same day as that writ. No pro-
vision has been made for the renewal
of writs of attachment, as has been
done with respect to writs of sum-
mons: (S3, xxviii. xxix. xxx.)
(«) A further-mem. as to the place
of issue required by s. xx. has been
expressly made necessary in the case
of concurrent writs of summons issued
under s. xxvii. No such express de-
claration is here made as regards
concurrent writs of attachment ;
but s. XX. enacts that "the Clerk
or Deputy Clerk of the Crown a .d
Pleas, who shall issue anjf writ,
shall mark in the margin a memoran-
dum stating from what office and in
what county such writ was issued, and
shall subscribe his name to such me-
morandum." It will be prudent,
though not expressly required by this
section, for the clerk issuing a concur-
rent writ of attachment, to mark this
memorandum in the margin, more
especially as the section under con-
sideration enacts that such writ shall
"issue from the office whence the origi-
nal writ issued."
(v) The object of this provision is to
enable plaintiff to attach property of
the debtor discovered to be in a county
other than that to which the first writ
of attachment was sent,
(u>) Both of which requirements are
made r.3cessary with respect to the
original writ issuable under s. xliv.
(z) And will, it is presumed, be in
force only for the period during which
i^j t
4^
r i
:
err?
■4t
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XT
102
Court 1
THE COMMON LAW PROCEDURE ACT.
[8. xItH.
, ' ^*^«M <n uc ^'''*' ^ ^'^ X^'VII. (y) The Court or a Judge may Si any time before
5 J/ Stln Siien. ^"^ ^^^^ ^^^ Judgment, («) but before execution executed, (a)
insUSaS"* in their di::oretion, (i) and having regard to the time of the
B*"^ application (c) and other circutu.Htances, let in the Defendant
Affldfttit to- to put in Special Bail, and to defend the action, (tZ) upon an
application supported upon satisfactory a£5davit8, (e) accounting
for Defendant's delay and default, and disclosing a [good]
defence on the merits. (/)
I,;:
11
1 1'
1 jli
ilulre«L
the original writ shall be in force, tii.
six months from the date thereof: (see
B. xxvii.) As the concurrent writ
moat bear teste on the same day as the
original writ, it must, if this assump-
tion be correct, expire at the same
time as Uie original.
(y) In principle a re-enactment of
t. 2 Wm. IV. c. 6 s. 14.— Applied to
County Courts.
(«) Old practice, "atany time within
one year after the rendering of judg-
ment."
(a) Qu. When shall execution be
said to be <' executed?" Probably
after but not before the sale of defend-
ant's effects. A writ however may be
teohnically said to be executed where
a levy or seizure has been made.
(6) Defendant formerly was allowed
a re-hearing as a matter of right:
(Robertson et al. v. Burk, 60. S. 76.)
(«) Defendant formerly was bound
to apply "within one year after the
rendering of judgment : (St. 2 Wm. IV.
e. 6 8. 14.)
(d) Before he was allowed this pri-
vilege under the old practice, he was
required to give security for costs.
(e) As to affidavits generally, see
• s. xxiii., note sub-divs. 8, 7, 8, 0,
intitled "Deponent," " Commission-
ers," "Signature of Deponent," and
" Jurat," p. 41. Also see N. R 109,
et teq.
(/) The latter part of this section,
with the exception of the words in
brackets, corresponds verbatim et liter-
atim with the concluding povtion of s.
Ix. of this Act. The meaning of the
expression " disclosing a defence upon
the merits" has been lately much dis-
cussed in the English Court of Exche-
quer. Finally it was held per Parke
B. and Piatt B. (Pollock CD. heaitante
and Martin B. dutcnttente) that an or-
dinary "affidavit of merits" was a
sufficient compliance with the Act :
(See Warrington v. Lake. 83 L. & Eq.
420.) Held also, per I'ollock C. B.
and Piatt B., that an affidavit in reply
ought not to bo received. Forms of
affidavits of merits — see Chit. Form C
Edn. 285-237. The ntfidavit must ex-
press that defendant has a good defence
upon the merits : {Lane v. Isaac*, 8
Dowl. P. C. 652.) An affidavit that
the defendant had a good and sufficient
defence on the merits without words
applying it to the particular action,
held to be insufficient: {Tate v. Bod-
field, 8 Dowl. P. C. 218.) It is not
sufficient to say that deponent be-
lieves the defendant has "a defence
on the merits," he should say " a good
defence" : {Kenney v. Hutchinson, 4
Jur. Ex. 106.) Where judgment was
signed for want of a plea, an affidavit
of the defendant's attorney, which
stated that " considering he had a good
defence on the merits,'* was held in-
sufficient : {Pope V. Mann, 2 M. & W.
881 . ) An affidavit of merits by a clerk
of defendant's attorney, "that he is
apprised and believes that the defend-
ant has good grounds of defence upon
the merits," insufficient: (Jironileyv.
Geriah, 1 D. & L. 768.) An affidavit
by a clerk under similar circumstances,
in which he swore that he had the con-
duct and management of the defence,
and that defendant had been advised
by counsel that ho had a good defence
to the action on the merits, was held
8. Zlviii.] TIKSTORATIOM OF DEFENrANT^S PBOPEBTY. lO.*^
XLVIII. (i/) Upon tho Defendant's putting in and perfect- JJJ»«;y<>[^AH» r?«.! J^
iug Special liuil to the action in like wanner as if he had l>e«»^^,V*^ "t *^ ^ jV
arrested on a Writ of Capias, (A) for the amount sworn to ontj"K «» /r- ''
obtaining the attachment, (t) cither within the time limited by a, o^^
the Writ, or within such time as shall bo specified by the Court
or a Judge on lotting in the Defendant to defend as afore-
aaid, {j) all his property, credits, and effects which have been r-
attached in that suit, excepting any which may have been "'
disposed of as perishable, (Jc) and then the net procecv. - of thcor pmcotdo
goods so disposed of, shall be restored and paid to him, unless''*"'^'
there be some other lawful ground for the Sheriff to withhold (g,) ^ fi
or detain them ; (/) and after Special Bail shall be so put in
and perfected, the Defendant shall be let in to plead, and the
action shall proceed aa in ordinary cases begun by Writ ^'^'f^^^^. J^^-
Capias ;(m) Provided always, that after obtaining Judgment *"«» *»•
it shall not be ncuoasury for the Plaintiff to make or file any other |E
or further affidavit than that on which tho Writ of Attachment
was ordered, iu order to sue out a Writ of capias ad mtufaci-
tobe insuflScicnt : (A'rt.v/i v. Swinburne,
1 Dowl. N. S. lUO.) Tho affidavit if
sworn by tlie innniiging clerk of de-
fendant'a attornc}', must Btnte thut he
had the mnnnaoinont of tho particular
causo : (Doi' d. Finh v. Macdonntll, 8
Dowl. P. C. 501.) It must appeur to
bo made either by tho dofendnnt, his
attorney, or agent, or some person who
has been concerned in tho cause, in
such a way as to miiko him acquainted
with its merits : ( Kowfiuthttin v. Duprcr,
5 Dowl. P. 0. 657.) An affidavit by
defendant's attorney as to his belief,
from instructions received, insufiloient,
where the defendant himself might
make the affidavit: (^lirown v. Austin,
4 Dowl. P. C. IGl.)
(</) Compiled chiefly from tho old
law of Upper Canada. — Applied to
County Courts.
(/») As to which SCO s. xxiv. and note
u tlioroto, p. ri2 of t\\U work.
(i) i.e. pursuant to s. /liv. of this
Act.
(j) Under s. xlvii.
(k) i.e. Under s. I. ...
(I) Substantially a re-enactment of
2 Wm. IV. 0. 5 a. 4, in so far as con-
cerns the restoration of defendant's
property. That see., taken in conneo-
tion with s. 3 of 5 Wm. IV. o. 5, made
it necessary for defendant to enter into
certain bonds, npon the delivery of
which it was enacted "that all and
singular the property which may have
been attached shall be restored."
(m) It is onaoted that in actions
commenced by capias after special bail
has been put in and perfoctod, " plain'
tiff may proceed by filing a declaration
or otherwise to judgment, in liko man-
ner as if the action had beou com-
menced by writ of summons and the
defendant had appeared thereto" : (s.
xxiv.) The enactments of the C. L. P.
Act generally have reference to pro-
ceedings 'in a suit commenced by writ
of summons. An action so commenced
may there fore be taken as the action jt>ar
fxcellence — that form of action or mode
ofprocedure to which others are assimi-
lated as much as possible. The elfect of
the section under consideration may be
-m
4,
If '
104
THE COMMON LAW PROCEDURE ACT.
C-.
iX.
t^-iitCl S}ui>!'-*PP-^^->
•At.*
SrDetJnd- ^"^"^ / T") And provided also, that if it shall appear at any
uwt'^b'J' wiM *'™® before execution issued, upon motion to bo niudo in Court
SwnJun***^ for that purpose, and upon hearing the parties by affidavit, (0)
Debtor when that tho Defendant was not an abscondinc Debtor within the
the oriKiiiikl ^
writiHuad. truo meaning of this Aet, at the time of tho suing out of the
Writ of Attachment against him, such Defendant shall recover
his costs of defence, (p) and tho Plaintiff shnlj, by rule of
Court, bo disabled fVom taking out any Writ of Execution
for the amount of the verdict rendered or ascurtuined upon
reference to compute or otherwise recovered in such action,
unless the same shall exceed, and then for such sum only as
the same shall exceed the amount of tho taxed costs of tho
Defendant, and in case the sum so recovered shull be less than
the amount of the taxed costs of tho Defendant, then the
Defendant shall be entitled, after deducting the amount of the
sum recovered as aforesaid from the amount of such Defend^
ant^s taxed costs, to take out execution for the balance in like
manner as a Defendant may now by law have execution for
costs in ordinary cases, (q)
XLIX. (r) The Sheriff to whom any Writ of Attachment
CoNts, and
remedy of
Deibndknt
or them.
(^
^XO-
l//^. Sheriff to at- shall be directed, (s) shall forthwith take into his charge or
property and keeping all the property, credits, and effects, {t) including all
Defendiut. rights or sharcs in any Association or Corporation (which shall
f
stated to be that after defendant has
put in and perfected special bail to an
attachment issued under this Act, he
shall be considered as having appeared
to the writ as required by him, and all
subsequent proceedings shall be had
and taken in the same manner as if the
action had been commenced by writ of
summons.
(n) The provision here enacted has
long been the settled practice of Upper
Canada in bailable actions : (see St. U.
C. 2 Geo. IV. c. 1 8. 16, and Hamilton
▼. Mingay, 1 U. C. R. 22.) ' -^
(0) As to affidavits generally see N.
B. 109, et seq ; also s. xxiii. note sub
divs. 8, 7, 8, 9, intitled "Depon-
ent," "Commissioner," •' Signature of
Deponent," and "Jurat," at p. 41 of
this work.
(/>) A re-cnnctmcnt of tho latter
part of s. 4 of 2 Wm. IV. c. 5. See
also the first part of s. 1 of 49 Geo. III.
c. 4.
(q) The precise words used in the
latter part of s. 1 49 Geo. III. 0. 4.
See that Statute and notes thereto,
p. 88 et seq. of this work. Some of
the notes there written will apply
equally to this provision.
(r) Substantially a re-enactment of
the old law — Applied to County Courts.
(«) t. e, original writ under i xliv.,
or concurrent writ under s. xlvi.
(<) A re-enactment of st. U. C. 2
Wm. IV. c. 5 s. 3. It was held under
that Act that where real estate was
attached, tho Sheriff must enter and
keep possession, to give operation to
the attachmsut as against strangers :
DUTY OP HIIERirr.
105
I. zlix.]
bo attaohod in tho snmo manner as they might bo seized in
ezeoution under tho provision^ of an Act of tho Parliament of*^^'*''"'-^''
thin Province, passed in tho twelfth year of Her ^lajcsty's
reign, intituled, An Act to 2>rovi(fe far the seizure and safe of
aharea in the Capital Stock of Incorporated Companies,') («)
of tho absconding Debtor, as set forth in such Writ, (r) and
shall bo allowed all necessary disbursements for keeping Iho
same; (to) and ho shall immediately call to his assistance twoinToutoryto
substantial freeholders of his County, and with their aid ho property"
shall make a just and true inventory of all tho personal property, *^'^*^'
credits, and effects, cvldnnccs of title or debt, books of account,
vouchers and papers tliut ho shall attach, and shall return such
inventory, after it shall have been signed by himself and the
said freeholders, together with tho Writ of Attachment, (j)
{Doe d. Crete v. Clarke, M. T. 4 Vic.
MS. R. & H. Dig. " Abucoiuiiiig Debt-
or," 21.)
(u) 8t. 12 Vic. c. 23. It was snid
that bailiffs of Diviaion Courts had
power under 13 & 14 Vic. c. 53 s. 64
to attach bank stock or sbnres in tho
capital stock of incorporated compa-
nies: [Francis v. Brown et al, per
Draper, J., 11 U.C.R. p. 564. Besides
St. 12 Vic. c. 23, SCO St. 2 Wm. IV.
0.6.)
The writ directs tho Sheriff as
foltows: ••That you attach, seize,
and safely keep all (he real and personal
property, credits, and effects, together
with all evidences of title or debts, books
of account, vouchers and papers belong-
ing thereto, of C. D., &c." There is
no power in a Division Court to attach
real estate : (see 13 & 15 Vic. c. 53 s.
64.)
(w) These are tho precise words of
repealed enactment 2 AVm. IV. c. Ss. 3.
(x) An inventory was not expressly
declared to be necessary under the
former Absconding Debtors Acts ;
though subsequently made necessary
in the case of attachments issued from
Division Courts: (13 & 14 Vic. c. 63
8.64.) To the word " inventory" tho
Idea of an appraisement does not ne-
cessarily attach, llut referring to the
Div. Court Act tho inventory would,
under that Act, seem to be incomplete
without appraisement: (lb. s. 64.)
So as to perishable goods under
this Act, (see next section.) The
present enactment is an improve-
ment upon the old law. The inventory
when made is to be returned by the
Sheriff, together with the writ of at-
tachment. Such a return will be use-
ful information not only for all credit-
ors of the absconding debtor desirous
of prosecting their claims, but even
for the absconding debtor himself.
Should he apply pursuant to s. xlviii.
for a restoration of his property and
effects, he will be the better able to
ascertain with certainty what has in
fact been attached and seized. The
practice is, in ono respect at least,
much like that of a distress for rent.
An inventory in the case of a distress
is necessary, because ♦•it is proper
that the tenant should know what
goods the landlord intends to comprise
within the distress, and that he may
know y^t he will be obliged to replevy":
(Cradi^on Distress, 2 Edn. 151.) The
form of inventory may be mutatie mu-
tandis, that commonly used where a
distress is made : (See Bradby on Dis-
tress, 151 ; Archd. Landlord and Ten-
ant, 2 Edn. 128.)
it,: il'
'■ I'
]% ^.
li
IH-
106
THE COMMON LAW PUOCEDUUE ACT.
[8.1.
\'i ;*,;;;■■_
l»W-;'
i^App. Co. c.) L- ^y^ jn case any horses, cattle, sheep, pigs, or any perish-
iiow polish- able "oods or chattels, or such as from their nature (aa timber
able goods <= ' .
^hiijiboaeaitor stavcs) cannot be safely kept or conveniently taken care of,
shall be taken under any Writ of Attachment, («) it shall be
the duty of the SheriflF who has altached the same to have them
appraised and valued, on oath, by two competent persons ; (a)
raiuofaii and in case the Plaintiff suing out the Attachment shall desire
iTpiatatar* it, and shall deposit with th^ Sheriff (6) a Bond to the Defend-
lom^^r""/ ant, executed by two freeholders, wuose sufficiency shall be
va?ue| if he approved by the Sheriff (c) iu double the amount of the appraised
*■'"■ value of such articles, (il ) conditioned for the payment of such
(v) Substantitilly a re-ennctrr dnt of
2 vVm. IV. c. 5 s. 8.— Applied to
County Courts.
(2) The old enactment was to the
eiFect that when the Sheriff should seize
any perishable goods or chattels, &c., it
should be lawful for him, &c. No at-
tempt was made to define the goods.
The express language here used will
be a groat relief to the Sheriffin the dis-
charge of his duties under this sec-
tion ; still there is a wide discretion
vested in that officer. It is for him to
decide what are "perishable goods or
chattels," or what from their nature
(as timber or stave.«) cannoi be con-
venientlj' kept.
When framing this section, it would
appear that the Legislature had iu
view three kinds of property :
First. — Live chattels, such as horses,
&c., that might in a short time •♦eat
up themselves."
Second — Goods properly c.ried -^"v-
i.shable, such as butter, pork, &c.
Third — Property that could not be
safely kept or convcniunUy taken care
of, such as timber, staves, coidwood
and the like — perhaps alsf growing
crops.
The plain object of the Legislature
is to convert into money all pwperty
liable to be deteriorated in VilTue by
being kei.t, or of wliiili the keep and
care woiiLl cau^e considerable expense.
The Shtritf .should tlierefore in every
case consider whether it wo\ild bo
more to the advantii;je of the creditors
as well as the debtor to sell "forth-
with," or to wait for the execution and
act so as to make the most of the pro-
perty in his hands.
Formerly it wasnot compulsory upon
Sheriffs either to "sf/zeor sell" perish-
able goods until the giving of a certain
bond : (2 Wm, IV. c. 5 s. 8.) That
enactment having been repealed, and
no corresponding enactment having
been su))stituted, it is open to inference
that the Shcrilf must now seize perish-
able in the same manner as any other
goods belonging to the debtor.
('?) The valuation *^ ujwn oa(h^' is a
new feature introduced into this Act
for the first time. — Qu. Who is to ad-
minister t!ie oath?
(A) There was no provision as to
depo.<it of the bond in the old law.
(/•) The approval of sureties by the
Sheriff is also a new feature of this
Act. In a case under the old law,
where the sufficiency of sureties was a
question fur the ('ourt, it was held that
sureties re.-,ii!entin Lower Canada were
not "sufficient sureties": [Bradbury
v. Latoij, 3 0. S. 439.) In order to
form an ojiinion as to the sufficiency
of the sureties the Sheriff might rea-
Honnbly require that they should jus-
tify by iiCidavit whenever he himself
is not personally cognizant of their
ability.
((/) Tlio very words of St. U. C. 2
Will. IV. c. r» s. 8. upon a provision
wli"rc I he words used were that a bond
fcliuuM bo given " in double tl'> amount
%
H.]
PEKISUABLE GOODS.
107
appraised value to the Defendant, his executors or administra-
tors, together with all costs and damages that may have been
incurred by the seizure and sale thereof, in case Judgment
shall not be obtained by the PlaintifiF against the Defendant, («)
then the Sheriff shall proceed to sell all or any such enumerated
articles at public auction, to the highest bidder, giving not less
than six days' notice of such sale, (/) unless any of the articles
are of sucb a nature as not to allow of that delay, in which case
the Sheriff may sell such articles last mentioned forthwith j (</) pheriu to
and the Sheriff shall hold the proceeds of such sale for the same J^^^"^**"
purposes as he would hold any property seized under the
attachment.
LI. (/t) If the Plaintiff in any "Writ of Attachment, after
notice to himself or his Attorney, of the seizure of any such (^App. o>. c.)
articles as enumerated, (t) shall neglect or refuse to deposit any
■■; I
claimed" a difficulty arose upon the
construction of these words, where
there were several claimants : {Heather
etal.r. Wallace, 4 0. S. 131.) This
applied to a boud to bo given by de-
fend"nt. No such difficulty can arise
under this section ; for the bond hero
mentioned is to bo given by plaintiff.
The penal sum must bo •' double the
amount of the appraised value of such
articles."
(«) This is a condition similar to
that formerly required: (2 Wm. IV.
c. 5, 8. 8.)
(/) Not less than six days' notice of
such sale, &c., /. <?., six clear days at
least. The firfet and last days must
apparently bo excluded : (See H. v.
Justices of Shropsliire, 8 A. & E. 173;
Mitchell V. Foster, 9 Dowl. P. C. 627 ;
Li^ny. Pitcher, 1 Dowl. N. S. 767.)
If notice bo given on Monday, the sale
may take place on the Monday follow-
ing. The notice formerly was at least
" eiffht days' notice :" (2 Wm. IV. c. 5
8.8.^
(ff) When formerly the articles were
not of sucii !< natui e a.s to admit of at
least eiglit u.iys' notice of s.ale, the She-
riff was cmpiuvercd to sell the same
"at such time as in liia discretion
may eccm meet." Now it is "forth-
with." Ordinary prudence may
suggest the propriety of the Sheriff
in his discretion even under the
present practice giving some notice of
sale. If he cannot give six days' not-
ice, he should give as long a notice as
the circumstances of the case will ad-
mit. The word "forthwith," as used
in this Statute is not to receive a strict
construction like the word "immedi-
ate," so that whatever follows must be
done immediately aftei* that which has
been done before : (See M. v. Justices
of Worcester, per Coleridge J. 7 Dowl.
r. C. p. 790.) As to the word "im-
mediately" s«e R. V. Justices of Hun-
tingdonshire, 5 D. & R. 588, and R. v.
Aston, 1 L. M. & P. 491. Also see
Gilletv. Green, Parke B. 7 M. & W.,
348 ; Spain v. CadcU, Alderson B. 8
M. & W. 131 ; Thompson v. Gibson et
al, Alderson B. Jb. 280; J^age v.
I'earce, Alllerson B. II). ()78 ; Christie
V. Richardson, 10 M. & W. fi88.
(A) A new provision. — Applied to
Count^^^ourts.
{i) i. e. enumerated under the pre-
ceding section. The word " enumer-
ated " cannot be taken literally. The
design of the enactment is to embrace
all things coming within the meaning
of the previous section as "perishable
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108
THE COMMON LAW PROCEDURE ACT.
[S. H.
H:'i
iii«»
tobSrf^tol- ®^^^ Bond, or shall only offer a Bond of sureties itisufficient in
^„'fpi««n»fftho judgment of the Sheriff, (J) then after tlic lapse of four
sufflciont days next after such notice, (k) the Sheriff shall be relieved
necurity. •' , . .
from all liability to such Plaintiff in respect to the articles so
property," Since the SheriflF is
now bound to seize perishable,
in the same manner as any other
goods, he ought immediately after
the seizure to notify the plaintiff
or his attorney of such seizure. He
will then be in a position to avail him-
self of the provision in this section
contained.
(/) There seems to be every reason-
able latitude given to the Sheriif, who,
in the exercise of a sound discretion,
ought either to take or refuse the Bond
offered. The word "judgment," as
here used, cannot mean that the She-
riff may exercise an arfiiVraryjudgment.
The word in itself implies a fair exam-
ination by the Sheriff into the facts
laid before him and a proper decision
thereon. The "judgment" meant
must therefore be a reasonable judg-
ment. The sureties need not neces-
sarily be residents in his county.
(k) From this it would appear that
the plaintiff or his attorney, when noti-
fied by the Sheriff, should within four
days, tender to the Sheriff the requisite
bond. If no bon J be deposited with
the Sheriff withiu that time, or if the
bond tendered is in his judgment in-
sufficient, then " after the lapse of four
days next after such notice" the Sheriff
shall be relieved, &c. The chief point
for consideration is the computation of
time. It may be a question whether
in computing the four days, the day on
which the notice was given should be
included or excluded. It is apprehended
that the latter would be *e correct
mode. The Sheriff is to be relieved
after the lapse of four days next after
the notice. The day of notice linot to
be included, because thu Courts, as a
rule, nover take the fraction of a day
into account without a clear necessity
for so doing. The authorities are not
by any means conaistent, and until
lately have been fluctuating. The old
rule, now exploded, was that when
time was to be reckoned from an act
done and not from the lime thereof, the
day on which the act was done, was
taken to be inclusive : (Oom. Dig. 464 ;
Castle etal. v. Bur del ct al. 3 T. R.
623 ; Boiilton v. Rait an, 2 0. S. 362.)
If the time mentioned were one day
after on act done, ■'.vould it not bo ab-
surd to hold that such day expired
during the evening of the very day on
which the act was done ? Such a con-
struction would be a contradiction in
terms. When tho question was in this
light put before tho Courts, they
reversed the practice. — Castle et al. v.
Burdet et al., and other like cases
have been in consequence deliberately
overruled — {Robin.ion v. Waddington,
13 Q. B. 763.) The words of the sec-
tion under consideration resemble
those of 2 W. & M. slat, 1 cap. 5, s.
2. The latter enacts, that where any
goods shall be Jistrainod torrent, &c.,
and the tenant or owner of the goods
next after such diatrc?s taken, &c.,"
so distrained shall notwitbin "five days
replevy the same, the person distrain-
ing shall proceed to appraise and sell
such goods. Here the days are to be
reckoned from an act done, viz., " dis-
tress taken." Held that as the rule
now stands, the dtiys must be counted
exclusively of the day of taking : [Ro-
binson V. Waddinifton, ufii supra.)
The practice since this case should bo
taken to be settled. The decision was
given after the hearing of elabo-
rate arguments by counsel. All the
cases joro and con were cited tmd com-
mented upon during the course of ar-
gument. The autlinritios overruling
Castle et al v. Burdcl ct al, were ably
pressed upon the Court, and Dcn-
raan, C. J., " Very reluctantly we arc
obliged to yield to the Inter Huthori tics
which have introduced a revolution in
tho law on this noiiit." Tattrson J.
i. lii.]
seized, w
directed (
took the i
LII.
custody 01
" It is unn
nion on tli
last the mc
form." C(
curred. T
li. therefor
if expressc
"Then aft
next after
(0 "Aut
expression
Sheriff witl
It cominani
of no bond
given withi
(m) Sora
able by th
cattle, shee
to be at len
oftheShei
penso of fi^
is bound ui
into his chi
perty of
xlix.,) and
be allowet
keeping t
is to reimb
these " ne
property
from whos'
By s. liv.
costs of
taking chai
" be paid
plaintiff ir
The expre
used iti
tcrminatio
that the S
receive if n
advance th
property a
plaintiff ol
gleet or ri
g, lii.] DEBTORS OF ABSCONDING DEBTOR. 100
aeizcd, which the said Sheriff is thenceforth authorised and
directed (0 to restore to the person from whose possession he
took the same, (m)
LII. (n) If any person who is indebted to (o) or has the ^a^ ^<gi jg ujp.
custody or possession of nny property or effects of an abscond- ' f^/^ 9
i
ti
'< It is unnecessary to express any opi-
nion on the other points, for on the
last tlie modern authorities seem uni-
form." Coleridge J., and Erie J., con-
curred. The true construction of s.
li. therefore appears to be to read it as
if expressed in the following words :
"Then after the lapse of four days
next after [the daj of] such notice."
[I) " Authoriaed ami, directed." This
ex[ ression docs more than invest the
Sheriff with power to restore the goods.
It commands him to do so in the event
of no bond, or cno insufficient, being
given within the time limited.
[m) Some goods described as perish-
able by this Act, such as " horses,
cattle, sheep, pigs," &c., will require
to bo at least fed while in the custody
of the Sheriff. \Vh( is to pay the ex-
pense of feeding them ? The Sheriff
is bound under th<:> attachment to take
into his charge oi* keeping all the pro-
perty of the absconding debtor : (a.
xlix.,) and itisdecla' id that "ho shall
be allowed all necessary expenses for
keeping the same": (/6.) But who
is to reimburse him or advance to him
these *' necessary expenses," if the
property be ro stored to the person
from whose possession It was taken ?
By s. liv. it is cntictod " that the
costs of the Sheriff for seizing and
taking charge, of property," &c., shall
"be paid in the first instance by the
plaintiff in the writ of attachment."
The expression '^ first instance," is
used iu coutn' distinction to the de-
termination of the suiu It is probable
that the Sheriff would be entitled to
receive if not to dc; i/md from plaintiff in
advance the costs of kcolng perishable
property as well asuny otiier seized. If
plaintiff of his owu wrong — that is, ne-
glect or refusal to <rivo the necessary
security, compel the Sheriff to abandon
the property seized, it may be proper
that the loss of money expended upon
it while in custody should fall upon
him. In any event, the Sheriff as
against him would have a good right
to retain the money, if advanced, and
disbursed bona fide for the keep of the
property restored. If the Sheriff,
having a right to demand the costs
from plaintiff" " in the first instance,"
neglect to do so, ho is, it seems
still entitled to have them taxed and
sue plaintiff for them in any Court of
Upper Canada having jurisdiction for
the amount : (s. liv.)
(«) Substantially a re-enactment of
St. U. C. 2 VVm. IV. cap. & s. 9.—
Applied to County Courts.
(o) "Indebted," it is believed, should
not be hero taken to mean only a de-
mand for a liquidated sum of money ;
but appears to be aoed in a more gene-
ral sense. If in .•••.r.r'truing the word
as used in this sectio . tvo call to our aid
another pait of the statute (g. liii.) it
would seem that i'le words include
demands other than debts certain.
Sec. liii. and tbc one under consider-
ation arc / .■ . iri i.iateria. VLe for-
mer enacts tuat the i^her'ff may .sue
for and recover from any person '■'■in-
debted to such absconding debtor" ihe
*' debt, claim, property, or right of
aclion'" attachable under this Act. It
is perfectly legitimate to call in this
section to aid in the construction of the
one un ler consideration. When we do
so we find that the word indebtc^ may
extend to " claims, or rights of ac-
tion." Tho word is unquest.or.ably
used iu its largest sense: (sv'o cases
under tlie IJankruptcy Acts, 1 Euen. on
Bankrupt Law, 12'J et s'j. See also
note r to this section.)
£i^zL
;3
li
^
■ 'J
^
", " ;
^
t5
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110
THL COMMON LAW PROCEDURE ACT.
[3. lii.
w
dJbtors^A' ing Debtor, (p) shall, after notice in writing of the Writ of
a't^de- Attachment duly served upon him (q) by the Sheriff or by or
paying him qu behalf of the Plaintiff in such Writ, pay any debt or
after notice rr
ofthegeiz- demand, (f) or dehver any such property or effects to such
absconding Debtor, or to any person for the individual use and
ure, &c.
{p) In a case decided under the old
law, the Court granted a rule against
a party who had property of the debtor
in his possession, ordering him to de-
liver it up to the SheriflF: (Mullens v.
Armstrong, M. T. 2 Vic. M.S. R. & H.
Dig. "Absconding Debtor," 18.) Also
where a debtor who had absconded
from the Province, before his departure
gave his cognovit for £700 to a person
tu'whom he was not indebted, on which
judgment was entered, execution issu-
ed, and some money made by the
Sheriff, and some paid to plaintiff's
attorney, the Court ordered the attor-
ney to pay to the Sheriff the money he
bad received, and the Sheriff to divide
all the money between the attaching
creditors who had executions in his
hands : [Be -gin v. Pindar, 3 0. S.
574. See also Thompson v. Farr, G U.
C R. 387.)
{q) '■' Duly aerveiV does not neces^a-
rily mean personally served. TLcie
does not appear to have been any ne-
cessity for personal service under the
repealed Acts. Tbo point was never
raised for express adjuf'-Tiiion; but
in one case where the serv.ce was upon
an agent, no objection was made :
{Clarke v. Proudjoot et al. 9 U. C. R.
290.)
(r) ^^Beht or demand." Qu. Does
the word demand include a claim for
unliquidated damages ? It will not be
safe, in deciding the question, to follow
the iinglish decisions upon analogous
enactments too closely. If we were to
do so, we should at once and without
doubt arrive at the conclusion that
"debt or demand" meant only a claim
for money certain in amount. Mosf
of the English cases decided upon the
construction of these words have arisen
under Eng. st. "> & 4 Wm. IV. cap. 42
8. 17. It enacts " that in any action
depending in any of the Superior
Courts for any debt or demand in which
the sum sought to be recovered and
endorsed on the writ of summons, shall
not exceed £20," the Court or a Judge
may refer the case for trial to the Sheriff,
&c. The cases clearly restrict the words
** debt and demand " to a demand of a
liquidated nature : {Jacquet v. Boura,
7 Dowl. P.C. 331 ; Roffey v. Shoobrtdge,
9 Dowl. P. C. 967 ; Price v. Morgan, 2
M. & W. 53 ; Allen v. Pink, 4 M. &
W. 140 ; Watson v. Abbott, 2 Dowl. P.
C. 215 ; Smith v. Brown, 2 M. & W.
851 ; Lawrence v. Wilcock, 8 Dowl.
P. C. 681 ; Collis v. Groom, 1 Dowl.
N. S. 496 ; Leamon v. Bcal, 566 ; Hat-
ton V. Macready, 2 D. & L. 5 ; Walther
V. Mess, 7 Q. B. 189.) It is unsafe to
rely too much upon these cases, be-
cause the true meaning of "debt and
demand," wherever placed in a sen-
tence, must depend much upon the
context. What is the context in the
above statute ? That the debt or de-
mand shall be "a sum indorsed on
the writ or summons," by which is
meant a sum that may be properly
computed and then indorsed. The
meaning of the word " demand" is
thereby made specific. But are there
in the section here annotated any words
that can as a context be taken as nar-
rowing the meaning of the word '• de-
mand ?" The word itself, if alone, has
a very comprehensive meaning. If not
curtailed or restricted by the context, it
is presumed that it will retain its gen-
eral meaning. The object of this en-
actment is not to place simple issues
before a Sheriff for trial, but to make
available for the payment of the debts
of an absconding debtor his property
and his claims for property or money
as against others. If the word " de-
mand" does not include claims for un-
liquidated damages, it must at least
have a wider meaning as here used than
^
g. lii.] DEBTORS OP ABSCONDING DEBTOR. Ill
benefit of such absconding Debtor, (s) the person paying such
debt or demand, or delivering such property or effects, shall be
deemed to have done so fraudulently, and is hereby made liable
for the amount of such debt or demand, (<) or for such property
and eflFects or the value thereof, to the Plaintiff in such Writ of
Attachment, provided such Plaintiff recover Judgment against Proviso:
T -r^ , 1 -^ , -i e,- ,1 Defendant's
the absconding Debtor, and it the property and effects actually debtor sued
seized by the Sheriff are insufficient to satisfy Such Judgment; the seizure
and if any person indebted to any absconding Debtor, or having ^ay of pro°
custody of his property as aforesaid, shall be sued for such '^^ ^^^
debt, demand, or property after notice as aforesaid of the Writ
of Attachment, by the absconding Debtor, or by any person to
whom the absconding Debtor r. have assigned such debt or
property after the date of the W^rit oi .attachment, (w) he may,
on affidavit, apply to tlie Court or a Judge, to stay proceedings
in the action against himself, until it shall be known whether
the property and effects so seized by the Sheriff, shall be suffi-
cient to discharge the sum or sums recovered against the
absconding Debtor, {v) and it shall be lawful for the Court or a Court or
Judge to make such rule or order in the matter as they may i.mkoVruie,
think fit, and if necessary, to direct an issue to try any disputed
question of fact, {w)
&c.
in the English statute just meiitionod.
If the claim be one fjusdem (jencrig with
a debt, it is appr^ ended that the Act
will apply : see tValkcr v. Neetlham,
1 Dowl. N. S. 220. As to the distinc-
tion between liquidated and unliqui-
dated demands : see llallon v. Mac-
ready, 2 D. & L. 5.
(«) Where the debtor before ho ab-
sconded and before attachment issued,
made an assignment to A. C, of all his
(the debtor's) interest in a building con-
tract and Jill moneys due ot to grow due
thereon : Held that the old Act did not
apply 80 as to justify the party liable
to pay the money in withholding it
from A. B.: (Clarke y. Frouiifoot ci al.
9U. C. R. 290.)
(<) 7. e. the debt or demand of the
absconding debtor against hiiii, not the
demand of plaintiff against tho abscon-
ding debtor.
(xi) The date of the writ of attach-
ment must be the day on which it was
issued: (s. xliii.)
(d) Under the old law a defendant
thus circumstanced was allowed to
plead the general issue and give the
special matter in evidence. The pro-
vision of this Act is much to be pre-
ferred, because it prevents the neces-
sity of conducting two suits to issue.
One will be stayed till the other is de-
termined.
(«•) See Interplesulor Act, 7 Yie.
cap. oO, which is taken from Eng. St.
1 & 2 Wm. IV. cap. 58. The cases
decided upon the Eng. St. may be
found collected in Chit. Archd. 8 Edn.
1211. The decisions upon our own
Act are collected in R. & 11. Dig. title
*' Interpleadtir."
m i!
\ \'
112 THE COMMON LAW PROCEDURE ACT. [s. Hii.
C»Ki?ai<^4jfi. (-<i»p- cb. c.) LTII. ( a: ) If the nml and personal property, credits, and
- jV* ? 5"^*"5 °K effects of any absconding Debtor attached by any Writ of
* ' ' /' ' may bo sued Attachment as aforesaid, shall prove insufficient to satisfy the
ant's proper- executions obtained in the suit thereon against such absconding
notsuffldont Debtor, (i/^ the Sheriff having the execution thereof may by
FiaintifT. rule or order of the Court or a Judge to bo granted on the
application of the Plaintiff, in any such case, sue for and
* recover from any person indebted to such absconding Debtor,
the debt, claim, property, or right of action attachable under
this Act, (a) and owing to or recoverable by such absconding
Debtor, with costs of suit, (b) in which suit the Defendant
J14- 1
12 \Vm
Substantially a ro-cnactment of
riu. IV. cap. 5 s. 12. — Applied to
('o ill ty Courts.
(I'j Shall prove insufficient to satisfy
(V/ cution, &c. Before proceedings
can oe had under this section, it will
be necessary for Ihe creditors to have
entered judgment and issued execution.
Should there bo several executions, it
is for the SheriflF to calculate the gross
amount of the claims. If the pro-
perty and effects seized prove insuffi-
cient to satisfy the executions, this
enactment •will come to his aid. The
repealed section was clear upon this
point. The commencement of it was as
follows — " If o/Vcr judgment and exe-
cution by any plaintiff," &c.
(a) The debt, claim, property, or riyht
of action, &c. These words embrace
much more than the termed used in
the old Act, ' the amount of the </e6f
so otcing." The Sheriff is now empow-
ered to sue not only for debts i-.fing.
but for claims property and rl^ii :3 oi
action attachable under this Ac., and
"recoverable" by the abE'-idiDg
debtor. Clearly more is meant than
dimple debts or claims for ascertained
amounts. "Rights of action" nay
possibly extend to an agreement by
defendant to convey land to the debtor,
or to many other such demands of an
unliqwidated nature. The intention of
the Legislature is, in the absence of the
debtor, to attach his property (includ-
ing his available riglits) for the satis-
faction of his debts. See also note e in ,
fra. As between an ordinary judgment
creditor and persons indebted to the
judgment debtor a provision similar in
principle but more summary in prac-
tice has been enacted. (See s. cxciv. of
tl'.is Act.)
(A) The SheriiF, it is presumed, must
bring his suit within the proper juris-
diction, or be liable to the same conse-
quences as other suitors. If he bring
an action in the Queen's Bench for a
cause of action within the jurisdiction
of an inferior Court and properly cog-
nisable therein, he would be restricted
to Inferior Court costs : (St. 9 Vic.
cap. 13, s. 59, and 13 & 14 Vic, cap.
53, s. 78.) It may be doubtful whether
the extra costs of defendant iu . ih a
case might be set off against plainu. 's
verdict. Thn verdict of the Sheriff is
not his verdict. The amount recovered
is not his money, but the money be-
longing to the estate of the absconding
debtor. If a deduction were allowed
from the Sheriff's verdict, the loss
would be hat of the creditors and not
of the falicritf. The 0i,tate in the She-
riff's hand.^, which he is in duty bound
to protect and make available for pay-
ment of the executions, w^ould be by
liis miscomluct diminished. This the
law will never suffer. On the other
hand, it may be argued that if this be
the true coustnictiun, then defendant,
who was itnproperly sued into the
Superior Courts, will be the loser.
Such a construction, it may be said,
would jierhaps be just towards theea-
8. liii.] aiGHT OF SHERIVr TO SUE VOE EFFECTS OF DEBTOR. 118
shall be allowed to set up any defence wliioh would hayo availed
him against the absconding Debtor at the date of the Writ of
Attachment, (c) and a recovery in such suit by the Sheriff ^
shall operate as a discharge as against such absconding
Debtor; (d) and such Sheriff shall hold the moneys recovered Money reco-
by him as part of the assets of such absconding Debtor, and beid as part
shall apply them accordingly^; provided that the declaration in absconding
such actiod shall contain an introductory averment to the effect '^y $ ^^'
following : — " A. B., Sheriff of, f&c.) who sues under the pro-ayennent to
« visions of the law respecting absconding Debtors, in order to in stwriff's
" recover from C. D., Debtor to E. F., an absconding Debtor, '^«'"»''»"°°'
« the debt due (or other claim according to the facts) (c) by the
tate, but would be most unjust towards
the innocent defendant. To this ob-
jection it can only be replied, that the
defendant, though bound, |;orhaps, to
defend the suit instead of compromis-
ing it, need not necessarily be the los-
er. The Sheriff, it must be borne
in mind, is an ofBicer of the Courts. If
he act improperly, whether wilfully or
not, in the conduct of his office, so as
to prejudice the rights of suitors, he is
amenable to the Courts. Besides,
'vrhether his misconduct be designed or
inadvertent, if suitors are thereby in
fact made to suffer, there is in general
a remedy by action against him and bis
sureties : (St. U. C. 3 Wm. IV. cap. 8,
8. 2.) Whether such remedy would ex-
tend to the case supposed, has not yet
been decided.
(c) Where the action was upon a
promissory note made to the abscond-
ing debtor before he fled ftom tiie
Province, and defendant filed several
pHeas which at best only set up a partial
failure of consideration, the Court
seemed to think that the defence
was not a good one i ( Thompson v.
Farr, 6 U. C. R. 387,) The teste is
this — Would the defence now set up by
defendant as against the Sheriff, avail
defendaat if he were sued by the ab •
sconding debtor himself ? lu the case
above mentioned, it is clear that in the
absence of fraud, the defence set up
could not have been maintained as
against the absconding debtor, if he
u
«rere plaintiff: see Dalton v. Lake,
M. T. 6 Wm. IV. M, S. R. & H. Dig.
"Bills of Exchange, &o," vi. 18;
and Tricket/ v. Larm, 6 M. & W. 278 ;
Dixon V. Paul et al, 4 0. 8. 827.—
Mere partial failure of consideration
when the quantum to be deducted is
matter not of definite computation but
of unliquidated damages, is not a good
defence to an action on a promissory
note : [Kellogg v. Hyatt et al, 1 U. C.
B. 445 ; Coulter v. Lee, 5 U. C. C. P.
350.) If the suit were in a Division
Court where equitable considerations
are allowed to prevail, it might pro-
bably be otherwise.
(d) Defendant if afterwards sued
may set up the jus tertii by pleading
the right of the Sheriff to recover
against him under this section. The
plea, it seems, should be special, as
there is no provision made to the effect
that defendant may plead the general
issue and give this Act in evidence.
(e) This is similar to that con-
tained in the repealed enactment
s. 12 of 2 Wm. IV. cap. 5. But as one
might expect to find, the Legislature
have, in the form here given carried
out the extended meaning of the words
"debt" and "indebted." Tba old
form was prefaced with a recital that
the plaintiff sued " in order to recover
such sum as C. D. (the defendant) may
oice to the said £. F., an absconding
debtor." In the new form, "in order to
recover the debt due {or othtr claim oe-
\
I;
=55
114
THE COMMON LAW PBOOEDURE ACT.
[s. liii.
' C^) Provided
untS'^oredi'' ^^^^f *^** °** Sheriff shall be bound to sue any party as aforesaid
tof d* ^Sv'iQti^ *^6 attaching Creditor shall give his bond with two suffi-
jiiiu- cient sureties (g) payable to such Sheriff by his name of office, (Jt)
y'J§Xb .jj double the amount or value of the debt or property su3d for
conditioned to indemnify him from all costs, losses, and expenses
to be incurred in the prosecution of such action, or to which he
cording to thefaeit") From this com-
parison of tlie old -with the new provi-
sions the intention of the Legislature
to enlarge the meaning of the word
'<debt" is manifest.
(/) If the declaration give, by way
of introduction to the action, the ex-
planation which the Statute makes
necessary, the Court has no authority
to exact more. In doing so it would
be contravening the statute : {Thomp-
son V. Farr, per Robinson C J. 6 U.
C. R. 890.) For a form of a declara-
tion on a promissory note, disclosing,
in the opinion of the Court, as much
as was necessary to entitle plaintiff to
sue on the note, see lb. p. 887. The
old practice permitted each individual
creditor to sue for himself in his own
name. He was declared to be entitled
to recover the amount owing by de-
fendant to the absconding debtor, "or
so much thereof as may be necessary
to satisfy his claim." Where plaintiff
was entitled to £60 193 8d only, but
sued defendant for £140, being the
whole amount duo by defendant to tho
absconding debtor, the declaration
was under this enactment hold to be
clearly wrong : (/i.) Qu. Is the She-
riff, who now sues on behalf of all cre-
ditors, restricted in the same manner
as each plaintiff was formerly T The
Sheriff can only sue where there is a
deficiency in the ordinary estate or as-
sets of the absconding debtor, but is
not, it is presumed, bound to restrict
himself to the amount coming to the cre-
ditors if the defendant really owe the
absconding debtor a larger sum. There
is nothing in the enactment to the con-
trary, and the law disavows multiplic-
ity of suits, and the splitting up of
claims. The Legislature must be pre-
sumed to have had before them the old
Acts when framing the C. L. P. Act.
Indeed, they have repealed, re-enacted,
and amended as re-enacted all the old
provisions ; but they have dropped that
provision which formerly ostricted
glaintiff, suing debtors of an ubscond-
ig debtor to the actual claims of such
plaintiff, against the debtor himself.
The words of the old provision have
been omitted, and it must be inferred
that the omission was intentional and
made for some good reason — a reason
which it is only possible to conjecture.
Supposing this conclusion to be right,
it does not follow, the Sheriff beinp;
plaintiff, that any bad consequence can
arise. Should he sue for and recover
a greater sum than is required to sa-
tisfy executions in his hands, ho is
nevertheless obliged to hand over the
balance, after satisfying these execu-
tions, to the absconding debtor or his
agent: (see s. Iviii.)
(g) Qu. Who is to judge of tho
sufficiency of the sureties ? The bond
directed to be given to the Sheriff for
his protection under sec. 1. is left to
the approval of himself. Probably the
Legislature intended tho same with
respect to the bond here directed to bo
given. Both sections are in pari ma-
teria, and may, according to a well-
known rule, be brought to bear the
one upon the other to aid in the con-
struction of either. See note c to s. 1.
(A) The Sheriff of a county is made
a quasi corporation sole. His suc-
cessor in office may sue upon tho
bond to be given under this section.
If the action have commenced in the
name of the Sheriff in office for the
time being, and he afterwards die or
otherwise vacate the office, the action
8. liv.]
sheriff's costs.
115
I roc-
may become liable in consequence thereof; (i) Provided lastly, |*JJ{»^:^
that in the event of the death, resignation, or removal from office ^SSnue*'
of any Sheriff after such action brought, the action shall not *^ •"tion.
abate, but may be continued in the name of his successor to whom y '^
the benefit of the bond so given shall enure as if he had been
named therein, and a suggestion of the necessary facts as to the . ;
change of the Sheriff as Plaintiff shall be entered of reeord/(y ) ^ ^ "
LIV. (/<;) The costs of the Sheriff for seizing and taking(i4i>p. ob. r.) cl^i t\'it
charge of property, credits, and effects under a Writ of Attach- Cosfg in racb <- , i. a Vf /»'yy^
ment, including the sums paid to any persons for assisting in bow'pidd. "
taking an inventory, (?) and for appraising (»n) (which shall
be paid for at the rate oifive ahilUngi for each day actually re-
quired for and occupied in making such inventory or appraisd-
meat), (n) shall be paid in the first instance by the Plaintiff in
the Writ of Attachment, and may, after having been taxed, be
recovered by the Sheriff by action in any Court in Upper
Canada, having jurisdiction for the amount, (o) and such costs
kA
tlii'
m
does not in consequence abate. It may
be continued by his successor in office.
(»■) Evidently refers to suits
which may arise out of the action
to bo prosecuted pursuant to this
section. The indemnity must be
not only for costs, but for " losses and
expenses," — words of Tery general
signification. Qu. Would the latter
word include costs as between attor-
ney and client T
{j) The conclusion of this section is
the same in principle as the general
enactment, s. ceviii., " the death of a
plaintiff or defendant shall not cause
the action to abate," and s. ccz. ** In
the case of the death of a sole plaintiff
. . the legal representatiye of such
plaintiff . . may enter a suggestion
of the death, . . and the action
Bhall thereupon proceed."
(k) Substantially a re-enactment of
St. U. C. 2 Wm. IV. cap. 5, s. 10.—
Applied to County Courts.
[1) The inventory made necessary
by s. zlix.
(m) Appraisements made necessary
by B. 1.
(n) Five shillings per diem was the
remuneration allowed to appraisers by
2 Wm. IV. cap. 5 s. 11. Its sufficiency
as a compensation for services per-
formed at the present day is very
questionable.
(o) Actions for any amount, great
or small, may be brought in the Su-
perior Courts: (see 2 Inst. 648.)
Their jurisdiction cannot be taken away
unless by express enactment or neces-
sary implication: (King y. Rochdale
Company^ per Parke, B., 14 Q. B.
186.) If the Legislature confer upon
an inferior Court exclusive juris-
diction over a subject matter of com-
plaint, then the Superior Courts are
ousted by necessary implication. It
may be observed that theoretically our
County and Division Courts have not
ousted the Superior Courts of any ju-
risdiction ; but for all practical pur-
posec, the contrary is the case : (as
to County Courts see St. 8 Vic. cap.
13, s. 5, and 19 & 20 Vic. cap. 90, 8.
20; as to Division Courts see Stat.
13 & 14 Vic. cap. 63, s. 23, 16 Vic.
cap. 177, ss. 8 and 9, and 18 Vic. caj^.
i ■
:|
no
THE COMMON LAW PROCKDUBB ACT.
[8. IV.
§:2A 5 2.
i{*<^
"'*
shall be taxed to the party \?ho pays the same, as pprt of the
disbursements in the suit against the absoonding Debt', and
,g be so recovered from himy'(p) Provided always, that the
ri(iTi»o: She; 'if Laving made an inventory and appraisement on the first
to make new "Wr't of Attachment against any absconding Debtor, shall not
ruiuisUf. be require d to make any now inventory and appraise nent on a
subsequent Writ of Attaohmont coming into bis huuds, nor
shall ho bo allowed any charge for any inventory or appraise-
ment except upon the first Writ. (5)
LV. (/•) Any person who shall have commenced a suit in
any Court of llecord of TJppcr Canada, the process whoreiu
(An>. Cb. O.)
1-'), s. 1.) The Inferior Courts haTO
a limitod juriediotion both as to sub-
ject matter and amount, nnd if a suit
within I he cognizance of an Inferior
Court be brought in either of the Supe-
rior Courte, aa a ge'ncral rule only in-
ferior Court coBt.-. will be allowed,
though plaintiff may b'lvo disbursed
'^Jiperior Court coetH: (o"* to County
Oouvts :-^a R Vic. cap. 13 a. 59, and
19 & 20 Vie. cr.n. 90: as Xo Division
Courts see 13 & S4 V.c. cap. 53, s. 78,
16 Vic. cap. 177, 18 Vic. cap. 125.)
These enactments have practically the
effect of ousting '^e Superior Courts
of jurisdiction otc causes of action,
•cognizable in any of the inferior Courts.
And there ia no reason for holding that
an action by a Sheriff under this sec-
-tion should be an exception to the gen-
eral rule. BesideSjit may be mentioned
■that the Superior Courts in England
have more Uian once stayed proceed-
ings where actions were brought therein
for trifling sums — ex. gr. 20*. or 40«.
(see Ktnnard y. Jones, 4 T. R. 495
Wellington y. Artera, 5 T. R. 64
Oulton y. Ferry, 8 Bur. 1692 ; Melton,
y. Oarmmt, 2 N.R.84 ; seefurther Lowe
V.Lowe, 1 Bing.270 ; Bowling y. Powell,
2 Dowl. N.S. 1025 ; Stutton y. Bament,
6 D. & L. 682.) From the foregoing
considerations it seems clear that a
Sheriff in proceeding under this sec-
tion must, as in the case of ordinary
suitors, sue in an Inferior Court if the
amount sought to be recoyered be for
an amount within its jurisdiction.
(p) Qii. If the money disbursed has
been expended in the keeping of live
stock, which through the neglect or
default of plaintiff, i8 restored by the
Sheriff, would plaintiff be entitled to
charge the money so disbursed against
the absconding debtor 7 (see s. li.,
notem.)
(g) This provision is analogous to
that doctrine of law which holds that
where goods are already in the custody
of the law an execution at once attaches
upon them without an actual seizure:
(see Beekman v. Jarvia, 8 U. C. R.
280.) Goods when attached, enume-
rated, and apprained, continue to be
so as much under each subsequent at-
tachment as under the first. So one
attaching creditor, where there are
several, is not entitled to priority
over the others ; all share ratably :
(See 8. Ivii.) The property of an ab-
sconding debtor when taken into cus-
tody by the Sheriff under an attach-
ment, IS not to be looked upon so much
as taken into custody for the satisfac-
tion of the claim of the first attaching
creditor as for safe-keeping, and for the
benefit of all creditors who shall come
in within six months from the first at-
tachment: (sees. Ivii.)
(r) Almost verbatim a re-enactment
of 5 Wm. IV. cop. 5 s. 4. — Applied to
County Courts. This section is con-
fined in its operation to Courts of
'♦ Record," and as Division Courts are
not Courts of Record, (13 & 14 Vic,
cap. 53, B. 23,) no suitor in a Divisiion
i. It.]
WHAT SUITORS PRIVILCOKD.
U7
shall have been soryed or executed before the suing out a Writ^^^'^'p,^
of Attachment against the sarae Defendant as an absconding Jjj^jjy^^j'^-
Debtor, shall, notwithstanding the suing out of the Writ of ^'°»y^^«
Attachment, be entitled to proceed to Judgment and execution *'{!^^"^
in his suit in the usual manner ; and if ho shall obtain execution ju<>gm«nt,
before the Plaintiff in any such Writ of Attachment, he shall
have the full advantage of his priority of execution, the same
manner as if the property and effects of such absco > t ing Debtor
Btill remained in his own hands and possession, «iub^oot to
the prior satisfaction of all costs of suing out and ing the
Court can be entitled to the prUileges
by this enactment conferred upon suit-
ors who have bona fide sued out and
serred or executed a summons or
capias before attachment.
(») The general princlfle is that
goods which are in euatodia legi» are not
the subject of execution : (^Humph-
rey V. Barn», Cro. Elii. 691; Oarii'
hie et al. v. Jarvis, 5 0. 8., 272.)
The provision here enacted, which
is a re-enactment of 6 Wm. IV. cap.
5, s. 4, shows that the Legislature,
when they passed the latter Statute,
considered it illegal to take goods in
execution which had been previously
attached : [Gamble et al. v. Jarvit, Ro-
binson G.J. 5 0. S. p. 274.) A debtor
absconded on 19th May. Various ex-
ecutions were about that time issued
against his property, real and personal.
On 2d March, 1843, sometime before
he absconded, he executed a warrant
to confess judgment in favour of A.B. :
but A. B. neither entered up judgment
nor issued execution on this warrant
till 15th June 1843, at which time the
debtor had absconded, and writs of
attachment were in the Sheriff's hands.
It will be noticed that as no process
was issued by A. B. before the execu-
tion of the warrant, none could have
been " received before the suing out
of the attachments." On 25th March,
1848, after the giving of the warrant,
but before the debtor bad absconded,
and therefore before attachment issued
the debtor was served with process at
the suit of CD. Judgment was entered
and execution issued in this suit on 10th
July, 1843— sometime, it will be leec,
after the execution of A. B. Held
that C. D. having sued out process and
served it on the debtor before he ab-
sconded, was entitled to proceed before
the attaching creditors. If the only
question were one as between A. B.
and G. D., clearly as the former ob-
tained judgment and issued execution
first, he would have a claim to be first
satisfied. But as between A. B. and
the attaching creditors, he not having
sued out and served process upon the
debtor before he absconded, could not
be satisfied until after the attaching
creditors. This repugnancy to re.<>son
therefore appears to arise — G. D. has
a prior right over all attaching credit-
ors, and yet has not priority over A.
B., who is postponed till after the at-
taching credito.''S. Held that as be-
tween A. B. and G. D. no decision
ought to take place until such time as
the suits against the absconding debtors
were carried to judgment : (Bank B.
A. A. ▼. Jarvit, 1 U. G. R. 182.) From
this case it would appear that the most
speedy is not always the most avail-
able proceeding, and that in one case
at least the maxim " Qui prior eat in
tempore, potior eit injure" is reversed.
It is clear law that creditors having
commenced proceedings against an ab-
sconding debtor, but not having served
process upon him before he absconded,
are not privileged as against attach-
ing creditors. Wherever cognovits or
warrants of attorney are taken without
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118 THE COMMON LAW PROOKDURE ACT. [s. Ivi.
Attachment if the Court or a Judge shall so order f (<) Provided
always, that nothinc; herein contained shall prevent the Court
lentoreoUn- •'' , ... , xji
«>▼«• in which such action is brought or a Judge from sethng aside
'^^/ any such judgment and execution, or staying proceedings therein
on the application of the Plaintiff on any Writ of Attachment,
iif such Judgment shall appear to be fraudulent, or such action
has been brought in collusion with the absconding Debtor, or
fbr the fraudulent purpose of defeating the just claims of other
'*/ § a 0/. Creditors of such absconding Debtor.^X")
LVI. (y) If any Sheriff to whom a Writ of Attachment is
^' "' ' delivered for execution, shall find any property or effects, or the
find property procceds of any property or effects which have been sold as
of » Bidiifl; perishable belon^ng to the absconding Debtor named in such
NTtoton ^* Writ of Attachment, in the hands, custody, and keeping of any
Constable, or of any Bailiff or Clerk of a Division Court, by
virtue of any wanant of attachment issued under the provisions
of the Act of the Parliament of this Province, passed in the
Session held in the thirteenth and fourteenth years of Her
Majesty's Reign, intituled, An Act to consolidate and amend
the several Acts now in force regulating the practice of Division
Courts in Upper Canada, and to extend th^ Jurisdiction of the
same, (w) it shall be the duty of such Sheriff to demand and to
take from such Constable, Bailiff, or Clerk, all such property
or effects, or the proceeds of any part thereof as aforesaid, and
it shall be the duty of such Constable, Bailiff, or Clerk, on
demand by such Sheriff and notice of the Writ of Attachment,
forthwith to deliver all such property, effects, and proceeds as
aforesaid to the Sheriff, upon penalty of forfeiting double the
Court.
the issue of process, this law will
apply.
(t) This is an equitable proTisioo,
which has existed ever since the pass-
ing of the first Absconding Debtor's
Act: (2 Wm. rV. cap. 6.) A discre-
tion is vested in the Judge, and is to be
exercised by him in reference to the
oircamstance of each particular case
that may be before him.
(u) In a case where the debtor be-
fore he absconded gave a confession to
a person to whom he was not indebted.
and that person entered up judgment
and issued execution, the Court ordered
the Sheriff to retain the proceeds and
divide them amongst all tbe attaching
creditors who had executions in his
hands : (Berlin r. Pindar, 8 O.S. 674.)
(v) An entirely new provision. — Ap-
plied to County Courts. The object of
this enactment is to supply an omission
in the former laws : (see Franeit v.
Brown et al., 11 U. G. B. 658.)
(«;) 18 & 14 Vic. cap. 68 (ss. 64-71
inclusive, and see s. 102.)
- ■.-^V Wb Beil Mi ^>'"WgV>
' r
'' . >.--.
,,lvi.] BIQHTS OF DIVISION OOURT SDITORB. 119
value or the amount thereof, to be recovered by such Sheriff,
with costs of suit (which Sheriff shall, after deducting his own
costs, hold and account for such penalty as part of the property
and effects of the absconding Debtor) ; (05) Provided always,
that the Creditor who has sued out such Warrant of Attachment g|^'«>=
may proceed to judgment against the absconding Debtor in the niTbion
Division Court, and on obtaining Judgment, and serving aproceJuo
memorandum of the amount thereof, and of his costs to be ^.
certified under the hand of the Clerk of the Division Court,
he shall be entitled to satisfaction in like manner as and in
ratable proportion with the other Creditors of the absconding
Pebtor, who shall obtain judgment as hereinafter mentioned, (y)
(x) Thia section bo far is confinna-
tory of the law as laid down by all of
the Judges of the Queen's Bench in
Francis y. Brown et ah, ubitupra; but
the most important part of this section
is the proviso. Qu. Can the Sheriff step
in and take property under this Act
out of the custody of any constable,
biuliff or clerk, of a Division Court
when the attaching creditor in the Di-
vision Court has obtained judgment
and issued execution ? It is enacted
that when the Sheriff shall find any
property or the proceeds of any pro-
perty or effects which have been sold
as perishable in the hands of an officer
of the inferior Court under a warrant
ofaUaehmmt,&.o. But after judgment
and execution the property and effects
would be considered in the hands of
tiie officer by virtue of the warrant
of execution. Clearly after tale tm-
der execution, the Sheriff has no
right to demand the proceeds, though
not paid over to the execution creditor.
He is only entitled to the proceeds of
goods sold as perishable, which must
be taken to mean goods sold from ne-
cessity shorUy after seizure under
warrant of attachment, and before
execution. Besides the latter part of
this section seems to contemplate a
demand by the Sheriff be/ore judg-
ment, for it provides that the cre-
ditor who has sued out such writ
of attachment, may, notwithstanding
the demand by the Sheriff, proceed to
judgment against the absconding
debtor, &c. The marked difference
between proceedings against abscond-
ing debtors in a Court of Record and
in a Division Court is, that in the
former the property is attached with
the primary object of compelling the
debtor to submit his person to tiie jur-
isdiction of the Court In the latter
Court the property is attached in order
to subject it to execution as fast as
judgment can be obtained: (DranHa
V. Brown et al. per Draper J. 11 U. C.
B. p. 666.^ From these considerations
it is conceived that after judgment and
execution in aDivision Court at the suit
of an attaching creditor against an ab-
sconding debtor, the Sheriff has no
power to make the demand authorised
by this section.
{y) This is both a just and a neces-
sary provision. It places attaching
creditors in Division Courts upon an
equal footing with the creditors in the
Superior Courts, provided the proceed-
ings of both sets of creditors are direct-
ed against the same defendant The
Sheriif is intended to be the caretaker
for the Creditors of both Superior and
Inferior Courts. And he is in datjr
bound to distribute the common fiund
amongst all the creditors in ratable
proportion to their respective claims :
(see s. Ivii.) -.^
y .J
120
THE COMMON LAW PROOEDrRE ACT.
[s.lvii.
'h'-.^&M^
Debtor.
(f/
§^f
'^i^^^y-vtcA iU. <^*P**'^> LVn. («) When several persons shall sue out Writs of
U-ji. (uv "x/y ft«!eetog« Attachment against any absconding Debtor, the proceeds of the
^^'fi^f!/ peMOM take property and eflFects attached and in the Sheriff's hands, shall
agtdnst the be ratably distributed among such of the Plaintiffs in such Writs
■oonding as shall obtain Judgments and issue execution; in proporiiion to
the sums actually due upon such Judgments, (a) and the Court
or a Judge may, in their discretion, delay the distribution, in
order to give reasonable time for the obtaining of Judgment
against such absconding Debtor ; (&) and every Creditor who
shall produced a certified memorandum from the Clerk of any
Division Court, of his Judgment as aforesaid, shall be considered
a Plaintiff in a Writ of Attachment who has obtained Judgment
and issued execution, and shall be entitled to share according.
ingly}^(c) Provided always, that when the property and effects
^re1?ttie ^^ *^® absconding Debtor shall be insufficient to satisfy the sums
pr^Mrty wui due to such Plaintiff, none shall be allowed to share, unless
their Writs of Attachment were issued and placed in the hands
of the Sheriff for execution within six months from the date of
the first Writ of Attachment) (d) or in ease of a Warrant of
Attachment, unless the same was placed in the hands of the
. Constable or Bailiff before or within six months after the date
^ ^ ^ of the first Writ of Attachment. *"
FroTiio:
(2) Substantially a re-enactment of
St. U. C. 5 Wm. IV. cap. 5 s. 6.— Ap-
plied to Cotinty Courts.
(a) Under the first Absconding
Debtors Act (2 Wm. IV. cap. 6) it was
considered that a first attaching cre-
ditor was entitled to priority OTer sub-
sequent attaching creditors, and en-
titled to be paid his demand before
they could have any claim whaterer :
(see Gamble et al. y. Jarvit, 6 0. S.
272. ) It was thought that much hard-
ship might in consequence arise under
that Act in certain cases where all the
creditors were held back until such time
aa the first attaching creditor should
obtain satisfaction : {lb. per Robinson
C. J.p. 277.) The Legislature to rem-
edy this state of things passed the St.
V. C. 6 Wm. rV. cap. 5 s. 6, the prin-
ciple of which is retained in this Act.
But even before the St. 5 Wm. IV. cap.
5, in a case whore all the attaching
creditors had agreed among themselves
to share ratably the proceeds of de-
fendant's property, the Court carried
out the agreement : (Bergin y. Pindar,
8 0. S. 674.)
(b) The inference from this provi-
sion is that an attaching creditor, who,
without good cause delays for an unrea-
sonable time to proceed to judgment,
will lose all rifr^ t to share in the pro-
ceeds of tht '')tor's estate: (see
Gamble et al. arvis, per Robinson,
C. J., 6 0. S., p. 277.)
(c) i. e. pursuant to preceding s. Ivi.
(a) Within nx months from the date
of the first attachment, &c. The first
day would appear to be exclusive and
the last inclusive, unless N. R. 166
should be held to apply to this enact-
ment. And here a very important
difference between our N. R. 166 and
B. Iviii.]
RESTORATION Of DEFENDANTS EFFECTS.
121
LVIII. (c) If after the period of one month next following (^w*- ^' <")
the return of any execution against the property and effects of ^JJ"*],^
any absconding Debtor, (/) or after a period of one month from jjjjj^^'
a distribution under the order of the Court or a Judge, (jg) ""^^'"?
^bioh ever shall last happen, and after satisfying the several m deiiTend
Plaintiffs entitled, (A) there shall be no other Writ of Attach-
ment or execution against the same property and effects in the
hands of the Sheriff, then all the property and effects of the
absconding Debtor, or unappropriated moneys the proceeds of
any part of such property and effects, remaining in the hands of
the Sheriff, together with all books of account, evidences of title
or of debt, vouchers and papers whatsoever belonging thereto, ■ ^
ftall be delivered to the absconding Debtor or to the person
u.e
Eng. B- 174 from which it is taken
may be noticed. Oars is to the effect
that " In all cases in which any par-
ticular number of days, &o., is pre-
scribed by the rales of practice of the
Courts ; " bnt the Eng. B. reads, « is
prescribed by the rules or practice of
the Courts, £c." The variance between
the two rules, unless our rule be held
to be a misprint is such as must cause
a wide distinction in their application
—ours probably applying only to
the construction of the new rulet of
practice— the English applying both
to the rules and practice Which latter
is made up of Statutes as well as rules:
(see Rowberry v. Morgan, 9 Ex. 780.)
It may be mentioned that under our
rule the first and last days of peri-
ods time are made inclusive. The
English rule makes the first exclu-
siTe and the last inclusive. Un-
der the old Statute of Hue and
Cry a suit against the hundred
was required to be brought within a
year. Held that for a robbexy com-
mitted on 9th October, a suit com-
menced on 9th October following was
too late. {Hob. 189.) As between
attaching creditors against a defend-
ant in a Divi^on Court, when there are
no attachments against against the
same defendant in the Superior Courts,
one month from the first attachment is
the limit within which attachments
must be issued to be available for pro-
perty in the custody of the Division
Court officers attached under such first
writ: (see 13 & 14yio.oap. 68 s. 65.)
(e) Substantially a re-enactment of
St. tJ. C. 2 Wm. IV. cap. 6 s. 17.— Ap-
plied to County Courts.
(/) This provision seems to con-
template the case of a Sheriff having
had only one execution in his hands,
which he returned. **If after the
period of one month next following the
reium," &c. " Month" means a ca-
lendar month: (Interpretation Act,
12 Vic. cap. 10 s. 4 sub s. 11,) « After
the period of one month," that is, the
month must be fully expired. " One
mcmth next following the return," that
is, next following the day of the return :
(see note k to s. li.) Therefore the
month here intended is a calendar
month. It will not begin to run until
the day next after the return of the
writ. It must then fully expire — the
last day being inclusive.
( g) This provision contemplates the
ease of a Sheriff who has had several
executions in his hands, to satisfy
which adistribntion has beenmadepur-
suant to s. Ivii. " After the period of
one month from a diatribution." As to
** period" and " month" see preceding
note. One month ** foom a distribu-
tion" means one month firom the day
on which the distribution took place :
(see note k to s. li.)
(A) t. e. the amount of the demand^
' 'I
4
IM
THE COMMON LAW PROOBDURB ACT.
[>. lix.
M
or persons in whose custody the same were found, or to any
lawfully appointed Agent (t) of the absconding Debtor, and
thereupon the responsibility of the SheriflF in respect thereto
shall determine. (J )
And with respect to the appearance of the Defendant and
the proceedings of the PlaintiflF in default of appearance : Be it
I enacted as follows : (k)
u'^lH'$**^ «nTo. L. P. LIX. (I) From the time when this Act shall commence and
^ -s^-y . . ^ ■
must be actaally paid over to plaintiffs.
(i) ** Lawfully appointed agent"
does not necessarily mean an agent
appointed by writing. Agents, as a
general mle, may be appointed by
parol. The exceptions to the rule may
be found in Paley on Agency, by Lloyd
8 £dn. 164.
(y) This completes the consolida-
tion of the law as regards absconding
debtors. Compared with the old en-
actments, in addition to amendments
ahready noticed, the following may be
mentioned. Advertising in the Canada
Oazette,%xii required by 2 Wm.IV.oap.
6 B. 2, is no longer necessary. Plaintiff
is no longer bound before issuing ex-
ecution to give the bond required by
8. 18 of the same Statute. It would
also appear flrom the omission of 6
Wm. IV. cap. 6 s. 6, and for other
reasons, that no one creditor is any
longer empowered upon the trial of a
cause against an absconding debtor to
contest plaintiff's claim in the same
manner as the debtor himself might do
if present at the trial.
{k) The following enactments are
founded upon 1st Rep. of C.L. Comrs.,
(ss. 15-17 inclusiTe.) The immediate
object of the writ is " to cause the de-
fendant to appear," which is done by
the entry of a memorandum of appear-
ance witid the proper officer. This mem-
or Andum was until lately entered either
by defen^nt himself when he chose to
s.ppear, or by plaintiff for him when
'ae neglected to do so. Some persons
are of opinion that an appearance is an
muneamng form and "altogether need-
less ;" but the C. L. Comrs. thought
differently. They described it as « a
conTcnient mode of intimating to plain,
tiff defendant's intention of resisting
the action." When, however, the
time fixed by the practice of the Court
for appearance is allowed by defend-
ant to elapse without appearance, it
may reasonably be assumed that de-
fendant, as he has not " intimated his
intention," has no intention of resist-
ing the plaintiff's proceedings. In the
face of such a presumption an appear-
ance by plaintiff for defendant is most
undoubtedly an "unmeaning form."
Therefore the Legislature by <£e enact-
ments following have, upon the recom-
mendation of the C.L.Comrs., abolished
the latter mode of appearance, techni-
cally known as " appearances per Sta-
tute." But as the presumption arising
from the fact that no appearance has
been entered by defendant, and that
he has no intention of defending,
may not always be consistent with
facts, it is provided by this Act that
defendant shall, upon certain condi-
tions, <* be at liberty to appear at any
time before judgment."
{I) Taken from Eng. St. 15 & 16
Vic. cap. 76 s. 26. — ^Applied to County
Courts. The phraseology of N.R. 182,
which provides for the service of de-
clarations and subsequent pleadings
«'a« well at where the plaintiff hat entered
an appearance for the defendant, as
where the defendant has appeared in
person," is not quite correct. Appear-
ances by plaintiffs for defendants are
by this section rendered unnecessary,
if not abolished : ( Wallace v. Frater,
Chambers, Sept. 16th, 1856, Rich-
ards J.)
^ l\
s.lx.]
PROCEEDINGS UPON NON-APPEARANCE.
128
take effect, no appearance need be entered by the Plaintiff for^|j^*'^^
the Defendant, (m) •»[•'•?• i»'
IjX. (») In case of non-appearance by the Defendant
where the Writ of Summons is indorsed in the special form (jpp. cb.c.) '' ca-^- •
hereinbefore provided, (o) it shall be lawful for the Plaintiff, euk.ci. p.
nn filiner an affidavit of personal service of the Writ of Sum-^' ^''^'■•^*
do7i j2«? ^
m.
on
fm) Held not to apply to notions in
^uch the writ had been issued before
the Act came into force: {Ooodiffey.
Neavet, 8 Ex. 184 ; Eadon v. Boiberit,
9 Ex. 227.) The English section re-
peals parts of two English Acts, neither
of which was ever ir. force in Upper
Canada (12 Geo.I.C!> p. 1 and 2 Wm. IV.
cap. 89) " except so far as may be ne-
cessary to support proceedings here-
tofore taken." The sections of Prov. St.
12 Vic. cap. 68, which correspond
with the above mentioned Statutes,
have also been repealed by this Act,
with a saving as regards proceed-
iogf! previously taken, in the same
words as above: (see s. cccxviii.)
Although it is no longer necessary for
plaintiff to enter an appearance for
defendant, still plaintiff in default of
appearance by defendant may, upon
proof of service of writ, &c., take all
such proceedings as are mentioned in
the writs of summons or capias or en-
dorsements thereon : (see s. Ixv.)
(n) Taken from Eng. St. 15 & 16
Vic. cap. 76 s. 27. — ^Applied to County
Courts. — Founded upon 1st Rep. of C.
L. Com. (s. 15.) This section intro-
duces an entirely new proceeding and
the words of the enactment have no
reference whatever to established prac-
tice : (Rotoberry v. Morgan, per Parke
B. 9 Ex. 736.) Qu. Whether the
words of the enactment being affirma-
tive take away the general powers of
the Court over their judgments or are
merely cumulative in their effect ?.
(see Hall v. Seoison, 9 Ex. 238, 24 L.
k Eq. 473.)
(o) t. e. by 8. xli., which, be it ob-
served, merely applies to cases where
the defendant is within the jurisdiction
of the Court. Proceedings under this
section can only be had " in case of
non-appearance by defendant." Plain-
tiff's attorney should therefore be
careful to search for an appearance
immediately before making his appli-
cation to the Court or a Judge. The
search ought to be made if possible on
the day of the application. The affida-
vit should be explicit and positive to
the effect that a search for appearance
was made and that no appearance has
been entered. Thus : — "And I further
say, that the said defendant hath not
appeared to this action [^or had not ap-
peared in this action at the hour of
in the afternoon of the day
of instant, and that he has not, to
the best of my knowledge and belief,
since appeared thereto"] : (see N. B.
112.) Under the old practice, where
an appearance bad in fact been
entered for defendant but was mislaid
by the Deputy Clerk of the Crown
and overlooked by plaintiff's attorney,
who entered an appearance per Statute
and proceeded to judgment, the pro-
ceedings were set aside : (Ryan et al.
V. Leonard, 3 0. S. 307.) But held
under almost similar circumstances
that after judgment by default and no-
tice of assessment, it was too late to
object to the irregularity : (Ketchum et
al. V. Keefer, 6 0. S. 56; see also
Mapel V. Woodffate, 10 Jur. 839.) The
Court refused to allow a plaintiff to
enter an appearance per statute with-
out the usual affidavit and the day of
indorsement of service upon the writ,
altbought defendant admitted the re-
ceipt of the copy of writ left at his
dwelling-house : (Rustell v. Lowe,
2 Dowl. N. S. 233 ; but see Atton v.
Greathead, 2 Dowl. N. S. 547 ; Rolfe
V. Piffot, 1 B. C. Rep. 78, Wightman
J.) An appearance entered by plain-
tiff for an infant defendant has been
124
Piooatdingi
on non ap-
DMruice of
ItoftncUuit
on writ espe>
eUllylndon*
•Kl.
Signing
Jnilgffltnt.
THE COMMON LAW PftOOEDURB ACT. [g. l,.
monB, (p) or a rale of Court, or a Judge's order for leave to
proceed under the provisions of tiiis Act, (q) and the Writ of
Summons, at onoo to sign final Judgment (r) in the form
contained in the Schedule (A) to this Act annexed, marked
No. 7, bis, (on which Judgment no proceeding in error [or
appeal] («) shall lie) for any sum not exceeding the sum
indorsed on the Writ, together with interest to the date of the
held to be a ground of error : (Ste-
phent T. Lowndes, 8 D. & L. 205 ;
Jamta v. Atteell, 11 Jar. 662.)
(/>) This provision is in a manner a
subantatioh for the old form of appear-
Searanoe per statute. And it has
een held that in order to entitle a
plaintiff to enter an appearance per
statute actual personal service of the
writ was necessary : (see (?oy^« v. ffun-
tingtower, 1 D. & L. 699, and Chritt-
maa v. Eicke, 6 D. & L. 166.) As to
when a writ can be said to be person-
ally served, see s. zxziv. note/. The
a£Bdavit need not, it seems, now more
than formerly show the manner of ser-
vice. Deponent if positive may in
general terms swear that he "person-
ally served defendant with a true copy
of the annexed writ of summons." See
Form of affidavit, Chit. F. 7 Edn. 867.
As to affidavits generally see N. R.
109 et teg., also p. 41 of this Work, a.
zziii., note sub-divs. 8, 9, 7, 8, in-
titled « Deponent," "Commissioner,"
" Signature of Deponent," and
"Jurat."
(?) This rule or order to be obtained
pursuant to s. zzziv. An application
to rescind the order when obtained
may be supported by affidavits contra-
dicting those upon which the order
was obtained. This too without an
affidavit of merits : (see Hall v. Scot-
ton, 9 Ez. 238, 24 L. & Eq. 478.)
(r) **At once to sign final judgment."
Plaintiff, it would appear, is not bound
to delay signing judgment until a copy
of the order has been brought to de-
fendant's notice: {Hall v. Seotion,
ante, per Parke B.) This, if a correct
opinion, is in strict conformity with
the old practice. A plaintiff who had
entered an appearance for defendant
was not bound to take much fiirther
notice of him in the subsequent pro-
ceedings. Judgment signed where
defendant has not appeared without
filing an affidavit of personal service
or obtaining a Judge's order to be
allowed to proceed, would be, it is ap.
prehended, utterly void : (see Lane v
McDonell, H.T. 7 Wm. IV. M.S. R. &
H. Dig. " Appearance" 4 ; Nichol v.
McKelvey, E.T. 2 Vie. M.S. R. & H.
Dig., same title, 6 ; Roberta v. Spun,
8 Dowl.P.C.451. Sedqu. See WaUony.
Dow, 6 Dowl. P. 0. 684; Waiiama
V. Strahan, 1 N. R. 809.) But held
that a defendant who pleauad a plea
which was a nullity, was not in a posi-
tion to move afterwards to set aside
interlocutory judgment, upon the
ground that there was no appearance
entered : (Brewater v. Davj/, H. T. 2
Vic. M.S. R.& H. Dig. "Appearance,"
6.) Qu. Whether plaintiff IS prevented
firom signing judgment when a defend-
ant has in fact appeared but entered
his appearance after the time limited
by the writ? (See Rogera v. Hunt, 10
Ez. 474.) As to proceedings to be
taken by a plaintiff suing several de-
fendants, some of whom appear and
others do not : (see s. Izvi. and notes.)
(«) The words in brackets are not in
the English Act They have reference
to appeals under our Statute 12 Vic.
cap. 63 g. 87 et aeq. " Error" in the
English Act, where the word is used
has reference to proceedings in error
in the Exchequer Chamber. There
are in England three Courts of co-or-
dinate jurisdiction — Queen's Bench,
Common Pleas, and Ezchequer. No
appeal lies directly from one to the
i.lx.]
PROOEEDINGS UPON NON-APPEABANOE.
125
Judgment, (0 ad^ the costs to be taxed in the ordinary way;
and the Plaintiff may upon such Judgment issue execution at ''*^**^
the expiration of eight days from the last day for appearance, ptotIm:
and not before ; (u) Provided always, that it shall be lawful Sm^^
for the Court or a Judge, either before or after final Judgment, *" "***'"*'
to let in the Defendant to defend, (v) upon an application
supported by satisfactory affidavits accounting for the non-
appearance and disclosing a defence upon the merits, (w) '
' '. :..
other. But an appeal may be bad
from any one of the three to the other
two united. The two so united foraii
the Court known as the '* Exchequer
Chunber."
(t) It is improper to sign judgment
for a Bum including interest, when the
'Dterest is not due upon a contract ex-
prevsed or implied : (see Rodway t.
Iuc9i, 10 Ex. 667.) The only excep-
tion to this rulo appears to be an action
upon a bill of excliange or promissiory
note, in which action plaintiff may in
his special indorsement claim interest
«i a matter of course : (76. per Pol-
lock C. B. p. 674.) The Court after
judgment signed will not presume that
the claim for interest indorsed upon
the writ is made without founda-
tion. If such were the fact, it was
the duty of defendant to appear
and question it. Not having done so,
he will be impliedly taken to have ad-
mitted the correctness of the claim :
(Ih. per Pollock G.B. 670.) The judg-
ment is now final, instead of being in-
terlocutory as heretofore ; though final
execution cannot be issued until the
expiration of eight days from the last
day for appearance. In the case of
several defendants, some of whom have
appeared and some not, plaintiff may
si^ judgment against those who have
not appeared, subject to the provisions
contained in s. Ixvi. of this Act.
(u) As to Computation of the time
see Blunt v. Hatlop, 9 Dowl. P.C. 982.
These eight days include Sunday, whe-
ther that day be either one of the in-
termediate days or the last of such
eight days : IRowberry t. Morgan, 9
Ex. 780.) If the last of tho eight days
be Sunday, plaintiff will be entitled to
issue execution on the following day,
Monday: (/6. per Martin B.) ^here
the wnt specially indorsed was is-
sued on 9th February, and was
served on 11th February, and conse-
quently the time for appearance ex-
pired on 19th February (eight days
only being allowed by the English Act,
ten by ours,) and judgment was signed
on 20th February. Plaintiff then de-
sirous to issue execution, and finding
the eight days under the Act expire on
Sunday, issued the writ on the follow-
ing day (Monday, 27th February.)
Held regular: {lb.)
(y) The object of this provision is to
relieve a party who through ignorance
of the necessity of entering appear-
ance has allowed judgment to be sign-
ed against him : ( Warrington v. Leake,
Pollock, C. 6., 26 L. T. Ex. 186, 88
L. & Eq. 422.)
(tr) A party applying under this sec-
tion must ''account for his non-ap-
pearance," and ''disclose a defence
upon the merits," but is not bound,
it seems, to state the grounds of
his defence. He need only state
that he has a good defence on the me-
rits. An .ordinary affidavit of merits
is sufficient : ( Warrington v. Leake,
ante, per Parke B. and Piatt B., Pol-
lock C.B. hesitante and Martin B. dit-
tentiente. ) As to the " affidavit of me-
rits" see 8. xlvii. note/. An affidavit of
merits is only necessary under this sec-
tion when the judgment has been regu-
larly signed: (GaUy.Scot»on,j)eT Parke
B., 9 Ex. 288, 24 L. & Eq. 478.) Affi-
davits in reply ought not to be receiv-
ed: {Warrington r. Leake, ante, per
I pf J j»,
f - i
,a5a
;?f-
*,>■' i'
rnu
'^'
.li.
Ml
126
THE COMMON LAW PROOIDURB AOT.
[■■ Ixl.
%« V-S
7
Cv^t^a.. ^rrJ^"*- *• ^'^ I'XI. (x) In case of such non-appearance where the Writ
U.: (s.h9.i. Sag. 0. L. p. of Summons is not indorsed in the special form hereinbefore
A.,r86ii,i.28. p^^^. j^j^ jj gjyjj |,g i^^f^i fo, jhe Plaintiff, on filing an affidavit
writ tanot of personal service of the Writ of Summons, (y) or a Judge's
SdSSI'' order for leave to proceed under the provisions of this Act, («)
and the Writ of Summons, to file a declaration, (a) indorsed
sadantion. ^.^j^ ^ ^^^.^^ ^ ^^^^ -^ ^^^^^ j^yg^ ^j^ ^^j ^^ gjg^ Judgment
% '&1. hj default at the expiration of the time to plead so indorsed as
fSS^nt. aforesaid,^'(c) and in the event of no plea being filed and served
Pollock CD. and Piatt B.; see also Aut-
tin T. MUlt, 20 L. & Eq.496.) It is pro-
bable that a defendant making appli-
cation under this section will at least
if Bucoessfiil be expected to pay the
ooBta of the application : (see Silted t.
Lte, 1 Salk. 402.) He may in the dis-
cretion of the Judge be compelled to
pay the amount claimed into Court to
abide the erent : (aee Wader. Simeon,
18 M. & W. 647.)
(z) Taken from Eng. St 16 & 16
Vio. cap. 76 s. 28. — Applied to County
Courts. Founded upon let Rep. of C.
L. Com. (s. 15.) Not retrospeotiye :
(Ooodliffe V. Neave, 8 Ex. 184.)
(y) Form of affidavit see Chit. F. 7
Edn. 857. Seryice when personal see
B. xxxiy. note /. Further proceedings
when to be taken see b. Ix. note o.
(z) i. e. under s. xxxiy., which see,
together with notes/ and k thereto.
(a) Commencement and oonolusion
of beclaraUon, see s. cviii. Plaintiff
filing a declaration under this section
should obserye the provisions of N. B.
20 as to particulars of demand. Of
course if the writ of summons be spe-
cially indorsed pursuant to s. xli. such
particulars will be unnecessary. See
Ivet y. Calvin, 1 U. C. Cham. B. 8, in
which a great number of cases are col-
lected, in which it has been held that
particulars may be obtained in pro-
ceedings ex delicto.
(b) The notice to plead here men-
tioned is something new in Upper Ca-
nada. It is substituted for a demand
of plea which by s. cxi. of this Act is
declared to be unnecessary: (See
also 8. coil.) Where jflaintiff hav-
ing Berved bis declaration and a
demand of plea under the old prac-
tice, and having signed Judgment
for want of a plea before this Act came
into force, applied to be allowed to
proceed under this section, his appli.
caton was refused. And per Bums J.
"You muBt take a rule to compute
under the old practice. The 61st see.
refera specially to writs issued under
to the new Act, and declarations which
should be indoraed with a notice to plead
informing the defendant ftally of h» lia-
bili^ in case of neglect." (The Queen
V. Hunter, Chambers, Sept. 12, 1866,
BurasJ.) The declaration and notice to
plead under this enactment should be
served as well as filed, unless otherwise
orderadbytheCourtoraJudge. "Ser-
yice as well as filing is evidently con-
templated by this section, though not
specially mentioned": (Wallace v.
Frater, Chambers, Sept. i5th, 1856,
Bichards J. ; also, the Queen y. Hunter,
Sept. 12th, 1856, Bums J; see also
N. B. 182.)
^e) Apparently the filing of a decla-
ration under this section would have
the effect of delaying plaintiff in his
proceedings, but such may not really
the result to the extent Bupposed. If
plaintiff sign judgment ever so prompt-
ly under the preceding section, still he
will be obliged to wait Uie expiration
of eight days from the last day for ap-
pearance before issuing an execution.
If plaintiff sign judgment under this
section execution may be issued forth-
with. But before he can be enUUed to
judgment he must delay eight days
after filing declaration bo as to allow
gjxii.] APPKARAMOX BEfORI JVDOMINT. 127
irhere the cause of action mentioned in tb'* declaration is for
any of the claims which might have been inserted in the special
indorsement on the Writ of Summons, (d ) the Judgment shall
be final, and execution maj issue for an amount not exceeding Kxwmtion.
the amount indorsed on the Writ of Summons with interest and
costs; (c) Provided always, that in such case the Plaintiff shall profiio: m
not be entitled to more costs than if he had made such special ^ "o^-
indorsement and signed Judgment upon non-appearance. (/) § ^y-
LXII. (g) The Defendant may appear (h) at any time before upp. a>. o.) o*^ sial ■ ^
Judgment, (t) and if he appear after the time specified either OMitw! ^''^' ^^ ^
'' ill
^^/.
defendant, if disposed, to plead. la
either proceeding the time is nearly
equal. Tlie former perhaps, upon the
whole, iij the most expeditious. Judg-
icent under the preceding section is,
properly speaking, signed 'Mn default
of appearance." Under this section
it will be signed «ia default of plea."
In either case it would seem that the
judgment after default may be signed
without any notice to defendant. The
point though raised has not yet been
decided: it is still doubtfUl: (see
Qoodiffe r. Neavea, 8 Ex. 184.)
(d) As to which see s. xli. and notes
thereto.
(«) **And eoatt." This does not
mean costs indorsed on the writ, but
costs of the cause to be taxed by the
Master. The preceding section is
express upon the point.
(/) This is a penalty upon plain-
tiff's attorney for neglecting specially
to indorse the writ in cases in which
the same ought to be done. It is ri^ht
to observe that the proviso allowing
defendant to come in and defend
(to be found in the preceding sec-
tion,) has not been repeated in the
section under consideration. A judg-
ment signed pursuant to this section
would therefore appear to be more
final in its effects than judgment under
the preceding section.
(ff) Taken from Eng. St. 15 & 16
Vic. cap. 76 s. 29. — Founded upon Ist
Rept. C. L. Gomrs. s. 16. — Applied to
County Courts. Defendant may at any
time come in and watch his rights
without prejudice to the plaintiff. Ap-
pearing before plea pleaded, he will
will have every advantage that an
appearance would have given if
made within the appointed time.
If he appear after plea pleaded
he will be in a position to see to the
regularity of plaintiff's proceedings.
Qu. If defendant appear after the time
limited to a writ tpteially indorsed, is
plaintiff thereby debarred from enter-
ing judgment? (see Rogert v. Hunt,
10 Ex. 474.) If a plaintiff under the
old practice entered an appearance for
defendant it was unnecessary for plain-
tiff afterwards to serve a demand of
plea before signing judgment. This
too was held to be the Sie law in a
cose where the defendant after the time
limited for appearance and after an ap-
pearance j9«r Stat, by plaintiff, himself
entered an appearance and gave notice
to plaintiff: (see Davia v. Cooper, 2
thereof Dowl. P. C. 135.)
(A) If defendant appear under this
section, he will thereby waive irregu-
larities in the writ, copy, and service,
nay, even the total want of a writ.
Moreover, in doing so he submits him-
self to the jurisdiction of the Court in
which he appears, no matter where
the cause of action arose : (see Forbes
tt al. V. Smith, 10 Ex. 717, also ITum&^e
V. Mand, 6 T. B. 265.) The appear-
ance if defective but not void may be
amended : (see Wheaten v. Packman,
8 Wils, 49 ; Bate v. Bolton, 4 Dowl.
P. C. 677.)
(t) Too late after judgment is signed
i
^ J
i.
TBK COMMON LAW PROCEDURX ACT. [|. Ixii.
puiutiff in the Writ of Summons (J ) or in the warning indorsed in
atray ome any Writ of Capias served on him, (k) or in any rule or order
Btnt to proceed as if personal servioe had been effected, (T) he shall,
after notice of such appearance to the Plaintiff or his Attorney,
nil ptMitioB. as the case may bo, be in the same position as to pleadings or
other proceedings in the action as if he had appeared in time •,(m)
Provided always, that a Defendant appearing after the tiroo
appointed by the Writ, shall not be entitled to any further time
for pleading or any other proceeding, than if he had appeared
within such appointed time; (n) Provided also, that if the
Defendant shall appear after the time appointed by the Writ,
and shall omit to give such notice of his appearance, the
Plaintiff may proceed as in case of non-appearance, (o)
Prorlio.
ProvlM.
under either of the preoeding ■eotioos.
The appearance miiy be entered at
any time daring the long vaoation now
ai formerly.
(/) t. e. "Within ton days after
servioe of writ" (See Soh. A, No. 1.)
Jk) Time same as in preceding note.
I) If defendant be without the jur-
iction of the Court the time for ap-
pearance is regulated " by the distance
from Upper Canada of the phioe where
the defendant is residing," &c. (see ss.
zxzT. and xzxtI.) The rule or order
here mentioned is obtainable under s.
xzziv.
(»i) "ir« tkall, nfter notice, ^c." —
Though the notice here intended is a
written one, ^N. B. 181,) a knowledge
by plaintiff tnat an appearance has
been entered may in some oases be
held to dispense with the necessity for
such a notice. Thus, where the writ of
summons specially indorsed was serv-
ed on 80th August : Defendant on 9th
September, entered an appearance,
but gave no notice thereof to plaintiff's
attorney, as required by this section.
On the same day plaintiff's attorney
having seen the entry of the appear-
ance in the proper book, at the office
of the Deputy Clerk of the Crown, and
having also seen the appearance it-
self, notwithstanding, signed judgment
for non-appearance. Held that the
'* knowledge of the plaintiff, that an
appearance was entered, though it wu
signed on the morning of the day after
which it should have been entered ac-
cording to the time of the servioe of
the writ of summons, was sufficient to
dispense with a written notice by the
defendant that be had appeared:"
(Lanark and Drummond Plank Road
Company v. Bothwell, Chambers, Oct
11, 1866, Burns, J.) Besides, it was
in this case considered that " plaintiff
did not allow time for such notice to
be given — for the appearance was enter-
ed at the opening of the office in the
morning, and plaintiff's attorney came
at the same time with the papers pre-
pared to sign judgment, although see-
ing the appearance entered." (lb.)
The summons to set aside the judg-
ment was made absolute without costs,
because " it appeared that the Deputy
Clerk of the Crown had received the
appearance the day before with in-
structions to keep it and file it the
first thing next morning." (lb.) If
defendant regularly appear by, and
give the name of an attorney, it would
seem necessary for plaintiff to serve
papers on such attorney : (see s. ix.
and notes thereto : Scd qu. See Oour-
lay V. McLean, 6 O. 8. 79.)
^n) Otherwise plaintiff might be pre-
juaiced : (see Davit v. Cooper, 2 Dowl.
P. C. Bayley J.)
(o) This latter proviso is not con-
I. Ixiii.] APPBARANOIS IN PERSON. 129
LXIII. (/)) Every appearanoe by the Defendant in person (q) ^'^o^i;.^,^, <^*»» «l»2 .(f^
shall Rivo an address, (r) at which it shall be sufficient to leave avma^w! ^^^'J^ **
all pleadings and other proceedings not requiring personal j^^fln^'o^i^
aervioe, («) and if such address be not given, the appearance !>«»«>■> to
■hall not be received, (<) and if an address as given shall beart».,*«.
illusory or fictitious, the appearance shall bo irregular and may where piMui-
be sot oiiide (u) by the Court or a Judge, and the Plaintiff may bo iMM«d.
tained ia the English enactment. It
is necessary in order to relieve plain-
tiff from aearohing the Crown office
from day to day as he proceeds with
Ills suit, la anticipation of an appear-
anoe after the time limited for appear-
anoe has expired.
{p) Takun from Eng. Stat. 16 & 10
Vie. Clip. 76 8. 80. — Foanded upon Ist
Kep. of C. L. Com. a. 18.— Applied to
County Courts. The object of this
euaotment is to compel defendantH ap-
pearing In person to give to plaintiff 'a
attorney full and correct Information
Sit to the liddresR or plnoo at which all
papers nnt requiring personal service
may be let\.
(q) This section applies only to oases
where defendent appears In person.
The form of appeal ance is given In the
following section (Ixiv). A defend-
ant who appears In person is bound to
know the |>ractlce of the Court and can-
not be Buffered to excuse himself on
the ground of ignorance : (see OiUing-
kam V. Watkett, MoClel. 668.) He is
bound too by the same rules as ho would
have been had he appeared by attor-
ney : {Kerry v. Reynoldt, 4 Dowl. P.C.
234.) But there is nothing to prevent
a defendant who appears In person
afterwards pleading by attorney : (see
Snptr V. Driper et at. 2 0. S. 289 ;
Kermon v Watlinborouffh, 6 Dowl. P.
C.664; see also N. R. 189.)
(r) The memorandum stating the
address together with the appearance
to be given to the proper officer and
filed by him (s. Ixiv.) The memoran-
dum of address to be filed '* as a paper
in the cause." "Such address or
place to he not more than two miles
from such office:" (see N. R. 138.)
(«) Notices, summonses, rules, or-
ders, and generally all proceedings
subsequent to the writ, including
pleadings may be sufficiently served
though the service be not personal:
(see N. R. 188.) A rule nut for an
attachment Is an exception, and almost
the oulv exception to this practice.
The address given by defendant may
or may not be his residence. If bis
1 esldence, the service may be made on
a servant, and must at all events be
shown to have been made upon some
person connected with his residence :
{Taylor v. Whitworth, 1 Dowl. N 8.
600.) If the place of address be not
his residence, then It seems the service
must be made upon some person con-
nected with the place so named. Ser-
vice of pleadings, notices, summonses,
orders, rules, and other proceedings
must after the first day of Michaelmas
Term, 1866, be made before 7 o'clock
P.M., except on Saturdays, when it
must be made before 8 o'clock p.m.:
(see N. R. 186.)
[t) i. e. By the officer whose duty
otherwise It would be to file it.
(u) It is important hei e to note the
distinction between an irregularity and
a nullity. The former may be waived
by the conduct of the party, who is
entitled to take advantage of It, and
stands good at least till set aside. The
latter is incapable of being waived and
has no force or effect whatever. An ap-
pearance, if defective in the particu-
lars mentioned in this section, is de-
clared to be an Irregularity. To set
aside an irregularity, the party object-
ing mu.st apply within a reasonable
time and before taking any fresh step
after a knowledge of the irregularity :
(see N. R. 106, also note to a. xxxvii.,
p. 84 of this work.)
.■i'i
>t.
.t'-
r
(
! ij
180
THE COMMON LAW PROCEDURE ACT.
u-t. ch ■: 2.
[V\ ; !■■,.,
':m -m
[s. Ixiv
be permitted to proceed, (v) by sticking up the proceedings in
the office from whence the Writ was sued out. (jo)
{App. cn. c.) LXIV. (x) The mode of appearance to every such Writ of
1852" s! 31." ■ Summons jW* under the authority of this Act, shall be by filing
Mode and with the propcr officer in that behalf, (y) a memorandum in
jwaranco.*^ Writing according to the following form, or to the like eflFect : (4)
(i») «' Permitted to proceed " &0. Qu.
Does this intend an application to the
Court or Judge for the necessary per-
mission ? There is nothing to hinder
plaintiff moving at one and the same
time to set aside the appearance and
to be allowed to proceed in the manner
pointed out by this section.
(u-) Plaintiff in his application must
show that the appearance is without
an address ; or an address which is il-
lusory or fictitious ; or that the ad-
dress or pince given is more than two
miles from the office of the Clerk or
deputy-Clerk of the Crown : (as to this
latter see N. R. 138^ ; To prove an
appearance without tnc necessary ad-
dress, the fact after search may be
sworn to in positive terms. To prove
a given address to be illusory or ficti-
tious, it will be necessary to set forth
particular facts which lead to that con-
clusion. " Illusory" means that which
deceives, while " fictitious" may mean
that which is designedly untrue. If from
inquiries made at the place given as the
ndiiress of defendant it turn out that the
address be really fictitious or illusory,
plaintifi^, it is apprehended, is in a po-
sition to apply without further inquiry.
But it mu^t be shown by plaintiff that ho
used due diligence in order to find the
address given by defendant : {Fry v.
Rogers, 2 Dowl. P. C. 412.) Special
inquiries must be made at the place de-
signated. As to the sufiicienty of the
inquiries see Fry v. Rogfm, ante ; also
Hemming V. Duke, 2 Dowl. P.C. G37.
To prove that the address or place given
is more than two miles from the office
of the Clerk or Deputy Clerk of the
Crown, an affidavit of the fact must be
produced. If the application by plaintiff
to be permitted to proceed in manner
directed by this section be an appH-
cation separate and distinct from
that to set aside the appearance for
irregulariry, it may be that the order
will be granted absolute in the first in-
stance: (see Bridgery. Austin, 1 Dowl
P.C. 272.) For a form of the affidavit
and order consilt Chit. F 6 Edn. 39.
The words of this enactment should of
course be substituted for correspond-
ing but not exactly similar expressions
made use of in these forms.
(z) Taken from Eng. St. 15 & 16
Vic, cap. 76, 8.31. — Applied to Coun-
ty Courts. This enactment is also a
copy of our St. 12 Vic. cap. 68, s. 23.
The origin of both enactments appears
to be Eng. St. 2 Wm. IV. cap. 39, s. 2,
with which both almost literally agree.
(y) In Eng. Act "By delivering a
memorandum to the proper officer or
person in that behalf, &c." The dif-
ferance between ours and the English
enactment appears to be one rather
of form than of substance. It must
be intended that the officer should
keep an appearance book or other re-
cord in which entries may be m id .
The Statute is silent upon th e subject;
but N. II. 1 makes positive provision
for an appearance book. Th e rule is
in effect a re-enactment of old Rule 18
of H. T., 13 Vic.
(z) The forms here given are sub-
stantially the same as those of Eng. St.
2 Wm. IV. cap. 39, Sch. No. 2, and
Prov. Stat. 12 Vic. cop. 63, Sch. No. 2.
The Schedules to both these Statutes
in reality gave three forms. 1. Where
defendant appeared in person. 2.
Where he appeared by attorney. 3.
Where plaintiff's attorney appeared
♦ " Or" evidently a clerical error.
9. Uiv.]
MODE OF APPEARANCE.
181
A.. B., PlaintiflF, against C. D., De- ^
fcndant,
or
against C. D. and another,
• or
against C. D. and others.
(If the Defendant appears in person, here give his address, (e)
Entered the day of A. D., 18 . (/)
The Defendant, CD.,
appears in person (a)
or
' E. F. (6) Attorney (c)
for C. D.,(d) appears
for him.
for defendant. The last of these three
has of course been omitted from
the forms above given. Appearance
by plaintiff for defendant is practi-
cally abolished by s. lix. of this Act.
The form here prescribed must be
strictly followed. Where an Act of
Parliament expressly provides that a
ihing is to be done in a given form
the Statute must be closely pursued :
(see Warren v. Love, 7 DotvI. P. C.
602 ; Codrington v. Curlewis, 9 Do\rl.
p. C. 968.) Still the form so given
need) only be followed in cases in
^hich it is applicable. In cases where
the form does not apply an appear-
ance may be entered by keeping as
closely to the form prescribed as pos-
sible : (see Smith v. Wedderbume, 4 D.
& L., per Pollock, C. B., 297.) If two
or more defendants in the same action
appca at the same time by the same
attorney, the name of all such defen-
dants may be inserted in the one
memorandum of appearance : (N.
R2.)
(a) If defendant be sued by his
Throng name he would do well to appear
by his right name. In the margin of
the appearance paper it may be stated
that be is sued by the wrong name :
see Ilobson v Wadsworth, 8 Dowl. P.
601; Kitchen v. Eoota, lb. 232.)
If he appear by his right name, then
plaintiff may declare against him in
such name, mentioning, however, that
he was sued by the other, thus — " A.
B., by E. F. his attorney, sues C. D.,
who has been summoned by the name
of G. D : " (see Doo v. Butcher, 3 T.R.
Gil.) Thus the suit may proceed with-
out difficulty. But if defendant appear
by the wrong nam«, plaintiff may also
't
declare against him by that name :
(see Clark v. Baker, 13 East. 278 ;
Stroud •". Oerrard, 1 Salk. 8 ; Chit.
Arch. 9 Edn. 200. Also see Gould v.
Barnes, 8 Taunt. 604; Williama v.
Bryant, 6 M. & W. 447.) If the mis-
taken name be idem tonant there will
bo no irregularity, thus — Lawrance
for Lawrence : (Webbx. Lawrence,! C.
6 M. 806.)
(&) The name of the Attorney
must be given : (see Warren v.
Love, 7 Dowl. P. C. 602.) And defen-
dant cannot appear by more than one
attorney: (see Williams v. Williams,
per Abingcr, C. B., 10 M. & W. 178.)
But such an appearance would be an
irregularity only, and not a nullity :
{Ib.\
(c) An appearance by a person wh»
is not an attorney of the Court, does
not, it seems, entitle the opposite part j
to sign judgment but only to move to
set aside proceedings : (see Bazley v.
Thompson, 4 Tyr. 966.)
(d) An appearance thus worded —
«InQ. B. Thomas Warren, plaintiff,
against George Love, defendant,
attorney, appears fo r ," was
held to be a nullity : ( Warren v. Love,
7 Dowl. P. C. 602 ; see Codrington v.
Curlewis, 9 Dowl. P. C. 968.)
(«) As to appearances in person, see
preceding section Ixiii., and notes
thereto.
(/) This blank it is presumed must
be filled in as of the date of entry.
The Eng. St. is to the effect that the
appearance must "be dated on the
day of the delivery thereof:" (s. 31.)
These words have not been copied by
our Legislature ; but their omissicn
^
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I
i?t|
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132
THE COMMON LAW TROOEDURE ACT.
[s. hr.
H»,^7,*«
en
•nt
appear
fom&i^ (^w-/*^ LXV. {g) All such proceedings as are mentioned in any
l^-'/^A4' A"i«5i,»!3a! Writ of Summons [or Capias,] or notice [or warning thereto
tat or thereon,] issued, [made or given] by authority of this Act,
pTOce^ings^may be had and taken (in default of a Defendant's appearance
"^tf Defend- [or putting in special bail,)] (h) at the expiration of ten days
\Jr. *"*' from the service or execution thereof, (t) on whatever day the
last of such ten days may happen to fail, whether in tern or
iidiSk '^' vacation ; (k) Provided always, that if the last of such ten days
shall in any case happen to fall on a Sunday, Christmas Day
or Good Friday, in either of such cases the following day, or
the following Monday when Christmas Day falls on a Saturday,
"/ $ "»%. shall be considered as the last of such ten days 'l\l) Provided
cannot be of much importance. A
blank ia left by the Legislature in the
form here given for some date which
the appearance is to bear. It cannot
bo any other than the day of the date
of filing. The oflScer who files an ap-
pearance is bound to mark upon it the
day upon which it was filed wiUi him.
(see N. R. 1.) Supposing the assump-
tion here made as to the date of an ap-
pearance to be correct, it follows that
aio appearance can be entered nunc pro
tunc. If defendant enter an appear-
ance, having a mistake in name, date,
'&c., he should apply to amend it and
not enter a fresh one : (see Bate v.
■£ol(on, 4 Dowl. P. C. 677.) Where
an appearance is improperly entered
and not a nullity, it may, on applica-
•tion be struck out: (see Paget v.
Thompson, 3 Bing. 609.) A judge's
order to set aside an appearance must
'be served before it will operate : (see
Belcher v. Goodered, 4 D. & L. 814.)
The application to set aside or strike
out an app^rance for irregularity,
must be made within a reasonable time
and before plaintiff has taken any fresh
step after a knowledge of the irregular-
ity : (see note m to s. xxxvii., p. 84 of
this work, with cases there mentioned. )
{g) Taken from Eng. Stat. 15 & 16
Vie. cap. 76, s. 32 — Applied to County
Courts. — Substantially the same as
Prov. Stat. 12 Vic, cap. 63, s. 26,
which was adopted from Eng. Stat.
.2 Wm. IV. cap. 39, ss. 11 and 16.
(A) The English enactment enr.s
here ; besides, it does not contain ruy
of the words placed in brackets ia the
commencement of this section. The
reason that the words '*^r putting in
special bail " are not to be found in
the Eng. Act will be made sufficiently
obvious upon reference to note c to s.
zxii. of this Act. Briefly it may be
stated that in England since the pass-
ing of St. 1 & 2 Vic, cap. 110, a capiat
is no longer in use for the commence-
ment of actions, but that before that
Statute the English law was the same
as ours is now.
(i) Defendant is by the writ com-
manded to appear " within ten days "
after service, "inclusive of the day
of such service," (Sch. A, No.l.) As to
the computation of time see Fano v.
Cokm, 1 H. B. 9, and note k to s. li.
of this Act ; also note d to a. Ivii.
(A) Formerly writs of first process
were made returnable in term. In some
cases no proceedings could be effectu-
ally had on a writ of summons return-
able within four days of the end of any
term until the beginning of the ensu-
ing term. Great and unnecessary de-
lay was thereby created. To remedy
it Stat. 2 Wm. IV. cap. 89, s. 11,
(which is precisely the same as the
above provision) was passed.
{t) The old rule was different. For
many purposes the return day of the
writ might be on Sunday or on any
other day : (see Fano v. Cohen, 1 H.
"'*'•«&*•
8. Ixvi.] PaOCEEDINGS WHEN SOME DEFENDANTS APPEAR.
1S8
also, that if such Writ shall be served or be executed on any p~^|jo^ »»'
day between the first day of July and the twenty-first day of
August in any year, special bail may be put in by the Defend-
ant on bailable process, or appearance entered by the Defend-
ant on process not bailable, at the expiration of such ten days; '^^ ^'*"f.
(fn) Provided also, that no declaration or pleading after declar- 2mi Proviso :
ation shall be filed or served between the said first day of July /,/ g ^«
and the said twenty-first day of August. 00 ^'' ^21. (Rw^^ ^ ,'<i^^^ ), |^. .
LXVI (0) In any action brought against two or moreMi>p-o>. «\ tv>i.5^\4v
Defendants when the Writ of Summons is indorsed in thcAawig.'as! ""-^f^ £'*■'
special form hereinbefore provided, (p) if one or more of suchprocoodings
Defendants only shall appear and another or others of them ttie'nrfbii.i.
shall not appear, it shall be lawful for the Plaintiff to sign InioSaen
Judgment against such Defendant or Defendants only as shall wh? b^inp*
not have appeared, (j) and before declaration against the other ^Smd"^ '""
Defendant or Defendants, to issue execution thereupon, in which
case he shall be taken to have abandoned his action against the
Defendant or Defendants who shall have appeared ; (r) or the
t^
^
:i:'^:-l'
.1 t-
§6C
B. 9.) The provision here enacted is
the same in principle as N. R. 166.
(m) At the expiration of suck ten
iayi—i. e. — ten days from the service
or execution of the writ- But still
the precise meaning of this part of the
section when taken in connexion with
other parts of the C. L. P. Act, is far
from being clear. Defendant by the
writ is comnianrfci to appear "within
ten days " after service ; but may ap-
pear " at any time before ju'^gmertt,"
(s. Ixii.) It can neither be the inten-
tion of the legislature to restrict de-
fendant to an appearance within ten
days or to any period after the expira-
tion of that time. The object of the
enactment apppears to be to declare
that special bail may be put in or an
appearance entered atany time during
the long vacation. Plaintiff cannot
declare until after the expiration of
vacation: (see latter part of this sec-
tion.)
(n) This in effect preserves to Upper
Canada the vacation first introduced
by Prov. Stat. 12 Vic. cap. 63, s. 2C.
(See olso N. R. 9.) The corresponding
vacation in England is from August
10, to October 24 : (see Eng. Stat. 2
Wm. IV, cap. 39, s. 11.)
(0) Taken from Eng. St. 15 & 10
Vic. cap. 76 s. 83. — Applied to County
Courts.
{p) I. «. by s. xli. of this Act.
(3) Form of such judgment, see
Sch. A No. 7, bis.
(r) Two modes of procedure are en-
acted by this section, and it is for tho
plaintiff to elect between them. If he
sign judgment under the first part of
the enactment, his judgment will be
final as against defendants who have
not appeared, and against whom he
may issue execution without further
delay. But if he adopt this course,
he must abandon his action against
the remaining defendants who hnvo
appeared. The question of costs then
becomes a consideration. The plain-
tiff n" against defendants who haw
not ai'pearcd and against whom j\:dg-
■ !;.,
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134
THE COMMON LAW PROCEDURE ACT.
[s. Ixvi.
PlaintiflF may before such execution declare against such De-
fendant or Defendants as shall have appeared, stp,ting by way
of suggestion the Judgment obtained against the other Defend-
ant or Defendants who shall not have appeared, in which case
the judgment so obtained against the defendant or defendants
who shall not have appeared, shall operate and take effect in
like manner as a Judgment by default obtained before the com-
mencement of this Act against one or more of several Defend-
ants in an action of debt, (s) ,
raent is signed for default of appear-
auoe is clearly entitled to costs as much
as if he had obtained a verdict : (see
s. Ix.) It is equally clear that plain-
tiff abandoning his action against uome
defendants will be required to pay
them their costs * (Lush's Prac. 693.)
(») If plaintiff instead of proceeding
under the first part of this enactment
as pointed out in the previous note,
elect to proceed under this latter part
of the enactment, his judgment ob-
tained against defendants who have
not appearel, will be in effect in-
terlocutory rather than final. What
may be the result ? This enactment
only applies to cases where the writ is
specially indorsed. The writ can only
bo so indorsed when the action is
brought upon a contract express or
implied : (s. xli.) The contract whe-
ther express or implied, is taken to be
entire, and plaintiff proceeding upon
it against all the defendants must as a
general rule recover against all or
none: (Chit. Arch. 8 Edn. 880.) If he
fail upon the plea of one he loses the
benefit that he might otherwise derive
under the first part of this enactment
against defendants who have not ap-
peared : (see Morgan v. Edwards, 6
Taunt. 398.) Besides, ho may be held
to lose all right to costs of the cause :
(see 1 h. ) And having signed judgment
against one or more of several defend-
ants,he is not in a position at the trial to
ask for a nonsuit: a verdict must, if any
one defendant succeed on his plea to
the action be given to all the defend-
ants : (Tidd's Prac. 6 Edn. 908, refer-
ring to Ilannay v. Smith, 3 T. R.
662 ; Weller v. Goyton et al, 1 Burr.
358 ; Harris v. Butterley, Cowp. 483.
Sed qu. — see Murphy v. Donlan et al.
6 B. & C. 178; Smart v. Rogers
4 M. & W. 649 ; Commercial Bank j
Hughes et al. 4 U. C. R. 167.) The
rule as regards non-suit would be dif-
ferent if one of several defendants was
in fact unable to contract (t. e. an in-
fant, married woman, idiot, &c.) Iq
this case it would be absurd for any
purpose to hold that the contract was
joint and entire : (see Boyle v. Webster
21 L. J. Q. B. 202.) Then plaintiff-
has just this choice — either to be satis-
fied with his judgment against such
defendants as have not appeared, or
if dissatisfied therewith to proceed
against all the defendants, including
those who have appeared, and run the
risk of losing whatever advantages Lo
has gained by his judgment: (see
Eliot V. Morgan, per Coleridge, J. 7
C. & P. 334.) It would seem that
even after a declaration under the
latter part of this section if plaintiff
repent of his course he may, under s.
Ixx. of this Act, apply at any time be-
fore trial to strike out the names of
all defendants excepting those who did
not appear, and against whom he has
signed judgment. He may then issue
execution with as much effect as if he
had, in the first instance elected to
abandon his suit against all defendants
who had appeared: (Chit. Arch. 9
Edn. 918. ) Indeed, the late cases have
gone further. In one case where in an
action upon contract against two de-
fendants, A. and B., of whom the
former suffered judgment by default,
g Ixvii.] JOINDER OP PARTIES TO ACTIONS. 185
And with respect to the joinder of parties to actions j Be it ' *l '
enacted as follows : (<) ' > •
and the latter pleaded " never in-
debted," and at the trial it appeared
that A., against whom judgment by
default was signed, was not at all
liable, while B. who pleaded was solely
liable. The Judge, upon application,
ivUowed A.'s name to be struck out of
the record and directed a verdict
against defendant B. The Court con-
firmed the decision of the Judge:
(Greaves v. Ilumfries et al. 4 El. & B.
851.) I^ ^^^ name of a defendant
against whom judgment by default is
signed be struck out, the judgment is
ftl,o thereby struck out: (per Camp-
bell, C J. 7J. p. 852.)
(A The followiufr enactments are
founded upon the first report of the
C. L. Comrs., s. 19, and will be found
in effect to conduce largely to the
administration of substantial justice.
To understand completely the nature
of the changes made in the law, it will
be proper to state shortly the old law.
This roiiy be done almost in the words
of the Commissioners.
First — As to actions ex contractu. —
The omission of n party a,^ plaintiff vho
ought to be joined or the joinder of a
party who ought not to be joined was
fatal. So the joinder of a person as
defendant who ought not to be joined
WHS likewise fatal,; whilst the omission
of a party as defendant who ought to
bo joined could only be taken advan-
tage of by a plea in abatement.
Second — As to actions ex delicto. —
The joinder of a party who ought not
to be a plaintiff was fatal ; whilst the
omission of a party who ought to be a
co-plaintiflF could only be taken advan-
tage of by a plea in abatement. In
such actions the joinder of persons who
were not liable as defendants only en-
titled them to an acquittal and the
omission of persons jointly liable was
of no consequence.
So far as the law is hero stated
with respect to the joinder of pnr-
ties it still remains ; but the con-
sequences of mistake or error are
not so disastrous as here described.
The proper parties to sue or be sued
in an action either of contract or of
tort must, as heretofore, be determined
upon by the particular circumstances
of the case and the due application
of the existing laws that regulate the
joinder of parties to an action. But
if plaintiff's attorney mistake the
number of parties to be joined cither
as plaintiff or defendant, the conse-
quences of his mistake will now be less
likely to be fatal than formerly. Powers
of amendment to be exercised in a libe-
ral spirit : (see Parry v. Fairhurst, per
Alderson, B., 2 C. M. & B. 196; Sains-
bury V. Mathews, per Parke, B., 4 M.
&W. 347; Wards Peawon, per same
Judge, 3 M. & W. 18 ; Evans v Fryer,
per Williams, J., 10 A. & E. 616 ; Pa-
cific Steam Naviy'n Co. v Lewis, per
Pollock, C. B., 16 M. & W., /92;
Smith v. Knowelden, perTindal, C. J.,
2 M. & G. 561 ;) will go far to render
substantial justice paramount to mere
technicality, and so advance the re-
medy in a manner co-extensive at
least with the mischief intended to be
prevented. Statutes giving the power
of amendment are most salutory reme-
dial statutes and ought to receive a
a liberal or at all events a fair con-
struction: [Greaves v. Ilumfries, per
Campbell, C. J., 4 El. & B. 863.) The
JVo/j-joinder or Jfjs-joinder of plain-
tiffs or defendants in any civil actioif
may be remedied upon proper applica-
tion to the Court or a Judge, to be
made either before trial or at the trial,
under the provisions of the enactment
which here follows. If the amendment
be either granted or refused at Nisi
Prius, the party dissatisfied with the
decision of the Judge,cnnnot, it seems,
appeal to the Court in banc, or apply
to that Court for a review of the
Judge's docision, under s. ccxci. of this
Act : (see Robson v. Doyle et al, 3 El.
& B. 395.) The only remedy in such
case for nn amendment thought to be
improperly made or refused is to
if
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136 THB COMMON LAW PROOEDUBE ACT. [s. Uvii.
(Apr. a. c.) LXVII. (m) It shall be lawful for the Court or a Judge at
A^fw^'l^sil^^y *'™® before the trial of any cause, (v) to order that any
person or persons not joined as Plaintiff or Plaintiffs in such
?n^'ruin' caus8 shall be so joined, (w) or that any person or persons
caws order originally joincd as Plaintiff or Plaintiffs, shall be struck out
not joined ai from such causc, (x) if it shall appear to such Court or Judge
be lo joined, that injustice will not be done by such amendment, (^) and
Joined to be that the person or persons to be added as aforesaid, consent
before trial, either in person or by writing (2) under his, her or their hands
to be so joined, (a) or that the person or persons to be struck
out as aforesaid, were originally introduced without his, her or
their consent, or that such person or persons consent in manner
aforesaid to be struck out ; (h) and such amendment shall be
made upon such terms as to the amendment of the pleadings
if any, postponement of the trial, and otherwise, as the Court
or Judge by whom such amendment is made shall think pro.
per, (c) and when any such amendment'shall have been made
the liability of any person or persons who shall have been added
as co-plaintiff or co-plaintiffs shall, subject to any terms imposed
'^^y
apply to the full Court for a new trial,
(u) Adopted from English St. 16 &
16 Vic, cap. 76, s. 34— Applied to
County Courts. This section applies
to the non-joinder or wiM-joinder of
plaintiffs in actions both upon contract
and for tort. The amendment, if desir-
ed, must be applied for and made be-
fore trial. For a review of this and
the following sections, see Tay. £t.
2nd Edn. p. 184, et leq.
{v) Amendment at the trial may be
made r.iider and pursuant to the suc-
ceeding section: (Ixviii.)
iw) Form of affidavit, summons and
er, see Chit. Forms, 7 EJn. 831.
iz) Form of affidavit, summons and
er in this case, see Chit. F. 7 Edn.
832. See further Collins v. Johnson,
16 C. B. 588.
[y) This is a most vngue expression
and yet it is difficult to imagine a bet-
ter, or one more in keeping with the
spirit and intent of the Act. It is in-
cumbent upon the Judge to whom ap-
plication is made before acceding to
the application to look well to the
circumstances of the case as affecting
the rights and liabilities of both parties
to the suit: (see Cook v. Stratford
per Rolfe, B, 13 M. & W. 387.)
(z) ** In perton or by writinff," &c.
The " consent in person " ought, it is
presumed, be given in open Court or
Chambers, as the case may be.
(a) Form of consent — See Chit F.,
7 Edn. 831.
(A) Form of consent in this case-
See Chit. F. 7 Edn. 832.
(c) The Court above will rarely in-
terfere with the discretion of a judge
exercised in Chambers in a case with-
in his jurisdiction : (see Tadman v.
Wood, 4 A. & E. 1011.) Applications
to the Court above for a review of the
Judge's decision when allowable should
be made during the term next after
the decision: (see Orchard v. Moxey,
21 L. J. Ex. 79 n ; Meredith v. Gillena,
21 L. J. Q. B. 273 ; Collins y. Johnson,
16 C. B. 688 ; s^e further note m to
8. zxxvii.
S. Ixviii.] MIS-JOINDER OR NON-JOINDER OP PLAINTIFF. 137
US aforesaid, be the same as if such person or persons hod been
ori<»inally joined in such cause. (<Z) ^' ^ ^•
LXVIII. («) In case it shall appear at ihe trial (/) of any ,^^ o,.c.) Ceti. slcit ^
action that there has been a mis-joinder of Plaintiffs, or that Wc. lk a.e.fkn^*^
some person or persons not joined as Plaintiff or Plaintiffs ' '\^i^''*^&
ought to have been so joined, (^g) and the Defendant shall not for amend- '
at or before the time of pleading have given notice in writing mihjoindorof
that he objects to such non-joinder, specifying therein the an omiraion
«i /»s'L.«.-ito join those
name or names oi such person or persons, (h) such mis-joinder who ought
or non-joinder may be amended as a variance at the trial by appearatThe
any Court of Record holding plea in civil actions, and by anyJe{,"^'an't*not
Jud^e sitting at nisi prius, or other presiding officer, (i) in notice^o?^*^
like manner as to the mode of amendment and proceedings ^®'''°"' «
consequent thereon, or as near thereto as the circuiAstanccs of
the case will admit, as in the case of amendment of variances
under the Act of the Parliament of Upper Canada, passed in
the seventh year of the Reign of King "William the Fourth,
•(''■
(d) The object of this proTision is
for all purposes to give effect to the
amendment made. The amendment
when marie must bo in accordance
with the established practice as res-
pects
FABTIE8 TO ACTIONS.
Joinder of Plaintiffs.
1.— In actions ex contractu — see
Chit. PI. I. 2-68, 7 Edn.
2. — In actions ti. delicto — see Chit.
PI. I. 68-84, 7 Edn.
Cases decided since the publication
of Chitty : — Actions ex contractu. —
Keightleyy. }r«<«on, 3 Ex. 716 ; Weth-
erall v. Langston, 1 Ex. 635 ; Wake-
field V. Brown, 9 Q. B. 209 ; Hopkinson
V. Lee, 6 Q. B. 964 ; Rayner v. Grote,
16 M. & W. 359 ; Webb v. Spicer, 13
Q. B. 886 ; Higginbottom v. Burge, 4
Ex. 667 ; Foley v. Addcnbrooke, 4
Q. B. 197 ; Vertue v. East Auglian R.
Co., 6 Ex. 280 ; Smyth et al v. Ander-
ton, 7 C. B. 21 ; Uarcourt v. Wyman,
3 Ex. 817 ; Cobb v. Beck, 6 Q.B. 930;
Mills V. The Guardians of the Poor of
Alderbury Union, 3 Ex. 590 ; Wethe-
rell V. Langston, 1 Ex. 634 ; Jones v.
Robinson, 1 Ex. 454 ; Sutherland v.
Wills, 5 Ex. 715; Crowhurst ▼. Lave-
rack, 8 Ex. 208 ; Wheatley v. Boyd,
7 Ex. 20 ; Clay v. Southern, 7 Ex. 717 ;
Schmaltz v. Avery, 16 Q. B. 655;
Humble v. Hunter, 12 Q. B. 310;
Thatcher v. England, 3 C. B. 254;
Boyd T. Mangles, 3 Ex. 887 ; Jones y.
Carter, 8 Q. B. 134.
(e) Taken from Eng. Stat. 15 & 16
Vic, cap. 76, s. 35 — Applied to Coun-
ty Courts. This enactment is intended
to apply to cases of non-joinder or
mw-joinder of Plaintiffs. The amend-
ment when allowable is to be made at
the trial.
(/) The application should it seems
not only be made at the trial, but
before verdict : (See Brasher v. Jack-
son, 8 Dovrl P. C. 784; See further
n.j. to this section.)
(g) As to Joinder of Plaintiffs, see
n. d. to preceding section, (Ixvii.)
(h) Proceedings in case this notice
be given, see next succeeding section,
(Ixix.)
(i) t. e. Judge or County Judge or
Crown Counsel acting for and in the
:■ V- .
' ^
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' *^
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i
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s
rl
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2 -
138 ' ' THE COMMON LAW PROCEDURE ACT. [s Ix^iij
intituled, An Act /or the further amendment of the law and
the letter advancement ofJmticc^ (j) if it shall appear to sucb
Court or Judge or other presiding officer, that such mis-joinder
or non-joinder was not for the purpose of obtaining an undue
advantage, and that injustice will not bo done by such amend-
ment, (/•;) and that the person or persons to bo added as afore-
said, consent cither in person or by writing under his, her
or their hands to bo so joined, (/) or that the person or persons
to be struck out as aforesaid were originally introduced without
his, her, or their consent, or that such person or persons con-
f/c ^*. sent in manner aforesaid to bo so struck out, (m) and such
amendment shall be made upon such terms as the Court or
absence of the Judge of Assize under
s. clii. of this Act— docs not appear to'
extend to Associates.
{/) i. e. Stftt. U. C. 7 Wm. IV., cap.
3, 8. 15, which is a transcript of the
Eng. Stat. 8 & 4 Wm. IV., cap. 42. s.
23, and to which latter Act a refer-
ence is made in the Eng. C. L. P. A.,
1852, similar in effect to the reference
by this section made to 7 Wm. IV.,
cap. 3, 8. 16. It is expressed that the
amendments to be made under the
section hero annotated, shall be made
"in like manner as to the mode of
amendment and proceedings conse-
quent thereon, or as near thereto as
the circumstances of the case will ad-
mit, as in the case of amendments
made under the Stat, of Wm. IV."
A reference to the decisions under
that Statute, as to the " mode of
amendment" and ^^procefdinga conse-
quent thereon" becomes necessary.
The amendment should be liberally
made : [Smith v. Knoicefden, per
Maule, J., 2 M. & G. 665.) The time
for the amendment is before verdict :
{Brasher v. Jackson, 8 Dowl. P. C.
784 ; Doe v. Long, per Coleridge, J.,
9 C. & P. 777 ; also Jones v. Hutchin-
son, 10 C. B. 516.) By consent an
amendment 'was allowed, though ap-
plied for after verdict, but before it
was recorded : {Roberts v. Sne.H, 1 M.
& 0. 677.) Where in consequence of
an amendment being made in the de-
claration, it becomes necessary in tLo
ple>, the Coun will direct this also
to be made, .should the counsel for
defendant decline to interfere or to
amend the pleadings himself: (Tav
Ev. 2nd Edn., p. 202, referring to
Perrjt v. Fisher, Spring Assizea.Surrcy
184G, per Lord Denman, M.S.) The
Court cannot control the discretion of
the Judge in re/using the amendment:
(/A. referring to Doe v. Errim/ton, \
A. & E. 750 ; Jenkins v. Phillips, per
Coleridge, J., 9 C. & P. 708; Whit-
well V. Scheer, per Patterson, J., 8 A.
& E. 309; also Lucas v. Beale, 10 c!
B. 739.) Nor will the Court interfere
where an amendment has been alloweil
to be made, unless upon clear proof
that the Judge was wrong; (//>. refer-
ring to Sainshurt/ v. Mathetps, per Lord
Abinger. 4 M. & W. 847.) In all
cases if both parties consent, larger
powers may be exercised either by the
Judge at nisi prius, or by the Court
above: (Tay Ev. 203, referring to
l^irey v Fairhnrst, 2 C. M. & R. 190,
noticed by Patterson, J , in Guest v.
Klines, 5 A. & E. 120; Roherts v
Snell, 1 M. & 0. 577; Brashier v.
Jackson, 6 M. & W. 558.)
{k) As to this expre8.«ion, see n. y.
to preceding section (Ixvii.)
lu a. to
ano
preceding
(/) See notes g.
section ('xvii.)
{vi) Form of consent, see Chit. F.
7 Edn. 832.
, .,T BIOI
.hoBbaUhavob
subject to any
ifsuchpotsor
action- Co)
jn abatement o
Plaintiff otco-l
tiff Bhall be at
,„^ With rosp
..\7 difficult t(
net rule, as c
degree depend'
jtanoes; yet. t
asafepropoBitv
not allow any
Je tUrowP upoi
by reawa ot a
Z, 2nd Edn.,
,„endmentmi
tioa of the C
^^r rKe 3
made: (See j
qD. 642; 8C(
J&M.429;
E. 118; seef
Arcbd. Prac.
it seems raaj
amount of cosi
If the Court
propriety of \
not avail as
^Vhcre an an
the trial, 8«
non-suit, th
fendant wai
moving to
^ero incid
I Smith V. J
W.) 1ft
upon payn
of costs w<
condition
liii^iiy''
■1' fffi?< . I--M«
::A
|jij 1 RIGHT OP PLVINXrFF IN SUCH 0ASE9.
ladifo or other presiding officer by whom such amendment is
made, shall think proper; (n) and when any such amendment ^'^^JJ^yjjf
shall have been made, the liability of any person or persons, |>""''i *•> "
^ho shall have been added as co-Plaintiff or co-Plaintiffs, shall, i'iai«itiff«.
gttbioct to any terms imposed as aforesaid, be the same ns
if such person or persons had been originally joined in such (.j a ^^ .
action. {0)
LXIX. (p) In case such notice bo given, (q) or any plea co.c.)Cff>i Sbd
in abatement of non-joinder of a person or persons as co- V'fvM ^m' ^^■^■"^■^
plaintiff or co-Plaintiffs (in cases where such plea in abatement
nrnv be pleaded) (r) be pleaded by the Defendant, the Plain- Hce have
tiff shall be at liberty, without any order, to amend the writ by the Du
ren
In) With respect to the " terms,"
jtU difficult to lay down any dis-
tinct rule, as each case must in a
degree depend upon its own circum-
stances; yet it may be advanced as
a safe proposition, that the Court will
not allow any additional expense to
be thrown upon the opposite party,
by reftfcon of any amendment : (Tay.
Ev. 2nd Edn., p. 203, referring to
Smith V. Brandran, per Tindal, C. J.,
2 M. & G. 260.) The costs of the
amendment must rest in the discre-
tion of the Court, or the Judge to
whom application for amendment is
made: (See Tomlinson v. Bollard, 4
Q. B. 642 ; see also Parks v. Edge, 1
C & M. 429 ; Guest v. Elwes, 6 A. &
E. 118; see further Tidds N P. 615 ;
Archd. Prac. 8 Edn. 388.) The Judge
it seems may himself determine the
amount of costs : ( Guest v. Ehccs, ante. )
If the Court differ from him ns to the
propriety of the amount, still that will
not avail as against his order: {lb.)
Where an amendment was allowed at
the trial, subject to a motion for a
non-suit, the Court held that the de-
fendant was entitled to the costs of
moving to enter the same, as they
were incident to the amendment :
(Smith V. Brandram, 9 Dowl. P. C.
430.) If the amendment be granted
upon payment of costs, the payment
of costs would it is presumed be a
condition precedent to the amend-
ment : (See Levy v, Dreiv, 6 D. & L.
307.)
{oj The same in effect as the con-
cludmg sentence of the preceding sec-
tion.
(;?) Taken from Eng. Stat. 15 & IG
Vic, cap. 76, s. 36— Applied to County
Courts. ^
( q) t. e. The notice mentioned in
the preceding section: (See Form
thereof. Chit. F. 7 E.in. 837.)
(r) A plea in abatement is on*
which shows some ground for abating
or quashing the writ and declaration.
It does not contain an answer to the
cause of action, but shows that the
plaintiff has committed so7ne in/or-
malittf, and points out how he ought to
have proceeded in technical language,
"gives him a better writ:" (Smith,
Action 80.) The right of the defend-
ant to plead a pica of abatement, can-
not be better explained than by draw-
it g a distinction between pleas in bar
and pleas in abalement. Whenever
the subject matter of the plea or de-
fence is that the plaintiff cannot main-
tain any action at any time, whether
present or future, in respect of the
supposed cause of action, such defence
may be pleaded in bar. But matter
which merely defeats the jsresew^ pro-
ceeding, and does not show that the
plaintiff is forever concluded, may in
general be pleaded in abatement r
(Chit. PI. 7 Edn. I. 4G2.) Pleas in
■^::
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140
THE COMMON LAW PROOEDURK ACT.
[8. \XX.
no^AZ aid other proceedings before pica, by odding the name or
SfiSat!" "*™°* ^^ *^° person or persons named in such notice or plea
in abatement, (h) and to proceed in the action without anv
further appearance, on payment of the costs of and occasioned
by such amendment only; (/) and in such case the Defendant
I shall bo at liberty to plead Je novo, (u)
Orv sjft? thp- Oipp- <*• c) LXX. (v) It shall bo lawful for the Court or a Judce fie^
'• »i U.e.'mJt. i.r Eng. C. IkP. . , „%.-■, i> -r^ „ , o \wj
; 8 A A. 1852,11.37. in the case of the joinder of too many Defendants, (x) in any
sit; ;«la
abatoment are of several kinds, of
which non-joinder of a co-plaintiff is
one. It is the only ono to wliich re-
ference is made by the enactment
under consideration. It would ap-
pear that a plea in abatement of the
coverture of defendant, is not a pica
of " non-joinder" within the meaning
of this enactment: (Jonea v. Smith, 8
M.& W.626.) As to when and in what
manner pleas in abatement for non-
joinder of plaintiffs, may or may not
be pleaded : (See Chit. PI. 7 Edn. I.
462, et seq. ; also Robinson r. Mar-
thant, 7 Q. B. 918; Ouyard v. Sut-
ton, 8 C. B. 158 ; Morgan v. Cubitt, 8
Ex. 612 ; Chantler v. Lindsri/, 4 D. &
L. 389.) These pleas are discouraged
by the Courts, and four days only are
allowed for pleading them. The sec-
tion of this Act which allows eight
days for pleading, applies only to
pleas in bar : (cxii.) Of the four days
allowed for pleas in abatement, the
first has been held to be inclusive,
and the last exclusive : (See Ryland
T Worwald, 6 Dowl. P. C. 681.) But
if tlie fourth day be a Sunday, a plea
by defendant on the following Monday
is sufRoicnt : (See Lee v. Carlton, 8 T.
R. 642 ; also sec N. R. 166.) It seems
that s. xcviii. of this Act, and the
other enactments relative to pleading
in general, are applicable to pleas in
abatement. It is doubtful wliether s.
cxvi. and the enactments which relate
to the commencement and conclusions
of pleas, can bo held to apply to pleas
in abatement: (Chit. Arch. 9 Edn.
847, n. a.) For the practice as to
pleas for non-joinder of a co-de-
fendant, see s. Ixxiii., and notes
thereto. The facilities given by tliig
Act for amendments both before and
at the trial, will have the effect in a
great measure of doing away witli
pleas in abatement.
(») It is as much necessary under
this as under the preceding enact-
ments, that a consent in writing of
the party to be added, should be filed-
(See N. R. 6.)
(0 The payment of costs under this
provision, will be, beyond doul»t, a
condition precedent to the amend-
ment: {Levy V. Drew, 6 D. & L. 307 •
Waller \. Joy, 16 M. & W.60; see also
Johnson V. Sparrow, 1 U. C. R. 396 •
Oass V. Codeugh, E. T., 8 Vic, MS
R. & H. Dig., " New Trial" Ix. i '.
Wynn v. Palmer, E. T., 8 Vic, M.S
R. & H. Dig, "New Trial" ix., 3;'
Thompson v. Sewell, 4 0. S. 16; Reeves
V. Myers, T. T. 4 & 5 Vic, M.S. R. &
H. Dig., "New Trial," ix. 6.)
(m] i. e. Under and pursuant to the
provisions of s. cxxxix. of this Act,
(which see.)
(v) Taken from Eng. Stat. 15 & 16
Vic, cap. 76, s. 87— Applied to County
Courts.
(w) As to these words, see n. e. to
8. Ixvii. of this Act.
, (z) The preceding ss. Ixvii., Ixviii.,
Ixix., apply to oases of non-joinder or
mis-joinder ot plaintiffs.
'M
g.Ixx]
JOINDER or TOO MANY DIEINDANTS.
141
iction on contract, (y) at any time before the trial («) of such ^f^^^^
..iiifi (a) to order (b) that the name or names of one or more ••><•'*••■*?*•
cauwj V '' - , ^ / , ./. . » 11 1 '"^ '**»™
«r duch Defendants bo struck out, if it shall appear to such trial in ac-
01 B"*"" ' *^ tlon on COD-
rjottft or Judge that injustice will not be done by such amend- tract,
meat, (c) and the amendment shall be made upon such terms
ggtbe Court or Judge by whom such amendment is made
gbtll think proper; ((f) and in case it shall appear at the
ly) This enactment is for mnnifcst
reasons restricted to notions on con-
tract. There is no necessity for the
extension of the remedies hero enact-
ed to actions for toits ; for in Buch
Actions plaintiff can at any time hej" re
trial, enter a nolle prosequi. If ho fail
to d( so, defendants saed but not lia-
ble, may notwithstanding be acquitted
at the trial ; but the acquittal of one
or more defendants in an action of
tort, is not, as in actions of contract, a
discharge of all.
(z) The application may perhaps be
made <i< the trial, (as to which see note
fio 8. Ixviii.) But when deferred till
the trial, the amendment can only be
made as a variance. In view of this,
it is preferable for plaintiff to make
application at an earlier stage of the
cause, and in doing so avail himself of
the first part of this enactment. Qu.
It is not necessary under this section
for the party making application be-
fore trial, to file a consent similar to
that mentioned in s. Izvii : (See note
I to preceding section Ixix.)
(a) Such came. i. e. Any cause of
action founded on contract express or
implied.
(b) Form of order, see Chit. F. 7
Edn. 832.
(e) The Court for the purpose of
saving the Statute of Limitations, al-
lowed a plaintiff to amend his declara-
tion and all snbse.iuent proceedings,
by striking out the name of one of two
defendants, the other being at liberty
if so advised, to plead the non-joinder
in abatement ; and also, if n<>cessary,
to plead de novo. This was done, al-
though it appeared that an action had
been formerly brought for some por-
tion of the same subject matter, against
the same defendants, in which, defend-
ants obtained a verdict by reason of
the plaintiff having failed to establish
a joint liability. And although on mo-
tion for a new trial in that cause, on the
ground of surprise, theaffidavits in sup-
port of the motion, stated that the plain-
tiff could have proved the joint liabil-
ity of both defendants. And although it
further appeared that an application
for an amendment, by striking out the
name of one of the defendonts in that
ciise made before the Common Law
Procedure Act, was reftised by the
Court: (Cowbum v. Weartnff et al,
9 Ex. 207; 24 L. & £q. 4()7.) The
Court tn bane, confirmed the decision,
and thoQgbt it reasonable that plain-
tiff should be allowed bt/ore trial to
make the amendment and 4o try the
question whether he could establish
a case against one defendant alone
(taking the risk of a plea in abate-
ment) although he might believe the
contract to be a joint one : {lb. per
cur.) An amendment similar to the
above applied for i^/ore trial under the
old practice and before the Common
Law Procedure Act was allowed, de-
fendant being at liberty to plead de
novo : (Palmer v. Beale et al, 9 Dowl.
P.C. 629.) So where the application
was made even after a trial and a non-
suit: (Crauford v. Cocka et al. 6 Ex.
287.)
(d) The costs of course are entirely
in the discretion of the Court or the
Judge to whom the application is made.
But it is apprehended that plaintiff,
will seldom be allowed to strike out any
defendants except upon payment of
costs : (see Cowbum v. Wearing et af^
'^^
_.^ ') i '>L-
142
THE COMMON LAW I'ROOEDURE ACT.
i| ' •
ii>
3/ '■ \ .
And nt tri»i. jriul of ony notion on contract, («) that there has been a niU
joinder of dofendants, such luis-joiudor may bo amended as
variance at tho trial in like manner oh the niis-joindor oP
Plaintiffs has boon horoinbcforo (/) directed U> be amended
and upon such terms as tho Court or Judge or other prcsid'
ing officer by whom such amendment is made shall think
proper, (j)
(AptuOuC) LXXI. (A) In any action on. contract (t) where the non-
ArfsuVlraH! joinder of any person or persons as co-Defendant or co-Defend-
If tho non- nnts has been pleaded in abatement, {J) tho Plaintiff shall bo
ttn'dVnu at liberty, without any order, to amend tho Writ of Summoug
*..-i
h
9Ex. 207 24 L. & Eq. 407 ; see ftlso nn
important cAso upon this Tpo\nt,Jackion
tt al. V. Nunn et at. 4 Q. B. 2U9.)
(e) The amendment here intended
must if made bo made at the trial. It
ia not competent for plaintiff who
<here refuses it, afterwards to apply
for it to tlio Court i>i hanc : (Robson v.
Doyle et al. 3 El. & B. 8U5.) The
amendment if it could be at all made
by the Court in bane would be made
pursuant to s. coxci. ; but aemble that
section does not apply to the case of a
misjoinder of plaintiffs or defendants :
{lb.)
(/) I. e. by 8. Ixviii of this Act.
Iff) In an action of contract against
two defendants, A. and B., the latter
suffered judgment by default. The
former pleaded "never indebted,"
upon which issue was joined. On the
trial it appeared by the evidence that
B. the defendant who pleaded " never
indebted" was solely liable. A. the
defendant who bad allowed judgment
to go by default, not being a contract-
ing party, B.'s counsel claimed a non-
suit. The Judge ordered the record
to be amended, by striking out the
name of tho defendant A., and directed
a verdict against B., subject to leave to
move to enter a non-suit if the Court
should think that the amendment ought
not to have been made. Held, per cur.,
that the amendment was properly
made : (Oreavetr. Humfriea etal. 4 £1.
& B. 861.) The case of Cooper t.
WhUe/toHse et al. (0 C. & p. 545) ^^j
other cases which decide that if the
plaintiff sue several defendants in
debt, and bis evidence does not fix all
tho defendants he must be non-suited
are clearly no longer law. '
iff) As to the •• terms" seo note d to
this section.
(/i) Taken from Eng. St. 15 & 19
Vic. cap. 76 s. 88 —Applied to County
Courts. This section is applied solely
to the case of non-joinder of eo-tU/end-
ants. With this exception it is similar
to 8. Ixix.
(») The enactment is confined in its
operation to actions on contract. The
reason of tho restriction will be found
explained in note y to the preceding
section (Ixx.) But notwithstanding the
restrictions to •« actions on contract,"
it is apprehended that the enactment
" will include actions which, though in
form ex delicto, ore not maintainable
without referring to some contract be-
tween the parties and laying a previous
ground of action by showing such con-
tract:" (Chit. Arch. 9Edn. 849.)
U) As to pleas in abatement gene-
rally see note r to s. Ixix. As to pleas
in abatement for non-joinder of a co-
plaintiff sec same note. As to similar
pleas for non-joinder of a co-defendant
see 8. Ixxiii. and notes thereto. The
non-joinder of a joint contractor as a
co-defendant can only be taken advan-
tage of by a plea ia abatement : (Rice
v.^Au^e, 5Burr. 2013.)
|,Uli] WON-JOINDER or OO-OONTRAOTORS. 148
fliiJ the doclaration by adding the name or names of the person J^t^JJ.'^'JlJ
or porsuns named in such ploo in abatement as juiiit con- «u> b •ctkm.
tructors, (k) and to servo the amended Writ up(«n the perauii
orpofBonB so somcd in such plea in abatement, and ( proceed
against the original Defendant or Defendants and the pcreori ur
porsoDS so named in such plea in abatement ;(/) Provided that
(bo date of such amendment (m) shall, as between the person
or persons so named in such plea of abatement and the Plaintiff,
bo coDsidcrcd for all purposes as the commencement of the
jctioD. C»)
(k) The plea in abatement for non-
joinder of a oo-defondant must give " a
better writ," t. e. state the names and
plact 8 of residence of parties not Joined.
It is for plaintiff then either to au'ivrd
or to commonco a new action against
the persons whose names are so given if
in otlior respects the plea be legal and
formal. He may either amend under
this enactment or he may drop his ac-
tion and commence a new one under the
old practico. It has been for a long
time held that a plaintiff upon a plea
of abatement for non-joinder of a co-
defendnnt may enter a eaaietur breve
vritbout any order obtained for the
piirpoee : (Lush. Prao. 829.) This he
IS allowed to do without at the time
pajing any costs: (see Oreenhill v.
Shepperd, 12 Mod. 145 ; Allen v.
.V(/xc//, Burn. 120 ; Pocklington v. Peck,
1 Str. 038.) Neither party is entitled
to costs on a plea in abatement, and it
was even held that plaintiff was not
entitled to ask for them on setting aside
such a plea for irregularity : (Poole v.
J'mhre}/, 1 Dowl. P. C. G93.) Sed qu.
see While v. Otiseoigne, 6 D. & L. 225.
liut the costs of the amendments if
not paid at the time of the amend-
ment, will abide the event of tho
action. The practice as to allowing
amendment of writs by adding f^esh
parties when there is no plea in abate-
ment is unsettled in England. The
Queen's Bench and Exchequer differ,
the former permitting the amendment,
the latter refusing it. In a late case
ia Chambers, the practico of the
Queen's Bench was held to bo of doubt-
ful propriety, and the Judge in Cham-
bers instead of allowing the amend-
ment, referred the applicant to the
full Court : (Oibtton t. Varlry, 27 Law
T. Rep, 234 )
(l) Tho oonf*equenoe as to costs, &c.,
may bo ascertained upon reference to
8. Ixxii. Whether plaintiff abandon
his old action or amend his old pro-
ceedings he must in either case frame
his declaration pursuant to s. cix. of
this Act.
(m) Qu. In what manner is tho date
of the amendment to be proved if dis-
puted ? There is no provision for a
record of the amendment to bo kept by
the Clerk of Process or other officer.
Power is given to plaintiff to amend bis
writ without any order. It is not
stated that it shall be necessary to re-
seal the writ. It is simply enacted
that plaintiff " shall bo at liberty" to
amend the summons by adding the
names of the persons named in the
plea of abatement. It is not enacted
either that the amendment shall be
made by the proper officer or that the
prcecipe upon which the writ issued
shall be amended by such officer. A
rule of Court is much needed to supply
those omissions. Possibly in the ab-
sence of a rule upon the subject it may
be hold that the amended declaration
will be the best if not the only reliable
index to " the date of the amendment."
(«) This provision is manifestly ne-
cessary for the protection of whatever
' ights defendants newly joined may
1
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144
THE COMMON LAW PROCEDURE ACT.
[s. Ixxii.
' '**■ eh. xz
%?/•
ilH'
I '.. 1
(App.co. a) LXXII. (o) In all cases after such plea in abatement and
£ng. C, L. P> ^ '
A.i852,B.39. amendment, (p) if it shall appear upon the trial of the action
Costs of such that the person or persons so named in such plea in abatement
ment, 4c. was or Were jointly liable with the original Defendant or Do.
fendants, the original Defendant or Defendants shall be entitled
as against the PlaintiflF to the costs of such plea in abatement
and amendment j (q) but if at such trial it shall appear that
the original Defendant or any of the original Defendants is or
re"ga?dta*^*are liable, but that one or more of the persons named in such
Heble"^ not plea in abatement is or are not liable as a contracting party or
p^UTeiyr parties, the Plaintiff shall nevertheless be entitled to Judgment
against the other Defendant or Defendants who shall appear to
be liable, (r) and every Defendant who is not so liable shall
have Judgment and shall be entitled to his costs as against the
Plaintiff, (s) who shall be allowed the same, together with the
costs on the plea in abatement and amendment, as costs in the
be possessed. Not having had any
knowledge of previous proceedings,
it would be unjust in any manner to
hold them bound by such proceedings.
If the writ first issued, when issued,
could, as against these defendants, be
held to be "the commencement of the
action," then they might, without any
knowledge of the process and without
having been served with it, be pre-
vented from availing themselves of the
Statute of Limitations or other like
statutable defence. If, then, as the
practice now stands, the right of action
should be barred by effluxion of time
at a period between the issue of the
writ and its subsequent amendment
by the addition of oo-defendants, it
n-pj^ears clear that the Statute of Lim-
itations would under such circum-
stances be a good defence.
(o) Taken from Eng. Stat. 15 & 16
Vic. cap. 76 s. 39. — Applied to County
Courts. Substantially the same as our
St. 7 Wm. IV. cap. 3 s. 7, which
is a transcript of Eng. St. 3 & 4 Wm.
IV. cap. 42 s. 10. Our statute of Wm.
IV. has not been repealed.
{p) i. (. under the last preceding
section (Izxi.)
{q) The previous section is silent as
to the costs of the amendment. It is
presumed that they will, generally,
be in abeyance until trial and ver-
dict under this section. They will
abide the event, and as such form part
of the costs of the cause : (see note k
to the preceding section Ixxi.)
(r) This provibion is intended to pre-
vent the effect of that rule which de-
cides that a plaintiff in an action of
contract failing as to cne defendant
fails as to all the defendants sued:
(see note s to s. Ixvi.) The joinder of
a co-defendant by plaintiff under and
in consequence of a plea of non-joinder
by defendant is not so much the ac^ of
the plaintiff as of the original defend-
ant. Therefore i^ is only reasonable to
declare that plaintiff shall not be made
to suffer from the act of others.
(«) It is not declared in what man-
ner defendant shall recover these costs
from plaintiff, ^o doubt it would be
proper to proceed by rule and attach-
ment in case of non-payment. But the
point as to whether defendant would
be also entitled to an execution as
against the plaintiff is not so clear.
8. Ixxiii.]
cause agains
havesoplea(
Provided th
in abatemen
oftheliabili
in abatemen
LXXIII.
brought in
the action s
obligor or c
(t) Plainti
contemplatec
act prudentl
bill taxed. '.
Master's al^
plaintiff coul
to have tha
taxation of
cause.
(u) This
the benefit o
in abatemen'
defendant.
files and ser'
substantiate
by plaintiff
To substanti
fiible, prevei
defendant si
his allegatii
in effect thai
are with hii
plaintiff. I
facts is alio
of the liabili
by him in s
(») Subsl
St. 59 Geo.
to County (
(u)) The
a plea in a
narratio cat
This is in <
prayer of
prays juag
declaration
quashed" i
211.) The
S. Ixxiii.] NON-JOINDER OP A CO-CONTRAOTOR. 145
cause agaiDSt the original Defendant or Defendants who shall
have so pleaded in abatement the non-joinder of such person ; (<)
Provided that any such Defendant who shall have so pleaded Proviso,
in abatement, shall be at liberty on the trial to adduce evidence
of the liability of the Defendants, named by him in such plea
in abatement, (w)
LXXIII. (w) Provided always, that in any action to be(^w). O). o c*»xf?o9. A
brought in Upper Canadaagainst any joint obligoror contractor, III. "cap. 25^ ^'^' <^A «i
the action shall not abate (w?) on account o^ any other joint Action not '
obligor or contractor not being made a Defendant, (x) unless non-joimi«r
i
'^^Ul^
(<) Plaintiflf before paying the costs
contemplated by this enactment, would
act prudently in having defendants
bill taxed. Then having obtained the
Master's alljcatur of the amount,
plaintiff could without difficulty claim
to have that sum allowed upon the
taxation of the general costs of the
cause.
(u) This provision is intended for
the benefit of a defendant who pleads
in abatement the non-joinder of a co-
defendant. From the time that he
files and serves his plea he is bound to
substantiate it or pay the costs incurred
by plaintiff in consequence thereof.
To substantiate his plea and so, if pos-
sible, prevent costs, it is only just that
defendant should be allowed to prove
his allegations. The allegations are
in effect that certain persons not joined
are with himself jointly liable to the
plaintiff. Defendant in view of these
facts is allowed '• to adduce evidence
of the liability of the defendants named
by him in such plea of abatement."
(«) Substantially a re-enactment of
St. 59 Geo. III. cap. 25 s. 1.— Applied
to County Courts.
[w) The judgment for defendant on
a plea in abatement is quod breve et
narratio cassetur : (see SellonPr.273.)
This is in exact accordance with the
prayer of the plea , " the defendant
prays juagment of the said writ and
declaration, and that the same may be
quashed," &c. : (Chit. Jr. PI. 2 Edn.
211.) The plea must pray judgment
K
both of the writ and declaration :
{Davies v. Thomson, U M. & W. 161 ;
Whitling v. Des Anges, 3 C. B. 910.)
Qu. — Is it any longer necessary for a
plea in abatement to contain a prayer
of judgment? (see s. ex v., also see
Chit. Jr. PI. 2 Edn. 19 note 2 and 21
note/.)
(x^ As to the general form and re-
quisites of a plea in abatement, see
Chit. PI. 7 Edn. I. 470 et seq. ; also
note 2 to s. Ixix. of this Act. As to
form of plea for non-joinder of a co-
defendant, bearing in mind the enact-
ment of this section as to place of re-
sidence, see Chit. F. 6 Edn. 289 ; lb.
7 Edn. 448. Pleas in abatement for
non-joinder of a co-defendant must be
full, clear, and certain : (see Heap et
al. V. Livingston et ah, 11 M. & W.
896 ; Bleakley et al. v. Jay, 13 M. &
W. 464.) If the plea be bad to one
count of a declaration containing sev-
eral counts, it is bad as to all : {Phil-
lips V. Claggett, 10 M. & W. 102.)
Formal defects in such n plea have
been held open to objection without
a special demurrer. The statutes of
Elizabeth and Anno respecting spe-
cial demurrers, have been held not
to apply to such picas: (see Es-
daile et al. v. Lund, per Parke B. 12
M. & W. 613.) Stat. 7 Wm. IV. cap.
3 s. 6 does not upon the whole appear
to be inconsistent with the section
under consideration. It was held not
to be inconsistent with St. 59 Geo. III.
cap. 25 s. 1, of which the section under
^
hi
-t I
146 THE COMMON LAW PROCEDURE ACT. [s. Ixxiii,
traitor* T^ *'^® P^'^'j pleading such non-joinder (y) shall aver in his plea
uniesut be^ that such joint obligor or contractor (z) is living (a) within
sworn that the limits of Upper Canada, (h) and shall state the place (c) of
considerntion is almost a copy : {Cor-
bett V. Calvin et al, per Robinson C. J.
4 U. C. R. 124.) St. 7 Wm. IV. cap.
3 s. 6 is unrepealed, and is in these
words : " No plea in abatement for the
non-joinder of any person as a co-de-
fendant shall be allowed in any Court
of Common Law, unless it shall be
stated in such plea that such person
is resident within the jurisdiction of
the Court, and unless the place of re-
sidence of such person shall be stated
with convenient Certainty in an affida-
vit verifying such plea." The latter
statement as to place of residence as
well as the statement as to residence
within the jurisdiction must now ap-
pear in the plea. This appears to be
the only departure from the old enact-
ment.
{y) A plea of coverture is not, it
seems, a plea of "non-joinder" within
the meaning of this section . (see Jones
V. Smith, 3 M. & W. 526.)
(2) It will be insufficient to describe
the parties not joined by initial letters
of their Christian names : {Hastings v.
Champion et al. M.T. 8 Vic. M.S. R. &
H. Dig. Abatement, 4.) Sed qu. if
defendant cannot by any means ascer-
tain the tr-^e names, would it not
be sufficient for him to describe the
parties as best he could? The
plea must mention all the co-con-
tractors not joined: Abbot v. Smith,
2 W. B., 951; Godson v. Good, 6
•Taunt. 587 ; Mil v. White, 8 Dowl. P.
C. 13 ; Crellin v. Jirook, 14 M. & W.
11.)
(a) It docs not appear to be neces-
sary thiit the co-contractor should be
actually and literally " livini/ within
the limits of Upper Canada," at the
'time of plea pleaded, if his domicile or
residence be then within Upper Cana-
da. A temporary absence on a tour
for health or other similar cause is not
a living without Upper Canada as con-
templated by the Act: (see Lainbe v.
■Smjthe, 3 D. & L. 712.)
(b) Defendant is bound in his plea
to disclose a joint contract. In Upper
Canada it has been held that he must
do this, though upon the face of hia
plea it appear that some of the joint
contractors are without the jurisdiction
of the Court : {McKnight v. Scott, M
T. 3 Vic. M.S. R. & H. Dig. Abate-
ment, 6 ; upheld in Corbett v. Calvin
et al. 4 U. C. R. 123.) It was re-
marked by Robinson C.J. in the latter
case, that a defendant under sucli cir-
cumstances is not to be understood by
hi's plea as pleading the non-joinder of
the persons without the jurisdiction:
{lb.) The plea in Calvin \. Cooketal.
upheld by the Court, was to the efFect
" that the supposed promises wevo
made jointly by defendant with one
Hiram Cook and one Timothy H. Dunn
— that Cook was living and resident
within the jurisdiction of the Comt—
and that Dunn at the time the action
was brought was and still is a resident
of Lower Canada, out of the jurisdic-
tion of the Court." See a similar plea
and authorities cited in support of it
in note a to Newton et al. v. Stewart, 4
D. & L. 89. But in England the law
conflicts with that laid down by our
Courts upon this point, though tlie
Statute law in each country is
is much alike. In the first place, it
has been held in England that in tlio
case of joint contractors, where one is
out of the jurisdiction of the Court, tiie
contract thereby becomes joint and
several : (see Henri/ v. Goldney, per
Alderson B. 15 M. & W. 494.) In the
second place, as a sequence to tbis rea-
soning, it has been held that no plea
in abatement can be put upon the re-
cord for non-joinder of co-contractors
where some at the time of pica pleaded
are without the jurisliction of the
Court: {Jolly. Curzon, 4 C. B. 249,
sec also Mat/burg v. Mudie, 5 C. B.
2^3, 6 D. & L. 292.) These cases
being more recent than ours, may
hav3 the eflfect of shaking the autho-
li-:i
^ii . 'I.
Ixxiii.]
PLEA OF NON-JOINDER.
m
his residence, (d) nor unless an affidavit of the truth of such ^» i'^« '«>
rity of ours, at least to some extent.
To npply ourselves to the reasoning
of the English cases we find it said by
William«i J., in Jolt v. Curzon, Ihat the
Eng. St. 3 & 4 Wm. IV. cap. 42 s. 8,
(which is word for word the same as
our 7 Wm. IV. cap. 3, s. 6,) that re-
quires the plea to state that the co-
contractor, the non-joiuder of whom is
complained of, •* is resident within the
jurisdiction of the Court, ousts the
party of his plea if a/Z the co-contractors
are not within the jurisdiction of the
Court." This was the manner in
which the case was argued, and is the
reasoning upon which the decision de-
pends. Without attempting to recon-
cile the decisions in the two countries,
the Editor must leave to others the
formation of their own opinions.
(c) The place as well as residence
must now be stated in the plea instead
of in the affidavit as formerly. The
plea must state the true place and
abode of the party whose non-joinder
is objected to: (Maybury v. Mudie,
Maule J. 6 C. B. 283.) Whether it
does so or not is a matter which for-
merly might be controverted and de-
termined upon motion to set aside the
plea : {lb.) If the plea he false, it is
apprehended that it may still be set
aside on motion. But the meaning of
the word '• place" itself, as used in
this Act is from its vagueness, open to
much uncertainty. It is extremely
doubtful whether in Upper Canada the
like precision must be observed as in
England : (see note b to s. xxi. of this
Act.) Our 7 Wm. IV. cap. 3 s. 6 re-
quires the place to be stated with
"convenient certainty." These too
are the words of the Eng. St. 3 & 4
Wm. IV. cap. 42, s. 8. What, then,
is meant by stating a place with con-
venient certainty ? The object of the
requirement is unquestionably that the
plaintiff may know not only who the
co-coutract'>rs are, but also the place
of their residence, in order that he may
be enabled to serve process upon them :
isee Newton v. Stewart, per Wightman
. 4 D. & L. 92.) Now there can be
no reason for holding greater prcoise-
ness to be necessary for that purpose
under this section than under see.
xxi., which requires a writ of sum-
mons to be indorsed with the nnrao
and '« place of abode" of the attorney
suing out the same. In this latter
case it is presumed for the reasons
mentioned at length in the noto 6 to
that section, that the street or houso
will not be requisite. Between the ex-
pression "place of abode" and "placo
of residence" there can be no differ-
ence. One case has arisen in England
under the section which corrcspoudil
to the one here annotated, and is .
worthy of mention. Two defendant!! '
whose non-joinder was plcadf d, wcro
stated to be resident, the une at " No.
20, Gower Street, Bedford Square,"
the other "High Street, Canterbury."
The Court on affidavit that inquirioi
were made at "these places," ami
that no such persona were there living,
set aside both the plea and affidavit,
although the defendant showed that
the mistakes had been made acoiden-
tally, and that the one party was to bo
found at " No. 22" instead of " No.
20," and that his name was in the Post
Office Directory and other similar
works of reference aa residing at No.
22, and that the other party waa well
known iu Cajiterbury, and that he liveil
in a street adjoining to the one named :
[Newton et al. v. Stewart, 4 D. & L.
89 ) It is scarcely possible that in
Upper Canada, where the circumstanced
of the country are so different froju
those of England, that so much parti-
cularity will be needed in describing
" the place of residence" of a contruo-
tor " living within the limits of Up-
per Canada," but not joined.
(d) The actu'il residence must bo
stilted. It is not sufficient to give tlio
best statement of it that can be ub-
tained : ( Whec.tley v. Oolney, 9 Rowl.
P.C. 1019.) The object of the provi-
sion is that plaintiff may without delay
or difficulty bo able to servo process
upon the parties whose non-joinder is
pleaded : {Newton v. Stewart^ per
1'^
S»
■*rv ,
Sf»
^^a;:'
^
a
1 (
'i r
148 THE COMMON LAW PROCEDURE ACT.
Canada, plea be filed therewith, (e)
[8. Ixxiii.
; I
Wightman J. 4 D. & L. 92. ) That be-
netit would not be secured to plaintiff
unless the inforn^ation stated in the
plea should be correct : {Mayhury v.
Mudie, per Maule J. 6 D. & L. 292.)
If the plea do not state the place of re-
sidence it is a nullity: {Brewster v.
Davit, H.T. 2 Vic. M.S. R. & H. Dig.
Abatement, 8.) A statement of the
place of business would not be suffici-
ent: [Maybury v. Mudie, 6 D. & L.
860.) The word re4t(/<!nc« is understood
to mean home or domicile : (Lambe t.
Smylhe, 3 D. & L. 712.) The expres-
sion *' place of residence" might be
taken to mean dwelling-house. A
man's dwelling-house is prima facie
where his wife and family reside, and
if he has a family dwelling in one place
and he occupy a house and occasionally
sleep in another, he will not be a re-
sident in the latter place, for his resid-
ence is his domicile, and his domicile
is bis home, and his home is where his
family reside : (Story's Conflict of
Laws, 8. 63; R. v. Duke of Richmond,
6 T. R. 660; U. C Law Journal, Vol.
II. 105.) Pleas in abatement are not
in general allowed tu be amended, be-
; cause they are dilatory and do not go
to the merits of the action : (Chit.
Arch. 8 Edm. 820.) They may, how-
ever, in some cases be allowed to be
amended: (Chit. Arch. 9 Edn 853.)
(«) Nor unlets an affidavit of the
truth of tuch plea be filed therewith.
This is a very general provision. The
specific allegations as to residence, &c.
formerly necessary in the affidavit,
must now be stated in the plea. It is
apprehended that the affidavit for the
future if annexed to the plea, for an-
nexed it may be, will be in a very gen-
eral form. The affidavit in use before
the enactment, which made it neces-
sary to state residence, &c., was to the
effect that the plea w.as "true in sub-
stance and in fact:" (see Maybury v.
Mudie, per Maule J. 4 C. B. 254;
Miinden v. the Duke of Brunswick, 4 C.
B. 321.) The origin of verification of
pleas of abatement seems to be Stat.
4 Annb cap. 16 s. 11. It is as follows
— •• No dilatory plea shall be received
in any Court of Record, unless the
party offering such plea do by affidavit
prove the truth thereof," &c. It was
held under this statute that the affida-
vit must prove the fact of the truth.
'* This is a true plea," instead of " This
plea is true," was held to be insuffi-
cient: .{Onslow v. Booth 2 Str. 705.)
If the affidavit be either false or insuf-
ficient, it is presumed that the plea
may still be set aside on motion:
(see Maybury v. Mudie, 5 D. & L. 360.)
The affidavit may, it seems, be made
either by defendant or a third party :
(soe King v. Turner, 1 Chit. R. 58 n.)
And if sworn before declaration filed
it would appear that plaintiff may
treat the plea as a nullity : [Bower y,
Kemp, 1 C. & J. 287 ; Johnson v. Pop.
plewell, 2 C. & J. 644 ; but see
Lang v. Comber, 4 East. 347. ) The
affidavit when made must be filed with
the plea. The annexing of the affida-
vit to the plea would be the most con-
venient mode, and in such case could
verify the contents of the plea without
entering into details. Besides, if annex-
ed to a plea intitled in the cause the
affidavit need not be so intitled. An affi-
davit is intitled in order that it may be
sufficiently certain in what cause it is
made to admit, if necessary, an indict-
ment for perjury. But if an affidavit
refer to the '« annexed plea," and the
annexed plea is "intitled in the cause,"
and verba relata videntur in esse, there-
fore it amounts to the same thing as if
the affidavit itself were intitled in the
cause, and an indictment for per-
jury would lie on such an affidavit:
(Prince v. Nicholson, per Heath,
J., 6 Taunt. 837; Richards v. Set-
per Thompson, C. B. 8 Price 197;
ree
Poole V. Pembrey, Bayley J. 1 Dowl.
P. C. 694.) It is usual notwithstand-
ing and perhaps safer to intitle the
affidavit though annexed: (Chit. Arch.
9 Edn. 852.) But if the affidavit be
intitled at all it must be correctly in-
titied : {Poole v. Pembrey et ux., 1
.n-*
S3. Ixxiv. IXXV.] SEVERAL CAUSES OP ACTION. 149
LXXIV. (/) The joint obligation, contract, or promise ^^/J'^^^^p^^w-.i^l^
may be given in evidence against any one or more of the join*' joint'ton?' ^^ r >
obligois or contractors, (r/) and shall have the same force and *'"*''*^^ ^
effect for the recovery of Judgment thereon as if it were only «" 'n evi-
♦he obligation, contract, or promise of the Defendant or Do- *8ain»t any
fendants actually suea. (A) tor, Ac.
LXXV. (0 Causes of action of whatever kind, provided m„» (h.c.)cou..g^<d A>-
they be by and agamst the same parties and in the same a. 1852,8.41. 8/3 ♦'//
K''l
fi
Dowl. P. C. 693 ; Phillips v. Hutchin-
m et al. 8 Dowl. P. C. 20 ; Clark v.
Martin, lb. 222 ; Shrimpton v. Carter,
3 Dowl. P. C, 648 ; Bland v. Dax, 15
L J. N. S., Q. B. 1 ; Fletcher v.
Itchmere, 2 Dowl. N. S. 848.) No re-
ference to a plea annexed will aid an
affidavit if otherwise incorrectly in-
titled : {Poole V. Pembrey et ux. 1 Dowl.
p. C. 693.) If the plea be filed with-
out an affidavit, or with an affidavit so
insufficient as to amount to no affida-
vit, plaintiff may treat the plea as a
nullity and sign judgment: (Chit.
Arch. 8 Edn. 819; lb. 9 Edn. 852.)
Still plaintiff may, if he so choose,
move td set aside the plea for irregu-
larity: {lb.) But it would seem that
an affidavit though sworn before de-
fendant's attorney, is not so far void
as to entitle plaintiff to sign judgment,
however warranted he might be in
moving to set the plea aside : {Hors-
fally. Mathewman, 3 M. & S. 164.)
(/) Sub.stantially a re-enactment of
Stat. a. C. 69 Geo. III. cap. 25, s. 2.
—Applied to County Ccurts. The ob-
ject of the enactment is to carry out
the principles involved in the preced-
ing section. If an action bo brought
against one or more of several joint con-
tractors, and there be no plea in abate-
ment setting up the non-joinder of the
others, the contract sued upon may,
notwithstanding the non-joinder of the
other co-contractors, be given in evi-
dence against such as are made de-
fendants. The practical effect of this
will be to allow plaintiff to f.ua and re-
cover bis claim from such co-contrnc-
tors as may be within the jurisdiction
of the Court, without at all endeavour-
ing to proceed against those who may
be without the jurisdiction.
(ff) For well-known reasons the en-
actment is confined to actions on con-
tract. In actions for torts the non-
joinder of wrong-doers is not attended
with the same results as in actions on
contracts : (see note y to 8. Ixx.)
(A) Formerly it was necessary for
a plaintiff suing upon "joint con-
tract," to proceed against all the con-
tractors, whether within or without the
jurisdiction. Those within the juris-
diction were served with process —
those without were proceeded against
to outlawry. The latter proceed-
ing is now in this respect alto-
gether dispensed with ; but it is still
necessary if all the joint-contractors be
within the jurisdiction of the Court
that all should be sued: (Cor belt v.
Calvin, 4 U. C. R. 123.) If there bo
a non-joinder or mis-joinder of co-con-
tractors, plaintiff cannot cure his pro-
ceedings either by a nolle prosequi or
non-suit as to some of the defendants.
A nonsuit ns to some is a nonsuit^s to
all. If plaintiff abandon his suit as to
some he abandons it as to all : (see
Commercial Bank v. Hughes et al. 4 U.
C. R. 167, Mticaulay J.)
(j) Taken from Eng. St. 15 & 16
Vic. cap. 76, s. 41. — Applied to County
Courts. See also County Court P. A.
8.9.
liii
. • .as
Mi
IS
m i
(!
■ t r
150 THE COMMON LAW PROCEDURE ACT. [s. Ixxv.
fauL™of«c"S^*^' 0) ""y ^® J°^°®*^ (^') ^" *^® ^*™^ ^'^''*' (0 l>«t this
. t
(y) ^nd i« /Ae «a7ne riffhts. From
this It is inferred that a plaintiff has
no right now more than before the
passing of this Act to join a cause of
action accruing to him in his individual
capacity with one accruing to him
in a representative character as execu-
tor, &c : (see generally Powley et al.
V. Newton, 6 Taunt. 458; Aahby v.
Aahby, 7 B. & C. 444 ; Webb et ux. v.
Cowdell, 14 M. & W. 820; Kitcenman
V. Skeel et al. 8 Ex. 49; Biffnelt v.
Ilarpur, 4 Ex. 778 : Ilavn et al. v.
Madden et al. E. T. 2 Vi J. M.S. R. & H.
Dijy. " Executor, &c." II. 1 ; Walker
V.' Court, H. T., 6 Wm. IV., MS.,
lb. ; Davis v. Davis, T. T., 1 & 2
Vic, MS., lb.; King v. Thorn,
1 T. R. 487 ; Smith v. Barrow, 2 T. R.
476 ; Pttrie v. Hannay, 3 T. R. 659 ;
Jennings v. Newman, 4 T. R. 347;
Ord v. Fenwick et al. 8 East. 1 04 ; lien-
shall V. ifoJer/*, 6 East. 150; Cowell
etux. T. Watts, 6 East. 405; Cowell
V. Partridge, 7 Price, 691.)
(A) May be Joined, &c. This is not
compulsory upon plaintiff. He is en-
abled but not compelled to join in the
eame suit several causes, &c. : (Lush's
Prac. 288,) but wher" two or more
actions are brought by and against the
sime parties for causes which might
have been joined an application may,at
the option of the defendant, be made
to the Court to consolidate the actions :
(Bug. Cham. Prac. 226J Causes of
action which arise in different coun-
ties though they may be joined in the
Superior Courts, and the venue laid
in either county, cannot (as we shall
Ehall have occasion to notice here-
after) be so joined in actions in the
County Courts.
{I) A plaintiff has not heretofore in
actions brought by him been confined
to one cause of action. It has always
been understood that a declaration
might consist of several counts, and
that each count might state a separate
cause of action. Thus it has been
quite allowable for the first count of a
declaration to be on a bill of exchange,
a second on a promissory note, a third
on an account stated, &o. : (Smith on
Action, 75.) Indeed, it hus been
lately allowed that several cnusos of
action might be joined in one and the
same count. Thus it has been usual
in one count to condense two or moro
of the following — goods sold, work
done, money lent, money pnid, money
had and received, &c. : (Steph. PI.
269.) But the rule allowing several
causes to be joined in the snme suit
was subject to the express limitation--
that demands only of a similar quality
or char icter, i.e. of the same kind could
be joined: {lb. 267.) Now the rule
has been extended by the abrogation
of the limitation, and causes of notion of
whatever kind may be joined, provided
they be by and again^t the same par-
ties and in the same ri<,<hts, &c. The
amendment made is only as to the
joinder of causes of action. It does Lot
affect the cause or gist of any single
action. It neither makes that a cause
which was not one before the act ; nor
renders that less a cause which has
been held to be one. It does not affect
the framing of declarations, except so
far that each separate cnuse of ac-
tion a separate count would t<eem to be
desirable, and for causes of action not
ejusdem generis, separate counts
would seem to be indispensable.—
If the counts can be stated short-
ly, as in the forms given in Sch.
B. to this Act, such or similar concise
forms should be adopted. It may be
that if the pleadings are given at length
instead ot abbreviated in the manner
illustrated in the schedule, no costs
will be allowed for the excess. In
cases where a plaintiff could or could
not before the passing of this Act de-
clare on the common counts for his
cause of action, it is apprehended the
law is still the same : (see McKee v.
Huron Dist. CI. 1 U. C. R. 368 ; Todd
V the Gore Bank, 1 U. C. R. 40; Mc
Makon V. Cofee, 1 U. C. R. 110; Ait-
kin V. Malcolm, 2 U. C. R. 134; J/c-
GuJJin V. Cayley, 2 U. C. R. 308 ; Du-
It liiii:
; *•
S,lxXV.] JOINDER OP SEVEEAL CAUSES OP ACTION.
shall not extend to replevin or ejectment ; (rn) and where two
or more of the causes or action so joined are local and arise in
different Counties, the venue may be laid in either of such
Counties, (»*) but the Court or a Judge shall have power to
Tjrevent the trial of different causes of action together, if such
trial would be inexpedient, (o) and in euch case the Court or
a Judge may order separate records to be made up and separate
trials to be had ; Provided always, that nothing herein contained
shall be construed to restrict or diminish the obligation or right
of a Plaintiff to include in one action all or any of the drawers.
151
tion may ho
Joined, snb-
jt'ct to cur-
tain condi-
tions.
Court iniiy
order hcjmi-
rate trlnld.
Proviso :
n8 to promiw-
sory notes,
bills, Ac.
cat V. Sweeney et al. M. T. 3 Vic. M.S.
B. & H. Dig. " Money had and re-
ceived," 4; Jioss el al. V. Tait, H. T.
7 Wm. IV. M.S. lb. Assumpsit, I. 5 ;
M'lUr V. 3Iunro,G O.S. 166 ; Armstrong
V Anderson, 4 U. C. R. 113; Kitson
V. Short, 4 U. C. R. 220; Fishery.
Ferris, 6 U. C. R. 534; Chapel v.
Bickes, 2 C. & M. 214 ; Spencer v. Par-
ry, 3 A. & E. 831 ; Baker v. Dewey,
1 B. & C. 704 ; Amos v. Temperley, 8
M. & W, 798; Paul v. Dod, 2 C. B.
800; Lamond v. Davall, 9 Q. B. 1030 ;
Hewings v. Tisdal, 1 Ex. 295 ; Middle-
ditch V. Ellis, 2 Ex. 623 ; Sweeting v.
Asplin, 7 M. & W. 165; Garrard y.
Coltrcl, 10 Q. B. 679; Lewis y. Camp-
bell, 8 C. B. 541 ; De Darnardyy. Har-
ding, 8 Ex. 822.)
(m) Replevin and ejectment cannot
be joined together, nor can either be
joined with any other form of ac-
tion. The remaining forms of action
in common use may be joined. They
are assumpsit case, covenant, debt,
detinue, trespass, trover. It may not
be amiss to refer to the authorities in
which the boundaries between these
forms of action have been defined and
preserved. Although no longer neces-
Bory to be strictly observed, yet for
many purposes the classifications and
distinctions are important to be kept
in view.
Assumpsit and Case — See Itoss et al.
V. Webster, 5 U. C. R. 570 ; Quin v.
School Trustees, 7 U.C.R. 130 ; Woods
V. Finnis et al. 7 Ex. 363; lioorman
y. Brown, 8 Q. B. 511 ; Courlnay t.
Earle, 10 C, B. 73.
Assumpsit and Covenant — See Schlen-
cker y. Moxey, 8 B. & G. 789 ; Gwi/nne
y. Davy, 1 M. & G. 857; Film'erx.
Burnby, 2 Scott. N. R. 689.
Assumpsit and Debt — See Beebe v.
Secord et al. Tay. U. C. R. 505.
Assumpsit and Trover — See Land et
al. y. Woodward, 5 U. C. R. 190; 0?--
ton V. Butler, 5 B. & A. 652.
Case and Debt — See Miles v. Bough.
3 Q. B. 843.
Case and Trespass — See Savignae v.
Roome, 6 T. R. 125 ; Reynolds y.
Clarke, 1 Str. 635 ; Turner et al. v.
Hawkins et al. 1 B. & P. 472 ; Mar-
tinez et al. y. Gerber, 3 M. & G. 88 ;
Lear y. Caldecott, 4Q. B. 123; Fay y.
Prentice, 1 C. B. 829 ; Firmstone v.
Wheeley, 2 D. & L. 203.
Covenant and Debt — See Harrison v.
Mathews, 2 Dowl. : . S. 318.
Debt and Detinue — might be joined
together even before the C. L. P. Act :
(see Smith on Action, 76.)
Supplementary to these forms of ac-
tion plaintiff may now claim either a
mandamus (s. cclxxv.) or an injunction
(s. cclxxxiii.)
(n) Venue when local and effect of
local venue upon plainiiff's proceed-
ings : (see notes /, k to ss. vi. vii. of
this Act.)
(o) Trial of local actions in counties
other than that where cour.se of action
arose : (see note k to s. vii. p. 8 of.
this work.)
k.. i'
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152
THE COMMON LAW PROCEDURE ACT.
[8. Ixxvi.
makers, ondorsers or acceptors of any Bill of Exchange or
^) & 7 A Promissory Notcy^/))
.9Ud.^ LXXVI. {q) In ony action brought by a mon and his wife
^•^' f:A XX Kn^cfii. p!on any cause of action, (r) accruing personally to the wife, («)
§ J'i. A. 1860,8.40. jjj jcspootof which they are necessarily co-Plaintiffs, (f) it shall
', , ^
( p) This proviso is now and not to
bo found in the Eng. stat. from which
the one here annotated is adopted. It
pointedly relatoa to our Stat. U. C. 6
Wm. IV. cap. 1, B. 2, which is as
follows:—'' It shall be lawful for the
holder of any bill of exchange or pro-
missory note hereafter to be made for
a sum not exceeding one hundred
pounds (restriction as to amount
removed by St. 18 & 14 Vic. cap.
59) instead of bringing separate suits
against the drawers, makers, endors-
ers, and acceptors of such bill or note,
to include all or any of the parties to
the said bill or note in one action, and
to proceed to judgment and execution
in the same manner as though all the
defendants were yo«n< contractors." If
several actions should, notwithstand-
ing this provision, be brought when
one only would suffice, costs in one
only shall be taxed . (see section 1 of
the same statute as amended by 18 &
14 Vic. cap. 59 ; also see R. & II. Dig.
"Costs," VI.)
(y) Token from Eng. St. 15 & 16
Vie. cap. 76 s. 40. — Applied to County
Courts. — Founded upon Ist Rep. C. L.
Com. : (see latter part of s. 19.) The
reasons for the changes there recom-
mended and hero carried out are clearly
stated. The Report proceeds, " With
respect to the joinder of a cause of ac-
tion arising to a husband in his own
right with one accruing to him in re-
spect of his wife, as the judgment in
the event of his recovering a verdict,
and the fund to which the judgment
would be applied, would bo the same,
we see no objection to permit the join-
der, in order to prevent the necessity
of bringing two actions in respect pos-
sibly of a cause of action arising out of
the same transaction ; as for instance
where an injury has been done to the
wife and the husband by the eamo
wrongful act."
(r) On any cause of action, &c, It
seems that these words are intended to
have a very general operation. «« Any
cause of action" applies to all causes
of action whether ex contractu or ex
delicto without distinction.
(«) Accruing personally to the wife
i. e. any cause of action accruing per-
sonally to the wife. These expres-
sions deviate widely from the provi-
sions of the Eng. Act, whence our en-
actment is taken. The Eng. Act is
restricted to actions brought by hus-
band and wife, "for an injury done to
the wife,*' (see argument of counsel in
Johnson et ux. v. Lucas, 1 El. & B. 669
in which argument the Court appar-
ently acquiesced.) In fact the language
used in the English Act admits of no
doubt. The English enactment is con-
fined exclusively to actions of tort.
Ours clearly extends to actions on con-
tract as well as tort. The example
given by the C.L.Com'rs (note y ante,)
seems to (avor the restriction made in
the English Act ; but the course pur-
sued by the Legislature of Canada is
evidently more in accordance with the
spirit of that Report.
(t) In respect to which they are neces-
sarily co-plaintiffs. When and for what
causes must husband and wife be << ne-
cessarily co-plaintiffs ?" The law upon
this subject conveniently divides itself
into two heads corresponding to the
two great divisions of actions under
one or other of which every cause of
action must be found, viz : — Actions
upon contract, and actions for torts.
Actions vpon contract. In general
the wife cannot join in any action
upon a contract made during marriage
for her work and labour, goods sold, or
money lent by her during that time :
S. IZZVi.] JOINDER OF HUSBAND AND WIFE. 158
be lawful for the husband to add thereto claims in his own casc* wbcre
fChit. PI. 7 Edn. I. 84 : Bidgood v.
Vfly et ux. 2 W. Bl. R. 1289;
Buckley f. Collier, 1 Salk. 114: Com.
Dig. " Baron and Feme," W. ; Weller
y. Baker, 2 Wils. 424 ; Chambers t.
ifonaldson et al. East. 472 ; Murphy
y. Bunt et al. 2 U. C. R. 284) for the
husband is entitled to her earnings,
nnd they shall not suryivo to her but
go to the personal representatives of
her husband, and she could have no
property in the money lent or the
goods sold : {lb,; Abbott etux. v. Blo-
field, Cro. Jac. 644 ; Weller v. Baker,
2 Wils. 424 ; Bridgood v. Way et uz.
2 W. Bl. Rep. 1237; Buckley v.
Collier, Cr.rth. 261 ; Crowhurst et ux.
y Laverock, 8 Ex. 208 ; Dengate et ux,
y, Gardiner, per Abinger C.B. 4 M. &
>V. 5.) But when the wife can be con-
sidered as the mentoriouB cause of ac-
tion, as if a bond or other contract
under seal, or a promissory note be
made to her separately or with her
husband : {lb. ; Howell v. Maine, 3
Lev. 403; Alerberry v. Walby, Str.
230 ; Ankerstein v. Clarke et al. 4 T.
B. 616 ; Co. Lit. 851 a, note t, 804 ;
PkUliskirk v. Pluekwell, 2 M. & S.
393 : JIarcourt et al. v. Wyman, 3 Q.
B. 817) ; or if she bestow her personal
labour, skill, on cur>ng a wound, &c. :
{Fountain v. Smith, Z Sid. 128 ; Brash-
ford V. Buckingham et ux. Cro. Jac.
77; Weller v. Baker, 2 Wils. 424;
Bac. Abr. "Baron and Feme," K.)
She may be joined with her husband,
or he may sue alone : (Chit. PI. 7
Edn. Vol. I. 34.) In general, where-
cver the cause of action would survive
to the wife, she and her husband ought
to be joined in the action : (Chit. Arch.
8 Edn. 1095; lb. 9 Edn. 1173; see
also Outers etux. v. Madeley,Q'ii\.k W.
422.) Where the wife is joined in the
action in any of these cases, the decla-
tion must distinctly declare her interest
and show in what respect she is the
meritorious cause of action and there
can be no intendment to this effect:
{Bidgood v. Way et ux. 2 W. Bl.
B. 1236 ; Philliskirk y. Pluckivell, 2
M. & S. 896 ; Serves et ux. y. Dodd, 2
N. R. 405 ; Hopkins et ux. y. Logan,
7 Dowl. P. C. 300 ; Shuberg et ux. y.
Cornwall, M. T. 5 Vic. M. S. R.
& H. Dig. "Arrest of Judgment,"
6.) Mai after verdict everything will
be intended in support cf the declara-
tion : {Howe et ux. v. Thompson, M.
T. 6 Vic. M.S. R. & H. Dig. "Arrest
of Judgment," 13.) Even since the
English C. L. P Acts it has been held
that a declaration by husband and wife
on an account stated must sho>v that
the account was concerning matters
over which the wife had an interest :
{Johnson et ux. y. Lucas, 1 El. & B.
659.)
Actions for torts. Torts may be eith-
er to the person or the property per-
sonal or real of a party. The wife
having no legal interest in the person
or property of her husband, cannot in
general join with him in any action for
any injury to them : (Chit. PI. 7 Edn.
I. 82 ; Lea v. Telfer, 1 C. & P. 147 ;
Doe d. Palmer v. Andrews, 4 Bing.
384.) For injuries to the person or to
the personal or real property of the
wife committed before marriage when
the cause of action would survive to
the wife, as a general ru!e she must
join in the action : {lb. ; Milner v.
Milner, 3 T. R. 627 ; Miichinson v.
Hewson, 7 T. R. 348, Com. Dig. " Ba-
ron and Feme," V.) Torts according
to their nature may be divided in the
manner above mentioned —
i. Injuries to the person of the wife.
ii. " to the personal property
of the wife.
ill. " to the real property of
the wife.
i. Injuries to the person of the wife.
If committed during coverture by bat-
tery, slander, &c. both husband and
wife must join: (Chit. PI. 7 Edn. I.
82; Baggett v. Frier, 11 East. 301;
Chambers v. Donaldson, 9 East. 471.)
For words spoken of the wife not ac-
tionable of themselves but which occa-
sion some special damage to tha hus-
band, he must sue alone : {lb. ; Har-
i!mg
i -3?
?5
r-*
i
( J
154 THE COMMON LAW PROCEDURE ACT. [g. Ixxyi,
a huBband rlfflit, (u) and scDurato actions brouj^ht in rospoct of such cluimi
nnd wllonro o J \ ^ ......... . -r ■, i ..... _
co-piuiaUir<. may bo
Provided,
ti) ana scpuruio uuiiuua uiuu^ub lu i«;i:]puut VI Hucn cimmi
consolidated, if the Court or a Judge shall tl ink fit ; (»;)
3d, that in case of the death of either Plaintifif, (uj) such
wood V. llmlwick, 2 Ktjb, .']87, pi. 03 ;
Coleman etux.v. Iliircoiirt, 1 Lev. 140;
liimell V. CorM, 1 Sulk, 111);
Jialdwin v. Flower, 8 Mod. 120;
Selwyii N. P. 10 K'ln. 2i)l.) If loss
of service bo the special ildiniige ul-
legej, tlio wife slioulJ aot bo joineil.
Whatever might bo the imtiirc of the
wife's service tlie profits of it would
accrue to the husband: {Den'jaiitlux.
V. Gardiner, 4 M. & VV. 5.)
ii. Injuries to the pemonal jtrnpTtt/ of
the wife. Wherever the ciiuso of tiction
hivd only its inception bcforo the mar-
riage but its completion aftcrtvards, as
in case of trover before marriage and
conversion during marriage, or of rent
due before marriage and a rescue af-
terwards, husband or wife may join or
may sever in detinue trover or tres-
pass: (Chit. PI. 7 Edn. 83; Bac. Abr.
Detinue; Bui. N. P. 53, 2 Saund, 47
b ; Blackborne v. Oreaccf, 2 Lev. 107,
Com. Dig. " Baron and Feme," X ;
Ayling et ux. v. Whicher, A. & E.
259.) Where the cause of action has
its inception as well as completion af/er
marriage, the husbanl must sue alone
— the legal interest in personalty being
rested by tlie marriage in him: (/i.
2 Siiund. 47 h. i. ; Buckley v. Collier,
Salk. 114 ; Bidsfood v. 'Wat), 2 W.
Bl. Rop. 1230; Spooner v. Brewster,
2C. & P. 34.)
iii. Injuries (o rail properlif of wife.
— In real actions for the recovery of
the land of the wife, both liusband
and wife must join: (Chit. PI. 7 Edn.
I. 81 ; Odill \.r//rrill,l IUilst.2I, Com.
Dig. ; " Biiron & Feme," V. Selwvn's
N. P. 10 Ein. 288.) But under'tho
old form of ejectment the husband
alone mii;ht be lessor of the plaintitf.
{Doe d. Eberts v. Montreuil, G IJ. C, II.
515 ; Doe d. Pden-.nn v. Cronk, 5 U. C.
R. 130.) The h isbmd alone nmy, it
secm-s still be plaintiff: [Ilnhnes v.
Ilennejan, 28 L.T. Rep. 25.) So it has
been held that an action for damages
to the realty though in the possession
of the wife was properly brought in
the name of tho husband: (Jon a v
Spenre, 1 U. C. U. 307.)
(m) Claims in his own right. This is
as gcnoral and oomprohcnsive an ex-
pression as could well be used. It in.
eludes all manner of claims whether
upon contract or for tort. One effect
of tho enactment will bo to do awar
with the difficulty that presented itself
to tho Court in /Jugate v. Gardiner U
M. & W. G.) This was an action by
husband and wife for slanderous wordg
spoken of the wife. Special damage
was laid for loss of service by the wife
in consequence thereof. The Court
hold that as the results of tho service
would belong only to the husband and
not to tho wife, he only could sun for
such special damage. Thus it was de-
cided in effect that for two causes of
action clo.sely united and arising < jt
of one and the samo transaction, vwo
separate actions wore necessary, one
for tho slander per se, in which action
both husband and wife should join-
the other for tho consequence of tho
slander in loss of service, &o., in which
action tho husband alone could sue:
(.see also Russell v. Come, 1 Salk. 1 19
Com. Dig. Pleader 2 A. 1 .) Both these
or Himil.ir causes of action might now
bo joined in the samo action under
tho section hero annotated.
(v) Mode of consolidation see Bag
Cham. P. 220.
(«•) I. Contracts.
If the husband survive, there is a
material distinction to be observed
re!^llecting chattels real and choses
in arlion. The husband is entitled
to the chattels real by survivor-
ship and to all rent, &c., accruing
during the coverture ; he is also
entitled to all chattels given to the wife
during coverture in her own right,
tliou^h not to her in autre droit.
But mere choscs in action or contracts
g. Ixxvii.] TRIALS WITHOUT riiEADINGS. 155
suit, so far only as relates to the causes of action, if any, which Proviw.
do uot survive, shall abate, (jc)
m
And for the dctorniination of questions raised by the consent
of the parties without pleading; Ho it enacted as follows : {i/)^
liXXVII. (z) Where the parties to an action (a) arc (,i;,,,. >>>. r.) «<>*«^ •$|*"l- ^
a(Treed (/>) as to the question or questions of fact to be decided A.\^bM,iA2. if^-o.
"^
P*F
I
ad-
M. 7
nndo witli tlio wife before coverture do
not HUivivo to the husband, and he
niust, to recover the snme, sue as
uiinistrator of his wife: (Chit. PI
1. 86.)
It ilio «'i/e survive, she is entitled to
nil chattels real wliich her husband
had in her right, and which he did not
(liBDi su of in his life time, and to ar-
iciirs or rent, &c., which became due
ciaring the coverture upon her antece-
dent demise, or upon their joint de-
mise during the coverture to which she
assents after his death ; and to all
arrears of rent and other cho»es in ac-
tion to which she was entitled before
the coverture, and which the husband
did not reduce into actual possession :
lib. 3() 37.)
^ II. Torfs,
If the husband survive, he may main-
tain an action of trespas.a, &c., for any
irjury in respect to the person or pro-
perty of the wife, for which he might
have sued alone during coverture.
Thus he might maintain an action after
the wife's death for any battery or per-
sonal tort to her, which occasioned
him a particular injury, as the loss of
her society and assistance in domestic
offiiir.x, or a pecuniary expense, or for
any injury to the land of the wife when
living. If the wife die ponding an ac-
iion by her husband and herself for
any tort committed either before or
during coverture and to wiiich action
she is a necessary party, the suit will
abate : (Chit. IM. 7 Edn. I. 84.)
If the tcife survive, any action for a
tort committed to hei personally, or
to her goods, or real property before
marriage, or to her personal or real
property during coverture, will survive
to her: (76.85.)
(t) As to abatement of actions see
83. ccviii.-ccxiii. inclusive of this Act.
The above proviso may occasion some
difficulty in the taxation of costs. When
the plaintitf or plaintiffs join several
causes of action in the same suit, his
or their declaration ought to contain
several distinct counts, one at least for
each cause of action. This, in the
event of further proceedings, will in
all probability give rise to sevtral dis-
tinct issues. Then to apply s. cxxx.
of this Act, " The costs of any issue
either of fact or of law shall follow the
finding or judgment on such issue, and
be adjudged to the successful party,
whatever may be the result of the other
issue or issues:'^ see also N. R. 51.
(y) The enactments following from
Ixxvii.-lxxxiii. inclusive are founded
upon Ist Rop. of C. L. Coni'rs (s. 22,)
and are in effect an extension of the
principles contained in St. U. C. 7 Wm.
IV. cap. 3 8. 17, which is a transcript
of Etig. St. 8 & 4 Wm. IV. cap. 42 s.
25. Parties to an action could only
avail themselves of this statute '• after
issue joined." Besides, the only provi-
sion thereby made, is for taking the
opinion of the Court was upon a point
of law without at all proceeding or in-
curring the expense of proceeding to a
trial of the facts.
(z) Adopted from Eng. St. 15 & 16
Vic. cap. 70 s. 42. — Applied to County
Courts.
(a) To an action, &c. seems to apply
to all descriptions of action whether ex
contractu or ex delicto.
{b) Are agreed. An agreement is
defined to be ^^aggregatio mentium,"
or the union of two or more minds
in a thing done or to be done,
and is therefore not to be understood
.:::5i
-I
^
?^l r
%
'.1
\
f
t
h
I I'
, . 1
150
THE COMMON LAW PROCEDUHE ACT.
[«• Ixxvii.
''''r*«"'u'"m between them, («•) thoy may, (d) after writ issued nnd before
•griio upon , 11 r Ti -^'VMu
•iiimiuxor Jud;i;mcnt, ("*■) by consent nnd order of n .Judge, (/) (which
jt. ' order any Judge shuli hnvo power to make upon being satisfied
that the parties have a hand Jhfr interest in the decision of sm-i,
question or questions, nnd that the same is or are fit to bo
tried,) (.y) proceed to the trial of any question or questions of
in the loose incorrect 8cn«c in wliich
it ia SDUietimeti UHcilnH synonym nii.<i to
promise or undertaking: (IMowd.
5 a, a, 17 a.) If eitlior party dis-
sent from tlie course pointed out by
tlio enactment here annotated, tliere
can bo no •' agreement." Compulsory
references by onler of a judge are in
some cases permitted : see s. Ixxxiv.
et acq. Qu. Would the death of cither
party before judgment revoke tlio spe-
cial case : (see Jamea et nl. v. Crane el
al. 15 M. & W. 879, and s. ccviii. of
this Act.)
(c) Provision is made for the dis-
posal of questions of law by s. Ixxxi.
of this Act.
(rf) •* Min/," I. «. The parties when
agreed upon the question or questions
to be decided between them have tlio
option but are not compelled to proceed
under this section. Should either
party object, the proceedings must be
conducted in the ordinary manner.
(e) After writinsued and Itefore judg-
ment. — Qu. Is it necessary for the writ
to be served or for defendant to appear
to the action before the parties can
agree in the manner contemplated by
this section ? Strictly speaking, de-
fendant cannot be a party to nn action
at law unless he has appeared. It is
difficult to see how defendant can be-
fore service of the writ make any ap-
plication in respect of the writ. Until
service of the writ, there is nothing to
show that the party applying is the
party summoned. This would seem to
hold good et*pecinlly as to voluntary
references. Compulsory references
are placed upon a different footing.
With respect to them the reference may
be made "at any time after the issuing
of the writ" : (see s. Ixxxiv. of this
Act.)
(/) horma—X. Affidavit to obtnin
judge'ii order: (Chit. F. 7 1-Mn. 4115
li. Summons thereon: (/i dnii \
3. Onler: {Ih. i\\%.) ' ^•>
4. hnne nn<l subsennont nm
ccedings : (J/>. 48!) ) '
(,V) 1. e. The question or quontiono nf
fact to bo decided, &c. The judpe bo-
fore making the order must be Hiuis'ficj
that the parties haven bovnfide inter-
est in the question or questions to be
decided. The manifest object being to
prevent the time of the ('ourt beinj?
employed in the determination of unnib-
ling.or other transactions of a like cha-
racter, in which neither party can bo
fiiiiX to have an actual and bona jiiie
interest. « -Courts of justice are coiistti-
tuted for the purpose of deciding redllu
existing questions of right between lite
parties, and are not bound to answer
whatever impertinent questions parties
think proper to nsk them in the form
of awageratlaw:" {I/enkinv. (iueras
Lord Ellenborough. 12 Kast. 247 ; !>eo
nUo We/ lealegv. Withers, i El.&B.T.JO.)
Judges in England have repeatedly or-
dered wager actions to bo struck out
of the docket nnd have in the most po-
sitive terms refused to try such actions:
(see Ifenkin v. Guerss and limwn v!
Leeson, 2 II. B. 43.) The genenil law
applicable to wager cases will be found
compendiously stated in Chit. Contr 8
Am. Edn. 43.i. It would oppcnr that
it is not sufficient for the parties to
have some interest in the question,
the question itself must be one rcnlly
nnd bona fide in controversy between
tehm : (see Doe d. Jhintze v. Dun-
tze, G C. B. 100.) This, like nppli-
cations under the Interpleader Att:^,
is discretionary not compulsory upon
the Court : (see Belcher v. Smith, 2 M.
& Sc. 184.)
].:<!: .:
•■LhMmIIvi
Ixxviii.]
TRIALS WITHOUT PLEADINQS.
157
fact without formiil ploadingfl, (A) and such question or quoa- ''"">> "^"•'t-
tions may bo stated for trial in an issue in tho form contained "?7'-",''
ill the Schedule (A) to this Act annexed, marked No. S, (i)i»>«ro«ii.
nnd such issue may bo entered for triiil, and tried accordingly,
ill tho same manner as any issue joined i.i an ordinary action, (J)
and the proceedings in 8U> h action and issue shall bo under
and Hubjoct to the ordinary control and jurisdiction of the Court,
^g in other actions. (A-)
LXXVIII. (/) Tho parties may, if they think fit, enter into i^'^nt.f ^r2^^
an ii'TCcmcut in writing, (m) which shall oo embodied in the . § /jfj —
jiuid or any subsequent order, (/t) that upon the finding of tho A.fNfi2,i.'4a.'
(A) The (li!<pcnff!ng with formal plead-
ingx will be n enving of costM to tlie
pnrt'cs, besides being one mode of
Bvoiiling tlie rislc of defective pleading.
In A ctiHO Huch as intended by this en-
actment, in which both parties are
Agreed as "to the question or ques-
tions to bo decided," there cannot bo
any necessity for formal pleadings.
The design of formal pleadings is to
accomplish whst the parties here do by
consent, viz., dcvelope the subject of
decision by the production of an issue
or issues: (Steph. IM. 124.)
((') The form of issue given in the
SclieJule is nn exact copy of that in
tiio English enactment. It, too, is the
snroc precisely ns that used in Eng. St.
8 & Vic.cap. 1 00,8. 4, and is not unlike
that miuic use of in interpleader cases.
One party affirms and the other denies,
and it is for the jury to decide between
tlicm. lU'twcen tho proceedings to be
hnd pursuiuit to this enactment and
those necessary in interpleader cases
there is a very strong resemblance :
(sec Prov. St. 7 Vic. cap. 30, which is
a transcript of Eng. St. 1 & 2 Wm. IV.
cap. 58.) In some respects tho deci-
sions under the Interpleader practice
will be in point under this new prac-
tice. For tho decisions under the Eng-
lish Interpleader Act see Chit. Arch.
8 Eiln. 1211c/ scq. ; lb. 9 Edn. 1307 ;
Tidd's N. P. 270. For the decisions
under our Interpleader Act see R. &
H. Dig. •• Interpleader." In framing
the special case the parties should be
careful to state facts as contrndistin-
guishod from mere evidence : iPalmer
y. Johnson, 2 Wils. 1G8.)
{J\ I. e. Under us. cliT. ond civ. of
this Act.
(A) It is presumed that the powers
of the presiding judge to deprive
plaintiff of costs i.nd to order full
cost8,&c. : (cee 43 Eliz.cap.G ; 21 Jac.
I. cap. 1« 8. 10 ; 22 & 23 Car. II. cop.
9 J 8 Vic.cap. 18, s. 69,) are exercisable
under the provisions here annotated.
Tho power to order execution forth-
with or at a future day is aUo a power
incident to the presiding judge : (see s.
clxxxii. of this Act.)
(/) Taken from Eng. St. 15 & 10
Vic. cap. 7G s. 43. — Applied to County
Courts. The enactment appears to
apply only to notions where the claim
is ibr debt or damages, t. e. some claim
for which compensation in money is
demanded.
(m) This provision is by no means
compulsory. It is optional for either
party to dissent. See note b to pre-
ceeding section (Ixxvii.) Form of
agreement see Chit. F. 7 Edn. 437.
(h) Not necessory it seems to em-
body the ngvecmcnt in the issue or Nisi
Prius record. Though it is usual in
feigned issues nonituilly at all events
for the parties to fi.x;L>ume sum of money
which is made to depend upon the
finding of the jury for one party or the
other: (see Chit. PI. 7 Edn. II. 172.)
These feigned issues alleging a pro-
tended wa^cr are still legal: (see
r5
t,
^51
€3
158
THE COMMON LAW PROCEDURE ACT.
[s. Ixxix.
'f •'
T
witer"i'i?to '^"'"y *" ^^^ affirmative or negative of such issue or issues, a
agreement gum ^^f money to be fixed by the parties, (o) or to be ascertained
nay or not. bv the Jurv upon the issue or issues and evidence submitted to
accordlnt; to •' . .
the result them, {p) shall be paid by one of such parties to the other of
them, eiti.er with or without the costs of the action, (j)
Cryt..$ia.i -f^ i^PP- ^- ^'^ LXXIX. (r) Upon the finding of the Jury upon any such
u.e.aA.. jt'i Aassis-W. issue, Judgment may be entered for any such sum as shall be
I »
^fiZ.
judgme J SO agreed, or ascertained as aforesaid, with or without costs, as
tered and" the casc may be, (s) and execution may issue upon such Judg-
fslued. &"., nient forthwith, (0 unless otherwise agreed, (u) or unless the
fl^hig*!* Court or a Judge shall otherwise order, for the purpose of
* giving either party an opportunity for moving to set aside the
verdict or for a new trial, (y)
Luard et al. v. Butcher et al. 2 C. B.
858.)
io) To be fixed by the parties, &c.
'he principle of this provision ia
not uew. It is the same that allows
parties in on agreement to fix a cer-
tain sum to be paid by one party to
the other as •' liquidated damages and
not as a penalty," upon default made
in the doing of something stipulated
to be done, &c. : see note/ to s. cxxii.
of this Act.
(p) T lie venue in this event would
be tarn triandum quam inquirendum :
(see Chit. F. 6 Edn. 74.)
(9 ) Either with or without costs of the
action. — Fhis expression must mean
that the ai^reement to be entered into
between the parties may as regards the
costs of the action stipulate either that
they shall or shall not follow the result
of the trial. In case no agreement
be entered into as to the co?ts they will
follow the event: (s. Ixxxiii.) In a ppe-
cial case stated under the Eng. C. L. P.
Act, 1852, s. 4, (s. Ixxxi. of ours) the
plaintiff claiming two sets of fix-
tures, the Court gave judgment in
his favour for the one and for the
defendnTit as to the other, and no
agreement having been made be-
tween the parties as to costs, ruled
that the plaintiff was entitled to the
general costs of the proceedings, nnd
the defendant to whatever costs he
could satisfy the Master had been in-
curred solely in respect of that part of
the case in which he succeeded. The
defendant subsequently brought error
on the judgment, but so far from suc-
ceeding the Court of Error reversed
that portion of the judgment which waa
in his ^avor and gave judgment for the
plaintiff for the whole, but with no di-
rection as to the costs which the Court
below had directed to be taxed to tho
defendant. Held that the Court below
had no power after the partial reversal
of their judgment to order those costs
to be taxed to the defendant : [Elliott
V. Bishop, 33 L. & Eq. 391.)
(r) Taken from Eng. St. 15 & 16
Vic. cap. 76 s. 44. — Applied to County
Courts.
(a) See the forms of judgment pre-
pared to meet these several cases,
Chit. F. 7 Edn. 440.
(t) The form of execution need not
in anywise vary from forms in commoa
use. As to executions generally, see
s. clxxxii. et seq,
(m) As to when parties can be said
to have agreed, see note b to s. Ixxvii.
[v) One object that a judge might
have in refusing to allow execution
forthwith, would bo "to allow either
party an opportunity for moving to set
aside the verdict or for a new trial." If
I
8S
. Ixxx. Ixxxi.]
QUESTIONS OP LATf.
159
:i
he
LXXX. (tv) The proceedings upon any such issue (a:) may ^j;Jf ^^ ^)<?<m r^. -^
be recorded at the instance of either party ; (i/) and the Judg- ji|J^52,»;"j^" "^ j';^!,*' *"
meat, whether actually recorded or not, shall have the same "»> ^b re
effect as any other Judgment in a contested action. (2)
Kffect of
Judgment.
LXXXI. (a) The parties may, (ft) after writ issued, and i^^^c/L. v! *^<^ ^-^^/f**
before Judgment, (c) by consent and b^ order of a Judge, (rf) ^-^^^^'^;^'' '^' ^'- ^f' ^ '
state any question or questions of law (e) in a special oaseoi^^eeupcna ^^ v-
the cause were tried out of term, then
the motiou for a new trial or to set
aside the verdict would require to be
with'n the first four days of the term
following such trial ; (N. R. 40; Chit.
Arch. 8 Edn. 1440 R. & II. Dig. " New
Trial," II.) The Courts have refused
to allow the motion after the expiration
of the four days : (see Orser v. Stick-
ler, Tay. U. C. R. 46.) The new rule
is most express to the same effect —
«' No motion for a new trial, &c., shall
be allowed, &c., after the expiration,
&c. :" (N. R. 40.) The analogy be-
tween proceedings here mentioned and
an arbitration fails, because an arbi-
trator has no power to order a verdict
to be entered up unless expressly
authorized. In ordinary cases a pro-
vision is made that the arbitrator shall
be at liberty to enter a verdict, and
that no error shall be brought. If the
clause be omitted in the submission, it
will be presumed that the parties did
not intend to give that authority to
the arbitrator nor any power beyond
that of proceeding by attachment for
Eon-performance of the award : (Hut-
chinson V. Blackwell, per Tindal C. J.
8 Bing. 333.)
(w) Taken from Eng. St. 15 & 16
Vic. cap. 76 s. 45. — Applied to County
Courts.
(2) Our Interpleader Act enacts
" that all rules, matters, orders,
and decisicns to be made and
done in pursuance of this act, except
only the affidavits to be filed, may to-
getherwith the declaration in the cause
(if any) be entered of record, &c., to
the end that the same may be evidence
in future times if required, and to
secure and enforce the payment of
costs directed by any such rule or or-
der, &c. :" (7 Vic. cap. 30 s. 7.)
(y) Where a judgment on an inter-
pleader issue was entered up in the
ordinary manner instead of having be^n
recorded as the Act directs, such judg-
ment was set aside : (see Dickenson v.
Eyre, 7 Dowl. P. C. 721.)
(z) Same effect as any other judgment,
&c. — When recorded in the County Re-
gistry Office, it would, it is presumed,
bind lands, though judgments in inter-
pleader cases have not that effect : (see
7 Vic. cap. 80 s. 7.) Qu. Would an
appeal from such a judgment lie to the
Court of Error and Appeal under s. 40
of 12 Vic. cap. 53: (see Snook v.
Mattock, 5 A. & E. 239 ; King v. Sim-
monds et at. 7 Q. B. 298 ; Thorpe v.
riowden, 2 Ex. 387.)
(a) Taken from Eng. St. 15 & 16
Vic. cap. 7G s. 46. — Applied to County
Courts.
(b) See note d to s. Ixxvii.
(c) See note e to same section,
(rf) /brms— Order, &c.. Chit. F. 7
Edn. 441. No special case could, un-
der the old practice, be set down with-
out leave : {Kennet et al. v. G. W. Rail-
way Co., 2 D. & L. 116.)
(e) Questions of fact may without
pleadings be stated in the form of a
special case under s. Ixxvii. St. U. C.
7 Wm. IV. cap. 3 s. 17, though it pro-
vided for the taking of the opinion of
the Court in the form of a special case
upon questions of law, yet only pro-
mitted the application «' after issue
joined" : (see note z to s. Ixxvii ) It
is provided by the Eng. C. L. P. Act
1854 that the parties may by consent
leave the decision of questions of
fact to the Court : (17 & 18 Vic. cap.
\
160
without
pleading.
THE COMMON LAW PROCEDURE ACT. [s. \xxxi.
(/) for the opinion of the Court, without any pleadings, (g)
II
125, 8. 1.) Our Legislature has not
thought proper to follow this exam-
ple. Questions submitted to the
Court under this enactment roust
be of law unmixed with fact. If
matters of fact necessarily enter into
the consideration of tho questions, the
Court may order the case to go before
a jury : (see Aldridge v. the G. W.
Railway Co. 1 Dowl. N. S. 247 ; also
see Brockbank v. Anderson et al, 13 L.
J. C. Ps 102.) In one case the Court
decided questions of fact "without
thereby intending to create a prece-
dent :" {Price et al v. Qunrrell et al, 12
A. & E. 784.) In another case the
Court granted a rule nisi for defendant
to admit certain facts necessary to raise
the questions stated in a special case :
{Buckle V. Mollis, 2 Chit. R.398.) The
Court will not go behind a special case
in order to inquire what took place bo-
fore the case was signed : (see Pike v.
Carter, per Best C. J. 3 Bing. 87.)
Where therefore in a special case after
trial under the old practice, judgment
was given for the defendant on a sup-
posed state of facts collected by the
Court from a document appended to
the case, but in truth the reverse of the
real facts, the Court refused to stay
proceedings or reconsider the case
without defendant's consent. They
persisted in the refusal, notwithstand-
ing it was made to appear that a state-
ment of the real facts was contained in
the case, when agreed on by the de-
fendants junior counsel and engrossed
and signed by the plaintiff's leading
counsel, but afterwards struck out by
the plaintiff 's counsel because not en-
umerated in a collection of facts agreed
on at the trial of the cause with a view
t J the special case : [lb.) Unless ex-
pressly authorised by the parties the
Court will not, infer the existence of
material facts not stated from other
facts stated in the special case : (Doed.
Taylor et al. v. Criap, 8 A.& E.779.) If
an award be part of the case, the Court
will not it seems allow facts to be
argued which are not stated on the
face of the award : {Tayler v. Marling,
4Jur. 1161.)
(/) Form of case, see Chit. F. 7
Edn. 443; see also a case set out' at
length in Wellesley v. Withers, 4 El. ^
B. 750. The case should, it is appre-
hended, be signed ; especially, as it
may bo stated immediately "after
writ" and when there are no pleadings
in the cause. Upon the authority of
the case of Price v. Quarrell, 6 Jur
G04, 11 Law J. N.S. Q.B. 84, it is laid
down in Chit. Arch. 8 Edn. 442
that " it is not absolutely necessary
that the case should be signed by
counsel ; but that anything which
shows consent to a case as stated is
suificient." The authority cited does
not fully bear out the dictum. In the
Jurist Lord Denman is reported as
having said " The practice is that any-
thing which shows consent to a case
&o.;" but in the Law Journal his words
are very differently reported, "I am
informed that according to the prac-
tice anything which evinces the consent
of counsel to the case is sufficient,' &c
The signature of plaintiflFin person who
intended to argue his own case,
though he had a counsel retained, hag
been held sufficient : ( Udney v. East
India Co. 1 3 C. B. 732. ) The Common
Pleas in one case refused to receive a
special case from Chancery without the
signature of counsel, though signed by
the Master in Chancery, who settled
the case : {Ray v. Champney, 3 Dowl.
P. C. 105.) A verdict was taken by
plaintiff subject to a special case to be
prepared by a barrister. The case was
accordingly prepared but defendant
refused to procure the signature of his
counsel thereto. A rule was thereupon
issued that unless defendant within a
week caused the case to be settled and
signed by counsel, ihepostea should be
delivered to plaintiff: {Doed, Phillips
V. Rollings, 2 C. B. 842 ; also see Jack-
son et al. V. Hall, 8 Taunt. 421.) Under
somewhat similar circumstances the
Court allowed a caso to be set down
without the signature of defendant's
counsel : ( Price v. Quarrell et al. 6 Jur.
604, 11 L. J. Q. B. 84.)
(</) It is clear that this enactment
only enables the parties to state a
Sn
iil
S.lxXXii] AGREEMENT AS TO DAMAGES. '''" Ifll
LXXXII. (A) The parties may, if they think fit, enter into^WyO^c) orrv.$l«i 4
an agreement in writing, (i) which shall be embodied in the A.iwit.*?. **'*' ^^.^,* *
aaid or any subsequent order, that upon the Judgment of the And m^
Court being given in the affirmative or negative of the question or not to
nr questions of law raised by such special case, a sum of aooordiog to
^ , .. - , , , .. X7N 1 • 11 .the decldon
money, (j ) "xed by the parties^ (k) or to be ascertamed by the upon suoh
Court or in such manner as the Court may direct, shall be paid
by one of such parties to the other of them, either with or
without costs of the action, (l) and the Judgment of the Court
may be entered for such sum as shall be so fixed or ascer-
eaM, Ao.
question without pleadings -whicU they
might hare raised with pleadings, but
does not entitle them to ask a question
on speculation : ( Wellealey v. Withers,
per Parke B. 4 El. & B. 758.) The
Court, it seems, may refuse to answer
a question stated for their opinion
under this enactment unless it relate to
something for which an action will lie :
(per Parke B. /6. ) There would be no
object in requiring the case to be stated
"after writ," unless the enactment
were limited to a question to which a
writ might apply : (per Cresswell J.
ib.) Where under the old practice a
judge at Nisi Prius refused to try a
wager case on an appeal to the full
Court against bis decision, it was
supported: {Henkins v. Ouerss, 12
East. 247.) Lord Loughborough re-
marked that although there was noth-
ing immoral in the subject of the wager,
yet he considered the proceeding as an
extremely impudent attempt to compel
the Court to give an opinion upon an
abstract question of law, not arising
ou^ of pre-existing ciroumstanoes in
which the parties had an interest : {lb.
p.248 ; see also Doed. Duntzey.Duntzfi
6 C. B. 100.) Where it is intendo^ to
take the opinion of a Court upo« points
of law it would appear to bf» necessary
for the parties to admit o« facts neces-
sary to raise these points. The Courts
have refused to bear special cases
framed under Eng. St. 3 & 4 Wra. IV.
cap. 42 s. 25 (of which our 7 Wm. IV.
cap. 8 s. 17 is a transcript) where it
was expressed therein that the Court
should draw all necessary inferences M
might be done by a jury, with liberty
to either party to turn the special case
into a special verdict : /see Engatrom
▼. Brightman, 5 C. B. 419 ; Cocks y,
Purday, 6 C. B. 69.) If the parties
desire to escape the costs of a trial of
issues upon pleadings, their proper
course is to state a case under s. Ixxvii,
of this Act. An amendment of the
case stated may be allowed when ne-
cessary : (see Wellesley v. Withers, per
Jervis C J. 4 El. & B. 759.)
{h) Taken from Eng. Stat. 15 & 16
Vic. cap. 76 s. 47.— Applied to County
Courts.
(t) Form of agreement s«« Chit. P ,
7 Edn. 437 ; see further *>ote m to 8.
Ixxviii. and note 6 to f» Ixxviii.
(J ) The judgmei'x contemplated by
this enactment w»pears to have refer-
ence to monev'iemands or demands for
which satisfaction in money is sought,
and not +-» actions for the recovery of
propc^yt "al or personal. Only ac-
tiovd which operate in personam are
embraced ; actions in rem and proceed-
ings auxilliary thereto are not con-
templated. If the enactment had
gone further it would be in accordance
with the report of the Commissioners,
who recommended that the judgment
should "be moulded to meet the cir-
cumstances of each particular case " :
(see 1st Rep. s. 22.)
(k) See note to s. Ixxviii.
(/) If there be no directions as to
costs they will abide the event of the
suit : (s. Ixxxiii.)
^ i i
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S I, (
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THE COMMON LAW PROCEDURE ACT.
[8. hxxiu.
tained, (w) with or without costs, as the case may be and
execution may issue upon such Judgment forthwith, (n) unless
otherwise agreed or unless stayed by proceedings in error or
appeal, (o)
lu^e. ith tC Wc. L. p. LXXXIII. (p) In case no a^eement shall be entered into
i/il^ Cost* when "as to the costs of such action, (y) the costs shall follow the
amement cvcnt, (r) and be recovered by the successful party. («)
''I
(m) Judgment may be entered and
exeoution issued from the office in
which first process was sued out : (ss.
viii. ix. and xi.)
{n\ As to the issue of execution, see
ss. clxxxii. et teq.
(o) Unlets stayed by proceedings in
error or appeal. The implication is
tJiat proceedings in error or appeal
xaay be had upon a special case sub-
mitted te and adjudicated upon by the
Courts under this enactment, and that
when such proceedings are had execu-
tion shall be stayed in the Court below.
The words "error or appeal" are used
with reference to our St. 12 Vic. cap.
63, which constitutes a Court of " error
and Hppeal " : (s. 38 et seq.) " Error "
Btrictlj speaking, relates to matters of
fact as '<Tell as law. Error may be
brought on a single point in a case
leaving the remainder of the case in
the Court beloi» But an appeal in-
tends the removal of all proceedings
from one Court of ini^^rior jurisdiction
to another of appellatb and superior
jurisdiction. No writ of mirror lies to
any other than a Court ol Record:
(Stat. U. C, 6 Wm. IV., c^ 2.)
There may be an appeal from an> in.
ferior Court, though not of record
Thus we speak of an appeal from amag-
istrate to the Quarter Sessions. Error
besides only lies to impench a judgment
in its nature a record of the lower
Court. The error to be brought under
this enactment must be upon a matter
of law, but no express provision is
made for entering the proceedings of
record. With respect to matters of
fact there is such a provision (s. Ixxx.)
The enactment of the provision in the
one case and the omission of it in the
other leaves the intention of the Legja-
lature ambiguous.
(/>) Taken from Eng. Stat 15 & ig
Vic. cap. 76 a. 48.— Applied to County
Courts.
{q) Such action, ». e. the action first
mentioued in s. Ixxvii. of this Act— .
" Where the parties to an action," &c.
This provision is enacted with especial
reference to cases upon questions of
fact under a. Ixxvii. and the agreement
to be entered into in respect tliereof
under s. Ixxviii. As also to cases
upon questions of law under s. Ixxxi.
and the agreement to be entered into
in respect thereof under s. Ixxxii.
(r) Where under the old practice
the parties agreed to state a special
case but made no provision for costs
and though the case was drafted it was
never in fact agreed upon, the costs of
such abortive case were held not to be
costs in the cause : (Foley v. Jiotfidd
16 M. & W. 65.)
(») Successful party. Who is the
"successful party" within the meaning
of this section when both parties suc-
ceed — plaintiflTas to part and defendant
as to part ? Certainly the party wlio
succeeds upon the real and substan-
tial issue that involves the cause
of action. If there be several issues,
Bome decided for plaintiff and some for
detuidant, and those for plaintiff en-
title hXvy to recover his debt, damages,
or proper\y,or any part thereof, he will
be entitled to the general costs of tlie
cause. So, riu versa, if the issues
found for defendant go the whole cause
of action : (see s. oxxx. of this Act
and R. & H. Dig. " Costs," III.) In a
special cnse stated under the preceding
section plaintiff claimed certain fixtures
u
MATTERS OF AOCOTJNT.
a.lxxxiv.]
And for the more expeditious determination of mere matters
of account ; Be it enacted as follows : (t)
LXXXIV. (tt) If it be made to appear, at any time after ^^'fgS.s.'a!'" ^'^a**'^
the issuing of the writ (y) to the satisfaction of the Court or a The court ^/-rj
Jud^e, upon the application of either party, (w) that the on the^appii-
matters in dispute consist wholly or in part of matters of merodtherVrty
account, [x) which cannot conveniently be tried in the ordinary Thivhoit or
being trade fixtures and tenant's fix-
tares. As to the former he succeeded,
but aa to the latter he failed. No provi-
sion was made for costs. Held that
plaintiflf was entitled to the general
costs of the cause, and defendant to the
coats of the part found for him which in
trttth were noUiing : {Elliott v. Bishop,
10 Ex. 622.)
H) TheC. L. Gom'rsin their Report
obserred that there was a large class
of cases in which the intervention of
a jury was positively mischievous,from
their'inability to deal with such oases.
Of this class of cases matters of " mere
account" form a very great portion. The
inability of juries to deal with claims
of this nature has in modem times man-
ifested itself in a manner most con-
vincing by the frequent verdicts taken
subject to references to arbitration.
This appears to have been the natural
and most convenient channel through
^hich to conduct such cases to judg-
ment. The Legislature acting upon the
principle that each Court should have
complete jurisdiction in matters of
which it has cognizance has in the
enactments following widened the chan-
nel and thus adapted the machinery
of the Common Law Courts to the wants
of suitors.
(u) Taken from Eng. Stat. 17 & 18
Vic. cap. 125 s. 3. Founded upon 2d
Rep. C. L. Com'rs (s. 2.)— Not applied
to County Courts. See a similar pro-
vision as to County Courts: Co. C. P.
A. 8. 10.
(v) At any time after the issuing of
the writ, &c. Tho application may, it
is presumed, be made, though defend-
ant has not been served with the writ.
"At any time after issue of the writ"
may embrace the time between the
issue and the service of the summons :
(see note e to s. Izzvii.)
(w) The application of course must
be by affidavit ; (see form thereof Chit.
F. 7 Edn. 894.) As either party may
apply, and as the application if suc-
cessful may materially affect the rights
of the opposite party, it is appre-
hended that the party to be affected
should have notice of the proceedings
before order made. A summons o. ^ ;
rule to show cause is the practice
adopted in England: (Forms thereof
Chit. F. 7 Edn. 894.)
(x) That the matters in dispute consist
wholly or in part of mere matters of
account. These words are susceptible
of two modes of interpretation — 1.
Either " that where the matters in dis-
pute consist wholly of matters of ac-
count, the whole may be referred, and
that where it consists wholly of mat-
ters of mere account, such part only
may be referred ; " or 2. " That where
the matter in dispute consists wholly or
in port of matters of mere account, the
reference may be either of the whole
matter in dispute or part only as the
Court or Judge may think fit." The
latter appears to be the true construc-
tion. The matter to be decided or re-
ferred is the matter in dispute and not
the matter of mere account, of which the
matter in dispute may consist : (Proton *)CJ~1 "'Pr
et al. V. Emerson, 83 L. & Eq. 261.) ." "^^'" ^ ' '
Where therefore the claim in a cause -
consisted of a long account for goods
sold, money paid, &o., and the defend-
ant had a similar set-off, the Court or-
dered the whole cause to be referred,
although some of the items on aach
side were disputed between the parties
C?^
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164
THE COMMON tAW PROOEDIJKE ACT.
[8. Ixxxiy
"w'Ktf.I* ^^J^' (y) ^' '^^^^^ ^® lawful for such Court or Judge, upon such
tor, officer application, if they or he think fit, to decide such matter in a
Judge. summary manner, (z) or to order (a) that such matter, either
wholly or in part, be referred to an arbitrator appointed by the
parties, (6) or to an officer of the Court, (c) or in country
oauses (d) to the Judge of any County Court, (e) upon such
and 80 were not mere matters of ac-
count but of liability : (lb.) It does
not follow from this decision that every
eate ought to be referred which inyoWes
in part matters of mere account. The
rule is well laid down in the case of The
Taff Vale Railway Co.y.Nixon, 1 H.L.
Cas. Ill, and was probably the origin
of the enactment under consideration.
So much for "mere matters of ac-
count." In cases waere the amount
of dama;^es sought to be recoTered is
<* substantially a matter of calculation"
there is an entirely different mode of
procedure : (see s. oxliii of this Act.)
(y) This enactment is made to in-
elude cases " which cannot be conve-
niently tried ?n the ordinary way." No
new right is giren : but a new mode of
procedure is enacted for the more con-
venient trial of such cases It is for
the Court or a Judge to decide upon
the convenience or inconvenience of
the «« ordinary way " of trial : the de-
cision when made being compulsory
upon the parties. The section cannot
be held to apply to a case carried down
to trial in the " ordinary way." Sec.
olvi. pves power to deal with such
a case, a<ad though the words of the
section under consideration ure not re-
strictive as to the time of application,
yet if it could be made to a Judge in
'Chambers after the c»':^se is entered for
Irial, it might lead to great conflision
in practice. Taking therefore the two
sections together, the most reasonable
■construction to put upon them is that
the Legislature intended that the judge
having possession of the record at
Nisi Prius should be the judge to deal
with it: (Shell v. O'Neil, Chambers,
Oct. 14, 1856, Bums J.)
(«) If the Court or a judge under-
take the burden of deciding the case in
a "summary manner" tho ordinarv
affidavit (Chit. F. 7 Edn. 894) will not
be sufficient. All the facts necessary to
be known to a just decision must be
laid before the Court.
(a) Forms, Chit. F. 7 Edn. 894.
(6) An arbitrator so appointed should
it is apprehended govern himself by the
practice relating to Arbitrations and
the proceedings upon such refer-
ence should be conformable to the
established practice in such cases:
(s. Ixxxvii.) As to the practice'
see Chit. Arch. 8 Edn. 1470; lb 9
Edn. 1647; Tidd's N. P. 497; Bag.
Prac. 406. Plaintiff, whc brought
an action against defendant for the
amount of a bill of costs in Chancerv
and who had signed judgment by de-
fault, applied under s. cxliii. of this
Act, for a reference to the Master;
but upon request of defendant's coun-
sel the reference was made under this
section to an arbitrator skilled in
Chancery costs: [Duggan v. Bright,
Chambers, Sept. 27, 1856, Bums J.)
(c) An officer of the Court, if ap-
pointed, must of necessity have all the
powers of an arbitrator as regards tho
attendance of witnesses, production of
evidence, &c.
{d) Causes in which the venue is
laid in the United Counties of York
and Peel are Town causes. All others
are Country causes : (see s. cl.)
(e) Judge of arty County Court. The
exact import of these words, \rhen
the venue is laid in one county and
a reference is sought to the judge of
a different county has been recently
under consideration. In an action in
which the venue was laid in the county
of A, application was made by plaintiff
for a reference to the Judge of B, in
which county the principal witnesses
IXMV]
MATT£RS OF CCNTBAOT.
165
terms as to costs and otherwise as sncb Court or Judge shall
think reasonable ; (/) and the decision or order of such Court ^^^'^SlSer
or Judge, or the award or certificate of such referee, shall be ° „jgj'*^ **
enforceable by the same process as the finding of a Jury upon
the matter referred. (^) ..'
LXXXV. (h) If it shall appear to the Court or a Judge M'.h^'^'^'/i^/'
that the allowance or disallowance of any particular item (i) 4? qiTesUoS" i /■^y.
of plaintiflF were resident, but held per
Burns, J-, that taking ss. Ixzxiy.
and oxliii., of tliia Act together, a
reference could not be made to any
other judge than the one in whose
county the venue waa laid, unless by
ccosent of parties : ( Cotton y. Macken-
tie, Chambers, Oct. 6, 1856.) It is
presumed that upon a reference to a
judge of a County Court under this
gection, he would be empowered of
himself to decide all matters both of
law and of fact that might arise out
of the case before him. Qu. Is a
Judge of a County Cotirt bound to ac-
cept sucli a reference ? He is at all
events not called upon to postpone the
business proper of his own Court to
attend to a matter referred to him
from another tribunal. As to charges
to fee fund under such a reference see
8. zviii. of Co. C. P. A., and notes
thereto.
(/) An order mode under this sec-
ticn, but silent as to costs, does not
confer upon the arbitrator any power
to deal with the costs : {Bell v. Poa-
tlelhmitc, 33 L. & Eq. 131 ; Legffo v.
Young, per Maule J. 16 C. B. 636 ; 82
L. & Eq. 433.) If the parties mean to
give snoh power they should provide
for it in the order : (per Maule J. in
leggo v. Young, ante. ) As to the form
of order now used in England as re-
gards costs, see 16 C. B. 635, note.
Where under this enactment a "cause"
^as referred but no provision for costs
made in the order, and it was awarded
« that the defendant should pay to the
plaintiff £159. Os. 9d. in full of all de-
mands in the above-mentioned action."
Held that the Master could not upon
the award tax to plaintiff either the
costs of the cause or of the reference,
in addition to the sum specifically men-
tioned in the award: (lb.) It was
also held that a letter written to the
plaintiff by the umpire who made the
award (in vhich letter he expressed an
opinion that the costs of the action and
d the reference should bn paid by
defendants, and that he would have so
ordered, but that he could not do so,
inasmuch as the order was silent as to
costs) could not be referred to as part
of the award so as to give plaintiff a
right to the costs: (lb.) Although
the rule or order be silent as to costs,
the Court or Judge has still power to
reform the rule or order by inserting
a clause providing for the costs nunc
pro tunc, and then the costs will follow
according to the just and ordinary
course of law: (Bell v. Pottlethwaite,
ubi supra.)
{g) This latter provision seems to
pre-suppose that the award or certifi-
cate which it mentions shall be a final
deciBion in the cause. For in such an
event only could either the one or the
other *' be enforced by the same process
as the finding of a jury upon the matter
referred."
(A) Taken from Ecg. Stat. 17 & 18
Vic. cap. 125 s. 4.— Not applied to
County Courts. As to these Courts see
a similar provision in Co. C. P. Act
8. 11.
(t) It will be observed that this en-
actment supports the law as explained
in note x to the preceding section, and
in which a distinction was made be-
tween the matters in dispute and mer^
matters of account, of which the mat-
ters in dispute might in whole or in
part consist. If the liabili ty to pay the
S9'
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166 THE COMMON LAW PROOEDrRE ACT. [s IxxXT.
bl d6d?jy °' *'®™'' *■* ^^^^ account (J) depends upon a question of law
or oMof™^ fit to be decided by the Court, or upon a question of fact fit to
ftet by a be decided by a Jury, (k) it sball be lawful for such Couit
Bpecua cue or Judgo (t) to direct a case to be stated (m) or an issue or
issues to be tried ; (n) and the decision of the Court upon such
case, (o) and the finding or the Jury upon such issue or
issues, (p) shall be taken and acted upon by the arbitrator as
conclusive, (q)
items or an item of the pluntiff's
claim be broaght in question, it is ma-
nifest that the items so disputed are no
longer «mere matters of account."
The liability to pay the items is one
thing : the liability admitted or prov-
ed then, the amount of the liability is
quite another. The decision of the
« matters in dispute" must of neoessi^
involve both tho one and the other. It
has been held that "the matters in
dispute whether consisting wholly or
in part of mere matters of account"
should be referred : ^see note x, ante.)
This involves the allowance or disal-
lowance of particular items, which will
depend upon the adjudication of cer-
tain questions either of fact or of law.
The proper and most convenient modes
of deciding such questions when
raised as independent issues, are (ac-
cording to the nature of the case,)
by the court or a jury. To facilitate
these modes of decision the above
enactment has been passed. It is easy
to conceive cases in which the allow-
ance or disallowance of partioularitems
might depend upon the solution of
questions cither of fact or of law. Sup-
pose, for example, that plaintiff claims
interest upon his account f^om a cer-
tain fixed period. Defendant may in-
sist as to the interest that the same
has been paid, which will raise an issue
in fact. Or he may insist that plain-
tiff has no right to charge interest,
which will give rise to an issue in law :
(see Mowatt v. Lord Londetborough, 8
El. & B. 807, 4 El. & B. 1.) This and
many other examples, such as the
operation of the Statutes of Limita-
tion, &c., will occur to the mind. To
these and the like cases when made
'< to appear to the Court or a Judge,"
the section applies.
(j) Such account, i. e. the matters iu
dispute mentioned in the preceding sec-
tion, which may "consist wholly or in
part of mere matters of account." This
and the preceding section must be taken
together. Qu. Can the Court or a
Judge interfere pursuant to this section
before a reference of the matters is
dispute made under the preceding sec-
tion?
{k) In English Act "to be decided
by a Jury or by a Judge upon the con-
tent of both parties aa hereinbefore pro-
vided." The words in italics have, it
will be seen, been omitted in our Act.
(l) The Court during term and the
Judge during vacation. See note m
to s. xxxvii.
(m) t. e. upon a point of law. The
Judges of our Courts have not power
to decide questions of fact in the same
manner as the Judges in England. The
latter are empowered to do under s. 1
of Eng. C. L. P. Act, 1864, (see note k,
ante,) which provision has oeen omit-
ted by our Legislature.
(n) to be tried, i. e. in a manner
somewhat similar to issues of fact pro-
vided for under s. Ixxvii. of this Act.
(o) t. e. the special case containing
the questions of law.
.e. the issues of fact.
The powers of an arbitrator de-
pend almost wholly upon the sub-
mission, reference, or other authority
under which he is entitled to act. —
He is, as a general rule, the final judge
both cf law and fact. In respect to a
reference made at the trial he usually
stands in the place of the Jury, and
his award is looked upon as their ver-
IV 4UUB
3nd al
m
i. iKXvi.]
SPECIAL CASE BT ARBITRATOR.
i7/.
167
LXXXVI. (r) It shall be lawful for the arbitrator («) tipon5"|t-o.i..P. denrvii^,^
any compulsory reference under this Act, (<) or upon any refer- ^ ' *f /^ f *
ence by consent of parties, (m) where the submiss*'. *«j or (t>)m«y nuiu
#1-
i'
diet. At times he is clothed with many
of the powers of a Judge at Nisi Prius.
Occasionally some of the functions of
the Court in banc, devolve upon him :
(See Russell Arbr. & Award, 112 et teq.
and cases there noted; Ih. 2 Edn.
Witt mi also R. & H. Dig. "Arbi-
tration and Award," III.)
(r) Taken from Eng. Stat. 17 & 18
Vic.cap. 1 25, s.6 — Not applied to County
Courts ; but as to these Courts there
is a similar provision : (see Co. C. P.
Acta. 12.)
(«) Qu. Is either a Judge of the
Superior Court sitting in Chambers a
Judge of the County Court in country
causes, or an officer of the Court act-
ing under o. Ixxxiv. of this Act, an
"arbitrator" within the meaning of
the enactment? The arbitrator ap-
pointed to act, whether of the legal
profession or not, and whether the
matter referred to him involve ques-
tions of law or of fact, is, it appears,
authorised in his discretion to decide
such questions: (see Jupp et al. v.
Grayion et al. 1 C. M. & R. 523;
Young v. Walter, 9 Ves. 864 ; Perri-
man v. Stegall, 9 Bin?. 679 ; Holmes v.
Higgins, 1 B. & C. 74 ; Campbell v.
Twemloto, 1 Price 81 ; Wilson v. King,
2 C & M. 689 ; Hall v. Fergusson, 4 0.
S. 892.) If he decline of himself to de-
cide questions of law, he is enabled by
the section under consideration to state
his award <' in the form of a special
case for the opinion of the Court." In
questions of perplexity an arbitrator
will feel the propriety of adopting this
latter course, rather than rely upon
his own judgment. But supposing
he resolves himself to decide inci-
dental points of law it does not fol-
low that if he proceed upon a mis-
taken view of a clear principle of
law the Court will not set aside his
award: {Richardson v. Nourse, per
Abbott, C. J,, 3 B. & A. 237.) Under
such circumstances the Court, if there
be no sufficient reason for setting aside
the award, may remit the matters in
dispute " to the reconsideration and
redetermination of the arbitrator" :
(s. Ixxxviii.)
St) i. e. under s. Ixxxiv. of this Act.
u) Or upon any reference by consent
of parties. By this expression is
meant such references as might be or
were commonly made before the pass-^
ing of this Act. Disputes between'
parties of whatever nature, provided
an action at law or suit in equity will
lie by one party against the other, may
as a general rule be the subject of a
reference by consent : for instance,
all matters in dispute concerning any
personal chattel or personal wrong.
Thus, breaches of contract generally,
breaches of promise of marriage, tres-
passes, assaults, charges of slander,
difTereDoes respecting partnership
transactions or the purchase price of
property, and questions relating to
tolls: (See Russell Arb. 8-4; lb. 2
Edn. 8-4.) Things in realty as
well as personalty may be submit-
ted, and if there be an award of the
possession of the realty, the Court
may enforce such award as if it were
a judgment in ejectment: (s. xcvi.)
Practically, therefore, no distinction
any longer exists in this respect be-
tween realty and personalty. It is in
the power of an arbitrator by his deci-
sion to give to the party in whose favor
he awards, a right to the property in
dispute whether personal or real. As
to realty see 0' Dougherty v. Fretwell,
IIU. C. R. 65 ; O. W. Railway Co. v.
Baby et al. 12 U. C. R. 114; McPher-
son V. Walker, 1 U. C. R. Prac. Rep.
30, Draper J. ; Doe d. Macdonald v.
Long, 4 U. C, R. 146 ; Doe d. Oolbraith,
V. Walker, E. T. 2 Vic. M.S. R. & H.
Dig. "Arbitration and Award," IV. 8 9.
(v) This is made to depend upon the
Eng. St. of Wm. III. and s. xcvii. of
this Act. Though both enactments are
very general in their purport, the lat-
ter (which see) is the more ez-
I [
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I.
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168 ' THE COMMON LAW PROOEDURX ACT. [«• UxxY).
award In tiM may be made a rule or order of any of the Superior Courts of
"7
Hi
tensive. The former is in these words :
" Whereas it hath been found by expe-
rience, that references made by rule of
Court have contributed much to the
ease of the subject, in the determining
of oontroyersies, because the parties
become thereby obliged to submit to
the award of the arbitrators, under the
penalty of imprisonment for their con-
tempt in case they refuse submission.
Now for promoting trade, and render-
ing the award of arbitrators the more
* efTeotual in all oases, for the final de-
termination of controversies referred
to them by merchants and traders, or
others, concerning matters of account
or trade, or other matters. Be it en-
acted, &c., that from &c., it shall
and may be lawful for all merchants
and traders, and others, desiring to
end any controversy, suit, or quarrel,
controversies, suits, or quarrels, for
which there is no other remedy but by
personal action or suit in Equity, by
arbitration, to agree that their submis-
sion of their suit to the award or um-
pirage of any person or persons, should
be made a rule of any of his Mfgesty's
Courts of Record, which the parties shall
choose, and to insert such their agree-
ment in their submission, or the condi-
tion of the bond or promise, whereby
they oblige themselves respectively to
submit to the award or umpirage of
any person or persons, which agree-
ment being so made and inserted in
their submission or promise, or condi-
tion of their respective bonds, shall or
may, upon producing an affidavit
thereof made by the witnesses there-
unto or any one of them in the Court
of which the same is agreed to be made
a rule, and reading and filing the said
affidavit in Court, be entered of record
in such Court, and a rule shall there-
upon be made by the said Court, that
the parties shall submit to, and be final-
ly concluded by the arbitration or um-
pirage which shall be made concerning
them by the arbitrators or umpire pur-
suant to such submission ; and in case
of disobedience to such arbitration or
umpirage, the party neglecting or re-
fusing to perform and execute the same
or any part thereof, shall be subject to
all the penalties of contemning a rule
of Court, when he is a suitor or de-
fendant in such Court, and the Court
on motion shall issue process accord-
ingly, which process shall not be stop.
ped or delayed in its execution by any
order, rule, command, or process of
any Court either of law or equity,unle88
it shall be made to appear on oath to
such Court that the arbitrators or um-
pire misbehaved themselves, and that
such award, arbitration, or umpirage
was procured by corruption or other
undue means." (9 & 10 Wm. III.
cap. Ifi 8. 1.) It was not, before this
statute, in the power of parties out of
Court by any agreement either before
or after awalrd to bring themselves into
Court and create a jurisdiction to issue
process of contempt : (Mchola v. Cha-
lie, 14 Yes. 265 ; Lyall v. Lamb, 4 Bt
& Ad. 468 ; Steeri v. Harrop, 1 Bing.
188.) The statute enacts that the
submission may be made a rule "of
any Court of Record." These words
have been held to include the English
Court of Chancery : (Pownall v. King,
6 Yes. 10.) The statute also enacts
that the parties shall ** insert " their
consent to make the submission a
Rule of Court in the submission it-
self. It has therefore been held that
a parol submission cannot be made a
rule of Court under the statute : {An-
tell V. Hvana, 7 T. R. 1.) And though
it is enacted that the consent shall be
" inserted," still in a case where the
consent clause was no part of the con-
dition of the bond, but was written
un(^«rit before executionandnot signed,
the submission was made a rule of
Court : {Carter v. Matubridge, Barnes,
65.) Semble. Where the submission
at the time of the execution thereof
does not contain the consent, a clause
added several months afterwards will
not supply the defect so as to admit of
the submission being made a rule of
Court: {In re Thirkell et al. 2 U. C. R.
178.) If the consent be inserted and
properly executed, it is not in the
I lit
^^.l^v.
t. Ixxxvi.]
AWARD STATKD IN A SPECIAL CASE.
160
Law or Equity in Upper Canada, if he shall think fit, (w) and i^J""^"^
it is not provided to the contrary, (x) to state his award as to the
whole or any part thereof, (y) in the form of a special cose for of.
tho opinion of the Court, (z) and when an action is rcfer-
power of either party to revoke his
submission without leave of the Court:
(St. U. C. 7 Win. IV. cap 8 s. 29, which
is A transcript of Eng. St. 8 & 4 Wm.
IV. cap. 42 8. 89. ) The Statute limits
no time within which the application
to enforce the award must be made :
Russell Arb. 60; lb. 2 Edn. 68.)
it has been held that it is no
objection to the making of a sub*
mission a rule of Court that all the
prooeedings taken under such sub-
mission were null and void : (Anon.
10 Jur. 525.) An objection to the va-
lidity of an award, even though appar-
ei t on its face, is no objection to mak-
ing the submission a rule of Court :
[Flmmingy. Simmington, 6 Hare 860.)
Where two parts of a deed of submis-
sion were executed and the artHrator
indorsed the enlargements of thi. time
for making the award on one part the
Court compelled the party in whose
possession that part was, to make it a
rule of Court : {Smith v. Blake, 8 Dowl.
P. C. 130 ; see also Boston t. Meaham,
8 Dowl. P. C. 867.) Whore it was
necsssary to make a submission a rule
of Court before moving to set it aside,
and the party in whose favor the award
was, refused to produce the submis-
sion, the Court permitted a copy to be
made a rule of Court for the purpose :
{In re Plews, 6 Q. B. 846.) As to a
refereuce from Nisi Prius the order
does not belong to either party ; but
the party holding it holds it for the
benefit of both parties, and is bound to
produce it when required : {Bottomley
V. Buckley, 4 D. & L. 167.) Where
the making of a submission a rule of
Court was delayed, until the time lim-
ited for setting aside the award had
elapsed, the Court ordered the party
who delayed it to allow the opposite
party to move to set it aside nunc pro
tunc : {lb. ; see also In re Midland
Railway Co. v. Hemming, 4 D.& L,788.)
(w) «« I/he thall tee fit." This en-
actment is one which enables the arbi-
trator to state a case, but does not
make it obligatory upon him to do so.
He may do so if he "see fit," that is,
he is not bound to do so if he do not
see fit. Where, by the terms of an
order of reference made before the C.
L. P. Act, an arbitrator was at liberty
to raise any point of law for the opi-
nion of the Court : Held that he was
not ioun</ to do so : {Woody. Ilotham,
5 M. & W. 674 ; Miller y. Shuttleworth,
7 C. B. 105 ; see also note « to this
enactment.)
{x) And it it not provided to the con-
trary. It might be inferred from this
enactment, taken alone, that an ex-
preit provision to the contrary would
be requisite ; but this enactment and
that of s. xcvii. of this Act are in pari
materia. Indeed, as relates to "refer-
ences by consent" both provisions oc-
cupy a common ground. The latter
enactment provides that every agree-
ment or submission to arbitration by
consent may be made a rule of Court,
" unlets tuch agreement contain wordi
purporting that the parties intend that
it should not be made a rule of Court."
The intention of the instrument, even
in the absence of express provision
must govern in either case.
(y) "At to the whole or any part
thereof," i. e. of the matters referred.
{z) It has been considered before the
C. L. P. A. that an arbitrator could not
without leave expressed in the order of
refereuce or submission state a case
for the opinion of the Coui't : {Brad-
bee V. the Governort of ChritVa Hospi-
tal, 2 Dowl. N. S. 164 ; ted qu. see
Wood y. Hotham, 6 M. & W. 674.) It
has always been usual for well drawn
submissions and orders of reference to
contain a clause to the eifect that the
arbitrator might in his discretion state
any point of law on the face of his
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170
THE COMMON LAW PROCEDURE ACT.
[fl. IxxxTii.
rod, (a) Judgment, if so ordered, may bo entered nccordingto
the opinion of the Court, (b)
LXXXVII. (^0 Tho proceedings upon any such arbitration
"•«<''ni'« as aforesaid, (d ) shall, except otherwise directed hereby or by
tho submission or document authorising the reference, bo con-
IB. I
A.HM.lT
Pro(
before
trator and
hia power to i i . «
to aa upon duoted in Iiko manner and subject to the same rules (<>) and
award for tho opinion of the Court.
And it has been held that if it olenrly
appear upon the reading of an award
that the arbitrator intended to leave a
particular question of law open, the
Court will consider it : (Sherry t. Oke
et al. 8 Dowl. P. C. 840.) Where an
arbitrator to whom a cause was refer-
red by order of reference directed a
rerdict for a certain sum to be reduced
to a lesser sum, if the Court should be
of opinion that it ought to be so, a mo-
tion for that purpose was said by Parke
B. to be in substance a motion to set
aside the award : (Anderson v. Fi ler,
7 Dowl. P. C. 51.) Form of special
case under this enactment see N. R.
Form 4.
(a) Besides mere matters of account
which may under ss. Ixxxiv. or clvi.
this Act 1)0 cotnpulsorily referred at
any time after writ, it may be men-
tioned that where there is a cause de-
pending, a rule of Court or a Judge's
order, or on the trial an order of NLsl
Prius referring the cause to arbitration,
may at common law be drawn up on
consent of the parties : (Russell Arb.
76, referring to Lucaa y. Wilton, 2 Burr.
701 ; Harriaon v. Smith, 1 D. &. L.
876.)
(b) The opinion of the Court ob-
tained under such circumstances is in
effect the decision of the arbitrator,
and therefore, notwithstanding the
statement of the special case by the
arbitrator, the judgment of the Court
upon the matter referred is final, and
entitles the successful party to enter
his judgment and issue execution.
Form of Judgment see N.B. Forms 12,
28.
(c) Taken from Eng. Stat. 17 & 18
Vic. cap. 125 s. 7. — Not applied to
County Courts ; but as to these Courts
there is a similar provision: (Co.C.P.
Act 8. 18.) Tho object of this ennct-
mnnt is to make the proceedings con-
templated conformable as far uh cir-
cum»tanoo8 will permit to proceedings
before arbitrators appointed by connent
of parties. Also to assimilate all sub-
sequent proceedings to the existing
practice upon a reference by consent.
(d) i.e. the arbitration intended by
the preceding section (Ixxxvi.)
(e) The mode in which proceedings
upon a reference to arbitration should
be conducted must, in the absence of
express directions in the rule or order
of reference, depend much upon the
discretion of the arbitrator : (see Til.
lamy. Copp, 6 C. B. 211.) It rests
with him to appoint the time and place
of meeting (Form of appointment Chit.
F. 6 Edn. 655,) and it is the duty of
the parties to attend to his appoint-
ment: (Featheritone v. Cooper, Ves.
67.) When the time and place has
been appointed and the parties or their
attorneys (see Allan v. Drown, Tay.
U. C. R. 460) informed thereof [hre
Johnnon and M. of Olouceater, 12 U. C.
R. 185) they must attend with all ne-
cessary witnesses. If either party ab-
sent himself after being notified to at-
tend, it is in the power of the arbitra-
tor to proceed ex parte : (see Wood v.
Leake, 12 Ves. 412 ; J/arcourt v. Ramt-
bottom, 1 J. & W. 512 ; Scott v. Van
Sandan, 6 Q. B. 287;) but to warrant
him in so proceeding there ought to be
a very strong case: (see Gladwin v.
Chilcote, 9 Dowl. P. C. 550; Proud-
foot V. Trotter et al. 6 0. S. 163.)
Either party may be represented by
counsel. And it would be prudent for
the party who intends to engage counsel
to notify the opposite porty of such his
intention. This course will both pre-
*!i\i
I, IxZZVii.] PR0CEE0IN08 UPON AKBITBATION. 171
enactments as to the power of the i^bitrator and of the JJ^jJ^,*" ^'
i
vent lurprlso at the Loaring and at the
game time remoTO all BUHplclon of a
desire to take undue adrontago. It will
bo proper for the arbitrator to rcgukte,
the proceedings of particH, suuh ax ex-
amination of witncii8C8,ttdilrc8s of coun-
lel, &o., by analogy to the practice of
Courts under nimllar olrcumsta.ioes.
The discretion of the arbitrator, wiion
there is a cause In Court, Is at all times
■ubjcct to the supervision of the Court
in irhlch the cause was commenced.
The Court has power not only to review
his decision but to sot aside bis award,
espeolallv In cases of compulsory re-
ference, if it be made to appear that bo
hftg acted unfairly towards either party:
(Buss. Arb. 169; O. W. R. Co. v.
^aAy, 12 U. C. K. 100.) For Instance,
if ho refuse to receive evidence tendered
to him by either party, though he may
be of opinion that he has sufficient evi-
dence before him : (see Phipjta v. In-
gram, 8 Dowl. P. C. 669 ; Hamilton v.
Wilson, 4 0. S. 16; Bull\. Bull, 6 U.
C. R. 867 ; McMuUen in re, 2 U. C. R.
176; Oriidale v. Boulion, 1 U. C. R.
407.) Yet if he refuse the evidence as
being inadmissible, it appears his de-
cision will rarely if ever be disturbed :
(see Symea v. Good/ellow, 4 Dowl. P.
C. C42.) In some cases it may appear
very indispensable that nn arbitrator
should within proper limits be allowed
to deviate f^om the ordinary rules
which govern Courts of Justice; tx. gr.
he may properly and conveniently take
the examination of a sick or infirm
person at the house of such person :
ira/amv. Cofp, per Maule J.5 C.B.214)
tut the deviation must not be an unne-
cessary or a glaring departure from well
established rules of practice. Thus
an arbitrator has no power privately
to examine a party to a reference upon
his own behalf. Such a proceeding
would be contrary to the rules for the
regulation of evidence adopted both
by Courts of law and equity : (/re re
mik et al. 8 Taunt. 694 ; Dobson et al
V. Orovea et al. 6 Q. B. 637 ; Davia v.
Birdsall et al. 2 U. C. R. 109 ; see also
remarks of McLean J. in Boyle y.
llumphnyet al. 1 U. C. Prac. R. 187.)
And If the order of reference require
the arbitrator to take evidence upon
oath he would not be justified in re-
ceiving the affidavits of parties not at-
tending : (see Banka v. Lanka, 1 Qale.
46.) If liberty be given to him bo
to examine the parties, he may or may
not do so in the exercise of his discre-
tion : (see Smith v. Gof, 8 D. & L. 47.)
It Is in the power of the Court or a
Judge from time to time, if necessary,
to remit the matters referred or any
part thereof to the redetermination of
the arbitrator : (see s. Ixxxvlii. of this
Act.) It is also in the power of the
Court either to allow a revocation of
the submission or reference: (see
Jamea v. Aftwood, 7 Scott 841 ; Fa-
viell V. Eaatern Cos. R. Co., 6 D. & L.
54) or to enlarge the time for making
the award : (Jonea v. Ruaacll, 5 U. C.
R. 803 ; see also s. xcv. and notes u
and z thereto.) An arbitrator if he
award the payment of a sum of money
may as a general rule name a day for
the payment. The rule is different
where a cause only is referred, or
where a reference is made for no other
purpose than to make an estimate or fix
a price, or where the terms of the sub-
mission contain something restricting
the arbitrator in this respect : (Addi-
aon v. Corbejf, 11 W. C. R. 488.) An
arbitrator should at all times be care-
ful neither to overstep the bounds of
propriety nor with reference to the
subject matter of his award to exceed
the authority conferred upon him by
the submission or reference. If he do,
although the excess may in some cases
be rejected as surplusage, in others it
may be a ground for setting aside bis
award: (see the following oases —
Aicheaony. Cargey, 2 Blng. 199; Tat-
teraall v. Oroote, 2 B. & P. 181 ; Shaw
T. Turton, 4 0. S, 100 ; Brown v. Wat-
aon, 6 Blng. N.C.I 18 ; Boodle y. Daviea,
8 A. & E. 200 ; Morley v. Newman, 6
D. & R. 817 ; Ifutchinaonj. Blackwell,
8 Bing. 331 ; Jaekson v. Clarke, 18
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172 THE COMMON LAW PROCEDURE ACT. [s. Ixxxvii.
Court, the attendanQp of witnesses, (/) the production of
Price 28 ; Cayme v. Wattt, 3 D. & R.
224 ; Gray v. Gwennap, 1 B. & A.
106 ; Harding v. Forshaw, 4 Dowl. P.
C. 76 ; Donlan v. Brett, 2 A. & E. 344 ;
Wataon t. Black, H. T. 4 Vic. M.S. R.
& H. Dig. "Arbitration & Award," HI.
(2) 2 ; Cock v. Gent, 13 M. & W. 364 ;
Mathewy. Davis, 1 Dowl. N. S. 679;
Hawhyard v. Slocks, 2 D. & L. 937 ;
Round V. Hatton, 10 M. & W. 660;
Eastern Cos. R. Co. v. Robertson, 6 M.
& G. 38 ; In re Tandy, 9 Dowl. P. C.
1044; Boyes v. Black, 13 C. B. 652;
Law V. Bluckbarrow, 14 C. B. 77 ;
mily. mil, 11 U. C. R. 262; G. W.
R. Co. V. Hunt, 12 U. C. R. 124 ; same
Plaintiffs V. Dougall, lb. 131 ; same
Plaintiffs V. Dodd, lb. 233 ; In re Miller
and G. W. R. Co. 13 U. C. R. 582 ;
Faulkner v. Sautter, 1 U. C. Prac. R.
48; In re Ilarley et al., lb. 173.) If
there be any just cause for setting
aside an award tlie party aggrieved
must take good care to move within the
timelimited by statute or rule of Court :
(see Crooks v. Chisholni et al. Robinson
C. J. 4 0. S. 123.)
(/) The Court if not empowered at
common law (see Wawsell v. Southwood,
4 M. & R. 359 ; Webb v. Taylor, 1 D.
& L. 676) to command the attendance
of witnesses and production of docu-
ments before an arbitrator upon an
order of reference, has full power so to
do by statute. ".When any reference
shall have been made by any such rule
or order as aforesaid (i. e. by rule of
Court or Judge's order or order
of Nisi Prius in any action), or by
any submission containing such agree-
ment as aforesaid (t. e. that the sub-
mission shall be made a rule of any
of her Majesty's Courts of Record), it
shall be lawful for the Court by which
such rule or order shall be made, or
which shall be mentioned in such
agreement, or for any Judge, by rule
or order to be made for that purpose,
to command the attendance and exam-
ination of any person to be named, or
the production of any documents to be
mentioned in such rule or order ; and
the disobedience of any such rule or
order shall be deemed a contempt of
Court, if in addition to the service of
such rule or order an appointment of
the time and place of attendance in
obedience thereto, signed by one at
least of the arbitrators, or by the um-
pire before whom the attendance is re-
quired, shall also be served, either to-
gether with or after the service of such
rule or order. Provided always, that
every person whose attendance shall be
so required shall be entitled to the like
conduct money and payment of ex-
penses, and for loss of time, as for and
upon attendance at any trial. Provided
also that the application made to such
Court or Judge shall set forth the
place at which such witness is residing
at the time. Provided also that no
person shall be compelled to produce
under any such rule or order any writ-
ing or other document that he would
not be compelled to produce at a trial
or to attend at more than two consecu-
tive days, to be named in such order."
(St. U. C. 7 Wm. IV. cap. 3 s. 30, a
transcript of Eng. St. 3 & 4 Wm. IV.
cap. 42 s. 41.) The Courts of com-
mon law are not deprived by this stat.
of their concurrent jurisdiction to
swear the witnesses : {James v. Ait'
wood, 5 Bing. N. C. 628.) And the
arbitrator, on the other hand, may
swear the witnesses, notwithstanding
the order of reference directs them to
be sworn before the Judge of Assize :
(Jlodsall v. Wise, 4 M. & W. 536.) But
a Court of Equity has no power under
the statute to compel witnesses to at-
tend before an arbitrator: (Hall v.
Ellis, 9 Sim. 530.) Courts of law have
not, it seems, the power, except in
cases provided for by the statute :
fChit. Stat. I. 67, note m.) If the
witness whose attendance is necessary
be a prisoner in close custody the Court
may grant a habeas corpus, in order
that he may be brought before the ar-
bitrator : ( Graham v. Glover, 33 L. &
Eq. 55. ) Where it is requisite to re-
sort to the above compulsory proceed-
^K
B, IxXXVii.] ENPOROINa AWARD.
documents, enforcing (^g) or setting aside the award, or
173
ing( an order for the attendance of the
^tnesses may be obtained either upon
motion in Practice Court or on ap-
plioation to a Judge in Chambers
grounded on ai&davit. The affidavit
should set forth the existence of the
reference either shortly in words
or by verifying a copy of the rule or
order authorising the same — the names
of the witnesses and the county in which
they reside, or if their residence be not
Imown, should set forth facts sufficient
to satisfy the Court or the Judge that
they cannot at the time of the malting
of the affidavit be found. Form see Chit.
F. 6 Edn. 654. If a document be re-
quired to be produced it should be
properly described as in a tubjxena
duces tecum. It should also be stated
that the attendance of the witness or
production of the document is mate-
rial: (Chit. Arch. 8 Edn. 1472.) The
rule or order will be absolute in the
first instance : (Form thereof Chit. F.
6 Edn. 655.) The Court in granting
it acts in a ministerial rather than in
judicial capacity: (Guarantee Society,
In re, 1 D. & L. 907.) The rule or
order irhen obtained, and a copy of the
arbitrator's appointment should, if
possible, be served on the witness, and
his reasonable expenses tendered to
him at the time of the service thereof.
To bring him into contempt the origi-
nals should be shown to him: (Chit.
Arch. 8 Eda. 1472.) The parties,
their attorneyg, counsel, and witnesses,
in going to, attending to, and return-
ing from the arbitration, are privileged
in the same manner as on a trial at
law: [Webb v. Taylor, 1 D. & L. 671 ;
Spence v. Sheard, S East. 89 ; Randal
V. Gurney, 8 B. & A. 252 ; Ricketts v.
Gurney, 1 Chit. R. 682.) A voluntary
attendance when the witness might be
compelled to attend is equally privi-
leged: ( Webb V. Taylor, 1 D. & L.676.)
The privilege holds good during
the adjournment of the arbitration
from one period to another of the
same day, or when the adjournment
is from day to day ; but not when
many days are to elapse before the
next meeting: {Spencer y. Newton, 6
A. & E. 623.) Provision may be made
for the examination of the witnesses
upon oath: (St. U. C. 7 Wm. IV. cap.
8 s. 81, which is a transcript of Eng.
St. 8 & 4 Wm. IV. cap. 42 s. 41.)
Where witnesses on one side have been
examined without oath, the other party
waives the objection by calling wit-
neeses and examining them in like
manner : (Allen v. Francis, 4 D. & L.
607.)
(g) There are two modes of enforc-
ing an award upon " a reference made
by consent under a rule of Court or
Judge's order." First, the ordinary
common law remedy by action. Se-
cond, the extraordinary statutable
one of process of attachment. Of
these two, the party aggrieved should
make an election. He will not be al-
lowed to pursue both remedies at one
and the same time: (see Stock, Hug-
gens, and De Smith cases, temp. IIard«
wicke 106.) The adoption, however,
of one remedy does not, it seems, ne-
cessarily exclude the other: (R. v.
Uemsworth, Wilde C. J. 8 C. B. 758. ]>
I^rst. Proceeding by action. This
remedy may be adopted whether the
submissioa be by writing not under
seal: (see Hodsden v. Ilarridge, 2
Saind. 62 b, n.) ; bond (see Winter y.
White, 8 Moore, 674 ; Ferrer y. Oven,
7 B. & C. 427) ; judge's order (see
Still y. Hal/ord, 4 Camp. 17; Stal-
worth y. Inns, 13 M. & W. 466;
Wharton v. King, 1 M. & R. 96);
order of Nisi Prius (see Bonner y.
Charlton, 5 East. 139) ; rule of Court
(see Tremenhere v. Tresillian, 1 Sid.
452; Carpenter v. Thornton, 3 B. &
A. 62) ; or order of equity (see Dowse
y. Cone, 3 Bing. 20.)
The forms of action to be followed
in the different cases vary with
reference to the mode of submission.
Though no longer compulsory to men-
tion the form of action in any writ of
summons (s. xvii.), yet it will be found
convenient to adhere to the long estab-
lished division actions. This, too,
would appear to be the view of the
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THE COMMON LAW PROCEDURE ACT.
[s. Ixxxvii.
Judges in fratning our new rules : (see
Forms 29, 30 to N. Rs.)
I. Assumpsit — The submission implies
mutual promises to perform, and for
non-performance of these promises this
action will lie : {seeHodsden ^.Harridge,
2 Saund. 62 b. n. ; Brown v. Tanner
et al. McCl. & Y. 464;.PMr«/ow v.
Bailey, 2 Rayd, 1039; Tilford v.
French, 1 Sid. 160 : Squire v. Greville,
2 Rayd. 961 ; Lupart v. Wilson, 11
Mod. 171 ; Mansell v. Burredge et al.
7 T. R. 352 ; Charles v. Carroll, 9 U.
C. R. 357.)
II. Case. — If the award impose tt
duty upon one of the parties, for
instance, that he clean and keep clean
a certain drain, it would appear that
in the event of noc-feazance the oppo-
site party, if prejudiced thereby, might
maintain this form of action: (see
Sharpe t. Hancock, 7 M. & G. 354.)
III. Covenant. — If the submission
be by deed this form of action may be
maintained for non-performance of any
part of the award : (see Tail et al. v.
Atkinson, 3 U. C. R. 162 ; Tomlin v.
Mayor of Hardwicke, 6 N. & M. 594 ;
Charnley v. Winstanley, 5 East. 266 ;
Marsh v. Bulteel, 5 B.& A. 807.)
IV. Debt. — If the submission be by
bonj, this form of action will lie to
recover the penalty upon breach of the
condition of such bond : (see Ferrer v.
Oven, 7 B. & C. 427 ; Boyd et al. v.
Durand, 5 0. S. 122 ; Hughes v. the
Mutual Fire Insurance Co., 9 U. C. R.
387; ZoMjwy v.//ornerf,Tay.U.C.R.103 ;
Beasleyy. Stegman, Tay. U. C. R. 685;
Skinner v. Holcomb, E.T. 6 Vic. M.S.
R. & H. Dig. " Arbitration & Award,
VI. (2) 11 ; Purslowy. Baily, 2 Rayd.
1039.) This action will also lie to re-
cover a sum of money awarded upon a
submission whether made by rule of
Court, deed, or writing not a deed :
(see Ilodson v. Harrige, 2 Saund. 62
b. n. ; Baker v. Booth, Dra. Rep. 68 ;
S. C. 2 0. S. 373 ; Turner v. Alway,
Purslow v. Bnibi, 2 Rayd. 1039 ; Sut-
cliffe V. Brooke, 14 M. & W. 855.)
As to the time for entering a verdict
subject to a reference upon which an
award has been made, see Laurie y,
Russell, 1 U. C. R. 36.
Second. Proceeding by attachment
Whenever the submission is by or can be
made a rule of Court, the remedy bv
attachment may be adopted : (gt. 9 I
10 Wm. III. cap. 15, as to which see
note V to preceding section.) w^en
an award has been made a rule of
Court, a party who fails to perform
what the award orders is considered as
disobedient to a rule of Court as much
as if tb9 award were part of the rule
and is consequently guilty of a con-
tempt of that Court by which the rule"
has been made. The process, there-
fore, by which the Courts punish con-
tempts, being an attachment, will be
issued against him to compel his obe-
dience to the directions of the arbitra-
tor under a penalty in ordinary cases
of imprisonment until he comply;
(Russell Arb. 555.) But if the period
of imprisonment be limited, the party
undergoing such imprisonment is not
thereby exonerated from the perform-
ance of the award : (The Queen v.
Heniiworth, 3 C. B. 745.) This case
is in many respects & most important
one. In it the several steps towards
bringing a party into contempt and the
pains thereof, together with all neces-
sary forms of procedure, are carefully
mentioned. Though an award find one
party indebted to the other, if there
be no order to pay the money, there
can bo no attachment. If there be no
order to do a thing it stands to reason
that a party cannot be attached for dis-
obeying it : (see Edgell v. DalUmore,
3 Ring. 634. Scott v. Williams, 3
Dowl. P. C. 508; Thornton v. Hornby,
1 Dowl. P. C. 237 ; Seaward v. Hoicey,
7 DowL P. C. 318.) The award may
be enforced by attachment so long as it
order the payment of money, even
though it be to one person named for
the use of a third : {Snook v. Helhjer,
2 Chit. R. 43.) but such third party
being a stranger to the submission
cannot himself apply for the writ :
{In re Skeete, 7 Dowl. P. C. 618.) The
Court will enforce the performance of
anawardbyattachmcntthough it direct
something else other than the payment
of money : (see Doe d. Clarke v. Still-
u-ell, 8 A. & £. 645.) And there does
IxXXVii.] SETTING ASIDE AWARD. <
otherwise, (h) as upon a reference made by consent under
176
not seem to be any reason why this
mode of enforcing should not extend
" the possession of land : (McPherson
V Walker, per Draper J. 1 U. C. Prac.
R 31 ; see also s. xcvi. of this Act.)
ffbis remedy will not bo allowed
unless the party sought to be attached
has had full and distinct notice of the
duty that is required of him. The
duty— the whole and entire duty— with
which it is sought to charge the party
must be distinctly ascertained by the
award: (Graham v. Darcey, Wilde C.
J 6 C. B. 537.) If the award in its
meaning be doubtful, the writ will be
refused: [Ileatherington v. Robinson,
7 Bowl P' C. 192; see also Stalworth
V. Inns, 2 D. & L. 428.) And the
party applying will be left to his rem-
ec'v by action upon the award : (see
Graham v. Darcey, 6 C. B. 637.) When
it is considered that it is th" summary
process of the Court thi.t, -r "ked, it
is necessary that the mat ipon
which it is invoked should .-. v feet,
and show that the party is ti u^y entitled
to ask for what he does : {In re Mc
Lean v. Kcezar, per Burns J. 1 U. C.
Prac. R- 120.) The original award
when practicable should be brought
into Court and the rule drawn up on
reading it: {lb.) The affi a, vit should
deny payment " of any purt" of the
gum awarded: {Masecar v. Chambers
"et al. 4 U. C. R. 171.) The rule is
nroperly a four day and. not a six day
rule : {Jones v. Reid, 1 U. C. Prac. R.
247.) It will not be made absolute in
the first instance, though the parties
consent by their counsel : (Stewart v.
Crawford, Tay U. C. R. 664.) If it be
altogether refused the Court will rarely
if ever reserve leave to move again :
[Regnolds v. Burkhart, 1 U. C. Prac.
R. 213.) The attachment is always
discretionary with the Court. It was
refused in a case where it appeared
that subsequently to the award the
parties entered into a new arrange-
ment: {Thompson et al. v. Macklem, 1
U. C. Prac. R. 293.) See further
as to the practice, Chit. Arch. 8 Edn.
1608; R.&H.Dig.Arbitration& Award,
VI. 1 (1.) Forms, Chit. F. 6Edn. 664.
(A) It is enacted " that any arbitra-
tion or umpirage procured by corrup-
tion or undue means shall be judged
and esteemed void and of none effect,
and accordingly be set aside by any
Court of law or equity, so as complaint
of such corruption or undue practice
be made in the Court where the rule
is made for submission to such arbi-
tration or umpirage, before the last
day of the next term after such arbi-
tration or umpirage made and publish-
ed to the parties :" (St. 9 & 10 Wm.
III. cap. 16 8, 2.) As to the construc-
tion of this enactment, see Russell Arb.
2 Edn. 634. It may be mentioned that
this Statute is declaratory only, and does
not therefore affect the common law
jurisdiction of the Courts to set aside
an award made in an action under a
submission by rule or order. Hence in
these lattev cases the limitation of the
statute aB to the time within which »
party should apply to set aside an
award does not apply : (see remarks of
Coleridge J. in Reynolds v. Askew, 5
Dowl. P. C. 682 ; see further Ilobba t.
Ferrars, 8 Dowl. P. C. 779 ; Allenby
V. Proudlock, 4 Dowl. P. C. 54 ; I'ax'
ton V. Great North of Eng. R. Co. 8
Q. B. 988 ; and remarks of Burns J.
in Laurie v. Russell, 1 U. C. Prac. R.
86; see also s. Ixxxix of this Act.)
The application to set aside an award
under the statute can only be made
when the submission to the award is
or can be made a rule of Court : {Mit'
chell V. Staveley, perBayley J. 16 East
58 ; Veale v. Warren, 1 Saund. 827 o.
notes ; Cumming v. Allen, Tay. U. C.
R. 369.) Qu. as to the order of a
Judge directing compulsory references
under s.lxxxiv. of this Act ; see also
notes to s. Ixxxix. as to the same point.
An award cannot be set aside upon the
merits except under clear and extra-
ordinary circumstances: {Winter y.
Lahbridge, 13 Price 633; Scl J,ell t.
Gilmour, 6 U. C. B. 48 ; see also
Thirkell v. Strachan, 4 U. C. R. 186.)
i|
M '}
176 THE COMMON LAW PROCEDURE ACT.
rule of Court or Judge's order, (i)
[s. Ixxxvii.
•ij?
And yet the Court will interfere if it be
made to appear that either party has
not had an opportunity of explaining
or examining into the whole matter
submitted : (Small v. Rogers, H.T. 4
Vic. M.S. R. & H. Dig. "Arbitration
& Award," V. 6.) The Court, how-
ever, will not intend matter for the
purpose of setting aside the award ;
such matter must be shown affirma-
tively : {Traeey v. Hodgeat, 7 U. C.R.
6.) The application will seldom be
entertained unless something can be
alleged amounting to a perverse con-
struction of the law or misconduct on
the part of the arbitrators : {Hall v.
Hinds, 2 M. & G. 847; Ph^iUipsv.
Evans, 12 M. & W. 809 ; Hagger v.
Baker, 14 M. & W. 9 ; Jones y. Carry,
6 Bing. N. C. 187 ; Z>oev. Cropper, 10
A. & £. 197); or some ground appear-
ing on the face of the award, on a state-
ment annexed to it, or on something
in an authentic shape before the Court :
(see Kent-v.Elstob, 3 £ast. 18; Chace
v. Westmore, 13 East. 357 ; Sharman
y. Bell et al. 5 M. & S. 504 ; Payne v.
Uassey, 9 Moore, 666 ; Richardson v.
Nourse, 3 B. & A. 237 ; Boutillier v.
Thick, 1 D. & R. 366 : Mun. of King-
ston v. Day, 1 U. C. Prac. R. 142;
Price V. Jones, 2 Y. & J. 114 ; Symes
T. Goodfcllow, 2 Bing. N. C. 532 ; see
further, Delver v. Barnes, 1 Taunt. 48 ;
Phillips y. Evans, 12 M. & W. 309;
Hagger v. Baker, 14 M. & W. 9 ; Doe
d. Madkins v. Horner, 8 A. & E. 235 ;
Fuller y. Fenwick, 3 C. B. 705 ; Havrill
y. Eastern Counties R. Co. 17 L. J. Ex.
223, 297.) Still the Court has a dis-
cretion to decline setting aside an
award on grounds which, if fatal, could
be taken advantage of by way of de-
fence in an action on the award, or on
resisting a motion for an attachment :
(Smith et al. v. George etal. 12 U.C.R.
870.) Whenever a certain fact is relied
on to set aside an award, that fact
must be distinctly sworn to : {Slack v.
McEathron, 3 U. C. R. 184.) An award
cannot be set aside on the ground that
the submission was obtained by fraud ;
the application should be to set asidft
the order : {Sackett y. Owen, 2 Chit
89) ; and will not be set aside because
the style of the cause in which it ig
intitled is not set out correctly and at
length, provided it can be sufficientlv
identified by reference to the body of
the award as being in the cause re-
ferred: {Creighton y. Brown et al i
U. C. Prac. R. 831.) In the rule nisi
for setting aside an award, it must be
stated that the award is drawn up " on
reading the award" or a *• copy of it".
( Wilkins v. Peck, 4 U. C. R. 263 )
but such an objection is well answered
by showing that among "the affidavits
and papers filed," on reading which
the rule was drawn up, there is a copy
of the award verified by affidavit •
{Tracey y. Hodgest, 7 U. C. R. 5.)
The rule must state the several objec-
tions intended to be insisted upon when
moving it absolute: (N. R, 141.
Boodle y. Davies, 4 N. & M.788 ; What-
ley V. Morland, 2 C. & M. 847 ; Alkn-
by V. Proudlock, 4 Dowl. P. C. 54-
Staftes V. Hay, 1 D. & L. 711 :) and
should be drawn up on reading the rule
of reference: {Christiey. Hamlet, 4Bing.
195.) Where an award is set aside for
irregular proceedings on the part of
the arbitrator, such as the examination
of witnesses in the absence of parties
it will be set aside without costs;
{Campbell v. Boulton, M. T. 6 Vic. per
Jones J. M.S. R. & II. Dig, "Arbitra-
tion & Award," VII. 3.) See further,
Chit. Arch. 8 Edn. 1485, R. & H. Dig.
"Arbitration & Award," V; Forvu,
Chit. F. 6 Edn. 667.
(»■) The subject of costs is one of no
ordinary perplexity to arbitrators and
others concerned in arbitraments.—
For the convenient understanding of
it, a distinction may be drawn be-
tween "costs of the cause," "costs
of the reference," and "costs of the
award." Each of these may be sepa-
rately defined :—/»»<. Costs of the
cause comprise the costs incurred in
the cause up to the time of the sub-
mission, the costs of the order of re-
. ^m?' ,...,11 1 I llM
IxXXVii.] POWEE OF PARTIES AS TO COSTS
177
ference, and of making it a rule of
fourt and the coata of ulterior pro-
ceedings in the cause, if any, after the
award. Second. Costs of reference
comprise the expenses of the whole in-
quiry incurred by the parties before
the arbitrator, whether with respect to
the matters in the cause or matters out
of it, as for instance, the costs of a
brief in ^^^ cause referred, prepared
after the reference for the purpose of
the arbitration. These costs if left to
the discretion of the arbitrator, may,
it seems, bo fixed by him and awarded
in an entire sum : (Lawrie v. Russell,
1 U. C. Prac. R. 65.) But if a very
extravagant sum be awarded, the Court
Tf ould undoubtedly interfere to prevent
extortion and injustice : (lb. per Mc
Lean J.) Third. Costs of the award
comprise the amount of the arbitrat-
ors s charges, which are usually paid
to him when the award is taken up :
(Russell Arb. 370.) The fee of the
arbitrator, whether named by him or
not is subject to taxation by the Mas-
ter- (see Miller v. Robe, 3 Taunt. 461 ;
FiUgerald v. Graves, 5 Taunt. 342.)
But held that the Court has no general
autliority to make an order on an arbi-
trator to refund so much of his fee as
exceeds the amount allowed on taxa-
tion : [Dossett v. Oingell, 2 M. & G.
870.)
The power of awarding costs appears
to be necessarily consequent on the
authority conferred upon the arbitrator
if he be authorised •• to determine the
cause." The reason why in references
to arbitration a provision is frequently
inserted that costs shall abide the
event, is that the arbitrator might not
have it in his power to withhold costs
from the party who is in the right. It
has been considered as a restriction of
a power which he otherwise would
have : {Roe d. Wood v. Doe, per Cur. 2
T. R. 044, approvingly cited in White-
head et al. V. Firth, 12 East. 106 ; see
also Anon. Loft. R. 34.) This rule is
confined to costs as between party and
party ; it does not extend to costs be-
tween attorney and client : ( Whitehead
et al V. Firth, 12 East. 106.) The ar-
M
bitrator has no power of himself to tax
costs in the cause : (Morris t. Morris,
Compton J. 27 L. T. Rep. 103.) Where
the cause and " all matters in dififer-
ence" were referred, but the submis-
sion which was by bond said nothing
of costs ^: Held that the costs of
the cause, being matters in difference,
the arbitrator bad power over them,
but not over the costs of the reference :
( Firth y. Robinson, 1 B. & C. 277.)
Where the reference was of "all mat-
ters in dispute, costs to abide the
event," held that the arbitrator had no
power over the costs of the reference :
(Strutt v. Rofferg, 7 Taunt. 214.)
Where the terms of a rule of reference
direct costs to abide the event, the
legal event is meant. The losing party
is liable to pay such costs as he must
have paid had the cause pursued its
ordinary course and a verdict had
passed against him. The costs of the
arbitration cannot, it seems, be in-
cluded unless by express direction :
{Hale V, Mathieson, 3 0. S. 78. ) Where
owing to the misconduct of a party to
the reference arbitrators do not make
their award, but the award is made by
an umpire in favor of one of the par-
tics, costs will not be granted to the
other party on a summary application
under a clause in the rule of reference
« that if either party shall be affected
by delay or otherwise wilfully pre-
vent the arbitrators or umpire from
making their award, he shall pay such
costs to the other' as the Court shall
think reasonable and just :" {Proudfoot
V. Trotter et al. 1 U. C. R. 398.) If a
general power as to costs be delegated
to the arbitrator, be will have full
authority over costs of the reference :
(see Wood ". 0' Kelly, 9 East. 436 ;
Bradley v Tunstow, 1 B. & P. 84 ; Fitz-
gerald V. Graves, 5 Taunt. 342.) In the
absence of any specific direction the
costs will follow the verdict : {Mackin-
tosh y. Myth, 1 Bing. 269.) ^«. If a
suit be commenced in a Superior Court
for a sum exceeding County Court ju-
risdiction, but upon a reference of the
cause to arbitration the arbitrator
award a sum within such jurisdiction,
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178
THE COMMON LAW PROCKDUBE ACT. [s. IxxZTiii.
Xj
tawfl
iT:'l1^\:^ ^'^"^' **■ ^'^ LXXXVm. O*) in every case of reference to arbitration,
$ iCi^ A'^iSe^ 8* ^^®*^®'' ttnder this Act or otherwise, Qe) wbere the submiasion
jj^ ' flhall be made a rule of any Court of Upper Canada, (0 such
tott!?"*M Court or a Judge thereof (m) shall have power at anytime
trator for r»- and from time to time (n) to remit (o) the matters referred or
^ tion, Ac, any or either of them, (p) to the reconsideration and redeter-
is the aucodssfal p^^y restricted to
County Court costs ? (see Lang ▼. Ha%
Tay. U. C. R. 286 ; ElmoTt v. Colman,
4 0. S. 821 ; Holland y. Vineent, 20
L. & £q. 470.) Where an order of
Nisi Prius was silent as to costs, it was
held that the arbitrator had no author-
ity to ac(jttdicate upon them, " and that
each party should bear his own ex-
penses and the half of the award : "
(Taylor v. Gordon, Tindal, C. J.,
9 Bing. 678.) Where after a payment
into Court by defendant there was a
referpnce without mention of costs,
held that the arbitrator had no power
over the costs incurred before the pay-
ment into Court ; for defendant by the
payment had admitted that he was in
error up to the time of the payment :
(Stratton v. Greene, 8 Bing. 487.)
(J) Taken from Eng. Stat. 17 & 18
Vic. cap. 125 s. 8. — Applied to County
Courts. The object of this enactment
is to confer upon diie Courts a conve-
nient power which formerly was only
exercisable when expressly given by the
submission, rule, or order of reference
between the parties.
(k) Whether under this Act or other-
wite. These words are substituted for
the words " as aforesaid" used in the
corresponding section of the Eng. C.
L. P. Act. It is clear that this enact-
ment applies to the various references
mentioned in the Act, such as compul-
sory references under s. Ixxxiv., and
references by consent under ss. Ixxxvi.
and Ixxxvii. : (see Morris v. Morris, 27
L. T. Rep. 103.)
(I) Or otherwise where the submission
shall be made, &c. This expression
though very general, can scarcely em-
brace any other than the references
intended by ss. Ixxxiv., Ixxxvi., and
Jxzxvii., and perhaps clvi. of this Act.
As to when a submission may be made
a rule of Court see note v to s. Ixxxvi.
(m) Court or Judge thereof. See
note tn to s. xxxvii.
(n) IVom time to time, &c,, clearly
intending a second, third, or more re-
ferences if necessary. As to the ne-
cessity for this provision, see Nickalh
T. Warren, 6 Q. B. 615.
(o) The application to remit must be
made within the same time as an ap-
plication to set aside an award : {Dot
Banks et al. v. Holmes, 12 Q. B. 951 <
and see Brown v. Collyer, 20 L. J. q!
B. 426 ; Zachary v. Shepherd, 2 T. r!
781 ; Doe Mayo v. Cannell, 22 L. J
Q. B. 821.)
( J?) This is a wise provision. Instead
of referring back the whole matter in
dispute because of a defective award
as to part, that part may be referred
back and the remainder retained, as to
which remainder the arbitrator is
functus officio. There is a great differ-
ence between referring back an award
altogether and referring back a parti-
cular part of it. If an award gene-
rally and not a part thereof be referred
back, the arbitrator may possibly be
called upon to bear the whole case
again : (see remarks of Denman G. J.
in Niekalls v. Warren, 6 Q. B. 618.)
If the award be sent back for a specific
purpose and the arbitrator needs no
assistance from either side, he is not
bound to give notice to the parties:
[Howett V. Clements ; Clements v. Ho-
wett, 1 C. B. 128, ex parte Huntley, 1
£1. & B. 786,) This holds good espe-
cially if neither party after a reference
back by consent require the arbitrator
to hear fresh evidence : (see Baker v.
Hunter, 4 D. & L. 696.] If the award
be sent back only to alter such things
M make it bad upon the face of it and
fl.lzZZViii-] BEMITTINO CASE TO ABBITBATOBS. 179
mination of the arbitrator or arbitrators or umpire as the case 45,^"^^^^^^
may require, (q) upon such terms as to costs and otherwise as |!^^ ^ ^
to the said Court or Judge may seem proper, (r)
not to va^ at all the sabstanoe of the
deoision, it ia dearly not neoessary for
the arbitrator to resummon the par-
ses •• {Xorris v. Morria, 27 L. T. Rep.
108.) Where plaintiff was described
In an award by the wrong Christian
name, the Court sent back the award
for correolion: {Howett v. Clements,
vbiBupra.) If an award be good as
to three points but bad as to one, and
is sent back to the arbitrator as to that
one alone, the arbitrator, it seems, can-
not alter his decision as to the other
two: (Johnson r. Latham, Erie, J.,
20 L. J. Q- B. 236.) The amended
award need not recite the order by
which the award was referred back :
(Baker v. Hunter, 4 D. & L. 696.) In
one case it was held that the party
disputing the yalidity of an award might
apply to the Court to refer back the
award, and that the Court might do so
as when setting aside an award under
like circumstances : (Bradley y. Phelps,
6 Ex. 900. ) Where a letter alleged to
haye been written by one of tiie par-
ties to a reference was not discovered
nntil after award made, but which the
arbitrator swore would, if discorered
in time, have materially affected Ms
decision, the award was referred back :
i Barnard v. Wainteriffht, 10 L. J. Q.
I. 423.) And where the rule of re-
ference provided that " in the event of
any application being made on the sub •
jeotof the award" the Court should
have power to remit such award, held
that a rule for the payment of the
money was an "application" within
the meaning of the provision, and em-
powered the Court to remit the award :
(Johnson V. Latham, 19 L. J. Q. B.
829.) Where an arbitrator upon a re-
ference from Nisi Prius found a sum
due to plaintiff within the jurisdiction
of the inferior Courts, but expressed
an opinion that the cause was a proper
one to be tried in the superior Courts,
held that there was no power to refer
back for the arbitrator's certificate as
to the costs; but thai the proper
course was to lay his award before the
Judge at Nisi Prius, who would exer-
cise his discretion: {Webb v. Lee, 1
D. & L. 684.) It is a rule of extended
application that the Court cannot re-
ceive affidavits to explain the intention
of the parties to a written instrument,
'f such '^davits are in contradiction
t. Rtrument sought to 1
^- Jned ♦'^here therefore, upon «-
ference by order of Nisi Prius, the
parties agreed that a statement of cer-
tain sums admitted to be due to the
plaintiff should be annexed to the or-
der, and one of these was £750, but
by mistake of a copying clerk was
written £450 ; held that the mistake
was in effect ^e mistake of the plain-
tiff and could not be amended: ( Wynn
V. Nicholson, 6 D. & L. 717.) The
arbitrator should make his award
within three months after be shall have
entered on the reference : (see s. xcv.
of this Act.J Where the costs which
an award had directed defendant to
pay had been taxed, but the award
was as to one part of it referred back
to the arbitrator ; held that a second
taxation of costs was necessary:
(J'ohnson V. Latham, 20 L. J. Q. B.
236.) If under the original reference
the arbitrator has power over the costs
of the reference and of the award, that
power continues as to the costs of the
award when referred back : (McRae v.
McLean, 2 El. & B. 946.) If an arbi-
trator, when an award has been referred
back to him, hear fresh evidence and
thereupon amend his award so as to
supersede part of his former award,
the costs of proving the part so super-
seded should, it seems, be divided be-
tween the parties : (Blair v. Jones, 6
Ex. 701.)
(q) As the case may require, i. e. as
to the whole matters referred or any
part thereof in the discretion of the
Court or the Judge to whom applica-
tion is made under this section.
(r) It is in the power of the Court
or Judge to impose costs or give
lie 'p , jM .
ii \
X'-"!;
*<'
^
i,.' ■.
3 i'
180 THE COMMON LAW PROCEDURE ACT. [s. Izzxix
Crvvsia-i . ^n- ^Q\f^ LXXXIX. («) All applications to set aside any award made
^'f /i^r * ''^ p' ic^*'with ^^ * compulsory reference under this Act, (t) shall and may
may
to wIiTch ap. be made (u) within the first six days (v) of the term next fol.
pllcfttioil to » N / w*
MtMide lowing the publication of the award to the parties, (to) whether
be made, made in vacation or term ; (x) and if no such application be
such direotiona when referring back
the award as may at the time of the
application be thought necessary. If
the application be granted ** upon pay-
ment of costs," the payment of the
cost will be a condition precedent to
the redetermination : (see note t to s.
Ixlz. of this Act.)
(«) Taken from Eng. St. 17 & 18
Vic. cap. 1?6, 8. 9. — Applied to Coun-
ty Courts. The words of this enact-
ment, which are restricted to awards
made upon compulsory references,
(s. Ixxxiv.) are not so extensive in
meaning as those used in s. IxxxTii.,
which relate to awards made under
B. Ixxxri. of this Act.
(t) t. e. Pursuant to s. Ixxxiv. of
this Act. There cannot be compulsory
references except of mere matters of
account. By "compulsory reference"
is meant references other than by con-
sent. Such seems to be the only in-
ference to be drawn firom the reading
of s. Ixxzvi., which enacts that " it
shall be lawful for the arbitrator upon
any compulsory reference under this
Act or upon any reference by consent
of parties, &o."
(u) Shall and may be, ^c." The
obvious intention is to lay down a rule
limiting the time for moving to set
aside the awards mentioned in this
section. That rule must be taken to
be imperative and not merely direc-
tory. T Je words " shall and may be,
&c," as used in this enactment, are
synonymous with "must be," and
yet the Courts have power to ex-
tend the time for moving against
awards beyond the period of time
limited.
(v) Computation of time: (see N.
R.166.)
(w) What is the meaning of the
word ' ' publication ? " "I think that
word satisfied by the award having been
made and notice having been given to
thepartiea that it is within their reach
upon payment of just and reanonable
expenses. And I concur in thinking
that the award cannot be said to be
ready when it is only to be had on
submitting to a wrongful demand."
ilindal, C.J., in Muaiellbrook v. Dun-
in, 9 Bing. 606.) The part italicised
of this definition has been upheld;
but the remainder has been denied:
(Afacarthur v. Campbell, 5 B. & Ad.
618 ; see also remarks of Coleridge J.
in Reynold* v. Askew, 6 Dowl. P. C.
682. ) The accepted definition appears
to be this — An award is published when
the parties have notice tiiat it is ready,
without reference to the circumstance
whether the charges are reasonable or
not. The notice, it seems, should be
such as to enable the parties to
obtain a knowledge of the contents
of the award : {Brooke v. Mitchell, 8
Dowl. P. C. 892.) It is not now any
excuse for not applying to set aside an
award within the proper time that
the parties had been prevented from
obtaining a knowledge of the contents
by the arbitrator withholding the award
until payment of extortionate fees:
{Moore v. Barley, 1 C. B. 445 ; Maear-
thurr. Campbell, ubi supra;) but it has
been held under the old practice that
the Courts have no general jurisdiction
over fees paid to arbitrators under
protest : {Doatett v. Qingell, 2 M. &
G. 870.)
(z) Qu. If an award be made during
term but too late to be moved against
within the first six days of such term,
when must the application be made ?
The meaning of the enactment under
consideration is not very clear upon
the point. The doubt is, as to
whether a party desiring to move
against an award must move within
the first six days of term, or with-
8, XC] PRACTICE AS TO COMPULSORY REFERENCES. 181 /
made, or if no rule be granted thereon, or if any rule granted
thereon be afterwards discharged, such award shall be final
between the parties, (y)
XC. (2) Any award made on a compulsory reference under ^^of^p^^*^^^*^ A-
this Act, (a) may, by authority of a Judge (6) on such terms as iVard my,* V/66
to him may seem reasonable, (c) be enforced (d ) at any time ^^,Xe' be
after six days (c) from the time of publication, (/) notwith- J"^"^^^
in
.u the first six days of term next
after pablioation, if award made during
term. If the enactment will bear the lat-
ter construction, then, for example, an
award made on the fourth or fifth day
of a term must be moved against on or
before the tenth or eleventh day of the
same term. But if the contrary con-
gtruction be the true one, then the
party wishing to move would have the
first six days of the term next foUow-
iiig the term in which publication was
made. The latter seems to be the
better opinion. See Laurie v. Rmaell,
1 U. C. Prac. R. 88.
Though the enactment under consi-
deration is restricted to awards made
upon compuUory references, a general
view of the time within which awards
may be set aside,may be here introduc-
ed. Awards for the purpose of the in-
quiry may be divided into three classes
_1. Those under St. 9 & 10 Wm. III.
cap. 15; 2. Those under the en-
actment hero annotated ; 8. Those not
embraced in either of the said statutes.
As to the first, the application must be
made before the last day of the term
next after publication: {In re Burt,
6 B. & G. 668.) As to the second,
Trithin the first six days of the term
next after publication: («. Ixxxix.)
As to the third, within the first four
days of the term next after pub-
lication (being the period allowed
for moving new trials), unless there is
good reason for further delay : (see
Rawathorn v. Arnold, 6 B. & C. 629 ;
Emet V. Ogden, 7 Bing. 268 ; Mussell-
brookv. Dunkin, 9 Bing. 605; Laurie
V. Russell, Burns J. U. C. Prac. R. 38 ;
farther as to the practice, see note h to
s. Ixxxvii. of this Act.)
(y) It is apprehended that the word
"final" must be understood tub modo.
The award mentioned in this enact-
ment, if not moved against within the
prescribed time, may be taken to be so
far final that it cannot afterwards be
set aside in a summary manner ; but
if the same award be sued at common
law for the purpose of enforcing it, it
is presumed that all the usual defences
would be open to defendant. It can-
be that an intentional or inadvertent
omission to move against the award
will debar the party who might have
moved and taken the initiative, from
objecting to an award void or defective
upon which he is sued, and against
which at common law he may have a
good defence.
[z) Taken from Eng. Stat. 17 & 18
Vic. cap. 126 s. 10. — AppUed to County
Courts.
(a) i.e. Pursuant to s.lxxxiv. which is
restricted to mere matters of account.
(6) By authority of a Judge, intends
an application to the Judge to be, it is
presumed, supported by afl&davit. Qu.
is the order absolute in the first in-
stance ? The practice here enacted
seems to be analogous to that of ob-
taining speedy execution, and there-
fore leads to the inference that the
order may go in the first instance. The
Judge meant as regards the Superior
Courts is either the Judge in Chambers
or in Practice Court. As to the powers
of the former see note m to s. xxxvii.
As to the powers of the latter see St.
13 & 14 Vic. cap. 51 s. 8.
Ic) See note r to s. Ixxxviii.
\d) As to the mode of enforcing
awards in general see note g to s.
Ixxxvii.
(e) The time mentioned in the Eng-
lish Act is " seven days."
(/) When award said to be published
see note w to s. Izzxix.
I
'4\
* "
m.
!.'•
i
182
THE COMMON LAW PROOEDURX ACT.
[s. xci.
8. foii]
S;iJ»^;*°* standing that tho time for moying to 8et it aside has not
•lapwd.
-od. (g)
I
c»*n,^hx-i /fri ^■^^' ^ ^*) ^^^' CO Whenever tho parties to any deed or instrument
^i*/*-*'^ En|t.o.L.p.in writing to be hereafter made or executed, (i) or any of
'them, (i) shall agree (/) that any then existing or future dif.
ties'to^i^ ferences (m) between them or any of them shall be referred to
hel!«after° arbitration, (n) and any one or more of the parties so agreeing
^Iwed tt7t or any person or persons claiming through or under him or
enml^^ them, shall nevertheless commence any action at Law or suit in
■hXh^w?* Equity against the other party or. parties or any of them, or
^Jyon/Jj^^' against any person or persons claiming through or under him
judmmay ^' *^®™ ^"^ respcct of the matters so agreed to be referred or
■JgJJ^'any of them, (o) it shall be lawful for the Court in which such
Bult'tesMct- action or suit is brought (j)) or a Judge thereof (g) on appli-
ing TOch dif- cation by the Defendant or Defendants or any of them, (r)
{g) See note x, ante.
\h) Taken from Eng. St. 1? & 18
Vic, cap. 125, 8. 11.— Applied to
County Courts.
(t) Only applicable to deeds or
other instrument of submission exe-
cuted after 21st August, 1856, when
this Act came into force.
(k) Or any o/<Ac»i— that is, of the
parties to the deed, &o.
{I) Or any of them shall agree — One
party cannot make an agreement.
There must be the aggregatio mentium
of at least two persona. The word
('agreement " is often used as synony-
mous with promise. In this sense it
appears to be used here. And yet the
party promising or agreeing must be
one of the parties to a deed or instru-
ment — ^without the promise of the
other party or parties to the instru-
ment there would be a want of mutu-
ality and therefore no agreement. The
submission intended is manifestly one
by consent of parties : (see notes to s.
xcvii.) Compulsory references already
noticed can only be as to matters of
mere account : (see note x to s.
Izxxiv.) A submission though of pros-
pective disputes has been held to be
proper to be made a rule of Court:
(Parket v. Smithy 19 L. J. Q. L.
405.)
(m) See note I, tupra.
(n) Apparently a matter of indiffer-
ence whether it is or is not agreed that
the submission shall be made a rule of
Court. In this respect there is a dif-
ference between submissions under
this enactment and under s. Ixxxvi.
(o^ The agreement so made shall
be bmding not only upon the parties
to the instrument but upon their re-
presentatives, that is to say— all per-
sons claiming through or under the
parties to the instrument in respect of
the matter in dispute.
(jo) The application can only be
made to one Court — that being the
Court in which the action is brought—
and if an order be made in that Court it
is not in the power of either party to
avoid it by bringing an action in any
other Court: (See Doe d. Carlhew et
al V. Brenton, 6 Bing. 469 ; see also
Parkin v. Scott, 1 Taunt. 565.)
{q\ Or a Judge thereof. As to these
woraa see note m to s. xxxvii. of this
Act.
(r) The application may it seems
be made by a defendant whether with-
in or without the jurisdiction. There
xcii]
ENFORCINQ ARBITRATION CLAUSES
183
CB. on
application
after appearance pnd before plea or ooswcr, («) upon being ^•JJ"^'"^
aatisficd {t) that no suflScient reason exists why such matters |jfj}»"j^''«'«nt
cannot be or ought not to be referred to arbitration according jertain mat-
to such agreement as aforesaid, (ti) and that the Defendant waa
at the time of the bringing of such action or suit, and still is
ready and willing to join and concur in all acts necessary and
proper for causing such matters so to be decided by arbitration,
(v) to make a rule or order staying all proceedings in such
action or suit, on such terms as to costs and otherwise, as to
such Court or Judge may seem fit; (w) Provided always, thatp^,^
any such rule or order may at any time afterwards be discharg-
ed or varied as justice may require, (x) » - '
XCII. (y) If in any case of arbitration, the document autho-(yipp. cb. c.) '^'^ shcLf^
rising the reference, (2;) provides that the reference shall be to A?f864,«.'i2! ^/S'i^^
is nothing in the context that mani-
fests a contrary intention
(«) If defendant plead, he will, it
appears, he stopped from afterwards
raising the objection.
it) As to the mode of satisfying the
Court or a Judge see note q to s. xxxt.
(tt) According to such agreement at
aforesaid. This provision is one en-
tirely new in principle, and is directly
opposed to many decided cases. The
effect of the enactment ia to drive the
parties from the Court to the arbitra-
tors chosen or to be chosen by them-
gelves— perhaps long before the exist-
eence of difficulties between them. It
has been over and over again held that
neither Courts of Law nor Equity
could be ousted of jurisdiction by
agreement of the parties : {Kill v.
Jlollister, 1 Wils. 129; Thompson v.
Charnoek, 8 T. R. 139 ; see also Har-
ris V. Reynolds, 7 Q. B. 71 ; and Scott
V. Avery, 8 Ex. 487,497.) The change
introduced by this Act is one for the
better.
(v) Mutuality must be shown. In
the first place it must be made to ap-
pear that the party suing had agreed
to refer, and that he is suing in breach
of that agreement. In the next place
it must appear that the party apply-
ing was a party consenting to the in-
tended reference.
(w) There is no doubt that the
Courts have always had power to stay
an action brought against good faith :
(Cocker v. Tempest, Parke, B. 9 Dowl.
P. C. 806.) The power of each Court
over its own process is unlimited, it is
a power incident to all Courts, both
superior and inferior : (76. per Alder-
son, B.) The exercise of the power is
certainly a matter for the most careful
discretion, and when there are con-
flicting statements of facts it is in
general bettor not to try the question
between the parties by affidavit : {lb.)
Even if the Court should refuse to
stay proceedings under this enactment,
and indeed even if defendant neglect
to avail himself of its provisions it
would appear that he may notwith-
standing, sue plaiutiiF for having vio-
lated his agreement to refer to arbitra-
tion: (Livingston v. Ealli, 24 L. J.
Q. B. 269 ; see also Wade v. Simeon, 3
D. & L. 27.)
(x) i. e. Either by the Judge who
made the order or by the Court in
banc. : (see Shaw et al Nickcrson, 7 U.
C. R. 643.)
{y) Taken from Eng. Stat. 17 & 18
Vic. cap. 125 s. 12. — Applied to County
Courts.
(z) Document, i. e. The submission or
agreement between the parties, evi-
denced by writing : mere verbal sub-
i nr,
f' I
.j-t
I
I.
J .- , ■- ■ Ft
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IMtf
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t
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184
Provl»lon for
'uppWIng
tbo place of
a linRU arbi-
trator or um-
pire, dyJojjf,
reftisliig to
act, ic. whoa
the refurence
dfiea not
ahow an In-
tention that
hli place
should not
be lupplied.
THE COMMON LAW i-KOOEDURE ACT. [g. j^j]
a single arbitrator, (a) and all the parties do not, ailor differ,
onces have arisen, (h) concur in the appointment of an
arbitrator, or if any appointed arbitrator refuse to act, (r) or
become incapable of acting, (tl) or die, (e) and the terms of
such document do not show that it was intended that such
vacancy should not be supplied, (/) and the parties do not
concur in appointing a new one, (g) or if, where the parties or
two arbitrators are at liberty to appoint an umpire (A) or third
missions not being within this enact-
ment. The general term " document"
is evidently used to embrace the sub-
mission described in the preceding
section (xci.) in whatever shape it may
be drawn.
(a) i.e. An arbitrator not named in
the document authorising the reference.
(b) Manifestly intending a document
executed before differences have arisen,
but in anticipation of such differences.
Such a clause is by no means an un-
common one in deeds of copartner-
ship, &a.
(c) No mannot being a Judge or other
such public officer can be compelled to
act as an arbitrator or mediator be-
tween parties against his will : {Craw-
shay V. Collins, 3 Swanst. 90.) As to
neglect to act after having accepted the
office: see Willoughby v. Willoughby,
9 Q. B. 923. As to wilful delay, see
Bradlty v. Phelps, 6 Ex. 897.
{d) It has been said that neither
natural nor legal disabilities render a
person incapable of being an arbitrator:
for every person is at liberty to choose
whom he likes best for his Judge, and
be cannot afterwards object to the ma-
nifest deficiencies of those whom he has
himself selected: (Russell Arb. 107.)
Supposing this to be the true doctrine,
it will be observed that it is restricted
to cases where the disability, &o., was
in existence and manifest when the
arbitrator was appointed, and to cases
where the arbitrator has been appoint-
ed by the parties themselves. If the
arbitrator be appointed by the Court,
or, though appointed by consent, if
after his appointment a natural or legal
disability happen to him, it follows
that the parties will not be necessarily
bound (o continue him.
(e) As to the death of one of several
arbitrators : see Crawshay v. Collins 3
Swanst. 90; Cheslyn v. Dalhy, 2 Y.'&
C. 170. As to the death of one of the
parties to a reference, see Lewis y
Ilolbrook, 2 Dowl. N. S. 991 ; Boven
V. Williams, 6 D. & L. 285.
(/ ) A clause may be inserted in any
submission to provide for the contin-
gencies noticed in this enactment : (see
Bythewood, by Jarman, Vol. I. 533
C19.) If there be no express stipula'
tion, then of course this enactment is
applicable.
(g) It has been held that the death
of an arbitrator defeated a refereuoo
and opened up the whole matter be-
tween the parties so as to place them
in the same position as if no reference
had ever been made or agreed upon.
Under these circumstances it was al-
lowable for either party to abandon
the submission : {Harper el al. t.
Abrahams, 4 Moore 8.) And yet such
conduct has never been looked upon in-
different to that of a clear breach of
faith : {lb.) To pi-cvent it the section
under consideration has been enacted.
It has been held under the old practice
that no action would lie for refusing to
nominate an arbitrator pursuant to a
covenant in that behalf: (see Tatter-
sail V. Groote, 2 B. & P. 131 ; see also
Scott V. Avery, 8 Ex. 487, 497.)
{h) Arbitrators are not at liberty to
appoint an umpire unless express
authority to do so be given them by
the submission or other instrument of
reference : (see Listle v. Newton, 9
©owl. P. C. 437.)
t. xcii.]
CONTINOENT APPOINTMENTS TO ARDITRATE.
186
arbitrator, (t) 8Uoh parties or arbitrators do not appoint an
uropiro or third arbitrator, (J) or if any appointed umpire or
third arbitrator refuse to act, (k) or become incapable of
acting* (0 or die, (m) and the terms ofthe document authorising
tho reference do not show that it was intended that such
vacancy should not be supplied, and the parties or arbitrators
resoectively do not appoint a new one, (w) then and in every
guch instance, (o) any party may serve tho remaining parties or
the arbitrators, as the case may be, with u written notice to
appoint an arbitrator, umpire or third arbitrator respectively j (p)
and if within seven clear days after such uoticc shall have been
served, (q) ^o arbitrator, umpire, or third arbitrator bcAjuagoto
appointed, it shall be lawful for any Judge of any of the "IhcMn "^
Superior Courts of Law or Equity in Upper Canada, upon oJuTJUper
summons to bo taken out by tho party having served such notice p"'^*
as .vforesaid, (>•) to appoint an arbitrator, umpire, or third
arbitrator, as tho case may be, and such arbitrator, umpire, or
tbifd arbitrator respectively, shall have the like power to act in
(,) A third arbitrator must be ap-
pointed before the arbitration proceeds.
An umpire may be nnd usually is
appointed after the arbitrators have
entered upon the reference and are
unnblo to agree. There are other
(lifitlnctlona between the two unne-
cessary to be mentioned here : see
Uitteiy. Totonley et al. 1 Ex. 672; Pe-
Urmy-Ayre, 18 C. B. 853.
(;•) The appointment of a third ar-
bitrator or umpire may bo a condition
precedent to the right of tho arbitrators
to act. The provision under consider-
ation contemplates some such case.
{k) Refuse to act. As to these words
gee note c, supra. The refusal to act
by an umpire named by the nrbitra-
trators does not make the arbitrators
incapable of naming another person.
Their power continues until they have
named some one who accepts the
office : (see Olivers. ColUngx, 11 East.
867; Trippet v. Eyre, 8 Lev. 263.)
This enactment appears to be directed
to tho case where arbitrators refuse to
make an effective appointment.
[l) See note d, mpra.
Im) See note e, mpra.
\n) A special clause may be intro-
duced into the submission to meet this
case. See note/, supra.
io) i.e. In the several instances de-
tailed in the early part of this section.
{p) No particular form of words is
necessary ; the notice must of course
be varied to accord with the facts of the
case. As to the service of the notice,
&c., see N. R.131 et aeq.
{q) The period of seven clear days
appears to be a very common or with
the English Legislature for si'.!; ro-
polntments in tho case of public com-
panies. See English Statutes 8 & 9
Vic. cap. 18 8. 28; 8 & 9 Vic.
cap. 10 ss. 180, 181 ; 8 & J Vic. cap.
20 s. 120. In Upper Cnracia as regards
public companies, thcru are many en-
actments in pari materia. See for ex-
ample stats U. C. 4 Wm. IV. cap. 29
s. 8 ; 5 Wm. IV. cap. 19 s. 3.
(r) As to the powers of a Judge see
note »t to s. xxxvii. of this Act.
1 t
I
MR
'^ -3a^
■K
! ;•
i|
,f *>■-■'
186
THE COMMON LAW PROCEDURE ACT.
[83. xciii. xciv.
the reference, and make an award as if he had been appointed h
consent of all parties, (s) •'
♦ ^.^^^^ -fv. ^ifPP-c^f XCIII. (0 When the reference (u) is or is intended to be
^/6^
to two arbitrators, one appointed by each party, it shall h
I^nJulo lawful/or cither party in case of the death, (v) refusal to act, (w)
torsnnd'onJor incapacity of any arbitrator appointed by them, (x) to'sub.
KutTap- stitute a new arbitrator, unless the document authorizinc^ the
ottcJ'may, reference (>/) show that it was intended that the vacancy should
notoT&S" "°* ^^ supplied, (z) and if on such a reference one party fail to
a?wt'itor'?o»PPO^nt ao arbitrator either originally or by way of substitution
lelsThe ^5 aforesaid, (a) for seven clear days (h) after the other party
Md^ shall have appointed an arbitrator, and shall have served the
nc *8hou?d P^^^y ^° failing with notice in writing to make the appointment (c)
not be sup- the party who has appointed an arbitrator may appoint such
arbitrator to act as sole referee in the reference, (il) and an award
made by him shall be binding on both parties as if the appoint-
PH>\i8o. ment had been by consent ; provided, however, that the Court
or a Judge (c) may revoke such appointment on such terms as
shall seem just.
(App. a>. c.) XCIV. (/) When the reference (g) is to two arbitrators, and
A.iW.s.iiithe terms of the document authorizing it (h) do not show that
act
uu
reference
provides
thi
cancy
(«) An umpire may, it seems, be
appointed under this enactment though
the instrument of reference were ex-
ecuted before this Act came into force :
(see In re Lamb, 24 L. J. Chan. 145.)
(l) Taken from Eng. Stat. 17 & 18
Vic.cip. 125 s. 13. — Applied to County
Courts.
(«) Reference — intended to apply to
submissions by consent of parties. The
instrument of reference being the
"deed or instrument in writing" men-
tioned in s. xci. of this Act.
(v) See note e to preceding section
(xcii.)
(to) See note k to preceding section.
f x) See note / to preceding section.
(»/) Unless the document authorizing
the reference, &c., .see note 2 to preced-
ing section ; also note ii to the section
here annotated.
(?) See note / to preceding section
(xcii.)
(«) It has been usual in ordinary
submissions to provide by express sti-
pulation that if either party fail or ne-
glect to appoint an arbitrator within a
specified time, the other may upon
proper notice do so for him. See fur-
ther note d, infra.
(I/) See note g to preceding section.
(<•) As to service of notice, &c.. see
N. 11. s Ul et seq.
(d ) It is important to note the effect
on the part of either party to appoint
an arbitrator. In such case the arbi-
trator appointed by the other may pro-
ceed as sole referee.
(e) Court or Judi/e, see note m to a.
xxxvii.
(/) Taken from Eng. Stat. 17 & 18
Vic. cap. 125 s 14— Applied to County
Courts.
(.'/) See note u to preceding section
(xciii.)
[h) See note z to s. xcii.
■MM
, xcv. ]
TIME WHEN AWARD TO BE MADE.
187
'twas intended that there should not be an umpire, or Provide Jj^jJ!^^^^',^
■■■>• !
int
re
therwise for the appointment of an umpire, the two arbitrators jj^y*"?^*'
raav appoint an umpire at any time within the period during "nif«» **>»
hich they have power to make an award, (i) unless they be forwa it.
ailed upon by notice as aforesaid to make the appointment
sooner. 0)
XCV. (Jc) The arbitrator acting under any such document (T) (jtpp. o>. c.) <^<»^ . fi<ti .fn.
„, -nmnulsory order of reference as aforesaid, (m) or underKngC.L.p. ■^ •''• «^ a^.
or Luwf •! ^ Til N111 ii. A.1854,B.16. y/y/ /y? /*i
flDV order referring the award back, (n) shall make his award / f rf^
under his hand, (o) and (unless such document or order respec- mode within
tively shall contain a different limit of time) (jj) within three period.
I ,14
(' r
/,) When two arbitrators differ be-
tween tUemselves the power ♦© call in
jn umpire is a most useful £ i neces-
sary one. However, it is not the oflBce
of the umpire when appointed to de-
cide between the two arbitrators, but
to decide between the parties to the
reference. The powers of arbitrators
are often terminated by the appoint-
ment of an umpire. It is his duty to
decide all matters referred, Including
those upon which the arbitrators are
unable to agree. This appears to be
one of the leading distinctions between
an umpire and third arbitrator : (see
ToUii V. Saunders, 9 Price. 612 ; Rey-
nolds V. Gray, 1 Rayd. 222 ; Mitchell
y. Harris, 1 Rayd. 671 ; Bates y. Cooke,
9 B. & C. 407 ; Sottlsby v. Hodgson, 1
W. B. 463 ; Beck v. Sargent, 4 Taunt.
232 1 and generally see 2 Saund. 133,
note 7 ; see also Jleathcrington v. Ro-
binson, 7 Dowl. P. C. 192; Harlow v.
Eead, 3 D. & L. 208.)
( }• ) J. e. Under s. xcii.
[k) Taken from Eng. Stat. 17 & 18
Vic.cap. 125 s. 15.— Applied to County
Courts.
(/) i. e. The document in as. xcii.
xciii. and xciv. of this Act.
(m) i.e. Under s. Ixxxiv. orlxxxvi.
(n) i.e. Under s. Ixxxviii.
(o) I.e. The award must not only be
in writing but signed : (see Everard v.
Patcrson, 6 Taunt. 626.) Consequently
the award to be made in any of the
cases e5;umeratcd in the commence-
ment of this section must be made in
writing signed by the arbitrator mak-
ing it. Still it is apprehended that
this enactment is only cumulative, and
that it does not deprive the parties to a
submission from requiring a form of
award different to that in this enact-
ment prescribed. If, for example, the
submission provide that the award
be under the hand and seal of the arbi-
trator, an award not scaled may not
be considered a suf&cient compliance :
(see Henderson v. Williamson, 1 Str.
116.) And yet it is doubtful whether
in the example supposed the omission
to af&x the seal would at this day in-
validate the award. In such cases
there is ample discretion reposed in
the Courts to cause formal omissions to
be rectified, which in one case they did
nut hesitate to exercise. Though in
an old case where the submission
called for an award indented, an award
both in writing and sealed but not in-
dented was held to be bad : (see Hin-
ton V. Cray, 3 Keb. 512.) yet in a later
case the Coiirt refused to entertain a
similar objection : (see Qutliffe v.
Dunn, Barnes, 55.) It may be added
that it is usual for awards to be exe-
cuted in the presence of a subscribing
witness or witnesses.
(/>) Every well drawn submission
contains a provision fixing a period
within which it is declared that the
award shall bo made.
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188
THE COMMON LAW PROCEDURE ACT.
[s. xcv.
months (q) after he shall have been appointed and shall have
entered on the reference, (r) or shall have been called upon to
act by a notice in writing from any party, (s) but the parties
riod may may by consent in writing (t) enlarge the term for making the
*"*■ award ;"(?<) and it shall be lawful for the Superior Court of
which such submission, document, or order is or may be made
Period
bo
^/7f
(q) As to computation of the
se In re Higham and Jeasop, 9 Dowl.
^ time
see '.^ ' " ' ' " '^
P. C. 203 ; Kerr v. Jeston, \ Dowl. N.
S. 538. The necessity for a limitation
as to time can be readily understood
when it is mentioned that without such
limitation the authority of an arbi-
trator to make an award will continue
for his life, or at least until revoked :
(Russell Arb. 131.)
(r) The appointment of an arbitra-
trator, when by consent, dates from the
submission or other document of refer-
ence ; but for this purpose execution
by all parties is necessary : (see An-
tram v. Chace, 15 East. 208.) The
award may be made on the same day
that the document authorizing the re-
ference has been executed : (see Bar-
nardiston v. Fowler, 10 Mod. 204.)
(a) This totice of course to be effec-
tive only when the document of refer-
ence has been executed by all the par-
ties, if from the reading of the instru-
ment it appear that the consideration
to each party is the accession of all
parties.
(f) The specific mode of enlarge-
ment, viz., by writing, is pointed out.
It must, as regards all references com-
ing within the meaning of the enact-
ment, be carefully observed : (see
Hurley V. Stephens et ux. 1 M, & W.
156.)
(«) The right of the parties to a re-
ference by consent to enlarge the time
for making an award has never been
questioned. The enlargement, if there
be a period limited by the instru-
ment of reference for making the
award, should be made within that
period. The consent must be mutual :
{Euthven v. Ruthven, 6 U. C. R. 273.)
And the enlargement ought to be in-
dorsed at the time it purports to be
signed : (S. C. 5 U. C. R. 27G.) But
the parties by their conduct, such as
as attending meetings, &c., have at
common law been held to authorize and
assent to enlargements made by the
arbitrator : (see Leggett v. Finhy 6
Ring. 255.) Where the parties con-
ducted themselves as if there were a
good enlargement, an irregular en-
largement was held to be thereby
waived : [Hallett v. Ilallett, 6 M. &
W. 25 ; see also Ruthven v. Ruthven
ubi supra ; Brown v. Colhjer, 20 L J
Q. B. 426 ; Hull v. Alway, 4 0.' s!
374.) It is usual in well drawn sub-
missions to give the arbitrator himself
power when necessary to make enlarge-
ments. That power is considered aa
running from time to time so as to feed
future enlargements: (see Payne v.
Dcakle, 1 Taunt. 609 ; Barrett y^ Parry
4 Taunt. 658; Leggett v. Finlay,^^
Ring. 255.) The arbitrator has not
the power unless express authority be
conferred upon him : {In re MorpheU
2 D. & L. 967.) If the time be en-
larged by consent of parties when there
is no express authority conferred upon
the arbitrators, the enlargement must
be made a rule of Court before the issue
of an attachment for non-performance:
{Macarthur v. Campbell, 5 B. & Ad.
518.) If the enlargement be made
pursuant to agreement in the instru-
ment of reference contained, the en-
largement is part of the submission ;
(Re Smith and Blake,% Dowl. P.C. 130.)
It seems clear that when the time fir
making an award is enlarged, the en-
largement, whether by the parties, the
arbitrators, or by Judge's order, should
with a view to an attachment be made
a rule of Court as well as the original
submission : [Maxecar v. Chambers et
al. 4 U. C. R. 171.) Where a cause
jgy] ' ^ ENLARaiNQ TIME.
rule or order, (y) or for any Judge thereof, (w) for good
cause to be stated in the rule or order for enlargement (x) from
jjjjje to time, (^) to enlarge the term for making the award, (z)
and if no period be stated for the enlargement in such consent
189
g referred under a Judge's order
contaiDing a proviso that the arbitra-
tor should make his award on or before
jjy appointed, but if not then prepar-
„ij to enlarge the time, " as he might
require and a Judge of the Court might
think reasonable and just," held that
the time was duly enlarged by a Judge's
order obtained after th*" ♦ime limited
for making the award had expired :
jReidy. Fryatt, 1 M. & S. 1.) Per cur.
I'Such a term ought never to have been
inserted intho order of reference" {lb.)
If an arbitrator be authorized to en-
large tbe time by Judge's order, an
enlargeJttcnt by himself alone is insuf-
ficient: (Mar on v. Wallis, 10 B. &
C. 107.)
h) Before application can be made
nnder this provision, it would seem
that the submission, if the reference
be by submission, must be made a rule
of Court : (see Lambert v. Hutchinson,
2M.& 0-858.)
(«') Or for any Judge thereof, see
note m to s. xxxvii.
(z) The rule or order cannot be
made ex parte ; it must be nisi, and to
show cause : (see Clarke v. Stocken, 5
Doffl. P. C. 32.)
(y) See note u stipra.
(z) Neither the Court nor a Judge
hatt power at Common Law to enlarge
the time for making an award : (see
ndden v. Glasscock, 5 B. & C. 390,
Tldd'sPr. 9 Edn. 82G.) The power
ffas for the first time conferred by
Eng. Stat. 3 & 4 Wm. IV. cap. 42, s.
39, of which our 7 Wm. IV. cap. 3, s.
29, is a copy : (see Doe d. Jones et ux
T. Powell, 7 Dowl. P. C. 639.) " And
that the Court or any Judge thereof,
may from time to time enlarge the
term for any such arbitrator making
his award :" (7 Wm. IV. cap. 3, s. 29.)
It has been after some doubt establish-
ed that this clause, although annexed
to and immediately foUwiug a provi-
sion in reference to revocations, ap-
plies equally to all cases, whether there
has been an attempt to revoke or not :
(see Doe d. Jones v. Powell, 7 Dowl.
P. C. 539; Parbery v. Newnham, 7
M. & W. 378 ; Lambert v. Htitchinaon,
2 M. & G. 858.) The right of the Court
or a Judge to interfere where a spe-
cial power to enlarge has been oon-
ferred upon the arbitrator is not clear;
though the preponderance of authority
seems to be in favor of the proposi-
tion. Held where there was power in
the arbitrator to enlarge the time, but
the time was intentionally allowed to
expire that the Court could not inter-
fere : (Doe d. Jones et ux v. Powell, 7
Dowl. P. C. 639. Contra — Nejvman v.
Parbery, 9 Dowl. P. C. 288.) Semble,
per Tindal, C. J. : " Where the rule or
order of reference contains no power
to enlarge the time, the above enact-
ment is a very useful provision, as it
enables the Court or a Judge to sup-
ply the defect. But I doubt whether
the Statute empowers the Court or a
Judge to interfere whore the arbitra-
tor has power to enlarge but has inad'
vertently permitted the time to expire
without exercising his power" : (Lam-
bert V. Hutchinson, 2 M. & G. 860 ; see
also In re Salkeld v. Slater, 10 A. & E.
7G7 ; Davison v. Gauntlett, 1 Dowl. N.
S. 198.) In a more recent case the
Court expressed a decided opinion
that the time might bo enlarged
by a judge, though the arbitrator
had the power but neglected to ex-
ercise it : [Re Browne v. CoUyitr, 2 L.
M. & P. 470, Wightman, J. ; see also
Leslie v. Richardson, 6 D. & L. 01 ;
Doe d. May v. Connell, 22 L. J. Q. B.
321.) If no power be conferred upon
the arbitrator, it is clear under our
Statute that that the Court has power
t' enlarge the time upon a proper appli-
cation : (Jones et al v. Russell, Bobin-
Bon, C.J., 6 U.C.R. 303.) The validity
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THE COMMON LAW PROCEDURE ACT.
[8- xcv.
or order for enlargement, it shall be deemed an enlargement f
S'piVslau**"®™^^*^'^'^") ^"^/" *"y ^^^ ^^^'^ ^'^ ^^Pire shall have
Mt. been appointed, (ft) it shall be lawful for him to enter on th
^^\n^ reference in lieu of the arbitrators, (c) if the latter shall ha ^
allowed their time to expire without making an award {d \
of an award made by an arbitrator
after the time limited in his authority
for making it, but before enlargement
by the Court is very doubtful : {Re
Browne v. Colly ier, 2 L. M. & P. 470.)
It has been intimated that where a ver-
dict has been taken subject to a refer-
ence thto Court can compel either of the
parties to consent to an enlargement
under peril of the verdict being allow-
ed to stand : (see Wilkinson v. Time,
4 Dowl. P. C. 37.) A rule to enlarge
the time for making an award issued
on the third or fourth day of term, but
as the term generally has been held
to relate back to the first day of term,
(Havoke v. Duggan, 6 U. C. R. 636,) a
distinction between enlargements by
the arbitrator and enlargements by the
court should be noted. Though the
arbitrator must exercise his power of
enlargement during the period limited
for making his award, the period with-
in which the court will make an order
for the purpose is only limited by its
own discretion: (Ru?sell, Arb. H., 146,
referring to Hall v. Rouae, Parke, B.
4 M. & W. 26 ; Farburg v. Newman,
9 Dowl. P. C. 288 ; Leslie v. Richard-
ton, 12 Jur. 780, 6 D. & L. 91 ; Bow-
en V. Williams, Ex. Nov. 24, 1848, 6
D. & L. 236.) But the court will sel-
dom interfere except in cases where
the arbitrator has by accident let slip
the precise day : (Andrews v. Eaton,
Parke, B., 7 Ex. 223 ; see also Ed-
tcards v. Davies, 18 Jur. 448 ; Les-
lie V. Richardson, 6 C. B. 378 ; Salkeld
V. Slater, 12 A. & E. 767.)
(a) t. e. Calendar month : (see Inter-
pretation Act, 12 Vic. cap. 10, s. 6,
8ub-s. 11,) " It seems clear that when
the time for making an award is en-
larged, the enlargement, whether
by the parties, the arbitrators, or by
judge's order, should be made a rule
of court as well as the original sub-
mission:" (Maseoar v. Chambers etni
Macaulay, J., 4 U. C. R. no.'"''
Crooks V. Chisholm et al, 4 0. S '12T
Charles r. Hickson^ T. T., 3 & 4 vl! '
Award," II. 8 ; also see In re T^^
kell et al, 2 U. C. 173.) "'"
(b) An umpire may be appointed bv
name in the document of reference If
not so appointed, provision is made
for his appointment under a. xciv of
this Act. And it would seem that in
the absence of express directions the
umpire may be appointed without
waiting, though for obvious reasons
the latter mode is in all respects prefer-
able: (see Ray v. Durand, 1 U r
Cham. R. 27.) ^•
(c) It is established law that the
umpire is to decide between the par-
ties to the reference and not between
the arbitrators in case of disagreement
When he enters upon his duties, the
duties of the arbitrators terminate. In
the words of this enactment he "en-
ters on the reference in lieu of the
arbitrators." It is not unusual for an
umpire appointed in the first instance
to sit with the arbitrators and hear the
evidence, but to take no part in the
proceedings unless the arbitrators dis-
agree. This is a convenient practice
and saves at least the expense of a se-
cond examination of witnesses.
(rf) The power of the umpire under
this enactment is deferred until the
arbitrators " shall have allowed their
time to expire without making an
award." Whether this provision is
cumulative or the contrary is doubt-
ful. Decisions before the passing of
this Act seem to establish «' that an
award of umpirage is valid though
made before the time limited for the
award of the arbitrators, if they disa*
: liSt Mi
jgvi.] AWARDS AS TO LAND. 191
, jl jiave delivered to any party or to the umpire a notice in
-riting stating that they cannot agreef'(e) ^'^ # '7 3-
XCVI. (/) When any award made on any such submission, S^^bfL. p! <^^=^ ^^"^ ^
Jmnent, or order of reference as aforesaid, ((/) directs that ^' "'^*' '•*•'• '"^''/^ J 5^
ssession of any lands or tenements capable of being the sub- ^^°5 ^{*.®
t^|, of an action of ejectment, (h) shall be delivered to ^^yltonoYtMi"
Av either forthwith or at any future time, (i) or that anv property *<>
f)ariy '^" .11 . n "® delivered,
' ch pa'^y ^® entitled to the possession of any such lands or the court
tenements, (j ) it shall be lawful for the Court, (k) of which ««ch deii-
Afl /Incument authorizing the reference is or is to be made a force' it as a
theau^" o . . .1 p 1 . . judgment iB
-lie or order, («) to order any party to the reierence who is in ejectment. ^
of any such lands or tenements, or any person in
of the same claiming under or put in possession by '^
him since the making of the document authorizing the refer- i^
ence (^) ^^ deli er possession of the same to the party entitled
»ree and do not make any award after-
sTrds • " (R^V ^' Durand, Macaulay,
J lli. C. Cham. R. 27.)
'\e) As to disagreement between ar-
bitrators, see Doddington v. Bailward,
7Powl. P. C. 640.
(/) Taken from Eng. Stai. 17 & 18
Vic.cap.125, 8. 16.— Applied to County
Courts. The beneficial application of
tliis section to County Courts is very
questionable, the action of ejectment
not being within their cognizance.
( a) i.e. The order of reference under
8. Ixxxiv. as to compulsory references
or the deed or instrument in writ-
ing as to references under s. xci.
This enactment is made to extend to
any award referred or made pursu-
ant to those sections which directs that
possession of any lands, &c.
(/() By the common law an ejectment
will not lie for anything whereon an
entry cannot be made, or of which the
Siieriff cannot deliver possession. In
other words, ejectment is only main-
tainable for corporeal hereditaments :
(Tillinghast's Adam's Eject, 18; also
see a late case of ejectment for «'a
"pasture gate" and a "cattle gate,"
Doe d. Uaxhy v. I'reston et al. 6 D. &
L.7.)
(i) This accords in principle with
the power of a Judge to certify that
execution may issue forthwith " or
at some day to be named in such certi-
ficate :" (s. clxxxii.)
(/) The distinction between an
awara that one party named •' is en-
titled to the possession of land" and
that " the possestion of the land shall
be delivered" by the other, is now
practically of little importance. It
may, however, be mentioned that de-
cided cases before this Act established
the doctrine that no interest in land
could be trans/erred by an award : (see
RoUe Ab. Arbitrator A ; Marks v.
Marriottf 1 Rayd. 114 ; Johnson v.
Wilson, Willes. 248 ; Boc d. Morris v.
Rosser, 3 East. 15 ; Thorpe v. Et/re, 1
A. & E. 926.) The reason of the law
was based upon feudal principles,
viz., that lands should not be aliened
without the consent of the lord: (Black.
Com. III. 15.)
(k) For the Court. Qu. "or a Judge V
see note m to s. xxxvii.
(l) As to the mode of making a sub-
mission a rule of Court, see note v to
s. Ixxxvi ; also see s. xcvii. of this Act.
(wi) An application under this en-
actment should show the reference, the
subject matter thereof, the award, and
the parties in the possession of the land
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192
THE COMMON LAW PROCEDURE ACT.
[s. S(
CVU.
II;,
u-a. a/v '2,1.
thereto, pursuant to the award, and such rule or order
deliver possession shall have the effect of a Judgment "
ejectment against every such party or person named in it f,A
and execution may issue and possession shall bo delivered by
the Sheriff (o) as on a Judgment in ejectment, (p)
Eng. 0. L. p. XC VII (q) Every agreement or submission to arbitration
' bj consent, (r) whether by deed or instrument in writinfr not
mtes'oD to under seal, (s) may bo made a rule of any one of the Superior
maybeinTdo Courts of law or jquity in Upper Canada {t) on the application
awarded. As to delivery of possession,
see Maya-v. Cannell, 24 L. J. C. P. 41.
(n) A judgment in ejectment be-
fore this Act has been held not to be as
other juagments, final between the par-
ties : (Tillinghast's Adam's Eject. 327,
612 ; Clubiney.McMullen,l\\J.C.Vi. 250.
See ss. ccxxxix., ccxlvi., and cclxi.
of this Act.) The result of enacting
that a rule or order under this enact-
ment shall have the effect of a judgment
in ejectment will be to introduce, to a
certain extent, the law laid down in
Eng. St. 1 & 2 Vic. cap. 110, a. 18.
As to which see Chit. Arch. 8 Edn.1428,
1508 ; Lush. Prac. 2 Edn. 814.
(o) By the Coroner, if there be
any just exception to the Sheriff. See
note g to s. xxii.
{p) The writ of execution upon a
judgment in ejectment is known as a
writ of habere facias possessionem. It
as a general rule must, like other ex-
ecutions, follow the judgment. As to
the effect of such executions, see ss.
ccxli. cclxi. and cclxvii. of this Act.
(j) Taken from Eng. Stat. 17 & 18
Vic. cap. 125 s. 17. — Not applied to
County Courts.
(r) A submission by written agree-
ment is a contract requiring to bo
proved like any other contract if it ex-
istence be denied. It is true that by
statute it may be made a rule of Court ;
but that is only for the purpose of en-
forcing its performance in a summary
manner. The character of the contract
is not altered by its being made a rule
of Court, nor is it the rule which gives
it the binding effect upon the parties,
as in the case of a submission by rule •
Uierney v. Read, Denman C.J. 7 q n'
83. ) There can bo no agreermt unless
there be mutuality oi consideration
The consideration to one party is the
signing of the other. Without the sic
natures, or at least the assent of both
there can bo no agreement. It has
been held that an order of reference of
a borough Court in England, purport-
ing to be made by consent, and con-
taining a stipulation fr,r making it a
rule of a Superior Comt,mightbe made
a rule of such Court as an agreement
of reference between the parties-
(Ilarlow v. Winstanley, 19 L. J Q B
430.^
(«) Orol submissions are clearly ex-
cluded from the operation of this sec-
tion : (see Ansell v. Evans, 7 T. 11 1 •
V. Mills, 17 Ves. 419.) " '
{t) Until this provision has been
complied with the Courts have no juris-
diction over agreements of submission :
(see Harrison v. Grundy, 2 Str. 1178 •
in re Perring and Kcymer, 3 Dowl. P.c!
98; Davis v. Getty, 1 S. & S. 411 1
Harvey v. Shelton, 7 Beav. 4oo ; Kir-
kus V. Hodgson, 8 Taunt. 733 ; Mayor
of Bath v. Pinch, 4 Scott 299; Bottom-
ley v. Buckley, 4 D. & L. 157 ; Pms v.
Ross, 4 D. & L. G48; but see Little v.
NejDton, 1 M. & 0. 976.) But there
is inherent power in the Court inde-
pendently of any statutory enactment
to make a Judge's order or order of
Nisi Prius a rule of Court : {Aston v.
George, 2 B. & A. 295 ; Harrison v.
Smith, 1 D. & L. 870; Millingtony.
Claridge, 3 C. B. 609.) Where it was
\%
f !
jgyii.] MAKING SUBMISSION A RULE OP COURT. 193
f any pa^'-y thereto, (u) unless such agreemont or submission ^""'•*'^'^'^^^'«
ontain words purporting that the parties intend that it should "'»"* '"'''''^
ot be made a rule of Court ; (v) and if in any such agreement ^> ^ //6
.(.nhmission it is provided that the same shall or may be made or what
orguuiu" ...,»,„ • « . . , Court It in!
-lie of one in particular of such Superior Courts, it may be be made a
made a rule of that Court only ; (lo) and if when there is no
nch provision (as) a case be stated for the opinion of one of the And if i
(Juperior Courts, (y) and such Court be specified in the award,(2) ed'L'fho
jnd the document authorizing the reference have not before the the"opinion
lublication of the award to the parties been made a rule of^*^'"*'"'-
may
stnt-
Court, such document may be mado a nile onl^ of the Court
specified in the award ; (a) and when in any case the document ^^i> /; •
authorizing the reference is or has been made a rule or order other coui
of any one of such Superior Courts, no other of such Courts fere.
th.it a submission should be
Bade a rule of " the Court," vrithont
specifying any particular Court, the
Common Fleas allowed the submission
to be made a rule of that Court : {Soil-
feuzT, De Ilerbest, 2 B. & P. 444.)
(u) The application may be maae by
either party at any time either before
or after award. The practice of Courts
of law and equity in this respect appears
tfl be the same : {In re Taylor, 5
B, & A. 217 ; Boss v. Ross, 4 D. & L.
i^; Smith v. Symes, 6 Madd. 75;
Pownally. King, 6 Ves. 10; Fether-
itone T. Cooper, 9 Ves. 67 ; Heming
tSwinnerton, 5 Hare. 360.) Further
as to the practice, see note v to s.
Ixxxyi. of this Act.
(») The difference between this en-
actment and that of 9 & 10 Wm.
III. cap. 15 should be noted. A
submission under the latter can only
be made a rule of Court when the
parties in the submission *' agree
tiist their submission of their suit to
the £tward or umpirage of any person
or persons should be made a rule of any
of his Majesty's Courts of Record,"
&c.: (s. 1.) Whereas under the sec-
tion here annotated the submission
may be made a rule of Court " unless
such agreement or submission contain
words purporting that the parties in-
tend that it should not be made a rule
N
of Court." In the former case an ex-
press clause of consent is necessary.
In the latter consent is presumed unless
dissent be expressed. As to the inten-
tion of the parties in such matters, see
In re Woodcraft and Jones, 9 Dowl. P.
C. 688.
(to) This has been the established
practice ever since St. 9 & 10 Wm. III.
cap. 16 : (see Milstead y. Crav field, 9
Dowl. P. C. 124.) Where a submission
by deed of three actions in the Exche-
quer and one in the King's Bench pro-
vided that the agreement might be
made a rule either of the Court of
King's Bench or Exchequer, the Court
of Exchequer refused to allow the sub-
mission to be made a rule of that Court
after it had been made a rule of the
King's Bench : ( Winpenny v. Bates, 2
C. & J. 879.)
(z) i.e. a provision that the submis-
sion shall or may be made a rule of one
in particular of the Superior Courts.
\y) As to the statement of special
cases for the opinion of the Court by
arbitrators, see note z to s. IxxxTi.
(s) The case may be stated on the
face of the award, and if stated for one
Court in particular, the name of that
Court must also appear on the face of
the award.
(a) As already noticed the submis-
sion may be made a rule of Court as
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194
THE COMMON LAW PROCEDURE ACT.
[s. xoviii.
r
1,
shall have any jurisdiction to entertain any motion respecting
'5/ ^. / -75 the arbitration or award!^(6)
And with respect to the language and form of pleadings m
general ; (c) Be it enacted as follows :
/t * . « N. XX Kng! c. i. i'. XCVIII. (d) All statements that need not be proved. (e\
t V V, / A. 1862, g.40. ^ "^ f^ > V^J
well after as before award. See note
M ante.
(A) This is consonant with the deoi-
sioQ of Winpenny y. Jiatea, ante, note
w. In England there has been provi-
sion made for bringing error on a spe-
cial case the Kame as on a special ver-
dict : (Eng. C. L. P. Act 1864, s. 82.)
The provision has not been inserted in
our C. L. P. Act.
(e) The sections following, from
xcviii. to cvi. inclusive, are fonnded
upon 1st Report C. L. Com'rs, s. 20,
et aeg. All these sections with refer-
ence to the time when the Act came
into force apply to future pleadings
not to past : (Pinham v. Souater, Parke,
B. 14 L. & Eq. 418, 8 Ex. 188.) The
expressed intention is to simplify << the
language and form of pleadings." What
is understood by "pleadings?" In
the words of the Commissioners — they
are written statements made by the
plaintiff and defendant of their respec-
tive grounds of action and defence.
The object is to ascertain what are the
matters really in controversy between
the parties, so as to avoid all discus-
sion and inquiry on those which are
not so — thus simplifying the matter
for the decision of the judge or jury,
and saving the parties unnecessary
expense and trouble. To accomplish
this object the plaintiff in the first
place is required to state the facts
which constitute his cause of action.
The defendant is required to answer,
and in so doing is compelled at his op-
tion to take one of the following
courses : either he denies the state-
ment of the plaintiff; or confessing it,
avoids its effect by asserting some
fresh fact ; or admitting the facts al-
leged he denies the legal effect of them
as contended for. In the second case
the plaintiff will be under the like ne-
cessity, and will have to reply to the
fresh matter of fact alleged by the de-
fendant, subject to the same rules. It,
like' manner if necessary defendant
rejoins; and so the parties proceed
until it is ascertained that there ig
some fact asserted by the one side and
denied by the other, or that there is
some proposition of law affirmed on
the one hand and denied on the other.
The question so raised is called an
issue in fact or in law, according to
its nature.
(d) Taken flrom Eng. Stat. 15 & 16
Vic. cap. 76, s. 49. — Applied to County
Courts — Founded upon Ist Report C.
L. Com'rs s. 36. The words of the
enactment are verbatim the same as
those used by the Commissioners in
its Report.
(e) The law recognizes the rule that
mere formal allegations need not be
proved. The term "formal allega-
tions" comprises among other mat-
ters •' all those averme''*' f^t place, time,
number, value, quality, <>nd the like,
which are inserted in pleadings with-
out being either essentially descrip-
tive of tiie subject of the claim or
charge, or otherwise rendered material
by special circumstances. It includes
also a multitude of other idle state-
ments, which, until very recently,
English lawyers with tautological pe-
dantry loved to introduce into every
record of legal proceedings. While
judges were content to bestow more
attention on technical precision than
on substantial justice, the rule in ques-
tion was highly important ; but since
the late amendments in the law it has
fortunately become a matter more of
historical curiosity than of present
practical interest:" (Tay. Ev. 2 Edn.,
s. 224.)
PLEADING! — IMMATERIAL STATEMENTS.
105
8. xcviii.]
8uch as the statement of time, (/) quantity, quality and value, Kj'*^"^*^^
(q) where these are immaterial, (K) the statement of losing ^ ^^j'^Jj
and finding, and bailment in actions for goods and their value *» «>»«»«•
/•\ \^Q statements of acts of trespass having been committed
with force and arms and against the peace of our Lady the
(/) The time is in general consid-
ered as forming no part of the issue,
so that one time may be alleged and
another proved : (Steph. Pi. 5 Am.
Edn. 292. ) Time is seldom material
unless when of the essence of the con-
tract: (see Wimthurtt v. Deeley, 2 C.B.
263,) or unless the precise time of
tlie happening of an event is — with
reference to the purpose for which it
;s alleged in pleading — of the essence
(f that event: {Noah v. Brown, 6 C.B.
584.) When time happens to form a
material point in the merits of a case,
if a traverse be taken, the time laid is
of the substance of the issue and must
be strictly proved: (Steph. PL 298.)
It was a general rule that to all tra-
Tersable facts there should be time
and place, though the want of them
' under certain circumstances might
be cured by the statutes of jeofails :
[Ring V. Roxborough, Bayley, B., 2 C.
\ J. 423.) Dates may be assumed to
be material upon demurrer when, if
truly stated, they would support
the ple«l demurred to: (Ryalla v.
Bramall, per Parke, B., o D. & L.
755.)
[g) Quantity, Quality and Value,
are in general material in actions for
goods and chattels or their value:
i Steph. PI. 296 ; Bertie v. Pickering, 4
turr. 2455; Holmes v. Hodgson, 8
Moore 379 ; Scott y. Jones, 4 Taunt.
865 ; Phillips v. Jones, in error, 16 Q.
B. 859.) Unless the article in respect
of which the party is stated to be in-
debted be of some value, there is no
consideration for the subsequent pro-
mise: [Mayor of Reading v. Clarke,
per cur. 4 B. & A. 271. Sed qu. — see
Forms of Pleadings in Sch. B. to this
Act.) Many of these objections could
only be raised by special demurrer
and it is now enacted ** that no plead-
ing shall be deemed insufficient for any
defect which could heretofore only be
objected to by special demurrer : "
(s. c. of this Act.)
(A) It is only necessary for defend-
ant to state the substance of his cause
of action, whether upon contract or
for tort : (see forms as to both in Sch.
B, and also see notes to s. zcix.) Sub-
stantial words when used will include
averments, without the averments com-
monly stated under a videlicet. An ex
ample may be given — Plaintiff declar-
ed on contract alleging that defendant
agreed to keep and employ bis horses
"for a certain space of time then
agreed upon between the plaintiff and
defendant, to toil : for the space of one
year next ensuing, and to pay the
plaintiff for the use thereof, certain
hire and reward in that behalf, to
wit: £50 a year for each of such
horsest, payable quarterly." Held
that everything following the vide-
licets might be safely rejected and
the declaration read as alleging a con-
tract to hire for a certain time for cer-
tain hire and reward : [Harris v. Phil-
lips, 10 C. B. 650; see also Ward
T. Harris, 2 B. & P. 265.)
[i'S The actions usually brought for
gooas or their value before Prov. Stat.
14 & 16 Vic. cap. 64, were detinue and
trover. The averments of losing and
finding in trover have always been
considered fictitious and immaterial.
So of detinue, it has been adjudged
that the gist of the action is the de-
tainer and that the bailment is alto-
gether immaterial — in the sense of
being traversable. It has been likened
to the allegation of t^e loss in a count
in trover: [Clossmany. FAi<«, Wilde,
G. J., 7 C. B. 48 ; see also Gledstane
V. Hewitt, 1 C. & J. 566 ; Walker v.
Jones, 2 C. & M. 672 ; Whitehead t.
'vA
: i53
it
196
U M. «N ax
(App. Co. C.)
kna. C. L. P.
THE COMMON LAW PROOEDTIRE ACT. r [g xcix.
Queen — (J) the statement of promises \vbich need not be
proved, as promises in indebitatus counts and mutual proniisea
to perform agreeT»^.onts, (Ic) and all statements of a like kind
(Z) shall be omitted, (m)
XCIX. (n) Either party may object by demurrer to the
PenfurreM °* pleading of tho opposite party on the ground that such pleading
to be for- -._. .,v«. .- o
gubstanoe
only.
does not set forth sufficient ground (o) of action, defence, or
fff If
JTarrison, 6 Q. B. 423 ; Maion ▼. Far-
nell, 12 M. & W. 674.) The bailment
is of course material in actions on con-
tract: (see Roat ▼. Hill, 2 C. B. 877.)
{}') These averments have been
held to be clearly immaterial, that is,
not trovorsable : (see Harvey v. Brydea
et al. 14 M. & W. 437 ; S.C. in error,
1 Ex. 261 ; but see Spear v. Chapman,
in error, 8 Jur. 461.)
(k) A promise set forth as a mere
inference of law arising upon a liability
stated is not necessary to be proved,
and therefore not traversable : (see
Masion v. Hill et al. 6 U. C. R. 60 ;
Bank B. N. A, v. Jones et al. 7 U. C.
R. 166 ; see also Mountford v. Jlerton,
2 N. R, 62 ; Wade v. Simeon, 2 C. B.
548) ; but where the promise of plain-
tiff IS the consideration of a contract,
it is material : (see Sutherland y. Pratt,
11 M. & W. 296.)
{I) Where the declaration was on the
common courts for board, &o., found
for defendant's illegitimate child at de-
fendant's request, the request was held
to be immaterial and not traversable :
(Flaherty v. Maira, 1 U. C. R. 221.)
The omission of a special request even
when necessary has been held to be
matter of form only : (Macleod v. Jack-
son, 5 0. S. 318.)
(»i) Shall be omitted. The precise
effect of these words is doubtful. The
doubt is as to whether the words are
compulsory or merely directory. The
better opinion appears to be that they
are compulsory : (Moberley v. Baines,
Chambers, Sept. 18, 1866, Richards J.)
If comi ilsory, the only penalty would
be an order of a Judge to strike out
the unnecessary averments on the ap-
plication of the opposite party. Rea-
soning by analogy, itmay be mentioned
that our old rule No. 20 £. T. 6 Vic.
ordered that " every declaration shall
in future . . commence," &o., and
that it was copied from Eng. R. Q. 3
Wm. IV. No. 38, under which it was
held that averments made unnecessary
by that rale might be struck out as
surplusage : (Alderaon v. Johnson, 5
Dowl. P. C. 294 ; seealsoDodv. Grant,
4 A. & E. 485.) Statements which
need not be proved are needless aver-
ments, and needless averments may be
struck out on application to the Court
or a Judge: (Ward v. Grayatock,i])ovl.
P.C.717.) The application for such a
purpose ought to be made by defendant
before plea: (Thomaa v. Jaiksov, 2
Bing. 453.) An amendment without
doubt would be allowed in every such
case under s. ccxci. of this Act ; but
probably only upon payment of costs ;
(see Lawrence v. Stephena, 3 Dowl. P.
C. 777.) It is not likely that the
Court would set aside a pleading plead-
ed in contravention of this section:
(see Bacon v. Aahton, 5 Dowl. P. C.
u4. ) An unnecessary allegation would
not now, it is apprehended, be demur-
rable : (Bodenham v. Jlill, 7 M. & W.
274 ; Ilart v. Meyers, 7 U. C. R. 416.)
(n) Taken from Eng. Stat. 15 & 16
Vic. cap. 76 s. 50. — Applied to County
Courts. The effect if not the object of
this enactment is to abolish special de-
murrers. It is clearly prospective:
(/ame«v./«aaM,Jarvi8C.J.12C.B.794.)
(0) The sufficiency of a pleading has
from the earliest period been held to
depend upon its substance ; but when
written were substituted for oral plead-
ings, attention to form became requi-
site. The parties instead of pleading
8. xcix]
OAVSES or DEMURRER.
107
i\'
imiromptu before the Judge who tried
the cause, were enabled sometime before
he time appointed for the trial by
exchange between themsolvos of
■ritten statements of grounds of oction
and defence to orrive at issue. The
object in requiring a proper attention
to form was to ascertain and settle
upon the pleadings the exact questions
to be determined between the parties,
and as an incident to prevent the intro-
duction of extraneous matter. The ne-
cessity for form once recognized let in a
number of arbitrory rules intended to
prevent uncertainty, obscurity, dupli-
city, and other like defects. An anxi-
ety on the part of the Judges, that
pleadings should be certain and at the
same time sure, led to unnecessary
precision, whi Ji occasioned on the part
of pleaders much and useless prolixity.
The result of the whole has been ob-
scurity, perplexity, and fiction, the
very evils that special pleading was de-
signed to prevent. In this way the evils
grew in magnitude as decisions accu-
mulated, until in the end/orm too often
triumphed over lubitance. The legis-
lature at a very early period of English
history were alive to the growing ten-
dency to technicality and subtlety. In
the year 1585 a statute was passed
which recited that "great delay and
hindrance of justice has grown in ac-
tions and suits between the subjects of
this realm, by reason that upon some
small mistaking or want of form in
pleadings, judgments are often revers-
ed by writs of error and oftentimes
upon demurrers in law given other-
wise than the matter in law and very
right of the cause doth require, where-
by the parties are constrained either
utterly to lose their right, or else after
long time and great trouble and ex-
pences to renew again their suits." For
remedy whereof it was thereby enact-
ed " that from henceforth after demur-
er joined and entered in any action or
suit in any Court of Record within this
realm, the judges shall proceed and
give judgment according as the very
right of the came and matter in law
shall appear unto them, without re-
garding any imperfection, defect or
want of form in any writ, return,
plaint, declaration, or other pleading
process or course of proceeding what-
soever except those only which the
party demurring shall tpecially and
particularly set down and express to-
gether with his demurrer ; and that
no judgment to be given shall be re-
versed by any writ of error, for any
such imperfection, defect, or want of
form as is aforesaid, except such aly
as is before excepted :" (27 Eliz. cap.
6 a. 1.) Notwithstanding this enact-
ment objections to form were frequently
raised, to which the Courts were con-
strained to yield, although " the very
right of the cause and matter in law"
might be with the party whoso plead-
ing was found to be defective, but who
was unfortunate enough to risk a spe-
cial demurrer. For remedy of this evil
it was enacted that "where any de-
murrer shall be joined and entered in
any action or suit in any Court of Re-
cord within this realm, the Judges
shall proceed and give judgment accor-
ding as the very right of the cause and
matter in law shall appear unto them
without regarding any imperfection,
omission or defect in any writ, return,
plaint, declaration, or other pleading,
process, or course of proceeding what-
soever, except those only which the
party demurring shall specially and
particularly set down and express, to-
gether with his demurrer as causes of
the same, &o., so at sufficient matter
appear in the said pleadings upon which
the Court may give Judgment according
to the vei-y right of the cause" &c.
(4 Anne c. 16, s.l.) There is but one per-
vading spirit in these Acts, which i:*, to
make substantial justice paramount to
mere form; and yet experience has
shown that the Acts, though of great
benefit, have failed in their object.
Both Acts required the Judges to
give judgment " according to the very
right of the case and matter in law,"
without regarding imperfections, omis-
sions, or defects in form " except those
which were specifically set forth," thus
impliedly authorising the Judges to
t
5^
■•"IS.*
r-^
9
t«
1 i
(
iti#^
'I
108
THE COMMON LAW PROOHDURE ACT.
CI
[»• xcix.
Kua^ ""^P^y' "* *^° *'"° ^'^^ ^^ '^^) ''"^ ^^^'■° ^^^^^ " joined on
giro Judgment agiiintt the very right
of the cause, &o., on an objection tor
want of form, protldod It were spe-
ciflcally pointed out. This gave
birth to "ipevlal demurrers," th'
ally of unscrupulous technicality,
and the preserver of all that was
obnoxious and embarrassing in the
rules of pleading. Tho neoeisity for
for form was retained with all its evils.
Nothing remained to be done but to de-
stroy a system which, though intended
for good, had been perverted to serve
dishonest purposes. Special demurrers
are therefore by this enactment number-
ed with the things that are past. Demur-
rers were of two kinds — general, which
related to matters of substance ; and
special, which related to matters of
form. The latter only having been
abolished, tho former if not retained in
name are in effect preserved. The true
construction to be put upon this en-
actment is to ascertain whether tho
declaration or other pleading demurred
to would have been good on general de-
murrer before the Act; if so it will
not bo demurrable under this Act.
This is the true and almost the
only test. It is intended by the Act
to do away with matters of form,
but still it is not meant that that
should be held to be good which
is not good in substance : {Richards y.
Beavis, Campbell G.J. 28 L. & Eq. 159 ;
2 N. C. L. Rep. 676.) The question
as to what is good on general demurrer
is not altered by this Act : (lb, Cromp-
ton J.) Of course pleadings cannot bei
held good where the parties do not
choose to say what they mean. If the
Court were to hold such pleadings good
they would be getting into the region
of ambiguity and uncertainty, which
would be a worse evil than that which
the Act was intended to remedy . (lb.
Grompton J.)
{p) The boundary between substance
and form is not at all times easy to be
defined. The only guide in the way of
precedent is that of general demurrer.
Whenever before this Act pleadings
were held to be bod on general domur
rer, they will generally bo held to [^
bad upon demurrer under thin Act-
but the converse as to special dcniur-
rers is by no means a safe guiJo. i,
will not do to say that in all casej
where pleadings wore hold bad on »m
cial demurrer only, they will be gooj
under this Act. An analysis of tb«
cases will do more to assist the Judg-
ment in this inquiry than any theory
that can be propounded. )Vith a
view to this, the Editor sulijoing
tome cases decided before tho Act. To
review all would bo the work of &
pleader, and a labor which it is be-
lieved no pleader can satisfuctorily
accomplish.
It is enacted that either party may
object to the pleading of tho opposite
party on the ground that such plead-
ing does not set forth "sufficicut
ground of action, defence, or reply, 53
the case may be." As to these sever-
ally-
First — as to the ground of action
which must appear in the declarntion'.
Plaintiff must so explain his cause of
action as to make it appear to the
Court that there is sufficient foun-
dation for the action. All essen-
tials or whatever is of the substance of
the action must be alleged, that the
Court may be enabled to give judgment
for him in case a verdict is found in his
favour : (Bac. Abr. " Pleas and Plead-
ing," A.) The law requires the decla-
ration to contain certainty and truth
that the defendant may be able to make
a proper answer thereto and the Court
give a right judgment thereon : (lb.
B. ) In trespass for taking goods, (nc,
a declaration not setting out the goods
by specific description but mentioning
them as " divers goods and chattels,"
&o., bad on general demurrer : (Free-
man V. Donelly et al, 8 0. S. 16;
see also Holmes t. Hodgson, 8 Moore,
878. ) But though informal if it do not
aver the goods, &o., to be the goods of
the plaintiff it is not bad on general
demurrer: (O'Brien v. Howling, 1 U.
^ i»h.] CAU8E« OF DEMURRER. 199
gucb 'leiimrror, tho Court shall proceed and give Judgment |^^"Jj^'j^1,^^'"»*
C. R- 47^-) ^ (leolaratlon by plaintiff
siiinft on a Icftso as reversioner, which
sbowt plaintiir if rovorsioner at all, to
l^aojuiutly with another peiHon not
ft co-plftint'''* bad on general demur-
rer: (SeoU T. Oodivin, 1 D. & P. 07.)
go a declaration on a charter party de-
scribing plaintiff as "freighter for six
ToyageB," but omitting to aver that
defendant agreed to six voyages, has
been bold bad since the Eng. 0. L. P.
Act- {Richards v. Jieavis, 28 L. & Eq.
157 ; 2 N. 0. L. Rep. t570.) So a de-
claration for omitting to cleanse drains
«bereby the plaintiff 's promiHes suf-
fered damage, is not sutiicient, though
it deHcribo defendant as " owner and
proprietor" of the promises on which
tiie Irains are uituate. Some further
grounds of liability should be stated to
Dialie the cause of action good in sub-
gtnnee. Defendant though both owner
and proprietor, is not necessarily as
such bound to cleanse drains : (Ruattll
T. Skmton, 8 Q. B, 449.) But the
statement in a declaration on a promis-
sory note against the maker and in-
dorscr, that the note was duly present-
ed and dishonored is a sufficient aver-
ment of non-payment as against the
maker ond probably as against the in-
ioti«t—Bed qu. [Nimmo v. Flannigan
;( a/. Chambers Nov. 10, 1866, Hngarty
J.) A declaration in case against a
tenant for allowing premises to become
out of repair, but not showing defend-
ant to be more than a tenant at will,
bas been held bad on general demurrer:
(Ikrntll V. Maitland, 16 M. & W. 257.)
Qu. If a declaration in covenant for
non-repair not stating a term would be
bad on general demurrer ? (see Turner
V. Lamb, 14 M. & W. 412.) A decla-
ration averring a promise to have been
made by defendant, in consideration
tbat plaintiff would forbear to prose-
cute a qui lam action, but not averring
that plaintiff did forbear, has been held
bad on general demurrer : {Hart v.
Mtyera, 7 U. C. R. 416.) Where the
declaration sets out the consideration
for defendant's promise, and in doing
BodisoloeeBtn substance a good cause of
action, an uncertainty in stating apart
of the demand will nut make tho dvula-
ratlon bad on general demurrer :
iUraifordy. O'Jirien, 6 U. C. II. 117.)
if any part of tho declaration show a
good cause of action, it will bu »»{&•
olent : {Davis t. London ^- Blnckwall
R. Co. Tindal C. J. 1 M. & O. 801.)
A declaration in assumpsit averring
in consideration that plaintiff, at
request of defendant, had promised to
do all the work necessary in buttling
beer, it was agreed botweva pluintiff
and defendant that dofendnut hIiouUI
within twelve months from a certain
day (named) supply plaintiff with at
least 600 hogsheads of beer to bottle,
and breach, that defendant not regard-
ing, &o., held good in substance :
{Fannin v. Anderson, 7 Q. B. 811 ; sue
also Dtike v. Dive, 1 Ex. 80, and Rolfc
V. West, 1 N. C. L. Rep. 225, the
latter case having been decided since
the Eng. G. L. P. A.) It would ap-
pear that a declaration for a libel,
averring the libel to be "in sub-
stance as follows," would be bad on
demurrer, under this Act : ( Wright
y. Clements, 8 B. & A. 608; also
see Soh. B. to this Act, No. 29.)
Where by agreement concurrent acts
are to be done by plaintiff and defend-
ant, it is sufficient in a declaration
against defendant for not doing the act
on his part, for plaintiff to allege gene-
rally " that he was willing to perform
the agreement" without exprcsitly
averring that he was ready and willing
to do the concurrent act on his part :
{Kemble v. Mills, 1 M. & G. 757.) lu
an action for breach of contract plain-
tiff averred that defendant on 4th Aug-
ust, 1844, agreed with plaintiff to erect
a house by the middle of November
"next ensuing." Breach that the
house was not erected in the middle of
the month of November. Held bad on
general demurrer in cot showing that
November, 1844, was November next
ensuing the agreement: {Ekins v.
Evans, 2 U. C. R. 144.) In debt on
I
i
T f?
^
I
-'»•
^
S3
M
^ 1
f ff.5' '
P'
ij
200 THE COMMON LAW PROCEDURE ACT. [s. xcix.
without re- according as the very right of the cause and matter in law
bond the declaration averred that de-
fendant and one S. acknowledged them-
selves bound to plaintiff in £8000, to
be paid to plaintiff, or to one W. £. on
request, and that thereby and by rea-
son of the non-payment thereof an
action hath accrued, &c. Held that it
was unnecessary to allege a request,
and that non-payment was sufficiently
shown : {Kepp et al. v. Wiggett et al. 6
G. B. 280.) The omission of a special
request even when proper to be inserted
is matter of form only, and cannot be
objected to on general demurrer : {^Mac-
Leody. Jackson, 5 0. S. 318.) But
where in debt on bond, conditioned on
delivery of good "merchantable"
grain, to deliver a certain quantity of
whiskey, an averment in the declara-
tion that plaintiff had delivered good
<< distillery" grain, but that defendant
had not, &c., was held to be bad on gen-
eral demurrer: {Cowper v. Fairman et
al, 3 O.S. 668.) A count on a bond con-
ditioned to pay money on notice, but
averring notice only that the money
was due, is bad ; (Bolson v. Spearman,
9 A. & £. 77.) So in an action on a
policy of insurance on which losses
arising from riot or civil commotion
were excepted, a declaration negativing
loss by civil commotion only is bad :
( Condlin v. //. D. Mutual Ins. Co. H.
T. 6 Vic. M.S. R. & H. Dig. Insurance
2.) A declaration averring that A. and
others had agreed to become members
of a certain society, and that in the
event of either of them leaving it he
should pay to the President, but not
averring to what president or how the
obligation should be enforce*'., «r<i^iield
bad on general demurrer : {Shepherd v.
Duncan, 15 L. T. Rep. 303.) Where
the declaration stated that plaintiff
sued the defendant for that the defend-
ant agreed with the plaintiff to cause a
certain valuation to be made, by ne-
glecting to do which special damage
accrued to the plaintiff but did not
aver any consideration for the agree-
ment, it was held bad. And per cur.
" The C. L. P. Act, 1852, has no doubt
afforded great latitude in pleading ; but
it has not removed the necessity of
stating a consideration for an agree-
ment upon which a party is sought to
be charged:" {Fremlinv. Hamlin, 8 Ex.
808.) So where a declaration in an
action for freight stated that "the
defendants are indebted to the plain-
tiff for freight," &c., but omitted
to avei that there was any money pay-
able by defenuant to plaintiff, the de-
clarati on was held bad : {Place v. Potts
8 Ex. 706.) This is a defect which
may be cured by pleading over : (Wil-
kinson v. Sharland, 24 L. J. Ex. N. S.
116.) But a declaration " for money
found to be due from the defendant to
the plaintiff on account stated be-
tween them " has been held sufficient
as the law implies a promise between
them : (Fagg v. Nudd, 3 El. & B. 650.)
2. Plea. — If defendant do not demur
to the declaration, his only alternative
is to answer it by matter of fact. In
doing so he is said to plead, and the
answer of fact so made is called the
plea. Pleas are divided into dilatory
and peremptory : (Stcph. PI. 46.)
with the latter only is the Editor at
present concerned. A peremptory plea
or plea in bar may be defined as one
which shows some sufficient ground for
barring or defeating the plaintiffs ac-
tion. Pleas in bar are divided into
pleas by way of traverse and pleas by
way of confession and avoidance : [lb.
52.) As the plaintiff's declaration must
set ^orth all essentials necessary to
maintain his action ; so the defend-
ant's plea in bar must be substan-
*ially good and certain : (Bac. Abr.,
"Pleas & Pleadings, "V.) Pleas though
they may be general, yet should not
be so general as to be vague. Cave
should be taken not to get " into the
region of uncertainty and ambiguity."
A plea to an action of covenant that
defendant did not break his covenant
is bad on demurrer : (Taylor v. Need-
ham, 2 Taunt. 278.) A plea of per-
formance otherwise than in the terms
of the covenant is also bad: {Scudamore
xcix.]
CAUSES OF DEMX7BBER.
201
shall appear unto them, without regarding any imperfection, K«r<i'n8
V. Slratton et al, 1 B. & P. 455.) So
to a bond conditioned to pay a sum of
money in the event of another person
not paying it, a plea of satisfaction and
discharge before breach is bad: {Spence
T. Heali/, 1 N, C. L. Rep. 857.) In
debton bond a plea of licence not being
by deed is bad : {Sellers v. Bickford,
1 Moore, 460.) So to a declaration in
covenant for not repairing a house
within a reasonable time, it is a bad
plea that defendant repaired the house
within a reasonable time after he was
required to do so by plaintiff : (Fisher
V. Ford, i Jut. 1034; Jones v. Gibbons,
1m722L. J. Ex. Sii.) To a similar declar-
"/' ation a plea of eviction is bad : (New-
ton \. Allen, 1 G. & D. 44.) Where,
in an action of assumpsit for non-pay-
ment of rent, according to agreement,
defendant pleaded eviction by a strang-
er, but omitted to negative that the
stranger derived title under himself,
the plea was held bad : (McXab v.
McDonell, 2 U. C. R. 169.) A plea
justifying an arrest on suspicion of
felony, without showing the grounds
of the suspicion, is bad : (Mure v.
Kaije, 4 Taunt. 34.) To a declaration
charging expulsion from a dwelling-
house, a general plea of liberum tene-
mentim, is good : (Harvey v. Bridges,
3 D. & L. 55,) but not to a declaration
charging an assault, (Roberts v. Tayler,
1 Ex. 261;) nor to a declaration in
trespass, quare clausam f regit and car-
rying away plaintiflF's hay and corn,
&c. : ( Viileox v. Montgomery, 6 0. S.
312.) There may be a general plea
of fraud: (Washbourn v. Burroiccs, 1
Ex. 107 ; see also Eobson v. Lns-
combe, 2 D. & L. 859.) To an action
for a libel a plea in general terms that
plaintiff is a swindler and an immoral
character, is bad : (Holmes v. Cates-
hy, 1 Taunt. 643,) but if the declara-
tion char{,e some specific fact of libel,
a plea that it is true in substance and
in fact seems to bi good : ( Weaver v.
Lloyd, 2 L^ & C. 678.) To an action
on the case for filing a dog spear
whereby plaintiff's dog was wounded,
a general plea alleging that plaintiff
had notice of the spear, is good : (Jor-
din V. Crump, 8 M. & W. 782.) To
trespass for shooting a dog, a plea that
the dog was used to worry sheep ; that
just before he was shot, he was worry-
ing defendant's sheep, and could not
be otherwise restrained from so doing,
has been held a good plea, as it would
be intended that the dog was about to
renew the attack : (IlaUett v. Stannard,
2 Ir. Law. Rep. 156.) To an action
against a Gas Company for a nuisance,
a piea that they are '< now " manag-
ing their works carefully, &c., is bad :
( Watson v. Gas Co., 5 U. C. R. 262.)
So a plea of set-off to an action claim-
ing unliquidated damages : (Allwood
V. Allwood, 1 N.C. L. R. 242.) To an
action on a bond, the plea of nil debet
is bad: (Anon. 2 Wils. 173.) And a
plea contrary to the express condition
of the bond is bad. Therefore to a
bond conditioned for the payment of
money, a plea that the bond was given
as an indemnity, was held to be bad :
(Mease v. Mease, Cowp. 47 ; see also
Murray v. King, 5 B. & A. 165.) To
a declaration on an agreement to for-
bear suing, a plea that defendant had
no cause of action is bad: (Wadr, v.
Simeon, 2 C. B. 548.) So to an action
on a note, a plea that it was given for
lands 3old without a note in writing :
(Jones V. Jones, 6 M. & W. 641.) A
material alteration in writing avoids a
bond, but a plea alleging an alteration
without averring it to be in writing is
bad : (Harden v. Clifton, 1 Q. B. 522.)
To an action on a bond, conditioned
for the performance of several matters,
a general plea of performance is bad :
(Roakes v. Manser, 1 C. B. 531.) So
to an action on a bond conditioned
that A, as a bank agent, should ac-
count &c., a pica that before action
brought, A ceased to bo agent, and
that while ho was agent ho kept all
the clauses of the bond : (Bank of Up-
per Canada v. Bcthune et al, E. T. 2
Vic, MS., R. & II. Dig., "Pleading,"
v. 2.) Debt on bond conditioned thaj
1 f
A
W)'^
' I- • \
I';.
'If '
, /
202 THE COMMON LAW PROCEDURE ACT. [s, ^cix
form. omission, defect in or lack of form, and no Judgment shall be
if the obligor should practice as a sur-
geon at S, at any time without the
conse it in writing of tiie obligee, then
obligor should be obliged to pay obli-
gee £1000 — the bond to be void.
Flea — that defendant did not practice
as a surgeon at S, without the consent
in writing of the obligee: Held bad
on general demurrer : {Hastings et al
V. Whitley, 2 Ex. 611.) So to a bond
conditioned that defendant should
"well and truly" convey to plaintiif,
his heirs and assigns forever, a piece
of land, a plea by defendant that he
did make and execute a conveyance in
fee simple to plaintiflF, is bad : [Prin-
dle V McCan et al, 4 U. C. R. 228.)
To an action of debt for money lent a
plea as to £100, part thereof, that de-
fendant made his note to plaintiff's
order for £100, is bad for not averring
that the note was still running:
{Price V. Price, 10 M. & W. 232.)
A plea of infancy when there has
been a liability contracted and subse-
quent repudiation should allege that
the repudiation was made within a
reasonable time after defendant attain-
ed his majority: [Dublin R. R. Co. v.
Black, 8 Ex. 181.) To an action
on a foreign judgment defendants
pleaded that they were not served with
any process, and that plaintiff unjust-
ly and behind thier backs, entered an
appearance for them, vis held bad in
not averring that defe^idants had no
notice of the writ : {Shechy v. Prof.
Ass. Company, 13 C. B. "787.) In
asssumpsit for work and labor there
was a plea, that the money mentioned in
the declaration accrued due to the plain-
tiff for the building of a church; that
the plaintiff having suspended the work
another agreement was entered into
between him and one A, under which
the plaintiff, in consideration of certain
stipulated payments, undertook to
complete the work and to rely for
the residue of the contract price
upon certain subscriptions which
were to bcniised ; and that A
duly made, and the plaintiff receiv-
ed, the payments stipulated for by the
second agreement, in satisfaction and
discharge of the original agreement
between the plaintiffs and the defend-
ants, and of the performance thereof
by the latter : Held a bad plea in sub-
stance : {James v. Isaacs et al, 12 C.B
791.) A plea to a declaration on a note
showing it to have fallen due in Janu-
ary, 1848, that defendant paid the
note on 31st December, 1847, before
it became due, is bad on general de-
murrer : {Bown v. Ilawke, 6 U. C. R.
275.)
3. Replication. — A replication is the
plaintiff's answer to deifindant's plea
and should fortify and support the de-
claration. The material requisite in a
replication is that it should pursue what
has been first alleged and insisted upon
in the declaration, otherwise there will
be a departure in pleading : (Bac. Abr.
PI. A.) A replication which m general
terms denies the whole substance of
the plea is good even on special de-
murrer: {parhyshire v. Butler, 5
Moore, 198.) Where in trespass for
sciz'ng cattle and causing them to be
sold, defendant pleaded that the cattle
were taken damage fcazant, and pro-
ceeded to justify the sale under Prov.
Stat. 1 Vic. cap. 21. R3plication that
defendant's fences were defective, and
that the cattle escaped from the high-
way into the close. Held replication
clearly bad. in not averring that the
cattle escaped through the defect in
the fences : {Stcdman v. Wa^lcy, 1 U,
C. R. 4G4.) Since the first Eng. C. L.
P. Act it has been held that in an action
oil a foreign judgment to which there
was a plea denying notice of the pro-
ceedings and residence in the jurisdic-
tion, a replication that the action was
on a bill accepted within the said juris-
diction by defendant (who was then a
resident there) and payable at a place
v/ithin the jurisdiction, and that by the
laws of the foreigii country in such
cases, the place of payment is deemed
the elected domicile of the acceptor,
and that notice of the proceedings were
s.c]
SPiSCIAL DEMURRERS ABOLISHED.
208
■'{■X- 'vt •' fi
arrested, stayed, or reversed for any such imperfection, omission, (f^'if/xz
defect iff or lack of form.'*;^) Sst^o^i.^p! ^f^*" ti"^ ^
C. (r) After this Act comes into operation, (s) no pleading No^pu^di«K"
or amended pleading (0 shall be deemed insufficient (u) for [
■p. 1 ,„.
■, 1
.Invalid ftir
c«u8o now
served there in accordance with the
foreign law ; Held bad for not alleging
that the law was so at the time the bill
was accepted : {Mens v. Thellussin, 22
L. J. Ex. 239.) To an action of as-
sumpsit defendants pleaded payment
into Court as to part and a sot-off as to
the residue. Replication to the first
plea that defendants were indebted in
a greater amount than the amount
paid, and to the other plea that plain-
tiflfwasnot (not adding "nor is" in
either case) indebted modo et forma,
both replications were held bad on
general demurrer : (Small v. Slrachan,
2 U C. R. 434.) To an action of re-
plerin in the old form, the defendant
avowed for a distress for rent due to
him by one C. on a demise at a yearly
rent, of which one year's rent was in
arrear on 1st January, 1850. Repli-
cation to this that the close on which
the distress was made was at the time
^hen, &c., the close of him the plain-
tiff: Held bad as containing no answer
in substance to the avowry : {Robert-
mi. Meyers, 7 U. C. R. 4U'-,)
4 Rejoinder. — Rejoindei' Is defend-
ant's answer to plaintiff's replication,
which must fortify and support de-
fendant's plea. It must also pursue
the line of defence first insisted upon,
or else there will be a departure : (Bac.
Abr. PI. A.) To debt on an iademnity
bond the defendant pleaded non damni-
ficatus, and the plaintiff having replied,
showed how she was damnified. The
defendant rejoined that the injury arose
through the plaintiff's own fraudulent
act : Held on general demurrer to be
a departure : (Hamilton v. Davis et at,
lU C. 11.490.) So where plaintiff
declared in debt on bond for the non-
performance of an award, the defend-
ant pleaded no award. The plaintiff
replied sotting out the award, to which
the defendant rejoined matter extrinsic
to the award, and relied upon it as
showing the award Toid ; Held a de-
parture : (Maxivell v. Ransom, 1 U. C.
R. 219.)
5. Surrejoinder. — This and all sub-
sequent pleadings being governed by
the same rules and with the same offoot
as the pleadings already nutiood,
there is no necesiiity for pursuing the
subject any further.
(q) The latter part of this enactment
is in effect the same as the Statutes of
Elizabeth and Anno, recited in note o,
ante, with one exception — the designed
omission of all mention respooting
special demurrers.
(r) Taken from Eng. Stat. 15 & 16
Vic. cop. 76 s. 61. — Founded upon Ist
Rep. C. L. Com. a. 85. — Applied to
County Courts. This section is clearly
prospective : (James v. Isaacs, per
Maule J. 12 C. C. 795 ; see also iV«-
horn V. Souster, 8 Ex. 138, 14 L. & Eq.
415.)
(s) 21st August, 1856 (s. 1.)
(t) Applies equally to declarations,
pleas, replications, rejoinders, and all
subsequent pleadings : (see note p to
8. xcix.) Qu. whether a pleading
which has been demurred v. 1 "fore
this Act came into operatic;- but
amended afterwards, can he arvued ou
a special demurrer? (see .'^•'iiO)n ▼.
Souster, vbi supra.)
(u) Before the passing of tMs Act
the sufficiency of a plei u; yended upon
its substance and its '•'orm. Tho doc-
trine was well expressed as follows :
" The law requires two things. Tho
one that it (the pleading) bo in matter
sufficient. Tho other tha t it be deduced
and expressed according to the form of
law. If either the one or the other of
these be wanting, it is cause of demur-
rer: (Colt V. Bishop of Coventry, Ilo-
bart C.J. Hob. Rep. 104.) For tho
future the sufficiency of a pleading
must depend more upon its substance
than form — the latter being only uooos-
sua
Hpi^
Lstf
THE COMMON LAW PROCEDURE ACT. Tg ^j
Jnl^'X'^^ ^"y defect which could heretofore only be objected to by special
_,, cw demur- demurrer, (y)
^<n^ stal .p^ ''i^l^l'^i CI- (^) I^^'^y pleading {x) be so framed {y~) as to prejudice,
i,L(3. »X 2.i A. 1852, s. 52. embarrass, or delay the fair trial of the action, (2) the opposite
^
sary in so far that the party pleading
must use apt language to explain what
he means in describing his cause of ac-
tion, ground of defence, &c. If a plead-
ing though not deficient in matter be so
far deficient in form as to prejudice,
embarrass, or delay the opposite party,
then an application to amend would
appear to be the correct course : (s. ci.)
(y) For any defect which could only
he objected to by special demurrer, i. e.
for any defect which could heretofore
have been objected to by special de-
murrer only. The true meaning of
the sentence rests upon the import of
the word " only," and its connection
with the context. Many pleadings
have been held insufficient upon
special demurrers which might have
been held equally so upon general
demurrers. Both for matters of sub-
stance and of form a special de-
murrer was deemed a prudent proceed-
ing. It follows that there may bo
pleadings held bad upon special de-
murrers, which under this Act would
be also bad, though special de-
murrers are abolished. For exam-
ple, reference may be made to the
following decided cases : Burgtss v.
Beaumont, 2 D. & L. 690 ; Hilly. Mcn-
tague, 2 M. & S. 377 ; Vyse v. .uke-
field, 6 M. & W. 442 ; Bevis v. JIulme,
15 M. & W. 88 ; Crawshay et al. v.
Barry, 1 M. & G. 235 ; Milner v. Jor-
dan, 8 Q. B. 615 ; Robertson v. Show-
ier, 2 D. & L. 687 ; Dawson v. Collis
et al. 10 C. B. 523.
(w) Taken from Eng. Stat. 15 & 10
Vic. cap. 76 ;. 52. — Applied to County
Courts. — Founded upon 1st Bep. C. L.
Com'rs, s. 37. Qu. Does this section
apply to proceedings on writs of man-
damus? [Regina v. The Saddlers' Co.
ColeridRO J. 20 L. & Eq. 152, 22 L. J.
Q. B. 456.)
(a;) Applies to all ordinary pleadings,
such as declaration, plea, replication
rejoinder, &c. '
(y) The question is not whether the
pleading was intended to prejudice
&c., but whether in fact it be so framed'
(2:) The chief consideration is the
fair- and speedy trial : (Regina v. Sad-
dlers' Co. Coleridge J. ubi supra.) Any
pleading so framed as to prejudice
embarrass, or delay either party in the
attainment of this end is within the
meaningof the Act. Thewords "pre-
judice, embarrass, or delay" are used
disjunctively. The legal import of each
word detached from the others has not
been decided. Indeed, the idea which
attaches to each word must of necessity
be much blended with the ideas con-
veyed by the othe. ^ A party delayed
may bo prejudiced; a party preju-
diced may be embarrassed ; a party
delayed and embarrassed must be pre-
judiced. The words are of very general
signification, and must in all cases bo
received with reference to the object of
pleading- The object of all written
pleadings is to enable the parties before
trial to arrive at some statement affirmed
on one side and denied on the other,that
the same may be submitted for decision
to the proper tribunal, as the issue be-
tween the parties. The reason of the
thing requires clearness and singleness
of averment as much now as before the
C. L. P. Act. A power must exist
somewhere of compelling the parties
to be clear and distinct in their .state-
ments. There mustbe a remedy against
ambiguity whether intended or not.
Arambling pleading, mixing up several
grounds of action or defence, and com-
posed of different matters of fact and
law, must be objectionable : (1st Rep.
C. L.Comrs.) The delivery of any such
pleading by one party to the other
must necessarily " embarrass" him,
and perhaps " delay" the trial to tie
:M,f^m
't
, ci,] EMBARRASSING PLEADINGS. 205
party may apply to the Court or a Judge (a) to strike out or ing» may be
"prejudice" of one party or the other.
The remedy of the party aggrieved in-
stead of being by special demurrer as
formerly, is by application to amend
at the costs of the party in fault. In
effect the Statute says, "no pleading
shall be demurred to specially, and
even if it be not open to general de-
murrer, yet if it be so framed as to
prejudice, embarrass, or to impede the
trial, it shall be open to amendment or
excision by the Judge" : (Coleridge J.
in Eefr. V. The Saddlers' Co. ubi supra.)
The rule is this, No mistake heretofore
available only on special demurrer is
nowavailable.exceptwhere the mistake
is one calculated to embarrass the
plaintiff: (Dunmorn v. Tarleton, Erie
J, 10 L. & Eq. 393.) The desirable
object in pleading is now to place on
record the simple ground of action de-
fence, &c., in as intelligible a form as
possible, (/i. p. 394.) A pleading
so framed as unnecessarily to embrace
more points than one and compel the
opposite party to come prepared for all
is a pleading so framed as to prejudice
the fair trial of the action : [Forsyth
V. Brisiowe, 8 Ex. 347.) Pleadings
Tfhich before this Act would have been
bad for duplicity, argumentativeness
uncertainty, or inconsisteney, may be
such as to render necessary applica-
tions to amend under the enactment
here annotated. Reference may be
properly made to some sn^ ;■ cases —
1. DuplkUy — see Measiter v. Rose,
13 C. B. 1G2, 14 L. & Eq. 422 ; For-
syth V. Brisiowe, 8 Ex. 347 ; Deacon et
al. V. Stodhart et al. 5 Bing. N. C. 594 ;
Webster y. Watts, 11 Q.B. 311; R. &
H. Dig. " Pleading," VI.)
2. Argumentativeness — Leaf v. Tut-
ton, ID M. & W. 359 ; Tiirtilcy v. 3Ic-
Gregor, G M. & G. 46 ; R. &'H. Dig.
"Pleading"!.)
3. Uncertainty — Flockton et al. V.
Ilall, 14 Q. B. 380 ; Cnbhitt et al. v.
Thompson, 5 Ex. 811 ; R. & II. Dig.
"Pleading" 11.)
4. Inconsistency — Inconsistent pleas
have been allowed when amounting to
a " substantial defence" : (Dueer v.
Tribuer, 3 Dowl.P. C. 133 ; Wilkinson
V. Small, 3 Dowl. P.C. 564) ; but pleas
"vexatiously inconsistent," as non as-
sumpsit to a whole declaration and pay-
ment as to part, have been disallowed :
{Steill V. Slurry, 8 Dowl. P. C. 133 ;
Bastard v. Smith, 5 A. & E. 827 ; see
further R. & H. Dig. " Pleading" VII.)
Though a pleading in 'orm be te. ' ni-
cally correct and in substance not op
to demurrer, yet if it be an unfair
pleading, and of a sort to prevent or
impede a just trial of the merits, the
statute has given the Court or a Judge
power to amend or strike it out : {Re-
gina v. The Saddlers' Co. Coleridge J.
22 L. J. Q.B. 451.) As to pleadings,
false, trickey, or otherwise unfair, re-
ference may be had to the following
cases — Mitford v. Finden, 8 M. & W.
511 ; Blewitty. Marsden, 10 East. 237 ;
Pierce v. Blake, Salk. 515 ; Bell T.
Alexander, 6 M. & S. 133; Young y.
Gadderer, 1 Bing, 380 ; Smith v.
Blackwell, 4 Bing. 613 ; Vere v. Car-
den, 6 Bing.413 ; Ilarman v. Teague, 6
Bing. 19? ; Levy v. Railton, 19 L. J.
Q. B. 511 ; Nutt v. Rush, 4 Ex.
Shadwell v. Berthoud, 6 B. & A.
Eitchley v. Proone, 1 B. & C.286 ;
ington v. Becket, 2 B. & C. 81 ;
V. Johnson, 6 B. & A. 751 ;
belt V. Powell, lb.; Bones v.
ier, 2 B. & A. 777 ; Thomas v. Vander-
moolen, 2 B. & A. 197 ; Smith v. Hardy,
8 Bing. 435; Waterman v. Carden, 6
M. & G. 752 ; Bartley v. Oodslake, 2
B. & A. 199 ; Miley v. Walls, 1 Dowl.P.
C. 648.) Since this Act non assumpsit
pleaded to an action on a promissory
note was in Upper Canada struck out on
an application to a Judge in Chambers :
{Ross v. Dobson, Chambers, 19th Sept.
1856, Richards J.) And a pleading
though not designedly unfair if in fact
frivolous may be struck out under tho
statute. As to frivolous pleadings
reference mpy be had to the following
cases — Bradbury y. Emans, 5 M. & W.
595 ; Knowles v. Burward, 10 A. & E,
19; Murray v. Boucher, 9 Dowl. P.C.
490;
750;
Mer'
Body
Cor-
Pun-
■s»»
:. 1 • ' M
1 "y
1 i
t
206
THE COMMON LAW PROCEDURE ACT.
[s. Ci.
or amended, amend such pleading, (b) and the Court or any Judge shall
make such order respecting the same, and also rcspectinc the
costs of the application, as such Court or Judge shall see fit. (c)
587 : Balmanno t. Thompson, 8 Dowl.
P.C. 76 ; Homer ▼. Keppel, 10 E.A. &
17 ; Humphreys t. Waldegrave, 8 Dowl.
P. C. 768 ; Blackburn v. Edwards, 10
A. & E. 21 ; Emanuel v. Randall, 8
Dowl. P. C. 238 ; Fapineau v. Kint;,
2 Dowl. N. 8. 226 ; Cowper v. Jones,
4 Dowl. P. C. 591 ; TuUisy. Tullis, 21
L. J. Q. B. '?69, Pleadings not issu-
able must cfiQo. prove embarrassing.
An issuaM'' pica is one that at onco
puts the r .■ its of the cause in issue
either op CaM facts or tha law: (Steele
V. IL.irmer, .. . M. & W. 139.) A plea
ca'' lit be isnmble if clearly bad in
Bub iari*3: ^jjloyd t. Blackburn, 1
DowI.;N. 8. 6'17 ; Wafkins v. Bensuson,
1 JJow'* ^* H ,15; see also Thompson
T. Redman,
>wl. N. S.1028; i/irc-
Aay V. Wood, y Dowl. P. C. 278 ; Sel-
by v. the East Anglian R.Co. 7 Ex. 53.)
A sham plea cannot be issuable : [Hervn
Y.Heron, 1 W.B1.376; Lowfieldv. Jack-
son, 2 Wils. 117 ; Cavev. Aaron, 8 Wils.
33; Browny, Austin, ^DovX.V.C. 161.)
A, '-^ when pleadings generally are or
are t»^ 'sauable, reference may be had
to the following cases : — Dickson v.
Boulton, 6U.C.R.558; Blewittv. Gor-
don, 1 Dowl. N. S. 815 ; Humphreys v.
Waldgreave, 6 M. & W. 622 ; M^/ers
T. Lazarus, 1 Dowl. N. S. 816; Willis
V. Hallett, 6 Bing. N. C. 465 ; Hughes
V. Pool, 6 Scott. N. R. 9">9 ; Parratt
v. Goddard, 1 Dowl. N. S. 874 ; Mac-
kay V. Woorf, 9 Dowl. P.C. 278 ; Bate-
son V. Lee, 1 D. & L. 224 ; White-
head T. Harrison, 1 D. & L. 706;
Sewell T. 2>a/<, 8 Dowl. P. C. 309 ;
Sloane v. Packman, 11 M. & W. 770;
Thompson v. Redman, 2 Dowl. N. S.
1028 ; 5urv v. Goldner, 1 D. & L.834 ;
&/ir/e v. Bradshaw, 2 Dowl. P. C.289 ;
Birch V. Leake, 2 D. & L. 88 ; Wilkin-
son V. Page, 1 D. & L. 913 ; Harvey y.
WaUon, 7 M. & G. 644 ; Verhist v. De-
kegser, 3 D. & L. 392 ; Huthewaite v.
Phaire, 8 Dowl.P.C. 541 ; Beauclerky.
Hooke, 20 L. J. Q. B. 485 ; Tagg v.
Simmonds, 4 D. & L. 582 ; Blousefield
▼. -Erfjr^, 1 Ex. 89 ; Wettenhall v. Gra-
AoTB, 4 Bing. N. C 714 ; Besant v"
Cross, 20 L. J. C. P. 173 ; Maj/hew v"
/i;o/?eW, 1 Ex. 469 ; Cork ^ Jiandon
R. Co. V. Goode, 13 C.B. 618 ; Birchy
Leake, 2D. & L. 88 ; ChrutchUy y,
London and Birmingham R. Co., 2 J)
& L. 102 ; La for est v. Wall, 9 Q b"
599 ; Hunter v. Fiiaon, 19 L. J. Ex. 8-
Linwood v. Squire, 16 L. J. Kx, 237!
i/bore V. Froster, b C. B. 220 ; ISchenck
V. Corfr*, 1 N. C. L. Rep. 115 ; />„„.
more v. Tarletan, 16 L. & Eq. 391 •
Roberts v. Brett, 34 L. & Eq. 421 !
Wallace v. Grover, 1 U.C. Cham. R. 1 '
Eccles V. Johnson, lb. 93 ; Shi^rn-noi
V. March, lb. 176; Dickson y. Boulton
5 U. C. R. 5<)8 ; Jcssup v. hraser, H t'
4 Vic. JI/5. R. & H. Dig. Ass. of Dam. 5."
(a) C(nirt or a Judge — relative pow-
ers, see note m to s. xxxvii.
b) To hold that a plea is bad because
more or less obscure would be unrea-
sonable unless the party pleading it
will not amend and clear up the ob-
scurity when it is pointed out to him.
(C. L. Com'rs 1st Rept.) If he fail or
refuse to do so there is but one alter-
native — to strike out the pleading. A
parfy whose pleading is defective or
vicious will see the propriety of him-
self applying for an amendment. Eveu
surplusage may vitiate and may if em-
barrassing be struck out upon appli-
cation of the adverse party. But it hag
been b^ld that breaches in a dcchna-
fon T Jv-'re there were three, one of
vttich was good ainJi two bad, to which
Irtter there was a <' murrer, coujdnot
:; J treated as surplusage after demur-
rer: {Lush V. Russell, 4 Ex. 637.)
(f) As a general rule, when leave to
amend is given, costs will be imposed
upon the party in fault whei-o there is
nn application by his opponent to
strike out his pleading. This applica-
tion will, of course, be the one most
frequently made.
S. cii.]
NOTTOB TO DECLARE, PLEAD, &0.
207
CII- (d) No rule to declare, to declare peremptorily, to (^Wp<^ ^) <3>>x . Si»i tii.
reply or plead any pleading whatever, (e) shall be allowed, (/) a.i852,«.63. ^'^ <:hTz-
but a notice (g) requiring the opposite party to declare, reply, n^«^««J«;,^ ^|^9£,
rejoin or otherwise, as the case may be, (h) within eight to declare, — / •
3,„g A*) otherwise Judgment, shall be sufficient ; 0') and such
!
I'
(d) Taken from Eng. Stat. 15 & 16
Vic cap. 76 s 63.— Applied to County
nmirts —Substantially a re-enactment
„? rule 4 of E. T. 2 Geo. IV. (Cam.
Lies 12) and oU' rule 10 of E. T. 6
Vic. (/ft- 22.)
(e) Will apply to rejoinder, &c., as
well as pleadings here enumerated. The
words " and subsequent pleadings'' are
used in the Eng. C. L. P. Act. Will
ftl80 it ia apprehended, apply to plead-
•Dcs on a writ of revivor (s. ccv.)
(/) Shall be allowed. These words
atoear to be imperative not directory.
A rule to declare, &c., will be irregular
if uut void. The Act Eng. C. L. P.
instead of " shall be allowed" uses
the words " shall not be necessary."
In) It was a demand under the eld
rules^ 4 E. T. 11 Geo. IV. (Cam.
B. 9), 10 E. T. 6 Vic. (76. 22).
Between a demand of pica and notice
there is also a distinction, as the latter
is by this Act expressly substituted for
the former (s. cxi.)
(h) There is no time limited within
which these notices must be given.
They are not so much compulsory as
optional ; but in order to force either
party to proceed with his action or de-
fence, as the case may be, the notice is
necessary. For instance, a notice to
declare given by defendant to plaintiff
"otherwise judgment," entitles defen-
dant if his notice be unheeded to sign
judgment of non pros. But plaintiff
has, it would seem, the whole of the
term next following appearance within
which *o declare : [Forster v. Pryme,
9 Dowl. P. C. 749.) And if after'that
time defendant omit to serve a notice
to declare, plaintiff will have twelve
mouths within which to declare :
[Chaplin V. Shoivkr, 18 L. J. Ex. 34.)
liven if notice to declare has been given
it is still in the power of plaintiff to
apply for further time to the Court or
a Judge : {Beazlcy v. Bailey, 4 D. &
L. 271.) If the time granted be
allowed to expire without declaring
dot":>ndant may sign judgment without
a fresh notice : (Teulon v. Gant, 5
Dowl. P. C. 153.) In any event if
plaintiff do not declare within one year
after the writ is returnable he will be
deemed out of Court (s. cvii.) So if
no notice to plead be given by plaintiff
to defendant, or notice to reply by de-
fendant to plaintiff, either party will
for that purpose have whatever time he
thinks proper. After the expiration
of four terms from the last proceed-
ing by plaintiff, it has been held that
no future proceeding can be taken
without a term's notice : (see Lord v.
Jlilliard, 9 B. & C. 621 ; Lumleij v.
Thompson, 3 M. & W. 632 ; also see
R. & H. Dig. «' Term's Notice.") It is
ordered by the English New Rules that
in such cases a calendar month's notice
shall be given (R. G. H. T. 1853, No.
176) ; but this rule 176 has not been
adopted by our Courts. One of several
defendants, who alone appeared, has
been held not to be entitled to sign
judgment of non pros, though he de-
manded a declaration : (see Hamlet v.
Breedon, 4 M. & G. 909 ; Shore et ux.
V. Bradley et al. T.T. 4 & 5 Vic. M.S. R.
& H. Dig. '« Judgment of Non Pros" I.)
(/) " Within four dags," in Eng. C. L.
P. Act. As to computation of time see
note k, infra.
(J) Shall be sufficient, "unless other-
wise ordered by the Court or a Judge,"
in old rule 10 E.T Vic. The omission of
these words in the section under consi-
deration cannot be of much importance
as theCourts have unlimited power over
process and pleadings. Further time
to declare, plead (Chit. Arch. 8 Edn.
216), reply, &c. {lb. 276), may still as
much as ever be obtained upon proper
application to the Court or a Judge.
lP*-»
O&t'
%
I V
r
*
208
THE COMMON LAW PROCEDURE ACT.
[s. ciii.
'<::.
t
1 1
notico may bo delivered separately or bo indorsed on any plead-
ing which the other party is required to answer, (k)
iT^i . ^ cm. (I) Every declaration or other pleading (m) shall be (^^ q,
q
HE'
■ i Mi i
But it ia oi'derod <'that no side bar
rule for time to declare shall be granted"
(N. R. No. 7.) The party desirous of
further time to plead, reply, rejoin, &c.
must obtain a rule of Court or Judge's
order for the purpose : [Small v. Mac-
kenzie, Dra. Rep. 853.) As to further
time to plead, see note q to s. cxii. It
is not usual when granting further
time to reply to put plaintiff under
terms to reply issuably: [Crutchlcy v.
the London and B. R, Co., 2 D. & L.
102.)
(Jc) The notico, if indorsed, may be
in the following form ; — '♦ The defend-
ant is to plead, reply, &c., hereto in
eight days, otherwise judgment : "
(Chit. F. 7 Edn. 93, and s. Ixi. of this
Act.) Knot indorsed the notico may
be in the same words, but intitled in
the Court and cause and both dated
and signed by the attorney serving the
same: [lb, 94.) A notico thus, ''to
plead in days has been held to be
a notico to plead according to the prac-
tice of the Court and within the time
limited by the Rules of the Court :
[Hiffcrman v. LanyeUe, 2 B. & V. 363 ;
see also Collins v. Rose, 5 M. & W.194 ;
Ramm v. Duncomb, 2 D. & L. 88.) It
is doubtful whether such a notice would
not now be sot aside as irregular or
amended at the costs of the party who
served it. Whore the time limited in the
notice to plcid was less than that al-
lowed by the practice of the Court,
judgment signed by plaintiff for want
of a plea, though signed after the time
limited by the Court, was set aside :
{Braty v. Baldock, Barnes, 302.) But
where the time given was greater than
that allowed by the Court, defendant
was held entitled to the whole of the
time so given : [Solomomon v. Parker,
2 Dowl. r. C. 40o.) These cases it is
apprehended will apply to replication,
&c., and other pleadings f^ubsequentto
plea: ( Winterhottem v. Lees, 2 Ex. 325.)
No pleading can be filed during -aca-
tion. (N. R. 9.) A plea dated durinB
the vacation would appear to be anul-
lity : [Mills t. Brown, 9 Dowl. p. c
161.) A notice to plead within a time
expiring during vacation, if not a nul-
lity, would at least entitle defendant
to the same number of days for the
purpose of pleading after 21st August
as if the declaration of preceding plead-
ing had been delivered or iiled on that
day: (N. R. 9.) If the time to plcnd
has expired before Ist July, the plain
tiff may sign judgment on that or any
subsequent day: [Morris v. Hancock
1 Dowl. N. S. 820.) But if the time
expire only on 1st July, or any subse-
quent day, it would appear that no judg-
ment can bo signed until after 2l8t
August : [Savery v. Lister, 6 D.& L. 257 •
Severin v. Leicester, 12 Q. B. 949.
Morris v. Hancock, ubi supra.) Com-
putation of time . (See Lijin v. Pijfher
1 Dowl. N. S. 766 ; Rey v. Juslices of
Shropshire, 8 A. & E. 173 ; Dunn v.
Jlodson, 1 D. & L. 204 ; see also N. R.
160.
(/) Taken from Eng. St. 15 & 16
Vic. cap. 76, s. 64. — Applied to Connty
Courts. — Substantially a re-enactment
of old Rule 29 of E. T. 5 Vic, which
was copied from Eng. R. 0. 1, of
H. T. 4 Wra. IV. (Jervis N. R. 115.)
The origin of the latter rule is Eng.
Rule 15 of M. T. 8 Wm. IV. (Jervis
N. R. 98.)
(m) "Or other pleadiny" — clearly
embraces replication, rejoinder, &c.,
but apparently not a similiter added as
of course by plaintiff" for defendant
where the pleading of the latter con-
cludes to the country : (See Shackel
V. Ranyer, 3 M. & W. 409 ; mden v.
Ward, 8 Dowl. P. C. 725.) The simi-
liter when added by plaintiff' for him-
self has been held to be a pleading,
and ought to be intitled: (see Mcddk-
ton V. Woods, 8 Dowl. P. C. 170.
Contra : Blue v. Toronto Gas Company,
1 U. C. Cham. Rep. 7.) And yet it is
1*
9. civ.]
DEOIiABATION.
209
entitled, of the proper Court, (n) and of the day of the month ^"fgjO^ J-;^;
and year when the same was filed, (o) and shall bear no other ^
time or date, (p ) and every declaration or other pleading shall dstinR. and
also be entered on the record made up for trial, and on the pieadiDgi.
jud'^ment Roll, under the date of the day of the month and
year when the same respectively took place, and without refer-
ence to any other time or date, (j) unless otherwise specially
ordered by the Court or a Judge, (r)
CIV. (») It shall not be necessary to make profert of any(^pp. oo.o.)<:ffytS2ai.^
deed or other document mentioned or relied on in any plead- A?i8f2,ii*66". ^' i y1 ^^
jpprehended that the old practice as
^timiliter is obsolete. The timiliter
under this Act is in eflfect a traverse
and so a pleading in the cause : see s.
cxsviii. It is presumed that this en-
utment will also extend to pleadings
and other proceedings upon a writ of
revivor: (sees, ccv.)
In) The court must be stated in the
boay of the pleading — intitling on the
back of it is not sufficient : {Ripling v.
WaiiU, 4 Dowl. P. C. 290.)
(o) Both the day of the month and
year must be given. It would be irre-
gular to omit the words, " in the year
of our Lord : " {Holland et al v. Tealdi,
8 Dowl. P. C. 820 ; Lewis v. Duthie,
MS., Chambers, ,1st August, 1839,
Parke, B., Cam. Rules 35, note v.)
[p) A pleading dated on a day
other than that on which it is filed,
is an irregularity only — not a null-
ity : (see llodaon v. Fennell, 4 M.& W.
373.) The copy of a pleading wrong-
ly dated is certainly only an irregu-
larity: (Commercial Bank v. Boulton,
1 U. C. Cham. Rep. 15.) And
an application may be made to
amend: (see Ikin v. Plevin et al, 6
Dowl. P. C. 694 ; Whipple v. Mauley,
6 Dowl. P. C. 100 ; Hough v. Bond, 1
M. & W. 314.) The irregularity, if
not promptly moved against, may be
waived : [Newnham v. Hanny, et al,
6 Dowl. P. C. 259.) A demurrer to a
pleading filed on the ground that the
pleading was wrongly intitled has
been set aside with costs : {Neal v.
Sichardson, 2 Dowl. P. C 89.)
{q) The omission to state the dato
of a pleading in the issue or record is
clearly such an irregularity as may be
moved against. \Vhere, in the issue,
the dates were omitted, but correctly
given in the record, held a variance of
which the defendant was entitled to
avail himself even after trial : ( ITor-
thington v. Wigley, 5 Dowl. 209 ; see
also Ball v. Hamlet, 8 Dowl. P. C.
188.) And where in a writ of trial,
the date was incorrectly given, the
Court upon application after verdict,
set aside the verdict and subsequent
proceedings : ( Wight v. Perrera, 6
Dowl. P. C. 463 ; see White v. Farrer,
2 M. & W. 288.) But any such irre-
gularity may be waived if defendant
appear at the trial and enter upon his
defence : [Percival v. Connell, 6 Duwl.
P. C. 68 ; see also Whipple v. Manley,
1 M. & W. 432 ; Farwig v. Cockerton,
8 M. & W. 167.) It will make no dif-
ference though defendant's counsel
protest against the trial so long as he
allow it to proceed : (Blitsett v. Tenant,
6 Dowl. P. C. 436.) Defendant should
apply to have the record amended at
the expense of plaintiff: ( Whipple v.
Manley, 5 Dowl. P. C. ICO.)
(r) Court or a Judge — relative pow-
ers. Pee note m to s. xxxvii. of this
Act.
(«) Taken from Eng. Stat, 15 & 16
Vic. cap. 76 s. 55. — Applied to County
Courts. — Founded on 1st Rep. C. L.
Com. (s. 41.) "To prevent needless
length," the Commissioners "proposed
to do away with profert and oyer."
i'
••no
210
TUE COMMON LAW PROOEDURX! ACT.
[s- ciy.
Jrofort,oyOT, ing J (<■) and, if profert shall be made, it shall not entitle the
opposite party to crave oyer of or sot out upon oyer, such deed
or other document, (u)
iwy
This section carries thoir proposal into
effect. When pVauiu^;'. were oral, a
party founding his cla'tn upon a deed
iras b(>und to make profert, tlmt is, to
offer to produce it to the Court. Pro-
fert when made entitled defendant to
demand oyer, that is, to have the deed
read. Thereupon the deed was read
aloud by an officer of the Court. When
written were substituted for oral
pleadings the same forms were observ-
ed, with this exception, the defendant
who demanded oypr was entitled V i
verbal I copy of the deed mentioned
in plu.utiff's declaration, which he
(defendant) usually set out at length in
bis plea, and which for the purposes of
pleading was tnken to be part of plain-
tiff's declaration. Such a proceeding
caused endless prolixity and in many
cases useless expense ; (se*- Steph. PI.
66 et aai/.) Hence the change intro-
duced b" ♦his Act. It may be men-
tioned tiiat the ;.i?( ^9 to piofevc ex-
tended only to written instrumcuts
under seal.
(<) In some coses the oraiy.«ion of
profert without a corresponding substi-
tute may have the effect <'' placing a
defendant in difficulty. On* ach case
has actually arisen. An executor su-
ing as such is not bound to produce
probate until the trial of the cause,
though formerly bound to make profert
of it. As the law now stands, it might
be held that he io neither bound to
produce probate nor to set it out upon
oyer. The consequence would bo this.
Defendant is sued by a person who
assumes to act as executor for a de-
mand which he is not disposed to dis-
pute. If ho pay the demand to plain-
tiff, he may be paying money to a per-
son who is really not executor. If he
do not pay he is put to the expense of
a suit. The Court in one such case
considering "the peculiarity of the
case and the anomalous position in
which defendant was placed by an
oversight of the Legislature" in the ex
erciso of a common law jurisdiction to
prevent the abuse of its process upon
application of defendant, stayed i o-
oeedings until probate shoulU be taken
out and reasonable notice thereof ejvpn
to (Jefendant : ( Webb v. Adkim, u V
. B. 401.) The oversight to which aliui
sion is made in this case is the omis.
sion to enact that whenever any party
relics upon a deed in his pleading the
opposite party may apply for and do-
mand an inspection of it. The C. L
Comrs. recommended that this should
bo done. And though the idea has not
been taken up in the first Eng. c. L
P. Act, it was in the Irish C. L. P Act
16 & 17 Vic. cap. 113 s. 04. The
application in question if allowable
under any circumstances in Upper Ca>
nada can only be either under Prov. St.
16 Vic. cap. 19, s. 8, or under s. clxxv!
of this Act, or failing both of these
under the common law jurisdiction of
the Courts. Failing this latter the ap-
plication cannot be made at all. For
a review of the law as to the discovery
and inspection of documents, see notes
to s. clxzv.
(m) Defendant may notwithstanding,
if necessary to support his defence, set
out the agreement sued upon: (see
Wood V. the Coopers^ JUin. Co. 14 C.B.
428 ; also Smari t. Hyde, 1 Dowl.N.S.
60 ; Nash v. ^re«tf, 2Dowl.N.S. 1015;
Sievekmf/ v. Dutton, 3 C. B. 331;
Heath V. Durant, 1 D. & L. 571;
Sharland v. Lei/child, 4 C. B. 621 ;
Weston V. Woodbridge, 18 L. J. Q. B.
158; Friar v. Gray et al. 15 Q. B.
891 ; see also following section cv.)
But the agreement so set out will be
part of defendant's plea and not of
plaintiff's declaration. Defendant
therefore cannot, relying upon his pica,
demur to plaintiff's declaration : (see
Sims y. Edmunds, 16 C. B. 240.)
CONDITIONS PRECEDENT.
«1
s. CT. cvi.]
CV (v^ A party pleadinpr in answer to nny plcadinjr in (-^^^^ '^' '^') cart elaf.^
which nny document is mentioned or referred to, shall be at A.iti62,ii.6o x^y. •
liberty to set out the whole or any part thereof which may be rn'anlfwer*
material, (w) and the matter so set out shall be deemed and ?efiTred'to
t vken to be part of the pleading in which it is sot out. (.r) 'n pio»d»»(r-
CM. (y) It shall be lawful for the Plaintiff or Defendant i^f^o^L.^! Z'!!^. /aV-v'^'
in any action to aver performance of conditions precedent aH to aVer- § So-
generally, (2) and the opposite party shall not deny such per- "orfonlLnce
(v) Taken from Eng. St. 15 & 10
Vic. cap. 70, 8. 50.— Applied to County
Courts.
(w) Even before this Act the party
ytho set up a document as a ground of
action was not bound to set out in his
pleading more than was material for
bis case ; but if the document were an
inntrument under seal it was necessary
for him to make profert which entitled
his adversary to demand oyer. In this
way the whole of the instrument wa;;
at length set out upon the Record. As
both profert and oyer are abolished, a
party adverse to a pleading which men-
tions and relies upon any document
must, in order to obtain a copy of it,
make application for leave to inspect.
If ho succeed, he will then bo in a
position to set out " the whole or any
part thereof that may be material"
for his defence or action as the case
maybe. This a party to a suit has
always been entitled to do, and only
prevented from doing when unable to
obtain a copy of the document in ques-
tion: ("Pe note u to preceding section
civ.) 1 . ere is nothing at present to
hinder either party sotting out a whole
document in his pleading when it is
expedient to do so in order to a correct
understanding of its intent and mean-
ing : (See Morrison v. Trenehard, 4 M.
& a. 709.)
(x) Under the old system of plead-
ing, the party pleading set out the
document on oyer, making it a part
o{ the previous pleading, but by s. civ.
of this Act, profert and oyer are
abolished, and by s. cv. here annotated
the document when set out " shall be
deemed and taken to be part of the
pleading in which it is out." It is
a rule that a defendant > 'lot . lemur
to a declaration upon tl nd that
his plea shows somcthir., a . makes
the declaration untenable. Wherefore
since the G. L. P. Act, a plaintiff de-
clared for money payable to him un-
der an award, and defendant pleaded
setting out the award in hac verba, and
concluded "that the said declaration
is not sufficient in law," the plea was
held bad: {Sims v. Edmonds, 15 C. B.
240; 20 L. & Eq. 879.) It would olso
appear where under this Act a party
sets out any part of a document
pleaded by his opponent that the latter
is not called upon to traverse or make
any answer to it : (Ref/ v. Saddlers Co. ,
22 L, J. Q. B. 461 ; 20 L. & Eq. 162.)
(y) Taken from Eng. Staf. 15 & 16
Vic. cap. 70 8. 67. — Applied to County
Courts. — Founded upon 1st Rep. C. L.
Com. (3. 42^. The object of this en-
actment and indeed of all these enact-
ments relative to pleading is at once to
"curtail unnecessary prolixity" and
to " cause actions to be defended on
their merits" (C. L. Comrs.) Theeflfect'
of the enactment under consideration
seems to be that a defendant, instead
of denying every allegation of perform-
ance contained in the declaration, will:
be confined to the denial of the perform-
ance of some condition " which he
really believes has not been performed"
(lb.)
(z) This is a return to the ancient
system of pleading: (see Thorpe v.
Thorpe, 1 Ld. Rayd. 669.) General
averments of the performance of condi-
tions precedent have before this Act
been held good on general demurrer,.
IMAGE EVALUATION
TEST TARGET (MT-3)
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Photographic
Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, NY. I45S0
(716) S73-4S03
212
THB COMMON LAW PROOEDVBB ACT.
t«CTl.
w non-pw- formanoe generally, but shall specify in liis pleading the condi.
a oondition tionor conditions precedent the performance ofwhich he intends
to contest, (a)
(Afp. cb. c.) And with regard to the time and manner of declaring • (i\
and only objectionable upon special de-
murrer: (see VarUy y. Manton, Tin-
dal C. J. 9 Bing. 868 ; Proctor t. Sar-
gent, 2 M. & Q. 20; De Medina r.
Norman, 9 M. & W. 820; see also
Roakea y. Manser, 1 G.B. 681 ; Kemble
y. Milla, 1 M. & O. 767; Court y.
Amhergate R. Co. 20 Ti. J. N. S. 466 ;
Cinet y. Smith, 16 M. & W. 189;
Kepp y. Wiggett, 6^C. B. 280; Manby
y. Cremonini, 6 Ex. 808.) Special de-
murrers haying been aooHshed, such
general averments would oonsequentiy
-stand good and unassailable. The
Commissioners, though sensible of this
result, thought that it had better be
'* substantially enacted." The form of a
general averment of conditions prece-
dent given in the schedule had bet-
^r been observed. It is on a charter
party as follows — ** that tiie plainfiff
■did all things neeetaary on At* part to
•entitle him to have the agreed cargo
loaded on board the said schooner at
Hamilton," &o.: (Sch. B. No. 18.)
In a declaration for the non-delivery
of goods purchased, plaintiff after ad-
mitting the delivery of part, averred
"the performance of all conditions
precedent on the part of the plaintiff
to be performed, and that all things
had been done and happened to entitle
_plaintif to have the residue delivered to
him," &c. : Held sufficient without an
averment uf readiness and willingness
to pay : {Bentleyy. Dawea, 9 Ex. 666 ;
26 L. & £q. 640. ) See further Ruat
v. Nottidge, 1 El. & B. 99 ; Bamberger
et al. V. The Commercial Credit Mutual
Assurance Co. W C. B. 676 ; Wheeler
v. Bavidge, 9 Ex. 668 ; Phelps v. Pro-
thero, 16 C. B. 870; Oethery. Capper,
16 C. B. 89.)
(a) The principle in pleading that
to a general averment there should be
a particular issue has long been ac-
knowledged. The reason of it being
)th«t the question to be tried may be
brougjht to some degree of certainty
and notice given of what is to be tri.
tated at the trial: {Sayre et aiy
Minna Manafield, Gowp. 678.) Tliis
principle has in a very recent and im-
portant case been Ailly canvassed and
confirmed: (Oray et al. y. iWa* ;„
error, 16 Q. B. 901.) ' "
(6) The first step in pleading ia the
declaration, in which plaintiff sets
forth the cause of his complaint parti-
cularly and thereby explains bis irrit:
(Bac. Abr. " Pleas and Pleading" A.)
Where .plaintiff has several causes of
oomplamt he is allowed to pursue them
cumulatively in the same suit, pro-
vided they be against the same parties
and in the same rights: (s. Izxt.
of this Act ) Such different complaints
constitute different parts or sections of
the declaration, and are known in
pleading by the description of counts-
(Steph. PI. 267.) It is a singular fact
that this Act is silent as to the allow-
anoe or disallowance of several counts,
though provision is made for several
pleas and other subsequent pleadings:
(s. cxxx.) The law therefore in this
respect in Upper Canada remains much
the same as befbre the Act. The use
of Several counts in the same declara-
tion has always been permitted under
certain restrictions : ( Onslow y.Home,
8 Wils. 186 ; Smith y. Milles, 1 T. R.
476. ) A restriction in England was to
the effect that they should not he
allowed « unless a distinct sutgect
matter of complaint was intended to be
established in retpect of each :" (Eng.
Rule 6 H. T. 4 Wm. IV. ; Jerv. N. R.
116.) A restriction in Upper Canada
almost in similar words was held from
the peculiar phraseology of the rule to
have reference to costs only : (Ic\:le 82,
E.T. 6 yic.Cam.R.87 ; and see Johnson
v. Munter, 1 U. C. R. 280.) Notwith-
standing, the power of the Courts to
strike out such counts of a declaration
/
I.«TU.] BEOLAAATION QENESALLT.
3e it enacted as follows :
213
,g are doable and vexatiouB has never
keen doubted. For example, where a de-
oliration contained ninety-eight counts
upon u many notes for £1 each the
Coirt ordered all to be straok out but
one: (Cunnaek T. Chtndrjf^ 1 Chit.
B.709; see further iVe/aony. Oriffitht,
2 Bins. 412 ; Lane T. SmUhf 8 Smith
113; M«kt ▼. Oxlaie^ 1 N. B.
2S9; OcihM ▼. Shav, 1 D. & B. 171 ;
A«tr^ T. Jfuwon, /&. 608.) It is now
proTided by the new roles of pleading
^hioh will come into foroe in Easter
term next,Uiat apon any application to
gt^ke oat counts the Court or a Judge
m»T allow " such counts upon the same
oftttse of aoUon as may appear to such
Court or Judge to be proper for deter-
xujaai the real question between the
M^es on its merits:" (N.B.P1. 2.)
Xht power to strike out some of seyeral
oonnts founded on the same cause of
action is, it will be noticed by this
rale, tijcen for granted. The Courts
have a general jurisdiction in such
matters, which has nerer been taken
away or altered br the rules, though
in the exercise of it the Courts have
always been goTemed by such rules :
{Jama ▼. Bourne, Tindal C. J. 4 Bing.
5. C. 428.) It has been held in many
eases that if there be a distinct contract
in respect of the same subject matter,
a eount on each contract may be al-
lowed: (Tindal G. J. IbA A count
on a promise to carry gooas from Dub-
Bn to London, and a count on a promise
to carry the same goods from the wharf
at London to plaintiff's place of busi-
ness have therefore been permitted in
the same declaration : (Jamet v. Bourne
ttal.,ubimpra; see also Vauphan v.
Oknn, 5 M.« W.577 ; Rex y. Archbishop
q^ For*,! A.&E.894 ; Dueery. Triebuer,
8 Dowl. P. C. 188 ; Wilkinson y. Small,
R. 664 ; Bleadon y. Rupallo, 9 Dowl.
P. C, 857; Cahoony. Burford, 2 D. &
L. 284; Lueasy. Beale, 2 L. M. & P.
47; Hemod Wilkin, 11 Q. B. 1.) The
common counts for the purposes of
pleading and costs have been held to be
separate oouuts : (see Jourdain y.
Johnson, 4 DowLP. C. 684 ; Fergusson
y. Mitchell, 4 Dowl. P.G. 618; Spyery.
Thelwell, 4 DowL P.C. 509; Rinff y.
Roxbrougk, 2 C. & J. 418.) Where a
declaration contained eighteen counts,
nine for malioious prosecution and nine
for slander, to which defendant pleaded
the general issue, and at the trial the
jury found for pUuntiff on the tenth,
eleyentii, and twelfth count?, and for
defendants on the residue of the decla-
ration : Held that a distinct issue was
raised on each count by the general
issue pleaded without restriction, and
therefore that defendant was equally
entitied to a deduction firom plaintiff's
costs in respect of counts found for
him, as if issue had been joined on
these counts by pleading separate-
ly to each : (Co* y. Thomason, 2 C.
& J. 498.) From what has been al-
ready sua, it may be laid down that
if counts are on the face of them
founded on the same subject matter
of complunt, the Court or a Judge
may upon application strike them out :
(Sernody. Wilkin etal,U Q.B.1; Ramt-
deny. Oray etal,7 C.K9Q1.) Ini}lead-
ing several counts by the insertion of
the word " other," counts are made to
represent cUfferent subject matters:
(Jaart y. Longfellow, 7 Mod. 148.)
Thus, a declaration upon an agreement
contained two counts. The first averred
that pltdntiff agreed to let and defend-
ant to take certain premises specified,
subject to an undertaking that defend-
ant should keep the same in repair.
The second count stated in consi-
deration that the defendant bad become
and was tenant of a certain other mes-
suage, he promised, &c. At the trial
of this case one contract of demise
only applying to one house only was
proved : Held that plaintiff was not
entitled to recover damages in respect
of the breaches alleged in both counts :
(Holford y. Dunnett, 7M. &Vf. 848.)
From this it appears that where there
are several counts apparently founded
upon different subject matters of com-
plaint, but in fact the same, though
7
214 THE COMMON LAW PROCBDURE ACT. r« - ••
ilT^^'S^J^'t^i:^ OVII. (c) A plainUff shall be deemed out of Court unless
S s/. mttdSiare^e declare (d) withiu one year (c) after the Writ of Summons
^ within a ia returnable. (/)
*!*!
5'b
allowed to st&nd together, plaintiff runs
the risk of failing upon all except
one at the trial. This strengthens the
general rule that several counts giving
different versions of the aame subject
matter will not be allowed : (See Chol-
mondeley v. Payne, 8 Bing. N. 0. 708 ;
Jenkins v. Treloar, 4 Dowl. P.O. 690 ;
Lautrence v. Stevens, 3 Dowl. P. C.
778; Thornton r. Whitehead, 4 Dowl.
P. C. 747 ; Weeton v. Woodcock, 6 M.
& W. 143 ; Roy v. Bristow, 5 Dowl. P.
C. 452 ; Temperley v. Brown, 1 Dowl.
N. S. 810; Mathewson v. Ray, 16 M.
& W. 829 : Qrissel r. James, 4 G. B.
768; Fagan v. Harrison, 4 C. B. 909 ;
Boozey v. Tolkien, 6 C. B. 476 ; Smith
V. Thompson, 5 C. B. 486; Hoare v.
Lee, 5 G. B. 754 ; Ardm v. Pullen, 1
Dowl. N. S. 612 ; Gilbert v. Sales, 2
D. & L. 227: Ramsden v. Oray, 7 C.
B. 961 ; Bulmer v. Bousefield, 9 Q. B.
986; Simpson v. i^ancf, 1 Ex. 688;
The rule since the C. L. P. Act, will
be of wide application whenever several
counts, if allowed to stand, would be
likely to " prejudice, embarrass or de-
lay the fair trial of the action : " (see
s. ci.) The application to strike out
counts ought to be made to a judge in
Chambers, in the first instance, and if
a doubt arise the parties may apply
to the Court: {Ward v. Oraystoek,
Parke, B., 4 Dowl. P. G. 717.) The
summons or rule ought to be drawn up
on reading the declaration or an affi-
davit of the identity of the counts:
{Roy V. Bristow, 5 Dowl. P. G. 452.)
(c) Taken from Eng. St. 16 & 16
Vic. cap. 76, s. 58. — Applied to Coun-
ty Courts. — A re-enactment of our Rule
19 H. T., 13 Vic, which was copied
from Eng. Rule 85 H. T., 2 Wm. IV. :
(Jenris, N. R. 68.) The English rule
has been held not to apply to a case
where the plaintiff was prevented f^om
declaring by an order obtained by de-
fendant to stay proceedings until secu-
rity for costs : {Ross v. Oreen, 29 L.
& Eq. 491.) It was also held th**
whwe plaintirs proceedings were ^.
ed by rule which expired on a certain
day, that plaintiff was bound to de
dare within a year from the ex"
piration of that rule: (Unite x
Humphrey et al, 8 Dowl. P. Q. m'.
se« also Home v. Tooke, 2 Do.i'
P. C. 776.) These rules ;ere C
upon an acknowledged rule of pracUce
that a plaintiff must declare within
twelve months after the return of first
process : ( Worley v. Lee, 2 T. R. 112.
see also Fenny v. Harvey, 8 T. R 123'.
Cooper V. Hias, 8 B. & A. 271.) " '
( d) Plaintiff to declare, within the
meaning of this enactment, must serve
as well as file his declaration within
the year : {Eadon v. Roberts, 24 L &
Eq. 418 ; see f\urther Wallace v. jia-
ser, Chambers, Sept. 16, 1856, Burns
J., 2 U. G. L. J. 184.) If served after
the expiration of a year the declara-
tion may be set aside upon application
of defendant: (see Barnes v. Jackson
«<a/,lBing.N. C. 645.)
(«) I. «. Within twelve calendar
months : (see Bishop of Peterborough
v. Caterby, Cro. Jac. 166.) " Within
one year" and "within four terms,"
are not synonymous expressions*
(Chaplin V. Showier, 6 D. & L. 227.)
The days between 1st July and 2l8t
August,— the long vacation— will be
calculated as part of the year, (Chit.
Arch. 8 Edn. 185.) It has been held
where a cnuse was removed from
au inferior court, that plaintiff could
be considered out of Court until a
after the return of the writ by
.-ioh the suit was removed: {Narrish
T. Richards, 6 N. & M. 268 : Pierce v.
Street, 8 B. & Ad. 897.)
(/) The summons is returnable im-
mediately after service; wherefore it
would seem that the year should be
reckoned from the date of service :
(see Barnes v. Jackson, 8 Dowl. P. C.
404; Hodgson v. Mee, 8 B. & A. 765.)
criii.] DECLARATION— COMMENCEMENT, &0. 216
CVin. ig) Every declaration shall commence as fo^ows, Jn^^^JJ-^-^^f^^"^^
^j to the like effect: (A) "(Fcmmc,) (t) A. B. by E. F. U«»- »• <?•) f.^^.
<( his Attorney or in person, (j) (a« the case may Jc)Oo"™««<»-
9t-tZ\
It in not to be understood from this
ensotment that plaintiflF cannot be com-
lilltd to declare before the expiration
of sye&c Plaintiff has of right until
L expiration of the term next fol-
lowing the date of appearance within
«hich to declare. If within that time
he neglect to do so, defendant can
by notice require him to declare with-
;: eight days, otherwise judgment of
Inproi: (18 Car. 2 St. II., cap. 2, b.
3 and 8. cii. of this Act.) But if the
8ppe»ranoe be entered io term, plain-
tiffmay have the whole of the term next
after the term in which appearances
is entered : {Fotter v. Pryme, 8 M. &
W. 6i!4.)
ig) Taken from Eng. Stat. 16 & 16
Tic., cap. 76, s. 59. — ^Applied to County
Courts. The commencement of the form
ofa declaration here given is much the
eame as that prescribed by Rule 18 H.
T 18 Vic, which was taken from Eng.
r'.'g. 16, M. T., 8 Wm. IV.
(A) It should be remembered that
the declaration must be intitled of th.
proper Court and of the true day of
the month and ^ear of pleading the
same: (see s. ciii.) And if it be inti-
tled in a particular Court, the action
cannot afterwards be transferred to a
Court of co-ordinate jurisdiction, unless
the Crown be concerned: (Attorneif
General v. Hallett, 15 M. & W. 97.)
(i) For the law as to venue see
note J!: to s.' vii. ; see also Peacock v.
Bell tt d, 1 Wms. Saunders 78. As to
changiof; venue see note I to s. viii. of
this vork. If several causes of action,
in themselves local, but which arose in
different counties are joined together,
the venue may be laid in either of the
connties: (see s. Ixxv.) No venue
need be stated in a declaration except
the one alleged in the margin : (see
Baydell et al v. Harknesa, 4 D. & L.
178; also N. B. PI. 4.) But local
description, whenever requisite, must
still be given in the body of the decla-
ration.
(y V If the declaration omit to show
whetner plaintiff sue in person or by
attorney, it will be irregular and may
be set aside : ( White v.Feltham, 8 C.B.
68,) or amended under s. ocxoi. of this
Act. The application to set it aside
should be made to a judge in Chambers :
(see White v. Pelham, ubi aupra.)
Such an omission before this Act was
however held to be no ground of spe-
cial demurrer: (Murphy y. Burnham,
2 U. C. B. 261.) Where the plaintiff
in the commencement of his declara-
tion, declares without stating that he
does so by attorney, the Court may
consider that he is suing in person :
(lb.) If the signature of an attorney
be appended to the declaration that
shows that plaintiff sues by attorney,
but is not a repugnance of one part of
the declaration to another : {Jb.) If
the attorney's name be stated in the
commencement of the declaration it is
not necessary that it should be also
subscribed : (Crooks v. Davit et al, 6
0. S. 141.) But if the declaration be
drawn up in a slovenly manner, the
Court will direct an amendment:
{Murphy T. Burnham, ubi tupra.) It
seems if a declaration be ordered to be
amended in the name of the attorney,
that is sufficient to amend the declar-
ation filed without filing an amended
copy : (Hart et al v. Boyle, 6 0. S.
168.) All persons excepting married
women, infants and idiots, can sue and
declare by attorney: (Tidd Pr. 9 Edn.
92-98.) Married women must sue with
their husbands ; infants by proehein
amy, (note k, infra ;) and idiots in per-
son. No attorney can be changed
without the order of a judge : (N.B.4.)
The order may be granted without an
affidavit : (In re Glatte v. Olatse,
Chambers, 2 U. C. L. J. 218.) In
case of the attorney dying, no order
is necessary: {Ryland v. Noaket, 1
Taunt. 842.) But notice of the ap-
pointment of a new atttorney should
be given to the opposite party before
'Jl .■.'JS
216
THS COMMON LAW PROOKDUBB ACT.
[8.
CU
mentofdvi
cUmticm.
" (k) sues (0 0. P., (m) who Ikas been summoned (n) (or,,
" rested) (o) by Tirtue of a writ issued on the day of
" A. D., 18 , (p) for (hen state cause of action) " : ant| ^^^
Oondndon. conclude 88 foUows or to the like effect, "and the Plaintiff
" claims £ , (q) (or if th€ action is brotyht to recover speeifi
"goods,) (r) the Plaintiff claims a return of the said gooda o
" their Talue, and £ for their detention/'
(App. Os €.) CIX. (») In all cases in which after a plea in abatement of
any proceedings taken by such new
attorney. (lb.)
(k) An infant can only sne hjpro-
ehnn amy, (St Westmin. II. cap. 15.)
A'a authority to sue from the infant to
the proehein amy is unnecessary : [Mor-
gan V. Thome, 9 Dowl. P. C. 228; see
also Nunn r. Curtii, 4 Do'irl. P. C. 729 ;
Leeeh t. Clabbum, 2 L. M. & P. 614.)
The latter is an officer appointed by
the Coort: (Fits. Natwa Brevium, p.
26.) The distinction between a guar-
dian proper «aA proehein amy, is point-
ed out in Simpton Y. Jackson, Cro.
Joo. 640. The declaration in any
action by an infant may be as fol-
lows: «'Fen«e.— A. B. by E. F. who
is admitted by the Court here to
prosecute for the said A. B., who is an
infant within the age of twenty-one
jrears, as the next friend of the said
A. B., sues CD., who has been sum-
moned, &c.:" (Chit. PI. 2 Edn. 16.)
The form directed by Rule 18, H. T.,
18 Vic, provided for the case of an
infant plaintiff.
(I) '< Complains of C. D," were the
words used in the Bule H. T. 18 Vic.
and Eng. Rule O. 15, M. T. 8 Wm.IV.
(m) Misnomer is no longer a ground
for a plea in abatement : (St. U. C. 7
Wm. IV. cap. 8, s. 8, — taken from
Eng. St 8 & 4 Wm.IV.cap. 42, s. 11.)
If either plaintiff or defendant be mis-
named, defendant's course is to apply
to amend the declaration at plaintiff's
costs : {Lindsay ▼. Wells, 3 Bing. N.C.
77; Rush V. Kennedy, 7 Dowl. P C.
199 ; Murphy t. Bunt et al, 2 U. C. R.
284.) Application ought to be made
within the time allowed for pleading :
(Kitchen y. Brooks, 6 M. & W. 522.)
Parties may sne or be sued in a reDre
sentative capacity as executors &c •
(see cases collected in 1 Dowl. p n
98.) As to the proper mode of declar
ing either when defendant sued by a
wrong name, appears by that name or
otherwise by his right name, see note
o to s. Ixiv. If the name mistaken be
idem sonans with the true name there
can be no objection : ( Webb f //,«
rence, 1 C. & M. 806.) " ""
(n) I. e. Pursuant to and under s
xvi.
(o) I. e. Under s. xxii. To describe
defendant as summoned when he was
in reality arrested, is irregular : (Ton
V. Stevens, 6 Dowl. P. C. 276.)
(p) Every writ of summons and
capias must bear date on the day when
issued : (s. xix.)
(q) The sum to be here inserted
must be sufficient to cover all that
plaintiff expects to obtain. The jury
cannot exceed the damages so limited:
{Cheveley v. Morris, 2 W. Bl. 1300*
Fickwood V. Wr^ht, 1 H. Bl. 643.)
It has been held where a jury did
C^ve larger damages than the declara-
tion authorised, that an amendment
might be made: ITibbs y. Bacon, 6
Scott N B. 887.) If interest be claim-
ed by plaintiff as damages, it should
be also included: {se^ Watkins't. Mor-
gan, 6 C. & P. 661 ; Baker y. Brom,
2 M. & W.ig9.) The sum to be award-
ed by the judgment may be awarded
without any <ustinction as to debt or
damages : (s. cxliv.)
(r) As to execution for the specific
delivery of chattels : (see s. coi.)
(«) Taken ft-om Eng. Stat. 15 & 16
Vic. cap. 76 s. 60.— Applied to County
Wl- ::
s. ex.]
DECLARATION AITEK PLEA OP NON-JOINDER.
217
the non-joinder of another person as Defendant, the PlaintiflF J^ftO^J-^;
L II without havine proceeded to trial on an issue thereon, Commenm-
gball, wi*"" or .^^, TYi-ji T»i»Ji mentaftor
mmenoe another action against the Defendant or Defendants abatoBunt
. jjjg action in which such plea in abatement shall have been dOT."""
nleaded, and the person or persons named in such plea in
abatement as joint contractors, (t) or shall amend by adding
the omitted Defendant or Defendants, (u) the commencement
of the declaration shall be in the following form, or to the like
«(w) (^Venue.') (x) A. B. by E. F., his Attorney, (or in his j,„^
"own proper person,) (y) sues (z) C. D. (a) (the Defendant
HQriginally named in the Summom) who has been sum-
«mor jd (b) (or arrested) (c) by virtue of a Writ issued on
"the day of A.D., 18 , ((2) and G. H., which
"said 0. D. has heretofore pleaded in abatement the non-
"'oinder of the said Gr. H., for," &o. (c)
»
ex. (/) In actions of libel and slander, the Plaintiff shall
Conrts.— Sabstantially a re-enactment
of rale 88 £.T. 6 Vic. which was copied
from Eng. rule 20 H. T. 4 Wm. IV.
(Jeryis N. R. 126.)
U) This plaintiff might have done
berore the G. L. P. Act, and may do
still. He will by so doing avoid pay-
ment of costs : (see note k to s. Izzi.)
(u) t. e. under s. Ixxi. of this Act.
If defendant's plea of non-joinder be
trae and plaintiff amend his declara-
tion pursuant thereto, he will be bound
to pay the costs of such plea : (s.
Ixxii.)
(to) See note h to preceding section.
(x) See note t, lb.
(y) See note/, Jb.
h) « Complains of G. D." in rule
88 E. T. 6 Vic and Eng. rale 20 H. T.
4 Wm. IV.
(a) See note m to preceding section.
(ij See note n, Jb.
(c) See note o, lb.
(d) See note />, Jb.
(e) As to when such pleas may be
pleaded, see notes to s. Ixzi.
(/) Taken from Eng. Stat. 16 & 16
Vic. cap. 76, s. 61. — Not applied to
Count) Gourts.-Founded upon 1st Rept.
C. L. Gom'rs, s. 46. The Commission-
ers, " with a view at once of shorten-
ing the pleadings and generally remov-
ing sources of objection purely techni-
cal," recommended the subject matter
of this enactment as to averments in
actions of libel and slander. Expres-
sions or words are either libellous
per te or by reason of some precedent
circumstances taken in connexion
therewith. To charge a man with be-
ing a robber or a thief is to make a
charge which can only be understood
in a criminal sense, irrespectiye of any
particular office, character or fact:
(see Jonet v. Steuart, Tay.U.G.R.626 ;
Bell T. Stewart, E. T. 11 Geo. IV. MS.
B. & H. Dig. «Libel and Slander," 11.
1 ; Cox V. Thompson, 2 C. & J. 862;
Cook V. Ward, 6 Bing. 409.) But to
charge a man with being a bankrupt
or an insolvent, &o., of itself imports
nothing criminal without reference to
some other circumstance to explain the
intention and actionable quality of the
expression : (see Oalwayv, MarahaU,2S
L. J. Ex. 78.) In the former case no
prefatory matter is necessary. In the
latter it is indispensable to state by
m
> ' . '» *i
\ u*. eft
$9*
vx
218
THE COMMON LAW PROCEDURE ACT.
[fl- ex.
1862,
ATarmenti
In actioni
fbr ilandar
orllbel.
jf»v
HfsSK: ^® *' liberty to aver that the words or matter (</) complained of
were used in a defamatory sense — specifying such defamatory
sense without any prefatory averment to show how such words
or matter were used in that sense, {gg) and such averment shall
he put in issue hy the denial of the alleged libel or slan.
der ; (A) and where the words or matter set forth, with or
without the alleged meaning, show a cause of action, the
declaration shall be sufficient, (t)
And as to pleas and subsequent proceedings ; Be it enacted
■Tez aa follows : {J )
(App. Oa. c.)
ISiuC. 0. L. p.
Sni
A.
way of induoement, plaintiff's good
character, business reputation, &c.,
and defendant's intention to injure
The latter is technically called the in-
uendo. To prove the inducement and
inuendo properly has often been found
a task of no small difficulty. To do so,
it was necessary to state " the facts
in reference to which the publication
was actionable ; secondly, to show that
the words or libel were published of
and concerning such facts ; thirdly, to
connect the words or libel with such
previous facts, by means of inuendoes,
thus importing into the words a sland-
derous and actionable quality." Num-
erous instances might be given where
judgment has been arrested or re-
versed because the inuendo or mean-
ing ascribed to the words used, which
is the essence of the cause of com-
plaint, was not, in the opinion of
the Court, supported by the prefatory
statements, although the jury must
have found that the meaning alleged
was intended by defendant: (see
Johnson Y. Hedffe, 6 U. C. B. 387;
Marter v. Diffby, 4 U. C. R. 441 ; Tay-
lor T. Carr, 8 U. C. R. 806 ; Jackson
V. McDonald, 1 U. C. R. 19 ; Solomon
Y. Lawson, 8 Q. B. 828 ; Oriffiths t.
Leuiis, lb. 841 ; Alfred y. Farlow, lb.
854 ; Alexandery. Angle, 1 C.& J.148 ;
Hawkes v. Havoke, 8 East. 427 ; La-
fame V. Maleolmson, 1 H. L. C. 687 ;
Hall y. Blandy, 1 Y. & J. 480; Jones
y. Stevens, 11 Price 236 ; Harvey v.
li-ench, 1 C. & M. 11 ; Goldstein v.
Foss, 4 Bing. 489.)
(g) Matter— Qu. Is it intended that
this section should apply to cases of
libel by pictures or other caricatures?
iffSf) Where the words written or
spoken are per se actionable, as~
"He is a thief," it would appear
unnecessary to aier that they were
used in a defamatory sense and that
to such a case the present enactment
is inapplicable : (See Soh. B. No. 28.)
But where such words are notof them-
selyes o^ an actionable quality, the
defamatory meaning must be explain-
ed. Ex. gr. — " He is a regular pi oyer
under bankruptcies," '« The defendant
meaning thereby, &c." (lb. No. 29.)
This illustration is eviaently taken
from an actual case : yiz. Alexander y.
Angle, 1 C. & J. 43. To cases of this
latter description this section is intend-
ed to apply.
(A) •« Not guilty, " form of— see Sch.
B. No. 89.
(t^ This is in keeping with other
sections of this Act, and is a great re-
lief from the old form of pleading.
The old system was thus described by
the Commissioners: "The statement
now required of the train of circum-
stances in connexion with the slander
to show the meaning imparted to it,
appears to us to be unnecessarily pro-
lix and more calculated to impede than
to advance justice, by imposing diffi-
culties of a technical nature."
{J ) Though since this Act a plea in
form need not be technically as correct
as before the Act, yet it must in sub-
stance, if it be a plea in bar, be a good
SS. CXI.
oxu.J
NOTIOK TO PLSAO.
210
CXI- (M) ^° ^^ ^ jtiead or demand of plea (0 sliaH be JJ^JJj^^
ecessaty, and a notice to plead served shall be sufficient, (m) **»«>»•
I
CXII. (n) In cases wnore the Defendant is within the j'>"8-^5^f^ ^^ , ■^•**
diction, (o) t^fl *^™® for pleading in bar, (^) unless extended Alma.t.es!*',^^!^;; ^
Mence. The essential rules of plead-
inff »re in no wise changed by the Act :
iL Holmes V. Buffffe, 22 L. J. Q. B.
ioi- Melxner T. Bolton, 9 Ex. 618.)
And'though the Courts have liberal
nowen of amendment under a. ccxci.
L it is doubtful whether these powers
can be so far exercised as to enable a
defendant to put a defence upon the
-cord differing from that by him first
i)Ie»ded : (see Mitchell T. Craaiveller, 22
1 3. C. P- 100.) The pleas upon the
record must show a^^yd "ground of
defence," or they will be open to de-
Burrer: (s. xcix.J The facts neces-
^ t) sustain the defence must be
gtnted in a dear and distinct manner.
It has been held if defendant sued
bv 8 corporation plead over and take
no exception to the declaration that
the Court cannot take judicial notice
of the vant of legal authority in the
pltintiffs to sue in their corporate ca-
pacity : {Bank o/B. N.A.v. Sherwood
l/a/. 6U. C. B. 218) Pleas on the
face of them not identified with the
canse, by being intitled, &o., have been
held defective : {Shore v. Shore, 3 O.S.
176 note a. ) Now they must be plead-
ed according to the directions laid
down in s. oxvi. of this Act. Pleas, if
filed, though not served, will be suffi-
cient to prevent plaintiff signing judg-
ment: {Mackinnon v. Johnston, 3 0. S.
169.) And though pleaded by a per-
son who is not an attorney, it seems
they are not upon that account null :
Zri7/v. Mills, 2 Dowl. P. C. 696.)
{k) Taken from Eng. Stat. 15 & 16
Vic. cap. 70, 8. 62. — Applied to Coun-
tj Courts.— Founded upon 1st Report
C.L.Com'rs, s. 60.
(/) Rules to plead were made unne-
cessary by old Rule 4 E. T. 11 Geo.lV.,
and Rule 10 E. T. 6 Vic, and demands
of plea were thereby substituted.
(m) Demands of plea are now made
unnecessary, and notices to plead sub-
*o/.
stituted : (Form thereof— sc« note A to
8. cii.) An irregularity in a notice to
{dead may be waived by defendant tak-
ng out a summons for ftirther time to
plead : (Pope v. Mann, 2 M. & W. 881.)
Indeed the want of a notice may, it
seems, be waived by defendant's con-
duct, for instance — if he obtain an or-
der for time to plead : {Pearson v.
Reynolds, 4 East 671 ; see also AYa«
V. Spratley, 4 B. & C. 886,) Even a
summons for time to plead, obtained
by defendant, may be held to be such
a waiver : {Bolton v. Manning, 6 Dowl.
P. C. l^^.—Sedqu, See Deritrr v. Shed-
den, 8 B. & P. 180.) But a summons
obtained by one of two defendants who
appear by separate attorneys will
clearly not affect the rights of the re-
maining defendant: {Skowlery. Stookea,
2 D. & L 8.) No judgment for want
of a plea can be sign^ as a general
rule without a notice to plead: (see
Jleath V. Rose, 8 N. R. 223 ; Fenton
y. Anstice, 6 Dowl. P. C. 118.) It
has been held that a demand of plea
cannot be served before deolaraUon
filed, however short the time may be :
{Read v. Johmon, Tay. U. C. R, 674.)
(n) Taken from Eng. Stat 16 & 16
Vic. cap. 76 s. 63. — Applied toC' uaty
Courts. — Substantially a re-cnacir;)* j.t
of rule 10 E.T. 5 Vic. and U. C Stat 2
Geo. IV. cap. 1 s. 5.
(o) As to defendant without the jur-
isdiction, plaintiff after service of
summons is at liberty to proceed " in
such manner and subject to such con-
ditions" as to the Court or a Judee
may seem fit : (ss. xxxv. and xxxvi^)
(/>) A plea in bar may be defined as
one which shows some ground for bar-
ring or defeating plaintiff's action. It
is, in short, a substantial and conclu-
sive answer to the aoUon : (Stcph. PI.
51.)
«^
s
if!.
w
/ •♦^gj
W
p.
/ lVV|fcU
m
IS-
r
220
THE COMMON LAW PROOEDURX ACT.
Tlm« (!>r
a«7v S2«,3
IL£. Sti XX-
%93.
["• cxiii.
DieadiDK la ^^ '^^^ ^'^"'^ "f a Judge, (j) shall be eight days, and a notice
fcfin^Mt *'«1'*»""g *^® Defendant to plead thereto in eight daya (
J^JJJ^WMhe otherwise Judgment, («) may be indorsed on the copy of th
lApP' cb- c.) declaration served or delivered separately, (t)
A?f86!i;i.(w! CXIII. (m) Express colour (i;) shall no longer be necesBarv
ooiour un- m any pleading, {yo)
nwearary.
(9) The Courts have always had
power, upon motion, to grant a de-
fendant longer time, to put in his plea
than that limited by the practice of the
Court. It ia for the Court to Judge
whether it bo necessary for defendant
to plead such a plea as requires longer
time than ordinary: (Bacon's Abr.
" Pleas ond Pleading," 0. ) The pow-
ers are now usually entrusted to a
Judge in Chambers: (see note m to s.
xxxvii.) The application for further
time to plead should be made before
the time when plaintiff would be en-
titled to sign judgment: {Ottiwell t.
D'Aeth, Barnes, 264 ; Bamett r. New-
ton, 1 Chit. R. 689; Calzey. Littleton,
2 W. Bl. R. 954 ; Cumberlege v. Carter,
6 M. & G. 748.) But if the summons
be returnable before judgment signed,
judgment signed while the parties are
attending the Judge would be irregu-
lar : {Abernethy y. Paton, 4 Scott 686 ;
Wells y. Secret, 2 Dowl. P. C. 447;
Spemeley t. Shouls, 5 Dowl. P.C. 662;
Burton t. Warren, 14 L, J. Q.B. 812 ;
Daley v. Arnold, 1 Dowl. N. S. 938 ;
Olen v. Lewie, 8 Ex. 131.) The ap-
plication may be made though previ-
ously a " peremptory" order for fur-
ther time had been obtained by con-
sent : (Beazley t. Bailey, 4 D. & L.
271.) Further as to the application,
see Chit. Arch. 8 Edn. 216. Where an
order was for four days' time to plead,
omitting the word "further," beld that
the time should be computed from the
date of the order and not from the ex-
piration of the original time to plead :
{Lane v. Par tone, 6 Dowl. P.C. 359.)
If defendant's summons be dismissed
and the time for pleading have expired,
defendant will not be entitled to more
time for pleading than the rest of the
day on which the summons was dis-
missed : {Mengent t. Perry, 16 M *
W. 587, confirmed in Evani v. SenL7
4 Ex. 818.) **""*^
(r) The same period as fixed by th.
old practice (see note n aupra.) Uh.!
been held that defendant is entitled
to eight days to plead to anewassijm
ment : ( Vnger v. Croaby, 8 0. 8. I75 \
And that after a demand of replication
plaintiff has eight days to reply : (£0.
bineon v. MeOrath, H. T. 2 Vic M ?"
R. & H. Dig. " Practic," I. lo") }\
to time for pleading after amendment,
see 8. cxxxlx. Sunday, though a iut
non, if neither the first nor last of
the eight days, is counted : (Shotbridae
y. Irwin, 6 Dowl. P. C. 126.) Pour
days only are allowed for pleading in
abatement , (see note r to s. Ixiz. of
this Act.)
(s) Judgment cannot, it is appre.
hendod, be signed if the pleas are in
the office and filed, though not served.
(t) Form thereof see note k to s. cii.
The notice to plead, if not delivered
with the declaration, may be delivered
at any time within twelve months after
the declaration : (Anon. 2 Wils. 187 ■
see also West v. Radford, 8 Bnrr'
1452.)
(u) Token from Eng. Stot. 16 & 16
Vic. cap. 76 s. 64. — Applied to County
Courts. — Founded upon Ist Rep. C. L.
Comrs. 8. 89.
(v) Before this Act it was a rule
that pleadings should not be argumen-
tative. This has given rise to what
was called express colour. Thus, if to
a declaration stating that plaintiff was
possessed of a house, the defendant
were in his plea to state that the house
was his, the plea would have been held
bad as being an argumentative and in-
direct denial of the statement in the
declaration that the house was the
221
Ozir<3Z7] FORMAL ALLEGATIONS UNNE0EB8ART.
CXIV. (x) Special travenos 'j) shall not be necesaaiy in ^J^'^i^
, pleading. (*) 1;.M-
•oy
ipeeUl
tnveriM,
Co. C) <S*»* ttmt fxn
^
CXV. (a) !•* • P^®* °' ■ubsequent pleading it shall not he Q^ce^^sio^f. ft
^^^ggary to use any allegation of actionem non or <*<^'*<^«*'»^fgPA^J^' ** 1/^ '*
^/<«r»M won, or to the like effect, or any prayer of Judgment ; ' ^^ '
nor shall it be necessary in any replication or subsequent gsuona and
hoaM of the plaintiff; but if the de-
fendant were to state ftncl show that he
had • t^ ^^^^ ^ ^^^ house, and ad-
nittheplkiBtiff's possession in fact,
hat mrmise that the plaintiff was in
postession by some bad title, the plea
ijnld be good, as giving «z/>reM colour
tothe pikintiff's alleged possession:
m \ This form of pleading is now
pore » matter of history than of prac-
tice. Those interested in its history
gjiy refer to Finlason'a C. L. P. Acts,
1862, 8. 64, note o.
£] The " express colour" declared
unnecessary by this section is of
eonnie that;!etion in pleading of vrhieh
ID example is given in the previous
note— a proceeding characterised by
the C. L. Comrs. as being, '* however
ingenious, too subtle and ought to be
ibolished." Indeed its express aboli-
tion by this section is almost a work of
gnpererogation. The want of " express
colour," technically so called, has
ilways been a defect of form, vrhich
could only be objected to on special
demurrer, and it has been already en-
acted " that no pleading shall be deem-
ed insnfBcient which could heretofore
only be objected to on special demur-
rer" (b. 0.) But by the operation of
this Act, independently of the section
under consideration, the omission of
such a fiction is not only unobjectiona-
ble but actually commanded,for an alle-
gation or ' < statement that need not be
proved," should be omitted : (s. xcviii.
and especially note m to that section.)
(x) Taken ttom Eng. St. 16 & 16
Tva. cap. 76, s. 66. — Applied to Coun-
ty Court— Founded upon Ist Rept. G.
L. Gom'rs, s. 44.
(y) The form of a special traverse
comprised y{r«< an inducement or state-
ment of new matter which was requir-
ed to be an indirect denial of the fact
intended to be traversed, and teeond-
ly the conclusion or traverse, which
was in these words, "without thus,
that, &o," (denying, directly, the faot
intended to be disputed.) If the in-
ducement stood alone the plea would
have been open to objection for argu-
mentativeness, because it would only
show by inference or indirectly, that
the allegation intended to be denied
could not be true. The direct or
" ipeeial traverse," therefore, was ad-
ded to avoid such an objection. (lb.)
The use and object of such a form of
pleading is well explained in Steph.
PI. 186. Of it as of express color, it
may be said now only to be interesting
in a historical point of view. For a
history of it see Finlason's C.L.P.Act,
s. 66, note a.
(z) The abolition of special traverses
by express enactment may be also said
to be a work of supererogation, and
for the reasons mentioned in note to to
the preceding section : (b. cxiii.)
(a) Taken from Eng. Stat. 16 & 16
Vic. cap. 76, s. 66— Applied to Coun-
ty Courts — Substantially a re-enact-
ment of Uule 41 E. T. 6 Vic, which
was copied from Eng. B. 0. 9 H. T. 4
Wm. IV. (Jervis N. R. 122.) These
rules were expressed to be applicable
only to a plea or subsequent pleading,
intended to be pleaded in bar of the
whole action generally, as distinguish-
ed from pleas, to the further main-
tenance thereof only, a restriction
which does not obtain as regards this
section. Our old rule was held to ap-
ply to cases commenced before it came
into operation : (Hamilton v. Davia et
al, 1 U. C. R. 176.)
222
TIIK COMMON LAW PROOIDURI ACT.
[■• oivi.
c'm^*u<
m
t>.
':K'i
(
1
\ '
.1 '
V;
!■■
>• 4
iV
>•'" ta
■^T>V
1^^
KJJSJd?"* P^o**^'"8 *o "■« '^"y allegation of precludi non, or to the Ik
effect, or any prayer of Judgment, (i)
OXVI. (c) No formal defence shall be required in a pie
k*Df'b'u^v! avowry or oogniMnce, (d) and it shall commonco as foljowi' °'
A.f86!i,..o7. to the like effect, (*) « The Defendant, by E. P., (/) 1,1,^
*•. (here state Jirst defence) f (i) and it shall not be noccsHary ♦«
state in a second or other plea or avowry or cognizance that '
is pleaded by leave of the Court or a Judge (y) or accordi '
to the form of the Statute (k) or to that effect, but evorv Rn \
B«>ondpiemP'®*' avowry, or cognizance, shall be written m a separate
ke. paragraph and numbered, (J) and shall commence as follow
(&) It was held under our Rule 11
£. T. 6 Vic, that it was a good around
of special domurrer to a replication
that it improperly concluded with a
grayer for relief: {Rets t. Dick, 7 U.
. R. 406.) Such an objection would
not now be entertained on demurrer :
(s. 0.) It is apprehended if any
pleading contain matter by this sec-
tion declared to be unnecessary, that
the proper course would be to strilce
out such matter under s. xcviii. : (see
note m to that section.)
(c) Taken from Eng. Stat. 15 & 16
Vio. cap. 76 s. 67.— Applied to County
Courts.— Substantially a re-enactment
of uur rule 10 E. T. 6 Vio. which was
copied from Eng. R. G. 10 H. T. 4
Wm. IV. (Jervis N. R. 128.)
{d) Though a formal defence be used
the plea would not upon that account
be set aside : {Bacon t. Aahton, 6 Dowl.
P. C. 94.) Nor be demurrable since
s. 0. of this Act. The formal matter
might be struck out upon motion : (see
note m to s. xoviii.)
(«) The plea must be intitled of the
proper Court, &c.: (see s. oiii.)
(/) An infant can only plead by
guardian. The commencement of a
plea in such case may be as follows :
" £. F. admitted by the said Court here
as guardian of the defendant to defend
for him, he being an infant within the
age of twenty-one years, &c." (see
note k to s. cviii.)
(yj A plea for another by % pe^..
who is not an attorney is not a nullil!
{Hill v. Milh, 2 Dowf. P. C. 696 '^'
(A) The Court will consider 'Lr,
plea as pleaded to the whole deolarZ
tion, which is not in the introductl^i
limited in terms as a defence to D»rt
only : {Poulton r. Dolmage, 6 U C R
W. 72. ) If a plea professing to su.wer
the whole declaration answer only
part, or if professing to answer onlv
part answer the whole, plaintiff',
course is to make application to hare
it amended under s. cl. These Jefects
were formerly objectionable upon spe-
cial demurrer : (see Eddisony. Piaram
16M. &W. 18t; Orayy. pJa^i
B. & P. 427.) '
(0 As to the nature of the defence
see note j to s. cxi. If the defence be
an equitable one the plea must begin
thus, " For defence on equitable
grounds, &o," (see s. cclxxxvii.)
(j) i,e. obtained under s. oxxz.
(k) I. e. The statute authoriilng
double pleadinjf or some particular
statute in which power to plead a de-
fence in a special form is conferred.
(/) A defendant may in one plea
refer to allegations in another, in the
same manner as in separate counts of
a declaration: (Beatton v. McKtmit,
T. T. 1 & 2 Vic. M. S. R. & H. Dig!
" Pleading," XI, 1.)
SSrXNOIl AfTKB ACTION.
228
I. cM
5, to tie like effect, " And for a leoond (&o.) pica to (•tattngl'^^^
vhal it i$ pleaded) (m) the Defendant eaya that, Ac," and"^"^-
formal oonolusion shall be neoeisary to any plea, avowry,
Jogni»nce, or subsequent pleading, (n)
CXVII- («) Any defence arising after the commenooment ^»»» , j/^-;. AU
of aoy action shall bo pleaded according to the fact (j*) ^i^^" (App. Cb. C)** •*"• •^ i "».
out 8DT formal commencement or conclusion, (9) and any pleaA^ft^Jl'M. ^ 9?-
fhlcb does not state whether the defence therein set up arose D,fcnc« uit-
kefore or after action shall be deemed to be a plea of matter [y«,*^^»^
jriiiDg before action, (r)
pleaded.
im) See note h, tupra.
fl) Prayer of Judgment, &c., is de-
cUrtd to be unnecessary by the pre-
ceding section (s. cxv.)
(0) Taken from Eng. Stat. 16 & 16
Vic. c*?' 76, 8. 68.— Applied to Coun-
ty Courts.
(fl) Between pleas contemplated by
t]iii enactment and pleas puit darrein
rt»(in«anc« contemplated by the en-
actment following, there is a differ-
ence. The latter must express the
nound of defence to have ansen since
the \iAiplta ; but the pleas here in-
tended may express the ground of
defeoce as arising after the eommence-
mtnt of the action, which may be at any
time after issued writ and before plea
pleaded. It has been held before this
Act that no such plea could be plead-
ed in bar to the action, thought it
gijgbt be to the further maintenance.
A ground of defence arising after ac-
tion brought was looked upon as some-
tiiiog collateral, admitting the action
to be well brought, but alleging that
bj reason of the new matter, plaintiff
oagbt not further to maintain his ac-
tion. It was considered that a cause
of action at the time of the commence-
ment of the suit was thereby acknow-
ledged, whereas a plea in bar must
deny any cause of action to have ever
existed : {LeBret t. Papillon, 4 East.
502.) The following may be given as
an example of such a plea. To an ac-
tion on the case by plaintiff as owner
of a steamship, against defendants as
owners of another steamship, for in-
juries caused to plaintiff's Tcssel by
collision : defendant pleaded amongst
other pleas a release after action, by a
certain person Jointly entitled with the
plaintiff to the ship and to the cause
of action and damages in the declara-
tion mentioned : {Suckling t. Wilion et
al, 4 D. & L.167.) Such a plea having
been held to be one in bar of the fur-
ther maintenance of the action, and
not in bar of the action generally,
has been held to be inconsistent
with and not pleadable with pleas in
bar : {lb. but now see N. R. PI. 22.)
And yet before this Act it was held
that though such a plea was impro-
perly framed in bar to the whole ac-
tion, instead of its further mainten-
ance, that the Court after verdict was
bound to prononno« judgment that the
action be not further maintained:
{Cabbet V. Orejf et al, 4 Ex. 729 ; see
also Allen v. Hopkini, 18 M. & W. 94.)
It has also been held in Englahd, ow-
ing to the peculiar wording of the St.
2 Geo. II. cap. 22. s. 18, that a debt
which arises after action brought can
not be the subject of a set-off: {Rich-
arch V. Janet, 2 Ex. 471.)
{q) It is therefore apprehended that
whether the plea be to the further
maintenance or otherwise, the Court
will be bound to give judgment accord-
ing to the very right and Justice of the
matter in dispute. The plea if impro-
perly framed was objectionable only
upon special demurrer, which by this
Act is abolished: (s. 0.)
(r) Matters of defence which arose
.m
!i'' ■!
■J
224
THE COMMON LAW PBOOEDURE ACT.
C> cxviii.
V - '• ■ -t
'M
' '.'■,\ -/i ■'• (■.)'.'.
' ^^oV? CXVni. (0 In cases in whioli a ^le&puia darrein contku.
"^ AJwiB. 69! ance (<) has heretofore been pleadable (u) in Banc or at if' •
iMt plead- JPritis, (v) the same defence may be pleaded with an allepatin
before action, must be pleaded in
chief: {Vauyhan v. Brown, And.
828; see also Wilaon T. Wymonald,
Say. 268.)
(«) Taken firom Eng. Stat. 15 & 16
T\Q. cap. 76 s. 69.— Applied to County
Courts. — Substantially a re-enactment
of our old rule 23 E. T. 5 Vic. which
was copied from Eng. rule 6 H.T. 4
Wm. IV. (Jervis N. R. 117.)
H) Flea Put* darrein continuanee.
This term is applied to a well-
known form of pleading, though the
reason for the name no longer exists.
By an ancient rule of practice when ad-
journments of proceedings took place
for certain purposes from one day or one
term to another, there was always an
entry made on the record expressing
tiie ground. of thaa^joumment and re-
quiring the parties to re-appear at the
given day, which entries were called
eontiniMneet. In the intervals between
guoh continuances and the day ap-
pointed, the parties were, for the
purposes of pleading, out of Court,
and consequently not in a situation
• to plead. But it sometimes happen-
ed that after a plea had been plead-
ed, and while the parties were so
out of Court in consequence of the
continuance, a new matter of defence
arose, which did not exist, and which
Ae defendant consequently had no op-
portunity to plead before the last con-
tinuance. This new defence he was
therefore entitled, at the day given for
his re-appearance, to plead as a matter
that had happened after the last conti-
nuance— ^uw darrein continuance. By
our rule 28 of E. T. 5 Vic. it was pro-
vided that no entry of continuances
fwith a single exception) should in
niture be made ; but there was a sav-
ing clause that in all cases in which a
pleajftti* darrein continuanee was then
bylaw pleadable "the same defence
may be pleaded with an allegation that
the matter arose after the last plead-
ing," &o. After the first day of E. T.
1856, no entry of continuances fwia
out exception) shall be made on in^
record or roU whatever or in the nl. J
ings: (N.R.P1.25.)butpleas/ttH'
rein continuance are preserved bv tl,
section here annotated. ^
(«) As to when such a plea i.
pleadable, see Chit. Arch. 8 Vi\^
828 ; Tidd's Prao. 9 Edn. 851 • S""
Prac. 148 ; Chit. PI. 7 Edn. Vol. 1. ess"
(v) Pleadable in banco or at Niti
Priue. Between these two there is &
distinction. The former has been held
to be pleadable by attorney and the
latter by counsel only : (see form!
Chit. PI. 7 Edn. Vol. 8, 626.) 5!
former may be filed, and delivered to
the opposite party, but the latter can
only, it seems, be delivered to the
Judge at Nisi Prius : {Pai/ne v. Shen-
stone, 4 D. & L. 896,) and both re-
quire to be verified by affidavit. If
these distinctions are still to be ob-
served, the effect of this section will
be that if the plea be pleaded before
the sittings at iW«» Prius, it must be
pleaded in banc, filed and served as
other ordinary pleadings; but if after
the commencement of the Nui Print
sittings it must be pleaded at Niti
Priue and given to the Judge. The
object of these rules of practice is to
prevent the inconvenience that might
arise if a cause were for trial in one
place and a plea filed and sened in
another : (Payne v. Shemtone, Pater-
son J. ubi mpra.) It would also seem
that the plea may be pleaded at Nm
Prius though there was time to plead
it in banco: (Prince v. Nicholion, 5
Taunt. 888. ) If pleaded at Nisi Priut
it must be before verdict ; but will be
in time though the jury have left the
bar, provided there be no actual ren-
dering of their verdict : (Bull N. P.
810; Toddy. Emly et al. 9 M. &W.
606.) Certainly it would be too late
after the discharge of the jury : (Anon,
Cro. Car. 282.) When pleaded at Nisi
Prius it should be transcribed by the
^1 PLBA8 PUIS DARREIN OOMTINUANCX. 225
Aatthe matter arose after the last pleading; (w) but no Buoh J^JJJj** ^
let shall be allowed (x) nnlesa accompanied by an affidavit (y)
««» officer on the reoord: {Myera
^Xkr, 2 C. & P. 806.} And the
IfLmt Jadge must certify it as part
ftTwco'd- {Abbot T. Suffely, 2
MflA 807 ; Towtuend r. Smtth, 1 C. &
rl60) If good in point of form and
in other respects regular, it has been
keldthat the Judge though of opinion
L the ple» is pleaded for delay only
v« no discretion to refuse it : (Corpo-
ZknofLwUow T. l^ler, 7 C. & P.
ijT ) The authority of this case since
^e C. L. P- Act is much shaken : (see
Lci) Il>® V^^^ though bad may,
!* ««emB. be amended : (Holroyd y.
L7 6 Q. B. 694; but see
BallN. P> 80^ > -V'^o'*' ▼• Hawkina,
Telr. I^IO '*' ^'^^ '^"^ ^^^^ ^^^^ ^'^^
iJndgestMtJ Prt'iM cannot reoeive
ftomplftiotiflfa replication or even a
wnfession of the plea: {Preacott v.
Zdy, 8 C. & P. 872 ; but see N. Rs.
22 md 28.) The Judge's only power
1^ been held to be to return the plea
18 psrcel of the record-: {Moore v.
UilkiM, Yelv. 180.) And it has been
beld that he had no authority to reject
gt net sside the plea, though insuffi-
cient in point of law: (Pariay. Salkeld,
2Wil8> 187 ; I^teh v. Toulmin, 1 Stark,
m Whether such would now be held
lobe the case is very donbtflil, oonsi-
derlog the otgect of pleading and the
whole scope and intention of this Act.
(w) A plea puia darrien continuance
Its in England been held to operate
IS a withdrawal of pleas in chief, so as
toentitleplaintiffto discontinue without
costs: {Wallm v. Smith, 9 A. & E.
605.,) and so as to prevent defendant
if saooessful recovering the costs of
SQch prior pleadings: (^Lyttleton v.
Luth, 4 B. & C. 117.) The prior
pleM have been held to be so far waiv-
ed by a plea puia darrein continuance
that if the latter turn out to be defec-
tire defendant cannot avail himself of
his former pleas : {Barber v. Palmer,
2L(L Rayd. 698.) The only reason
why the defendant on pleading puia
darrrin continuance must withdraw or
be held to have withdrawn his former
Sleas, is that otherwise he would plead
ouble ; and the practice with respect
to this was settled before the statute of
4 Anne cap. 16, which first allowed
double pleading : ( Wagner v. Imbrie,
per Parke B. 2 L. M. & P. 888 ; but
see N. B. PI. 28.) Defendant can only
plead one pleaj)ut« darrein continuance:
(Bull N. P. 812) and it cannot be
pleaded after a demurrer : {Homer v.
Gibbona, F. Moore, 821.) But it
would appear that if any issue re-
main to be tried, it may be pleaded,
though plaintiff has obtained a
verdict on other issues: {Wagner v.
Imbrie, ubi aupra ; see also Wright v.
Burrougha, 8 C. B. 844.) After judg-
ment by default no such plea will be
allowed : iJShaw v. Shaw, M. T. 6 Vic.
M.S. R. & H. Dig. " Puia darrein con-
tinuance," I.) An attorney cannot
proceed for his costs after this plea,
unless he establish a clear case of
ftraud : ( White v. Boulton, E. T. 2 Vic.
M.S. R. & H. Dig. « Attorney," &c.,
III. 9.) Judgment upon a plea puia
darrein continuance is peremptory:
{Beaton v. Forreat, Alleyn, 66.)
(z) Qu. Wouldit be void or irregu-
lar only if pleaded contrary to this en-
actment? The ozpression "shall be '
allowed" ' refers to some authority
vested with 'power to allow or disallow,
and implies reference to that authority
to decide. If a plea were void in its
inception a reference would be absurd.
The want of an affidavit would for this
reason appear to be an irregularity
only.
{y) Generally the affidavit states
the plea to be true in substance and
matter of fact : {Minahall v. Evana,
Patteson, J. 4 C. & P. 666; see form
thereof Chit. F. 6 Edn. 292.) If the
affidavit refer to the plea and the plea
be intitled in the cause, the affidavit
will be sufficient though not specially
intitled: {Prince et al, v. Nicholaon,
6 Taunt. 888.) It would seem to
be necessary that the affidavit if
'C
tf
4
226 THB COMMON LAW PBOOKDVBB ACT. r. •
that the matter thereof arose within eight days next before th
pleading of such plea, (») or unless the Court or a Judge (1
shall otherwise order. (6) ^"^
(App. Cb. 0.)
^^*^*l:f^fe&-'w: CXIX. (c) It shall be lawful for the Defendant (d) b
aU
"I. vf
■ I .
,i V
^•■<^?'.
made daring the iVm Priw sittings
slioald b« sworn before the presiding
Judge : (Bartlett T. Leiffhton, 8 C. &
P. 408.) As to affidayits generally
see s. xziii. note, p. 41, sub. divs. 8,
4v 7, 8, intitled " Deponent," " Sig-
nature of Deponent," « Commission-
er," and Jurat," and N. Rs. 109 et
0»q. The affiidavit may be dispensed
with if the subject matter of the plea
arose at the trial and before the Judge :
(ndd r. Umljf, 1 Dowl. N. 8. 698.)
And in ether cases also in the discre-
tion of the Court or the Judge : (Dunn
T. Lo/tiu, 8 C. B. 76 ; Warren y.Kerby,
IL T. 2 Vic. M. 8, R. & H. Dig.
« Abatement," 6; but see Powell T.
Jhtnean, 6 Dowl. P. C. 660.)
(«) If the last of the eight days fall
<m Sunday a plea on Monday would be
food : (Dudden y. Triquet, 4 M. & W.
76 ; see also N. R. 166. ) And if the
last day expire during the Niti Priut
sittings the plea ought to be deliTered
to the Judge witliin the eight days,
though the case may be low down on
the docket : ITotpntend y. l^tUth, 1 C.
ft K. 160.) But if the last of the eight
dbays fall between 1st July and 21st
August, when shall the plea be filed
and served f Between these dates, as
a general rule, no pleading can be
filed : (See N. B. 9.) In the English
Act whence ours has been taken, it is
provided that " such plea may when
necessary be pleaded at Ifiai Pritu be-
tween the tenth day of August and
twenty-first day of October." How-
ever, in Upper Canada no Court of
Niti Priut sits until long after the
vacation: (s. clii.)
(a) Court or Judge. Relative pow-
ers, see note m to s. zzxvii.
(6^ The party has a certain time
within which to plead as of right. It
is discretionary with the Court or a
Judge to allow him to plead after that
time upon proper grounds b«in»uu
for it. ButtheplaintiifhasarilhS
come and contest the defendanti »I!
sons for not proceeding aocoraiDiTto
the strict course and practice of tk.
Court, and to take tixe opinion of Z
Court or a Judge tiiereon. And C
opinion if in favor of defendant irili
as a general rule, be only upon na*
ment of eosts : {Dunn v. £o/<w, \ V
D, 7o.)
(c) Taken from Eng. Stat 16 4 ig
Vic. cap. 76 s. 7.>.-AppUedtoConntT
Courts.— SubsUntially the sane u rr
C. Stat. 7 W-.-.IV^ cap. 8 s. 13,^1,4
was copied from Eng. St. 8 & 4 Wm
IV. cap. 42 s. 21. Both our Statute
of William and the English Statute of
which it is a transcript conclude in
substance as follows— <• to pay into
Court a sum of money by way of com-
pensation or amends, in such manoer
and under such regulations as to pay-
ment of ooste and the form of pleadinc
as the said Judges or a majority of
them as aforesaid, shall by any rules
or orders by them to be from time to
time make order and direct." In Upper
Canada, pursuant to this statute, rules
17 and 18 of E. T. 6 Vic. were passed
In England B. O. of H. T. 2 Wm. iv!
Nos. 65 and 66, of H. T. 4 Wm. IV
Nos. 17, 18, 19, and T. T. 1 Vic.
{d) To entitle a sole defendant to
pay money into Court no order is ne<
cessary ; but in the case of one or
more of several defendants the law
is different : (see s. czxi.) An order
when necessary may be obtained at
any time before plea. It may le
immediately after writ issued, but tken
it must be done in such a way as not to
prejudice the plaintiff, and so as not
to deprive him of any costs to which
he would be otherwise entitled: {Ed'
wards v. Price, Patteson, J. 6 Dowl. P.
C. 489.) Though the summons b«
PATMSNT INTO OOITRT.
227
i.tfi«-]
Ktion8(«) (except (/) aotions for assnalt and battery, (^)S,ay°S^*
ygj impriflonment, (h) libel, (i) Aaadeir, malioious arrest ot^^^yj^^
(Qgeoation, criminal oonversation or debauching of the Plain- >» certain
^'8 daughter or servant), (j ) and (by leave of the Court or '"
Jadg«» (*) ^P°** ""^''^ terms as they or he may think fit), for -C**- Oi^^'Ji-^^
one or more of several Defendants, (I) to pay into Court a sum Pol^ ^9
of money by way of compensation or amends; provided that
flothing herein contained shall be taken to affect the provisions
[jfM
f
»i
nken out before declaration, the pay-
ntnt into Court must be afterwards
... jed to the deolaration : (Molson v.
SSro, 1 U. C. Cham. R. 97,)
(«) />* "^^ oe^ioi*. The present enact-
nent eloM'^7 extends to damages in
ijjjnue: (PhiUipar. Haywood, 8 Oowl.
p C. 862 ; Crottfield v. (S«c*, 8 Ex.
159) ' kcd trover : (Peacock v. NiehoUt,
SDoVl. P. C. 867), but whether or
,gt to damages or mesne profits
j|imed in ejectment is not decided.
^ defendant is not entitled to pay
money into Court in a case where tiie
pliiptiff assigns several breaches in
[is dedaration under Stat. 8 & 9 Wm.
III. eap> n> ui<l where the judgment
obUined by plaintiff is to stand as
I seoority for any Aiture breaches
of oorenant, of which the defendant
BIT be guilty : {Bithop of London
T HtNtOl, 9 Ex. 490; England v.
fttm, 1 Dowl. N. S. 898.) The St.
8 & 9 Wm. III. cap. 11 is expressly ex-
cepted out of the operation of this Act :
(see 8. cxlv. ) As to payment of money
ato Court of principal and interest on
boads, see St. 4 & 6 Anne cap. 16, b.
13, and as to which it has been held
before the C. L. P. iot that payment
into Court could not be pleaded: see
Ai^Rdf V. Watson, uhi supra.
(/) This is a general law with re-
q)eot to payment of money into Court.
In the oases excepted defendant can
only have a right to pay money into
Court if he act in some character or
under some special circumstance which
entitle him by Act of Parliament to pay
money into Court, for instance as a jus-
tice of the peace, &c. : (See ila^on v.
ftthut 15 M. & W. 888 ; Key v. Thum-
bUby, 6 Ex. 692 ; Thompton v. Shepherd,
4 El. & B. 68. ) And it has been held
since the C. L. P. Act that it is not now
any more necessary than formerly for
one party to state and the other to deny
the special character or circumstances
which give the right to pay money into
Court contrary to the usual rule of law
in tuch cases : {7%ompaon v. Shepherd,
ubi -.upra; also see note q to s. cxx.)
{g'S Assault and battery. Similar
woros in the Eng. St. of William were
held to be used only with reference to
the persons of plaintiff and his wife,
and not to that of bis son or serTant.
Plaintiff, for instance, suing for an
assault upon his son would be subject
to a plea of payment into Court:
{Newton v. Holford, 6 Q. B. 921 ; see
also Aston v. Perkes, 16 M. & W. 886.)
{h) False mpritonment. As to ma-
gistrates and others sued for something
'ione in an official capacity, see note/,
ante.
(t) Libel. An exception to this has
been created as regards libels printed
in a newspaper or periodical publica-
tion b^ Stat. 18 & 14 Tie. cap. 60, the
provisions of which have been saved by
this section. (See note m infra.)
(j) Debauching of plaintiff's daugh-
ter or servant. This particular kind of
injury having been expressly excepted
it would seem to show according to the
rule expressio unius, &c., that other
oases of injuries to members of plain-
tiff 's family are not excepted: (New-
ton V. Holford, TindalC.J. 6 Q,B. 926.)
(Jt) Court or Judge. Relative pow-
ers see note m to s. xxxvii.
{I) The paragraph in parentheses
" by leave of the Court, &o.," must be
ir ,
i
^'H l'
'f
• I
I
M : ?;
..*l,.
„ '1';. ■ t't ' ,• fpiUj;
'■iii
if? ■
• ^-n
i :• (:;■
f^-:J
^®^^^i: i
i
228
TBB COMMON LAW PBOOBDTTBB ACT.
[s. OXZ
of a oeTtain Act of the Pftrliament of this ProyiDoe, passed in
the Session of P«rliament holden in the thirteenth and fonr.
teenth years of her Majesty's reign, intituled, (m) An Act to
amend the law relating to slander and libel.
(App. Co. c) OXX. (n) When money is paid into Oourt, (o) such pay.
taken exclusively to refer to an appll-
oation by one or more of several defen-
dants to be allowed to pay money into
Coort: (sees. czzi.) Thepraotioeas
to these latter was first introdnced by
the discretionary power of the Court
It is still made subject to its discre-
tion, and may be sul^ected to terms :
iKajf T. Panefutnan, DeOrey C.J. 2 W.
n. 1029 )
(m) The Statute here referred to is
18 & 14 Vic. cap. 60, which was taken
from Eng. St. 6 & 7 Vic. cap. 96, and
so far as material is as follows, "And
be it enacted, &c., that in an action
for libel contained in any public newt-
paper or other periodical puhlieation, it
-shall be competent for defendant to
plead that such libel was inserted in
-such newspaper or other periodical
■publication, without actual malice, and
without gross negligence, and that be-
fore the commencement of the action
or at the earliest opportunity after-
wards he inserted in such newspaper or
other periodical publication a ftaU
apology for the said libel, or if the
newspaper or periodical publication in
which the said libel appeared should
be ordinarily published at intervals
exceeding one week, had offered to
publish l^e said apology in any news-
paper or periodical publication to be
selected by the plaintiff in such action ;
and that any defendant shall upon fll-
'ing such plea be at liberty to pay into
'Court a sum of money by way of amende
for the injury sustained by tiie publica-
-tion of such libel, and such payment
into court shall be of the same effect,
-and be available to the same extent and
in the name manner, and be subject to
the same rules and regulations as to
-payment of costs, and the form of
pleading, except so far as regards the
-additional facts hereinbefore required
:to be pleaded by such defendant, as if
actions for libel had not been excited
from the personal actions in which it is
lawfiil to pay money into Court under
an Act of the Parliament of Upper Ca-
nada passed in the session held in the
seventh year of the reign of his late
Majesty, intitied < An Act for the tat-
ther amendment of the law and better
advancement of justice,' (7 Wm. IV.
cap. 8 s. 18) and that to such plea and
such action it shall be competent for
the plaintiff to reply generally, deny-
ing the whole of such plea" : ( s. 8.)
This statute extends the power of pay-
ing money into Court to actions for
libel, but only to certain special oases;
and in order to make the plea good, it
must appear that the libel is one of
these special cases. The substance of
the plea is this — *' I admit that I am
wrong,but pay money into Court, vhich
I aavTs a satisfaction ;" but in order to
jusufV the defendant in doing so, he
must in his plea show that the libel was
published without actual malice and
without gross negligence. In truth it
is nothing more ^an a special plea of
payment of money into Court: {O'Brien
Y.Clement, Parke B. 8 D. & L. 676.)
And held in England that defendant
can with such a plea plead not guilty:
(lb.) Plaintiff in his replication may
aeny the whole or any part of the
plea: {Chadwick v. Herapath, 3C.B.
885.) A replication admitting the in-
sertion of tiie libel in a newspaper
named, but denying the insertion to
have taken place in actual malice or
gross negligence, and also the suffi-
ciency of l^e defendant's tender for
damages, was held to be good : (/i.)
(n) Taken from Eng. Stat. 15 & 16
Vic. cap. 76, s. 71. — Applied to Conn-
ty Courts.— Substantially a re-enact-
was copied from Eng. B. T. T. 1 Vic.
ment of our Rule 17 of E.T.5 Vic. which
(o) As to when and in what cases
,i.'l!
PLEA OF PAYMENT INTO OOUBT.
229
ment «hall be pleaded (p) in all cases as near as il.j be in the ""f^g^^-^f; ^^^^^^ }
following form, OTwto/M wiMtondw ; (gf) "The defendant, by such My. '
money may be paid into Court, see pre-
flfidini section (oxix.) and further,
S Arch. 8 Edn. 1178.
(p) As a general rule the money
should be in truth paid into court be-
fore plea, (Gover t. Mkini, 8 M. & W.
216 ; CTarW. Dam, 8 D. & L. 513 ;)
but there may be cases in which the
Court will presume that it has been
done though it has not in fact been
done* (see Rendell et al v. Malleton,
16 M. « W. 828.) The old mode of
payment into Court was by a rule to
strike the sum paid into Court out of
the declarationwhich rule it was always
necessary to produce at the trial. The
plea of payment, which being upon the
record, proves itself, is considered
a less ezpenslTe course, and is,
therefore, substituted for the old
mode: (Ketj^. Thimblebeff, QEx. 692.)
If plaintiff 's claim be composed of sev-
eral demands, to somn cf which he has
a defence and to others none, and
hewish to plead payment into Court,
his proper course is to plead to the de-
mands which he disputes separately
and then plead payment into Court as
to the residue : (see Coatet t. Stevens,
8 Dowl. P.C. 784 ; Sharman v. Steven-
ton, 8 Dowl. P. C. 709. ) The effect of
a plea of payment into Court depends
much upon the form of action in which
it is pleaded. In an action of assump-
sit on a special contract the plea ad-
mits that contract: [Seatony, Benedict,
Gaselee, J., 6 Bing. 82 ; Drake t. Le-
vtin, 4 Tyr. 730; Speck v. Phillips,
6 M. & W. 279 ; Archer t. English, 1
M. & G. 873 ; ) and the breaches of it
as alleged : ( Wright v. Goddard, 8 A.
& E. 144,) but not the amount of dam-
ages claimed by plaintiff in respect
thereof : (see Attwood t. Taylor, 1 M.
& G. 280 ; Cooper v. Blick, 2 Q. B.
916 ; see also Turner ▼. Diaper, 2 M.
& a. 241 ; Mondel T. Steele^ 8 M. & W.
868; Robinson v. Harman, 18 L. J.
Ex. 202 ; Tugman v. Kumler, 22 L. J.
C. P. 143;) but where, as in indebita-
tus assumpsit the demand is made up
of several items, the plea admits no-
thing more than that the sum paid is
due in respect of some cause of action :
(Seaton v. Benedict, ubi supra ; Bing-
ham T. Robins, 7 Dowl. P. C. 852 ;
Archer t. English, 1 M. & O. 878 ;
Goffy. Harris, 5 M. & 0. 578.) The
admission by payment into Court
in an action of tort is something ana-
lagous to the admission by payment
into Court in indebitatus assumpsit.
The effect is this — The defendant says
he will not dispute what is alleged
against him in the declaration, to the
extent of £ , leaving the plaintiff all his
rights, intra the & pleaded, and
not prejudicing himself in his defence
ultra that sum: (Story v. Finnis, 6
Ex. 126 ; Schreger v. Garden, 11 C. B.
851 ; Perrin v. Monmouthshire R. Co.,
11 C. B. 855. See also Knight v. Eger-
ion, 7 Ex. 407 ; Leyland v. Tancred,
16 Q. B. 664.) See further as to the
effect of payment into Court as an ad-
mission of the cause of action : Chit.
Arch. 8 Edn. 1190. In England de-
fendants have been refused permission
to plead with payment into Court, a plea
denying the whole cause of action alleg-
ed in the declaration : (Thompson v.
Jackson, 8 Dowl. P. C. 591 ; Dearie v.
Barrett, 2 A. & E. 88 ; O'Brien v. Cle-
ment, 15 M. & W.485. See also Thomas
V. Hawkes, 8 M. & W. 140 : but see s.
oxxxiii. of this Act.) Where in an action
on a bill of exchange for £40, defendant
paid £41 8s. into Court, it was held
that evidence of payment of part before
action brought was inadmissible:
(Adams v. Palk, 8 Q. B. 2.) If the
payment be made and pleaded in an
action when it should not be made,
plaintiff's course is to move to strike
out the plea under s. ci. of this Act.
As to the effect of inconsistent pleas
when allowed to stand, see Fischer v.
Aide, 6 Dowl. P. C. 594; Tremlow v.
Askey, lb. 597.
(q) The form given by this Act
must he adopted "as near as maybe"
in all cases. It is not necessary in the
ft" , » ^ * V"
280
pl««ded.
THE COMMON LAW PKOOIDURE AOT. [s* OZX
" (r) B. F., (») his Attorney, (f) (or in penon, &e.,) («) r{f
"pleaded to part; (v) «oy, as to £ , parcel of the money
" claimed,) (to) brings into Court the sum of £ , (jg\ {^^j
" says the said sum is enough to satisfy the claim of the Plain.
" tiff in respect of the matter herein pleaded to/' (y)
ipeoisl oaaes of justices of the peace
and particular officers entitled to pay
money into Court by different statutfes
that the character of the defendant
should be sUted in the plea. The pro-
vision that the plea shall be '* cw near
<u may be," in the form given, '^mu-
tatis mulandia," is only to authorise
such alterations as may be necessary
in order to adapt the plea to the names
of the parties, cause of action, sum
paid, and the like : {Thompaon v.
Sheppard, 4 £1. & B. 62; Atton v.
Perkea, 16 M. & W. 886 ; Love v. Steel,
16 M. & W. 880.)
(r) The plea ought of course to be
intitled of the Court and of the day of
the month and year of pleading the
same : (see s. oiii.)
It) Seenote/tos. cxvi.
\t) A plea for another by a person
not an attorney is not a nullity, but
may be set aside on motion : (see note
^ to -8. cxvi.)
f u) The plea ought to show whether
defendant pleads in person or by attor-
ney : (see note / to s. cviiL)
\v) As to the effect of a plea not
limited in its commencement to pait of
the declaration, see note A to s. cxvi.
Money may be paid into Court and
pleaded as to one or more of several
counts : (FtUwell v. Hall, 2 W.Bl. 837 ;
Hall V. Hatt India Co., 2 Burr. 1120.)
It has been held that payment made
jointly upon two breaches in covenant
is good, without showing how it is in-
tended to be applied to each: (Mar-
ihall V. Whitetide, 4 Dowl. P.C. 766.)
But where among other counts, there
was one on a bill of exchange, it was
suggested that the plea of payment into
Court should state how much of the
money was intended to be applied to
the bill : (Jourdain v. Johnson, 2 C.
M. & B. 564; Armfield v. Burgin, 8
Dowl. P. C. 247 ; Tatter tally. Parkin-
eon, 16 M. & W.762 ; also see FinUu
ton T. MeKenzie, 8 Bing. N. C 82l'
HarrU v. Buahell, 2 Dowl. N. S. 514 1
Hillt V. Meanard, 10 Q. B. 266 : Badm.
T. Sweeting, 1 D. & L. 668.) ^
(») A plaintiff may recover less than
he claims in his declaration, so the de-
fendant in his plea may allege thatlegg
is due than is claimed: (Tattmally
Parkinton, Parke B. 16 M. & W. 757 \
(x) A payment into Court of a leu
sum than that admitted by the plea to
be due would be bad : (see TattertOl
V. Parkinton, ubi tupra ; Orimtln *
Parker, $ Ex. 610.) If plaintiff be
entitled to interest on his cause of ae-
tion, defendant should pay interest
— to be reckoned to the date of pay-
ment and not merely to the date of the
commencement of the action : (Kidd t
Walker, 1 Dowl. P.C. 881.) A defen-
dant may be allowed to amend his plea
by pleading payment of a further sun
than that at first pleaded : (Dunnell v.
Toung, G. & Marsh, 466.) Where
defendant pud into Court the amount
claimed and offered to pay costs which
plaintiff declined, undertaking to pay
them himself: Held that defendant
was entitled to succeed on his plea of
payment into Court : ( Thame v. Boatt
17 L. J. Q.B. 389.)
(y) And taya that the laid turn i»
enough to aatitfg, &c. This is tanta-
mount to the old form of no damages
ultra, and is a substitution therefor.
It is the material and traversable point
in the plea. Where to an action for
goods sold, money due, &c., defendant
pleaded as to part never indebted, and
as to the residue paymenl after action
brought, naming the sum, which plain-
tiff accepted and received in satisfac-
tion of the said claim of A, " and of all
damage* accrued in respect thereof,"
but only proved that the amount so
paid was the debt sued for without
281
M6a,i.Tl
M.OZZi.OXxii.] NO BULK OB OBDEB MBOISSABT.
GXXI* ^«) ^0 i^^ <>' Judge's Order to pay money into j^n
Court jhalfbe necessaiy, to) except in the case of one or more a!i(
of sereral Defendants, X&) but the money shall be paid to the
proper Officer (c) of either Court, (<f) who shall sign a receipt order *
for the amount in the margin of the plea, (e) and the said sum"^
Xxotption.
c«)
§99
shall be paid out to the Plaintiff, (/) or to his Attorney upon
a written authority from the Plaintiff, on demand.^($r)
CXXn. (A) The Plaintiff, after the filing and service (%) o{Urp.Co. o.) <L©t* j2«^^ a^
a plea of payment of money into Court, shall be at liberty {J ) ▲.luii.ia! ^<^ «• ^l-*- %,i
MAta • held plea not proven : ( Cooke t.
SSi««.26L.T.Rep.224.)
ft) Taken from Eog. Stat. 16 ft 16
fio cap. 76 B. 72.— Applied to County
rnnrtg.'Substantially an enaotment
of Bog. B. 18 H. T. 4 Wm. IV. which
was never in force in Upper Canada.
(a) It moat be taken, as regards
the rale or order, that this act, so far
ts it declares such rale or order to be
tinneoessary, snpersedes Stat. U. 0.
2 Geo. IV. cap. 1 s. 26, and 7 Wm. IV.
csp. 8 8. 18i neither of which Acts has
been expressly repealed by this Act,
bot by both which is made a motion
necessary before paying money into
Coart.
lb) As to payment into Court by one
or more of several defendants, see
note { to s. cxiz.
(c) Proper Officer— Qu. Is it in-
tended where an action has been
commenced in the ofBce of a Deputy
ClerL of tiie Crown, that money may
be paid to such deputy as the *< proper
Officer," and as being the officer with
whom the plea is filed ?
(d) Either Court, i.e. Queen's Bench
or Common Pleas.
(«) This is new in Upper Canada.
No receipt on the margin of the plea
was required under our old practice :
(Miles V. Harwood, 1 U. C. B. 616).
The omission of the receipt may now
be held to render the plea irregular,
and eatitie the opposite party to move
to set it aside : (Hartant v. Butk, 6
Jut. 1110.)
(/) Plaintiff will be entitled to the
money whatever may be the result of
the action. If he die, then his legal
representatives only will be entitied to
it: (Palmer v. Reiffietutein, 1 M. ft O.
94). And on the other hand, money
paid into Court by a defendant who
afterwards dies, will, as against the
same plaintiff, avail defendant's execu-
tors, if sued for the same cause of ac-
tion : (Carey T. Ckoate, M. T. 6 Vic.
M.S. R. ft H. Dig., «« Payment into
Court," 2.)
(g) Plaintiff's signature to the writ-
ten authority, when produced by tiie
attorney, need not be verified on affi-
davit, unless so required by the Master;
(N. R. 11.)
(A) Taken from £ng. Stat. 16 ft 16
Vic. cap. 76 a. 73.— Applied to County
Courts. — Substantially a re-enactment
of Rula 18 £. T. 6 Vic. which was
copied from Eng. rule 19 of T. T. 1
Vic. The effect of this Miaotment is to
allow plaintiff either to take the money
paid into Court with his costs, or to
reply damages ultra. Whatever may
be the result of the cause, plaintiff will
be entitled to the amount paid into
Court, provided defendant be not a
justice of the peace or other person
entitled to special protection by sta-
tute.
(t) Filing and tervice. « Delivering"
in Eng. Stat Pleadings in England
instead of being filed and served are
merely "delivered" by one party to
the other, which delivery is of itself
sufficient : (Eng. Rule 7 M. T. 1
Wm. IV. Jervis N. R. 8, 9.)
U) Plaintiff shall be at liberty
either to accept or refuse the money
paid into Court. Defendant by plead-
ing payment into Court admits plain-
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ffintiff In *° "P^y *° *^® ''*™®» ^y accepting the sum so paid into Court
tiff's right to reooTer tome damages,
but contends that he has no right to a
sum exceeding that paid into Court and
pleaded. This of course the plaintiff
may dispute in his replication, and
thereupon proceed to trial. The
amount of damages to which a plaintiff
may be entitled is generally a question
for the decision of a jury. But there
are cases to which certain fixed rules
hsTO been applied, and by which all
analogous cases must be governed. A
re^ew of the most important of these
oases will, it is apprehended, be useflil
to tiie practitioner.
The distincUon between damages
liquidated and unliquidated or a pen-
alty seems to be the first and most na-
tural subject of consideration. It is
Tery common for parties in written
agreements to incorporate a clause
naming a certain sum to be paid as
« liquidated damages" by one party to
the other, upon the doing or not doing
of one thing orseveral things stipulated
to be done or not as specially agreed
upon. The intention of the parties to
be gathered from the instrument signed
by them, in this as in all other oases
of written agreements, muat proTail.
If the sum fixed is in respect of the
breach of one stipulation only, and the
intention of the parties is otherwise
unequiTOcal, the sum so fixed must be
taken as liquidated damages and not
as a penalty: (Oaltworthj/ y. Strutt,
1 Ex. 669; Alkjfnt y. Kinnier, 4 Ex.
776 ; FuUer t. Fenwick, 16 L. J. G. P.
79 ; OUmour t. Sail etal. 10 U. C. B.
809. ) But where the sum is in respect
of uie doing or not doing several
things of variousdegrees of importance,
and notwithstanding the language used
it is plain from the whole instrument
that the real intention is different,
in such a case inquiry must be made as
to the actual damage and loss sustained
— the sum named being in effect only a
penalty and not liquidated damages :
{Davitt y. Penton, 9 D. & B. 869;
KembU y. Farren, 6 Bing. 141 ; Boyi
y. Aneell, 6 Bing. N. C. 894; Homer
y. Flintoff, 9 M. & W. 678 ; Price y.
Green, 16 M. & W. 846; Ainilit ,
Chapman, 5 U. 0. B. 818 ; Ilender,!.
y. ^ieholU, 5 U. 0. B. 898 ; MeCnl^
Tintley, 7 U. C. B. 40; Browny T.
gart, 10 U. C. B. 188. ' ^'^
In all actions either for breach of
contract or for wrongs committed L
a general rule the actual and ultinJat!
loss or injury to the party aggrieved Z
the true measure of damages. Aod &
deduction must be made for whateTer
tends to diminish the extent of gnoh
loss or iigury. After a plea of pay
ment into Court, the right of the plain.
tiff to recover eomethmg having been
conceded, it is the duty of the presid-
ing judge upon the issue joined to
inform the jury as to the "proper
measure of damages." If he neglect
to do so the Court will grant a new
trial, although the point was not taken
by plaintiff's counsel at the trial-
{Knight y. Egerton et al. 7 Ex. 407.)
The rule of the common law is that
where a party sustains a loss by rea-
son of a breach of contract, he is, go
far as money can do it, to be placed in
the same situation with respect to
damages as if the contract had been
performed : (Robinion v. Harman
Parke, B., 1 Ex. 865.) To this rule
an exception has been created in the
case of the sale of real estate. Such a
contract is only on condition that the
vendor has a good title ; so that vhea
a party contracts to sell there is an
implied understanding that if he fall
to make a good title, the only dam-
ages recoverable shall be the expenseg
to which the vendee may be put to by
investigating the title, &o. : (Mureau
V. Thomhill, 2 W. Bl. 10.78; see also
Eumlip V. Padwick, 6 Ex. 616.) But
a person who under these circum-
stances buys real estate and without
ascertaining that he is in a situa-
tion to offer eome title, eaters into a
contract to resell, without the pover
to confer even the shadow of a title,
must be held responsible for all dam-
ages sustained by a breach of his con-
tract : (Hopkini v. Orazebrook, 6 B. &
C. 81.) So where a person contracts
^j2i{J MKA8UB1 or DAHAOIS.
. f^]] satisfaction and discharge of the oause of action in respeot
288
■ach AM*.
10
to sell haying full knowledge that he
hM no title: (Robinion v. Harmon, 1
Fx 850.) If It appear that the pur-
haser knew the state of the Tendors
title the Court, if heaty damages are
fi«en wi'l intend that ezcesslve dam-
fees have been given contrary to eti-
Henot. w>d will grant a now trial :
?B««y V. Miller, Tay. U. C. R. 461.)
And it has been held if a plaintiflF sue
defendant in covenant for breach of
title after having paid money upon ao-
cottut of the purchase, that he can re-
cover the purchase money paid and
interest ; but not damages for improve-
ments, or the increased value of the
land : (McKinnon y. Burrowt, 8 0. S.
59)0 As to the measure of damages
in an aotion by a vendor against an
auctioneer for committing an error in
the description of property sold,
trhereby plaintiff was compelled to
return a portion of the money : see
Parkw V. Farebrother, 1 N. C. L. Rep.
323. The responsibility of a defend-
ant upon the breach of an ordinary
contract must be limited to the rea-
sonable consequences of that breach :
(Black V. Baxendale et al, 1 Ex. 410.)
Where the plaintiff sent goods by de-
fendants carriers, to be delivered in
the town of B. on a Thursday, in order
to be ready for market on Saturday,
but did not give notice that they were
gent for that purpose, and on Saturday
plaintiff's clerk proceeded to B. to sell
them, but owing to their non-delivery
till the following Monday, he removed
them to another place for sale : held
in an action for the non-delivery of the
goods that the expenses so incurred
might be given by the jury as dam-
ages : (lb.) And it would seem that
if plaintiff declare for a total loss of
goods sent by carriers upon which
issue is taken, evidence shewing only
that the cask in which the goods
were packed was injured, and the
goods slightly damaged, will not sup-
port the declaration: {Hancock v.
Bethune, 8 U. G. R. 47.) In an action
by three plaintiffs for a breach of con-
tract in not completing certain works,
whereby plainUffs were prevented firom
AilfiUing a oontraot made by them with
another firm, eonaistingof two of them-
selves, pIidntiffB were held entitled to
recover as special damages the loss of
the profits on their eontraet, idthoosh
it could not be enforced at law : ( H^
t«r« et al v. 7V>tper«, 8 Ex. 401 ) It ii
a rule that no jury in an aotion fbr
breach of contract should give mere
speculative or vindictive damages;
^tartup ▼. CortaMMi, 2 C. M. & R. 166.)
Where the oontraot was to deliver a
certain quantity of linseed at a certain
time, upon which plaintiff paid a sum
of money ; but previously to the time
appointed a notice was given by de>
fendant that he was unable to eom-
plete his oontraot: held that the cor-
rect criterion was the repayment of
the money advanced, with simple in-
terest upon it and payment of the dif-
ference between the oontraot price and
the price of the linseed at the time the
cargo would have arrived in due
course according to the oontraot, and
when if it had been delivered, plaintiff
would have been enabled to sell it : {lb.)
So in a case where there was no notice
by defendant to pl^ntiff of his inability
to perform the oontraot, it waa laid
down that the measure of damages is
not merely the amount of the diffimnre
between the oontraot price and the
price at which similar goods could be
bought at tiie moment the oontraot was
broken, but a compensation for such
profit as might have been made by the
purchaser had the oontraot been duly
performed : (ZHin/op t. Higgmt, 1 H.
L. Gas. 881.) So where a defendant
contracted to build and finish an iron
vessel on or before August, 1854, but
it was not completed until Maroh,1856,
held that the true measure of damages
was what the vessel would have made
if it had been delivered by the day
named: {Ftetehtr r. Tagleur, 26 L.
T. Rep. 60.) The rule 8tth}eet to cer-
tain modifications appears to be this :
The damages due to the plaintiff in
such cases consist in general of the
loss that he has sustained, and the
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284 THE COMMON LAW PROOBDUEB ACT. [s. OXXii
of which it haa been paid in, and he shall be at liberty in tlut
profit that he hM been prevented from
aoquiring. The debtor, howerer, ie
only liaUe for the damages foreseen at
the time of the execution of the con-
tract, when it is not owing to his
fraud that the agreement has been
Tiolated. But eren in the case of the
non-performanoe of the contract,
resulting flrom the firand of the
defendant, the damages comprise
only so much of the loss sustained
by the plaintiir, and so much of
the profit which he has been prevented
from aoquiring, as direct and imme-
diate results from the non-performance
of the contract : {ffadl^ ▼. Baxen-
daU, Parke B. 9 Ex. 846.) Where the
plaintiffs, the owners of a flour mill,
sent a broken iron shaft to an office of
the defendants, who were common
carriers, to be conveyed by them from
A. to B., to be used as a pattern for a
new one ; and the defendants' clerk,
who attended the office, was told that
the mill had been stopped, that the
shaft must be delivered immediately,
and that a special entry, if necessary,
to hasten its delivery, must be made ;
and the delivery of Uie broken shaft
to the consignee, who was to monufao-
tore the new one, was delayed for an
unreasonable time ; in consequence of
which the plaintbb did not receive the
new shaft for some days after the time
they ought to have received it, and
they were consequently ucable to work
Uieir mill for want of the new shaft,
and thereby incurred a lose of profits ;
held that, under the circumstances,
such loss could not be recovered in an
action against the defendants as com-
mon eaiTiers : (lb. 841 ; See further,
Valpy V. Oakl^, 20 L. J. Q. B. 880.)
A railway company tiiat issues time
tables, and without changing them con-
tinues to circulate tiiem notwithstand-
ing an alteration in the time of the
railway, so that the time tables are in
fact false representations, is responsi-
ble both on the ground of contract and
tort to parties who purchase tickets
upon the £aith of the time tables, and
who sustain damage in consequence
of the trains not starting as odvertli^
intiie timetables: {Dmton v. Qrl
Northern R. Co., 26 L. T. Rep. 216 \
The measure of damages is the amount
actually expended in oonsequenoe of
the breach of contract, besides a luin
for nominal damages. It i% not fo» »
jury in such a case to award a sum
for mere disappointment or in ooni«.
quenoe of the non-performance of tiia
contract, unless it is the fair result
of the breach of contract. No damsM
can be recovered ordinarily in an aotioa
for breach of contract that is not oa<
pable of being stated specifioallT
proved, and appreciated: {Hamlin y
Great Northern R. Co., 28 L. T. Rep'
104. ) The case of a contract to marn
has always been considered as a lort
of exception, in which not merely the
loss of an establishment for life, but to
a certain extent an ii\}ury to a person's
feelings in respect to that particular
species of contract, may be taken
into account : (/&. per Pollock C. B.)
In an action for not erecting a house
and granting a lease of it, in satisfao-
tion of a debt, as agreed upon, the
measure of damages is the value
of the lease, not the difference batween
the value of the lease and the amount
of the debt : {Strutt v. Farlar, 16 L. J,
Ex. 88.) But where A. purchased a
lease from B., and B. covenanted to
re-purchase it at the expiration of
three years, for a greater price than
he paid: Held in an action on the
covenant, that A. was entitled to re-
cover as damages the price agreed
upon by B. for the re-purchase: (Oii.
son T. Cubitt, £. T. 2 Vic. M.S. R. Jt
H. Dig., " Covenant," II. (2) 14.) In
on action on a contract for work done,
which has not been faithfully perform-
ed according to agreement, defendant
may give this fact in evidence, and re-
strict plaintiff to the recovery only of
the value of the work done and the
materials supplied : (Chapely. Eieket,
2 C. & M. 214.) The same principles
in regard to mitig^ition apply to actions
for goods sold and delivered with war-
ranty or agreed to be supplied accord-
i.otxi>]
MEASURE Of DAMAGES.
286
c«««
to tax his costs of suit, and in case of non-payment thereof
„, to eontrtot : (Mondel r. Steel, 8 M.
IVwiS: Manmrthyi. Page, 8 Jar.
^lTarm^-Stxton,AC.Ji. 899.)
1 un the extent that defendant ob-
i?l or is capable of obtaining an
*" ,nt of price on account of work
!Lhi( improperiy done, goods not ac-
ZrLt to warranty or contract, Ac,
r» must be oonHldered as hating re-
i.«i iitisfaetion for the breach of
MtrtCt: {Mondel T. Steel, 8 M. A W.
^\ in an action for breach of
!!«iment to repair, the measure of
^MS is the difference between the
nm for which the rerersion would
.(11 if the premises were repaired, and
Ihit for which they would sell if not
Tpairni: (Smith T. Peat, 9 Ex.
161 ) So upon the same principle it
hu be«n held in an action on the case
ffpgllingdown a house in the pos-
teinoD of plaintiff, that the measure
of damages is the amount by which
the land is lessened in value owing to
the defendant's wrongful act : (Hotk-
ing T. Phillipt, 8 Ex. 168.) So in an
ictioD by rcTersioners for a serious in-
jury to their retersionary interest by
the erection of a nuisance in a public
highway, the jury are not necessarily
restricted to a verdict for nominal da-
mages but may give damages commen-
gurate to the injury which the plaintiffs
gggtain by the possible continuance of
thennisance : (Drew et al. v. Baby, 1
U. C. R- 488.) So if a defendant co-
Tenant to pay a sum of money and
make default, the question is— to what
extent is plaintiff injured by the de-
fault of defendant ? The answer would
be, in the absence of special damage,
that plaintiff is injured to the amount
that defendant ought to have paid :
{Looimore v. Radford, 1 Dowl. N. S.
881.) Where therefore plaintiff as
gnrety joined defendant in a promis-
sory note, and the defendant in consi-
deration thereof by deed covenanted
to pay plaintiff the amount of the note
on a day certain it was held in an ac-
tion on the covenant, the note not hav-
ing been paid by defendant, that the
measure of damages was the amount
of the note, though it had not been
paid by plaintiff: {lb.) But a party
suing upon a bond of indemnity cannot
recover damage beyond the amount of
the penalty fixed in the bond : (Me
Mahon V. IngertoU, H. T. 6 Vic. Jr. S.
B. k H. Dig. *• Indemnity bond," 10.)
A Sheriff suing upon a bond to the
limits need not prove that he has actu-
ally sustained pecuniary damage:
iKingemill v. Gardiner et al. 1 U. C.
I. 228.)
In actions on contract, as we have
seen, the compensation for breach of
contract is generally matter of account,
and the damages given may be demon-
strated to be right or wronr * but in
torts a greater latitude is uliowed to
the jury, and the damages must be ex-
cessite or outrageous to warrant the
interference of the Court after verdict :
i Sharp V. Briee, Do Grey, C. J. 2 W.
11. 942; see also WilliatM v. Currie,
1 C. B. 841 ; O'Connor v. Hamilton,
4 U. C. R. 248.) In the case of a
wrong, the damages are entirely with
the jury, and they are at liberty to
take into consideration the injury of the
party's feelings, and the pain he has
experienced if it was a case of violence
or assault. Many topics and many
elements of damage find place in an
action for tort or wrong of any kind,
which certainly have no place whatever
in an ordinary action of contract, where
plaintiff seeks to recover damages for
a breach of contract: (per Pollock C.B.
in Hamlin v. Oreat Northern R.Co., 28
L.T. Rep. 104.) In actions for torts the
true criterion of damage is the whole
injury which the plaintiff has sustained
from the wrongs committed: {Clark
V Newtam et al, 1 Ex. 181.) This
rule applies, though two persons be
sued for a wrongful act. The dam-
ages in such a case should not be esti-
mated with reference to the acts or
motives of either — the more guilty or
the more innocent of the two. Plain-
tiff is entitled to compensation iu pro-
portion to the whole injury which he
has received. Though the Court may
look and see what each has done and
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286 THE COMMON LAW PROOXDURl ACT. r* ^ „
I"' Will.
within forty-oight hours, to sign Judgment (Je) for hia oo«u
what i^Jurv has been laatalned from the
aota of eaoh.jet the sum of both must be
the plaintiff's rerdiot. Where there are
two persons Jointly sued who have so
oonduoted themselves as to be Jointly
liable,eaoh is responsible for the injury
sustained by their common act : (lb.)
But no plaintiff in tort more than con-
tract is entitled to unconscionable or
unreasonable damages. For instance,
where a landlord distrained for rent
amongst other goods, things not dis-
trainable, and the tenant paid the
amount of the distress and costs upon
which the distress was altogether
withdrawn, held that the tenant in an
action of trespass was entitled onlv to
recover the actual damage sustained
by the taking of those particular goods
and not the whole amount paid under
the distress : {Harvey y. Pocock et al.
11 M. & W. 740.) So if the distress
be allowed to remain upon the ground
more than five days after seizure, the
true measure of compensation is the
actual damage sustained, and not the
Talue of the property seized : (Thomp'
ton T. Murih el al. 2 0. S. 865.) So if
goods distrained for rent be sold with-
out appraisement, the measure of com-
pensation is the value of the goods less
the rent due : {Knight v. Egerton et at.
7 Ex. 407.) And although no actual
damage be sustoioed by the neglect to
appraise, yet it would seem that the
bare fact of there having been no ap-
praisement would entitle plaintiff to at
least mominal damages : {Maguire v.
Pott, 6 0. S. 1.) The iigury sustained
by a plaintiff is often made up of the
necessary consequences of the wrong
committed, and for these consequences
the party aggrieved is entitled to be
compensated or re-imbursed. Thus,
in an action for running down a ship,
it appeared that plaintiff had been
obliged, in consequence of the injury
which his vessel had sustained by the
collision, to employ a steam-tug, for
which he paid a certaim sum of
money reasonable in amount, and the
doing of which was Just what a rea-
sonable man would do under similar
oironmstances, when he had no i..j
ment to resort to but his own ii >*'
tiff was held entitled tobe re-i^burS"
{Tindall et al v. Bell et al. 11 M H=
hs.) But in such a case, a JuL!:
asking to be re-imbursed muiT'
that be acted as a reasonabl, i"'
would have done, in settlln, ,1"
amount claimed for service if i
stead of paying the amount demandlll'
he litigate, anS then after coT^
ment of action tenders a sum wiioii
insufficient, in consequence of «hi k
a verdict passes against him, h. ,?.,
not be entitled to recover the smo 1
of costs paid by him in that suit- m\
Where a sheriff sued a bailiff foru,:'
ligence, in allowing a prisoner toe«!
cape, in consequence of which th«
sheriff was sued by the creditor tZ
a verdict recovered against him for
nominal damages, it was considered
that the sheriff was entitled to reoowr
both the costs of the action aeaimt
himself and his own costs, althouBh no
notice of the former action had been
given to the bailiff by the eheriff.
{Rultan V. Shea, 6 U. C. R. 210.) But
no plaintiff entitled to recover damaeei
either for a contract broken or an in.
Jury suffered, has a right to inflame
his account against defendant by in.
curring additional expense in the un-
righteous resistance of an action which
he could not Lope to defend: {Short
V. Kallerway, Denman C.J. 11 A. & E.
81.) Upon this point see the followintr
cases : Neale v. Wgllie, 8 B. & C. 633 •
Pennall v. Woodbum, 7 C. & P. 117 1
Lewis V. Peake, 7 Taunt. 158. Also
Smith V. Compton, 3 B. & Ad. 407-
Holloway v. Turner et al. 6 Q. B. 928'
Lock V. Athton, 18 L. J. Q. B. 76.
In trespass for cutting plaintiff's land
and carrying awny the soil, it has been
held that the measure of damages is
compensation for damage actually sus-
tai.ed, and not the amount which
would be required to restore the land
to its original condition : {Jonei v.
Gooday, 1 Dowl. N. S. 50.) But in
trespass for entering plaintiff's mine
and taking coal, it has been held that
^1 MlABURl or DAMA0I8. 287
mitioUxed; (0 ^^ '^® Plaintiff may reply thai the sum paid into
. Mtuure of damagM is the talue
7th« cotkJ, without cMucUflg the ox-
fffi Halt, 1 Dowl. N. 8. 876.)
kfM »od •iioll*!' o»M> ihould not ba
zL\t»i M authorltr without refer-
Jf, tTi. lx»^' 0' *^" Act, which on-
!bl«i pltinti^' in one action, by the
ild«r of le^eral causes of action, to
at for direct and consequential da-
L^ei. But before this act, eren in
lJj^, it has been held that a Jury
ol2bt take consequential damages into
MDsideraUon. Thus, where defend-
lati drore against plaintiff's chaise,
the eoDMquenoe of which was that a
tenon, who sat in the chaise, fell upon
IhedMliiDg board, the effect of which
yii to throw the dashing board upon
till bsok of the horse, and the horse
loeoDMquence Itioked and injured the
chiiM to the extent of £18 : Held
tbit this sum was properly reooTerable
I) the measure of damages: (Oilbert-
iwiT. JJieAardion, 6 C. B. 502.) In
troTef) on a bond or other written in-
itrament for the security of money,
natllsted by defendant, it would seem
thit plaintiff is entitled to recover as
dimiges the amount that he might
hare reoorered on the instrument had
it not been mutilated : {Bank of Upper
Canada v. Widmer, 2 0. S. 222 ; Mc
Ltod T. MeOhie, 2 M. & G. 826.)
And Id this form of action, if brought
for the reoovery of a chattel, where
gpecial damage is laid and proved,
there can be no reason for measuring
the damages solely by the value of the
ehittel converted : {Bodley v. Reynolds,
Denman C. J. 8 Q. B. 779.) Thus in
troTcr for carpenters's tools, special
damage was laid, proved, and reoo-
Tered in respect of plaintiff, a carpen-
ter, being hindered from worliing :
[lb.) As to the effect of a plea of
payment into court, as an admission
either of the cause of action or amount
of damages claimed, see note p to s.
oxz.
It is still necessary to allege special
damage in the declaration where not
formerly recoverable without such al-
legation : (See 8ch. B No. 28 of thia
Act.) The law of danages will b«
foun() ably treatt'<l at length in a recent
Engliuu work by John 0. Mayne, and
also in an American TreatiM by Pro-
fcror Bedgwlcke.
(k) Where plaintiff's attorney, by
mittake, accepted money paid into
court,and signedjndgment for costs, tha
Judgment upon application of plaintiff
and upon payment of costs, was set
aside, and plaintiff permitted to pro-
ceed with his action : {Emery v. Web-
tter, Ex. 242.)
(i) The quantum of costs to be al-
lowed plaintiff will depend upon the
form of issue raised hy tha plea of
Cayment into court. That plea may
e either in respect of the whole cause
of action, or only of a part selected,
and, OS it were, isolated by defendant.
If the plea be to the whole declaration,
plaintiff is undoubtedly entitled to
take out of court the amount so
pleaded, and to tax his costs of suit,
which ends the cause. But if defend-
ant has filed several pleas, of which
the plea of payment into court applies
only to part of the declaration, and
the remaining picas to the residue,
the plaintiff by accepting the money
so paid into court is only entitled to
the costs of the cause in respect to
that part of the declaration to which
payment is pleaded: {Rumbellow y.
Whalley, 16 Q. B. 897 ; also N. B. 12 :)
and must either reply or enter a nolle
protequi as to the residue. If he elect
to go to trial, and fail on the residue
defendant will be entitled to the costs
of the cause in respect of such defence,
commencing at ''Instructions for
plea," but not before: (N.R. 12.) And
if plaintiff in such a case neglect
either to enter a nolle protequi or to
proceed to trial, defendant will have
the right, upon proper demand, to sign
Judgment of non. prot. : (See Emmett
V. Standen, 6 Dowl. P. C. 691 ; Topham
V. Kidmore, 5 Dowl. P. C. 676 ; Godee
V. Goldsmith, 5 Dowl.P.C. 288 ; Coatea
V. Stevens, 8 Dowl. W. C. 784.)
238
THE COMMON LAW PROCEDURE ACT.
[8- cxxui.
T'^i:
SSSi!"**' Court is not enough (m) to satisfy the claim of the Plaintiff-
respect of the tnatter to which the plea is pleaded, (n) and '
K^iff not the event of an issue thereon being found for the Defenda t"
the Defendant shall be entitled to Judgment and his costs f
I suit, (o)
' e^ stta $^^^' «»• ^•) CXXIII. (p) And because certain causes of action may be
ti.c. &u sb t ^''fgj^^y^' considered to partake of the character both of breaches of nn
%/^3 ' ' "■
4
(m) Plaintiff, if he afterwards
change his mind, may apply to amend
his replication by accepting the money
paid into court, upon paying de-
fendant all costs incurred by him sub-
sequently to the payment into court :
(Kelly V. Flint, 6 Dowl. P. C. 293.)
(n) This is in lieu of the old form
of replication, that the defendant
** was and is indebted to plaintiff in
a greater sum" than that paid into
court: Bqq Faithful y. Achley, 9 Dowl.
P. C. 655.
(o) Defendant in this case, it is ap-
prehended, would be entitled to his
costs of suit, and not merely those in-
curred since payment into Court ac-
cording to the old practice : the costs
to be in respect of the whole or a por-
tion (as the case may be) of the plain-
tiff's cause of action so far as covered
by the plea of payment : see Harri-
»on V. Watt, 16 M. & W. 816 ; Thame
V. Boast, 12 Q. B. 808 ; Rumbelow v.
Whalley, 16 Q. B. 897. This rule
as to costs will apply, if plaintiff
be non-suited : (Shillibeer y. Longwoodf
16 L. T. Rep. 143 ;) or if defendant
be allowed to sign judgment under s.
cli. upon a suggestion that plaintiff
neglects to proceed to trial : (see Mc-
Lean V. Phillips, 7 C. B. 817.) And
if part of the demand be paid after
action brought and the remainder paid
into Caurt and pleaded, defendant will
be entitled to the general costs of the
cause : {Homer y. Denhatn, 12 Q.
B. 813.) But where plaintiff having
after plea obtained leave to amend his
declaration on payment of costs by in-
creasing the amount of damages, and
defendant having after amendment
paid money into Court by which one of
his pleas became unavailable hold
that he was not entitled to the costs If
such plea: {Oould y. Oliver, 6 Bin!
N. C. 115 ) The Phraseoloi of 2
section, though apparently contem.
plating payment pleaded to the whol,.
declaration is clearly like thatof theold
rules : (see ante note A), the policy of
which was to make each party pay costs
in respect of that part of the case in
which he was wrong: (per Alderson
B., case in Chambers reported in not.
atop. 620of4D.&L.; see also 5
rfee y. Ooldtmith, 6 Dowl. P.O. 288-
Amor y. Cuthbert et al, 1 Dowl. N. s'
160 ; and cases cited in note I, ante ]
Where therefore to debt for goods sold
money lent, &c., defendant pleaded
except as to 15s. parcel, &c., never in-
debted, and as to the sum of 15s. pay.
ment into Court, and plaintiff joined
issue on the former plea, and accepted
the 15s. paid into Court and the issue
was afterwards found for the de-
fendant, it was held that plaintiff was
entitled to all the costs relating to the
15s. paid into Court: (Ilanmn y.
Watt, ubi supra ; see further N. r!
12.) Where in an action of covenant the
declaration contained several breaches
and £10 were paid into Court, on one
breach, leaving the others to be tried,
upon which plaintiff recovered Is. da-
mages, plaintiff was held entitled to
costs, notwithstanding the Judge certi-
fied under Stat. 43 Eliz. cap. 6 s. 2,
" that the jury in this case found a
verdict for Is. damages and no more :"
{Richards y. Bluck, 6 C. B. 443.)
{p) Taken fi-om Eng. Stat. 15 & 16
Vic. cap. 76 s. 74.— Applied to County
Courts.
PLEADING TO COMTRAOTS AMD TORTS.
289
g,cx»"-]
tnctand of wrongs, and doubts (j) may arise as to the form of g« w«f,
1 as in such actions, and it is expedient to preclude such |"^ " ■!-
I v,ts- (r) any plea \rhich shall be good in substance shall of oontnct
t be objectionable on the ground of its treating the declaration or vice — -
ther as framed for a breach of contract or for a wrong. («)
vena.
any
la) It is unneoessory to enumerAte
V such 88 the enactment itself is
Soiently explanatory; but it may
[.mentioned that in the early case of
Kfr. Xay^on <2 N. R. 866 ) th;
noestion arose and it was held that
2, a count apparently in case but sub-
stantiftlly in contract a plea in abate-
ment for non-joinder (which can only
^pleaded in an action on contract)
"!j»ood: see also ^Mdrfie V. Willson,
% g, 369. A similar plea has been
held to be inadmissible in an action
u„\y founded upon a tort : {Mitchell
J Tarbutt, 6 T. R. 649 ; see also Go-
f((t r. Radnidge et al 8 East. 62 ;
Elvtll T. Or and Junction R. Co., 6
)I ji W. 669.) Where in case against
I common carrier for not safely convey-
ing goods according to undertaking,
towbich defendant pleaded not guilty,
held that the plea admitted the goods
to hare been received as alleged, but
denied negligence in the performance
of the duty resulting ftrom the contract:
(Webby. Page, 6 M. & G. 196.) Though
this section relieves defendants from
the embarrassment of deciding whether
a declaration is framed on breach of
contract or for a wrong, yet it leaves
open to doubt the effect of pleas on
contract when pleaded to declar-
ations sounding of tort or vice
vena, ex. gr. non astumpait to an
action on the case or not guilty in
an action of aisumpait. As to the effect
of these and similar pleas in general,
see N. Rs. PI. 6 et acq. and in connec-
tion therewith the following cases: —
Paitenger v. Brookes, 1 Bing. N. C.
687; Hemming T. Parry, 6 C. & P.
680; Smith v. Paraona, 8 C. & P.
199; Spencer v. Damon, 1 M. & B.
652.)
(r) The mode in which the doubts
here mentioned are precluded is a ne-
cessary consequence of s. c, which
enacts '* that no pleading shall be
deemed insufficient which could here-
tofore have been objected to on special
demurrer only," for a plea though held
bad before this Act, for example, non
aiaumpait in case was considered open
to objection upon special demurrer
only : (Daviaon v. Moreton, 1 Chit. B.
716 ; Jeremy v. Farrant, 1 Dowl. P.C.
458; Beyney. , 1 Chit. R. 716;
see also Smith v Jones, 3 D. & R.621.)
And it has already been enacted by
this Act that either party can only ob-
ject by demurrer to the pleading of the
opposite party, on the ground " that
such pleading does not set forth suffi-
cient ground of action, defence, or
reply, &c. : (s. zciz. ; see farther s.
cxl.)
(a) It may be necessary to draw at-
tention to the ftict that this section only
declares that a plea good in substance
shall not be objectionable merely be-
cause it treats a declaration as framed
for a breach of contract which is in
fact for a wrong or vice veraa, but does
not render unobjectionable pleas in aa-
aumpait to any form of action in which
such pleas have heretofore been held
or declared to be bad, such, for ex-
ample, as non aaaumpait to an action
on a bill or note, &o.: (see N.Rs. P1.6,
et sfiq. ; also Kelly v. Villeboia, 3 Jur.
1172 ; Maason v. Hill et al, 5 U. C. R.
60 ; Sewell v. Dale, 8 Dowl. P.C. 809 ;
Eddiaon v. Peagram, 4 D. & L. 277 ;
Boaafieldx. Edge, 1 Ex. 89; Harvey y.
Hamilton, 18 L. J. Ex. 877.) It is
presumed that pleas pleaded in contra-
vention of established practice, may be
set aside upon application under s. oi.
of this Act.
240
THE COMMON LAW PBOOEBITRE ACT. [g q^>
CXXIV. (0 Pleas of payment (u) and set-off, (y) and all
^^o<y
-ij
f^ 4',dl
MH m
(t) Taken f^om Eng. Stat. 16 & 16
■^c. cap. 76, 8. 76.— Applied to County
Courts.
(u) A plea of payment is only ne-
cessary when there has been a debt
incurred. No debt can be said to have
been incurred where there has been no
credit. Thus, where a man makes a
purchase and eo instanti pays for the
article and takes it and gives the money
for it there is no debt — it is an ex-
change of money for goods and there
is no occasion to plead payment, for
the man was never indebted. The same
principle applies to all transactions
that fairly come under the same ar-
rangement, whether a man goes to an
inn to eat his dinner, and pays for it
immediately, or whether he goes to
remain there for more than one meal,
or even for a day or several days,
where it is never intended that there
should be any credit given, except for
the moment as it were, while the goods
are being handed over to be paid for :
iWood et ux V. Bletcher, 27 Law T.
,ep.l26. See also Bmaey v. Bamett, 9
M. & W. 812 ; and Littlechildy. Banks,
7 Q. B. 739. ) It has been held in debt
on simple contract that where defend-
ant pleads payment of a certain sum
of money he must prove payment of
that sum*, ^even though it be laid un- <
der a videlicet) in order to entitle him
to a verdict on the whole plea; but
that the plea may be taken distribu-
tively and the issue found for defend-
ant as to the amount proved to have
been paid, and as to the residue for
plaintiff: (Cotmnt v. Paddon, 2 C. M.
& R. 646.) Therefore, where in debt
for goods sold and delivered, and work
and labor done, the defendant pleaded
'rtt, nunquam indebitatua; »econdlt/,6,B
to parcel of the sum demanded, to wit,
£838, payment of £888 in discharge
of that parcel ; thirdly, a set-off for
money paid : the plaintiff proved a
special contract for good sound sale-
able bricks, to be made for him by the
defendant, at a certain price per thou-
sand, and delivery of so many as
amounted at that rate to £896 ; the
defendant proved payment of £814
and a set-off for £21, and proved tlu
that the bricks were badly made and
the jury found the value of those deli
vered to be not more than £885 • the
Court directed the verdict to be e'ntei^
ed on the plea of payment as to £zu
for the defendant, as to the residue for
the plaintiff; on the plea of set-off aa
to £21 for the defendant, as to the re.
sidue for the plaintiff; on the plea of
nunquam indebitatus as to the whole
sum demanded, except £835, for the
defendant; so as to give the defendant
judgment on the whole record : (/4,)
(v) The statutes ofset-off are 2 Geo
II. cap. 22 s. 18 and 8 Geo. II. cap. 24
ss. 4-5. It has been held that if de>
fendant plead to the whole cause of
action set forth in the doolaration
a set-off of a sum of money, but do
not prove that the amount so plead-
ed is equal to or greater than the ag.
gregate amount of plaintiff's claim
there must be a verdict on that plea
for the plaintiff: (^Moore v. Butlin, 7
A. & E. 697.) It IS an advantage to a
defendant to be allowed to plead gene-
rally that a greater sum is due to him
that the amount of the plaintiff's de-
mand ; but then defendant has no right
to take an unfair advantage of plain-
tiff by pleading to the whole, and thus
taking the chance of proving as much
as he can, and claim to be allowed a
verdict for as much as he has proved,
when he has not proved any set-off
equal to that which he has pleaded
or to the debt which the plaintiff has
established. The general rule must
apply, that if a party plead a special
Slea and fail in proving any part of it,
e fails in proving the whole quoad Ha
issue raised: (Tucky. Thick, Abinger
CB. 6 M. & W. 108.) But defendant
cannot as a general rule for this
purpose take into account a de-
fence which arose after the com-
mencement of the suit. The language
of the plea of set off is to be under-
stood as applying to the state of the
account between the plaintiff and the
defendant at the time of the commenct-
umT
1
i.«xxiT.]
DKSTBIBUTiyX T^J^AOINOS.
241
n.
o^^^^P (***) «»P*We of being oonstraed ^wtributively^tfaM^^...
j^ |)e Uken disiribatively, (x) and if issue is taken ihereon oiirMirattT*
Mtd BO maoh thereof as shall be a sufficient answer to part of omrtnua
mtnt of the action. The defendant by
tiai pica aUeges that the plaintiff was
Tthe time the acUon brought in-
debted to bim in an amount equal to
or freater tiian that in which he was
hdebted to plaintiff, and that such
debt is Btill owing to him, defendant:
(StrtdUry r. Qillam^ Parke B. 2 L.
j{ & P. 867. ) The plea has been held
to be 80 far dirisible that if de-
fenduit by means of it taken with
other pleas on the record, cover the
vM* of pli^tiff '8 demand, he will
1)6 entitled on that plea to have a ver-
diotentered in his favor for the amount
{Tucky.Tuck, Vvt'ka'B.ubi
\ma\ see also .Fbrtf t. Beeeh^ 11
aB.842; NiehoUa y. Tiu^, 1 N. C.
I. Bep. 682.) But in this ; as in the
oaie of a single plea to the whole de-
eltrsUon if the amount proved be less
tiitB the, amount of claim established
by pliintiff, the issue must be found
forpisintiff: (Tuekr. Tuekf ubitupra;
aee slw Joiner t. BaUey, 6 M. & W.
882; Orem r. Marah^ 6 Dowl. P. G.
669.) The case of JStcky. Tuck is not
BoeorreoUy reported in 7 Dowl. P.C.
878 u in 6 M. & W. 108. It in effect
decides that pldntiff cannot have a
Terdict on a plea of set-off unless the
pies ooTsr plaintiff's demand as it
Btood originally, or aa reduced by some
other plea, but is no authority for de-
prinng a defendant of the setoff in
rtiwtm of damageB. Therefore it
hss been since hdd that a set pff,
if pleaded and proved, though it do
not cover the whole of plaintiff's
oUim, may previdl in reduction of da-
Diges: {Bodfftny. Jfaw, 16 M. & W.
(w) And aU other pUadingt. This
euMtment seems to embrace all forms
of sotions and all forms of pleading
in any particular action— demurrers
inoladed. Demurrers have been held
divisible long before this Act: {Binde
V. Qfitjft 1 M. & G. 201 note a;
Q
also Briacot y. BtU, 10 M. & W. 786 ;
Tata V. Tearle, 8 Jur. 774.) Whether
there be a demurrer upon the record
or not, the Courts have laid down the
rule that judgment must be given upon
the whole record according to the
truth. And that where several breaches
are assigned in a declaration to the
whole of which there is a demurrer,
if an^ breach is well asiagned, the
plaintiff is entitled to judgment as to
that breach: (Slade v. Hawley, 18 M.
& W. 969.)
(z) Before the C. Ji. P. Acts where
there was a plea justifying under an
aUeged right of way wiUi horses, carts,
and carriages, for the purpose of fetch-
ing water and goodt from a navigable
river, and the jury negatived the right
as to the carrying of goods but affirm-
ed it as to the carrying water, tiie
Court directed the verdict to be entered
distributively ; (Kn^ht y. Woort, 6
Dpwl. P. C. 201.) And where in
trespass for brealung and entering
three closes, defendant pleaded that
the doses in which, &o., were the soil
and freehold of one L. T., to which
plaintiff replied alleging seisin in four
other parties who demised to pluntiff,
whose seisin the defendant in his re-
joinder traversed, and at the trial
plaintiff proved a case only as to two
of the doses, but offered no evidence
as to the third, it was held that the
issue was distributable, and that plain-
tiff was entiUed to a verdict as to the
two doses and defendant as to the
third : (Phythian v. White et al. 1 M.
& W.21o ; see also Sharlandy.Loaringt
1 Ex. 876 ; Vwian v. Jenkin, 8 A. ft
£.741 ; Boutledge v.. Abbott et al. 8 A.
& £. 692.) On a plea of liberum tene-
mentum to an action of trespass quare
elauewr, /regit, the defendant isentitied
to a veirdict if he prove a title to that
part of the close in .which the trespass
was committed, and is not bound to
prove title to the whole close; {Smith
4:v
242
THE COMMON LAW PBOOIDUBB ACT.
[i. oxxir.
grtjjutiT*. ^e oauses of aotion proyed, shall be found true by the Jurv
▼erdiot nhall paai for the Defendant in respect of bo much f
the causes of action as shall be answered, and for the Plaintiir
in respect of so much of the causes of aotion as shall not be
If on Mi«ff answered ; (y) and if upon a plea of set-off the Jury shall find
larger sum proved to be due from the Plaintiff to the Defeadant
DetnuUnt
Itrora mora
T. Boytton, 8 M. & W. 881.) So as to
a plea of leaye and license to that ac-
tion: (BractgirMey, Peacock, 16 L. J.
Q. B. 88 ; Adanu T. Andrew; 20 L.J.
Q. B. 88.) Where a declaration was
for breaking and entering a dose gen-
erallj and palling down certain posts
and bars standing tiiereon, to which
defendant pleaded that there was a
fooiway oyer the close, and that de-
fendant, because the posts and bars
obstracted the way, palled them down:
repUoation traTening the footway :
Httd that on these pleadings defmdant
was entitled to a Tordict on proof of a
right of way in arijf direetion oyer the
dose : ( Webber t. Sparkea et al. 10 M .
& W. 485.) But whore in case for
distarbing the plaintiftV right of feny
firom Oreenwich to the Isle of Dogs
and back again, to which defendant
Sileaded, firtt, not possessed of the
tarry, teeondljfi that there was no such
ferry : and plaintiff at the trial proved
only half of what he olaiMed, t. «., the
right yVvffl but not to the Isle of Dogs,
it was held that the right alleged was
dirisible, and that plaintiffs were en-
titled to hare the verdict entered for
as much as they proTod: (6i*i7e« et aL
▼. Orovet, 12 Q. B. 721 ; but see
Sigham T. Rabbet, 7 Dowl. P. C. 668.)
So where to an action for applying
water to other purposes tiian Uiose of
an enj^ne defnidant pleaded a pre-
Bcriptire right to use the water for the
pnrooses of a boiler and cistern. De-
fendant proved his right as to the boil-
er but not as to the cistern. Held that
the Tordict should be entered distriba-
tiyely : {Proprietore of Rochdale Canal
Co. V. Radneiffe, 21 L. J. Q. B. 297.)
So in trover for certain goods describ-
ed in which plidntiff saoceeded only as
to part of the goods claimed, it was
held that defendant, who had pic '.^a
amongst other pleas a plea denvin.
pla ntir 8 property in the good;^*
entiUed to have the verdict ento2
distributiTOly: (William y. the Ov
R. Co. 8 M. & W. 866; see also »L
lioU V. Bishop, 10 Ex. 622.) The samt
principle has been appUed to actiow
for Ubel charging scTeral offeno«L
each of which might be separateW m.
tlfled: (Clarke y. Taylor, 2img i q
664 ; Mountnejf y. Watton, 2 B. ft Ai
678; McGregor y. Qregory, 11 M &
W. 287.) So in an aotion en sereral
bills or notes to which there is a plea
that they and each of them were and
was procured by fraud : ( Wood t. Pm,
ton, 2 D. & L. 172 ; see also Lowahy
Smith,2 D.& L.212.) Ithasbeen clearly
held that where a plea is so far tliitri.
butive that part otit is an answer to
the declaranon, and the remaining part
unnecessary to be proved, that proof
of the former part is of itself snffi.
oient to entitle defendant to a verdict:
(AtkiMon V. Wame, 1 G. M. ft R
827.)
(y) This section seems to apply oilv
to pleas that answer the aotion by con-
fession and avoidance, not to pleas in
denial : {Wilkinton v. Kirhy, Maule, J.
28 L. J. G. P. 222 ; 26 L. & Eq. 875.)
It in effect extends the doctrine of
Couaine v. Paddon and Tuck v. Tuck,
(notes u and v, ante) to all descriptions
of pleadings : {Parr v. JweU, 16
C. B. 684, 82 L. & £q. 405; see also
Oabriel et al. y. Dream , Jervis C.J,
16 C. B. 622.) It does not say that
the principle of pleading is to be alter-
ed, according to which it is held that
a plea which is bad in part is bad alto-
gether {Crump y. Adney, 1 G. ft M.
862 ; Clarkton y. Lamon, 6 Bbg. 266 ;
ibuMi V. ScarfCf 4 Scott, N. B. 718),
MOOK OT TBAVSBSINa BT DITENDANT
243
g.oxxr]
Aia ii proved to be due from the Defendant to the Plaintiff, ^^^^^ ^
verdiot shall pass for the Defendant for the balance remain- **>»o to him.
w due to him, («) and the Defendant shall have Judgment
to recover such balance and his costs of suit, (a)
CXXV. (i) A Defendant may either traverse generally fluch^j,^^^ <^*^ ^^ Z^-
of the focts contained in the declaration as might have been^-"*^"-^*'- '^ /^'^'
denied by one plea, (c) or may select and traverse separately fiMu'aUeged
{QV material allegation in the declaration, (d) although it might uon.
ihe record is still to be taken-as a whole
Mcord and the meaning of the section
^thaiwhen at the trial the faett of a
mean be taken dittributively, they are
1 bt to taken: {WUkinton t. Kirby,
JerTi8,C.J.,ti6j»«pra)
It) The same in principle as Stat. U.
cilOeo. IV. cap. 5,8. 1..
(a) The right of a defendant to costs
iiUieral depends npon. Stat. 28 Hen.
Till cap< 1^ (extended by 4 Jao. I.
cap. 3, and see St. U.C. 2 Geo. IV. cap.
1 II 88,) which Statute as construed
jjj Beveral oases applies, although a
defendant cannot have a verdict in his
jiToron every part of the record : {El-
itrton T. Emment, 6 D. & L. 699.) As
to tpportionment of costs on deyeral
igsnes, see s. cxxx. of this Act and
lb) Taken from Eng. Stat. 15 & 16
Tie. cap. 76 s. 76. — ^Applied to County
Courts.
(e) Snch was the practice at common
Itir. One plea only was allowed to be
pleaded and that plea true : (Oully r.
thiBiehop of Exeter, Best C.J. 5 Bing.
45.) In most of the usual actions
there is a fixed and appropriate plea for
trarertdng the declaration, in cases
where the defendant means to deny its
Thole allegations or the principal fact
on Tbich it is founded. The form of
plea or traverse has usually been deuo-
minated tin general issue in that action.
It appears to have been so called be-
csaee tiie issue that it tenders, involv-
ing the whole declaration or the prin-
cipal part of it, is of a more general
indcomprehensiTe kind than that usu-
ally tendered by a simple traverse.
But as by the provision of recent rules
of Court (H. T. 4 Wm. IV. correspond-
ing to ours of E. T. 5 Vic. of which N.
Bs. PI. 6 et aeq. are re-enactments,)
such issues are now more limited in
their effect than formerly, and the
term of " general issue " is therefore
less appropriate: (see N. Bs. 6 et »eq.
and notes uereto, also Soh. B. No. 80
et uq. to this Act.) To review the
cases diiitingnishing what defences
may be given in evidence under
the general issue and what must
be specially pleaded, would de-
mand a treatise on pleading. Be-
ference may be here made to a Digest
of the decisions compiled by Bichard
Charnock of Oray's Inn, London ; see
also Blackie v. Piddiny, 6 C. B. 196 ;
Chamley v. Orundy, 2 N. G. L. Bep.
822. If the general issue and special
pleas be pleaded by defendant and if it
should appear to the Judge in Chambers
that a question might arise at Nisi
Priusasto the admissibility as evidence
of the matter specially pleaded under
the general issue, the special pleas may
be iSlowed to stand : (Lumley v. Gyc,
22 L. J. Ex. 9 ; 14 L. & £q. 442.)
(d) The general rule of law un-
doubtedly is that a party shall not be
allowed to take his traverse in such a
form as to make matter which is im-
material, parcel cf the issue: (Col-
borne V. Stockdale, Stra. 493; Doctrina
Placitandi, 360; Goram v. Sweeting^
2 Wms. Saunders 204 a.) But in cer-
tain cases in which material and im-
material matters are mixed up in one
combined and undivided allegation, the
opposite party has been held entitied
to traverse the whole compound alle-
gation in the terras in which it is
§5'
I :
Ml r!7!*J-
■ >■
ii r ■ I'" i
' ) ;
If. i|-4'
I'i" '
244 THE COMMON LAW PBOOEDUAX ACT.
haye been included in a general traverse, (e)
[■• CXXy.
made: {Tatemy. Ptrient, Yelr. 195;
Seaker ease Ih/er, 866 ; Smith y. Dix-
on, 7 A. & E. 1 ; CutU V. Surridge,
11 .Tur. 586 ; King v. Norman, 4 C.B.
884.) No traverse should be so large
as to octnpel the opposite party to
prove more than he otherwise would
be bound to do in order to support his
claim or defence : {Eden ▼. Turtle, 10
M. & W. 686 ; Bradley v. Bardaley, 14
M. & W. 878 ; Soaret y. Qlyn, 8 Q. B.
24.) The rules as to traverses are in
general terms thus mentioned in Steph.
n. 241 et aeq. 1. The traverse must
not be taken on an immaterial point.
2. It must not be too large, nor, on the
other hand, too narrow. Numerous
authorities are referred to by the
learned author in support of these
rules. The obligation to apply for
leave to plead double or else judgment
applies as much to traverses as to
affirmative pleadings: (Rotaey. Cum-
mings, Chambers, Oct. 4, 1856, Bums,
J.) But there are certain pleas of
which any two or more of them may
be pleaded together as of course, with-
out leave of the Court or a Judge :
(see s. cxxxiii.) In Upper Canada
before the rules of 1842, the Court
though in many cases acknowledging
the right to set side pleas either double
or inconsistent with each other, reAued
to do 80 merely because they amounted
to the general issue, which was al«o
pleaded. As to the effect of subse-
quent rules see note to s. czxx.
(«) In order that a defendant may
not be put in a worse situation than
when the general issue in its widest
acceptation of the term was permitted,
provision has been made for the allow-
ance of several special pleas separately
traversingmaterialallegationsformerly
traversed by one general plea. Instead
iOf one plea only as at common law be-
ing allowed, it is not an uncommon
'thing now to find several upon the
record. The strictness has been relaxed
for the promotion but not for the per-
version of justice : [Cooling y. Great
Northern Railway Co. Campbell C. J.
15 Q.B. 496.) the concluding part of
the section under consideration do*
not apply to the pleading of set*
eral matters, as to which generX
see B. ozzz. and notes thereto n
express power to traverse sMciaJI
an allegation contained in the decll
ration, although it might have beet
included in a general traverse, is new
and such as has been heretofore re!
ftised : (Sutherland v. Pratt, ParltB n
11M.&W.812.) Thetrueprincii
of pleadmg several matters is, that if
the justice of the case require it the
Court will not prevent it ; but it win
not allow a party so to plead, mere].
for the purpose of throwing difiBculUes
in the way of his opponent: {Oullyy
Bishop of Exeter, Gaselee, J.,6bL'
48. ) The object of pleading is to nari
row the matter in dispute to a sinilc
point. Therefore a defendant is not
permitted to traverse a series of facts
wholly immaterial to his defence-
{lb. 45.) In criminal cases thelawsal-
lows a prisoner to put the prosecutor
upon proving his case in every mateN
rial particular ; but in civil proceedJDM
the interest of both parties requires
that they should be put to as little «.
jpenee as poiaihle. It is an important
duty of the Court, in the exercise of
its discretion as to pleas, to render
justice as cheap and as expeditious as
possible : lib. 46 ; see also London k
Brighton R. Co. y. Wilson, 6 Bing.N.C,
185; London ^ Brighton R. Co.'y.
Fairelough, lb. 270 ; South Eattm R.
Co. y. Hebblewhite, 12 A. & E. 497,)
If a defendant under colour of this
section abuse the powers conferred
as to traversing separately material
allegations of plaintiff's declaration,
not admissible under s. cxxxiii., tie
course of the latter is (if no leave haye
been granted to trav!?rse sepwately
under s. cxxx. the Sdver-l matters,) to
sign jttigment under s. cxxxt. ; but
if leave have been given, then plaintiff
must apply to the Court or a Judge
under the provisions of s. ci. of this
Act. Where since this Act, in an
action of Crim. Con., defendant
an
applied under s. cxxx. to be tl-
exxvi.]
MODI OF TBAYSBBINO BT PLAINTIFF.
245
CXXVI. (/) -A. plaintiff shall be at liberty to traverse the(^w»-^<*;^^)cj.
whole of any plea or subsequent pleading of the Defendant by ^^^^^^^^ • ^
general denial, (g) or admitting some part or parts (h) there- p»«««-
i„,edtople8cl,-l8t, Not guilty; 2d,
w the person whom defendant de-
athedwas not plaintiff > wife; 8d,
iA,6 and license of plamtiff; 4th,
Sit before and at the time of the
lAmmitting of the grievances oom-
niSned of, plaintiff had relinquished
Jnd renounced the society, comfort*
Md assistance of his wife, and had
Moarated himself from and was Uving
Mart from her, and had never since
Mturned to her. Bums J. disallowed
L second plea as being included in
the first and therefore •• unnecessary,"
^ bIso disallowed the fourth, as af-
foriingno answer to the declaration,
jnd therefore " bad in substance" :
mam V. Buiiy, Chambers, Oct. 14,
1856, Bums, J.)
(/) Taken from Eng. Stat. 16 & 16
Vic. cap. 76, s. 77.— Applied to Coun-
ty Courts.
in) The general form of replicauon
intended by Uiis and s. oxxviii. is in the
nature of the replication de injuria, and
jg indeed a substitute for it: {Glover
T. Diton tt al, 24 L. & Eq. 490.) And
Tith respect to the replication de in-
juria, it was a settled rule that
it pat in issue only the material
sUegaiions of the plea: (Davie t.
Chapman, Tindal, C. J., 2 M. & G.
927 ; ElkinY. Janeon, 18 M. & W.826 ;
hotter v. Bettea et al, 5 U. C. R. 699 ;)
and was only pleaded when the plea
contained matter of confession or of
excuse: {Cragates Caee, 8 Bep. 67
a; Whittaker y. Maeon, 2 Bing. N. C.
359 ; Iiaac t. Farrar, 1 M. & W. 65 ;
Parker V. Riley, 8 M. & W. 280 ; ffum-
phretfif. ffConnell, 7 M. & W. 870;
Solly y. Neiih, 4 Dowl.P.C.248 ; Jonee
V. Senior, 4 M. & W.128 ; Noelf. Rich,
4Dowl. P. C. 228; Salter y. Purchall,
1 Q.B.209 ; Scott v. Chappelow, 2 Dowl.
N. 8. 78; Thompson y. Breakenridge
tt al, 8 U. C. O.S. 170 ; Blair y. Bruce,
6 0. S. 624 ; Leonard y. Buchanan, M.
T. 6 Vic. MS. R. & H. Dig. "1?« In-
juria," 4 ; Davidson y. BarlUtt etalfl
U.C.R.60; Hamiltony. Davis et al, lb.
176 ; Vanorman v. Leonard, 2 U. C. R.
72 ; Rattray y. McDonald, 8 U. G. R.
864 ; Bown y. Jlawke, 6 U. C. R. 668 ;
McCuniffe y. Allan etal, lb. 671 ; Mae-
farlane y. Knar, et al, lb. 680 ; Bos-
well y. Ruttan, 6 U. C. R. 199 . Mnt-
tleberry et al y. Hornby, 6 U. C. R. 61 ;
Brooksy.McCausland, 76.104; Richard-
ton y. Phippen, 9 U.C.R.266 ; Parks y.
Mayby,2 U. C. C. P. 267; Coleman y.
Sherwood, 8 U. C. C. P. 859 ; Walker et
ql y. Hawke, lb. 428.) Where the plea
contained matter of denial and not of
excuse, plaintiff's only course if not
otherwise able to put in issue by one
general replication, the whole subject
matter of the defence was to take issue
separately, on independent and mate-
rial allegations : {Regil y. Green, 1 M.
& W. 828.) This section does not dis-
pense with the necessity for replying
specially where that was necessary be-
fore the act : ( Glover y. Dixon et al,
24 L. & Eq. 490 9. Ex. 108.) De inju-
ria has been held to be a good replica-
tion to a general or special plea of
ftraud : ( Washboum y. Burrows, 1 £z.
107.)
(A) It is an established rule of
pleading that by pleading over, every
traversable allegation which is not tra-
versed is admitted : (Hudson y. Jones,
1 Salk 90.) But allegations not ma-
terial are not thereby confessed : (Rea
V. Bishop of Cheater, 2 Salk. 560.) In
a late case which underwent much dis-
cussion in the House of Lords, it was
held that the rule as to admissions
upon the record applied only to cases
in which there was an express admis-
Aon upon the record, or a pleading in
confession and avoidance : (Givynney.
Burwell, 6 Bing. N. C. 453.) And that
a replication which put in issue part
only of a plea, thereby admitted the
residue to be true, and that if such
residue were true and a good defence,
a repleader might be awarded at the
inataace of defendant : (see AtMnson v.
;3
*... /•
%
I
ii'
246 TBI COMMON LAW PROOEDUBB ACT. [s.^ZXTiii
of, to deny (%) all the rest or deny any one or more alW
tions. (j)
ita*OL.? CXXVII. (k) A defendant shall be at liberty in th« m
AjMs^fcTs! manner (if) to deny the whole or part of a replication or sub.
tioiu, Ac. seqnent, pleading of the Plaintiff.
tf'm. siai . frv i^fP- «»• «■) CXXVIII. (m) Either party may plead in answer to the
/t ^ . (sA a T. Jffgj^ ^^l] plea or subsequent pleading of his advenary, that he joins isgne
^ /r"*-
ugQe
Joining !■• thereon, which joinder of issue may be as follows, or to the like
■""• effect : (n) « The Plaintiff joins issue (o) on the Defendant's
" first (&c. specifying which or whatparC) (p) plea." « ji
SJStrai"''" Defendant joins issue upon the Plaintiff's replication to the
**• "first (&o. tpecifying which) plea," (j) and such form of
joinder of issue shall be deemed to be a denial of the substance
of the plea or other subsequent pleading, and an issue there-
on ; (r) and in all oases where the Plaintiff's pleading Ig ;.
Daviet, 2 Dowl. N. S. 778 ; see also
B. & H. Dig. "Arrest of Judgment,"
patsim and ** Repleader." Some-
times an express admission is made of
certain facts contained in a pleading
with a denial of other facts upon which
issue is taken : see Camaby y. Wdby,
8 A. & E. 872 ; Hewitt t. Maeguire, 21
L. J., Ex. 80; Tuchey v. Hawkint, 4
C. B. 666.
(t) As to materiality of denial, see
note d to s. czxy. and B. & H. Dig.
"Pleading," TUi.
{)) This is applying to plaintiffs, in
their replications the sules already en-
acted as to defendants in their pleas :
(s. czxT.) It has never been doubted
that a plaintiff who is at liberty to
deny several facts stated in a plea
might select some only and traverse
them: {Oazten v. Robinton, Wight-
man, J., 2 Dowl. N. 8. 47.)
(k) Taken from Eng. Stat. 16 & 16
Vie. cap. 7^, s. 78— Applied to County
Courts.
the
■i.}l:
eMsJrl^ <iecrviM4Pi In like manner, &c.— i. e. In
^r 7> ^imanner prescribed in ss. cxxv., cxzvi.
<< (<n>(;m)^r^(V«)<»^jljg„jj4^g j^ 4ljggg sections apply
T-Cf^^ ^7- •<!'**^y *® ^^* ** " unnecessary here
I- -tV ^^Aui-tfio do more than refer to them.
^ jT V, ■ ' '*^(»») Taken ftom Eng. Stat 16 & 16
/^ cribs f-
Vic. cap. 76 s. 79— AppUod to County
Courts. '
(n) Compliance with s. ciii. as to the
intitling of the pleading is necessary
(see note m to Uiat section. ) '
(o) '* Takes itsue" are thewordsused
in Schedule B., No. 48. It ig gg.
gested that in practice the plaini
tiff "joins issue" upon u negatWe
plea, and " takes issue" upon an affir-
mative one. When he joins issue it ig
unnecessary to add any farther plead-
ing on the part of the defendant, the
issue being then completed. But if
plaintiff " takes issue," it seems tliat
he ought to add a titniliter for defend-
ant. This he may do as part of tlie
issue and may at once proceed : (Pa-
terson, Macnamara, & Marshal's Prac
202.)
(p) Plaintiff may traverse anyone
or more allegations of defendant's
plea: (s. cxzvi.)
(g) So defendant may traverse any
material part of plaintiff 's replication :
(s. cxxvii.)
(r) The object of this new form is
merely to enable a party in a compen- '
dious manner to traverse all those
allegations in a pleading which he could
have traversed before the Act : {Glo-
i#^' m \ I
joLXDiB or ISIUI.
iai of the pleading of the Defendant or some part of it, the
v]aiaiiS loay *^^ * joinder of iasue for the Defendant («)
an
^ , Vixon et a, Pollock C. B. 9 Ex.
ifiOl Thenewform only traTersoB such
iierial facts as could formerly be tra-
.hS but where the pWntllT was
S'to new assign, he must stiU do
Z^db. per Parke B.) Per example,
,7 in trespM" quare elauntm /regit dt-
fendsnt having an easement which he
nieidf but which in use he exceeded,
?» ie for plaintiff to new assign : (Col-
M^r RoherU, 4 M. & W. t69.)
SoMial proTision is by this Act made
foVnewaasignments: (s. oxxxyi.) But
toMtum to the texL It is enacted
Aat the new form of joinder of issue
" rhall be deemed to be a denial of the
.mlsunoe of the plea or other subse-
aaentple»ding and an issue thereon."
And it is * rule ihat no new matter
foreign to the issue joined shall be ad-
jnissible in etidenoe. Such facts
tiwrefore as would go to duprove the
oleaor other pleading upon which issue
fg joined would be proper eTidenoe.
Kew matter, if not disproving anything
adranced in the plea, must be specially
pleaded: {Sayre r. Roeh/ord, 2 W. Bl.
1168; ThompiOHf. Hardinffe, 1 C. B.
940- Ever ▼. Jonet, 9 Q. B. 628;
Rvdnr. Clarke, 19 L. J. Q. B. 262;
Evm ,. OgUm, 2 Y. & J. 79; Cow-
ling T. Higgiruon, 2 M. & W. 246;
P^n T. Ward, 2 C. M. & R. 888;
Oaket T. Wood, 2 M. & W. 791 ; Com-
thauv. Cheilyn, IC. & J. 48; WyUmd
T. Pickfori, 8 M. & W. 448 ; Baker y.
talker, 8 D. & L. 46 ; May ▼. Seylor,
2 Ex. 668 ; Palhurtt ▼. NoUey, 17 L.
J. Q. B. 97 ; Weeding ▼. Aldrieh, 9 A.
&E. 861 ; Jonea v. Jonee, 4 D. & L.
494 ; Robertton T. OantUtt, 4 D. &
L 648 ; Eyre ▼. Scovell, 6 D. & L. 616 ;
Potedl T. Bradbury, 7 C. B. 201 ;
Spottwood y. Burrow, 19 L. J. Ex.
226.)
(() The power of one party to join
issae for the other appears to be re-
stricted to plaintiffs. It is usual for
plaintiff to add the joinder, make up
the issue, and deliver it with notice of
trial, all at the same time. But de-
fendant is not coaeludyelj bound by
these acta ofplaintiffL He na^ lenr*
upon pli^Uff a notice that ** he does
not receiye the issue deUycred in this
cause, but considers th« tame as a re-
Slioatlon." Thereupon it is open fbr
efendant either to plead or demur in
the usual manner. The Bnf^h prao-
tice limits defendant fbr this purpose
to four days: MdMu t. .^lubrton,
1 Dowl. N. 8. 877) and onr practice is
now similar (N. R. 88.) If defendant
neither plead nor demor within the
time limited, plaintiff's oonrse is to
sign judgment for want of a plea :
( Twyerou y. JTuur* 6 Q.B. 668.) A de-
murrer that is fnyolous entitles plafai-
tiff to moye to set it adds and to enter
judgment : {TcMot y. JBuUUUy, 4 D. ft
L. 806. ) But where there are pleas on
the record other than that demurred to»
judgment so rigned wonld appear to be
irregular: (76.) The nue in sueh
case should be to set adde the w«im^
trial, and subsequent proceedings:
(76. ) And where in oonseqnence of a
firiyolous demurrer plaintiff was pre-
vented Arom going to trial, the Court
notwithstanding the existence of sev-
eral issues msde a rule absolute fbr
plainUff to sign judgment as for want
of a plea unless defendant should con-
sent to the follovring terms, vis. **that
the pleadings ending in the demurrer
be struck out, the defendant paying
the costs of Uie appUoation, and of
preparing for a triu which had beoi
los^ within four days after application,
and taking short notice of tnal for tiie
sittings after term" : f 7VcA<r t. Bar-
neeley, 4 D. & L. 292.) But it has
been held that if a defendant at
any stage of a cause strike out
the joinder and demur, and that
demurrer is not ati tuide aafrivotoutf it
renders nugatory a notice of trial pre-
viously given. Nothing that plaintiff
could atterwards do would render such
notice gooi : (Poole y. Pom e( ol, Erie,
J. 2 L. M. & r. 618 ; see also Lock r.
Wau B. Co., 14 Law T. Bep. 416.)
i"i
^r,-
o3
•f"
,» .
Hi
I «?
c
24B
TBI OOMMOir LAW PAOOIDUBI AOT.
[■.OQix,
t . »,'
I '
**>vSl«l
u. o . -^Jr- iS AS OXXIX. (0 Either party may, by leave of the Court or i
. ^ A.AMa,s. 80. Judge, (i«) plead and demur to the same pleading at the sant*
^/oo
I \'.
PiMding time, (v) upon an affidavit by auoh party or hiii Attorney if
ri^tt'tbT required by the Court or a Judge, to the effect that he is ad.
"^ """^ vised and believes that he has just ground to traverse the seven)
matters proposed to be traversed by him, and that the sevend
matters sought to be pleaded as aforesaid by way of confearion
and avoidance, are respectively true in substance and in fact
(to) and that he is further advised and believes that theobjeo.
Affl<l*Ttt
auuad.
(0 Taken from Eng. Stat. 16 & 16
Vio. oap. 76, s. 80.— Applied to Coun-
ty Courts. — Founded upon 1st Bept
0. L. Com'n, s. 49.
(u) See note m to ZRvii.
(v) The power of pleading and de-
murring is placed under the control of
the Court in order that it may '* not
be resorted to for delay." The appli-
cation is discretionary and may be
made to the Court or a Judge in Cham-
bers. If to the latter and he decline
to grant it, the Court aboTO will not
ffenerally interfere with his decision :
Trhompton ▼. Knowlet, 18 Jur. 1018 ;
28 L. & Eq. 497.) And if defendant
without leave "plead and demur to the
same pleading at the same time," it
would seem that plaintiff may treat the
whole as a nullity and sign judgment:
{Bajfley t. Baker, 1 Dowl. N. S. 891.)
(w) The privilege given by this en-
actment is only to be allowed where a
man shows by his own affidavit that he
has merits in fact as well as in law :
(Lumleyj.Gye, 18 Jur.466; 14 L.&Eq.
444. ) Qu. Is it necessary for defendant
to swear that the allegations proposed
to be traversed, when he intends to
travtrte, are untrue T {lb.) Or is not
such an affidavit only necessary when
defendant proposes to plead in confes-
sion and avoidance 7 (Price v. Hewitt,
Alderion B G Ex. 146.) The Court
will QOi be satisfied with an affidavit
following the words of the statute ('< he
is advis^ and believed," &o.) where
the matters are within the personal
knowledge of the party pleading :
ILumley v. Oye, Parke B. u&t aupra.)
In such a case the affidavit must be
positive ; but in other cases expression
of belief in the words of the atttnta
will be sufficient: llh.) If a third
person be vouched by defei.aant, it
should be shown by him eitLor rhat Ii«
has made inquirv of that pe/son or
that it would be impossible cr inconTo. i
nient so to do : (/6.) In an action on
a contract the Court allowed defendant
both to plead and demur to the deola*
ration, though the validity of tiiecon*
tract sued upon had been affirmed on
a motion for an injunction in the Conrt
of Chancery, to which the defendant
was a party, and in the decision of
which Court he hau acquiesced .- (Ih,\
So to a declaration allejpng that the
defendant requested the plaintiff to
lend Mm a sUm of money, and falsely
fraudulently, and deceitfully n^f^
sented to the plaintiff that the defen-
dant had attained the age of twenty*
one years, and that the plaintiff confid-
ing in the truth of the said representa-
tion and pretence, did lond the defen-
dant a sum of money, &c.; whereas
the defendant had not at the time of
his making the said representation and
pretence, attained the age of twenty-
one, but was an infant under that age,
as the defendant at the time of his
making the said representation well
knew, and that the defendant refused
to pay the said loan, &c., whereby the
plaintiff was damaged, &c. : {Price t.
Hewitt, 8 Ex. 146.) Defendant ob-
tained leave to demur and to plead,
first, not guilty, and secondly, a tra-
verse that plaintiff confided in the al-
leged fraudulent representation upon
an affidavit of the defendant's attorney,
I wbSoh ft Jodga'i otdM to
[ftnliftd WTMM niftttflna
raooordlttiito |^« Oonaoll-"'
\ip0'^ZMMMU>'^9 OonaoU^IUIl^ABnfO AT 8AMI TIBII.
"JrLit OniuKk (^- ^1 9Mi.
lrl«*» <>«>•'• " • <»?y **'«'°«'' *" *°°^ "^ ^^'^ objections in
'"[luched t© tho nijJ prfi« le-j diaoretion of the Court or a
"\-!r book, or HhAll be copied on ,. , „ . ,. j « ^ x
ll^f wd|a ottM of noii4mnt>lI.*U be first disposed of. (y)
l'U»<i Clerlu or iJeputy Clerks
["dpi pMS *^« record, nor shall
lingiiod. <<
Wir. B- IJBAFER, C.J.
I^H. D. RIO^BDB, C. J., C F
I J BH H. HAQARTY, J^, Q.B.
249
>V?
b06.aMOBRIBON,J.,Q.E
l^lillfWIUON, J.,O.P.
jWnflON.J.G.P.
» «»«•%• *«« W%tWM««U*V*
and
nn-
, Just,
lola-
ain-
lent
also
ara-
eon
demurrer: {16.)
ix) As to whioh see ss.— o. and ei.—
of this Act and notes thereto.
(y) The meaning of this prorision is
tb»t it Bhsll be in the discretion of the
Ccurt in whioh the cause is entered to
direct which issue shall be first dis-
postd of in that Court. Therefore
Irhere there were issues in law and in
fsot in a case, and the former were
decided in favor of the plaintiff, the
Court in whioh the decision took place
refused to delay the issues in fact un-
til the issues in law were finally din-
posed of in a Court of Error, where
defendant contemplated bringing the
esse: {Lumlejf y. Oye, 2 El. & B. 216,
20L. & £q. 168.) The direction as
to the trial of the issues will of course
slvnys be made with reference to the
ooDTenienoe of the parties. It is often
Bdvisable to determine a demurrer
first, for if it goes to the whole cause
of action and is determined against
the plaintiff, it is conclusive and there
is no occasion afterwards to try the
issue in fact ; whereas if the issue in
fact is first tried and found for the
plaintiff, he must still proceed to the
determination of the demurrer, and if
that be determined against him, he
will not be allowed his costs on the
trial of the issue in fact : (William's
Saunders, II. 800(8); Prieev. Hewitt,
8 Ex. 148; CruckneU v. Trueman, 9
M. & W. 684.) But if it appear that
the decision of the demurrer will not
have any bearing on the issues in fact
the Court may have good reason for
directing that the issue in law shall
not be tried before the issue in fact :
IRoberte t. Taylor, 7 M. & 0. 669.)
If the issues are to be tried before the
demurrer is argued, the damages are
silid to be contingent, depending upon
the event of the demurrer, and it is
necessary for the jury to assess con-
tingent damages. The award of venire
in such a case is as well to try the
issue as to inquios of the contingent
damases: (William's Saunders, II.
800(8.) It has been held that where
the venire was in this form, but the
jury without assessing contingentdam-
ages on the issue in law, found a gen-
eral verdict for the defendant upon all
the issues in fact, that the plaintiff was
not entitled to a venire de novo : ( Ore-
gory V. Duke of Brunivnek et al, 6 M.
& Q. 958.) And where leave had been
S ranted to a defendant to plead, and
emur and directions were given that
the demurrer should be first disposed
of, and the parties thereupon proceed-
ed to issue and judgment was given for
plaintiff on a demurrer to a surrc"
joinder, on the ground that the plea
was bad, the Court afterwards declin-
ed at plaintiff's instance, to rescind
the judges order, giving to defendant
leave both to plead and demur : (Shee-
hy V. Profetsional Aeeuranee Co., 18
C. B. 787 ; see also Hinton v. Acra-
man, 4 B. & L. 462.) Tending the
decision of issues in law the Courts
have reftised judgment as in case of a
non*suit for not proceeding to trial
pursuant to notice on issues in fact ;
(Connop et al v. Levy, 6 D. & L. 282.)
But in a case where defendant had
pleaded several pleas to some of
which plaintiff demurred and to others
joined issue, and the demurrers were
argued and judgment given for defend-
ant : but plaintiff not having proceeded
to trial upon the issues in fact, defend-
ant obtained a rule nisi for judgment
as in case of nonsuit, and on showing
cause tiie plaintiff offered a atet procet-
246
TBI OOMMOIC LAW
f^ %ua. ijtw Utv-Of. 0.) OXXIX. (0 Either party
%/g,q A.,i»a.»' w- Judge, (w) plead and demur i
piMding time, (y) upon an a£Bdavit by
rinf •t'ttir required by the Oourt or a Jv
"^ ^^"^ vised and believes that he has j
Blatters proposed to be travel
matters sought to be pleaded ^
Affl'i«Ttt and avoidance, are respectivell
tnn be n- ' » w
qufawL (w) and that he is further adt
(0 Taken Arom Eng. Stat. 16 A; 16
Yio. oap. 76, 1. 80.— Applied to Coan-
tv Courts. — Founded upon 1st Rept.
0. L. Com'rs, s. 49.
(u) See note m to zzzt!!.
(v) The power of pleading and de-
murring is placed under the control of
the Court in order that it may " not
be resorted to for delay." The appli-
cation is discretionary and mav be
made to the Court or a Judge in Cham-
bers. If to the latter and he decline
to grant it, the Court above will not
senerally interfere with his decision :
[Thompton v. KnowUt, 18 Jur. 1018 ;
28 L. & Eq. 497.) And if defendant
without leave "plead and demur to the
same pleading at the same time," it
would seem that plaintiff may treat the
whole as a nullity and sign judgment:
(Bayleif v. Baker, 1 Dowl. N. S. 891.)
(w) The privilege given by this en-
actment is only to be allowed where a
man shows by his own affidavit that he
has merits in fact as well as in law :
iLumUyy.Gye, 18 Jur.466; 14 L.&Eq.
44.) Qu. Is it necessary for defendant
to swear that the allegations proposed
to be traversed, when he intends to
traverte, are untrue? {lb.) Or is not
inch an affidavit only necessary when
defendant proposes to plead in confes-
sion and avoidance ? (Price v. ffewitt,
Alderion B. 8 Ex. 146.) The Court
will not be satisfied with an affidavit
following the words of the statute ( " he
is advis^ and believed," &c.) where
the matters are within the personal
knowledge of the party pleading :
(Lumley v. Oye, Parke B. ubi supra.)
In such a case the affidavit mast be
;■" '^
positive ; but in other a^mmmI
of belief in the words of the itatnt*
will be sufficient: (lb.) If a third
person be vouched by defendant it
should be shown by him either that h«
has made inquirv of that person or
that it would be impossible or incoDT^
nientsotodo: (lb.) In an action on
a contract the Court allowed defendant
both to plead and demur to the deola-
ration, though the validity of the con-
tract sued upon had been affirmed on
a motion for an injunction in the Conrt
of Chancery, to which the defendant
was a party, and in the decision of
which Court he had acquiesced ; (l(,\
So to a declaration alleging that the
defendant requested the plaintiff to
lend Mm a sum of money, and falsely
fraudulently, and deceitfully repre^
sented to the plaintiff that the defen-
dant had attained the age of twenty-
one years, and that the plaintiff confid-
ing in the truth of the said representa-
tion and pretence, did lend the defen-
dant a sum of money, &c.; whereas
the defendant had not at the time of
his making the said representation and
pretence, attained the age of twenty-
one, but was an infant under that age,
as the defendant at the time of hia
making the said representation well
knew, and that the defendant refused
to pay the said loan, &o., whereby the
plaintiff was damaged, &c. : (Price y.
Hewitt, 8 Ex. 146.) Defendant ob-
tained leave to demur and to plead,
first, not guilty, and secondly, a tra-
verse that plaintiff confided in the al-
leged fraudulent representation upon
an affidavit of the defendant's attorney,
f exzix.] PLEADINO AMD DIMURBIMO AT lAMI TIBII.
tionfl niaed by raoh demarror are good and valid objeotioDB in
u^ (2) and it shall be in the disoretion of the Court or a
jadge to direct which iasuo shall be first disposed of. (y)
tbieb stoted that be was adrised and
litUered that the defendant had un-
jtr the oiroumatanoes aforesaid Just
ironnd to plead not guiltj to the decia-
^OD, ana also a traferse that plain-
Hff confided in the alleged fraudulent
Mreientation, and that he was also
idfiaed and believed that the deolara-
Hon would be held bad in substance on
demorrer: (/A.)
(2) As to which see bs.->-c. and ei.—
of this Act and notes thereto.
(y) The meaning of this proTision is
tbit it shall be in the disoretion of Ike
Court it which the cause is entered to
direoi which issue shall be first dis-
poied of in that Court. Therefore
wbere there were issues in law and in
fiotin a case, and the former were
decided in favor of the plaintiff, the
Coart in which the decision took place
refused to delay the issuea in fact un-
til tbe issues in law were finally dis-
posed of in a Court of Error, where
defendant contemplated bringing tbe
cue: {Lumlei/ t. Gye, 2 El. & B. 216,
20L. & £q. 168.) The direction aa
to the trial of the issues will of course
ilways be made with reference to the
eoDTcnience of the parties. It is often
idriaable to determine a demurrer
first, for if it goes to the whole cause
of action and is determined against
the plaintiff, it is conclusive and there
is no occasion afterwards to try the
issue in fact ; whereas if the issue in
fact is first tried and found for the
Jlsintiff, he must still proceed to the
etermination of the demurrer, and if
that be determined against him, he
will not be allowed his costs on the
trial of the issue in fact : (William's
Saunders, II. 300(3); Price v. Hewitt,
8 Ex. 148; CruckneU y. Truman, 9
M. & W. 684.) But if it appear that
the decision of the demurrer will not
have any bearing on the issues in fact
the Court may have good reason for
directing that the issue in law shall
not be tried before the issue in fact :
IRoberti T. Taylor, 7 M. & 0. 669.)
If the issues are to be tried before the
demurrer is argued, the damages are
atid to be contingent, depending upon
the event of the demurrer, and it is
necessarr for the jury to assess con-
tingent damages. The award of venire
in such a case is as well to try the
issue as to inquire of the contingent
damages: (William's Saunders, II.
800 (8.) It has been held that wbere
the venire was in this fbrm, but the
Jury without assessing contingent dam-
ages on the issue in law, fou'id a gen-
eral verdict for the defendant upon all
the issues in fact, that the plaintiff was
not entitled to a venire de novo : ( Ore-
gory t. Duke of Brunewiek et al, 6 M.
& Q. 968.) And where leave had been
J ranted to a defendant to plead, and
emur and directions were given that
the demurrer should be first disposed
of, and the parties thereupon proceed-
ed to issue and Judgment was given for
Jtlaintiff on a demurrer to a surrC'-
oinder, on tbe ground that the plea
was bad, the Court afterwards declin-
ed at plaintiff's instance, to rescind
the judges order, giving to defendant
leave both to plead and demur : {Shee-
hy V. Pro/eeeional Aeeuranee Co., 18
C. B. 787 ; see also Hinton t. Acra-
man, 4 D. & L. 462.) Fending the
decision of issues in law the Courts
have refliBed Judgment as in case of a
non-suit fbr not proceeding to trial
pursuant to notice on issues in fact :
(Connop et al v. Levy, 6 D. & L. 282.)
But in a case where defendant had
pleaded several pleas to some of
which plaintiff demiirred and to others
joined issue, and the demurrers were
ar(,>t«:ci and judgment given for defend-
ant: but plaintiff not having proceeded
to trial upon the issues in fact, defend-
ant obtained a rule nisi for Judgment
as in case of nonsuit, and on showing
cause tiie plaintiff offered a etet proees-
'f
mmLJ
Ii >
250
etn\. stoi fr^(App. a. a)
THE COMMON LAW PBOOEDUSE ACT.
^i
///?
[fl. cxxx.
CXXX. («) The Plaintiff in any action (a) may, by leave of
tut ; at the suggestion of the Court a
nolle proiequi was ehtered to so much
of the declaration as applied to the is-
sues in fact, the defendant waiving his
right to costs upon such nolle prosequi :
(Quarrinffton ▼. Arthur, 2 Dowl. N.S.
1086.) Semble that a itet proeetiui
cannot be entered to a part of a record :
(/6.) As to apportionment of costs if'
plainUff succeed upon issues in fact
but fail upon issues in law or vice
versa : see Bird t. Higginson, 6 A. &
E. 83 ; Clarke ▼. Allatt, 4 C. B. 886 ;
Partridge r. Gardiner, 4 Ex. 803 ; Ho-
lOtU T. Radford, 4 Ex. 809 ; Williams
V. Vines, 9 Jur. 809; Poole v. Oran-
iham, 2D. & L. 622 ; Davis y. Davit,
6 O. 8. 458 ; Sheldon ▼. Hamilton, M.
S. M. T. 8 Vic. B. & H. Dig. «Cobts"
III. 8 ; Bank B. N. A. ▼. Ainley, 7
U. C. R. 621. See also N. B. 61 and
proyiso to s. oxxx. of this Act.
{z) Taken from Eng. Stat. 15 & 16
Vic. cap. 76 s. 81 — Applied to County
Courts. — Founded upon 1st Rep. C.L.
Gomrs. s. 69. The provisions of the
statute of Anne, which enable a defend-
ant by leave of the Court to plead sev-
eral matters are by this secticn exten-
ded to plaintiffs, who may in like man-
ner in answer to the plea or subsequent
pleading of a defendant reply several
matters. The statute of Anne is as
follows — «Thatfirom and after, &o., it
shall and may be lawful for any defen-
dant or tenant in any action or suit or
for any plaintiff in replevin, in any
Court of record, with the leave of the
tame Court, to plead as many several
matters thereto as he shall think ne-
cessary for his defence." (4 Anne cap.
16, 8. 4.) The practice which for
some time prevailed under this Act,
required limitation, and was in
England restrained by the rules
following, excepting the words in ital-
ics, " Several counts shall not be al-
lowed {in taxation of costs) unless a
distinct subject matter of complaint is
intended to be established in respect of
each, nor shall several pleas or avow-
ries or cognisances be allowed unless a
distinct ground of answer or defence is
intended to be established in resnent^*
each" {Reg. Gen. 5 H. T. 4 Wm IV
Jervis N. R. 116.) And " Pleas, &o
founded on one and the same prinoipij
matter, but varied in statement, de-
scription, or circumstances only (and
pleas in bar in replevin are within the
rule) are not to be allowed:" (same
rule, Jervis N. R. 118.) If geye^j
counts, pleas, &c., were pleaded con-
lation of these rules, a Judge had ex'
press power upon application to strike
out at the costs of the party pleadinr
all pleadings in violation of the rnlea •
{Reg. Gen. 6 H. T. 4 Wm. IV. Jervii
N. R. 120.) Similar rules were adopted
by the Courts in Upper Canada. Qor
rule 82 of B. T. 6 Vic. (Cam. R. 88)
was precisely the same as Eng. Rules
above mentioned, excepting that our
Court introduced the words in italics
*<in taxation of costs" mentioned
above. It was in consequence of these
words held that oar rules did not pro-
hibit the use of several counts mder
any other penalty than the/««« ofcoits
upon them, and this was in effeot to
permit the use of several connts with-
out leave. But as to several pleas it
was held that if " founded on one and
the same principal matter bat varied
in statement, &o., should not be allow-
ed:" {Johnson v. Hunter, 1 U. C. R.
280^ It was also held that although
in Upper Canada there was no mle
like the English rule 6, authorising a
Judge to strike out pleas filed in viola-
tion of Eng. mle 5, yet that our Judges
had the power as to pleas filed in clear
violation of our rule 82: (lb.) Oar
rules of E. T. 5 Vic. will remain in
force until Easter Term, 1867, vhen
the new rules of pleading of T. T. 20
Vic. will take effect. (N.R. PI. 2.)
(a) This section applies to dower in
the same manner as to any other form
of action : {Street v. Dobson, Sept. 28,
1866, Bums J. 2 ¥. C. L. J. 208.) A
proceeding by andita querela was held
to be an *' action or suit" within the
meaning of the statute of Anne : {Oilts
V. Hutt et at. 6 D. & L. 887) but an
information of intrusion at the suit of
ii ^;i
' ■ ii'
PLEADINQ SEVERAL MATTERS.
261
S.CXXX.]
Court or a Judge, (6) plead in answer to the plea or s^bse-J^gO- Jj-g^;
nnent pleading of the Defendant as many several matters (c) as <^
ir
J ■ i'
ift-Wfr
M.
h ■
)■' |H
7^1 '
! ,
,r
pl
think necessary to sustain his action, (d ) and the ^^©■^lljlajj'b^ *^^ <>»«-—,
uk in any action may by leave of the Court or a J'*'^?®^^*'/,^ /'^^'^^*"^
in answer to the declaration or other subsequent plead-* J«»«Jg«- ^^^
. - /;^ of the Plaintiff, as many several matters as he shall
i]i^ necessary for his defence, (/) upon an affidavit of the
the Orown was held not to be within
A»t Statute: {Aitomty-Otntral t.
mWon, 9 Dowl. P. C. 819.)
/n gee note m to 8. xxxvii.
\l Several mattert, &o. This ex-
cressioD when taken in reference to the
nrinoiples of pleading must mean either
Ltinot answers to the pleading oppos-
G. W. R. Co. 19 L. J.
^{Cooling y-
Q. B 629), or distinct answers or tra-
^rses to one or more specific and ma-
terial allegations of such pleading:
(88. oxiv. oxxyi. oxxvii.)
(i) The right of a plaintiff to reply
doable is new, and by this statute for
the first time authorised : (see note s,
0tt.) It was held on an application
by ft plaintiff under the Eng. 0. L. P.
Act for leave to traverse defendant's
pies and to reply specially upon an
KSdavit in general terms, that there
fsi reasonable ground to traverse the
plea and that the matters proposed to
be replied specially were true : the affi-
davit was held sufficient : (Penhall v.
Clarke, 1 N. C. L. Rep. 708.) But it
is in the discretion of the Court or a
Jadgeto require the facts to be set
forth at length, in order to determine
the necessity for the application : (lb.)
Vhere in an action by assignees of a
bankrupt on a covenant by defendant
to pay money to the bankrupt, defen-
dant pleaded that on a treaty of mar-
riage between the bankrupt and his
irife, it was agreed that he should co-
Tenant to pay to trustees £10,000 and
interest, and assign the moneys men-
tioned i.r the declaration for securing
payment of said sum ; and that ho en-
tered into such covenant and made
aaoh assignment and contracted the
marriage before his bankruptcy: to
thispluntiff made application for leave
to reply double -irst, a traverse of the
plea; aeeondly, that the treaty of mar-
riage, the settlement, the assignment,
and the marriage were respectively
entered into and solemnized, in pursu-
ance of a fraudulent arrangement be-
tween the bankrupt and his wife, to
defeat creditors, he being at the time
in a state of hopeless insolvency : the
application was refused on the common
affidavit, but granted on an affidavit
specially denying the allegations of the
plea, and averring that the deeds had
been ordered by &e Court of Chancery
to be delivered up to be cancelled, and
affirming the truth of the matter in-
tended to be replied: {2b.) If a plea
be divisible in its nature a plaintiff
may wititout leave reply one matter to
one part and a different matter to an-
other, the several matters together
forming only one replication: (Com.
Dig. " Pleader," F. 4.) As to the time
within which a plaintiff must reply see
s. tiii. and notes thereto.
(«) An application to rejoin several
matters was refused where it appeared
that the matters proposed to be re-
joined would be a departure from the
plea and no answer to the replication :.
{Lafond v. Ruddock, 13 C. B. 813.)
(/) At common law a defendant was
allowed to plead one plea only, and it
was a principle that pleadings ought
to be true, which can rarely be the
case where many pleas are plead-
ed. But as it was sometimes found
difficult to comprise the merits of a
defence in a single plea, the Statute
of Anne permitted a party to plead as
many as might be necessary to his
defence, provided he obtain the leave
of the Court, thereby confining him to
such as might be deemed ettmtial to
262
THB OOMMON LAW PBOOSDUBE ACT.
[S. oxxx.
the justice of the cause: {Gully t. jBi-
shop of Exeter, Best, C.J., 6 Bing.46.)
Although it is not in the power of a
judge to try the truth or falsity of a
plea upon affidavit : {Johnstone T.
Knowles, 1 Dowl. N. S. 30.) yet when
oalled on to exercise hid discretion as
to certain pleas being allowed he must
see to the powers with which he is
armed by the Statute of Anne. And
it is quite clear that in a case where
the pleas are such as not to involve
the real justice of tlie case, but to lead
to great expense and intricacy at the trial,
it is the exercise of a sound discretion
not to allow them to bo put on the re-
cord : [London and Brighton R. Co. v.
Wilson, Tindal, C. J., 6 Bing. N. G.
187 ; Same Plaintiffs v. Fairclough, lb.
270.) The allowance of several pleas
since the abolition of the old form
of general issue is intended for
the promotion and not for the perver-
sion of justice, and if a perver-
sion is evident it is the duty of the
Judge to reject the plea: (Cooling
▼. Great Northern R. Co, 16 Q.B. 496.)
It has been found necessary to make
the rules of Court and the statute of
Anne " a real acting power." There
are some traverses which although
they might not give an opening for
judgment non obstante veredicto are
clearly so much beside the merits that
there is no havdship in obliging the
party who has taken them to stand
upon others : (lb. Coleridge, J.) The
practice of placing numerous and in-
consistent pleas upon the record ought
to be discouraged : (Dunmore v. Tarle-
ton, Campbell, C. J., 16 L. & Eq.392.)
It is usual for a defendant making ap-
plication to be allowed to plead several
matters, to submit an abstract of the
pleas he proposes to plead : (Dunmore
V. Tarleton, ubi supra ; Gether v. Cap-
per, 25 L. & Eq. 417.) A variance
between the pleas as delivered and the
abstract, which is not substantial or
calculated to embarrass, will not en-
title plaintiff to sign judgment : (Dun-
more V. Tarleton, ubi supra ; Will* v.
Robinson, 5 Ex. 302.) If the pleas
delivered substantially vary from the
abstract submitted, plaintiff's Droi>«.
course is to move to strike them oS?
(Flighty. Smale, 4 C. B. 766 )Vi;
action for the infringement of opattt^
the Court upon the affidavit made n«!
cessary by this section allowed defen*
dant to plead, ^r,/ not,;uilty; „co„;:
ly, that the patentee vfis not the in
ventor; thirdly, non cor 'essit; fourthh
that the invention was not a manufan!
ture ; ;?/"<A/y, that the invention «&.
not new; sixthly, that no sufficient
specification was enrolled; (Piqu .!
al. V. Else et al. 8 Ex. 364, 20 L. &Ea
804.) But where to a similar'action
Piatt, B., allowed the defendant to
plead that the plaintiff having pea
tioned for litters patent, his petition
was referred to the Solicitor General
to whom he presented in a paper vritl
ing (setting forth its terms) that the
said invention consisted of the matter
therein mentioned, that the Solloitor
General confiding in such representa-
tion reported to her Majesty that let.
ters patent might be granted ; that the
plaintiff after tho grant of the said
letters-patent enrolled his specification
and tJierein falsely described his inven-
tion ; and that so much of the said in-
vention as was stated in the specifica-
tion was not part of the invention for
which the said letters-patent had been
granted: held on motion to rescind
the order and disallow the plea, that it
was bad as pleading evidence : (nan-
cock V. Noyes, 9 Ex. 388.) A defend-
ant in Upper Canada since the passing
of this Act having obtained leave to
plead several matters to a declaration
for an assault and battery, and having
pleaded, y?r«<, not guilty; secondly,
justification ; thirdly, son assault de-
mesne, was upon the subsequent appli-
cation of plaintiff compelled to ini»ke
an election between " not guilty" anil
"justification," "these being incon-
sistent pleas" : {Goldsburgh v. Leesor,
Chambers, Sept. 25, 1856, Burns J.
2 U. C. L. J. 209.) In an action of
dower leave was granted to plead the
following — 1st. Ne ungues seizie ; 2d.
Ne uuques accouple ; 3d. A release
of dower : {Street v. Cathcart, Cham-
g.oxxx.]
PLEADINa SEYEBAL MATTERS.
253
wf, October 6, 1856, Barns, J.)
Though the learned Jadge at first
thought that he ought not to grant
lette to plead the third plea he subse-
oaently came to the conclusion that
ig proper remedy of the plaintiff, if
the ple*^ ^'^ ^^^ ^^ ^^^' ^°'^ ^^ demur
to it: (/&•) 1° ^° action of assump-
git in which the declaration contained
I special count alleging that defendant
jn consideration, &c.: agreed by writ-
w under his hand to make and deliver
to plaintiff a good deed in fee simple of
I certain lot of land, and that although
plgintiffhad paid said consideration,
jet that defendant had failed to make
lud deed, and the common indebitatus
counts for money paid by plaintiff to
defendant, &o., leave was asked by de-
fendant to plead, 1st. That he did not
igree as alleged ; 2d. That plaintiff did
got pay the consideration in first count
mentioned; 8d. That the agreement in
first coant mentioned was obtained by
Beans of fraud and covin ; 4th. To
lendne of declaration, not indebted :
Held that the 2d, 8d, and 4th pleas
night be allowed, but that defendant
should not ask leave to deny his deed,
and at the same time to plead in cou-
feision and avoidance of it without
showing that something material may
turn upon the construction of it, and
Ist plea therefore disallowed : ( Taylor
T. McKinlay, Chambers, Oct. 18, 1856,
Bums, J.) The allowance or disallow-
ance of a plea is to be determined on,
not by its quality as being good or bad
in law (assuming it not to be wholly
MyoIous), but with reference to any
ether pleas which may be proposed
and especially upon the consideration
whether the question which it is desir-
ed to raise upon it arises under any
other plea : [Gether v. Capper, 25 L.
h £q. 417.) And aemble, leave will be
granted to plead any pleas necessary
to raise every question that can be
jastly suggested on any fair construc-
tion of a contract declared on, even a
construction of which the Court wholly
disapproves : {lb.) In an action on a
charter party, by which a freighter
was to pay the highest rate of freight
which he could prove to have been paid
for ships on the same voyage and aver-
ment of general performance, and that
the plaintiff was able to prove, as the
fact was, that the highest rate of freight
was a certain sum which the defend-
ant though he hod notice would not
pay. To this defendant proposed to
plead, firtt, ihat plaintiff was not able
to prove nor was he in fact ; tecondli/,
that plaintiff did not in fact prove to
the defendant that the rate of freight
was as alleged. The latter plea hav-
ing been disallowed at Chambers the
Court allowed it, on condition that it
might be demurred to at once, and ar-
gued on the last day of the then term,
that being in three days ; intimating
an opinion at the same time that it was
a bad plea, but that they would not
deprive the defendant of the opportu-
nity of placing it on the record to raise
the question as to the construction of
the contract : (lb.)
A declaration contained three counts
of which the firtt was upon the cove
nant of defendant a^ Sheriff of the
County of Oxford given under St.8 Wm
IV. cap. 8, and alleged that defendant
had wilfully misconducted himself in
his ofBce of sheriff by voluntarily allow-
ing one Sprague, who had been arrest-
ed at the suit of Plaintiff to escape ;
the teeond alleged that said Sprague
being indebted to plaintiff, he placed
a writ of capias for his arrest in the
hands of the defendant, who, though
he had ample opportunity to take said
Sprague, yet failed to do so to the in-
jury of plaintiff ; the third count alleg-
ed that Sprague being indebted to
plaintiff, he placed a writ of capias
for his arrest in defendant's hands
and that defendant falsely returned
that said Sprague was not to be found
in his county. Leave to plead the fol-
lowing pleas was granted to defendant.
To first connt. 1st, that Sprague wad
not indebted to plaintiff; 2d, traverse
of arrest ; 8d, that defendant did not
wilfully misconduct himself in his said
office to the damage of plaintiff; 4th,
that defendant did not voluntarily per-
mit said Sprague to escape mode et
• .■ t-
.< <
> '■ t.
i-'frH!
254
THE OOMMON LAW PROOBDUBB ACT.
[«• OXxx
forma. To leeond count, Ist, that
Spragae was not indebted to plaintiff;
2d, Not gailty; 8d, tliat defendant
oould not arrest Spragae ; 4th, plain-
tiff not damnified. To third oount
Ist, not gailty ; 2d, Spragae not in-
debted to plaintiff: (Tayhry. Carroll,
Chambers, Oct. 28, 1866, Barns, J.)
An affidavit of defendant's attorney
was filed which stated the matters re-
quired by this section and also the at-
torney's reasons for beliCTing let plea
to Ist count, 1st plea to 2d count, and
2d plea to 8d count to be true in sub-
stance and in fact : (lb.)
It is presumed that the Courts in
disposing of applications made under
this section will be guided if not go-
Temed by cases decided under the sta-
tute of Anne, many of which will be
directly in point. They may be con-
Tcniently classed as follows—
/. — Pleaa ditallowed.
Fint — Pleas substantially the same,
for example, pleas calculated to raise
a point that might be raised under other
pleas on the record: {Hammond y.
Teague, 6 Bing. 197 ; Reid y. Rew, 2
Dowl. N. S. 648 ; Dawion y. MeDon-
«2d, 2 M. & W. 26 ; Heath y. Durant,
1 D. & L. 671; Jenkina y. Creech, 6
Powl.P.C. 293 ; Turquand y. Hawtrty,
9 M. & W. 727 : Legge y. Boyd, 9 Dowl.
P. C. 39; Rott y. Clifton, 9 Dowl. P.
C. 1088; South Eastern R. Co. y. Hib-
blewhite, 12 A. & £. 497 ; Beavan y.
Tanner, 8 Dowl. P. C. 870 ; Alexander
y. Tovmley, 2 Dowl. N. S. 886 ; Oriffith
y. Selby, 9 Ex. 893, 26 L. & £q.
649.)
Secondly — Pleas grossly inconsistent
with each other : (Maclellan r. Howard,
4 T. R. 194 ; Jenkins y. Edwards^ 6 T.
S. 97 ; Dougail y. Bowman, 8 Wils.
146 ; Anderson y. Anderson, 2 W. Bl.
1157 ; Fox y. Chandler, lb. 906 ; Pal-
mer y. Wadbrooke, 2 Stra. 876 ; Laugh'
ton y. Ritchie, 8 Taunt. 885 ; Orgill y.
KemsheadfiThvntiM', Chittyy.Hume,
18 East. 256; Shaw y. Alvanley, 2
Bing. 325 ; Whale r. Lenny, 6 Bing.
12 ; Steel y. Sturry, 1 Scott. 101 ;
Thompson v. Jackson, 8 M. & Q.
621; London ^ Brighton R. Co. y.
Fairclough, 8 Dowl. P. C. 278 • A .
WiUon, 8 Dowl. P. C. 40; Chiml
RoberU,2M.kQ.miWeSCmy
Law, 8 Dowl. N. S. 1027; O'^S I'
OUment, 16 M. & W. 486;) vexalSL
i?"'^ ^•.'** ^'^^'^ of Exeter, 6 Bini"
42; Coolmgr. Oreat Northern R nf
16 Q.B. 486;) or absurd: (Qoo'dmn
y. MoreU, 1 Dbwl. N. S. 288.Y "
Thirdly— View immaterial and be.
side the merits, being such as do
not inyolve the real justice of the
case : {Murray y. Bouchber, 9 Dowl P
C. 687 ; Brighton R. Co. y. Wilton 8
Dowl. P. C. 40; Phillips y. Clagaatt
10 M. & W.102 ; Steward y. Dunnli
L. J. Ex. 213.) ' ^
IL — Pleas allowed.
First— Pleas involving distinct
rounds of defence: (Triebuery.Duetr
Bing. N. C. 266; Pymy. Graztbrook
et al. 1 Dowl. N. S. 489 ; Bulley t
Foulkes et al. 7 Dowl. P.O. 839.)
^«eon%— Pleas though apparently
the same, where it is possible that facte
exist under which the pleas raise dis-
tinct grounds of defence: {Hart t.
Bellf 1 Hodges 6 : Marse y. Appleby
8 Dowl.P.C.203 ; Johnstoney. Knowla,
1 Dowl. N. S. 80 ; Currie y. Almond,
6 Bing. N. C. 224; Leuckarty. Cooper,
8 Dowl. P. C. 416 ; Hughes v. Thorpe,
5 M. & W. 666 ; Wilson y. Craven, 8
M. & W. 584 ; Steward y. Oreavet, 10
M. & W. 711 ; Davidson y. Cooper, 11
M. & W. 778 ; Roe y. Fuller, 7 2x. 220.
Thirdly — Pleas apparently but not
neoessari^ inconsistent and such as
involve distinct defences : {Wilson y.
Anusy 6 Taunt. 840; WUkinton t.
Small, 8 Dowl. P. C. 664 ; Co<wer v.
Langdon, 10 M. & W. 785.)
Fourthly — Pleas showing different
legal conclusions arising out of the
same state of facts : (Curry y. Arnott,
7 Dowl. P. C. 249 ; Oether v. Capper,
26 L. & Eq. 417.)
Fifthly — Pleas to the several counts
of a declaration containing more counts
than one: {Vers y. Ooldsborough, 1
Bing. N. C. 858 ; Langford v. Woods,
8 Scott N. R. 809.)
Sixthly— Pleaa which taken togeth-
er amount to one entire answer : as
PLEADING SI
VIRAL
MATTERS.
265
p^y making such application or his Attorney, (g) if required f'^jH*
Cthe Gottrt or a Judge, (h) to the effect that he is advised
j ))elieves that he has just ground to traverse the several
•natters proposed to be traversed by him, and that the several
gttters sought to be pleaded as aforesaid by way of confession
Mjavoidanoe, are respectively true in substance and in fact; (i)
tdi declaration ic debt for £80. — let,
iigeTer indebted" as to £40, part there-
of' tnd 2d, a tender as to remaining
tk • (Archer t. Gerrard, 8 M.& W.68 ;
j[(uher T. Billing, 8 Dowl. P. C. 246 ;
Ytrer. Ooldtborough, 1 Bing N. C.
jjg' banieU t. Letoit, 1 Dowl. N. 8.
Hi\ Phillipt Y. Claggatt, 10 M. & W.
102; Barvey y. J7amt7<on, 4 Ex. 48 ;
im v. Cumtningt, Chambers, Oct. 4,
1856, Barns, J.) It is apprehended
tint pieas classified under this sixth
ggb-diTision may be pleaded together
^tboat leave ; as they constitute only
m answer to the several parts of the
declaration and may be pleaded av
eonuDon law independently of the Sta-
tute of Anne : \Danielt v. Lewii,
nM tupra.) Where a defendant
hid pleaded two pleas to the same
ctnse of action, one of which was dis-
jllowed by a Judge, and he after-
wiids separately pleaded tbem to dif'
fermt parts of the same cause of ac-
tios, &e Court refused to set them
jside: (lb.)
IIL—Daubtful.
If the allowance or disallowance of
seTeral pleas under the foregoing rules
be a point of doubt or nicety, the prac-
tice is to allow them : {IViekeg v. Yean-
dell, 1 Bing. 66 ; Smith v. IHxon, 4
Dowl. P. C. 671 ; Bentley y. Keightley,
1 D. & L. 944 ; Hajfward y. Bennett,
1 D. & L. 916 ; Lucan v. Smith, 28 L.
T S. 126.)
(g) In general the affidavit may be
to the effect that defendant has just
groand to traverse the several matters
proposed to be traversed by him and
tiiat the several matters sought to be
pleaded are respectively true in sub-
stance and in fact. See Form* Chit. F.
7 Edn. 108 et teq.
(A) It is discretionary with the
Judge to whom application is made to
grant it without an affidavit, but in
England there is little disposition to
do so : (Dunmore v. Tarletan, 16 L. &
Eq. 892.)
(t) In an action on a bill of ex-
change drawn by one A. B. directed
to defendant, requiring him to pay to
the order of said A. B. £750, sixty
days after date, accepted by defendant
and indorsed by A. B. to plaintiff, de
fendant obtained a summons for leave
to plead. Firtt — That the bill was
accepted by defendant for the accom-
modation of plaintiffs and said A. B.
without any value or consideration.
Secondly — That same was accepted for
the accommodation of said A. B. with-
out value or consideration, and indors-
ed by A. B. to plaintiffs without con-
sideration. Defendant's affidavit stat-
ed that the bill of exchange in the
declaration mentioned was accepted
by defendant without any value or
consideration received by defendant
for said acceptance, and was as depon-
ent believed for the accommodation of
plaintiffs and one A. B., the drawer
thereof, to take certain bills accepted
by plaintiffs^ drawn by said A.B.; that
deponent was advised and believed that
it was material for his defence to the
action that he should plead that his
said acceptance was either for the ac-
commodation of plaintiff and A. B.
jointiy, or of said A. B. only, and was
without any value received by depon-
ent : summons made absolute no cause
having been shown : (Oarrett et al y.
Cotton, Chambers, Nov. 7, 1866, Ha-
garty, J.) A defendant having ob-
tained an order to plead several mat-
ters may elect to abandon it, or if
before order the summons has been
a^ourned he may waive it and plead
266 THE COMMON LAW PROOEDUBE ACT. [g. ^j^^
ProTtoo. Provided (J) that the coats of any issue either of fact or of la*
without the order pleas not requiring
leave : (Holt v. Forahall, Jervis, C. J.,
80 L. & Eq. 494.) Although it may
be that a mere adijournment requires
no order ; yet if there be any terms
in favor of either party a substantive
order should be drawn up: (lb.)
There are authorities to show that a
party cannot be compelled to draw up
an order he has obtained : {MacDou-
gall y. Nieholla, 8 A. & E. 818 ; Eden-
eer v. Hoffman, 2 C. & J. 140 ; see also
Brown v. MUlinffton, 20 L. & Eq. 883 ;
see ftirther note m to s. xzxvii.)
(j) The right of a defendant to
plead several pleas under the Statute
of Anne when exercised necessarily
gives rise to several distinct issues. The
right extended to plaintiffs as well as
defendants by this enactment will have
tj tendency to multiply issues. Where
there are several pleas or replications
to the same subject matter, it is pro-
bable that some are true and some
false, so that some may be fonnd for
one party to the suit and the re-
mainder for his opponent. As it is
only just that a party pleading false
or improper pleadings should be made
to bear the ezpense-ef them, the Stat-
ute of Anne which first gave the right
to plead double, instead of single as at
common law, provides for the appor-
tionment of costs consequent upon the
decision of the several issues raised.
The provision is in these words, *' That
if any such matter (t. e. the several
matters thought necessary by a defen-
dant for his defence and by leave of
the Court pleaded) shall upon a demur-
rer joined be deemed insufScient, costs
shall be given at the discretion of the
Court ; or if a verdict shall be found
upon any issue in the said cause for
the plaintiff or defendant, costs shall
be also given in like manner, unless
the Judge who tried the said issue shall
certify that the said defendant had a
probable cause to plead such matter,
which upon the said issue shall be
found against him" : (4 Anne cap. 16
8. 6.) This statute being a remedial
one ought to be so construed as to ad-
vance the remedy. The oosta Intended
to be given appear to be all the costs
which attend the unnecessaiy pleadUif
This construction is analogous to that
which has been put upon the Statute
of Gloucester (6 Ed. I. cap. 1, g. 2) bv
which the costs of the writ oniy nl
given to the plaintiff if he succeed, and
yet that statute has always been held
to give all the costs of the suit : ( Vol.
lum V. Simpaon, Heath J. 2 B. &p"
868.) Although a defendant by plead!
ing unnecessary pleas may subject hinj!
self to the costs of the issues raised on
those pleas, yet if he obtain a verdict
on an issue raised by a plea which ij
an unqualified bar to t,he action, and
which if pleaded alone would clearly
entitle him to the general costs of the
trial, the postea and general costs of
the cause must be ac^udged to hint-
{Raggy. Wells, 8 Taunt. 129 ; Edmri,
V. Bethel, 1 B. & A. 254.) But rea-
son and common sense dictate that if
the defendant has put the plaintiff to
unnecessary expense by pleading that
which either in law or in fact turns out
to be unfounded, he should pay to
plaintiff that expense, although he may
be sfl^ssftil upon the general ques-
tion yj^eneer V. HamUtor, 4 A. & E.
418.) 'The principle is clear that
plaintiff is entitled to be I'e-imbursed
the expense to which he has been put
by defendant pleading unfounded pleas
notwithstanding the latter be en-
titled to the general costs of the cause:
(Mullina v. Scott, 5 Bing. N. C. 423;
Hart V. Cutbtuh, 2 Dowl. P. C. 466.)
And defendant under such circum-
stances is bound to pay not merely the
costs of the pleadings but the costs of
preparation of evidence on those plead-
ings : {Spencer v. Hamilton, ubitupra;
Empton V. Fairfax, 8 A. & £. 296.)
The case of Othir v. Calvert, 1 Bing.
276, which rules the contrary cannot
be supported. The practice which it
lays down was condemned in Brooke y,
Willet, (2 H. Bl. 485,) and {Vollumj.-
Simpson, 2 B. & P. 868. ) If the Judge
certify under the Statute of Anne de-
fendant need not pay any such costs:
..-, 1 008TS OT BEVSBAL ISSUES.
g. OZZXJ
y I follow the finding or Judgment on such issue, and be ^^^
257
h
^
iV«T. Monekton, 9 Dowl. P. C. 967.)
/h?Bng. Self. Gen. 7 of H. T. 4 Wm.
S Serris N. B. 121) from which our
role 26 of E. T. 6 Vie. is taken, and
which is BubBtantially re-enaoted in
oar N. R- 61> '^'^ ^^^^ ^^^ ^® conflict
with the practice decided in Spencer v.
ffamtfton. Indeed the rules of Court,
tnd eroecially the N. R. 61, more
Znly .stablish it. Nor did the old
rules affect the Statute of Anne as to
the power of the Judge to certify :
(Robinton T. Messenger, 8 A. & E. 606.)
\\a words " at the discretion of the
Coart" as used in that Statute have
been construed as not giving the power
to refuse but only to tax costs : (Du-
tfley T. Page, 2 T. R. 891.} Great
diinoalty is Arequently expenenced in
the apportionment of costs under the
gtatate and rules. Many of the cases
depend upon the particular circum-
BtsDces attending tiiem And are in
themselves so various that no one nase
can be taken as an unqualified preced-
ent: (iarrfnery.Dieft, 2DoWl.P.CJ88;
Starltnffy.CozenaetalfS Dowl.P.C.782;
StaUy V. Long, 5 Dowl. P. C 616 ;
Bmny-Sateman, 8 M.& W.666 ; Sazle-
woody. Back, 9 M. & W. 1 ; Andtrton
T. Chapman, 7 Dowl. P. G. 822 ; Mul-
lins T. Scott, 5 Ring. N. 0. 428 ; Lewit
T. Holding, 2 M. & G. 876 ; Routledge
y. Abbott et al, 8 A. &E. 692; Pad-
dock T. Forrester, 2 Dowl. N. S. 125;
yewton T. Uolford, 2 D. & L. .828 ;
Frttman y. Roscher, 18 L. J. Q.R. 106 ;
Davis T. Davit, 5 0. S. 468 ; Evane y.
Kingsmill, 4 U. C. R. 182 ; Tajflor y.
Carr, lb. 149 ; Bank B. N. A. y. Aia-
ity, 7 U. C. R. 621 ; Sheldon y. ffa-
miUon, M. T. 2 Vic MJS. R. & H. Dig.
« Costs," III. 2.)
Lidependently of the Statute of Anne
qnestions have arisen as to the right of
of the parties to costs when plaintiff
snooeeda on one of several counts in a
declaratiop, and the defendant as to
the others. Whenever a, plaintiff suc-
ceeds on a trial as to any part of his
demand divided into counts whether
the defendant plead one plea to all the
connts, or plead to the counts sepa-
rately, plaintiff is entitled to the gen-
eral costs of the cause. And defend-
ant though not formerly entitled to his
costs on the connts or issues upon
which plaintiff fails : (Lloyd y. Day,
Barnes, 149 ; Butcher y. Oreen,
Doug. 677; Atdey y. Young, Burr,
1282 ; Postan v. Stanaway, 6 East.
262) is now dearly entitled to a
deduction in respect to such covAts
or issues: {Cox v. Thomason, 2 C. &
J. 498 ; Knighty. Brown, 9 Bing. 648.)
This rule applies as much where
there is one plea, for instance, general
issue to all Uie counts jointly, which
for this purpose is to be taken disM-
butively, as where distinct issues are
Joined on distinct pleas pleaded to as
many separate counts: {Daniel y.
Barry, 4 Q.B. 69 ; Nicholson y. Dyson,
1 D. & L. 277 ; Williams v. Oreat Wes-
tern R. Co., 1 Dowl. N.S. 16.)
The same principle has been held to
apply to a declaration of one count only
but containing several material aqd
traversable allegations to which the
general issue is pleaded, and some only
of the matters alleged, are. found in
plaintiff's favour: (Prudhomine y.
Eraser, 2 A. &; E. 645.) The appor-
tionment of costs as against or b^tw^^n
several defendants is regulated }oy sim-
ilar equitable principles. It Ivas been
held that if one of several defendants
suffer judgment by default and the re-
mainder obtfdn a verdict, that the latter
are entitled to costs : {Price v. Harrit
et al, 2 Dowl. P. C. 804.) So if some
only of several defendants obtain a
veraict) the latter are entitled to all
their separate costs andj^rtota/oetato
an aliquot part of the joint costs of de-
fence: {Gr^ths v. Kynaston, ST jr.
757 ; Griffiths v. Jones, 2C.M.& R.888 ;
Gambrell v. Earl Falmouth, 6 A. & B.
408 ; Bartholomeyr y. Stevens et al. 7
Dowl. P. 0. 808.) Thus in trespass
against three defendants, one was ac-
quitted aud the remaining two found
guilty, the former was held to be en-
titled to a third part of the costs of the
defence, and that such third might he
deducted from plaintiff 'b costs on tax
?^'
^>5
I
^■^ V
» •
f;: ;
,f|
258
THE COMMON LAW PROOEDURB AOT.
[8. CXXxi.
adjudged to the sucoessful party, ^nrhateyer may be the result
of the other issue or issues.
^1^,.^^ iSc^L.?. CXXXI. (k) No rule of Court for leave to plead several
*^"" Eiufnot '^™***®" ^^^^^ ^® necessary where a Judge's Order has
reqniTMi. made for the same purpose. (T)
atiqp of his costs against the defendants
found guilty : (N'orman t. Climenaon,
4 M. & O. 248.) It makes no differ-
ence as regards the application of this
role irhewer the several defendants
appear by separate attorneys or by the
same attorney : (76.)
Plaintiff, irrespectively of the j[>re-
sent statute and Rules of Court,
can recover costs only under the
Statute of Gloucester, as a part of
his damages, or under the Sta-
tute of Anne where there are double
pleas. If he succeed as to the
whole of the causes of action sued
upon or one of them, his only claim is
under the Statute of Gloucester. If
defendant succeed on a plea in bar of
the causes of acti^m, plaintiff can claim
costs only under the Statute of Anne.
To put a case decided as an illustra-
tion of these remarks : a declaration
for injury to the pluntiff's reversion
contained two counts, to which the
defendant pleaded-«-/fr4^ not guilty ; .
teeondly, to the first count, no rever-
tion; thirdly, a justification, to which
there was a replication, demurrer and
judgment for defendant; fourthly, the
Statute of Limitations to both counts ;
tad fifthly, to the second count, a plea
to which there was a new assignment,
and to it a plea of not guilty, and a
Terdict was found for the plaintiff on
the plea of not guilty as to part of the
first count, with contingent damages ;
and as to the residue of the first and
the second count, for the defendant,
and on the plea of no reversion for the
plaintiff as to both counts, and on the
fifth plea the jury were discharged by
consent, and as to the new assign-
ment, the verdict was for the defend-
ant : held that the plaintiff was not
entitled to the costs of the issues as to
the part of the first count on which he
had Buoceeded, for he had no right
under the Statute of Qloucester, inag.
much as he could not have judgment
for the damages assessed, and that he
had no right under the Statute of Anne
since he had succeeded on all the issues
as to that part of the count. But that
as to the other part of the first count
and the second count he was entitled
under the Statute of Anne to the costs
of one special plea, including a por-
tion of the expenses of briefs and wit<
nesses, inasmuch as the defendant
succeeded on the first issue as to that
part of the first count, and on the se-
cond count ; and the plaintiff obtained
a verdict on the issues raised on tvo
other special pleas : (Howell t. Rod.
bard, 4 Ex. 809.) So where to a de-
claration in assumpsit the defendant
pleaded several pleas upon which is-
sues were joined and also a plea to
which the plaintiff demurred, and the
issues were tried and found for the
plaintif and afterwards judgment was
given fj>r the defendant on the demur-
er, the 'Court holding the declaration
insufiBcient: held that the plaintiff
was not entitled under the Statute of
Anne to the costs of the issues found
for him as no issue in fact had been
found for the defendant also : {ParU
ridge v. Gardner, 4 Ex. 303.) The
object of the Statute of Anne is to pun-
ish a defendant for improperly plead-
ing pleas which he cannot support;
but there are other statutes which pun-
ish a plaintiff for bringing a frivolous
suit though he succeed : (43 Elizabeth
cap. 6, 21 Jao. 1 cap. 16, s. 6 ; 22 &
23 Car. II. cap. 9, and the section un-
der consideration.)
(k) Taken from Eng. Stat. 16 & 1^
Vic. cap. 76 s. 82. — ^Applied to County
Courts.
(I) If a Judge in Chambers refuse
leave to plead several matters, the
party who made the application can
11
' B'lBk''ii i\ mi n'l''!t
'"*-i-,at'
oxxxii-iii] plbadinq double without lkavi. 259
CXXXII. (m) All objections to the pleading of several [*^\pif^ "-^^ ''^"'^ ^
pleas, replications, or subsequent plead'' ,., or several avowries a. j^jf^j-M: ' *^* ^ '"^
or cognizances, on the ground thac they are founded on the when »« «>•
same ground of answer or defence, shall bo heard upon the
summons to plead several matters, (n)
CXXXIII. (n) The following pleas or any two or more a^^^Wi ^
of them may be pleaded together as of course, without leave Kn^'o. Lv.u.i^- ofm-i
, *
¥
:''^:
1,.
1*'
f
t
4
1
' i
of the Court or a Judge, that is to say : a plea denying any oirtotn'pieni
A. 1852,11.84. * //i.
contract or debt alleged on the declaration, (o) a plea of ten- pieided to
more the Court in banc : (Johnitone y.
Knowles, 1 Dowl. N.S. 80.) In such a
case it would seem to be unnecessary
for him in his rule to notice the pro-
ceedings previously had before the
Judge in Chambers: (/6.) And if
the Judge to whom application is in the
first instance made, though granting
lesTe as to some pleas withhold it as to
others, the party dissatisfied may apply
to the Court to be allowed to file addi-
tional pleas. If the proposed addi-
tional pleas be consistent with whal
the Judge in Chambers has already
done, the parties should again apply
to him. It is very inconTenient for the
Court in bane, to be called upon to say
what pleas shall or shall not be allowed
in a case : {Smith v. Ooldaworthy, Den-
man, C. J.,2 Q.B. 721 .) But if the ap-
plication to the Court be to allow par-
ticular pleas disallowed by the Judge
in Chambers,then it would appear that
the application should be to rescind
the Judge's order: {Pym v. Grate-
brook, 1 Dowl. N. S. 489 ; see also The
South Eattem R. Co. y. Sprot, 11 A. &
£. 167.) And on tho contrary if at all
consistent with the judges order it
would seem unnecessary to notice the
previous proceedings when applying
to the full Court : (Smith y. Goldatpor-
ihy, vbi supra ; Oraham y. Furber, 2
N. C. L. Rep. 11 n, b.) The afiplica-
tion to the Court would be in the na-
ture of an appeal from the decision of
the Judge. Such and similar applica-
tions should be made in the course of
the term next after the decision of the
Judge: (Orchard y. Moxsy, 2 El. &
B. 206, afiBrmed in Collins y. John-
stone, 16 C. B. 588 ; see Airther note
m to 8. xxxvii.) The Court before the
G. L. P. Act h%9 allowed a defendant
add pleas after a demurrer (Smart y.
Sandars, 8 C. B. 880), and in one case
even after a notice of trial and counter-
mand, the trial not being thereby de-
layed: (Field y. Sawyer, 5 D. & L.
777 ; see further s. coxci. of this Act,
and notes thereto.)
(m) Taken from Eng. Stat 15 & 16
Vic. cap. 76 s. 83. — Applied to County
Courts.
(n) From the oonoluding words of
this section the inference might be
that no application involving objections
to the pleading of several pleas, &o.,
can be entertained in banc; but the
Courts in England have given a differ-
ent construction to the section : (Orif-
fith V. Selbif, 9 Ex. 226, 25 L. & Eq.
649; and see ^erally the notes to
preeedimg section oxxxi ) If either
party consent to the pleadfing of seve-
ral matters, he will not be permitted
afterwards to move the Court to set
aside any of the pleadings pleaded
with his coiisent : (Hotcm v. Carr, 6
Dowl. P. C. 805.)
(n) Taken firom Eng. Stat. 15 & 16
Vic. cap. 76, s, 84. — Applied to Coun-
ty Courts. — SnbstantiaUy a re-enact-
ment, with amendments, of Eng. Rule
18 T.T. 1 Wm. IV.: (JervisN. R.46.)
(o) In the practical applicaUon of
this enactment there may be some
difficulty experienced. There are
contracts consisting of several parts
wluoh cannot be denied without as-
: 1
260
THE COMMON LAW PBOOKDURK ACT.
gsttasr
without
h
,
1
i ■ !
\ .
"
f il ■
P
[■• cxxxir.
der as to part, a plea of the statute of limitations, set-off dig.
charge, of the Defendant under the Bankruptcy or InsolTent
. h^fplene admini$travit, plene adminittrav it prater, infancy
coverture, payment, accord and satisfaction, release, not guiltv
a denial that the property, an injury to which is complained of
is the Plaintiff's, leave and license son a»muU demesne and
any other pleas which the judges of the said Superior Courts
or any four of them of whom Chief Justices of the said Court
shall be two, shall, by any rule or order to be from time to time
' bv them made in term or vacation, order and direct.
Upp. Cb. C.) ^
<2^ sla? ^Hm^ITm: CXXXIV. (i>) The Signature of Counsel shall not be re
"%;V' Sffl"o"f quired to any pleading. (2)
/ raquirad.
many distinct pleas. Thus, the oon«
tract of the indorser of a promisaory
note is to pay it, if the maker do no^
provided he, the indorser, receive ne-
tlce of non-payment by the maker.
Now the plea of <* did not indorse,"
only puts the fact of indorsement in
issue which is only one p^t of the con-
tract : (sec Mar$ton ▼. Allen, 8 M. &
W. 494 ; Adams y. Jones, 12 A. & E.
455 ; Hayes T. Caufield, 5 Q. B. 81 ;
Wood T. Connop, lb. 292 ; Broniage et
al ▼. Lloyd et al, 1 Ex. 82 ; Bell t. /n-
gestre, 12 Q.B. 817 ; Lloydy. Howard,
15Q.B.995; Palmerr. Riehards,l&Jnr.
41.) If defendant do not expresily
deny notice of non-payment he wIUIm
taken to have admitted it. This latter
plea is necessary to the denial of the
remaining part of the contract, and
by this means the whole contract
is denied within the meaning of
the enactment It is apprehended
that any number of pleas may be
used which in consequence of the
peculiarity of the contract saed upon
may become necessary for the pur-
pose of denial. It is the peoaliarity
of the contract of the indorser of a
promissory note which renders it ne-
cessary to use two pleas in order to
deny it. The mere denial of the in-
dorsement will admit the notice and
the denial of the notice will admit the
indorsement. It is very true if the
defendant succeed on either that it
affords an answer to the action
but the contract is of a two-fold char-
acter and the two pleas do not cever
the same ground, but are distinct, do.
plying to two several parts of the con-
tract. Non-assumpsit, if allowable
might have traversed both ; but the
roles of £. T. 6 Vic. compel a defend-
ant in a case like this to traverse the
contract severally bv distinct answers.
Taking s. oxxv. with s. cxxxiii. of this
Act, and construing them with the
rules of 1842, it hai been held that
the indorser of a note may deny the
indorsement and want of notice with-
out asking permission to do so : [Rote t.
CStmmmgs, per Bums, J., Chambers
October 4, 1856.) '
(jd) Taken from Eng. Stat. 16 & 16
Vic. cap. 76, s. 85. — Applied to County
Courts. — Substantially a re-enactment
of our rule 18 E. T. 5 Vic. (Cam. R.
28.) It has not at any time been the
practice in Upper Canada to have
pleadings signed by counsel. They
have been always signed by the attor-
ney in the cause or party in person as
the case might require.
{q) In England the Court in one case
allowed a special ease to be set down for
argument, which though signed by the
counsel for defendant was not signed
by the counsel for plaintiff, who in-
tended himself to argue the case in
person : ( Udney t. East India Co., 13
C. B. 732 ; 24 L. & £q. 222 ; see fur-
t eZZZT.] PLIADZNO DOUBLE WITHOUT LIAVl. 261
CXXXV. (r) Except in the oases herein specially provided ^J^-^^^) ^^*»* SUl ^
for («) if either party plead several pleas, replications, avow-A"*2,i.M.
ries oognh&noeB, or other pleadings, (f) without leave of the ^''*'
Court or a Judge, (m) the opposite party shall be at liberty to ?••«■*. *<! .
giffD Judgment, provided that such Judgment may be set aside flied without
by the Court or a Judge upon an affidavit of merits, and such
terms as to costs and otherwise as they or he may think fit. (v) ^'
;'i*
'(.i
thernote/ to a. Izzxi.) Thesigoatura
of counsel to motions in Court, it of
eourge Btill neoesaary.
(r) Taken from Eng. Stat. 15 & 16
Vlo. c»p. 76 B. 86.— -Applied to County
Courts.
(j) ante s. oxxzhi.
h) To a count alleging an agree-
iient by B. to serve A. as a clerk, and
not to leave without notice, B. pleaded
thtt whilst he was in A.'s employment,
B. without any just cause or provoca-
tion insulted and abused him, where-
upon be gave hin. aotioe that he should
forthwith leave his service. And to
this plea A. (without obtaining leave
to repl.y double) replied thus — A. takes
issue on B.'s plea, %nd/urtker says that
the notice intended in the declaration
WIS a reasonable and a proper notice,
but that the notice mentioned in B.'s
plea was not a reasonable or a proper
notice. B. having signed judgment
under the section of the Eng. C. L. P.
Act, corresponding with the one here
annotated, the Court set it aside with-
out costs, but declined to decide whe-
ther or not the replication was double
orUie plea regular : (Maiiter v. Rote,
13C. B. 162, : 6 L. &£q.422.)
(u) If a party who having obtained
leave to plead several matters by order
of a Judge plead contrary to the effect
of luoh order, even though by mistake
the opposite party may sign judgment
because such pleading is in fact without
leave: {HilU et al. v. Hayman, 2 Ex.
323; Oabardi v. Hazmer, 8 Ex. 289;
Harvey v. Hamilton, 4 Ex. 43 ; Willt
V. Robinson, 6 Ex. 802 ; see also Bailey
V. Baker, 9 M. & W. 769, and Halliday
V. Bohn, 8 M. & G. 115.) But a de-
parture .from the order which is not
rabstaatial or calculated to embarrass
will not entitle the opposite party to
sign judgment : (Dunmorey. Tarleton,
1 M. C. L. Rep. 19 ; 16 L. & £q. 891.)
(v) In an action on a promissory
note defendant without leave pleaded,
1. nonfeeit; 2. denial of presentment;
3. a special plea admitting the note,
but avoiding it by showing a want of
ronsideration. Plaintiff signed judg-
ment Held that as the 1st and
3d pleas were inconsistent and set up
two distinct defences to the same cause
of action, the defendant should not
have pleaded them without leave, and
that judgment was rightly signed by
plaintiff: {Le Claire et al. v. Pridhoute,
Chambers, Oct 18, 1866, Bums, J.)
The judgment was, however, set aside
upon the merits, and defendant ad-
mitted to plead upon terms : (lb.) So
where to a declaration for a malicious
arrest containing only one count de-
fendant without leave pleaded, 1. not
guilty ; 2. that he did not maliciously
cause the plaintiff to be arrested, &c.;
8. that he, defendant, had reason to
believe that plaintiff had parted with
his property, &c. Plaintiff thereupon
signed judgment. Defendant obtained
a summons to set aside the judgment
with costs, on the ground that "it had
been signed after pleas had been filed
and served and was consequently irre-
gular," but held that '* the pleas hbould
not have been pleaded without leave,
and consequently that the judgment
was rightly signed ": ( Wilkine y.Blaek-
loek. Chambers, Oct. 22f 1856, Burns,
J.) But the judgment was set aside
on the merits and defendant admitted
to plead on terms: (i6.) So where to
a declaration by plaintiff as bearer
against defendant as maker of a pro-
missory note, defendant without leave
u
i
£'. ,
I •
262 Xni COMMON LAW PROOEDUBI ACT. [i. oxx. '
« ^♦w tla? ^ itl^'o^L.^p CXXXVI. (m>) One new aBsigninent (x) only shall b
• <'^- ^'» *'- A. ftM,i.w. pleaded to any number of pleas to the same cnuso of ^ctio
and such now assignment shall be consistent with and oonfin A
V^.
On* n«w I
klgnment
pleaded, 1. plaintiff not bearer of the
note ; 2. want of consideration ; 8.
fraud ; and tho plaintiff thereupon
signed judgment : held regular :
(Emery t. Wheeler, Chsnibers, Not. 8,
1866, Hagarty, J.) An order, howerer,
was made relieving defendant on the
merits and setting aside (he Judgment
on the conditions precedent, that de-
fendant should pay £60 into Court
(that sum being sufficient to corer the
amount for which Judgment was signed)
to abide the event of tho suit, and upon
payment of all costs of signing the
judgment and subsequent proceedings
thereon and the costs of the applica-
tlon, and further as the cause was in
the "inferior Jurisdiction," upon the
terms of defendant allowing plaintiff
to go to trial at t e then next sitting
of the County Court, talcing one day's
notice of trial : {lb.) As to affidavit
of merits generally, see note / to s.
xlvii. of this Act.
(tr) Taken from Eng. Stat. 15 & 16
Vic. cap. 70, B. 87. — Applied to County
Courts. — Founded upon let Report C.
L. Com'rs, s. 45. The object of this
enactment is to prevent unnecessary
prolixity whereby in some oases to
several pleas there have been as many
distinct new assignments as pleas, and
before issue as many replications as
pleas both to tho declaration and new
assignment, so that the same plead-
ing in the same form of words has
been repeated over and over again
without reason or meaning.
(z) The necessity for a new assign-
ment generally arises in two ways —
firtt, where the plaintiff complains of
one of several trespasses, in a form
80 general that it is applicable to any
of them, and a trespass in respect of
which the action is not brought is
either by mistake or design, justified
by the defendant ; secondb/, where the
defendant pleads justification of the
trespass complained of, but the plain-
iiif maintains that there has been an
excess bevond what the cireumBtaiic*.
iustify, of which several examples nay
be found in subsequent notes to thii
section ; (see further Pteph. Pi 249 \
One object of a new assignment ii tA
make certain what the pToa has ttn
dered uncertain ; as where the defend-
ant mistakes the nature of plaintiff'*
demand and pleads a good answer to
something which is not (he cause of
action sued upon: (Jamee v. Lmahan
Tindal. C. J., 5 Bing. N. C. SsT 2
also Weit y. NM,, i Q Ji.n2.) TherJ
may be new assignments in actions on
contracts as well as for torts • CChif
Jr. PI. 2 Edn. 867.) Though a declar-
ation in debt be very general and
though the plea be equally general if
there never could be any doubt be-
tween the parties that the action ii
brought for the balance of an acoonot
there will be no necessity for a new
assignment: {James v. Linghan, ubi
supra.) Where plaintiff declared
in debt for £100 due for work and
labor and on an account stated
to which defendant pleaded pay-
ment of £100 in satisfaction of tiie
causes of action mentioned in the de-
claration, and plaintiff proved that
£96 178. lid. was due to him for the
balance of his account, after givinr
credit for the £100 he had received,
and that defendant admitted the cor'
reotnesa of his account: Held that
plaintiff was entitled to a verdict with>
out a new assignment : {lb. See also
Kenningham y. Alison, 2 Dowl. N. 8.
658.) Where the plaintiff's demand
is defined by a bill of particulars, and
it appears that he claims a balance
only after giving credit for payments
whenever made, the plea of payment
applies as to that balance : {Eastwick
y. Harman, 8 Dowl. P. C. 401,) which
for the purposes of pleading is taken
to be the particular sura for which the
action is brought : {Dite v. Hawker, 1
p. & L. 189.) Thus, plaintiff declared
in indebitatus assumpsit for work and
iif_.#
f 'i
xxxyi] l"!^ AisiOifMiNTi. 268
by the particttlarB delivered in the action, if any, (y) and sball 2;Jfj«»j;j;
bor done tnd on an aooount lUted
# £16 8«. lOd: plea eicept ai to
,0 3i iod., (paid into court) that the
iftndsnt after the acoruing of the
yL uij before the oommenoement
I the (uit, r»i<l to *l*« plaintiff and
"L BiiintUr accepted money to a large
iount in full satisfaction of the debt
Mbe declaration mentioned. Repli-
ition, denying the payment and ao-
rtptance B8 olleged. It appeared at the
trill tbst the original sum due was
130. 2i. lOdt of which £14 had been
..III leaTing the balance claimed in
SI Mtlon of £1 6. 8s. lOd. Held that
the i»ue raised upon the pleadines
•as whether the money paid was in
•itiafaction of the debt in the declara-
tion mentioned and that defendant
ha ing 'aii*^ *** "'**'^ payment beyond
£U, the plaintiff was entitled to a ver-
jict'for £14, the balance, less the
money paid into Court : {lb. See also
Frtemni. Cm//., 6 Dowl. P. C. 689.)
Bat where the declaration is general
isd the plea narrows it, stating the
demand to be in respect of a claim
which it shows to hawe been satisfied
god plaintiff contends that the plea is
frong in so narrowing the declara-
tion, he should new assign : (Roaert
T. Cmtanee, 1 Q. B. 77.) Thus, debt
in the common form for work and la-
bor. Particulars of demand for con-
tract work and extra work. Plea, that
plaintiff and defendant by consent gave
np a contract originally made between
them for work, plaintiff agreeing to
accept certain work which had been
done under the contract at a reduced
price; that by virtue of such agreement
defendant became indebted to plain-
tiff in the amount mentioned in the
declaration, and that defendant in pur-
tuanee of that agreement paid plaintiff
and he accepted the said amount. Re-
plication traversing the payment and
acceptance. Held that on these plead-
ings the plaintiff could not give evi-
dence of any demand not a subject of
the second agreement, and that to en-
able himself to recover for extra work,
be ought to have new assigned: (lb.)
In suon a case the particular! of de-
mand even if thew had been confined to
extra work could not aid the plea:
(lb.) It may be mentioned that
whenever plaintiff goes for a balance
of an account whether there be a plea
of payment, or credit be given to da-
fendant for a part in the declaration,
plaintiff must under the general isaae
Srove the whole account: (J'riet v.
leei, 11 M. & W. 676.)
(y) A defendant by calling for par-
tioularB before pleading may be so in-
formed as to make it impossible for him
to mistake the declaration, and thus
prevent in a great measure the neoei-
Bity for a new assignment. The office
of a new assignment is practically to
explain that which is left ambiguoui
on the face of the declaration owing to
its generalltv : ( West v. Nibb$, 4 C.B.
172.) Particulars of demand where
allowable have the same effect, thoush
they form no part of the record:
(Demptter ▼. rumell, 1 Dowl. N. S.
168.) The object of a bill of particu-
lars is to control the generality of the
declaration; but, as remarked by a
learned Judge, in nine cases out of ten
thew are applied for to entrap the
plaintiff within certain limits, and the
Court should be careful not to allow
plaintiffa to be tied up too tightly by
such means : {Rennie el al v. Bereeford
et al, Alderson, B., 8 D. & L. 468.)
There is a disUnction between the ex-
planation of a charge made in a bill of
particulars and the charge itself. For
instance, if in a bill by a surveyor for
services performed by him, matters
such as stationery, travelling expenses,
&c., were of themselves and by them-
selves the distinct subject of a charge ;
no doubt there ought to be particular!
given of each, but usually that is not
BO, nor is it necessary that it should
be so in a surveyor's bill, as such mat-
ter is mere explanation of the charge.
In such an action particulars claiming
certain aggregate sums in respect of
the survey stated, number of miles,
'^:
*t,
-JJtrs
.( •■
264
thv
THE COMMON I«AW PBOOZDURB ACT. [g. ©jj^ .
state that the Plaintiff prooeedis for tavLsea of action different
trarelllhigezpetiBes, printers* soooiints,
stationery acoonnts, &o., are sufBoient
partionlard withant speoiQring the
ninnber of fields snrreyed, the time
eniployecl, the number of persons en-
red, &o. : (/ft. ; see also Biggint v.
it et al. 15 M. & W. 76 ; Inmg t.
Baker, 16 L. J. Q. B. 822 ; BwUon t.
Brttehard, 4 D. & L. 117.) But In an
aotion on the indebitatus counts by a
broker toreooTer the amount of shares
purchased by him for defendant, and
commission on the same, the Court
obliged him to ftamish the dates of the
Snrohases ^thln the compass of a few
ays and the names of the parties flrom
whom he purchased : (Berkley t. Be
Vm, 4 D. & L. 97.) The chief object
of particulars is to give substantial
information to the defendant of plain-
tiff's demand, and in order to limit the
proof of the latter to the causes of ac-
ticn in the declaration mentioned.
The cases hare gone great lengths in
supporting particulars where they have
really varied from the evidence given
by plaintiff when the defendants could
not under the circumstances have been
misled. It is not for the Court to look
to the fact of the party having been
misled, but whether under the ordin-
ary circumstances in which a man
would view the case there might have
been an actual misleading. That de-
pends upon the wisdom of the party,
and there is no criterion unless the
Court adopt this — the whole circum-
stances being looked at, would a reason-
able man be deceived by the form of the
particulars ? The true criterion there-
fore is not whether the defendant has
been actually misled, but whether the
particulars are of such a nature that
a reasonable person would be misled
by them : {Law v. Thoihpeon et al. 4
B. & L. 64.) In pursuance of this
principle it has been frequently decid-
ed that a mistake in a bill of particu-
lars not calculated to deceive or mis-
lead the party to whom the bill is
given, will not be held to be material,
and will not be allowed as a valid ob-
jection at the trial ;
al : (Barney ■
ton, Sherwood, J., 6 O. S. 96.
an error in the date of
▼• Simp.
) Thug
* P'omig.
sory note as given in a bill of parUon
lars has been in one case held im^'
terial. (lb.) But in an action fo,"
work and labor the particulars of thl
plaintiff's demand stated the action to
be brought " to recover from the d^
fendants the sum of £450 claimed b»
the plaintiff for his service as clerk or
manager to the defendants from Octn!
ber, 1887, to October, 1839." T
order was made for further and bctto
particulars, when the plaintiff deH
vered the same with the addition of
the words "after the rate of £200 per
annum. " Held that plaintiff could not
give eridence of a claim for commis-
sion on the amount of business done
by defendants, through his introduo-
tion : {Law v. Thompson, uhi tupra )
So where plaintiff in his declaration
and particulars claimed damages for
certain articles deposited with the de-
fendant, which had not been returned!
and of which due care had not be^
taken. Under the former description
in his particulars he set out certain
articles of glass, which however turned
out to have been destroyed. Held that
under such particulars he was not en-
titled to recover damages in respect of
those articles : {Most v. Smith, 8 Dowl.
P. C. 537.) But under a bill of parti-
culars for work and labour, the Court
allowed plaintiff to give in evidence an
acknowledgment of a specific balance
due for work and labour; (Drum'
mond V. Bradley, Dra. Rep. 264.) The
usefulness of particulars as a preven-
titive of new assignments will be appa-
rent in actions of trespass particularly.
In this action it has been held that
defendant may obtain particulars of
plaintiff 's cause of action before decla-
ration: {Neville v. Barvey, T.T. 3 4
4 Vic. M.8 R. & H. Dig. "Particulars
of Demand," 8.) The Court will
always require some special ground for
an application for particulars where
none have been given by plaintiff:
' '%■
^.
m
FORM OF NEW ASSIGNMENT.
8.cxxxvi.]
from allthose which the plea profeeses to justify, or for an«^«*
cess over and above what all the defences set up in such
pleas justify, or both, (g)
265
canse of ao-
.juerwisein every case of trespass it
««nld be ft step in the cause to apply for
ntfticulars on the affidavit of defend-
ant who would never know what the
Sevsnces complained of were. There
oacht to be some special statement of
the property, and the Court should see
jome reasons fcr granting a rule :
(Horloek v. Lediard, Parke B. 2 Dowl.
\ 8. 277-) ^i^^ same rule has been
applied to special actions for breach
of contract: {Pyliey. Stephen, ^TioyiX.
F C. 771-) Before this Act it has
been held that a Court of common law
cannot compel a plaintiflF to give parti-
colars of matters vrhioh he does not
cltlffl in his declaration. Thus in an
action for the value of goods supplied
to a third party, on the false represen-
tation of the defendant, the Court
ironld not compel the plaintiff to give
a particular of goods supplied to, and
bills of exchange, &o., given by such
third party, such goods and bills not
being claimed by the terms of the de-
claration : {Luck et al, v. Handlty, 4
Ex. 486.)
U) A new as$<ignraent is in the na-
ture of a new declaration. In effect
the plaintiff says — *' I do not dispute
in this action t^e truth of your plea ;
mj declaration is for a cause of action
differing firom that which you have
answered," or he may say <• I dispute
the truth of your plea, but my declar-
ation is also for another cause of action
different from that which you have at-
tempted to answer" : {Orove v. With-
eri, Parke, B., 4 Ex. 881.) To do the
latter is to reply and new assign at the
same time. A trespass justified may
be so far divisible that plaintiff may
reply as to part and new assign as to
the residue. In trespass for break-
ing and entering plaintiff's dwelling
house, and staying and continuing
therein, making a noise and disturb-
ance for a long time, to wit, for four
days then next following and soiling
his goods, &o. Flea as to the break-
ing and entering the dwelling house,
and staying and continuing therein as
in the declaration mentioned, a justifi-
cation by the leave and license of the
plaintiff to take possession of certain
goods. Beplication traversing the
leave and license and new assigning
that the plaintiff issued his writ, &o.,
not only for the breaking and entering
the dwelling house and _taying and
continuing therein as in the plea men-
tioned, but also for that the defend-
ants, without the license of the plain-
tiff stayed and continued in the dwell-
ing house, making such noise and dis-
turbance, &c., for other and different
purposes than those in the pica men-
tioned, and for a much longer time, to
wit, three days longer than was neces-
sary for taking possession of the goods,
&c. Held that the replication and new
assignment were not bad for duplicity,
time being in the case of a continuing
trespass equally divisible for this pur-
pose as space: {Loweth y. Smith, 12 M.
& W. 582, also Worth v. Terrington,
13 M. & W. 781.) These cases are
exactly like the case of a trespass in
vatious parts of a close, where the de-
fendant justifies under a right of way
and plaintiff may traverse the existence
of such right and new assign trespasses
in another part of the close : ( Worth j.
Terrington, Parke B. ubi supra.) The
necessity for a new assignment will
frequently depend on the distributive
character of defendant's plea, as in the
case of Adams v. Andrews, 20 L. J. Q.
B. 83, and Glover y. Dixon, 9 Ex. 158,
which see, and as to distributive plead-
ings generally see s. exxi-. of this Act
and notes thereto. To a declaration
in trespass for breaking, &o., a shop,
rooms, and apartments of the plaintiff,
the defendant pleaded that he was
Sheriff, and as Sheriff had a writ of
fi. fa. against one H, and that by the
leave of the plaintiff the outer door
being open he entered the same shop
in the declaration mentioned (the same
"fWS:
..;3
!!!;
1
«
;-,, ^ .■
266
1
im
\^i'
THE COMMON LAW PKOOEDURB AOT. [g. oxuv"
c*»v«3LxI ^W ^«^of£.^^ CXXXVII. (a) No plea which has already been pleaded to
^/fti^''' ^-i^si". 88! the declaration shall be pleaded to such new assignment (K\
Pleas to new ezccpt a plea in denial (c) unless by leave of a Court or Judge
asdgDment.
(d) and such leave shall only be grounded upon satisfact
;ory
shop, rooms, and apartments in the de-
claration mentioned being one and the
same shop, and not different rooms and
apartments) to inquire, &o. The plain-
tiff replied de injuria, and new assigned
that the defendant broke, &o., "two
other rooms «nd apartments, to wit, a
room called," &c., being other rooms
in the declaration mentioned, besides
and different from and other than the
said shop in the said plea mentioned.
Held new assignment good : [Harvey
Y. Lankester, 7 D. & L. 82 ; see far-
ther Meriton v. Coombes, 19 L. J. C.P.
836.) In actions of trespass to land,
the locus in quo should be designated
by abuttals or other description, as it
was at the time of the trespasc and not
at the time uf the declaration. There-
fore where in an action by a reversion-
er the declaration described the loeua
in quo as "abutting on the south
and east on a close in the occupation -
and possession of the defendants,"
and the defendants, an English rail-
way company, pleaded that they took
part of said close abutting on the
south on the fence of their rail-
way under the provisions of the
Railway Act 8 & 9 Vic. cap. 20 ss. 82-
83, which was the trespass complained
of, and it appeared at the trial that at
the time the trespass was committed
the close in question abutted on the
fence of the railway, but that after-
wards the defendants took possession
of and purchased under the provisions
of the above act, a small part of it ad-
joining the railway, so that the plain-
tiff's description of it was correct at
the time of the declaration but not at
the time of the trespass. Held that
plaintiff could not recover for want of
a new assignment: {Humfrey v. the
London ^ N. W. R. Co., 7 Ex. 826.)
The effect of this section will be to
simplify the form and abridge the
length of new assignments. The ex-
amples Nos. 50, 51, 52, in Sch. B tn
this Act, had better be consulted Fn.
ther as to the subject of new assi»!"
meats see Tidd's N. Pr. 430 ; Ba^ pi"
141 ; Chit. Arch'd 8 Edn. 279 '^■"'
(a) Taken from Eng. Stat. 16 & u
Vic. cap. 76, s. 88.-Applied to Coto-
ty Courts.— Founded upon Ist ReiZf
C. L. Com'rs, s. 45. P""
(6) This is in accordance with the
principles of the preceding Bectlon-
(cxxxvi.) There it has been enacted
that plaintiff instead of new assignioi,
separately to each of several plej!
shall be allowed only one new assiim.
ment which must state generally that
plaintiff proceeds for causes of action
different from or beyond those m.
tified. Here it is enacted that de^
fendant shall not without leave plead
to the new assignment pleas pleaded
to the declaration. The come.
quence of these enactments will be
that ** if a defendant pleads one defence
only at first and plaintiff new assigns
the defendant may then plead his next
defence, and so on putting each de<
fence once and once only on the record •
but if the defendant plead all his de^
fences in the first instance, which is
the usual course, the plaintiff will new
assign once for all, and the defendant
will of necessity be driven to deny
the causes of action newly assigned
or pay money into Court or suffer
judgment by default : " (C. L. Comrs.)
(c) Pleas in bar are divided into
two classes — pleas by way of traverse
and pleas by way of confessioa and
avoidance: (Steph. PI. 62.) Traverse
is the more proper and ancient term.
In the modern language of pleading,
however, deny is often substituted for
it ; and *< pleas in denial " is a term
used instead of "picas by way of tra<
verse."
{d) See note m to s. xxxvli.
FORM or DEMURBEB.
267
^f (e) (hat the repetition of Buoh plea is essential to a trial
Jn the merits.
rXXXVni. (/) The form of a demurrer (^) shall be &B(App. Co. c.) <^^ sla^Z. ^
i](j^^ or to the like effect : (A) A.i862,g.89. '^ ^
« The Defendant, by his Attorney, (or Plaintiff, as the case „
y 5e,) (or in person, &c.,) says that the declaration (ormurrer.
plea, <fec.) is bad in substance." (i)
Id on the margin thereof some substantial matter of law in- ■ ,
tended to be argued shall be stated ; (^ ) and if any demurrer
shall be delivered without such statement, or with a frivolous
(i) See note q s. zzxv.
(/) Taken from Eng. Stat. 15 & 16
fio. cap. 76 s. 89— Applied to County
u) Demurrers for matters of form
ife by this Act abolished ; but demur-
rersfor m'tt&i of oubstance are re-
tjined and u; '* . ' ii i are intended by
thlsenactmcn' ^ /it lote o to s. xcix.)
The words " e.- • ^ ;u the cases herein
specifically provided for," used in the
corresponding section of the English
Act are not to be found it will be per-
ceived in our section. The meaning of
each an exception was a matter of
doubt to the coT>mentators on the Eng-
lish Act, andt'u: Legislature has done
wisely in omitting it.
(h) It is presumed that a demurrer
like any other pleading must be inti-
tledof the proper Court and ofthe day
and year when pleaded : (see s. ciii. of
this Act, and in connexion therewith
see Holland v. Tealdi, 8 Dowl. P. C.
820.)
(i) As to the distinction between
substance and form see notes o and p
tos. xcix
(j) The provision following is a
substantial re-enactment of Rule 14 E.
T. 6 Vic. which was taken from Eng.
B. G. 2 II. T. 4 Wm. IV. (2 Dowl. P.
C. 804), and which was held not to
apply to revenue cases : {Rex v. Wool-
itt, 2 C. M. & B. 256.) It was held
under that rule that a substantial com-
pliance with its terms was in all ordi-
nary cases necessary. A statement
that " the matters in the plea contain
no answer to the action," was held to
be insufficient: (Rosa v. Robeson, 8
Dowl. P. C. 779.) And per Parke B.
" the statement in the margin is merely
a repetition of (he general demurrer,
and would suit any other general de-
murrer to the plea just as well. Some
special ground ought to have been stat-
ed.'' It has also been held that if seve-
ral grounds be stated in the margin
it is not necessary for the party de-
murring to specify on which of those
grounds he intends to rely : ( Whitmore
V. Nicholla, 5 Dowl. P. C. 521.) And
per Williams, J. << It may be that there
are several grounds stated in the mar-
gin which cannot be sustained when
they come to be argued. But that
does not vitiate the other points, or
render this statement a nullity so as
to entitle plaintiff to set aside the de-
murrer as for want of a plea :" (lb.)
For examples of statements of several
grounds of demurrer see Smith y.Mon-
leith, 13 M. & W. 427 ; Jiozzi v. Stew-
art, 7 M. & G,746. If a party demur to
several pleas on the same grounds the
causes of demurrer to all after the first
are sufficiently stated by stating that
the plea, &c., is insufficient, '* for the
like causes and grounds of objection
which have been taken to the said (first
plea :" {Braham v. Watkina, 16 M.
W. 77.) The marginal notes are meant
for the information of the Court and
not of the parties : (Scott v. Chappelow.
4 M. & G. 836.)
""^■■55
'I'-.. : m
I-
••f-
■x . -■
"■* ■ ■
■ ■ (
i- i
i^'
■ x
268
THE COMMON LAW PROCEDURE ACT. [g. cxxxvii'
statement, (k) it may be set aside by the Court or a Judge (h
and leave may bo given to sign Judgment as for want of
(k) To decide when an ot^eotion is
frivolous, it will be necessary to bear
in mind that the main object of this
Act is to make form subservient to
matter. Demurrers have been held to
be frivolous in the oases following:
Ifeal V. Richardton, 2 Dowl. P. G. 89 ;
Curtit V. Ileadforty 6 Dowl. P. C. 496 ;
Underhill v. Humty, 8 Dowl.P.C. 495 ;
Chevers t. Parkington, 6 Dowl. P. G.
75 ; Knill v. Stoekdale, 8 Dowl. P. G.
772 ; Deriemer v. Fmna, 7 M. & W.
439; Pigeon v. Oibome, 9 Dowl. P. G.
511 ; Dalton v. Mclntyre, 1 Dowl.N.S.
76 ; Tw^ht V. Preacott, 2 Dowl. N. S.
4 ; Braithwaite v. Ifarriton, 7 Jur. 888°;
Skinner v. Lambert, 4 M. & G. 477.
The Gourt must obviously possess a
discretionary power to set aside frivol-
ous demurrers or pleadings, to preserve
its own records from abuse, the public
time from being wasted, to prevent the
useless accumulation of costs to the
prejudice of the client, and to the
advantage of those only who ought to
protect him from these evils, and to
the deiay, if not the perversion of
justice. But it is manifest that all
these evils will bo aggravated if the
exercise of a Judge's discretion is fre-
quently made the subject of an appeal
to the Gourt. When the Court clearly
sees an attempt to secure a triumph to
falsehood by means of a bad pleading
the possibility of a doubt being raised
in argument affords no reason for in-
terfering with the Judge's discretion :
(Lane v. Ridley, Denman, C.J. 10 Q.B.
481 ; Padwick v. Turner, 11 Q.B. 124.)
(I) The mode pointed out by this
section for taking advantage of an ir-
regular demurrer is the proper one to
be adopted. No objection that might
be taken advantage of in this mode can
be raised on the argument of the de-
murrer: {Lacey v. Umbers, 8 Dowl.
P. C. 732.) To entitle a party to set
aside a demurrer because of a frivol-
ous statement the objection taken isust
be clearly tenable. If there bo any
doubt as to the sufficiency of the av
jection, the Gourt will not interfel
{Tyndall v. Ulkahorne, 8 Dowl p no"
Under hill Y, Fuller, 3 Tyr. 829 • w„,i'
V. Ca«<y.5Dowl. P.C.592;'S:
y. Parkington, 6 Dowl. P. c. 75?/
frivolous demurrer is not m'Lt
an irregularity as an impJi
proceeding, which the Court ^
its discretion may set aside at an
time: (Cutis v. Surridge, Denmft?
C. J., 6 Q. B. 1023.) But rS
jection to the marginal notes or form
of demurrer should not be deferred m
after joinder in demurrer, at which
time it would be too late : (Norton »
Macintosh, 7 Dowl. P. C. 529.) A del
fective marginal note may be amended
on payment of costs : (Ross v. Roh,
ton, 8 Dowl. P. C. 779), and the case
postponed until the points of arm
ment are properly ttated: (Park»^
Riley, 8 M. & W. 230.) The rule I
set aside a demurrer as frivolous or for
any cause contemplated by this section
will it is apprehended be niii in the
first instance : (Kinnear v. Keem 3
Dowl. P.G. 154,) and in the case of a
fVivolous demurrer should be drawn an
«' on reading the pleadings :" (Howonh
V. Hubbersty, 8 Dowl. P. C. 455 ; Ba-
nieli v. Lewis, 1 Dowl. N. S. 542.) A
rule that the demurrer be set aside ag
irregular " unless cause be shown on
Thursday next" has been issued:
(Kinnrar v. Keene, ubi supra.) If the
demurrer be set aside all the pleadings
connected with it may also be set aside
at the same time. In one case a rule
was drawn up in the following fonn,
•' that the demurrer delivered herein
be set aside as irregular, and the
pleadingsconnected therewith bestruck
out. And that the defendant do pay
to the plaintiff, his attorney, or agent,
within four days after taxation all
costs of and occasioned by the said de-
murrer, including the coats of prepar-
ing for the trial of and attending to
try this cause, and of this application,
\^- m
(,CXtftf']
FROOEEDINOS WHSN AMENDMENT ALLOWED.
269
,^. (ra) and the form of a joi
joinder on demurrer shall be as
((The Plaintiff (or Defendant) says that the declaration (or ^ormotioin-
I ^0.) is good in substance." murrer.
CXXXIX. (o) Where an amendment of any pleading is C;</!P.cb.c.)e<r>T 52a^T^;
iwed (i>) °^ '^^^ notice to plead thereto shall be necessary, a.1862^s.9o!
ilo^
be taxed by one of the Masters.
And that the defendant do take short
otice of trial for the sittings after
^. and in default of payment of
Scosts within four days after tax-
ition as aforesaid, it is ordered that
the plaintiff be at liberty to sign judg-
Lt 88 for want of a plea : " (Tucker
nar««fey.l6M.&W.54.)
'/„] Flea &e., here means pleading,
J applies to any pleading by either
Mrtr- (Cutts T. Surridge, Denman,
JJ;9Vb.1016.)
/j) See note A, supra.)
(o) Taken from Eng. G. L. P. Act,
18o2, B. 90. — Applied to Oonnty
(n) Tlie application for amendment
gisy be either at the instance of the
pirty whose pleading is in fault or at
the instance of his opponent who
otkes objection : (see s. ei. and notes
thereto.) This section contemplates
laendments before entry of the record
for trial. Amendments at the trial may
he made under s. ocxci. of this Act.
Ag to amendment after issue joined,
see Warner v. Blaeklock, 10 Jur.
717. Except under very special cir-
camstances, a declaration may be
amended at any time : (Ticket j.
Jtman, Finl. G. L. P.A. 196.) It has
been considered where a declaration
was ordered to be amended in the
names of one of the parties that an
amendment of the original filed without
£Iing amended copy was sufficient:
(Hart et al v. Boyle, 6 0. S. 168.)
With respect to the terms of the
amendment it as a general rule is only
jast that the party whose pleading is
in fault should pay the costs really
occasioned by the correction of such
fault. Though this be the general
nle, there may be exceptions depend-
ent upon the circumstances of parti-
cular cases. The judge to whom ap-
plication is made is in this respect
clothed with ample authority. He may
either allow an amendment without
costs or upon payment of a certain
fixed sum as costs or upon payment
of costs to be taxed by the master.
The Gonrt will not reverse his exercise
of discretion though differing from him
on the merits of the particular case :
(Tomlineon v. Bollard, 4 Q. B. 642.)
The application to amend should be
in the first instance made to a judge
in Chambers. This is the most con-
venient and least expensive mode.
Where a defendant applied to the Gonrt
in the first instance, in a vexatious
and expensive manner and for an
amendment that might have been ob-
tained at Gbambers, the Gonrt ordered
his rule to be discharged with costs
unless he would consent to pay the
costs of the amendment: (Duke of
Bruntwiek v. Slotnan, 5 G. B. 218.)
Though a party obtain a rule or order
to amend he may decline to avail him-
self of it. And will not in such a
case be bound to pay the costs of
obtaining leave to amend : (Brown v.
Millington, 22 L. J. Ex. 188-; Field
V. Sawyer, 6 C. B. 71.) After a
general demurrer to a declaratien
and leave to plead on the usual
terms, the amount of the costs must
depend upon the course the defendant
elects to adopt as to demurring or
pleading over to the amended declara-
tion: {Metcalfy. Booth, 18 L. J. Q. B.
247.) A fatal variance having in the
course of a cause been discovered be-
tween the declaration and the evidence,
the plaintiff applied to the judge to
amend the declaration, and the follow-
ing order was made : " Upon hearing
^/y-
!§
.1!«".
i
r
V:'
i {
i,
<%*■>
270
THE COMMON LAW PROOEBURX ACT.
If
lime for
• •
, t
[s. cxxxix,
pie^iing to (2) ^^*' *^® opposite patty ehall be bound to plead to the
"feiSto"''*^ amended pleading within the time specified in the original n
tice to plead, (r) or within two days after amendment vhicli
ever shall last expire, (») unless otherwise ordered by the Court
or a Judge ; (f) and in case the pleading amended bad bee
pleaded to before such amendLient, and is not pleaded to J
novo within two days after amendment, or within such other
time as the Court or a Judge shall allow, (u) the pleading
6
counsel and by consent it is ordered
that the record be withdrawn, and that
the plaintiff do have leave to amend
the record:" Held that although the
order was silent as to costs, the plain-
tiff was liable to pay the costs of the
day : {^Skinner ▼. London and Brighton
R, Co.., 4 Ex. 885 ; see also Jaekaon
V. Carrington, 2 C. & K. 760.) Where
a plaintiff after notice of a trial (on
an issue of not guilty,) and shortly
before trial, had leave to amend on
payment of costs, and the declaration
as amended was re-delivered accord-
ing to the English practice, and a de-
murrer was then served, and after-
wards costs of the amendment had
been taxed, and the master allowed all
the costs of preparing for trial, which
included almost all the costs of the
cause ; and the plaintiff had obtained
another order to amend on payment of
costs upon both amendments, the Court
allowed the plaintiff to amend on pay-
ing the costs of the latter, and paying
into Court the costs of the former;
reserving the question of review of
taxation until it were seen whether, on
the pleadings to the declaration as
re-amended the costs of preparing for
trial would become thrown away ; and
if they were not — temble, that there
would be a review of taxation, and that
they would not be allowed as costs of
the first amendment : (AUeson y. The
Midland R. Co., Finl.C.L.P.A. p. 197.)
{q) Original notice given under ss.
cxi. cxii. of this Act.
(r) t. e. eight days from the service
of the original notice to plead, &c. It
has been held where a plaintiff took a
summons to amend, that defendant had
a right to presume that plaintiff would
follow it up, and that alter its return
it operated as a stay of proceediniw
for one day at least. Where the de-
fendant's time for pleading was out on
the day when the summons was return.
able, a judgment signed for want of j
plea on the morning of the next dav
was held irregular: (Hodgson -v. CalJ
8 Dowl. P. C. 818.) ^'
(») The meaning is, that if the time
for pleading pursuant to the origiiai
notice have expired before order for
amendment, or if the time though not
expired be within one day of expirine
in either case the party bound to plead
shall have two days after amendment,
the two days in either of these cases
being the time " last to expire." The
time allowed under the old practice in
such cases may be ascertained upon
reference to Fuller v. Hall, H. T 5
Vic. KS. R. & H. Dig. " Practice,"
I. 15 ; Commercial Bank v. Boulton
1 U. C. R. Cham. R. 15.
S!) The time to be allowed by the
ge may be less or more than that
prescribed by this section. The power
of the Judge in such a case is one in-
herent in the jurisdiction of the Courts.
As to the relative powers of Court and
Judge see note m to s. xxxvii.
^ (u) If a defendant obtain further
time to plea upon terms of pleading
issuably, and plaintiff afterwards and
before plea obtain leave to amend his
declaration, and do amend it so as ma-
terially to alter it the record is thereby
altered and defendant freed from his
obligation to plead issuably : (HuU tt
al. V. Oiles, 11 M. & W. 756; Barher
V. Olaedow, 5 Dowl. P. C. 134 ; Wooi-
,«1.]
SHORT rOBMS OF PLEADING.
271
ridnally pleaded thereto shall stand and be considered as .,
pleaded in answer to the amended pleading, (y)
And whereas it is desirable that examples should be given
cf tbe statements of the causes of action and of forms of
leading : («>) Bo it enacted as follows :
CXL. (x) The forms contained in the schedule (B) to ihw upp. oo. a) *~:^x s t^i ^
,t annexed shall be sufficient, and those and the like forms n86^;i9i: ^'^Jlf^'^'^
'.-%
Act
may be used with such mo''- xr as may be necessary to pi°™?ng in
meet the facts of the case, k.^,; bui ;thing herein conti. - » jf oif«^S
.^«
man t. Qohle, 6 Dowl. P. C. 871 ;
ChiliTtn V. Mamering, 8 Dowl. P. C.
120; Chapman t. Oile», 1 D. & L.
889.) Before this Act it was held that
if plaintiff «/<«»• plea pleaded was allow-
elto amend, defendant was not entitled
to plead de novo unless leave were given
him so to do by the order allowing the
amendment or unless the nature of the
amendment rendered pleading de
novo essential: (Collint v. Aaron, 5
Scott 695 ; Smith v. Heame, 1 D. & L.
992.) Where plaintiff applied to
amend his declaration, and the defend-
at the same time applied for one
month's further time to plead, which
he obtained by Judge's order, the
month was held to run from the time
when the declaration was amended:
IDaviet v. Stanley, 8 Dowl. P.O. 433.)
(v) This is perfectly in accordance
with the old practice : (see Flagff y.
Borsle}/, 2 Dowl. P. C. 107.) But there
is an obvious distinction in principle
between the case of a demurrer and a
plea; the former cannot stand with the
amended declaration, though the latter
may : (Smith v. Ileum, Alderson B. 12
M. & W. 715.^ In the case of a plea
after the ezpiratien of the two days
without a further plea, plaintiff may
join issue'to the plea filed, treating it
as pleaded to the amended declaration.
Where a declaration had been amended
upon application of defendant under s.
ci.,and plaintiff immediately afterwards
signed judgment as for want of a plea,
the judgment being contrary to the en-
actment here annotated, and for other
reasons not necessary to be here men-
tioned, was set aside without costs :
(Moherley v. Bainea, Chambers, Sept.
27, 1856, Burns, J., 2 U.C.L.J. 212.^
{w) It is important to note that the
forms given in the schedule are intend-
ed only as examples and not as binding
and invariable precedents. These forms
state in the fewest words all that is
necessary to show a cause of action or
ground of defence. They provide for
almost every case that usually oc-
curs in practice, but may of course b'b
modified to meet tbe special circum-
stances of any particular case: (see
Lorn y. Steel, 16 M. & W. 880; also
Padwick y. Turner, 11 Q. B. 124.)
When the Legislature or the Judges
draw up stated forms of pleading, par-
ties to suits ought to follow as far as
practicable the forms given: (see
Bailey et al. v. Sweeting, 12 M. & W.
616.) The Courts in England have
more than once been constrained to call
the attention of the profession to tiie
carelessness with which the forms
given by the English C. L. P. Acts are
followed : (see Wilkinson y. Sharland,
10 Ex. 724.)
(z) Taken from Eng. Stat. 15 & 16
Vic. cap. 76 s. 91. — Applied to County
Courts.
{y) Prolixity seems to have been
dreaded by the Legislature when
framing this enactment. Nothing con-
cise is bad if it indicate substance. No
deviation from the forms given shall
be injurious so long as the substance
is preserved : (Fagg v. Nudd, Camp-
bell C. J. 8 £1. & B. 650.) If the Act
had prescribed forms which were to be
7
.nil.*
I"
i
272
THE COMMON LAW PBOOSDUEE ACT.
[».«!.
{J "J^j^^sliall render it erroneous or irregular to depart from the letie
drat. of such forms, so long as the substance is expressed vithont
prolixity.
j^toement by "A.nd with respect to Judgment by default, and the mode of
«M»"«i «fc- ascertaining the amount to be recovered thereon j Be it enact.
ed as follows : (z)
followed in all oasea it might be that
any deviation from auoh forms would
hurt; but here the Legislature have
carefully provided that no deviation
from the forms shall be erroneous or
irregular, " so long as the substance
is expressed without prolixity" : (/o.
Wightman, J.) And yet it is right to
observe that inasmuch as the Act pves
forms, it is only proper though not
compulsory that such forms should be
observed. If the deviation be one of
aubstanoe the pleading in which it oc-
curs will certainly be bad. Thus a
declaration in an action for freight
Btatinff *' that defendants are indebted
to plaintiffs for freight" for the con-
veyance of goods, &o., has been held
bad for not following the form given
in the schedule which contains the
words " for money payable by defwid-
ant to plaintiffs," and for not showing
any debt in prcMmti : {Place v. Pottt
et4U. 8 Ex. 706, 20 L. & Eq. 606.)
The defect held to be demurrable in
this case is one that might be cured by
pleading over: (Wilkinsons. Shartand,
10 Ex. 724.) But a deviation not cal-
culated to mislead is clearly not de-
murrable or otherwise open to objec-
tion. Such has been held to be a
count for money found to be due from
defendant to plaintiff on an account
stated between them, though the words
« for money payable by defendant to
the plaintiff for" contained in the form
given in the Schedule were omitted :
TFagg V. JVtwW, 8 El. & B. 650, 26 L.
a Eq. 224.) This case proceeded
upon the supposition that the defend-
ant had as much information from the
form adopted as from the form in
the Act, and tiiat the omiseion to
state that "the money is payable"
was immaterial, because tiie law im-
plied as much from its being stated to
be due on an account stated. In other
words it was held that the allegation
of the money being due on an account
stated was equivalent to an alien.
tion of the money claimed being p^.
able, and consequently of a debt ii^
prattenti. Though the decision may
be sustainable as to an account ttaui
it does not follow that a count framed
for a money demand other than on an
account stated would be good nithoat
the words omitted in this case. On an
account stated the law raises a pro-
mise to pay on request, and no other
can be substituted or superadded:
(see Hopkine v. Logan, 5 M. & W.241*
Lattimare v. Oarrard, 1 Ei. 811 '
Roicorla v. Thotnas, 3 Q.B. 234 ; Kayt
V. Dutton, 7 M. & G. 807 ; Eldectony.
Emmena, 6 C.B. 174 ; Belcher y. Cook
4 U.C.R. 171.) There maybeadebtiil
praetenti with a lolvendum in futuro.
And consistently with the form used
in Faffff v. Nudd, if not on an ao
count stated, plaintiff might sue
for a debt not payable at the time
of the commencement of the suit.
In reference to this decision a learned
Judge in a more recent case remarked
that there ought to be no equivalent
for an allegation such as was there
omitted, for the Act expressly says
« these words money payable, &c.,
shall precede money counts" : (Alder-
son, B., in Wilkinson v. Sharland, 10
Ex. 724 ; of Uie same opinion wag
Parke, B. ) Though a pleading stating
in substance all that the forms to the
Act contain, may be good, yet it is
difficult to conceive how any pleading
can be framed that will in /ewer words
state what is necessary either to show
a cause of action or ground of defence.
(z) The enactments following are
founded upon Ist Report C. L. Gom'rg
s. 64, et acq. Their object is to batc
•:l
8.cxli.flxl"']
RULES TO COMPUTE ABOLISHED.
278
«
CXU. («) No rule or order to compute shall be uscdj (l^i^pp- ch. c^ c^x bZcr? /^
but this shall not invalidate any proceedings already taken or A?f85i.t.w.' ^ *'■ "^^^ ''■ ^
to be taken by reason of any rule or order to compute, madeordorto
or applied for before the commencement of this Act. q^nd!* **"
OXLII, (c) In actions where the Plaintiff seeks to recover (^n>- ok c) c'^,,^ 5 ^Tti (rv\
8 debt (<0 0' liquidated demand in money, (e) [the true cause Al^8&a,t.M! '^ ^ "^/^^
— . ^ ^7
expense by simplifying proceedings
consequent upon a judgment by de-
salt in actions where the cause of ac-
tion is » money demand. Of such ac-
tions is that of debt, in which judgment
bv default has before this Act been con-
gidered final, so as to entitle plaintiff to
issue bis execution without having re-
course to any intermediate or ulterior
Between this form of
tction and the actions of assumpsit
jn,< covenant when brought for the
recovery of a liquidated sum of money
there is no real difference. Whatever
tiie difference may have been it is les-
sened by this Act, which declares that
it shall be unnecessary in any writ of
sammons to state the form of action.
In each of these forms of action, in
which plaintiff seeks to recover a liqui-
dated sum of money, and in which a
reference to compute could formerly be
obtained, judgment by default is made
final. With respect to actions brought
for the recovery of unliquidated sums
of money in which often the amount
sought to be recovered is substantially
a matter of calculation, a new and
simple mode of procedure is also enact-
ed in the following sections.
(a) Taken from Eng. Stat. 16 & 16
Vic. cap. 76, s. 92. — Founded upon
Ist Report C. L. Com'rs, s. 65. — ^Ap-
plied to County Courts.
(i) Speaking of the practice which
prevailed before this Act and which is
remedied herein, the Commissioners
remaikedthat "ineveryform of action
except debt, an interlocutory judgment
only is signed, and the amount to
which plaintiff is entitled is ascertain-
ed by the verdict of a jury on a writ
of inquiry or by a rule to compute,
the latter of which is allowed only in
eertam cases of demands liquidated by
B
%
a written contract, and is in substance
an order of the Court that it be refer-
red to the master, to ascertain the
amount to be recovered by the final
judgment." Itwaa described by the
Commissioners as being **an expen-
sive proceeding, purely formal, involv-
ing affidavits, brieft to counsel and
other costs," and fVirther, as being
** useless and ii\}urious," and its abo-
lition was therefore recommended.
(e) Taken from Eng. Stat. 16 & IC
Vic. cap. 76, s. 93. — Applied to Coun-
ty Courts — The words in brackets are
not in the English Act
{d) Actions of debt within Stat. 8 &
9 Wm. III. cap. 11, arc not embraced
by this enactment : (s. oxlv.)
(») Tbis is an eztennon of the prac-
tice formerly applicable to actions of
debt only. Henceforward actions for
any liquidated demand, such, for ex-
ample, as covenant or assumpsit, when
brought for the recovery of a pecuni-
ary demand of a liquidated nature
will be governed by that practice. —
Questions must arise as to when the
amount sought to be recovered in an
action, ii or is not ** a debt or liqui-
dated demand in money." One thing
is dear that it must be such a demand
as can be computed and specifically
indorsed on the writ or mentioned in
the declaration. In this respect the
section is analagous to s. 17 of Eng.
Stat. 3 & 4 Wm. IV. cap. 42, which
empowers the Court or a Judge " in
any action depending in either of the
Superior Courts for any dchi or de-
mand in which the money sought to
be recovered and indorsed on lh« tetit
ofsummoui, shall not exceed £20," to
refer the cause for trial to the Sheriff:
(see note r to s. lii.^ Cases decided
under this Statute will greatly aid in
I M
1
•r-
274
THB COMMON LAW PROOIDUBE ACT.
[•• oxliii.
!'■
JwJpMn* and amount of which is stated in tho special indorsement o
fln»i«Bcor- the Writ of Summons (/) or in the declaration,] (^) Judment
by default shall be final, (h)
<^r^%U'> «nrO.L.P. ^X^"^- (*) ^" ''*'''**°' '"^ ^^'°^ *' ''^■" »PP«W to the
t^^ ^,^^^^ i^^''A.iM2,i.»4. Court or a Judge Q') that the amount of damages (Je) which
'tj /^,/ •monntof ought to (/) be recovered by the PlaintiflF is substantially.
SbSTWni- matter of calculation, (m) it shall not be necessary to
i< •
* id
m
the oonstruotion of the seotion here
annotated and may be oonveniently
noticed in this place. No oase is
within the statute unless the whole
debt or demand of the plaintiff is of
such a nature as might be indorsed on
the writ of summons: (Jaeguet y.Bour-
ro, 7 Dowl. P. C. 881 ; Matufitld y.
Brearey, 1 A. & E.347 ; Perry t. Pat-
ehett, 2 Dowl. P. C. 667 ; Laurence ▼.
Willeoekt, 8 Dowl. P. C. 681 ; Boffey
T. Shoebridge, 9 Dowl. P.C. 957 ; Uuttor^
T. Maeready, 2 D. & L. 6. See also
Goodman v. Pocoek, 19 L. J. Q. B.
410; Feteingty. Titdal, 6 D.& L.196.)
Actions for torta in which the damages
claimed must necessarily be unliqui-
dated are clearly not within the mean-
ing of the Act : ( Wataon v. Abbot, 2
Dowl. P. C. 216; Smith t. Brown, 2
M. & W. 861.) No claim that is pro-
perly and strictly for unliquidated da-
mages can be considered either a debt
or demand such as contemplated:
(CoUit T. Oroom, 1 Dowl. N. S. 496 ;
JAtmore t. Beadle, 1 Dowl. N. S. 666 ;
Jonet V. Thomas, 6 Jur. 462.) But a
claim ejutdem generis, with a debt, and
substantially of the same nature and
character, may be considered as fall-
ing within the scope of the statute :
i Price ▼. Morgan, 1 M. & W. 63 ; At-
tn T. Pink, 2 M. & W. 140.) Thus de-
tinue for example, in which the writ
is to reooyer the specific chattel or the
vtUue thereof, sounding rather of con-
tract than of tort. The sum at which
the chattel is yalued contined and lim-
ited to a specific amount may be in-
dorsed on the writ of summons:
(Walker y. Needham, 1 Dowl. N. S.
820 ; see also Legg y. Tucker, L. T. R.
146.) Cases under the English bank-
ruptcy acts as to proof of debts are
also in point : see 1 Eden, on Bank
rupt Law, 129 et seq. In addition to
the cases there noted reference mav
be made to the following •.—Tomin I
Field, 4 Q. B. 886 ; Irving y. uZnina
6C.B. 891 ; Earle y. Oliver, 2 Ex 7i
In re Willis, 4 Ex. 680 ; South Stafford.
shire R. Co. y. Burnside, 5 Ex 12Q.
/n r« J/aW, 2 Jur. N. 8. 1076. ' '
if) No such reference to writs spe-
cially indorsed as here made ia to be
found in t)ie corresponding Endish
enactment. Writs must he speoiallr
indorsed pursuant to s. xli. and can
only be so indorsed to be effectual in
cases where defendant is wltMn the
jurisdiction of the Courts
{g\ i. e. Under s. Ixi.
Ih) Actions in which judgment br
default is not final are in part provided
for by the next following section:
(cxliii.)
(i) Taken from Eng. Stai. 15 & 18
Vic. cap. 76 s. 94. —Founded upon 1st
Rep. C. L. Comis. s. 67. — Not applied
to County Courts; but as to tiiese
Courts there is a similar proTision-
(Co. C. P. A. 1866, 8. 14.)
(y ) Relatiye powers, see note m to
8. xxxyii.
(k) The section appears to extend
to cases of unliquidated as well as li-
quidated demands.
(I) Eng. Act reads ** sought" instead
of " ought to be," the words in this
Act. The words " ought to be recov-
ered " will bring in the consideration
as to the proper measure of damages
in each case : (see note^ to s. cxxii.)
The distinction between ours and the
English Act should be borne in mind
when reading decisions under the
latter.
(m) It is not possible to lay down a
DAMA0K8 WHEN A
MATTER OF CALCULATION.
276
(.cxliiiJ
the damages by a Jury, (n) but the Court or Judge niay^S^"^*;
.. w^N that the amount for whioh final Judginenl is to be^»j*^»»«"
■ ned (p) "^"^^ be asoertained — if the prooefidings be carried ■ " * "
in the principal Office at Toronto, by the Clerk of the Crown
1 pleas of the proper Court (tj) — or if the proceedings be
that it u
rtle that will satisfactorily gOTem
Soues as to when a demand sought
^..jubstantially a matter of caloula-
': » xhe word " substantially" has
been introduoed into the definition,
kleiaie it is intended that the enact-
fflent shall have a very extended appli-
eitioD. An action for damages for the
nonrepair of a house is put by the
Commissioners as an example of their
mecning. To such and "the like"
cases tlie Act is designed to apply.
IhO >3 '^ discretion that rests in the
Court or Judge, to refuse an applica-
tion under this section, where the
claim, though substantially a matter
ofcaloalation, is of an intricate nature,
isTolvingmore than mere computation:
(ue Cheltenham t. Ot. Wutem Union
R, Co., 2 Q.B. 281 ; see further Measin
tMatmene, 4 T. R. 498 ; Mauntell^.
Mamrene, 5 T.R. 87 ; NeUon v. Sher-
idan, 8 T. R. 895 ; DenUon t. Mair,
14 East. 622.)
In) Eng. Act reads " to issue a writ
of inquiry," instead of "to assess the
damages by a j ury." These being the
old modes of procedure, are, because
of their expense, in a great measure
superseded.
(o) The power to make the directions
here authorized must be invoked upon
s proper application supported by affi-
davit. In a case in Upper Canada de-
cided under this section the affidavit
read thus, "that this action is brought
to recover the sum of,&c., for goods sold
and delivered, and interest thereon :
that a writ of summons, copy of decla-
ration Ton common counts only), bill of
particulars, and notice to plead, have
been duly served at intervals : that
interlocutory judgment was signed on,
&o., for want of a plea: that the
amount claimed can be correctly ascer-
tained by a reference thereof to the
Judge of the County Court of the
County of Hastings," &c. : (Lewia v.
Jlamden, Chambers, Oct. 28, 1866,
Burns, J.) The order may be as fol-
lows, " I do order that the amount for
which final judgment is to be signed in
this action shall be asoertnined by,"
&o. The application may be made not-
withstanding the death of plaintiff after
the signing of interlocutory judgment :
(s. oxxxv, also 8 & 9 Wm. III. cap. 11
s. 6. 1 The reason that such is and
should be the law is well explained in
Berger v. Green, 1 M. & S. 229, "It
is perfectly clear that final judgment
may be signed notwithstanding the
death of the party, and that the (/ourt
will not set it aside on account of his
death before it was signed. This is an
application (computation) to inform
the Court for what damages judgment
might be signed, and if this prelimi-
nary step were not necessary, the party
might at once sign final judgment. If
then the Court would permit final
judgment to be signed, notwithstand-
ing the death of the party, they will
hardly on that account refuse this rule,
which is only a means of getting final
judgment" : (lb. per Le Blanc. J.)
(p) To entitle a party to proceed
under this section it must appear that
interlocutory judgment has been in
fact signed. The right of action being
thereby admitted the amount of dam-
ages sustained in consequence thereof
is the only thing to be ascertained. The
taking of the inquiry and entering final
judgment are only the conclusions and
necessary consequences of the interlo-
cutory judgment. The Court itself if
so pleased might insist upon entering
judgment, assess the damages and give,
final judgment thereupon : {Holdipp v.
Otway, 2 Wms. Saund. 107, note 2.)
{q) i. e. Of the Conrt in whioh the
"mm
:?3i
»«>■■•
v..
r*
•i.
'5«*
".1:1
k
i
j
i!
t .1
■' I
Sl»
THE COMMON LAW PROOEDUnC ACT.
[»• cxliii.
"lUlStS «»"'®<^ on ill the Deputy Clerk's Office in any County, then by
li?""'" *^® Judge of the County Court of auch County ; (r) and th
attendance of witnesses and the production of documenta
before such Clerk of the Crown or 'Judge of the Count
Court («) may be oompelled by pubpoona, in the samo manner
08 before a Jury upon a writ of inquiry j (/) and it shall b
lawful for such Clerk or Judge of the County Court (u) t^
appoint the day for hearing the case, and to adjourn the inquirv
from time to time, as occasion may require; (v) and such
Clerk of the Crown or Judge of the County Court Cw) shall
indorse upon the rule or order for referring the amount
of damages to him, the amount found by him, and shall
deliver the rule or order with such indorsement to the Plaiu.
tiff, (x) and such and the like proceedings may hereupon*
be had, as to taxation of costs, signing Judgment, and otherwise
as upon the finding of a Jury upon an assessment of damages, (u)
action has been instituted.
(r) In an action on a promissory
note, commenced in the office of a
Deputy Clerk of the Grown to which
there was no defence, and interlocutory
judgment had been signed before this
Act came into force, the matter was
referred to the Judge of the County,
in which the proceedings had been com-
menced: (Allan T. Skead, Chambers,
Oct. 2, 1856, Burns, J., 2 U. C. L. J.
218.)
(sj "Before such Master," in Eng-
: ish Act.
(t) The moment the Court has pro-
nounced interlocutory judgment it
may award a writ of inqury : (liutaen
v. Hayward, 6 B. & Aid. 762.) Con-
sequently there is nothing to hinder
an application for a reference under
this section being made on the day
when interlocutory judgment is signed.
It has been held that there cannot be
separate rules to compute against joint
defendants : {Field v. Pooley, 3 M. &
■Q. 765.) In such cases therefore,
there should be one reference only un-
der this Act. In some respects, par-
ticularly as regards the attendance of
witnesses or production of documents
the practice under this section vt[\\
resemble the practice aa to arbitra-
tions : (see note/ to s. Ixxxvii.)
(u) "For such Master," in English
Act.
(v) It ia apprehended that notice of
the inquiry must be served; (sees.
cxhi.) The practice governing the
County Judge or Clerk of the Crown
&c., acting under this section will aho
be found in many points to resemble
proceedings before arbitrators: (see
note e to s. Ixxxvii.)
(w) " Master " in English Act.
(x) This manifestly intends refer-
ences only upon application of plain-
tiffs after judgment, signed by default.
(y) In England there is a rule te
the effect that " on a reference to the
Master to ascertain the amount for
which final judgment is to be signed;
the Master's certificate shall be filed
when the judgmentis signed:" (No.lTl
H. T. 1858. ) It does not appear to lip
among our New Rules of Practice.
* "Tberenpon" intended.
U) ij/;
:''v
u oxHr.cxtv.] IMP. IT. 8 4 9 will. 111. CAP. U.
CXLIV. («) Id all actions where tbe PlaintiiT rocoveri a
inm of money, the anioant to which he is entitled may bo
awarded to him by the Judgment Roncrally, (a) without any
digtioction being therein made aa to whether such bum is recov-
tred by ^"7 °^ "' ^^^^ ^^ damages.
CXliV. ('>) Notwithstanding anything in this Act contained,
the provisions of a certain Act of the Parliament of Great
Brituin, passed in the Session held in the eighth and ninth
years of the Reign of King William the Third, (c) intituled,
ftf
lApp. Oh, C.)
Kng.O. L. P.
A.m2,i.0B.
Hum of mo-
liny r«C'>v«r-
ed to li«
gononUljr.
Cmyy. Hal ^
(App, O). C.)
KoK, 0. L. P.
A. 1H&2,I.06.
I'rovlilons of
a (vrtaln
Hrltlnh Aet
tn remala Id
forcn.
C«y^ SU2 l^vi
u) Token from Eng. Stat. 15 & 10
Vll cup. 70, B. 95.— Founded upon let
Report C. L. Com'ra, b. 08.— Applied
to County Courts.
(a) Tbeaubstanoe of this ennctmont
. J^ necessary consequence of the in-
tended »bolitioa of forms of actions.
The reasons for the alterationf arise
from the form of judgment in use be-
fore tiie Act, varying according to the
natore of the action. In the action of
debt the judgment waa that plaintiff
..do recover the debt" with damages,
/which were generally nominal) for tbe
detention of the debt and for costs
guperftdded. In other actions on
contract the judgment was for dam-
sses only. The distinction was more
technical than useful, and was open to
objection upon many grounds, several
of vbich bare been mentioned in the
Beport of the Commissioners.
(b) Taken from Eng. Stat. 15 & 10
Vic. cap. 7G, s. 90.— Founded upon let
fiep. C. L. Oomrs. s. 68.— Applied to
County Courts. This section, though
substantially the same as the English
enactment whence it is adopted, is not
by any means a copy.
(c) 8 s 9 Will. III. cap.ll, s. 8, which
is as follows, " That in all actions, Ac,
upon any bond or bonds or on any
penal sum for ron-performance of any
covenants or agreements in any inden-
ture, deed, or writing contained, the
plaintiff or plaintiffs may assign as
many breaches as he or they shall
think fit, and the jury, upon trial
of such action or actions shall and may
assess not only such damages and costs
of suit as haTShcretofo^ a been usually
done io such cases, but also damage'
for such of the said breaches so to be
assigned, as the plaintiff upon, the tri ^1
of the issues sha'd prove to have Y'^tn
broken, and that the like judgia«nt
shall be entered on such verdict
as heretofore hath been usually
done in such like actions; and if
judgment shall be given for the ^ 'ny'm-
tiff on A demurrer, or by oonfos -ion rr
nikit dieit, the plaintiff upon tiie roll
may suggest as many breaches of the
covenants and agreements as he shall
think fit, upon which shall issue a
writ to the Sheriff of that County
where the action shall be brorn;ht, to
summon a jury to appear before the
Justice or Justices of assize or Nut
Priut of that County, to enquire of tbe
truth of every one of those breaches,
and to assess the damages that the
plaintiff shall have sustained thereby,
in which writ it shall be command-
ed to the said .; thloes or Justice of
assise or Niti i\ ; v , that he or they
shall make a return thereof to the
Court from whence the same shall
issue at the t)mein such writ mention-
ed; and in case the defendant or de-
fenduuid after such judgment entred
and before any execution executed,
shall pay unto the Court where the
action shall be brought, to the use of
the plaintiff or plaintiffs, or his or their
executors or administrntors, such da-
mages so to be assessed by reason of
all or any of the breaches of such co-
venants, together with the costs of suit,
a stay of execution of the said judg-
S5
i»b*
i
; •
I
i il
li
>i r
. i^l
M
'>■ ',
278 THE COMMON LAW PROCEDURE ACT. fs. Cllr
An Act for the better preventing frivolow and vexatious suit
,, . *^ *° *^® assignment or suggestion of breaches, or as to Jud '
mfent, shall continue in force in Upper Canada.
Kng. 0. L. V. And with respect to notice of trial (d ) or of assessment of
A.1852,8.97. j^Pjj^ggg^ and countermand thereof; Be it enacted as followg.
ment shall be entred upon record, or
if by reason of any execution executed,
the plaintiff or plaintiffs, or his or their
executors or administrators, shall be
fully paid and satisfied all such dam-
ages so to be assessed, together vith
his or their costs of suit, and all rea-
sonable charges and expenses for exe-
cuting the said execution, the body,
lands, or goods of the defendant, shall
be thereupon forthwith discharged
trom the said execution, irhich shall
likewise be entred upon record ; but
notwithstanding in each case such
judgment shall remain, continue, and
be as a further security to answer to
the plaintiff or plaintiffs, and his or
their executors or administrators, such
damages as shall or may be sustained
for further brpach of any covenant or
covenants in tae same indenture, deed,
or writing contained, upon which the
plaintiff or p laintiffs may have a tcire
faetM upon tLe said judgment against
the defendan', or against his heir,
terre tenants, or his executors or ad-
ministrators suggesting other breaches
of the said covenants or agreements,
and to summon rim or them respec-
tively to show cause why execution
shall not be had or awarded upon the
said judgment, upon which there shall
be the like proceeding as was in the
action of debt upon the said bond or
obligation for assessing of damages upon
trial of issues joined upon such breaches
or inquiry thertof upon a writ to be
awarded in manner as aforesaid,
and that upon payment or satisfaction
in manner as aforcbaid, of such future
damages, costs and charges, as afore-
said, all further proceedings on said
judgment are again to be stayed, and
so totiei quoties, and the defendant his
body, lands or goods, shall be dis-
charged out of execution as aforesaid."
This statute is highly remedial &nrf
calculaced to advance justice and i«
give relief to plaintiffs, up to the ex
tent of the damages autlained and Z
protect defendants from the payment of
more than is justly due : (Murrav I
Stair, Best, J., 2 B & C. 94.) Ittem
pers the rigor of the common law which
held that in debt on bond the iudj
ment for plaintiff should be the amount
of the penalty contained in the bond
no matter how small the damage bus!
tained in consequence of a breach
however trivial. The statute has been
held to be restricted to actions of debt
the reason being that in covenant and
assumpsit there is no penalty that can
stand as a continuing security for fQ.
ture breaches, but only a breach of an
agreement for which adequate dam-
ages have been awarded: (1 Wms
Saunder's 6 8, notes b, c, d; Lowe y
Peers, 4 Burr. 2226.) A bond con^
ditioned for the payment of a sum cer-
tain is not within the statute, for in
order to ascertain the precise sum due
in such a case, computation only is
necessary, and the intervention of a
jury is unnecessary : {Murray y.Statr
Abbot, C. J., ubi supra.) Bail bonds
are not within the statute : (Moody t
Pheasant, 2 B. & B. 446.) Plaintiffi
are obliged in all cases within the sta-
tute to proceed under it : ( Dragg y.
Brand, 2 Wils. 377 ; Ilardt/ v. Bern,
6 T. R. 636; Roles v. Jioswell, li
638.) For a review of the caacs de
cided under it, see Foster's Scire Fa-
ias, 31 -et seq,
(d) It is, very proper the Court
should see that a written notice of
trial is served giving such information
as would satisfy any reasonable perAn
that it was intended to be acted upon;
{Fenn v. Green, Campbell, C. J. 27 L,
T. B. 170), and that some period
ii^,"*^ I
f. cxlvi.]
NOTICE OF TBIAL, ETC.
279
i; '
CXLVI. (e) Eight days' (/) notice of trial or of assess- Nouceof u m ]q^ J^
Aould be fixed as constituting area-
onable notice, instead of leaving the
raasonableness or unreasonableness of
It to be determined by the oircum-
rtance of eacli particular case. These
JriDciples have been at all times re-
Lnixed and acted upon ; but in Eng-
land the periods fixed for the diflferent
notices of trial, &o., have been various.
The necessity for the enactment here
annotated was not so great in Upper
Canada as in England, where there
were at least four different periods for
four different liinds of notices. The
natural consequence of such a variety
in a mat t so simple was to produce
confusion. To remedy this state of
things a uniform form period is fixed
,y this Act " for all cases."
It) Talcen from Eng. Stat. 15 & 16
Vic. cap. 76 s. 97. — Founded upon 1st
Rep. C. L. Comrs. s. 70. — Not applied
to County Courts.
(/) The period which before this
Act obtained in Upper Canada was six
days. In England it is now ten days.
In Upper Canada it is now eight days.
The intention of the enactment ^s re-
gards time is that no notice for a less
period than eight days shall be good.
There is no settled form of notice
made necessary. It will be sufficient
if it apprise defendant with certainty
that plaintiff means to proceed to trial
and dearly inform him when and where
the trial is to take place: (Oinger v.
Pycroft, 5 D. & L. 554 ; Cory et al.
T. Hotion, 1 L. M. & P. 28.) The
terms of the notice will at the hands of
the Courts receive a common sense
construction. The Courts will not give
way to captious objections or stupid
mistalces in favour of a defendant,
who either pretends to misunderstand
or will not understand what any
reasonable man might understand
from the words of the notice served
upon him. In a recent case very strong
langunge was used in reference to the
conduct of a defendant who so con-
ducted himself.— Coleridge, J. "As to
the affidavit that the defendant be-
lieved the notice of trial was intended
for Easter Term, 1867, 1 say I not only
disbelieve \t but I think it one of the
most infamous falsehoods ever pre-
sented to a Court :" {Fenn v. Oreai,
27 L. T. B. 170 ) Since this case that
of Bmthall v. Weat, 1 D. & L. 690,
would seem to be of doubtful authority
if not overruled. If from the misread-
ing of the notice or from any similar
cause there be gross and palpable ne-
gligence on the part of the attorney or
his clerk the Court will not, it seems,
interfere, but leave defendant to his
remedy by action : {Nash v. Smnbumet
1 Dowl. N. S 190.) The notice though
irregular, if not calculated to mislead,
may be Wiuved if defendant lie by
without taking objection : {Bell y.
Graham, 2 U. C. R. 87.) Thus a no-
tice naming Friday, 19th May, instead
of Friday, 18th May, though irregular,
cannot avail defendant unlesss he be/ore
the trial give notice of objection to
plaintiff 's attorney : {Gordon \. Cleg-
horn, 7 U. C. R. 171.) But the mere
retaining of the irregular notice is not
itself a waiver of irregularity, as de-
fendant is not bound to return it: {Dig-
nam v. Mostyn, 6 Dowl.P.C.647, named
Dignam v. Ibbetson, 8 M. & W. 431 ;
Wood V. Harding, 8 C. B. 968.) The
waiver consists of the retention and
failure to take objection within proper
time : {Brown v. Wildmore, 1 M. & G.
276 ; Yonge v. IHther, 4 M. & G. 814;
Bell V. Graham et al, 2 U. C. R. 87 ;
Senior v. MeEwen et al, 2 U. C. R. 95.)
Defendant by his conduct, such as ap-
pearing at the trial of the cause or ap-
plying to strike it out of the causelist
may be taken to have waived irregu-
larities in the notice : {Doe d. An-
Irobtia V. Jepson, 8 B. & Ad. 402:
Younge v. Fisher, 2 Dowl. N. S. 637.)
But it has been held that a notice of
trial in an action against two defend-
ants served with the name of one only
therein was a nullity: {Doe Bead y.
Paterson et al, 1 U. C. Prac. R. 45,)
and therefore could not be waived:
{lb. ) An ordinary notice may be in this
form: —
Title of Court and Cause. — Take no-
'^£'0/
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i-t
( .
s
280 THE COMMON LAW PBOOEDUBE ACT. Tg ^^ .
trial or h- meot {g) sball be given, (K) and shall be sufficient in
all
tice of trial {or of a»»eaammt) in this
cause for the next assizes to be holden
at in for the County of
(or United Counties of—— ) on, &c.
{g) Notice qf trial or of otseaament.
A notice of trial aerTed instead of a
notice of assessment has been held a
fatal objection to an assessment of da-
mages which was in consequence with
all subsequent proceedings, set aside :
iBiUinga et al T. Raid, 6 0. S. 78.)
But where there were issues in fact
and in law, a notice of trial only has
been held sufficient to enable plaintiff
to assess contingent damages : {Davia
T. Davia, M. T. 6 Wm. IV. M.S. R. &
H. Dig. " Notice of Trial," 7.) And
where the notice was to try the issues
and assess damages, and there were in
fact no issues on the record to be tried,
tiie notice as to the assessment was
considered regular: {Gamble et al. y.
Beea, 7 U. C R. 406.)
(A) Given, i. e. dolirered. It is not
sufficient to leaye the notice at an at-
torney's office. It must be shown that
it was left with some person in the
office and doing business there :
(Brewer r. Bacon, 5 0. S. 843.) There-
lore service on a housekeeper of the
office is insufficient: {Peddie ▼. Pratt,
6 M. & Q. 950.) In such cases no no-
tice of an intention to move against the
yerdict is required. The Terdict may
be set aside without an affidavit of
merits : (Consumera GaaCo. t. Kiaaock,
6 U. C. R. 542. ) Service on defendant
himself if be have an attorney is irre-
gular : {Ferrie v. Tannahill, Dra. Rep.
840.) Notice if regularly served on
the attorney will b. good, though the
attorney die before the trial, and par-
ticularly if plaintiff have no knowledge
of his death : [Aahley v. Brown, 1 L.
M. & P. 451.) Where notice of as-
sessment had been sent to the Sheriff
for service and was returned by him to
the plaintiff's attorney with the follow-
ing indorsement, " Received a copy of
the within for defendant," signed by
" E. & Q " attorneys, in the hand-
writing of G. And for the plaintiff it
was shown that £. & G. were con-
seN
stantly in the habit of acoeptinn -«^
vices for defendant, but G. stated S
he only consented at the bailiff's T
quest to hand such notice to defenS"
ant as soon as he should see him »nil
that the indorsement was inteuded nS
as an acceptance of service but «.
showing a willingness to hand the nn!
tice to defendant ; but there was n •
ther a denial that E. & G. werein 7.^
habit of accepting services for defend
ant nor an assertion that G. told th
bailiff what he intended by the receint
indorsed. Held a sufficient senlce-
IRutledge v. Thompaon, lU. C VtL
R. 276.) If defendant do not defend
by attorney notice must be served on
him personally. Even a request bv
him ibftt the notice should be putundtt
his door has been held to be no substi-
tute for personal service : (Pru ,
Mann, 1 Dowl. P. C. 419.) 8er*ic,
by taking the notice to defendant's
house and throwing it over his fence
into his yard telling his son who
was present that it was a notice of as-
sessment for his father, and where the
son refused to have anything to do with
it, and where the father, who
absent f^om home, knew
about it until after the assizes, has
been held to be clearly insuflBoient:
iMcGuire v. Benjamin, 1 U. C. Cham
I. 142.) A notice of trial when aU
lowed to be fixed up in the office of
a deputy Clerk of the Crown, can only
be fixed up in the office of the Count;
in which the action is brought : (Chatt
y. Gilmour, 6 U. C. R. 604.) Notice
can only be fixed up in the principal of-
fice at Toronto when defendant's atto^
ney residing in Toronto has neglected
to make an entry of his name and
place of business, as directed by N. R.
186, or if residing out of Toronto, has
neglected to appoint and enter the
name and place of business of his
agent in Toronto as directed by N. R.
1 37. These rules may be held to apply
to the case of an attorney being defen-
dant in person : see Bank of Vpptr
Canada v. Robinson, 7 U. C. R. 478.
In practice when plaintiff's replication
was
NOTICE OF TRIAL, ETC.
g.cxlvi.]
J (^i) whether at Bar or at Nisi Prius. (J)
281
lefliment.
others pleading is in denial of de-
f dant's pleading, the notice of trial
V be served at the same time as the
Scation and without waiting for the
Sder (N. B. 86.) A managing clerk
• jn office has power to bind his
Inoioal by accepting a notice of trial
of an earlier date than it was actu-
St delivered, and it will be binding
non all parties unless the principal
'P , ■ . . repudiate the acceptance and
•i*;-. notice thereof to the opposite
Gv (On V. Slabback, T. T. 3 & 4
Uks. B. & H. Dig. " Notice of
Triil " 16-)
li) It does not seem that this enact-
nent is intended to apply to trials
by record, where the party giving the
noUce is the party to produce the re-
eord. There is no analogy between
notice of trial in ordinary case- where
issues iu fact are to be tried the ob-
ject is to give defendant time to pre-
ntre for bis defence, and a trial by
^ord when the defendant has nothing
for which to prepare. And therefore
two days' notice of trial by record has
been held to be sufficient: (Hopkin
T./)a^«7e«, IL. M.&P. 641.) But a
notice on Saturday for Monday has
|)««D held insufficient, as the days con-
templatedare business days : {McOuire
T. Kineaird, 21 L. J. Ex. 264.) N. B.
35 which is as follows, appears to
set the doubts at rest. " On a repli-
cation or other pleading denying the
existence of a record pleaded by the
defendant, a rule for the defendant to
produce the record shall not be neces-
sary or used, and instead thereof a
four days' notice shall be substituted,
requiring the defendant to produce the
record ; otherwise judgment." Though
a case be made a remanet a fresti no-
tice of trial appears to be necessary ;
(Gains v. Bilton, 4 Bing. 414) ; and so
if a certain day be fixed by the Court
for the trial of the cause and it does
not take place on that day : {Ellu v.
Tnuler, 2 W. B1.798;) unless perhaps
when posponed or continued : Sed qu.
See Burgm v. Moyle, 2 Chit. B. 220 ;
Forbes r. Crow, 1 M. & W. 465 ; Wy-
att T. Stocken, 6 A. & E. 808. Where
plaintiff's proceedings after notice
were stayed by an injunction obtained
by defendant, held that so long as it
remained in force the proceedings
were stayed, but that when it was dis-
solved the parties were in ttatu quo,
and plaintiffs at liberty to proceed in
the action without a fresh notice:
(Stockton 3^ Darlington R. Co. v. Fox,
6 Ex. 127.) A frebh notice has been
held necessary though plaintiff have
entered into a peremptory undertaking
because notwithstanding the undertak-
ing he may decline to try the cause :
(Monk v. Wade, 8 T. B. 246 note;
SuLhx. Cranbrook, 1 Dowl.P.C.148.)
(J) Anciently all causes prosecuted
in Court were tried at the bar of that
Court. In process of time this prac-
tice was found to be highly inconveni-
ent both to the Court and to suitors.
To the Court because of the pressure
of business ; and to suitors because of
the necessity of travelling from all
parts with witnesses to the place where
the Court was held then in one fixed
place. Hence a new practice was ori-
ginated, which was to continue the suit
from term to term provided the Jus-
tices in Eyre did not first oome to the
County where the cause of action
arose, and who upon their arrival had
power to try the cause, and relieve the
Court in banc. — administering justice
as it were at every man's door. When
Justices in Eyre were superseded by
Justices in Apsize a power was con-
ferred upon the latter by their JVut
Priu» commissions to try all causes.
From thnt time the frequency of trials
at bar began to decline, and at pre-
sent they can only be had in cases of
great difficulty and importance. It is
discretionary with the Court to grant
or refuse a trial at bar. If granted, a
special jury must be summoned for the
occasion ; and notice of trial must be
given to the Clerk of the Crown and
Pleas of the Court before giving notice
to the opposite party : (N. B. 87.)
SI
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282 • THE COMMON LAW PAOOEDURE ACT. N. cxh"
^!m,i'M: OXLVII. (k) A oountermaDd of notice of trial or assess-
Counter ™®°' (0 stall bo givon (m) four days before the time men.
mand of no-tioned ia the notice of trial or assessment, (n) unless short
notice has been given, (o) and tben two days before the time
mentioned in the notice, (p) unless otherwise ordered by the
Court or a Judge, or by consent.
(k) Taken Arom Eng. Stat. 16 & 16
Vio. cap. 76 s. 98. — Founded upon lat
Rep. C. L. Comrs. s. 70. — Not applied
to County Courts.
(l) Semble, a notice of trial or of
assessment may be countermanded,
tliough a rule to set aside tlie notice
has been obtained witli a stay of pro-
ceedings : {Mullina et al. v. Ford, 4 D.
& L. 765.) Tlie countermand may be
in this form — Take notice that I do
hereby countermand the notice of trial
given in this cause.
(m) Oivm. See note h to preceding
section (ozlvi.)
(n) It is necessary to observe the
peculiar wording of this enactment.
The countermand '* shall be given four
days before the time mentioned m the
notice of trial or aieeasment" It fol-
lows that if the cause, be entered
and made a remanet, there cannot be
any countermand of notice: (Tcm-
pantf V. Riffbu, 10 Ez.476, 28 L. k £q.
488.)
(o) The expression, short notice of
trial or short notice of assessment,
shall be in all cases taken to mean
four days' notice: (N. R. 84.) A de-
fendant who obtains time to plead on
the " usual terms," is bound to accept
short notice of trial: (Senior ▼. ife-
JEwen et al, 2 U. G. R. 95.) The con-
ditions, however, are in general ex-
pressly stated in the rule. If the rule
be on condition of " taking short notice
of trial," defendant will not be there-
under obliged to take short notice of
assessment : ( Wright v. MePheraon, 8
U. C. R. 145 ; see also Stephena v Pell,
Dowl. P. C. 855.) It is therefore
prudent for plaintiff to see these fur-
ther words added, " or of aaaeaament
of damagea in eaae aueh notice ahall
be neeeaaary: {Wright v. McPherm
ubi aupra. ) The words " short notice
&o., if neeeaaary," deserve attention'
Where these words are used, defend'
ant is not bound to take short notice
if not necessary, or if plaintiff has
needlessly delayed giving the notice-
iNicholl V. Forahall, 16 L.J.Q.B. 203 •
>ake V. Piekford, 15 M. & W. 607 !
Dignam v. Ibbotaon, 8 M. & W. 43i {
And yet in a case where the plaintiff
took five days to join issue and tiien
gave short notice of trial, it was held
sufficient: (Flowera v. Welch, 9 Ej
273.) So the words when used
"short notice, &c., if necessary,/,^
the next aaaizea at," &c., which res-
trict defendant only as to a particu-
lar assize. If plaintiff neglect to go to
trial at that assize, defendant becomes
entitled to the usual notice for any
subsequent assize : {Slatter v. Pointer
8 M. & W. 672 ; Dignam v. Moityn, 6
Dowl. P. G. 647 ; see also Abbot t
Abbot, 7 Taunt.452 ; White v. Clarke
8 Dowl. P.C. 780; Lewia v. Utnr^,
4 Jur. 579 ) Plaintiff can easily avoid
the effect of such a restriction, by hav-
ing added to the former words the fol-
lowing, " or at any future assize." If
a party avail himself of the terms of a
short notice of trial, he cannot after-
wards countermand it: (Doncatterr.
Cardwell, 2 M. & W. 890.)
(p) Before this Act, it was held that
in computing the time for short notice
of trial the first day was exclusive and
the last inclusive : (Lovev.ArmourX
T. 8 & 4 Vic. MS. R. & H. Dig. "No-
tice of Trial," 6.) Two days' notice of
countermand are declared to be suffi-
cient, but it is presumed that these
days must be business days, and that
a notice on Saturday tor Monday
would be insufficient : {Jioae v. Mac-
RULE rOB OOSTS OF THK DAT.
288
,,cxlvm.]
CXLVIII. (r) A rule for costs of the day for not proceed- (^RP- *• ^•) u.q.<pj, J^'
^gr, 1 D. & L. 583.) The notice of
fZtermand, like tlie original notice,
08t be served on the defendant's at-
f-iey wh*"* ^® ^^^ appeared by at-
^ev and not r u himself personally :
IZrgemny. Bush, 9 L. J. Ex. 72.)
Wr) Taken from Eng. Stat. 16 & 16
ViS cap. 76, 8. 99.— Applied to Conn-
♦•Conrts. Costs of the day are in
effect the same as those paid on the
•ithdrawal of ft record: (Walker t.
Zit, 8 Dowl. P. C. 604.) The rule
/jfthem in Upper Canada was per-
emptory
and absolute in the first in-
stance: {Chitholm y. Simpson, Dra.
"ep. 2;) but in England the practice
ia this respect differed in the several
Q^^jfg :^Queen's Bench, {Alderley v.
ilvrty, 2 Dowl. N. 8. 836,) Common
Pleas \RuistU v. Hill, 6 J ur. 106,) and
Exchequer: {Scott v. Manhall, 2 C.
tj, 60.) However, in all the Courts
to obtain the rule a motion in Court
by counsel was necessary. It might
be made at any time while the cause
^ ID existence, that is, before exe-
cution executed, though several terms
liter default made by plaintiff: IRedit
r.Lueock, 2 C & M. 837,) and not-
^thstanding the lapse of four terms
vithout a step in the cause might be
nade without a term's notice : {French
T. Burton, 2 C. & J. 634.) The ob-
ject of the section under consideration
is to save the expense of a motion in
Court. The rule may now be obtain-
ed as of course without a motion in
Court and as to the time within which
it can be obtained the practice is the
BSDie as before the act. The rule be-
ing absolute in the first instance, the
opposite party is not bound to show
cause, though a notice of motion be
served upon him. His course is after-
wards to move to discharge the rule :
{SUman et al v. The Governor and
Company of the Copper Miners of Eng-
land, 6 b. & L. 451.) It is to be un-
derstood that defendant has an election
either to proceed under this section for
costs of the day by attachment in
case of non-payment or under s. cli.,
and sign judgment for thorn. Should he
proceed under the latter and plaintiff
obtain an extension of time defendant
may insist upon an undertaking that
plaintiff will pay the costs of the day :
{Doe d. Humphrey v. Owen, 1 M. & W.
822.) And notwithstanding what is
laid down in text books to the con-
trary, it has been held that a rule for
costs of the day might be granted
although a rule for judgment as in
case of non-suit had been previously
discharged: {Thomas v. Williams, 4
B. & C. 260.)
The following is the rule made use of
in our Court of Queen's Bench — " Upon
reading the affidavit of, &c., it is or-
dered that the attorneys of both parties
shall attend the Master, and he shall
examine the matter and tax the de-
fendant's costs, for that the plaintiff
hath not proceeded to trial pursuant to
his notice, which costs when taxed
shall be paid by the plaintiff if it shall '
appear to the Master that costs ought
to be paid." The rule will not be
granted with a stay of proceedings :
{Eager v. Cuthill, 8 M. & W. 60 ; Gibbs
V. Goles, 7 Dowl. P. C. 325 ; Friden v.
Bray, 9 Dowl. P. C. 329.) The de-
fendant's remedy is by attachment.
And notwithstanding several defaults
made by plaintiff, the Courts have re-
fused to make the payment of costs a
cotdition precedent to further pro-
ceedings: {Shoreditcke y. Gilbardetal,
8 Dowl. P.C. 296.)
The rule in use, it will be noticed,
leaves it discretionary to tax the costs
" if it shall appear to the Master that
costs ought to be paid," which seems
equivalent to the common expression,
♦ • costs of the day, if any. " If the record
has not been entered for trial or assess-
ment on the day for which notice was
given defendant, showing this, estab-
lishes a prima facie right to the costs :
{O'Neill V. Barnhart, 5 O. S. 453.)
There may be a sufficient excuse for
not having proceeded to trial, but it
is for plaintiff to show that excuse
when monng to discharge the rule :
{lb.) And it has been held although
plaintiff offered to enter the record
""**8
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284 THE COMMON LAW PROCEDURE ACT. Tg^ ^ji ...
A!'fwi,i:99:»'»g'o*"alo'^'«3«^'"e"*P'i"i»a°**o notice, or not counter.
after the commission day of the assize
to which defendiint objected, yet that
the latter was entitled to coats of the
day: (lb.) A proposal to refer made
after t^e commission day of the assizes
is clearly no sufficient excuse for not
having proceeded pursuant to notice :
(Eiton V. Skuekbargh, 2 Dowl. P. C.
624.) And where the cause was with
consent of defendant encored after the
oommission day, although no notice of
trial had been given, defendant was
considered entitled to his costs:
(Doe d. Tenbrook v. Cole, H. T. 5 Vic.
MS. R. & H. Dig. "Costs," II. 6.)
But whore plaintiff having given notice
did not enter his record in time and de-
fendant agreed to go to trial if he were
i-eaiy, and after having detained the
plaintiff 's witnesses more than a week,
at last determined not to go to trial,
he was refused costs: (Crawford v.
• CobbUdike, M. T. 6 Wm. IV. MS., lb.
"Costs," II. 3.) Where a cause not
ready in its turn was pat to the foot of
the docket with the consent of defend-
ant and not afterwards tried, costs
were refused : (^Bank of Upper Canada
V. Covert et al., lb. "Costs" II. 6.)
Costs were allowed to a defendant who
by agieement with plaintiff accepted
short notice of trial, where the latter
did not proceed pursuant to his notice :
(Harris v. Hawkins, 3 0. S. 142.) So
where p'aintiff 's attorney sent notice of
countermand to his agent, but it arriv-
ed too late for service : (Spafford ■V.Bu-
chanan, 4 O. S. 825.) Where after
the jury was sworn in an ejectment
case, the defendant objected that the
jurata was defective, and the Judge
being of that opinion, and defendant
refusing to consent to an amendment,
the Judge discharged the jury, the de-
fendant was refused costs of the day :
(Doe d. Crooks et uz. v. Cummings, 2
U. C. R. 380 ) In this case though
plaintiff failed in proceeding to trial
according to notice, it is obvious that
the cause of failure arose from the de-
fendant's own objection after the jury
was sworn and his refusal to consent
to an amendment. The defendant did
not wish the trial to go on, but at^.
to frustrate and render abortive i.'
plaintiff's desire to proceed, Sht
mg succeeded m his endeavour it »
right to hold that he should no'tafl?
wards be allowed to complain of h
ing been put to costs on the occasin?"
(/A.) Wherever it appears that S
tiff, though ready and willing to ti,
has been prevented solely bv d*f.^I
of defendant, in all probability iS
a view to costs of the day Jf
Court will refuse them ; (Pope ^ pT
ming, 1 L. M. & P. 272; see also It
ma.-, et al. v. The Copper Miners Co it
L.J.Q.B.113.) Not only upon't
authority of decided cases but udm
principle plaintiff ought not to be asbS
to pay costs not occasioned by his o»»
default: (Waters v. Weatherbu 9,
Dowl. 828^ Brett v. Stone, 3 D & r
140.) Although neither party Lmr
when the cause is called on for trial
and is in consequence struck out of the
docket, still if defendant can ahow that
any costs of the day have bien incur
red by him he may recover them*
(Allott V. Beareroft, 4 D. & L. 827 i
But the better opinion is contrary to
the ruling of this case. It is in fact
defendant's fault that he incurred any
costs that were fruitless, because if he
had been present at the trial he might
have non-suited plaintiff, and so
ended the proceedings in the ac-
tion : (Morgan v. Fernyhough, 1 Ju,
N. S. 688.) The cause list is in thi
discretion of the presiding Judge ; he
has entire control of it, and may take
the cases as he pleases: i Danny
Coutts, 16 L. & Eq. 137, 17 Jur. l.j
and may postpone a trial ou the ground
of the absence of a mnteritj wit.
ness of either party or for any other
cause sufficient in his opinion : (fur-
net V. Mert/weather, 7 C. B. 125.)
And if plaintiff instead of apply,
ing for a postponement withdraw his
record, he is bound to pay costs of the
day : (Greenaway v. Holmes, 2 N.C.L.
Rep. 745 ; see also Skinner v. London
4" Brighton R. Co. 1 L. M. & P. 191.)
The default of plaintiff it would appear
.cjlviiJ-]
RULE FOB COSTS OF THE DAT.
m
-indin? in sufficient time, may be d^wn up on aflSdaTit (») ^'^ ^^^^
•ithout motion made in Court, (t) day, on sin-
davit
^gd vith respect to Judgment for default in not proceeding ^t<d|pnn«iu
) trial; (u) Be it enacted as follows :
ceeding to
Mai.
gtiBt be ft wilfpl default? {Ogle y.
\m Barnea, 188 ; Eaatern Union
jy T. Symonds, 4 Ex. 502.) Where
Ike jo'y' u"*^'® *o agj'eo, were
jijcharged ^7 *^® presiding Judge
from 8'^"8 * verdict, and plain-
tiff tfterwarda discontinued, it was
yd that defendant was not entitled to
jjjts of the day : ( Wall t. London ^
J/A Wettem R. Co. 26 L. J. Ex. 93.)
{(or would plaintiff be entitled to these
(Oits though he succeed on the subse-
«aent trial. Wherever by the fault or
lefect of finding by the jury, the par-
ties go to trial a second time, the party
gl^ately successful is entitled only
to the costs of the trial in which he
joccceds : [Brown y. Clarke, 12 M. &
V.25.) Failure in proceeding to as-
letsment of damages is, as respects
(ggts of the day, subject to the
^e rules as failure to proceed to
trill: (The King's College v. Maybee,
2U. C. B* 94), and has been so con-
tidered by the Legislature in framing
tiiis enactment. It has been decided
that costs of a special jury are not
costs of the day but costs of the
ctase: {Whitehead y. Brovm, 2 0. S.
315.)
(<) There is no particular form of
tfidavit made necessary. It may be
u as follows — " 1. That issue was
joined in this cause on, &c., and notice
oftrial given thereon for the last as-
siies holden at, &c. 2. That the
above-named plaintiff did not proceed
to the trial of the said action, nor coun-
termand such notice in due tiine ac-
cording to the practice of the Court :"
(Chit F. 7 Edn. 817.) The affidavit
need not necessarily show that the
costs have been actually incurred by
defendant: {Powell y. James, 1 D. &
L. 415), but must at least show that
issue was joined, notice of trial given
and default made, &c. : {Ray y. Sharj),
4Dowl. P. C. 854.)
{t) It may be noticed that the Eng-
lish rule declaring that "costs of the
day for not proceeding to trial or to ex-
ecute a writ of inquiry may be obtained
by a side bar rule on the usual affida-
vit:" (89 H. T. 1858) has not been
introduced among our new rules. Its
omission is not such as to cause any
difference in the practice of the two
countries, for it is a mere echo of the
Statute.
(u) From a very early period there
has been some rule of practice to ena-
ble a defendant to get rid of an action
commenced against him which plaintiff
does not think proper to bring to trial.
The provision at common law was trial
by proviso— a mode of procedure so
called because of a proviso inserted in
the venirefacias,a8 follows : "And have
then there the names of the persons
and this writ, provided always that if
two writs should thereupon come to
you, one of them only you return and
execute." And this for a, long time
was the only mode by which defendant
could obtain indemnity for his ex-
penses or have tried an action which
was kept uigustly hanging over him.
Trial by proviso is still the only means
of forcing an actual trial of the
matter litigated. As to indemnity
for expenses incurred in consequence
of plaintiff's neglect to proceed to trial
according to notice technically called
" costs of the day," a more summary
proceeding was enacted by Stat. 14
Geo. II. cap. 17. This statute enabl-
ed a defendant in certain cases upon
showing the default of plaintiff to
move the Court for "judgment as in
case of a nonsuit," the effect of which
if allowed was to give him costs as if
plaintiff had been in fact nonsuited.
But this proceeding, though an im-
provement upon the common law
mode of " trial by proviso," has been
itself found susceptible of beneficial
'*«ISM
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286
THE COMMON LAW PROOEDURB ACT.
u
ur
I ♦
*,ki
[s.cxlu.cl.
K5fe7. ^ tf^vft.? CXLIX. (y) The Act of the Parliament of Great Briw
%xz^^ ^'^"'^'•^"^ Pa«8e<i in *^e fourteenth year of the reign of King Georce T'
Briulh*Aot Second, intituled, An Act to prevent inconveniences from /
M^!a '"^' of causes after issue Joined, (ic) so far as the same relate
to Judgment as in case of nonsuit, shall no longer be iu f '
ExMpUon. in Upper Canada, (x) except as to proceedings taken or *
menced thereupon before the commencement of this Act ( \
Ajtv Shci A-'^wn «»»*• CL. Cz) Causes in which the venue (a) is or shall ua Io.m •
/« <■ <o^ i'"»nd Country ,-,.,-, .. « -ir i » t» i . "" '"'U in
'^ 2^ cau«esdi8- the United Counties of York and Peel, or il the Countv f
§ZZ£, » • York alone, (6) when no longer united with the said Count
of Peel, (c) shall be called Town Causes, and all other causl
shall be called Country Causes.
3 .'ft
' 'l '1 '
alteration. The enactments following
are intended to simplify the mode of
procedure in such oases and thus les-
sen the expense of obtaining judgment
as in case of a nonsuit
(v) Talcen from Eng. Stat. 16 & 16
Vic. cap. 76, s. 100. — Applied to Coun-
ty Courts.
(w) Eng. Stat. 14 Geo. II. cap. 17.
(z) The provisions of 14 Oeo. II.
cap. 17, are repealed as to judgment
in case of a nonsuit without any ex-
ception as to pending actions : {Doe d.
Leigh y. Hunt, Alderson, B., 8 Ex.180.)
And the repeal is absolute and applies
to the action of ejectment in the same
manner as to all other other actions.
A substitute is provided with respect
to ordinary actions by s. cli., and with
respect to actions of ejectment by s.
cclvi. of this Act. The common law
right to talce down a cause by proviso,
is expressly preserved by Eng. C. L.
P. A. 1862, s. 116.
(y) The word " thereupon," used in
this sentence must be understood as
having reference to "the Statute,"
and not to "the case." The ob-
ject of this section is to put an end to
the mode of proceeding prescribed by
the 14 Oeo. II., except in oases where
at the time the C. L. P. A. came into
force, (21st Aug., 1866.) that Statute
had already been acted upon. There-
fore if a rule for judgment as in case
of a nonsuit has been in any case ob-
iM before 2l8t Aug., 1856, it would
then, and then only, be correct to foi
low up that mode of procedure- (mZ
gan v. Jones, 8 Ex. 128.) " ^
{z) This section introduces info Ca-
nada a practice which has long r>J
vailed in England, of dividing caugei'
into town and country causes. The
object of the section is to prepare the
way for the section following, in which
separate provision as regards judgment
for not proceeding to trial or assess-
ment pursuant to notice is made for
each class of cases.
(a) A" to the law of venue see ss
vi. anu .. and notes j and k thereto!
(6) i.e. In accordance with the terms
of the Municipal Act, which directs
that in laying the venue in any judi-
cial proceedings in which the same
may be necessary in any county which
may be united to any other County or
Counties, the same shall be laid in
such county by name, describing it as
one of the United Counties of, &c. :
(12 Vie. cap. 78 s. 7; see also ss. 2i
and 22.)
(c) The Oovernor General is under
certain restrictions empowered by pro-
clamation to dissolve the union between
these Counties, and thereupon for all
purposes they will become separate and
independent Counties : (12 Vic. cap.
78 8. 18.) "
I-
i,cli-]
JUDOMENT FOR NOT PBOOXBBINQ TO TRIAL.
287
CLI' C*^) ^^®'^® *°y '^^^ " °' ^^^^ be joined in any oauae, JjJj^/jJJ;
/undthe plaintiflF has neglected or shall neglect to bring ^^ ^.^^^^ *
h issue (/) 0^ to l96 tried, that is to say, in Town Causes "^Jj**!^
) ffhere issue has been or shall be joined (h) in, or in the wiUiin • n
litloo before Hillary, Trinity or Michaelmas Term, and theaftw imim
p, jgljlf has nogected or shall neglect (t) to bring the issue on
t» he tried at or before the second Assizes following such term,
U 'C. »h. zz
oer<
ill\ Taken f^om Eng. Stat. 16 & 16
^'.76, 8.101— Not applied to
I L, Courts ; but as to these Courts
.kLisa similar proTision: (Co. C.
Pi 8. 16.) A defendant is em-
Lered in *•»« ^^^ <*^ *•** ^®**'* °'
\iDtiff to compel a continuance or
ildonment of the action by his re-
resentotivo, (s. ccxv.) irho may, if
L disposed, enter a suggestion of the
Lth o' the original plaintiff and oon-
tiaue the suit: (s.oox.)
({) "Where any issue i« or shall be
J II dearly retrospective as well as
nrospective: {Dunn v. Coulta, 17 Jur.
iri6L.&Eq.l87.)
(/) If there be issues in fact and
iiliv to the tame pleading it is more
than probable that.directions have been
nreaas to the disposal of such issues
Siders, cxxix., but if there be issues
ia fact and inlaw to different plead-
iags on the same record, plaintiff as a
mneral rule is not bound to go to trial
05 the issues in fact until the deter-
mination of the issues in law. His
default can only be reckoned from the
latter date : {Duherley v. Page, 2 T. R.
391 ; Gordon v. Smith, 6 Bing. N. S.
273; Brtuitr v. Pierpont, E. T. Ex.
1847, Mor. Dig. 161 ; Ferguton ▼.
Mon, 2 Jur. 820 ; Connop et al. ▼.
Ltvy, 6 D. & L. 282 ; Chritp v. Att-
v!tU, 1 L. M. & P. 454. Contra—
Lmhy. Dulmage, E. T. 8 Vic, MS.,
R. & H. Dig., " Judgment ia case of
Nonsuit," XL 2.) But after judgment
on demurrer to certain pleas, plaintiff
is still bound to proceed to trial
on the remaining pleas upon which
issues in fact are joined : {Paxton v.
Po;)Aam, 10 East. 866; Martin v. Stone,
6 Jur. 872.)
(y) As to the distinction between
town and countrj causes see s. ol. of
this Act.
(A) It is probable that in accord-
ance with the old practice as to judg-
ment in case of nonsuit defendant wUl
not be entitled to enter a suggestion
for judgment under this section until
the issue has been in fiMt completed
by the addition of the nmiliter : (Riek-
ardt et al ▼. Middleton, 1 M. & O. 58 ;
Brook T. Llo^d, 1 M. & W. 652 ; Mar-
tin T. Martin, 2 Bing. N. C. 240 ; OU"
morey. Jlf«{ton,2 Dowl. P.C. 682; Jiiieit-
«on T. Uttit^, 10 M. & W. 640; WUaon
▼. Weatbrooke, £. T. 4 Vic. MS. R. &
H. Dig., ** Judgment in case of Non«
suit," 1. 7 ; MeLelhm etaly. Smith,T.T.
4 & 5 Vic. MS. lb.; Oibaon t. Wath-
ington, 1 U. C. R. 410; Elridge t.
Boynton, 1 U. C. R. 279; Doe d. An-
derton ▼. Todd et tO, 1 U. G. R. 279 ;
MeCagut ▼. Ctothitr, 1 U. C.R. 617.)
(i) Neglect. — The right of defendant
to avail himself of this provision is
made to depend upon the neglect of
plaintiff. If the cause though regu-
larly brought down for trial by plain-
tiff, be not tried, owing to no default of
plaintiff, there is no power to enter the
suggestion : {Mewbum r, Langley, 8 T.
B.l ; Henkin y. Oureae, 12 East. 247 ;
Ham y. Oregg, 6 B. & C. 126 ; Ren-
delly. BaUey, 2Dowl. P. C. 113 ; Oil-
bert V. Kirkland, 2 Dowl. P. C. 163 ;
Ladbrooke y. Williama, 8 D. & L.868 ;
Lumley y. Dubowrg, 14 M. & W. 296 ;
Hanaby y. Evana, 7 Dowl. P. C. 198 ;
SpHrr y. Royner, lb. 467 ; Riui y.
Folletti, 6 C.B. 862; Jaekaon y. Car-
rington, 4 Ex. 41 ; Lawa y. Bott, 16
M. & W. 862 ; Rogera y. Vandeerom,
4 D. & L. 102 ; Chapman y. Healop,
12 Q. B. 928; The Bank of Upper
Canada y. Covert tt a<, M^ T. 6 Wm.
"If"
\ i !-■ '■' irk
' >
' I 'it,
288
THB COMMON IJiVf PBOOEDURl ACT.
<l
•n '
i jiB
i ,. I ■ ' ■ .;
[«• oli.
ST^notiw^C^') 0' ^^**«"*® ***** ^®®" °' "^*" ^« J°*°«^ *" 01* in the vaca.
tobJ''°'iZ *'°" before Easter Term, then if the Plaintiff has neglected
raa to trial, -hall Hglect to bring the issue on to be tried at or before th
first Assizes after Easter Ternn, (A) and in Country Causes
where issue has been or shall be joined in, or in the vacation
before Hiliary or Trinity Term, and the Plaintiff has negected
or shall neglect to bring the Issue on to be tried at or befor«
the second Assizes following such Term, or if issue has or shall
be joined in or in the vacation before Easter or Michaelmas
Term, — then if the plaintiff has nesjlected or shall neglect to
bring the issue on to be tried at or before the first Assizes after
such Term, (0 whether the plaintiff shall in the meantime
have given notice of trial or not, the Defendant may give
twenty days' notice to the Plaintiff (m) to bring the issue on
to be tried at the Assizes (n) next after the expiration of the
notice; (o) and if the Plaintiff afterwards neglects to give
notice of trial for such Assizes, (p) or to proceed to trial as
IV. MS. R. & H. Dig., « Judgment in
case of Nonsuit," 1. 2 ; Bank of Upper
Cnnada v. Btthune et al, M.T. 6 Wm.
IV. lb. ; Bradbury v. Flint, M. T. 4
Vic. MS.n,k H.Dig. lb. 4; Penniman
T. Wince, 4 O.S. 885 ; Doe d. Burnaide
T.iTcc/ar, T.T.4 &6 Vic.i^5. R.& H.Dig.
"Judgment in case of Nonsuit," II.
8 ; Doe d. Dodge v. Rote, 4 U. G. R.
174; Hodgson y. Stevent, 6 U. G. R.
626 ; Doe d. Anderson t. Todd et al, 1
U. G. R. 279.) Indeed if plaintiff has
once brought his case down for trial
though it result in a nonsuit or a
verdict for plaintiff, which is subse-
quently set aside by the Court,
it is a question whether defendant
can avail himself of this section and
so compel plaintiff to try a second time :
{awKingy.Fippett, 1 T.R.492; Ashley
V. Flazman, 2 Dowl. P. C. 697 ; Jones
V. Hows, 6 Dowl. P. C. 600; Warren
V. Smith, 5 0. S. 728 ;) and if not then
a further question is whether he has
any other remedy than that of trial by
proviso ?
(J ) The Court, after a peremptory
undertaking to try at a particular as-
size declined to entertain a motion for
judgment until the sittings were con-
eluded, becnuse possibly the case might
still be entered by the silting Judn-
{Bum y. Cook, 1 L. M. & P. 736.) '
{k) This part of the section as to tiie
periods fixed wlthia which trials mast
take place in town causes, varies from
the English enactment, inconsequence
of a difference as to the times of hold-
ing the assizes in Upper Canada.
(1) As to country causes this proTJ-
sion is a verbatim copy of the English
enactment.
(m) The notice intended is a twentj
days' notice before the assizes, and not
twenty days' notice before the time for
plaintiff to give notice of trial for that
assizes : (Judkins v. Atherton, 3 £1. &
B. 987, 26 L. & Eq. 104.)
(n) " Sittings or Assizes, as the cue
may be," in the English enactment.
(o) The defendant's attorney may
give the twenty days' notice, althoagh
it is only for the purpose of obtaining
his own costs: (Knight v. Oaunt, 22
L. J. Q. B. 167.)
{p) '* Sittings or Assizes," in Eng-
lish enactment. It may bo noticd
that under this practice plaintiff's po-
mr
I. cli] JUDGMENT JOB NOT PBOOE£I>INa TO TRIAL.
reqaired by the said notioe given by the Defendant, (q) the
Defendant may suggest on the record that the Plaintiff has
ftiled to proceed to trial, although duly required so to do, (r)
^wbioh suggestion shall not be traversable, but only be subject
to be set aside if untrue,) («) and may sign Judgment for his
280
Hvi f
lition iB ft better one than that under
the old prsotioe. Before defendant can
leKtUy ^^® ^^' twenty days' notice,
there mast be such a default on the
Mrt of the plaintiff in point of time as
fould hate entitled defendant to move
for judgment as in case of nonsuit.
And after the expiration of that notice
plaintiff may now have sUll another
uslte before Judgment can be obtained
ininit h^ nnder this section.
q) "la porsuance of the said no-
tice, &<>•> ^ English 0. L. P. Act.
Where a defendant has given the
twenty days' notioe to proceed to trial
the pltdntiff may come to the Court,
ind on satisfactorily explaining the
delay obtain an extension of time:
(Farthing 't. Cattlea, 22 L. J. Q. B.
167.) It is not necessuy that the
role should specify the paiiicular pe^^
iod for which the extension is required :
lib.) The defendant need t^* ^ft^t
Ml the expiration of the t»<enty days
noruntil the defendant ^»s enterd a
toggestion before appV^g to the Court
or s Judge: (lb.)
(r) The sugr<«tion may be in this
fonn— And *<>w 0°. &0'. the defend- .
ant sDggeM> and gives this honorable
Court tc be informed that the plaintiff
has filled to proceed to trial, although
(lo^rrequired so to do. Therefore, &o.
Itia presumed that defendant will not
be in a position to enter the suggestion
in cases which if decided before this
Act, he could not obtain judgment, as
In case of non-suit. For example,
where there are several defendants and
issue joined only as to one : (Crowther
etal. V. Duke et al. 7 Dowl. P.C; 409 ;
Jackton V. Utting, 2 Dowl. N. S. 548 ;
see also Spafford v. Suchancn et at. 4
U. C. 0. 8. 829,) and this although the
defendants agamst whom issue is in-
complete are dead, unless that be re-
gularly suggested : {Pinktu V. Slureh
et al. D. £ L. 616 - see also Cheeehi
V. Poteell, 6 B. & G. -j8.) But one of
several defendants, where all have
pleaded might obtain judgment as in
case of nonsuit: (Jonea v. Oibson, 6
B. & C. 768 ; Bndgford v. Wietman,
16 M. & W. 439 ; Rhode* etal. y. Tho-
maa et al. 2 D. & L. 668 ; Crowther v.
Brandon, 7 Scott 844 ;) though one or
more have suffered judgment by de-
fault: (Stuart V. Xoffera, 4 M. & W.
649 ; Hadriek v. Hatlap et al. 16 L. J.
Q. B. 442). Tiie death of a co-plaintiff
must be suggested, or if not suggested
defendap<may obtain judgment on affi-
davit* intitled in the original cause :
(lurehin et al. v. Buckle, 1 L. M. & P.
m.)
(a) A plaintiff moved to set aside a
judgment signed under this section in
the Eng.C.L.P. A. upon the ground that
plaintiff was prevented firom trying
the cause by the wrougftil act of de-
fendant, and in support of his applica-
tion showed that in compliance with
the defendant's notioe to bring the
issue on to be tried, he gave notice of
trial, and on delivering the record told
the associate that he had kept it back
in order that his cause might be the
last in the list, as hia witnefises were
in the country, and that he gave de-
fendant's attorney notice that he should
not be able to try until the last day of
the sittings, but afterwards received a
note firom the Marshal that it would
be taken on that day, and it was ac-
cordingly taken, although an applica-
tion had been made to the presiding
Judge for a postponement. And per
Coleridge, J. ** The gricTance com-
plained of is that your case was im-
properly taken by the officer of Lord
Campbell. You applied to Lord Camp-
bell to have it taken in a different
. I
s
Ir
U.
v:vi;
t^i
■ > lluit
' .S ^1
1 ,
k
. 4
H^l
ii
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■ ^
m-
1 :■ f|
290
TBI COMMON LAW PBOOIDURK ACT.
[".cK.
costs ; (t) ProTided that the Oonrt or a Judge, (u) shall hare
power to extend the time for proceeding to trial (y) ^Hh q,
order, and ha reAued your applioation.
The oauM list ii in *he diioretion of
the presiding Jadge ; he has the entire
conduot of it, and may take the oanses
as he pleases. Erery ease is supposed
to be readj when it is placed in the
list. I cannot interfere with Lord
Campbell's discretion." Bale refused :
ipunn T. Couttt, 17 Jur. 847, 16 L. ft
£q. 187.) The tmth or untmth of the
suggestion will substantially depend
upon the nature and circumstances of
plaintiff's default. The presumption
of neglect may be eombated by show-
log ft sufficient excuse. The following
hare been held not to be sufficient : the
absence of a material witness : IMuttell
T. Fait^ul, 11 Jur. 270) ; inability to
proceed without AresL eTidence:
(Draint t. Buttell et ux. 10 Jwr. 892 ;
Doe d. Ringer y. Bloie, 8 Dow\. P. C.
18.) The following haTO been hdH to
be sufficient : the pendency of a negu
tiation for settiement only broken off
by defendant when too late to proceed
to trial :. {Alford r. FeUowes, 9 Dowl.
P. C. 826 ; Fothery t. Butter et al. 2
Dowl. N. S. 890; see also Watkine t.
Oile$t 4 Dowl.P.C. 14;) the pendency
of a case inyolYing the same points of
law: {ffandelly^Fawtejf, llJur. 849);
the pendency of a commission to ex-
amine witnesses: CWaddyr. Bamett,
16 L. J. Q. B. 8 ; Bordier y. Burnett,
8 D. & L. 870) ; delay at the request
of defendant : (Doe d. Stq>pin» y.Lord,
2 Dowl. P. C. 419) ; stay of proceed-
ings until the delirery of particulars :
( WUkie y. Cfibton, 7 L. J. C. P. 66) ;
sr nntil security for costs : iOandell
y. Motte, Ex. T.T. 1847, MS. Mor. Dig.
167) ; a summons by defendant to put
off the trial taken out at so late a pe-
riod thet plaintiff anticipated being put
to inoonTenience if he prepared for
trial : {Rendelt y. Bailey, 2 Dowl.P.C.
113) ; proceedings taken against plidn-
tiff by defendant in Chancery : (Part-
ridge y. Suiter, 6 Dowl. P. C. 68) ; the
threatened insolvency of defendant:
{Ihueott T. Latour, 9 Ex. 420.) Upon
the latter point reference may b« mid.
to Lettiee y. Sawyer, 4 Jur. 74 • geoi
landy. Uendereon, 4 M. & w! 687'
Frodtham y. Ruit, 4 Dowl. P. (j M !
Smith y. Davit, 9 Dowl. P. c. 60-
Mann y. Willianuon, 7 M. & W. 145!
Fither y. Lediard, 9 Dowl. P. C. 645!
Topping y. Brown, 9 Dowl. P. C. 682-
Featherttone y. Bourne, 2 Dowl, N a
889 ; Badmany. Pugh, 1 D. & l. 5^;
Oavin y. Allen, 21 L. J. Ex. 80.) So
in a special Jury cause tiiat nelthei
party would pray a tales: (PhiUipn
i>anw, 9 B. i d. 769.) ' ''
(0 The costs will be chiefly oomp(«.
ed of costs of the day ; as to which Me
s. oxlTiii.
(m) Belatite powers, see note m to
B. xxxtU.
(i») The Court has no power to ex-
tend the time for proceeding to trial
indefinitely upon application of plidntiff
under this proviso : {Bridgtvatn t
Griffitht, 17 Jur. 488.) It is spprei
tended that the practice resnUtiDg
thb extension of time will be b many
respeos^ analogous to the old pnetlet
of perem|«<,ry undertaking. Seienl
of tiie oases <«oided under Uie old, will
be in point uwe, the new practice.
Whenever before &{8 Act plaintiff, by
showing a reasonable, excuse for not
proceeding to trial m^dit discharKe
the rule for judgment as in cue of
nonsuit, upon entering into *he per-
emptory undertaking, he WJI, u
a general rule, have good gro'indi
to resist an application under tiii
Act. Thus where he was preTente(i
by defendant f^om proceeding to trial :
(Pennetnany. Wince, i 0. 8. 835; Dot
a. Anderson et al. y. Todd, 1 U. C. B.
279), where plaintiff's proceedbgi
have been stayed by an injunction
from Chancery : {Doe d. Bumtidt t.
Sector, T. T. 4 & 6 Vic. M. S. R. &
H. Dig. <* Judgment in case of Non-
suit," II. 8), where owing to some
special circumstances plaintiff is acting
bona fide on the advice of counsel:
(Armttrong y. Benjamin, 1 U. C. R.
,.cli.]
(ithont
JUDQMINT FOB NOT PROOCIDINO TO TBTAL.
terms ; and provided also, that no rale for trial hj
201
^^-'t^'. :<■ ?'-
gball (hereaflor bo necessary, (w)
tad with respect to the holding of Courts of Nisi Prius (x)
,i
,.,. orwbere the attorney for pUln-
!#«» unable to see hie client, who
^ ■' ime distance from him : (Rich-
'Trzrfl»wr,6C.B.682),wheTeow.
'to the miKondaot of a formor attor-
'lliflibeowse.plaintiff is nnprepared
'^l {Howard T. Cro/l,, 6 6. B.
L- where defendant has tampered
ja' nlilntifT'B witnesses: (Batea t.
fJokue, S V.C.-R.m); or dt.
Ifed ploinUff as to the production of
UJaice which he promised topro-
jr (Doi d. Reel r. Diek, 6 U. Cf. R.
Ml) . 0/ keeps out of the way a mate-
jj fitness for plaintiff: {Appleyard
,rl,6M. &0. 1019); the un-
Hjectedwant of a particular witness
«r document: (Jordan t. Martin, 8
Tiut 104; Greenhill T. Mitehel, 6
Twnt 160; Wtikinion r. WillaU, 6
1 n 41.280 ; Montfort r. Bond, 2 Dowl.
p C. 208 ; Wjfatt t. Niehollt, 9 Dowl.
pC.827; Doed. Reimer v. Olatt, 4
I f c. R- 256) ; or unexpected difficul-
tiejinthe way of plaintiff's proceed-
j jj,; [draiM T. Ruaiell, 10 Jur. 892);
ud perhaps plaintiff's sudden but
temporary inability to meet the ex-
penses necessary to the support of his
cue: [Radford y. Smith, 7 Dowl. P.
P. 26; /oyM t. Ellii, 6 M. & O. 691.)
litis preinined that OTen if there be
I power nnder this section to grant a
Kcond extenrion of time, that power
liriilbe rarely exercised. Under the
I old practice a rule for judgment after
{ I peremptory undertaking and default
I ms absolute in the first instance:
If^fflAflfli ▼. Shaw, Dra. Rep. 121 ;
iMin T. Garrov, M. T. 2 Vic. M, S.
|b,&H. Dig. *' Judgment in case of
iNoiuait," IV. 1); and against this
|rn!e pl^ntiff was seldom relieved :
I .KiMeu'wn y. Olaaa, 1 U. G. R. 516.)
Iliione case after default in proceeding
ito trial pursuant to a peremptory un-
Jdertaking where defendant obtained a
Inle nisi for judgment, which was en-
llu^ed to be heard in Chambers, and
Elalntiff showed eaule, stating that *'h«
ad given notice of trial in pursuance of
his undertaking, but that in conse-
quence of the absence of two material
and necessary witnesses in the United
Btatet, he was unable to proceed to
trial : that both said witnesses are now
residing in Toronto, and that he will be
able to proceed attiie ensuing Toronto
assises— that he made efforts to obtain
the presence of said witnesses, but
could not succeed, and that if he is
compelled to commence a new action
many of the claims for which the ac-
tion in brought he will be barred by th«
Statute of Limitations," the peremp-
tory undertaking was extended until
the then next ensuing Toronto assises :
iMaitland T. Brovm, Chambers, Dec.
, 1866, Bums, J.)
{to) This proviso is new, and not ..n,^
to he found in the English C. L. P. ^ • ^ ^ /P • "^
Act. The meaning of it is doubtftil. .n^^^ ^ f'^^t^it^
It cannot be to aboUsh trial by proviso, 0>i «ty t^^Y <i*A~»^ ^
a right most neoessarr for the proteo-^^^ Cck^ .^ ^. ^^
tion of defendants desirons of brinring jj,^^, c^^'^ - - ^'"
to fitfal determinaUon the subject JSvf.t^ -^ '^'^^^'^
matter of pending suits. The judgment z' ^^^''
to be signed under this section is only
for costs and the effect thereof is onlv,
to put an end to the partictdar suit in
which it is signed, without at a4 dis- '
posing of the matter in issue. A rule
for trial by proviso is not necessary /
in any case : (N. R. 88.) r^^
(z) The sections following in refer» *^
enoe to the holding of Courts of Nisi
Prius, &o., are re-enactments with
amendments of our old law. In order
properly to understand them, a short'
sketch of the origin and growth of the
Nisi Prius Courts may be made.
Anciently the King is supposed himself
in person to have administered justice^
to his subjects. In the time of tiie
Saxons a great increase of litigation
necessitated a change, which was made
by the constitution of a Court having
cognizance both of civil and spiritual
M
I
1
m
>'i
:lrv:-
292
THE COMMON LAW PB00EDX7RE ACT.
["•dii.
and to the Nisi Prius record and to the trial ; Be it enact*,?
as follows:
cases. This Court, named the Witten-
. agemote or General Goonoil, was com-
posed of men whomtiie King annually
summoned both to act as Ministers of
Justice and to deliberate upon affairs
of State. But William the Conqueror,
fearing danger from these annual Pax
liaments, contrived to deprive them of
their power to administer justice,
and conferred it upon certain great
officers of State, who assembled in his
own hall. Hence the Court was styled
Aula regia or Ault" regis. This Court
was presided oyer by a chief officer of
great power, called the Grand Justi-
ciary. As business multiplied, it was
found necessary for the reUef of suitors
to constitute another tribunal. Jus-
tices — called Justices in eyre —
were accordingly appointed to go
itinera or circuits throughout l£e
kingdom, whose duty it was to deter-
mine pleas in the several counties.
They held pleas in all oases, whether
civil or criminal, and acted under
commissions from the Crown. Owing
to the great interval between the
circuits, the administration of criminal
justice was found to be very defec-
tive. In consequence commissions
were often issued empowering jus-
tices therein named to deliver par-
ticular gaols specified, that is, to ex-
amine into the offences of ^he prison-
ers, ^nish such as were guilty, and
release such as ■^<^vq not. The exact
time when these commibcions were first
issued is involved in doubt. Whenever
either in a civil or in a criminal case a
jury was summoned to assitit the Jus-
tices in determining questions of fact,
the trial was said to be ataiza, either
from astidere, because the jurors sat
with the Justices, or from atsiza, the
name of the law under which trial
by jury was held. After a time
commissions issued yearly for tbo
more speedy trial of criminal offences.
The Judges appointed were termed
Judges of assize. With them were
associated .he Knights of the several
counties in which the assizes were ««
pointed to be holden. This is th
origin of associates. Supplementary t
these commissions it was usual whl
en;, particular outirage had been com
mitted to iBBaeaynitadaudiendunetn^
triandumajich. offence.afterwpjdsoaiu
a writ of Oger and Terminer. Tn tv
reign of Edward I. it was enacted ti.
these writs should be issued only to th
justices of the Bench or in eyreunles!
in cases of particular enormity »i,l
the King might appoint whom he x>\J
ed During all tiiis time clviS
between subject and subject were as*
general rule entered for trial before
the Aula Regis, unless the justices in
eyre should first come into the county
where the cause of action arose. Thu
was the origin of the J\r«j Ph«,
commission the principle of vhich
was in the reign of Edward the First
embodied in a Statute : (Westin II '
cap. 30. ) It was then that the statnte
of Msi Prius was passed which auth-
orized judges of assizes to try common
issues and to return them when tried
into the Court above, whereupon judg.
ment would be given. All these com-
missions when issued are now granted
to the ordinary judges of the Superior
Courts of Common Law. Thougli for-
merly issued before every assizes in
Upper Canada, they are not under
the present Statute necessary to the
validity of proceedings had before the
judges on their circuits. The Com-
missions when is3ued are the follow-
ing:
1 . Commission of Oyer and Terminer.
2. ■ Gaol Delivery.
8. Assize.
4. Nisi Prius.
For convenience the two former are
generally included in one commission,
and the two latter in another. The
names of the judges of the Supeiior
Courts of Common Law in Upper
Canada, are also inserted in all con-
missions of the peace: (Bla. Con.
in. 67; Ch5^:. Crim. Law, L 142; 2
i. cHi.]
GUI. (y)
jerznlner, an
every Count}
in that withii
each and evi
Easter Terms
ffith or witho
vince shall s
Justices and .
in Upper Ca]
missions are i
the person or
no such Comr
and Nisi Priui
Jusjces or of
Hawk. P. C. B(
troduction to S<
(y) A re-eni
ment of Stat, li
and 18 Vic. capi
plied to County
[ij As to thei
origm and juri
ante,
(a) For rV'cl
heremaftermt^dj
(4) The terif
Queen's Bench
as follows :— Hi
in February J
in Jane; Trin.
August; Mich. I
NoTember. E«
Monday lasts tl
on the Saturday!
its commenoeml
8. 19.)
(c) Commissil
ed with by Stati
enacted that "1
ral superior coj
Upper Canada, I
! over the Ccui
{ Prius, Oyer ail
Gaol Delivery,!
laQdwiththesaif
I tT9, without thl
,clli.]
COURTS OF ASSIZE, ETC.
293
GUI. (y) Courts of Assize and Nisi Prius, of Oyer andjoj^^ "J.^'^/^^j-i^^
Tenniner, and of General Caol Delivery, (z) shall be held inNJ^J^™,
eveiy County or Union of Counties in Upper Canada (except Jjw to e»,h "
. jjjjt ^thin which the City of Toronto is situate), (a) in ^"•°M«- ''^ Seelt^
every year, in the vacations between •Hilary and eluding lo- '^.'^ «*/.**fi^
ach and every year, m vuo vuuubiuuH fubwetsu •xiiituy »uu ciuamg LO- - ' —
Easter Terms and between Trinity and Michaelmas Terms, (6) at what*" ^ y^<^ o
with or without Commissions, as to the Governor of this Pro- ^ , ,
vince shall seem best, (c) and on such days as the Chiefs commis- P^^ j7
■Ions are
('A
>A
Justices and Judges of the Superior Courts of Common Lawia«ued.
in Upper Canada shall respectively name; (<f) and if Com-
missions are issued, then such Courts shall be presided over by
tiie person or persons named in such Commissions f'^(e) but if ^V§ ^
no such Commissions are issued, then the Courts of Assize
and Nisi Prius (/) shall bo presided over by one of the Chief" ^'^
Ju5.ices or of the Judges of the said Superior Courts of Com-
HsTk. P. C. Book 2, c. 7, p. 33; In-
troduction to Sellon'a Pr.)
(y) A re-ensotment with amend-
ment of Stat. 12 Vic. cap. 68, a. 20,
and 18 Vio. cap. 92, s. 43.— Not op-
plied to County Courta.
It) As to theae aeveral Courta, their
origm and juriadiction, see note x,
anti.
(a) For ^^^ch apecial proviaion ia
hereinafter mi^de.
(i) The terma of aittinga of the
Queen's Bench and Common Ploaa aro
asfoUows:— Hil. Term, 1 at Monday
in February; Eaat. Term, lat Monday
in June; Trin. Term, la^t Monday in
August; Mich. Term, 8rd Monday in
November. Each term beginning on a
Monday lasts thirteen daya and ezpirea
on tiie Saturday of the week enauing
its commencement : (12 Vio. cap. 63,
s, 19.)
(c) Commiasiona were firat diapena-
ed with by Stat. 18 Vio. cap. 92, which
enacted that " tlie judgea of the aeve-
ral superior courta of common law in
Upper Canada, ahall and may preside
over the Courts of Aaaize and Niai
Prius, Oyer ai 5 Terminer and General
Gaol Delivery, in the aame manner
i and with the aame authoritiea and pow-
I trs, without the isauing of any oom-
miaaion or commisaionaj for the hold-
ing of the said Courts as they have
been accustomed to do under oommiB-
sions, before the passing of this Act,
&c : " (s. 43.)
(rf) The days are uanally fixed and
made known during the term next
preceding the times appointed for the
holding of the assizes.
(e) The Commiaaions of Aaedze and
Niai Priua are generally directed to all
the judgea of the Queen's Bench and
Common Pleas, by name of whom "any
one" is assigned to take "all and all
manner of assizes juries and certifi-
cates " within particular Counties
named ; whereas commissions of Oyer
and Terminer and General Gaol Deli-
very are directed, in addition to such
judgea, to certain peraons named as
associates, of whom " any two," one
of said judges being one, shall inquire,
&o., by the oaths of good and lawful
men of the particular counties named.
(/) Under this description is under-
stood the Courta for the trial of iasues
joined in the Superior Courta and trau-
smitted through the medium of Nisi
Priua Recordato be tried at the aaaizes.
The isauea may be so joined either in
civil causes or ic criminal causes en-
/^j
r r tt
< I
294
THE COMMON LAW PROCEDURE ACT.
[8.,
f .,'■!■
And in
Courta of
mou Law, (jg) or in their absence, then by some one of H
Majesty's Counsel learned in the Law, and of the Upper Can T
Bar, who may be requested by any one of the said Chief Juaf
or Judges to attend for that purpose, (A) or by some one Jud
of a County Court who may be so requested^fi^i) and tf
^d'^mi ^°'*'*' °^ ^y®' ^^^ Terminer and General Gaol Deliverv ( x
ner and Gaol shall be presided over by either of the said Chief Justices
[3j JT Judges, or by any such of Her Majesty's Counsel or any such
Judge of a County Court, (k) each and every of whom shall
be deemed to be of the quorum, (I) together with any one o
more of the peraons who shall be named as Associate Justice
of the said Courts of Oyer and Terminer and General Gaol
Jud"**' Delivery; (m) and the said Chief Justices and Judges and
preitoing atguch of Her Majesty's Counsel as aforesaid, and such Judoo «f
a County Court, presidmg at any Court of Assize and Nisi
Prius, shall and may possess and exercise the like powers and
authorities as have been usually expressed and granted in
(y
/f>/^
^ Commissions issued for the holding of such Courts ;7}i)
tered upon the cml side of the Court,
with a view to a new trial, &o., which
cannot be obtained on the criminal
side of the Courts. (Chit. Crim. Law,
142 et seg.)
(ff) This ia in strict accordance with
the terms of the commission 'when is-
sued.
(h ■ Queen's counsel were by Stat.
18 Vis. cap. 92, s. 45, made associates
for the despatch of civil or criminal
business at any county or place, or
upon any circuit in Upper Canada.
By the section under consideration
they can only act in the abtence of and
upon request of the judges.
(i) It has been an invariable rule
to name county judges as associ-
ates, each in his own county; but
this enactment goes further by enabl-
ing them in the absence of, and upon
request of the judge to preside over
the Courts of Assize and Nisi Prius.
(J) Under this description ^re un-
derstood the courts for the trial of
criminal cases, arising upon indict-
ments found by the Grand Jury at the
same or some preceding assize : (1
Chit. Crim. Law 143 ; 4 Bl. Com 269'
Hawk P. C. Book 2, c. 6, p. 28 ;) oi
at a Court of Quarter Sessiona : ( Wttk,
erell'a cate, 1 Lew. C. C. 208 ; 7 Win «
IV. cap. 4, s. 6.)
((*) By Queen's Counsel or Countv
Judges it is presumed orly in the ab-
sence of, and perhaps upon request of
the Superior Court Judges : for as to
the criminal side of the court the last
branch of the proposition is doubtful.
The provision as to request expressly
made as to the civil side of the Court
is not repeated.
(/) Ante, note z.
(ffi) Origin of associates, see anU
note X. They must be named by the
Governor General and notified in the
manner prescribed by the next follow-
ing section: (cliii.)
(m) From what follows it is mani-
fest that Courts of Assize and Nisi
Prius only are hero meant : the powers
usually expressed and granted in the
commissions therefor, are '*to take
all and all manner of assizes juries and
certificates," within certain countie?
named, and that <* these assizes juries
s-clii-]
OOUaTS OF ASSIZE, ETO.
295
^jgaid Chief Justices and Judges and such of Her Majesty's Jj^^,
Poansel as aforesaid, and such Judge of a County Court pre-Q"«iDeUT-
jidlng at a°y ^^^^ °^ ^y®' ^^^ Terminer and General Gaol
DeKveiyj aud the person or persons named as Associate Jus-
>:„,.£ shall and may possess and exercise the like power and associates.
•athorities as have been usually expressed and granted in and
ky Commissions issued for holding such last mentioned
GoartS) (o) ^^^ wherein such Chief Justices and Judges and
Qaeen's Counsel and Judges of County Courts would have '•^^^•
been named of the quorum / (p) and such Courts (q) shall inhSSrach
like manner (r) be held in the County or Union of Counties SStV"©?*
«itbia which the City of Toronto is situate, three times in each
ud certificates and all things touch-
Is* the same," should be taken as irell
«Ii«»nI, wd " by an inquest of twelye
liwfiJ men " of the county or counties
ssmed, to " determine aU issues that
may have been joined " either " in the
Coiut of Qaeen's Bench or Common
pleas" and *'to cause to be done
fhtt'to jttsiloe may appertain accord-
ing to tiie law and custom of England"
lad the laws of Canada.
(o) i. e. The Courts of Oyer and
Terminer and General Gaol Delivery.
The powers and authorities usually
expressed and grantel in the commis-
sions are the following : «' To in-
quire by the oaths of good and law-
U men" of the county or counties
named, (i. «., by the Grand Jury,)
"by whom the truth of the mat-
ter may be better known and in-
quired into, and by other ways and
mftliods and means," whereby they
"oanor may the better know more
ftiliy the truth of all treasons, mispri-
sons of treason, insurrections, rebel-
lions, counterfeitings, clippings, wash-
ings, false coinings and other falsities
of tiie monies of Great Britain and Ire-
land, and of all other kingdoms and
dondmons whatsoever ; and of all mur-
ders, felooies, manslaughters, killings,
barglaries, rapes of women, unlawful
meetinjTS and conventicles, unlawful
assemblies, unlawful uttering of words,
misprisions, confederacies, false alle-
gations, tresspasses, riots, routs, re-
tentions, escapes, contempts, falsities,
negligencies, concealments, mainten-
ances,oppressions,champerties, deceits
and aU other nusdeed8,offences, and in-
juries whatsoever ; and also the acces-
sories of the same," within the county
or counties named, <'by whomsoever or
howsoever had, done, perpetrated, and
committed, and by what person or per-
sons to what person or persons, and
when, how, and in what manner, and
of all other articles and circumstances
whatsoever, any, every, or either of
them concerning; and the treasons
and other the premise.ii, according to
the law and custom of England," and
the laws of Canada for Ih? time being,
"to hear and determi'.v;' ;" (i. e., by
petit juries,) and farth^ r, ** the gaol "
of the county or coumfrc-Buamed, "for
this time to deliver. "' end at the
time and place "t'oresa'd, to ' neet
to deliver tho ».a,3J " of the couuty
or counties na ned, **' to deliver and to
do thereupon what to justice may ap-
pertain, according to tiie law and cus-
tom of England and the laws of Can-
ada," saving to the Queen all "^'amer-
ciaments and otherthings to her
thereupon belonging."
(p) See note x ante,
(q) i. e. Courts of Assize and N'ji
Prius and of Oyer and Terminer and
General Gaol Delivery.
(r) i. e. As to powers and authoritjr,
&c. .
^
"•*«§
"<^
. #^n
296
TTQion incln*
ding To-
ronto.
THE COMMON LAW PROCEDURE ACT.
ProTlso for
special com-
miuions.
§3o BX -i ci We ciate Justice*
^ y^ — ProTlnclal
Secretary to
notify them,
if no commis-
sion issues.
Proviso:
Number lim-
ited.
[s- cliii,
year, to commence on the Thursday next after the holdine tli
Municipal Elections in January, («) on the second Mondav ^
April, and on the second Monday in October in each vl '!'^l
Provided that nothing herein contained shall restrict the G '
vernor of this Province from issuing special Commissions f
the trial of any offenders, when he shall deem it expedient t
issue any such Commission.'^O
CLIII. (u) The Governor of this Province shall name th
Associate Justices, (v) and it shall be the duty of the Provin
cial Secretary, when no Commissions are issued, (w) on «
before the first day of the several terms next after which such
Courts are to be holden, (x) to transmit to the Chief Justices
aforesaid, (y) and to the Sheriff of each County or Union of
Counties, lists of the names of the persons who are so named
Associate Justices for each several Court of Oyer and Terminer
and General Gaol Delivery, («) and also to give due notice to
every such person of his nomination and appointment • (a\
Provided always, that no greater number of persons than /fig
shall be named as Associate Justices for any one Court of Oyer
(s) The Manicipal Elections are
held yearly, on the first Moaday ia
January.
(<) This is a prerogative of the
Crown, though one very rarely exer-
cised.
(u) A re-enactment with amend-
ments of Stat. If ''"I'i. cap. 92 s. 44.
{v) Origin of Associate Justices see
note z to B. clii.
{w) From this section it would ap-
pear 08 regards Courts of Oyer and
Terminer and General Qaol Delivery
that Associates must be appointed
either by commission to be issued pur-
suant to the previous section (clii.), or
in manner directed by this section.
The appointment of Associates in the
one way or the other appears to be es-
sential to the constitution of the
Courts. It is believed that if the prac-
tice of appointing associates were alto-
gether abolished the administration of
justice would not be in the slightest
degree impaired. It is a practice the
utility of which has been much ques-
tioned.
(x) These Courts must be holden In
outer counties in the vacation betwetn
Hilary and Easter Terms and between
Trinity and Michaelmas Terms, on
such days as the Chief Justices' and
Judges shall appoint : (s. clii.) and in
the homo county three times yearly on
the days fixed by the preceding sec-
tion (olii.)
(y) To the Chief Justices of the
Queen's Bench and Common Pleas, the
only two Superior Courts of common
law jurisdiction in Upper Canada.
(z) The corresponding provision of
the repealed enactment, 18 Vic. cap.
92, 8. 44, strangely enough extended
to Courts of Assize and Nisi Prius.
(a) The duty of the Provincial Se-
cretary thus appears to be, 1st, to
transmit to the Chief Justices lists of
Associates ; 2d, the same to Sheriffs ;
and Sd, to give notice to the individuals
appointed Associates of such their
appointment.
M '1
NISI PRIU8 RECORDS.
297
s.cliv.]
J Xerminer and General Gaol Delivery; (h) and pro'^ided^^Ytotfeono
Iso that the Clerk of Assize shall be ex officio one of the «* 'iffl<^-
^ociate Justices, (c)
CLIV. (d) The record of Nisi Prius shall not be sealed or jj^^ ^^
i;
P'
(e) but shall in Country Causes be entered ^yith the^^J^^^^^^^j^j
" " ~ " " ~ ' "PriuB shall
Deputy Clerk of the Crown of the proper County or Union of
(h\ OHgin of these Courts see note
itos. clii.
((•) This will be found in practice a
„03t useful provision. The Clerk,
jjo is expected to be at all times pre-
jjnt will by his presence as one of the
.„(,r'«m enable the Court at any time
liea convenient to take up and pro-
ceed with the criminal docket, or to
open or adjourn the Court.
ii\ Taken partly from Eng. St. 15 &
leViJ. c. 76, s. 102, and partly from
oor own law, and so far as taken from
Jug. C, L. P. Act, founded upon 1st
Kep.C. L. Com. s. 71.
[i) The adaptation of this section to
the corresponding section of the Eng.
C. 1. P- Act has led to a great change
in our practice. The entry of Nisi
Prias record neither sealed nor passed
as required by our former practice,
has occasioned the introduction into
Upper Canada of the English practice
83 to making up and deliTcring paper
and issue books (N. R. 33). The issue
book is a transcript of the pleadings,
with the dates of pleading and the
order when pleadta : ( Worthington v.
jn^/ey, 5Dowl. P. C. 209; see also
B. ciii. of this Act. ) It concludes ordi-
narily with the words, " therefore let
a jury," &c. : (Form thereof N. R.
Sch. No. 1.) But when it is intended
to determine questions raised by con-
sent a different form is made neces-
sary : {Ih. Sch. No. 8.) It is soma-
times expedient to make suggestions
on the issue as tc the death of one or
more of several plaintiffs or defendants
when the action survives : (ss. ccviii.
and ccix. Chit. Arch. 8Edn. 139, etseq.
Forms Chit. F. 6 Edn, 625, ttuq.) The
issue book can only be made up when
issue has been joined : (see s. cxxviii.
and notes thereto), but may in certain
cases be made up by plaintiff's attor-
ney before the pleadings are in fact
completed: (7i.) The time within
which it must be made up is not limit-
ed. Defendant may himself, if issue
has been completed, make up the
issue book and proceed to trial by pro-
viso: (Chit. Arch. 8 Edn. 1293.) When
made up by plaintiff's p.ttornoy it
ought to be delivered either before or
at the time of the service of notice of
trial, and at least eight days before
the commission day of the assizes.
But whenever plaintiff's last pleading
is in denial of the defendant's pleading,
plaintiff's attorney, without joining
issue, may give notice of trial at the
time of serving his replication or other
pleading, and in case of issue being
afterwards joined, the notice operates
from the time when first given. And
of necessity in such a case the issue
book would be made up and delivered
after notice of trial and probably within
less than eight days of the assizes:
^see N. R. 36.) If there be several
aefendnnts appearing by different at-
torneys,a copy of the issue book should
be delivered to each. When delivered
it will be presumed to be true, and
plaintiff's proceedings in respect
thereof to be regular. If any state-
ment therein be untrue, an application
should be made to sot the issue book
aside on the ground that it is untrue :
{Harvey y.O'Meara, 8Dowl. P.C. 676.)
But a mere irregularity, such as the
omission of the date of a pleading, &c.;
may be amended either upon applica-
tion of plaintiff or of defendant : {Iken
v. PUvim et al., 5 Bowl. P. C. 694 ;
Dennett v. Hardy, 2 D. & L. 484.) In
such cases plaintiff's proper course is
to amend and not to deliver a second
issue book : (^Ethersey v. Jackson, 8 T.
IS?
■3,
i^.J
I
298
THE COMMON LAW PROOEDURE ACT.
[8- cliv.
'»■ r
taSlS"S bounties, before noon of the Commission or opening day of th
^^ Assizes for such County or Union /'(/) and the party enteri **
?^n;*°y '®°°'<^ ^^*". ^""^"^^ *^®'^®**" whether it be an assessmenf
an undefended issue, or a defended issue ; (j/) and the Den i'
indoned on
Clerk of the Crown shall make three lists and enter eaoli ^T"**"!
Three Ibta . , . -j i« * • xi, j • ^ ^"7^ «»cu record
to be nude in One of the said lists, in the order in which the records
cferk of the received by him, and on the first list he shall enter all fli
assessments and undefended issues, and in the second list 11
defended issues not marked "Inferior Jurisdiction," ando
Order of call- the third list all defended issues marked " Inferior Jurisdi
Jng cauMs. jJqjj^m ^^^ ^^^^ jj. gj^j^jj ^q Jq jjjg discretion of the Judge at Nig*
Prius to postpone the trial of causes in the third list until all th
others are disposed of, and to call on the causes in the first list
{%) at such time and times as he shall find most convenient for
;^, ^ disposing of the business j (i) Provided always, that the Judge
Proviso
7 255.) The amendment may be
ma at any time: {Farwig v. Cocker •
ton, b M. & W. 169.) In some cases
of irregularity either in the form of
issue or of its delivery, defendant i le
apply promptly may set it aside : (bee
Lycett V. Tmant, 4 Bing. N. C. 168 ;
Currey ei al. v. Bowker, 9 Dowl. P. C.
523 ; Coose v. Neemeegan, 1 Dowl« N.
S. 429), but he may by appearing at
the trial without objecting to irregula-
rities by his conduct waive them :
(see Emery t. Howard, 9 M. 8(, W.108.)
Further as to the practice see Chit
Arch. 8 Edn. 281 et teq.; lb. 9 Edn.
275, et teq.)
The Nut Prius Record is a copy of
the issue book as delivered, and when
the latter has neither been set aside
nor moved against must 'e ts'^^.^u to
be a true copy: (Doe v. Jotterell, 1
Chit Hep. 277); but if the record
agree with the original ■/leadings a
variation flrom the issue book will not
materially affect it : (Shepley t. Marsh,
2 Strange, 1180 ; Doe d. Cotterell v.
Wylde, 2 B. & A. 472 ; Jones v. Fa-
tham, 8 Taunt. 634.) Authenticated
in this manner, the necessity for seaU
ing and passing the record does not
exist. In England the dispensal with
sealing and passing is considered a
saving of fifteen shillings in the costs
of a suit : (Markham, notes to g lO'
of Eng. C. L. P. Act, 1852.) In Vr,.^^
Canada whatever the saving may be in
consequence of such a step, it ia more
than balanced by the introduction of
the practice as to issue books.
The Court will not suffer a party to
retain a verdict upon a record which has
been improperly altered by him : [Suk-
er et al v. Neale, 1 Ex.468,) As sealing
and passing is unnecessary in the first
instance, of course it is equally so
though the cause be made a remanet :
(see Cook v. Smith, 1 Dowl. N.3. 861.)
As to iiisues and records on issues
raised on pleas of Nul tiel Record:
see Jackson v. Oates, 5 D. & L. 231.
(/) Deputy Clerks of the Crown are
ex officio Clerks of Assize in their sev-
eril Counties : (14 & 15 Vic. cap. 118
P. ^ ]
{g) Non-compliance with this dirc^
tion would, it is presumed, be an irre-
gularity, amendable upon terms.
(A) «' And the Deputy Clerk of tiie
Crown «Aaii make," &c. This is a duty
which the Clerk is bound to perform.
(i) Every cause is supposed to be
rea*^ when it is placed in the list, and
the cause list itself is entirely in the
discretion of the presiding Judge. He
ENTRY OF RECORDS FOR TRIAL.
290
ss.olv.clvi.]
. jjigi Prius may permit a record in any suit to be entered Jf*8«^^y
jfter the time above limited, (J) if upon facts disclosed on^^««^J^
jffidavit, (k) or on the consent of both parties, he shall see fit to ^ff^^L^ -^
do 80/^(0 ^' ^ ■'
CLV' (»*) ^^ Town Causes (n) the Records shall be entered Entry of (2e>t, i'KrZ ^
,f(th the Clerk of Assize, (o) who shall attend at the Court fn Town" *s x/^V^
Jouse on the Commission or opening day, for the purpose of ^'"**"
receiving and entering the same, from nine in the morning un-
till t 'f*o> (.P) *^®' which he eiiall not receive any without the
order of the presiding Judge, who shall have the same power
in this respect as set forth in the preceding section, (g) and J^^^^g ^^^
the Clerk of Assize shall make three lists as aforesaid, which
be regulated and the business disposed of as in Country
CLVI.
^•*:
(-«*.
(App, Co. C.)
(a) In all actions involvinff the investigation of long Kng. c. l. p.
baa the entire conduct of it, und may
take the causes as he pleases : (Dunn
r, Couttt, 17 Jur. 837, 16 L. & Eq.
137.) In the exercise of this discretion
he iriU be governed by the enactment
here annotated. The excrci»e of that
diBcretion will not be reviewed by the
Court above : {Dunn v. Coutts, uli
supra.)
ij) i.e. Before noon of the commis-
sion day or opening of the assizes.
Ik) As to affidavits generally see
notes to s. zxii. at p. 41 of this work,
intitled "Deponent," "Signature of
Deponent," "Commissioner," "Jurat."
[I) If there be an nfiidavit disclo
ing the facts or consent of defend-
ant to enter the record tJie Judge may
still exercise his discretion in allowing
the same to be done. In a case where
plaintiff had given an undertaking to
try at a particular sitting but did not
enter his record on the first day of the
sittings, the Court above refused to en-
tertaiL a motion for judgment during
that assize, because possibly tha record
might be entered after the first day by
order of the presiding Judge : [Burn
V. Coolt, 1 L. M. & P. 73G.)
(m) A re-enactment of our old prac-
tice.
(n) As to what are town causes see
s. cl.
{o\ i. e. With the Marshall and
Clerk of Assize (14 & 15 Vic. cap. 118,
s. 8,) : as there is no Deputy Clerk of
the Crown in the Home County, the
general law as Deputy Clerks of the
Crown being ex officio clerks of assize
does not apply.
(/)) This is similar to the rule en-
acted for country causes : (see s. cliv.)
(q) See note i to s. cliv.
(rj See s. cliv. and note h thereto.
(s) Partly founded upon Eng. C. L.
P. A. 1864, s. 6 — but in effect an ex-
tension of the principles involved in s.
Ixxxiv. of this Act. That section em-
powers the Court or a Judge when
satisfactorily shown that the matters
in dispute consist wholly or in part of
mere matters of account to dispense
with trial by jury, but does not apply
to causes actually carried down for
trial : (see note y tu s. Ixxxiv.) This
section begins, where the latter ends
and enables the presiding Judge at
Nisi Prius in his discretion to direct
references in whole or in part of ac-
tions "involving the investigation of
long accounts." — It is applied to Coun-
ty Courts.
)u./i:
).
i
i'>\
U
I
i
t i
IIh
^*;S
800
*** il^l /fn I" •ctlom
^ ^ long *o
^/6C>- counts Judge
may direct a
reference u
to part and a
verdict oi to
other parte,
Ao^ or leave
the whole
totheJurjr.
Appoint-
ment of arbi-
trator!) iu
referred
coses.
THE OOMMON LAW PROCEDURE ACT. [a.ch'
accounts (/) on either side, (u) the Judge at Nisi Prius (v)
mtty at and during the trial, (w) direct a reference of all issues
in fact in the cause^ or of such of the said issues and of the ac
counts and matters involved in all or any such issues as he
shall think fit, (x) taking the verdict of the jury upon anv
issue or issues not so referred, and directing a verdict to be
entered generally, on all or any of the issues, for either party
suhject to such reference, (y) or ho may leave all or any Issues
in fact to be found by the Jury, referring only to the amount
of damages to be ascertained ; (z) and if the parties agree upon
the Arbitrators, (not more than three) the names of those
agreed on shall bo inserted in the order of Nisi P'-'ius, (a) but
if the parties cannot agree, the Judge shall name 'le Arbitra-
(t) The words "involving the in-
vestigation of long accounts, &c.,"
have not yot received a judicial inter-
pretation. They are if possible more
general than those of a. Ixxxiv. which
are " matters in dispute consisting
wholly or in part of mere matters of
account." Whether any weight is to
be attached to the word " long" iuthe
one case in contradistinction to "mere"
in the other, is doubtful ; for the latter
section has been held to authorize a
reference not only of matters of mere
account but of the matters in dispute
either in whole or in part, and which
' may in whole or in part consist of mat-
ters of account: (see note x to s.
Ixxxiv.) Both sections are intended
to embrace defended actions only.
Where judgment by default has been
signed and the damages are " substan-
tially a matter of calculation," there
is a peculiar mode of procedure laid
down: (g. cxliii.)
(«) i. e. Either of demand by plain-
tiff or of set-qfhj defendant.
(v) After entry of the record at Nisi
Prius, the Judge presiding and he alone
is authorised to refer it : (see note y
to s. Ixxxiv.)
(tv) " At and during," which may
mean at any time before verdict ren-
dered.
(x) The power is to refer all the
issues or such of the issues, together
with the accounts anrfmatters involved
in all or any of the issues as the Judge
may see fit.
(y) It is intended in one way or the
other to dispooo of all the issues on the
record. If, in the exercise of a
sound discretion, all be referred
then the verdict will be a general
one for one or other of the parties
subject to the reference. If part only
be referred, then as to that part such
will be the verdict. As to the remain-
ing part not referred, the verdict of the
jury is to be a final determination, so
far at least as respects the reference,
but without prejudice to the right of
either party to move against the ver-
dict. {Postea, N. R. Sch. No. 8.) As
to the costs of several issues see s.
cxxx. and notes thereto ; also N.R,61,
(z) In which case the verdict of the
jui'y will decide the cause of action,
and be in the nature of interlocutory
judgment. The cause of action decided
the amount of damages to be recovered
in respect thereof to be thereupon
found by the arbitrators.
(«) It is no more necessary now
than formerly that the agreement
should be in writing. The consent of
counsel acting in Court will, it is ap-
prehended be conclusive upon the par-
ties. It may afterwards be reduced to
writing.
■■•. .*(
J jlyii.] ADnOESSES TO JURY. 801 |
(Of or Arbitrators, and appoint all other terms (h) and condi- ^^'^^^ \
tioDS cf the reference to be inserted (c) in such order of Nisi^v^wd.
PriuS) (d) and the award may be moved against, as in ordinary
cases, (e) within the first four days of the Term next after the
making of the award. (/)
CLVII. (a) Upon the trial of any cause, (h) the addresses (^pp-o*- c.) qer^ stsr
tiie Jury shall be reeulated as follows: the party who a. ism, •.is. '^..
to the Jury
>i^f.
(i) As to costs generally in such
cages, see note t to s. Ixzxvii.
it) Indorsements would, it is pre-
gumed, be a sufBoient compliance : (see
(^^fltr V. Mansbridffe, Barnes, 56.) The
Bse of the word "insert" negatives the
idea of an oral order of reference : (see
inselly. Evans, 7 T. R. 1.)
(d ) As to proceedings upon an arbi-
trati'>D, see noted to s. Ixxsvii.
((] See s. Ixxxix. and notes thereto.
(/) The Court unless restricted
by this section might entertain the
application after the time limited,
but such indulgence will be rarely
admitted: (see note u ,to s. Ixxxix.)
The time is " within the first four days
of the term next after the making of
tk award" The time for moving to
set aside awards under s. Ixxxix., is
"within the first «z days" next fol-
lowing the publication of the award to
theparties." Between these two modes
of expression there is a distinction to
be observed. The general rule is, that
an award is published and made so
8oon as the arbitrator has made a com-
plete award and is functus officio :
lUenfree v. Bromley, 6 East. 809 ;
Macarthur y. Campbell, 5 B. & Ad.
618,) and tliat no express notice of
the award to the parties is necessary to
impose the duty of obedience : (Child
y. Norton, 2 Bulst. 143 ; Gable v.
Mago, 1 Bulst. 144 ; Bell v. Twenty-
mn, 1 Q. B. 766 ; 2 Saund. 62 (4) ;
Poittr V. Newman, 4 Dowl. P. C. 604 ;
Brooke v. Mitchell, 6 M. & W. 473.)
The words " publicotion of the award
to the parties," as used in s. Ixxxix.,
seem to be taken from Eng. St. 9 & 10
Will. III. c. 16: (Watson on Awards,
Srd Edn. 132,) and it appears to be con-
sidered that under that statute the
;:C;:;J5
time does not begin to run until the
party has express notice of the award,
(note to to 8. Ixxxix.) It is appre-
hended that under the section here an-
notated, knowledge of the award hav-
ing been made would be sufficient
notice, though there is certainly a
conflict of authority: (see Brook t.
Mitchell, 6 M. & W. 473 ; Htmsworth
V. Brian, 7 M. & 0. 1009 ; Macarthur
y. Campbell, 5 B. & Ad. 518 ; Mussel-
brook V. JJunkin, 9 Bing. 606.) The
distinction necessary to bo observed is
between the general rule under which
the parties must take notice of the
making of the award and the statute of
Will. III., under which notice must be
given to the parties.
{g) Taken f^om Eng. Stat 17 & 18
Vic. cap. 125 b. 18. — Founded upon
2d Rep. C. L. Comrs. s. 5. — Applied
to County Courts. Tho change effected
by this enactment is one that in the
opinion of the Commissioners was ;ie-
cessory to tho advancement of justice.
The only ol^ection to it is the possibi-
lity of a trial being unnecessarily pro-
longed. This may be averted by tho
conduct of counsel in the exercise of
ordinary ciroumsipcction. It is intended
that counsel in their opening speeches,
console ds of a right of reply in uuy
event, will when opening confine them-
selves to a brief statement of the cgse,
and avoid as far as possible ail observ-
ations hitherto made by way of anti-
cipation.
(A^ .4iiy cause, Qu. Does this extend
to criminal as well as civil cases ? The
word "cause" is generally used to
mean a civil suit only. But its mean-
ing as used throughout this Act is ren-
dered doubtful, because some few sec-
tions are expressly restricted to Courts
'«&
^
^
>-:2:
'la:
"•«i|5
'It'O.)
-.J
802 THE COMMON LAW PKOCEDURE ACT. [s. clvH
Right of ad- begins, or his Counsel, (t) shall be allowed, in the
event
Iv '
I •
of civil jurisdiction, whilst the sreater
number are nut so restricted : (see b.
clxziv. and note r to s. olviii.) However,
the t1i?!c; toner of this Act snows that it
is Intendei to apply to civil procedure,
unless wuere the contrary intention
plainly appear. The context of the
section under consideration points ap-
parently to civil procedure only. " The
party who begins," "his opponent,"
Ac, and such like phrases show a re-
lation to civil procedure. la the ab-
sence of express authority no positive
opinion can be given upon the point
suggested.
(t) The right to begin is not altered
by this Act. The rule which before
the Act obtained is still to be observed.
It is that the party upon whom the
burden of proof lies is the party en-
titled to begin : {Rex. f.Yeatet, 1 C. &
P. 823 ; Fowler v. Cotter, 8 G. & P.
463 ; Williams v. Thomas, 4 C. & P.
284 ; L^ioia v. Wells, 7 C. & P. 221.)
The teste io this — vh'\t would be the
co» -I q'jnnce ifna ev' lence were offered
at all ! if ia aurli. a case the verdict
ought ';o be gi'f l^ for ono party, it is
manifest that something must be done
by the other to prevent that conse-
quence.and ho who has to give evidence
to prevent tha result being against
him must begin : {Oeach v. Ingall, Al-
derson, B. 14 M. & W. 100.) Another
teste is to consider — what would be the
effect of striking out of the record the
allegation io be proved, bearing in
mind that the right to begin lies on
whichever party would fail if this step
were taken : (Millit v. Barber, Alder-
son, B. 1 M. & W. 427.) To the rule
that the party upon wnom the onus
probandi lies has the right to begin,
there are a few exceptions, as in ac-
tions for libel, slander, and injuries to
the person, in which cases plaintiff
shall begin, though the affirmative is-
sue be on defendant: (Cannam et al. v.
Farmer, Parke B. 8 Ex, 698 ; see also
Mercer v. Whall, 6 Q. B. 447, and
the resolutions of the Judges re-
ported in 6 Q. B. 462.) The onut
probandi is governed by uie following
rules mentioned by T\rr flost in hii
work entitled " Right to Begin," to the
end of some of which rules the Editor
has appended the names of more recent
cases : —
/1i>«<— Generally tl>" burden of proof
lies on the party wIim , orts the offir-
mative on the record : ( liest on '• Rii»i,»
to Begin," 8 ; also Collier v. Clarh 5
Q. B. 467; Boothy. Afillns, 4 D &L
62.) ^'
Secondly — 'S\\Q affirmative on the
record means the affirmative in j«j.
stance and not the affirmative in form •
(Best, 6 ; also Soward v. Leggatt, 1 Q,
k P. 615 ; Cannam y. Farmer, 8 Ei
098.)
Thirdly— It there be a presumption
of law in favour of the pleading of
either party, the onus probandi is cast
upon his adversary, though Lo may
thereby be called on to prove a nega-
tive : (Best, 12 ; also Millis t, Barhtr
1 M. & W. 427 ; Smith v. Martin, 1
Dowl. N. S. 418 ; Bingham v. Slanlty
2 Q. B. 117 ; Bailey v. Bidwell, 13 E
& W. 78 ; Robins v. Maidstone, 4 Q.B.
811 ; Elkin v. Janson, 18 M. ft w!
666 ; Hogarth v. Fenny, 14 M. & W
494 ; Doe v. Whitehead, 8 A. & E.
571 ; Sutherland et al. v. Patterson, M
T. 6 Vic. M. S. R. & H. Dij?. « Onu't
Probandi," 7 ; The King v. Nash, Tay
U. C. R. 259 ; McKinnon v. Burrowu,
3 O.S. 114; Le Mesurier v. Willard, 3
U. C. R. 285; Doed. Mackayy.Purdy
et al, 6 O.S. 144 ; Neill et al. v. Ltight,
3 U. C. R. 70; Doed. Place v. Skat et
al. 4 U. C. R. 869 ; Vareyy. Muirhcad,
Dra. Rep. 498 ; McCollum v. Davis, 8
U. C. R. 150; Mairy. McLean, 1 U.C.
R. 455.)
Fourthly — When there are conflict-
ing presumptions the onus probandi
lies on the party who has in his favor
the weakest presumption of the two :
(Best, 22.)
Fifthly — If the case of a party rest
on the proof of some particular fact,
of the truth or falsehood of which ho
must from its very nature be peculi-
arly cognizant, the onus of proving
the fact lies on him: (Best, ""^j also
; I
i,clTii-]
ADDRXSSKS TO JURY.
808
of his opponent not announcing, at the dose of the case of thejj^»'"«*^«
^^« who begius; his intention to adduce evidenoe, (k) toi*t«d.
IdilrcM the Jury a second time at the close of such case, for
the purpose of summing up the evidence ; (t) and the party on
12 V. Turner, 6 M. & 8. 206 ; Apothe-
„„<, Co, T. Bentlty, Bailey, J., R &
JI. ISO')
5izM/y— And thin rale holds good,
eres though there be a presumption
,f law in favor of his pleading : (Best
23.)
7o ennmerate and examine the ex<
options to these rules, would extend
beyond the limits proper to these
notes; bat reference may be made oon-
cening them to lay. £t. 2 Edn. 819.
It nay be mentioned that after a
Ihoroufh investigation an important
(intlification has been established, viz.,
inactions for damages, when the afflr-
natire of the issue is on the de. endant,
thelatter has the right to begin,proTid-
ed no proof of the amount of damage
soitained is incumbent on plaintiff:
'[Mtry. Whall, 5Q.B.465.) If plaintiff
is bound and intends to show the amount
of damages sustained, he is entitled to
begin, notwithstanding the afiBrmative
of the issue is on defendant : {lb.
see also Ashley y, Sates, 4 D. & L.
33.) But if the affirmative of the
isroe is on defendant, and plaintiff's
couDsel will not undertake to offer
proof of substantial damages, defend-
ant has the right to begin : ( Chapman
tRawton, 8 Q. B. 678.)
Whenever it is clear that a wrong
has been done by the ruling of a Judge
at Xisi Prius as to which party should
begin, and that the onus of proof has
been thereby placed on the wrong party
the Court in bane, will interpose to cor-
rect the error. On the other hand, they
will not interfere if the matter be at
all doubtful : {Huckman v. Femie,8 M.
& W. 605 ; Oeach et al. y. Ingall, 14
N. & W. 95 ; Ashby t. Batet, 4 D. &
L. 33 ; see also Edwards y. Matthews,
4D. & L. 721 ; Brandfordy. Freeman,
6 Ex. 734 ; Doe Bather y. Brayne, 6
C. B. 655; Hamilton y. Davis et al,
2U.C. R. 137.)
With respect to arguments m bane,,
it may be noted that where there are
cross demurrers the practice is for the
plaintiff to begin : Williams y. Jar-
man, 18 M. & W J8 ; Hallhead y.
Young, 27 L T p. I'M).)
(k) In a rec -io here counsel
did not announce tention to ad-
duce evidence in lenoe of which
the counsel who began Hummed up his
evidence : held that the case was there-
by closed, and that the former could
not be allowed afterwards to alter hia
mind and to adduce evidence : (Darby
y. Ouseley, 2 Jur. N. 8. 497.) But
where plaintiff's counsel opened the
case and called his witnesses and then
defendant's counsel addressed the jury
and at the close of his address stated
that he did not intend to call any wit-
nesses for the defence; thereupon
plaintiff's counsel rose to address the
jury a second time ; held at Nisi Prius
under this section, that plaintiff's coun-
sel had no right to reply after defen-
dant's counsel had addressed the jury :
(Oibson y. the Toronto Roads Company,
Cobourg Fall Assizes, 1856, befor<«
Robinson, C. J., 8 U. C. L. J. 11)
(I) Before this Act the party who
began a case was not entitled to a reply
in cases where his adversary refrained
ftom adducing evidence. Often his ad-
versary to prevent him from having
a reply intentionally omitted to call
witnesses. In such oases the avowed
object was to prevent the party who
began from having the last word with
the jury, and thereby producing the last
impression upon them. The adversary
having adduced no evidence, it was al-
ways ruled that inasmuch as there was
no evidence for the party who began to
comment upon, there was no necessity
for a reply, and it was upon this ground
denied. But when the adversary's coun-
sel in his address to the jury stated
facts without intending or attempting
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804 THE COMMON LAW PBOCEDUBE AOT. N j,]^
the other side, or his Counsel, shall be allowed to open the case
and also to sum up the evidence (if any), (m) and the right to
reply (n) shall be the same as at present.
to prove tbem, it was understood that
the presiding judge might,in his discre-
tion, permit a reply : (Crerar t. 8odo,
M. & M. 859 ; NaUhy. Brown, 2 0.& K.
219.) Now, whether the opposing coun-
sel does or does not adduce evidence
or state facts without any intention to
prove tiiem is quite inunater'al as re-
gards the right to reply. The right
of the party who begins to reply for the
purpose of summing up the evidence
which may be merely his own evidence
or that adduced on both sides must be
allowed in all cases, that is, in all cases
where there is evidence to be summed
up, whioh means evidence fit to be
submitted to a jury. It is for the pre-
siding judge, at the dose of plain-
tiflf's case if he be the party who
began, to decide whether there is
or is not such evidence. Hence, if
his decision be in the negative, there
is no evidence to sum up, and conse-
quently no right to plaintiff's counsel
to make a second address to the jury.
To allow counsel to address the jury
on the point as to whether there is
evidence or not, would be to permit an
appeal from the judge to the jury and
would be manifesuy improper. It
would be wrong to allow counsel to
argue at the judge through the jury :
IHodgea v. Ancrum et al, 83 L. & Eq.
856. Piatt, B., dittentiente.)
(m) Under the operation of this en-
actment there may be five speeches to
a jury in every case, and if plaintiff
make out a case at all there must be
three at least : Sed. qu. (Thompson's
C. L. P. Act, 1854, s. 18.)
(n) This means the general reply —
that is, the opener's reply upon the
whole case as before the jury. The
old rule whioh is still the law is thus
stated, <'The counsel of the party
which doth begin to maintain the issue
whether of plidntiff or defendant ought
to conclude: (Vin. Abr. « Evidence,"
S. a.) Plaintiff, if the party to be-
gin, and there are several issues join-
ed, some of which only are upon him
may do one of two things, either anti'.
oipating the dofenoe to go into the
whole case at once rebutting the anti-
cipated defence as he proceeds, or con!
tent himself with establishing a prima
facie case, reserving his evidence in re-
ply till defendant has established hig
defence. If he adopt the former course
he will not be allowed to add further
evidence in reply : (Brovme v. Murrav
R. & M. 254.) If he adopt the latter
mode and defendant besides impeach-
ing iha prima facie case, set up an en-
tirely new Cise which plaintiff contro-
verts by evidence ; then defendant ig
entitied to a special reply to the evi-
dence so produced, and plaintiff to the
general reply upon the whole case:
iMeagoe v. Smmotu, 8 C. & P. 76.)
!hus where in an action on a bill plain-
tiff's counsel made out a pnma facie
case, and the defendant's counsel prov-
ed usury, thereupon plaintiff called a
witness in reply to deny the wxaj.
The defendant's counsel was held en-
titled to address the jury upon plain-
tiff 's evidence in reply, and plaintiff 'g
counsel then to the general reply : (n.)
Where there are several issues the
onus of proving some of which lies on
the plaintiff and others on the defend-
ant, the practice is for plaintiff to begin,
and prove such of the issues as are in-
cumbent on him ; the defendant then
does the same on his side ; afterwards
the plaintiff is entitied to go into evi-
dence to controvert the defendant's af-
firmative proofs ; the defendant is then
entitied to a special reply on the fresh
evidence in support of his affirmative,
and then plaintiff has a general reply:
(Best, Right to Begin, &c., 101.)
So where tiie opposing counsel in his
address to the jury raises any point of
law, or cites any case, the other side
will be allowed to address the Court ta
the point of law or observe on the
case cited without trenching on the
facts in question, further than is ne-
. clviu-]
ADJOURNMENT OV TBIAL.
305
CLVIII- (o) It shall be lawful (p) for the Court (q) oxiM-^^<^^ e.»r^ slicl ^
T.jfflj flt the trial of any cause, (r) where they or he may deem a.i864,i.i». t^^-<2h.t.i
trishtforthe purposes of justice, (s) to order an adjourn- jonm the
..jjarily inTolved in the disoussion
of the point or case in question :
llh ) It would selm that if there be
inlv one issue on the record, and it
lie upon plaintiff he cannot con-
tent himself with A prima fade case in
the first instance, and after defendant
has shaken it, call further evidence.
He mast put forth his whole evidence
in the beginning: (Jacobs y. Tarleton,
llQ.B.421; see also TTfyrA^ V. Wilcox,
19LJ.C.P.338.) Evidence inreply will
not be allowed merely because it con-
firms the case of the party who began.
It must be confined to rebutting the e vi-
dince adduced for the defence : {R. v.
ameh, 5 C. & p. 299; Browne v.
Murray, R. & M. 254 ; Jacobs v. Tarle-
ton, ubi supra.) And yet it must be
consistent with the original case:
ifhittinghamY.Bloxam, 4 C.& P.597.)
It is for tiie presiding Judge to decide
as to the admissibility of evidence
offered in reply : ( Wriffht v. Wilcox, 19
L. J. C. P. 838 ; see further Doe v.
Goiltrf, 2 M. & B. 243 ; Briffgs ▼.
iynimrth, 2 M. & B. 168 ; Osbom v.
Tkompson, 2 M. & B. 254.)
(0) Taken from Eng. Stat. 17 & 18
Vic. cap. 125, s. 19. — Applied to Coun-
ty Courts.— Founded upon 2nd Bept.
G. L. Com'rs., s. 6. The object of this
enactment is to modify the rigorous
inflexibility with which a cause com-
menced was carried on to its close :
(lb.)
(p) These words confer a power but
do not impose an obligation. The con-
text clearly shows that there is a dis-
cretion to be exercised when applica-
tions are made under this section. The
proTisions of the section are to be
distinguished from the practice of put-
ting off a trial — a step which precedes
and defers the trial, whereas the ad-
journment is a step taken during the
pendency of a trial, and delays its pro-
gress only during the time of the ad-
jouromeot.
V -'
(g) Court. — Probably means the
Court m banc, in trials at bar which
are, however, of very rare occurrence.
" It shall be lawful for the Court or
Judge at the trial of any cause when
th^ or he may deem it right, &c."
(r) Any cause — Qu. Does this sec-
tion extend to criminal oases? The
section of tin Eng. C. L. P. Act, 1864,
corresponding with the section under
consideration, as well as the sections
corresponding with ss. olix.-olziv.
of this Act, have by the English Leg-
islature been declared to extend to
every Court of Civt'Z Judicature in Eng-
land or Ireland. The maxim expressio
unius, &o., would lead to the conclu-
sion that the practice in Criminal
Courts is not to be affected. The sec-
tion may p4lssibly be held to extend to
criminal cases tried at bar or on the
civil side of the Court under Nisi Vn-
us records.
(») The discretion to permit adjourn-
ments when it is deemed right for pur-
poses of justice is a very wide one. It
is one that can only be exercised with
advantage by the judge presiding at
the tri^ — ^he being conversant with
the whole complexion of the case,
must be the better able to arrive
at a correct opinion as to tlie neces-
sity for an adjournment. The ad-
journment when applied for after the
commencement of a cause will gen-
erally be on some ground of surprise.
The examples given by the Commis-
sioners are cases where it happens that
a party is taken by surprise by his ad-
versary's case or where a witness or a
document becomes unexpectedly ne-
cessary and is not forthcoming. One
Useftil teste will be to consider whether
the circumstances of the surprise are
such that upon them the Court in bane.
if applied to, would grant a new trial.
It is probable that if either party bO"
clearly wronged by the refusal of the
Judge at Nisi Priug to grant an ad-
1 * I
: *4v
i 'K
H.J
!.i
I I'
?'-
> h'\4\
( :
• !'
306
THE COMMON LAW PIlOOEDURi: ACT.
[s.clix.
ment for such time (<) and subject to such tenns and co A'
■ !* tions, as to costs and otherwise, as they or he (u) may th' i,
fit.
S lui ^ ^j^. cb. c.) ^^^' (^) ^ P^'^y producing a witness shall not be allowed
^< .eA a <i f^f-gS, fcSi *° impeach his credit by general evidence of bad character, U]
^"^^■^ Howitoa but he may, in case the witness shall, in the opinion of th
pwrtj may Judge, provo adverse, (as) contradict him by other evidence ( \
if <• <
iSfr:
t'i
2SXlh>
'^i V .m
joamment, the Court above will
grant a new trial : (see Sairubury t.
Mathewt, 4 M. & W. 842 ;) but that
unlesB in very clear oases the discre-
tion of the judge when exercised upon
the facts before him at the trial will
not be interfered with.
(<) Qu. — Is it the intention that the
ac^ournment may be ttom one assize
to another as well as from one day to
another? If from one assize to an-
other then the case could not be both
begun and ended before the same jury.
(u) See note q, ante.
(v) Taken from Eng. Stat. 17 & 18
Vic. cap. 125, 8. 22. — Founded upon
2d Rep. G. L. Comrs. — Applied to
County Courts. — The origin of the en-
actment appears to be the New York
Civil Code, ss. 1846-1848. And the
enactment itself settles a question
'which for a long time has caused great
difficulty in the English system of juris-
iprudence. The law, with attendant
difficulties, as it stood before this Act,
is thus put by the Commissioners:
" It occasionally happens that a witness
called by a party in a cause, under a
belief that he will prove a certain fact,
turns round upon the party calling him
and proves directly the reverse. The
party is of course not precluded from
; proving by other testimony what the
witness has negatived : (see Hardwell
■V. Jarman, Bull N. P. 297 ; Ooodtille
V. Clayton, 4 Burr 2224 ; Bradley t.
Eicardo, 8 Bing. 57 ; Friedlander v.
London Atsurance Co, 4 B. & Ad. 193 ;
Palmer v. Trower, 22 L. J. Ex. 82) ;
but ought he to be allowed to discredit
the witness by impeaching his veracity
or credit by shewing that he has
.made previous statements at variance
-with the evidence he has given in the
S?*^ •\^*® decisions are conflicting.
the weight of authority tends to eaUh!
lish the negative, while the weieht ^f
reason and argument appears to U de
oidedly in favour of the affirmatiTe.'
(2dRept.8.13.) ThelatterviewhwL
supported by Starkie, PhiUip, 7?
Taylor, in their several TreatiseM
Evidence, and is the view adopted bv
the Legislature in this Act. '
(tp) There is reason and authoritr
for this position. If the party produc
ing a witness is prepared to give gen-
eral evidence of bad character whv
does he produce him at all ? To produce
a witness under such circumstances if
undisclosed, would be a fraud upon
the Court and jury. The conduct of
the party producing him would be most
reprehensible. His object would be to
keep secret the infamous character of
the witness, so long as that witness
served the purpose intended ; but to
expose him the moment he become in-
tractable. A party producing such t
witness should never be allowed to sty
at one moment that he is a man of I
good character, and at the next that he
is quite the contrary. His veracity is
endorsed by his production. His con-
duct is at the risk of the party prodac-
ing him, who, if disappointed in his
er- «ctation8, is justly punished for
1 tempted deceit : (see JffwcreidlT
ote, 8 B. & C. 746.) i
(x) A reference to the presldiit;
Judge is here intended. If in his opi-
nion the witness prove adverse, then,
&c. Adverse it is presumed as to some
fact or facts relevant to the matter ia
issue.
(y) This he might do indirectly even
before the C. L. P. Act. Where »
witness called by either party
g.clix.]
OONTRABIOTINO WITNESS.
807
or by leave of the Judge, (z) prove that he has made at ofc^e'owSwitaeM
times a statement inconsistent with his present testimony ; (a)
tiat before such last mentioned proof can be given, the circum-
stances of the supposed statement, sufficient to designate the
fictJ controry to hifl case, it was al-
lowable to call other witnesses to dis-
prove such statements: (see note v,
It) ^- Will the Court in bane, in-
terfere on an appeal from the Judge's
dedsion ? The Court may not feel at
liberty to review the exercise of the
iadie's discretion by a direct appeal,
botmay, it is apprehended, do so in-
directly, by granting new trials. If
the Conrt be dissatisfied with the
result of the trial and conceiye that the
course adopted by the presiding judge
ii combination with other circum-
sttnoes has led to that result, they
nay think it expedient to relieve the
party injuriously affected
(a) A good example, and the one
commented upon by the Commission-
ers is involved in Wright v. Beckett,
(1 M. & B. 414.) It was an action
of trespass quart eL fr. brought
to try the question whether the plain-
tiff had exclusive right to the soil of
a piece of land. His counsel adduced
four witnesses, whose evidence estab-
lished that he and his predecessors had
exercised immemorial acts of owner-
ship over it. He produced a fifth
witness to prove the same fact; but
this witness contradicted the previous
witnesses. Thereupon the plaintiff's
counsel asked him if he had not given
a different account of the facts to
plaintiff's attorney a few days before.
The question was objected to but al-
lowed to be put. The answer was eva-
sire, whereupon plaintiff's counsel
called plaintiff 's attorney, and asked
him whether the witness had upon the
occasion referred to given him an ac-
count different to that given at the
trial. This also was objected to, but
allowed to be put. Afterwards a mo-
tion for a new trial was made upon the
ground that the question ought not to
have been allowed ; but as the Court was
equally divided no rule was granted :
see also R. y. Oldroyd, B. & B. C. C.
88 ; Dunn y. Aslett, 2 M. & Bob. 122.
The right to contradict witnesses
under this section applies only to wit-
nesses produced by a party, who, upon
their examination in chief, prove ad-
verse to the party producing them.
When produced by the opposite party,
the right to contradict them upon cross
examination exists independently of
this section: (see notes to s. clx. infra.)
To contradict a vritness does not neces-
sarily mean to discredit him in the
sense in which the latter word is com-
monly understood by lawyers. To con-
tradict a vritness, it must be shown that
his testimony is relevant and that the
point upon which his evidence is ad-
verse is material. But to discredit
him, that is, to prove his character bad,
general evidence may be given of
reputation wholly apart from the
matter in issue : (s. olxii. note o.) The
distinction and the reasons of the dis-
tinction are noticed in Prescott v.
Flinn, 9 Bing.l2 ; Tenant y. Hamilton,
7 Gl. & Fin. 122. In cross examining
a witness for the purpose of testing his
credit great caution is required. If
the question put to him be relevant,
his answer may be contradicted by in-
dependent evidence ; but if irrelevant
there can be, as a general rule, no
contradiction, and his answer is
conclusive : (see s. clx.) To admit
evidence contradictory of irrelevant
statements would lead to inextricable
confusion by raising in a suit an end-
less series of collateral issues : {Attor-
ney General y. Hitchcock, 1 Ex. 98.)
Again, an adverse witness has no right
on cross examination to make volun-
tary statements against the party ex-
amining him which he could not give
in the examination in chief. Such
statements if made, should upon appli-
cation of the party prejudiced be ex-
>J
808 THE COMMON LAW PBOOEDUKE ACT. Tg i
particular occasion, (6) must be mentioned to the mtness am]
ho must btf asked whether or not he has made such statement
'"iT^ i^*^^ **^ ^To^L.^. CLX. (c) If a witness upon cross examination as to a fom
''§'T/l- ■^•"'^••"'•statementmadeby him relative to the subject matter of tl
er
tie
V . <
m
Proof of con* cause, (d) and inconsistent with his present testimon
■uumanta docs uot distinctly admit that he has made such statetnent
t 'I :
punged from the Judge's notes ; other-
wise the ezaminiog party will be bound
by them as his own etidenoe and his
opponent entitled to re-examine the
witness upon such now or collateral
matter: (BUwett t. Treffonninff, 8 A.
6 E. 664.)
(6) As time, place, &o., and other
circumatanoes calculated to refresh
the memory of the witness in such a
manner as to prepare him for the con-
sequences of mis-statement The
object of laying a foundation for the
admission of oontradictory evidence is
more particularly to enable the witness
to explain his previous statement.
For this purpose, and for this purpose
only, it is apprehended that the wit-
ness may be asked whether he ever
made such previous statement, and at
the same time may be mentioned to
him the name of the person to whom
or in whose presence he is supposed to
have made it: (see Croxoley t. Page,
7 C. 6i V. 791.) It must be in the
knowledge and experience of every
man that a slight hint or suggestion
of some particular matter connected
with a subject, puts the faculties of the
mind in motion, and raises up in the
memory a long train of ideas connected
with that subject, which until that
hint or suggesUon was given were
wholly absent firom it. For this rea-
son the proof that at a time past a
witness has spoken on any subject
does not lead to a legitimate concluaion
that such fritness, at the time of his
examination, had that subject present
to his memory. To allow the proof
of his former conversation to be ad-
duced without first interrogating him
as to that conversation and reminding
him of it, would in many cases have an
unfair effect upon him and upon his
him
credit, and would deprive mm ,t
that reasonable protecUon, i»hioh it L
the duty of the Court to afford to evei^
person who appears as a witness-
(The Queen'a Case, Abbott, C.J qr
&B. 800.) '^^*
(c) Taken from Eng. Stat. 17 4 lo
Vic. cap. 125, s. 23. -Founded upon
2d Rep. C. L. Com. s. 14.-ApplieJ !
County Courts. This enactment seta
at rest doubts caused by a conflict of
authorities.
(d) That is, a statement made at
any time previous to his examination
in chief, but in reference to the Bub-
jeot matter of the cause. The latter
words deserve especial attention
A witness cannot be contradicted as to
any statement provided it be in anymv
connected with the subject matter be-
fore the jury. Contradiction if allowed
on every pretence would invohe incx-
tricable confusion by the production
of innumerable collateral issues not at
all affecting the merits of the cause.
The limitation sought to be imposed
would appear to be to allow contradic-
tion as to statements not purely col-
lateral. What statements are collate-
ral — what not? Ixt Attorney Oentraly
mtcheock, (1 Ex. 100,) Pollock, C.B.i
observed, '* that the statement must be
connected with the issue as a matter
capable of being distinctly given in
evidence, or it must be so far connect-
ed vith it as to be a matter which if 1
answered in a particular way would
contradict a part of the witness's testi-
mony ; and if it is neither the one
nor the other of these, it is collateral
to, though it may be in some sense
connected with, the subject of inquiry.'.
Now no matter is capable of being dis-
tinctly given in evidence that is not
relevant to the subject matter in issue,
fcClJ']
OBOSS-EXAMININa WITNESS.
309
t(f\ mav be given that lie did in fact make it : (/) but^, adTem
prOOl \PJ ^ ° . . ^, . . „ ,", wltnew.
Lfoie sttch proof can oe given, the circumstances of the sup-
. rtjg ig a principle which extends
"•S perhaps only one exception, men-
IlTed in note a to preceding section :
X) The question as to what evi-
i .1 !■ relevant to the subject matter
tissue of course must depend upon the
tare of the cause and the issues
I'ised. Eeference may be had to the
/'.iimrinit oases : Gilbert v. Ooodtrham,
S C. C. P. 89 ; <^<^^^«f ▼• Rutherford,
0B&B.802; Heyy. Moorhouaefimag.
jf C. 62 ; Buekhouae t. Jones, 6 Bing.
« C. 65 » R^^^ ^' ^ '"'<"*» 8 B. & 0.
nk' TtinchiU V. Wynne, 2 B. & A.
y Va«» r. -&yon», 6 M. & G. 1047 ;
JiijA T. CAflf^wr, 14 L. J. C. P. 84 ;
Mhtrit-^- Taylor, 14 L. J. Ex. 86 ;
jfurray t. Gregory, 19 L. J. 865 ; Al-
id V. ^<>y<'^ Exchange Assurance Co.
181. J.Q- J^' ^21 ; Daines t. Hartley,
3 jt, 200 ; 5cr7y v. Alderman, 18 C.
M Two things are essential to the
jtlBissibility of proof as to a previous
statement, first, that it be relevant to
the subject matter of the cause, and,
secondly, that it be inconsistent with
the testimony of the witness at the trial.
[/) Of course if the witness admit
tie previous statement, there will be
no necessity to give other evidence
of it If he deny it, evidence to prove
it may be given independently of this
section. But if he say he does not
recollect, and so neither distinctly ad-
mit nor deny, then under this enactment
the previous statement may be proved
by independent evidence. Before this
Act the right to do so was doubtful :
(gee Pain v. Beeston, 1 M. & Rob. 20 ;
dmUy V. Page, 7 C. & P. 791 ; Long
T, Hitchcock, 9 C. & P. 619.) The
statement meant appears to be a ver-
bal one, as previous written state-
ments are provided for by the next
section (clxi). In applying this sec-
tion to practice it must be remembered
that immediately after asking the wit-
ness whether he made any previous
statement or representation inconsis-
tent with his present testimony, he
should be asked whether he made the
statement in writing or by parol : (The
Queen's Case, 2 B. & B. 292.) If a
witness in chief on the part of the
plaintiff being asked whether he re-
members a quarrel taking place be-
tween A. and B., answer that he has
heard of a quarrel between them but
does not know the cause of it, and such
witness is not asked upon his cross
examination whether he has or has not
made a declaration touching the cause
of the quarrel, the counsel for the de-
fendant cannot, in order to prove such
witness's knowledge of the cause of
the quarrel, afterwards examine a
witness to prove that the other witness
has made such a declaration to him
touching the cause of such quarrel :
(lb. 299.) So if he answer that he
does not remember it, and is not asked
on his cross examination whether he
has or not made a declaration respect-
ing such quarrel, the counsel for the
defendant cannot, in order to prove
that such witness must remember the
quarrel, afterwards examine a witness
to prove that the other witness has
made such a declaration : {lb.) If a
witness in support of a prosecution
has been examined in chief, and has
not been asked on cross examination
as to any declaration made by him or
acts done by him to procure persons
corruptly to give evidence in support
of the prosecution, it is not competent
to the accused to examine Witnesses
in his defence to prove such declaration
or acts without first calling back such
vritness in chief to be examined as to
the fact whether he ever made such
declaration or did such acts : (lb 811.)
If a witness is called on the part of
the plaintiff or prosecutor, and give
evidence against the defendant or ac-
cused, and if after cross examination
the defendant's or accused's counsel
discover that the witness so examined
has corrupted or endeavoured to cor-
rupt another person to give false tes-
S
'm
i '
•in.
St.
m
M
I
I. •■i -I
Mi'
Hi,
^^i^i-
{ iPi
h
i\m
810
THE COMMON LAW PBOOEDUBE ACT.
m
h I'J.
W
[«• dxi.
c>»>^
H
■' • ■)
posed statement, sufficient to designate the particular ocoas'
must be mentioned to the witness, and he must be ask a
whether or not ho has made such statement, (g)
tHi^f A p^ ^^^^- W ^ witness may be cross-examined as to previous
•^- "**'■•**• statements made by him in writing, or reduced into writinij ('\
<j«jhM«n^ relative to the subject matter of the cause, (j) without such
futoi^Bta ^"*^"g ^^^^S 8l»o^n *o ^i™i (*) ^^^ if »* w intended to con.
in writing, tradiot such witness b^ the writing, hb attention must, befor
such contradictory proof can be given, be called to those parts
of the writing which are to be used for the purpose of so con
■c.e/i %i
[•;>
'<■ )
. !|
T '
timony, in such case the counsel for
the defendant or aoooaed is not per-
mitted to give evidence of suoh corrupt
act of Bucli witness, without calling
him back : {lb.) Where in an action
against a company for work done,
plaintiff proved by a witness that the
directors had at a certain meeting em-
ployed him to do it, and tiie witness
was afterwards asked in cross exami-
nation whether the chidrman had not
told the plaintiff on that occasion that
whataver he did must be at the risk of
himself and others, and that the Com-
pany could not pay him, which the
witness denied, and defendant having
called another witness to contradict
him in that respect, it was held that
pluntiff might give evidence in reply
by way of rebuttal: {Copt v. The
Thames Haven ^ Dock Co. 12 Jur.923.)
{g) See note b to previous section
oliz.
(A) Taken from Eng. Stat 17 & 18
Vic. cap. 125, s. 24 — Applied to County
Courts. — Founded upon 2d Bep. G. L.
Comrs. s. 15. The otgect of this en-
actment is to reverse a rule laid down
in the Queen's Case (2 B. & B. 286),
and condemned by the Commissioners.
(t) As to parol statements under
similar circumstances see preceding
section (clz.)
{j) As to these words see note d to
preceding section.
(k) The old rule grounded upon the
principle that the best evidence of the
contents of a writing is the writing it-
self, that the best evidence ought to be
produced, and that the Court oueht to
be put in possession of the whole do
cument, in some cases worked unrea
sonably. The rule was not questioned
where the object of the examinini
counsel was to establish the contents
of a written document as a fact mate-
rial to the merits of a cause. But
when the object was merely to test the
memory of the witness or to discredit
him, the application of the rule though
supported by puthority, was much
doubted by eminent lawyers. Lord
Brougham more than once declared
that the rule as applied to the latter
case could not be defended ; but was
founded on a gross fallacy. Upon one
occasion he thus forcibly expressed
himself : '* If I wish to put a witness's
memory to the test, I am not allowed
to examine him as to the contents of a
letter or other paper which he has
writien. I must put the document into
his hands before I ask him any ques-
tions upon it ; though by so doing he
at once beoomes acquainted with its
contents, and so defeats the object of
my inquiry. Neither am I in like
manner allowed to apply the test
to his veracity; and yet how can
a better means be found of sift-
ing a person's credit, supposug his
memory to be good, than examin-
ing him to the contents of a letter
written by him and which he believes
to be lost ?" (Speech on Law Reform,
Brougham's Speeches, II. 447.) The
reasoning contained in this speech has
triumphed. Macdonell v. Evant «t al,U
u
. ('
i,clxii-]
OHABaiNQ WITNESS WITH ORIMS.
311
, ting him ; (0 Provided always, thatitsball be competent JJJJjJ^
Ttbc Jo<Jgo ** *°y ^^^^ during the trial, to require *J»« PfO-jSi'JJ"
" . of the writing for his inspection, and he may thereupon ||^ wriu»g,
, gQ(jh use of it fox the purposes of the trial as he shall
rlXII- (»») A- witness may be questioned as to whether J*® jj^^u p^ ^
been convicted of any felony or misdemeanor, (o) and upon A!ite4,t. »!
.■ .u> nuestioned, if he either denies the fact or refuses to ^^^ v^
«er (p) ^* ^'^^'^^ ^® lawful for the opposite party to prove «» of* wit-
it^-i'4^
I^P- tt'f.-^fxjb//^
r n 930; nnd other similar cases, po
• as relating to tbls point arc no
'"In Vhis is a limitation engrafted
in the rule enacted in the first part
"tthe section. The reasons upholding
llimi'ation will bo found explained
!" 7e J to 8. clix. If the witness
"holly deny the document itself or any
Lment in it, the production of the
Lment would, it is apprehended, be
Insldered fresh evidence, and as evi-
y„ee produced by the party cross-
.janiining. Should this be the case,
to the opposite party would be en-
titled to re-examine. The question
lioir far evidence produced is to be
ileciDcd fresh evidence so as to entitle
m adversary to re-examine, is not
iected by this section. Where a wit-
ness for plaintiff swore that he had nev-
er heard of a certain agreement in writ-
inirand it was thereupon put into his
hands, and he was then asked by de-
fendant's counsel if he had ever seen
sny agreement respecting the matter,
towhich he replied, "Never before I
came into Court," held that defendant
ifishing to have it read could only do
so by putting it in as his own evidence :
(f„/, V. Barwood, 16 L. J. C. P. 207.)
(»i) To prevent abuse of the facili-
ties given by the former part of this
section, this proviso is superadded.
Several doubts present themselves upon
the construction of the proviso, which
may be found discussed in Tay. Ev. 2
Edn. ss. 1801, et seg.
(b) Taken from Eng. Stat. 17 & 18
Vic, cap.125, s.25— Applied to County
Courts. Apparently fi>uikd«d upon 2d
Rep. C. L. Conura. a. 16, but bom
much further than reoommendea by
the CommiBsionen.
(o) It waspropoaedbytheCommis-
bioners that only qaeaUona impeaohlng
the witness's obaraoter or atandiog
should be put, with the ooBsequeneea w
denial here enacted, when luok ques-
tions related to ** peijuiy or any othtr
form of crimen fatai.** ft wiU M p«r>
ceived that by virtue of this enaotment
the questions may be put as to provi-
ous oonviotiona for cay felony or mis-
demeanor. A denial will let in the
proof in oontradiotion of wkidi th«
mode is in this section described. In
any event the queations authorised to
be put are such only as hav* a ten-
dency to affect the character or crvdit
of witnesses : (Tay. Ev. 2 Edn. ss.
1298, et ttq.) As such in many casea
they may be wholly irrelevant to th«
subject matter of the cause, and in hni
the exception to the general rvde men-
tioned in note a to a. dix. Questions
tending to degrade the character of the
witness by imputing to him misconduct
not amounting to legal criminaliW re-
main as before the Act : (Tay. Ev. 2
Edn. ss. 1313 etaeq, ; Jttjf. t. OarbHU
2 C. & K. 474 ; FSiher v. ItomiUh, 22
L.J. C.P. 63 ; OahitrHe v. London Dock
Co, 24 L. J. Ex. 140.)
(p) A witness so interrogated has
before him one of three courses:
— to admit the crime ; deny it; or
refuse to answer. If he admit, Uxere
will be no necessitT for f\irther pro-
ceedings to establish it If he-
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812
THE COMMON LAW PROCEDUBi: ACT.
["• cUiii.
I ' ''
M I *
S!^n'i?J.**""°^ oonyiotion, (3) and a certificate containing the substance
MnTallkS *°^ ®^®°* ^^^^ (omitting the formal part) of the indictment
Mh«iiu7i>«.and conviction for such offence, (r) purporting («) to be sicn d
by the Clerk of the Court or other officer having the custod
of the records of the Court where the offender was oonvioted (i\
or by the Deputy of such Clerk or Officer (for which oertifi'cat
a fee of ^ve ahilUngn and no more shall be demanded or taken")
be luffleiMit shall upon proof of the identity of the persons (v) be sufficient
'"■""^ evidence of the said conviction, {v) without proof of the signa
ture or official character of the person appearing to have siened
the same, (w)
i'^^J^V^.i'iloM CLXin. {x) It shall not be necessary to prove by the
^ A / 5. — '■
ifr
denv it or refase to answer, pro-
oeedings may be had under this sec-
tion. No witness can be excluded
on tiie ground of crime (16 Vic. cap.
19), bat proof of crime may lessen the
▼aloe of his testimony when admitted.
If his testimony be opposed to that of
another witness of unblemished char-
acter, the question of veracity can be
the better estimated by the jury when
the character of each witness is fully
before them.
(q) No man can be said to have
been convicted unless the judgment
of the Court upon the indictment
against him has been pronounced:
(see Rex v. Bridget, 1 M. & W. 145 ;
Reg. ▼. Whitehead, 2 Moo. C. C. 181 ;
Burgess v. Boete/eur, 7 M. & G. 481.
See further note r, infra.)
(r) This enactment as to the con-
tents of the certificate is substantially
the same as Prov. St. 4 & 5 Vic. cap.
24, 8. 27, taken teom Eng. St. 7 & 8
Geo. IV. cap. 28, s. 11. And under
the latter, a certificate from a clerk of
assize setting forth that the prisoner
was " tried and convicted" of felony,
but not showing that any judgment
had been given on the conviction,
was held insufficient: {Reg. v. Ack-
royd et al., 1 C. & K. 158; see
further Burgett v. Boete/eur, ubi
iupra.) At one time the conviction
could only be proved by the produc-
tion of the record of conviction : {Me-
donnell v. Evatu et al., Greswoll T 11
C. B. 930.) ' '^'
(a) Purporting. The exact meanini?
to be attached to this word may b«
gathered firom the crncluding part of
the section, to the efiect that the cer-
tificate may be produced "withont
proof of the signature or ofiBcial char-
acter of the person appearing to have
signed the same." And this digpens-
ing with proof of signature and oflScial
character appears to be a feature which
does not prevail in 4 & 5 Vic. cap. 24
B. 27, already noticed (note r). '
(0 This means an officer of the
Court where the offender was convicted
or an officer having the custody of tlie
records of that Court. A certificate
from the Clerk of the Crown as to
convictions at Courts of Oyer and Ter-
miner and General Gaol Delivery, or
from Clerks of the Peace as to convic-
tions at Quarter Sessions would be
sufficient.
(u) The identity must of course be
proved by evidence aliunde the csrtifi-
cate. The Clerk who saw the prisoner
sentenced or the goaler who had him
in custody under the sentence miglit
be called for the purpose.
(v) See note g, ante.
(w) 6ee note s, ante.
(x) Taken from Eng. Stat. 17 & 18
Vic. cap. 125, s. 26. — Applied to
County Courts. — Founded upon 2Dd
Rep. C. L. Comrs. s. 18.
^cU^i^.]
PROOr or ATTESTED DOCUMENTS.
818
iittftiog witneaa, (y) any instrument to the v-lidity of which ^|*^,*i"«^a
ittwtation is not roquisito, («) and such instrument may do J",*^,^*^"^*"
ittwtation
P .
ittcsting
^rei bv admission or otherwise, as if there had been no wurMiuind
pfou« •' , by i*w.
'...<:ni* witness thereto.
lu) j. I. Froof bv tlio Bubsoribing
litneM may b« mnae, but shall not be
neceswy ; o^*' modes, If more oon-
Jeaient, m»y vrith resnoct to tho wrlt-
jgMembraoeil wltbia this enaotment bo
ijopted.
M The obieot of this enactment is
(AaallfV the rule "that before an
ittestcd aooument can be rcooivoct in
jjjjence, tho attesting vritnci!B or wit-
nesses must be called, or his or their ab-
senceocounteil for : •' (Cuaaona t. Skin-
I,, 11 M. & W.161 ; J)oe d. McDonald
T Titi!,g tt *tl. 6 U. C. R.107 ; Binnrtt
liKDonidd, MS. E. T. 8 Vic. R. & II.
pi». " Evidence," T. 2 ; J)flden t. Bul-
u 3 U. C. R. 10 ; Fiahmongera' Com-
^ny T. Dimadale, 12 C. B. 657.)
gome documonta aro often unneces-
urily attested. Attestation at com-
Don law is unnecessary It is only
reqaisite when mado so by somo
stitote, rule of Court, power, or other
ict passed or made by public bodies
or priTate indiridua shaving autho-
jity to impose tho obligation. Such
for example, wills under the Eng. St.
of Car. 11. as amended by our 4 Wm.
IV, cap. 1, B. 61 ; memorials to deeds
under our 9 Vic. cap. 34 ; or appoint-
ments to be mado in tho presence of
nitnesses, as prescribed in the power
creating the right to appoint. But no
law makes attestation nocossary to the
TtliJity of a promissory note or bill of
mhange. Those and buch like do-
cuments might bo proved with
maoh loss expense than by the pro-
duction of a subscribing witness,
whose residence may be diflioult to
find, or, if found, far A'om the place
of the trial, and who, if produced, in
all probability will only bo able to
speak as to his signature but not as
to tho circumstances under wliicli tho
writing was signed. It is now enacted
that any instrument, though attested,
to tho validity of which attestation is
not requisite may bo proved *' by ad-
mission or otherwise as if there had
been no attesting witness." But even
before this Act in an action on an at-
tested promissory note, it was consi-
dered repugnant to reason to hold it
indispensable to produce tho subscrib-
ing witness, wiien the defendant had
admitted his signature, under circum-
stances which precluded him from dis-
puting the note : {Perry v. Lawleaa, 6
U. G. R. 614.) Nor was it necessary
to call tho subscribing witness when
the document was proved by secondary
evidence, for instance, the production
of a copy: {Poole v. Warren, 8 A. &
E. 582.) And it was held where a
party refused to produce a deed at a
trial, and a copy of it was in conse-
quence duly proved, that the party
could not afterwards exclude the copy
by producing the original, and requir-
ing it to be proved by the attesting
witness : {Edmonda v. Challia, 6 D. &
L. 581.) The test in every case will
be — is this document one that requires
attestation to make it a valid instru-
ment ? It is a question whether an
attorney who attests a document (cog-
novit or warrant of attorney, N. R. 20,
or satisfaction piece, N. R. 58) by di-
rection of the Court can be considered
an attesting witness within the prin-
ciple of the cases : (see Bailey v. Bid-
well, 2 D. & L.246 ; Street er v. Bdrtlett,
5 C. B. 562 ; Poeock v. Pickering, 21
L. J. Q. B. 816.) The principal do-
cuments which must still be proved by
calling the attesting witnesses are enu-
merated in Tay. Ev, 2 Edn. ss. 1637, et
aeq. It is doubtful whether a deed can
in an ex parte case be legally proved
except by the subscribing witness
when it is attested. In a recent case
it was said by Vice-Chancellar Kinder-
sley that it could not be . (In re Reay,
1 Jur. N. S. 222), but Mr.Taylor pro-
nounces the decision in this case to be a
1-
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814
TUB COMMON LAW TROCEDURK ACT.
[•» clxiv.
C*yx.
U.
^c'^^ JI^S-'g^lV. clxiv. («) Compamon of a disputed writing with any
^ a./5* tm^H^n' ^"^'"K proved to the satisfuotion of the Judge to bo gonuino,(i)
of dupaud shall bo poriuittod to be made by witnesses ; (c) and such
writing!) and the evidence of witnesses respecting the name
^"!
mlsohleycus doctrine, and bopoa that
It will not booomo ostabliflhcd law :
(Tay. Er. 2 Edn. s. 1040^
(d) Taken from En^. Stnt. 17 & 18
Vio. cap. 125, s. 27. — Applied to
County Courts. — Founded upon 2nd
Uep. C. L. ComrH. a. 10. Before this
Act whenever the gonuineness of a
writing was in dispute, it was not al-
lowable to put in evidence other writ-
ings by the same party admitted or
proved to bo fronuine for purposes of
comparison when the latter were not
directly oonnoctod with the subject
matter of tho cause. A witness might
speak from previously having seen the
party write, or from having received
writings from him, the genuineness of
which there wa:4 no reason to doubt,
but could not at the trial compare any
such writing with the one in dispute,
BO as to pronounot} an opinion upon
the genuineness of the latter.
(b) For convenience of expression
tho writing here mentioned may be
described as the " standard." Before
admission it must bo " proved to the
satisfaction of tho Judge to be genuine.
The mode of proof, it is understood,
must bo legal proof. The " standard "
may bo and in most cases will bo col-
lateral to the issues between the par-
ties, and as a foundation for future
evidence must be established to be ge-
nuine. In the case of Moss v. Trwieott,
which was tried at the Warwick Sum-
mer Assizes, 1856, before thelato Chief
Justice of the Common Pleas, it was
proposed to put in, for the purpose of
comparison only, certain documents
which were not admitted to be in tho
handwriting of tho defendant. The
learned Judge observed that he and not
the jury must try in the first instance
the collateral question whether those
documents were genuine, and he ob-
served that practically the effect would
be to leave the whole question to him
without the Jury. The result was that
only Huoh documents as were admitted
to be genuine were used for the pur.
poso of comparison : (Markham'iG T
r. Act, p. 122.)
(r) Tho reasons that prompted the
Commissioners to recommend the
changes carried into effect by this sto-
tion are thus given— '< It teems to uj
indefensible in principle to allow a
witness to institute a compari )on with
the recollection of writings which he
may have seen long ago, and of which
but a faint trace may remain on his
mind, and yet to prohibit a fresh com-
parison with genuine writings, more
especially when for the purpose of try-
ing the accuracy of tho witness, it ig
proposed to try the test of requiring
his judgment on writing which it not
dispufeJ. Still leas defensible in our
view h it to leave the jury to act on
the judgment of a witness, who after
all can only form that judgment on a
comparison of the disputed writing
with others, and yet to deny the jury
the opportunity of forming their own
judgment on the same materials."
The real change wrought by this Act
ia to allow the *' standard" to be sub-
stantially produced in Court instead of
being ideal aa formerly. And being
produced, proved,and admitted, it is as
much tributary to the judgment of the
jurors as of the witness. The general
wording of the section under consider-
ation may perhaps bo held to admit of
the production of experts, or men whose
business it is to compare styles and
character of writing, and who in con-
sequence are skilled in that science, if
such it may be termed. This descrip-
tion of testimony may, at least, it is
conceived, be received as rebutting
evidence. All evidence of handwrit-
ing, except wlicn the witness sees the
document written, is in its nature com-
parison. It ia the belief which a wit-
cUtI']
COMPARISON or UANDWRITINa.
815
„jjy bo lubmittod to the Court and Jury, (t/) as evidence of *'i»Jn«*»»»»
the iroDui'><'°®'^' or otherwise of the writing in dispute.
.MienUrUlM upon comparing the
.rUinil in que't'o" either with ua ex-
.fflDlttr la his mind, derited from aome
.l\oM knowledw, or from an exem-
L exhibited to him when teetifying.
\s to tlie firat part, the knowledge of
the proposition may have been acquir-
ed either by seeing the party write,
ia which case it will be stronger or
weaker sooording to the number of
times and periods and other oiroum-
BttDcei under which the witness has
•ten the party write: (OarrelU t.
AUxander, 4 Bsp. 87 ; Powell j. Ford,
« Stark, N. P. C. 164 ; Lewit r. Sapio,
M. & M. 39) ; or the knowledge may
liive been acquired by the witness
haTlng se<n letters or other documents
professing to be the handwriting of the
party, and having afterwards commu-
nicated personally with the party upon
the contents of those letters or doou-
meots or having otherwise acted upon
ttiembywrittenanswers producing fur-
tbercorrospondenoe or acquiescence by
the party in some matter to which they
relate, or by the witness transacting
with the party some business to which
they relate, or by any other mode of
communication between the party and
the witness, which in the ordinary
coarse of transactions induces a rea-
tooable presumption that the letters or
documents were the handwriting of the
party: (Ferrerty. Shirley, Fits. 195;
Bullet's Niti Print ; Carey y. Pitt,
Peake, Add. Ca. 180 ; Tharpe v. G^i*-
burni, 2 C. & P. 21 ; Harrington v.
Fry, R. & M. 90) ; evidence of the
identity of the party of course being
added aliunde if the witness be not
personally acquainted with him. These
were the only two modes of acquiring
a knowledge of handwriting which
have hitherto been considered suffici-
ent to entitle a witness to speak as to
his belief in a question of handwriting :
(Ra V. Cator, 4 Esp. 117 ; Doe d.
mdd V. Suckamore, 6 A. & E. 708 ;
Fittwalter Peerage Case, 10 CI. & Fin.
193; see also Oriffitht v. Ivery,^l A.
& E. 822 , HugheM T. Uoger$, 8 M. &
W. 125 ; Voung v. Jlonner, 2 M. & R.
586. ) But as to the second part of the
propositien above stated and that
which now constitutes a third mode.
It is by satisfying the witness by some
information or evidence that a written
paper is in the handwriting of the
party, and then desiring him to study
that paper, so as to refresh his know-
ledge of the handwriting of the
partT, and fix an exemplar in his
mind, and asking his belief respect-
ing it, or perhaps (ted qu.) by merely
putting certain papers into the wit-
ness's nands, without tolling him who
wrote them, and desiring him to study
thom and acquire a knowledge of the
handwriting, and afterwards showing
him the writing in dispute and asking
his belief whether they are written by
the same person: {Doe d. Mudd ▼.
Suekermore, 5 A. & £. 708.^ In an
action for a libel charging tne plain-
ti£f with having in a letter published
a libel on the defendant, to which the
defendant pleaded in justification that
the plaintiff did in fact publish the
libel in question, and it appeared that
in the libel thus alleged to have been
written by the plaintiff, the name of
the defendant was spelt in a peculiar
way : Held, in order to prove that the
plaintiff wrote the libel, other docu-
ments written by him in which the
name was so spelt were receivable in
evidence : (Jirookt v. Tilchbome, 6 Ex.
929.)
(d) That proof of handwriting may
be submitted to the consideration of a
jury, like every other species of evid-
ence, is abundantly clear. From the
highest degree of certainty, carrying
with it perfect assurance and convic-
tion to the lowest degree of probabi-
lity upon which it is found to be unsafe
to act, it may be and constantly is so
submitted: {Doe d. Mudd v. Sucker-
more, Williams, J. 6 A. & E.719.) The
writings or "standards " collaterally
r' M
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316
THE COMMON LAW PROCEDURE ACT.
[s. clxv.
'^Kumnts'^ And with respect to the admission of Documents • U) Be 'f
enacted as follows :
ffi'cM CLXV. (/) Either party may (g) call upon the other party
A.i862,«.n7.i,y notice, (A) to admit any Document, (t) saving all just ex
introduce aud the evidence of witnesses
respecting tlie same may now botli be
submitted to the jury. It is for them
to exeroise an independent judgment
upon the testimony of the witnesses,
and by a process of reasoning in many
respects similar to that of the wit-
nesses, but in view of the whole case
submitted of a much more extended
and comprehensive character.
(«) The law contained in the follow-
ing enactments is one that has prevailed
in Upper Canada for years. Its ope-
ration is by deliberate admission made
before trial to dispense with the more
formal and expensive mode of proving
the documents in question. The object
being to save expense, each party hav-
ing an opportunity of preventing, by
timely admissions, the cost of proving
the documents proposed to be given in
evidence against him. The practice
is one of a most salutary nature, and
in its application should rather be
extended than restricted. Both iu
England and in Upper Canada there
have been rules of Court in substance
the same as the enactments of this Act.
(Rules U.C. 5 & 6 of T. T. 8 & 4 Wm.
IV. Cam. B. 7, copied from £ng. Rules
6 & 7 of H. T. 2 Wm. IV. 3 B. & Ad.
892 ; and Rule U. C. 28 of E. T. 6 Vic;
Cam. R. 32, copied from Eng. Rule 20
of H. T. 4 Wm. IV. 5 B. & Ad. xvii.)
One feature of the following enactments
is the omission of all mention of either
summons or. order made necessary by
the former practice, and the rendering
the notice to admit in itself as effectual
as an order. Another feature is the
proof of admissions and notices to pro-
duce by affidavit, instead of by oral
testimony as heretofore: (ss. clxvi.,
clxvii.) thus effecting a considerable
saving of expense in the costs of a suit.
(/) Taken from Eng. Stat. 16 & 16
Vic. cap. 76, s. 117. — Applied to
County Courts. — Founded upon 1st
Rept. C. L. Comrs., s. 72.
(ff) I.e. In all cases of trials, assess
ment, or inquisitions of any kind eithl"
party may, &o. : (N. R. 80.) ' '
(A) A party calling upon his adver
sary to admit documents must servn
the ordinary notice to admit and Bro
ceed as direuted in N. Rs. 29 and 30-
(Anon. Chambers, Sept. 22d, igge'
Burns, J.} The notice must be smed
a reasonable time before trial • (%,n
V. Billingtley, 3 Dowl. P. C. 810, S
see the form prescribed in N. R. 29 \
(t) Any document. The rule of prw-
tice extends to every document which
the party proposes to adduce in evid-
enoe, and is not confined to documents
in his custody or control : (Rutler v
Chapman, 8 M. & W. 888.) The fact
of the document not being in bis pog.
session works no hardship upon his
adversary, because in order to obviate
any mischief or hardship arising from
the difficulty of ascess to it, the Judge
at the trial has power to say that
the document is not one which the
party ought reasonably to be called
upon to admit : {lb. per Parke B.)
In one case, on plaintiff paying to de-
fendant the expenses of examining a
foreign judgment and other documents
abroad, an order was made for the d^
fendant to pay the expenses of proving
them at the trial (such proof having
been satisfactory to the Judge, and eo
certified by him) : {Smith v. Birdetal
3 Dowl. P.C. 641.) The practice as to
giving notice has been held to be im-
perative and to apply to all cases, whe-
ther the document proposed to be given
in evidence was put in issue on the re-
cord or not: {Spencer v. Barough,^M
& W. 426 ; but see note/>, infra.) The
fact that the opposite party had in po-
sitive terms refused to make any ad-
mission was held not in the least to-
dispense with the necessity of serving
the notice: {lb.) But the old rules were
held neither to apply to a case where
ancient records of a public nature re-
ADMISSION OF DOCUkENTS.
g. cUv.]
ceptioDS, U ) and in case of refusal or neglect to admit, {k) the oJJ^k «
costs of proving the Document shall he paid hy the party so
817
on
ooired not proof but explanation and
Lnslation : {Baitard v. Smith et al.
^A &E. 218), nor to original affida-
vits in the Court of Chancery, which
could only be produced by an officer of
that Court: {lb.)
(j ) The object of an admission under
this section is to dispense with the
production of an attesting or other
iritness, acquainted with the handwrit-
inir to be proved. The party called upon
to admit sees the document, and does
so for the purpose of ascertaining
whether there is any ground of objec-
tion to it. If he perceiye an interli-
neation, either he objects then, or
t must be taken that he dishonestly
declines to do so ; for in the absence
of objection his opponent will not pro-
duce the attesting witness, who might
be able to explain the interlineation. An
admission therefore so far recognises
the general character and accuracy of
the document, that no objection can
afterwards be made to its reception on
the ground of interlineation : (/Vee-
tnan T. Steggall, 13 Jur. 1080 ; see also
Pook V. Palmer, C. & Marsh, 69.) The
porty vhen served with a notice to ad-
mi 3iay inspect if he chooses. If he
make the admission, whether he in-
inspect or not, he must bear the con-
sequences. His consent is an ad-
mission that tbere is such a document
as that in the notice described :
{Dot d. Wright v. Smith, 8 A. & E.
655.) And in some cases it may
be an admission of facts mentioned
in the description of the document, for
instance, acceptance of a bill when
described as accepted by A. B. &c. :
{Wilkes V. Hopkins, 1 C.B. 787 ; Chap-
lin V. Levy, 9 Ex. 581.) However,
recent authority seems to militate
with this position : {Pilgrim v. South-
ampton Railway Company, 8 C. B.25.)
Admissions inadvertently made may in
certain cases be withdrawn by Judge's
order obtained for that purpose : {El-
lon V. Larking, 6 G. & P. 885) ; but a
mere notice of withdrawal served upon
the opposite party is not sufficient:
{Doe T. Bird, 7 C. & P. 6.) When a
party is called upon to admit a copy,
it involves the power of seeing that it
it a copy, that is, of seeing the original :
(Ruttery. Chapman, Aldt>rson, B., 8 M.
k W. 891.) But an admission of a
copy cannot under any circumstances
be taken as an admission of the origi-
nal, and whether the notice do or do
not in ruch a case contain a saving of
all just exceptions, the admission of
the copy will not entitle plaintiJBT to
put in the copy without first account-
ing for the original : {Sharpe t. Lamb,
11 A. & E. 806. See also Goldie y.
Shuttleworth, 1 Gamp. 70.) Neither
does the admission obviate the neces-
sity of producing the document ad-
mitted at the trial : (see Vane v. Whit-
tington,*2 Dowl. N. S. 757 ; Leslie T.
Leahy, 5 U.C.O.S.487.) The admission
when made is conclusive : {Langlty t.
The Earl of Oxford, 1 M. & W. 508.)
And when made for any one trial con-
tinues to be so for any future trial : {El-
lon V. Larkins, 6 G.& P. 885 ; Doe Weth-
erall y. Bird, 7 C.& P.6 ; see also Bope
v. Beadon, 2 L. M. & P. 598.) A
variance in the description of a docu-
ment not of a nature to mislead, will
clearly not release the party who
makes an admission from his obliga-
tion : {Field v. Flemming, 5 Dowl. P.
C. 450 ; Bittletton y. Cooper, 14 M. &
W. 899.) It does not appear to be ne-
cessary to identify the document pro-
duced at the trial with the one admit-
ted : {Doe y. Smith, 8 A. & E. 265,Gol-
eridge, J.) But prudence will gener-
ally dictate the propriety of being pre-
pared with such proof, or at least of
having the documents that are to be
produced, signed or marked by the
party who made the admission : (see
Clay v. nackrah, 9 G. & P. 47 ; Doe
d. Tindal v. Roe, 5 Dowl. P. G. 420.)
{k) To determine when the party
neglects or refuses to admit it is man-
ifest that there must be as regards
time, some limit within which the ad-
- -.,».S,"tiV-<l { ' B"
818
THE COMMON LAW PROCEDURE ACT.
[s. dxvi.
idmitDocn- neglecting or reftising, {l) whatever the result of the
may be, (m) unless at the trial the Judge shall certify that th
refusal to admit was reasonable ; (n) and no costs of mm
any Document shall be allowed unless such notice be given ( \
except in cases where the omission to give the notice is in th
opinion of the Taxing Officer, a saving of expense, (p)
^^i^^-i ^ ii^ofL. pf CLXVI. (q) An affidavit of the Attorney in the cause, (,)
" "^ /cc" A.i862,i.ii8.Qy jjjg eiert^ (g) of the due signature of any admissions n
■'b \n
SJJJSot? ^° pursuance of such notice, (0 and annexed to such affidavit
iftission must be made. No limit ia
specified in this Act. Before the Act
the limit was forty-eight hours, which
as a conTenient period in ordinary
oases, it is presumed will be adhered
to. The submission may be signed by
the attorney or by his managing clerk :
(see Taylor y. Willant, 2 B. & Ad. 846.)
(l) Not, it would seem, if the wit-
ness called to prove the dcftument in
his testimony in chief give evidence
on any other fact than the genuineness
of the document : (Slraeey y. Blake, 7
C. & P. 404.)
(m) If the party neglect or refuse
to admit, he must pay t^e costs though
the verdict obtained be set aside, and
though before the second trial the ad-
mission be made : (Lewis v. Howell,
6 A. & E. 769.)
(n) To entitle either party to the
costs of proving a document under the
old practice, even after notice, refusal
to admit and order, it was necessary
for the judge to certify that he was
satisfied with the evidence. Now it is
the rule that the costs shall be paid,
"unless thtt judge certify that the re-
fasal to admit was reasonable." ' If
the document be one inadmissible in
evidence, it stands to reason that no
costs can be allowed : {Phillipa v. Har-
ri». Car. & M. 492^
(o) So held in Uoldetone v. Tovey, 6
Bing. N. C. 274.
(jp) The exceptions thus created
may, in some respects, moderate the
rigor of the old practice, which made it
imperative in every case of a written
document, whether denied on the re-
cord or not, to give the notice before
being entitled to costs. How far in
such cases the omission to give the
notice can be risked wi',h safety, most
be determined as actur.1 cases arise for
decision.
{q) Taken from Eng. St. 15 & ig
Vic. cap. 76, s. 118.— Applied to Coun-
ty Courts.
(r) Qu. If after admission there has
been a change of the attorney who wit-
nessed the signature of the admission
would he not still be competent to
make the affidavit here contemplat-
ed? It is only reasonable that he
should be.
(«) ie. Some clerk connected with
the attorney's office, whose duty it is
to attend to the business of the office
and who is himself personally cogni!
zant of the particular fact to be proT-
ed.
{t) The admission may bo either as
to the whole of the documents specifi-
ed in the notice or only as to part, h
either case it may be indorsed on the
notice. In the first case if indorsed
it may be in this form: "I hereby
make the admissions of the documents
specified in the within notice as there-
by required, saving all just excep-
tions." In the second case if indorsed
it may be thus : "I hereby make the
admissions of the documents marked
numbers 1, 2, 8, 6, &c., specified in
the within notice as required therein^
saving all just exceptions." The ad-
mission if not indorsed but written on
a separate piece of paper, ought to be
intitled in the Court and cause.
NOTICES TO PBODUOE.
819
8, olxvii.]
(u) shall be in all cases suffioient evidence of such admis-
sions. («)
CLXVII. (w) An affidavit of the Attorney in the cause, (x) ^^^q^^) I^^Sf t^
or his ClerkpXy) of the service of any notice to produce, (z) in A.i862,'iii». ^z^o.
respect to which notice to admit shall have been given, (a)
^m
ETidenoe of
ond of the time when it was served, with a copy of such notice gerviceof
to produce, annexed to such affidavit, (6) shall be sufficient dnee.
notice to pro-
(u) The affidavit may be to the eflFect
that on &o., A. B. &o., then and still
being attorney for the defendant in the
cause, did in the presence of deponent
gien the admissions annexed and that
the name A. B., set and subscribed to
the admissions, is of the proper hand-
writing of the said A. B., and that the
admissions were made in pursuance of
the notice annexed, upon which tho
admissions are indorsed. As to affi-
davits generally, see notes to s. xxii.,
page 41 of this work.
iv) In a case where defendant ob-
jected to the proof of admissions which
had in fact been made, and plaintiff
was in consequence non-suited, a new
trial was granted, on the ground of
breach of faith, with costs to be paid
by defendant : {Doe Tindal v. Roe, 6
Dowl. P. C. 420.)
(w) Taken from Eng. Stat. 15 & 16
Vic. cap. 76 s. 119— Applied to County
Courts.
Ix) See note r to preceding section.
\y) See note s to preceding section.
(«) It is usual to serve a notice to
produce, whenever it is sought to ad-
duce in evidence a document in the
hands of the adverse party. The notice
is required in order to give the opposite
party a sufficient opportunity to pro-
duce iii document at the trial, and
thereby secure, if he pleases, the best
evidence of its contents. If he neglect
after such notice to produce it, then
the party who served the notice may
give secondary evidence of the con-
tents : (see Dwyer v. Collins, 7 Ex.639.)
The ordinary notice, though served for
a particular assize, is good for subse-
quent assizes without renewal : ( Hope
V. Beadon, 2 L. M. & P.698.) It may
bo in form as follows: — Take notice
that you are hereby required to produce
to the Court and jury on the trial of
this cause {here tpecify the particular
documents), and all other documents,
letters, books, papers, or writings
whatsoever, containing an entry, me-
morandum, or minute, or other matter
in anywise relating to the matters in
question in this cause. — It must be
served a reasonable time before trial.
The question as to what is a rea-
sonable time. seems to rest with the
Judge of assize : (see James v. Mills,
4 U. C. R. 866; McRae v. Osborne ,
et al, E. T. 7 Vic. MS. R. & H. Dig.
"Notice to Produce," 5; Robertson
V. Boulton, lb. same title, 6.) For
further information as to the necessity
for notice to produce its form and ser-
vice, reference may be made to Tay.
Ev. 2 Edn. ss. 410, et seq. and other
treatises on Evidence in general use.
(a) i.e. Under s. clxv. This section
imjiliedly sanctions the rule that a no-
tice to produce served before a notice
to admit, is such a document as may
be specified in the latter, and be fol-
lowed with all the consequences atten-
ding notice to admit when given as to
ordinary documents.
{b) The affidavit may be to the effect,
1. Tnat deponent did on, &o., between
the hours of, &o., serve A. B., &c.,
with a notice to produce, a true copy
of which is annexed, marked A., by
delivering the same to, &c. ; 2. That
deponent did, pursuant to s. clxv. of
the C. L. P. Act, 1856, serve (here
state service of notice to admit) a true
copy of which is annexed, marked B ;
3. That the notice to produce mentioned
an'i referred to in the notice to admit,
>'■•:,* fat-' ' ; ,|l f >■ \
jt^qi
■u
f
'■\ I
ri
320
THE COMMON LAW PROCEDURE ACT.
[s. clxviii.
h
evidence of the service of the original of such notice (c) » d
of the time when it was served.
And with respect to rules for new trials or to enter a verdict
or non-suit ; (d) Be it enacted as follows :
t^ SUi 6^iX'(^i.%l CLXVIII. (e) In every rule nisi for a new trial or to enter
■'"•■£&. ft «- A. 1854, ■.38.' a vcrdict or non-suit, (/) the grounds upon which such rul
^ #t 3/ . • O^
Jtidafor
new Mali,
€
is tbe notice to produce, a copy of
which is annexed, marked A, as afore-
said. As to affidavits generally, see
notes to s. xxii. page 41 of this work,
(c) Qu. Can an affidavit be received
in proof of the service of a notice to
admit ?
(rf) The practice as to rules for new
trials, or to enter verdicts or nonsuits
is altered by the following section. It
is now necessary to state in the rule
nisi the grounds upon which the rule
is granted. This is new in Upper Can-
ada. It is the adaptation of this mode
of procedure like others to the Eng-
lish practice ; but in England the al-
teration was made with a view to ap-
?eals under the operation of Eng. C.L.
'. A , 1854, ss. 83-43 inclusive. These
sections enact that if a rule nisi for a
new trial, &c., be refused or granted,
and then discharged or made absolute,
the party decided against may appeal.
The statement of the grounds upon
which the rule was obtained is in end-
ed to facilitate the appeal. None of the
sections authorizing such an appeal have
been embodied in our C. L. P. A. And
appeals in Upper Canada can only, be
i^ade from the "judgment" of cither
of the Superior Courts : (12 Vic. cap.
63, 8. 40.) By the word "judgments "
is meant not simply the notes or writ-
ten opinions of individual judges when
granting or refusing an application,
but the " Record " of the Court and
quoad that Court the final determina-
tion of the action. Still the change
effected by this Act, may be in itself
beneficial in Upper Canada, though
the cause which mainly originated it
does not exist here. It will be a
gi-eat saving of trouble to the party
called upon to show cause to be inform-
ed without reference to papers filed
the grounds taken by his adversm'
Motions either for a new trial or toeni
ter a verdict or nonsuit, can only be
made in that Court in which the suit
has been commenced and carried down
to trial. So points, if reserved, at the
trial, can only be reserved for the game
Court : (see Vansittart v. Taylor hr
vis, C. J., 4 El. & B. 910.) And'iuall
such cases (he opinion or judgment of
that Court is final: (Uughtay. lum.
ley, 4 El. & B. 358.) One mode of
appeal to a different Court may be
through the instrumentality of a bill
of exceptions, which now as well as
formerly may be tendered to the pre-
siding judge and which he is obliged
to sign and seal : (Stat. 13 Edv. l. c.
31.) But this is a mode of protcdare
which, except in cases of great impor-
tance is never adopted. For all ordi-
nary cases motions for new trials, &c.
have superseded it: {Bernasconi y
FarebrotheP, 8 B. & Ad. 372.)
(e) The first part of this section is
taken from Eng. St. 17 & 18 Vic. cap.
125, B. 33, founded upon 2nd Kept. G.
L. Comrs., s. 25, and the remaining
part from same Statute s. 44, founded
upon same Rept. s. 27. The section
is applied to County Courts.
(/) Generally if the motion be for
a nonsuit the Court will not grant a
new trial : ( Wilkins v. Bromhead, C M.
& G. 963, Maule, J.) If the veraict be
in favor of one of several defendants and
against the others,and the latter apply
to set it aside, the rule must call upon
the successful defendants as well as the
plaintiff to show cause : {Belcher v. •
Magney et al, 3 D. & L. 70.) The Court
has no power to grant a new trial to
one of several defendants upon his ap-
m
RULES NISI FOR NEW TRIALS, ETC.
821
8.C1XV»"']
yi have been granted shall be shortly stated therein; (.9)^^^f^^^
r rovided that in case of any omission, the Court may permit «"»•• "^Jj *>'
the rule to be amended and served again on such terms as
ruw i~ "-~ VL ° . . Proviso:
be deemed reasonable y\ (h) and when a new trial is f/y c
^3/
niicjtion only when a verdict has been
Lnd in favor of the others unless they
•ssent or be made parties to the rule :
(Doe d. Diidgeon v. Martin, 2 D. & L.
L. fiie Queen v. Oompertz et al,
qo'B. 824.) §«.— Where a sole
defendant has a verdict upon two
issues, each of which goes to the
Tfhole cause of action, and the verdict
npon one of these issues is unsatisfac-*
tory, will the Court, at the instance
of tiie plaintiff, grant a new trial
upon the whole record, and there-
by iToid-the verdict on the other
i'saes? {Baxter v. Nurse, 6 M. &
6. 935.) New trials will not be
piinted merely on the extreme right
of the party applying, but only to ad-
rance the substantial ends of justice :
(Brom r Street, 1 U. C. R. 124 ; Doe
i Graham v. Edmondaon, lb. 265 ;
see also iVm7*v. Wilcox, Tay. U.C.R.
358; Honeyman v. Lewis, 28 L. J. Ex.
201:) and will not be granted when
an expensive litigation would be pro-
tracted about a trifling matter : {Petrie
T. %/or, 8 U. C. R. 467.) Where a
fact in issue has been already deter-
mined by a jury, a new trial will not
be granted upon affidavits disclosing
additional evidence, unless it be clear-
ly shown that the opposite party has
set up a case of fraud or perjury :
{Mrucciy. Turner, 28L.T;Rep.l04.)
Thep)vrty moving will in general be
restricted to objections taken by him
at Nisi Prius : (Hall v. Shannon, E. T.
2 Vic. MS. R. & H. Dig., "New Trial,"
XI. 5 ; .Manners v. Boulton, M.T. 7 Vic.
MS. lb. same title, 7 ; Doe d. Mon-
nough et al v. Maybee, 2 U.C. R. 389.)
Time for motions see N. Rs. 40 et aeq.
To entitle plaintiff to move to set
aside a nonsuit and enter a verdict for
himself, it must be shown that he ob-
tained leave for that purpose from the
judge at Nisi Prius : (Treacher v. Hin-
ton, 4 B. & A. 413.) And instead of
V
entering a verdict for him, the Court
may in its discretion grant a new
trial : (Doe d. Wyatt v. Stagg, 6 Bing-
N. C. 5o4 ; Higgins v. Nichols, 7 Dowl.
P. C. 651 ; Wilkins v. Bromhead, 7
Scott N. R. 921.^ So to entitle a party
to enter a nonsuit, leave at Nisi Prius
is necessary: (Minchin v. Clement, 1
B. & A. 262 ; Rickets v. Burman, 4
Dowl. P. C. 678.) Where leave is
reserved at Nisi Prius to move to en-
ter a verdict, if the Court should be of
opinion that there was evidence to go
to the jury in support of an issue,rea-
Bonable evidence to maintain the issue
is meant, and not evidence which would
merely lead to conjecture : [Reid v.
Hoskins, 26 L. T. Rep. 149 ; Avery v.
Bow'den, lb. 119; Avery y. Bowden,
28 L. T. Rep. 145.) There is a dis-
tinction between the cases of "a point
reserved," and " a bill of exceptions,"
' where, if there be a scintilla of evi-
dence, and the case was not left or
desired to be left to the jury, a venire
de no novo must be granted : (/6.)
(g) The grounda mvLsthe specifically
stated in the rule. It will be insuffi-
cient to state merely " on grounds set
forth in affidavits filed : " (Drayson et
al V. Andrews, 10 Ex. 472. ) The practice
in this respect is made to resemble that
of moving to set aside awards : (N. R.
141,) a practice which has existed in
Upper Canada from a very early per-
iod: (Rule 3 E. T. 6 Geo. IV. Cara.R.
3 ; also Grand River Navigation Co. v.
McDougall et al, 1 U. C. R. 255.) As
to the sufficiency of statement of
grounds of objection In cases of awards
see Chit. Arch. 8 Edn 1505.
(h) The proviso introduced into this
section as to amendment, and placed
within brackets, seems to be original ;
but independently of it the Courts have
jurisdiction to amend. Where a rule
stated that it was granted "on the
grounds disclosed in affidavits filed,"
if •
111. (
: K i!*
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i
l *
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i'^'
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892
THE COMMON LAW PItOOEDURE ACT.
[s. cUviii.
Sr^^^ SSwJSiSd.S™"'®'^ 0° *^® 6^°""^ *^** *^« ^«'^<^^*'' " «6»^°st cvidence,the
ment
OMtl.
f f
; ^'ti-.
t^ ■
'ff^ C,i;»q
r'
costs of the first trial shall ahide the event, unless the Court
shall otherwise order, (t)
And with respect to procuring affidavits from unwillinrr
persons, and the production of documents generally, and also
for the discovery of documents and other matters from (he
parties to a cause : {J ) Be it enacted as follows :
the Court permitted an amendment by
striking oat those words, and inserting
** that i^inoe the trial of this cause the
plaintiffs have discovered new and ma-
terial evidence of a partnership .be-
tween,&o. :" {Drayton et al v. Andrews,
19 Ex. 473, note b.) It will be prudent
to state the grounds fully in the first
instance. The Courts are not inclined
to grant ftresh rules nisi containing
grounds omitted in the former rules :
iRober^son v. Barker, 2 Dowl. P. C.
89 ; Coume v. Garment, 1 Bing. N. C.
818.)
(1) This provision applies where a
wrong has been done through the fault
of the jury. It does not extend to cases
where a new trial is granted on fresh
matter disclosed by affidavits. In such
a case the party who succeeds on the
rule should pay the costs of his affida-
vits in any event: {Abbott v. Bull, 29
jj. & Eq. 481.) Interpleader issues
appear to come within the meaning of
the provision : {Janet v. Whitebread, 2
L. M. & P. 407.) In cases not coming
within the scope of it, as a general rule
the costs of the first trial will not be
allowed to the party who failed upon
it, though* he succeed in the second :
(N.R. 44.) Semble. The enactment is
prospective : {Jenkinty. Betham, 15 C.
B. 168.)
{j ) The leading steps of an action
from summons to verdict having been
disposed of, the Act now proceeds to
lay down rules for incidental pro-
ceedings. Of these the most impor-
tant because the most common are
proceedings by affidavit. In order
to satisfy a legal tribunal of the truth
or falsity of a fact in dispute, there
are two modes in ordinary use, first,
affidavits, second, oral testimony. Hi-
therto the former was almost the only
mode allowable in the discussion of
incidental proceedings. Whereas the
letter was almost the only mode at the
trial of an action. To the former manv
causes of objection have been found to
exist, which cannot be urged against
the latter. The party who makes an
affidavit is not before the Court, the
grounds of his belief are not canvassed
his circumstances and character usn'
ally unknown, and yet wauting these
necessary aids to the discovery of
truth, affidavits have been received as
absolute testimony. And this vas not
all. Two other grave and strilcing
objections forced themselves upon the
attention of the Commissioners. The
Courts not only refused to try disputed
questions of fact on affidavit, but actu-
ally restricted the party moving to the
particulars disclosed in the affidavits
filed when he made his motion. This
rule placed the party moving entirely
at the mercy of an unscrupulous op-
ponent. While the former was tied up
the latter had the advantage of swear-
ing last, a privilege that might be and
often was abused. Whether from ac-
cident or design the result vras too
often the defeat of truth and the tri-
umph of falsehood. Cases, too, oc-
curred in which the truth vras
kept back because no person other
than an officer of the Court was com-
pellable to give evidence by affidavit.
In such cases the effect of a bribe or a
threat was strong enough to neutralize,
the most just applications. To remedy
these defects in our judicial system it
is enacted in ss. clxix.-clxxxi. follovr-
ing, amongst other things, that depo-
AFFIDAVITS IN ANSWER.
323
CLXIX. (jk) Upo-i motions founded upon affidavits, (?) it^^^'o^'i^p^ *^*^ ^^ ^
all be lawful for either party, with leave (m) of the Court or a- iss-*, ». 46. a ^''
„ TiuIm. Cn) to make affidavits in answer to the affidavits of AffldavHg on a '
8dUugo> V / , V . . new matter
the opposite party, (o) upon any new matter (p) arising out of «« ■^«*«J"^^
i
ncnts and other witnesses may be
orally examined, that necessary docu-
ments may be produced, that property
may be inspected, that affidavits in
answer to fresh matter may be received,
that unwilling witnesses may be com-
pelled to testify, that interrogatories
may be administered to either party in
the cause, and that discovery may be
made of documents in the possession of
either when relating to the matter in
dispute. These changes have been
e/ected in consequence of the sugges-
tion of the C L. Comrs. in their 2d
Kept PS. 28-42 inclusive.
Ik) Taken from Eng. Stat. 17 & 18
Vic. cap. 125, s. 45. — Applied to
County Courts. — Founded upon 2d
Bep. C. L. Comrs. s. 80.
/;) Upon motions, &c. The use of
the words " Court or a Judge" in this
section, and of "rule or order" in s.
clxxii. seems to show an intention that
the word "motions" shall apply to ap-
plications before a single Judge as
veil as to the full Court. But see the
Kords " motion or summons " as used
Id s. cIxs.
(m) With leave, i. c, without leave
the practice shall be as before the pass-
ing of this Act.
(n) Court or a Judge, i.e. of the Court
when motions are made in Court, and
of a Judge when motions are made be-
fore a Judge. Qu. Can there be an
appeal from the decision of a Judge in
Chambers who declines to receive affi-
davits in answer to what the party ten-
dering them considers to be fresh evi-
dence? The next following section
spealcs of "their or his discretion,"
words which in general exclude a direct
appeal from a Judge to full Court, when
the former has exercised his discretion.
There does not appear to be in this sec-
tion anything that can be held to pre-
vent a party whose application to a
Judge in Chambers has been dismissed
from appealing to the full Court in cased
where before this Act he might have
done so : see Tilt v. Dickion, 4 C. B.
736 ; Peterson v. Davis, 6 C. B. 236 ;
Jlderton v. Burt, lb. 433 ; Hawkins v...
Akrill, 14 Jur.1060 ; Dodgsonv. Scott,
6 D. & L. 27 ; see also note m to
xxxvii.
(o) The practice in England under
the section which corresponds with this
is in a most unsettled state. The three
Superior Courts differ as to the time
when and the manner in which appli-
cations should be made. In the
Queen's Bench it appears to have been
ruled that a party wishing to file affida-
vits in answer to new matter must malce
a substantive motion : (so assumed in
Wood V. Cox, 16 C. B. 494.) In the
Common Pleas there has been a distinct
refusal to adopt this construction of
the Act : ( Wood v. Cox, uhi supra) ;
and an opinion was by that Court inti-
mated that the proper mode of carry-
ing the Act into effect must be by an
exercise of discretion upon a rule com-
ing on for argument: {Simpson v. Sadd,
16 C. B. 760 note b ; see also Uayne v.
Robertson. 16 C. B. 554.) The Queen'a
Bench and Common Pleas thus differ-
ing in opinion, a hope was expressed
that the Exchequer, if the question
should arise before it, would settle
the practice. Afterwards the question
did arise before the Court of Exche-
quer, and Martin, B. said " we cannot
lay down any rule on the subject ;
every case must depend on its own cir-
cumstances ; " and Pollock, C. B. :
"It may turn out that a man who
comes with materials sufficient for a
rule in the first instance, is met by an
ambiguous answer, he may desire to
answer that, and one of the benefits of.
the enactment is that he may, do so :"
(Prilchard v. Leech, 2 Jur. N. S. 475.)
Thus the matter stands. As a general
rule in our Courts the affidavits in.
^=:ai
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:324
THE OOMMON LAW PROCEDURE ACT.
[8- Clxx.
such nffidavits, (q) subject to all such rules as shall hereafte
be made respooting such affidayits. (r)
CLXX. («) Upon the hearing (<) of any motion or Sum.
864,8.46. j^^^g^ (w) it shall be lawful for the Court or a Judge, at their
a»>-Kng. C. L. P.
■'
nnswer should be shown to the party
moving before argument. If there-
upon the latter desire to file affidavits in
reply he may upon a substantive appli-
cation obtain leave to do so, and in fact
do 80 before the case comes on to be
heard. It is, however, in the discre-
tion of the Court or Judge to grant
such leave at the time of argument,
and in consequence defer further dis-
cussion until some future day.
{p) To define by rule what shall be
considered " pew matter" is quite im-
possible. Each application must stand
or fall upon the circumstances of the
case.
(q) Arising out oftuch affidaviU, i.e.
the nifidaTits of the opposite party. The
• effect of the enactment is only to per-
mit nfiidavits to be filed in reply to affi-
davits made in answer to affidavits first
filed by the party seeking to reply.
Wherever before this Act a thing might
be done as of course upon affidavit, for
instance, arrest on a capias for debt it is
presumed that now no more than form-
erly will there be any right to deny the
material facts on affidavit, for example,
the debt or intention to abscond in the
case of the capias : {Copelandy. Child,
22 L. J. Q. B. 279; see further i?2eui<(
V. Gordon, 1 Dowl. N. S. 815.^
(r) In consequence of the difiference
of opinion in England {ante note o)
some general rule is very much needed.
None such has been yet made either in
England or Upper Canada.
(«) Taken from Eng. Stat. 17 & 18
Vic. cap. 126, s. 46. — Not applied to
County Courts ; but as to these Courts
there is a similar provision : (Co. C. P.
Act, s. 10.) The powers, contained
in this section, are such as can
only be exercised under it. They are
not in any manner exercisable as inci-
dent to the jurisdiction of the Court
ut common law. See the Queen v. The
Inhabitants of Upton Si. Leonard' » in
Q. B. 886. ' '"
(/) Upon the hearing, ^c. These
words lead to the opinion that no sub
stantive motion is intended. The mode
of procedure in view is evidently this
— a rule or summons having been ob-
tained is before the Court or a Judgg
for a hearing. The Court or Jm]!
may require either explanation of
affidavits filed or proof addition-
al thereto. This may consist either
of the production of documents or of
witnesses, with reference to a subject
matter under hearing: {Cockerelly
The Van Diemen's Land Co., 10 C. B
266. ) The section points out modes of
securing evidence for the information
of the Court or a Judge, and not of the
parties. The parties are enabled to
obtain similar evidence under ss. clxxvi
and cxciii. of this Act. Qu. Does this
section extend to criminal proceedings;
s. clxxiv. is expressly restricted to civil
actions or other civil proceedings.
(«) " Motion or summons." The
word motion is here used to embrace
applications to the Court, which may
not be, strictly speaking, for rules.
In other sections "motion" seems to
express either a proceeding in banc, or
before a Judge : (s. clxix.^ The pow-
ers of the Court and a Judge in Chiim-
bers appear to be concurrent. ^Vhere
an application of a pressing naturefor
the examination of a witness in ex-
tremis was not made to a judge in
Chambers, because as alleged no order
could be there obtained in the first
instance but was made directly to the
Court for a rule absolute in the first
instance the Court said whatever pow-
er they had was also vested in the
Judge at Chambers, and recommended
the application to be made there;
(Thomas v. Baron Von SiuUerheim, 28
L. T. Rep. 64.)
8. clXX.]
PRODUCTION OP DOCUMENTS, KTC.
82:»
I may.
or his discretion, (v) and upon such terms as they or ho shall J;;"'^';;;^
think reasonable, from time to time (ir) to order snoh docu.««j;h'^j;^'»R^
ments as they or he may think fit to be produced, (j) and such ^^X*"'
witnesses, as they or he may think necessary, to appear «ndbcprx«j}>>j'»»"u
tamined viva voce, (t/) either before such Court or Judge, {:) mom* or
for before a Judge of any County Court, (a) or before any «i»«u«.
Clerk (b) or I^eputy Clerk of the Crown], (<?) and upon hearing;
such evidence or reading the report (d ) of the Judge of the
County Court, or Clerk or Deputy Clerk of the Crown, to woko
such rule or order as may be just, (e)
(») Their or his discretion. A Judge's
discretion exercised in cnsos within
his jurisdiction cannot generally bo
■npeftled from : (see Woolmer v. Dc-
lirm, 2 Ikl- & ^-"i^'^ ; ^'"^"' ''• ■^^''■'""•'%
3 C. H. 952 ; see further note w* to s.
xxxT'i') . _, ,
(iff) From itme to time. These words
tiiltcn in connection with "by such rule
or order, or any subsefjuent rule or
order, command, &c.," in the next
succeeding section, indicate an inten-
tion to allow documents or witnesses
to be called for as often as thought
necessary during a hearing.
(i) Where on showing cause against
a rule obtained by a plaintiflF to rescind
a Judge's? order, which directed the
Master to review his taxation, it was
objected on the part of the defendant
that there were no materials before the
Court to show what the taxation had
been, the defendant's counsel saying he
hud an answer on the merits, the Court
allowed the Master's allocatur to bo
produced at once without imposing
any terms: {Aahcroft v. Foulkes, 2
Jur. N.S. 448.) Considering the prac-
tice authorised by this section as being
more for the information of the Court
than of the parties, it may bo that do-
cuments in the possession of either
party, though privileged as against his
opponent, might be ordered for the
purposes of this section to be produc-
ed : (see ^Vood v. Morewood, 9 Dowl.
P. C. 44 ; Coates v. Birch, 2 Q. B.
252.)
(j/) The examination of witnesses is
to bo viva voce ; but beyond this ns to
the procoodings upon an exnnunatlon
no information is givon : (ace (Wktrel'
V. Vm Difmm'a /,«im«/ vo,, 10 0. 1).
280 ; 32 L. v^ Eq. 808.) Vrhctlior there
will be tlio right to crosa-examino and
ro-examine is not decided. It is pre-
sumed that the right exists. ** Kxa-
mined " must menu moro than ** ques-
tioned by ono side." It is not clear
whether the strict rules of evidonco n$
to loading question!*, &o., arc applica-
ble. Tbo process for wilftal disobodi-
cnoo is attnohment : (see s. olxxi.)
(?) t. 0. Tho Court or Judgo before
whom the hearing is pending.
(a) The Judge intended is, it is pre-
sumed, tho Judso of the County in
which the action Is instUuteil.
(b) i.e. Either of the Queen's Bench
or Common Pleas, aoconiing as the
action has been commenced in one or
otlier of those Courts.
(r) Tho wordi in brackets rti>e sub-
stituted for tho words "bofoi-o the
Master," in tho £ng. C. L. l\ Act.
1854.
{d ) i.r. Upon heiirinif tho evidence
when tho witnesses have been examined
in the presence of tho Court or Judge,
or upon reading tho report when the
examination has taken place before
one of tho othcers named.
(f) The rule or order to be made in
tho manner directed by s. olxxi. and to
have the ofl'cot thweiu enacted.
E9feK.'
55
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826
THE COMMON LAW PROCEDURE ACT.
P^lKr-il^
.„
T h ^iiHHHKh. '1
L,v>Ht E^^^^^H^HKIri^; i\
f ' ' *^I^IHP''- 1
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la^B
["•olxxi.
^- s Uf JjVicM:.'^^ CLXXI. (/) The Court or Judge (flr) may by such rule or
^ m-^yL ^' ""^'' ''^'' °''^^''' ^'^-^ ^^ ^^ *"^ subsequent rule or order, (/) command the
• c'!?mH »t. attendance of the witnesses named therein for the purpose of
wUneJSIoI being examined, (i) or the production of any writings or other
proiiiietionor documents to be mentioned in such rule or order (k\ nn<i .„
(ti»ucUc<uci. direct the attendance of any such witness to bo at his own nln
^ I / «y of abode, (I) or elsewhere if necessary or convenient bo to d '''
(wi) and the wilful disobedience of any such rule or order shall h '
a contempt of Court, and proceedings may be thereupon had
by attachment (the Judge's order being made a rule of Court
before or at the time of the applicaation for an attachment) if in
addition to the service of the rule or order, an appointment of
the time and place of attendance in obedience thereto, signed
by the person or persons appointed to take the examination or
by one or more of such persons, shall be also served together
(/) Taken from Eng. Stat. 17 & 18
Vic. cap. 125, s. 47. — Applied to Coun-
ty Courts.
(g) Sco note n to s. clxix. and fur-
ther note m to s. xxxvii.
(A) t. e. Any rule or order obtaina-
ble under the preceding section.
((.) t. e. At any future time during
the bearing mentioned in h. clxx..
(j ) t. e. Either before the Court or a
Judge or before any one of the officers
mentioned in the preceding section.
This section ia, if possible, less explicit
as to the mode of examination than the
preceding. There it is directed that
the examination may bo vit>a voce. .But
neither there nor here is it declared
whether in other respects as to cross
examination of witnesses, &o., the
practice shall be like that of proceed-
ings at Nisi Prius. It may be a question
whether the right to cross-examine can
exist in cases within these sections in
the absence of express provision in the
rule or order authorizing the examin-
tion : see Ilargrave v. Hargrove, 5 D. &
L. 151 ; see further Follelt v. Delany,
7 C. B. 775 ; Grevillev. Slultz, 11 Q.B.
997 ; Nicol v. Alison, lb. 1006 ; Simmi
V. llmderaon, lb. 1016.)
(/() See note x i(\ preceding section.
It is enacted in the Eng. C. L. P. A.,
that the rule or order when obtained
shall be proceeded upon in the same
manner as a rule of Court granted un-
der Eng. St. 1 Wm. IV. cap. 22, a sta!
tute not in force in Upper Canada.
{I) At hit own place of abod'.-lqu
Do the words " his own " relate to the
abode of the witness or of the judge?
The more immediate antecedent of
"his "is "such witness." This part
of the section is copied from £0? St
1 Wm. IV. cap. 22. *
(w) The examination may be either
before the Court or Judge, or the Judge
of a County Court or any Clerk or
Deputy Clerk of the Crown : (a. clxx.)
The word "elsewhere," may mean
the office of one or other of the above
named functionaries who alone are em-
powered to examine. But the words
"if necessary and convenient," give
to the word "elsewhere" a more ex-
tensive signification. In the case of a
sick witness an examination at his
house might certainly be both necessary
and convenient. And^u. Can "else-
where " be hold to extend to examin-
ations to be taken without the jurisdic-'
tion of the Courts? The penalty for
disobedience by attachment seems to
negative such a construction, although
the Eng. Act of 1 Wm. IV., expressly
/-•
ProrlM.
olxxii.] POWE!t TO COMPEL ATTENDANCE OF WITNESSES. 827
f ith or aft«f ^^^ servioo of auoh rule or order j (n) Provided
tlffays* that ovory person whose attendance shall be so requir-
^ ghall be entitled to the like payment for attendance and
espenoos as if he been subpoenaed to attend upon a trial ; (o)
Provided also that no person shall be compelled to produce
ondor any such rule or order any writing or other document
that he would not bo oompelable to produce at a trial of the
cause; (p) Provided lastly, that it shall be lawful for thepro^,o.
Court or judge, or person appointed to take the examination,
toacyourntho same from timo to time as occasion may re- ^j j^ /S6-
quire. (?) ' •
CLXXII. (r) Either party shall be at liberty to apply to the ,^^. a,.c^c^su-: i(^
Court or a Judge for a rule or order for the inspection by theJ^fsSJ^^) '"a''" ? ^
1 1
admits of examinations abroad. Ab to
vitnesses abroad a oommlssion to ex-
amine thorn, issued pursuant to 2 Qeo.
IV.cap. 1, 8. 17, would be the more cor-
rect course of prooeeding, and unques-
lionablj the one more f^ee firom doubt.
Ihe Courts liRTe not power to issue
these commissions in suite to which the
Cronn is a party : {Reg.y. Wood, 7 M.
i W. 671 ! Attometf Oeneral t. Bovet,
15M.&W. 61.)
(k) This part of the section declar-
ing in what manner witnesses shall be
punished for disobedience is substanti-
ally the same as 1 Wm. IV. cap. 22, s.
6, as to which see Chit Arch. 8 £dn.
iVittmq', laXdetaeq,
(o) As to which see Chit Arch. 8 Edn.
328 et tfq. If conduct money be given
to the witness with the appointment,
and he afterwards and before he has
(lone anything in relation to his attend-
ance at the place appointed, rrceive
notice not to attend^ the conduct mo-
ney may, it seems, be recovered back
from him : [Martin y. Andnwa, 28 L.
T. Rep. 122.
[p) As to which see Ghit. Arch. 8
Edn. 332 «( stq,
(9) This proviso is from Eng. C. L.
P. A. 1854, 8. 47. As nothing specific
is enacted as to the mode of procedure
upon einminations to be had under
tiiis section in cases of doubt the rule
or order to be made should prescribe
the mode : see MoCombie y. Anton, 6
M. & 0.27 ; Scott v. Van Sandau, 8 Jur.
114; Williamiony. Page, 8 D. & L.
147 ; see further Chit Arch. 8 Edn.
817 et teg. Witnesses when attend-
ing, it is apprehended, would be entit-
led to the privileges of witnesses
attending atrial: (note « to s. xxiii.,)
or an arbitration: (note /to s. Ixxxvii.j
(r) Taken fVom Eng. Stat 17 & 18
Vic. cap. 126, s. 68. — Applied to
County Courts. — Founded upon 2d
Rep. C. L. Comrs., s. 42. The first
degree of evidence, and that which
though open to error and misconcep-
tion, is obviously most satisfactory to
the mind, is afforded by our senses :
(Tay. Ev. 2 Edn. s. 498.) In certain
cases from an early period either party
to a suit was allowed to obtain a view
by a jury, the view to be of the *• place
in question." The origin of the prac-
tice is not traceable to any Statute of
which we have an account. But the
frequency of applications having been
found to be an abuse which tended
much to the hindrance of justice, the
legislature in the course of time endea-
voured to circumscribe the practice.
One source of abuse was a rule which
made it necessary for a cause to be
entered for trial before a view could be
had. Another, was that the applica-
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828
TUE COMMON LAW PROOEDURB ACT.
['• cUxii,
U f
■W
imppjctioa Jury or by himaolf or by his witnoasos of any real or pergonal
property, tho inspootioD of which may bo matoriul to the pron*
dotormiDation of the queatioa in dispute, and it shall bo lawful
tions when made at the trial were
granted, as of oourie, without inquiry.
These causes combined, and attended
with the difficulty of procuring the at-
tendance of the necessary viewers at a
future trial, had the effect in many
cases of rendering unaToidable,repeat-
ed and vexatious postponements of a
trial. The remedy applied was that of
Stat. 4 & 5 Anne cap. 16, s. 8, which
empowered the Courts to grant a view
previous to the trial, and then only
when proper and necesiary : (1 Burr.
268.) The view being authorized
the next inquiry is the manner in which
it shall be conducted. This was made
to depend upon Eng. St. 8 Geo. II.
cap. 25, 8. 14, of which our Stat. U.G.
84 Geo. III. cap. 1, s. 14, is a copy.
Writs of venire, facian, and ditiringai
were, upon application, issued to the
sheriff or other person appointed com-
manding him to have six or more of
the jurors named in the writs or in the
panel annexed thereto at the "place
in question," to view it at some conve-
nient time before the trial. In every
case where a view had been authorised
there were two classes of jurors, from
which conjointly the jury chos-
en to try the cause was selected. The
first was that class who had their ap-
pointment under the special venire fa-
ciaa and diatringat, already noticed.
The second, all such jurors as were
balloted for at the trial in open Court.
The composition of the jury to try the
cause was in this manner — Six or more
of the jurors who had acted as viewers
being in attendance at the trial, were
first sworn and then only so many more
were added to them from jurors drawn
in Court so as in the whole to make
the number twelve. The twelve thus
chosen were the jury sworn to try the
cause. In the worlcing of this practice
under the Stat, of Geo. II., owing to
non-attendance of viewers and other
causes not necessary to be mentioned,
some dissatisfaction was experienced.
However, tho great cause of migciii.f
was an opinion which prevailed that tl,«
six viewers whose attendance wai ne
cessary should be six or more of Ui»
first twelve named upon the panel and
that in the event of their negltot to at
tend no trial could take place. Tbe
endless delays which arose out of such
a construction can well be conceivcii
Whatever ground might have existed
for this opinion at one time, there can
be none at the present day. It U en
acted •• that when a view shall hate
been allowed, those men who thai!
have had the view, or tuch of them as
shall appear upon the jury to try the
issue shall be first sworn," &«.: (ij^v
14 Vic. cap. 66, s. 62, taken from En?
St. 6 Geo. IV. cap. 60, s. 28.) It ,„«,
be mentioned that the mode of obtain-
ing a view is now regulated by 88. 60
and 61 of 18 and 14 Vic. cap. 55, vhich
for all the purposes of a view by a jury
is still the law. The changes effected
in the law by the present Act are first
as to the cases in which a view or inspec-
tion may be procurcd,and secondly, the
persons by whom it may be had. From
the use of the words, « the place in
question," in all the former statute;,
it was decided that views could be ob-
tained only in proceedings of a local
nature, such as trespass qu. cl. Jr.,
nuisances, and the like : {Slona t
Menham, 2 Ex. 882.) The right of
inspection is now extended to "any
real or personal property, the inspec-
tion of which moy be material to the
proper determination of the question
in dispute." And inspection of pro
pei-ty which formerly could only be had
by jurors specially selected for that
purpose, may now be " by the jury or
by himself (the applicant,) or by his
witnesses." It is presumed (thouEh
not confidently in the absence of autho-
rity) that as a general rule inspection
by a jury under this section will be
conducted in the same manner and
subject to the same rules as vieirs bj
.' t
INSPECTION or PROli=nTY.
829
I, oUxi>>]
for the Court or a Judge, if thoy or ho think fit, to u)nko such {;jj"5"^y»'"*"
rulo or order upon Buch terms as to costs and "thcrwiae, '''''"*^,[*^
8uch Court or Judge may direct; («) Provided always ^^ut^.^^^^^
DOthiug heroin contained fthall affect the piuvisiona uf any >
previous Acts as to obtaining a view by a Jury. (/)
CLXXIII. (m) It shall be lawful for any Sheriff, Uaoler, or (><rp- <*• f ) c^^vitcl A
other Officer, (»') having the custody of any prisoner, (w) tonow prtion- "'' ^'^J*L*'
take such prisoner for examination under the authority of this brouubtup ^'
I juru before this Act. In the Eng.
C. L. P. Act, 1854, 8. C8, there is an
express declaration that such nliall be
the case. Inspection by the applicant
or by bia vitucBses etunds more in
doubt, first, as to the time when the
in!<Fect!on mny bo made, aecondly, as to
the mode of application, thirdly, as to
the mode of inspection, fourthly, as to
effect of inspection. To dispose of in-
gpcclion by jury. A rule for a view
is first issued, and upon that writs of
venire facial ond diatrihgat : (18 & 14
Vic. cop. 65, 8. 50.^ In England though
not in Upper Canuda the rule may be
badftt sidebar: (Eng. R. 49 H. T.
1853.) Both in England and in Upper
Cunoda the party opplying must make
certain deposits of money, and in other
respects comply with rules of Court
made for bis guidance : (Eng. B. 40
H.T. 1858; N. R. U. C. 89, 1856.)
In England the view may be had
upon the rulo without intermediate
writs : (Eng. C. L. P. Act, 1862, s.
114;) but in Upper Canada, the
Trrits are still necessary: (18 & 14
Vic. cnp. 55, s. 50.) And in the
writs when issued *' shewers " must
be named, whoso duty it will be to
show the property to the jurors : {lb.)
bnd unless the showers be so named,
there can be no view as required by
the Act : (Taylor \. Thompson, 1 Dow).
P. C. 218.) After view the proceed-
ings may be such as alrendy noted.
With respect to inspections by the
party or his witnesses, the practice will
be found to resemble inspections under
the Eng. Patent Act, 15 & 16 Vic cap.
83, 8. 42, the principle of which it was
recommended by the Commissioners
ebould be extended to all cases, which
recommendation is here carried into
effect. The practice under the Patent
Act is not to grant inspection as of
course, but only when shown to bo ma-
terial for the purposes of the causo :
{Ames V. Kelaey, 22 L. J. Q. B. 84 ;
Shawv.JJank o/£ugland,22 L. J.Ex.2C)
but application may be made before
declaration : (Amies v. Kehey, ubisup.)
(a) Court or Judge. — Relative pow-
ers see note m to b. xxxvii.
(I) i. e. 18 & 14 Vie. cap. 55, ss.
CO, 51, 52 : (ante note r.) In conse-
quence of there being no section in our
C. L. P. Act corresponding to s. 114
of Eng. C. L. P. Act, 1852, the conclu-
ding part of this section differs from
that of Eng. C. L. P. Act, 1854, s. 58.
(u) Apparently an original but very
necessary provision. Without it there
might be no means of securing the at-
tendance of a prisoner whoso testimony
should be required at examinations
authorized by this Act. Though if the
intention of the Legislature to bo ga-
thered from any particular section be
otherwise clear that prisoners should
be examined as witnesses, the Courts
no doubt would grant the habeas in
order that that intention might be car-
riel^into effect : (see Graham y. Glover,
83 L. & Eq. 55.) The section is applied
to County Courts.
(v) Or other officer. Qu, Will this
embrace the Superintendent of a Lu-
natic Asylum or any other than officers
in the service of the Courts ? (see note
!/,poat.)
(w) Qu. In execution on final as well
as on mesne process — in civil as well
as in criminal cases ?
ttT
;■ I^M
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' J*
I««*
Fi^Sp'. *■» ?
Sdo
THE COMMON LAW PROCEDURE ACT.
b' clxxiil.
£Sl**^ ^^^> (^) ^y v^''"® o^f ^'"* 0*" *«*««« <'o^P^» to be issued %
that purpose, (y) which Writ may be issued by the Court
Judge, (i;) under such circumsiances (a) and in such manner (h
(z) i.e. to any examination author-
ized by this Act ?
(y) Before this Act upon the subject
matter of the section under considera-
tion there are in Canada two Statutes,
8 Wm.IV.cap.2, 8.8, and 4 & 5 Yic.cap.
24, 8. 11, — both of which are substan-
tially the same, the former applying
to Upper Canada only and the latter to
the whole Province. These Acts read
as follows : " That when and so often
as the attendance of any person con-
fined in any gaol or prison in this Pro-
vincd or upon the limits thereof shall
be required in any Court of Ataue and
Nisi Priua, or Oyer and Terminer, or
General Oaol Delivery, or other
Court, it shall be lawful for the
Court before whom such prisoners
shall be required to attend, in its
discretion to make an order upon
the sherifF, gaoler, or other person
having the custody of such prison-
er to deliveer such prisoner to the
person named in such order to re-
ceive him, which person shall there-
upon instantly convey such prisoner to
the place where the Court issuing
such order shall be sitting, there to
receive and obey such further order as
to the said Court shall seem meet:
Provided always that no prisoner con-
fined for any debt or damages in any
civil suit shall be thereby removed out
of the District (County) where he shall
be confined." A comparison of this
section with the one here annotated
will show the following distinctions :
Under the for"'er — 1. An order issuffi-
cient for the removal without a habeas;
2. The removal can only be to one
or other of the Courts named;
8. That Court only has the power to
make the order ; 4. The order may be
delivered to any ♦' person" having the
custody of the prisoner; 5. No prisoner
for debt in a civil suit shall be removed
by such order without the limits of the
County or Union of Counties in which
he is confined. But previous to these
Statutes and independently of
Statute now extant the Courts granted
writs of habeas corpus ad testificandum
(Foster, 896 ; Standard v. Jiaker l'
T. 26 Geo. III. K. B. Tidd'sPr 9Edn"
809; Gerry v. Hopkins, 2 Rayd. 851 •
Leiffh y. Sherry, 2 Moore 33 ;) "on an
affidavit that the prisoner was a mate
rial witness and willing to attend :(Ry
Roddam, Cowp. 672,) and the wnthas
been issued to bring up a prisoner be
fore an election committee of the House
of Commons : {Re Price, 4 East, 587 •
Re Pilgrim, 4 Dowl. P. C. 89*;) but
refused as to a prisoner of war ; (Fur-
ley V. Newnham, Doug. 419 ; and as to
a prisoner confined for high treason-
{Laugton v. Cotton,^ Pen. Ad. Ca. 21 i
The proper course in such cases beini
an application to the Secretary of State^
{lb.) Though as to sailors on board a
man of war, if willing to attend tho
writ might be granted : {R, v. Roddam
Cowp. 672.) So as to a lunatic in an
asylum upon an affidavit that he is not
a dangerous lunatic, hnd that he is in
a fit state to be brought up : (Com.
Dig. Test. A. i. ) So as to prisoners in
execution: {R. v. Burbage, 3 Burr.
1440;) but not where the application
is a mere contrivance to remove the
prisoner: {lb.) The writ may be to
produce the prisoner before a Coroner
if there be a strong case of necessity:
{Exparte Wakeley, 14 L. J. 188 N.C.j
{z) Court or Judge. — According as
it IS intended that the examination
shall take place before the one or other.
The Court should not be troubled with
such applications so long as tbcy can
be disposed of by a Judge in Chambers :
(see note m to s. xxxvii.)
(a) See note y, ante.
{b) The application ought generally
to be made to a judge in Chambers,.
{Fennell v. Tait, 1 C M. & R.584 ; Gor-
don's Case, 2 M. & S. 582 ; Browne
V. Gisborne, 2 Dowl. N. S.9 03 ;) upon
on affidavit intitlcd in the Court and
cause, {R. v. Sayer, Fort, 39G) stating
a-
fl '■
.clxxir.]
REFUSAL TO MAKE AFFIDAVITS.
831
Court or Judge may now by law issue the Writ com-
"^ ]y called a habeas corpus ad testificandum, (c)
CliXXIV. (d) Any party to any civil action or other civil (App. o>. c.) C^n SicA ^
nroceeding in any of the Superior Courts (e) requiring the affi- a?i864,8.'48. ""^'^'^ *^
davit of a person who refuses to make an affidavit (/) may persons re- y/o»-
plyby Summons {cf) for an order to such person to appear ^aife^'afflda.
and be examined upon oath before a Judge, or any other per- com^ifod'to
son to be named in such order to whom it may be most con- fJXamined,
venient to refer such examination as to the matters concerning ^J^^pJ'J^^''*
which he has refused to make an aiHdavit; (K) and a Judge
may if he think fit, make such order for the attendance of such
Berson before the person therein appointed to take such exam-
ination for the purpose of being examined as aforesaid, (t) and
\
I V*"^!
the ffUness to be in custody and will-
inir to attend : {R. v. Murray, 2 Tidds
Pr 9Edn. 908— form thereof, Chit. F.
7Edn. 194.) The writ must be signed
by the judge when granted by a judge,
[S, V Roddam, Cowp. C72; Olbb v.
W,'l C. B. 1 & 2 Ph. & M. cap. 13,
g. 7^Form thereof. Chit. F. 7 Edn.
195,) and be left with the officer, in
whose custody prisoner is detained:
(2TiddPr. 9Edn.810.)
(c) See ante, note y.
\d) Taken from Eng. St. 17 & 18
Vic. cap. 125, 8. 48. — Founded upon
2d Rept. C. L. Comrs. s. 30. — Applied
to County Courts.
(e) This enactment is restricted to
proceedings in civil cases : (see Attor-
neii General v. Radcliff, 22 L. J. Ex.
240; ) when brought in the Courts of
Queeu's Bench and Common Pleas:
(see title to this Act.)
(/) The gist of the application is
the refusal to make au affidavit when
required of him by any party to an ac-
tion. The remedy is new and now ex-
ists where there was none before.
(g) Summons. The use of this word
denotes the tribunal to which applica-
tion should be made, viz., to a Judge
in Chambers, The subject matter of
the section is new. There is no inhe-
rent jurisdiction in the Courts to en-
tertain the application, else the section
would not have been required : (seo
remarks of Coleridge, J., in Harvey v.
O'Meara, 7 Dowl.P.C.735.) It is from
this inferred that the Court if dispos-
ed to entertain applications at all un-
der this section will not do so in the
first instance. The right to entertain
an application by way of appeal is yet
a question to be decided ; (see Stokes
V. Grisaell, 2 N. C. L. Rep. 780 ; and
note m to s. xxxvii.) The use of the
word " summons " also denotes a
clear intention that some party should
be called upon to show cause. Whe-
ther the opponent or applicant, who
may be either plaintiff or defendant in
an action, or the witness who re-
fuses to make affidavit is not stated.
Reason indicates the latter. And if
this be the true construction, and an
order be obtained, absolute in the first
instance as against the witness, it
might, upon his application, be set
aside.
(A) The object of the enactment
seems to bo to compel a person refus-
ing to make an affidavit to be examin-
ed viva voce : ( Cocker ell v. Van Diemen's
Land Co., Cresswell, J., IG C. B.261.)
I(. is somewhat analagous to a subpoena
to compel evidence : (Jervis, C. J.,
lb.)
(i) As aforesaid, i.e., upon oath. Qu.
Is there power to order the examina-
225
•^^
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h¥4 'It
^■j
'J,.'
i litt 1
'" ' 'I i-ft
1 i' " !' ^
832
THE COMMON LAW PROCEDURE ACT. [s.clxxv
for the production of any writings or documents to be mention
ed in such order, (y) and may therein impose such terms as to
such osamioation and the costs of the application and proceed-
ings thereon as he shall think just (Ic) [and such order sliall
be proceeded upon in like manner as the order mentioned in
the section of this Act numbered one hundred and
one]. (/)
seventj.
.sU? ^ (App.co.c.) CLXXV. (m) Upon the application of either party to any
%^^J^ A. wsi.s.w! cause or civil proceeding in any of the Superior Courts, upon
tion of a witness without the jurisdic-
tion of the Courts under this section ?
As in such a case there would bo no
power to punish for disobedience, it is
apprehended there would be no reason
for making the order.
(j) Before documents can be order-
ed to be produced the judge must be
satisfied that there are documents in
the possession of a party, and also
probably that the documents are such
as the party might be compelled to pro-
duce at a trial.
(k) The propriety or impropriety of
imposing terms is a matter for the con-
sideration of the judge upon the whole
circumstances of the case before him.
If the Witney's groundlcssly and perti-
naciously have refused to make the affi-
davit required of him, he may be do-
n'c.' :jnduct money. Qu — Would the
witness bo privileged from arrest eundo
morando et redeundo ? See not / to s.
Ixxxvii.
(?) The words in brackets are not
to be found in the Eug. C. L.P.A. Toe
connection made between this and sec.
clxxi., is a wiso provision. Disobe-
dience under this section as much as
under that will, it is presumed, sub-
ject the party to attachment.
(m) Taken from Eng. Stat. 17 & 18
Vic. cap. 125, s. 50. — Applied to
County Courts. — Founded upon 2nd
Rep. C. L. Comrs. s. o, 33-80 incl.
The object of this enactment is to en-
able either party to ii suit at law to ob-
tain inspection and discovery of docu-
ments in the possession of his advers-
ary without having recourse to a Court
of Equity for that purpose. The prin-
ciple involved is that which the Com-
missioners asserted as an indisputable"
proposition, viz., that every Court ought
to possess within itself the means of ad-
viinistcring complete justice wiihin the
scope of its Jurisdiction. Powers are con-
ferred upon Courts of common law
which before they did not possess. The
practice of these Courts as to inspection
and discovery of documents is a most
important one, and one which in its
present efficiency is almost wholly the
creature of statute law. Inspection
and discovery are not by any means
synonymous terms, though sometimes
so used. An application for inspection
of a document presupposes a knowledge
that such documents exists. But an
application for discovery presup-
poses ignorance of the document,
a knowledge of which it is sought
to obtain. Now, although inspec-
tion might in some cases be Lad
upon application to Courts of common
law under their common law jurisdic-
tion, discovery as such could not be
obtained. Nor could inspection be bad
except as between parties to some
pending cau«e. AVhereas in Equity
both inspection and discovery miglit
be hnd upon a bill of discovery whether
there wns or was not a suit pending,
In truth discovery in Equity was and is
often sought as a means to the institu-
tion of a suit.
The jurisdiction of the Courts of
common law as to inspection and dis-
covery is not well settled. The effect
of the recent changes being as yet
DISCOVERT OF DOCUMENTS.
333
an affidavit by such party of his belief that any document to the ^J^^J^
production of which he is entitled for the purpose of discovery ot doou-
jnly partially Tinclerstood, in examin-
jj- the law upon the subject it seems
advisable to notice its gradual deve-
'lopement. ^ „,
1. Inspection at Common Law. The
power of the Courts at common law is
very uncertain. In general it is neces-
,iiry for the party applying to show
that he has a direct interest in the do-
cument, as, for example, underleesee
in a lease, or that his opponent holds
the document under some trust express
or implied, as, for example,that the do-
cument though executed by both par-
ties is ill the possession of one : (Blak-
it/y. Porter, 1 Taunt. 886 ; Bateman v.
Phillips, 4 Taunt. 161 ; Taylor v. Os-
borne 4 Taunt. 169 ; Ratcliffe v. Bleas-
hy, 3 Bing. 148 ; Portmore v. Ooring,
4 Bing. 152 ; Lawrence v. Hooker, 5
Bing. 6; Street v. Brown, 6 Taunt.
302; Marrowy. Sanders, 8 Moo. 671 ;
Threfall v. Webster, 7 Moo. 559 ; Bloffff
T. Kent, 6 Bing. 614; Devenoge v.
Bouverie, 8 Bing. 1 ; Cocks v. Kash, 9
Bing. 723 ; Inman v. Hodgson, 1 Y. &
J. 28 ; Woodcock et al. v. Worthington,
2 Y. & J. 4 ; Neale v. Swind, 2 C. &
J. 278; Travis v. Collins, 2 C.
626 ; Reed v. Coleman, 2 C. & M.
Dee d. Morris v. Roe, 1 M. & W.
Doe Y. Slight, 1 Dowl. P. C.
Emns T. Delegal, 4 Dowl. P.
374; Jones v. Palmer, 4 Dowl. P
& J.
456;
207;
163;
C.
C.
446; Tumell v. Allen, 7 Dowl. P. C.
496; Griffin V. Smythe, 8 Dowl. P. C.
490; Goodliffy. Fuller, 14 M. & W. 4 ;
Steadman ▼. Arden, 16 M. & W. 587 ;
Ley V. Barlow, 5 D. & L. 876 ; Bluck
y, Gompertz, 7 Ex. 67 ; Doe d. Avery
V. Langford, 21 L. J. Q. B. 217 ; Shaw
T. Holmes, 3 C. B. 952 ; Powell v.
Bradbury, 4 C. B. 541 ; Foster v. the
Bank of England, 8 Q. B. 689; Prit-
ehett T. Smart, 7 C. B. 625) ; or as to
documents upon which an action or
defence is immediately founded, that
there is suspicion of forgery, or that
the documents have been improperly
dealt with since execution: {Thomas
T. Dunn, 6 M. & G. 274 ; Woolner v.
Devereux, Tindal, C.J. 9 Dowl.P.C.672 ;
But see Chelwind t. Marnell, 1 B. & P.
271 ; Jewell t. Millingen, 1 M. & Scott'
605 ; Hildgard y. Smith, 1 Bing. 451 ;
Threfall v. Webster, 1 Bing. 161.) In
general, it is necessary for the party
applying to show himself to be a party
to the document: {Smithy. Winter, 8
M. & W. 809 ; Lawrence v. Hooker, 6
Bing. 6.) The Courts in England have,
under certain circumstances, upon the
application of one party to a suit or-
dered documents in the possession of
the opposite party to be produced, for
the purpose of being stamped : {Oigner
V. Bayly, 6 Moore 71 ; Rowe v. Howl-
den, 4 Bing. 639, note ; Neale y. Swind,
1 Dowl. P.C. 314 ; Bousfield y. Godfrey,
5 Bing. 418; Travis v. Collins, 2 C. &
J. 625 ; Hall y. Bainbridge, 14 L. J.Q.
B. 289) ; but have refused inspection
of the title deeds of a party whose title
is in dispute: {Pickering v. Noyes, 1
B. & C. 262.) Now that a party may
be examined orally as to all matters
touching his own case, the doctrine
propounded in the last case may be
well questioned : {Lynch y. O'Uare, U.
C. C. P. Novr. 1855, MS.; Horsman t.
Horsman, Chambers, Sept. 26, 1856,
Burns,J.,2U.C.L.J.211.) At all events
where such documents prove appli-
cant's case affirmatively an exception
to the doctrine seems to prevail : (see
div. III. infra.) Whatever jurisdiction
the Courts possess at common law as
to inspection is not affected, except so
far as extended by recent Statutes:
{Bluck y. Gompertz, 7 Ex. 67; Hoe
Avery v. Langford, 21 L. J. Q.B. 217 ;
Doe d. Child v. Rae, 1 El. & B. 279.)
II. Lispcction under 16 Vic. cap. 19.
— This statute enacts " That whenever
any action or other legal proceeding
shall henceforth be pending in any of
the Superior Coi.rts or in any County
Court in Upper Canada, such Court
and each of the judges thereof in vaca-
tion may respectively, on application
made for such purpose, by either of
the litigants, compel the opposite par-
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834
THE COMMON LAW PROCEDURE ACT.
[s- clxxv.
menta in the or otherwise, is in the possession or power of the opposite party
ofthea.1- it shall be lawful for the Court or a Judge to order that ilio
Terse party. ""c
ty ^0 allow the party making the ap-
plication to inspect all documents in
the custody or under the control of
such opposite party relating to such
action or other legal proceeding, and
if necessary to take examined copies
of the same, in all cases in which pre-
vious to the passing of this Act a dis-
covery might have been obtained by
filing a bill or any other proceeding in
a Court of Equity, at the instance of
the party so making application as
aforesaid to the said Court or Judge :"
(s. 8.) This section appears to have
been literally copied from Eng. St. 14
& 16 Vic. cap. 99, s. 6, under which
it was held that the Legislature never
intended to give Courts of Common
Law a power to compel discovery by a
bill or analagous proceeding, but to
allow an inapection, by one litigating
party, of documents in the custody or
under the control of the opposite liti-
gant party, with certain restrictions or
limitations. The intention of the Leg-
islature was reduced to this — that in-
spection might be allowed whenever
discovery could be compelled in equity :
(Hunt V. Hewitt, 7 Ex. 236 ; see also
Rayner v. Allhasen, 21 L. J. Q. B. 68 ;
Galworthy v. Norman, lb. 70.) This
was held to be the legal intendment of
the Act ; though it is more than pos-
sible that the actual intention of the
Legislature was to provide a more ex-
tensive remedy. The mischief to be
remedied was the necessity existing
for proceeding in Equity with its at-
tendant trouble, expense, and delay, in
order to support i>rocceding8 at law.
The remedy propw for such a mischief
is complete relief in one Court. Such is
the remedy which has been applied by
the Legislature under the C. L. P. A.,
which next in turn presents itself for
consideration.
IlL Inspection and discovery under
the C. L. P. A., 1856.— It having been
held under the previous statute that
the Court had no power to compel a
discovery— that is, of forcing an ad-
versary to disclose what documents he
had in his possession or under his
control relating to the matter in dig.
pute, the present Act supplies that
necessary power. The section under
consideration is the one which applies
It is necessary to examine every word
of it with close attention. It is enact-
ed that upon the application of either
party to any cause or civil proceeding
upon an affidavit by such pwty of his
belief that any document to the pro-
duction of which he is entitled for the
purpose of discovery or otherwise ia
in the possession or power of the op.
posite party, it shall be lawful, &c.
These are the pre-requisites to a suc^
cessful application. First — There must
be a " cause or other civil proceeding."
Secondly— the party applying must be
" a party " to that cause or proceed-
ing. Thirdly — his application must
be upon " his own " affidavit of belief
&c. Fourthly — he must swear that
there is " some document " to the pro-
duction of which he is entitled " for
the purpose of discovery or otherwise."
Fifthly — that document must be shown
to be " in the possession or power of
the opposite party." To take these
separately : — First, as to the " cause
or other civil proceedings^ described
in 16 Vic. cap. 19, as "an action or
other legal proceeding." The words
" or other civil proceeding," super-
added to "cause" must mean some
proceeding other than a cause
Probably proceedings by manda-
mus to enforce civil rights are
embraced : {Reg. v. Amber gale Rail-
way Co., 17 Q. B. 957; Reg v. York
and North Midland Railway Co., 19 L.
T. Rep. 108; see further Attorney
General v. Radloff, 23 L. J. Ex. 240.)
Secondly — As to "the party," it is ap-
prehended that upon suggestion of the
death of the original party his repre-
sentative may make the application :
(ss. ccx.-ccxi.) The application may
be that of " either " plaintiflF or de-
fendant, which 1 ay be taken to ex-
8 clxXV.] DISCOVERY OF DOCUMENTS.
narty acainst whom such application is made, or if such party
is a body corporate; that some officer to be named of such body
33&
tend to
one of several plaintiffs or
The time within 'which
spplication should bw made either
for iuspection or discovery is not
limited " Whenever any action, &c.,
shall be henceforth pending, &c." (16
Vic. cap. 19, 8. 8.) " Upon the appli-
cation of either party to any cause,
&c. in any of the Superior Courts,
j.,;"';" (C. L. P A., s. olxxv.) There
must be a pending cause which intends
a cause commenced. The application
if by plaintiff must be after commence-
ment of action, and may be before
•jsue joined: {Rogers v. Turner, 21 L.
.,808.) And if by defendant, before
piea pleaded : {Forsham v. Lewis, 10
Ex. 712. Thirdly — The affidavit must
k made by a party to the cause or
other proceeding : {Herachjield v. Clark
25 L J. Ex. 113.) But where by the
act of God an affidavit by the party
himself ia impossible, it is apprehend-
ed that a cy pres compliance with the
statute may be allowed, for instance
an affidavit by the attorney: {Scott
T. Macaulay, 4 Ir. Jur. 40.) And
though made by the party himf;elf,
if defective, it may be that the
Court would receive a supplemen-
tal affidavit by another person : {Hew-
<((v. Webb, 28 L. T. Rep. 121.) The
affidavit may be one of belief. If the
application be for a discovery no more
ean be in reason expected. But an
affidavit by deponent that he was " ad-
md," not expressing belief has been
held insufficient : {Pepper v. Chambers,
7 Ex. 226.) Fourthly— An affidavit
that the opposite party has in his pos-
session, &c., "certain documents,"
is insufficient. Some particular docu-
ment must be signified. " Any docu-
ment," in the Act means '^some docu-
ment" to be specified. The Court
before granting the application must
be informed not only of the question
in the cause, but of the nature of the
documents in respect of which the ap-
plication is made : {Ilewetl v. Webb, 28
L. T. Eep. 121.) Fifthly— It must be
sworn that the documents in respect
of which application ia made are in
the "possession or power" of the op-
posite party, which answer to the
words " in the custody or under con-
trol,'' used in 16 Vic. cap. 19, s. 8. —
The documents if in the possession of
a third party, an agent, attorney, &c.,
may be called for as much as if in the
possession of the parly himself.
These formulce are of course subject
to the right of the party applying. It
must appear that he "is entitled" to
the production of the documents
" for the purpose of discovery or other-
wise," which last words may at least
include " inspection." Qu. — Have
these words the effect of allowing appli-
cations under this section in cases in
which discovery could not be had in
equity : (see Osborne v. London Dock
Company, 10 Ex. 698; Whately v.
Crawford, 25 L. Q. B. 163.) Discovery
can only be bad of documents relating
to the matter in dispute and which sup-
port the case of the party applying.
The rule is that a party is not to be
allowed to see the evidence in support
of his opponents case : {Scott t. Wal-
ler, 22 L. J. Q. B. 404;) but inspec-
tion or discovery of documents may be
had, which bona fide make out appli-
cant's case, although that may merely
be the negative of his opponent's:
(^Smith V. £>uke of Beaufort, 1 Hare,
507.) Fishing applications are not to
be favored ; but where the opposite
party has in his possession a document
which does not constitute his own case
and will support that of the party ap-
plying, the latter is entitled to an in-
spection of it : [Sneider v. Mangino, 7
Ex. 229.) Documents equally sup-
port the case of applicant whether
they sustain it prima facie, or contra-
dict the case set up by his opponent:
{lb.) The right to inspect is not lim-
ited to documents necessary to make
o\xt tk prima facie case but extends to
any documents which tend to strength-
en or support it: {Coster v. Baring, 2
P- ''
\ ^ M
■ !1
%
1.1 1
I '
•11
\
886
THE COMMON LAW PROOBDUttl! ACT.
[a. clxxv.
corporate, sball answer on affidavit stating what documents he
or they has or have in his or their possession or power relatini?
N. G. L. Rep. 811.) The documents
must relate to a question in the cause :
(Sneider y. Mangino, ubi supra.) Ap-
plications to procure evidence against
a person not a party to the cause will
be refused: (/&•) The application
must be bona fide and for the purpose
of the suit. And the suit must bo
brought bona fide and for the purposes
other than the disoovery of documents
to found an action against a third par-
ty : {Temperlcy v. Willctt, 27 Law T.
Rep. 103 ;) and not against the defen-
dants ostensibly to try a question
in dispute, but in reality to pro-
cure evidence from one against the
other: (/&.) Disputes must arise in
which the party applying will insist
that the documents of which inspec-
tion or discovery is sought support
his case, which his opponent will resist
upon the ground that the documents
in question relate exclusively to his
case. Rarely, indeed, will the same
document be evidence for both parties.
It will be evidence either for one party
or the other, which is for the Court to
determine. Tiie general rule undoubt-
edly is, that a party has a right to the
production of documents sustaining
iiis case affirmatively but not to those
which form part of his adversary's
case: {IliUy.P/iilp, 7 Ex.232; Riccard
et al. V. lilanuri, 4 El. & B. 829;
Wright V. Murray, 11 Ex. 209. See
further Oalworthy v. Norman, 21 L.J.
Q. B. G8 ; Compton v. Earl Grey, 1 Y.
& J. 154; Bolton v. Corporation of
Liverpool, 1 M. & K. 88.) One great
object in refusing applications under
this section will be to discourage a
party who without a case of his own,
hopes by n n adventure to discover a
flaw in tliat of his adversary : (see
Peppin V. Chambers, 7 Ex. 220 ; Scott
V. Walker, 2 El. & B. 655; Wriffht v.
Murray, ubi sup.) If the intention of
the party applying bo plainly to fish
something favorable to his case the
application will bo refused: {Rayner
V. AUhusen, 15 Jur. 1060.) Thus a
party is not entitled to say, «< if i gj_
my opponent's books I could find some
evidence : " {Scott v. Walker, Cromn
ton,J., 2E1. &B.562.) Ofnecessilv
the applications must often be merely
speculative; but should be strictly
watched and great care taken that in-
justice is not done by granting them •"
{Bray v. French, 28 L. T. Rep. 126 )
For instance, great injury by the dig-
covery of trade secrets might re.»ult if
the Courts were to sanction the prin-
ciple that on the mere possibility of
discovering matter advantageous to
one party, an inspection by him of the
other party's books, ranging over a
lengthened period of time should be
allowed : (Smith v. Oreat Western R
Co., 3 W. R. 68.) The Court or Judge
to ,vhom application is made can only
judge of the propriety or Impropriety
of acceding to tho application upon the
affidavits before him. The ccntents
of applicant's affidavits must be such
as to establ? jh upon his part a prima
facie right to the inspection or disco-
very in accordance with the principles
established in the foregoing en ses. The
affidavit therefore ought not only to
show that a cause or other civil pro-
ceeding is pending, but also to state,
not a mere suggestion, but circum-
stances sufficiet to satisfy the Court or
Judge that there arc in the possession
or power of the opposite party certain
documents, and that such documents
relate to such cause or other civil pro-
ceeding. A prima facie case, calling
for an answer, must at least be stated
in this respect, as it must be in the old
proceeding to obtain inspection of do-
cuments held by a trustee. The judges
with a view to settling the pract'io
under the Eng. Stat, of 14 & 15 .:>:.
cap. 99, to which our St. IC Vic. c. 19,
corresponds, laid down very full rules ,
upon this subject. They declared that
applicant in addition to the foregoing
" must show that he would by a bill for
a discovery or other proceeding bo
able to obtain a discovery and inspec-
DISOOVERT OF DOCUMENTS.
887
j.clxxTi.]
to the matters in dispate, (n) or what he knows ap to the cus-
tody they or any of them are in, and whether he or they objects
or object (and if so, on what grounds) (o) to the production of
guch aj9 are in his or their possession or power, and upon such
affidavit being made, the Court or Judge may make such
fonher order thereon as shall be just, (p) . ( - -i.v,
CLXXVI. (q) In all causes (r) in any of the Superior L^^ol.?.
A.1854,g. 61.
tion of these dooumenta," and continu-
ed "under the last head we must
follow the rules established in Courts
of Equity, within which every plain-
tiff must bring himself in order to ob-
tain an inspection by bill of discovery ;
wd therefore if the facts be disputed
ipplicant ought to state all that a
plaintiff in equity must state in order
to entitle himself to a discovery and
inspection." Theparty applying there-
fore, who is in the same situation as a
pluntiff in equity, must show firtt,
{rhat is the nature of the suit and of
the question to be tried in it ; and it
seems also that he should depose in his
affidaTit of his having just grounds to
maintainor defend it. Secondly, the
aidavit ought to state with sufficient
distinctness the reason of the applica-
tion and the nature of the documents
in order that it may appear to the
Court or Judge that the documents are
asked for the purpose of enabling, the
the party applying to support his case
sot to find a flaw in the case of his
opponent, and also that the opponent
may admit or deny the possession of
them:" (Hunt y. Hewitt, 7 Ex. 243.)
To this affidavit the opponent may an-
swer by swearing that he has no such
documents, or that jthey relate exclu-
sively to his own case, or that he is,
for any sufficient reason, privileged
from producing them : or he may sub-
mit to show parts covering the re-
mainder, on affidavit that the part con-
cealed does not in anywise relate to
applicant's case. The same course
would be pursued in equity : {Hunt v.
Eewiit, 7 Ex. 244.) Further see Wi-
gram on Discovery, Hare on Disco-
very, and Pollock on Discovery. In
W
i.^
U.c.ch-Li
applications under this section, a place
for inspection should be named: {Ro-
gers y. Lewis, 21 L.J. Ex.8.) The costs
of the inspection ought^ aa a general
rule, to be paid by the party applying :
{Hill v. Philp, 7 Ex. 232 ;) but are,
with the costs of the application, in the
discretion of the Court or Judge : (s.
oxxxi., and Smith v. Great Western JR.
Co., 25L.J.Q.B.79;) and may be pro-
vided for in express terms by the rule
or order to be obtained.
(n) It is this part of the section that
leads from inspection to discovery.
Applicant having established a prima
facie case as to some document of
which he seeks inspection is upon this
foundation allowed to proceed further
and tu ask what documents his adver-
sary has personally or in his power
relating to the matter in dispute, &c.
(o) Generally where a party can
resist the application for inspection he
may resist an application for discovery
which leads to inspection: (see note
m, ante.)
{p) i, e. As to the production of fur-
ther documents relating to the matters
in dispute.
{q) Taken from Eng. Stat. 17 & 18
Vic. cap. 125, s. 51, — Applied to
County Courts. — Founded upon 2nd
Rep. C. L. Comrs. ss. 87, 88. Disco-
very may be either of documents in the
possession of, or facts within the know-
ledge of the opposite party. The first
class of cases having been provided
for by the preceding section, this sec-
tion provides for the latter.
(r) Causes. The words "or other
civil proceeding," used in the preced-
ing section, have been dropped here.
A criminal information is clearly not a
.lie.
ate*
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888 THE COMMON LAW PROOKDVRS ACT. [s. oluv'
Sfta'; Co«'^*^' (') ^y '^'f^®' <»^ *^® ^O'*'* <*' * J^'^g®! (0 tlie Plaintiff
^ th"o'' "'^y ^ *^® declaration, and the Defendant may with th
**h sh'if be P'®*' ^"^ either of them by leave of the Court or a Judge mav
required to at any Other time, (m) deliver to the opposite party or his
attorney (provided such party, if not a body corporate, would
be liable to be called and examined as a witness upon gudi
answer
th«m.
cause within the intention of this sec-
tion: [Reff.y.Alpin,\2Jur.l\.) The use
of the words "declaration" and '*plea"
in a subsequent part of the section in-
dicates the nature of the proceedings
intended. Notwithstanding the use of
these words interrogatories may be put
in actions of ejectment: {Flitcro/l v.
Fletcher, 11 Ex. 543 ; Cheater v. Wort-
lei/, 17 C. B. 410.)
(«) I. e. Queen's Bench or Common
Pleas. The word ^^any" as applied
to two Courts is not so correct as
"either;" but the use of "anv" in
our C. L. P. A. arises from a literal
adoption of the C. L. P. A. of Eng-
land, where there are three superior
Courts of Common Law.
(t) Relative powers see note m to s.
zxxvii. In every case to entitle a
party to file interrogatories an order
of the Court or a Judge is made neces-
sary. There is very good reason for
this ; for otherwise interrogatories
would be delivered in all cases, and
would be added to every declaration
and plea. The power given to the
Court or a Judge is to prevent expense
being incurred unless the interrogato-
ries are necessary : (3Iartin v. Jlem-
ming, 10 Ex. 478.) The interrogato-
ries intended should be submitted at
the time of application for leave to file
them : (Croomea ▼. Morrison, 34 L. &
Eq. 300, 26 L. T. Rep. 238.) Where
a party to a cause has obtained a rule
calling upon the oppo'site party to show
cause why interrogatories should not
be delivered to him, and the aflSdavit
sworn by the opposite party, for the
purpose of opposing the rule, gives the
information required, the Court will
put the party moving in the same po-
sition as if the information had been
given upon interrogatories : {Peck y.
Revia, 27 L. T. Rep. 136.) Sembk if
any other case should be set up at the
trial a new trial would be granted on
the ground of surprise : (76.)
(«) The time appointed for deliverv
of interrogatories by plaintiff is y,\i{
his declaration and by defendant with
his plea. If at any "other time"
particular attention must be paid to
the form of the opplication. CoDTeni-
ence requires that if interrogatories
are delivered before declaration, they
should be accovipanied with some
statement as to the cause of action '
it must be shown that they are pertin-
ent. The Court or Judge must be
supplied with information in order to
see whether the interrogatories are
proper or whether they are merely
vexatious. The power to admit inter-
rogatories may be abused to annoy the
opposite party and to multiply costs,
and therefore requires to be carefully
watched : {Croomea v. Morrison, 34 L
& Eq. 299 ; 26 L. T. Rep. 238.) Leave
was granted to a defendant to deliver
interrogatories before plea pleaded,
where the plea was before the Court
and the interrogatories modified to
have precise reference to the plea:
{Street v. Cuthbert, Chambers, Oct. 6,
1856, III.U.C.L.J. 9,) Leavemay.it
seems.be granted toaplaintiff even after
plea pleaded without a special affidavit '
iJamea v. Barns, 84 L. & Eq. 434.)
tut if defendant apply to be allowed
to deliver interrogatories after plea
pleaded, it must be shown that the in-
terrogatories are pertinent to the plea
pleaded. Defendant may ask leave tp
file additional pleas, and (hen ask leave
to put interrogatories for the discoveiy
of matter affecting them : {Street v.
Proudfoot, Chamber8,Oct.3,1850, II.U.
U.C.L. J. 213.) If issue has been joined
DELIVERT or INTERROQATORIKS.
s,clxxvi.]
tter) (v) interrogatories in writing (ir) upon any wftUor
( ) upon which discovery may be sought, (y) and require suoh
arty or in the case or a body corporate, any of the offioors of
880
♦he inlerrogatorieB must point to the
proof of something affecting that issue :
Is] If a foreigner residing abroad
■ne in our Courts, he is subject to in-
Hep. 108.)
' (it) The interrogatories had better
ho verified by affidavit: (Croomes v.
l„i,on, 84 L. & Eq. 800.)
(z) Copies of written documents ore
not Buch " matter" as may be the sub-
iect of interrogatories under this sec-
tion. Prooee^ngs as to them must be
taken for inspection and discovery
under the preceding sectiou : (Scott v.
Zmmala,iBl & B. 483; SO L. &
Eq. 165.)
(«) The right to deliver interrogato-
ries in oases in which discovery could
not be obtained in Equity is a vexed
question. They may be delivered as
to " any matter upon which discovery
may be sought." The turning point ia
upon the word " discovery." It may
mean information generally ; or only
such information as can be had by a
bill in Equity. 1;^ the first case which
arose under the section, the Court ab-
stained from giving any decided opi-
nion upon the point : {Martin v. Hem-
ming, 10 Ex. 478.) In a later case
Parke, B. is reported as follows — " The
section says that the party may be in-
terrogated upon any matter as to which
a discovery may be sought. It does
not say that the power is limited to
cases in which <' a bill in discovery will
lie:" (Oaborny. London Dock Co. 10
Ex. 698.) But contrary to thisjopi-
nion there is that of Campbell, C. J. —
"I interpret the meaning of these
words to be that interrogatories may
be put with reference to any matter as
to which discovery may be sought by
bill in Equity. The rule is laid down
rather widely by the Court of Exche-
quer in Osbom V. London Dock Co.,
where it is said that the interrogato-
ries may be ndrainitterod to the snme
extent as if the party intcrrogMtcd was
a witness under examination at the
trial. I think the true rule is Uiat
such questions may be put us may
reasonably be expected to proiluoe an-
swers tending to advance the case of
the party wlio puts them. Whatever
advances the plaintiff's ease may bo
inquired into, though it may at the
same time bring out matter which the
defendant relies upoD for his defence ;
that which is common to plaintiff and
defendant may bo inquired into by
either. The verv ol\)ect of the section
was to obviate the necessity of going
for assistance into a Court of Equity,
whioh brought great scandal upon the
administration of justice :" ( WkaHettff
V. Oraw/ordt Cartw ▼. Dttvia^ 20 L. T.
Rep. 104, 25 L. J. Q. B. 10i8; 6 £1. &
B. 707.) Such also was Lord Camp-
boll's views as expressed in a very late
case—*' We are disponed to think that
the section now under consideraUon
ia intended to apply to cases only where
the matter Inquired into would be evi-
dence in the cause, and it waa not in-
tended therefore to give one party the
power of asking another how he in-
tends to shape his case. Such an in-
quiry is a mode of inquiring into par-
ticulars upon oaUi, without the party
being oompoUcd to confine himself to
particulars. Where the justice of the
case requires suoh particulars to be giv-
en, the Court have geiiorally the means
of compelling then* to be given under
such conditions as are reasonable. We
think that we ought at all events to
hold that the discovery under tho 51st
section (Eug. C. L. P. Act, 1854) is
confined by the words **upon any
matter as to whioh the discovery may
be sought," to cases where a discovery
would bo given at equity, . . and
a party should not make a fishing ap-
plication as to the manner in which his
adversary intends to shape his case,
and as to tho ertdence by which he in-
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540
THE COMMON LAW PROGKDURK ACT.
such body corporate, within ten days to answer the questions in
writing by aflBdavit to be sworn and filed in the ordinary ^av •
(a) and any party or officer omitting without just cause (a^
sufficiently to answer all questions as to which discoverv mav
be sought; within the above time, or such extended time as
the Court or a Judge shall allow, shall be deemed guilty of a
contempt, and shall be liable to be proceeded against accord.
ingly. (b)
tends to support it :" (Edwardi et al.
T. Wakefield, 27 L. T. Rep. 201.) It
■was therefore held in an action of
trover by the aflsignees of a bank-
.rupt to recover property that the de-
fondant was not entitled to deliver in-
terrogatories to the plaintiffs, calling
on them to show *' what case they in-
tended to set up as entitling themselves
to recover," or to state *' what act or
acts of bankraptoy they intend to rely
upon in support of their title as assig-
nees:" (76.) But in an action for
money had and received and for non-
delivery of goods, whore plaintiff's
case was that the defendant had pro-
fessedly sold him goods and received
payment for them as broker, while he
was really the principal, the plaintiff
was allowed to ask whether the defend-
ant was really principal or agent, and
if agent for whom and by what autho-
rity: {Tkol V. Leatke, 10 Ex. 704.)
And in an action of ejectment, defend-
ant was allowed to ask the plaintiffs
whether they claimed as heirs or gran-
tees, and how they traced their pedi-
gree: {Fliteio/t V. Fletcher, 11 Ex.
648 ; Horsman v. Horaman, Chambers,
Sept. 27, 1856, Burns, J., II. U.C.L.J.
211.) Inquiries may be made as to
the nature of plaintiff's title, but not
as to evidence which exclusively sup-
ports it: {lb.)
(«) The proper way to answer inter-
rogatories ia to give a separate and
distinct answer to each question, that
is to say, a specific answer to a specific
question : IChetter v. Wortley, 25 L.
J. C. P. Il7.) It is not, it is presum-
ed, for the party answering to set out
the interrogatories before his answers.
The practice which has obtained in
Upper Canada ati to insolvent debtors
would seem to be applicable.
(a) Just cause. The tend«ncy of a
question to criminate is, it seems a
just cause ; but that is no reason Vhy
the interrogatory should not be put'
(Oiborn V. London Dock Co. 10 Ex
698 ; Chester y. Wortley, 17 C. B. 410-
James v. Barns, 17 C. B, 596.) Whe-
ther a witness is entitled himself to ob-
ject to the question upon the ground
of its tendency, or is bound to satisfj
the Court that such ^vill be its effect
in other words, whetb t the Court or
the witness is to judge of the effect is
not settled: (Fisher v. Ronaldi, 12
C. B. 762 ; Osborn v. London Loci-
Co., ubi supra.) An affidavit made
by the attorney of the party interro-
gated that in his belief the question
proposed will criminate his client if
answered, is insufficient. The objec-
tion must come from the client him-
self: {lb.) A witness cannot refuse
to be sworn and examined on the
ground that the only relevant ques-
tions that could be put to him are such
as would tend to criminate him. The
opposite party has a right to insist
on his being sworn, and it is for him
then to claim the privilege upon being
asked the objectionable questions:
(Boyle V. Wiseman, 10 Ex. 647.)
It is not settled whether a party
can refuse to answer an interrogatory
on the ground that it has a tendency •
to render him liable to a forfeiture:
(Mai/y. Hawkins, 11 Ex. 210; Chattr
T. Wortley, ubi supra.)
(A) The Court will not grant an at-
tachment until the time for answering
APPLICATION FOR lEAVl.
841
K)lrt»il.]
CLXXVII. (c) The application for such order (d) shall he^^^-^^^^^
1.181
made upon an affidavit of tho party proposing to interrogate, (c) a. i864,i. 62. ^"'-*^ '*
and his attorney or agent, (/) or in the case of a hody corpo- ^^^•;|f,^.,,
„^e of thoir attorney or agent, (g) stating that the deponents <»>« •pp"'^
or deponent believe or believes that the party proposing totoMrremch
t.tArrotmto, whether Plaintiff or Defendant, will derive mate- toriM muit <
rial benefit in the cause from the discovery which he seeks,
that there is a good cause of action or of defence upon the
nerita, (A) &n<l ^^ ^^^ application be made on the part of the
T)el'oadant, that the discovery is not sought for the purpose of
delay (0 Provided that where it shall happen from unavoid-proviw:
able ctrcuinstanocs, that the Plaintiff or Defendant carnot join where th«
in such affidavit, {j ) the Court or a Judge may, if they or he ^nted'from
ihink fit, (^') upon affidavit of such oircumnstances by which Buoh"!!fflda-
the party i^ prevented from so joining therein, allow and order "'*
vit.
has expired, nor If tho party has filed
isswers before upplioatlon for attach-
aeot, though after the time appoint-
tii [C»rran ▼. Elphinttone, 4 W. R.
60.)
(c) Taken from Eng. St. 17 & 18
Vic. cap. 125, a. 62.— Applied to Coun-
tT Courts.
Id) i. «. Suoli order as is mentioned
intlie preceding section.
It) i. «, Either plaintiff or defend-
ant.
(/) It ifl to be observed that the
application must be made upon an affi-
davit of tho party and his attorney or
agent. It is material that there should
in such applications bo a responsible
officer of the Court. Tho attorney
must in any event bo a party to the
affidavit. But the objection cannot
be tftlien in bane, after an application
in Chambers, without objection there :
iWhattlnfy. Crawford, Carewv.Drew,
34L. &Eq. 200.) In case of neces-
sity under circumstances of peculiar-
ity, such for example as tho residence
of the client in parts abroad, an affida-
vit in a form other than that here re-
quired might be received : (see proviso
to this section.) But nn affidavit of
the attornoy it is conceived will be
requisite in every cose.
( jr) In this case an affidavit of the
attorney or agent only is made suffi-
cient.
(A) Whether plaintiff or defendant ap>
ply there must be an affidavit of merits :
(May V. Hawkins, 1 Jur. N. S. 600, 82
L. & Eq. 695.) And in either case the'
words "upon the merits," should be
incorporated in the affidavit : (Anony-
mous, 26 L. T. Rep. 197.) It is not
in general sufficient to show merits by
stating facts in the affidavit : {lb. See
farther note/ to s. xlvii.) If the ap-
plication be before declaration a gene-
ral affidavit under this section would
be wholly insufficient. In such case
information must be given of the
cause of action : (Croomet v. Morriton,
84 L. &. Eq. 899.) As to affidavits
generally see notes to s. zxii. of this
Act, p. 41 et seq. of this work.
(t) Delay should be negatived in the
affidavit.
(J) What may be unavoidable cir-
cumstances in the opinion of the Court
or Judge can only be determined with
reference to the special circumstances
of each particular case as it arises for
adjudication.
(A) Court or Judge. — Relative pow-
ers : see note m to s. zxxvii.
I
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842 THE COMMON LAW PROOIDURI ACT. [>. olxxt'*
that tho interrogatories may be delivered without luch affi
davit. (/)
' i^itW^ i^M:2- CLXXVIII.^ (m) In case of omission, without just cause
%/9a. ' to answer sufficiently such written interrogatories (n) It 8h II
oml^n to bo lawful for the Court or a Judge, at their or his discretion ( \
PBrtTwiVbo^o direct an oral examination of the interrogated party ag ♦
"?iiK"oi such points as they or he may direct, [before a Judge or an!
IZZui^l^ other person to be specially named,] (p) and the Court or
raenl!i"?"and » ^^^S^, ^^y by such rulo or order, or by any subsequent rule
»)eforewhoin. Qp order, command the attendance of such party or parties b
fore tho person appointed to take such examination for the pur.
pose of being orally examined as aforesaid, or the production
of any writings or other documents to be mentioned in such
rule or order, (q) and may impose theroin such terms as to such
examination and the costs of the application and of the nrn.
ccedings thereon, and otherwise, as to such Court or Judw
shall seem just [and such rulo or order shall have tho same
force and effect and may be proceeded upon in like manner as
an order made under tho one hundred and seventy-first section
of this Act], (r)
(/) Such affidavit — that is —an affi-
davit of the party applying and his
attorney. In lieu of it a sufficient
affidavit of special circumstanoes must
bo filed.
(to) Taken from Eng, Stat. 17 & 18
Vic. cnp. 125, s. 63. — Applied to Coun-
ty Courts. — Founded upon 2nd Rept.
C. L. Comrs., s. 89. This section is
an extension of the right of one party
to put written interrogatories to his
opponent.
(n) The right orally to examine
seems to be restricted to cases where
the party interrogated has without
just cause omitted to answer sufficient-
ly. This is rather more limited than the
Commissioners intended it should be.
They recommended an oral examination
" in case of an insufficient answer, and
in any other case in which it may be
made to appear essential to justice,
subject to the control of the Court."
. In principle this section is the same
as that of b. olxxiv., which allows
an oral examination of a witness who
declines to make an affidavit. One dis-
tinction may be noted, which is, thai
under the former a judge only seems
to have jurisdiction whilst under tho
section here annotated there is power
in the Court or a judge.
(o) Relative powers : see note m to
s. xxxvii.
(p) For words in brockets read in
English Act the word '♦ Master." The
most likely persons to be appointed for
the duty under our Act are public offi-
cers, such as County Judges, Clerks
or Deputy Clerks of the Crown. &c.
(y) Though a privilege may exist
asto the party himself or as to cer-
tain documents, the production cf
which is required : it is apprehended
that the party should in obedience to
the order of the Court at least attend,
and then claim his privilege.
(r) Tho words in brackets are new
.clwix-]
DKP08ITION8 TO BE FILED.
848
CLXXIX. (0 Whonover by virtue of thU Act, (u) an ox- tl«»yj«J;^^) ^*^^*'^ ^
nioation of any party or parties, witnoM or witneMoi, ha«A"'M.i.66! "^_ "•
gmiMtion
been taken before a Judge of either of the Superior Courts, or •«*»'•>•'
( nnv County Court, or before any Officer or other person fl'«4i in tb*
appointed to take tne same, (c) tUo depositions taken down by Court.
juch ezaminof shall be returned to and kept in the office of the
Court (to) (principal or Deputy Clerk's office, as the ease may
u Id which the proceedings are being carried on, (x) and
office copies of such depositions may be given out, (j/) and the
examinations and depositions certified under the hand of the in'eviUuDca.
Judge or other officer or person taking the same, (2) shall and
may without proof or"** the signature, (a) be received and read in
evidence, (b) saving all just exceptions, (c)
and most useful. They correspond to
tn express enactment in Eng. G. L. P.
A. 1854: (s.54.)
(I) Taken from Eng. Stat. 17 k 18
Vio. cap. 126, b. 66. — Applied to
County Courts.
(uj Extends apparently to examin-
atioDS bad under bs. olzxi, clxxiv, and
clxxfiii.
(v) See the Beveral Bections under
which esaminations may be had.
(v) Either Queen's Bench or Com-
mon Pleas, according as the case is
pending in one or other of these Courts.
As regards cases sued in County Courts
of course these and no other Courts
can be intended : (Co. C. P. Act, 1856,
S.2.)
(z) All proceedings to final judgment
may be carried on in the office whence
first process issued : (s. ix.)
(y) There is no mention of any
charge for this service, but the sche-
dule of fees attached to the New Rules
supply the omission. The charge per
folio for copying will be 6d, and cer-
tificate 29 6J. If the copy appear to
have been delivered out of the office in
the due course of business, it will be
;)riffla/(7cie taken to be correct: [Dun-
can V. S'ott, 1 Camp. 101.)
(z) This means the original ex-
aminations or depositions. The mean-
ing cannot be that office copies given
out should be certified by the Judge or
other officer or person taking the
aatnf; for the officer takes the original
examination and depositions and not
office copies.
(a) The original depositions only
appear to be made receivable as evid-
ence without proof of signature.
{b) The effect of this section is to
maxe the depositions or examinationi
evidence upon their bare production.
Qu, Are they **pabr.o documents"
that may be proved by copies certified
by the officer in whose custody the
originals are entrusted T (18 & 14 Vic.
cap. 19, 8. 4, 16 Vio. cap. 19, s. 9.)
?c) Saving all j'utt exceptions. It is
difficult to say what would be a "just
exception" within the meaning of this
section. It may be doubted whether
the depositions can be read if the wit-
ness be within the jurisdiction of the
Court and compellable to attend for oral
examination at the assizes : (see Proc-
tor v. Lainson, 7 C. & P. 629.) Deposi-
tions taken under a commission to ex-
amine witnesses cannot be read if the
witness be within the jurisdiction of
the Court and of sound mind, &o:
(2 Geo. IV, 0(1 .). 1, 8. 18.) If there
has been any irregularity in pro-
ceeding with a commission to examine
witnesses, as for instance, if it were
executed without any notice to the op.
, i
'^
• " Or," appears to bo an error; "of" is probably intended.
'i i '■ '•'^ I*
344
THE COMMON LAW PROCEDURE ACT.
[8. dxxj
^>'te*L. p! CLXXX. (d) It shall be lawfnl for every Judge, [Office,
A. 1864, "-66. or other person named] (e) in any such rule or order as afo
Examiner said, for taking examinations under this Act, (/) and he '
■peciaireport hereby required to make, if need be, a special renort *« iv
Court in which such proceedings are pending, (<;) touching
such examination and the conduct or absence of any witness o
other person thereon or relating thereto j (A) and the Court i
Orders there- ^®'®^y '®^^^^<^^ **^ institute such proceedings and make such
opon- order or orders upon such report as justice may require and
posite party to enable him, if he
pleased, to put cross interrogatories,
naoh irregularity is a good objection to
the admissibility of the depositions :
(Steinkeller v. Newton, 9 C. & P. 313.)
Where a ivitneBS who had been exam-
ined on interrogatories in a foreign
country, stated in one of his answers
the contents of a letter which was not
produced, it was held on the trial of
the cause in England that so much of
the answer as related to the contents
of the letter was not receivable in evi-
dence, although it was urged in sup-
port of its admissibility, that there
were no means, as the witness was out
of the jurisdiction of the Court, of
compelling the production of the letter:
(lb. Sed qu. See this case differ-
ently reported in 2 M. & B. 372.)
Where the witness was both examined
and cross-examined, the answers to the
examinations in chief were held not to
be admissible without the answers to
the cross-examination : ( Temperley v.
Scott, 6 C. & P. 341 ; see furJher Ste-
phens V. Foster, 6 C. & P. 289.) Ob-
jectionable questions or answers may
be struck out at the trial, so as not to
be laid before the jury,but the right to
make the application does not extend
to the party who produces them : (Ilut-
Tuf-
405;
&S.
chinton ▼. Bernard, 2 M. & R.
ton V. Whiteman, 9 L. J. Q. B.
also Williams v. Williams, 4 M,
497.)
[d) Taken from Eng. Stat. 17 & 18
Vic. cap. 126, s. 66. — Applied to
County Courts. The origin of the en-
actment seems to be Eng. Stat 1 ;& o
Wm. IV. cap. 22, s. 8. * '^
(c) Instead of the words in brackets
the Eng. C. L. P. Act reads "Master"
(/) i.e. Under ss.clxxi,chxiv, and
clxxviii.
(jj) The officer who takes the esam-
ination is " required to make" a spe-
cial report, "if need be." Qu. Who
is to judge of the necessity— Can a
party lo the cause require the officer
to make a special report 7
(A) The matters that may enter into
the subject of the special report are
here enumerated, viz., the conductor
absence of any witness or other person.
If a witness produced improperly con-
duct himself from bias or other corrupt
motives that may be made to appear.
If there be reason to believe that a
witness absent has been kept away
through the influence of either party,
that also may be made to appear.
So if a party to the cause or any other
person upon his behalf, disturb the
examination. These and ciatters of a
similar nature that will readily suggest
themselves, furnish materials for a
special report. No form of report is
given. The return to a commission,
order, or other document authorising
an examination, must generally be in
strict accordance with the terms of the
document authorising the examination:
(see Atkins v. Palmer, 4 B. & A. 377;
Clay V. Stephenson, 7 A. & E. 185:
Steinkeller v. Newton, 1 Scott N.R.148;
8 Dowl. P. C. 379, 9 C. & P. 313, dif-
ferently stated by each reporter.)
EXECdTION.
345
g, ehxil]
as may be instituted and made in any case of contempt of the ' ,
Court. (0
CLXXXI. (J ) The costs of every application for any rule (App. cb. c.)c^ s Wi -fm^ | '
or order to be made for the examination of parties or witnesses aI'W.b.m! * 'v,*''^ ^^
by virtue of this Act, (k) and of the rule or order and proceed- as to costsof "^
ings thereon, (0 shall be in the discretion of the Court or amfnauon?"
Judf^e by whom such rule or order is made, (m) .,^
And with respect to Execution ; (-w) Be it enactec" as Execution
follows :
li) See Chit. Arch. 8 Edn. 332.
;•) Taken from Eng. Stat. 17 & 18
Vic. cap. 125, s. 67. — Applied to
County Courts. ^ , , ...
Ik) Seess. cixxi, clxxir, and clxxviu.
(A May refer to admissions or other
nutters incidental to but arising out
of the examinations.
(m) Though the origin of this en-
actment appears to be Eng. Stat. 1
Wm. IV. cap. 2, s. 9, it must be borne
in mind as a point of distinction, that
under the Eng. Stat, of William the
costs are made costs in the cause:
[Prince v. Samo,^ 4 Dowl. P. C. 5.)
(fl) The description of property seiz-
fible under execution in Upper Canada
in some respects differs fiom the laws
of England. Personal property com-
monly described as goods and chattels
is, both in England and in Upper
Canada, liable to seizure. Beal estate,
commonly described as lands and tene-
ment, in Upper Canada though not in
England may be seized and sold in
satisfaction of debts, whether simple
contruct or specialty in the same man-
ner as goods and ch attels. This was a
principle that existed in many of the
British colonies of North America from
an early period. An attempt made in
some of the colonies to dispute the
principle to the detriment of English
creditors led to the passing of Eng.
St. 5 Geo. II. . ap. 7, intituled " An
Act for the more easy recovery of
debts in his Majesty's Plantations and
Colonies in America." It enacts, as
follows: "That from and after, &c.,
the houses, lauds, negroes, and other
hereditaments and real estates situate
or being within any of the said planta-
tions belonging to any person indebted,
shall be liable to and chargeable with
all just debit, dutiet, and demands of
what nature or kind soever, owing by
any such person to his Majesty, or
any of his subjects, and shall and may
be assets for the satisfaction thereof,
in like manner as real estates are by
the law of England liable to the satis-
faction of debts due by bond or other
specialty, and shall be subject to the
like remedies, process, and proceedings
in any Court of Law or Equity in any
of the said plantations respectively,
for seizing, extending, selling, or dis-
posing of any such houses, lands, ne-
groes, and other hereditaments and
real estate, towards the satisfaction of
such debts, duties, and demands, and
in like manner as personal estates in
any of the said plantations respectively
are seized, extended, sold, or disposed
of for the satisfaction of debts :" (s.
4.) The construction of this section
has been the subject of doubt and of
some diversity of opinion. The lead-
ing case in Upper Canada upon the
statute is Gardiner v. Gardiner, 2 S.
620. The perusal of it, particularly
the judgments of Robinson, C. J., and
Macaulay, J., who, though differing
in one very material point, in the main
agreed in opinion, will put the reader
in possession of the whole law upon the
subject. Whatever differences of opi-
nion there were, the law is now settled.
It appears that from 1791, when
Upper Canada became a separate co-
Ci^a . efx -2.1.
«k1R>h
,; ri;
I,'
if|||iH:
i!s
346
(App. Oa. C)
ProT.Stat.10
THE COMMON LAW. PROCEDURE ACT. [s. dxx '*
CLXXXII. (o) In all actions brought in either of the
said
loay, little use was made of the Aot of
Qeo. II., owing to doubts whetiier that
Statute applied to Upper Canada in
oonsequea }e of our adoption of the laws
of England by the 32 Qeo. III. cap. 1.
The issuing of writs against lands was
obstructed by these doubts till 1804,
when the case of Gray v. WMoeka oc-
curred and suspended aU the proceed-
ings under the Statute during the seve-
ral years in which that case was pend-
ing. It was ultimately decided in appeal
in 1809 in favor of the application of the
statute to Upper Canada, and the point
being no longer doubtful resort was
frequently had to the Statute : ( Robin-
son, C. J., in Gardiner r. Gardiner, 2 0.
S.547.) And when in course of time the
Act in practice was closely examined
and its meaning thoroughly sifted, im-
portance was attached to the fact that
it not only made real estate liable for
and chargeable with the payment of
debts of every description but assets
for their satisfaction. Under the ope-
ration of the Statute it was held that
real estate in Upper Canada descended
to the heir, subject to the payment of
debts and liable to be seized and sold
therefor in proceedings against an ad-
ministrator or executor, witliout mak-
ing the heir at law a party to such
proceedings: (Cart/mv v. Gardiner,
ubi supra.) This anomaly in conse-
quence presents itself — real estate
quoad the satisfaction of debts is treat-
ed as personalty, and yet for all other
purposes retains its character of real
estate. It is an anomaly not unknown
even in England. Estates pur autre
vie ai-e turned into personalty for some
special purposes, but nevertheless the
nature of the estate is unaltered : (29
Car.II.cap.3,s.l2; 14 Qeo. 11. c 20, s.9,
per Robinson, C. J., 2 U.S. 556.) The
Statute 5 Qeo. II. cap. 7, not only de-
clares that real estate shall be assets
for the satisfaction of debts, but en-
acts the manner in which it shall be
converted, for the purpose of paying
debts, viz., "subject to the same re-
medy, proceedings, and process for
seizing, extending, selling, &c
like manner as personal estates' a'"
seized, extended, sold," &c The r
medy with respect to personal' estate
IS by judgment and execution iiiiain f
the debtor, if alive, or against ais ex
ecutor or administrator, if deceased
To sell real estate upon a judgment
against an executor or administrator is
inconsistent with the law of England It
is a mode of procedure peculiar to tho
colonies, and one which exists in Upper
Canada solely by virtue of St. Geo ir
which applies only to the colonies
The usual form of execution against
personal property both in England and
Upper Canada is a writ of fi. fa,^ j^j
this form is in Upper Canada under
the operation of the Stat, of Geo. H
also used as regards real estate. The
usual form of execution against lands
and tenements in England is the elegit
which, though not abolished in IWr
Canada, is in a great mea'uresupersed-
ed by the;?, fa. against lands. In mosi
of the British colonies of North America
goods and chattels, landsand tenements
were at one time included in one and
the same writ of fi. fa. This was the
practice in Upper Canada until 1803
when it was enacted that process should
not issue against lands until the return
of process against goods : (43 Geo, III.
cap. 1, 8. 1.) Shares in the capital
stock of incorporated companies are
deemed personal property and liable as
such to sc'zure in execution :
Wm. IV. cap. 15; 12 Vic.
Besides real and personal property
such as already described, "debts
owing to," the judgment debtor may be
seized under certain regulations by
virtue of the sections following. With
respect to executions gcnerilly, a num-
ber of useful regulations are also en-
acted, ea:h of which will be considered
in its place.
(o) Taken from Prov. St. 10 Vic. .
cap. 175, 8. 27, of which it is a verba-
tim copy, and substantially the same
as Eiig. St. 1 Wm. IV. cap. 7, s. 2.
The Statute is a remedial one, and
(see 2
cap. 23.1
.clxxxii.]
IMMEDIATE EXECUTION.
847
Tourts, (p) o"" ^° *"y County Court, the Judge before whom vio.c.175,b.27
issue joined in such action shall be to be tried, or damages After verdict
be assessed, (q) in case the Plaintiff or Demandant therein J «<•«» may'
"hall become non-suit, (r) or a verdict shall be given for theexecuUon
Plaintiff or Demandant, Defendant or Tenant, (s) may certify issue forth-
under his band on the back of the Record, at any time before
the end of tbe Sittings or Assizes, that in his opinion, (f) exe-
ution ought to issue in such action forthwith, (ii) or at some
dav to be named in such certificate, and subject or not to any
meant to protect against frauds and to
secure suitors in the fruits of their
yerdicts. It should therefora receive
g liberal construction : (Robinson, C.J,
in Patterson v. Hall, 11 U. C. 11.
' I'p) The English Statute of William
ffis iield to apply to actions commenced
before it came into operation, but tried
afterwards : (Bell v. Smith, 6 C. & P.
10) ; and though at first looked upon
Hs limited to actions on contract was
afterwards held to apply to all cases
where the Judge might think execution
oufht to issue at an early period : ( Bar-
^,%. Cox, 1 M. & R. 203 ; Younje v.
Cwfa,lM. &R. 220.)
In) It is in the discretion of a County
Judge to make an order for immediate
execution in such cases, as he has au-
thority to try, whether instituted in
8 Superior Court or in his own Court :
( Patterson v. Hall, ubi supra. ) He can
therefore order immediate execution in
cases sent down to him by writ of trial
under 8 Vic. cap. 13,8. 63: {Ib.\ The
Judge before whom the trial is had is
Me Judge authorised to certify : (see
Carpenter v. Lee, 1 Dowl. N.S. 706 )
(f) Where in an action for criminal
conversation in consequence of tlie pre-
Tarjation of oneof plaintifiF's wituess-
eo, plaintiff elected to be non-suited.
Tiudal, C.J, upon deliberation certified
for execution for costs to be issued at
the expiration of one montii : (Ham-
bridge y. Craioley, 5 C.& P. 9, n.)
(«) Whore in an action for goods
sold and delivered, and on an account
stated, there was a demui-rer to the
count on the account stated which had
not been argued at the time of the tr'al
when plaintiff had a verdict, the- pre-
siding Judge certified for immediate
execution upon plaintiff undertaking to
enter a nolle prosequi to the count de-
murred to : {Allsopp V. Smith, 7 C. &
P. 708.) Qu. Can the Judge certify for
speedy execution when one of two de-
fendants has tendered a bill of excep-
tions : (Dresser v. Clarke, 1 C. & K.
509.)
(<) The Statute is more particularly
intended to apply when the Judge, on
the facts appearing at the trial, thinks
there should be execution immediately:
{Le Gervasy.Burtchley, 1 M. &R.160);
but affidavits may be received in sup-
port of the application : {Ruddiek v.
Simmons, 1 M. & R. 184.) Lords
Lyndhurst and Tcnterden in England
are said to have laid it down as a rule
that where there was a reasonable
ground of defence the cnse should take
the ordinary course : [Barford v. Nel-
son, 5 C. & P. 8. ) The general object
of the English Statute was thought by
Parke, J., to be to accelerate execution
for all debts where there was really no
doubt of the claim upou the record :
{Anon. 1 M. & R. 167) ; and he certi-
fied for immediate execution in an ac-
tion of assumpsit, though the verdict
was taken by consent and though the
consent did not contain any stipulation
as to the issuing of execution : (lb.)
(«) " Ftirthwith" means as soon as
execution can be obtained in the ordi-
nary course of the Court or of the
office : {Snooks v. Smith, 7 M. & G.
528 ; Gill V. Rushu'orth, 2 D. & L.
410; AlexaMer v. Williams, 4 D. &
%:
348
THE COMMON LAW PROCEDURE ACT.
jKfieyv SLci Atv- (^RP- 0>- <^)
mSSi U .<?.■■' I a a. Prov.-Stat.lO
%a-f
okJkSW
l-Mi
^riit *
i ' ' ■ .1
. iiiil
[s. clxxxiii.
condition or qualification, and in case of a verdict for tli
PlaintiflF, then either for the whole or any part of the sum fo I
Taxingco«ts.^y «"«^ ^'«^*^^^*' (^) ^° «" ^^^«^ ''^^es costs may be taxed Iq
the usual manner and judgment entered forthwith, and exe
tion may be issued forthwith or afterwards, according to th
terms of such certificate, on any day in vacation or term a i\
the postea with such certificate as a part thereof, shall and m
be entered of record as of the day on which the judgment shall
be signed j (w) Provided always, that the party entitled to
such judgment may postpone the signing thereof, (x)
CLXXXIII. (y) Every Judgment to be signed by virtue of
vyciTT^Ts! the next preceding Section may be entered and recorded as the
Entry and Judgment of the Court wherein the action shall be pending
jSdsme*^t. though the Court may not be sitting on the day of the signing
Execution.
Entering
Proviso.
L. 132.) No rule for judgment is ne-
cessary : (N. R. 46.)
(v) Semble. The costs are incident
to the recovery : (Smith v. Dickenson,
1 D. & L. 155) ; and plaintiff should
issue one writ of execution for the
amount of the verdict and costs : {Smith
V. Dickenson, b(i.B. 602.) There is no-
thing to restrain the Judge from pre-
venting the immediate issue of execu-
tion for costs, since he may make his
certificate subject to any condition or
qualification : (76. Paterson, J, 5 Q. B.
605.) And, semble, if he do so the first
writ of execution must be a special writ
under the statute reciting the Judge's
certificate and the direction to the She-
riff in the body of the writ should not
be to levy for the whole sum for which
judgment was signed, but for a special
sum ordered by the certificate: {lb,
Wightman, J, 1 D. & L. 168.) And if
a second writ of execution become ne-
cessary for the costs, the previous writ
ought to be recited and it should ap-
pear that the second writ, particularly
if the first was a ca. sa., is not for the
same cause as in the first writ being
founded upon the Judge's certificate
and the second upon the final judg-
ment: {lb.) If both writs should be
ea. sas. and it appear upon looking at
them that defendant ha» been twice
taken in execution to satisfy the same
judgment, be will be discharged ; m \
Since, however, the damages and costs
should be embodied in the original
judgment and the execution sbould
follow the judgment, these dicta may be
open to doubt, unless the judgment it.
self be entered for the damages and
costs separately, so as to warrant and
support an execution in the special
forms above suggested.
{w) When once final judgment has
been signed the power of the Judge
who presided at the trial is at an end,
and the execution follows as of right
according to the terms of the certifi!
cato, which the Judge has no power to
alter : {Lander v. Gordon, 7 M. k W.
218.) As to the form of postea and
judgment when a certificate has been
granted for immediate execution, see
Engleheart v. Eyre, 6 B. & Ad
70, a.
(z) Qii. Has the Judge power after
tliU certificate to alter or amend it be-
fofd the signing of judgment where the
party entitled to do so postpones the
entry of judgment?
{y) Taken from Prov. Stat. 16 Vic-
cap. 175, s. 28, the origin of which is
Eng. St. 1 Wm. IV. cap. 7, s. 3.— Ap-
plied to County Courts.
PROCEDURE AS TO JUDGMENT.
340
jclxxxiv.]
(hereof (^) ^^^ ^^^^^ ^^ ^ effectual as if the same had been
Voed aQ<i recorded according to the course of the common
laff.(fl)
CLXXXIV. (c) Notwithstanding any Judgment signed or c^^v sLi2 ^
irded or execution issued by virtue of the two next preced-Pro?.' st le ^■^<''-^^'^
^i
«i
rjCOU- ^ - ^ * V c 176 S.29
. geotions, the Court in which the action shall have been
broucht, may order such Judgment to be vacated and exe- m^y^^wt
cation to be stayed or set aside, (d) and may enter an arrest" ^' "^
of judgment (e) or grant a new trial or a new assessment of
dama'^s, (/) as justice may appear to require, and there-
upon (g) ttfi party affected by such Writ of Execution shall
be restored to all that he may have lost thereby, in like manner consequence
as upon the reversal of a Judgment by Writ of Error, (h) or"^."*''^"'^
othrwise as the Court may think fit to direct ; («') Provided
that any application to vacate such Judgment must be made ^'°^^-
within the first four days of the Term next after the render-
JDgof the verdict. 0')
%2h%^t/^L
U) In declaring on a judgment
sigaed in vacation, the day of signing
jadgment should be stated according
to the fact, and not laid as of the pre-
ceding term : {Engleheart v. Eyre, 6 B.
&Ad.68.)
{a) i. t. So as to entitle the success-
ful party forthwith to issue his execu-
tion, the fruit of his judgment. Where
jadgment ia to be entered up accord-
ing to the ordinary practice time is al-
lowed for moving against the verdict
before jadgment can be entered. The
time allowed is the first four days of
theterm next after the trial. Under the
operation of this section, the execution
may be issued without waiting the
usual period. And under the follow-
ingsection the judgment may be moved
against, notwithstanding the issue of
execution.
(c) Taken from Pro v. Stat. 16 Vic.
cap. 175, 8. 29, the origin of which is
Eng, Stat. 1 Wm. IV. cap. 7, s. 29.—
Applied to County Courts.
[d) See Chit. Arch. 8 Edn. 881, et
iq.
U) See Jb. 1363, et seq.
If) See s. clxviii. et seq. of this Act.
(^r) " Thereupon," i. e. when judg-
ment has been vacated, &c. The Court
has no power to order money levied on
the execution to be paid over while the
rule is under discussion : (Morton v.
Burn, 5 Dowl. P. C. 421.)
(A) See Chit. Arch. 8 Edn. 511, et
seq.
(t) Where a Judge at the trial orders
that plaintiff shall have execution
within a limited time, and judgment ia
thereupon entered up and execution
issued, the defendant is not precluded
from applying to the Court above to
enter a suggestion to deprive the plain-
tiff of his costs, where the sum recov-
ered is within the jurisdiction of an
inferior Court : (see Baddley v. Oliver,
1 C. & M. 219.)
(y ) The spirit of these sections as
to speedy execution appears to be
this — the Judge at the trial gives a
right to speedy execution; he gives
that right, however, not conclusively ;
but subject to an application to the
Court to be made within the first four
days of the next ensuing term, upon
any ground upon whioh an application
can be made whether in arrest of judg-
HI
IK -i' ■' ■'
350
THE COMMON LAW PBOCEDIRE ACT.
[s- clxxxv
^ SU* f^iatv^.^ CLXXXV. (k) In cases which the Defendant has been held
^ ' *^iv <^ IV- 0.1, to special bail, it shall not bo necessary before suins out
Capias ad satisfaciendum , (?) to make or file any further
writ of other affidavit than that upon which the Writ of Capias issu H
in the first instance, (m) but where the Defendant (n) has n
been held to special bail, (o) a Writ of Capias ad satisfacier
^6 ^vx.
davit ^
Qt. So.
iarae.
ment or for a now trial or otherwise.
In other words, the judgment signed
with a view to speedy executioa is
subject to be questioned within the
first four days of the term next after
the rendering of the verdict : (Smith v.
Temperley, 4 D. & L. 51 0. ) The Court
will not entertain objections to the re-
gularity of the proceedings, where the
party has neglected to avail himself of
opportunities to urge them at an ear-
lier period, even though they amount
to error on the face of the record : see
Graves v, Waller, 1 Scott 810.
{k) Taken from Stat. U. C. 2 Geo.
IV. cap. 1, s. 15. — Applied to County
Courts.
(I) A defendant cannot be arrested
upon a ca, sa. where a fi. fa. has been
taken out and acted upon but not re-
turned : (Rosa et at v. Cameron,! U. C.
Cham.R.2l ; Andrews \. Sanderson etal,
28 L.T.Rcp.293 ;) though after the re-
turn of the fi. fa. notwithstanding the
lapse of several terms plaintiff may
issue the ca. sa. : (Glynn v. Dunlop,
4 0. S. 111.) But where defendant
had been discharged firom custody on
a ca. sa. by the partner of plaintiff's
attorney, under the supposition that
\'he debt for which defendant had been
i arrested was compromised by the ac-
ceptance of securities by plaintiff,
though it afterwards appeared that
plaintiff had ;jot accepted the securities
the Court refused to permit the issue
of a new writ of ca. sa. : (Bradbury et
al. V. Loney, H. T. 5 Vic. MS. R. & H.
Dig. " Capias ad Satisfaciendum," 9.)
A ca. sa, commanding the Sheriff to
detain the defendant in custody until
he should satisfy the plaintiff without
stating the amount of debt to be reco-
vered, is void : (Henderson v. Perry et
al, 8 U. C. R. 252.)
(m) Plaintiff will not be warranted
in suing out a ca. aa. upon an affidavit
made in the first instance, if his subse
quent proceedings show that he has
abandoned the bailable proceedinff!
firstadopted : (Brown v. Bethune 40 8
831.) Thus where plaintiff sued outi
bailable ca. re. against defendant and
before its return took a cognovit' ftom
defendant without using the ca. re at
all, and subsequently entered judgment
filing common bail for defendant, and
without any affidavit of debt other'than
that on which the ca. re. issued, which
was for £1500, charged him in execu-
tion on a ca. sa. for £2600, the Court
set aside the arreat on the ca. «a. vith
costs : (lb.) It has been held that a
ca. sa. cannot be issued since the
Insolvent Debtor's ' ' " ""
44, cap. 48, upon
under the former
mencement of the
I/ray, 2 U. C. R. 179.) Qd. What is
plaintiff's proper course in issuing a
ca. sa. where there are two delendants
one of whom only was arrested at the
commencement of the suit: see Me-
Intyre v. Sutherland et al. 5 0. S. 153 ■
Turner v. Williams et al, 1 U. C. Prac'
Rep. 360.
(n) A plaintiff who has suffered
judgment of nonpros, may be arrested
on a ca. aa. issued by defendant for
his costs : (Johnson v. Smeadia, Tay,
U. C. R. 174) ; so as to defendant's
costs of defence where defendant suc-
ceeds on the trial : ( Thompson v. Leo-
nard, 3 0. S. 161.) The St. U. C. 5
Wm. IV. cap. 3, s. 2, which enacted
that no ea. sa. should issue upon a judg-
ment recovered for costs only has been
repealed by this Act : (cccxTiii.)
(o) If defendant though arrested on
mesne process be discharged from cus-
Act, 8 Vic. sec.
an afladavit filed
law at the corn-
suit : (Sewell t.
8 cltfivi.] GROUND WBITS ABOLISHED. 861
/^ummajr issue after Judgment upon an affidavit in the same
form (mutatis mutandis) as is hereinbefore required to be made
for the purpose of suing out a Writ of Capias as aforesaid, (/>)
0f apon an affidavit by the PlaintiflF, his servant or agent, that
he hath reason to believe the Defendant hath parted with his
property (j) or made some secret or fraudulent conveyance
thereof, in order to prevent its being taken in execution, (r)
CliXXXVI. («) It shall not be necessary to issue any writ
directed to the Sh jriff of the County or United Counties in knl'c!!. p.
which the venue is laid, (t) but writs of execution may issue ■^•^*"^2»*-^''^i-
at once into any County [or United Counties,] and be directed writtoshor-
to and executed by the Sheriff of any County or United Coun- county'
ties without reference to the Counties or United Counties iUyenuetaiaid,
ffldch the venue is laid, and without any suggestion of the ^tie?wUh.
issuin" of a prior writ into such County or United Coun-
ties, (m) . — - U . :..
JJ. I
(
&2<
'V-
todr, and the process set aside for ir-
regularity plaintiflf may after judgment
issue a ta. «>. upon filing a new affida-
vit : (Gordon v. Somerville, M. T. 7
Vic. MS. R. & H. Dig. " Capias ad sa-
tisfaciendum," 10.)
ip) See s. xxiii. and notes thereto.
(;) A ea. sa. may be issued against an
executor after proper inquiry and upon
ft return of devastavit : ( Willard v.
Wookut, Dra. Rep. 211.)
(r) The Court allowed a ea. aa. to
issue upon an affidavit sworn before a
Judge in Lower Canada, whose signa-
ture was verified by an affidavit taken
before a commissioner in Upper Can-
ada: [Coit V. Winff, 8 0. S. 489.) It
is not necessary in an affidavit made
bj plain tiff having two Cbristira names
to state the second, where his identity
sufficiently appears by the affidavit de-
scribing him as " the above named
plaintiff:" [Perhimy.Conolly, 40.S.2.)
[i) Talcen from Eng. Stat. 15 & 16
Vic. cap. 76, s. 121. — Substantially
the same as Stat. U. C. 7 Wm. IV\oap.
3, 8. 23.— Founded upon 1st Rept. C.
L. Comrs., s. 76. — Applied to County
Courts.— The words in brackets are
not in the English Act.
(<) The contrary was the rule that
pre Tailed in England before the passing
of the English Common Law Proced*
ure Act, 1852, though in practice often
neglected. But in Upper Canada the
practice enacted by this section has
prevailed since 1887 : (Stat. U. C.
7 Wm. IV. cap. 81, s. 88.) The exe-
cution, however, should in all cases
strictly conform to the judgment upon
which it is issued : (see King v. Birch,
8 Q. B. 426 ; Phillipa v. Birch, 2 Dowl.
N. S. 97.)
(u) The writ formerly issued into
the County in which the venue was
laid, was called the ground writ. That
to any other County was grounded
upon it and was known as a testatum.
The former is by this Act and by Stat.
7 Wm. IV. cap. 8, s. 83, abolished, and
the latter instead of being a testatum
becomes in consequence an original
writ. Mr. Justice Hagarty refused
to disallow the costs of a concurrent
writ of execution, where defendant
was unable to show that the writ was
issued oppressively, and plaintiff swore
he had reason to believe that defend-
ant had property in the two counties
to which the concurrent writs were
ii
;v:> ^i
mm '}
f; 1
852 THE COMMON LAW PROOEDURB ACT. [a. chxx "
Q^'^i^jf^ i^pp' CO' c.) CLXXXVII. (y) If the SheriflF shall go out of office («,)
^ a-b^T^ SJ^utrf"*' during the currency of any writ of execution against lani
^,^J'ofof5(«') and before the aale, such writ shall be executed and the
tand. "***'"* sale and conveyance of the lands made by his successor I
Provi*,. office, and not>y the old Sheriff; (y) Provided, that it shaj
be lawful for any Sheriff, after he has gone out of office t
execute any deed or conveyance necessary to effectuate and
complete a sale of lands made by him while in office. (2)
issued: {McKellary. ti'ranfiObambers,
III. U.C.L.J. 14.) It is presumed that
the praotioe of suing out execution to
charge bail is not affected by this seo-
tioa: (s. cxoii; see also proviso to
7 Wm. IV. cap. 8, s. 83.)
(v) This and the following section
appears to have been enacted in order
to remove doubts upon points concern-
ing which there has been no very de-
cided opinion in the Courts : see Doe
d. Campbell v. JIamilton, 6 0. 8. 88 ;
Doe d. Young v. Smith, 1 U. C. R.105 ;
Doe d. Miller t. Tiffany, 6 U.C. R. 79.
— The section is applied to County
Courts.
(tr) Qu. Is a Sheriff to be deemed in
office until the appointment of his suc-
cessor or until he has been in a formal
and legal manner discharged flrom the
office ? see Ross et al. y. McMartin, 7
U. C. R. 179. A writ of fi. fa. was
delivered to the sheriff on 2l8tNovem-
ember, 1847, ' returnable in Hilary
Term, 1848. On 9th December, 1847,
the slieriff tendered to the government
his resignation of office. On 14th of
same month it was notified to him that
his resignation had been accepted, but
his successor was not appointed till
after the return of the writ, which had
been made in the interval. The deputy
sheriff who remained in the office to
wind up the old business, made his re-
turn to the writ ; in an action against
the ex-sheriff for a false return it was
held under the particular circumstances
of the case, that the ex-sheriff must
be considered as in office at the return
of the writ and liable upon the return
made: {lb.)
(z) It is well to notice that this
section is restricted to executions
against lands. There is no doubt that
where a sheriff has made a seizure un
der afi. fa. against goods, he may com
plete the execution although he has
in the meantime gone out of office •
(Clerk V. Withers, 6 Mod. p. 290 i
Since writs of execution are not now
as formerly made returnable on a day
certain, the expression "during the
currency of any writ," is open to some
doubt.
(y) It matters not whether there
has or has not been an inception of ex-
ecution so long as no sale has taken
place in which case the successor in
office is the proper person to sell and
convey the land seized.
(z) The lotter part of this section is
implied in the former, though to avoid
question it is well that it should be
substantively expressed. If a tali
has taken place the conveyance shall
be made by the sheriff who effected the
sale whether he continue to be sheriff
or has resigned that office. This is
supposing him to be still living. If
after sale and before conveyance ho
die, his deputy may continue in office
and execute all things pertaining to it
in the name of the deceased : (Stat.
U. C. 8 Wm. IV. cap 8, s. 23,) but the
power of the deputy ceases upon the
appointment of a new sheriff: {Dot
d. Campbell v. Hamilton, 6 0. S. 98.)
It is not clear whether if a sheriff go
out of office after the return day of a
writ and before the sale, having taken
an incipient step such as an advertise-
ment under the next succeeding sec-
tion, he can afterwards sell and make
a return to the execution.
' r ;
clxxxviii-ix] inception op execution. 858
CLXXXVIII. (a) The advertisement in the 0>Vi«/G^a«<rWf, <-<w< «»• «^) cht^sUi .j£r.
fnnv lands (giving some reasonable definite dosoription of^^'***'!''^ *^ «.«\o
im^ for sale under a AVritof Lxeoution, dunntrtr wua'oncy*«"f"f«'n«'i«>«
ttuVfni, (o) shall be deemed and taken to bo a 8uffioiout«>uteuiu.
Ottne " ' ^ >' ^ ,, , , mwtwnient
QjgQcemcnt of such execution, to enable the samo to bo «i «x<kuUoo,
jjpleted after it shall be returnable, by a sale and oonveyanco
ofthe lands, (c)
CLXXXIX. (d) Every Writ of Execution issued after thoMj<}>. o». c)a^r>.suf jfvu
joinmeucement of this Act, (e) shall bear date and bo tested A!mi,"«,W. * *'^^'' ^"^
on the day on which it is issued, (/) and shall remain Jn force Du«»tion of '
forone year from the teste, (ff) and no longer if unexecuted, (A) Zillm, ***"
^k
%
u) This section is in its terms re-
(triced to executions against lands. —
It i! applied to County Conrts.
Ill] Nothing can be' done under an
execution after it has ceased to be cur-
rent, nnless for the purpose of perfect-
jgjr what has been commenced while
ii was in force : (Doe d. Greenshielda
I Qarrow, 5 U. C. R. 237 ) There
g,g;t be some act done amounting in
Itv and faot to an incipient step in the
eieeution of the writ : (per Macaulay,
Im Doe Miller Y. Tiffamj, 6 U. C. R.
90.) The mere receipt of the writ by
the sheriff while in office will not be a
efficient inception of execution : (lb.)
There must bo somethlag to connect
the process with the land : (lb) It
fas made a question before this Act,
whether an adverisement in the official
GaziWe was a sufficient step: (lb.) It
isnoir enacted that such an advertise-
ment giving some reasonable descrip-
tion of the land shall be sufficient.
(c) The sale and conveyance must
be taiten to be subject to the provisions
of the preceding section.
(d) Taken from Eng. Stat. 16 & 16
Vic. cap. 76, s. 124, from which it
differs in some particulars hereafter
noted.— Founded upon 1st Rep. G L.
Comrs. s. 78. — Applied to County
Coarts.
It) i. t. After 21st August, 1856.
(/) It was enacted by 16 Vic. cap.
175,8.6, that executions, &o., **matf
be tested and bear date, &c." It is
X
now enacted that every writ of execu-
tion '* thall be tested, &c."
(if) This was to some extent tho
practice in Upper Canada before the
passing of this Act Executions against
goods were generally made returnable
on the Arst day of the term next follow-
ing the teste and executions against
lands in twelve months fVom tho teste.
After tho return day in eitlier case the
writ was spent, so that nothing could
be done under it unless to nerf«ot that
which had been oommenoea while cur-
rent: (Doed. OrffHsMeldif, Harrow «t
al, 6 U. 0. R. 2S7.) lUU no time was
fixed within which a Sheritf was bound
to complete that which he had com-
oommenced under the execution. Long
delay was only evidence of abandon-
ment. To repel tho inOrence arising
from such delay, satisftiotory explana-
tion was required. In England an exe-
cution remained in foroo until executed
which might bo in one year or in ten,
to the great perplexity of s^heriffs and
wrong of creditors.
(A) Tho ol^ect of this seoUon is to
secure execution creditors entitled to
priority of execution, and at tho same
time prevent Uiera fH>m committing
frauds upon other creditors coming
after them. There is no doubt if a
sheritf be in receipt of several execu-
tions at the suit of different creditors
against the sauio debtor, and all
the writs be current, that he is
bound to give precedence to the writ
«■ : i;
!• m'
',1^1 M
r :.
, t
"••5"
854 THE COMMON LAW PROCEDURE ACT. r. i
unless renewed in the manner hereinafter provided r\
"' v) but
whiok was first deliyerod to bim for ex-
ecution : (Ilutehituon t. Johnston, 1 T.
R. 729 ; Bradley t. Wyndham, 1 Wils.
44 ; Kempland T. Macaulry, 4 T. K.
480; Pringley. Jiaac, 11 Price 445;
Smalleomb t. r'ro««, 1 Ld. Rnyd. 251 ;
Martindale t. iJooM, 8 B. & Ad. 408 ;
Drewe t. Lainton, 11 A. & E. 629.)
But if the first writ be delivered with
instructions not to levy or be otherwise
oounternianded, it is not % writ upon
which the sheriff cnn act, and therefore
loses its priority : {Payne v. Drewe, 4
East. 528 ; Menahall v. Lloyd, 2 M. &
W. 460; Wintley. Freeman, 11 A. &
E. 639 ; Wythem v. Ilemley, Cro. Jac.
879 ; Jones y. Atherton, 7 Taunt. 56 ;
Samue! t. Duke, 6 Dowl. P. C. 636 ;
Hunter t. Hooper, 1 D. & L. 626 ;
Howard T. Cauty, 2 D. & L. 115.)
Directions to the Sheriff not to sell
unless he receive another execution,
may deprive the party giving them
of all benefit of priority : {Rosa et al.
T. Hamilton, E. T. 3 Vic. MS. R. & H.
Dig. "False Remm," 8; Strange v.
Jarvu, 6 0. S. 160.) And where goods
leised under a >f. /a. founded on a judg-
ment fraudulent against creditors, re-
main in the Sheriff's hands or are ca-
pable of being seized by him, be is
compellable to sell and seize such
goods under a subsequent execution
founded on a bona fide debt : (Imray v.
Maynay, 11 M. & W. 267 ; Chrutopher-
ton T. Burton, 8 Ex. 160.) If the first
writ though bona fide remain one year
unexecuted, it lapses so as to let in
subsequent exccuticns. When a writ
can be said to be executed so as to sa-
tisfy this section is a question. No-
thing, at all events, short of an actual
seizure can, it is apprehended, be
considered an execution of a writ of
fi. fa. against goods. Whether a par-
tial levy will be sufficient remains
to be decided. Writs of execution in
England under St. 3 & 4 Wm. IV. cap.
67, 8. 2, are made returnable " im-
mediately after the execution thereof."
And under that statute it has been held
that partial execution is not the execu-
tion intended : (Jordan v Tt!„,L
Q.B.767.) DcUan.C.i .:S''''i
see where the line is to be drnw.. !i'""
of complete execution to limit thnf''
and duration of the writ. The Xf ?
ant's construction, namely tl t "
writ is executed as soon a''tho'sK '•'
ma^ return nulla bona either in w^f
or in part, requires authoritv tn . '
port It ; and euch authority «s ,k P"
w, seems to bo quite ngningt him"
Patteson, J. "I cannot see at »i, .
point the sheriff can stop before 1
plete execution. Formerly if ^T'
goods came into his bailiwick afS"
partial levy, and before the return *f
the writ, theSheriff wasbound tos i f
them, and he is equally bouud to I
so now, until the writ has been ol
pletely executed.'' -The reaJnVH;
this decision is obvioua. A writ f
execution not being made returnahil
at a fixed day or within a llmUed ?
nod from the teste, but only whener'
ecuted, it may be well said that a wrii
oa\y partially executed continues cu
rent quoad the residue because not vot
fully executed and consequently Z
yet returnable. It only remains to b
observed that since the C. L. p \ \\
er.eoutions against goods and chattL
issued from our Superior Courts of
Common Law are, as in England, made
returnable " immediately after the at
cution thereof." A Sheriff failing to
return such writ within a «« ren«ona.
ble time " after receipt thereof, is lia.
ble to be ruled in the ordinary manner
To constitute a reasonable time there
must be allowed the Sheriff time to
travel to the residence of defendant
make an inventory of his goods, re-
turn to his office, advertise and sell
(i) The English C. L. P. A. provides
two modes of renewal— first, that of a
mark with a seal on the writ itself'
second, that of a written notice, bear-
ing th& seal, to the sheriff. The mode *
enacted by the section under consider-
ation more resembles the former than
the latter.
CXC.OXoi.] RENEWAL OP EXECUTION. ! ' 856
jjehtrrltuwy, at any time boforo its expiration, (;) be re- ,,^^^.^^,
\y] by- tlio party issuing it, for one year from the date of
k renewal, (A;) by being marked in the margin, >vith a
luoranduui to the effeet following : " Renewed for one year
.^ day of ," signed by the Clerk
Doputy Clork who issued such writ or by his successor in
It.,. il\ and a writ of execution so renewed shall have eflFect EiToctofro-
jbo outitlod to priority according to the time of the original
jaivery tboroof. (m) . : I . , ..
CXC (") '^^^ production of a writ of execution marked ^;|/^%^;
jjrencwod in manner aforesaid, shall be sufficient evidence oi^^^^^^^'^^"'^^^'y^^
liihavingboon 80 renewed, (o) ronowai.
CXtl- (p) A. written order under the hand of the attorney upp. co. c.) Ctrr^. si»2. -fitn, M
;.thecatt86 by whom any writ of Capias ad Satisfaciendum a!uo2,».vm'. ""-'-- *
(lull have boon issued, shall justify the Sheriff, Gaoler or per- Auto order
l^iawhoso custody the party may be under such writ, in tiff"'® **'*'"'
•5'
r ur his
aring such party, (q) unless the party for whom such
ij) i, «. Boforo tbo expiration of
LKTear from its teste.
I li] The English C. L. P. A. here
\mtii, "And 80 on from time to
jUtlttring tljo continuonco of the ro-
Lietl writ," evidently intending more
|ti« one renewal of the name writ
|iliic!i ourC. L. P. A. does not express-
Iit contemplate. Whether it docs so
|wi/rw(a'*/v, remains to be decided.
I '{!) In order that the clork may mark
Ifttvrit with the momordum in the
BTgin it will bo necessary to procure
^t execution from the sheriff, though
lor til ordinary purposes he is entitled
io keep it in his possession. Before
fc Act there was no method of rone w-
^m execution unless by having the
jrijinal returned and an alios orpluries
M- This lot in all intermediato
itecutions ; for the original execution
fct priority from the time when it
kciiue returnable. To avoid this
leori^'inal is supposed to continue in
K possession of and under tho con-
vict' the sheriff though for a short
aiefor tho purposes of reiiewnl ho
last in fact part with it or else him-
self take it to tho proper officer to bo
renewed, if willing so to do, upon the
request of the party whoso execution
it is. The renewal when made is a
continuation of the original writ and
BO extends it for a period beyond the
time when it would otherwise expire.
(m) The practice in this respect will
resemble that of renewal writs of sum-
mons, as to which seo s. xxviii. and
notes thereto.
(n) Taken from Eng. St. 15 & 16
Vic. cap. 76, s. 125. — Applied to Coun-
ty Courts.
(o) This is similar to the practice
enacted in respect to renewal writs of
summons, as to which see s. xxx. and
notes thereto.
(jo) Taken from Eng. Stat. 15 & 16
Vic. cap. 76, s. 126. — Founded upon
1st Rept. C. L. Comrs., s. 79. — Appli-
ed to County Courts.
{q) Tho authority of an attorney in
general determines with the judgment :
{Tipping v. Johnson, 3 B. & P. 857 ;
Searson v. Small, 5 U.C. R. 259 ;) but
he may issue execution nnd receive
the money, in which case his receipt
r M
lt",''S.s
i
^ 4
' i\
'(.■• I
856
THE COMMON LAW PROCEDURE ACT.
[••cxci.
ii!Zxr7.ot Attorney professes to act, shall have given written notice to
DortnOant the contrary to such Sheriff, Gaoler or person in whoso custod
the opposite party may be, (r) but such discharge shall not b»
a satisfaction of the debt unless made by the authority of th
( creditor, (a) and nothing herein contained shall justirv an
Attorney in giving such order for discharge without the con.
gent of his client. (0
kM
■ I /
will bo the same as that of his client :
(Savor;/ v. Chapman, 11 A. & E. 830,
per Littlc(](^1e, J. ; Jirock v. McLean,
Tay. U. C. R. 648 ; Stocking y. Cam-
eron, M. T. Vio. 3IS. 11. & 11. Dig.
'•E:<cape," 20.) Without receipt of
the money or an express authority
from tho client an attorney before this
Act hail no power to isoharge from
custody a defendant arrested under a
Ca. Sa. : (lb.) The intent of the writ
of C(i. S<t. is that tho defendant should
continue in custody until the plaintiff
is sati><fit(l his debt : (Crozer v. Pilling,
4B.&C.32.) Tho authority of the attor-
ney WHS only to receive the money in
satisfaction of the debt: (Connop v.
Challin, 2 Ex. 484.) He had no autho-
rity upon receipt of part and security
for the bal&nco to discharge the debt-
or: (lb.) Though as to executions
against goods ho had under such cir-
cumstances full authority to order the
siieritf tu withdraw from possession :
(Levi V. Abbott, 4 Ex.588.) Ilia autho-
rity as between him and the sheriff
botli as regards executions against
goods and the person, are by this Act
placed much upon the same footing.
(r) The sheriff is allowed to pre-
sume thnt an attorney professing to
act for lii.-< client has authority to do
so ; but this is a presumption which
m.iy be disproved by written notice to
tho contrary from the client. 'By such
notice when given the sheriff must be
governed at his peril.
(») The discharge of the debtor be-
fore this Act, whether rightfully or
wrongfully, if by order of the attorney,
was considered a satisfaction of the
debt. The client thereby lost all
claim as ogainst the debtor and
was compelled to fall back upon
the sheriff or look to his attornej
for damages. Now it is enacted th/t
the dinoharge shall not be a satisfac-
tion of the debt '• unless made by au
thority of the creditor." Tliis nioanj
that if the attorney without authority
discharge the debtor the creditor may
still hold the debtor responsible. Tie
matter of fact whether the discliaree
was effected by authority of tiie credi-
tor or not is a proper question for r,
jury : ( Ward v. Broomhead, 7 V,i.'X)
Defendant if sued upon the jud)rni"ent
after being discharged may plead the
fact of discharge as a defence : ( Vmi
V. Aldrick, 4 Burr. 2482.)
(0 A consent in writing is adrisable
though not indispensable. Tlie autlio-
rlty of tho attorney as between \m
and his client is not altered by tliis
A*"!. Tho general retainer to prose-
cute does not authorize the attorney
to discharge the debtor without ex-
press authority so to do or payment in
full of the debt. But as between the
attorney and the sheriff the autiioriijis
presumed when the attorney acta as if
authorised. If the latter give orcers
to the sheriff when unauthorized, be
will be liable to his client for tiie con-
sequences. Tho measure of damages
in such case would be, "the viiiue of
the custody of the debtor at the mo-
ment of the escape without dedurlioa
fur anything that plaintiff miglit hate
obtained by diligence after the es-
cape: " (sco Arden v. Goodacrt, 11 C.
B. 371.)
CXCII- (m) Writs of oxocutioD
jnd roturiioblo in vacation.
CXOIII. (v) It Bhall bo lawful
obtained a Judgment (to) in any .f
AFFIDAVITS IN AN8WEB.
867
lu) Taken from Eng. Stot, 17 &
Vic. 0. y^'o, «. »0.— Applied to Coi
ft 18
JUU-
tv Courts. Tho writ of oxecut.on to
fix bail is usually a Ca. Sa. It !h little
more tbtin n. mere form, and is chiefly
dejigned to intimate to the bail by what
.necics of execution plaintiff intends to
Leed: (//«'»< v.6'<,«. 3 Burr.1860.)
Laving it in the sheriff's offico is no-
tice to tlio bail thiit the plaintiff will
proceed against tho pcrmm of their
-fincipftl. Within four days, the
hail may surrender tlicir principal :
iBeattiey. McKay, 2 U. C. Chum. R.
156.) The writ of Ca. Sa. must be
sacj out and, it seems, returned
before process can be had against
the bail: {Thaekray v. Ilarrin, 1 B.
^ Aid. 212.) It is incumbent on
tiie bail to search in the sheriff's office
as to wliethor any Ca. Sa. was left
there or not: {Hunt v. Coxe, ubisup.)
Though in strict practice the writ
Bhouid bo sued out, returned, and
filed before tho commcnooraent of
proceedings against bail, it seems
tliftt if the writ be filed before replica-
tion to a plea by the bail of no Ca. Sa.
it will bo sufficient: {lb. see also Raw-
Union V. Guiislon, T. R. 284.) The
mnt of a Ca. Sa. is not a mere irre-
gularity but a matter of substance of
wblch the bail can only take advantage
by plea: [Philpot v. Manuell, 6 D.
& R. G15.) It is useless to sue out
the writ after render of the principal :
(Saunderson et al v. Parker, U Dowl. P.
C.495 ) Tho writ when sued out should
be tested on the date of issue: (s.
chxxix.) It has been held if de-
fendant consent that plaintiff shall
have judgment as of a term previous
to tho trial, the Ca. Sa. may be tested
as of the previous terra : [llovendem v.
Crawlher, 1 Dowl. P. C. 170.) Not-
withstiiniiing the provisions of s.
clxxxvi., it is apprehended that the Ca.
Sa. must bo directed to the Sheriff of
to fix bail may bo tested <;;'«'•";• '« ^^ ''^^ ^
A l-f.4.H.(HI, ■ '*•* *
TeiUofwritu f l/l-l-'J-
for any creditor who has*""* •*"•
tho Superior CourtH (a-) to J-';f;[, 'j;; ^; i'-^ f^ <
9 l\7.
I
the county i'\ which tho venue is laid :
(7 Wm. IV. cap. 8, s. 83 ; see further
Laporte'a JJatl, 4 Dowl. P. C. G89.)
Between the teste and return it was
at one time held that a period ot fifteen
days was requisite: {Inrriex. Muii/ay,
M. T. 8 Vic. MS. K. & H. Dig. Bail,
III. 11.) But since 12 Vio. c. 0.1, and
under that statute it has been held that
eight days were Hufticient : (Bentlie v.
McKay et al, 2 U. C, Chnm. R. 06.) '
Whether tho time now nhould bo eight
or ten days is a question, nt ton days
are allowed by this Act for a defend-
ant to appear to an ordinary summons.
If the teste be irregular thu writ may
bo set aside on motion: ((Jawler v.
Jolley, 1 H. Bl. 74 ; Laporte'a case,
4 Dowl. P. C. 639. ) The Ca. Sa. when
issued should bo left four days in
the sborifl s hands: (Cock v. Brock'
hurst, 13 East. 688 ; I'urnell v. Smith,
7 B. & C. 098; Scolt v. Larkiti, 7
Bing.109 ; Jieattie v. McKay, ubitup.)
If any one of tho four days be a diet non ,
it will not be reckoned : {Scott v. Lar-
kin, ubi trip, ; Howard v. Smith, 1 B.
& Ald.628 ; Goodwin v. Suyur, 2 Chit.
Rep. 192; Furndl v. Smith, tibitup.;
Armitage v. Kigbye, 6 A. & E. 70.)
(r) Taken from Eng. Stat. 17 & 18
Vic. cap. 125, s. GO. — Founded upon
2d Rep. C. L. Comrs. s. 43.— Not ap-
plied to County Courts ; but as to these
Courts there is a similar provision :
(Co. C. P. Act, 8. 17.)
{w) An executor who hiis neither
revived tho judgment obtiiined by his
testator nor entered a suggestion upon
the roll iu pursuance of s. cciii. of this.
Act, is certainly not a jui?gineut credi--
tor within the meaning of the Act:
{Baynard v. Simmons, 1 Jur. N. S. •
067 ; 24 L. .T. Q. B. 253) ; nor can a
plaintiff in ejectment bo deemed a
judgment creditor: {Challen y. Baker,
26 L. T. Rep. 200.)
(x) If a creditor having obtained a
] ■'<:
I 1
f
'>Vi
J. i.
''it
THE COMMON LAW PROCEDURE ACT.
[s- cxciii.
358
Bxamina-
tion of ii
aK"oi toJ'^'^Snicnt debtor should be orally examined as to any and irhlt
apply to the Court or a Judge (y) for a rulo or order that
the
him.
nty
what ddbts debts are t wing to him, (z) before the Judge of anv p„
arc due to a / \ • o "*• "uy VOU
Court or before any Clerk or Deputy Clerk of the Crow
any other person to be specially named ; (a) and the Court
Judge may make such rule or order (h) for the examinati
judgment in one of the Superior Courts
of common law afterwards sue upon it
in an Inferior Court and obtain judg-
ment upon it in the Inferior Court, he
will not be in a position to avail him-
self of this section : (Jones v. Jones, 2
Jur. N. S. 574.)
(y) Relative powers, sec note m to
s. xxxvii.
(2) Tlie subject matter of the exam-
ination will bo "debts owing," as to
whicli sec note I to next succeeding
question,
(a) As to the manner in which the
examination should be conducted, sec
the reference made at the end of this
section.
(i) The first case in Upper Canada
under this section proceeded by sum-
mons and order : (Jirotrn v. Bennniger,
Chambers, Sept. HO, 1856, Burns, J,
2 U. C. L. J. 213.) On 16th October,
1856, an ex parte application was made
to the same Judge upon an affidavit by
plaintiff " that on 24th Nov., 1854, he
recovered a judgment in this honour-
able Court against defendant for £109
lis 5d damages and £14 3s 7d costs ;
that said judgment is still wholly un-
satisfied ; that one D. of Sidney Yeo-
man is indebted to defendant in £G2
10s ; that said D. is within the jur-
isdiction of this honorable Court ;
that this action was not commenced
or carried on against defendan* ns
an absconding debtor." Whereupon
the order to examine defendant was
made absolute in the first instance :
(Anoni/mous, Burns, J., Chambers;
also, Connor v. McJiride, Chambers,
October 28, 1850, II. U. C. L. J.
232.) It docs not seem necessary,
if the application be merely to ob-
tain an oral examination of defend-
ant under this section, that the affi-
davit should show debts due and i
as precise as that above memioned
which applies more to s. cxciv t
cxciii : {Nimmo v. Welland, ChamhBT"
Oct. 8, 1856, Burns, J, 2 U C T >
113.) Plaintiff is enabled under!"
cxciii. to discover, debts and hayW
discovered them is entitled under
cxciv. to take preceedings to hn '
them attached. The practice as t!
whether the order under s cxciii
should be absolute in the first instannl
is not settled. Care ought to be taken
to distinguish between this and Z
following section, the one being merelv
auxiliary to the other. As a matter
of prudence a party applying „nj^^
either section should, whenever able to
do so, state not only that judgment has
been recovered and is unsatisfied but
that efforts have been made to collect
the money by execution without -sue
cess. Where an application was m'ade
for an ex parte order upon affidavit tuat
"plaintiff had recovered a judgment
against defendant and that such'judff.
ment was wholly unsatisfied." per
Richards, J. " Your afiidavit sliould
show that some attempt has been made
to make the money by execution. I
will not grant an order in the first in-
stance, but if you think your grounds
sufficient you may take a summons:"
{Irvine v. Mercer el al, Chambers, Dec.
8, 1856, Richards, J.) And in a later
case an order in the first instance was
refused, though it was shown tliat ex-
ecution had been issued and returned
nulla bona, the learned Judge being of
opinion that " the parties should have
an opportunity of showing cause why"
they should not be examined: " {Carter
v. Carj/ et al, Chambers, Dec. 9, 1856,
Richard.", J.) The order under s!
cxciv. it is expressly declared, may b«
s, cxciv ]
ATTACHMENT OP DEBTS.
859
such judj^ment debtor, and for the production of any books or
documents, (c) and the examination shall bo conducted in the
«inie manner as in the case of an oral examination of an oppo-
site party under this Act. (d)
CXCIV. (c) It shall be lawful for a Judge, (/) upon the Hpp- <*. c.) c«w. si^i ^
(I. parte application of such Judgment creditor, («7) either a. ism^b.'bl " "* '"--
before or after such oral examination, and upon his affidavit or Judge may
that of his Attorney, (h) stating that Judgment has been reco- tioa andaffl-
covered and that it is still unsatisfied and to what amount, and ' ' ° "^
HIHn
Hi' '
;-l^i,
191
H^^^, I
i^^^i)n
H
H^Kk! ' ft'""
'I
u
ooiameu Upon the ex parte application
of the judgment creditor.
Ic] As to which generally, see s.
^\ll^ and notes thereto.
(d) As to which see s. clxxviii. and
notes. It is a question whether this
section extends to corporations. There
is no doubt that s. cxciv. and subse-
quent sections will embrace corpora-
tioas, so that creditors of corporations
can attach the debts due to such
debtors. Yet it is difficult to say how
the provisions of s. cxciii. for the pur-
pose of discovery as to these debts
can be carried out. It is the judgment
debtor that is to be examined, and to
be examined orally, and the examina-
tion is to be conducted in the same
manner as the oral examination of an
opposite party. This refers to the mode
pointed out in s. clxxviii. It is unfor-
tunate if the Legislature intended that
the officers of a corporation might be
examined in respect of debts due to
the corporation, that some such ex-
press words as are contained in s.
c'.xxvi. were not introduced in s. cxciii:
[Cameron v. Brantford Gas. Co., Cham-
bers, Sept. 25, 1856, Burns, J, 11. U.C.
L, J. 209.). An order for the oral ex-
amination of a judgment debtor may
be granted, though that debtor has
been arrested on final process at the
>;uit of the judgment craditor : (liroicn
y.Bimings,ll.V.G.L.J. 213.)
(c) Taken from Eng, Stat. 17 & 18
Vic. cap. 125, s. 01. — Applied to
County Courts.
(/) A Judje, not " the Court or a
Judge," as in preceding section.
(ff) See note to to preceding section
(cxciii.)
(A) It is presumed that a party ap-
plying under this section is in posses-
sion of information as to debts owing
to his judgment debtor. That informa-
tion may have been obtained either
from the debtor himself upon his ex-
amination under the preceding section,
or in some manner independently of
that section. The more satisfactory
mode is to proceed under it with a
view to an application under this sec-
tion. Where plaintiff applied under
this section for an ex parte order to at-
tach debts after havingproceeded under
the preceding section (cxciii.), bis ap-
plication was granted upon an affidavit
of the facts : [Macpherson et al y.Kerr,
Chambers, Dec. 10, 1856, Richards,!.)
The affidavit which was that of plain-
tiff 's attorney, was as follows, that
on, &o., defendant was orally exam-
ined before the Judge of the Couuty
Court of the County of Simcoe in pur-
suance of an order bearing date, &o.,
that defendant upon such examination
swore that one A. B. was indebted to
him in the sum of &c., and that saia
A. B. resides within the jurisdiction of
this Court, &c. : (lb.)
(A) «• Or that of his attorney." The
words used are in the disjunctive, and
in this particular differ from the words
" and his attorney," used ins. clxxvii.
It is unnecessary to do more than draw
attention to the distinction — the rea-
sons of the distinction being sufficient-
ly obvious upon a comparison of the
two sections.
"4
M
!■■ nl^'M
i ' ',■
*;:;
l:lj
i !;
#i'. I» I
W '•'
I i
360
attar-hment
of fiuch
debts ;
^"^1%%
THE COMMON LAW PROCEDURE ACT. Fa a, •
that any other person (i) is indebted to the Jud^m
debtor, (j ) and is within the jurisdiction, (fc) to order that II
debts owing or accruing from such third person (hereinaft
called the garnishee) to the Judgment debtor shall be attach H
to answer the Judgment ; (I) and by the same or any subs
quent order it may be ordered that the garnishee shall appc"
(i) A judgment creditor cannot at-
tach a debt duo by himself or by a firm
of which he la a partner: {Nonell v.
Hullett, 4B. & A. 646.)
{j) *' It indebted to:' The affidavit
should in general be positive as to the
indebtedness of the third party or gar-
/ ^i_. ijuishee more particularly as under the
j/t^ operation of the preceding section
a cuvi'i 044.0 materials for a positive affidavit may
C#frU4«l'Uc be discovered : (^Cataraqui Roads Co.
affacL^tL ^' Dunn, Chambers, Nov, 11, 18o6,
r ')L^^iS^' C- ^' J- 27, Ilagarty, J. ; Ha-
'"»>^*' "^^^ztewood y. DeBergue et al, Chambers,
i^ W A^S IMnov. 26, 1856, McLean, J., III. U. C.
'' L.J. 28;) though, there may be cir-
A / tAt4u oumstances under which an affidavit
»u/»«4. # i/''*^f belief would be sufficient : {Jones v.
-f JtM. ^m»9^eBerffueetal, Chambers, Dec. 5, 1856,
^ Burns, J., IIL U. C. L. 31.) However
an affidavit of some kind must be pro-
duced on the application : {Cataraqui
Roads Co. V. Dunn, ubi supra.)
Qu fyoU^ «/K»*.i«f (*) If the garnishee though residing
oU&.ti i>aOe>.v out of the jurisdiction have money in
ip enMj hi ^^ the bands of an agent within the juris-
tf rt^d*-*'*«i'"''')diotion, such money may be attached
»^<*^ ,i'/jA4.^''-'fhider this section, provided plaintiff
plainly show that there is* such an
agent in addition to the ordinary con-
tents of the affidavit: {Brown v. iler-
rills, Chambers, Dec. 15, 1856, Burns,
J., IIL U. C. L. J. 31.)
(/) The preceding section empowers
the Court or a Judge to make an order
for the oral examination of a judg-
ment debtor as to " debts owing to
him." And this section empowers a
judge to make an order attaching " all
debts owing or accruing from " the
garnishee. The subject matter to be
attached is a debt. Demands of an
unliquidated nature are clearly not
embraced: {Johnson v. Diamond, 11
6 Ccrt.^f
Ex. 73.) C. having at the requestor
D. brought an action as nominal plain.
the
tiff against J., received from D. a bond
whereby the latter agreed that he
would pay J. such costs as C. should
be liable to pay J. in case C. should
discontinue or become nonsuited, nnd
that he would also permit C. durini!
the pendency of the action, or any H,,
bility arising therefrom, to retain and
j^pply any money of him, D., that
might come into the hands of C. to-
wards the discharge of any costs or
liabilities which C. might incur by
reason of his permitting the action to
be brought and carried on in his name
or from any injury to him from the de-
fault of D. C was nonsuited and J.
had judgment to recover against C,
the costs of such nonsuit : held that
the bond did not constitute a debt
from D. to C. which might be attach-
ed in the bands of D. : {lb.) Neither
is a superannuated allowance granted
by the East India Co. to a retired ser-
vant such a debt as can be attached
because it is more a gratuity than a
debt properly so called : {Innesy. East
India Co., 25 L. J. C. P. 154.) Nor
is a legacy in the hands of an execu-
tor although the executor have promis-
ed to pay it over if ordered so to do:
{MacDowell v. Ilallister, 3 N.C.L.Rep.
933.) There must be such an account
stated as would sustain an action in
order to constitute a legacy a legal
debt in the hands of a legal debtor:
(lb.) An unsettled balance of account
due by one partner to another cannot
be attiichcd : ( Campbell v. Pcden. el a!,
Chambers, Jan. 26, 1857, Robinson,
C.J,) but a balance agreed upon being
the result of a settlement may be at-
tached : {lb.) It is not evert/ debt due
to a judgment creditor that is to be at-
.csciv.]
ATTACHMENT OF DEBTS.
361
AD^iinsy or- before the Judge or some officer of the Court to be specially
JirfieTtoap- named by such Judge, to show cause why he should not pay
I*"'' '' the Judgment creditor the debt due from him to the Judgment
debtor, or so much thereof as may be sufficient to satisfy the
tiohed. The debt may be attended
,fiil, circumstances that would prevent
the judgment creditor from enforcing
i(s inimediftte payment and where such
is the case it is not a debt of the na-
ture contemplated by this Act : (Ken-
nf'i V Westminister Improvement Com-
mwoners, 3 N. C. L. Rep. 1079.) A
public body (incorporated by Act of
I'ariiamcnt) borrowed money from
time to time on their bonds, some of
,iiich liad a preference over others,
and eventually a general mortgage of
their innds was given on *ie occasion
of fresh advances by our , , . .f bond-
linlders, whose security ■ 1 1- ; erior to
tbi\t of another class, w. - ., and by
auAct confirming the same, all the
bondiiolders were to be paid pari passu :
held that one of such bondholders hav-
iii" recovered judgment by default
flgiiust the corporation could not at-
tiich a debt due to it fro»^. a builder for
money advanced under tiie power of
their acts, as the garnishee clauses
only apply to personal debts over which
the judgment debtor has complete con-
trol: {lb.) The Act though it gives a
power of execution against property
not before subject to it does not in any
\Tiiy affect the priority of charges so
as to alter the rights of third parties :
{imes V. Birkenhead Docks Trustees, 1
Jur. N. S. 529.) An act incorporat-
i!i;5 a dock company authorized the
trustees for the purpose of construct-
ing and maintaining the docks to raise
money by mortgage of the rates and
tolls. The mortgagees were to have
no shar ;n the management nor any
priority among themselves. The trus-
tees wore empowered to enter into
contracts, but they were not to be
personally liable, and execution was
to issue only against the goods aijd
chattels belonging to them, virtute
oftcii. A judgment creditor obtained
an order nisi to attach in the bands of
the garnishees, rates and tolls due by
them to the company. Before this
order was made absolute an order for
the appointment of the chairman of
the trustees receiver of the rates and
tolls, was obtained by consent, in a
suit instituted by the mortgagees in
equity : held first, that the mort-
gagees of the rates and tolls had
priority over a judgment creditor ;
secondly, that the garnishee claut^es of
the C. L. P. Act did not affect the pri-
ority of the charges ; thirdly, that if
the mortgagees were not in possession,
by their receiver, a judgment creditor
might take the tolls in execution under
the C. L. P. Act, but that the mortga-
gees, by entering into possession,
might stop further execution : (76.)
Equitable debts are apparently not
within the section: (Clark v. Perry,
26 L. T. Rep. 46.) A judgment cre-
ditor obtained an order under the C.
L. P. Act attaching all debts owing
from the garnishee to the judgment
debtor ; and a second order directing
the garnishee to pay to the judgment
creditor the debt due from him (the
garnishee) to the judgment debtor, or
so much thereof as might be sufficient
to satisfy the judgment debt. At the
time of these orders the garnishee was
indebted to the judgment debtor in re-
spect of, amongst other matters, cer-
tain costs in equity to an amount not
then ascertained : Held that this debt
was not affected by the orders obtained
under the garnishee enactments : (lb.)
Debts in prcesenti with a sohcnJiim in
futuro may, it seems, be attached :
(Harding v. Barratt, Clianibers, Dec.
12, 18oG, Richards, J. III. U. C. L. J.
31.) The order in such a case will be
for the payment of the debts by the
garnishee to the judgment creditor so
soon as the period of credit has expired :
(//>.) However, at present there is a
difficulty in carrying out the Act with
I
j'~^\ ii
if,
l! H
I r
LAi
\ut:n
h'
■w
rr !.'
i
362 THE COMMON LAW PROCEDURE ACT. [s. CXciv
Judgment debt ; (w) Provided always, that this section shall
respect to bills, notes, and floating se-
curities for money. The difficulty arises
from the non-existence of any enact-
ment in Upper Canada similar to the
Eng. St. 1 & 2 Vic. cap. 110, s. 12, by
trhich a sheriff in England can seize
bills, notes, &c., tn specie : (see Col-
linridge v. Paxton, 18 L. T. Rep. 140 ;
Churchill V. Bank of England^ 11 M.
& W. 323; Watts v. Jeffreys, 16 Jur.
435) It is believed that provisions
similar to the Eng. St. 1 & 2 Vic. cap.
110, s. 12, will be enacted during the
present session of the Legislature. On
an application for an order upon a gar-
nishee to pay over to the judgment
creditor the amount of an acceptance
due by him to the judgment debtor, it
was held necessary for the applicant to
show that the acceptance was at the
time of the application under the con-
trol of the judgment debtor : (Mellish
V. B. B. ^ G. Railway, Chambers,
Nov. 6, 1856, Hagarty, j, II. L. J. U.
C. 230.) It is doubtful whether the
liability of an endorser on a current
note of which the judgment debtor is
holder, is, while the note is current,
such a debt as can be attached under
this Act : see Lewin v. Edwards, 9 M.
& W. 720 ; also Powell v. Ansell, 3
Scott, N. R. 344. It is also doubtful
whether as to debts for small amounts
within the jurisdiction of a Division
Court for instance, an order can be
properly granted under this section,
more especially if the effect of the
order would be to bring into a Supe-
rior Court innumerable suits for small
amounts, and thereby increasing costs
to a startling amount : ( Topping et al.
V. Salt, Chambers, Dec. 18, 1856, Ha-
garty, J, III. U. C. L. J. 14.) It is
to be hoped the legislature will make
provision with respect to this subject
during the present session. Debts
already assigned by the judgment
debtor are clearly not attachable :
{Ucrsch V. Coates, 27 L. T. Rep. 202.)
And per Jervis, C. J, " I think that
where the creditor has a judgment and
debts are duo to his judgment debtor,
he has a nght to go before a JudM
and obtain an ex parte order to attach
all debts due to his debtor, and that
order binds all the debts to the extent
of making them alternately available
to the execution creditor. After sntls
fying all equitable claims, and if thev
are assigned to the full extent, he will
get no benefit. Then the proper way
is to call the garnishee before
the
call
Court, to say whether he admits or
disputes the debt (s. cxcvi.), nndit
must be a debt due with respect to
which the judgment debtor has a be-
neficial interest, and if assigned, then
except as to the resulting interest no
interest will go to the party who'ob-
tains the order. According to the
strict construction of the statute hu
ought to call the garnishee before the
Judge, and he will then dispute his
liability to pay, because in equity ho
is bound to pay A. B., and if that is
denied, the judgment creditor must
have a scire facias, calling on the
garnishee to show cause why he
should not pay, and in my opinion
it would be a good plea to say, ' I jo
not pay you because my creditor has
assigned his debt, and equitably I am
bound to pay his assignee' " : (/4,)
The origin of these clauses appears to be
the practice by " foreign attachment,"
which has for a long time prevailed in
the City Court of London : (see Com.
Dig. " Attachment," A.) By the cus-
tom of London money was attnchablo,
provided it were not ordered to be paid
by some judicial act: (Grant v. ILm-
ding, 4 T. R. 313, note; Coppel! y.
Smith, 4 T. R. 312 ; Caila v. Elijood,
2 D. & R. 193) ; but neither money
nor property could be attached in the
hands of a garnishee who had a lien
upon it without discharging his lien:
{Giles V. Nathan, 6 Taunt. 558.) A
resemblance to the practice as to Ex-
tents in chief in the second dof>rce at
the suit of the Crown also exists : sea
West on Extents, 242.
[m) The garnishee may either deny
the debt or admitting it bubmlt that it
83. CXCV-CXCVi.] PROCEEDINGS AGAINST GARNISHEE. 368
not app'y ^° actions commenced or carried 01 against a De-
fendant as an absconding Debtor, (w) ^-z- 8 ^
flXCV. (0) Service of an order ( p) that debts due or accru- (>«i>p- <*• c.) e«Hx sttiljfn. '''
Inff to the Judgment debtor (q) shall be attached, or notice-^ i^s*. 8-62. g^ aa
'"0 1 • 1 • 1 Order or no- J* *- O/
rtpreof to the garnis/ico in such manner as the Judge shall tice thereof
s 1 111.- 1 1 , 1 - 1 . , •■ X to bind the i
direct, (r) shall bind such debts in his hands, (s) garnishee. >
CXCVl. (0 If the garnishee does not forthwith (ti) pay into (-^pp. Oa. c.y (^^^^f^a-Zjk ^^
Court {v) the amount due from him to the Judgment debtor, (w) Aa854; s-'ea! ^ ^' '''» ^ ^ «Jai
or an amount equal to the Judgment debt, (x) and does not Amount due ^
dispute the debt due or claimed to be due from him to the nfay te° e^^*
Judgment debtor, (y) or if he does aot appear upon summons, (2) tion/irno?'
then the Judge (a) may (6) order execution to issue, and it '*^p*'*®*-
nay be sued forth accordingly without any previous writ or , - .
iff.
fF«7T ,
i;^
is not liable to be attached. The rules,
orders, writs, and other praceedlngs
against the garnishee must be had in
the Court in which the judgment was
rendered (N. E. 57.)
(n) Against -whom adequate reme-
dies have already been enacted (s. lii.)
(0) Taken from Eng. Stat. 17 & 18
Vic. cap. 125, s. 62. — Applied to
County Courts.
(p) Hours of service, see N. R. 135.
\q) As to these words see note I to
s. cxciv.
(r) As to notice of attachment to a
debtor of an absconding debtor see s.
lii. and notes.
(») The word ♦' bind" in this section
has received the same construction as
tiie word " bind," used in the Stat-
ute of Frauds (29 Car. II.) As under
the Statute of Frauds the goods are
bound in the hands of the Sheriff, so
nnder this section the debt is bound in
the hands of the garnishee : (Holmes v.
f««on.6 El. & B. 05, 32 L. & Eq. 618.)
The debt is at least so far bound that
the garnishee cannot pay it to his ori-
ginal creditor or to any one claiming
under him : [lb.), but in England such
binding is subject to the previsions for
the distribution of property under the
bankruptcy acts : (lb)
(<) Taken from Eng. Stjxt. 17 & 18
Vic. cap. 126, s. 63. — Applied to
County Courts.
(u) Must mean within a reasonable
time after notice. The distance of the
garnishee from Court and other like
circumstances may well be taken into
account when determining the su£5-
ciency of the notice.
(«) Qu. Would the Clerk of the
Court be entitled to charge the percen-
tage allowed under 2 Geo. IV. cap. 1,
8. 26?
{w) As to what constitutes an
" amount due" within the meaning of
this section, see note I to s. cxciv.
(z) In cases where the amount due
exceeds the amount of the judgment
obtained against the garnibhee's credi-
tor, see 8. cxciv.
(»/) The garnishee if not intending
to dispute the debt might, it is pre-
sumed, indorse an admission on the or-
der or notice served upon him.
(2) If he neglect to indorse the order,
&c., as mentioned in preceding note,
and also neglect to appear, then an
order fov execution may be made by
default.
(a) The Jtidffe. Qu. The Judge to
whom application is in the first in-
• stance made or any Judge presiding in
Chambers for the time being.
(b) May, not "shall." There is a
3
3
l»
I
t:
Ill
\
rs:
I
ri i
I ■■
■P
iH
>fe
364
• t
THE COMMON LAW PROOEDURE ACT. [ss. cxcvii-v'"
process, (c) to levy the amount due from such garnishee toward
satisfaction of the Jundgnient debt, (d )
e^ Slc^i ^fc^i.^! CXCVII. («) If the garnishee disputes his liahilitv i\,
^8-9/
Judge, instead of making an order that execution shall issue
(/)
ifThTwS may (</) order that the Judgment creditor shall be at Ijbert
th^Jbt!.'"** to proceed against the garnishee, by writ, calling upon him to
show cause why there should not be execution against him f
the alleged debt, or for the amount due to the Judgment debtor
if less than the Judgment debt, and for costs of suit, (h) and
the proceedings upon such suit (t) shall be the same or as
nearly as may be, as upon a writ of revivor issued under this
Act. U )
^s^2^^xpp.<x «) CXCVIII. (k) Payment made by (I) or execution levied
§ a*} 7. A.i864iB.W.upon the garnishee, (m) under any such proceeding as afore-
diaoretltn in the Judge even after de-
fault: {Clark V. Perrt/, 26 L. T. Rep.
46.) Indeed the Judges may use any
of the garnishee clauses at their dis-
cretion : {Jones t. Jenner, Martin, B,
27 L. T. Rep. 191.)
(e) The execution may be either
against the goods or against the body
of the garnishee, the latter only, it is
apprehended, upon affidavit: see s.
olxxxT. As to the forms of execution
see N. Rs. Sch. Nos. 45, 46.
(rf) The direction of the writ will
be to levy the amount due from such
garnishee " towards satisfaction of the
Judgment debt." No provision is made
for the costs of suing out the execution
or for Sheriff's poundage, ^m. Will
such costs be in the discretion of the
Judge under s. cc. or will they follow
the execution as a matter of right?
Bee note j to 9. cxcvii. In case gar-
nishee dispute the debt, costs of suit
are expressly provided for by the next
succeeding section.
{e ) Taken from Eng. Stat. 17 & 18
Vic. cap. 125. s. 64. — Applied to
County Courts.
(/) Under preceding section (s.
cxcvi.)
(g) May^ see note b to s. cxcvi.^/^»3
{h) Form of writ, see N. Rs. Scbd.
No. 47.^*^*7^-^
(j) Proceedings, &c., i.e. Declaration
plea, &c., as to which see N. Rs. Sch'
No. 48 et seq. A^fjC T^^
{j) Sees.'ccv. Although the pro-
ceodings are directed to be the same as
on a writ of revivor, it is only as
" nearly as may be," and therefore the
Court may add to an order made under
this section the restriction that under
the special circumstances of the case
the costs shall abide the event. But if
the Court give no tuefi direction, they
virtually order costs to the successful
party when they order the writ: (John-
son \. Diamond, 26 L.T. Rep. 137 • 33
L. & Eq. 437.)
(*) Taken from Eng. Stat. 17 & 18
Vic. c. 125, s. 65.— Applied to County
Courts.
(/) i. e. Under s. cxcvi. According
to the practice as to foreign attach-
ment in the City Court of London, the
garnishee is only discharged when exe-
cution is actually sued out: SieMagrath
V. Hardy, 6 Scott, 627.
{m) The garnishee may be either
an individual or a corporation : (see
note d to s. cxciii.) In a case in
the City Court of London, where pro-
cess of attachment issued against a
railway Company by a corporate name,
they being only provisionally registered
under the English Statutes, and funds
8. CXOUC.CO.]
ATTACHMENT BOOK.
865
said, («) staH be a valid discharge to him as against the Judg- P^ynnnt '7 '
ment debtor to the amount paid or levied, (o) although such ^ Y*"*»^
proceeding may be set aside or the Judgment reversed, (d) ^im.
CXCIX. (q) In each of the Superior Courts there shall be(^j5p. o>. c.) Ctn^^lai Sm.
kept at [the several offices of the Clerk of the Crown and hisA^issiB.M! ^s'^''^^
deputies], if) a debt attachment book, and in such book entries Attachment
jhaii be made of the attachment aL ' re ngs thereon, with ^^ *?^^,
names, dates, and statements of the amo..v recovered
^S
oJfl
7 oin ". jr
^"<*Cleriv.i^the
Otherwise ; (») and the mode of keeping such books shall bop™''""''**
his deputies
the same in all the offices, and copies of any entries made
therein may be taken by any person upon application to the
proper officer. (<) , .
CO. (tt) The costs of any application for an attachment of (^^.j, a, c) a!exk ^ x^
^A9Q,
attached but no proceedings taken, an-
other action for the same debt against
three of the provisional committee men
Tffts allowed to proceed : {Denton y.
norland, llJur. 40.)
(fl) Under 8. cxcvii.
(o) The garnishee, it will be per-
ceived, is by the act of hia creditor the
judgment debtor in the original suit,
placed in a situation in which he ac-
quires a good answer to any action
thatmny bo brought against him by
his creditor. Upon general principles
it seems that where such answer arises
before judgment, it may be pleaded to
the further maintenance of the action
or puis darrein continuance, if after
plea pleaded (s. cxviii.) In both cases
the plea is an effectual bar : see Webb
Y. Ilurrell, 4 C. B. 303. The plea it
seems must be special in either case,
and may be the same mutatis mutandis
as that made use of when attachments
are issued from the City Court of
London: see Nonell v. Ilullelt et al.,
4 B. & C. 646 ; Crosby v. Uetheringion,
4 M. & 0. 938.
(/>) The process of attachment in
the City Court of London could only
be resorted to when the cause of
action against the original defendant
arose within the jurisdiction of the
Court from which process issued : [De
Babery. the Queen of Portugal; Wads-
worth T. the Queen of Spain, 17 Q. B.
171.) And yet it was held that a gar-
nishee paying a debt under a judgment
of the Court could not bo afterwards
compelled to pay it over again to bis
creditor, upon the ground that the ori-
ginal cause of action arose without the
jurisdiction of the Court : ( Westoby v.
Bag, 2 El. & B. 605.)
{g) Taken from Eng. Stat. 17 & 18
Vic. c. 125, s. 06. — Applied to County
Courts.
(r) Instead of the words in brackets
read in Eng. C. L. P. Act "the Mas-
ter's Office."
(s) The form of book sanctioned by
the Courts has columns for the follow-
ing information — 1. Name of plaintiff;
2. Name of judgment debttr; 8.
Amount of judgment ; 4. Date of judg-
ment ; 5. Name of garnishee ; 6. Date
of order for attachment; 7. Amount
ordered to be paid by garnishee; 8.
Date of such order ; 9. Date of order
for execution against garnishee ; 10.
Date of order that judgment creditor
may proceed against garnishee : (N.
B. 68 and Schedule.)
(<) Proper officer, i. e. the officer
having the custody of the particular
book from which copies of entries are
required.
(m) Taken from Eng. Stat. 17 & 18
Vic. c. 126, 8. 67. — Applied to County
Courts.
.'f •
J:
'^t-:
866
THE COMMON LAW PROCEDURE ACT.
[8. cd.
v. i 'I
Ml€^
«%
Sm^;!!^:*^®^* ^^^^^ *^^* ^^^> C*') ""<* of any proceedings arising from
Spwwtion';*'"'' incidental to such application, (.0) shall bo in the discretion
of the Court or a Judge, (r)
jc-^^ba. ^(App.ch. a) CCI. (^/) Tho Court or a Judqfo (z) shall have power If he
'<! ^^ a.18m',s'."t8.ov they shall see fit so to do, (a) upon the application of the
^P^'^'J 1^'"* Plaintiff (i) in any action for tho detention of any chattel (A
i'<
't^^qjr
It'
'< M
(v) The words of ilio section thus
far comprchonil only preliminary pro-
ceedings.
(w) Whether these words could bo
taken to apply to proceedings had
under tho English enactment corres-
ponding to our 8. cxcvii. was for some
'" time a question. Recently it has been
held that they do not apply to tho
costs of such proceedings, and that
they abide the event : (see notey to s.
cxcvii.)
(z) It would seem that if there ou
bo any proceeding coming within tho
meaning of this eection, and no direc-
tion be given as to costs, no costs will
be allowed. The practice is analogous
to tbut adopted in Interpleader cases :
(7 Vic. cap. 80, s. (5.)
(y) Taken from Eng. Stat. 17 & 18
Vic. cap. 125, s. 78. — Founded upon
2d Rep. C. L. Comrs. a. 47. — Applied
to County Courts. This is a section
wjiich in some degree confers equitable
jurisdiction upon tho Courts of com-
mon law. It has been the practice of
Courts of law (especially in modern
times) where they see that justice re-
quires the interference of a Court, of
EquityandthataCourtof Equity would
interfere, in such a case, to save the
parties the expense of proceeding to a
Court of Equity, by giving them tho
aid of the equitable jurisdiction of a
Court of common law to enable them
to effect the same purpose : (Phillips v.
Clageit, Abingcr, C.J., 11 M. & W. 90.)
(r) The Court will review the order
of a Judge made under this section :
{Chilton v. Carrington, 24 L. J. C. P.
78 ; 29 L. & Eq. 255 ; see further note
VI to 8. xxxvii.)
(a) This section is intended to deal
with the ordinary finding of a jury
which would in detinue be the findinc
of 80 much for value and po much for
damages : (Tidd's Pr. 8 Edn. 339 9
Edn. 321) ; whereupon the juUgmMt
used to be that plaintiff do recover the
chattel or the sum assessed as t^e
value and also his damages and costs
(Selwyn's N. P. 10 Edn. 668.) !„
such a ca.se a defendant hitherto thouch
he had the chattel sued for, might re-
tain it, pay tho value, and so obtain
the chattel for himself, and might de-
tain it from plaintiff though the latter
set a much higher value upon it than
the value set upon it by the jury. This
was a hardship ; so recour. e y^as
had to that which is fair and reason-
able, namely, the investment of the
Courts of common law with a discre-
tion which tho legislature thought
should be exercised. Therefore it is
enacted in cases where it would be un-
just or improper that defendant should
have the option of paying the money
or keeping the chattel, the Court or a
Judge may make an order tukiiii/ away
the. defendanCa option. But the Act
deals with a case of option only nnd if
the value of tho chattel be not found
by the jury now ns formerly that case
does not arise : ( Chilton v. Carrington,
ul)i supra.) Thus where at the trial
of an action of detinue for a lonse de-
po.^iited as security for £160, the par-
ties agreed that the jury should be dis-
charged from finding the value of the
loiLse, and a judge made an order on the
defendant to deliver the lease, the
Court rescinded that order : (lb.)
(h) The application may be made to
" tho Court or « Judge," i, e. any
Judge, and not necessarily the Judge
who presided at the trial.
(c) Formerly detinue was the only
s. cci.]
SPECIFIO DEL VEBT OT OHATTKLS.
867
to order that execution shall issue for the return of the chattel ij!*"*' "JJ^
detained, (d) without giving the Defendant the option of ro-»«>* »>ow.
taining such chattel upon paying the value assessed, (r) and
that unless the Court or a Judge should otherwise onlor, tho
Qheriif shall distrain the Defendant by all his lands and chattels
in tho said Sheriff's bailiwick, till the Dofoudunt render such
chattel, (/) or at the option of the PlaintiiT, that ho cause to vTaiuuir. *
to made of the Defendant's goods the value of such chattel j (♦/)
provided that the Plaintiff shall, cither by the st\me (A) or by KSlii!^
a separate writ or writs of execution to be issued in tho ordin-*^*** ^^
iirv manner, be entitled to have made of tho Defendant's goods
or lands, the damages, costs, and interest in such action, (^t)
And with respect to proceedings for tho revival of Judg- «»wVai «/
meats and other proceedings, by and against persons not parties •««.
to the record; (J) Be it enacted as follows :
form of action in which at law a chat-
tel might be recovered in specie ; but
the like remedy may be now had ia
au action of replevin: (14 & 16 Vic.
c. Ct.)
((/) Form of execution H. R. Schd.
No. 57. .J
(f) See note a, ante.
If) The command containel in tho
writ of execution closely follows tho
language of this section.
hi) Form of execution in this case,
see N. R. Sch. No. 68.
(/() Neither of the forms of execu-
tion prescribed by the Courts has any
provision as to the damages, costs, and
interest: (Nos. 67, 68.)
(»') In detinue for railway scrip
Tvhich bad been delivered up to the
plaiatiff under Judge's order after ac-
tion brought: Held tho Judge was>
warranted in directing the jury at tho
trial that in estimating the damages
they might take into consideration tho
diiference in value of the scrip at the
time of the demand and at tho time of
its delhery to plaintiff under tho
Judge's order: (Williams v. Archer ,
6C. B. 818.) Upon the trial of an
action of detinue and trover for shares
it was arranged that the damages,
£382, found by the jury should bo ro-
- . f.' 9^
%
. ■ w ■ ■. I
4 ;i^,
.,.v p
i\{
f
ducod to a notninnl amount upon the
defondaitt dttlivcring up tho aharea.
Shares of a like douumination and to
an equal amount with thoso which
were the aul\jeot of the action were
afterwards tendered ; but the market
value having greatly fkllen, plaintiff
sought to enfuroe the verdiot: Held
that ho could not do ao, that tho bar-
gain was binding upon him ; and that
it was fulfilled ou the part of the de-
fondant b^ tcndoriug simitar shares to
those which were the stt)\)ect of tho
action : {Jtffrt^ v. OWiyt, 28 L. T.
Rep. 231.)
{J ) At common law a presumption
arose from a plaintiff's delay beyond
a year to issuo execution that his judg-
mont oitlier had bocn satisfied or from
some supervoning cause ought not to
bo allowed to have its effect. After
such delay therefoi*e, plaintiff wcs not
allowed to issue execution as a m<\tter
of course ; but was driven to bring a
new action on the judgment As this
was found to bo unnecessarily vexati-
ous and oppressive, the writ of acire
/(iriK.t, which had been in use at com-
mon law for the purpose of executing
judgment in real actions after the de-
liiy of a year and a day, was adopted
by tho Statute >Ycstm. II. : (13 £d. I.
. . M
i::i
< i.
'
n
r^
ft
'j\
''Wit\ i!
868
TIIK COMMON LAW PROCEDURE ACT.
[8. ccii.
mm
ii 'lip,
•i.'i't
Suft.Ko'Uk ^C^lV. ccii. (k) During the lives of the parties to a Judgment
*A<*;_^/.- A.i862,i. 128. or those of them during whose lives execution may at rrc'
»«*<s»^.s^iExMution sent issue, (I) within a year and a day without a
tare
•-t^i^ysoi *ciV(:/<icta« facias, (wi) and within one year {n) from the recovery of
t>
St. 1, 0. 45.) This was a less expen-
sive and dilatory course for plaintiff
and equally affordinz protection to
defendant if he had any cause to
show why execution should not issue :
(Iliscocki T. Kemp, Donman, C. J. 3 A.
s E. 679.) The scire facias was a writ
founded on some matter of record be-
itag as regards judgment the original
judgment obtained against defendant :
(Bac. Abr. Scire Facias, 10.) Besides
it was a rulj that where a now person
who was not a party to the judgment
derived a benefit by, or became charge-
able to the execution, there should be
a scire facias to make him a party to
the judgment: (Penyeorv.Brace, 1 Ld.
Royd. 245.) Thus the writ lay either
between the original parties to the
judgment, where an execution had not
been issued within a year and a day
from the signing of the judgment or
between eitlier of the original parties
and the representatives of the other or
the representative of both, whnn it was
sought to make parties to the judg-
ment persons other than the original
parties. The end attained by means
of scire facias in any of these cases
may now be attained by a much more
simple and speedy mode of procedure.
In this respect the sections following
are founded upon 1st Rept.C.L.Comrs.
ss. 82-85 inclusive.
(k) Taken from Eng. Stat. 16 & 10
Vic. cap. 125, s. 128. — Founded upon
1st Rept. C. L. Comrs. s. 82. — Applied
to County Courts.
(I) This section applies to judgments
existing at the time the Act came into
force : {Boodle v. Dcvis, 22 L. J. Ex.
68, 8 Ex. 851.) Where a judgment
more than a year and a day old but
less than six years, when the Eng. C.
L. P. A., 1852, came into operation
had not been revived by set, fa., it was
held that execution, since the C. L. P.
A., might issue without any rjvival of
such judgment : [lb.)
{in) A scire facias to revive a judjf.
ment before this Act was either l)o"
tweon the original parties to the suit
or between new parties. The piosont
section has reference more p irticular
ly to the former. If plaintiff kfora
this Act omitted for a year and a diy
to issue execution on his jud.jmciit, a
sci. fa. became necessary. But whire
execution had been taken out though
not executed within a year fit'tor jutkr.
ment the scire facias was reiUeimi
unnecc8.sary : Simpson v. Ihaih :
Dowl. P. C. 832 ; (hcemhi.hh v
Harris, 9 M. & W. 771; }ht.
chant V. Frankis, 8 Q. B. 1 ; Fntnk-
man v. Ilodginson, 3 D. & L. f),-,4.
Fllis v. Oriffith, 4 D. & L, 27!lJ
Holmes v. Newlands, 5 Q. B. C>'.\i. iJnj
see Seioell v. Thompson, E. T. 2 Vic
MS. R. & H. Dig. "Scire Fadns/'S;'
Wilson V. Jamieson, E. T. 7 Vic. .VS.
lb.) The Commissioners wero of opi!
niou that the limit of a year ami miitr
«« was not founded on good reason,''
They recommended that by analogy to
the Statute of Limitations in the case
of simple contract debts, six years
should be the period within wliich ex-
ecution might issue upon a juilgnient
without revival. Such is the limit
expressed by the English Legislature
in the section of the Eng. C. L. P. A.,
corresponding with the one here Rnno-
tated, and it is presumed the ptrind
intended by our Legislature. The ne-
cessity for a scire facias or writ of re-
vival, as it is termed in this Act, (a.
ccv.) after six years have elapsed, may
be waived by oral agreement of the
parties or consent of defendant: [His-
cocks V. Kemp. 3 A. & E. 670; .Vor-
gan y. Burgess, 1 Dowl. N. S. 850.)
(n) The expression ••one year," as
here used, is clearly an error, though
869
i.eoiti'] i BiyiYAL or judqmxnts.
the Judgmonti exeoution may issue wiihoul a revival ihsre-
of. («)
CCin. (p) lo case where it shall hecomo necessary to (App. n,. r.) e«
levive a Judgment, either by reason of lapse of time (5) or of AjSa^l/iil! '\
8 change by death or otherwise of the parties entitled, or Ha- AppicH«ion
ble to execution, (r) the party alleging himself to be entithdJJ'j.JjJ.'jSji"^
to execution (») may either sue out a writ of revivor in thet,"^^jj;^^'
form hereinafter mentioned, (<) or apply to the Court or a"*®"*
Judge (t<) fo<^ hnyQ to enter a suggestion upon the roll, to the
effect that it manifestly appears to the Court that such party
ij entitled to have execution of the Judgment, and to issue
execution thereupon,' '(t>) such leave to be granted by the ^'"^
lourt upon a rule to show cause, or by a Judge (to) upon a
■t
m
I tery awkwnnl one. It is perhaps
aifficalt to 8fty that by tho mere use
of the word *' one," the Legislature
intonded "six." But a reference to
the Eng. C. L. P. A., and the report of
the CjmiuUsioners upon which it is
foanded, will support the latter sup-
position. Whatever was intended, "one
j«ar" was not; because this is the
period which prevailed before our C.
L P, A., and which it was the design
of the Act to extend. It is believed
this error will receive the attention
of the Legislature during the present
session,
(0) Execution issued after the time
limit«d without a writ of revivor will
be voidable not void : (Ooodtitle t.
B-idlilU, 9 Dowl. P. C. 1009; Blan-
thmyy. Burt, 4 Q. B. 707; McNally
T. S«ww, Tay. U. C.^R. 856.)
(;>) Taken from Eng. Stat. 16 & 16
Vio. cap. 70, B. 129. — Founded upon
1st Rept. C. L. Comrs. s. 83.— Applied
to County Courts.
(7) i. f. After the expiration of six
years from tho recovery of judgment:
(s. cciii. note n.)
(r) See note y to a. ccii.
{») An application made at Cham-
bers must be taken to be made on the
part of tho person who professes to
apply, and in the character in which
he is described, unless evidence to the
contrary be produced : (Swan y. Cle-
landa. Chambers, Septr. 20, 1866,
Richards, J., II. U.C.L.J. 285.) Thus,
where application was made under this
section by the widow and executrix of
a deceased conusee, though a person
apparently her husband was joined
with her, and it was therefrom argued
that she had married » second time, but
no affidavit to that effect being pro-
duced, the argument was held to be of
no avail: (lb.) According to the Bng-
lish authorities the party applying, if
an executor, should show that probate
has been taken out : ( Voffel v. Thomp'
ton, 1 Ex. 60.)
(t) t. e. in s.ooT.
(u) See note m to s. xxxvii.
(v) Two courses are thus pointed
out — either to apply for leave to enter
a suggestion that it manifestly appears,
&c., or to issue a writ of revivor by
means of which the right to isbue exe-
cution must be made to appear.
Though the former mode be essayed, if
unsuccessful the party applying will
be still at liberty to try the latter. As
to the form of rule or summons under
this section eco Schd. A, No. 9.
(w) The concurrent jurisdiction of
the Court and a Judgo in Chambers is
here remarkably clear : — *' By the
Court upon a rule to show cause or by
a Judge upon a Summoni, &o."
3
I
I !
•: ij
i
■ 3-
I M-
I ■•■>'
I
t I
I J
870
l!..j'
^ »
Vll
^io^
> >H
TDK COMMON LAW PROOIDURK ACT. [n.QcU
Summona to be seryed aooording to the present practice (x)
or in Ruoh other manner as such Court or Judge may direct (y)
and which rule or summons may be in the form contained
in the Schedule (A) to this Act annexed marked No. 0, or to
the like effect.^ («)
u-j. a/i°n. «ni» c i'-j'- COIV. (a) Upon such application, (6) in case it manifestly
% *'"' ' ' appears that the party making the same is entitled to execu-
beMtiiflxd; tion, (c) the Court or Judge (</) shall allow such suggtaiun
as aforesaid (e) to bo entered in the form contained in the
Schedule (A) to this Act annexed, marked No. 10, or to the
like eflFect, (/) and execution to issue thereupon, (g) and shall
order whether or not the costs of such application shall be paid
to the party making the same; (/i) and in case it docs not ma-
nifestly so appear, the Court or Judge shall discharge the rule
or dismiss the Summons with or without costs ; (t) Provided
nevertheless, that in such last mentioned case, the party mak.
ing such application shall be at liberty to proceed by writ of
revivor or action upon the judgment. (J )
:i^> ' k
Aud If not.
PtotUo.
(x) •« According to the present pmo-
tioe," &o. The practice to which refer-
ence is made ia not free fVom doubt.
It may be either the present prootioe
as to rules and summonses generally,
or rules and summonseB to show cause
why a pnrty proceeding by *ei. fa.
should not have judgment. Thelatter
soema to be intended. Personal ser-
Tice is not necessary if it can be shown
that defendant is purposely avoiding
service : (Dixon ▼. JAoraW, 9 Dowl.l*.
C. 827,) and the service may, it would
seem, be made on a defendant though
residing out of the jurisdiction of tlie
Court: [Sloekfort v. Uawkitu, 1 D. &
L.204.)
(y) Thia provision will enable the
party taking proceedings to continue
his proceedings, though defendant be
concealed within the jurisdiction, or bo
resident without the same. Thus,
where it was t-hown that defendant
having houses in Liverpool, had left
England for America, notice of the sale
stuck up in the office of the Court and
served on defendant's tenants in Liver-
pool, was directed to be sufficient ser-
vioeof the rule on defendant: (Jfae-
donald v. Maclaren, 11 M. & W. 4C5.)
(z) The forms whenever tlipy can
be followed should be adopted. The
use of the words *' to the like effect,"
is intended to admit of a departure
from necessity.
(<i) Taken from Eng. Stat. 15 & 16
Vic. c. 76, 8. 130.— Applied to County
Courts.
(6) I. «. Application made under the
preceding section.
(c) Manifettly appears, Jfc. It is
for the Court or Judge to decide whe-
ther the right of the pnrty applying for
execution is " manifest."
(d ) See note m to a. xxxvii
(e) t. e. As mentioned in the preced-
ing section.
(/) See note z, tupra.
(g") As to executions generally, see
note n to a. clxxxii.
(A) ^M. If the order be silent as to'
costs, will the party applying be de-
prived of costs ? The general rule is
that in such case each party should
pay h:B own costs.
(t) See note w to s. cciii.
(j) See notey to a. ccii. A party
suing upon a judgment of the Court
Stil
I ^
cot]
WRIT or RSVIVOB.
871
CCV. (*) The writ of reriTor (/) shall be directed to t^eJj-JPPpCb. (gt:<»^- ».^V fut
«irtjea\\ed upon to show cause why execution shall not be ^■""^'•■■isi- §3^4* /«
iwarded, (w») ond shall bear teste on tho day of itH issuing, (») ^'/*^^'*^ ^^^'
ind after reciting tho reason why such writ has become neco8-«r«<'*'>Ki
iiiry* (<>) '^ '^'^'^ ^'''" ^P^" ^^® P^'^y ^^ whona it is directed to
anpear within ten days after service thereof (/>) in the Court
oat of which it issues, (g) to show cause why the party at whose
instance suoh writ has been issued (r) should not have execution '
(gainst tho party to whom such writ is directed,and it shall give
notice that in default of appearance, tho party issuing such writ
may proceed to execution; (<) and such writ may be in the (' k
form contained in the Schedule (A) to this Act annexed
marked No. 11, or to the like effect, (0 and may be sued out
30'/
will not be entitled to nny costs utile •s
the Coart otherwise order : (St. U. C.
49 Quo. III. cap. 4, 8. 2 ; see also R.
4H. Dig. "Costs," IV. 2.)
(k) Taken from Eug. Stat. 16 k 16
Vic. cap. 76. r. 181. — Founded upon
1st Rep- C. L. Comrs. as. 84-86. — Ap-
plied to County Courts.
(/) Writ of revivor. This is the
name of a new writ in many respects
parbtking ( f the nature of a $cire facial,
suoh as hitherto used. It is indeed
tiie id. fa. under a new name, or more
properly an improved tci. fa. A tci.
fa. CD 8 judgment has been held to be
not a mere continuation of a former
suit, bat the origin of a new right :
(Farrell t. Oleuon, 11 CI. & Fin. 702.)
The writ is in the nature of an action,
because the defendant may plead to it :
(2 Wm's. tiaund. 6 a.) It lies on a
judgment in ejectment : ( Doe d. Rami'
bottom y. Kae, 2 Dowl. N.8. 690.)
(m) This is a new featare, the act.
fa. hafmg been always directed to the
Sheriff whose duty it was to make
iinown the writ to defendant. H«nce
its name.
(n) Same as writs of summons (s.
xix.)
(0) The judgment should be recited :
{Prtntony. Perton, Cro. Elii. 817.) It
is sufficient to set out the recuffcravit in
general terms : [Fowler v. Riekerbi/, 9
Uowl. P. C. 682 ; PhiUipa T. Smith, 2
Dowl. N. S. 688.) A variance from the
judgment, as for example, in the sum
recovered is trror, if it appear on the
face of the record : {Kilbourn v. Trot,
Cro. Eliz. 856 ; Mara v. Quin, 6 T. R.
6 per Kenyon, C. J.)
( p) Same as summons, see Schedule
A, No. 1.)
{(j) Which must be the .Court in
which the original action was brought:
(2 Wms. Saund. 72 a; see also N.R.
60.)
(r\ See note « to s. cciii.
(») Tho object of the writ is to en-
force adjudgment by the issue of exe-
cution tbereupoB after tbnt judgment
has for a certain period Ir^'n 't ormnnt
It is for the party to whoiij I'je writ is
directed to show oauee why the judg-
ment should not be enforced against
him. This he is enn^^lod to do by ap-
pearing and pleadir;^ his defence. If
he neglect to a^-.peur, judgment may be
signed against him fur default of ap-
pearance. The judgment so signed
will carry costs : (St. U.C. 7 Wm. IV.
cap. 8, 8. 26.) It is ordered that do
judgment shall be signed for non-ap-
pearance to a ici. fa. (Qu. writ of re-
vivor) without leave unless defendant
has been summoned (N. R. 61), but
the judgment may be signed by leave
after eight days from the return of
one id. fa. [lb.)
{t) The writ may in general be
11
■jf-'A
I
I
872
THE COMMON LAW PEOOEDUBE ACT.
[«• ccvi.
Daolantion,
and served in any County or Union of Counties, and otherwis
proceeded upon whether in term or vacation, in the same ma
_ ner as a writ of Summon8^"(M) and the venue in a declaration
^>% 1,0 6 upon such writ may be laid in the County or Union of Countie
c«»t^ in which the writ has been sued out; (v) and the pleadio
and proceedings thereupon, and the rights of the paities re
(31 ^ 30- speotively to costs, shall be thesame as in an ordinary actioi/^/u)^
and notice in writing to the Plaintiff, his Attorney^ or agent
^' ^30% shall be a sufficient appearance to a writ of revivor, i^r^) '
ic^^^vui ^ryf^ i^mot^c) CCVI. (y) All writs of scire facias issued out of either
a.1862a132! the Court of Queen's Bench, or of Common Pleas, against
Certain wrifi bail on a recognizance, (z) against members of a Joint Stock
to be pruMMi- Company or other body, upon a Judgment recorded against a
like naDner public officer or Other person sued as representing such Com-
" * pany or body, or against such Company or body itself, (a) by
Iks?. e/» XT.
If"
' ' ^HH^HB
Hl£
iild
■
■
1
1
r^ '' F
"1
IP^
n
iU:-,: ir!
-iv«
Si
M write of
reriri/r.
amended: (Bratwell ▼. Seeo, 9 East.
816 : Perkint t. Petit, 1 B. & P. 276 ;
Holland t. PhUlipps, 10 A. i E. 14«),
or quanbed upon application of plaint-
iff: {Oliverton t. Latour, V Dowl. P.C.
606), but only upon payment of costs
if defendant bare appeared : (N. R. 69. )
A second writ would seem to be neces-
sary if after judgment obtained on tbe
first, six years be allowed to elapse
without execution: (Walker \. Thel-
luton, 1 Dowl. N. S. 678.)
(«) Qu. Is it in the power of the
plaintiff in tbe writ of revivor to issue
either a capiat or ea. ta. : see Agaiaiz
et al. ▼. Palmer, 5 M. & Q. 697.
(v) Same as proceedings on writs of
■ammons, ante ss. ix. x.
fw) No party can plead matters
which might have been set up a<> a de-
fence to the original action: (Allen v.
Andrews, Cro. Elit. 283 ; Middleton v.
Hill, Cro. Elis. 688; West y. Sutton,
I 8alk. 2 ; Wheatley v. Lane, 1 Wm.
fiaund. 219 e, D ; Bradley v. Eyre, 11
M. & W. 461 ; Holmet v.^ Netotands, 6
Q. B. 867 ; Phillipnon t. 'Earl of Egre-
fnont, 6 Q. B. 687) ; nor can a party
who did not avail himself of the oppor-
tunity of pleading in bar to the origi-
nal action afterwards so plead to the
writ of rcTivor founded upon the judg-
ment obtained in the original action ■
{Skelton v. Hawling, 1 Wils. 258; /fofj
V. Leighton, 1 Salk. 810; Earlt v
Hinton, 2 Stra. 732.) But a defend-
ant may plead anything done under
the originai judgment that exonerates
him from liability : ( Clark v. Withen
2 Lord Rayd. 1076 ; Uolmei v. W
landt, 6 Q. B. 870.) Thus, for exiio-
pie, release or payment: {Holmei y.
Newlandt, ubi tupra), and there ma; be
a plea of fraud to the original judg-
ment: (Dodgton v. Scott, 2 Ex. 457-
Thomas v. Williams, 8 Dowl.P.C. 656;
Botanquet v. Graham, 6 Q. B. 601 n.)
(z) This provision as to appearance
by notice is taken from s. 183 of Eng.
C. L. P. Act, 1862, and is repeated in
N.R. 62. The notice if by atttirney
may be in this form—7V//« of Cowl
and Cause — Take notice that I appear
for the defendant to the writ of revivor
issued in this cause.
(y) Taken f^om Eng. Stnt. 15 & 16
Vic. cap. 76, s. 132. — Applied to Conn;
ty Courts. — This section is so framed
as to recognize a diMtinction between
writs of revivor and scire facias,
(2) See Foster's sei. Ja. 808 ; also
N. R. 60. Also see s. cxcii. of tLis
Act and noten.
(a) See Foster's sci. fa. 108.
g-covii.]
HOW WaiTS OF BEVIVOB ISSUED.
878
or against a husband to have execution of a Judgment for or
against a wife, (b) for restitution after a reversal on Error or
Appeal, (c) upon a suggestion of further breaches after Judg- f
meat, for any penal sum pursuant to the Statute passed in the
Session holden the eighth and ninth years of the reign of King
William the Third, intituled. An Act /or the better preventing
frivolous aad vexatious suits, (d) — shall be tested, directed,
and proceeded upon in like manner as writs of revivor, (e) 31
CCVII. (/) A writ of revivor (^r) to revive a judgment ^«^■„f5L?.*^**^^^^'/^^;^
less than ten years old, shall be allowed without any rule or ■^-isca.i.iai ao!?^ j^
order; (A)ifmor« than ten years old, not without a rule ofA»»ofjadg. - ' J I
Dnurt or Judge's Order : (i) nor if more than fifteen years old pectewriuof ?
^" 1 .N reflvor. «
without a rule to shew cause, (j) t
lb) See Foster's Sci. Fa. 156 ; also
see 8. ccxiv. of this Act and notes.
(c) See Foster's sci. fa. 64.
\d) See lb. 32 ; also s. czlv. of this
Act and notes.
(() Reference is Airtber made in
Eng. C. h. P. C. 1862, s. 182, to two
modes of procedure by teire fiiciat,
Deither of which is used in Tapper
Canada, viz. : 1- Scire facias ad audi-
tndum trrora. 2. 5ct. /a. for recovery
of land under an elegit. Ihere are
other proceedings by Sci. fa. to which
neither the £ng. G. L. P. Act nor oars
sppiies, snob aa, scire facias to repeal
letters Patent ( Forster'a 5ci. Fa. 286,)
on bonds to the Orown, {lb. 880, J and
on inquests of office to recover simple
contract debts due to the Crown : (76.
8(1.) But for these, provision is to
some extent made by N. R. 68, and
except 8H to provisions made by the
new rules, it is presumed that the old
rules as to Crown proceedings will
apply.
(/) Taken from Eng. Stat. 16 & 16
Tic. cap. 76, s. 131. — Applied to Coun-
ty Courts.
{g) This section provides for the
revival of three descriptions of judg-
ments.
/"I'rjtr— Those more than six but less
than ten years old, as to which the
writ may issue without any rule or
order.
Second — Those more than ten but
less than Alteen years old, as to which
a rule of Court or Judge's order may
be obtained ex parte.
Third — Those more than fifteen
years old, as to which a rule to show
cause must be obtained.
Whether a judgment more than
twenty years old can be revived is »
question : ( Williams v. Welch, 8 D. &
L. 565, Stiit. U. C. 7 Wm. IV. cap 8,
8. 8.) Supposing a rule that it can-
not, to exist payment of interest with-
in twenty years, woald take the case
our, of such a rule : ( WilUanu v. Ife/eA,
ubi sup ) After twenty years have
elapsed the Statute of Limitations,
prima facie applietr: {Loveless v. Riehh
ardaon, 27 L. T. Rep. 192, 2 Jar. N.
S. 7)
(A) Upon filing a precipe, it is pre-
sumed.
(i) The words "rule of Court or
Judge's order," seem to exclude the
inference that the rule in this ease
might be a side oat rule.
0') To obtain a rule under this pro-
vision, without doubt an affidavit will
be required The affidavit should be
that of plaintiff himself, if he be the
party applying or that of the person
who was his attorney at the time the
judgment was obtained : {The Dvkaof
Norfolk V. Leieexter, 1 M. & W.204.) If
the party applying be the representa-
n
i--l i ,
'M
•n
\M
l^^'
•1,^
;^ ^j
374
THl COMMON LAW PROCEDURE ACT.
[*• coviii.
And with respect to the effect of death or marriage upon tb
(App. cb. e,)P™°*®<^*°S» ^° »° action; (As) Be it enacted as follows :
En '~ " ~
> ««r»v sui ^«v- ^^i'^^^' CCVIII. (0 The death of a Plaintiff or Defendant (m) shall
UdS.fil -x L Death of * ' "''
^/3/ iMbodMotf as hereinafter mentioned, (i?)
»u|
' *
^imt
not cause the action (n) to abate, (o) but it may be continued
tWe of the original plaintiff an affida-
vit by the attorney seeliing to enforce
the judgment, though not the attorney
of the original plaintiff, may be re-
ceired : (Smith r. Met, 1 D. & L. 907.)
And wmMe — the rule that a matter
oannot be agitated twice does not ap-
ply to the case of an ap^flioatioa to
iBsne a «ct. fa. upon fresh materiala :
(Dodgaon t. Scott, 2 tz. 457) The
omission to sue out a «ci. fa. when
made necesi^ary by this section would
be a defect so material that it might
be tak<;n advantage of at any time:
(see Ooodtitle t. £adtitl4, Dowl. P.
0. 1009.) Qu Does the rule extend
to ft second $ei. fa. when the judgment
though once revived has been allowed
again to slumber : see Wright v. Mad-
doekt, HdB. 119.
(k) The amendments introduced by
the following sections are intimately
eonneoted with the law of reviving
judgments, the subject of the preced-
ing sections. The rule is that where
a new person, who is not a party to an
action, derives a benefit by or becomes
chargeable to it, there must be some
proceeding to make him a party. On
this rule are founded the cases of sur-
vivorship, marriage, and deuth. At
common law the death of eitt r party
at any time during the pendency of an
action, t. e. before judgment, abated
the action. Tbit> was the law, although
death happened after judgment by de-
fault or a verdict In like manner,
where the action was joint, the death
of any one of the parties caused the
action to abate. The first remedy ap-
plied by statute was to the effect that
the death of a party betw<;en verdict
and judgment should not be alleged for
error so as such judgment were entered
within two terms after verdict: (17
Car. II. cap. 8.) Of this statute s.
ccxii. of this C.L.P. Act is a copy in
furtherance of jubtice it was afterwards
enacted that proceedings might be had
by tei. fa, either in favour of the re-
presentatives of a deceased plaintiff
against defendant, or in favour of
plaintiff against representatives of s
deceased defendant undtfr certain re<
strictions : (8 & 9 Will. HI. cap. n
8. 6.^ Then as to joint actions it was
in tne same statute enacted that a
cause of action should not abate br
reason of the death of one of several
plaintiffs or defendants, but that upon
suggestion of the death the action
might be continued : (s. 7.) Of this
latter section s. ccix. of the G. L. P. A.
is a re-enactment. So if the legal re-
sponsibility of either party being a
feme $ole be altered, as by marriage
provision is by this Act made for cun-
tinuing the action notwithbtanding the
coverture: (s. ccxiv.) There aie other
provisions of a similar nature, all of
which fully bear out the general inten-
tion of the legislature when passing
the C. L. P. Act, viz., to simplify and
expedite proceedings in the Courts of
common law.
(/) Taken from En^r. Stat 15 & 16
Vic. c. 76, s. 185. — Applied to County
Courts.
(wi) Provision is hereinafter made
for the death of one or more uf Beveral
plaintiffs or defendants (s. ccix) of a
sole plaintiff (s. ccx) and of a sole de-
fendant (s. ocxi.)
(ft) The action, i. e. any action.
io) The death cf either party before
judgment at common law caused the
action to abate : (see note k, ante.)
{p) There is a method of couipelling
the continuance or abundounieut ot an
action by the representatives of u de-
ceased plaintiff : see s. ccxv.
^r.
B. CcU] I>^ATH OF ONE OB MOBB OF HEYSRAL PARTIES.
375
rniX. (q) If there be two or more Plaintiffs or Defendants ((^^•<*- ^> <**^st».i]&n.
tv;*-'*' V2/ Eng.C. L. P. «.C.c/;,j^ •
god ODO or more of them shall die, if (he cause of such action A.ih52,i.i3n. ^ /$2
M shall survive to the surviving Plaintiff or Plaintiffs, («) oriftherobe'
V / , . t ^ y more than
gcraiast the surviving Defendant or Defendants, (t) the action one piaiutiir
ghall Dot be thereby abated but such death being suggested and the
on the record, (tC) the action shall proceed at the suit of the tiun survive '
eurriving Plaintiff or Plainti£& against the surviving Defend
snt or Defendants, (v)
m\
,i
'SSi
i K'
K'''
f E^l
R|.
" i
'"'''■'■^
; H
;^
' H
• 1 .•
ir"
'1'. ■ ': v<
I
to the utberR.
(i7] Taken from Eng. Stat. 15 & 16
Vic. 0. 76. 8. 136.— Applied to County
^gQr(g,_Tbe origin of the section is
8&9WilI. IIIo. 11,8.7.
(r) A writ of error was in England
held to be an action within the menn-
nffof 8 & 9 Will. III.: (Clarke v. Rip-
l„;iB.&Ald.586.)
(]) Questions will anae in cA«es
vhere husband and wife are juiut
plaintiffs and one dies, more frequently
than in other cases : (see s. Ixxvi. and
notes thereto.)
(/) A joint contract or obligation
may in certain cases be given in evid-
ence against one or more of several
joint contractors : (see s. Ixxiv. and
notes. )
(u) If a co-plaintiff die before issue
joiueil, the death should be suggested
in making up the issue : {Far v. Denn,
1 Burr. 862.) If after issue joined,
then the death should be suggested on
the Nisi Prius record : {Rex v. Cohen,
18tark. N. P. 611.) It was in one
case held after a suggestion on the issue
roll not to be necessary to transcribe
the very words of the suggestion from
the pleadings to the NUi I'riua record,
but only enough to show the Judge
what issues he was to try and between
whom: {Far v. Denn, 1 Burr. 862.)
The Courts have in furtherance of jus-
tice not only allowed suggestions to be
amended but to be made ex post facto.
Thus where one of two plaintiffs died
before interlocutory judgment, but the
Bait went on to execution in the name
of both after a motion to set aside the
proceedings for this irregularity, the
Court pertnittfd the plaintiff to suggest
the death as before iuterlooutory judg-
ment and to amend the execution with
out paying costs : (Newnham et al. t.
Zaio,5T.K.677.) But where there were
several defendants, some of whom had
diod before issue joined and the survi-
vors without a suggestion of death
moved for judgment as in case of non-
suit, it was said by Wilde, C.J. "There
is always a roll or the materials for ma-
king one up. It is essential that there
should be some suggestion of the death
before the surviving defendants can
move for judgment as in case of non-
suit. If they are unable to discover a
mode of making up such suggestion,
■they certainly are not in a position to
make the present motion." And per
Williams, J, " The Stat. 8 & 9 Will.
III. cap. 11 does not say by whom the
suggestion shall be entered :" {Pmhut
▼. Stureh et al, 6 C. B. 474.) Where
one of several co-plaintiffs dies the sur-
viving plaintiffs must if they desire to
bring that fact to the knowledge of the
Court on any proceeding in the cause,
enter a suggestion of it upon the roll :
( Larchin et al. v. Buckle, 1 L. M. & P.
740.) Therefore where the defendant
obtained a rule for judgment as in case
of non-suit, the Court refused to dis-
charge it, except upon the peremptory
undertaking, notwithstanding the pro-
duction of an affidavit stating the death
of one of the plaintiffs nubsequi ntly to
the delivery of the declaration : (lb.)
The affidavit was intitled in the UHmes
of all the plaintiffs both deceased and
surviving, and semble per Maiile, J.
that It was wrongly intitled : (/A.)
(v) The suggestion at Nisi Prius
may be entered on the Nisi Prius ro-
eord immediately after the jurata.
Jill 'if
t-M
' rl
'ki ''' m
11
I .!•■
m.
376
THE COMMON LAW PROCEDURE ACT.
[8.
ccx
kje.
%/i^
f "^f
Srl^ islfc^L.?. CCJX. (u;) In case of the death of a sole Plaintiff or sole
* '"'^s. 137. surviving Plaintiff', the legal Representative of such Plaintiff f*\
'"'" may, (y) by leave of the Court or a Judge, (2) enter a suggea.
tion of the death, and that he is such legal representative ( \
and the action shall thereupon proceed ; (b) and if such su
, o
A.1862,
Death of 8OI0
pUiutitI'.
" And now on, &o., before, &o., Jus-
tices of our said Lady the Queen ap-
pointed to tnke the assizes in and for
the County of, &c., at, &c., in the
■ante county, comes the said A. 6. and
the said C. D. by their respective at-
torneys, but the said £. F. comes not,
and thereupon the said A. B., accord-
ing to the Statute in such case made
and provided, suggests and gives the
said justices here to understand and be
informed that after the defendants
pleaded to the said declaration, (accorJ-
inff to the fact,) and before this day,
that is to say, on, &:., the said E. F.
died, to wit, at, &c., and the said
0. D. (the other defendant) there
survived him, and which the said G. D.
doth not deny but admits the same to
be true. Therefore letthesnid issue so
joined as aforesaid be tried between
the said A. B. and the said C. ])."
For forms of all ordinary suggestions,
see Tidd's Forms 286 tfeq.; and Chit.
F. 7 £dn. 837 et »eq. In this case a
suggestion merely is made, because as
no new person is introduced no writ of
revivor is required. But the provi-
sions of our Stat« 1 Vio. cap. 7 mubt
not be passed over without being no-
ticed. This Statute malies liable the
representatives of a deceased joint con-
tractor although the other co-contrac-
tors be living: (/&. s. I), and provides
for the issuing of a sei. fa. after judg-
ment against the representatives of a
deceased joint contractor though there
may be another defendant still living
and against whom the judgment still
remains in force: (/A.)
(v>) Taken from £ng. Stat. 15 & 16
Vic. c. 76, s. 187. — Applied to County
Courts.
(z) It is apprehended this Ruc-
tion only applies to cases where before
this Act the cnu(<e of action might have
been held to survive. There is no in-
tention to extenj the law which holds
that certain personal actions die with
the person. The intention is rather to
facilitate the mode of proceedinir in
actions which survive to the repreBen
tatives of plaintiflFs dying durinc the
progress of such actions. Actious for
libel and some other actions for tort
do not survive: {Ireland v. Champnm
4 Taunt 884; see further Stat U c
7 Wm. IV. cap. 8, s. 2 ; 10 & u k"
cap. 6.)
(y) May, not must. It is in the
power of the representatives either to
continue or dit<continue the action
Defendant has it in his power to force
them to do the one thing or the other:
(s. ccxv.)
(z) See note m to. xxxvii. In ordj.
nary cases leave will not be granted
without an affidavit, which niHy be to
this eflFect — 1. That this action was
commenced by writ of summons on
&c. 2. That the said plaintiff declared
therein, &c. {as the case may be— the
ata'e of the cauae thould be shown.) 3.
That the said plaintiff died on, &c. 4]
That the said plaintiff by his last vili
and testament appointed me the ex^
cutor thereof, and that I duly provrd
the same on, &c., and then became his
legal representative, &c. {according t»
the fad) : Chit. F. 7 Edn. 839.
(a) The suggestion may be in this
form, " And hereupon, that is to
sny, on, &c., C. D. by leave of the
Court, &c., for this purpose first had
and obtained, suggests and gives the
Court here to understand and be in-
formed that on, &c., the plaintiff, A.
B., depnrted this life, and that he, the
said C. D., is the executor of the last
will and testament of the said A. B.,
{according to the fact) and as such is
the legal representative of the saidB:"
(see Chit. F. 7 Edn. 840.)
(6) Thereupon proceed, i. e. after
i,coxi']
DEATH OF SOLE PLAINTIFF OR DEFENDANT.
377
be made before the trial, the truth of the suggestion
naii be tried thereat, together with the title of the deceased -'
Plaintiffj («) *o<^ ^"ch Judgment shall follow upon the verdict,
n favour of or against the person malpng such suggestion, (<0
OS if such person were originally the Plaintiff.
CCXI. (/) In case of the death of a sole Defendant or sole^^^. co. c.) tie^^sZo . ^
surviving Defendant where the action survives, (</) the Plaintiff Aassfig^ias! ''**'*^'^ ^'•
may make a suggestion either in any of the pleadings, if thepeathof sole
cause has not arrived at issue, or by filing a suggestion with °J,««'^|^;j^
the other pleadings, if it has so arrived, of the death, and that""*-
a person named in such suggestion is the executor or ad minis- "^^^'^rehe^e
tratorof the deceased, (A) and may thereupon serve such exe-i^gS'
%/3^/i/3S
entry of the suggestion, which is mnde
a cimdiiion precedent to the further
mosecution to the action.
(;) In A case where a suggestion was
entered upon ft Nisi Prius record with-
out iw^ nuthority from the Court, and
in a very informal manner, without
any opportunity to the defendants to
traverse the facta stated, a new trial
irtis granted upon application of defen-
d*nt8: (Barnewall v. Sutherland et al.
IL. M. &P. \59.)
[d ) Suggestions are of two classes —
those tbiit may be traver.icd and those
not traversable. It is a general proposi-
tion that matters of fact contained in a
8iiggesti<in are traversable where the
Courts are not authorised to determine
them. Suggestions are not traversable
Tfhere a statute gives the Court cogni-
zance of the matters of fact stated, as
for example, a statute declaring that a
plaintiff recovering a verdict under a
certaiu sura shall be entitled only to
Inferior Court costs, or to ho costs,
and the fact is made to depend upon
the Judge's certificate : (see Gardner v.
Stoddard, Dra.Ilep.lOl.) Another class
of cases where the matter of sugge>tion
belongs to the Court, is where the
Court, having a discretionary power
overitsown proceedings, iscalled upon
to depart from the usual course, on
the suggestion of some matter which
renders such departure essential or ex-
pedient fur the purposes of justice, as
where the venue is to be changed be-
cause an impartial trial cannot be had :
( iVatson V. QuUter, 1 D. & L. 244.)
(/) Taken from Eng. Stat. 16 & 16
Vic. c. 76, s. 138. — Applied to County
Courts.
(^) The qualification is deserving of
attention. However much causes of
action on contracts may be held to
survive as againt^t the representatives
of a deceased contiactoc, the Stat.
U.C. 7 Wm. IV. c. 8, s. 2 (Eng. Stat, 3
& 4 Wm. IV. c. 42, s. 2) for the first
time allowed actions to be brought
against executors or administrators in
respect of wrongs committed by the
testator or intestate. The bearing of
the section under consideration in con-
nexron with the Statute of William ia
important to be noticed. It is enacted
in the case of the death of a sole
defendant or sole surviving defendant,
where the action survives, that the
plaintiff may on .suggestion of the death
proceed against the personal represen-
tatives. The object of the enactment
is to place the personal representative
in the cases provided for in the same
position as if he had been the original
party named upon the record, to sub-
stitute the one fur the other, and so
avoid the necessity for commencing
a fresh action : {linnffe v. Stvaine, Jer-
vis, C.J, 15 C. li. 7it2.)
( A ) See note d to section ccx.,
avpra.
\*:\''
878
THE COMMON LAW PROCEDURE ACT.
[8. ocii.
I
I' Ml
m
i
;( Wa
outor or administrator with a copy of the writ and sucgesf
and of the said other pleadings, (t) and with a notice 8i<»n d
by the Plaintiflf or his Attorney, requiring such executor
administrator to appear within ten days after service of th
notice, {J ) inclusive of the day of such service, and that '
default of his so doing, the Plaintiff mav sign Judgment again
him as such execr^ ir or admir.lotratorVC^*) and the same m
oeedings may be hr.a n'la taken in case of non-appearance afte
such notice as upon a writ against such executor or admin!
trator in respect of the cause for which such action wa.
brought J (/) and in case no pleadings havp taken place before
the death, the suggestion shall form part of the declaration (m)
and the declaration, with a notice to plead, and the 8ugf»estion
may be served together, and the new Defendant shall plead
[■il §/ j^ thereto at the same time, [and within eight days after the ser.
If WMnUir vice,] (n) and in case the Plaintiff shall have declared, but the
edlod^d'^'* Defendant shall not have pleaded before the death, the new
not^lala". Defendant shall plead at the same time to the declaration and
^"^li/f
If (here ha vo
beeu no
pliMdIugs.
(i) The BuggcBtion may bo to tbe
efftiot following, " And on, &c., the
plaiatiflf comes and gives the Court, to
understand and be informed that the
said defendant, on, &o., died since the
issuing of tho writ of summons in this
cause, and that C. D. is his executor,
and the said A. B. now sues the said
G. D. as such executor as aforesaid."
See further Tidd's Forms 284 et teq. ;
Chit. F. 7 Edn. 841.
(/) This is consonant with the gen-
eral rule that wherever a person not a
party to the action is to be directly
nlTected by it, there must be a sugges-
tion made, so that such person may
either plead or demur before being
subjected to execution : (see BartlcU
v. Ptnlland, 1 B. & Ad. 704.) The time
limited in Eng. C. L. P. A. is " Eijht "
not ten days ns in this Act.
{k) The notice may be in this form:
'< Take notice that I, on, &c., com-
menced an action against C. U., since
deceased, by a wiit of summons issued
out of, &c., tested on that day, and
that the document hereto aunexcd
marked A, is a true copy of that writ
and that proceedings were taken in
thot action against the saidC. D., and
that I have entered a suggestion on
the said proceedings ot the tleatii of
the said C. D., and that you are exe-
cutor, &c. (03 the fact may be), and that
rt copy of tho suggestion made therein
is hereunto annexed marked B. And
further take notice that jou are re-
quired to appear in the said Court to
the said action within ten days after
the service of this notice, inclusire of
the day of such service, and tliatin
default of your so doing, I, the
plaintiff, may sign judgment against
you as such executor ns aforesaid"-
(see Chit. F. 7 Edn. 842.)
(0 t. e. If the writ be specially In-
dorsed judgment under s. xli, but if
not then proceedings under s. Ix.
(m) See note i, supra.
(n) The words in brackets are not
in the Eng. C. L. P. Act. The time
limited for pleading is similar to that
appointed in ordinary cases: (sees.
cxii.)
•i"'*,'
DEATH OF SOLE DEFENDANT.
879
j,ccxi-]
ffffestion [within eight days after service of the suggestion] ; (o)
i in case the Defendant shall have pleaded before the death,
tie Dew Defendant shall be at liberty to plead to the suggestion
»lv fand within eight days after the service thereof,] (p) by
,.y of denial, or such plea as may be appropriate to and ren-
necessary by his character of executor and administrator,
by leave of the Court or a Judge he should be permitted (/,>
to plead fresh matter in answer to the declaration ',\q) and in -^ "
»jgethe Defendant shall have pleaded bef""e the death, but the if defendant
flfs shall not have arrived at issue, the new Defendant, "* ^.
>s pleading to the suggestion [within eight days after the
service thereof] (r) shall continue the pleadings lo issue in the
same manner as the deceased might have done, and the plead-
ifl '8 upon the declaration and the pleadings upon the suggestion
stall be tried together ; (s) and in case the Plaintiff shall re- jf puinuff
cover be shall be entitled to the like Judgment in respect of
the debt or, sura sought to be recovered, and in respect of the
costs prior to the suggestion, and in respect of the costs of the
succestion and subsequent thereto, as in an action^ originally
P'
?recovt)r.
"00
COlBi
meoced against the esecutor or administrator. ^<) '
A>
§/3^.
lo) Words in brackets not in Eng.
C.L.P. Act.
(P)
(q) The ennctmeot is very explicit.
The representative must be governed
bv the state of the suit when he is made
t party. 1. If before decclaration,
he wih have eight daya to plead
both to the suggeation aud to the de-
clariitioD, to the latter it is presumed
any defence open to the deceased. 2.
If after declaration he will be precisely
in the samo position. 3. But if after
plea then be will not be allowed to
plead fresh matter to the declaration
unless by leave first obtained. 4.
Whenever he may plead to the declar-
atioo, it is apprehended he may demur
if there be ground of demurrer, though
the right so to do is not in express
words given : see BarllHl v. Pentland,
1 B. & Ad. 704. 6. The suggestion
being traversable, no matter at wlint
stage of the cause made, may be tra-
versed independently of any other
pleas pleaded.
(r) Words in brackets not iu Eng.
C. L. P. Act. /
(a) The proceedings on the sugges-
tion will of course be collateral to the
proceedings in the cause, though the
latter must nncessarily be dependent
upon the result of the former. It is
not declared that a separate notice of
trial shall be necessary for each set of
pleadings. The notice of trial being
as to the trial of the cause, and both
sets of pleadings forming only one
cause, one notice would it is conceived
be sufficient.
(/) " And in case the plaintiff shall
recover," &c. Some difficulty arose
upon the construction of the Eng. C.
L. P. Act, owing to the absence of all
mention in the Act about costs in the
event of the substituted defendant suc-
ceeding on the trial. But upon much
consideration it was held xhat the de-
fendant, when successful, was as much
entitled to cost:* as plaintiff would be
if successful : (Benze v. Swaine, 15 G.
B. 784, 26 L. &, £q. 808.) Therefore
880
THE COMMON LAW PROOEDURK ACT.
[s. ccxii.
^. c'r\1r i^TofL.^! CCXII. (u) The death of either party between the verdict U
V ^ ^•^•**''*»«-i''9-and Judgment (w) shall not hereafter be alleged for error ( \
tween vvr>
diet •nd
Jttdgmtint
, r
«.*!5»'
80 as such Judgment be entered within two terms after g
verdict, (y)
where an administratrix had been made
defendant, in an aoMon oommenoed
againitt the intestate, and she pleaded
to the Buggestiun, the Court would not
allow the plaintiff afterwards to dia-
ooDtinae without pajrment of all the
costs of the cauae : (/&.)
(u) Taken from Eng. Stat. 16 & 16
Vie. c. 76, 8. 189. — Applied to County
Courts. The origin of the section is
17 Car. II. 0. 8, s. 1, which was held
not to apply to the case of a party
dying after an interlocutory, but before
final judgment: [Ireland v, Champneys,
4 Taunt. 884.) For this provision is
made by the following section (ccziii).
The death of either party before the
assizes is not remedied by the Statute :
iAnonymoui, 1 Salk. 8;) though a
eath after the commission day of the
assises but before verdict is within the
Statutd ; for the assizes have relation
to the first day thereof: (Jacobs v.
Minieoni, 7 T. R. 81.) The English
sittings in term are not I' owever consid-
ered in the same light: {Taylor v.
JIarria, 8 B. & P. 649; Johnaon v.
Budge, 8 Dowl.P.C.207; but see Chee-
thamv. Slurlevant, 12 M. & W. 616.)
(v) This section, unlike the follow-
ing one,i!j not reiitricted to such actions
as executors might prosecute. It ex-
tends to verdicts in actions for torts as
well as on contracts : ( Palmer v. Cohen,
2 B. & Ad. 906) but does not extend to
nonsuits in any action : {Dowbiggin v.
Marriaon, 10 B. & C. 480.)
(w) The word ''judgment" has been
held to include a decree in equity :
{Owen V. Curzon, 2 Vein, 237.)
(z) A verdict obtained after death
of a party cannot under any circum-
stances be set aside as an irregularity :
(Com. Dij;. "Abatement," H.82.) Un-
less the case be within thi:i section,
wherevf>r the fact of death appears
upon the record, the remedy is by writ
of error or arrest of judgment : {lb. ;
see also Berwick v. Andrem, 1 ^M
(y) The judgment to be > v,i|.M.
must be entered within two terms «(>
verdict. The Courts rill notX 2
judgment to be entered nunc pro /«,,
unless the delay bethatof theHUvm.
party: (Bull v. Price, 7 Binir 24?
or of the Court: {Doe d. yl/ ''i'
Cm;„7Dowl. P.C.684; l/a.!!:
Utathorpe, 1 D. & L. 529; laZTn'
Audley,2U.!iyi.m\ZZ\
Tregonning, 4 A. & E. 1002; bridal',
V 5«.i^<A 8 Bing. 29; Vaugha,^^
Wilaon, 4Bing. N. C. 116; V,L
Bough, 8 D. & L. 105; Freeman,
Frank, 21 L. J. C. P. ^i;ml:
WiUiama, 9 Q. B. 47), but cert«ini;
not where laches are imputuble to the
party interested : {Lawrence v. //gl
son, 1 Y. &J. 868: Copln, v. Day I
Taunt. 702; Wilkinav. Caury, IDowI
N. S. 865.) The judgment if entered
up within the time limited is equiva-
lent to ft judgn>-nt entered up iu the
life-time of tbv ..irty: (Burnett. Uol.
den, 1 Lev. 277 ; CoUheek v. Peck 2
Ld.R,iyd.l28U ; Saunderay.MeGowran
12M. &W.221.) But where the plain:
tiff dies after verdict, the Court might
grant a new trial on the application
of the defendant, and would t'urtnerlv
in such case impose terms upon him to
prevent his taking advantage of the
plaintiff's death : { OriJJlth v. WUlinn,!,
1 C. &J. 47.) In such cases umier the
present Statute it is apprehended the
executor or administrator of plaiutiff
would become a party to the judg-
ment. If a cause be referred to
arbitration by order of nisi priut, it
is no ground for setting aside the
award that it was made alter the
death of one of the parties : (see Jumit
at. V. Crane et al, 16 M. & W. m.]
So where after a verdict for plnintiff
with leave to move for a non-i-uit or
verdict for defendant, defendant died
:• ■!
; i
^jiii.] DEATH AFTEB INTXBLOOVTORT JUUQMKNT.
881
CCXIII. (z) If the PlaiDtiff in any action happen to dio ^«»«j,<*;^c) c»*^ ^riai ^
^jfaDintorlooutory Judginoat and beforo a finalJudgmont A"***"-**^ ** * * '^' **
(btalned therein, (a) the action shall not abate by reason thereof, IJ**",,"" *^ *^' '*'* '^ '
if juch action might be originally prosecuted or maintained by * f-iocuf —
tiie executor or administrator of such Plaintiff; (b) and if theJudumtni
die after such interlocutory Judgment and before And ird»fen-
«■.._- il&Mft BA ill
,4mI Mdto.
Iff
^/4V
{DalJa(}?i°^°'^^^^''®^" ^^^'"^^> the action shall not abate if
jBch action might be originally prosecuted or maintained
iniust the executor or administrator of such Defendant '/|^c)
tnd the Plaintiff, or, if he be dead after suoh interlocutory
Judgment, his executor or administrator, shall and may have
avrit of revivor in the form contained in the Schedule (A) to
tbi^ Act annexed, marked No. 11, or to the like offoot, against
the Pefeodant, if living, after suoh interlocutory Judgment, or
if he be dead then against his executors or administrators, to
show cause why damages in such action should not bo assessed
and recovered by the Plaintiff, or by his executor or adminis-(^i %/^/
tratorf|[<0 ^^^ ^^ ^"^^ Defendant, his executor or adminis-
trator, shall appear at the return of such writ, («•) and not show
before a motion could be mndo and the
rule flMi was afterwards obtained in
bis name : Held that the rule might be
Hill miide absolute to enter a verdict
for defendant, it appearing that the
urctttors authorised the motion :
IFmmanx. Rosher, 13 Q. B. 780.)
(2) Tnlcen from Eng. Stat. 15 & 16
Tic. c. 76, 8 140.— Applied to County
Courts. The origin of the section is
849 Will. III. c. 11,8. 6.
(«) Death before interlocutory judg-
ment aclmlly signed is not within the
Statute: ( Wallop t. Irwin,\ Wila. 816.)
(/;) The operation of this section is
restricted to actions which might be
originally maintained by an executor
or ndmiuistrator, and in this respect
differs from the preceding section: (see
note V to 8. ccxii.) Libel, for exam-
ple, appears to be an action that can-
not be so maintained': {Ireland t.
Champneys, 4 Taunt. 884.) Actions for
torts to the person generally die with the
person. Certain exceptions are cre-
ated by a Statute intitled, " An Act
for compensating the families of per-
sons killed by aooident and for other
purposes therein mentioned : (10 jt 11
Vic. 0. ) Actions for wrongs in r«>
speot of property real or personal 8ur>
viye under certain UmlUtions : (7 Wm.
IV. cap. 3. 8. 2.)
(r) Such d^fmdantt intending a sole
defendant, but will, it is apprehended,
equally apply to the death of a re-
maining defendant whore the others
have previously Med. In England and
in Upper Canada an action mny be
continued against a surviving defend-
ant : (8 & Will. III. 0. 1 1. s. 7 ; Eng.
C. L. l». Act, 1862, 8. ISO; Can. C.
L. P. Act, 1860, s. ooix.), but not in
Ensland against tho representatives of
a deceased co-defbudant : {Part T.
Oliver, 1 M. & S. 242), though the
contrary rule prevails in Upper Can-
ada: (I Vic. 0. 7.)
{d ) This is similar in terms to the
form of art. /a, under the old pracUoe :
{Smith V. Harmon, 1 Stilk. 816.)
(f ) Within ten days after the servioe
thereof : (see form in Sohadule.)
•!■, "■.
882
-THE 0OMMOI7 LAW PROOIBURK AOT.
it:. .'• m
.( ■!:■
or allege any matter sufficient to arrest the final Judgment ( A
or shall make default, the damages shall be assessed, V«) o (
amount fur which final Judgment is to be signed shulj b *
ferred to the proper officer as hereinbefore provided • (h)
after the assessment had, or the delirery of the order with tli
amount endorsed thereon to the Plaintiff, his executor '
administrator, final Judgment shall bo given for the P'.aint'ir
his executor or administrator, prosecuting such writ of rev! '
ft. against such Defendant, his executor or administrator rp«»,-/
•s/n. tively.^0 ^'•
, «^ S\i) ^ SjUV L V ^^^^^' ^-^"^ '^^® marriage of a woman Plaintiff or Defend.
lU.c.e/i.,, A.i852,Vi4i! ant shall not cause the action to abate, but the action tna
MarridReof* notwithstanding, be proceeded with to judgment, (k) and such
tiff™doVl.na." judgment may be executed against the \ ife alone, (I) or by
"*• suggestion, (m) or writ of revivor pursuant to this Act, («)
judgment may bo obtained against the husband and wife and
execution thereon ; (o) and in case of a judgment for the wife
•C. efj. vx.
,1 • . » ■
r • ■ *B
**?;t'*"/|| im\
1
i
1
if:
■ ■"'
1
■ i i '
(/) No defence open to the deceas-
ed defendiint but not made use of by
bim would be here ndmissible.
(ff) According to the practice in
force before thid Act, which ia not al-
tered by tho Act.
(A) I. e. Under s. cxiiii.
(i) The fruit of the judgment will be
of course the execution, as to which
see 8. olxxzii. etaeg.
(j) Taken from £ug. Stat. 15 & IG
Vic. 0. 76, 8. 141. — Applied to County
Courts.
(A;) This is in substitution of therulo
at common law which was quite the
reverse of this enactment.
(/) Unless the wife have separate
property, it would be useless to issue
an execution against her alone: (Ed-
win T. Cheater, Dowl. P. C. 140;
Edwardt t. Martin, 2 L. M. & P. 669 ;
Ivena t. Butler tt ux. 28 L. T. Rep.
282), but if so issued may be in her
maiden name : ( Thorpe v. Arglci^ 1 D.
& L. 831.)
(m) Under s. cciii. The suggestion
may be in this form — And now on,
&o., the plaintiff gives this honorable
Court to uuderstoud, &c., that on, &c.,
(after the giving of judgment Aer«n)C D
married one E. F., and that the said
plaintiff is entitled to have execution
of the judgment aforesaid ngainst the
said E. F. and C. D. his wife. There-
fore it is considered by the Court thit
the said plaintiff ought to have execu.
tion against the said E. F. and C. D
bis wife. Qu. Should not the a'lcged
husband have a right to trnTerse the
suggestion? — See notes c and rfto g.cei
(«) Under s. ccv.
(o) The principle that a judgment
debt belongs to the husband if he uiarry
a judgment creditor, or is payable hy
him if he marry a judgment debtor, in
either case renders it necessary that
he should be made a party to the judg-
ment The marriage of a fmt mk
never did, it seems, ipso facto abate i
suit: {Leey. Maddox, 1 Leon. 168),
but might be pleaded in abatement :
{Morgan v. Painter, 6 T. R. 2«5 ; Uol-
lit V. Freer, 5 Dowl. P. C. 47), and if
not pleaded did not affect the suit:
(Walker v. OoUing, 11 M. & W. 78)
Still the marriage of a /erne sole plain-
tiff after judgment rendered it neces-
sary for her husband to join her in
^r] RIQIIT TO OOMPIL PLAINTIFP TO PROCEED. 888
aecatioQ in*y ^ iuaed thereupon by the authority of the
I JiiDd without any writ of revivor or suggestion ; ( p) and
i/ioiny'uoh action the wife shall sue or defend by Attorney
upjinted by her when sole, such Attorney shall have authority
iD(00tiDue the action or defence, unless such authority be
«)iia(ermaDded by the husband, and the Attorney changed
itcording to the practice of the Court, (jj)
CCXV. (/) Where an action would but for the provisions of
lliij Act bave abated by reason of the death of either V^^^y^JI'^o"i.^i>^'^^Ll'^/Ji'\'
lod in which the proceedings may be revived and continued a- ^'^■•*3.
bercbT) (<) (^^ defendant or person against whom the action nixhtof d«-
guiybeso coutinuod may apply by summons (t) to compel the ocUou wbtoh
njtiotiff or person entitled to proceed with the action to proceed «b«ted but
larding to the provisions of this Act, within such time as
^1
CtnxSim^t gin.
u.a.ek C2
nittg out « «<*t. fa. for eiecution :
(H'lKx/yiv T. Oreiham, 1 Sulk. 116),
but the busbHnd alone was entitled if
N minded to iuue the »ei. fa.: (lb.)
Sowbtn k/eme«o/« defendant marriea
illtr jadgmsut a »ei. fa. might be is-
iaed»g«i>>*t both husband and wife on
t^ijaJgmtnt : (/A.) And if after
in./a. tbe wiA) died, the husband alone
fu litble to eieoution : (lb.) But if
the huabaud were not made a party to
the judgment during the life time
of hii wife he oould not and can-
Bot after her death have a tci. fa.
inless he tikke out letters of adminis-
tration to her estate : (BetU v. Kimp-
lon, i U. & Ad. 273. ) It was also held
that if aftvr the entry of judgment
igninst* woman dum tola she married,
plaintiff might if so disposed proceed
igitinst hor without joining the bus-
baud: (Cooper y, Hanchin, 4 East. 621.)
So In (•jeotment ngainst a feme aole who
marritd after judgment, plaintiff had
the right to is!«ue a writ of possession
vithout noticing her husband: (Doe
Tttjgarli, Buteber, 8 M. & S. 667.)
(;>) This is new. It is not stated
vhetlier the execution should be in
the joint names of husbnnd and wife
or Id tlio name of one only. It is only
provided that it may issue by the
kulbority of the husband without any
writ of revivor, &o. The general
rule is that the execution must follow
or correspond with the judgment.
It may bo mentioned that a warrant
of attorney to confess judgment given
bv a feme aole has been held to be re-
voked by her marriage before judg-
ment: {Anon. 1 Salk. 117,) a/<t«r if
given to her: (Tb. also Metcalfe etaly.
Boote, 6 D. & R. 46.)
{a) No attorney can be changed
witnont the order of a Judge (N. R. 4.)
(r) Takec from Eng. Stat. 17 & 18
Vic. 0. 125, 8. 92 — Applied to County
Courts.
(*J See ss. Ixzvi., ccviii.,-ccxiy.,
ooxhv.-ccliii. incl.
(<) Bt/ tummons, i. e. to a Judge in
Chambers. The summons may be in
this form — Upon reading, &o., let the
plaintiff's attorney or agent (or if dead,
" Let E. F. of, &c." the legal represent-
ative of the deceaned), attend Judge's
Chambers to-morrow at twelve o'clock
noon, to show cause why th<) plaintiff,
(or the aaid E. F.) should not proceed
with this action according to the provi-
sions of the Common Law Procedure
Act, 1856, within — days from tbe
service hereof, or within such other
time as may be ordered in that behalf:
(Chit. Form. 7 £dn. 843.)
884
^'/ */f>^
! 1 1
TUI COMMON LAW PROOKDUBE ACT. [g. qq, •
the Judge shall ordor'/'(u) and in default of such proceedin
the defendant or other person against whom the action may U
so continued as aforesaid {v) shall be entitled to enter a HutrirM
tion of such default, and of the representative charaotorof th
person by or agp'nst whom the action may be proceeded with
as the case may be, (tr) and to have judgment for the ooati of
the action against the plaintiff or against the person entitled to
proceed in his room, as the case may be, and in the latter case
^^\/j^v to bo levied of the goods of the testator or intcstate.'^x)
ft^'Jtr «S^o^^^^ CCXVI. (y) Proceedings against Executors upon a Judg.
^ */c.^ AgiiTt Kxll went of assets in /uiuro (z) may be had in the manner herein
Agki
cuton •■ to
(u) The order may be thns — Upon
hearing, &o., I do order that the plain-
tiff (or £. F. of, &o.) do proceed with
this action according to the provisions
of the Coinmon Lr.w Procedure Act,
1850, within — days from the date
hereof.
(v) See note «, aupra.
{w) The suggesttiin may be as fol-
lows — And now on, &o., C. D. suggests
and giTes the Court here to understand
and bo informed that the defendant
died after the said issue was joined
{according to ihefaclU and that on,&c.,
an order was made by the Honorable,
&c., at the iuHtance of the said C. D ,
that the plaintiff (according to the/act)
should within, &o., proceed with this
action according to the provisions of
the Common Law Procedure Act,185C.
And the said C. D. further suggests
and gives the Court here to understand
and be informed that the plaintiff {at
the fad may be) did not, pursuant to
the said order, within, &c., or at any
other time after the making of the
same, proceed with this action accord-
ing to the provisions of the Common
Law Procedure Act. 1856, and therein
made default, and that the said C. D.
is the executor of the last will and tes-
tament of the defendant (a« the fact
nay be). And the said C. D. prays
judgment for the costs of this action
and of the said suggestion. Therefore
it is considered that the said C. D. do
recover against the plaintiff (a« the
fact may be\ £— for the cogt8 of thi
defence to this action ami of th« tmij
suggestion : (Chit. Forms 7 Edn. 813 )
(z) See preceding note. ''
(y) Taken from Eng. St. 17 4 18
Vic. 0. 126, s. 01.— Applied to Countr
Courts. ^
(f) In an action against an executor
if he plead plcne admiitravit, It is for
plaintiff, if the plea be sufficieDt,«>iiher
to admit or deny it. If he admit it iie
takes judgment and prnys that the
debt may be levied of such asiieta as
may •• afterwards " come to the bands
of the executor to be admioiiitured :
(2 Wms. Saunders, 210, n. 2.) But if
plaintiff deny the plea, and the issue
be found against him, he caunot
have this form of judgment: (Ib.iM,
n. I.) Supposing plaintiff to admit the
plea and to enter up judgment qum-
do aceiderint, if assets do cuuio to
the hands of the executor, pnintiff
may proceed under this sectiou by
writ of revivor. The proof of the ex-
ecutor having received assets ia al>
ways confined to a period tubt(qui,'t
to the judgment : ( Taylor v. Ilolman,
Bull N. P. 160.) It is right that such
should be the rule of law, fur if the
creditor were permitted to litigute t
second time, that which has been once
settled between the parties either by
verdict or admission, an eiecutor
would be harrassed and iovolved ia
infinite expense and litigation : (Man
V. Quin, 6 T. E.I.) However, it vaa
I jQjyii.] ARBI8T or JUOOMINT.
prorided M to Writa of revivor, (a)
(b) And with reapeot to the procoodiDgs upon motioni to
886
MiMti in
/uiwo.
obMrred br Lord Kenyon, that It oo-
eartd to him on looking into the pro-
M(l«nU that the ordinary mode of
tnterinu up a judgment of aueta guan-
io acciderint was not correct, beoauae
oo thf isiu* of pl«ne admmittravit, no
(TiJence could be giten of aaseta after
tlie vrit sued oat, and if the Judgment
were only to affect aaseta received
tftir the Judgment, there would be an
lDt«ml between the commencement of
the action and the Judgment, in which
if the executor received anv aaseta,
they could not be taken at all. There-
fore it was his opinion that the Judg-
ment should be so entered up as to
retch all assets received by the execu-
tor after the time of suing out the writ.
Whereupon Mr. Justice Ashurst ob-
terred tW as the plea otplene admin-
utravilyfM that "the executor hath
not nor had at the time of the suing
out of the writ, nor at any time tinee,
my atutt, ^-c," he saw no objection
to the plaintiff's replying to the latter
part of the plea, *' that tne executor had
auttiiinee, ^e." if the facts were so':
[Mara t. Quin, ubi lup.) If upon the
vrit of reTivor, assets be found in part
plaintiff may have Judgment to recover
that part in4<an<er, and the residue of
the demand in/u<vro ; (^Noel v. Nelton,
2Wms.SauDd. 226.)
(a) See ss. cciv.-ccvii. All the pro-
ceedings necessanr under the old prac-
tice, will be found reported at length
in Notl V. Nelton, 2 Wms. Saund.,
214.
(b) Either party to a suit with re-
ference to the pleading of luaiidver-
sary is entitled to question its suffici-
ency in point of faot and in point of
law. To do the one is to plead. To
do the other demur. A party may now
by leave of the Court or a Judge plead
and demur at the same time: (s.
cxzix.) But demurrer is not the only
remedy given to a party who intends to
object to the legal sufficiency of his ad-
versary's pleading. It is a well settled
Z
principle in pleading that upon the
whole record there must be uitioloied
a legal cause of action and ground of
defence. It is in the power of the
Court after verdict upon the applica^
tion of cither party to review all the
pleadings, and according to their legal
sufficiency or insufficiency to arrest,
reverse, or sustain the Judgment. Often
the exercise of this right of review at
the instance of one partv wrought »
serious injustice upon his opponent.
The effect of it was to suffer with
impunity a party to an action, con-
scious of a defect in his adversary's
case, for the time to pais it by and
first raise the objection when that
adversary had succeeded in obtain-
ing Judgment in his favour. Where*
as the objection, if taken before ti-ial,
might have saved to both parties the
trouble and expense of a ti-ial upon the
issues raised. Such a course of pro-
cedure was felt to be a reproach to
our system of jurisprudence. As a re-
medy the C. L. Comrs. though recom-
mending the preservation of the right
to arrest Judgment and to move for
Judgment nan obitante veredicto, added
the qualification that the motion be
allowed *' only upon terms of payment
of all the costs, including those of
trial, incurred since tlie pleading to
which the party takes exception."
They further recommended that if the
motion were grounded upon the omis-
sion of some material statement of fact
provision sheuld be made for the sug-
gestion and trial of the fact, though
the cause of action had been previoubly
submitted to ajury. These suggestions
have been in effect adopted by the Le-
gislature in the three following sec-
tions.
Since the law as to arrest of Judg-
ment, Judgment non obstante, and re-
pleader is preserved and necessary to
be understood before applying the re-
medy provided by this Act, it is pro-
posed to make brief allusion to it :
i
f- r
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386 THE COMMON LAW PROOEDTIRE ACT. [g. ggj^-
arrest the Judgment and for Judgment non obstante veredicto •
First — Arrest of Judgment. This is a
proceeding to be had at the instance
of an unsuccessful defendant. The
substance of the application is that the
judgment for plaintiff be arrested or
withheld on the ground that there is
some error appearing on the face of the
record which vitiates the proceedings :
(Steph. PI. 96.) The error or defect
must be one of substance, else the ap-
plication will not be entertained :
(Craskey. Johnson, 2 Buls. 74; Mus-
ket V. Cole, Cro. Elia. 133 ; Hopkins v.
Stapers,Ib.22'd', Law\.Sanders,Ib.91S',
Tai.khom\. lfirt^^,Cro. Jttc.406 ; Vivian
V. Shipping, Cro. Car. 384 ; litckler v.
Angil, 1 Lev. 164; Lea v. Welch, 2 L.
Ray. 1516.) Under certain circum-
stances the error or defect may be
taken to be cured after verdict or by
defendant's pleading over. Hence it
follows that there may be a pleading
which, though clearly bad on general
demurrer, cannot be taken advantage
of by motion in arrest of judgment.
And yet it is not the bare fact of de-
fendant pleading over or of a verdict
being given that cures the defect or
error. The rule is this : *♦ Where th:.-re
is any defect, imperfection, or omission
in any pleading, which would have
been a fatal objection upon demurrer,
yet if the issue be such as necessarily
required on the trial proof of the facts
80 imperfectly or defectively stated or
omitted and without which it is not
to be presumed that either the Judge
would direct the jury to give, or the
jury would have givea i!>r .erdic^r'<cA
defect, imperfection, or omission is
cured by the verdict : " See Mornington
V. Wilham, 1 Vent. 108; Jieeley. Simp-
son, Lut. 632 ; Norden v. Fox, 3 Lev.
893 ; France v. Stringer, Cro. Jac. 44 ;
Mascot V, Ballet, /A. 369 ; Mathetcson v.
Rowe, lb. 124; Slack v. JJoowal, lb.
C68 ; Badcock v. Alkiyu, Cro. Eliz.416 ;
Alston V. Buscoui/h, Cartli. 304 ; St,
J- iiiv. St. John, Hob.V8; Cooke v. Pet-
it, 2 Wil.s.6; Anon. 7/>.150 ; Rne v. Nor-
sry, 3 WilH.275 ; Jiu.shton v. Aspinall, 1
Doug. G78 ; Collins v. Gilbs, 2 15urr.
899 ; Weston v. Mason, 3 Burr 172<i
Spiers y. Parker, 1 T. R. 145.' pj '
V. King, 8 T. R. 147 ; Rawsony.JoZ
son, 1 East. 209 ; Ferry y Willia
8 Taunt. 62; MacMtirdo y. Smith li'
R. 618; Jackson v. Pesked, 1 M \ a
234; Ameg v. Long, 9 East. '473!
Lambert v. Taglor, 4 B. & n na'
Dalby '- Hirst, 1 B. & B. 224- S
V. Howard, 4 B. & Aid. 655; IKA;"
head y. Oretham, 2 Bing. 464 ; Pg^
worth V. Chester, 4 B. & c. 555'
Williams r. Oermaine, 7 B. & C 468-
Whitworth v. Hall, 2 B. & Ad 69^'
Tebbutt V. Selbg, 6 A. & E. 786- Tav
lor V. Devg, 7 A. & E. 409; Wriahty
Goddard, 8 A. & E. 145; Laddl'
Thomas, 12 A. &E. 117; Cambie y
Barry, 5 Ir. L. Rep. 84; Barriey
Cambie, 6 Ir. L. Rep. 34 ; and for de^
cisions in Upper Canada see R. & h
Dig. "Arrest of Judgment.") Of
course if the defect or omission be
cured after verdict, that fact vill be a
good answer, as much now as before
this Act to an application for arresting
plaintiff's judgment. If not cured
then it is for plaintiff to avail himself
of this Act by suggesting the omitted
fact and having the same tried.
Secondly — Judgment non obstante ve-
redicto. This is a proceeding to be bad
at the instance of an unsuccessful
plaintiff. The substance of the appli-
cation is that judgment be given in
in plaintiff's favour without regard to
the verdict obtained by defendant;
(Steph. ri. 97.) There must be an
express confession of the cause of ac-
tion to entitle a plaintiff to this form
of judgment : ( Wilkes v. Broadbent, \
Wils. 63 ; Dighton y. Bartholomeu',CTO.
Eliz. 778 ; Atkinson v. Davies, 11 M.
& W. 236 ; Pim y. Grazebrook, 2 C.
B. 429 ; Evans v. Kingsmill, 3 U. C. R.
118.) The confession must be either
in the plea said to be insufiicient :
(Down V. Hatcher, 10 A. & K. 121;
Negelen v. Mitchell, 7 M. & W. 012;
Jones V. Broadhurst, 9 C. B. 173 ; Wdb
v. Spicer, 13 Q. B. 880 ; Milncs v. Law-
^gj^ii,] JUDGMENT NOX OBSTANTE.
5e it enacted as follows:
387
.,5 Ex. 948; Manley^.
'f^'l Q. B. 265), or it
Boycott^ 22
seems, ua-
, peculiar circumstances, in some
J. J, plea on the record : (Goodburne
! Bowman, 9 Bing. 532 ; Coulin,q v.
II 6C. B. 703; Crossfield x. Mor-
;i 7 C. B. 236 ; McClurc v. Ripley,
tPj, 140; Bonar v. Mitchell, 6 Ex.
415 ) And the pleading itself must be
la confession and avoidance. Though
' jjfendant traverse one of several tra-
versable allegations in a declaration or
replication he admits for some pur-
Jj, those which he does not traverse,
vet be does not confess them in the
sfiise ffliich is required to entitle
il Miff to move for judgment non ob-
ligate veredicto : {Bennett v. Uolbeck,
Sffms. Saunders 319, e ; see further,
j(',/tov.5roa(?6en<,lWil3.63 ; Lacyy.
Rmolds, Cro, Eliz. 214 ; Dighton v.
Bwiholomew, lb. 778 ; Kez. v. Philips,
gtta.394 ; Cleares v. Seevens, 8 Taunt.
113 • Lewis V, Clement, 3 B. & Aid.
70'' Richards V. Bennett, 1 B. & C.
233'; Drayton v. Dale, 2 B. & C. 293 ;
liid(rt^.T^mlor,4: B.& C.138 ; Gwynne
V Bmell, 6 Bing.N.C. 453 ; Harris v.
Gooiinjii, 2 M. & G. 405; West v.
likkmay, lb. 729 ; Rawlon v. Went-
rnih, 10 iM. & W. 36 ; Down v. llatch-
(r.lOA. & E. 121; Wain v. Bailey,
Ih. 61G ; Adams v. Jones, 12 A. & E.
45!);i«w« V. Reilly, I Q. B._349.)
Iftlierebeno sufiBcient admission of
of the cause of action, it is in the
I power of the Court to award a replead-
1 er; [Rutland v. Bagshaw, 14 Q. B.
If there be other pleas on the
I record than that upou which plaintiff
I has obtained judgment non obstante
KwMo, and the action be for unliqui-
dated damages, the judgment is inter-
llocutory not final, and plaintiff may
[without leave of the Court proceed to
[assess his damages : [Shephard v.
Uhlls, 2 Dowl. r. C. 453), but if the
jaetion be one in which plaintiff is cn-
ItitlcJ to nominal damag :4 only, the
iTerdict for defendant '-^'ill be set aside
land one entered for plaiitlrt' by the
iCourt: {Selby v. RoUnson, 2 T. 11.
758.) After judgment non obstante
vi^redicto, a defendant is too late to
move for a new trial : (Pim v. Reid,
6 M. & G. 1 . ) If the judgment be re-
versed in a Court of error or appeal
defendant will be entitled to the costs
of the rule for judgment non obstante
veredicto : lEoans v. Collins, 2 D. & L.
989.)
Thirdly — Repleader. This is a pro-
ceeding to be bad at the instance of
either plaintiff or defendant when un-
successful. The application is in sub-
stance that the issue joined and found
for the successful party was on an
immaterial point, and one not proper
to decide the action : (Steph. PI. 98.)
In such a case the Court not knowing
for whom to give judgment will award
a repleader, that is, will order the par-
ties to plead de novo for the purpose
of obtaining a better issue : (2 Wma.
Saund. 392, b. n. ; Kent v. Hall,
Hob, 113; Anon. 2 Ventr. 190; Ste-
phens y. Cooper, 3 Lev. 440; Ens v.
Mohun, 2 Str. 847 ; Plomer v. Ross, 6
Taunt. 385; Clears v. Stephens, 8
Taunt. 413 ; Lambert v. Taylor, 4 B. &
C. 138; Doogoody. Rose, 9C.B. 132.)
It ia a rule that a repleader will not be
granted except where complete justice
cannot be otherwise obtained : ( Good-
burne V. Bowman, l^ Bing. 532 ; 2
Wms. Saunders, 319, b. n. ; Gwynne
V. Burnell, 6 Bing.N. C. 453.) Thus
it will not he granted because there is
one immaterial issue, provided there
be others material: (Negelen v. Mit-
chell, 7 M. & W. 612 ; Crosxfield v.
Morrison, 7 C. B. 280.) Nor will it
be granted in favor of a party who
makes the first fault iu pleading : ^2
Wms. Saunders, 191), but this rule
only holds good where the material
issue is found against such party :
{Gordon v. Ellis, 2 B. & L. 308.)
Defendant iu an action of debt plead-
ed several picas in bar, to one of
wliich extending to the whole cause of
action plaintiiF demurred, and on the
ethers issues iu fact were taken. Do-
:-rA^
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388
¥
THE COMMON LAW ^ROOEDUBE AOT.
[B.COXvii.
DK. 0. L. i^. CCXVn. (c) Upon any motion made (d ) in arrest of Judg.
8.143. ment (e) or for Judgment non obstante veredicto, (/) jjy -g.^
Proceedings of the non-averment of some material fact or facta nr i«.i • ,
in arrest of allegation (^) or other cause, (h) the party whose pleadin '
(Jpp. Ob. C)
ifendant had jadgment on the demurrer
the Court holding the declaration bad.
Th i SBues of fact were tried and found
for the plaintiff, excepting one extend-
ing to die whole cause of action which
>wa8 found for defendant and immate-
rial. Plaintiff to avoid paying costs on
this issue moved for judgment thereon
non obstante veredicto, or for a replead-
er: Held that judgment non obstante
could not be awarded, as it would be
inconsistent with the judgment already
given that plaintiff should not recover,
and that a repleader could not be
awarded, as the parties tiust in that
case 'be ordered to replead from the
plea downwards, and such direction
would lead to an absurdity on the re-
cord, since the court had already held
the declaration bad: {Willoughbtf v.
Willouffhby, 6 Q.B. 722.) If on a re-
plication to a plea substantially bad an
immaterial issue be found for defend-
ant, and the declaration be good de-
fendant cannot have any judgment:
(Benson v. Duncan, 18 L. J. Ex. 169.)
(c) Taken from Eng. Stat. 15 & 16
Vic. c. 76, e 143.— Applied to County
Courts. — F-iunded upon Ist Rep. C. L.
Comrs. 83. 86-87- The enactment is a
most useful one, and will enable the
• Courts to dispose of cases finally upon
their merits : (Manley v. 5oyco<,Camp-
beU, C. J. 2 El. & B. 59.)
(d ) No motion in arrest of judgment
or for judgment non obstante veredicto
shall be allowed after the expiration
of four days from the day of trial if
the cause be tried in term, and there
remain four days in term after the
trial ; or when the cause is tried out
of term after the expiration of the first
four days of the ensuing term, unless
in either case entered in a list of
postponed motions by leave of the
Court: (N. R. 40.) This was the
old rule: (^Thomas v. Jones, 4 M. &
W. 28.) The motion cannot be made
after the time limited unless bv pn„
sent : (Harris v. the Great Northenil'
Co. 21 1. J. C. P. 16.) Thei ■
may be made after a judgment by d^
fault as well as an ordinary judemlf
after defence, but cannot bemadeaftl
a judgment on demurrer, for any fnni
that might have been taken advantaw
of on the demurrer : (Edwardt y BlJt
\Zi. if,] "■'"'•' '■ '«*
(c) As to which generally see div I
of note b, ante. In the Eng.C.L.P. Act
a reference is here made to Eng. St, i
Wm. IV. c. 7, us to issuing immediate
execution.
(/) As to which see div. II. ofjame
note.
(g) For examples see Galloway y
Jackson, 3 M. & G. 960 ; Laddy. Tho-
mas, 12 A. & E. 117; It eland y.Hanis
14 M. & W. 432 ; Doe Medina y.Gml
15 L. J. Q. B. 284 ; Davies v. William>
10Q.B. 725. It has been held after
verdict in the case of several counts in
a declaration, some bad and some
good, that there cannot be an arrest of
judgment but a venire de novo : (Em-
blin V. Dartnell, 12 M. & W. 830)
and that in the case of one count con-
taining several causes of action, some
good and some bad, tlie Court will
neither arrest the judgment nor grant
a venire de novo, inasmuch as it Till
be intended that the damages were
given in respect of the good causes of
action only : (^McGregor y. Grava, 3
Ex. 84 ; Kitchenman v. Skeel, lb. 49.)
(A) The relief may be obtained i nder
this section upon any motion in arrest
of judgment by reason of the non-
averment of some material fact or
facts, &c., '^ or other cause." Qu. Does
this mean that in every case of a mo-
tion to arrest judgment, &c., a sug-
gestion of what is necessary to re-
medy the defect may be entered ? If
so, the Act proceeds further than to
SUaOBSTION OP OMITTED PACTS.
389
or
forjudgment
tavti.
5, ccxvii.]
jleged or adjudged to be therein defective, (t) may, by leave g^^^^
f the Court, suggest the existence of the omitted fact or facts »"»» '*'*
orother matter which if true would remedy the alleged defect;(y) g^^^^^^,,^^
,„a such suggestion may be pleaded to by the opposite V^^^^J %Jty't^i^
.(Mn eiffht days after notice thereof, (k) or such further time pIhimJiuk is
ssthe Court ov a Judge may allow, (/) and the proceedings for
trial of any issues joined upon such pleadings hall be the same
js in ordinary actions, (m)
jecofflmendedby the C.L. Commiasion-
(,3 who proposed the entry of the
gnjgestiononlj upon motions •» found-
Joi the non-avcrniont of some al-
lied material fact or facts, or mate-
n^l allegation." They recommended
(jjjj J suggestion of the truth " of the
omitted fact" should be permitted, liut
t'leremay be motions in arrest of juJj^c-
iisnt &o., as well for insufficient alle-
(rations or improper allegations, or for
fegal insuflSciency, as for the omission
of necessary allegations of fact. The
misjoinder of causes of action where
jreneral damages have been assess-
ed, 88 for example, an action for
work done for a testator and for work
done for his executors, may be men-
tioned as an instance : [Kitchcnman
T. Skeek 3 Ex. 19 ; Bignell v. llarpur,
4 Ex. 773.) Though this section ad-
mits of a suggestion of "the omitted
facts oT other matter," it is not easy to
perceive what state of fi*cts can be sug-
gested to remedy such a defect as that
last above mentioned. The construc-
tion will probably be in accordance
Tfiththe terms of the Report of the
Common Law Commissioners.
(i) Alleged or adjudged, ^c. From
ttie use of these words, it would appear
that the suggestion may bo made either
before or utter judgment.
(/) Wherever a thing is to bo done
by leave of the Court, the usual and
the Tiise course has been to require
proof by affidavit that there is a tit
case for the interference of the Court.
A party asking for leave under this
section must go further than merely
raising a doubt.
IIo must go so far aa
to produc . in impression on the mind
of the Court that the final decision may
probably be in his favor, and this both
on the fact and the law : (Manlm/ v.
£o!/coi, Crampton, J, 2 El. & B. 60.)
It is not enough to satisfy the Court
that the application is not made for
delay. Sufficient probable grounds for
the entry of the suggestion must be
shown: {lb. per Campbell, C. J.) The
affidavit must at least show in clear
and unambiguous terms that the fact,
the non-averment of which is to be
supplied by the suggestion, exists :
{10. Colnridge, J.) To entitle a party
to take advantage of this enactment he
must lay before the Court a clear and
satisfactory case : see Fisher \. Bridges,
Campbell, C. J., 22 L. J. Q. B. 227;
also Macdougall v. Paterson, 2 L.
M. & P. 681 ; Ricketts v. Ncble, 18 L.
J.Q. B. 408 ; Croke v. Powell, 21 L. J.
Q. B. 183; Parsons v. Alexardfr. 2-4
L. J. Q. B. 277.)
(/r) This unlike the time Mmi^eu for
appearance to an ordinary writ ';, hvm-
nions or to suggestions for reviving
judgments is eight not tst days : {ss.
xvi. ccxi. ccxiii. et sei^.' The uiffer-
enco deserves to be note J, b.^cau-i? as
to tho former though eight day.s is the
period limited by the Eng. C. L. P.
Acts, our Act makes it ten. As to the
section here annotated, the period is
I'ijtht days both in the Canadian and
Eng. C. L. r. Acts.
(/) Court or Judge. Relative powers
set) note m to s. xxxviii.
{)u) i.e. As to plea and all subsequent
proceedings to judgment.
i
390
THE COMMON LAW PROCEDURE ACT.
(App. Co. C.)
BnK. C. L. P.
true.
If untrue.
er
[ss. ccxviii-xi,,
CCXVIII. (n) If the fact or facts suggested be admitted
A.i862,8.i44.i)e found to be true, (o) the party suggesting shall be entitll
Kund '"" *° ^^^^ Judgment as he ^ould have been entitled to, if ^^1
fact or facts or allegations had been originally stated in
pleading, (;>) and proved or admitted on the trial, to^etl
with the costs of and occasioned by the suggestion and
ceedings thereon ; {q) but if such fact or facts be found untnj"
the opposite party shall be entitled to his costs of and occasioned
by the suggestion and proceedings thereon, in addition to an
other costs to which he may be entitled, (r)
^Mi'hth ^^^^^' (^) ^P'''^ *" ^"^^' ^^ Judgment or Judgment non
'obstante veredicto, the Court shall adjudge to the partvaoiin
Corts on ar- , i. t j j. • • ^i , . '' o'"''^'
rest on judg- whom such Judgment is given, the costs occasioned by th
j™dgtAont trial of any issues in fact arising out of the pleading for defect
wn "''«'«»'«• of yirhich such Judgment is given, upon which such party shall
have succeeded, {t) and such costs shall be set off a<»ainst anv
non
(n) Taken from Eng. Stat. 15 & 16
Vic. c. 76, s. 144. — Applied to County
Courts.
(o) These words are of ambiguous
import as regards the onus of proof.
The affirmative of the issue will gene-
rally be upon the party who makes the
suggestion.
(;j) Such pleading, i. e. his original
pi'^adings, to reme ly a defect in which
the suggestion is made.
{q) To be awarded, it is presumed,
in one and the saB'« judgment roll
with the original demand and recovered
by one and the same execution.
(r) Upon failure of proof of the sug-
gestion, the judgment will be for the
party disproving the suggestion either
in arrest of judgment or non obatanle
veredicto, as the case may be. As to
♦he costs see s.ccxix. and notes thereto.
(») Taken from Eng. Stat. 15 & 16
Vic. c. 76, 8. 146. — Applied to County
Courts.
(/) Ueforo this Act upon a motion in
arrest of judgment, or for judgment non
obstante, each party paid his own
costs: {Tiffin v. Gl<us, Barnes, 142;
Cameron v. Refpiohh, Cowp. 407 ;
Goodljuriic V. Bowman, 9 Biug. 067.)
The reason why the successful party
was refused costs, was that he ouglit
to have taken his objection at an
earlier stage of the proceedings, viz
by demurrer : {Uodykinson v. Va«'
Patterson, J., 1 D. & L.672), butif th'
rule of the party moving was discbarg.
ed he was compelled to pay the costs of
the application to the opposite party;
{lb.) Now although he succeed he
must pay some costs, viz., the costs
occasioned by the trial of any issues in
fact, arising out of the pleadings, for
defects in which he recovers judgment,
Even before this Act, although judg!
ment was arrested on one count of a
declaration, but judgment rcmainedin
favor of defendant as to others upon
which he had succeeded at the trial, be
was held to be entitled to the general
costs of the cause : {Elderton y. Em-
»jc««, 5 D. & L. 489.) Asto judgment
non obstante veredicto, it has been beld
that neitlier party is entitled to costs
where tlio issues are immaterial;
{(Hoodburnc v. Bowman, 2 Dowl. P. C.
200.) And where judgment non ob-
stante was entered for plaintiff in the
Queen's Bencli, England, and after-
wards reversed by a Court of error, it
i*t
cexx.]
i:jeotment.
891
oney or costs adjudged to tho opposite party, and execution
may issue for the balance, if any. (w)
And with respect to the action of Ejectment ; (y) Be it j^ament
enacted as follows :
CCXX. (w) Tho action of eJ€otment shall be commenced byEng.CL. p. e*yy-sUi tJ«
,y-^./vp) diiected to the persons in possession, by name, (y)
f
•A.1852,8.168. ••e.«Ai
was held that defendant was entitled to
Je costs of opposing the rule for judg-
ment non obstante veredicto : {Evans
r»*. 2 P. & L 989.) ,.
/«) The effect of this provision will
be as intended, to lessen the frequency
of motions either in arrest of judgment
orfor i«Jgn»6nt non obstante veredicto.
It is apprehended that the set-off of
CO' ts here authorised will not be suf-
fered to interfere with an attorney's
lien for costs of suit : (see Doe d.
Swinton V. Sinclair, 6 Dowl. P. C. 26.)
(v) Ejectment is that form of action
by which a party having a right of entry
upoH land recovers its possession. It
Id of the class described in treatises on
pleading as "mixed." Owing to its
anomalous character it is usually
treated as a separate and peculiar mode
of proceeding. Unlike other forms of
action general rules have been made
for it alone, and rules extending to
other forms of action have been held
not to extend to it. The legi slature in
like manner has in the following sec-
tions made separate prov' ion for the
action of ejectment. Being for the re-
covery of land anciently, it was es-
teemed of too great solemnity to be
proceeded with like actions for chattels
or personal wrongs. Hence it was
clpggedwith fictions which produced
delay and was attended with great ex-
pense. Originally it was a mei*e action
of trespass to recover the damages
sustained by a lessee for years when
ousted of his possession. Afterwards
by a fiction this remedy was made use
of for the recovery of all possessory
rights to corporeal hereditaments.
Since the fictions of the action were in
Upper Canada abolished by 14 & 16
Vic. cap. 114, it will serve no good
purpose further to dwell upon them.
Our Statute of 1861 was in advance of
legislation in England, and effected to
some extent what is here effected to a
great extent, viz., the assimilation of
ejectment to other forms of action.
The >>rigin of both seems to be the Irish
Process and Procedure Act, 13 & 14
Vic. cap. 18. The Common Law Com-
missioners started with the fundamen-
tal proposition that " the proceedings
in this most important action ought to
be simple and speedy." In order
thereto they recommended many re-
forms, each of which is enacted in the
following sections. While studying the
effect of these sections, it should
be kept in view, that the office
of ejectment is simply to try title to
real estate. The practice of trying
titles through the instrumentality of
an action trespass qu. cl. fr. has never
failed to meet with the pointed disap-
probation of the Courts.
(w) Taken from Eng. Stat. 15.& 16
c. 76, s. 168. — Founded upon 1st Rep.
C. L. Comrs. s. 90. This section is
prospective : (Doe d. Smith v. Roe, 8
Ex. 127, 16 L. & Eq. 604.)
(z) As under Prov. St. 14 & 15 Vic.
c. 114, in lieu of the declaration and
notice before then in use.
(y) Persons in actual possession are
intended. Mere constructive posses-
sion where the land is in truth vacant
will not suffice : {Doe White v. Roe, 8
Dowl. P. C. 71.) Eut where a party
though removed from off tho premises
had left beer in the cellar of a house
on the premises, he was considered in
actual po8-'<>8s5on : {Savagey. Dent, 2
Str. 10G4. ) Not so,however, when he had
locked up the house without leaving
any property on the premises showing
! r<
111 <3|E'ii
Ml t
392
THE COMMON LAW PBOOEDURE ACT.
[s. ccxx.
R wm-*' *'*'^ *<> *'* persons entitled to defend the possession of the pro.
m«tiood. perty claimed, (a) which property shall be described in th
Writ with reasonable certainty (b)
mnnood.
Writ
an intention to continue possession:
(Doe d. Darlington t. Cock, 4 B. & G.
259.) A house in fact untenantable
and empty cannot be looked upon as
being in the actual possession of any
body : (Doe d. Sehovell v. Roe, 8 Doirl.
P. C. 691.) Where there are several
horses on the premises, some occupied
auJ otlicTS not, the Court may give
f^naoial directions ns to the latter : i^Doe
h 'hippindaley. Roe, 7 C. B. 125.)
] >ot proceedings, as on a vacant posses-
biou, cannot be had unless it clearly
ap> '^t that the premises are really
vacant : {Doe d. Burrows t. Roe, 7
1>( wi. P. C. 826 ; Doe Timothy v. Roe,
B S<v.'^ 126.) As to proceedings on a
V!;"':vt possession, see s. ccxxiii.
it it can be shown that the par-
ties served were really in possession
when served, slight errors in the names
or other description will not vitiate the
proceedings : {Doe d. Folkee v. Roe,
Dowl. P. 0. 667 ; Doe d. Frost v. Roe,
8 Dowl. P. C. 663; Doe d. Pricey.
Roe, 6 Dowl. P. C. 62 ; Doe d. Smith
V. Roe, lb. 629.) The Court has
power to strike out defences made by
persons not in possession by themselves
or their tenants : (s. ccxxx )
(rt) A tenant served with a writ
should notify his landlord of the serv-
ice (s. colxii). Heretofore the Courts
have refused to set aside a judgment
in ejectment against a tenant who con-
cealed the proceedings from his land-
lord, there not being othervb'S any
evidence >f collusion: {GoodLtle v.
Badtitle, 4 Taunt. 820.) It \'^a% said
to the landlord, •' if your te; -vtit has
done m'ong, that is a matter between
you and him:" {lb.) If premises be
let to A, anc'i he sublet to B, C, and
D, and these latter be in possession,
the writ should be directed to them as
well as to A: {Doe d. Darlington v.
Cock, 4 B. & C. 259.) It ia enacted
that the writ shall bo directed to the
«< perdons " in possession, &c. Whether
a mere servant in possession who claims
neither estate nor interest in tlie nr
mises can be made defendant is «!♦
clear. But this much is clear ,r
that if the person served, thouBh i!
servant, assent to the character of I
tenant, and appear to the action t>i«J
assent, coupled with the appearanr
will be sufficient evidence to ao to tk
jury : {Doe d. James v. Stanton 2 7
&f 871) "It insufficient t;;?:
ject a party to the action that he has
a visible occupation of the premises
and it is not necessary that he should
have such an interest as to enable him
to maintain trespass. When a servant
is served with a notice of ejectment, it
is competent to bim to explain his situ-
ation, and so to set the other party
right or to mislead him. If he adont
the latter course it is very pogsibie
that a jury may think that he
ought to be considered as the
tenant in possession : (per Bay ley j
lb.) If there be several persons in
possession there may be an action
against all, or an action against each
but if the title of all be identical, plain!
tiff may be ordered to consolidate-
(Orimstone v. Gower, Barnes, 176 •
Thrushout V. Jones, 10 B. & C. lio'
Doe d. Innes v. Roe, 10 Moore 493.) '
(6) A description sufficient to iden-
tify the land the subject of the auiion
with the property described in the writ
is all that is required. This it what k
meant by reasonable certainty. The
want of 't will not nullify the writ but
only f.vA' le the opposite party to apply
for better paiticulars : [Doe d. Saund-
ers V. Duke of Newcastle, 7 T. R. 332
n ; Doe d. Saxton v. Turner, 11 C. b!
896 ; also s. ccxxix.) Tliough the sufB-
oi^ncy or insufficieucy of the Jescrip-
tion in the declaration under the old
practice will not be a satisfactory
guide, yet being some guide a reference
may bo made to the principal cases ;
Doc d. Marriott v. Edwards, 6 C. & P.
f \ 41
coxxi]
WRIT OP EJECTMENT.
898
S*v-5.
CCXXI. (c) The Writ shall state the names of all the per- *]^Ymh^ ^o^H^i.
lODS in whom the title is alleged to be, {d) and command the co u, t t '^ '
rersons to whom it is directed, (e) to appear within sixteen writ,
jrts after service thereof, (/) in the Court from which it is
issued (<j) to defend the possession of the property sued for,
or such part thereof as they may think fit, (k) and it shall con-
tain a DC ice that in default of appearance they shall be turned issue.
out of possession j ^i) and the Writ .^hall bear teste on the day (9 j *i>^
on which it issued, {j) and shall be issued out of
the office in the County or Union of Counties wherein the lands
mentioned in^suoh Writ lie, (h) and shall be in force for three
montbs, (0 and shall be in the form contained in the Sche- ^"""°"*
a^
^1
%
I
f
^*i A
208; Dotd. Boys v. Carter, 1 Y. & J.
492' Doe d. Edwards y. Gunning, 7 A.
&E. 240=
U) Taken from Eng. Stat. 15 & i6
Vic. 0. 76, s. 169. — Founded upon l-'t
Rep. C L. Comrs. s. 91.
Id) These words correspond with s.
19oof the Irish C. L. P. Act (16 & 17
Vic. c. 113), under which it was held
that a husband seized of lands in right
of his wife may eject for non-payment
of rent in his own name and that the
wife is not a necessary party to the
record: {Holmes v. Ilennegan, 28L.T.
Rep. 25.) And per Monahan, C. J., '* I
believe for the last century no one has
doubted but that the husband has such
an estate in the lands of the wife as to
enable him to make a lease of the
wife's lands for the purpose of bringing
an ejectment. The present statute does
not alter the law, and therefore wo
mustallow I'^ocraiso shown with coats."
Undei' the old law when a doubt arose
as to wliethor the title was in one of
sevcml parties, it was usual to insert
several demises. There is nothing njw
to prevent title being alleged in several
plaintiffs, " or some or one of them."
But although rot so alleged, it would
seem from the peculiar wording of
several sections of this Act agreeing
ivith sections in the repealed Act 14
& 15 Vic. c. 114, that one of several
plaintiffs may recover : {Butler et al.
v. Donaldson, 10 U. C. R. 643.) By
this section it is made necessary to
name in the writ all the persons in
whom " title is alleged," and under a
subsequent section it is made necessary
to attach to the writ a notice of the
" nature of the title" : (s. ccxxii.^ It
is presumed that in cases of nonjoinder
and misjoinder amendments might ba
allowed as in the case of personal ac-
tions (ss. Ixvii. Ixviii.)
(e) Who should be the persons de-
scribed in the preceding section : (a.
ccxx.^
(/) As to commutation of time see
note d to s. Ivii. /^
{g) Mode of appearance see s. ccxxiy.
(/<) The party appearing may limit
his defence to part of the property de-
scribed in the writ (s. ccxxviii.)
{i) i.e. Under s. ccxxxi.
(y ) 'See note t to s. xix.
{k) A writ issued from a county
other than that in which the lands lie,
though not a nullity ui.-^y be set aside
on application to a Judge iu Chambers:
{Metropolitan Building Society v. Mo-
Pherson, Chambers, Oct. 4, 1856, Burns
J., II. U. C. L. J. 228.) The venue in
ejectment is of course local : (see note
k to s. vii.) and is shown by the de-
scription of the premises in the body
of the writ and not by the marginal
note : (liiddell v. Briar, 2 U. C. Cham.
R. 198.;
(/) i.e. Three calendar months: (12
■ 120
**-^^^
394
THE COMMON LAW PAOOEDURE ACT.
[8.CCXxii.
fr
dule (A) to this Act annexed, marked No. 12, or to the Vh
effect, (m) and the name and abode of the Attorney issuintr ti
same, («) (or if no Attorney, the name and residence of tl
party) (o) shall be endorsed thereon, in like manner as her '
before enacted with reference to the indorsements on a Writ f
Summons in a personal action, (p) and the same proceed!
may be had to ascertain whether the Writ was issued bv t^
authority of the Attorney whose name was indorsed there
and who and what the claimants are, and their abode and a t'
staying the proceedings upon Writs issued without authority
as in the case of Writs in personal actions, i^g)
■ CCXXIT. (r) To the Writ and to every copy thorc( ^ervo^
•ff. »/!.». "7 roreoi Claim- i i. n i, li i, j i- /. ,V ^^
hJ/ 0/ fy- *nt'g titJo to on any party, shall bo attaoned a notice of the nature '' tli
to the writ, title intended to bo set up by the Claimant, as for example b
grant from the Crown, or by deed, le;ise, or other conveyance
derived from or under the grantee of the Crown, or by mar
Not to eon- ^i^go, dcsccnt, or devise, stating to or from whom, or by length
thlTn^no* of possession, or ctherwise, as the case may bo, according to the
mode of «et- nature of the Claimant's title, stating it with reasonable cer-
0.)
%».
/^^v- Notice of na
ture of claim'
Vic. c. 10, 8. V. sub 8. 11.) As the
service of the writ need not necessarily
be personal, no provision is made for
the renewal of the writ as in the case
of writs of summons in personal actions
{s. xxviii.)
(m) When the Legislature prescribe
a form of procedure it should not bo
departed from, uulcss for some good
reason.
(n) See 8. xxi. and notes thereto,
(o) See note a to s. xxi.
(p) The indorsements will be amen-
dable, it is presumed, in the same
manner as in personal actions : see s.
xxxvii. In ejectment the Courts have
alwayn been liberal in allowing amend-
ments : (see Doe d. Simpson v. JIall, 5
M. & G. 7U5 : Dor if. Parsons v. Hea-
ther, 8 M. & W. 158 ; Doe d. Alton v.
Beck, 22 L. .7 0. P. ; Jh,c d. Bacon
V. Bnjdges, 1 1), & L. 954 ; Doc d.
Rabbits V. Welch, 4 D. & L. 116;
Doe d. Sinclair v. Arnold, H. T. 4 Vic.
MS. R. & H. Dig. " Amendment," II.
8 ; Doc d. Ausman v. Munro, 1 I'.c ^
100), but now under s. ccxci. the faci-
lities will be very great both before
and at the trial. See also s. cclxxiv.
(q) See 8. xxv.
(r) This appears to be a new and
original provision, though not new in
principle. The object of it is to render
it obligatory upon a claimant ia eject-
ment to make known to defendant the
title intended to be set up by plaintiff
BO that defendant may with the least
possible expense prepare himself to
meet it. A similar principle is iavolv-
cd in s. cexxiv. which makes it neces-
sary for defendant to inform plaintiff
of the grounds of defence intended to
bo relied upon by the former. The
manifest design of both enactments is
that neither party to a suit shall be
kept in ignorance of the case intended.
to bo set up by his adversary. A writ
which informs a defendant that plain-
tifl' claims the land of which he is ia
s.coxxiii]
NOTICE OF claimant's TITLK.
805
m
H
taiotT ; W -^^^ ^^^^ notice shall not oonttun more than ono ^j*^,^^^
mode in which title is set up, without loavo of tho Court or a ><**«»•
- i-y and at the trial the Claimant shall bo oonfinoU to proof ' '
title
' -i-. •■,
I
•■I
f the title set up in the notice ; (<) Provided that nothing in
this section shall be construed to require any Claimant to sot ivnUo :
««♦ in sttch notice tho dates or particular contents of any Let- cvrtain psr-
" TV 1 iTTMi 1 • . . tlculam nut
jjjg patent, Deeds, Wills, or other instruments or writings, n<i«iiri>J ex-
•hich show or support his title, or the date of any marringo or ^"^ * ** *'
death, unless it be specially directed by order of tho Court or\ ^^
aJudge.*(M)
CCXXIII. (w) The Writ shall be served in tho same manner *^ *'•' *rv
as an Ejectment was formerly served, (tt?) or in such maukiorAaivi^uTo'. ^£ ^5;
1
<4
•<t
II ,
-'.i^il
If
' m
1
ffl:
possession gives no tangible informa-
tion. The bare issue of a writ of itself
jhows that the party issuing it advanos
Bome claim. But it is only just that a
defendant should be informed not
merely that a claim is advanccd.but the
erounds upon which that claim is based,
i.«, claimant's title. In the absence of
such information defendant is left to
conjecture the probable grounds of
claim, against some of which ho at
great expense prepares to defend him-
self but which at the trial may turn
out to be wholly imaginary. This of
itself would be a hardship upon a de-
fendant in any action, but in ejectment
where there are no pleadings would be
a positive injustice.
Is) In the event of further informa-
tion than that disclosed in the notice
being thought necessary by defendant,
it is in his power to administer inter-
rogatories to plaintiff: (s. clxxv.)
Though the notice to be annexed to
the writ may be very general in its
terms, it must be neither vague nor ob-
scure. A compliance with the spirit
and intention of the section muMt be
made. Thus, for example, in an action
of ejectment for breach of covenant
contained in a lease, the notice of claim
should set out tho particular covenant
in the lease which has been broken
and the particul xrs of the breach :
(Kenney v. O'Shagtiesnt/, Chambers,
Deo. 21, 1856, Burns, J, III. U.C.L.J.
29 ; also Dot rf. Hirck v. PMlhpa, 6 T.
R.G07.)
(/) This being analogous to well
known priuoiplcs of ptrnding : (see
note <i to s. ooxxiv.) It is not certain
whether at tho trial an amendment can
be allowed so as to enable a claimant
to sot np grounds of claim other than
such as are spocitied in his notice. The
inference flrom the wortling of the sec-
tion is against tho proposition. It is
enacted that «• at tho trial tho plaintiff
shall bo confined to proof of the title
set up in the notice."
(m) It is not intended that a claim-
ant shall as a mattor of cour>iu disclose
more of his title than actually neces-
sary to give defendant a correct idea
of the ground of olaini.
(i>) Taken ft-om Kng. Stat. 16 & IG
Vic. cap. 70, s. 170 — FounO.ed upon
1st Rep 0. L. Comrs. s. [V2.
(w) It is enacted that the «t*7 shall
be served in tho si»nK> manner ns nn
ejWinitHi was formerly served. This
provision is similar to that of rcpei.cd
Stat U & lf> Vic. cap. lit, s. 2, which
enacttvl that the writ should be served
"in tho santo manner as a dfclaration
is at pwseut served." Of tho section
hero annotated it m«y l>e said, as has
been saivl of tho ropoalod enactment,
that rt good denl of diffioiilty will and
must inevitably aviso upon so loose an
expression ns that nlroadv quoted:
{HkhMl V. Brht>t, Burns, J, 2 U. C.
|:.4M- J.■v!i
t
90
am)
THE COMMON LAW rROCEDUIlE ACT.
[8. COXxiii,
sorvtoe of ag i\^q Court or a Judge shall order, or in case of vacunt do
'^Vl - ' '"' "
Cliarn. R. 201 . ) The reponlcd Statute
dccliired tliiit tlio writ sliould bo served
•• in tlie srtuic iimnnoi" as the "docla-
ration," not •Mleclaratif n and notice,"
the latter of which ui' ler the former
practice nnuired elimination nt tlie
time of service. It was consequently
held under Statute 14 ^- IC Vic. cap.
114, that service of the writ without
explanation of its contents was suffi-
cient: [Rkldell V. Briitn, ubi fiipni.)
Had the section here annotated been a
verbatim copy of 14 & 15 Vic. the
authority of Rilddl v. lirian would be
taken to set at rest a doubt which
otherwise exists. It is enact 1 that
the writ shull be Berved in t,i name
li inner fiH "an ejectment" was for-
merly served. If *' ejectment "
mean more tlian *• declaration," it
must be umitistood to moan "de-
claration and notice," in which
case explanation at the time of ser-
vice would be necJH^ iry. And t'j's
was in fact what constituted " an eject-
ment" under the old praotiot; in oppo-
siti ju to <i declaration simplit livr. The
question tliOOf,; v lised ia England
under 15 & KJ Vic. oap. V'!, i>; still un-
decided : {Edwcrrlsv. GnjUth, 15C.B.
397.) Until a decision to the contrary,
the safer and wiser plan will bo to ex-
plain the writ at the i n*" of service.
The words "in the tame manner"
mean that servico upon a wife, child,
servant, agent, or other person, which,
in the case of a declaration and notice,
would have been good service, shall
under this Act be a suflicient sorv'co
of the writ. Thus :
As to a Sole Dcfcndunt,
■ 1. Personal Service. The object
of service in any case is to notify de-
fendant of intended proceedings against
him. rer.-fonal ficrvico when it can
be eflfected is always to he preferred,
and is obviously the most satisfactory
mode of bringing the proceeding to
the notice of the party. Of this fact
it is always necessary to satisfy the
Court with a view to ulterior proceed-
ings. In ojootinent a promit,„t fc*.
ture of personal service is tlnn V ■ mi
bo goo.l though not effccicd .,„*'
the premises sought to be recover -I
{SiU^n:/,: v. J)ent, 2 Str. 1(J|J4. /, '
( . 49].) There may be .-ovsona'
Horvioe, though the writ i, J
placed in the corporal pos.o«Hiou o
dcfcHlant. Thusifv.ithfullnoticeo
the pit.Mition of the party tryinB tn
eftV. I the service defendant desiemjiv
thwart him by refusing to have nnv
thing to do with the writ or otiierwise
misconduct himself with a similur in
tent: {Ilahaly. IVW^jcoof/.Hariiea I74"
Jiaffs/i<iw d. Asian \. Tooi/oorf, /4. jgj .'
Short d. h'linexy. Kinr/, Ih. igg'. )^'
(/. Knijhhv. Dean, lb. 102; iJoe d
ViKiier v. Roe, 2 D.'wl. l». C. 449- bo,
d. h)rilh v. Hot, W Dowl. p.c. V)(;9.
Doe d. Rons v. Roc,! Scott 880 ; Doe, I
Hunter v. Roe, 5 Dowl. P. C. 653 ; D^,
d.Cohon v. Roe, DowI.P.C.TOg'; Do,
d. Lowndes v. Roe, 7 M. & W '439.
Doc d. Jiohertu v. Jioe, 8 Scott N. 1{'
433 i Doe d. Clifton v. Roe, 7 Jur. 701 •
Doe d. Hellier v. Roe, lb. 800; Doul
Mann v. lloe, 11 M. & W. 77; Ihed
Hope V. Roe, 3 C. B. 770.) Wln-re
perjonal service has been effected
and default is made in appear-
nnce, judgment may be signej
upon hling the writ together with
an afiidavit of service : (X. R, oj \
But if the service effected do not
amount to personal service, then hel'oic
signing judgment leave mu^t be ob-
taincd by a rule of Court or Judge's
order. This requirement is analo;;ous
to tiie old practice of moving for jiidg.
meut against the casual ejector. When-
evir the service was personal the rule
for judgnunt was absolute; in tlio
first inst!iiic„'. In other cases the rule
was nixi only. It might be a question
under this section whether a service
not personal must not be authorized
by the Court or a^ Judge before s-uch
service is made, in which cai^ethenp-
plicaiion should be supported by iitlidii-
vit of inability to ell'ect personal ser-
I. COXXlii] SERVIOB Of WRIT,
sion by pcsting a copy thereof upon the door of the dwelling
897
fio«. There nr« many analagou^ rules
ofpractioe. Had the Aot read "a Judge
^l approre and by order confirm,"
^(jc would be no doubt that the or-
der iutendcd ought to be made after
laiiet- N«twiUi8tanding, it is pro-
Biblt thitt the Inttei course will be the
ontkJopted as being consistent with
the former P''<^<^^><^^ ''^^^^^°*^°^- Fur-
ther M to ^'''^^ constitutes personal
service Boe note / to ■. xxxiv. of this
Act.
;•. Sfrvict upon the wife. Before
fflOTing for an order or rule for judg-
ment it will ho necessary to show some
Mrtlcc wliioh if not pergonal would be
coniiil«red sufficient in tlio case of an
r ectincut under the old practice. Ser-
,1 1^ upon the wife of defendant if liv-
iug with him will be sufficient. And
if the wife bo liring with her husbanfl
tt tlio time of service it is immaterial
vhethor she reside upon the premises
sought to bo recovered or elsewhere.
The only test being her residence with
her husband. Service under such oir-
curastanoos raises a yery strong pre-
sumption that the husband has been
made acquainted with the proceeding:
la these cases the fact of such resi-
licnco and place of service should
beniRdoto ttjipcar on affidavit: {Doe
I ilorlmd V. Bai/liss, 6 T. R. 765 ;
Lloodrifiht V. Thruslout, 2 W. Bl. 800 ;
/fflii.v'v. Coutta, 1 N. It. 308; Doe
I Winp,Md v. Roe, 1 Dowl. P.O. 093 ;
Ike ' >l,M,Uotl V. Koe, 7 Dowl. P. C.
403; / ,.< d. Bath V. Roe, lb. 693;
Iht d. (rVoiy v. A"o«,-8 Jur. 338 ; Doe
i Qmnge v. Roe, 1 Dowl. N. S. 274 ;
Dotd. Vrolfy v. Roe, 2 Dowl. N. S.
844; Doe d, Rotfle v. /?oe, 4 O.B. 258 ;
Dot V. Rue, 17 L. J. Ex. 176. ) If the
wife with a flill knowledge of the in-
tention of Ute party to serve her, of
her own wrong and by her own mis-
conduct wilfully prevent the service
flrora beinfc completed, the service not-
withstanding may be held sufficient:
(seei>or d. Dry v. Roe, Barnes, 178;
Famtrd, Miles v. Thrustout, Ih. 180;
Uotd. Courlhorpe v. Roc, 2 Dowl.P.C.
441 ; Doe d. Oeorffe v. Roe, 8 Dowl.P.
C.541 ; Doe d. Nath v. Roe, 8 Dowl. P.
(J. 806.) Indeed service upon a stranger
on the premises with a subsequent ao-
knowled^-ment from the wife that the
papers had .^ome to her hands has been
held sufficient: {Doe d. Creycoat
Hotpital v. Roc, 7 M. & (' 537.) But
service on a stranger 1' upon the
premises and not nhown to b( -i resid-
ent there is of itsoU in K^iem : ( Doe
d.Story v. Roe, 4 M. & U. ^^ Service
upon the widow of dofi 'ic being
dead in the house at th«^ .r, n is been
held to be insufficient : {Doe d. Ci ouch
V. Roe, 13 L. J. Q. B. 80.) However,
there may be circumstances under
which service upon a widow would be
clearly sufficient : see Doe d. PamphU-
lon V. Roe, 1 Dowl. N. S. 180.
8. Service, on a Son, Daughter, or
other member of the family. This mode
of service may bo hold sufficient, pro-
vided it can be shown by admission of
the tenant or otherwise that the paper
served was served on the premises and
and actually reached defendant : (see
Doe d. Cockburn v. Roe, 1 Dowl. P. C.
692 ; Doe d. I'rotheroe v. Roe, 4 Dowl.
P. C. 8b5; Doe d. Agar v. Roe,
Dowl.P.C.624 ; Doed.Ready.Roe, 1 M.
& W. 638 ; Doe d. Dinorhen v. Roe, 2
M. & W. 374 ; Doe d. Fowler v. Roe,
11 Jur. 309; Doe d. Eaton v. Roe, 7
Scott 124; Doe d. Omy v. Roc, 1 D.
& L. 803 ; Doe d. Crippa v. Walker, 7
Jur. 746 ; Doe d. Han \a v. Roe, 1
Dowl. N. S. 704; Doe d. Jenkins v.
Roe, 8 Jur. 39; Doe d. Gibbard v.
Roe, 8 M. & G. 87 ; Doe d. Pattison v.
Roe, 10 Jur. 34 ; Doe d. Fame Combe
V. Roe, 10 Jur. 685 ; Doe d. Fowler
V. Roe, 11 Jur. 309 ; Doe d. Chaffey y.
Roe, 9 Dowl. P. C. 100 ; Dot d.Qinger
V. Roe, lb. 330 ; Doe d. Threader v.
Roe, 1 Dowl.N.S. 261 ; Doe d. Margan
V. Roe, 1 Dowl. N.S. 543 ; Doed. Tay-
lor V. Coutea, 8 Jur. 20 ; Doe d. Royle
V. Roe, 4 C.B. 258 ; Doe d. Watson v.
Roe, 5G.B.521 ; Doe d. Oray v. Roe, 5
U. C. 0. S. 483 ; Doe d. Hunter et al.
V. Roe, 3 U. C. 11. 127.)
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(716) 873-4503
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898
THE COMMON LAW PROCEDURE ACT. [s. CCXxiiJ
1^1
,* \r 1 i,'iL_
4. Service on a servant, agent, clerk,
or other employee. This mode of service
if effected on the premises, and if there
be reason to believe that the defendant
had notice thereof may be held suffi-
cient : (see Doe d. Baring y. Roe, 6
Dowl. P. C. 456 ; Doe d. IHeher v. Boe,
2 Dowl. N. S. 226; Doe d. Bower v.
Roe, lb. 928 ; Doe d. Miudleton y.Roe,
ID. & L. 149 ; Anon, 6 Jur. 878 ;
Doe d. Dobler v. Roe, 2 Dowl. N. S.
838 ; Doe d. Harleigh t. Roe, 11 Jur.
18 ; Doe d. Reynolds v. Roe, 1 C. B.
711 ; Doe d. Watson v. Roe, 6 C. B.
621.) Service upon a person in appa-
rent possession, who professed to be
agent of the tenant who was abroad,
without circumstances showing facts
whence agency might be inferred, was
held to be insufficient : {Doe d. Nottage
V. Roe, 1 Dowl. N. S. 750 ; see also Doe
d. Johnson ▼. Roe, 12 L. J. Q. B. 97.)
If after the decease of defendant a ser-
vant, &o., remain in possession, such
servant if he refuse to give up posses-
sion may be ejected as a tenant in pos-
session : {Doe d. Atkins v. Roe, 2 Chit.
B. 179.) Service on the managing
Clerk of the tenant who was an attor-
ney was held to be insufficient : {Anon.
11 Jur. 1105 ; but see Doe d. Bower
V. Roe, 2 Dowl. N. S. 923.) In the
case of a lunatic having a committee,
service should be made on such com-
mittee: Mnon. Loft. 461) ; if not, then
on himself, the lunatic, or on a member
of his family : {Doe d. Brown v. Roe,
6 Dowl. P. C. 270 ; Doe d. — v. Roe,
7 Jur. 726.)
As to Several Defendants.
Service upon one of two or more
joint tenants in possession is suffici-
ent: (Doe d. Clothier v. Roe, 6
Dowl. P. C. 291 ; Doe d. Overton v.
Roe, 9 Dowl. P. C. 1039; Doed. Wor-
thing v. Roe, 10 Jur. 984 ; Doe d. Ben-
nett y. Roe, 7 C. B. 127.) So service
was allowed as to three defendants in
possession, though made on one of the
three only, and though it was not
sworn that there was a joint tenancy :
{Righty. Wrong, 2 ChitRep. 175) ; but
such service though sufficient for a rule
nisi for judgment, might not \t is ap-
prehended hi. sufficient for a rule
absolute in the first instance- (i)n»
d. Field v. Roe, 2 Chit. Rep." 174 \
Service upon one of several joint
tenants when the writ is directed
to that one only, will not it ig
apprehended in any event have effect
against the others not named : (Doed
Braby v. Roe, 10 C. B. 663.) Vhere
there were three several tenants, it was
held that the copy of the notice of
ejectment might be directed to each in-
dividual tenant for whom it was in-
tended: (i>ocv. ^oc, 8 Jur. 860.) If
there be nothing to show a joint ten-
ancy of several persons in possession
all should be served : (see Doe d.Dar-
lington v. Cock, 4 B. & C. 259 ; Doe d
Bell T. Roe, 3 0. S. 64.) But if
the service be made on an ori-
ginal tenant who appears, he cannot
afterwards object that his sub-tenants
are in possession and have not been
served : {Roe v. Wiggs, 2 N. R. 880.)
It has been held that where lodgers
cannot be served, ses /ice on the keep-
er of the house at the house is suffi-
cient for a rule nisi for judgment : {Dot
d. Threader y. Roe, 1 Dowl. N.S. 261.)
If service be perfect as to two of three
defendants judgment may be obtained
as to such as have been regularly
served: {Doe d. Murphy v. Momt,
2 Chit. Rep. 176.) In proceedings
against railway and other public com-
panies, service upon the President,
Secretary, or other public officer is in
general sufficient. This more particu-
larly if there be a provision in the Sta-
tute incorporating the company that
papers shall be so served: {Doe d.
Bromley v. Roe, 8 Dowl. P. C. 858; Dot
d. Bayes y. Roe, 16 M. & W.8 ; Doe d.
Fisher y. Roe, 2 Dowl. N. S. 225;
see further Weeks y. Roe, 5 Dowl. P.
C. 405 ; Doe. d. Fishmonger's Co. v. Rot,
2 Dowl. N.S. 689 ; Doe d. Kirschntr v.
Roe, 7 Dowl. P. C. 97 ; Doe d. Pkk-
ensy. Roe, /6.121 ; Doed. Smithy. Uoe,
8 Dowl. P. C. 509 ; Doe d. v. .Roe,
1 D. & L. 873.) Service in cases not •
provided for by any precedent may be
made " in such manner as the Court
or Judge shall order" : (as to which
jcoxxiv.] APPBABANOT, \ 899
house or otber conspicuous part of the property, (z) ^,
CCXXIV. (y) The persons named as Defendants in such Eni'o. l. p.
lyrit or either of them, shall be allowed to appear within the ^-1862, 8.171.
time appointed; (z) and every peison so appearing shall, withjf^^*°*">
his appearance, file a notice addressed to the Claimant, stating *•»»"»> "^^^^
that the Defendant, besides denying the title of the Claimant, j^^*™" ""'
asserts title in himself, or in some other persons (st^ating whom)
under whom he claims, and setting forth the mode in which
Buch title is claimed, in like manner and to the same extent, filed with
and subject to the same conditions, rules, and restrictions as smiog na^
are set forth in the two hundred and twenty-second section of fendant's
this Act, (a) in respect to the notice of a Claimant's title, and Ac* *"''
the giving proof thereof at the trial.
see Doe d. Pope Y. Roe, 7 M. & G. 602 ;
Doed. Voilieay. Roe, 6 Scott N. B.
174; Dot d. Haggitt v. Roe, 6 Jur.
950.) Where a tenant underlet part
of the premises and deserted the re-
mainder, and his under-tenants were
serred, it was held that the lessor of
the plaintiff was entitled to judgment
as to the part of the premises occupied
and to take possession of the remain-
der as upon a vacant possession : {^Doe
iHenion f. Roe, 1 D. & L. 667.)
[x) A party who proceeds on a va-
cant possession should perform every-
thing he does in such a case more re-
gularly than in the case of a contested
possession: (Anon. 2 Chit. Rep. 188.)
If the premises have been abandoned,
proceedings may, be had as on a vacant
possession : {Doe d. Laundy v. Roe, 12
C, B. 451) ; but there may in such a
case be circumstances under which the
proceedings ought to be as on a contest-
ed possession : (ii. ) It is not declared
in what manner the writ shall be dir-
ected in proceeding on a vac&nt pos-
Eession. A writ directed to '* the as-
signees and personal representatives of
S. 6. deceased" (the last occupier) has
been held regular : (Harrington v. By-
tham, 2 N. C. L. Rep. 1033; 28 L. &
Eq. 443.) Ani per cur. "the writ does
very well in its present form, as nobody
is thereby made liable for costs."
(y) The first part of this section is
taken from Eng. Stat. 15 & 16 Vic. 0.
76, s. 171. — Founded upon 1st Rep.
G. L. Comrs., s. 93. The remainder
is original.
(z) t. e. An appearance may be en-
tered as a matter of course " by the
persons named in the writ. " Any per-
son not named in the writ if m posses-
sion may apply to be permitted to de-
fend under the next succeeding section.
The time limited for appearance is
sixteen days: (s. ccxxi.) The ap-
pearance serves the purpose of a plea
and is the defence to the action,
and the person appearing may limit
his defence to part of the premises
named in the writ : (s. ccxxviii.)
Landlords may in right of their tenants
appear under s. ccxxv. pursuant to a.
ccxxvii. It was in one case held that
to entitle the tenant to move against
the declaration, notice, or other pro-
ceedings under the old practice, it was
necessary for him to appear to the ac-
tion, because without " appearance
there is no locus standi in the Court : "
(Doe d. Williamson v. Roe, 8 D. & L.
828 ; see also Doe d. Simpson v. Roe, 6
Dowl. P. C. 469.)
(a) The section to which reference
is here made (s. ccxxii.) empowers the
Court or a Judge to allow a title to be
stated in more modes than one. In an
action of ejectment since this Act de-
fendant applied ex parte for leave to
400
Eng. 0. Ik P.
A.1862, 1.136.
THE COMMON LAW PBOOEDITBB ACT.
[a. CCttv.
CCXXV. (6) Any other person not named in sucli Writ
Btate in the notice of his title required
by this section not only a paper
title from the Crown, through various
parties to himself, but also a possess*
ory title by length of possession in
himself and others, through whom he
claimed, and to set up in his defence
both of said modes of trial. The appU-
oation was founded upon an affidavit
of the defendant that he could estab-
lish a good possessory title for over
tmenty years through the person from
whom deponent purchased; that he
could also establi^ a good paper title to
the same land from the Crown, through
various persons to himself, deponent ;
that it would tend to the accomplish-
ment of justice if he should be allowed
to state in the notice required to be filed
with his appearance both of the said
modes of making title " he being de-
sirous of establishing the paper title,
but lest he should fail in his defence
from being unable to procure the wit-
nesses necessary to prove all such
paper title, he desires to setup also his
title by possession." An order was made
absolute in the first instance : (Todd v.
Cann et al. Chambers, Oct. 23, 1856,
Bums, J, II. U.C. L. J. 232.) Where
an appearance filed altogether omitted
the notice made necessary by this sec-
tion, and plaintiff in consequence ap-
plied to be allowed to enter judgment,
defendant was permitted to amend upon
payment of costs: (Kane v. Kane,
Chambers, Oct. 3, 1856, Bums, J. ;
IVtut and Land Co. of Upper Canada
▼. aimer et al. Chambers, March 1st,
1867, McLean, J.)
(&) Taken from Eng. Stat. 16 & 16
Vic. cap. 76, s. 172. — Founded upo-
Ist Rep. C.L.Comrs. s. 94. The princi-
ple of this section is not new. It is the
same as involved in 11 Goo.ll.cap.l9,s.
18, the language of which is as fol-
lows: «Thatit shall and may be law-
ful for the Court where such ejectment
(t.«. against a tenant in possession, his
landlord not being an occupier) shall
be brought to suffer the landlord or
landlords to make him, her, or them-
selves, defendant or defendants l>»
joining with Ae tenant or tenants to
whom such declaration in ejeotmeni
shall be delivered in case he or the,
shaU appear ; but in case such tenant
or tenants shall refuse or neglectto
appear, judgment shall be simed
against the casual ejector for waat of
such appearance; but if the landlord
or landlords of any part of the 'ands
tenements, or hereditaments for which
such ejectment was brought shall de-
sire to appear by himself or themselves
and consent to enter into the like role
that by the course of the Court the
tenant in possession, in case he or she
had appeared or ought to have done-
then the Court where such ejectment
shall be brought shall and may permit
such landlord or landlords so to do
and to order a stay of execution upon
such judgment against the casual ejec-
tor, until they shall make further order
therein." It was said by a learned
Judge that between this Statute and
the 0. L. P. Act there is no difference
except that the latter gives to the
Court or a Judge powers which the fo^
mer Statute gives to the Court alone:
(Butler V. Meredith, Parke, B. 11 Ex.
93.) In the construction of the Stat.
of Geo. II. it was held that the vord
"landlord" extended to all persons
claiming title consistent with that of
the occupant. Thus a mortgagor though
out of possession : (Doe d. Tilyard v.
Cooper, 8 T. T. 645), when interested
in the result of the action : [Doe d.
Pearson 7. Roe, 6 Bing. 613), an heir
at law though out of possession : (Dot
1. Hiblethwaite v. Roe, 3 T. R. 783
i), a devisee in trust: (Lovelock d.
Norria v. Dancaster, 4 T. R. 122), bnt
not a eette que trutt who had never
been in possession : (lb. 3 T. R. 783.)
So a person claiming in opposition to
the occupant's title was clearly not
entitled to defend as landlord : (Dm-
er d. Oxenden /. Lawrence, 2 W. Bi.
1289 ; Doe d. Ilorton v. Roys, 2 Y.'&
J. 88.) And where a defendant vas by
mistake described as " landlord" in
S.eOXZT.] APPEARANCE. 401
shall by leave of the Court or a Judge, be allowed to nppear *^][^^*"^
and defend, oa filing an affidavit showing that he is in posEee-^pp*" >>y
gioD of the land either by himself or his tenant, (c)
the consent role, it was held that at
the trial, be might show that a third
party was tenant to the lessor of
the plaintiff : {Doe d.Fellowea y.Alford,
ID. & i<- ^^^•) ^^ '^ person whose
title is inconsistent with that of the
occupant be admitted to defend, plain-
tiff may, it seems, apply to a Judge in
Chambers for the discharge of the rule
admitting such person : {Doe d. Jlor-
vood i.Lippincote, Tillinghast's Adam's
Ejectment, 260; also s. ccszx.) And if
from any oaiise the appearance of such
party be not struck out, he will not be
allowed at the trial to set up a title in
opposition to that of the tenant : {Doe
iMeei. Litherland, 4 A. & £.784: Doe
T. Challit, 17 Q. B. 166.) So if a
person made landlord has no real in-
terest in the premises, relief may be
given to plaintiff: {Doe d. Carr v. Jor-
dan, 4 Scott 807.) The time within
which application for leave to appear
should be made by a landlord, is
sixteen days after service of th<
Trit, and at least before judgment
for non-appearance. It has been
held that in the absence of collu-
sion between the plaintiff and occu-
pant the Court will not set aside a re-
gular judgment ivt order to let in a
landlord who had not received any no-
tice of the proceedings : ( Doe d. Thomp-
iony. Roe, 4Do«l. P.O. 115. See also
Dot Ledger v. Roe, 8 Taunt. 606;
Goodlitk V. Badtitle, 4 Taunt 820.)
But where a landlord defrayed the
costs of an ejectment in the name of
in illiterate person who gave a cogno-
Tit and retraxit, the Court set them
aside: (Doe d. Locke v. Franklin, 7
Taunt k) Where owing to ignorance
of the party or his attorney, judgment
had been signed, leave to defend was
given upon terms : {Doe d. Potter v.
Koe, Will. Wall. & Dar. 871.) So
where the attorney made affidavit that
he had received instructions for enter-
ing an appearance which he neglected
owing to matters personally affecting
AA
himself: {Doe 4. 8ha»f. Roe, 18 Price
260. See also Doe d. MuU»rkey v. Roe,
11 A. &E.888.) So in.other oases upon
the merits and upon tixo terms where
the step was an advancement of jus-
tice without muoh inoonvenience to
plaintiff, and especially where no writ
of possession had been executed : {Doe
d. Met/rick v. Ro>e, 2 C. & J. 682 ; Doe
d. Troughton t. Roe, Butr. 1996. See
also Dobbt ▼. Pas»9r, 2 Str. 975.)
Where collosioa can he shown, a land-
lord may be let in to defend even after
a writ of possession executed : {Doe
d. Grocere Cotnpanjf t. Roe, 6 Taunt.
206; Hunter v. Ketghtleji, Cham-
bers, Feb. 16, 1867, fiiohards, J.) And
where a judgment is set ainde and an or-
der made for possession to be restored,
that order must be obeyed under pen-
alty of a contempt: {Corbetl d. Cly-
mer v. NichoUs, 2 L. M. & P. 87 ;) and
if necessary a writ of restitution may
issue: {Doe d. Whiteeidet v. Hinde,
20 L.J.Q.B. 406.) Where the person
who made application to .defend as
landlord was a foreigner, the Court in
its discretion, before granting the ap-
plication under Statute of Geo. II. re-
quired him to give security for costs :
{Doe d. Hudson v. Jamieton, 4 M. &
Ry. 470.)
(e) The possession intended is an
actual not a legal possession mere-
ly. Thus it has been held that a ton-
ant by elegit cannot be admitted to de-
fend : {Croft V. Lumley, 24 L. J. Q.B.
78.) Much less is a person who has
recovered a judgment in ejectment but
who has never issued a writ of pos-
session nor taken possession of the
premises entitled to make application'
under this section : ( Thompson y. Tom-
kinson, 11 Ex. 442, 83 L. & £q. 487.)
But a sufficient prima faeie right of
actual possession will satisfy tbeCourt.
It is not desirable on interlocutory
motions to decide questions of title.
The Gonrt, when it decides upon the
application of a landlord or other per* ■
IS
i;;">etr.% ■
402
'S*>vs2^'} jB^v Sntry of ap-
**-*■• «A.a-7 pMuranceand
% to
THE COMMON LAW PROOSDURK ACT. [g. ^^j .
COXXVI. (<i^) All appearances shall be entered in the Offi
prooMdinga. from which the Writ issued, (e) and all subsequent proceedincB
shall be conducted in the same Office. (/)
son sworn to be in possession, that he
is entitled to defend, does so with-
out at all deciding upon the rights
of the parties: (Cro/t r. Lunley, 4
SI. & B. 608.) Thus in ejectment to
recover an Opera House on the ground
that the tenant had committed a for-
^feiture, application was made for leave
'to appear and defend the action by
. a grantee from the lessee of a private
box for a term of years, and it was
sworn that the applicant was *'in
possession of the box," the Court
granted the leave without coming to
any decision on the effect of the instru-
ment under which applicant claimed :
(76.) The intention of the Statute is
that whether a landlord be in posses-
sion by his own personal and actual
possession, or by that of his tenant, he
shall be allowed to come in and defend
on satisfying the Court or a Judge
diat he has the possession. There is
no power to impose terms on the ap-
plicant under such circumstances:
{Butler y. Meredith, 11 Ex. 85, Parke,
B., diatentiente.) A person who swore
she was in possession, and that de-
fendant was not when served with the
summons, was allowed to appear, al-
though the defendant named in the
writ had previously confessed judg-
ment, upon which a writ of possession
issued: {Harrington ▼. Harrington,
Chambers, Dec. 4, 1856, Burns, J.,
III. U. C. L.J. 80.) So where appli-
cant disclosed title and swore that
he was in possession, though not
named in the writ : ( Wedtter et ai v.
Hortburgh, Chambers, Dec. 18, 1856,
Biohards, J., III. U. G. L. J. 82.) So
upon an affidavit of defendant's attor-
ney, "that since receiving instruc-
tions to defend for defendant, depon-
ent has discovered that one 0. M. is
living on the west half of the land
sought to be recovered in this action,
and that said 0. M. claims under the
same title as defendant that deponent
•will not be able to oonununioate with
said 0. M. to enable him to obtain hs.
affidavit within the time allowed for
appearing to the writ:" a eummoni
granted to show cause why M
should not be allowed to appear "and
defend, was afterwards made abso
lute : (Caricaller v. Wetiellt, ChambeK."
Oct. 212, 1856, Burns, J.) Whew .'
person not named in the writ, has
obtained leave to appear and defend
he shall enter an appearance intitled
in the action against the parties nam.
ed in the writ as defendants, and shall
forthwith give notice of such appeaN
ance to the plaintiff's attorney or to
the plaintiff, if he be suing in person-
(N. R. 98.) Qu. Is such person bound
to secure against costs the parties
whose names he uses, i. e., the parties
named in the writ, unless they also
appear ?
(d) An original enactment, the de-
sign of which is precisely the same as
that of s. ix. of this Act.
(e) It is the duty of the Clerk or
Deputy Clerk of the Crown and Pleas
who shall issue "any writ," to mark
in the margin a memorandum statioe
from what office and in what couatr
" such writ" was issued (s. «.)
(/) The writ of summons in eject-
ment must show the county where the
land sought to be recovered is situate.
It must issue out of the office of that
county. If issued from any other
office the writ will be irregular, if nut
void. And the error in such a cose
being one patent upon the face of the
writ, defendant may take advantage of
it by application to a Judge in Cham-
bers: (seenoteA:tos. vii.) The award
of venire on the Nisi Prius record must
correspond with the county in which
the land is stated to be situate. The
venue must be in that county. The
cause cannot, unless by suggestion
under s. ccxxxvi. of this Act or s. 14 •
of Stat. U. C. 7 Wm. IV. cap. 3, be
tried in any other county. If the award
of ventre without any saoh suggestion
i H
«.eozzvii-vui.] appiaranob. 408
OOXXVn. (g) Any person appearing to defend as landlord T^jJ ji,5 iTJ}^_^
ia nspflct of property whereof he is in possession in person or . §f^ *
\v hU tenant, (A) shall state in his appearance that he appears ^^^^
IS landlord, (t) and such person shall be at liberty to set upiudiord.
my defence which a landlord appearing in an ejectment has
heretofore been allowed to set up, and no other. Q' )
CCXXVIII. (ft) Any person appearing to such Writ ahall f°^-^"5,^; ^.t'^*,"^
\fi at liberty to limit his defence to a part only of the property p^ ^ /i
mentioned in the Writ, (I) describing that part with reasona- ?«»"•>« ""My
be to ant other than the county in
f hioh th J land is described as being
litiute, plaintiff may be nonsuited:
iRiddeU y> Briar, 2 U. G. Chaoi. Aep.
(g) Taken from Eag. Stat. 16 & 16
Vic cap. 76, s. 178.
Ih) Instead of " in person or by his
iensnt," read in Eng. 0. L. P. Act
<• only by his tenant" A tenant serred
fith a writ of ejectment is bound to
notify his landlord (s. oclzii), and the
landlord may obtain leave to appear
■nd defend under s. ooxxv.
(i) The words ** as landlord" should
be written on the face of the appear-
ince paper. As to the word ** land-
lord" see note b to s. oczxt.
(y) The landlord may be allowed to
appear either with his tenant or in lien
of him: (see note b to s. ccxxv.) In
eitiier case he is bound to set up no
title inconsistent with that of the ten-
ant when the latter is the oocupant :
(lb) The theory and principle of a
man oat of possession defending as
landlord is this — that whereas ordin-
arily the only person who is competent
to defend is the person who is in pos-
session of the premiK«s, the law allows
one who is in possession by a tenant to
come in and defend as if he were himself
aetnally in possession — not in respect
of his having a right but in respect of
kis being actually in possession by a
tenant who acknowledges him as his
lan.Hord: {Clarke y. Arden, Maule, J,
16 C. B. 252. ) A person who pays rent
to another person as his landlord whe-
ther rightfully or wrongfully his land-
lord, the latter is nevertheless his land-
lord in fact: (lb. Jervis, G. J.) The
landlord therefore when admitted to
defend may, so long as he sets up a
defence consistent with that of the oc-
cupant, assert hU right to the land in
dispute as against the plaintiff in the
ejectment: {Doe d, Willie v. Birck'
more, 9 A. & £. 662 ; Doe v. Street, 4
N. & M. 42; Doe d. Wawn v. Horn, 8
M. k W. 838.) But where a person
defends as landlord, the eoonpiers hav-
ing suffered judgment by default, he
cannot object that thtg have not receiv-
ed notice to quit : {Doe d. Daviee v.
Creed, 6 Bing. 827.) Where nnder the
old practice two persons delivered se-
parate consent rules, each claiming to
defend as landlord, the one for the
whole of the premises claimed in the
action, the other for part of them spe-
cifically named in the consent rule,
under adverse titles, the Gourt ordered
the consent rules to be amended, by
confining them respeetively to such
parts of the premises as were really in
the occupation of each party or his te-
nants : {Doe d. Lloyd et al. v. Roe, 16
M. & W. 481.) See note e to s. cxxv.
{k) Taken from Eng. St. 16 & 16
Vic. cap. 76, s. 174.-^Founded upon
1st Rept. G. L. Gomrs., -s. 96.— Sub-
stantially a re-enactment of s. 8 of re-
pealed Stat. 14 & 16 Vic. cap. 114.
{I) In an action of ejectment un-
der 14 & 16 Vic. cap. 114, for "lot
No. 1, in broken front concession of
the Township of Escott, in the County
of L>)eds," the defendant, by his no-
tice, limited his defence " to a part of
r! Ir^
Ml, >^
I : r.
o 1 .t !
I I i ' •
, \\ \ t 1
L
404 THK COMMON IJIW PBOOXDVRI ACT. [g. ooziiz.
SSi^o **^i^^® certainty, (m) in a notice entitled in ihe Court and cause
ongepro- and 8ifl;ned by the party appearing, or bis attorney, (n) snob
notice to be served within fo«r days after appearance (o)
apon the Attorney whose name is endorsed on the Writ if
any, (p) and if none, then to be filed in the propev Office •
NotiM of and an appearance without such notice confining the defence
am,*9. to part, shall be deemed an appearance to defend for the
whole. (2)
CCXXIX. (r) Want of ** reasonable eertainty" in the
description of the property or part of it, («) in the Writ or
■onabis'oer^ noticc of defoQce, (0 [or in the notice of the title given by
^ Inc. 0. L. P.
Want of rea-
the said lot mentioned in the said writ,
that is to say, &o. :" (setting out such
part witli metes and bounds.) At the
trial defendant admitted that plaintiff
was the owner of the lot described in
tiie writ, but contended that the tract
for which he defended was not em-
braced within the patent : Held that
having in express terms defeuded for
**a part of lot No. 1, mentioned in the
writ," he was not entitled at the trial
to contend that what he defended for
was not a part of No. 1, and on that
account not the property of the plain-
tiff: (Darling t. Wallace, 9 U. C. R.
611.) Under the old practice defend-
ants were allowed to limit their de-
fences by describing the property for
which they defended in the consent
rule: (Doe d. Lloyd et al. t. Roe, 15
M. & W. 481.) If at present the pro-
perty be not so described in the writ
as to convey to defendant a correct
idea of the property sought to be re-
covered, both as to situation and ex-
tent aoplieation may be made to a
Judge in Chambers, for better parti-
culars: (s. coxxiz.).
' (m) See note b to s. coxx.
fn) The notice may be to this effect.
— TllU of Cowt — Caute. — Take notice
that the defendant, A.B., limits bis de-
fence to part only of the property men-
tioned in the writ — that is to say— to
all and singular the parcel described
as follows : commencing at a post, &o.
(0) Computation of time. See note
dtoB. Ivit.
(/>) Whose name, must be indoracd
pursuant to s. ccxzi.
(9) The appearance when filed m»T
not, in the first instance, indicate hov
far, or for what, defendant intends to
defend. After the expirMtion of four
days, if there be no notice limiting the
defence, plaintiff may assume tbe ip.
pearanoe to be for the whole property
described la the writ: see Doed. Da-
venport V. Rhodett 11 M. & W. 6()0.
(r) Taken fh>m Eng. Stat. 16 & 16
Vic. cap. 76, s. 175.— Founded npon
iBt Rept C. L. Comrs. s. 96.
(•) In ejectment for a forfeitnre by
reason of a breach of ooTenant, pHrti<
culars of the breath may be obtain-
ed : (Doe d. Birch v. Philmt, 6 T. B
697.)
(I) The declaration in ejectment
which was the first proceeding in tbe
action when ^eotment was a fictitious
mode of prooedure, gave no informt<
tion as to the proper^ aooght to be
recovered. There being in snob s
case a want of ** reasonable eerttinty"
the CouK or a Judge had power, upon
application of the casual ej»ctor to o^
der particulars to be delivered : {Doed.
Saxtom et al. v. Turner, 11 C.B. 896;)
which order might be obtained before
appearance: [Doed. Vernon, 1. Roe,
7 A. ft S. 14 ;) and if obtained but
not obeyed for more than four terns,
it became necessary for tbe lessor of
plaintiff to give a term's notice of in-
tention 10 proceed : {/b.) HowcTer.the
order unless expressly made astsy of
#
e«ZZX.-ZZzi.] JUDOMINT rOR NON-APPBARANOB.
405
0.
either party »] (**) '^^^ »<>* nullify them, but shall only beJ^^Jj^^J"***-
groand for an applioation to a Judge for better particulars of '>«>*' <">"<>•
the Itnd olaimed or defended, [or of the title thereto,] (t>)
fhioh a Judge shall have power to order in all cases, (w)
CCXXX. (a;) The Court or a Judge (y) shall have power Bog. o. l. p. a»^«t»a^
(0 strike out or confine («) appearances and defences set up by '
penoDS not in possession by themselves or their tenants. penouno*
CGXXXI. (a) In case no appearance shall be entered within
the time appointed, (b) or if an appearance be entered, but the A.i§62^ml
defence be limited to part only, the Plaintiff shall be at liberty judgment u
to sign a Judgment that the person whose title is asserted in anc«f c?^
the Writ shall recover possession of the land, or of the part^^^^^u*]^
thereof to which the defence does not apply, (c) which Judgment
if for all may be in the form contained in the Schedule (A) to'°™^
BToeeedings did not so operate: (Doe
iBobtrU «t al. t. Roe, 2 D. & L. 678.)
go »8 to the defendant in ejectment :
orders hftve been made upon applioa-
tion of the lessor of the plaintiff,
for defendant to specify the partiou-
Itr property for whioh be defended;
{Dot d. Webb et al. ▼. Hull, Doe d.
Siundert t. Neweattle, 7 T. R. 882 n.)
(n) The words within bracliets ara
get and not to be found in Eng.C.L.
P. A. They have reference to s. cozxii
(four own G. L. P. A. which is origi-
til.
(v) A want of "reasonable ecrtain-
tj" is, it is pretumed, at most an ir-
rtgattrity on the part of either party,
whieh his opponent may waive: (N.
R. 106.) Thus, if he talce a step,
ffhieb, in itself, raises a presomptioa
that he is informed of the premises
intended and nature of claim cr defence
u reflpect thereof respeoti v» ly : {lb.)
iv) The particulars of the claim
tna defence, and of the notices of
(laimant and defendant, of their res-
peotive titles must be annexed to the
Sm Priua Records by dumant: (s.
ccxxziv.)
(z) Taken from Eng. Stat 15 & 16
Vic. cap. 76, s. 176. — Founded upon
Ist Eep. G. L. Comrs. a. 97^
(y) Relative powers, see note la to a.
xzzvii.
(z) The verdict in ejectment is gen-
eral, and unless the defence be limited,
plaintiff's right of recovery is as to the
whole property described in the writ of
which he may talte po-session at bisper-
il : {Doed. Davenport y.Rhodet,ll ai.ft
W.600.) It is in the power of any pertion
appearing to a writ of ejectment to
limit his defence '* to a part only of
the property mentioned iu the «;%&:
(s. ooxzviii.) The power "tostrik'
out or confine appearances and de-
fences" is one that the Courts have foe
a long time exercised independently of
any statutory enactment: (see Doe d.
Lloyd et al v. Roe, 16 M. & W. 481.)
(a) Taken from Eng. Stat. 16 & 1&
Vic. cap. 76, s. 177. — Founded npo«
Ist Rep. G. L. Comrs. s. 98. — Sub-
stantially a re-enactment of 14 & 16
Vic. cap. 1 1 4, 8. 6. The section applies
as well to ejectments on a vacapt as on
a contested possession : (Harrington v.
Represent ativea of Bylham, 2 N. C. I*.
Rep. 1033, 28 L & Eq. 448.)
(b) i.e. Sixteen days from the serv-
ice of the writ, (s. ccxxi.) unless there
has been an extension of the time by
leave of a Judge.
(c) If the writ has been personally
H■';^."■. ■
409 THK COMMON LAW PROOKDUBI ACT. [s. ooxn"
this Aot annexed, marked No. 18, or to the like effect and if
for part may be in the form contained in the Schedule (\) *
this Act annexed, marked No. 14, or to the like effect, (d)
.tii^^n.o.L.r. COXXXII. (fi) In case an appearance shall be entered an
eA. 1-7 A-iw^M-iw- jgg^g m^y Ijq mtide up without any pleadings, (/) by the claim
80 that it may appear for what defence is made, and directing
the Sheriff to summon a jury ; (t) and snoh issue, in case de-
serred, an affidavit of aerTioe must be
filed before sigoing judgment in default
of appearance : (N. R. 92.) If not
perBonallj serTed a Judge's order or
rule of Court must be obtained to au-
thorise the signing of judgment: (lb.)
(d ) Iq an action for mesne profits a
jvagment by default for claimant may
be pleaded by way of estoppel against
the defendant in the same manner as a
judgment by default in any other form
of action: (Wilkinton ▼. Kir by, 15 C.
B. 430, 26 L. & Eq. 871.) Tho Com-
mon Law Procedure Aot having put
ejectment in the same position as other
actions, plaintiff's position being Je-
termined the result iS the same as in
anj other action: (/6.) Therefore
where in trespass for mesne profits to
which the pleas were, first, not possess-
ed, and secondly, that before the said
time when, &o., one W. was seised in
fee and demised for 2 1 years to T, who
demised to the defendan t, who entered
by virtue of the dbmi'se and replication
by way of estoppel as to trespass since
26th October, 1858, setting out a writ
of ejectment in which the plaintiff was
claimant, and dated 26th October,
1853, directed to the defendant as te-
nant in possession, and judgment
thereon by default and entry of plain-
tiff by v'rtue of the judgment, the re-
plication was held on demurrer to be
good to both pleas: (lb.) Held also
that it was not necessary to aver not-
ice of the proceedings to defendant or
that the writ of possession had been
issued or executed, andHiMat entry by
plaiutiff if necessary was suffiolenll.
avened: (/A.) Held also that S
estoppel was from the date of the writ
and that plointlff 's title would be Me-
sumod to continue, until by rejoinder
it was shown to have been determined •
(lb.) It is competent to claimant in
ejectment after having established
his right to possession, to give evi-
denoe of and recover mesne piofits in
the same action : (s. oolxvil.)
(«) Taken from Eng. Stat. 16 & le
Vic. cap. 76, s. 178 — Founded upon
1st Rept. C. L. Comrs., s. 99.
(/) lo eieotment under this Act
there is no plea of any Icind allowed
and hence defendant will not be allow-
ed to plead an equitable defence >
(Neave v. Avery, 16 C. B. 828.) The
claimant by his writ does all that is
neoess ry to assert title in himself and
defendant by bis appearance does all
that is necessary to deny it. There-
upon the parties are at issue. It has
been held that the pfea of not gniltj,
under the old form of ejectment was
divisible so that claimant might have
a verdict as to the part of the proper-
ty sought to be recovered, to which
he proved title, and defendant, as to
the residue : ( Doe d. Bovman t. Ltvit
2 D. & L. 667.)
(^) «. By claimants, if suing in
person, or by their attorney, if suing
by attorney.
(A) Under s. oczxviii.
(t) This is done by the words "let
a jury, &o.," as used in the forms gir-
en in the Schedule.
n, ccxxxiii.-iv.] 8peoi.*t. ca8«. 40"
fence is vaade fur the whole, may be iu the form oontaincd in
tbeSchedue (A) to this Act annexed, marked No. 15, or to
the Hko effect, (,/) and in case defence is made fur part, may
1)0 in the furm contained in the Schedule (A) to this Act an« '<>"»*•
nexed, marked No. 14, or to the like effect.
CCXXXIII. (k) By consent of the parties and by leave ofKnR.^c.L.K<Jf^«2lf z'tI'
a Judge, (l) a special case nioy be stated (m) [as in other
A,1862, 1.170.
BjMclal CUM.
♦ ^^0
»?•
ictions]. (»)
CCXXXIV. (o) The Claimants may, if no special case be k„^ (,. l. r. e*rx.st»i^
agreed to, proceed to trial in the same manner as in other ^•""'■■^*** uM.»h2^
actions, (p) and the particulars of the claim and defence, (?) SfrMTriw ^'^Z'"
fand of the notices of Claimant and Defendant of their respec- JP''^'J?^JJ
tive titles], (r) if any, or copies thereof, («) shall be annexed to'*!*""'
II
■H
1
'r-
i
it '
IT . ;
m
1
||
11
•1
¥
cute
()') When a Statute enacts that a
proceeding shall be in a given form,
thitform mu.stbe followed : see War-
«n V. Love, 7 Dowl. P. C. G02 ; Cod-
rington^. Curlewii, 9 Dowl. P. C. 968.
(k) Taken from Eng. Stat. 15 & 16
Vic. cap. 76, s. 179.— Founded upon
htRep. C. L. Comrs. s. 100.
(/) Whenever a thing is directed to
be done by leave of a Judge, an oppli-
cfttion to that Judge is intended. Ap-
plicfttiona to a Judge should generally
be supported by affidavit. The pro-
ceedings under this section will be by
gummons and order. The summons
eliould be intitled in the Court and
cause, and be "to show cause why a
special case should not be stated in this
cause pursuant to a. 233 of C. L. P. A.
1856."
(m) For precedents of special cases
in ejectment, see Doe d. Kimber v. Cafe,
TEX. 6/5; Armstrong y. Bowdige, 16
C. B. 858.
(n) Instead cf the words in brackets
read in Eng. C. L. P. Act, " according
to the practice heretofore used." The
"special case" intended is, it is appre-
hended, that for which provision is
made in s. Ixxxi. as to questions of
law. In what manner and to what ex-
tent 8=i. Ixxvii. et seq. as to special
oases in matters of fact will apply to
actions of ejectment has not been de-
tcrmiued.
(o) Taken flrom Eng. Stat. 15 & 16
Vie. cnp. 76, s. 180. — Founded upon
1st Rep C. L. Comrs. s. 101.
(;>) It is directed that olaimanta
'* may " proceed to trial in the same
manner as in other actions, and of
course serve notice of trial and take
other steps necessary before a trial in
ordinary actions: (see ss. ozlvi. etteg.)
Whether claimants in ejectment mutt
proceed .to trial as in other actions or
be subject to be proceeded against
under s. cli. in case of neglect remains
to be decided.
(7) The "particulars of claim" "if
any" here mentioned in contradistinc-
tion to notice of the nature of claim-
ant's title, may mean the " better par-
ticulars," for which provision is made
in s. ocxxix. So "particulars of de-
fence" " if any," may mean the notice
limiting the defence, under s. ccxxviii.
(}') The words in brackets are ori-
ginal, and have reference to ss. ccxxii-
cczxiv. of this Act.
(a) It should be observed that cop-
ies may be annexed to the record, whe-
ther apparently the originals be or be
not forthcoming.
408
TBI COMMON LAW PROOKDURE ACT.
I!
Vtli
".miim^ .
im
iif"«'
; > : !.VV,
the record by the Olaimants ; (<) and the qnestion at the tri I
shall, except in the cases hereinafter mentioned, (u) be wheth
the statement in the Writ of the title of the Claimants is tm
or false, and if true, then which of the Claimants is entitled
and whether to the whole or part, and if to part, then to whi h
vtirm of an- part of the property in question ; (v) and the entry of the ye
diet may be made in the form contained in the Schedule (k\
to this Act annexed, marked No. 10, or to the like effect with
sach modifications as may be necessary to meet the facts, (y,)
try of v»r-
41ot.
(() The delivery of particulars of
the claim or defence will not require
to be proved when they are appended
to the roonrd ; (Maearthjf t. Smith, 8
Bing. 145.) If they materially vary
Arom the partionlara delivered, claim-
ant's right to recover may be plaoed
in jeopardy. Should claimants go to
the jury, and recover upon any ground
varying from the particulara proved to
have been delivered, defendant might
be entitled to move for a new trial :
(see Morgan t. Harria, 2 C. & J. 461.)
Should, however, defendant at the
trial be in a position to prove the vari-
ance be might have the point reserved
and afterwards in the event of claim-
ant's recovering, move the Court to
enter a nonsuit : (lb.) In either onse
it would be in the diforetion of the
Court to order the attorney for the
claimant to pay the costs of the first
trial: (lb.) But under s. cozoi. of
this Act tlie presiding Judge will bo
liberal in allowing amendments when-
ever it is made to appear that de-
fendant either has not been or ought
not to have been misled by any such
variance.
(u) The oases to which reference is
made are, it is believed, such as are
mentioned in s. ocxUii, which provides
for the case of claimant being a joint
tenant, tenant in common, or copar-
cener, in which, the jury, to entitle
claimant to a verdict, must find an ac-
tual ouster.
(v) This section seems to sanction
the principle of the issue being divis-
ible either as to the property sought to
be recovered, or the number of parties
appearing as claimants. If go. coit.
will follow the result of thflflndiiirTnj
be so distributed : (see Doe d. Bolml
V. Lem», 13 M. ft W. 241 ; DotdVl
Iyer v. King, 2 L. M. & P. 493."";
also Doe d. Errington r. Errinaton i
Dowl. P. C. 602; Doe Smith v K
brr, 2 A. & E. 448; and geneX
N. R. 61, and note y to s. oxxi;) but
the form of judgment giyen In tii«
schedule, it may be observed, of itwi/
does not bear out this opinion. Undt
the 14& 16 Vic. cap. 114. It WS8 held
in a case where the jury found a gen-
eral verdict for plaintiff, though de-
fendant wos in fact entitled to a part
of the land mentioned in the writ-
the Court held that this was not %
ground for a new trial butfor anappH.
cation to restrain plaintiff from takine
possession of such part: IFerrier t
Moodie, 12 U. C. R. 879.) Under thi
C. L. P. A. execution may issue •< for
the recovery of possession of the pro-
perty or of tuch part thereof as the jury
shall find claimant entitled to:" (g,
ccxxxix. ) In ejectment under the 14 i
16 Vic. cap. 114, one or more of seve-
ral plaintiffs might reuover: {Butler
et al V. Donaldton, 10 U. C. R. 643.)
(tr) Ifit appear that claimant though
having had a right to possession when
he issued and served his writ, hsa
none at the time of trial, the ve^
diet may be entered according to the
fact: (s. ocxxzv.) If defendant ap-
pear and claimant do not, the latter
may be nonsuited, (s. ooxxxvii.,) in
which case defendant will be entitled
to judgment for his costs : (N. R. PI.
24.) So if claimant appear, but de*
.♦
Ifll. 44.
(CIIZT-tI] OHANQI Of PLAOB OP TBIAL. 400
CCXXXV- (x) In oue the title of the Clairaant shall appear ]^n^.^u^^.
toh»»e exUted ai alleged in the Writ, and at the time of 8er- ,,(^,,„,^4
. thereof, (if) but it shall also appear to have expired before "'""J"^"',*'"^
. tjgieof trial, (2) tho Claimant shall, notwithstanding, bewriMmtaot
(itled to a verdict according to the fact, (a) that ho was cn-
lidod >t ^^® ^'""^ ^^ ^^^ bringing the action and serving the
ifrit tn^ ^ Judgment for his costs of suit.
CCXXXVI. (6) The Court or a Judge (c) may, on the op- Kng. c. i. p.
licatioD of either party, on ground shown by affidavit, (fi)
rder that the trial («) shall take place in any County other aitvrpUM of
(uiMntio not, the former shall been-
?L to rwoTer without any proof of
L (flOMi'H). and be entitled to bla
Ltt M in other caees : (N. R. 94.)
It) Ttken from Eng. Sut. 16 & 10
fie. wp- 76, 8. 181.
(y) The writ ehoald be direotod to
tkt pinoDS la poBseaslon of the land
iMcbt to be recovered, '• to the poenes-
?B whereof olalmant Is entitled." The
frit kllegee a right of clnimant to
posxnion, but does not show anj
m i'po" thl' K<'0**'**^ exception hns
bMD Ulcen by several legal writers to
tli«l«DKU»ge of that part of the Eng.
C. L. P. Act which corresponds with
tlie leoiion here annotated. But under
oorC. L. P. Act there Is a distinotion
tobeobgerred, in this, th>it In addition
totbt tllegations of the writ, there
Dwt be a notice annexed to the writ
ijiMlnsing " the nature of claimant's
title": (8 coxxil.)
(f) Which fact in general can only
beMtabllshed by testimony given at
the tri»l.
(a) This was always the Uw. Upon
I special verdict In ejectment under
the old practice, it appeared that the
lesaor of plaintiff claimed as tenant for
life. And upon an affidavit of hla death
it was moved that all proceedings
might be stayed, since It would be
Dseless to contest the suit upon the
aerits. Sedper curiam, " Though the
possession cannot be obtained, yet the
plkintiff has a right to proceed for da-
msges an<i costs ; all we can do is to
oblige him to give security for costs,
now that the lesaor la dead, as we do
In the case of Infnnt leaaors, who can-
not enter into the consent rule:"
(Thruttout dim. Turner v. Grey «t al,
2Str. 1056.)
(A) Taken from Eng. Stnt. 16 & 16
Vlo. cap. 76, s. 182 Subatnntlally the
same as Stat. U. C. 7 Wm. IV. cap. 8,
a. 14, which Is taken from Eng. Stat.
8 & 4 Wm. IV. cup. 42, s. 22, and which
extends to all local actions.
(e) Relative powers. — See note m to
8. xxxvll.
(d) The application must be ground-
ed upon an affi<lavit showing a neces-
sity for the change intended. It is not
declared what shall be a saffiblent
ground for the application. Under
the Act of William any cause would be
sufficient, which showed that delop or
expmae would be avoided, and that it
would be more convenient to have the
trial take place in the County to which
a change was deaired : (see Doe Baker
V. Harmer, H. & W. 80.) If the ground
be that an impartial trial cannot be
had in the county in which the venue
is laid, that ground must be made out
in a most satlsfact try manner to in-
duce the Court tn'int» rfcre : (8<>e Bria-
eoe V Rohertt, 3 Dowl. P. C. 434 )
(«) The power conferred by the
Act of William la to ordei the "Issue"
to be tried in any other county than
that In which the venue is laid. Hence
It was held that no application under
that statute could be made until isene
joined : (Bell v. Harrison, 4 Dowl. P.
C. 181.)
;;:}.
k. 1
j ■;
,
,'--^-'!- -j
■■ r
410
TUB COMMON LAW PROCEDURE ACT.
trial on afll-
davit.
[»• ccxxxvii.
and such order
may be had accord.
(/)
tbaa that in which the venue is laid,
being suggested on the record, the trial
CCXXXVII. (h) If the defendant appears, and the CI *
ant does not appear at the trial, the Claimant shall be
aSdoi!dmantSuite<l, (0 and if the Claimant appear and the Defendant doe
making da- ^^^ appear, the claimant shall be entitled to recover (j\ ^-^
Knjf, 0. L, V.
A.1852, 8.183.
Defendant
fault, aod
vice ver$a.
eov^ slfxil 6-v^r,nK. 0. L. "
. t. e
cK o.y
A.1852, 8.184.
out any proof of his title.
CCXXXVIII. (k) The Jury may find a special verdict m
(/) The summons may be '* to
show cause why the trial ia this cause
should not be had in the County of B.,
and not in the County of A., in which
the venue is laid ; and why, for that
purpose, a suggestion should not be
entered on the record, that the trial
may be had in the said county of B.,
according to the Common Law Proce-
dure Act, 1856." The order may be
easily prepared upon this summons :
the only difference being that it should
be directory and not to show cause.
(ff) Th 1 suggestion may be to this
effect : — And the plaintiff {according to
the fact) gives the Court hero to under-
stand and be informed that un &o , the
honorable &c., one of the Justices &o.,
did order that the trial in this cause
should take place in the County of B.,
instead of the County of A.
(A) Taken from Eng. Stat. 15 & 16
Vic. cap. 76, s. 183.
(t) And defendant shall be entitled
to judgment and his costs of the cause :
(N. R. PI. 24.)
[j) i. e. To recover possession of
the property sought te be recovered.
If claimant seek to recover mesne
profits whether defendant appear or
not, evidence must be offered of the
mesne profits : (s. cclxvii.)
(A) Taken from Eng. Stat. 15 & 16
Vic. o*p. 76, 8. 184. — Founded upon
1st Rep. G. L. Comrs. s. 102.
(/) The origin of a special verdict is
tbe Statute of Westminster II. (13 Ed.
I. cap. 30 8. 2.) It is when during
the trial of a cause anj difficult ques-
tion of law arises tbe determinatiun of
which is necessary to a findine eirt,..
for plaintiff or defendant, the jury in
stead of finding generally for the "i
or the other, find specially the f.!
disclosed upon the evidence before
them, and conclude to the effect " that
they are ignorant upon which side tbev
ought upon these facts to find the
issue ; that if upon the whole matter
the Court shall be of opinion that the
issue is proved for the plaintiff, thev
find for the plaintiff accordingly and
assess the damages at such sum &c
{according to the nature of the cm) but
if the Court are of a contrary opmion
then vice versa." However, aH ou a
general verdict the jury do not them-
selves actually frame the postia, so
they have in fact nothing to do with
the formal preparation of a special
verdict. When it is agreed that a ver-
dict of this kind shall be given the jury
merely declare their cpinion as to any
facts remaining in doubt; and then
the verdict is adjusted without their
further interference. It is settled under
the correction of the Judge by the
counsel on either side, according to the
state of the facts as found by the jury
with respect to all particulars on which
they have delivered an opinion ; anJ
with respect to other particulars ac-
cording to the state of the facts which
it is agreed they ought to find upon the
evidence before them. The cpeclal
veriict, when its form is thus settled
is together with the whole i^roceedlngg
on the trial then entered on record, and
the question of law arising on the facts
found is argued before the Court in
ccvrxvin.] ^^t^^ of except jons.
reitber party may tender a bill of exceptions, (m)
r^ -'Wl
411
l?pocl
diet,
Ao.
1 M *nd decided in that Court as in
hTle of a demurrer: (Steph. PI.
JM ) The special verdict la in prin-
io e tlie t>a«»« ^^ * special case ^s.
ixxiii). but with this difference — the
mecial case is not entered on record.
The jury m«s* ^"^ f**'*^ *"'' °°* mere-
it the efidence of facts : (see Bird v.
iLeton, 1 East. 111.) The Court
Mnnoi draw from other statements in
! special verdict any inference of
facte necessary to the determination of
the case ; such facts muit be expressly
fouud one way or the other, and if they
be not found the Court will award a
««n« de novo : (Tancred el al. ▼.
cli'ty, 12 M. k yf. 816.) The
Judge ought to make a note of the
,erdict at the trial, upon which note
the special verdici is afterwards
prepared in form. Amendments of
the special verdict, when in accord-
ance with this note, may be made :
iVamers v. Postan, 3 B. & P. 343;
hmsy.^yixon, 12 Q B. 646), pro-
tided, however, the alterations be such
as to carry out the intention of the
jury : ( Williams v. Breedon, 1 B. & P.
829; Richardson T. Mellish, 8 Biug.
334.) No alteration of substance can
it seems be made : {^Spencer v. Gottr,
1 H. lit. 78.) In one case an amend-
ment was allowed upon an affidavit of
trhathad been proven at the trial:
(Mayo V. Archer, 1 Str. 614.) The
special verdict when drawn up may be
set down tor argument without conct-
lim (N. R. 16), upon request of either
party four days before the day on which
thesame is intended to be argued: (lb.)
Jhe party setting it down must four
days before the day appointed for ar-
gument deliver a copy of the special
verdict to each of the Judges uf the
Court in which it is set^ down to be
heard: (N. R. 17.) Notice of argu-
ment should thereupon be forthwith
given to the opposite party : (N.R. 16.)
(m) The origin of a bill of excep-
tions is Stat, of Westminister II., (18
EJ. I. cap. 81.) It is the province of
the judge at Nisi Prius to superintend
the conduct of a case and to direct the
jury upon all matters of law arising
out of the case. If the judge in hia
direction mistake the law the counsel
on either side may require him to seal
a bill of exceptions stating the point
or points in which be is supposed to
err. If the statement be truly made the
judge is bound to seal it in confession
or it« accuracy: (Steph. PL 89.)
The cause then proceeds to verdict as
usual. The opposite party, for whom
the verdict is given, is entitled, as in
common course to judgment upon such
vtrdict in the Court in banc, for that
Court takes no notice of the bill of ex-
ceptions. But the whole record being
afterwards removed by writ of error,
the bill uf exceptions is then taken
into- consideration in the Court of Er-
ror and there decided : {lb.) Thus a
bill of exceptions is in the nature of an
appeal from the Court out of which
the record issued for trial after judg-
ment given in that Court to one of
Superior jurisdiction. The points of
exception must be in fact taken at the
trial : {Doe v. Fisher, 2 Bligh. N.S. 9 ;
Wright V. Sharp, 1 Salk. 288 ; Culljf
v. Doe d. Taylerson, 11 A. & E. 1008
n.) But the bill is usually settled,
drawn up, signed and sealed after-
wards : (see Gardner v. Baillie, 1 B. &
P. 82.) It ought to contain the ex-
ceptions made to the directions and
ruling of the judge, together with so
much of the evidence given at the
trial as is necessary to make the ex-
ceptions intelligible to the Court in
error, and furnish grounds for the al-
lowance or disallowance of the excep-
tions : {Davis et ux v. Downde3,]^et Tin-
dal, C. J., 1 M. & G. 482.) It is un-
necessary that the bill should contain
the statement of a verdict within it,
although it more commonly does so ;
for it may be appended to the judgment
roll which contains the pleadings, the
is-ue joined, the jury process, the ver-
dict, and the judgment of the Court
below: {IB.) It is misdirection, taii
not non-direction that is the proper
subject of a bill uf exceptions t (ife-
Alpine v. Magnall, per Parke, B., S
I'-
\v
■ O:
m
'1 H
m
412
THE COMMON LAW PROCEDURE ACT.
[«• ccixxix.
a»>T. St
^Z(>
^^ ^^""Alhl: CCXXXIX. (n) Upon the finding for the Claimant, U)
Itr
^
f
.1^'.
u
•1
1",
i
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•Jf
i
i
hi
'1
i
■ti
i Is
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1L JJ43 ^li .
Lyj
i
ijffi..iii
Judgment u^^^9i^^^^ ^^1 ^ "gn^d (/>) and execution issue for the recc
Claimant very of possossion of the property or of such part thereof
the Jury shall find the .. laimant entitled to, (9) and for costs ( \
vithin such time not exceeding the fifth day in Term after a
verdict, as the Court or Judge before whom the cause is tri H
shall order, («) and if no such order be made, then on the fifth
day in Term after the verdict. (<)
Bxecntioa
and costs.
C. B. 617.) The bill may be amend-
ed after it is sealed: (Richardson ▼.
Melliah, 8 Bing. 334. See also Doe d.
Church V. Perkint, 8 T. R. 749.) Tlie
party who tenders a bill of exceptions
is not thereby precluded from moving
in arrest of judgment for defects ap-
parent on the face of the original re-
cord: {Enfield t. HilU, 2 Lev. 236.)
A party cannot select one point to
go into error, and apply to the Court
in banc, on another. He must elect
to take all the points on which he re-
lies into error or none. But if there
be any point which could not in any
way be taken into error he may apply
to the Court in banc, for a new trial
upon that point without abandoning
his bill of exceptions : {Adams y.
Andrews, 16Q. B. 1001; Gregory v.
Slowman, 1 El. & B. 860. See also
Fabrigat v. Mostyn, 2 W. Bl. 929.)
(n) Taken from Eng. Stat. 16 & Id
Vic. cap. 76, s. 186. — Founded upon
1st Rep. C. L. Comrs. s. 103.— Sub-
stantially a re-enactment of Stat. 14 &
16 Vio. cap. 114, s. 8.
(0) The finding must be upon the
question whether "the statement in
the writ of the title of the claimants is
true or false, and if true, then which
of the claimants is entitled, and whe-
ther to the whole or part, and if to
part then to which part of the proper-
ty in qmstion :" (s. ccxxxiv. ; see also
notey to s. ccxxxv.)
{p) Which judgment ought to be
signed pursuant to s. cclx. Form
thereof see Scb. A, No. 16, to this Act.
Iq) See note 0, supra.
\r) There may be either one writ of
execution or separate writs for the re-
covery of possession and costs at th.
election of claimant : (p. coxli ) it ^^^
be observed that the costs are made 1
follow the judgment as in other actions
But since the U.L. P. A, as before it th«
Court in an action of ejectment has in
risdiction to orr er by rule th^ partlei
who really df.fend to p*y the costs
of claimant though such parties be
strangers to the record : {Hutchmm
et al. V. Oreenwood, 4 El. & B. 324 \
However, to entitle claimant to cal
upon such third parties being strane.
ers to the record to pay the costs of
the action, it must be clearly shown
that the defence was conducted by such
third parties and was really their de-
fence and not that of the party vho
ostensibly defended : (Anstey et al v
Edwards, 16 C. B. 212.)
{s) Qu. Is it intended that the Court
or Judge shall have power in ojectment
to issue speedy execution under 3.
clxxxii ? In England there is nn ex-
press provision to this effect: (I Wm.
IV. cap. 70. s. 88.) Authority is giv^
en to th<» Judge who may try an eject-
ment cause, in his discretion "to order
that jutigment may be entered and exe-
cution issue in favor of claimant at the
expiration of six days next after the
giving of the verdict :" (s. cclxviii.)
(0 The Eng. C. L. P. Act here con-
tinues, •' or within fourteen days sfter
such verdict whichever shall first hap-
pen," which expression has reference
to s. 120 of Eng. C. L. P. Act, 1852,
not adopted by our Legislature, a'low-'
ing execution in all cases to issue in
fourteen days after verdict under cer-
tain regulations.
■''■°^«t!?*'
JVDQMENT.
418
j,.ccxl.-i.-u-]
CCXIi. (tt) Upon a finding for the Defendants or any of J'lljS*,^^;
. (f) Judgment may be signed and execution issue forc<^,gtoi,j.
^ts'against the Claimants named in the Writ, (w) within such fc»j;jjt^|'^
time not exceeding the fifth day in Term after the verdict, as
he Court or a Judge before whom the cause is tried shall
order (x) and if no such order is made, then on the fifth day
in Term after the verdict, (y)
CCXLI. (z) I'pon any Judgment in ejectment for recovery Eng, o. l. p.
of possession and costs, there may be either one Writ or sepa-^*^"^^""^*^'
nteWrits of Execution for the recovery of possession, (a) and^HtsofiSl
for the costs, at the election of the Claimant. (6) ^",«°f ""y
CCXLII. (c) In case of such an action being brought by Eng. o. l. p.
some or one of several persons entitled as joint tenants, tenants
in cominon or coparcenery, any joint tenant, tenant in common ants'be'ing '
parcener in possession, may,(<i) at the time of appearance^"'"* ^^'
C^^ sUi fin.
A
IT CO]
(u) Token from Eng. Stat. 16 & 16
Tic-caP' 7^' "• 186.— Pounded upon
IstRep. C. L. Comrs. 8. 140.
(v) It is pre umed that if one of se-
leral defendants succeed as against
plaintiff, such defendant will be enti-
tled to his costs, being an aliquot pro-
portion of the whole costs of the cause.
(id) The effect of the judgment is
declared to be the same as that of the
judgment in ejectment heretofore used
(s.«clxi.)
(z) See note » to preceding section.
\jj) Tiio section corresponding with
this in Eng. C. L. P. A. concludes in
the same manner as mentioned in note
( to the preceding section and for the
reasons assigned in that note.
(2) Taken from Eng. SUt. 16 & 16
Vic. cap. 76, s. 187.
(a) The judgment in ejectment en-
titles claimant to possession of the
land described in the wiit; but he
cannot take possession by force. —
Bis remedy is by writ of h»bere Jaciaa
fotsmionem : (Doe d Stevm» v. Ltrd,
6Dowl. P. C. 266.) There may be
circumatances under which a writ of
restitution would be more proper than
a writ of hah. fae. poa».: (see Doe d.
Pitcher ▼. Soe,Q Dowl. P.O. 071 ; Doe
Whittington v. Hords, 20 L. J. Q. B.
4U6.^
(6) AH writs of execution must be
directed to the sheriff of some particu-
lar county. The writ to deliver pos-
session of land must of course be dir-
ected to the sheriff of that county in
which the land is situate. And if in
that county there be sufficient goods and
chattels or other property liable to eze-
cntion there would not seem to be any
good reason for issuing two separate
writs where one might suffice, viz., hab.
fac. prot. and fi./a. On the other band,
if in such county there be no available
property, then the execution for costs
may forthwith issue into any other
county : (s. olxxxvi.) A sheriff can-
not, under an ordinary writ of fi. fa.,
break outer doors : {Stmaynes case, 6
Rep. 92 ; Burdett v. Abbott, 14 East
167 ; Z/aunocA; v.i?rown,2B.& Ald.592,)
but if having a writ both for posses-
sion ai>d costs, may, it is presumed,
open outer doors to give possession,
and then levy for costs.
(c) Taken from Eng. Stat. 16 & 16
Vic. cap. 76, s. 188. — Founded npon
1st Rep. C. L. Comrs. s. 106.
(d ) May. If the notice made neces-
f'M-y by this section be not given, the
ttf.
I. ■ '}:-.:■■' I
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A-'\M
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414
THE COMMON LAW PROOBDUEE ACT.
C'-ocxE
«JJ^^*«or within four days after, give notice in the same form aa A
Jo. "Jg^^^ notice of a limited defence, (c) that he or she defends as su I
cwmantto and admits the right of the Claimant to an undividerl aii.. *
an undivided /•i.inii. onare of
*an, te. the property (stating what share), but denies any actual oust
of him, from the property, (/) and may within the same tiae
file an affidavit, stating with reasonable certainty, that he orsh
is joint tenant, tenant in common or coparcener, and the sW
of such property to which he or she is entitled, and that he o
she has not ousted the Claimant, (g) and such notice Bhail h
entered in the issue in the same manner as the notice limitin
the defence, and upon the trial of such an issue, the additional
question of whether an actual ouster has taken place shall be
tried, (h)
possession of defendant will be consid-
ered adverse, and the action main-
tainable against him without proof of
actual ouster.
(e) See s. ccxxviii.
(/) At common law the possession
of one joint tenant, coparcener, or te-
nant in common is presumed to be the
possession of all : {Fordf.Cfray,l Salk.
286; Smalesv. Dale, Hob. 120; Doe
d. Bamett t. Keen, 7 T. R. 886), and
this presumption is only removed by
proof of circumstances indicative of an
adverse holding. It is clear law that
one joint tenant &c., may so conduct
himself as to oust his co-tenants and
hold in severalty. Such conduct
in law and in fact amounts to an actual
ouster, to constitute which, actual
force is quite unnecessary. Proof of
any circumstances indicating an inten-
tion on the part of the tenant in pos-
session to hold to the exclusion of his
eo-tenants, establishes an aotual oust-
er. Thus thirty-six years sole and nn-
intermpted possession by a tenant
in common without any account to or
demand made by or claim set up by his
oo-tenant, was before Stat. 4 Wm. IV.
cap. 1, B. 24, held to be a sufficient
ground for a jury to presume an actual
ouster: (Doed. Fishar et ux. v. Protser,
Cowp. 217.) So proof that one
joint tenant ordered another out of
possession of a house occupied in com
mon and that the latter quitted bos
session : (14 Vin. Abr. 672.) So proof
of a demand of possession by one ten-
ant in common, and a refusal by the
other tenant in common, and proof that
the latter stated he claimed the whole
property : {Doe d. HeUings v. Bird U
East. 49. ) So where one of several joint
tenants authorised a railway company
to take possession of the property
which the company did : {Doed. Wavn
V. Horn, 6 M. & W. 664.) The Statute
4 Wm. IV. c. 1, 8. 24, has materially
altered the rule of the common law on
the subject of constructive possession
and should in all cases arising under
this section, be carefully consulted.
{g) In ejectment by one joint ten-
ant, &c., to recover land in the posses-
sion of a co-tenant when the action
was a'^ fiction, the consent rule con-
fessed only lease and entry but not
ouster.
{h) Thus it appears that the right of
one joint tenant, &c., to maintain eject-
ment against another depends entirely
upon proof of an actual ouster. Want-
ing this, the suit must fail ; otherwise
the absurdity would arise of a mas
bringing an action to recover posses-
sion of land of which in the eye of the
law he is legally possessed : (see next
section, cc^[iii.)
DEATH NOT TO ABATE AOTION.
415
2-
found
and the
CCXIillL («) Upon the trial of such issue as last afo'fisai«l) 5"1"62|'Jj[8»; ^^^^^ *>^'f«.
.. jj jiuji be found that the Defendant is joint tenant, tenant ^^^^^^^ ^ *'.«■* c 4 i-^-
. joomon, or coparcener with the Claimant, then the question ^gj,''j^jjt ^
fliether an actual ouster has taken place shall be tried, and ^^^^'^
nless such actual ouster shall he proved, the Defendant shall M>t- be
be entitled to Judgment and costs ; ( ^' ) hut if it shall be found contnu-y'
either that the Defendant is not such joint tenant, tenant in
eommon, or coparcener, or that an actual ouster has taken
•Jgce then the Claimant shall he entitled to such Judgment
for the recovery of possession and costs, (/c)
CCXLFV. (0 The death of a Claimant or Defendant shall kd|. c. l. p.
«n» MHse the action to ahate, (in) hut it may he continued as D^ath of f'^<-c^ij
liuiw>«o*' ^ ' \. ^ o either party v ^ / '
hereinafter mentioned. nottoaute
CCXLV. (») Incase the right of the deceased Claimant j. j,j^p ccrr^s^a^J^
jiall survive to another Claimant, a suggestion may he made ^"62, ■.iw. f^ -i^ c-U -l-j
u.c cA I-
iL
7
(i) Taken from Eng. Stat. 15 & 16
fic. c«p. 76, 8. 189.
()') The provisions of this section
necessiirily arise out of the preceding
one. If it be not proved that the party
ia possession being a joint tenant, &c.,
is holding adversely to claimant, then
I recovery in ejectment would be most
harassing, and such as the law
would never tolerate. On the contrary,
under these circumstances, a verdict
would pass for defendant and he would
be entitled under this section to judg-
ment and costs.
(it) This proposition is the converse
of that enacted in the first part of the
section and supported by similar prin-
ciples. In the event of a recovery by
claimant, then defendant would be
ejected in the ordinary manner and be
liable to payment of claimant's costs
of suit under this section. See also
8. ccxxxix.
(/) Taken from Eng. Stat. 15 & 16
Vic. cap. 76, s. 190.
(m) The abolition of all fictions in
the action of ejectment has resulted
in ihis and the following enactments.
Tbiij section is a mere echo of s. ccviii.
The same may be said of each of the
following sections, in so far as they
have reference to the revival or conti-
nuation of proceedings either before or
after judgment. A general clause de-
claring that ejectment e^hould be con-
ducted as near as may be in the same
manner, as personal actions might have
saved much useless repetition. Yfhen
John Doe, a legal myth, was plaintiff
in ejectment, he never died, and the
death of bis lessor, who was the real
plaintiff, did not affect the preceding :
(Doe d. Egremont v. Stephen, 10 Jur.
570.) But now that the real claimant
must be the actual plaintiff in this as
in other forms of action the application
of like rules as to reviving or continu-
ing the action as are applied to ordin-
ary actions,is both just and reasonable.
The right to costs or liability to them is
also anatural result of the same change.
Costs formerly in ejectment being only
recoverable under the consent rule,
which was enforceable by attachment,
established a personal liability deter-
minable with the death of the party
liable: {Doe d. ITarrison y. Sampson,
4 C. B. 745.)
(n) Taken from Eng. Stat. 15 & 16
Vic. cap. 75, s. 191, in effect the same
as B. ccix.
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416
THE COMMON LAW PBOOKDUBK ACT.
[".ccxlvi.
C»v-». sbA ■^,rv—
S&Vit""ofthe death, (o) which suggestion shall not be traversable but
SSSrttoM* *°*^**' °"'y **® subject to be set aside, if untrue, (p) anj^j^
action may proceed at the suit of the surviving Claimant *
if such a suggestion shall be made before the trial, (q\ the. a
surviving Claimant shall have a verdict and recover such Jud
ment as aforesaid, (r) upon it being made to appear that h
was entitled to bring the action either separately or jointlvw'tli
the deceased Claimant. (<)
CCXLVI. (^) In case of the death before trial of
several Claimants, whose right does not survive to another
of ihrdeceu* othcrs of tho surviving Claimants, («) when the legal represe
does uot Bur- tative of the deceased Claimant shall not become a party to tf)
suit in the manner hersinafter mentioned, (y) a suffo-estion ma
be made of the death, which suggestion shall not be traversable
but shall only be subject to be set aside if untrue, (w) andth'
action may proceed at the suit of the surviving Claimant f
such share of the property as he is entitled to {x) and costs f ^/^
Eng. 0. L. p.
A.18S2,8.192.
If the right
one of
other, &Q,
(o) The entry of the suggestion
necessary to the continuanoe of the
suit may be made at any time dur-
ing the progress of the suit and before
verdict. If at Nisi Prius it may be
substantially the same as that in note
V to s. ccix.
(/>) The application to set aside a
suggestion because of its untruth must
be grounded upon an affidavit. The
proceedings will be by summons and
order. The summons may be «' to show
cause why the suggestion of the death
of C. D. &c., should not be set aside
with costs, the same being untrue."
(7) It is not clear that under this
section a suggestion can be made after
trial. Upon a suggestion being made
it is enacted in the early part of the
section *' that the action may proceed,"
&o. The doubt is as to the pecu-
liar language of the part of the section
here annotated, '*and if such sugges-
tion shall bo made before the trial,"
&c. See further, note b to.8. ccxlvii.
(r\ See s. ccxxxix.
\a) This section appears to provide
for the death of one of two or more
claimants during the pendency of asuit.
"in case the right of the deceased o'aim.
ant shall survive to another claimant"
and yet at the end of tho beotion en-
acts that the surviving clnimait (.hall
have a verdict if it be made to appear
that he was entitled to bring tbe nction
" either separately or jointly with the
deceased claimant." It is intended that
the survivor shall recover, whether en-
titled in his own right, independently
of the deceased, or by survivorship.
The next section explicitly pruvidea
for the death of one of several claim-
ants whose right does not survive.
(<) Taken from Eng. Stat. 15 & 16
Vic. cap. 76, s. 192.
(u) See note a to s. ccxly.
(t>) Under s. ccxlviii.
(w) See note p to s. ccxlv.
(z) This section is not like the last,
applicable to the death of one of several
joint tenants. It applies rather tu the
death of one of several tenants in com-.
mon.
(y) See s. ccxli.
IfMTlu
u
417
ACOxlWi'-viii.] death of claimant after verdict.
CCXLVII- («) In oase of a verdict for two or more Claim- Jn|- o. Jj p. c»y^.shA.$^n.
tg if ono of ruA Claimants die before execution executed, (a). ^■<?^^^.^y
One or more
^3^.
execu-
iDtS) _„
iLi. niket GlaiDiAnt may, whether the l^al right to the property of "evena
lyjj gorrire or nofv (o) suggest the death m manner afore- dying after
M.(e) and proceed) to Judgment and execution for the them, but
leooTeiy of poaeaaion for the entiretly of the property and the uonr"**
^'(d) but nothing herein contained shall afibot the right
of the legal xepreseiUative of the deceased Claimant, or the lia- .
lolitT of the surviTing Claimant to such legal representative,
ad the entry and possession of such surviving CItiimant under
i^h execution shall be considered an entry and possession on *
lijlialf of soch legal representative in respect of the share of the
Mopeitj to which he shall bo entitled as such representative, (e)
lod the Court may direct possession to be delivered accord-
ingly. (/)
CCXLVm. (<7) In case of the death of a sole Claimant, or q^t^ sliX -^
liefore trial of one of several Claimants whose right does not A.i8*f2,"i.i94". u.e .aliz-^
jnrvive to another or others of the Claimants, the legal repre- Death of boIc § 36~
jentative of fluchClMmarnt (/*) may, by leave of the Court or aoneThoBe**
Judge, (t) enter a suggestion of the death, and that he is such '**^* ^°®' a
(() Taken from Eng. Stat. 15 & 16
Vii. cap. 76. B. 198.
(a) There may be execution to re-
cover possession of the property nnd
execution to recover costs of suit : (s.
ccidL) This section has reference es-
clonTely to the former. An execation
torecoTor possession of property oan-
Qot be saiu to be " executed" until
there has been at least a dispoBBession
of the parties who defended and per-
haps a deUvery to claimant or his
agent: (see s. ccxlviii, where the lan-
goage is " and before execution exe-
cuted by delivery of possession.")
(i) This seems to have reference to
the cases contemplated in ss. ccxlv.-
ccxlvi. provided the death take place
"after verdict."
St. e. In the manner and subject
set aside, if untrue, as provided
in the two preceding sections, ccxv-vi.
[i) See s. ccxli.
(e) The provisions of this section are
BB
peculiar. In case of the death of one
of several claimants before <* execution
executed" the survivor, "•whether the
legal right to the property shall sur-
vive or not,'* mny proceed for the re-
covery of the possession of the " en-
tirety of the property," and be, it is
presumed, tenant in common with, or
trustee for, the representatives of the
deceased, wherever the representatives
derive any interest Aram the deceased
in the land recovered.
(/) Although it is enacted «.'aat
" the Court" may direct possession to
be delivered, it is presumed that a
judge inCharabors might exercise that
power : (see note m to s. xxxvii.)
(<7) Taken from Eng. Stat. 16 & 16
Vic. cap. 76, s. 194.
(A) Such clamant, i. e. either the
sole claimant in the action or one of
several claimants in respect of a sepa-
rate and individual estate or interest.
i The appUoation must be ground-
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III i
418 THE COMMON LAW PBOOEOUBB ACT. [s. COXll
toMotSn ^egal representative, and the action shaU thereupon proceed (/)
and if such suggestion be made before the trial, the tnitii f
the suggestion shall be tried thereat, together vrith the title f
the deceased Claimant, and such Judgment shall follow nn
the verdict in favor or against the person making such roeees.
tion, as hereinbefore provided with reference to a Judemenh
for or against such Claimant ; (k) and in case such suggestion
in the case of a sole Claimant be made after trial and before
execution executed by deliveiy of possession thereupon (l)i.ni
such suggestion be denied by the Defendant within eight days
after notice thereof, (m) or such ftirther time as the Court or
a Judge may allow, (n) then such suggestion shall be tried
and if upon trial thereof, a verdict shall pass for the person
making such suggestion, ho shall be entitied to such Judgment
Costs. as aforesaid, (o) for the recovery of possession, and for the costs
of and occasioned by suoii suggestion, and in case of a verdict
for the Defendant, such Defendant shall be entitied to such
Judgment as aforesaid for costs. (j>)
c)^p „ «,« CCXLIX. (3) In case of the death before or after Judgment
ti.a ■ ciy. x-j ^.1852,8.196. of onc of scvoral Defendants in ejectment who defend jointly
^3^^ Death of one a Suggestion may be made of the death, (r) which suggestion
/oiat Defend- shall uot be traversable, but only be subject to be set aside if
untrue, (s) and the action may proceed against the suivivine
Defendant to Judgment and execution, (f)
aats.
ed upon affidavit. In a case where the
representative of a deceased sole claim-
ant made application the affidavit was
as follows, " 1. That this is an action
of ejectment brought by plaintiff to. re-
cover possession of certain land being,
&c.; 2. That the action was commenced
by writ of summons issued on, &c. ;
8. That defendant on, &c., appeared
and defends this action,; 4. That on,
&c.,plaintiffdied at, &c.; 6. That plain-
tiff by his last will and testament de-
vised said land to deponent whereby
deponent became and is the legal re-
presentative of said plaintiff; 6. That
the venue in this action is laid in the
county of, &c." : {Stringer v. Ammer-
nan, Chambers, Oct. 25, 1856, Burns,
J.)
{J) «' Thereupon proceed » U upon
entry of the suggestion.
(k) See ss. ccxzxix.-zl.
(/) See note a to s. ccilvii.
(m) The suggestion in this case to
be served in the same manner aa sng-
gestions directed under s. ocxi.
(n) Court or ^urf^re.— Relative pow-
ers see note m to s. xxzvii.
(0) See 8. coxxxix.
Ip) See s. ccxl.
(q) Taken from Eng. Stat 15 & 16
Vic. cap. 76^ 8. 195.
(r) The suggestion may be in effect
the same as that given in note t to s.
ccxi.
(s) See note p to s. ccxlv.
(/) See 8. ccxli.
■I 3
.cclJi.]
DBATR df DBFENDAKf BlfOtlS TRIAL.
410
^3^
CCIi. (tt) In caae of the death of a sole Defendant, or of aW A?fM?;no«'. ' '^ v*^ ^^
the Defendants in ejectment before trial, (v) a suggestion may ^^^^ ^^,^
|,e made of the death, (to) which suggestion shall not be tra- J|f^*,°^y^{;,
Tenable, but'bnly be subject to be set aside if untrue, (x) and j'*''*""**"^
tae Claimants shall be entitled to Judgment for recovery of
possession of the property, unless some other person shall appear
uid defend within the time to be appointed for that purpose,
u (]ie order of the Court or a Judge, to be made upon the ap-
nlication of the Claimants ; (y) and it shall be lawful for the
Court or a Judge (z) upon such suggestion being made, and
gpon such application as aforesaid, to order that the Claimants
sliall be at liberty to sign Judgment within such time as the
Court or Judge may think fit, unless the person then in pos-
sssion by himself or his tenant or the legal representative of
tie deceased Defendant, shall within such time appear and de-
feud the action ; (a) and such order may be served in the
lame manner as the Writ, (b) and in case such person shall
appear and defend the same, proceedings may bo taken against
jach new Defendant as if he had originally appeared and de-
fended the action, (c) and if no appearance be entered and
defence made, then the Claimant shall be at liberty to sign ^^ .
Judgment pursuant to the order. (cZ)
CCLI. (c) In case of the death of a sole Defendant or of all En^. o. l. p. c«^^^ stai t *tl
tie Defendants in ejectment, after verdict, the Claimants shall ^■^^'*^'''^^^' ^'"
nevertheless be entitled to Judgment as if no such death had S^^Jaifor
!^,:
■J/l _-T
(m) Taken from Eng. Stat. 15 & 16
Vic. cap. 76, s. 196, and in eflfeot the
same as s. coxi.
(v) Death after verdict is provided
for in s. coli.
(to) The suggestion may be substan-
tiuly the same as that contained in note
itos. ccxi.
(i) See note p to a. coxlv.
(y) The Court or Judge is by order,
upon the application of claimant, to fix
tlietimeat which the claimant may sign
jadgment, unless the person then in
possession, &c., shall appear, &c. The
order intended is a conditional one,
granting leave to sign judgment on a
day named, unless, &c.
(2) Relative powers see note m to s.
xxxvii.
(a) It is designed in the event of a per-
son being in possession other than the
original defendant deceased, that such
person shall have notice of the pending
action and be in a position to defend
himself before being (.Uspossessed under
a judgment obtained against deceased.
f&^ See s. ccxxiii. and notes thereto.
(o) See s. ccxxxii. It is presumed
that such person may either defend
for the whole or for part : (s. ccsxviii.)
(d) See 8. ccxxxi.
(e) Taken from Eng. Stat. 16 & 16
Vic. cap. 76, s. 197. The principle of-
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420
THl COMMON LAW PBOOSDUBK ACT.
(.f.
trUlofa
Defendant
defending
Mpantoly
for part
C"colii.iii.
fciSliul^*»^«*» P^*««» (/) ^^ ^ proceed by execution for recovery of
»iur T»rdict poBsesaion without suggestion or revivor, (g) and to proceed for
the recovery of the costs in like manner as upon any otb
Judgment for money; against the legal representatives of th
deceased Defendant (A)
VsIa^ ^ Wihw ^^^"' ^9 I°«"«°^*^« '^®'**^' ^^'^'^ '"»l of one of several
<-• t-'.'v r-, ' "Defendants in ejectment, who defends separately for a porti
^&^ SSiof^^of the property for which the other Defendant or Defendants
do not defend, (J) the same proceedings may be taken as t
such portion as in the case of a sole Defendant, (k) or the
Claimant may proceed against the surviving Defendants in
respect of the portion of the property for which they defend, (h
2^ itai fr^ ?"|- 0- '',««• OCLIII. (w) In case of the death, before trial, of one nf
'«''=• e/i -1- several Defendants in ejectment, who defends separately in
^h I trial of ft respect to property for which surviving Defendants also de-
who defend! fend, (n) it shall be lawful for the Court or a Judge, (o) atanv
bwTfor i^ time before trial to allow the person in possession, at the time
ffihothem of tho death, of the property, or the legal representative of the
also dtfend. ^j^gggg^ J Defendant, to appear and defend on such terms as may
appear reasonable and just, upon the application of such person
or representative, (jj) and if no such application be made or
leave granted, the Claimant suggesting the death in the manner
this section is similar to that of s. eozii.
Trhich see.
(/) Where after verdict had before
the C. L. P. A. but judgment entered
after that Act, plaintiff proceeded un-
der this section ; held he was entitled
80 to do : {McCallum t. MeCallum,
Chambers, Sept 29, 1855, Burns, J, II
U. C. L. J. 211.)
(jf) In which case judgment, it is
presumed, must be entered against
deceased defendant as if living.
(%) i. e. By suit upon the judgment
or DV writ of revivor.
(t) Taken from Eng. Stat 16 & 16
Vic. cap. 76, s. 198.
(/ ) Provision is made by s. ccliii.
for the death before trial of one of se-
veral defendants, who defends separ-
ately for property for which the sur-
'viving defendants also defend.
(k) 8. ccl.
(i) " Or t]
the claimants." It ig be-
lieved the word •• or" should be read
" and. The error, for such it is con-
ceived to be, exists as vtU in the Eog.
C.L.P.Aot as in our Act. The correal
ponding section of the Irish C. L. P. A
(16 & 17 Vic. cap. 118, s. 220) iscor^
rect
(m) Taken from Eng. Stat. 15 &16
Yio. cap. 75, s. 109.
(n) Provision is made by a. cclii. for
the death before trial of one of several
defendants, who alone defends separ-
ately for a portion of tho property.
(o) Courtor Judge— relative powers
see note m to s. xzzvii.
(p) The "person in possessloD''
here intended must bo some person
other than the surviving defendants,
and may or may not bo the "legal re-
DISOONTIirUAlfOB.
^^T
421
ifore0aicl> (q) may proceed against the lUTriving DefeDclants to
jodgment and oxooution. (r)
CCLIV. (») The Claimant (t) in ejectment shall bo at liberty edc. o. l. p.<s»r-» itaf |^;,>^
,{aDY tirao to discontinue the action as to one or more of the^"^ 2,i.aoo. a .^ t?;i ^^
pefendftota, (u) by giving to the Defendant or his Attorney aSHy^wm- ^ 'V '
notice, headed in the Court and cause, and signed by the Claim- one"?," Jj*
jot or bis Attorney, stating that he discontinues such action, ^*"»d»«»*»-
(t) and thereupon the Defendant to whom such notice is given
ihall be entitled to and may forthwith sign Judgment for costs
in the form contained in the Schedule (A) to this Act annex-
ed marked No. 17, or to the like effect, (to)
tirnentatiTe " of doeeasod defendant.
' u) See 88. ccxlli-1.
r) See 8. coxli.
(i( Taken from Eng. Stat. 16 k 16
f,c. cap. 76, 8. 200.
(() One of several olaimaints may
discontinue under the proyislona of s.
(m) The discontinuance may be
made "at any time," and be "as
to one or more of the defendants."
This is ft mode of procedure equiva-
lent to nolle prosequi and retraxit, in
e'eotment formerly. It was allowable
to enter a not. pros, as to one or more
of sereral defendants at any time be-
fore trial and even after the commis-
sion day of the assizes : (Chee v. Rolle,
Ld. Bayd. 716.) A difference, how-
ever, between a discontinuaneef nolle
pmequi and retraxit, appears to exist.
A plaintiff who finds that he has mis-
conceited his action may obtain leave
to diteontinue. For the same or for
any other reason a plaintiff may,
under certain ciroumstenoes, before
Terdict, enter a nolle prosequi. In
either case there is the right to com-
mence anew action for the same cause;
but a nolle prosequi after judgment
operates as a retraxit, and a retraxit is
a bar to any future action for the same
canse: (1 Wms. Saunders, 207 e;
{Bowdtn V. Home, 7 Bing. 716 ; Ben-
ion T. Polkinghome, 16 M. & W. 8.)
It is a question whether a claimant de-
sirous of discontinuing as to all the de-
fendants, can do so under this jtion.
The expression "one or more of the
defendants," seems to have a contrary
bearing. Before this Act a plaintiff
could not discontinue as to all the de-
fendants to an action, without the
leave of the Court or a Judge.
(v) The notice may be in this form :
" Take notice that in this cause the
claimant discontinues the action as to
C. D., one of the said defendants."
(v>) The Stat. 8 Ells. cap. 2, s. 2,
gives costs to a defendant against whom
a discontinuance or nolle prosequi is
entered: (Cooper v. Tiffin, 8 T. R.
611 ; Benffe v. Swaine, 16 G. B. 784.)
But if the entry be made before
notice of trial, it seems defendant
will not be entitled to the costs of brief
or draft copies : {Doe d. Postlethwaite
V. Neale, 2 M. & W. 782;) nor of con-
sultation with counsel for defence:
[Rivis V. Ilatton, 8 Dowl. P. C. 164.)
Where the defendant obtained a ver-
dict which was set aside upon the
ground of misdirection at the trial,
and the plaintiff gave notice for the
second trial but before the time dis-
continued: Held that defendant was
entitled to the costs of certain searches
for documents used at the first trisJ,
which would have been useful at the
second, bad not plaintiff discontinu-
ed: [Daniell v. Wilkin, 8 Ex. 166;
See also Joliffe v. Mundy, 4 M. & W.
502.) • •■ r-i--'^
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422
THE COMMON LAW PROOIDUBB ACT.
[»■ Colv-Tl-til.
OOLV. (aj) In oaie one of leyenl OlaimaDts shall b« d '
oui to diioontinuo, he may apply to the Court or a JudmTt
S;'3KS!'*° ^*^® ^" "»™« "^^o^ o'*' 0^ '»»o prooeedingi, and an ordi
CLP.
la, 1.201.
0o«ofMT»>
Uav*.
may be made thereupon upon such terma as to the Court
Judge shall seem fit, («) and the aetion shall thereupon nrnn.
at the suit of the other Claimants.
or
proceed
.fr>..4Mt rf^jy^.iLj. CCLVI. (a) If after appearance entered, the Claim
OlAimant not
due time
after notice.
inch
without going to trial, allow the time fixed by the practice f
L'^^^r '^® ^^^^^ ^°' 8°*"^ ^ *""^ ^" ordinary cases after issue joined
to elapse, (b) the Defendant in ejectment may give twen»
' days* notice to the Claimant to proceed to trial at the Assizes (A
next after the expiration of the notice, (d ) and if the Claimant
afterwards neglects to give notice of trial for such Assizes ( \
or to proceed to trial in pursuance to the said notice given b
Bight of De. the Defendant, (/) and the time for going to trial shall not be
fbndant In ^ jjen jgj ^^y ^jjg Qq^^^ q, ,^ Judge, (fji) the Defendant may sign
Judgment in the form contained in the Schedule (A) to this
Act annexed, marked No. 18, and recover the costs of the de<
fence, (/t)
CCLVII. (i) A sole Defendant or all the Defendants in
Ari%2,i.ii63. ejectment shall be at liberty to confess the action as to the
SS<fiTth.^^°^® °' * P*"^' °^ *^® property, (J) ^7 giving to the Claimant
deiendanta a notico headed in the Court and cause, and siirncd bv thn n.
may confeia ... -r. » i . i • . , i j »■"« ue^
fcndant or Defendants, such signature to be attested by hia or
their Attorney, (U) and thereupon the Claimant shall be entitled
Ens. 0. L. p.
the action i
(z) Taken from Eng. Stat. 15 & 16
Vio. cap. 76, s. 201.
(y) See note m to s. zzztii.
(x) It is enacted that upon applica-
tion " an order may be made," &c. A
discretion will be exercised to prevent
ii^jastice being done by reason of tlie
intended discontinuance.
(a) Talten from Eng. Stat. 16 & 16
Vie. cap. 76, s. 202.
(b) As to which see s. oli. to which
this section conforms in many respects.
(c) Read " sittings or assizea" in
Eng. G. L. P. Act.
(d ) See note o to s. cli.
(e) Read "sittings or assizes" in
See also note/) to
Eng. G. L. P. Act.
s. cli.
(/) See note j to same section.
(g) See note v to same section.
I A) See note t to same section.
(•) Taken from Eng. Stat. 16 & 16
Vio. cap. 76, s. 208.
(y ) Under the operation of this and
the following sections, one, more, or
all defendants in ejectment may confess
the action as to the whole of tlie pro-
perty sought to be recovered or any
part thereof.
(k) It is a question whether the no-
tice here mentioned is intended as a
substitute for eognovitt in ejectment,
OONFIBBION 6F TITLB.
428
I hot*
^j may forthwitb lign Judgment and issuo f xccution for Jj ''^•j*^^°
tkerecoTery of poMOMion and ooits, in tho form contain<'l in*»'«P'''p»f'y
tiieScbedalo (A) to thia Act annexed; marked So. 19, or to
^5 like effect. (0 '
CCLVin. (m) In ca^o one of aovoral Defendants in eject- JfilgJ/-^^: ^. l:^ JT"
nent, who defends aeparately for a portion of tho property for ^^^ ^ ^^^ ^V'^ ^
ibich the other Defendant or Defendants do not defend, (w) ?J,*^eb*ir
■kail bo desirous of confessing tho Claimant's title to such ''n'".^;/^^-!!!,*-
portion, he may give a like notice to the Claimant, (o) and fcm|'^'»j^^j
thereapoD the Claimant shall be entitled to, and may forthwith (WfeDd.
lign judgment and issuo execution for the recovery of posses-
■iou of Bttoh portion of tho property, and for the costs ocoasion-
j by the defence relating to the same, and the action may
proceed as to the residue.
CCLIX. (g) In case one of several Defendants in ejectment, Jn^cVaoS' *^;r^^^V^
fho defend severally in respect of property for which o^^^r^ ^^''^
Pefendants also defend, (r) shall bo desirous of confessing thedeftnduto
Claimant's title, he may give a like notice thereof, («) and there- part.
isd if >o whether it should be attested
f ith all the formalities attending the
eiecation of a eognoTit. Our N. H. 26,
18 to cognoTitB and warrants of attor-
ney, is not, in any manner, expressly
restricted to "personal actions." The
Eng. Statute 1 & 2 Vie. o. 110, s. 9,
vheneeitis taken, though upon the
face of It restricted to personal actions
in respect of warrants of attorney, was
held to extend to cognovits in eject-
meDt as in other forms of actions:
(/?o< d. Rett V. Howell, 12 A. & £.
696.) The object of attestation is to
gnard defendant from imposition or
undue haste in a proceeding of a
verj summary character. Hence
the presence of an attorney who can
tender professional aid is made neces-
sary. The attorney must attest the
confession or warrant of attorney in
testimony of his presence. No precise
form of words is required in the attes-
tation cUuse: (see Phillipa ▼. Gibbs,
16 M. & W. 209 ; Pocoek t. Pickering,
18 Q. B. 789 ; Lewia v. Kensington,
2 C. B. 468.) It has been held in
If
England that an attorney, though
practising without his certlficate,might
sufliciently attest a confession : {Uol-
gate v. Slight, 2 L. M. & P. 602.)
{l\ The judgment awards both pos-
session and costs, and as to execution,
there may be either one writ or sepa-
rate writs : (s. ccxli.)
(m) Taken from Eng. Stat. 16 & 16
cap. 76, 8. 204.
(n) The preceding section applies
only to confessions by a " sole defend*
ant," or if several, by "all defend-
ants." This, to " one of several de-
fendants," who defends separately for
a portion of the property " for which
the other defendants do not defend."
The case of a confession by one of
several defendants, who defends in
respect of property, "for which the
others also defend," is provided for in
B. colix.
(o) See note k to s. cclvii.
\q) Taken from Eng. Stat. 15 &; 16
Vic. cap. 76, s. 205.
ir) See note n supra.
(s) See note k to s. cclvii.
I t
I' i
• ,1
, I
Ui\-
■ H,
424
THE COMMON LAW FBOCXDrRE ACT.
m
li \
u-
[s. ccU-i.
upon the Claimant shall be entitled to and may sign Judnnent
against such Defendant for the costs occasioned hy his defence
and may proceed in the action against the other Defendants
., to Judgment and execution, (w)
Eng.c. L. p. CCLX. (y) It shall not be necessary before issuing execution
A.i852,8.2oo.jj^ any Judgment [in ejectment] under the authority of this
^% ' n^otT Act, (w) to enter the proceedings upon any roll, but an inci.
foreex^Sr i'*'"'* thereof may be made upon paper, shortly describing the
*'•"'• nature of the Judgment according to the practice heretofore
used, (x) and Judgment may thereupon be signed, and costs
i>roviso taxed and execution issued ; (y) Provided nevertlieless, that
the proceedings shall be entered on the roll wheneyer the same
may become necessary for the purpose of evidence, or of bring.
ing error, or appealing, or the like. («) -- -.■■-,,■..
'^t->-i sta"? ifTry-
Sag. C. L. P.
A.} 852,8. 207.
CCLXI. (a) The effect of a Judgment in an action of
eject-
(«) See 88. ccxxxix.-xli.
(v) Taken from Eog. Stat. 15 & 16
Vic. cap. 76, s. 206.
(if) The words in brackets are not
in Eng. C. L. Act. Their object is
manifestly to restrict this enactment in
its operation to the action of ejectment.
There being no such restriction in the
section of the Eng. C. L. P. A. whence
ours is taken, it has been said to extend
to judgments in all forms of action,
when entered undt,r the Eng. C. L. P.
Act : (Kerr's C. L. P. A, 1852, s. 206.)
(x) The words "according to the
practice heretofore used," apply rather
to England than to Upper Canada, and
though quite proper in the Eng. C. L.
p. Act are not equally so in ours:
(ProT. Stat. 14 & 15 Vic. cap. 114, s.
h.)
(y) The costs here intended are of
course those between party and party
and not between attorney and client :
(Doe V. Filliter, 13 M. & W. 47.)
Taxation of costs and entry of judg-
ment are in general contempora-
neous acts: (Peirce v. Derry, 4 Q. B.
635), and unless there be a waiver of
costs the entry of judgment is not final
until taxation of costs : (/i.) Notice
of taxation should be given ; but the
omission to give it is no ground for
setting aside the entry of judgment:
{Perry v. Turner, 1 Dowl. P. C. 300 •
Lloyd T. Kent, 5 Dowl. P. C. 125 ; Field
v. Partridge, 7 Ex. 689), however much
it may be a ground for review of tax-
ation : {Ilderton v. Sill, 2 C. B. 249.)
But if upon any ground the judgment
in ejectment be inegnlar there maybe
a writ of restitution : [Doe d. Whit-
ting ton V. Hurd, 20 L. J. Q. B. 406.)
(a) To bring error upon a judgment
that judgment mast be shown to be a
record. No jndgment is a record until
enrolled. So for other purposes, such
as mentioned in the text, evidence, for
instance, in order to an exemplificatioD,
there must be a judgment enrolled.
(a) The intention of this section is
to declare that a judgment in ejectment
shall not now have any other effect than
one obtained when ejectment was a fic-
titious action. The action always has
been of a possessory character, and
still continues to be of that nature.
When ejectment was a fictitious pro-
ceeding, the judgment was that John
Doe, the lessor of the plaintiff, should
recover his term. It is now that the
plaintiff do recover possession of the
J jglxi.] EPPEOT OP JUDGMENT. ^
ment QQcler this Act shall be the same as that of a Judgment
425
lud mentioned in the tvrit, or of so
BBch thereof as to which in the opi-
jioD of the jury he may be entitled.
The direct issue raised and determined
is tiie simple question of right to im-
mediate possession. This stands or
falls upon strength of title. The pe-
culiarity of the action is that while it
directly determines the right to posses-
Bon, it inyolves questions of title, and
isdireoUy determines them. The nature
of the action and the coneieqnences of
I recovery in it, have been thus ex-
plained by Lord Mansfield, " An eject-
sient is a possessory action in which
ilinost all titles to land are tried.
fbether the party's title is to an estate
in t% fee tail for life or for years, the
remedy is by one and the same action.
In an action of ejectment the plaintiff
recoTers onli/ the possession of ^e land
tnd the execution is of the possession
only. But if the lessor of the plaintiff
recovers only the possession of the
land, it may be asked ' how he be-
comes seized according to his title ?'
To Thich it may be answered that
vben a person is in possession by title
(as every person is who enters in exe-
cution of a judgment in ejectment, be-
caose the law does no wrong) the pos-
msm and title unite. For it is a
nle of law that when a man having a
title to an estate comes to the possession
ofit by lawful means, be shall be in
possession according to his title. As
where the title is to have in fee, he
becomes seized in fee ; where the title
is to have an estate tail, he becomes
seized of an estate tail, and so on, the
law casting the estate upon him ac-
cording to his title. . . In truth
and in substance a judgment in eject-
ment is a recovery of the possession,
not of the seisin or freehold, without
prejudice to the riffht, as it may after-
wards appear even between the same
parties. He who enters under it can
only be possessed according to the right
prout hxpoatulat. If he has a freehold
he is in as a freeholder ; if he has a
chattel interest he is in as a termor,
and in respect of the freehold his pos-
session endores according to the right.
If he has no title he is in as a tres-
passer, and without any re-entry by
the true owner is liable to account for
the profits : (^Taylor d.Atkyns T. Horde,
1 Burr. 90.) This being the effect of
a judgment in ejectment it follows that
no one action of ejectment can be
pleaded to a subsequent action for the
same land, though between the same
parties. The judgment enforces only
a right to possession, without conclu-
sively determining the title of either
party: {Clerke v. Eotoell, 1 Mod.p.lO.)
Hence there may be no end to trials in
ejectment. Whatever the result of an
action may be, no one recovery can
be considered final between the liti-
gants. It might be supposed that the
abolition of the fictions in ejectment
would have had the effect of subjecting
it to the same rules as ordinary actions
in respect of finality of procedure. But
against this supposed intention there
was an opinion given even upon the
construction of Stat. 14 & 15 Vic. cap.
114, the expressed design of which was
to place ejectment " as nearly as may
be on the same footing as other ac-
tions." Upon a review of the Statute
it was said, " The intention of the Le-
gislature was clearly as respects the
judgment in ejectment when for the
claimant, to give no further force or
effect to it than it would have had pre-
vious to the Statute :" (per Burns, J,
Clubine v. McMuUen, 11 U. C. R. 255.)
It is enacted that if any person bring
an action of ejectment, after having
brought a prior action of ejectment,
against the same defendant, or against
any person through or under whom he
claims, the Court may order such per-
son to give security for costs : (s.
cclxxiii. ) The efiSeot of the enactments
peculiar to our C. L. P. Act, wherein
both claimant and defendant are obliged
to serve notices of their respective
titles remains to be decided : (s. ccxxii.
ccxxiv.) The object of such a pro-
vision would seem to be a trial of
1.
III-
426 THE COMMON LAW PROCEDURE ACT. [S-Cclx"
Sgmeit. ^" ejectment obtained before the passing of the Act of this
Province, in the Session of Parliament held in the thirteenth
and fourteenth years of Her Majesty's Reign, intitled An A
to alter and amend the practice and proceedings in actions f
Ejectment in Upper Canada,
SalstK: CCI'XII- (^) Ev«^y te^*^"* ^ ^^o«» any Writ in «jeetment(c)
titles. And if so, it is scarcely consis-
tent therewith and the principles of
of law applicable thereto, that after a
solemn trial either party should be al-
lowed again and again to provoke liti-
gation without at least fresh materials.
Courts of Equity possess a jurisdiction
by entertaining bills of peace to pre-
Tent vexatious ejectments, and by
means of such jurisdiction, when exer-
cised after a recovery in ejectment,
quiet titles at law : '{Barefoot v. Fry,
Bunb. 158 ; Leighton v. Leighton, 1
Str.404 ; S. C. 1 P. W. 671 ; S. C. af-
firmed in House of Lords, 4 Bro. P. C.
878.)
It may be noticed that the section
under consideration draws no distinc-
tion between a judgment in ejectment
upon a verdict and a judgment by de-
fault. In the first case the right of
the claimant is tried and determined,
in the last case it is in effect con-
fessed : {Atlin v. Parkin, 2 Burr. 668.)
One effect of a judgment against de-
fendant, remains to be considered,
and that is as regards a claim or action
for mesne profits. The claimant who
alleges himself to be entitled to posses'-
sion of a piece of land from a certain
date recovers it. This recovery is tan-
tamount to a judgment that defendant
was wrongfully in possession, and
therefore liable to plaintiff for rents
and profits of the land while wrongful-
ly withholding possession. At present
plaintiff may either recover mesne pro-
fits as a consequence of a recovery in
ejectment in one and the same action :
(s. cclxvii), or as to part by means of
a separate and independent action:
{lb.) In the event of a separate action
being brought, defendant, if (v party to
the original ejectment or in privity
with the defendant in that action, is
estopped from disputing plaintirg
possession from the time alleged in tha
writ: (Aalin v. Parkin, ubi supra-
DoeY. Wright, 10 A. & E. 768- X'
tkew V. Otborne, 13 C. B. 919 • hoe ,'
Wellsman, 2 Ex. 868; Arnntronal'
Norton, 2 Ir. L. R. 86; LiitoweUy
Greene, 8 Ir. L. R. 205 ; Mugen, v'
Phillipa, 8 Ir. L. Rep. 17); but when
brought against a person in possession
ot the land who was no party to the
ejectment unless such person be con-
nected with the ejectment by some evi-
dence, the recovery in that action is no
evidence against him : (Denn v. Whiio
7T. R. 112; Doe V. Harvey, 8 Bin?
239.) And if plaintiff seek to recover
mesne profits from a day anterior to
that mentioned in the writ, he must
prove his title, and that such title
would have enabled him to have main-
tained trespass : {Litchfield v. Ready
5 Ex. 939 ; Turnery. Coalbrook Steam
Co, 5 Ex. 932. ) But wherever a reco-
very in ejectment would be an estoppel
in an action for mesne profits, it mat-
ters not whether that recovery be had
by verdict or through a judgment by
default : ( Wilkinson v. Kirby, 16 C B
430.)
(6) Taken from Eng. Stat. 15 & 16
Vic. cap. 76, s. 209.— Substantially the
same as Eng. Stat. 11 Geo. 11. c. 19,
s. 12, which is a remedial law, and
enacted for more effectually securipg
against frauds by tenants : ( Crocker i.
Fothergill, Bayley, J, 2 B. & Aid. 659.
(c) The Stat, of Geo. II. was held
to extend only to ejectments which are
inconsistent with the landlord's title:
{Buckley v. Buckley, 1 T. R. 641.)
Therefore in ejectment by a mort-
gagee against a tenant of the mort-
gagor to enforce attornment that stat.
was held to be inapplicable : {lb.) In
ccliii-]
DUTY OP TENANT TO NOTIFY LANDLORD.
427
on
re-
shall be delivered, (d ) or to whose knowledge it shall come, (e) ^^^^^^
shall forthwith give notice thereof to his landlord, or his bailiflF«e'''*nK^^*^
or receiver, (/) under the penalty of forfeiting the value of«ndnot»»oU-
three years' (g) improved or rack rent (h) of the premises de- landlord,
mised or holden in the possession of such tenant, (*) to the
person of whom he holds, (J) to be recovered by action in any ^ «
Court of Common Law having jurisdiction for the amount, (k) ,
• *
case a mortgagor in possession makes
a lease after the execution of the mort-
gage, reserving rent, the mortgagee
cannot, by merely giving the lessee
notice of the mortgage, and that prin-
cipal and interest are in arrear, and
requiring such lessee to pay the rent
to him, make the lessee his tenant, or
entitle himself to distrain for rent sub-
sequently accruing under the terms of
the lease : {Evans v. Elliot, 9 A. & E.
Id) Intendmg a personal service :
fsee notes to s. ccxxiii.)
U) Intending a service on a wife,
child, or other member of the tenant's
family, with subsequent notice to him :
(gee notes to s. ccxxii.)
(/) No precise form of notice is
made necessary. The following may
be used—" Take notice that you will
receive herewith a copy of a writ of
ejectment which has been served for
the recovery of the possession of the
land and premises at, &c., of which I
am your tenant:" (ChitF. 7Edn. 531.)
(g) This Statute, like that of Geo.
II., does not give treble damages but
only directs how single damages shall
be ascertained : {Crockery. Fothergill,
ubi supra.) An application for treble
costs of suit was therefore refused :
{lb.)
(h) The improved or rack rent here
mentioned is not the rent reserved,
but such n rent as the landlord or ten-
ant might fairly agree on at the time
of the service of the writ of ejectment
in case the premises were then to be
let: {Crocker y. Fothergill, ubi supra.)
(j) The tenant shall forfeit three
years improved or rack rent not merely
of the premises described in the writ
of ejectment, but of the premises de-
mised to him: {Crocker y. Fothergill,
Bayley, J, ubi supra.) Upon a demise
by lease of certain lands, together with
the mines under them, with liberty to
dig for ore in other mines under the
surface of other lands not demised, the
tenant fraudulently concealed a decla-
ration in ejectment delivered to him
and suffered judgment by default.
The declaration did not mention mines
at all ; but the Sheriff in executing
the writ of possession, by the concur-
rence of the tenant, delivered posses-
sion of the premises demised to the
tenant, and also of those mines in which
he had liberty to dig : Held that al-
though the latter could not be recover-
ed under the declaration in ejectment,
still that the tenant by his own act had
estopped himself from taking that ob-
jection, and that in an action for the
value of three years' improved rent,
the landlord might recover the treble
rent in respect not only of the demised
premises, but of the mines in which
the tenant had only a liberty to dig :
{lb.)
{j ) The Court in some cases will '
allow the landlord to come in and de-
fend, even after judgment signed, in
default of appearance : (see notes to s.
ccxxv.)
{k) It may be that a party suing
under this Act in a Superior Court to
recover an amount within the jurisdio-
tion of an inferior Court will deprive
himself of Superior Court costs, unless
the Judge before whom the trial takes
place shall certify for the same : (see
8 Vic. cap. 13, s. 69; 13 & 14 Vic.
cap. 53, s. 78.)
1 <i
IJ
r
VM
, \
t- ' '
II-J.*
428
Enn. 0. L. P.
A.1852,i.210.
THE COMMON LAW PROCEDURE ACT.
[s. cchiii.
^0,
/
4 ^'S,^l^^ Landlord
^ ' '^ having "
CCLXIII. (/) In all cases between landlord and tenant
;on as it shall happen that one half year's rent sl»«ii i-- •
often
the
shall be
same
^ arrear, and the landlord or lessor to whom lae same is d
?^*"JwT*^**^ "^^' ^^ ^*^ *° re-enter for the non-payment thereof, fS
ment of rent, such landlord or lessor shall and may, without nnr ft!- ,
may recover j , ^ -. ^ lOrnial
po880ft)ian demand or re-entiy, (n) serve a Writ in eiectment fl»r fi,„
by ejectment i. xi. j . ^"^ . ,. . •"''"""'^°'' l«r the re-
. covery ot the demised premises, (o) or in case the same cann
legally be served or no tenant be in actual possession of
(2) Taken from Eng. Stat. 15 & 16
Vic. cap. 76, s. 210.— Substantially
the same as Eng. Stat. 4 Qeo. II. cap.
28, B. 2.
(m) By the common law it was ne-
cessary for the person claiming title to
lands and tenements, in all cases to
make an actual entry upon them in
order to support an ejectment. In
the case of a lease, therefore, as the
landlord could not enter and take the
actual possession until the lease ex-
pired, it became usual to insert a clause
that in case the rent should be behind
and unpaid at a certain time, the lessor
should have the right to re-enter:
(Woodfall L. & T. 7 Edn. 717.) This
Statute applies only to cases where the
lease contains such a clause : (Doe d.
Dixon V. Roe, 7 C. B. 134.) And
where it is made to appear that the
landlord had a power to re-enter in
respect of the non-payment of a half-
year's rent at the time of serving the
ejectment: (lb.) The right of entry
must be shown to be absolute and the
lease to be thereby avoided : (Doed.
Darke v. Bowditch, 8 Q. B. 973.) Thus
the Statute was held not to apply in a
case where the condition in the lease
was that on non-payment of rent in
twenty days after the time limited for
payment thereof, the landlord might
enter on the premises " till it be
fully satisfied :" (lb.) The landlord
has a right to avail himself of the sta-
tute, provided half a year's rent be
due, and he equally has that right if
ten years' rent be due : (Cross et al. v.
Jordan, 8 Ex. 149.) The right of
entry will not be waived by taking an
insufficient distress for the rent, nor
by contmuing in possession under siink
distress after the expii-ation of the 2
day for the poyment of the rent- in„
d. Taylor v. Johnson, 1 Stark iln
Actual entry is not necessary to tali
advantage of any such clause • {Qou
right d. Bare v. Cator, 2 Dong. 477?
(;») By the common law, when a
landlord reserved a right of entry in I
lease in case of the non-payment of
rent, it was necessary for him to make
a demand of the precise sum in arrear-
(Fabian v. Winston, Cro. Eliz. 209\"
either in person or by attorney law
fully appointed by deed : (Doe d We,t
V. Davis, 7 East.363.) The Jemandwa
required to be made on the premises •
(Co.Litt.202 a), though no person were
residing there : (Kidwelly v. Brand
Plowd. 71.) To do away with the ne-
cessity of complying with these and
other prerequisites to ejectment at
the common law, the Statute of Geo
II. wos passed : (Doe d. Fonter y
Wandless, 7 T. R. 117 ) It is not ne-
cessary to make any demand in order
to entitle a plaintiff to recover in a
case brought within the Statute, al-
though the proviso for re-entry be
expressed to be in case of the rent in
arrear being lawfully demanded:
(^Doe d. Schofield v. Alexander, 2 J'.
& S. 525 ; see also Doc d. Lawrence
V. Shawcross, 3 B. & C. 752.) It
may, however, beotherwise if the lease
contain an express covenant that the
lessor will not enter without demand;
(Doe d. Shrewsbury v. Wilson, per Ab-
bott, C.J, 5 B. & Aid. 385.)
(0) See 8. ccxxiii., and notes there-
to.
g.eclxi"']
EJECTMENT FOB MON-PATMENT OF RENT.
429
premises, then suet landlord or lessor may ai^fix a copy thereof ^n* bow^
oon the door of any demised messaage, or in case such action ^^*|^ "*
• eiectment shall not be for the recovery of any irfessuage,
. ^pon some notorious place of the lands, tenements, or ^
hereditaments comprised in such Writ in ejectment, and such ^ - _■
iffixing shall be deemed legal service thereof, whiob service
gffixiog of such Writ in ejectment shall stand instead and
place of a demand and re-entry j' ( p) and in case of Judgment «> ^ ^/.
LuDst the Defendant for non-appearance, if it shall be made
to appear to the Court wherein the said action is depending,
1)V affidavit, (?) or be proved upon the trial in case the Defen-
dant appears, (r) that half a year's rent was due before the said
(«) This means that the service
shall be in the place of a legal demand
made on the day on which it ought to
be made by the common law : (Doe rf.
Immt V. ShawerotB, Bayley, J, ubi
svprc-) And therefore it was held to
be no ground of nonsuit in ejectment
that the declaration was served on a
day subsequent to the day on which
the demise was laid, and being after
the rent became due, because the title
of the lessor must be taken to have ac-
crued at common law by non-payment
of the rent: (lb.) The eflFect of the
Statute is to aispense with the neces-
sity of a demand by the landlord, and
not to put the tenant in a worse situ-
ation than he would have been if he
had tendered the rent when it ought to
have been paid. The service of a writ
in ejectment is substituted for the de-
mand which was required at common
law. The Statute is beneficial to the
tenant as well as to the landlord. It re-
lieves the latter from the necessity of
making a demand with all the precision
required at common law, and the ten-
ant incurs no forfeiture until the writ
ofejectmentia served upon him. And
if at that time he is ready to pay the
rent, although he did not tender it
when it was due, it gives him the same
benefit ns if be had tendered it at that
time: {lb. per Holroyd, J.)
(9) An affidavit stating, inter alia,
that three quarters of a year's rent
were due from the tenant before the
copy of the writ was afQxed to the pre-
mises and that at the time the copy
was affixed, " no sufficient distress was
to be found upon the said premises
countervailing the said arrears," is
sufficient: (Cro«« et al. v. Jordan, 8
Ex. 149.) This decision overrules
Doe d. Powell v. Roe, 9 Dowl. P. C.
648 ; see further Doe d. Oretton et al.
T. Roe, 4 0. B. 676. In one case the
lessor having recovered in a former
ejectment under the Statute of Qeorge
II, the lessee, after the lapse of several
years brought a second ejectment on
the title of his lease ; and the proceed-
ings in the first ejectment being in all
other respects confessedly regular, he
insisted that he was entitled to i«cover
because no affidavit was produced
which had been made in conformity
with the Act : Held that it was not in-
cumbent on the landlord to prove the
regularity of all the circumstances
upon which his judgment and execu-
tion were founded, but that the judg-
ment must be taken to have been a
right, regular, and good one, as no-
thing appeared to the contrary : {Doe
d. Jlitchinga v. Lewis, 1 Burr. 614.)
(r) This section, like the Statute of
George II. prescribes two cases, viz.,
one in case of judgment by defkult,
and the other in case of the action
coming to a trial. In the former case
an affidavit must be made in the Court
where the suit is depending, that half
a year's rent was due before the ser-
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THE COMMON LAW PROCEDURE ACT. To „ \ ...
L8 cclxin.
Writ was served, and that no sufficient distress was to be f
on the demised premises countervailing the arrears then A
and that the lessor had power to re-enter, (s) then and in cv '
such case the lessor shall recover Judgment and have execut
^ _^ in the same manner as if the rent in arrear had been W \\
conae- demanded and a re-entry made fit) and in case the lessee or
STe'exe'rc).'- ^^^ assignee, or other person claiming or deriving under the
of8uchrigiit.g.,i^ lease, (u) shall permit and suffer Judgment to be had a A
vice of the writ, and that no sufficient
distress was to be found upon the pre-
mises cottntervailing the arrears then
due, and that the plaintiif had power
to re-enter. la the latter case the
same thing must be proved upon the
trial: (1 Wms. Saund. 287, c.)
(«) The insufficiency of the distress
must be established, and in order
thereto proof of a search must be ad-
duced : (Doe d. Forster v. Wandlass^ 7
T. B. 117.) The words <* no sufficient
distress to be found on the premises"
appear to be pertinently introduced
into the Statute, because it is not
enough that the tenant should have
that secreted on the demised premises
which would be suffioieut to oounter-
vail the amount of rent due, but the
property must be so visibly on the pre-
mises that a broker going to distrain
on the tenant would, using reasonable
diligence, find it so as to be able to
distrain it: {Doe dem. Ilaverson v.
Franks, Erie, J. 2 C. & K. 678.) If
the landlord show that he was prevent-
ed from entering on the premises to
distrain, he will be entitled to recover
in ejectment, without showing that
there was actually no sufficient distress
upon the premises : {Doe d. Chippin-
dale et al v. Dyson et al, 1 M. & M. 77.)
Where the outer doors are locked up,
so that the landlord cannot get at the
premises to distrain, there is no avail-
able distress and consequently no suf-
ficient distress within the meaning of
the Act: (/&.) Under such circum-
stances an affidavit of belief that there
was no sufficient distress on the pre-
mises, will be sufficient : {Doe d. Cox
T. Roe, 6 D. & L. 272.) If the land-
lord make out a prima facie case thnt
there was no sufficient distress on Z
premises, the onus of showing the con
trary will be shifted to the tenant"
{Doe d. Smelt v. Fuchatt, 15 East. '>86 i
Whenever there is a sufficient disliress
the landlord must proceed at common
law as before the Statute : (Do, j
Forster v. Wandlass, 7 T.R.I 17.) u„l
by special consent of the parties n
recovery may be made for default of
payment of rent, without the aid of
the Statute, and without any demand
of the rent according to the common
law : {Doe d. Harris v. Masters 2 B
& C. 490.) Thus, if in the lease'there
be a proviso that in case of the rent
being in arrear for twenty-one days
the lessor may re-enter, " althoughno
legal or formol demand should be made
for payment thereof:" {lb.)
(<) Premises consisting of a cot-
tage and garden had been let to a
tenant who died and subsequently
a stranger took possession of tlie
garden, but the cottage was left
vacant. There being one half year's
rent in arrear, and no sufficient distress
to be found upon the promises, coun-
tervailing the arrears of rent, a writ of
ejectment was served upon the person
in possession of the garden, and a
copy of the writ affixed to the door of
the cottage, which was unoccupied:
Held service sufficient and that claim-
ant was at liberty to sign V.a>;.'ent in
ejectment to recover the «vhole pre-
mises: {Clinton y. )fa/e«, 28 LT-Rep
105.) ^
(u) See note a to s. cckiv. and note
I to s. cclxv.
odxiii.] EJECTMENT FOB NON-PAYMENT OP BENT. 481
recovered on such trial in ejectment and execution to be exe-
cuted thereon, ivithout paying the rent and arrears, together
,rith full costs, and without proceeding for relief in equity
,flthin six months after execution executed, (v) then and in
ererr such case the said lessee, and his assignee, and all other
persons claiming and deriving under the said lease, shall be
barred and foreclosed from all relief or remedy in law or equity,
other than by bringing a Writ of appeal for rcTersal of such
Judgment in case the same shall be erroneous, and the said
landlord or lessor shall from thenceforth hold the demised pre-^rj^,
jnlses discharged from such lease/7 (w) and if, on such eject-
ment, ft verdict shall pass for the Defendant, or the Claimant "/defend-''*
shall be non-suited therein, then and in every snoh case, such "»*> *o-
Defendant shall have and recover his co8tii,^'(a;) Provided thatp^^f^^^'^"^
nothing herein contained shall extend to bar the right of any *« mortgage
mortgagee of such lease or any part thereof, who shall not be in
possession, so as such mortgagee shall and do within six months
after suoh Judgment obtained and execution executed, pay all
rent in arrear and all costs and damages sustained by such
lessor or person entitled to the remainder or reversion as afore-
said, and perform all covenants and agreements which on the
part and behalf of the first lessee are or ought to be per- , ,, ,
formed. 'Xy)
clxiv. and note
(») No relief can be had in equity
against any forfeiture, except one
caused by non-payment of rent of a
sum certain : (see Braeebridge v. Buck-
/«//, 2 Price 200 ; Wadman v. Calcraft,
lb Ves. 67 ; Bowser v. Colby, 1 Hare
109 ; Green v. Bridges, 4 Sim. 96 ;
see further note c to s. cclxiv.) The
time limited for relief is " six months
after execution executed." The months
intended must be held to be calendar
months : (12 Vic. s. 5, sub. s. 11 ; see
also Bowling v. Foxall, 1 13all & B.
193)
(w) The true end, and professed in-
tention of this enactment is to take off
from the landlord the inconvenience of
his continuing always liable to the un-
certainty of possesi^ion (from its re-
maining in the power of the tenant to
offer him a compensation at any time,
in order to found an application for
relief inequity) and to limU and confine
the tenant to six calendar months after
exeoutioi executed for his doing this,
or else that the landlord should from
thenceforth hold the demised premises
discharged from the lease : {Doe dem.
Jlitchings v. Lewis, Mansfield, C.J, 1
Burr. 619.)
(x) See s. ccxl. and notes.
(y) This a mortgagee might do in-
dependently of this proviso, as being
" a person claiming or deriving title
under the said lease :" (see Malone v.
Geraghty, 6 Ir. Eq. R. 649 ; Kelly v.
Staunton, 1 Hog. 393 ; see further note
I to s. cclxT.)
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482
TBB OOMHON LAW PBOOXDUKS ACT.
U4.
J^lA
Vng. 0. L. P,
A.lM2,i.211,
[s. cdxiv.
CCLXiy. C») In case the said lessee, his assignee or oth
Proceeding- ^^^ claiming any right, tiUe, or interest in law or equity of
JJ^ii^e tenant in, or to the Said lease, (a) shall, within the time aforesaid (h{
•eek relief In proceed for relief in any Court of Equity, (c) bup>i t»aL
shall not have or continue any injunction against the proceed
ings at law on such ejectment^ unless he does or shall with' '
forty days next after a full and perfect answer shall be made b
the Claimant in such ejectment, (d) bring into Court and lod
Kent mnit wlth the proper officer such sum of money as the lessor or land
coiirt before lord shall, In his answer, swear to be due and in arrear over
and aboye all just allowances, (e) and also the costs taxed in
the said suit, (/) there to remain until the hearing of ^u
injunction
■uUiMTue.
(«) Taken from Eng. Stat 15 & 16
Vic. cap. 76, s. 211 Sabitantially
the same as Eocr. Stat 4 Q«o. II. cap.
28, 8. 8, which is similar to Irish Stat
11 Ann cap. 2, s. 8.
(a) An equitable mortgagee of the
tenant's interest is entitled to ask the
relief: (see Malone y. Otraghty, 6 Ir.
Eq. Rep. 649 ; see Airther note < to s.
colzv.)
(6) t. e. Within six calendar months
after execution executed : (see note «
to s. cdxiii.) The day on which the
habere is executed is not to be included
in the computation: (DoviUngy.FoxaU^
1 BaU & B. 198.) Where a right would
be divested or a forfeiture incurred by
including the day of an act done, the
computation will generally be mada
exclusively of it : {lb.) In a redemp-
tion suit the bill charged that the writ
of possession was executed « on or
about the 18th of November, and pos-
session was on that day taken." The
answer stated " that it is not tme, as
in the bill untruly staved, that the said
habere -wa executedon 18th November,
for that defendant believed it was ex-
ecuted on 17th November:" Held that
the precise day of execution was suf-
ficiently put in issue : (FUtgerald y.
Hussty, 8 Ir. Lq. R. 819.) The liti-
gious conduct of a tenant in defending
an ejectment for non-payment of rent,
does not disentitle him to relief upon a
bill for redemption, nor to to the costs
of that smt if he be otherwise entitled
to them : (see Newmhan v. ^oAon a
Ir. Eq. R. 804.) Where plaintiff i„
equity estabUshed a waivar on the de
fondant's part, the Irish Statute was
held to be out of the question, and it
was therefore held that it was not es
sential that the bill should be filed
within the six months as provided by
the Act of Parliament: (see Butlnv
i?«r*«, 1 Dr. & Wal. 880.)
(c) Courts of Equity have from a,
very early period relieved tenants from
forfeitures owing to non-payment of
rent, upon payment of arrears with in-
terest and all expenses : (Sandm v
Pope, 12 Ves. 280, Mad. Eq. 86.) a
landlord has no right to enter upon the
proper^ forfeited by force, and a
landlord who does so must, aooordine
to the ruling of Courts of law, with-
draw from possession: (Newton y
norland, p«r Tindal, C. J, 1 M. & g!
644 ; see also JliUary v. Oav, 6 C &
P. 284.)
(<f ) As to computation of time, see
Chancery order. No. V., of 8rd June.
1868.
(e) See Mclnhemy v. Galway, Jon.
& C, 246. Qu. How far this enact-
ment applies to the case of a penal
rent reserved as an indemnity, and to
answer a particular purpose? (see
Iltme V. Kent, 1 Ball & B. 558.)
{/) Although the general rule is to'
majLS the party seeking a redemption
^]xir,] EILIZr IN EQUITT. 488
ejose or to be paid out to the lessor or landlord on good secu- H^^ ^^
rity subject to the decree of the Court; (g) and in oase such •'jj^' •'jj^'j;
prooeediogs for relief in equity shall be taken ivithin the time f*
tforesaici) (A) and after execution is executed, the lessor or
laodlord shall be accountable only for so much and no more as
jjj ghall really and bona Jide, without fraud, deceit, or wilful
led.
i&r the costs of suit, the Court has ju-
rlBdiotion to look at the landlord's
eondttot and throw the costs on him
jccording to its discretion : (see Oer-
mhtyy. ilalone, 1 H. L. Cas. 81, af-
gnning S. C. 6 Ir. Eq. B. 640 ; see also
fUzgeraldy. Uwisey, 8 Ir. Eq. R. 649 ;
mnhemy v. Oalway, Jon. & C. 247 ;
ikttidan v. Caaterlif, Beat. 249.)
in) Od. a bill to redeem under the
Irish Stat it was held to be imperative
., relieve upon the oonditions required
b; it being complied with ; and the
Court irould not admit extrinsio con-
Biderations, such as breaches of other
covenants in the lease, to be brought
fonrard by the lessor to effect the
equity of redemption of the tenant's
interest evicted for non-payment of
rent: [aw Swantony. Bigff9,Be&t. 240)
It is important to have settled forms of
decrees. In this case the decree
strictly followed the words of Irish
Statate 11 Ann cap 2 : (lb.) In a re-
demption suit by a tenant agfunst his
landlord, it rppeared that a mortgagee
in poBsessioa of the tenant's interest
bad not been served with the eject-
ment, and that on executing the writ
of possession the landlord made a six
months' lease to him. On the expira-
tion of that lease the mortgagee refus-
ed to deliver possession to the land-
lord, and retained it with the privity
and consent of the tenant. The land-
lord thereupon brought an ejectment
on the title to evict the mortgagee and
the persons in possession, and reco-
vered judgment therein, but did not
execute the writ of possession. The
tenant had made the mortgagee a
party defendant to his suit and charg-
ed that he and the landlord were in
collusion ; but the prayer of the bill
was simply for a redemption. The
CO
usual Accounts in a redemption suit
were directed, and also an account of
what the mortgagee, without wilful
default, might have received. The
Master reported that the entire amount;
of the head rent, including that for
which the ejectment was brought, was
due ; that the mortgagee might, with-
out wilful default, have received much
more than the amount of head rent ;
and that, without wilful neglect, he
did not receive anything : Held, first,
that it was not wilful neglect in the
landlord not to have taken possession
under the judgment in ejectment on
the title; secondly, that though the
mortgagee was bound to apply the
rents, in the first place, in payment of
the head rent, yet as no account had
been taken of the sum due on foot of
the mortgage, the plaintiff was not en-
titled to a personal decree against the
mortgagee, to be repaid the sums
which ho should be obliged to pay the
landlord for arrears of rent : (Reade v.
Montmorency, 6 Ir. Eq. B. 40.) The
admission in the bill of rent being
due to the landlord does not entitle
him to be paid the sum lodged in Court
if the bill be dismissed : (see G'Keeft
V. Dennhey, 4 Ir. Eq. R. 323.) In a
redemption suit, after the coming in
of defendant's answer, the plaintiff
entered a side bar rule dismissing his
bill, and afterwards moved for the
balance of the sum lodged in Court,
after payment thereout of the defend-
ant's taxed costs : Held that the mo-
tion should be granted, and that the
landlord might have proceeded at law
for his rent {>ending the proceedings in
the redemption suit : {lb. 823 ; see
also Callaghan v. Lesmore, Beat. 223.)
{h) See note c su^ra.
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484 THE COMMON LAW WOdBURB ACT. [i. ^.^jj
neglect, make of the demised premises from the time of hi«
entering into the actual possession thereof, (t) and if what shall
be so made by the lessor or landlord happen to be less than the
rent reserved on the said lease, then the said lessee or his as
signee, before be shall be restored to his possession, shall pav
such lessor or landlord vrhat the monej so by him made fell
short of the reserved rent for the time such lessor or landlord
held the said lands, (j)
V- Kng- 0. L. p
itf iha! CCLXV. (A) If the tenant or his assignee (I) do and shall
A.l
(t) A landlord having rightfully
evicted his tonant for non-payment of
rent is not, vrhen called upon to
restore possession and to account,
chargeable trith the whole rents at
which the lands were let but only with
such rents as during his possession he
received : iCallaghan v. Liamore, Beat.
228), and if in actual occupation him-
self according to the section here an-
notated, he shall be accountable
"Vith so much and no more as he
shall really and bona fide, with-
out fraud, deceit, or wilful neglect,
make of the demised premises," &o.
On a lease containing a clause of dis-
^ess and provision for entry in case of
no sufficient distress, an ejectment for
non payment of rent was brought and
judgment by default obtained and the
landlord sued out a writ of possession
and went into possession. After bring-
ing several ejectments unsuccessfully
to recover possession, the tenant filed
a bill for redemption and relief against
the forfeiture : Held that he was en-
titled to redemption, the landlord ac-
counting for the profits while in posses-
sion and the tenant paying the rent,
interest, and costs: [Canny v. Hodg-
ena, Hay & J. 769.)
(j) The plain intention of this pro-
vision is that in the event of a tenant
being relieved against a forfeiture the
position of both parties concerned shall
be made as nearly as possible the same
as if no forfeiture had taken place and
no cause of forfeiture over existed.
{k) Taken from Eng. Stat. 16 & 16
Vic. cap. 7G, s. 212.— Substantially
the same as Eng. St. 4 Geo. H. o. '>g
B. 4. The Courts even before the
Statute of George II. exercijed an
equitable jurisdiction to stay nvoceed-
ings in ejectment for non-i.uyment
of rent, upon payment of arrears
of rent and costs : {PhilUpt v. Dw-
little, 8 Mod. p. 846 ; Smith v. Parh,
10 Mod. p. 888.) The Statute apl
pears to be confirmatory of a power
already inherent in the Courts : (Uot
d. Weit V. Davit, 7 East. 863 ; Doe d
Harria v. Maatera, 2 B. & C. 490.)
{I) Tenant or hia aaaiffnee. The con-
Btruotion of ionse words may be open
to doubt when uoniiidered in connexion
with the two preceding sections and
the expressions used in those sections.
Section colxiii. gives facilities to land-
lords in allowing them to bring eject-
ment for non-payment of rent, which
may be conducted to judgment nnd
execution, and then enacts that "in
case the leaaee, or his assignee, or otkr
person claiming ot deriving under tk
aaid leaae" shall suffer a certain time
to elapse without paying the rent, and
without proceedings in equity for relief,
then " the said lessee, and bis assignee,
and all other persons claiming and de-
riving under the said lease," shall be
barred from relief both in law an.'
equity. Section clxiv. provides that in
case " the said lesaee, his assignee,
or other person claiming any right,tit!e
or interest in law or equity of, in, or to
the said lease," shall within the time
limited; a/)!«r judgment at law file a bHl
in equity for redemption, relief maybe
given upon certain terms. Then comes
g jolxV.] BELIEf AT LAW. 485
»t any time before the trial in such ojectment, (»i) poy or tender ^i*^"""";
«n the lessor or landlord, his executors or administrators, or his •■>( i»y ar-
(Qiuoiooa J ^ , ^ ream of reft
«f their Attorney in that cause, or pay into the Court wherein mvx co«tH »e.
0' '"^ . II 1 foro trial, &c
the same cause is depending, (n) all the rent and arrears, to-
gether with the costs, (o) then and in such ease all further
proceedings on the said ejectment shall cease and be disconti-
nued ; (p) ^^^ ^^ ^^^^ lessee, his executors, administrators, or
assigns^ (^) shall, upon such proceedings as aforesaid, be re- ir be be re-
lieved in equity, (r) he and they shall have, hold, and enjoy Kquity.
the demised lands aooording to the lease thereof made, without
any new lease, (a)
the section hero annotated (coIxt). It
applies to the case of a party coming
for relief before judgment to the Court
in wliioh the action is brought. It
begins by enacting that " if the tenant
or bis assignee do and shall," &o., and
farther on proceeds thus, '*and if
mh lessee, his executors, administra-
tors, or assigns shall," &o. In order
to construe the three sections consis-
tently, the word "tenant" must be
construed as meaning something more
than " lessee or assignee." It at least
embraces "a sub-lessee:" {Doe dem.
Wyatt V. Byron et al, 1 C.B. 623J, and
a "mortgagee:" {Doe d. Whitfield y.
Rot, 3 Taunt. 402.)
(m) See Ooodright T. Noright, 2 W.
Bla. 746 ; Doe d. Forster v. Wandlasa, 7
T. R. 117 ; Doe d. West v. Davie, 7 East.
8G8 ; Doe d. Harris v. Masters, 2 B. &
C. 490; Doe d. Lambert v. Roe, 8
Dowl. P. C. 557.
(n) 1. e. The ejectment under s.
edxiii. and which must be brought
under a right of entry for non-pay-
ment of rent. In ejectment brought
on a clause of re-entry for not repair-
ing as well as for rent in arrear, upon
an application by the tenant to stay
the proceedings, it was insisted for the
plaintiff that the case was not within
the Act of George II. for that it was
not an ejectment founded singly on the
Act, but brought likewise on a clause
of re-entry for not repairing: Held
that the application was within the
Statute: {Pure d. Withens et al. v.
Sturdy, Bull N. P. 97.) In an action
of ejectment on a forfeiture for breach
of a covenant to repair only, the Court
has no power to stay proceedings upon
any terms against the consent of the
plaintiff: {Doe d. Mai/hew v. Asbj/, 10
A. & E. 71.) In one case the plain-
tiffs were both devisees and executors.
Defendant moved to stay proceedings
upon payment of the rent due to plain-
tiffs as devisees, they not being entitled
to bring ejectment as executors. There
appeared to be a mutual debt due to
defendant by simple contract, and de-
fendant offered to go into the whole
account, taking in both demands as de-
visees and executors having just allow-
ances, which plaintiffs refused ; but
the rule was made absolute to stay
proceeding on payment of the rent due
to plaintiffs as devisees, together with
costs : (Duckworth d. Tubley et al. v.
TunstaU, Barnes, 184.)
(o) No rent can become due except
on the days when reserved The "ar-
rears" here intended must be computed
to the last day whereon rent is made
payable by the demise and not to the
time of computation : {Doe d. liar court
V. Roe, 4 Taunt. 883.)
{p) The party who makes applica-
tion should obtain an order to the ef-
fect here enacted.
(y) See note I supra.
(r) i. e. Under s. cclxiii.
{s) It would seem that if the land-
lord obtain possession and crop the
land, the Court will not compel hici to
K
480
THE COMMON LAW PROOKDURK ACT.
[••CclxTi.
C^-. J\ i ^ Idb. 0. li. P.
(4.
CCLXVI. (<) Whoro the term oriDterest of any tenant no
*^ ' *^ ProoMding. ^^ hereafter holding under a lease or agreement in writing
ffi
4,' ^_ ,^' ProcMdlng. "* "«»""-» "u.u.uk u..v... » .«»» v. »h.««u,«ui ,q writing, („)
/_: ^''^m"fcj* *"^ lands, tenements, or hereditaments for any term or numb
' ToSuToM ***" y®*" *'®'^"' °' ^°™ y®" '° y®"' (O «»h»n have expired, ol
th« undi been determined either by the landlord or tenant bv m».!i
leased, ihall . . ^ ^ » i ^ '' ^K^'W
uara Mpired notice to quit, (tr) and such tenant or any one holdins
pay OTer the Tslue cf the crop to the
tenant though it exceed the amount of
rent reserred in the demise : (see Doe
Upton V. Witherwitck, 8 Bing. 11.)
(t) Taken from Eng. Stat. 16 & 10
Vio. cap. 76, s. 218.— Substantially the
same as Eng. Stat. 1 Oeo. IV. cap. 87,
a. 1. The words in brackets are ori-
ginal and not to be found in the English
Statutes. The main object of the sec-
tion here annotated is to save the land-
lord the necessity of going to trial
where the tenant holds over vexatious-
ly and where the trouble and expense
of an ejectment may be rery dispro-
portionate to the value of the premises
sought to be recovered: (see Doe d.
PkUlipe V. Roe, Abbott, C. J, 6 B. &
.Al. 768.)
(u) The words " under a lease or
agreement in writing" apply to the
whole sentence and are not confined to
the case of a tenant holding for a num-
ber of years certain : {Doe d. Bradford
v. Roe, Bay ley, J, 6 B. & Al. 770.)
Therefore where a tenant holds from
year to year but without a lease or
agreement in writing, the case is not
within the Statute : (/6.) A letting
by parol is clearly not within the Sta-
tute : (Rees d. Stepney v. Thruntout,
McClel. 492.) With reference to the
meaning of the word "tenant," see
Jonee v. Owen, 6 D. & L. 669 ; Banks
V. Rebbeck, 20 L. J. Q. B. 476.
(v) The intention of the Legislature
appears to be to make provision for at
least three classes of cases — tenancies
from '* year to year ;" for "a year or
number of years certain;" and for
any other " term," though less than a
year, for instance, three months : {Doe
d. Phillips V. Roe, ubi supra.) A ten-
ant holding from quarter to quarter,
•subject to a determination of the ten-
ancy by three months' notice to oult
is not within the meaning of theMc-
tion: (Doed. Carter et al. y. *„, .,
powl.k8 449),norisate„antwh;;
term is determinable on lives: (Do
d. Pemberton v. Roe, 7 B. & C. 2) fo*
in neither of these cases can the ten-
ancy be said to be « a term or number
of years certain," such as intended
Where after entering into an ogreement
for a tepancy for a term certain, the
parties on the same day made anotiier
agreement for the tenancy to continue
as long as the lessor should bo vicar of
a parish, held nevertheless to bo a case
within the Statute : (Doe d. Nmitad
T. /fo«, lOJur. 926.)
(w) The enactment opplies only to a
case where the tenancy, if by lease
has expired by effluxion of time, or if
a yearly tenancy, has been deter-
mined by a regular notice to quit-
iJ)oe d. Tindaly. Roe, Tenterdcn, C. J
1 Dowl. P.O. 146), and not to the case
of a lessee holding over after notice to
quit given by himself, where his ten-
ancy has not expired by efiBuxion of
time : (^Doe d. Cardigan v. Roe, 1 D.
& R. 640), nor where the tenant holds
over after having surrendered his term:
(Doe d. Tindal v. Roe, ubi supra.) If
a landlord allow his tenant to hold
over more than a year after the expir-
ation of his term, a tenancy from yenr
to year is thereby created : {Doe I
Thomas v. IHeld, 2 Dowl. P. C. 642),
see also Doe d.IIall v. Wood, 14 M. & w!
682 ;) and if the lease contain a condi-
tion for re-entry on non-payment of
rent, a tenancy from year to year thus
created is subject to that condition:
(Thomas v. Packer, Jan. 28, 1857, Ei.
III. U.C.L.J.68.) The section does not*
apply where a right of entry is sought
to be enforced for non-performance of
jOcUvi] •' OVKHlIOLDINt* TKVANT8. 437
IrtiraioK by or undor hhn, shall refuse to deliver up pouession I|"',',\^^„'"^"
jooordinK'y. "f^""^ •'^^tul demand in writing (x) made a"'^ J;;;;;^';;,',';^
jiL'Dcd by the landlord or his ugent, (ij) and Horvcd personally •'»•' n"*'*". '
upon, or left at the dwelling; house or usual plaoo of abode of
guch tenant or peiDon, (?) and the landlord shall thereupon
nrooood by action of ejectment for recovery of possession, it
shall bo lawful for him at the foot of the Writ in ejectment, to
jjdross a notice to such tenant or person, requiring him to find Notice to
such bail, («) if ordered by the Court or a Judge, (i) and for null wcurity.
soTennnts in any case whero the terra
created has not explrotl : (Doe (l.Ctin-
j,i/ T. SharpUy, 16 M. & W. 668), nor
ithcre there is a bona fide dispute b«-
tircen the parties as to title : ilhe d.
Stndtrt T. Roe, 1 Dowl. P. C. 4.) A
notice to quit given by one of sevwirtl
lint tennnts purporting to bo giveu
m behalf of all is good for all :
[Doed. Anlin v. Summenctt, 1 B. & Ad.
135 • Doe d. Kinder tley el al t. I/ui/hea,
9M.:&W. 139.)
[/) The demand may bo iu this form
-" I, A D, do hereby, as your land-
lord, according to the Common Law
Procedure Act, 1856, demand of and
require you immediately to give and
dellrer up to mo possession of the land
and premises, with the appurtenances,
iiituate at, &o., which you hold as a
tenant thereof under and by virtue of
a lease bearing date, &o., by mu to you
made in that behalf, your terra therein
having expired (or " which you hold
as tenant thereof from year to year
under and by virtue of au agreement
in writing — here ttate it — and which
teuaucy of and in the same has been
determined by a regular notice to quit
given to you in that behalf.")
[y) One of several tenants in com-
mon may avail himself of the sentiou ;
for it is not restricted to those cases
wherein the landlord is entitled to the
exclusive possession : (J)oe d. Morgan
T. Rotherham, 8 Dowl. P. C. 090), and
applies as much to the case of a tenant
suing his undertenant as to cases of
plaintiffs being superior landlords:
Doe d. Watts v. Roe, 5 Dowl. P. C.
1^13.)
I
(z) Where the tenant bad left £ng<
laud for America, his wife being still
in possession of the promises, a service
of tlie demand left on the premises, the
wife having refused to take it, was held
HulBcient to entitle the landlord to a
rule to show cause why the service
should not be deemed good in order to
entitle the landlord to a rule undor the
Statute of George II. : (Doe, d.Selyood
V. Roe, 1 W. W. & H. 206. ) Further aa
to sufficiency of service, see notes to
8. ccxxiii.
{n) It is enacted that *' the landlord
shall thereupon," &o., and that *'it
shall be lawful for him at the foot of
the writ in ejectment to address a no-
tice," &c. Therefore the notice ought
to bo signed in the name of the land-
lord : (see Anon. ID. & R. 485, n),
but u notice signed '* A. B. agent for
plaintiflF" is sufficient: (/>o« d. Beard
V. Roe, 1 M. & W. 860.^ The ittention
is that the notice shall be as if from
the landlord, and if such be the con-
struction of it the bare formality of
signature will be immaterial : (see
Oondtitle d. Norfolk v. Notitle, 5 B. &
Aid. 849.) If signed by an agent it is
not necessary that there should be an
affidavit in proof of the agency : {Doe
d. Oeldartv. Roe, 1 W. W. & H. 846.)
A notice given by one of several les-
sors' joint tenants enures to the bene-
fit of all • I Doe d. Austin v. Summer-
sett, 1 B. & Ad. 185; I)oe d. Kinder-
aley v. Hughes, 7 M. & W. 189.)
(6) Court or JwJge. Relative powers
see note m to s. zxxvii.
'#:'1
"» ! »
\
^h
i 1 I ">
; .';;. J
,M
488
V V
THE COMMON LAW PROCEDURE ACT.
(^
[a- cclxvi.
((ig such purposes as are hereinafter next specified, and upon th
/ ' appearance of the party, [or in case of non-appearance 1 on
[making and filing] an affidavit of service of the Writ and no
tice, (c) it shall be lawful for the landlord producing the leas
or agreement, or some some counterpart or duplicate thereof (d)
and proving the execution of the same by affidavit, (e)'and
upon affidavit that the premises have been actually enjoyed
under such lease or agreement, and that the interest of the
tenant has expired or been determined by regular notice to
quit, as the case may be, (/) and that possession has been
lawfully demanded in manner aforesaid, (g) to move the Court
or to apply to a Judge at Chambers (A) for a rule or summons (i)
Rule toBhow for such tenant or person, to show cause, within a time to be
u^t' ^ fixed by the Court or Judge on the consideration of the situa.
Sw^wcS tion of the premises, {J ) why such tenant or person should
**^' not enter into a recognizance by himself and two sufficient
(c) As to affidavits generally, see s.
xxiii. and notes thereto, divisions 8, 7,
8, 9, intituled " Deponent," "Commis-
sioner," " Signature of Deponent,"
"Jurat;" also N. R. 109, et »eq.
{d ) The original agreement or some
counterpart, or duplicate thereof, when
counterparts or duplicates have been
executed, most be produced. When
produced, the instrument should upon
the face of it appear to be valid : {Doe
d. Caulfield et al. v. Roe, 3 Bing. N.C.
329 ; see also Doe d. Holder v. Rush-
worth, 4 M. & W. 74.) In England it
is necessary that the instrument when
first produced, should be properly
stamped: {lb.)
(e) It is not indispensable that the
attesting witness, if there be one,
should make the affidavit of execu-
tion : (see Doe d. Morgan v. Rolher-
ham, 8 Dowl. P. C. 69U ; Doe d. Gow-
land V. Roe, 6 Dowl. P. C. 85 ; also
Doe d. Aver;- v. Roe, 6 Dowl. P.C. 518,
and s. olxiii. of this Act.)
(/) It would be well for the affida-
vit to state when the notice was given,
in order that the Court may judge of
its sufficiency and regularity : {Doe d.
Topping/ V. Boast, 7 Dowl. P. C. 487.)
The affidavit should not omit the word
" regular" in referring to the notice-
{lb.) The lease, agreement, counteN
part, or duplicate should be annexed
to the affidavit : {Doe d. Foucan v
Roe, 2 L. M. & P. 322.)
(g) See note x, supra.
(A) It is enacted that it shall be law-
ful for the landlord producing, kc.
and proving, &c., and upon affidaritl
&c., to move the Court or a Judge!
These several acts mentioned are con-
ditions precedent to the application
and necessary to sustain it.
{i) Though the powers of the Court
ana of a Judge in Chambers are for the
purpose of the application under this
section made co-ordinate, it is appre-
hended that the Court will be slow to
entertain the application in the first
instance. For all necessary forms of
proceedings under this section, see
Chit. F. 6 Edn. 388 et seq, 7 Edn. p.
656 et «'?•)
{ J ) Two points ave involved
in this sentence, first, that the time
within which cause must be shown
should be fixed by the Court or Judge,
second, that it shall be determined on •
a consideration of the situation of the
premises.
?' 4
Ij^jlxvi.] OVERHOLDINO TENANT. ^ 439
ureties, (Jc) in a reasonable sum, (T) conditioned to pay the costs
and damages which shall be recovered by the Claimant in the
action («) and it shall be lawful for the Court or Judge, upon 4°*e be*
(luse shown, or upon affidavit of the service of the rule or sum- shown, j^dg-
r.0i ia case no cause shall be shown, (n) to make the same landlord.
absolute in whole or in part, and to order such tenant or person
ajthia a time to be fixed upon a consideration of all the circum-
etances, to find such bail, with such conditions and in such
manner, as shall be specified in the said rule or summons, or
lacb parti of the same so made absolute|'^(o) and in case the
mrty shall neglect or refuse so to do, and shall lay no ground
to induce the Court or Judge to enlarge the time for obeying
tlie same, then the lessor or landlord filing an affidavit that such
rale or order has been made or served and not complied with,
shall be at liberty to sign Judgment for recovery of possession
ft/
l-si-
(i) "Two," not "two or more."
The defendant as well as the bail
should enter into the recognizance.
({) Tlie reasonableness of which
must be determined by the Court or
Judge. It is unnecessary to express
in the rule niii the amount of the se-
curity reqnired. The amount should
be determined when the rule is made
absolute, because then the Court or
Jadge will be enabled to decide what
nay be a reasonable sum to be fixed
in Tiew of all the circumstances of
the case: {Doe d. Phillipa v. Roe, 5 B.
& Al. 766 ; Doe Anglesey v. Brown,
2D.&E. 688.)
(m) Under the Statute of George II.
it was held that the Court was only
em;>owered to give a reasonable sum
for'the costs of the action and not for
(BMne profits : {Doe d. Sampton v. Roe,
6 Moore, 64.) But in a case where
mm profits can now be recovered on
the trial, t. «. where the ejectment is
brought by a landlord against his ten-
ant, there does not appear to be any
reason why ta / should not be includ-
ed in the recognizance: (Paterson,
McNamara, and Marshall, p. 970.)
Special damage alleged to have been
caused by the tenant to the premises
cauDot, it seems, be inserted in the
recognizance : {Doe d. Marks v. Roe,
6 D. & L. 87.) The Court or Judge
in any event can direct the recogniz-
ance to be taken to the extent of a
year's value of the premises and a rea-
sonable sum for the costs of the action.
The amount to be inserted in the re-
cognizance in respect of the costs
should be ascertained by the Master :
{Doe Levi v. Roe, 6 C. B. 272.) la
England the amount usually inserted
is twice the annual rent, together with
£40 for costs: (Woodfall's L. & T.
848 n.)
(n) If the tenant can show with cer-
tainty that a new demise has been
made to him, that will be sufficient
cause : (see Doe d. Durant v. Roe, 6
Bing. 574.)
(o) The Bail-piece may be as fol-
lows : —
County of, &c. \ On the. &c.
To wit. J A. B. against C. D.
For the recovery of, &c. {according to
the writ.)
Recognizance in
£100 by rule of
Court or
Judge's order.
The sureties are —
B. B. of,&c.butcher,
and
T. B. of, &c., tailor.
Taken and acknowledged, &c.
The acknowledgment may be as
lows —
fol-
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r
1'
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i
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1
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m
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440
THE COMMON LAW PROCEDURE ACT.
IV
ProTlao.
^' y
''si
'7
b' cclxvi'i
and costs of suit, in the form contained in Schedule (A) t iV
Act annexed, marked No. 20, or to the like eflFect ^^( p\ rp "^
vided always, (q) that nothing herein contained shall be heU
to prevent or restrict any landlord from proceeding against },;
Landlord *^'*'*°*' ^^° ^^*^^ wrongfully hold over after his term has expjr t
may proceed according to the provisions contained in an Act of tlio p« i- '
under Act of ° n ■, w i « , ''"® ^aWia.
u. 0. 4 wm. ment oi Upper (janada, passed in the fourth yeir of the Re'
' "■ ■ of His late Majesty King William the Fourth, intituled A
Act to amend the law respecting real property , and to rentl
the proceedings for recovering possession thereof, in cert "
caseSf less difficult and expensive.']
CCLXVII. (/•) Whenever it shall appear on the trial of anv
Eng. C. L. P.
A.1852, 8.214.
' You do jointly and severally under-
take that if you, CD., shall be con-
demned in this action, you, C. D., shall
pay the costs and damages which shall
be recovered in such action by the
plaintiff, or in default of your so doing,
that you, B. B. and T. B., will pay the
costs and damages for the defendant.
Are you content ?
(Chit. F. 7 Edn. 662.)
( p) It may be a part of the rule that
the landlord shall be at liberty to sign
judgment in case of a default on the
part of the tenant to give the required
securities : (see Doe v. Roe, 2 Dowl.
P. C. 180.)
(q) This proviso is original, and in-
tended to save s. 53 - and following
sections of 4 Wm. IV. cap. 1, under
which a given mode of procedure may
be had against overholding tenants.
One important distinction between the
section here annotated and the Statute
of William IV. is, that under the latter
proceedings may be taken against a
tenant holding over after the expiration
of a term created by parol demise.
And, on the other hand, under the lat-
ter no proceedings can be had where
the interest of the tenant instead of
being determined by effluxion of time
is determined by act of the parties.
The Statute of William IV. has been
held not to apply to a tenancy at will :
(Adverant v. Shriver, 3IS. T. T. 6 & 7
Wm. IV. R. & H. Dig. " Landlord and
Tenant," II 2.) It seems to appi.
only to the plam case of a tenant over
holding after the expiration of a term
expressly created by contract between
the parties: (see Adami v. Jiaine!,i
U. C. R. 167.) A tenant remainins
m possession after the expiration of
his term, and paying two months
rent, cannot in the middle of the third
month be ejected by his landlord as an
overholding tenant within th« meaninff
of the4 W.IV. cap. l.(/J.) The Statute
does not apply to tenants whose terms
are alleged to be forfeited by alleged
breach of covenants : (McNab v. Dun-
lop et al, 8 U. C. R. 135.) The Court
will not under the Act of William IV.
grant an attaehment against an over-
holding tenant for non-payment of
costs until an order to pay them has
been first served upon him and a de-
mand made : {McLachlan in re, 3 U.C.
B. 331 . ) When once a tenant has been
ejected under the operation of the Act
it is no ground for his restoration to
possession that after the finding of the
jury the agent of the landlord receivei?.
a month's rent from the tenant:
( Wright v. Johnson, 2 U. C. R. 273.)
Where a tenant overholds after the
expiration of his term the landlord has
a right to take possession if he
can without a breach of the peace:.
{Boulton T. Murphy et al, 6 O.S. 871.
(r) Taken from Eng. Stat. 16 & 1
Vic. cap. 76, e. 214.
g CCIXV"] ' RECOVERY OF >rE8NE PROFITS. 441
ejectment at the suit of a landlord against a tenant, («) that Court may
goch tenant or his Attorney hath been served \iyith due notice <>' J'J!'^*^
nf frial. (t) the Judge before whom such cause shall come on to »l> m mod »
01 »"") V / o Ijj^ landlord
be tried, shall, whether the Defendant shall appear upon such shaii have
trial or not, (u) permit the Claimant on the trial, after proof of ws right to
his right to recover possession of the whole or of any part of session, Ac.
the premises mentioned in the Writ in ejectment, (v) to go into
evidence of the mesne profits thereof, which shall or might
have accrued from the day of the expiration or determination
of the tenant^s interest in the same, (ic) down to the time oi
the verdict given in the cause, or to some preceding day to be
specially mentioned therein, (x) and the Jury on the trial find- ^ * •
jDg for the Claimant shall in such case give their verdict upon , .
the whole matter, both as to the recovery of the whole or any
lart of the premises, (y) and also as to the amount of the dam- *
aces to be paid for such mesne profits, (z) and in such case the ■.:.'.
landlord shall have Judgment within the time hereinbefore ' ' •
provided, (a) not only for the recovery of possession and
(j) The action of debt for double
value given by Stat. 4 Geo. II. cap. 28
is not affected by this enactment : (see
Earner y. Laing, 18 U. C. R. 288.)
(() As to which see s. oxlvi. and
notes thereto.
(u) In case of defendant's non-ap-
pearance at the trial, if claimant
ihonld be unprepared with proof of
title he might waive mesne profits and
take a verdict under s. ccxxxvii. of this
Act.
(«) See s. ccxxxiv.
(u) See note w to s. oclxvi.
(z) This section expressly provides
that claimant may go into the question
of mesne profits; and it does not con-
tain any provision which makes the
usertion of such a claim a condition
precedent to the claimant's right to
recover in respect of them. The only
matter which is made a condition pre-
cedent is that the tenant or his attor-
ney shall be served with due notice of
trial. The claim for mesne profits
must be considered as included in the
writ: [Smithy. Tett, 9 Ex. 807, S. C. 20
L. & Eq. 483 ; see also Fner v. Savage,
18 Jur. 680; Doe d. Thompson v.
Hodgson, 12 A. & E. 135.) In this
respect the C. L. P. Act differs ft-om
our former Statute 14 & 16 Vic. cap.
114, which enacted that a plaintiff in
ejectment, to entitle himself to recover
for mesne profits at the trial of the
ejectment, should with the original
summons deliver a notice of his inten-
tion to claim substantial damages : (s.
12.) If he omitted to give the notice,
he waived all such claim, and could
not bring any action afterwards on that
account : (see Curtis et ux. v. Jarvis,
10 U. C. R. 466 ; Ilamer y. Laing, 18
U. C. R. 233.)
(y) See s. ccxxxiv.
(z) Such mesne profits, i. e. " which
shall or might have accrued from the
day of the expiration or determination
of the tenant's interest down to the
time of the verdict given in the cause
or some preceding day to be specially
mentioned therein."
{a) See s. ccxsxix ; further see a.
cclxviii.
\ y
442 TDE COMMON LAW PROCEDURE ACT. [s. cclxviii
costs, (6) but also for the mesne profits found by the Jury • (A
ProTiso: as Provided always, that nothing hereinbefore contained shall Kn
to mesna '' ' ■, ■, m ■, , i.. "®
profits after construed to bar any such landlord irom bringing any action
for the mesne profits which shall accrue from the verdict (d )
or from the day so specified therein, (e) down to the day of the
delivery of possession of the premises recovered in the eject-
ment.
c^g^ ; Eng.o.L.p. CCLXVIII. (/) In all cases in which such security shall
(i-eeh. ^^•^•1*^^2,8.215. jjg^Ye been given as aforesaid, (g) if upon the trial a verdict shall
^6/ ' pass for the Claimant, (h) unless it shall appear to the Judcre
(b) Costs as betweea attorney and
client cannot be recovereil by claim-
ant: {Doe T. Filliter, 13 M. & W. 47.)
(c) See s. ccxli.
(d) The former part of this section
permits claimant to recover such mesne
profits « as shall or might have accrued
from the day of the expiration or de-
termination of the tenant's interest
down to the time of the verdict given in
the cause." Then it is enacted that
" nothing hereinbefore contained shall
be construed to bar any such landlord
from bringing any action for the mesne
profits which shall accrue from thever-
diet, &c., down to the day of the deli-
very ofpoasettion," &c. The inference
is that if a claimant neglect at the trial
of an ejectment to recover mesne profits
« down to the time of the verdict"
he is barred from bringing an action
for such mesne profits, and in such
action restricted to mesne profits "from
the verdict," &q.
(«) Claimant may at the trial of the
ejectment recover mesne profits "down
to the time of the verdict given in the
cause or to some preceding day to be
specially mentioned in the writ. " This
is the day to which reference is here
made as "the day 80 specified." Jr
an action for mesne profits it has been
held that the judgment in ejectment is
conclusive of plaintiff's right to pos-
session from the day of the demise
laid : (Dodmll v. Oibba, 2 C. & P.
616), but to he conclusive must be re-
plied by way of estoppel to a plea of
not possessed : (Doe v. Wright, 10 A.
& E. 763 ; Mathew v. Osborne, 13 C. B.
919.) To an action for mesne profits
from December, 1844, to March, 1846
it is no estoppel to reply a judgment in
ejectment on a demise laid as of 14th
October, 1846 : {Doby. Wellman,2Ex.
368 ; see also Litchfield v. Ready
16 L. J. Ex. 140.) Though formerly
a judgment against the casual ejector
was held not to estop a defendant in an
action for mesne profits from disputing
the title of plaintiff from the time of
the demise laid in the action of eject-
ment: (Ponton V. Daly, 1 U. C. R.
187), it is now settled that a judgment
by default is as much conclusive if
properly replied as a judgment on ver-
dict: (see note d to s. ccxxxi.) In
trespass for mesne profits it is neees-
sary to state that the land is the land
of the plaintiff: (^Grant et al, v. Fmi'
ning, Tay. U.C.R.470.) And in such an
action defendants may give in evidence
in mitigation of damages, the value of
buildings erected on the premises by
them : (Lindsay et al. v. McFarling,
Dra. Bep. 6), or other substantial im-
provements made by them : (Patterson,
V. Reardon, 7 U. C. R. 326.) A de-
fendant may be sued for mesne profits
though he was never in actual occupa-
tion : (Doe V. Harlow, 12 A. & E.
40.)
(/) Taken from Eng. Stat. 15 & 16
Vie. cap. 76, s. 216, the origin of
which is Eng. Stat. 1 Geo. IV. dap. 87.
s. 3.
(g\ Under s. cclxvi.
(h)Qu. And one of several claimants?
8. oolxix.]
RECOONIZANCES.
443
ral claimants?
before whom the same shall have been had, that the finding of coj^^ may ^
the Jury '^^ contrary to the evidence, or that the damages ^i^^j^'g^^jn
given were excessive, (t) such Judge (J) [may in his discre- ^^'^j.where
tion order that Judgment may be entered and execution issue B«ven,un.
in favour of the Claimant at the expiration of six days next
after the giving of such verdict.] (/c)
CCLXIX. (I) AH recognizances and securities entered into j.^^ p. l. pPtki f2srt- /zrv-
fin pursuance of the Section of this Act numbered two hundred a.i852,8. 216.// ,- . ^ a 7 7
and sixty-six], (w) may and shall be taken respectively in ^i';*",';*''*'^^.
such manner and by and before such persons as are provided fnd'^riwefd-
and authorized in respect of recognizances of bail upon actions i^k* thereon,
and suits depending [in the said Superior Courts, and subject
to the like fees and charges] ; (m) but no action or other pro-
ceeding (0) shall be commenced upon any such recognizance or
' 1*
§ ^1.'
ii^'M.
(i) The finding of the jury intended
is as to the right of possession: (a.
ccxxxiv), and the damages intended
those for mesne profits: (s. cclxvii.)
(J) Such Judge, i. e. the Judge be-
fore whom the trial shall have been bad.
(h) The words in brackets arc in
substitution for a wholly different pro-
Tision in the section of tue Eng. C. L.
P. Act corresponding with the one bere
amiotated. In England upon a finding
for claimant, unless the Judge make
an order to the contrary, judgment
may be entered on the fifth day in
term after the verdict, «'or within
fourteen days after verdict, whichever
shall first happen :" (Eng. C. L. P. A.
1852, B. 185.) In Upper Canada, unless
ordered to the contrary, no judgment
ia ejectment shall be entered until
" the fifth day in term after the ver-
dict:" (s. ccxxxix.) Thus there ex-
ists a difference in the language of the
two sections, which is necessary to
be noted. By the Eng. C. L. P. Act,
1862, 8. 215, in the event of execution
being stayed until the terra following,
the Tsrdict when a longer period than
fourteen days, provision is made re-
quiring defendant to give security,
"not to commit any waste or act in
the nature of waste or other wilful da-
mage, and not to sell or carry off any
standing crops, bay, straw, or manure
produced or made (if any) upon tbe
premises, and whicb may happen to be
thereupon from tbe day on wbich tbe
verdict shall have been given, to tbe
day on wbich execution shall finally
be made upon the judgment, or the
same be set aside, as tbe case may be."
{k) As to computation of time see
note d to s. Ivii.
{I) Taken from Eng. Stat. 16 & 16
Vic. cap. 76, s. 216, — the origin of
wbich is Eng. Stat. 1 Geo. IV., chap.
78, s. 4.
(m) Instead of the words in brackets
read in Eng. C. L. P. Act, " as last
aforesaid," having reference to recog-
nizances against waste : (see notey to
8. cclxviii.)
(n) Instead of tbe words in brackets
read in Eng. C. L. P. Act, " in tbe
Court in wbich any such ejectment
shall have been commenced, and the
officer of the same Court with whom
recognizances of bail are filed, shall file
such recognizance and security, for
which respectively the sum of two
shillings and sixpence and no more
shall be paid." As to recognizance
and the practice of bail generally in
Upper Canada, see note u to s. xxiv.
(0) Or other proceeding, intending a
proceeding by sci, fa.
N
;r !■;
'-. ?.%, -.;
:JT,:1
• •■Mi'.i *• I
m
Mi
! J
444
<«tr>x slirt §f\-
Eiift. C. L. P.
A.1852,8.218.
lUghts of
laudlords
not prcgudic-
ed by tbli
Act.
Enir. C. L. P.
A.lS52',a.210.
Mortf^gor
suod in eject-
ment by his
mortgagoo,
may pay into
Court the
amount of
the mort-
gage debt,
interest and
costn, and
sbali there-
on Ik dia-
TUE COMMON LAW PROCEDURE ACT. [SS. cclxx '
security (^p) after the expiration of six months (o) from a
time when possession of the premises or any part thereof shall
actually have been delivered to the landlord, (r)
CCLXX. (if) Nothing herein contained shall be construed
to prejudice or affect any other right of action or remedy whi h
landlords may possess in any case hereinbefore provided f
otherwise than hereinbefore expressly enacted. (<) '
CCLXXI. («) Where an action of ejectment shall bo brought
by any mortgagee, his heirs, executors, administrators, orassit'
neos {y) for the recovery of the possession of any mortr'a»e'd
lands, tenements, or hereditaments, (?«) and no suit shall he
then depending [in the Court of Chancery] (x) for or touchine
the foreclosing or redeeming of such mortaged lands, tenements
or hereditaments, (y) if the person having right to redeem such
mortgaged lands, tenements, or hereditaments, (,-;) and who
shall appear and" become Defendant in such action, (a) shall at
(ja) The condition of which should
be " to pay the costs and damages
which shall be recovered by the claim-
ant:" (s. cclxyi.)
(j) t. e. Calendar months : (12 Vic.
cap. 10, B. v, sub-s. 11.)
(r) As to computation of time see
note d to s, Ivii.
is) Taken from Eng. Stat. 15 & 16
Vic. cap. 76, s. 218.
{I) Thus actions of assumpsit, debt,
or covenant for rent according to the
nature of the contract of letting,
may still be brought. The right
of proceeding against overholding ten-
ants under 4 Wm. IV. cap. 1, is saved
by express proviso in s. cclxvi.
(m) Taken from Eng. Stat. 15 & 16
Vic. cap. 76, s. 219, — the origin of
which is Eng. Stats. 7 Geo. II. cap. 20,
8.1.
(») Although plaintiff being a mort-
gagee after the commencement of an
action by him receive notice from a
subsequent mortgagee not to part with
the title-deeds, the case is still within
the Statute and a rule will be granted
directing such first mortgagee on pay-
ment of principal, interest, and costs,
to deliver up the title-deeds to the
mortgagor: {Dixon y. TFwram. 2C*
J, 613.) ' ^'^
(w) The Act of 7 Geo. II. cap. 20
s. 1, which is still in force, extends
also to actions brought " on any bond
for payment of tha money secured by
such mortgage or performance of the
covenants therein mentioned," which
words have been held to include
actions on covenants contained in the
mortgage: {Smcetony. CoUyer, 2 Ex.
457.) The section here annotated is
restricted to actions of ejectment, and
applies only to mortgagees not in pos-
session: {Sutton V. RawUngs, 3 Ex.
407), who have not attempted to exer-
cise powers of sale, if there be such ia
their mortgages : {lb.)
{x) Instead of the words in brackets
read in Eng. C L. P. Act " in any of
hfir Majesty's Courts of Equity in that
part of Great Britain called England."
{y) There should bo an affidavit of
this fact : ( Wilkinson v. Traxton, Sel-
wyn's N. P. 700, 11 Edn.)
(z) See note m to s. cclxxii.
(a) An appearance by the party is"
necessary before he can take the bene-
fit of this enactment : {Doe d. Tubb y.
Boe, 4 Taunt. 887 ; Doe d. Burst y.
RELIEF TO MORTGAQORS.
446
I charged, and
re-
s. cclxsi-]
any time pending such action, (V) pay unto such mortgagee ; (c) ^^^^Bagee
or in case of his refusal, shall bring into the Court ivhere such 5^*^^*^^,°^;
action shall be depending, (d ) all the principal moneys and covery.
interest due on such mortgage, (e) and also all such costs as
have been expended in any suit at law or in equity upon such
mortgage? (/) (such money for principal, interest, and costs,
to be ascertained and computed by the Court where such action
is or shall be pending, or by the proper officer by such Court
Clifton,
U.7.V", 4 A. & E. 814.) The Court
has no jurisdiction until after appear-
ance: (/6-) If a mortgngee recover
possessionofmortgaged premises under
a judgment in an undefended ejectment
the Court has no jurisdiction to restore
on payment of debt, interest, and
costs, tlie possession to tlie mortgagor
ffhohas not appeared: {Doe d. Tubb
r.Roe, ubi supra.) Unless the mort-
ffiigor make himself defendant, the
Court will not inicrfere either under
the Statute or in the exercise of its
general power over actions in tLe
Court: {Doe d. JIurst v. Clifton, ubi
tupra.) The fact of tlie mortgagor's
appearance ought to be sliown in bis
affidavit: {Doe d. Cox v. Brown, 6
Dowl. P. C. 471.)
(i) I. «. Before judgment : ( Wilkin-
m y. Traxton, Sclwyn's N. P. 700, n.
11 Edn. ; Amis v. Lloi/d, S Ves. & B.
15 ; but see Doe d. Millburne v. Sib-
bald, 4 U. C. 0. S. 330.)
(e) See note v, ante.
(d) If the section were strictly con-
strued, it would seem to contemplate
that the mortgagor should first tender
the money to plaintilF, and that only
in case " of his refusal" will the mort-
gagor be entitled to irake application
to the Court But under the Statute
of George II. in which the expression
used corresponds precisely with that
of this section, it was not usual for the
affidavit to atate that the money had
been tendered : {Filbee v. Hopkins, 6
D.&L. 264.)
(«) The Court of Queen's Bench
stayed proceedings upon payment of
principal, interest, and costs, in an
ejectment by plaintiff claiming under
a deed absolute upon its face, where it
appeared that the deed was in truth a
security for money lent : (Doe d. Shu-
ter et al y. Maclean, 4 U.C. 0. S. 1), and
refused to permit plaintiff to include
in the redemption money a simple con-
tract debt due to him by the mortgag-
or: UbV
(/) The Legislature intend to ex-
onerate the mortgagor from the delay
and expense of an equity suit to re-
deem, but not to deprive the mortgagee
of any equity. To avoid such delay
and expense, they authorise the Court
of law in which the mortgagee may
bring his action, to afford relief upon
a summary application; but the Le-
gislature do not purpose to lessen the
fine which in equity the mortgagor
should pay for the redemption of
the hereditaments pledged: {Satton
y. Rawlings, Pollock, C. B, 8 Ex. 411.)
Where a mortgagee in pursuance of a
power of sale attempted to dispose of
the property, the Court refused to
compel him to re-oonvey the premises
and deliver up the title-deeds, except
upon payment of the costs of the abor-
tive attempt at sale : {lb.) So where
the instalments on a mortgage were by
mistake for a larger sum than was ad-
vanced, and the mortgagee on discover-
ing the mistake gave an undertaking
on a separate puper, not under seal,
that only the correct sum should be
demanded and afterwards assigned the
mortgage, and the assignee brought an
action against the mortgagor for non-
payment of the instalments as set out
in the mortgage, the Court refused to
stay proceedings on payment of the
sum really due being less than the sum
)i
\n
i j ■life: I
i j'.'X-iiC', (
i.'ii!
i
%^
1 1
■M
%
v\
;;iHi
446 THE COMMON LAW PROCEDURE ACT. [s. cclxx"
to be appointed for that purpose), (g) the moneys so paid to
such mortgagee or brought into such Court shall be deemed
and taken to be in full satisfaction and discharge of such mort
gage, (Ji) and the Court shall and may discharge every such
mortgagor or Defendant of and from the same accordincly ({\
and shall and may by nilo of the same Court (y)coiDDel
such mortgagee to assign, surrender, or re-convey such mort-
gaged lands, tenements, and hereditaments, and such estate
and interest as such mortgagee has therein, and to deliver ud
all deeds, evidences, and vrriting;s in his custody rclatin"' to the
title of such mortgaged lands, tenements, and hereditaments
unto such mortgagor who shall have paid or brought cuch
moneys into the Court, his heirs, executors, or administrators
or to such other persons as he or they shall, for that purpose
nominate and appoint.
ivhicb according to the fnoe of the
mortgage was due : {Bab}/ v. Milne, 6
U.C.O.S. 76.) As to costs see also Su-
tiey V. Nevinson, Sir. G99 ; Archer v.
Snatt, Str. 1107 ; Goodtitle v. Lons-
down, 3 Anst. 937 ; Ooodright v.
Moore, Barnes 176; Millard y. Major,
3 Mod. 433 ; Doe d. Capps v. Cappa, 8
Bing. N. C. 768.
(g) The intention of the enactment
is to break in upon the juriadiotion of
the Court of Chancery only to the lim-
ited extent of perfectly plain oases on
admitted facts or facta capable of as-
certainment by the way ordinarily pur-
sued on motion in the Common Law
Courts : {Doe d. Harrison v. Loueh, per
Coleridge, J, 6 D. & L. 276.) There-
fore the Court of Queen's Bench refus-
ed to stay proceedings in ejectment on
a mortgage on payment into Court of
the money due upon the mortgage,
together with the costs in the action,
where the whole amount secured by
the mortgage was not admitted co be
due, and refused a reference to the
Master to ascertain the amount actu-
ally due in such case : {Ooodtitle d.
Fisher y. Bishop, 1 Y. & J. 844 ; Doe
d. Mackenzie et al. v. Rutherford, 1 U.
C. R. 172 ; see also Iluson y. Uewaon,
4 Yes. 105.) , . ,
(A) The Court has power to order a
reconveyance and delivery over of title
deeds : (see Dixon v. Wigram, 2 C. &
J. 613 ; Smeeton y. Colly er, 1 Ex. 457
and conclusion of this section.) '
(»■) A Judge in Chambers might ex-
ercise the powers conferred upon the
Court by this Statute : {Smeelon y.Col-
Iyer, ubi supra.)
{j) The formal part of the rule
when nisi, may be as follows— "Show
cause why upon the defendant bring.
ing into this Court all the principal
moneys and interest due to the plain-
tiff upon hia mortgage upon the pre-
mises for the recovery of possession of
which this action is brought, and also
all such costs as have been expended in
any suit or suits at law or in equity
upon such mortgage (such money for
principal, interest, and costs to be as-
certained, computed, and taxed by the
Master of this Court), the money
brought into this Court should not be
deemed and taken to be in full satis-
faction and discharge Qf such mort-
gage, and upon payment thereof to the
plaintiff why all proceedings in this ac-
tion should not be stayed, and why the*
mortgaged premises and the plaintiff's
estate and interest therein should not
be assigned, surrendered, and re-con-
ri 1 • '^ '
WHEN RELIEF NOT TO BE HAD
s. cc1m»]
CCLXXII. (^0 Nothing herein ccntained shall extend to Jy862,;!2!»'//^' l}^ ^^
jny case when the person against vihom ♦> redemption is or ^^^^^ p,eced- S -7 ^
shall bo prayed, (I) shall (by writing under his hand or the J|>^^ ^^J^
hand of his Attorney, Agent, or Solicitor to be delivered before tend to cases
flia money shall be brought into such Court of law to the At- right to ro-
'""•'_,.. - ° . ..... . , , , docm. ortha
torney or Solicitor for the other side), insist either that the ■«!»> d
party praying 0. redemption has not a right to redeem, (m) or
that the premises are chargeable with other or different principal
sums than what appear on the face of the mortgage, or shall
he admitted on the other side, (n) or to any case where the
riffht of redemption to the mortgaged lands and premises in
question in any cause or suit shall be contravened* or ques-
tioned by or between Defendants in the same cause or suit, (0)
I due U
eontcisted.
Teyed; and why all deeds, and evi-
dences, and writings relating to the
title of such mortgaged premises, and
in the custody and power of tlie plain-
tiff, should not be delivered up to the
defendont or to such person or persons
as he shall for that purpose nominate
and appoint:" (Pat. MoM. & Mar.
949.) The rule absolute may be to
the same effect, but directory.
(i) Taken from Eng. Stat. 16 & 16
Vio. cap. 76, s. 220, the origin of which
is Stat. 7 Geo. II. cap. 20, s. 8.
[I) i. e. " The mortgagee, is heirs,
executors, administrators, or assig-
nees:" (s. colxxi.)
(m) A party who assumes a position
inconsistent with that of a mortgagor,
for instance, by disputing the mort-
gagee's title, will not be entitled to
redeem: {Roe v. Wardle, 8 Y. & C.
70), nor if admitting mortgagee's title
he has contracted to sell the equity of
redemption to him : {Goodtitley. Pope,
7 T. R. 185.) Where A, having
purchased a lot of land, and paid
several instalments of the purchase
money, but having received no deed
and being. unable to meet the re-
maining instalments, assigned his
right to B, taking a bond from
him that if be should obtain the
deed on the payment by A to him of
£130 in two years, he would convey
the land to A : Held on ejectment
brought by B, the two years having
expired, that A was not entitled to
treat the bond as a mortgage and re-
deem on payment of principal, interest
and costs : (Doe d. Shannon v. Roe, 6
U. C. O. S. 484.)
(n) The Statute docs not apply
where the right to redeem is disputed
upon affidavits: {Ooodtitle v. Bishop,
1 Y. & J. 844 ; Oarth v. Thomas, 2
Sim. & S. 188), but in order to deprive
the mortgagor of his right to redeem,
it is not sufficient that the mortic^ngec
should in the notice mentioned in this
section make a mere general statement
that he insists that the mortgagor
has no right to redeem, and that the
mortgaged premises are chargeable
with other sums than appear on the
face of the mortgage deed or than are
admitted by the mortgagor: [Ooodtitle
T. Lonsdown, 8 Anst. ~
Louch, 6 D. & L. 270 ; but see Filbee
V. Hopkins, 6 D. & L. 264.) Enough
must be stated by the mortgagee to
enable the Court to determine what
the question is between the parties:
[Doe V. Louch, uhi supra. ) The ulte-
rior demand and its amount must also
be stated: [Goodtitle v. Lonsdown,
ubi supra.)
(0) There is a material change in
the language of this clause, as it ad-
vances to specify another case to which
the Statute shall not extend, wherein
• *^ Contravened" a mistake — "Controverted" probably intended.
V ,
*^l.l
?*;- .i'*)'n
448
TOE COMMON LAW PROCEDURE ACT.
4*'
Si
^7^
/
[»• cdxxiil.
Ortopreju^Qr ghaU bo any prejudice to any subsequent mortgage or sub-
sequent incumbrance, anything herein contained to the con
trary thereof in any ^iso notwithstanding, (p)
dice any
lequeni
mortgRKee,
fte.
Kng. C. I<. P.
CCLXXIII. (j) If any person shall bring an action of
ejectment after a prior action of ejectment (r) shall have been
SS,iIlS?ia unsuccessfully brought by such person or by any person through
K&r'thoO' ^^^^^ ^^0™ ^® claims, against the same Defendant or
against any person through or under whom he defends the
game pro-
|ierty may
instead of speaking of notices, It speaks
of the right of redemption beitiff oOn-
troyerted between different defendants.
Here it is certainly not enougli to in-
sist by notice in writing, but tlie fact
of the dispute must be made out in
order to get rid of the defendant's ap-
glioation : (Doe d. Harriton y. Louch,
oleridge, 6 D. & L. 276.)
!p) See note v to s. cclxxi.
;) Taken from Eng. Stat 17 & 18
Yio. cap. 125, s. 93.
(r) The peculiarity of the action of
^ectment is that a claimant may liti-
gate a title more than once, no one
action being an estoppel to subsequent
actions between the same parties or
their representatiyes : (see note a to
8. cclzi.) This priyilege, unless care-
fully watched by the Courts, might be
prodnctiye of yexation and expense.
Because of this, the Courts have exer-
cised the jurisdiction of staying pro-
ceedings in a subsequent, until pay-
ment of costs incurred in tiie prosecu-
tion of a prior cgectment : (Keene y.
Atiffell et al, 6 T. B. 740 ; Doe d. Fel-
den y. Roe^ 8 T. R. 656 ; Doe d. Pinch-
ard y. Roe, 4 East. 586 ; Benn d. Mor-
timer y. Denn, Barnes, 180 ; Doe Hua-
»ey y. Roe, E. T. 8 Vic. MS. R. & H.
Dig. «'^ectment," VI. 4.) "The
reason why the Court stays proceed-
ings on a second ejectment is to pre-
yent yexation, for it is in the power of
a person to bring as many (gectments
as he pleases, unless he has bfien en-
joined to the contrary by the Court of
Chancery, which this Court has no
power to do. Therefore where a plain-
tiff has had judgment in a former
ejectment against him and is bringing
a new one, we cannot deny it to him
absolutely, but as it is as a creature of
the Court, and au equitable proceed-
ing, we grant it him upon pnyine
the costs and making the recompenso
for the yexation he had caused in
the prior ejectment:" {Doe Hamilton
y. Atherly, 7 Mod. p. 422, case 888.)
The practice prevails in cases wh'le
the second or subsequent action la be-
tween the representatives of the ori-
ginal parties or the representative!) of
either of them, as much as if betveen
the original parties themselves: (Doe
d. Feldon y. Roe, ubitupra; Doe Cham-
beray. Xaw, 2 W. Bl. 1180; Doe Hamil-
ton y. Atherly, ubi. aup. Doe Stand-
ish y. Roe, 5 B. & Ad. 878 ; Doe d.
Heighley y. Harland, 10 A. & E. 761)
and in cases where the second or sab-
sequent action, though not for the
same land as the former suit, depends
upon the same title : {Keene d. Angd
v. Afiffel, 6 T. R. 740; Doe d. Height-
ley y. Harland, ubi supra; Doe d.
Brayne y. Bather, 12 Q. B. 941), al-
though the previous action may hare
been in a Court different to that in
which the suit is stayed: (Coningi-
by'a Case, 1 Str. 648 ; Orumble v. Bo-
dilly, lb. 664 ; Doe Chambers v. Zaw,
ubi supra; Anon. 1 Salk. 226; Doe
Carthew y. Brenton, 6 Bing. 469 ; see
also Wade y. Simeon, 1 C. B. 610.)
But a limitation of the practice is that
it is only exercised in cases where the
previous ejectment has been tried and
not where the plaintiff in such preTiou»
ejectment abandoned his suit before
trial, because in such cases there is
.1
SECURITY FOR COSTS.
449
Court or a Judge (i) may, if they or he think fit, (0 on thej-^^r^tj
applioatioa of the Defendant at any time after such Defendant ">"^o«^-
has sppeared to the Writ, (u) order that the Plainti£f shall
jye to the Defendant security for the payment of the
Defendants costs, (y) and that all further proceedings in the
cause shall be stayed until such security be given, whe-
ther the prior action shall have been disposed of by dis-
continuance (to) or by non-suit, or by Judgment for the
Defendant. * ., .,
CCLXXIV. (x) The several Courts and the Judges thereof
little Tezation and very little expense :
{Short T. King, 2 Str. 681 ; Brittain
T. OreenvilU, lb. 1121 ; Doe Selby v.
AUton, 1 T. R. 49 ; Doe Blackburn v.
Standitk, 2 Dowl. N. S. 26 ; Doe d.
Mackay r. Roe, M.T. 5 Vic. MS. R. &
H.Dig. "Ejectment," VI. 5.) If it
can be shown that the previous suit
vas instituted and conducted without
plaintiff's linowledge t>r privity, the
subsequent, will not be stayed until
paTment of costs in the former suit :
(aee5ou/w V. Watte, 2 Dowl. P.C. 263.)
The rule to stay proceedings in cases
such as already mentioned is not, how-
ever, an inflexible one. If it be made
to appear that in the previous eject-
ment plaintiff was nonsuited in conse-
quence of the fraud or perjury of de-
fendant no stay will be granted : (Doe
Riesy. Thomas, 2 B. & C. 622. J This
section is an extension of the principle
contained in the foregoing cases. The
Conrtnow has authority not only to
stay proceedings until payment of the
costs of a previous ejoctment, but until
security be given for payment of costs
in the pending suit.
{>) Relative powers see note m to 8.
xuvii.
(I) '<If thetf or he think fit." The
decision of a Judge in Chambers when
made in the exercise of a sound dis-
cretion will not be the subject of an
appeal to the Court.
(tt) Until appearance defendant is
withoat a locut ttandi in the Court :
(see note t to s. ccxziv.) This was
- S
also the rule as to moving to stay pro-
ceedings for non-payment of costs in a
previous suit under the old practice :
{Doed. Flanderay.Roe, 3 U.C. R. 127.)
In a second ejectment for the same
premises between the same parties,
proceedings were thus stayed, and
plaintiff', disregarding it, proceeded.'
and was nonsuited for not confessing
lease, entry, and ouster. Defendant
thereupon moved to set aside the pro-
ceedings, but so worded his affidavit
as to be evidently made in the first
cause, the Court notwithstandini; over-
ruled the objection and set aside the
proceedings : {Doe d. Lake v. Davis,
8 U. C. 0. S. 811.) In answer to an ap-
plication to stay proceedings until
payment of the costs of a previous suit.,
it has been held enough for plaintiff to
deny that he claims under the same
title as in the former ejectment : {Doe
d. Bailey y. Bennett, 9 Dowl. P. C.
1012 ; see also Doe d. Evans v. Sneadf.
2 D. & L. 119.)
(v) This, it is apprehended, means-
the costs of the pending suit in which
application is made, and has no refer-
ence to any former suit.
(to) The power to stay a suit until
payment of the costs of a previous suit
is not in general exercised, unless
where the previous suit has been
brought down to trial and tried : (see
note r, supra.)
{x) Taken from Eng. Stat. 15 & 1^
Vic. cap. 76, s. 221.
!>■ 'I
460
THE OOMMOir LAW PROOXDURS ACT.
m
ooUxiT*
""liM.fc'''®*?®*''^^®^^' *^^ "*^ °"*y ^"'•c"© over the proceedings [in
^- ejectment under this Act], ( y) the like juriadiction as exercigcd
uxereiwUio
10'
uxereiw uio in tho Old aotion Of ejectment, (2) so on to ensure a trial of th
(UetioDM title and of actual ouster when nocesHary, (a) and for all nth
^^pil purposes for which such jurisdiction [might have bconl (h\
iSUlKl' exercised, (c) ^ ^"^
Mimdamtu. (d ) And in order to give to PlaintifT a further remedv b
Writ of Mandamut, Be it enacted as follows :
The words in brackets aro ori-
ginal.
(z) In Eng. C. L. P. A. « the like
jurisdiction as heretofore exercised in
the action of ejectment." As to the
jurisdiction exercised in the old action
of ejectment, see Tillinghast's Adam's
Ejectment, 224, et teg.
(a) See s. ccxlii.
h) For the words in brackets read
in Eog. C. L. P. A. " may at present."
(c) The Eng. C. ^. P. A. continuos,
X and thoproTisions of all Statutes not
inconsistent with this Act and which
may be applicable to the altered mode
of proceeding, shall remain in force
and be applied thereto."
(d) A peculiarity in the constitution
of the Courts of England and of Upper
Canada is the existence of two distinct
sets of tribunals for the administration
of justice. These tribunals, known as
Courts of Law and Equity, though in
many respects acting independently of
each other, in some cases occupy a
common ground of concurrent jurisdic-
tion. Proceedings in each tribunal
hare one object only, which is, the re-
covery of rights and the prevention of
wrongs. The steps by which a person
may seek his ciTil rights in a Court of
Law constitute a mode of procedure
known as an aotion. With few excep-
tions actions have only one object,
which is compensation in damages, or
in the words of the Common Law Com-
missioners "to procure a stipulated
sum payable in respect of some debt
or duty or damage in money for the
loss sustained by plaintiff by the non-
performance of a contract or for an in-
jury sustained by a wrongful act."
The previous part of this Act I.
directed to tho improvement of th «
mode of procedure, as it existed attl«
time of the passing of the Act In
the following sections an attemnt l»
made to effect an extension of the one
ration of an action at law. Compfn:
satiou IS not always adequate redregg
To satisfy the demands of justice theri
must be a power lodged sonmwhere to
protect rights and prevent wronw
Until the passing of this Act that
power was almost exclusively confined
to Courts of Eaulty. It appeared to
the C. L. Commissioners tliat "Courts
of Common Law, to be able satisfacto-
rily to administer justice, ought to
possess in all matters within their ju-
risiliction the power to give all the re-
dress necessary to protect and vindl-
cate common law rights and to preyent
wrongs whether existing or lijcely to
hapijen unless prevented." In their
opinion " a oonsolidatiou of all the
elements of a complete remedy in the
same Court is obviously moat desirable
not to say imperatively necessary to
the establishment of a consistent and
rational system of jurisprudence." In
pursuance of this opinion, the Com-
missioners recommended a transfer
from Courts of Equity to Courts of Law
of "the power in certain cases of
common law obligations and rights to
enforce specific performunce, and in
other cases of legal wrongs commenced
or threatened to prohibit by injunc-
tion the commission of wrongful acts."
How far the legislature has succeeded
in carrying this recommendation intft
effect remains to be seen
.fldUT-
liK.»rf4 MAMDAMVt.
\' >.
451
OCLXXV. («) The Plointiff, in any Mtion (/) in cither of f f^^- J-J^; \*^* ^^"^
the Superior Oourts, (</) except replevin or ejectment, (A) putnttff g/'
giy (t) indone upon the Writ and copy to be served, a notice tbenSr «i
thatUie Plaintiff intends to claim a Writ of Mandamut, (y)otam'MiT'
ind the Plaintiff may thereupon claim in the declaration, either enibNinff
togelhw with any other demand which may now be enforced ""^ *"*' "^
!l
It) Taken from Eng. £(Ut. 17 ft 18
Tie. Uf- 176, s. 68. — Founded upon
2d Kept. G. L. Cotnri. s. 40.
(/) Any action, i. t. whethsr upon
(OBtrMt or in tort.
(g) U. Queen's Benoh or Common
Pltu.
(k) In eaoh of which forms of action
(he /adgment is for tlie delivery of a
iptdfio thing, and not mere compensa-
tion for the wrong of detaining it, and
therefore not requiring the remedy
eoDtidBed in this and the following
aeetioDS.
Mutt indorse, if the intention be
to oltiffl a mandamus.
(j) The writ of manduntu hero in
tended is the old prerogativo writ of
thit name amplified both in form and
lioacy. The use intended is that of
cnforouig the specific performance of
eei-tain duties, *'in the fulfilment of
which the plaintiff is personally inter-
ested." The right of Courts of Com-
mon Law to issue the writ for such
porpoies, so flar as the same is depen-
dentnponthis Statute, isaeupplement-
uj jurisdiotion reoeiyed firom Courts
of Equity, and will not generally be
exereieed, unless in cases wherem a
bill for specific performance would not
lie in Equity. But it by no means fol-
lom that the converse of this proposi-
tion holds good, vis., that wherever
Courts of Equity will entertain a bill
for ipeoifio relief Courts of Law will
grant a writ of mandamus. There are
cues in which Equity will entertain
inch a bill, although ttie party apply-
ing have no legal right whatever, and in
which Courts of Law, in the absence
of a legal right, would not interfere :
(leePartfoev. Price, 16 M. & W. 461 ;
atg. V. Baby Turnpike, 22 L. J. Q. B.
104; Edwards v. Loundes, 1 El. & B.
81 . ) In such cases the remedy exclu-
sively belongs to Equity. Tb«r« is a
larger class of cases in which, although
hitherto there has been a remedy at
law, yet because of its inadequacy.
Equity exercises a concurrent Juris-
diction by granting specific relief
where Courts of Law could only grant
pecuniary compensation. To this
class of cases the section undar consi-
deration appears to he chiefly directed,
but in the opinion of the Courts has
wholly failed to embrace them. The
declared intention of the CommiBsloners
was ^nt each Court should possess
within itself the elements of complete
redress. But the words used by the
Legislature to carry out ttds inten^
tion have fallen far ^ott <^ Uie
purpose intended. The oniy class of
caaes to which the seoti(»i can without
doubt be said to apply is that "in
which there in a duty of a public na-
ture, or a duty created by ^)t of Par-
liament, in the ftilfilment of whieh
some other party ha« a personal inte-
rest :" (Benson v. Paull, Crompton, J.
2 Jur. N. S. 426.) The language of
this section, it will be noticed, gives to
plaintiff the right '*in any action" to
claim ',in the declaration " eiUier to-
gether with any other demand whldi
may now be enforced in suob action, er
separately," a writ of mand^i^tts. The
cases in which the writ may be asked
." separately" are not those in which
relief might be had in Equity, but
those, such, for example, as nen-
ti<»ied in the next succeeding note.
The claim to a mandamus -under tbis
section must be founded upon some
ground to be set forth in the declara-
tion, which must, in addition, allege
that plaintiff sustains damage, or may
sustain damage by tiie non-performanae
1
Hii
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J
i.
452
THE COMMON LAW PBOOEDURE ACT.
Cjgr
[«. CClzXT.
toSSSum.*** ""o^ *®'^<^° °' separately, (*) a Writ of Mandamus com-
mandiDg the Defendant to ftilfil any duty (T) in the fiilfilment
of the duty, the fulfilment of which it
is his desire to enforce : (s. cclzxTi.)
The foundation of the claim is the
broad one of right to present or pros-
peotive money compensation in the
nature of damages. There must be
some real difference between a manda-
mtu under this section and the ordin-
ary writ of that name. The Legisla-
ture has observed a distinction in s.
oclxzzi. of this Act. The prerogative
writ, as a general rule, is only granted
in oases where a party has a legal
right to have anything done, but has
no specific means of compelling its per-
formance by the ordinary remedy of
an action at law: (See note « to s.
oclxxxi.) There must be a specific
legal right as well as the want of a
tpeeifie legal remedy, in order to found
an application for the prerogative
writ: (lb.) But the mandamut un-
der this section would appear to
be gcaptable in cases wherein there
is a specific legal right as well as a
specific but inadequate legal remedy,
viz., damages. And there is a differ-
ence to be observed between a pro-
ceeding tor mandamut and an ordinary
•cUott for the recovery of damages.
The Legislature has treated the two
modes of procedure as something dif-
ferent, but in each of which the plead-
ings and other proceedings shall be as
near as may be the same : (s. cclxzvii.)
The proceeding for a manaamut under
this Act is a peculiar form of action
described as "Action for mandamus :"
(s. cclxxxi.)
(k) In Equity there may be a bill
for specific performance, and a supple-
mental bill, in principle anuwering to
an action under this section and a
supplementary right to mandamus.
Thus, if pending a suit for the specific
performance of an agreement, for in-
stance, of a demise of quarries, a part
of the subject matter be abstracted,
compensation therefor may be obtained
by a supplemental bill: (Nelson v.
Bridges, 2 Beav. 639.) This ease is
given as an illustration of a principle
in which a severance of proceeding
might be very necessary to complete
reUef but not as a precedent represent
mg a class in which relief mightbe had
under this section in Courts of Common
Xiftw*
(I) To every contract tiiere are at
least two parties. It is the duty Z
the one party to perform bis part of
the contract, and in tiie fulfilment of
it the other party may be personallv
interested. This of itself, however it
appears, will not entitie tiie latter' to
obtain a mandamus under this section
' Vi'.""?,* °^ ^''7' ^*'« o'^^y case de-
cided in England under tiie section of
Eng. C. L. P. Act corresponding witi,
the seotion here annotated has nar-
rowed the construction of the section
so as to cripple its operation, and ren'
der it almost nugatory. In a declara-
tion on an agreement for the lease of
a house plaintiff claimed a writ of
mandamus, commanding defendant to
prepare a lease in accordance with the
terms of the agreement. There was a
demurrer to the declaration for cause
that the case was not one comint
within the meaning of the Eng. C. L
P. Act. And per Campbell, G. J., <« j
am of opinion that this section does not
extend to a duty arising out of a per-
sonal contract ; if it did in all cases
where a contract was to be performed
it might be resorted to, because it ig
the duty of every person to perform his
contract. It could hardly have. been
the intention of the Legislature to give
the Courts of , Common Law a jurisdic-
tion much more extensive than Courts
of Equity have ever exercised, and yet
according to the constmction contended
for by the plaintiff, the Courts of Com-
mon Law would htave a jurisdiction to
grant a mandamus in the case of every
contract in which a person was person-
ally interested. If the action in this
case could be maintained pari rationt
on the application of a lady, her suitor
might be ordered to perforin his pro-
DEOLARATION FOB MANDAMUS.
ofvHch the Plaintiff is personally interested, (m)
458
CCIiXXVI. (n) The declaration in such action shall setBnB.<iL.p.op>* sfat ^
forth sufficient ground upon which such claim ia founded, (o) '^ s « * ^ ^
od shall set forth that the Plaintiff is personally interested u ■tatMi la
therein ( jp) ^^^^^ ^^ ^^ sustains or may sustain damage by the tion in roeh
ijg.pgrformance of such duty, (j) and that performance thereof*"*^
miseto marry her; -whereas the Courta
of Eoaity have never interfered in that
dellwte contract. Therefore I am of
opinion that this section i» confined to
(MM in which a v>rit of mandamut
mht he efplied M before the pataing
0fthi» Act, in which ease* theprovitiotu
idiiate the remedy. The section also
extends the power which this Court
mueen's Bench) has to the other Su-
perior Courts of Common Law in West-
ninster Hall, those being cases in
which the power may be well and be-
Befioially exercised:" {BensouY. Paull,
2 Jur. N. S. 425.) In the Law Timet
Beport of the same case, in addition to
the above, Lord Campbell is reported
88 having said, "It seemed to him
that it was never intended to confer a
power on the Common Law Courts
which they could not satisfactorily ex-
ercise. If the Common Law Courts
attempted to exercise this jurisdiction
(specific performance^ within the area
Uich is now occupied by Courts of
Equity, then they would launch into a
wide sea without chart or compass. It
seemed to him that their jurisdiction
mast be confined to those cases where
there might have been a mandamus be-
fore the Act passed, and in which the
interest of the party is of a public na-
ture or arose under an Act of Parlia-
ment. Within that limit it might be
very well and beneficially exercisd, but
to extend it as proposed to every per-
sonal contract, would lead to great
conAision and mischief:" (27 L. T.
Rep. 78.)
(m) "The words ' personally inter-
ested' refer to a class of cases in
which there ia a duty of a public nature
or a duty created by Act of Parliament,
ii the fulfilment of which some other
party has a personal interest:" {lb.
2 Jur. N. S. 426., Crompton, J.)
Cases of nuisance may be given as an
example. The public has an interest
in the ronoval or abatement of a nui-
sance; but any private individual who
suffers particular injury may at com-
mon law have his action for damages :
gee Brown v. Mallett, 6 C. B. 699 ;
obton V. Blaekmore, 9 Q. B. 991;
also Rustell v. Shentont 8 Q. B. 449 ;
Ooldthorpe v. Hardman, 2 D. & L.
442 ; Fay v. Prentice, 1 C. B. 828.)
(n) Taken from Eng. Stat 17 & 18
Vic. cap. 126, s. 69. — Founded upon
2d Rep. C. L. Comrs. s. 46.
(o) This differs from the practice as
to the prerogative writ of mandamtu.
The ground upon which the claim to
the writ is founded here required to be
set forth in the declaration must, as
regards the prerogative writ, be set
forth upon the face of the writ itself:
(^Reg. V. Hopkins, 1 Q. B. 161), and if
in this respect the writ be defective,
nothing appearing in the return can
cure the defect : {lb.) Even after the
return objections, whether in form or
substance, can in certain cases be made
to the writ : (Rex. v. Margate Pier Co.
3 B. & AL 220.) The allegation in the
declaration under thissectiondisolosing
the grounds upon which the writ is
cliumed will for all practical purposes
answer to the similar allegation hitherto
required upon the face of every writ of
mandamus. This being the case the
plea to such a declaration will be go-
verned by the same principles as tiie
return necessary to be made to the or-
dinary writ of mandamut. — See Tap-
ping's Mandamus, 840.
(p) See note m to a. cdxxv.
{q) See note/ to s. cdzzv.
' .;»^ I
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It
\.f
1
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1 1
451
THE COMMOir t^MM VKOCSDWXX ACT.
m
m
[» odxivii.
lias been demanded bj bim and refnsed or neglected, (r)
^'T;.^I?C ft*-^^^ CCLXXVILCO^rhepleadingsandotherproceedingsinan,
aiotioil m wbiob » W nfc of Mandamua is chimed, shall be th
PracMdiARf sam« in all respects as nearly as may be, (t) and costs shall bA
reooTorable by either party, as in an ordinary actioa for th«
woovery of damages ; («) and in case Judgment shall be rive
for the Plaintiff that a Mandamus do issue, (v) it shall be laviiil
I |>
I
iiri:
tiota.
OMta.
(V) The demland must be specifle,
and iioii>-ooiapHaiie« tbereiritii dearly
made to wppear : (a«e Reff. t. fVost, 9
A. ft S. 822 ; Re^. r. Bristol R. Co. 4
Q. B. 162 ; Reg. t. Jtutieea of Woreei-
ttrthhe, 3 £1. & S. 477.) Where a
mle for a moncAnMut was disebavged on
t&e |(roimd of tbere being no d^and
and reftisid, the Conrt deofined to
grant a second rale, alfliongh npon tbe
second application it was shown that
since the cBscharge of the fbrmer tale
a demattd and refusal had taken place :
{Ex parte fhompeott, 6 Q.B. 721.) The
demand may be made either by plain-
tiff or by some person dnly anthorised
SI Mm : {R^. y. Ford, 2 A. ft E. 588 ;
ig. t. Frott, 8 A. ft E. 822 ; Rex. y.
Mayor of WettLooe, S B. ft C, 86.) Far-
ther as to the demani, see Tapping's
Mandamns, 282.)
(«) Taken from Eng. Stat. 17 ft 18
Vic. c. 125, 88. 70-71. — Founded upon
2d Rep. C. L. ComrS. s. 46.
{t) It is necessary for the party to
irhom 8 i/Mftdantui is addressed, to
make a return to it : (9 Anne, cap. 20
8. 1.) The party prosecuting the
writ may plead to or trarerse all or
any of the material facts contained in
the return: {lb. s. 2.) To which the
person who makes the return may re-
ply, take issue, or demur : {lb.) The
party demurrins may thereby impeach
the yaliditj of the writ: {darker.
Leieeeterthire Omnal Co. 6 Q; B. 898.)
The objection that defendant is not
bound to perform the act, the perform-
ance of which plaintiff seeks to enforce
may be made upon demurrer to the
return as well as in opposition to the
original motion for the writ : (Reg. v.
Whitmarth, 19 L. J. Q. B. 186.) If
issue be joined upon a traterse o^ &
matter of fact, and the prosecutor da
not proceed to trial accordinir to tba
practice of the Court, judgmeat tor
not proceeding may be had against
him : {Rex v. Mayor of Stafford I T It
689), and after trial if there be snffil
oient ground therefor, judgment no»
obstante veredicto may be given for the
party who made the return : (Reg «
Darlington School, 6 Q. B. 682- se*
farther note i to s. ccxvii.) '
(tt) It is a general rule on an ap.
plication for the prerogative Trnt
of mandamu* that coeta shall follow
the event. There is, however a
general rule which leads in an V
poeite direction, namely, that where
the necessity of issuing a mandmut
to a Court, has arisen from the mis-
take of the Court, the party relying
iq>on the judgment of that Court shaS
not pay costs : (Reg. v. Justices e/5«^
rey, 9 Q. B. 87.) But the Court of
Queen's Bench, in England, without
binding itself absolutely to general rules
has always exerdsed a diseretionarv
power as to such costs: {Reg. v. Thamts
CortCrs, 6 A. ft E. 806.) Formerly
there was a practice of going at great
length into the merits on an applica-
tion for costs ef a mandamus, but that
was found to be inconvenient, and a
general rule laid down that the Court
without entering into the merits would
order the unsuccessful party to pay
the costs : {Reg. v. Ingham, 17 Q. B.
884, ) It is the ordinary practice to make
a separate application for costs of a.
prerogative mancfamui : {Reg. r, Eeti
Anglian R. Co. 2 El. ft B. 476.)
(v) The form of whioh judgment
eeltfTiii.] ^Jk pbrkmptoby manbamus.
455
for ^ Court in which anoh Judgment shall be giren^ if it shall
gee fit, besides issuing execution in the oidinary ^^7 ^or the^^^^y
(osts and damages, (w) also to issue a peremptoiy Writ of o j. p
}[andamtu to the Defendant, commanding him forthwith to a. mi
perform the duty ta be enforced, (x)
CCLXXVIH. (y) Such Writ (z) need not recite the ^ecla-Jf-O; J-^p ^^,'Jf.^
ration or other proceedings or the matter therein stated, (a)^^^^^ ^ ^/
lint shall simply command the performance of the duty, (b) peremptory
and in other respects shall be in the form of an ordinary Writ
of Execution, except that it shall be directed to the party and addressed.
ihftU be tooording to fiorm N<k 65 in
8ch. to N. Bs,
(w) See s. clzxzii. et seg.
Ix) ProTision is made here for tb«
jigne ef obIj '~"'^ mandaniUt tiz., that
in the nttvc" cf n «z«catioD, which
tharefore mus. "^ " ^ peremptory na-
taie. The de« jr'^-'i represents the
fint writ of ntamtamui or mandamtu
niti issued in proceedings indepen-
dently of this Act. It is a rule in
gaeh 8 proceeding that no peremptory
writ shall issue until the proceedings
on tiieilrot writ of mandamua are oom>
pleted: (Reff' v Baldwin^ 8 A. & E.
947), and when granted peremptorily,
tiie Court will not hear any return to it :
[t^g, T. Ltdgard^ 1 Q. B. 616), other
than that of compliance: (s. cclzxriii.)
{g) Taken from Eag. Stat. 17 & 18
Vie. cap. 125, s. 72. — Founded upon
2d Rep. C. L. Gomrs. s. 46.
(«) Swih writ, i. e. the peremptory
writ of mandamiM mentioned in the
preceding section.
(a) A peremptory mandamus issued
independently of this Statute need not
in general recite the previous writ of
nandamui, to which in a great measure
the declaration under the practice es-
tr;blished by this Act corresponds. But
in form the peremptory writ must be
the same as the writ originally award-
ed, that is to say, there must not be
any substantial variance, otherwise
defendants would have a right to make
a new return to it, a step which the
practice forbids Tha mandamua nui
ovdwa the act tO' be. done, or causo to
be retaraed for not doing it; whereas
tha peramptoiy wawdanwiB commands
the act ta ba done, aiad will admit of
no return except that of performance.
(iZ<y. ▼. ihe. Mayor of London, 13 Q.
B. 1. See also note x tupra,y
(6) Qreat partieularity yuutbe ob-
served in. the maadatory part of the
writ. To 8U|^porb a writ conunanding
the doing of several things, all most
be valid, else the writ maat be quashed.
If the writ be bad as to ona of the
things commanded to be done it will be
bad as to all ;, (JUg. t. Tithe Commia-
tionert, 14 Q. B. 459.) "It is quite
settled that if aay part of what is com-
manded by a peremptory mandamua go
beyond the legal obligation tbe whole
writ must beset aside :" {Reg, v. Cale-
donian R. Co. 16 Q. B. 19 ; The South
Eastern R. Co, v. Reff. 17 Q. B. 485 ;
Reg, T. JSast and Weat India Docks and
Birmingham R. Co. 2 £1. & B. 466.)
The Courts have refused to amend
prerogative writs of mandamua when
peremptory : (Rex v. the Church 3V«»-
teea of St. Pancras, 3 A. & E. 685 :
Reg. v. Tithe Commiaaionera, ubi aupra;
Reg. V. Kidwelly and Llanelly Canal
Tramroad Co. 14 Q. B. 481, n.) The
motion against such a writ upon the
ground of some defect in it is not too
late, on a motion for an attachment, be-
cause of disobedience : (Reg. v. Led-
gard, 1 Q. B. 616 ; see also Mayo v. Con-
nell, 3 N. C. L. Bep. 10.)
t I
f( ' h
I H
^ <■
h"^-. f
• I
456
THE COMMON LAW PROOEDURE ACT.
ii-i
Co-y-\. S ?.T? tV^
{(.c'.c'.'i r-b
[8.cclxxix.
not to the Sheriff, (c) and may be issued in tenn or vacation
and returnable forthwith, (d) and no return thereto, except
that of compliance, shall be allowed, (e) but time to return it
may, upon sufficient ground, be allowed by the Court or a
Judge, (/) either with or without terms. (^)
GCLXXIX. (Ji) The Writ of Mandamus so issued as afore-
Tteaffectand"*"*^ (i) shall havo the same force and effect as a peremptory
hovren&rced^i^rit of Maudamus, Q') and in case of disobedience, maybe
enforced by attachment, (k)
B«tarn
thereto.
Eng. 0. L. P.
A.18H8.73.
(e) It is enough to direct the writ to
those who are bound to perform the
duty commanded : (Reg y. Majfor of
ffertford, 2 Salk. 701.) It may be
directed to a corporation by name or to
those members of it who haye the power
to do the thing required: (Rexy. Mayor
of Oloueetter, Holt's Rep. 46.) But it
must be Erected either to that part of
the oorporadon who are bound to do
the act or to the corporation at large :
(^Rex y. Mayor of Abingdon, 2 Salk.
699.) See farther Tapping's Man-
damns, p. 810, et teq.
(d ) The prerogatiye writ of manda-
mtu is regulated by a like practice : (a.
cclxxxii.)
(e) This is the rule also as to the
prerogatiye writ when peremptory:
{Beg. y. Ledgard, 1 Q. B. 616.)
(/) Relative powers, see note m to
s. xxxvii.
(g) If prosecutor endeavour to en-
force a return within an unreasonable
time or otherwise in an unreasonable
manner, further time will, it is appre-
hended, be granted without terms.
(h) Taken from Eng. Stat. 17 & 18
Vic. cap. 126, s. 78.— Founded upon
2d Rep. C. L. Commrs. s. 46.
(t) t.0. Issued under s. cclxxrii.
(y) In Eng. C. L. P. Act, "shall
have the same force and effect as a
peremptory writ of mandamtu issued
out of the Court of Queen's Bench,"
because before the Eng. C. L. P. Act
the writ of mandamtu in England was
issuable only from the Court of Queen's
Bench. In Upper Canada since the
constitution of the Court of Common
Pleas, thatCourt and theQueen's Bench
have in all respects exercised a concur-
rent jurisdiction. (12 Vie. c, 68, s. 8.)
(*) The peremptory mandawtM com-
mands obedience. No return can be
made to it except that of compliance-
(s. cclxxviii.) If that return be not
made within a reasonable time the
Court will grant i ; attachment against
the persons to whom the writ is direct-
ed, with this difference, however, that
where a mandamus is directed to a
corporation to do a corporate act, the
attachment is granted only against
those particular persons who refuse to
pay obedience ; but where it is directed
to several persons in their natural ca-
pacity the attachment for disobedience
must issue against all, though vhen
they are brought before the Court the
punishment will be proportioned to the
offence of each : (Bull N. P. 201-2 ; %.
y. Poole, 1 Q. B. 616.) A nandamm
was directed to two bailiffs, one of
whom inclined to obey the writ and the
other would not obey it nor join in a
return. The Court granted an attach-
ment against both, saying it would be
endle«'s to try in all cases who vas in
the right and who wrong, and that if
the same were done it would be used
as a handle for delay : {In re Bailiffs
of Bridgenorth, 2 Str. 808.) An at-
tachment was ordered against the
Mayor of a corporation for not making
a return to a mandamus within the time
prescribed by the writ, though there
had been no personal service thereof
upon the Mayor: {Rex v. MayorofFovi%
5 D. & B. 61 4. If the return upon the
"Pi'.Tf
PREROQATIVl! MANDAMUS.
467
CCaXX. (0 The Court(m) may, upon application by the 5"J^0j J-.J; ^^^ V*^^^
plaintiff, besides or instead of proceeding against the disobedient ^^^ ^^ ^ ^
pjrty by attachment, (n) direct that the act required to be done or^e' ^"^
^y be done by the Plaintiff or some other person appointed *°"* ^,^*^*
bv the Court, at the expense of the Defendant, (o) and upon *•>• "Mte
.. ^i being done ( jp) the amount of such expense may be dant
Mcertained by the Court either by Writ of enquiry (j) or re-
ference to the proper ofi&cer, (r) as the Court or a Judge may Execution
Older («) ^^^ *be Court may order payment of the amount of ooSte?*
5uch expenses and costs, (<) and enforce payment thereof by
by execution, (u)
CCLXXXI. (y) Nothing herein contained shall take away eub. o. l. p.
the Jurisdiction of [either of the Superior Courts] (to) to grant ' ' * '
^ti!a of Mandamtis ', (x) nor shall any Writ of Mandamus ^^to ^ /
• I
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i
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{^ee of it be good but the matter of it
filae, an action upon the case lies for
the party injured, against the person
making such false return : (Bull N.P.
202.) Proceedings by attachment
nnder this section will much re-
semble attachment for non-perform-
aoce of an award, as to which see note
ytos. Ixxxvii; further see Tapping's
Uandamas 421.
(A Taken from Eng. Stat. 17 & 18
Vio. cap. 126, s. 46.— Founded upon
1A Rep. C. L. Comrs. s. 46.
(fflj Qu. Court or Judge^see note
I, m/ra.
(n) Under s. colzxiz.
(o) This may apply to abatement of
nuisances, &o : see note m to s. cclxxv.
[p) The doing of which must be
made to appear on affidavit.
(j) As to form of writ seeN. Rs. Sch.
No. 56.
(r) i.e. Clerk of the Court.
(t) It is enacted the Court '* may,
upon application, &c., direct that the
act required to be done may be done
by the plaintiff, &c., and that upon the
act being done the amount of the ex-
peiise of doing it may be ascertained,
&0', as ' the Court or Judge' may order,
&c., and that < the Court* may order
jadgcent of such expense, &o. These
changes of expression shewing when
power rests with the Court or a Judge,
and when with the Court ezcluslTely,
are material to be observed in the prac-
tical application of this section.
(t) An order for payment of the ex-
penses and costs, from the peculiar
wording of the section, would appear
to be necessary to warrant issue of the
execution.
(u) The execution intended is, it is
presumed, the ordinary writ of fieri
facias. Whether other forms of exe-
cution can be issued remains to be de-
cided.
(v) Taken from Eng. Stat. 17 & 18
Vio. cap. 125, s. 76.
(w) Instead of the words in brack-
ets read in Eng. C. L. P. Act, *< the
Court of Queen's Bench." See not /.
to s. cclxxix.
(x) Mandamus is a high prerogative
writ of a most extensive remedial cha-
racter, issuable in Upper Canada out
of either of the Superior Courts of
Common Law, " directed to any corpo-
ration or company, inferior Court of
Judicature, or person, requiring them
to do some particular thing specified
therein, which appertains to their
office, and which it is their duty to
perform :" (Impey on Mandamus, 1.)
The writ being one of prerogative
issuable from Courts of Common Law
•*.
'7M
468
THE COMMON LAW PROOEDURX ACT.
I'm:-. l\
[s. ocluxi.
SuJJjfc^ issued out of such Courts be invalid by reason of the right of
X?I!li'"'* *^« prosecutor to proceed by action for Mandamut under thu
nffectod.
Act. O)
can only be issued to enforce a legal
ascertained right : (Rex v. Arehbiihop
of Canterbury^ 8 East. 218 ; Rex y.
Stafford, 8 T. R. 646 ; /» re Orion Vi-
carage, 18 Jur. 1049 i Ex parte Napier,
18 Q. B. 692; Reg. t. Trustees of
the Balhy Workshop Turnpike Road, 22
L. J. Q. B. 164; Bamhart T. Justices
of the Home District, 5 O.S. 507 ; Reg.
y. District Council of the District of
Gore, 6 U. G. B. 851); in general
irhere there is no other specific re-
medy, or one that it is doubtful or in-
consistent : (Rex y. Bishop of Chester,
1 T. R, 404 ; Rexy. Bristol Dock Co.
12 East. 429 ; Rex y. St. Katherine's
Dock Co. 4 B. & Ad. 860 ; Rex y.
Windham^ Cowp. 877; Rex y. Da-
merel, 6 A. & £. 584 ; Rex. y. Notting-
ham Waterworks, 6 A. & E. 855 ; Reg. y.
Rector of Birmingham, 7 A. & E. 254 ;
Reg. y. Hull ^ Selby R. Co. 6 Q. B.
70) ; and to enforce the performance
of a duty imperatiye and clear : {Rex
y. Eye, 1 B. & C. 85 ; Rex t. Justices
of Lancashire, 7 B. & G. 691 ; Rex y.
Bishop of Oloueester, 2 B. & Ad. 158 ;
Ex parte Beck, 8 B. & Ad. 704 ; Rex
y. Mayor of London, 8 B. & Ad. 255;
Rex y. Justices of Yorkshire, 5 B. &
Ad. 667; Reg. y. South Eastern R.Co.
4 H. L. Gas. 471 ; Rex y. Hughes, 8
A. & £. 425 ; Reg. y. Greene, 6 A. & E.
548 ; Reg. y. Eastern Counties R. Co.
10 A. & E. 581) ; being one of a pub-
lic or qtuui public character, that is to
say, one in which applicant is not at
all events the sole person interested :
(Rexy. Baker, Burr. 1265 ; Rexy. Lord
Jtfonlacute, 1 W. Bl. 61 ; Rex y, Cheere,
4 B. & C. 902 ; Ex parte Robins, 7
Dowl. P. G. 566; Reg y. Eastern
Counties R. Co. 10 A. & E. 557) ; but
will not be issued to enforce the doing
of an act which if done would serve
no good purpose : (Anon. Loft. 148 ;
Rexy. The Commissioners of the Llandio
District Roads, 2 T. R. 282 ; Reg. y.
Blaekwell R. Co. 9DowI. P. G. 558 ; Rex
y. Justices of Staffordshire, 6 A. & K Oft
Reg. V. Pitt, 10 A. & E. 272; //„ ,'
Harmon, 9 Q.B. 794); orcaisTuMl:
cessary trouble, venation, er conftjsion.
(Reg. V. St. John's ColL Comb 288 •
Reg. y. Bishop of Ely, 1 W. BI. fio!
Rex y. Coleridge, 1 Chit, R. 688) • oi
direct the doing of an act which uim-
possible : {Rex y. London and Nonk
WestR. Co. 6 Rail. Gas. 684); orbe
otherwise fruitless and useless • (Rtx
y. Bridgman, 15 L. J., Q. b! 44.
Rex y. Gilbert Heathcote, Mayor df
London, 10 Mod. 58 ; Ba v. Nor-
wich Savings Bank, 9 A. & £. 729) . or
generally to do an act, the doing of
which would subject the party to an
action : {Rexy.Dayrell, 1 B. & C. 486.)
No waiver of objections will entitle a
party to a mandamus, unless thepartr
applying of himself dieelose a good
right thereto : {Rex y. Lords of tht
Treasury, 16 Q. B. 857.) The party
applying must show that there hu
been a specific demand for the perfo^
mance of the duty, followed hj a re-
fusal in terms or by oircumstances
which distinctly show the intention of
the party not to do the act required of
him, and which i% is the object of the
mandamus to enforce: {Rex v. Brerk-
nock and Abergavenny R. Co, 8 A. &
E. 217 ; Reg. y. St. Margarets Vei'tn,
8 A. & E. 889 ; Reg. y. Bristol R. Co.
4 Q. B. 162 ; ex parte Thompson, 6 Q,
B. 721.) The application must be
made within a reasonable time: (%.
V. Canal Co. 11 A. & E. 316; Rea. v.
Townsend, 28 L. T. Rep. 100.)
(y) It is a rule that the prerogative
writ of mandamus can only be had in
oases where there is no other specific
remedy : (note x.) The statutory
mandamus allowed by this Act will be
in some casesi a specific remedy, but in
no case such a remedy as will prevent.
the interference of the Court by tlie
issue of the prerogative writ.
^Oolxxxii.] INJUNCTION. 459
CCLXXXII. (») Upon application by motion for any Writ {"fjS; '^ ^' ^
^j^andamus, (a) the rule may in all cases be absolute in the »• 7o, "i^n.
Ijnt instance, if the Court shall think fit, (h) and the Writ may
yt teste on the day of its issuing, (c) and may be made re-
{arnable forthwith whether in term or in vacation, (df) but f„
tioe may be allowed to return ifr by the Oowrt or a Judge either -^T
inth or without terms ; (e) and the prorisions of this Act, so eonoeniii«
£ir as they are apj^icable, shall &rvi^ * -he pleadings and pro^ prwpgattT*
eeedings tipon a prerogative "^ 't oi 'antkimus issoed \- w mmwhil
flther of the Superior Cowts/ (/) (f ' ^^.
(a) And in order to give to Plaintiff a further remedy by
flit of injunction ; Be it eaaeted as follows :
It) Taken from Eng. Stat 17 & 19
Vic. cap. 126, as. 75, 76-77.
(a) W Eng. C. L. P. A. «< tJpon any
ipplicAtion by motion for any •sttit oP
mdamvi in the Court of Queen's
Bench." See note/ ta s. cclzxiz.
(h) Thia has always been the ralie
of practice. Aa to when the mlv^
Aottid be nut and when absolute, see
lopey's Mandamus, p. 114 ; Tapping's
Mandatima, 297-298.
(e) Andhereinoonform with the prso-
fiee regnlating writs of summMis (s.
lix) and execution (s. clxzzix.) Hi-
therto all writs of mandamtis were test-
ed ia term : (Com. Big. Mandamut^
C. 4. ; Reff. r. Conytrt, 8 Q. B.
981.) And in prflctioe were supposed
toissne on the day when ordered by
the Court : (/&.) Under this section
tx writ may bear date "on the date
of its issuing" '* either in term or va-
cfttion," and without referencO to the
day when ordered by the Court.
[d) Same rule aS applied to Writs
of execution : (see s. olxxxix.)
(<) Court or /udf^e— Relative pow-
ers, see note tn to s. xxxvii.
(/) the latter part of this seotion
is taken from Eng. Stat. 17 & 18 Yio.
e. 125, a. 77, and is in many respeets
ui important provision. Bowever, it
is a question how far ss. cclxxvi-
edxxTii. can be applied to the prero-
gatire writ of mandatMU.
(^) The 'object of most actions at
law is, as already noticed, to obtain
compensation in mcmey fsr damages
sustained: (see note <r to s. oclxxv.)
There may be a breach of contract or
other iqjury for which no damages that
a Jury can award would be adequate
compensation. In such oases a juris-
diction to prerent the breach of con-
tract or other wrongful act would be
mu^ more salutary if exercised than
a jurisdiction to indemnify against the
consequences of its commission. The
want of some Court having such a ju-
risdiction was felt and and acknow-
ledged at a very early period in the
history of English juiispmdence: (see
Monkton t. Attorney wneral, 2 Coop.
607.) Courts of Equity having ob-
served the want seized the opportunity
of administering the desired relief, and
in so doing arrogated to themselves a
most useful and most powerful juris-
diction. Having assumed to exercise
it, these Courts did not confine its ope-
rak>ns to mere equitable rights, but
administered the relief as well where
there were legal as purely equitable
rights. In this manner a great inroad
was made upon the jurisdiction ot
Courts of Common Law, so much so that
in many cases no satisfactory redress
could be had« at law without first
having invoked the supplementary aid
of a Court of Equity. The attention of
the Common Law Commissioners of
of 1834 having been directed to these
I' I
'M I
l«f
If ■ 1,
460 TnE OOMMON LAW PROCEDURE ACT. fa oclxxxii*
f sS,^ '* CCLXXXIIl. (A) In all oases of breach of contract or other
injury, (») where the party injured is entitled to maintain and
Eni
▲.
1.79.
oiroumstanoes, they reported that
there was no reason ** why a Court of
Law should not exercise the same jur-
isdiotion as a Court of Equity, and re-
strain the violation of legal rights in
oases in which an iqjunotion might
issue for that purpose from Courts of
Equity." Theadvantages to arise flrom
such a change also received the atten-
tion of the Commissioners. Their re-
port was to this effect, *< It would ob-
viously be attended with great advan-
tage and convenience, that where com-
mon law rights are concerned, the
whole litigation relatingto them should
fitll wiUiin the cognizance of a common
law court,not only because the expense
and delay of a suit in Equity may be
^us avoided, but because the common
law Judges are more competent than
those in Equity to decide any question
of law which tho application for an
ii\junction may involve, and can exer-
cise more conveniently a controlling or
directing power over any action con-
nected with the matter in dispute." It
was ascertained that to carry out these
recommendations no creation of ma-
chinery was necessary. " Little more
would be required than to give an ex-
isting writ a wider application of a
kind sanctioned by ancient usage. For
in former times a writ of prohibition
was granted not only to prevent excess
of jurisdiction but to restrain waste.
Prohibition of waste lay at common
law for the owner of the inheritance
against the tenant by the curtesy ten-
ant in dower and guardian in chivalry ;
and this, says Lord Coke, ' was an ex-
cellent law, for preventing injustice
excelleth punishing injustice :' " ^2d
Bep.C. L. Comrs. s.48.) It is the design
of the following sections to put these
recommendations, which received the
approval of the Common Law Com-
missioners of 1860, into praotiou.
(Ji) Taken firom Eng. Stat. 17 & 18
Vic. cap. 125, s. 79. — Founded upon
2d B«p. C. L. Comrs. s. 48. ^ ,
JO The apphoaUon of this Beotion
is in some degree made to depend uZ
a reference to the mandanut olauW
It is enacted that in all oases of breS
of contract or other injury, &o, p£
tiff "may in like cases and mainer m
hereinbefore provided with respect S
writ of mandamtu claim a writ of in-
junction," &c. It is not in everycwe
of a breach of contract or other iniuw
that plaintiff may obtain a writ of
fnandamtu. This writ is only obtain
able to enforce the fulfilment of some
duty of a public nature or arisinir
under an Act of Parliament : (see note
I to s. cdxxv.) But between the cases
in which the proper application would
\J)e for a mandamtu, and those for an
injunction, there is at least one obvi-
ous distinction. The former writ
issues to command the doing of Bom^
thing and is in general issued In cases
of non-feasance. Whereas the latter
writ does not so much Issue to com<
mand the doing of a thing as to desist
firom doing something, and Issues ge.
nerally in cases of misfeasance, or in
the words of this section, the injunction
may issue *' against the eontinuana"
of a breach of contract or other injury.
However in some degree the enactment
is anticipatory, for relief may be asked
not only against the continuance, &c.,
but against the *< repetition" and
against the "committal" of any breach
of contract or injury of a like kind
arising out of the same contract or
relating to the same property or
right The words " breach of con-
tract or other injury" are also de-
serving of attention. The first in-
ference is that a breach of contract is
an injui^ .within the meaning of the
section. Cases have arisen in which
great doubts were entertained as to
whether, for the breach of a particular
contract the remedy was on the con-*
tract or in tort The distinction ap-
pears to be that whenever there is a
I duty arising from a general employ-
g,cclxixui] WHEN INJUNCTION OBANTABLE, 441
]ij5broagl>t an action, (y) he may in like case and manner asincHeof
pent, then an action may be brought
is turt, though the breach of snch duty
,B»y consist in doing something oon-
wy to an agreement made in the
(oune of such duty by the party on
fhom the general doty is imposed :
(Courtney ▼. Sarle, 10 C. B. 78;
iMilio Boorman ▼. Brown, 8 Q. B.
511— reported as affirmed in 11 CI. &
l\> Wood v. Fumit, 21 L. J. Ex.
138.) Where the command to desist
f^m the doing of an act involves the
doing of some other act, the injunction
nity neTertbeless be granted. Thus,
is tn action for the obstruction of
plaintiff's lights by the erection of a
f^l, the Court granted an injunction,
the effect of which was of necessity to
oapel defendant to take dovm the wall:
IJimly. Chaplin, 4 W. R. 610.) Many
cues of a like kind will readily suggest
tbemselTes — See Bradbee v. Christ' t
Social, 4 M. & G. 714 ; Roae v.
6ma, 6 M. & G. 618 ; Firmitone v.
Whuley, 2 D. & L. 208 ; Goldthorpe t.
Bardman, 2 D. & L. 442 ; Ruaaell v.
SAfflton, 8 Q. B. 449 ; Fay v. Frentiee,
1 C. 6. 828; Brown t. Mallett, 6 C.B.
699, dedided in Courts of Common
Lav— and the cases of Martin v. Nut-
kin, 2 P. W. 266 ; Haines v. Taylor,
2 Ph. 209, affid. 10 Beav. 76 ; Spencer
T. London and Birmingham R. Co. 8
Sim. 198 ; Squire v. Campbell, 1 M. &
C. 459; Attorney General v. Forbes, 2
M. & C. 128 ; Ripon v. Hobart, 8 M.
& E. 169, decided in Courts of Equity.
Tliere are cases in which Courts of
Equity grant injunctions prohibitory in
form but mandatory in effect, the prin-
ciples of which will govern the appli-
cation of the section under considera-
tion: see Mexhorough v. Bower, 7
Beav. 127.
(;') The "breach of contract or
other injury" must be one for which
plaintiff is entitled to bring, and for
irhich he Aa« brought an action. There
must be the legal right infringed upon
by the wrongful act or injury, the sub-
ject of the action. Courts of Equity
have observed the principles involved
in this provisioa with as much strict-
ness as Courts of Law can well do. In
applications to Courts of Equity for
relief in cases depending upon legal
rights, these Courts have at all times
taken good eare that the right should
be ascertained before their jurisdic-
tion by injunction is exercised. In
all applications of the kind the first
question to be determined is the legal
right. If the Court doubt that, it
may commit injustice by interfering,
nnUl it be decided. A great objection
to granting an injunction before the
legal right is ascertained, is that the
granting of the writ itself operates upon
the question before that question is
discussed and determined in the ordi-
nary mode. Hence Courts of Equity,
unless quite clear as to the legal right,
have deemed it the safer course to ab-
stain from exercising their jurisdiction,
until the determination of that right :
(see Rigby v. Great Western R. Co. 1
Coop. 8 ; Clayton r. Attorney General^
lb. 189 ; Saunders v. Smith, 8 M. & 0.
711 ; Bramwellr. Haleomb, 8 M. & 0.
787 ; Pidding v. Howe, 8 Sim. 477 ;
Collard v. Allison, 4 M. & C. 487 ;
Ringer v. Blake, 8 Y. & C. 571 ; Smith
v. Elzer, 8 Jur. 792 ; Spottiswoode v.
Clark, 2 Phill. 154 ; Stevens y. Keating^
lb. 883; Simple v. London and Bir-
mingham R. Co. 1 Rail. Cas. 120;
Eleetrie Telegraph Co. v. Nott, 11 Jur.
157 ; England v. Came, 8 Beav. 129 ;
Bridson v. MeAlpine, 8 Beav. 229;
Hames v. Taylor, 10 Beav. 76 ; Rowth
V. Nester R. Co. 10 Beav. 561 ; lAdgett
y. Williams, 4 Hare, 464 ; Hodjield r.
Manchester R. Co. 12 Jur. 1083 ; Oakin
V. London and iV. W. R. Co. 18 Jur.
679.) There are, however, cases in
which Equity, in the exercise of its
peculiar jurisdiction, will gvant relief
by injunction, though there be no legal
subsisting right, as in cases of breach
of trust, confidence, &c: {nee Prime
Albert v. Strange, 1 Mac. & G. 25) ;
and on the other hand some oases in
which Equity will not interfere though
there be the legal right : (see Bedford
V. Baitish Museum, 1 Coop. 90 n ; Dt^
venport y. Davenport, 7 Hare, 217;
;! I
i ;
n
if'^'m'
■s
if.'"
mK-W
.^^ M i > mm
U]i ''!';; f^
I I
462 THS COMMON LAW PBOOXDV&B AOT. [s.oolzxxUi
5J2tJ^ hewinbefope provided, with nepeot to ^anrfamtti, (k) dain, ^
w other W'rit of injunction (J) against the repetition (m) or oontinuanw
gynAr'-y of iuoh breach of contract or other injury, (n) or the committal
tioa affSiiut of any breach of contract or injury of a like kind arising out of
*o^ Mid iito the aame contract or relating to the same property or rigbt ^o)
and he may also in the same action include a claim for ^maees
mt oUier redress, (p)
Clark T. FrfmwiL^ 11 BeaT. 1121 ;
Samterr. Ftrguton, 1 Moo. & Q. 280.)
Where a Court of Equity tees th«t
there is a qaeetion between the parties,
and that tiiat qaesUon may be dealt
with but oannot be wholly deeided at
law, while a part of the relief sought
bj plaintiir oan only be obtained in
Equity, the Court of Equity will on a
motion for an injunotion to reatrain
an action at law grant the iigunotiim
until the hearing of the oauae: (The
AthentRumLife Asturmnet Co. t. PooUy
et al, 27 L. T. Bep. 282.) But it must
be on idaintiff 's paying into Couirt the
amount, if any, due from them to the
defendants in Equity, and undertaking
to pay what may become due up to the
hearing of the cause : (16.)
(k) i.e. May indorse upon the writ
and copy to be senred a notioe that the
plaintiff intends to claim a writ at in-
junotion, &o. : (s. coluiv.)
(I) The effect of these seetioas as to
iigunotion is togite the same^power to
a Court of Law as to granting an in-
junction which Courts of Equity exer-
cise in cases where the injunction is
granted vithout Urnu; in other words,
tbo Courts of Common Law will only
grant an iigunotion where, under the
same «iroumatanoes, a Court of Equity
would grant an absolute ii\iunotion :
iPaterson, MoNamara, and Marshall,
276, refienring to Mmet Royal Sr^eiety
T. Mapnay, 10 Ex. 489.) InjuneUons
upon surmise (aiUa tit) wiU, it is (we-
sumed, be refused by Courts of Law :
(OhmlopheruM y.Ckomfy, Cary. 63.)
Interlocutory ii\}unoti<m8 seem to be
grantable under s. colxxxvi.
(jn) The fraud«dent use of trade
mafks: (Crawahag x. Thompton,4M.
ft G. 857 ; RctdgtrtY. Novill^ 6 C. B.
109) the piracy ef designs: (muingtn
T. PuJun, 1 C. B. 799) ; the infrinW!
meat of patents : (Stead y. WiUiam
7 M. A G. 818; Mtiwll t. X«iiam,U
M.&W. 674 ;) or of oopyrighU : ( Wright
T. Taltit, 1 C. B. 898); and such like
oases are those in which, if a wrongAU
aot be restrained, the repetition of U
nay be also prohibited.
(n) This part of the section will
apply either to the continuano* of a
wrong properly so called, for instance,
a trespass by placing stakes on pl^.
tiff's land and continuing ihem there
notwithstanding a yerdict in plabtiffi
favour : (Botcyer t. Cook, i G.B. 286);
or of a breach of duty arising oat of a
contract, for instance, a corenant to
keep insured '.(Dormay t. Burrowdaik,
6 C. B. 880 ; see further Loolock t.
IVcmklyn,S(i.B. 871; Cannook^.Jonu,
8 Ex. 83.)
(o) These wordt thoi^h very general
seem to be directed to a class of csseg
where a party violates confidence r^
posed in him as an agent, who, having
obtained possession of property belong-
ing to his principal for a given pa^
pose, in fisaud of that principal, impro-
priates it to some other purpose : (see
PhUUpt V. Suth, 6 M. & W. 672;
Eden y. Turtle, 10 M. & W. 685:
Hatfield t. PkUlipt, 14 M. & W. 656;
see also Sikei t. 6Uea, 6 M. & W. 64? ;
Raleiyh t. Atkinson, 6 M. & W. 670;
Pickwood y. UTeate, 10 M. & W. 206.
(p) Plaintiff claiming a writ of
manaamua must allege either that he
« sustains or may sustain damage from
the non-performance of the duty to b«
fulfilled" (s. eclxxyi) ; but when claim-
ing an injunction, it would seem from
the peculiar language of this section,
may or may not in addition " inohide
PROCIEDINOS.
463
cdxxxiv-v-]
CCLXXXIV. (q) The Wm of Summons in suoh *ction(r)«»j^oj-P-
shall bo ia the same form as the Writ of Summons in any poJ^-iiomiofwTit
sonal action, (») but on every such Writ and copy *bereof, ««|^«m»*«'
there shall be indorsed a notice, that in default of appearance, on it *
the pUintiff may, besides proceeding to Judgment and execu-
tion for damages and costs, apply for and obtain a Writ of in-
junction. (0
CCLXXXV. (w) The proceedings in such action (y) shall
he the some as nearly as may be, and subject to the like con- a.im4|i.8i'.
trol as the proceedings in an action to obtain Mandamus under Proceeding!
the provisions hereinbefore contained, (w) and in suab action mentiafuoh
Jadgment may be given that the Writ of injunction do or do
not issue, as justice may require ; (x) and in case of disobe-
dienoe, such Writ of injunction may be enforced by attachment ii^unctkln.
1;
! t
u .e. tin 1 3
a claim for damages or other re-
dress."
(o) Taken from Eng. Stat. 17 & 18
Vic. cap. 126, 8. 80.
(f) iSfueAaetton. i.«. an aotion brought
for a breach of contract or other injury
and such as mentioned in the preced-
ing section.
(() See Soh. A to this Act, Form
No. 1.
(A As to the form of notice see Sch.
to N. Rs. Form No. 69.
(u) Taken from Eng. Stat. 17 & 18
Vic. cap. 126, b. 81.
(») Such, action. See note r supra.
(w) Which are directed to be the
same in all respects aa nearly as may
be, aa in an ordinary action for the
recovery of damages: (s. cclxxiii.),
and costs shall be recoverable by either
party in the same manner as in an or-
dinary action : {lb.)
(z) The limits of the jarisdiction of
Courts of Law as to injunctions are not
yet well defined. Courts of Equity con-
stantly decline to lay down any rule
which shall limit their powers or dis-
cretion. For this reason, and owing to
the difference in the constitution of
Courts of Law and of Equity, the latter
Courts no doubt will with respect to
writs of injunction, exercise a more
extensive jurisdiction than Courts of
Law. The absence of a remedy in
other Courts for a 6nppos#cl wrong
is not of itself a sufficient reason to
entitle Courts of Equity to assume
jurisdiction : {Ryvea t. Wellington, 9
Bear. 679.) There must be in
each case wherein application is made
to a Court of Equity for an injunc-
tion circumstances at least disclos-
ing equitable if not legal ground for
relief: (see JIammon v. Sedgwick, 6
Hare 2^ ; also Smith t. Jeyet, 4 Beav.
608 ; England r. Curling, 8 Beav. 129 ;
Hall y. Hull, 12 Beav. 414. ) If there
be a olear legal remedy for the sup-
posed wrong in Courts of Law, Equity
will not interfere : {Clark r. Freeman,
11 Beav. 112; also Ooodhearty. Lowe,
2 J. & W. 849 ; Bayleg v. Taylor, 1
Buss. & M. 73 ; Southey v. Sherwood,
4 Meri. 435.) But if there be no re-
medy or an insufficient remedy at Law
and there be equitable as distinct from
legal grounds, Equity will interfere:
{Ridgway v. Robert*, 4 Hare 106 ; also
Grealex v. Grealex, 1 De Qex. & S.
692 ; Abernethy v. Hutchinson, 1
28 ; Routh V. Webster, 10 Beav.
Prince Albert v. Strange, 1 Mac.
25 ; McCrea v. Holdsworth, 12
H.T.
661;
&G.
Jur.
820 ; Oeary v. Norton, 1 De G. & Sm.
9 ; Dickens v. Lee, 8 Jur. 183 ; Kelly
?.!
464
THK COMMON LAW PUOOEDURE AOT.
•t'l.
[cdxxxTi.
by the Court, (^) of* when such Court shall not be sitting by
a Judge. («)
Bdi. 0. L. p. CCLXXX VI. (a) It ehall bo lawful for the Plaintiff at anv
. 64,1. Si. ^.^g ^^^^^ ^Y^^ commencement of the action, (h) and whether
JS!i?S"''' before or after Judgment, (c) to apply exj^arte to the Court or
v. Hooper, 1 Y.& C. Chan. C.197; Chap-
nail V. Purday, 4 Y. & C. Cos. 486.)
Where any act inTohing a breaoh of
truMt is intendod to be done though
not in its oonsequenoes irremediable,
Courts of Equity will prevent it by in-
junotion: (Attomn/Oeneralr. Aapinall,
2 M. & C. 618.) Thus an injunction was
granted to restrain the disclosure of
seorets, of which defendant receiTed a
knowledge in the course of a lawful
employment: {Evitt v. Price, 1 Sim.
483.) But Courts of Equity will not
exercise any jurisdiction in criminal
cases : TStory Eq. 89).
(y) Tn^ proceedings to enforce obe-
dience to a writ of injunction under
this section will resemble those of en-
forcing the performance of awards, as
to which see note ff to b. Izxzvii.
(«) The power of a judge to act is
only when the Court is not sitting.
Uence during the term no single judge
can issue au attachment under this
section.
(a) Taken from Eng. Stat. 17 & 18
Vic. cap. 125, s. 82, the origin of which
seems to be Eng. Stat. 16 & 16 Vio. o.
83, s. 48, which is as follows — " In any
action in any of her Majesty's Superior
Courts of Record at Westminster, it
shall be lawful for the Court in which
such action is pending, if the Court be
then sitting or if the Court be not then
sitting, then for a Judge of such Court,
jn the application of the plaintiff or
defendant respectively, to make an
order for an injunction, inspection, or
account, and to give such direction re-
specting such action, injunction, in-
spection, and account, and the proceed-
ings therein respectively, as to such
Court or Judge may seem meet."
(6) The action intended is one for
'« a breach of contract or other in
jury" (s. cclxxxiii) which admits of a
•' repetition" or •• continuance."
(c) This section nppecrg to apply to
interlocutory injunctions. The object
of the interference of the Court by in-
terlocutory ii\junction between two
parties who are at issue upon a legal
right is solely the protection of the
property in dispute, until the legal
right shall be ascertained : (Ilaman
V. Jones, Cr. & Ph. 299.) Thus in an
action of ejectment, plaintiff applied
under this section for an injunction
restraining defendant and one F. from
cutting timber upon and carrying away
wood and hay from off the laud for
which the action was brought. The
injunction was granted without terms,
" because the cutting down and re-
moval of the timber may be an irrepa-
rable injury and cannot be compen-
sated for :" {Robins v. Porter, Cham-
bers, Oct. 16, 1860, Burns, J, II. U.C.
L. J. 280.^ In this cose the affidavit
was as follows, " That this is an ac-
tion of ejectment brought to recover
possession of a certain lot of land now
in the possession and occupation of
the defendant. That deponent has
obtained the government patent for
said land, and that he believes defend-
ant holds possession without any good
or valid defence to this action. That
one F, for whom and at whose instiga-
tion this action is defended, hath hi-
therto cut down and carried away large
quantities of timber from off said land,
and deponent is apprehensive of his
again doing so unless restrained. That
there is a large quantity of wood and
bay cut therefrom now piled and
stacked upon said land. That depon- '
ent is desirous of having said defend-
• M Of >' is dearly an error, " or " prolxibly Iwing intended.
Lcclxxxvi]
INT£&LOCUXOaY 1NJUN0TI0N8.
405
a Judge (il) for a Writ of injuDotioa to restrain the Defendunt l^-^y^^^^^jf^^i^ ^^
in »uch action (c) from the repetition (/) or continuance ot'jj|yp''^JJ«'"^'''
tliD wrongful act or broach of contract complained of, ((/) or
tlio coinuii^'tul of any breach of contract or injury of a liko
kind, (A) arising out of the same contract or relating to the
gaue property or right j (t) and such Writ nmy bo granted orComt may
deiied by the Court or Judge upon such tcrma as to the dura- tumu.
out nnd F, thoir scrvantH, unci ogonts,
rcjtraineil from removing the same.
That the defence Is set up solely for
the purpose of delay and that there is
DO real and substantial defence to de-
pownt's title to the said laud :" {lb.)
There may be other oases of a differ-
ent nature, such as infringements of
patents or copyrights, in which the
interference of the Court by interlocu-
tory injunction may be invoked un-
der this section. With respect to
these, Courts of Equity are disposed
rather to restrict than increase the
number of cases in vrhich it interferes
by injunction before the establishment
of the legal title : (McNeil v. Williams,
11 Jur. 844.) It IS necessary to give
great weight to the question vrhich
side is more likely to suffer by an er-
roneous or hasty judgment, and also to
consider the prejudicial effect the in-
junction may liave on the trial of the
action: [lb,\ see further note / to s.
cclxxxiii.)
((/) The rule for the injunction must
beni'Win the first instance: {Oittens
T. Symts, 15 C. B. 8G2 ; Warren v.
Munm, Chambers, Sept. 24, 185G,
Bums, J, II. U.C.L.J. 209.)
(e) Such action. See note b, ante.
(/) See note m to s. oclxxxiii.
{g) See note n to do.
JA) See note o to do.
(i) Upon the invasion of a patent
right the party complaining has in
Equity a right to the protection of an
Injunction, although the other party
may promise to commit no further in-
fringement and may offer to pay the
costs of preparing the bill : {Geary v.
Norton, 1 De G. & S. 9.) An injunc-
tion being applied for, it is not suiE-
£E
oient for the defendant to admit the
infringement and promitir not to re-
peat it: {Loxh v. Hague. Web. Put.
Cas. 200.) And if infringement be
shown, proof of enjoyment for twelve
years outublisbes a /^nVna /</(:<« cadu for
an injunction: {NeiUon v. iWumion c'
al, Web.Pat. Ca8.277.) Wl»ere a patent
is now the Court of Equity cousidurs
the proof of the title in the patentee
to be wanting, inasmuch as the pub!' ;
have had no ,ppportunity of contesti;.g
the validity thereof, and therefore 'n
such a cose i-ofuses to interfere by in-
junction until the title is established
at law: {Caldwell v. Van Vliasingen, 9
Ilaro 415.) Plaintiffs licensed defend*
ant to use a patent at the annual rent
of £2000, reserving the power of d -•
termining the lease in default of pay-
ment. The defendant failed to pay
the entire rent, but the plaintiffs al-
lowed him for several years to use the
patent, and received payments on the
footing of a reduced rent : Held that
by so doing, the plaintiffs bad elected
not to treat the previin>< V reach as a
forfeiture of the liccnb ., ad that con-
sequenily they were not entitled to an
injunction restraining defendant from
the use of the pment: {^Warwick v.
Hooper, 3 Mac. k G. 60.) On on ap-
plication fov t\u injunction to restrain
the infringement of a patent the party
applying must swear that at the time
of uaking the application, ho believes-
that at the date of the patent the in-
vention was new or had not been pre-
viously known or used in theProvince :
{Sturza V. De la Rue, 5 Russ. 322.)
A Court of Equity will not interfere
upon the application of an author to
restrain the publication of a work
", I
w
%
i 1
:l ■
.irr t
'|i<;t|'- IWil
463
Enforcing
iiviunction.
THE COMMON LAW PROCEDURE ACT. [g. cclxxxvi
tion of the Writ — keeping an account (J) — giving security—
or otherwise, as to such Court or Judge shall seem reasonable
and just ; and in case of disobedience, such Writ may be en-
which is of such a nature that an ac-
tion could not be maintained for dam-
ages : (Southey v. Sherwood, 2 Meriv.
435.)
(j ) In patent cases the practice in
Equity is in general to direct an
action at law to try the right, to
order that an account be taken in
the meantime, and to grant an inter-
locutory injunction until the cause is
determined. Courts ofLaw must under
the injunction clauses of this Act, do
nearly as possible as Courts of Equity
would do : (per Jervis, C.J, Gittens v.
Symea, 15 C. B. 862 ; see Bridson v.
Beneck-e, 12 Beav. 1 ; McCreax. Eolda-
u'orth, 12 Jur. 820; Bridson v. Mc Al-
pine, 8 Beav. 229 ; Dickens v. Lee, 8
Jur. 183 ; Kelly v. Hooper, 1 Y. & C.
Chan. C. 197; Sweet v. Cater, 11 Sim.
572 ; Bacon v. Jones, 4 M. & C. 433 ;
Collard v. Allison, Jh. 487 ; Sweet v.
Maugham, 11 Sim. 81 ; Saunders v.
Smith, 3 Myl.'& C. 711 ; Curtis \. Cults,
8 L. J. N. S. Ch. 184 ; Lewis v. Ful-
larton, 2 Beav. 6 ; Motley v. Downman,
3 M. & C. 1 ; Martin v. Wright, 6
Sim. 297 ; Bailey v. Taylor, 1 Russ.
& M. 73 ; JIunt v. Penrice, 17 Beav.
525 ; Yomg v. White, 17 Beav. 532.)
A Court of Equity, where justice re-
quires it, will grant an injunction to
restrain a piracy, on the application of
a person having only an equitable
title : (Chappel v. Pur day, 4 Y. & C.
C. C. 485 ; Uodges v. Welsh, 2 Ir. Eq.
R. 266 ; Matcman v. Tegg 2 Russ.
385.) But Courts of Equity are averse
to the practice of their, time being
occupied by applicaiions for injunc-
tions to restrain infringements of copy-
fight in cases in which it is difficult, if
not Impossible, to take an account of
the loss of which complaint is made :
(Bell V. Whitehead, 8 L. J. Ch. 141.)
The English Patent Law Amendment
Act, 15 & 16 Vic. c. 83, s. 42, was held
to vest in any English Coiurt of Com-
mon Law in which an action for the in-
fringement of a patent is pending the
powers before exclusively exercised bv
Courts of Equity; and to enable
Courts of Common Law to grant either
by interlocutory order an account of
all patent articles sold during the suit
or after verdict for the plaintiff, and
as part of the final judgment in the
action, an account of all profits made
by the defendant since the commence
mcnt of the action, and after notice"
that an account would be required
But that no Court of Common Law has
power, where damages nominal or
substantial have been recovered by the
plaintilf, to order an account of profits
made by the defendant prior to the
commencement of the action, the
damages assessed by the jury bebg
considered as the compensation for
the loss of such profits : (Holland v
Fox, 3 El. & B. 977.) Where an action
is brought for the infringement of a
patent, a retrospective account of tho
defendant's sales and profits of the
patented article will not in general be
granted before judgment : ( Vidi v
Smith, 3 El. & B. 969) Upon reason-
able' evidence of tho existence oif a
valid patent, and of its infringement
by the defendant, and of the defen-
dant's making a profit thereby, defen-
dant may be ordered to keep an ac-
count of all sales to be made of the
article alleged to bo an infringement
and of the profits thereon, until fur-
ther order of the Court, upon condi-
tion of the plaintiff's waiving all right
to more than nominal damages at the
time of the action, and undertaking ii.
case the verdict and judgment should
bo in favour of defendant, to pay the
expense of keeping such an account:
(lb.) A bill charged defendant mth
infringing plaintiff's patent, and asked
for an account, seeking to make dcfen«-
dant answerable for the profits re-
ceived in consequence of the infringe-
ment. Held, that defendant must
i
\ nr&i
s.cckxxvi.]
EQUITABLE PLKADINQ.
467
forced by attachment by the Court, (Je) or when such Court "^f-^^
shall not be sitting, by a Judge ; "(O Provided always, that any ^J^jj"^^,
order for a Writ of injunction made by a Judge, or any Wrif'y » J»*8»
issued by virtue thereof may be discharged, or varied, or setM»Je»iytho
aside by the Court on application made thereto by any party ,^ o
dissatisfied with such order, (m)
And as to the action of replevin j (n) Bo it enacted as Replevin. cV; s'^\'^'^
follows :
'\
answer the interrogatories contained
in the bill, though he dispute the tiilo
of plaintiff, and insist that the disco-
very will be 1 oppression, and that
there is little probability that the
Court at the hearing will direct an
account upon the facts disclosed :
[Swinhorne v. Nelson, 16 Beav. 416.)
Ik) See note y to s. cclxxxv.
(/) See note z to same.
(m) See note m to s. xxxvii.
In) The sections following, which
admit equitable pleas and replications
in actions at law, introduce a new fea-
ture into the practice of the Common
Law Courts. Though prefaced with
the words, "And as to the action of
replevin," &c., there is a difference of
opinion among the judges as to the
real application of the sections — whe-
ther to all ordinary actions or to reple-
m alone. Of the former opinion waa
Boms, J, in Reilly v. Clark, Chambers,
Oct. 7, 1856, II. U. C. L. J. 232. Of
the latter opinion was Bobinson, C. J,
in Watts v. George, Chambers, March
7, 1857, III. U. C. L. J. 71. It is
much to be regretted that the Legisla-
ture did not express their meaning in
siutable language, if they really did
mean to give the right to plead and
reply on equitable grounds in all forms
of action. The Report of the Common
Law Commissioners contains nothing
which can be construed in favor of re-
Btricticg that right to any one particu-
lar form of action. The English C. L.
P. Act contains no such restriction. It
is conceived that the peculiar language
of our C. L. P. Act arose from a mis-
apprehension of the actual intent and
effect of the English Act. And it is
confidently believed that during the
present session of our Provincial Legis-
lature an Act will be passed in express
words, giving the right to plead and
reply upon equitable grounds in all
forms of action. In anticipation of
this change it is proposed to consider
the sections here annotated as if the
extent of their application were no
longer a matter of doubt.
Suitors in a Court have a right to
expect the administration of complete
and final justice in that Court. Whe-
ther proceedings be had in law or in
equity such ought to be the result of
the proceedings. But cases have arisen
in which a Court of Law has givon
judgment itv favour of a suitor, which a
Court of Equity has restrained him
from enforcing. Thefruitof a judgment
at law is the writ of execution. If the
judgment were just, no Court either of
Law or Equity should have the power
of preve.iting the issue of execution.
The miscLief was that hitherto in some
cases decided in Courts of Common
Law the administration of law has not
been the adminstration of justice. This
was in a great measure attributable to
the fact of defences valid in equity
being wholly excluded from the cogni-
zance of Courts of Common Law. Upon
a consideration of this mischief the C.
L. Comrs. formed the opinion that
" there are cases in which Courts of
Common Law have not sufficient power
to prevent the law from being the
means of vexatious and of useless ex-
pense." To enable these Courts to
administer complete and final justice it
was recommended " that whatever is
ground for a perpetual injunction (in
i 1
ivf'
468
THE COMMON LAW PROCEDURE ACT.
U f
Eng. C. L. P
A. 1854, 8. 83.
[S. ccIxxxTii.
CCLXXXVII. (o) It shall be lawful for the PlaintiflForDe-
fendant in replevin, (p) in any cause in either of the Superior
Courts (j) in which, if Judgment were obtained, he would be
entitled to relief against such Judgment on equitable grounds {r\
Equity) shall for the future be received
by Courts of Common Law in the first
instance as a defence." This recom-
mendation has been substantially en-
acted in the following sections.
(o) Taken from Eng. Stat. 17 & 18
Vic. cap. 128, s. 83. — Founded upon
2d Rep. C. L. Comrs. s. 49. — Applied
to County Courts.
(;>) The Eng. C. L. Act reads, "It
shall be lawful for the defendant (or
plaintiff in replevin) in any cause, &c.
The meaning of the Eng. C. L. P. Act
when a part of the sentence is placed
in parenthesis as above, is obvious.
It is that the defendant in any ordi-
nary action may plead, &o., and
that the plaintiff in replevin, who
stands in the position of a defendant
in other actions, may plead, &c. The
words though nearly the same in our
C. L. P. Act have been transposed, and
if taken literally as transposed would
appear to defeat the object of the C.
L. Comrs. However, Burns, J, in
Reilly v. Clarke, ubi supra, construed
the section as if the language of it were
similar in all respects to that of the
Eng. C. L. P. Act.
(q) This enactment applies only to
actions in which pleadings are allowed.
As there are no pleadings allowable in
ejectment, there can be no equitable
plea or replication in ♦hat form of ac-
tion: (Neave v. Avert/, 16 C. B. 828.)
(r) The important question is what
" equitable grounds"^ will be sufficient
as a defence in a Court of Common Law,
The question has received the consi-
deration of the Superior Courts of
Common Law in England, and the
law respecting it may, upon the whole,
be considered as well settled.
The first English reported case ap-
pears to bo Burgoyne v. Coitrell, 24
L. J. Q. B. 28, which arose in the Bail
Court, and was decided on 25th Nov.
1854. The action was by the indorsee
of two bills of exchange drawn abroad
and directed as follows, the one "To
the Chairman and Board of Direc-
tors of the A. Company," and tlio
other " To the Board of Directors of
the A. Company." They Trere accen-
ted by defendant, the Chairman of the
Company, in such a manner as in the
opinion of plaintiff to make him per-
sonally liable upon his acceptances
Defendant desired to plead as a de-
fence on equitaUe grounds in effect
that the bills were addressed to the
Company and intended to be made
binding on the Company, and that by
mistake the defendant as Chairman
had so accepted them as to make him-
self personally liable. And per Crorap-
ton, J, " The notion seems to be that
to support an equitable plea you must
show some equity that will give you a
right to an unconditional injunclion."
The plea was allowed to stand with
liberty to plaintiff to demur. The
opinion thus expressed has been con-
firmed and supported in each of the
Courts of Exchequer, Queen's Bench,
and Common Pleas.
First — Ezcheqiur. Nov. 25, 1854.
Mines Royal Society y. Magnay, 10 Ex.
489. Action on a lease for non-pay-
ment of rent and non-repair of prem-
ises. Defendant applied to be allowci!
to plead an agreement, in substance
that defendant should surrender, &c.,
and that owing to the fraud and laches
of plaintiff such sun-ender was not
completed. Parke, B, «< In my opi-
nion the equitable defence allowed to
be pleaded by this Statute means sueli
a defence as would in a Court ol Equity
be a complete answer to the plaintiff'a
claim, and would, as such, afford suffi-
cient groiinds for a perpetual injunc
tion granted absolutely and without
any conditions. But according to tlic
statement in the plea a Court of Equity
would not interfere except upon the
S. oolxXXVii.] EQUITABLE PLEAS.
to plead the facts which entitle him to such relief by way of
469
condition of the execution of a valid
Burrender by defendant We have no
macliinery by which we can compel
the execution of a surrender. The
Statute does not say that the Courts of
Common Law may give relief on equi-
table conditions, but^ that a plea shall
be allowed which discloses a defence
upon equitable grounds." Leave to
plead tl'': .iitended plea was therefore
refused. The gravamen of this deci-
sion is that owing to the imperfect ma-
chinery of Courts of Common Law com-
plete and final justice could not be
done. These Courts have no power
to order the execution and completion
of a surrender, nor indeed of any other
accutori/ contract. When an agree-
ment to do a thing is wholly exe'-nted,
and nothing remains to be done by
either party towards perfecting it, such
an agreement would be a sufficient
equitable ground of defence in Courts
of Common Law. Thus, in trover for
goods, defendants were allowed to
plead that the plaintiff was the owner
of certain chemical works, that the
goods in question were stock in trade,
and materials on the premises ; that
the defendants agreed to purchase the
chemical works, and that the goods in
question were to be included in the
property sold; that certain brokers
were employed to make the contract,
and that they made it by bought and
sold notes; that by mittake of the
brokers the notes were bo worded as
not to include the stock in trade and
materials ; that possession of the che-
mical works, including the goods in
question, had been delivered by plain-
tiff to defendants, and the purchase com-
pkted; and that plaintiff was unjustly
arailing himself of what was a mere
mistake in the notes. And per Parke,
B, " The Statute says that • it shall
be lawful for the defendant in any cause
iu which, if judgment were obtained,
he would be entitled to relief against
such judgn^ent on equitable grounds,
to plead the facts which entitle him to
Sttch relief by way of defence.' We
have already held that the relief must
be absolute and unconditional ; and in
this case I think that absolute and un-
condition relief would be granted. It
seems to me that there would be no
u.?e in reforming the agreement when
it is wholly executed, and nothing re-
mains to be done by either party :"
(Steele v. JIaddock, Jan, 16, 1855, 10
Ex. 643.) In support of such a plea
as that allowed in this case,, there
ought certainly to be an affidavit of
the facts filed : {lb.)
Second — Queen's Bench, June 5, 1855,
Wodehouse et al. v. Farebrother, 5 E!.
& B. 277. Action on a bond against
defendant as surety for a third party,
who had covenanted with plaintiff to
repay £2000 lent on a mortgage of a
policy of insurance, and to keep up the
Eolicy until the money was repi^id —
reaches assigned. The defendant ad-
mitted the breaches, but set up as an
equitable defence that he was willing
to pay all that plaintiff was entitled to
In equity, if plaintiff would assign his
securities, but that plaintiff refused so
to do. To this plea there was a de-
murrer. And per Campbell, C.J, "It
is not for us, sitting here judicially, to
say how far it is desirable or expedient
that equitable jurisdiction skould be
given to Courts of Common Law. We
have only, looking to the language of
the Legislature, to consider that equi-
table jurisdiction has actually been
given to us,bearing in mind that unless,
in as far as our power and procedure
have been altered by express enact-
ment, or reasonable implication from
what has been expressly enacted, they
remain unchanged under the Common
Law Procedure Act. We are author-
ised to receive thi'j defence by way of
plea, if the facts pleaded would entitle
the defendant to relief on equitable
grounds in a Court of Equity against
a judgment obtained in this action in a
Court of Law, no equitable defence
having been set up there. The first
objection to the plea is that the defen-
dant does not satisfactorily show that
''%' \\
1,1
'' \
■M:t
'(I
m.
Il*
n '
i;?t
U--^.
lir't*
114
!i
470 THE COMMON LAW PROCEDURE ACT. [s. CclxxXTi'
defence, and the said Courts are hereby empowered to receive
if such a judgment were obtained
he would be entitled to relief against
it on equitable grounds within the
meaning of the enactment. He does
not impeach the deed set up as
fraudulent, or show that a judgment
obtained in this action would not be
honest On the contrary, he admits
that he executed the deed, that he
broke his covenant in the manner al-
leged by the declaration, and that he
is liable to pay to the plaintiffs the
several sums demanded in respect of
arrears of interest, of non-payment of
the premiums of insurance, and of the
costs incurred by the plaintiffs, against
which he was bound to indemnify
them. He only contends that after
having made these payments, or at the
time of making them, he is entitled to
hav« the policy handed over to him,
which was assigned to the plaintiffs as
a security for the debt due to them
from the principal debtor for whom he
was surety, alleging that the plaintiffs,
had refused to hand it over to him al-
though he offered, on receiving it, to
pay the sums which he owed them,
still offering to pay these sums and to
indemnify the plaintiffs. There is no
doubt that as a surety having done all
that is incumbent upon him in fulfil-
ment of his engagement, he would be
entitled, as against the debtor for
whom he was surety, to stand in the
shoes of the creditor and to have an
assignment of any security which the
satisfied creditor held for the debt gua-
ranteed. Bet no authority was cited
to show what precise relief a Court of
Equity would have given to the defen-
dant, if fudgmeni had been obtained
against him in this action ; and at all
events we conceive he would be enti-
tled to ho relief against the judgment,
unless he filed a bill against the new
plaintiffs and the principal debtor, and
paid into Court or undertook to pay
the sums which he admits that he owes
to the plaintiffs on the judgment. He
could only ask for a temporary or con-
ditional injunction against suing out
execution on the judgment not for a
perpetual or absolute injunction The
very important question therefore ari
ses whether, where a defendant wonld
only be entitled to a relief against a
judgment to the extent of a temporarv
or conditional injunction he is entitled
to sot up his equitable grounds of relief
by way of defence in a Court of
Law ? We are of opinion that as yet
the Legislature has authorised us to
receive a plea disclosing equitable
grounds of relief only where the defen-
dant is entitled to an absolute and per-
petual injunction against the judgment'
In this last case no diflSculty occurs
for the plea is a simple bar to the ac-
tion, and we should only have to pro-
nounce the common law judgment
* that the plaintiff take nothing by hla
writ, and that defendant go thereof
without day.' But if the injunction is
to be temporary or conditional in
equity, at common law we have no
such judgment, and we have no analo-
gous judgment. We could not attempt
to do justice between the parties with-
out pronouncing, instead of a common
law judgment an equitable decree. If
upon such a plea we were to give
judgment in bar of the action, all legal
remedy would be gone, although the
defendant confesses his liability to pay
the sums which this action seeks to
recover. It is said that the plaintiffs
might afterwards have relief in eqnity,
or might perhaps bring another actioa
when they have transferred the policy
to the defendant, but we think that it
was intended to admit a plea on equi-
table grounds only where find jtulkt
may be done by the Court of Law is
the pending suit. This could only h
by pronouncing an equitable decree.
But we have no warrant to pronomice
such a decree. By section 85 (s.
cclxxxix. of our C. L. P. Act) a repli-
cation is supposed to follow the equi-
table plea, and common law procedute
is still contemplated. AVhere the
judgment if obtained would be substan-
tially reversed by a perpetual injaafr
B.ccUx*vii.] 1 ,^ 3 a equitable pleas. 471
such defence by way of plea; provided that Buch plea 8ballJ«™JMn<^
»«' '■!■•
tion in equity that which would be a
ffound for the perpetual iojunotion ia
Smitted as a legal defence, in the
game manner as payment after the
day which rt common law was only
pound for equitable relief after a
ittdgment had been obtained for the
oenalty of the bond, was by the Stat-
ute of Anne let in as a legal defence,
tnd BO by the recent Statute to an
action against a surety on an instru-
nient under seal, time given to the
principal debtor without the consent of
the surety is turned into a legal de-
fence, although previously it was only
^und for equitable relief. But where
the ground for equitable relief is not a
complete bar to any proceedings upon
the judgment, and is not if oflFered by
plea a complete bar to the action, we
are not furnished with any means
of doing justice between the parties.
We cannot enter into equities and cross
equities; we should often be without
means to determine what are fit condi-
tions on which relief should be given ;
no power is given to us to pronounce
s conditional judgment ; no process is
provided by which we could enforce
performance of the condition; there
are no writs of execution against per-
son or goods adapted to such a judg-
ment, and no one can conjecture what
remedy it would give against the lands
of the debtor. In short, we think a
plea on equitable grounds is to prevail
only when followed by a common law
judgment, it will do complete and final
jutlice between the parties. Such ap-
pears to have been the view taken of
this subject by the Judges of the Court
of Exchequer in Mines Rogal Society v.
Magnay (10 Ex. 489), where leave was
refused to plead such a plea, something
remaining to be done by the defendant
before ho could have claimed a perpe-
tual injunction in a Court of Equity.
As that case was decided merely on
motion without the opportunity of car-
rying it into a Court of Error, we
should not have considered ourselves
bound by it had we disapproved of it ;
but we entirely concur in the reason-
ing on which it is founded. And there-
fore, without deeming it necessary to
consider the replication or rejoinder,
on the insufficiency of the plea, we give
judgment for the plaintiff."
Third— Court of Common Pleas. Al-
tliough one of the Judges of this Court
at an early period spoke of the decision
of Mines Royal Society v. Magnay, as
"a rather narrow construction of the
Act:" (Crowder, J, in Chilton y. Car-
rington, April 25, 1855, 16 C.B. 206),
yet subsequent authorities in the Court
of Common Pleas in effect support that
case. The leading authority in the
Common Pleas is Wood v. Copper Min-
ers' Co. Jan. 28, 1856, 17 C. B. 561.)
This was an action for the breach of
covenants in a lease. The defendant
in effect pleaded as an equitable de-
fence that the parties had agreed to
refer to arbitration the terms on which
the lease should be cancelled and had
bound themselves not to sue upon it.
It was not alleged that any award had
been made ; but, on the contrary, it
appeared that the arbitrator had been
discharged from making an award.
There was a demurrer to the plea.^
And per Jervis, C. J, " It seems to me
that the plaintiff in ibis case is entitled
to the judgment of the Court. With-
out attempting to defend the form or
the precise circumstances under which
a Court of Law will admit an equitable
plea to enure as an answer to an ac-
tion, it is plain that inasmuch as a
j udgment for the defendants here would
bar the action, we cannot hold this to
be a good equitable plea, unless it
discloses a case in which a Court of
Equity would grant a perpetual unqua-
lified and unconditional injunction.
No doubt in this as in all cases, the
Court will not admit an equitable plea,
that would carry the legal defence
further than a Court of Equity would.
extend its protection to the party,.
What is the effect of this plea ? Mr.
Bovdl (defendant's counsel) says it
discloses an absolute agreement be-
M
m
tip'.;
1 ?
■i(H'
i i
H
t-\
< H
W
472 THE COMMON LAW PROCEDURE ACT. [s. colxxxvii
begin with the words " for defence on equitable grounds " or
' ^ ,'!,
.1 I < ^^s
■-IH
«•
.c*!
twcen the parties, upon sufficient con-
sideration to rescind tlie contract, and
then a reference to Mr. Bros (the arbi-
trator) to ascertain the compensation
to be paid by the defendants to the
plaintiff therefor. I think, howeyer,
it is a reference to Mr. Bros to say
upon what terms the contract shall be
rescinded. . . In truth the plea
amounts to no more than a plea of the
pendency of an arbitration under an
order of reference empowering an ar-
bitrator to say upon what terms the
action is to be discontinued. Although
it is quite possible that a Court of
Equity . . might interfere to re-
strain the bringing of an action in vio-
lation of the compact entered into be-
tween the parties, it could only be done
upon terms and conditions which we
havenopowerofimposingorenforcing."
The principles which govern Courts
of Common Law in entertaining pleas
disclosing equitable defences under the
C. L. P. Act, are, it is conceived, fully
established in the foregoing oases.
There is no material difference in the
views of the three Superior Courts of
Common Law in England a£> expressed
in the leading case of each Court in
regard to those principles. Nothing
now remains than to notice subsequent
oases in which these established prin-
ciples have been applied.
Firtt — Equitable Fleat allowed. It
seems to be settled that in general
where a parly seeks to enforce an
agreement in writing, defendant may
on equitable grounds show by parol
that such agreement was framed in
mistake : ( Vorley v. Barrett, Creswell,
J, 28 L. T. Rep. 86.) The object of
the Legislature is to enable parties to
have the benefit of an equitable an&wer
without going into Equity : (lb.; See
also WoodT. Dwarria, 11 Ex. 498 ; Pe-
rez V. Oleaga, 11 Ex. 605.) Thus in an
action on a covenant binding defend-
ant, a surgeon, not to practice in A,
an equitable plea was allowed to the
effect that as between defendant and
plaintiff the part of A in which the de-
fendant practised had alwoys been
treated as a part of B, and that it was
not intended to restrain the defendnnt
from practising in the part of B in
question, and that the covenant was
framed by mistake : {Luce v. hod 2
Jur. N. S. 578.) In an action by the
payee against the maker of two pro
missory notes, the defendant pleaded
by way of equitable defence that the
notes were made by him, defendant
whose name was James Harradine and
by one John Harradine, that defendant
made the notjs at the request and for
the accommodation of John Harradine
to secure a debt due from him to the
plaintiff, and that he did so without
value or consideration, and that the
notes were delivered to the plaintiff
and received by him from the defend-
ant upon an express agreement made
between them that the defendant should
be liable thereon as surety only, and
that plaintiff at the time the notes were
made had notice and knowledge of the
same having been so made by him as
surety. The plea then stated that the
plaintiff, whilst holder of the notes,
without the knowledge or consent of
defendant, for a good and valuable
consideration, agreed to give and did
give the said John Harradine time for
the payment of the notes, and forbore
to enforce them, and that he could and
might, had he not given such time,
have obtained payment from the said
John Harradine. The plaintiff having
demurred to this plea, it was argued
and holden to disclose good equitable
grounds of defence : (Fooley v. Harra-
dine, 28 L. T. Rep. 867.)' This case
overrules several obiter dicta in Strong
v. Foster, 17 C. B. 201, which case
unless examined closely appears to be
an authority against the position taken
by the Court in Foolet/ v. Harradine.
Second — Equitable Fleas disallowed.
The Legislature never intended that
the course of practice of Courts of
Equity should be pleaded and become
the subject of investigation at Law:
{Frothero v. Fhelps, 25 L.J. Ch. lOy.)
J gclxxxvii.] ^"'•' EQUITABLE PLEAS. '«^'^" ^t'«
ffords to the like effect.
478
.-..i
Action upon an agreement to put a stop
to an action formerly pending between
plsintiff and defendant and to release
defendant from the covenants contain-
ed in a certain lease.assigning breaches
of the covenant. The plea, which was
iQ substance that plaintiflF had gone
into equity to enforce specific perform-
ance of the same agreement, and had
obtained a decree in his favour, and
that this decree was a final adjudica-
tion between the parties, and that ac-
cording to the rules and practice of
Ciiancery after such a decree, the de-
fendant would be entitled to relief on
equitable grounds against a judgment
in the present action, held badi
IPhelpi V. Frothero, 16 C.B. 370.) In
an action by the trustee of a married
iroman against a banker for dividends
which the latter had paid over to a
third party, pursuant to a power of
attorney given by plaintiflF, it was
held an equitable plea that the
married woman had obtained an ad-
vance of her dividends by means of
the power of attorney which she had
revoked before defendant had received
notice of the revocation of the power,
was not allowable : {Clarke v. Laurie,
28 L. T. Bep. 125.) And per Pollock,
C. B, " It is an established rule now
and it is essential to the carrying into
effect of the Statute which gives these
equitable pleas, that no equitable plea
shall be permitted except in a case
irhere the plea and the decision and
judgment of the Court upon it will
work out and complete all the equity
that belong to the matter to which the
plea refers. As for instance, if a per-
son is sued upon a bond or any coven-
ant under seal, who has by an instru-
ment not under seal, dispensed with
performance and accepted something
in lieu of it, and so on, thci>e you are
permitted to plead now that which
at law would have been formerly no
defence. But there the judgment works
out the whole equity of the matter.
Th«t could not bo so here. An equi-
table plea in answer to the claim of the
trustee would not settle the whole
matter as between the parties ; there
would still be a question whether the
trustee would not be liable to the cestui
que trust, and we have no power of
protecting the trustee against such an
action. . . We are of opinion that
the equitable plea ought not to be al-
lowed in the present case :" (lb.) Pleas
of equitable set-off may be allowed ; but
if having no natural connexion with the
subject of plaintifif's claim, must be
rejected. To an action for money
payable for freight and porterage for
the conveyance of goods, the defend-
ants pleaded as to £47 Os 6d, an equi-
table plea that plaintiflF was a barge-
man and was employed by defendants
in that capacity ; that in the coarse of
such employment plaintiflF agreed to
carry on a certain river a large quan-
tity of coal belonging to the defendants
in certain barges of the plaintiflF, and
that the said coal was so utterly lost
on the said voyage by and through
negligence, &o., of the plaintiflF, and
that the cost price of the coal so lost
was £47 Os 6d, and that defendant
claims equitably to set the said sum oS
against plaintiff's demand : Held plea
bad : (Stimson v. Hall et al, 28 L. T.
Rep. 825.) And per firamwell, B, «It
is a common opinion that equity deals
out a sort of vague justice unfettered
by rules — a sort of natural equity ; bat
that is a mistake ; their rules are in fact
as binding as ours. Then the question
is whether, according to law as admin-
istered in equity, equity would give
unconditional relief. Now, in the case
of Beasley v. D'Arcy (2 Sch. & Lef.
403), which has been cited, it was
clear that there was an equity, but
here there is no natural connexion be-
tween the claim and the cross- claim,
and there is no semblance of authority
in defendant's favour."
Third— Other matters. A defendant
who in an action at law pleads a sub-
ject matter as an equitable defence, is
not precluded from applying upon
that subject matter to a Court of Equity
H; 1
^.f0M0'"'
V
^a
474
"I t< ^. eh til.
THE COMMON LAW PROCEDURE ACT. [S-Cclxxxtiii
CCLXXXVIII. («) Any such matter which if it arose before
"^ ' i.'84.or during the time for pleading would bo an answer to tho
App. Co. 0.
Eng. C. L.
A. 1854, 1.
for an injunction : (Phelpt v. Prothero,
25 L. J. Chan. 106), and though the
plea be demurred to at law, and tho
demurrer remain undecided, a Court
of Equity may still interfere : {Evam
V. Jirmridge, 27 L. T. Rep. 8.) But
a party who, having unsuccessfully
defended an action at law, afterwards
resorts to equity upon the same ground
of defence and there succeeds, shall
be entitled only to the costs of one
proceeding : ( Watson v. Alcock, 1 N.
Eq. Rep. 234.) In one case the Court
when allowing an equitable pleo,
thinking that it would raise an issue
which could not be satisfactorily dis-
posed of by a jury, gave to plaintiff
the option of having the trial in bane.
{Lucev. Izod, 1 H. & N. 245.) There
may be a conflict of opinion between
Courts of Law and Equity upon the
adjudication of the same subject mat-
ter under the operation of the sections
here annotated. Thus, in an action at
law a defendant pleads an equitable
defence which the Court of Law re-
fuses to entertain, upon the gi'ound
in their opinion it would not be suf-
ficient to entitle defendant in equity
to an absolute and unconditional in-
junction against tli'' judgment when
obtained. Defendant though defeated
at law may afterwards apply to a
Court of Equity for the very injunction
which a Court of Law decided a Court
of Equity could not give him. Contrary
to the opinion of the Court of Common
Law, Equity may see fit to grant the
relief sought by the issue of an abso-
lute and unconditional injunction. The
effect of such procedure is obviously
the allowance of an appeal from a Court
of Common Law to a Court of Equity,
a contingency which the Legislature
when passing the C. L. P. Act, does not
seem to have contemplated. The fol-
lowing case, though not quite in point,
may serve to illustrate the moaning of
these observations. The payee of two
promissory notes being about to sue
the maker, the brother of the maker
agreed to pay £200 to the payee in
trust for E, or £6 lOs per quarter so
long as the £200 should be unpaid so
that the notes should be suspended and
rendered inoperative bo loLg as tho
brother continued to pay tlj £6 lOs
per quarter to the payee : and on pay.
mcnt of tho £200 all c".u;m on the notes
to cease, and the same to be given up
The brother not having paid the £6 10s
to the payee for two quarters, but
having paid these sums to E, themrm'
que trust (as the latter admitted) the
payee brought his action upon the
notes against the maker. Held in error
reversing the judgment of the Court of
Queen's Bench, that the agreement
could not be pleaded in bar to the
action upon the notes, but might be
the subject of a cross action. Held in
Equity that the agreement must be
construed as a contract by the brother
to provide for E. the annuity of £2b
or the gross sum of £200 as a substi-
tute for the two notes, and by the
payee that the two notes should thence-
forth be only a security for the per-
formance of such contract, and not
an agreement under which the original
right of payee would revive on any
failure or the quarterly payments by
the brother. Held also that the brother
was entitled to the specific performance
of the agreement in equity not on the
ground of the circuity of cross actions
which the rule of law occasioned, but
on the ground that the Court by modi-
fying its decree could give to all par-
ties the benefit of the agreement, whilst
a Court of Law, being unable so to
modify its judgment, could not give to
one party the benefit of the agreement,
without depriving another party alto-
gether of such benefit : {Beech v. Ford,
7 Hare 208.)
(«) Taken from Eng. Stat, 17 & 18
Vic. cap. 125, s. 84. — Founded upon
2d Rep. C. L. Comrs. s. 50.— -Applied"
to County Courts.
J jclxxxviii] AUDITA QUERELA. 476
action by way of plea, (<) may, if it arise after the lapse of the J^^J^**'"
period during which it could be pleaded, bo set up by way oi^yj^ «>'
audita querela, (u) "-'"•
quertla.
(t) Any ««fA matter, ^e. i.e. matter
entitling defendant to relief on equi-
table grounds ; as to which see note r
to i, cclxxxvii-
(u) Audita Querela is a remedial
vrit invented to prevent a defect of
justice in cases where a party having
a good defence has no opportunity of
making it by the ordinary process of
law. Thus it lies for a person who
is either in execution or in danger of
being so, upon a judgment or recogni-
jance when he has matter to show that
the execution if issued ought not to
haTB issued, or if not issued should not
issue: (2Wms. Saund. 147 (1). It has
been refused where the applicant was
a stranger to the judgment, having no
other privity than that he was alienee of
the land which was taken in execution,
and had acquired his interest after
execution had issued : (Beard y. Ket-
chum, 8 U. C. B. 528.) Though the
point is involved in some doubt, it
seems to be a writ of common right —
a debito justitia : (Nathan t. Oilet,
Marsh, 226 ; Oiles v. Hutt et al. 1 Ex.
59), and is in the nature of a bill in
equity to be relieved against the op-
pression of plaintiff: (3 Blao. Com.
406.) And yet a defendant is not
either by the existence of the remedy
or by having unsuccessfully resorted
to it precluded ivora. bringing his ori-
ginal bill in Equity for relief: (Wil-
liams V. Roberts, 8 Hare 815.) The
writ, however, is not a difficult pro-
ceeding : (Baker v. Ridgway, 2 Bing.
41.) Though ex debito justitiai, it can-
not issue without an order in open
Court: (Dearie v. Ker, 7 D. & L. 231 ;
Beard v. Ketohum. 8 U. C. R. 528. It
may bementioned that Eng. Bulo 79 of
H. T. 1853, ordering that "no writ
otaudita querela shall be allowed unless
by rule of Court or order of a Judge,"
is not adopted among our N. Bs. of T.
T. 1856. The writ when issued in the
name of the Queen directed to the
Court in which the original proceed-
ings have been had sets out the record
down to judgment, then states the sub-
sequent matter, and enjoins the Court
to call the parties before it to cause
justice to be done : (see form in 2 Wms.
Saund. 137 o ; also Forchester y. Pe-
trie, 8 Doug. 261.) If the writ be
founded on record, or the party be in
custody, the process upon it, when al-
lowed, is a scire facias. But if the
audita querela be grounded on a matter
of fact or the party be not in custody,
but only brought guia timet, the process
on the audita querela \B a venire facias,
and on default thereto a distringas ad
infinitum : (Clerk v. Moor, 1 Salk. 92.)
The process issued upon the audita
querela should be personally served:
( Williamsy. Roberts,! L. M. & P. 881),
and the party served warned to appear.
If he appear the party who sued out the
process declares. In the declaration the
whole writ of audita querela is recited i i
in the same manner as in a declaration
on a scire facias : (Sellon's Pr. II. 256)^
thereupon the party made defendant
pleads : (Oiles v. Sutt, 1 Ex. 701^, and
the parties proceed to issue. Tne in-
dulgence shown by the Courts in mod-
ern times by way of motion has in a
great measure superseded procedure
by audita querela : (Sutton v. Bishop,
4 Burr. 2287 ; Wickett v. Cremer, 1
Bayd. 439 ; Baker v. Ridgway, 2 Bing.
41 ; Humphreys v. Knight, 6 Bing. 572.;
Plevin V. Henshall, 10 Bing. 24 ; Bar-
row V. Foil, 1 B. & Ad. 629 ; Out-
cherlony v. Gibson, 6 Scott N. B. 577 ;
Shaipy. DAlmaine, 8 Dowl. 688 ; Tur-
ner V. Fulman, 2 Ex. 508.) But relief
upon motion is oiily granted where the
right to relief is clear and beyond all
question: (Dolby y. Mott, 6 Taunt.
329; JJarrison v. Blakely, M. & P.
261 ; Lister y. Mundell, 1 B. & P. 427 ;
Symons v. Blake, 2 C. M. & P. 416 ;
Beardr. Ketehum,, 8 U. C. B. 524. i
" », \i
^:A\.'\
{ A
' f
i f
-i'" jF
476
App. Co. 0.
THE COMMON LAW PROCEDURE ACT.
[s. cdxx
xvm.
1 Wt (. I :
«'■'
e-K sfc.i ^ APP.UO. u. CCLXXXIX. (y) The Plaintiff may reply, in answer to any
*" J /7I ^^ A%u,Y'w:P\ea of the Defendant, («<?) facts which avoid such plea upon
Kquifawo equitable grounds, (x) provided that such replication shall begin
(t>) Taken f^om Eng. Stat. 17 & 18
Vic. 0. 126, s. 86.— Applied to County
Courts.
(z) It Is enacted that the plaintiff
may reply in answer " to any plea of
the defendant, factH which avoid such
5 lea upon equitable grounds," &o.
'his enactment is sufficiently oompre-
heusive to admit an equitable replioa-
tion either to a legal or an equitable
plea. Whether there can be a legal
replication to an equitable plea is a
question. The point, though raised in
Wood V. Copper Minert' Co. 17 0. B.
687, was not decided. It would seem
that where the plea is legal, the re-
plication may be considered either
upon legal or equitable grounds,though
stated to be upon equitable grounds ;
but only upon equitable grounds when
the plea is an equitable plea : ( Varley
T. Barrett, Willis, J, 28 L. T. Rep. 86.)
{z) A Court of Common Law having
no power to enforce anything which
depends upon a condition : (see note r
to s. cdxxxvii), an equitable replica-
tion must disclose facts which in equity
would entitle plaintiff to unconditional
relief: {Tetde et al. v. Johnson, 11 Ex.
840.) I)eclaration on a guarantee by
defendant for payment of goods cup-
plied by the plaintiffs to one A. Flea
that after A became indebted to the
plaintiffs, he being also indebted to
other persons by an indenture between
A of the first part, C and D (one of the
plaintiffs) trustees for themselves and
the rest of the creditors of the second
part; and the several other persons
whose names and seals were thereunto
subscribed and set, being creditors of
A, of the third part ; after reciting that
A was indebted to the parties thereto
of the second and third parts in the sev-
eral sums set opposite to their names
in the schedule thereunder written,
which he was unable to pay in full, it
was witnessed that A assigned all his
estate and effects to the said trustees
upon trust to pay rateably and with-
out preference to themgelves and tlicir
partners and the parties thereto of the
third part, the sura set opposite their
names in the schedule ; and in consij.
eratiou of the assignment the several
creditors, parties thereto of the second
and third parts, released A from all
debtswhich thejjr or theirpartnersmight
have against him up to the date tliero-
of. Replication on equitable grounds
that D executed the agreement in liis
character of trustee and not in Lis cha-
racter of creditor, and that be did so
merely for the purpose of declaring the
trusts of tho deed, and not with any
intention of releasing the debt; that
he did not sign nor seal the schedule
nor was the debt of the plaintiffs con-
tained therein, and that if the deed
operated in law ns a release it was ex-
ecuted by mi^ako and in ignorance
that such would be its legal effect.
Held that the facts disclosed by the
replication did not afford any answer
to the plea on equitable grounds:
(Teede et al. v. Johnson, 'ubi fup.
The principles governing the allow-
ance or disallowance of equitable pleas
must, it Is manifest, in many respects
govern tho allowance or disallowance
of equitable replications : (sec note r
to s. cclxxxvii.) Whenever the Stat-
ute of Limitations is a good answer to
a declaration and is pleaded, it would
appear that in general it cannot be
avoided in a Court of Law by an equi-
table replication. Thus, action against
the executors of a deceased for work,
labor, and materials, &c. Plea of the
Statute of Limitations. Beplicatioa
on equitable grounds that the testator
by his will appointed defendunts his
executors, and amongst other things
devised certain premises to them to
sell, &c., that sttld testator also be-
queathed to them the residue of his •
personal estate upon truit to call in
and convert it into money, &c., and
S.cclxxxix.] EQUITABLE REPLIC\TIONS.
f ith the words " for replication on equitable grounds/' or Bounds
tliat they should from the money bo to
trise from tho rual and porsonul oatate
par testator's debts, funeral expenses,
and legacies bequeathed, and hold the
residue in trust for plaintiff and his
other chilJren in equal shares. Arer-
gient of sufBciency to pay same, &c.
Held replication bad : ( Qulliver v.
Qy,Umr, 27 L. T. Rop. 1 89. ) So in an
aotion fur breaking plaintiff's close
and converting bis goods, a replication
to a plea of the Statute of Limitations
that the cause of action -was fraudu-
lently concealed from plaintiff until
within ^ix years before action was dis-
ilowed: {Hunter y. Oibbons,Ex. MS.
2^th Nov. 1856, Pater Mao N. & M.
1282.) In Gulliver v. Gulliver, ubi
lupra, besides the plea of tho Statute
of Limitations thore was as to £66
paid, &c., a plea of set-off, to which
plaintiff replied on equitable grounds
that the testator by his last will devis-
ed and bequeathed certain real and
personal estate to plaintiff, his son,
and other children, and by said will
declared the same should bo deemed
to be advancements, and that the chil-
(ben should not be required to account
for the same ; that defendants' set-off
vere the same moneys and effects so
given as such advancements, and
that defendants ought not therefore
to be allowed to set-off, &o. Held
also bad. Where defendant relies upon
an equitable ground of defence, it is
open to plaintiff in his replication
to show a better equity : (Sloper v.
Cotterell, 27 L. T. Rep. 198.) Thus,
action for money had and received.
Plea on equitable grounds that the
money was bequeathed to the sole and
separate use of the plaintiff, and was
paid to the defendant by the executors
upon her separate receipt, and that
she in her lifetime disposed of and as-
signed the fund upon trusts in which
the plaintiff took no interest, and that
the defendant held the mon?v upon
those tousts. Replication upon equi-
table grounds, alleging a prior assign-
ment by the wife to tho husband before
the receint of the money by tho defen-
dant, and that the defendant received
the money merely as agent of tho wifo
in order to get in the money from the
executors as the money of the plain-
tiff. Held sufficient: {lb.) In this
case the Court was of opinion that tho
legal as well as equitable right to tho
money was in the plai iff. Ilad the j
been only an equitable right some diffi-
culty might have been experienced
owing to plaintiff in his replication set-
ting up a purely equitable claim to
money which iu his declaration ho
claimed upon legal grounds, and thus
lay the replication open to objection
upon the ground of departure. When-
ever in a case there is a conflict of
equities, the principles mentioned in a
recent decision of Kindersley, V. C,
may be consulted with advantage. Tho
question raised was whether tho equi-
table interest of a vendor's lien for un-
paid purchase money should be pre-*
ferred to the equitable interest of an
equitable mortgagee. Per cur. " Tho
rule of the Court of Equity for deter-
mining the preference as between per-
sons having adverse equitable interests
is not always qui potior eat tempore po-
tter Jure ; that is not only not univer-
sally true as between persons having
only equitable interests, but is not so
even where the equitable Interests are
precisely the same in nature, and in
that respect perfectly equal. Nor is
it always true of persons having equi-
table interests, if their equities are
equal; for it is impossible that two
persons should have equal equities,
except where a Court of Equity would
altogether refuse to lend its assistance
to one side or the other ; and if the
Court will interfere to enforce the right
of one against the other on any ground,
as for priority in time, how can their
equities be equal ? The rule seems to
be this as between persons having only
equitable interests, if their equities are
in all other respects equal, priority of
time gives the better equity. In a
contest between persons having equi-
ll-
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478 THE COMMON LAW PBOOEDURE ACT. [n. ui^xJx.
words to tho like offcoi.
ill
;. iJML*(
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, =:.g. ..;:(
1 ■■ ' •:
f
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table interests, priority of time is tlie
¥ round of Interforcnoe laat resorted to.
iiat is, a Court will not resort to it
until it flnd4 that there !» no other suf •
floient ground of prefer «noe between
them. In examining into the relative
merits or equities of the two parties,
the point to which the Court must dir-
eot its attention are those — the nature
and condition of their respectiye equi-
table interests — the circumstances and
manner of their requisition, and the
whole conduct of each party in respect
thereto. In this case the two equitable
interests both arise out of tho forbear-
ance of money. Tho vendor's lien is
a right created by a rule of equity
without special contract, the right of
the equitable mortgagee is created by
special contract; but this does not
constitute any sufficient ground of pre-
ference, though if it makes any differ-
ence it is in favour of the mortgagee.
The mortgagee has also possession of
the title deeds, and there is authority
for holding, that as between two per-
sons where equitable interests are of
precisely the same nature and quality,
and in Uiat respect equal, the posses-
sion of the deeds gives the better
equity. And as regards the conduct
of the parties, everything appears in
favour of the equitable mortgagee ; he
was guilty of no negligence, and was
encouraged by the vendors to rely on
the purchaser's title, and assured by
their acts that the mortgagor, so far
as they were concerned, had an abso-
lute title at law and equity:" (Anon.
Finl. C. L. P. A. p. 450.) In another
case it was held that a legal mortgagee
was not to be postponed to a prior
equitable mortgagee on the ground of
not having got the title deeds, unless
there were fraud on the part of the
former, and that neither negligence nor
fraud could be imputed to him when he
had made bona fide enquiries and got
reasonable answers. Secus, if he had
made no inquiry (Jlewitt t. Loose-
more, 21 L. J. Ch. 69.) If a plaintiff
sue upon a written executed contract,
to which defendant pleads inequitable
matter as a defence, and to which there
is a good equitable answer, Court* of
Common Law may admit the answer
although a Court of Equity might be
precluded by its rules from entertain-
ing such an answer until the contract
should be reformed : ( Wood v. I>warru
«< a/, 11 Ex. 498.) Thus, to a deolar.
ation on a policy of insurance defend-
ant pleaded that the policy was made
upon the terms of a previous proposal
and upon the express condition that if
any statement m the proposal were
untrue the policy should be void, and
that a particular statement mentioned
was untrue. Replication on equitable
grounds that before the policy was
made defendants issued a prospec-
tus containing a representation that all
policies effected by them should be in-
disputable, except in oases of fraud,
and that plaintiff effected tho policy on
the faith of such representation. Held
that the replication was a good avoid-
ance of the plea: {lb.) So where
plaintiff and defendant became co-
sureties for one A B, by endorsing a
bill for £300. A B became bankrupt,
The plaintiff had had other dealings
with A B, and had advanced him
£2661 6s. 6d. for the purpose of erect-
ing houses pursuant to a building con-
tract, and had supplied him with
building materials worth £1512 for the
same purpose, as well as £136. 17s. 4(1
for other purposes. After the bank-
ruptcy of A B, the plaintiff and the
other creditors agreed that the build-
ing agreement should be delivered up
to tho plaintiff, to be cancelled upon
the payment by the plaintiff of £160
in full discharge of all claims which
the creditors might have upon the
house and property comprised in the
agreement,and that the plaintiff should
relinquish all claims on the bankrupt
or his estate for the said money which
had been so advanced to the bankrupt
for building purposes and for building
materials. The attorneys of the par-
ties in drawing up the agreement made
, ccxc]
STRIKINO OUT EQUITABLE PLEADIN08.
479
,Co.o. <"*»• r?Ai .1t»~
the Court or any Judgo thereof, (a) that ony such oquitablo a. Ihm.i-m*
CCXC. (y) Provided always, that in caao it Bhall appear to *pp- ' ;,
pica or equitable replication cannot be dcolt with by a Court of "{,y"','"^!jj*"**
the plaintiff *'roIinqnUh all clniin fur
moneys aJvanoed to and for the bank-
ml, and hia claim for goods supplied
for the above meationud purposes."
Theplalntlff having paid the £300 upon
the bill which was dishonored by A It,
(tied the defendant for contribution.
The defendant pleaded that the plain-
tiff hnd discharged A B by the abovo-
nentloneu agreement. To which the
piaiatltf replied on equitable grounds
that the memorandum of agreement
vaa drawn up by mistako, the real
igrcement being confined to claims of
the plaintiff for moneys advanced for
building purposes, and having no re-
ference to tlie £300 bill and boing
already executed ; he also douled that
he had relinquished his claim against
the bankrupt for the £300. To this
replication the defendant demurred.
Held that it was doubtful whether the
terms of the memorandum of agree-
ment Included the claim for the £^00,
but that even if it were so, the defend-
ant by demurring having admitted the
mittake, the replication was a good
equitable answer to the pica, and that
the agreement having been executed,
it was not necessary that a Court of
Equity should reform it to entitle
plaintiiF to the benefit of his replica-
tion: {Varlexj v. Barrett, 28 L.T.Rcp.
86.) mt in an action of account upon
the Statute of 4 Anno, cap. 16, s. 27,
by one tenant in common against an-
other for not accounting for rents re-
ceived, the defendant pleaded that be-
fore the receipt af the rents the plain-
tiff and defendant by indenture demised
the premises to one G. D. for a term of
500 years, which term, after divers
assignments, vested in defendant, to
which there was an equitable replica-
tion that the said indenture was a
mortgage to secure a sum of money,
and that defendant had received more
than sufficient to pay the mortgage
debt. This replication was struck out
because the Court of Common Law had
no power to order a reconveyance :
(Garley T. Qarlty, 1 H. & N. 144.)
An action was brought on a covenant
in a mortgage deed made by defendant
and one K F, securing payment of
£2800. Plea on equitable grounds
that under the mortgage deed certain
chattels were assigned to plaintiff as a
security with power to sell, and that
he sold, and that the proceeds wor«
sufficient to satisfy his demand. Re*
plication on equitable grounds that
part of the goods so assigned were not
in fact the property of the assignor till
after the duto of the indenture, a^'. did
not pass by it, and that afterwards
they became the property of E. F. by
a decree in Chancery, which bound
him to pay £700 for tliem, and that he
had not paid it. The plaintiff there-
fore asserted bis right to deduct from
the proceeds of the sale the £700 for
which he, as purchaser, having notice
of a trust, was liable In Equity. IIo
also claimed to deduct the £C00 sub-
sequently advanced to E. F, and to
apply only the sum remaining after
these deductions in discharge of the
defendant's liability. The Court de-
cided in favour of the claim to deduct
the £700, as the proceeds of the pro-
perty sold were in truth less that
amount, but refused to allow the £600
to be deducted, as that was an attempt
to tack the second mortgage to the
first : {^Marcon v. Jilozam, 11 Ex. 686.)
(y) Taken from Eng. Stat. 17 & 18
Vie. c. 125, s. 86. — Applied to County
Courts.
(z) Although an equitable plea has
been allowed by a Judge at Chambers,
the plaintiff still has a right to apply
to the Court for a rule to strike it out,
and this not by way of appeal from the
decision of the Judge at Chambers, but
as a substantive motion : ( Wood y. the
Copper Miners' Co, 26 L. T. Rep. M.)
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480
THE COMMON LAW PROCEDURE ACT.
[ss. ccsc.
Swch*c«k. ^^'^ SO '^^ *o do justice between the parties, (a) it shall be
^t^jf*' ^^^^^^ ^^^ ^^^^ ^^^^^ ^^ '^^^^^ *° °^^^^ *^® "^^^e to be struck
Courtof Law Qufc^ (^j) on such terms, as to the costs and otherwise, as to
such Court or Judge may seem reasonable, (c)
Amndmenu. {d ) And whereas the power of amendment now vested in
the Courts and the Judges thereof, is insuflBcient to enable
(a) A Court of Equity often refuses
to entertain bills for relief when its
jurisdiction cannot be beneficially ex-
ercised : (see Hills v. Crull, 2 Ph. 60 ;
Lumleij V. Qye, 21 L. J. Ch. 899.)
(i) To an action by the drawer
against the acceptor of a bill of ex-
change at three months, dated 12th
July, the defendant plea( ed by way of
equitable defence that the bill ought
to have been and was represented to
him by the plaintiff to be drawn on
25th July, and that three months from
25th July had not elapsed before action
brought, whereupon plaintiff made ap-
plication to a Judge in Chambers to
strike out the plea on the ground that
"it was frivolous, and discosed no de-
fence in equity," and was by the Judge
refered to the full Court. Plaintiff ac-
cordingly obtained a rule nisi from the
full Court on aflSdavits that the plea
was •* false in substance and in fact."
The Court thinking that the plea " did
not disclose a full equitable defence"
struck it out : {Drain v. Harvey, 17
C. B. 267, 33 L. & Eq. 333.) The ad-
missibility of an equitable pleading
whether plea or replication may be de-
termined in either of two modes. First,
when application is made for leave to
plead more than rz.? p^-:.* or ..^plication
one thereof being equitable, in which
case the admissibility of the equitable
pleading may be decided upon in lim-
ine. Second, where a party having
the right to plead singly without leave
pleads an equltabk'pleading, in which
case his opponent may apply under the
section here annotated to strike it out.
Whenever it appears that the equitable
pleading cannot bs dealt with by a
Court of Law *' so as to do justice be-
tween the parties," it may be disallow-
ed or struck out. A Court of Law has
r. power to administer conditionahe-
lief such as dispensed by Courts of
Equity through the medium of condi-
tional injunctions. The equitable
pleading will be sustained only when
disclosing equitable grounds which in
the opinion of the Court would entitle
the party pleading it to an absolute and
unconditional injunction against the
judgment obtained at law if no such
pleading were allowed : (see sections
cclxxxvii-viii-ix, and notes thereto.)
(c) Court or cTwrf^e— relative powers
see note m to -6. xxxvii.
{d) By an amendment is understood
the correction of an error. The Court
has an inherent jurisdiction to allow
amendments when in furiherance of
justice ; but the exercise of this juris-
diction at common law was very uncer-
tain. Eepeated refusals to exorcise it
in cases where it might have been be-
neficially exercised led to the passing
of a series of statutes, each one of
which is more comprehensive than its
predecessor. Power is conferred to
amend errors caused by the misprision
of oflScers of the Court: (14 Ed. 3
Stat. 1 cap. 6), which amendments are
allowable either before or after judg-
ment : (4 Hen. 6, cap. 3 ; 8 Hen. 6,
caps. 12-16.) So mistakes or mispri-
sions of the partieffare in certain cases
cured after verdict or confession of
judgment by the operation of statutes
known as the Statutes of Jeofails : (32
;ien. 8, cap. 30; 18 Eliz. cap. 14; 21
Jac. 1, c. 13 ; 16 & 17 Car. 2, c. 8 ; 4
& 5 Anne c. 16, s. 2 ; 5 Geo. 1 c. 13.)
Until modern times there does not ap-
pear to have been any distinct power .
to make amendments during the trial
of an action. This was the cause of
^^xei.] AMENDMENTS.
to prevent tlie failure of Justice by reason of mistakes and
481
jweat mischief, and the mischief in-
dnced specific remedies at the hards of
the Legislature. The Legislature of
Upper Canada imitating the Legisla-
ture of England passed very important
Statutes upon tlie sulyeot of amend-
ments. In 1831, an Act iras passed
authorising " every Court of Record
holding plea in civil actions, any Judge
sitting at Nisi Prius, and any Court of
Oyer and Terminer and General Gaol
Delivery in this Proyince, if such Court
or Judge shall see fit so to do, to
cause the record on which any trial
nay be pending before any such Court
or Judge in any civil action or in any
indictment or information for any mis-
demeanor when any variance shall ap-
oear between any matter in writing or
in print produced in evidence, and the
recital or setting forth thereof upon
the record whereon the trial is pend-
ing, to be forthwith amended in such
particular by some officer of the
Court," &c : (1 Wm. IV. cap. 1, s. 1 ;
Bar. Prac. Stats, p. 21.) This Statute
is taken from Eng. Stat. 9 Geo. IV. o.
15. Afterwards in 1836 a second Act
vas passed, which considerably ex-
tended the powers of the Court and
Judge to make amendments. It enacts
"that it shall l&e lawful for any Court
of Record holding plea in civil ac-
tions, or for any Judge sitting at Nisi
Prius, if such Court or Judge shall see
fit 80 to do, to cause the record, writ,
or document on which any trial may
be pending before any such Court or
Judge in any civil action or in any in-
formation in the nature of a quo war-
ranto or proceedings on a mandamus,
when any variance shall appear be-
tween the proof and the recital or the
setting forth on the repc::<i, writ, or
document in which t> d trial is proceed-
ing, of any contract, name, or other
matter, in any particular or particu-
lars in the judgment of such Court or
Judge not material to the merits of
the case, and by which the opposite
party cannot have been prejudiced in
the induct of his action, prosecution,
or defence, to be forthwith amended by
some officer of the Court or otherwise
both in the part of the pleadings where
such variance occurs, and in every
other part of the pleadings which it
become necessary to amend," &o.: (7
Wm. IV. cap. 8, s. 15; Har. Prao.
Stats, p. 50.) Thi*J Statute is taken
from Eng, Stat. 8 & 4 Wm. IV. cap.
42, s. 23. The powers of amendment
conferred^by the C. L. P. Act are, how-
ever, of a much more extended and re-
medisil character than any of the pre-
ceding. Fint, If plaintiff or his at-
torney shall omit to insert or indorse
on any writ or copy any of the matters
required by the C. L. P. A. to be in-
dorsed, an amendment may be allow-
ed: (s. xxxvii.) Secondly, It. is in
the power of the Court or a Judge at
any time before the trial of any cause
under certain circumstances to order
that any person or persons not joined
as plaintiff or plaintiffs in such cause
shall be so joined, or that any person
or persons originally joined as plain-
tiff or plaintiffs shall be struck outf^m
such cause (s. Ixvii). Thirdly. In
case it shall appear at the trutl of any
action that there has been a misjoinder
of plaintiffs, or that some person or
persons not joined as plaintiff or
plaintiffs ought to have been so joined
under the circumstances, such mis-
joinder or nonjoinders may be amended
as a variance at the trial : (s. Ixviii.)
Fourthly. It is in the power of the
Court or Judge, in case of the joindei
of too many defendants at any time
before the trial under certain circum-
stances, to order that the names of one
or more of such defendants shall be
struck out : (s. Ixx), so also if it ap-
pear at the trial that there has been
a misjoinder of defendants, such mis-
joinder may be amended as a variance
at the trial: {lb.) Fifthly. It is in the
power of the Superior Courts of Com-
mon Law and every Judge thereof, and
every Judge sitting at Nisi Prins at all
times to amend aU defects and errors,
whether tiiere be anything in writing
.)
'!>'
mi
THE COMMON LAW PBOOSSWSE ACT. [a, ^jj^jj
App, Co. 0. objections of form : (e) Be it enacted as follows :
I Bng. 0. L. p. . ' ^ '
c^ths^^ A.i852,8.m CCXCI. (/) It shall be lawful for the Superior Courte of
^*.e/i 11
TheCourta
may and
S t an •> -1 -. "*'>■* make
y *«^ 2 IT. all ,„^
Common Law, (^) and every Judge thereof, and any Judge
sitting at Nwi Frius, (K) at all times to an^end all defects and
u i
n
^^^
lif
to amend by or not : (s. eczci.) Hi-
therto the difficulty has been to men-
tion cases in which amendments might
be allowed ; but for the future the diffi-
culty will be to say in what cases
unendments might not be made. It is
the duty of the Courts and every Judge
thereof to extend the powers of amend-
ment so far as they reasonably can, in
order to prcTcnt parties being tripped
up by mere technical objections : (per
Parke, B, in WUkkuonr. Sharland, 11
Ex. 860
(«) This recital is of importance as
furnishing a clue to the subsequent
enactment It is recited that the power
of amendment at the time of the pass-
ing of the Act Tested in the Courts and
the Judges thereof was insufficient to
enable £em to prevent the failure of
justice by reason of mistakes and ob-
jections of form. A remedy is there-
fore provided. The meaning is, that
where pleadings are informal, so ad
not to raise the question which the par-
ties intended to try, the Court or Judge
must amend them: {Ritchie et al. v.
¥an Oeldcr, 9 Ex. 762.) But a change
of defence -^y the substitution of one
plea for another or the addition of a
new plea is a matter entirely in the
discretion of the Court or Judge : (lb.)
The enactment does not at all interfere
with the general equitable jurisdiction
of the Courts over their own judg-
ments: (Cannan et al. v. Reynolds, b
El. & B. 801.) And the Courts have
jurisdiction to set aside a judgment ob-
tained either by mistake or fraud : {lb.)
(/) Taken from Eng. Stat. 16 & 16
Vic. cap. 76, 8. 222. — Founded upon
Ist Rep. C. L. Comrs. s. 88. — Applied
to County Courts.
{g) Qu. Does this extend to the
Court of Error and Appeal ? Until the
actual removal of the record into a
Court of Error and Appeal, the Court
below has power to amend : ( Wilkin-
ton V. Sharland, 11 Ex. 88.) In Enjr-
land the powers of amendment were
held not to extend to inferior Courts of
Record : ( Wickea v. Grove, 2 Jur, N. S
212), but this section is made appU-
cable to County Couris, the only Infe-
rior Courts of Record of civil jurisdic-
tion in Upper Canada.
(A) The Statute imposes a duty upon
the persons who are authorized to
amend, in all cases where the amend-
ment is such as may be necessary for
determining in the existing suit "the
real question in controversy between
the parties:" (Wilkin v. Reed, Maule,
J, 15 C. B. 200 ; Brennan v. Howard.
26 L. J. Ex. 289.) The Court may
amend, a Judge in Chambers may
amend, and a Judge at Nisi Prius may
amend. Nothing is said about review :
thai is left to the general law: (Wil-
kin V. Reed, Maule, J, 16 C. B. 200),
and the general law does not preclude
a party unsuccessful before a Judge
from making a substantive application
to the Court for amendment: {lb. Jer-
vis, C. J. ; Brennan v. Howard, 26 L.
J. Ex. 289.) If the Judge who makes
an order under this section have juris-
diction as to the subject matter of the
order, then whether he makes it rightly
or wrongly it is not for the Court to
interfere: {Emery v. Webster, 9 Ex.
242, affirmed in 10 Ex. 901 ; Bnman
V. Howard, ubitupra; Cawkwelly.Rvi-
sell, 26 L. J. Ex. 34.) There is power
under this section to make the amend-
ment in the cases provided for, whether
it be in a matter that is material to the
merits of the case or not. " Whether or
not a particular amendment is material
to the merits is matter of law; but
whether or not the proposed amend-
ment is necessary for the purpose of
determining the real question in contro-
versy between the parties is matter of
fact to be decided by the Judge :" ( Wil-
kin y. Reed,Mmle, J, 15 C. B. 205.)
jCCXoi.] AMENPMENTS. 483
errors in any proceeding in civil causes, (i) whether there is amend-
It often happens that there being a oon-
troTersy, the parties are unable to try
that controversy properly, because the
pleadings between them do not correct-
ly raise upon the record what the
controversy is. It was to obviate that
inconvenience that this section was
framed : (lb.) Upon a trial by record
the Conrt amended the declaration by
inserting therein the true date : {JN^oble
T. Chapman, 14 C. B. 400], and the
tnie amount of the original judgment :
ISunter t. Fmmtnuel, 15 C. B. 290.)
In an action for 'jreaoh of contract to
employ the plaintiff as an actor for
three years at a weekly salary of £8,
the declaration claimed general dam-
-iges for a wrongful dismissal ; but the
plaintiff in his particulars of demand
merely claimed £32 for four weeks'
salary. The defendant paid £32 into
Conrt, and the plaintiff's attorney,
under the mistaken impression that the
plaintiff was entitled under that form
ofdeclaration to recover for four weeks'
salary only, took the money out of
Court and gave notice of taxation of
costs, which were accordingly taxed
and paid. Under the circumstances, tho
plaintiff's attorney having discovered
his mistake within a few days after-
wards, obtained a Judge's order to set
aside the replication and all subsequent
proceedings, with leave to the plaintiff
upon refunding the money so paid and
the costs, to amend his declaration and
particulars of demand, with liberty to
plead de novo being given to the defend-
ant. Held order correctly made : {Emery
T. Wehsttr,, 9 Ex. 242. ) It has been held
that a Judge at Nisi Prius may amend
a declaration by altering the form of
action, for example, so as to make the
declaration in cage instead of trespass :
[May V. Footner, 5 El. & B. 505.)
Action on a contract by plaintiff to de-
liver to defendant at C. a cargo in
March, alleging as a breach that de-
fendant would not accept or pay for
the goods. Pleas, first, non assumpsit,
and second, that plaintiff was not ready
wd willing to deliver at C. in March.
It appeared that defendant had by
letter requested plaintiff to postpone
the shipment, that the ship arrived in
G. on the evening of 31st March, and
consequently that the cargo was not
ready for delivery till April. The
Judge on plaintiff's application amend-
ed the declaration by inserting an
averment that, at defendant's request,
plaintiff delayed the shipment, and
that defendant promised to accept a
delivery of that shipment with reason-
able speed, and exonerated plaintiff
from delivering in March : Held pro-
perly made : (Tennyson v. O'Brien, 6
El. & B. 497.) Upon a plea of " not
guilty" by Statute where the defence
was upon several Statutes, several of
which were omitted from the margin,
an amendment was allowed by the
insertion of them : (Edwards v. Ilodges,
15 C.B. 477.)
(t) The power is at all times to
amend all defects and errors in any
proceeding in civil causes. The amend-
ment may be made at any time before,
at, or after the trial : [Morgan v. Pike,
26 L. & Eq. 28n, and although delay
may be a ground for r-afusing an am-
endment on the eve of ". trial, it is no
groundfor ultimately ref'.':i:::T it, unless
it would involve aome pr';jadice to vhe
opposite party, as by rea Oii cf the un-
expected absence or deatii of a witness :
iTricket v. Jarman, 2b L. & Eq. ?H4.)
he Court has poTc* after a trial ar ui
a motion for judg;.'Toat non obstante ve-
redicto, or for a jiew trial to amend a
defect in a pleading, so as to raise t^-e
real question in controversy, though no
advantage was takon of an offer to
allow amendments at the trial : [Par-
sons v. Alexander, 5 El. & B. 263.) At
the trial it appeared that defenda.it
entered a gaming house, and there lost
at billiards £65, for vhich he gave an^
I.O.U., and subsequently sent plaintiff
an unstamped cheque. The chec^uc
was not received in evidence. The
Judge intimated generally that he
would make what amendments were-
necessary ; neither party asking for an
.^- m
\ w
f^:fW'"W
::';''H-'
484
THE COMMON LAW PROCEDURE ACT.
[s. ccxci.
d?u^IS5d^^°y*^^"g ^" writing to amend by or not, (j) and whether the
tags M may defect or crTor be that of the party applying to amend or not (k'\
*" ''" *"" and all such amendments may be made with or without costs (h
and upon such terms as to the Court or Judge may seem fit (m)
and all such amendments as may be necessary for the purpose
todofuU
Justice.
amendment, the question Tras left to
tiie jury whether the aocountwas stated
of money lost at gambling. The jury
found for the defendant. Held that
the Court in banco had, without con-
sent, power to amend the plea by mak-
ing it apply to an account stated con-
cerning the consideration of the cheque,
80 as to raise on the record the ques-
tion really to be tried: (lb.) The
power to amend after trial by the ad-
dition of a plea was doubtful : (Melzner
V. Holton, 23 L. T. Rep. 22 ; Charnley
T. Grundry, Jeryis, C.J, 14 C.B. 614.)
After trial a defendant was allowed
upon payment of costs to amend a plea
•of not guilty " by Statute," by insert-
ing several additional Statutes in the
margin: {^Edwards v. Hodges, 16 C.B.
77.) In one case after a motion in
arrest of judgment and after proceed-
ings in error for a defect in a declara-
tion leave was given to plaintiff to
amend upon paying the costs of the
motion in arrest of judgment of the
proceedings in error and of the appli-
cation to amend : ( Wilksnaon v. Sliar-
land, 11 Ex. 3*'^ The power of
amendment extt^ds, however, not
merely to declarations, and pleas, and
other pleadings, but to any proceeding
in civil causes. This will apply to the
writs, verdict, postea, judgment, and
in short all the various steps in an
actionatlaw. {See Grey oryv. Cotterell,
6 El. & B. 671, 671 ; also BelU. Post-
lethwaite, 6 El. & B. ; Hayne v.
Robertson, 17 C. B. 548; Kendelly.
Merritt, 18 C. B. 173.) Leave to amend
a writ oi capias issued in an action for
seduction was granted after arrest upon
the application of plaintiff, and upon
payment of costs by striking out the
words " in an action on promises," and
inserting «' in an action on the case :"
{Legea:- v. Lacroix, Chambers, Feb. 26,
,1867, Hagarty, J.) The section gives no
power to amend in cases of misjoirder
which is not a " defect or error," such
as contemplated : [Robson v. Doyle 8
El. & B. 396.) In cases of misjoinder
or nonjoinder either of plaintiffs or
defendants, application must be made
under ss. Ixvii. Ixviii. Ixx. : (see note
d, ante.)
(J) Formerly amendments could
only be made on the record when there
was something in writing to amend by •
{Cheese v. Scales, 10 M. & W. 491.) '
(k) An amendment may be reameud-
ed or annulled: (Morgan v. Pike 14
C.B. 479.)
(l) Every pleading is to be taken
subject to such amendments as the law
as it now stands permits the Court or
Judge to make : {Jiuckland-v. Johnson
Maule, J, 16 C. B. 165.) Where the
amendment raises substantially the
real question in controversy between
the parties, there is no reason why it
should be allowed only upon the terma
of the party whoso pleading it is pay-
ing costs: (76. Crowder, J.) Adis-
cretion must be exercised in each case
in view of all the circumstances of the
case, and with reference to terms the
case be disposed of upon full consider-
ation of such circumstances. If an
order for leave to amend be aban-
doned after service, the opposite party
has in general no right to costs incur-
red before the abandonment on the
supposition that the order would he
acted upon by the party obtaining it;
[Brownv. Millington, 22 L. J. Ex. 138 .)
(m) The Court always takes care
that if one party to an action be al-
lowed to amend, the other party shall
not be prejudiced or delayed thereby:
[Alder v. Chip, Burr. 756.) In trials
at Nisi Frius an amendment may' in
many cases make necessary a post-
ponement of tho trial. One test of the
propriety of refusing a postponement
^Q20i.] AMENDMENTS.
of determining in the existing suit the real question in contro-
yersy between the parties, (n) shall be so made.
485
is to see whether the party against
irhom the amendmeat is made could,
if the trial were postponed, get other
evidence: (Tennyson v. O'Brien, 6 El.
& B. 487) Wigbtman, J.) In an action
uD a contract an amendment of the de-
olwation was made at Nisi Prius for
the purpose of raising the real question
in controversy between the parties and
leave given to defendant to amend his
pica; but defendant objected to the
amendment being made, and requested
a postponement of the trial, which the
Judge refused. Thereupon defendant
refused to alter his plea and to appear
further, whereupon the jury under the
direction of the judge assessed the da-
mages. On a motion for a new trial,
it was held that no injustice being sug-
gested tp have been sustained by the
defendant in consequence of the re-
fusal to postpone the trial, the discre-
tion of the Judge in that respect ought
not to be reversed : {lb. ) Where leave
to amend is oflFered during an argu-
ment in banc, but declined, leave can-
not be afterwards obtained : ( Weld v.
Baxter, 27 L. T. Rep. 190; Deposit
Life Assur. Co. v Ayscough, 2 Jur. N.
S. n. 812.)
(n) The powers conferred by this
section appear not to be restricted to
"defects or erron \" but to extend to
all amendments wiiich tend to promote
the trial of th*; substantial question
between the parties ; (Mitchell v. Crass-
waller, Jerna, C.J, 13 C. B. 244.) To
determine what is the substantial ques-
tion between the parties is to determine
not a matter of law but of fact, which
matter of fact must be determined by
the Judge on a careful consideration
of the pleadings and evidence: (sec
note h, supra.) But the Statute does
not contemplate amendments in every
matter which could by possibility be
started in the course of the trial. It
has been thought by some of the
Judges that the presiding Judge is
bound to make an amendment asked
for, if by so doing some question miffht
be raised between the parties ; but this
impression is clearly incorrect :( TTtZMn
V. Reed, 16 C. B. 192 ; Cawkwell v.
Russell, 26 L. J. Ex. 34.) It wta in-
tended by the G. L. P. Act to limit the
powers of amendment to the introduc-
tion of matters which the parties hoped
and intended to try in the cause, and
not to authorize amendments which
might raise questions which never
were contemplated by the parties:
(Wilkin y. Reed, uit sup.Maule, J.) The
aeclaration in an action for giving a
false character of one P^ a clerk, al-
leged that the defendant fraudulently
represented to the plaintiff that the
reason why he dismissed P. firoin his
employment was the decrease c>f his
business, and that the defendant re-
commended the plaintiff to try P., and
knowingly suppressed and concealed
from plaintiff the fact that P. had been
dismissed from his emplojijoaent on ac-
count of dishonesty. At the trial it
appeared that P. had been guilty of
dishonesty while in the defendant's
employment, but that defendant had
not mentioned that fact to plaintiff
when ho recommended him to try P.
It further appeared, however, that P.
had not been dismissed from the defen-
dant's employment on account of his
dishonesty, but really for the reason
which defendant had assigned to plain-
tiff. The Judge at the trial refused to
allow the declaration to be amended,
by inserting an allegation " that P.
whilst in the defendant's employment*
was guilty of dishonesty," instead of
the allegation '<that P. had been dis-
missed from the employment of the
defendant on account of dishonesty."
Held that the amendment was properly
refused — the matter in controversy be-
tween the parties being not whether
the r'jfendant had fraudulently sup-
pressed the fact that P. had been
guilty of dishonesty, but whether he
had given the true reason for having
dismissed him : ( Wilkin y. Reed, ubi
supra.) So an amendment of a spa-
.a
'4i
'J
In II
mm
J' m
-r
486
THE COMMON LAW PROCEDURE ACT.
[8- ooxoii.
gw^gw^ And with regard to actions on Bills of Exchange or other
negotiable instruments; (o) Be it enacted as follows:
oial case for the purpose of letting in a
question neither considered nor pre-
sented by the parties for consideration,
was refused : {Hillt v. Hunt, 16 0. B.
1.) Again, to hold that a Judge is
bound to add % new plea whenc/er it is
necessary to let in the defence as it ap-
pears upon the evidence would be to put
an end to trial by jury altogether. No
man could ever know what case he was
toing to meet : (Bridget et al. y. Oay,
2 L. T. Bep. 65.) In the exercise of
discretion it seems that such an amend-
ment may be allowed : (Taylor y.Shaw.
21 L. T. Rep. 68 ; Chamley y. Chr.'
dftf, 14 C. B. 608.) Leaye to add a
plea was refused where the effect of
fhe amendment if allowed would haye
been contrary to the justice of the
case: (Corby et al. v. Cotton, Cham-
bers, Jan. 81, 1867, in. U.C.L.J. 60.)
The design of the intended amendment
was to defeat the security upon which
the action was brought and upon which
defendant receiyed the whole conside-
ration: {lb.) And per Robinson, C.J,
*'I think I am called upon to exercise
a discretion in allowing such &n amend-
ment just as before the C.L.P.A. — the
object of that Statute being to enlarge
the power of the Court and Judges in
granting amendments, not to compel
the granting of amendments against
the justice of the case." In an English
ease where the point arose whether a
Judge should be influenced in allowing
or refusing an amendment, by the fact
• that the action was a hnt;' one : ;■ con-
trary to certain notiou: of murality
which the law had not made obliga-
tory. Pollock, C.B, and Wiiles, J, were
of opinion that such a consideration
should have some weight, but Lord
Wensleydale and Bram well, B, were c*'
a contrary opinion : (Brennan v. Hcu-
ard, 2 Jur. N. S. 546.) The Stat-
ute does not render it imperative on the
Court or a Judge to allow one plea to
be substituted fbr another : (Ritchie et
al. y. Van Gelder, 9 Ex. 762.) Where
■the defendant pleaded never indebted
to an acUon for money lent, and issne
was joined thereon, the Court in tJ!
exercise of discretion refused to alW
the defendant to substitute a plea tC
the money was lent for the purpose of
purchasing shares in a foreign lottery
and reselling them inEnriand- (n\
A Judge at Nisi Prius has no piwer ti
strike out a plea to which there is I
demurrer: (Thomatf. Waltert, 22 1
1. Rep. 200.) ' ''•
(o) The parson who pays a bill
or other negotiable instrument, is in
general eatitletl to demand the instru
ment itself as his youcher ; (Akxandel
y. Strong, 9 M. & W. 733:) in 1
leading case upon this subject which
was an action by the indorsee against
defendant as acceptor of a bill of ex-
change, the reasons of the rule were
thus dwelt upon by Lord Tenterden-.
•• The general rule of the English law
does not allow an action by the assig-
nee of a chose in action. The custom
of merchants considered as part of the
law furnishes in this case an exception
to the general rule. What then is the
custom in this respect ? It is that the
holder of the bill shall present the in-
strument at its maturity to the accep-
tor, demand payment of its amount,
and upon receipt of the money Jeliver
up the bill. The acceptor paying the
bill has a right to the possession of the
instrument for his own securi ty, and
as his voucher and discharge js'o tanto
in his account with the drawer. If
upon an offer of payment the holder
should refuse to deliver up the bill, can
it be doubted that the neceptor might
retract his offer or retain his money?
And if this be the right of an accept'ir
ready to pay at the maturity of the
bill, must not his right remain the
same if, though not ready at that time,
he is ready afterwards — and can his
right be varied if the payment is to be
made under a compulsory proce«s.of
l»w ? The foundation of his right, his
own security, his voucher, and his dis-
charge towards the drawer remain un-
ooxou.]
ACTIONS ON LOST BILLS Off EXOHANOE, ETC.
487
CCXCII. (i)) In case of any action founded on a bill of ex- appCo, o. tv», sbfy^ ^
ohMge or other negotiable instrument, (j) it shall be lawful A^fsHi.w/^'f, " "^ t-^!
for the Court or a Judge (r) to order that the loss of such in-conrtmay
gtrttoe°^ shall not be set up, provided an indemnity be given A^notto be
j>33
(lianged. As far as.regards his yoacher
aod discharge towards the drawer, it
^1 be the same thing whether the in-
gtramenthas been destroyed or mis-
laiu. With respect to his own secur-
ity against a demand by another hold-
er, tbere may be a difference. Bnt
hov is he to be assn 'ed of the fact
either of the loss or destruction of the
1,111 1 Is be to rely upon the assertion
of the holder, or to defend an action
at tke peril of costs ? And if the bill
shoild afterwards appear, and a suit
be brought against him by another
holder, a fact not absolutely 7 mprobable
in tlie case of a lost bill, is he to seek
for tke witnesses to prove th'i loss, and
prove that the then plaintiff must have
obtained the bill after it became due ?
Has the holder a right by his own negli-
gence or misfortune to cast the burden
npon tiie acceptor, even as a punish-
ment for not discharging the bill on
the day it became due ? We think
that the custom of merchants does not
authorise us to say that this is the law.
Is the holder then without remedy ?
Not wholly so. He may tender suffi-
cient in''"' ''ty to the acceptor, and if
it be refused, he may enforce payment
thereupon in a Court of Equity : (see
Uma V. Bod, 4 Price 176 ; Macartney
T. Oraham, 2 Sim. 285 ; Cochell v.
Bridgman, 4 Beav. 499; Cook r.
Darwin, 23 L. J. 997.) And this is
agreeable to the mercantile law of
other countries :" (Hansard t. Rohin-
m, 7 B. & C. 90.) It is the object of
the following section to allow plaintiff
upon tendering indemnity, instead of
being driven to Equity, to recover in a
Court of Law with the same effect as if
he bad proceeded in Equity. An addi-
tional romedy may also be mentioned.
It is tliat afforded by Stat. 9 & 10 WilL
III. cap. 17, 8, 3, which ensits that
if any inland bill be lost or miscarry
within the time limited for its pay-
ment, the drawer shall upon request
and security given to indemnify him,
if such bill be found again give another
bill of the same tenor and form."
However, under the Act of William III.
Courts of Law seem to have no juris-
diction : (See Davia y. Dod, 4 Taunt.
602 ; Hanaardy. Rohinaon, tihi amra ;
Ramut V. Crowe, 1 Ex. 167 ; Ex parte
Oreenway, 6 Ves. 811 ; Macartney v.
Oraham, 2 Sim. 285 ; Moaaop t. Eadon,
16 Ves. 430.)
{p) Taken from Eng. Stat. 17 & 18
Vio. 0. 125, B. 87. — Applied to County
Courts.
(?) The law hitherto was that if a
negotiable bill or note that is a bill
or note in its original state payable
to bearer or order was lost, tiie
loser could not at law maintain an ac-
tion upon it : {Pieraon v. Uutchinaoiif
2 Camp. 211 ; Davia y. Dod, 4 Taunt
602 ; Hanaard y. Rohinton, 7 B. & C.
90 ; Ramm y. Crowe, 1 Ex. 167), nor
for the consideration upon which it
was given: (Champion y. Terry, 2 B.
& B. 295 ; Alderaon v. Langdale, 8 B.
& Ad. 660 ; Clay v. Crowe, 8 Ex. 296;
Ruaaell et al. y. McDonald et al, 1 U.C.
R. 295.) But to enable defendant to
avail himself of such a defence to
an action when brotL3;ht, a special
plea was necessary : {Poole y. Smith,
Holt, 144 ; Pooley y. Mullard, 1 C. &
J. 411 Blackie v. Bidding, 6 C. B.
196.) Suuh defence could not, it
seems, be set up to an action on a non-
negotiable instrument : {Clay v. Crowe,
ubiaup. ; Ckarnley v.\Gmndy, 14 C. B.
608 ; Rolt V. Wataon, 4 Bing. 278.;
Main v. Bailey, 10 A. & E. 616.) The
enactment, it will be observed, extends
not only to bills but to "otheruei^o-
tiable instruments," words sufficient to
embrace at least promissory notes:
(Smith's Mer. Law, 6 Ed. 204.)
(r) Relative powers, see note m to s,
xxxviL
,1:^
488 THE COMMON LAW PBOOBDURK ACT. [S-oezoiii
3^J^ ^^ to the satisfaction of the Court or Judge or any officer of the
K°"*iTen ^^^^f *° whom the same may he referred hy such Court or
' Judge, (<) against the claims of any other person upon sncli
negotiable instrument, (t)
And with respect to proceedings in error and appeal • (u)
Be it enacted as follows :
y ttr>. ^ict I fry ing. 0. 1. p. CCXCIII. (v) No Judgment, [decree, or other proceeding,
I 4 . (? c' ^ / 3 ^ ^ '■^*"' either at law or in equity,] (to) shall be reversed or avoided foJ
" ^* ' toSSiSw''*any error or defect therein, (x) unless the Writ of appeal be
Brrorand
JgpeaL
^3/
(a) There will not in general be onv
necessity to make an order that such
a defence shall not be set up in
anticipation of the same being done,
but rather to strike it out when plead-
ed as a sole defence, or disallow it
if leave be asked to plead it with
other defences : (s. ozxx.)
(f) See remarks of Lcrd Tenderden
in Hansard v. Robiruon, ante, note o.
(u) The only object of the two fol-
lowing sections is to lessen the period
within which an appeal may be made
from a judgment, decree, or other pro-
ceeding iu one of the Superior Courts
of Law or Equity. Before the passing
of this Act the period was twenty
years after judgment signed or enter-
ed of record: (10 & 11 Will. III. c.
14.) It is now «• four years after such
judgment, decree, or proceeding shall
have been entered of record, made,
pronounced, had, or completed: (s.
ccxciii. ) The usual excep tion in favor
of infants, femes, coverts, persons non-
compotes mentis, or without the limits
of the Province, is made : (s. ccxciv.)
The change is as to the time of bring-
ing the appeal, but not as to the law
regulating appeals, and which ia ex-
plained at length in the notes to
Jaqties v. CesaVf 2 Wms. Saund. 100.
As to the procedure by bill of excep-
tions, see note m to s. ccxxxviii. A
Court of Law has authority over its
own record which it may amend even
after appeal brought, so long as the
record is not in fact removed : (Mellish
T. Richardson, 1 01. & F. 221.) A
Court of error or appeal will not in-
quire iato the propriety of amendments
made in the Court beL v, though made
after error brought, bu will consider
them as parts of the original record •
(Ib.i also Scalea v. Cheete, 1 D. & L
667.) By the recent Statute, which
amends the laws respecting appeals
and alters the constitution of the Court
of Error and Appeal, error or appeal
instead of bk,Ing brought or had by
writ of error or appeal must be prose-
cuted as a proceeding in the original
cause : (Pro v. Stat. 20 Vic. cap. 5.)
(v) Taken ftom Eng. Stat. 15 & le
Vic. cap. 76, s. 146.— Founded upon
1st Rep. C. L. Comrs. s. 87, iw.— Not
applied to County Courts.
(w) Instead of the words in brackets
read in Eng. C. L- P. Act "in any
cause," which .vords were held not to
include an information in the nature of
a quo warranto, as regards which the
fiat of the Attorney General is neces-
sary : (Reff. V. Seale, 5 El. & B. 1.)
Proceedings bymandaffiMjare within the
meaning of this section: (s. cchxxii.)
The words in our C. L. P. A. substi-
tuted for the word "cause" in the
Eng. C. L. P. Act are intended to em-
brace a wider class of cases than were
contemplated by the English Legisla-
ture. Thus in our Act provision is
made for appeals from Courts of Equity
as well as Courts of Law ; (See 20 Vic.
cap. 5.)
(z) The wide application of the 8ec<
tion may be gathered from the words
•* error or defect therein." The inten-
tion is that all proceedings by error or
ause" in the
I. OOXOiy-] BBROR AND APPKAIi. 489
sued out and prosecuted with effect within four yeaw (y) after JjJ^" ft"
luoh Judgment, [decree, or proceeding shall have been entered
of record, made, pronounced, had, or completed.] (z)
CCXCrV. (a) If any person who is or shall bo entitled ^^^^S"^-"^ /^^'l lfn.i
bring error [or appeal] (6) as aforesaid, (c) shall be at the time ' ' ^'- •^«'''^- "i jj
juch title accrued, within the age of twenty-one years, feme allowed in ^ -a, / ,
0vertf non compos mentis, or [without the limits of this Pro- diubiuty to
yince], {d) then such person shall be at liberty [to sue out his at the t^e
Writ of appeal,] (e) so as such person commences or brings and limited,
prosecutes (/) the same with effect within six years (g) after
coining to or being of full age, discovert, of sound memory, or
return [to the Province], (h) and if the opposite party shall, at
the time [the title to bring error or appeal accrued] (i) be
[without the limits of this Province], (j ) then [the Writ of
appeal may be sued out], (k) provided the proceeding be com-
menced and prosecuted with effect within six years (I) after
appeal muit be brought within the time
limited or elae be barred.
ty) «' Six years" in Eng. C. L. P. A.
(z) Instead of the words in brack-
ets read in Eng. C. L. P. Act " signed
or entered of record." The reason of
the change in language is explained in
note w, mpra. The proceedings in
error cannot in general be maintained
if commenced more than four years
after judgment in the Court below, and
it would seem that though proceedings
on the face of them appear to be so
brought the Court of Error and Appeal
will not summarily quash them : (lligga
T. Evans, 2 Str. 837.) To do so mi|5ht
be to deprive the party prosecuting
from availing himself if entitled so to
do of some or one of the exceptions
mentioned in the next succeeding sec-
tion, (coxoiv).
(a) Taken from Eng. Stat. U & 16
Vio. cap. 76, s. 147, the origin of
which is Eng. Stat. 9 & 10 Will. III.
cap.l4, 8. 2, which in language corres-
ponds with Stat. U.C. 7 W. IV. c. 3, s.4.
(6) The words "or appeal" are not
in Eng. C. L. P. Act.
(e) Either party if dissatisfied with
the judgment or decision of a Superior
Court of Law or Equity may in gen-
eral appeal to the Court of Error and
Appeal : (Prov. Stat., 20 Vio. cap. 5.)
{d ) Instead of the words in brackets
read in Eng. C. L. P. A. " beyond the
seas."
(e) Read in Eng. & L. P. A. « bring
error as aforesaid," and which since
the passing of 20 Vio. cap. 6, doing
away with writs of error and appeal
would if used in our C. L. P. A. be the
correct expression.
(/) " Commences or "brings, &c."
An appeal is " commenced," error is
"brought."
{g) Six years — This agrees with the
Eng. C. L. P. Act. It is strange that
as four years is the time limited in the
preceding section, a similar term was
not here enacted.
(h) Instead of the words in brack-
ets read in Eng. C. L. P. Act *< from
beyond the seas."
(i) Read in Eng. C. L. P. Act " of the
judgment signed or entered of record."
(y) Read in Eng. C. L. P. A. "be-
yond the seas."
(/c) Read in Eng. C. L. P. A. " errot
may be brought."
{I) See note g, sup.
:t
I !
!.''L
!'r.
ill;
mm !
t®«':
490
Tntolvait
DMort.
THE OOMMON LAW PR00ra)UB]: ACT. [«. OCXct
the roturn of suoli partj [to this Proyinoe]. (m)
(n) And with reapect to the payments of weefcly allowanco to
(m) Tlead in Eug. C. L. P. A. «• be-
yond thcoeaB."
(/t) I( I'j the right of a creditor to
recover Mb debt, and with a riow
thereto to adopt snch proceedings as
the laws presoribe. Tliia right existed
from a Ter> remote period, but the
mode of procedure has been from time
to time changed. Daring the times of
feudalism the 'eudal lord had an inter-
est in the person as well as the lands
of a debtor. Therefore the bodv of a
debtor was no more STibjeot to be at-
tach (vl for the olaimp t' an ordinary
oreditor than the laudc of such debtor.
To imprison the person of a debtor might
be to deprive the lord of his services and
for this reason the person of a debtor
was during the feudal age protected
flrom arrest Besides freedom from
arrest was linked with the libertj of
the subject, and the con^^^inuaQce of the
one was thought '.o bo essential to the
preservation of the <. iher. The law of
arrobt u; c' n). caB?s -r as of very slow
growti — ^i'-p bv step extending over
a greai' space of timo its history may
be traced upon the Statute boolis of the
Realm. Its present state oanuot be
more efifectivei - explained than by a
reference to its history.
No arrest could be made at common
law in any form of action excepting
that of trespass vi et armii, which par-
took more of a criminal than a civil
proceeding. The first Statute giv-
uig the right to arrest in matters of a
purely civil nature is that of Marl-
bridge, which was passed for the pro-
tection of the barons by lubjectiug
their bailiffs to arrest when attempting
to abscond in debt, and leaving no
lands behind them : (62 Hen. III.) The
second Statute is that of Acton Bumel,
which, for the protection of merchants,
allowed process against the body of a
debtor in cases where process against
his lands proved unavailing: (11 Ed.
I.) The third Statute was for the
farther protection of the barons, and
allowed them frenerally to arrest iLflip
servants, baiUffs, ohamberlalni, Z
receivers when in arrear ; (18 ej w
This Statute, which gave a form of
procedure known ap writ of account
became the basis of all future 8tatut««
and by means of its gradual extension
made arrest in civil cases a riiht in all
the ordinary forms of action. It was
extended to actions of debt and detinet
so as to admit of arrests in each of
these forms of action : (26 Ed. III. «
17.) Afterwards to actions upontlie
case : (19 Hen. VII. cap. 9.) then to
actions for forcible entry of annuity
and of covenant: (28 Hen. VIII. cap. m-
and finally to all personal actions* (21
Jao. I, cap. 4.) The effect of these
different Statutes was to allow the
issue of a cajJiaa in any personal action
whatever. In cases of doubt the Courts
connived at a proceeding, which had
the desired result. It was the prac-
tice of declaring bye the bye. Inasmuch
as an arrest might be made at common
law in an action of trespass vi et amit
process was allowed to issue in that
form of action whereon defendant vas
arrested. This done, the fictitious
charge of a trespass with force and
arms was for the time abandoned, and
a declaration charging defendant ij/«
the bye with a common debt or breach
of promiiic filed. A debtor once in
custody was always detained until he
answered every charge brought against
him during the pendency of the ori-
ginal charge. At this point the Legis-
lature began to turn their attention to
the hardships of arrest, and passed
several Statutes regulating the giTin*
of bail. These have been already re-
viewed in note u to s. xxiv. of this Act
A distinction arose as to arrest on pro-
cess to amwer a suit, which was termed
bailable process, and arrest on process
to eatitfy a judgment, which was call^
final process. The right of a creditor
to arrest his debtor on bailable process
in Upper Canada was introduced in
ICCXOV.] INSOLVENT DEBTORS.
iggolvent debtors, and as to Qaol limits, and to tbe diicharge of
mch debtors ; Be it enaotod as ft Hows :
491
1791 (82 Geo. III. cap. 1), and since
otintained, the requirements of the
tffid*rit to authorize the arrest haT-
ing been from time to time varied :
(jet B. zxiii. and notes thereto.) The
right to arrest on fina) process in Up-
per Canada, in other words, charge
^ execution, vras introduced by the
lame Statute, though taken away for
iBhort period (by 7 Vio. o. 81, which
was repealed bv 8 Vio. cap. 48), has
iIbo been upheld. The progress of the
Itw in Upper Canada since its intro-
daction from England has upon the
whole been of an ameliorating ten-
dency. For the support of an insol-
Tent debtor confined in execution
it was in 1805 enacted that if
not worth £6 and guilty of no fraud
the creditor should pay him five
shillings a week: (45 Geo. lil. cap. 7.)
To detect and prevent fraud the cre-
ditor was enabled te tender interroga-
tories, which the debtor was bound to
answer on pain of losing the weekly
allowance: (2 Geo. IV. cap. 8.) In
defanlt of payment of the weekly al-
lowance, the debtor was entitled tc his
discharge : (8 Geo. IV. cap. 8.) But
gnch discharge was not deemed satisfac-
tion of the debt : {lb.) The rights
and privileges conferred by the fore-
going Statutes as to weekly allowance,
sc, were in 1834 extended to prison-
ers on mesne as well as final process :
(4 Wm. IV. cap. 8.), and subsequently
to persons imprisoned for contempt in
not paying costs or money pursuant to
an award: (10 & 11 Vic. c. 16, s. 2.)
Provision was also made for the dis-
charge of debtors at the expiration of
certain periods of imprisonment, hav-
ing reference to the amount of the
debt for which they were imprisoned :
(4Win. IV. cap. 8, s. 5 ; 5 Wm. IV.
cap. 8, ss. 8-4; 8 Vio. cap. 6.) The
effect of these last-mentioned Statutes
was indeed thought to be that the
prisoner should remain in custody
for the periods named under or-
dinary eircumstances before being
entitled to move for his discharge.
That effect; however, was clearly re-
moved by the 10 & 11 Vio. cap. IB,
which entitled the prisoner to make
application for his discharge at any
time without reference to the amount
of the debt or ji nod of his imprison-
ment. Debtor !id\;lently obtaicdng
their dischaf" were 'tiade liable to re-
commitment Wn IV. 0. 8, s. 7),
and a fraudul 'Assignment of pro-
perty was mn '!idemeanor: (lb.
B. 8.) Certain uebtorfl making aitUl
and unreserved surrender of their pro-
{>erty were altogether protected from
mprisonment for debt : (8 Vic. c. 48.)
To provide for the health of those
debtors in custody who could not ob-
tain their discharge various Statutes
were passed under certain circum-
stances, giving to such debtors a pri-
vilege beyond the actual walls of the
gaol within a circumscribed area : (2
Geo. IV. cap. 6 ; 7 Geo. IV. cap. 9 ;
11 Geo. IV. cap. 8.) The original
area consisted of 16 acres contiguous
to the gaol, which area was known as
the Gaol Limits : (11 Geo. IV. cap. 8.)
The limits were afterwards made co-
extensive with the towns in which tiie
gaols were situate : (4 Wm. IV. c. 10),
and finally with the whole of the dis-
trict in which the gaol was situate:
(10 & 11 Vio. cap. 16.) The debtor
was only entitled to the limits upon
giving to the Sh iriff a bond with suffi-
cient sureties, for the sufficiency of
which the Sheriff was made responsible.
Afterwards the bond was aoolished,
and a recognizance of bail substituted,
the object of which was to relieve the
Sheriff from that responsibility : (10
& 11 Vio. cap. 16.) The recognizance
instead of being approved by the She-
riff was entered into, subject to the
approval of a Judge, which approval
when given was certified by the Clerk
of the Crown, whose certificate to the
Sheriff was his authority for giving to
the debtor the benefit of the limits:
{lb.) But in order that the debtor
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492
THE COMMON LAW PROCEDURE ACT.
[S CCXCT.
#
''*yf ssctf 1
cte2 ^- Appocc- COXCV. (o) If any debtor in close custody (jj) upon any
'' ' ' invh^t ™esne process, (3) or in execution, (r) or upon an attachment
Stebtor In ^^ Other proccss issued by any Court in Upper Canada, (g) for
^ninutody non-payment of costs, (/) or for non-payment of any sum of
rattued to money awarded, or for the non-payment of any claim in the
diowMio«. nature of a debt or demand due, being a sum certain or capable
of being ascertained by computation, and not in the nature of
a penalty to enforce the doing of some act, other than the pay-
ment of a sum of money, (m) (in which several cases the
when arrested either on mesne or final
process might not be imprisoned from
the time of his arrest until the secu-
rity was approved, the Sheriff was
enabled to give him the benefit
of the limits immediately after his ar-
rest upon receiving a specifi«<1 bond :
(16 Yio. cap. 175, ss. 7-8.) All these
Statutes, excepting that of 8 Yio. cap.
48 (Ear. Prao. Stats, p. 95^, have been
consolidated in the following sections
in a manner as able as the work of
consolidation was itself necessary. The
work of at all harmonizing so many
Statutes was, before the passing of the
O.L.P. A, daily becominga more difficult
task. In one case the Court of Queen's
Bench, speaking of 10 & 11 Vie. 0. 16,
said, *< The Legislature in passing this
lastAot have created difficulty by not re-
pealing the former acts, and by making
some provisions evidently in contem-
plation of their continuing in force,
while other provisions would seem as
if designed to be substituted for them :"
^r Robinson, G. J, in Clarkton v.
Hart, 9 U. G. B. 351.) In a still later
case th| Court was again compelled to
point out the state of the law in these
words, " It is not very easy from the
Twious enactments which both before
and since the Union (of the Provinces)
have been in force in Upper Canada,
satisfaotorily to deduce the precise in-
tention of the Legislature, so as to
have a clear guiding principle to assist
us in coming to a conclusion upon
doubtful questions of construction upon
these Acts :" (per Draper, J, in Cal-
cutt V. Rattan, 13 U. G. B. 228.)
,. /
(0) This section is a consolidation of
many parts of Statutes, each of which
will be noticed in its proper place. The
section is applied to County Courts.
{p) Cloae custody. A debtor on the
Units is a prisoner in custody, but not
in close custody. The distinction de-
serves to be noted. None other than
debtors in actual confinement within
the walls of the gaol can be deemed in
«' close custody," so as to avail them-
selves of the provisions of this section.
It has been held that a debtor after
obtaining his weekly allowance, who
takes the benefit of the limits mnst
give notice of his return to close cus-
tody before being entitled to further
payment: {Hyde v. Bamhart, Dra.
Bep. 210.)
(j) 4 Wm. IV. cap. 3.
(r) 45 Geo. III. cap. 7.
(«) Any Court, ^-c, i.e. whether of
superior or inferior jurisdiction if hav-
ing the power to arrest.
(<) It was held under 5 Wm. IV. c.
8, that a prisoner under attachment
for non-payment of costs was not en-
titled to his discharge : {Reg. t. DiU-
ingham, E. T. 1848, MS. cited per
Jones, J, in Doe d. Vancott v. Read, 4
U. C. B. 127), but the Statute 10 & 11
Vic. cap. 15, was in this respect an
extension of Stat. 5 Wm. IV. cap. 8.
However, before 10 & 11 Vic. cap. 16,
the Courts ordered the weekly allow-
ance to plaintiffs as well as defendants
imprisoned for non-payment of -costs:
(Doe d. Vancott v. Read, ubi supra.)
(u) 10 & 11 Vic. cap. 16, s. 2.
8. 00X07.] WEEKLT ALLOWANOB.
debtor shall be deemed to be a prisoner in execution), (v) shall
make oath that he is a prisoner in close custody, (lo) setting
forth on which of the causes of detention above specified, and
that he is unable to find security for the limits, (x) and is not
Torth the sum of five pounds, {y) and in case he is in custody
on mesne process that he is unable to procure bail to the ac-
tion, (z) and that he does not believe the demand of the Plain-
tiff to be just, and for that cause and no other he resists payment
of the same and refuses to confess Judgment for the sum sworn
to, (a) it shall be lawful for the Court from which the process
against such debtor issued, (h) or any Judge having authority
to dispose of matters arising in suits in such Court, (c) to make
498
(v) A prisoner charged in execution
in case for seduction was held entitled
to the benefit" of 6 Wm. IV. cap. 8:
iPtrUnty.O' Connolly, H.T. 6 Vic. MS.
B.&H. Dig. "Insolvent," 14.) But
a defendant rendered by his ball after
a return of non est inventut was held
neither to be in custody on meme pro-
cess nor charged in execution, so as to
be entitled to claim weekly allowance :
(h^man tt al, v. Vandeear, M.T. 2 Vic.
MS. R. & H. Dig. " Insolvent," 17.)
(tc) A debtor in custody under 53
Geo. III. was held to be sufficiently de-
scribed in the affidavit on an applica-
tion for weekly allowance as " a pris-
oner in execution in the gaol of the
Midland District at the suit of the
plaintiff:" {Shucky. Cranston, Tay. U.
0. B. 609.)
(z) Under s. ccciii. of this Act.
(y) A rule for weekly allowance was
granted under 45 Geo. III. cap. 7,
on an affidavit that defendant was not
worth £5, "except his necessary
wearing apparel:" (Malone y. Hardy,
6 0. S. 75.) The Court in this case
considering that wearing apparel was
expressly exempted from being taken
in execution under 11 Geo. IV. cap. 4,
thought it was only reasonable to hold
that the affidavit under 46 Geo. III. o.
7, might be so modified as to give the
debtor the benefit of the exception :
{Ih.) It may be observed that Stat.
11 Geo. IV. cap. 4, is still unrepealed.
With the exception of the amount,
there is a clause in C. L. P. A, 1857, to
the same effect as the 11 Geo. IV. o. 4,
<* The necessary wearing apparel, the
bed and bedding, and one stove and
the cooking utensils of a party against
whom any writ of execution may be
issued, or of his family, and also the
tools and implements of his trade, to
the value of fifteen pounds, shall be
protection f^om seizure under any
execution from either of the said
Courts or from any County Court:"
(section 23.) The affidavit to be
made under s. oco. of this Act by
debtors " who shall have been confined
in close custody in execution three suc-
cessive calendar months" is that ap-
plicant " is not worth five pounds, ex-
clusive of his wearing apparel,'* &o.
(2) See 8. xxii. and notes thereto.
(a) 4 Wm. IV. cap. 3, s. 4.
(6) Since this section applies to
County Courts, the Judges of these
Courts may, as to arrests made under
process of their Courts, grant relief.
(c) A Judge in Chambers may dis-
pose of cases under this section though
he be not a Judge of the Court from
which process issued: (s. cocxy. of
this act ; also Palmer v. Western At-
snrance Co, 28 L. T. Rep. 120.) A
Judge in Chambers had no authority
to act under 45 Geo. III. cap. 7 ; the
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4M
THE OOMMOIV LAW PSOOKDmiE ACT.
*-^
[a. ccxcT.
a rule or order on the Plaintiff (d) at whose suit such debtor
is detained, to paj to such debtor on the third Monday after
the service of such rule or order, and upon each Mondav
thereafter, («) so long as such debtor shall bo detained in prison
at the suit of such Plaintiff for such cause, (/) the sum of ten
shillings; such payment to be made to the debtor or to the
Gaoler in whose custody he is, for the use of such debtor (q)
ihaijeif and in defkult of such payment (A) such debtor shall after aer-
vice of a rule niat or Judge's Summons, to be obtained on oath
of the default, (i) be discharged from custody by rule or order
unless sufficient cause to the contrary be shown ; (y ) Provided
always that such discharge shall not, when the debtor was con-
fined on mesne process, prevent the Plaintiff from proceeding
to Judgment and execution against the body, lands, or goods
according to the practice of the Court, {k) and that such dis-
charge shall not, when the debtor was a prisoner in execution
be construed as a release or satisfaction of the Judgment orothcr
debt or demand, for the non-payment whereof such debtor was
in custody, or to deprive the Plaintiff of any remedy against
the lands or goods (T) of such debtor.
The allow-
anoe; and
howpay-
■bla.
Disc:
not
PtOTlao.
authority was, however, supplied by 2
Qeo. IV. cap. 8, s. 3.
(d) As to apportionment when the
debtor is in custody at the suit of sev-
eral plaintiff's, see s. cozcyiii.
(e) The 2 Geo. lY. cap. 8, s. 3, re-
quired the order for weekly allowance
io be served " on the plaintiff or his
attorney within the district wherein
Bach defendant shall be imprisoned."
This enactment was repealed by 8 Qeo.
rV. 0. 8, which simply made provision
for the service of the order on the
plaintiff or his attorney, intentionalb
emitting the qualification as to place c.
reudence, but was held not to be ve-
trospective : (Shuck v. Craruton, Tay,
U. d R. 606.)
(/) 8 Geo. IV. cap. 8.
(g) Payment for tbe use of the
debtor to a person acting as tornkey
was held to be a good payment under
45 Geo. III. cap. 7 : {Si/de v. Barn-
hart,, Pra Bep. 56.)
(A) The Court refosed under 45 Geo.
III. cap. 7, to discharge a prisoner in
execution, where the plaintiff died and
the weekly allowance was tendered by
a person who had usually paid it, al-
though no administration was at the
time granted: {Beard v. Orr, Dra.
Bep. 253.)
(t) The Court refused under 46 Geo.
III. cap. 7, and 2 Geo. IV. cap. 8, a
rule absolute in the first instance:
( Williama v. Crotby, Tay. U.C.R. 6.)
(/) It would seem that a debtor
who, after having received the weekly
allowance takes Uie benefit of tue lim-
its must notify plaintiff of his retura
to close custody before being entitled
to further payment : (see note p antt
to this section.)
(A) 4 Wm. IV. cap. 3, s. 2. .
{I) 8 Geo. IV. cap. 8.
f . ccxwi'3
XNTEBBOOATOBlSa.
49&
CCXCVI. (m) Whenever any saoh debtor (n) shall apply ^ J ^"^'^ ^*^ ^/ft '
for the weekly allowance, (o) op to be discharged from custody ^ ^^ S ^ '
for the non-payment thereof, (p) it shall be lawful fo'*l»8D!btotnot
Plaintiff at whose suit he is confined, (a) to file interrogatories entiued to
for the purpose of discovenng^any property or effects which to hia
saoh debtor may be possessed of or entitled to, (r) or which S^de^t of
inaybe in the possession or under the control of some other ^roo^
person for the use or benefit of such debtor, or which such shau luTe
debtor, haying been in possession of may have fraudulently ^i^^m-
(lispofled of to injure his creditor, (») and to serve a copy of b^
saoh interrogatories on such debtor, (i) and thereupon and'"'"^*
until such debtor shall have fully answered such interrogatories
apon oath to the satisfaction of the Court or Judge, (u) and
filed his answers and given sufficient notice of such filing to the
tncb-
(m) The origin of this seoUon is 2
Geo. IV. cap. 8, s. 1, and 4 Wm. IV.
cap. 3, 8. !•
(m) Such debtor, i.e. every debtor in
doae custody, &o., encb as described
in the precediog seotion: (s. oozot.)
(o) The next encoeeding section ap-
plies to cases irbere *< such debtor «'-aM
han obtained the order for payiuent of
the weekly allowance," &o.
<p) Under 8. cezcv.
(;) If there be several plaintiffs all
most join in administeting interroga-
tories : (s. cczcTiii.)
(r) Interrogatories in one case were
filed and answered ; defendant then ap-
plied for his discharge upon showing
non-payment of the weekly allowance.
An application by plaintiff to file firesh
interrogatories, and in the meantime to
mupend payment of the weeUy allow-
uoe upon an affidavit that fiirther in-
stmetions had been received by plain-
tiff's attorney rejecting property svp-
posed to have been miade away with by
the defendant, and of which the attor-
ney had no knowledge when he filed
the first interrogatories. Application
refused: (Fyde y. .CumAor^ Dra.R«p.
56.^ It is dear that plaintiff has no
right in any case to file firesh interro-
gi^ries wiUiout the leare of the Court:
pfofoiu y. Eandjfi 6 0, S. 810.X In
s. ccc. there is a proyiuon made for
the filing of "further interrogatories"
in cases under that section.
(«) The subjects iqpon which diaco-
yerj may be had through the instru-
mentality of interrogatories filed under
this section a littie vary from those
mentioned in the original provisions —
2 Geo. lY. cap. 6 ; 8 Geo. lY. cap. 8f
4 Wm. lY. cap. 8. It was held under
10 & 11 Yio. cap. 15, that a prisoner
cannot by asdgning away his effects in
trust for his creditors generally, entitie
himself to hb discharge : (ffilletpie v.
Niekerton, 6 U. C. B. 628; see also
Aiktnt V. PerUland et al, 11 U. C. B.
19.) In the latter case the question
was raised whether a prisoner wha
after judgment made an asngnment of
his property for the benefit of his cre-
ditors generally thereby depriTed him-
self of all right to the gaol limits. No
decision was given upon the point.
(t) It is presumed that service of
interrogatories will be governed by the
same r^es as service of ordinary no-
tices, ordecrs, &c. : (N. Bs. 134, 186.)
(u) The answers must not only be
full but satisfactory: (Sanderton v.
Cameron, E.T. 2 Yic. M.S. B. &H. Dig.
"Insolvent," 18.) A simple answer
of " yes" or " no" to each interrogatory
is not asatisSaotory answer. It mij^tc
i m:
I f
lav"
~'
it
496
THE COMMON LAW PB00EDI7BB ACT.
i
rjf
1,1
« J
I
[s. ooxovii.
Plaintiff or his Attorney, (y) no rule or order for the payment
of snoh weekly allowance shall be made, or if previously made
no order for his discharge for non-payment thereof aball be
made, (w)
•
App.Oo.0. CCXCVn. (aj) Where any such debtor (y) shall have ob-
20.17.0.8. tained the order for payment of the weekly dlowance, (z) tbe
do upon a viva voce examination, bat
is clearly not the mode to reply to a
written question : (Ryan t. Culleny 1
U. C. Cham. R. 229.) Tbe answers of
a prisoner, being styled in tbe cause
and intitled in the proper Court, were
beaded *< Tbe answers upon oath of,"
&o., and proceeded thus " To the first
interrogatory be saith," &c. To the
second interrogatory the answer omit-
ted tbe words «<he saith." To the
fifteenth interrogatory theanswer made
no reference, but bad simply the fig-
ures « 16" prefixed. Tbe jurat stated
that the deponent was sworn, &c.,
«< and made oath that tbe foregoing
answers were true on this 8tb day of
March, 1854." Held the answers were
in form insufficient and tbe jurat de-
fectiTc: (Addy t. Brotue^ 1 U. G.
Prac. B. 284.) Leave to controrert
answers filed was allowed under 2 Oeo.
17. cap. 8; {Montgomery ▼. Robinet, 2
0. S. 606), but reftised under 10 & 11
yic. cap. 16 : (Campbell r. Anderton,
1 U. G. Gham. B. 91.) Still later it
was held that leave to do so might be
fiven ; (Olarkson t. ffart, 9 U. G. B.
48.) Without such leave ** tbe plain-
tiff may be made to lose a debt which
be may be able to show tbe defendant
bis abundant means within bis control
to pay, merely because the defendant
luts given false answers to bis interro-
Satories:*' (per Bobinson, C. J, iA. p.
61.) Payment of the weekly allow-
ance after defendant has filed bis an-
swers is a waiver of any objections
plaintiff might otherwise make to tbe
answers : (Malone v. Sandys '6 0. S.
881.) The Gourt or Judge will not
discbarge a prisoner unless satisfied
that be has no means of support and
has not firvdulently secreted or con-
veyed the property, &o. : (Montgotnen
V. Robinet, 2 0. S. 504.) In one case
the Gourt said, «* We consider that the
interrogatories in this case are not ss-
tisfactorily answered, which means
that we are not in fact satisfied from
tbe defendant's statements that she has
not under her control some means of
satisfying the plaintiff's demand, al-
though £ey may be means which an
execution cannot reach, and which an
assignment would not affect :" {Clark-
ton V. Hart, Bobbison, C. J, 9 U.C.B.
861.)
(v) Tbe object of this provision is to
prevent defendant by delivering his
answers at the last moment ensuring a
default of payment of tbe weekly al-
lowance, and then applying for his
discharge because of non-payment, and
thus tiUung advantage of his own
wrong: {Rey. v. Heathert, 1 U. C.
Gham. B. 520.^ Answers to interro-
gatories were nled and served in To-
ronto on Friday, 20th Augnst. The
weeidy allowance was not paid at Bar-
rio, tbe county town of the ooonty in
which prisoner was confined on Mon-
day, 23d August. Held upon a sum-
mons to discharge the prisoner for
non-payment, that a reasonal^le time
bad not elapsed between the filing of
the answers and the non-payment of
the allowance to entitie defendant to
make the application : (lb.)
(w) 2 Geo. IV. cap. 8, s. 2.
(z) Tbe ori|pn of this section is 2
Qeo. rV. cap. 8.
(y) Such debtor. See note n to i.
ccxcvi.
(z) Tbe preceding section applies to
cases where prisoner " shall apply for
tbe weekly allowance or to be dis-
'.,*"■ J
jceWVUl.] XNTBWlOQATORnBS, 4W
plaintiff at whose suit he is confined (a) may at any time (h) raiag iat«r-
file and serve such interrogatories as aforesaid, (c) and it shall SEtor, At.
be lawful for the Court from which the process issued, (d) or
a Judge as aforesaid, («) on application of the Plaintiff, (/) to
Btav ftirther payment until the debtor shall have sworn to and
iled his answers, (g) and have given to the Plaintiff or his
Attorney four clear days' notice thereof. (A)
CCXCVIII. («) Whenever such debtor (y) is a prisoner in Mm». <*. «).•«- ^T^,^
close custody in several suits or matters, (k) he must make alltaowMr '^ "^ )1 '^
(he Plaintiffs in such suits or matters parties to his applioatlon whu only
! I'.f
«
charged from custody for the non-pay-
meat thereof :" <s. cczcvi.)
(a) If the debtor be in custody at
the suit of more than one plaintiff <' all
Buch plaintiffs must join in administer-
ing iaterrogatoriea :" (s. oozoviii.)
(i) Under the old Statutes it was
beld that plaintiff might file interroga-
tories even after default in payment
of the weekly allowance, so long as the
debtor had not in fact made any appli-
cation for his discharge: {Elwood y.
Monk! Butler t. Thomas, M. T. 8 Vic.
M B.& H. Dig. ''Insolvent," 19.)
Since the C. L. P. A, defendant having
obtuned an order for weekly allow-
anoe and default having been made in
the payment of it afterwards applied
for his discharge. Plaintiff in showing
cause contended tiiat interrogatories
hanng been filed and served previoua
to the debtor's application, he must
answer them before an order could be
Dade for his discharge. Held that the
eases of Edward v. Monk and Sutler v.
Thomat, ubi supra, were clearly i:.
point, and that the C. L. P. A. is not
any more indulgent on this point than
the former practice, and therefore that
the debtor was not entitled to have his
summons made absolute: {Coneoran
T. Taylor, Chambers, Nov. 7, 1866,
n. U, C. L. J. 288.)
(e) At aforesaid, i. e. *' for the pur-
pose of discovering any property or
effects which such debtor may be pos-
sessed of or entitled to, or which may
be in the possession of or under the
GG
control of some other person for the use
or benefit of such debtor, or whioh
such debtor having been in poasessitHi
of may have fraudulently disposed of
to injure his creditors :" (s. ooxovi.)
(d ) See note b to s. oozov.
le) See note e to s. oozov.
(/> t.«. Plaintiff may ut aay tims
file and serve interrogatoHeu, eoAere-
vpon it shall be lawfiU for the Court
or a Judge on his application to stay
further payment of the weekly allow-
ance, &c.
{g) The Court under 2 Geo. lY. e.
8, refused to grant an order for the ar-
rears of weekly allowance which had
accrued pending an nnsuooessfVil ap-
plication by the prisoner for his dis-
charge from custody ; {Moron v. Ma-
loy et al, Tay, U. C. R. 668.) Sher-
wood, J, observed that " the defendant
had made an experiment, of whioh he
must submit to the oonsequenoes :**
(lb.)
(h) i.e. First and last days ezoluaive.
(t) This section appears to be ori-
ginal, though perhaps no more than a
^ubstatttive enactment of what was un-
derstood though not ezpressed in the
old law. It is applied to County Courts.
(y) Such debtor. See note « to s.
eczcvi.
(k) Suits or matters. The word
"matters" is intended to embrace
proceedings not suits, but in which a
party may be imprisoned : thus attach-
ments for contempt issued when no suit
is pending.
I -Aj'
iftWt
^■::;tr*
498
COMMON UkW PBOOXDVBl AOT.
ft. ^ Wit 6
56
I:
•autiadto for the weekly allowance, (J) and he shall only be enUUed to
^Ao.' one weekly sum of ten shillings, although he b in oustodv
in several suits and matters; (m) and in any such case if the
weekly allowance be unpaid, the debtor shall have the same
right as when he is in custody in one suit only, to be disohareed
from, custody in all the suits or matters named in the order for
payment, (n) and the Plaintiffs named in such order must all
be made parties on any application for the debtor's dischurge
on account of non-payment, (o) and all such Plaintiffs must
interroga^ join in administering interrogatories to the Defendant as if
0M«. they were Plaintiffs in one suit, ( p) and 8uoh Plaintiflb shall
regulate among themselves the apportionment of the veeklv
allowance and the arrangement for payment thereof, (a)
Uipo. Ob. o.) CCXCIX. (r) The Plaintiff in any suit («) shall be entitled
Okp.'Sl 8, a. to recover from his debtor all sums paid to him (t) for weekly
nu^^rS- *^^o^*°°®> while a prisoner on metne process, («) and upon
drttoTM"" P'^^ ^^ *^® amount of such payment (v) before ttie proper tax-
ing Officer, (to) such sums shall be allowed as ditibursements
ooita.
11) The nnmbers and names of plain-
tifln can always be aftcertained upon
reference to the Sheriff in whose
county prisoner is confined.
(m) Under the old Statutes it was
held to be no excuse for non-payment
of the weekly allowance pursuant to
order that defendant had an order for
weekly allowance at the suit of another
plaintiff: ( Tnueott et al. y. WaUh et al.
6 O.S. 79.)
(n) Plaintiffs must regulate among
themselves ** the apportionment of the
weekly allowance and the arrangement
for payment tiiereof."
Si) All being boand by the result
being equally interested in preven-
ting that resalt onght of course to be
equally notified of the prisoner's in-
tentions.
( p) It might have been enacted that
it 8honld.be lawfkl for any one of sev-
eral pontiffs to administer interroga-
tories; but had such an enactment
been passed, the door for oppression of
the debtor would have been nnneoessa-
rily opened.
(q) See note m, fupra.
(r) The origin of this seetioa is 4
Wm. IV. cap. 8, s. 2. It is applied to
County Courts.
(«) Where there are several smts
and defendant is in eustody in each
suit, of course he will not be bound to
pay to each plaintiff a sum ^qual to the
i^SSO'egate of advances made by all tiie
plaintiffs.
(() t.e. Each plidntiffshall be entitled
to recover what As paid to the debtor.
(u) It is necessary for a defendant in
custody on mesne process, ivhen apply-
ing for the weekly allowance in his
affidavit, amongst other things to swear
that <* he is unable to procure bidl to
the action :" (s. coxov.)
(v) It is not stated in what manner
proof shall be made. The usual mode'
of proof before the Master is by affi'
davit, which it is presumed is the mode
here intended. The proof must of
course be to the satisfaotioh of the
Master.
(w) ** All proceedings to final judg-
I. eee.]
DISOHABOI AITXB THUU MONTHS.
499
in
the suit, and be taxed as part of the costs thereof, (x)
GCC. (jSf) Any debtor according to the intent and meaning Mm. a. c.) .
of this Act, who shall have been confined in close custody in o«p. "' ' ^fttA^^jjud
execution («) for three successive calendar months, (o) may Debtor in xz^^'^!x9
(on giving to the party at whose suit he is a prisoner, or to his {h!^
iOT«r
?^
r.>-,«
Ir
^'"■l
Attorney, fifteen days' notice of his intention to apply to be SbMn biS''
discharged from custody), (6) upon proof of such notice, and SSftl"* *"
upon making oath, (c) that he is not worth five pounds exclu-*"*"'™"'
give of his necessary wearing apparel and that of his family,((f )
and their beds and bedding and ordinary household utensils,
not exceeding in the whole the value of ten pounds, (e) and
that he hath answered all interrogatories which have '•een filed
k the Pluntiff, and hath given due notice of such anbwers (or
if no interrogatories have been served, that he hath not been
ment ihall be carried on in the office
ftom which first prooesa issued :" (s.
ix.) Before the entry of final judg-
ment costs should be taxed, or other-
wise will be considered as waived:
\^mt 1. Deny, 4 Q.B. 686.) Incases
of taxation by a deputy clerk of the
(>own, a revision as of course may be
hid upon giving two days' notice to
the opposite party : (s. xii.)
(z) And if taxed before judgment
entered upon the roll, are recoverable
like other costs in the cause.
(y) The origin of this section is 6
Wm. IV. cap. 8, which was in great
part taken from Eng. Stat. 48 Oeo.
Ill, cap. 128. The section though in
many respects resembling the original
Statutes, is in the main original. It
is applied to County Courts.
(z) A debtor in custody on mesne
process cannot obtain his discharge
under this section : ( Wright et al. v.
HaU, Chambers, Feb. 12, 1857, Bums,
(a) The relief under this section can
only be had where defendant has been
in close custody for three successive
calendar months, that is to say, lain
in gaol without benefit of the limits
daring that period : (see Denham v.
Talbot, 6 0. S. 79.) The 10 & 11
Fio. cap. 16, section 8, authorised
the discharge of a prisoner "in close
custody or other euttody,!' upon snoh
Erisoner giving fifteen days' notice of
is intention to make application.
(6) ^M. first and last days inclusive:
see 2 Geo, IV. cap. 1, s. 22 ; see also
N. R 166.
(e) The affidavit should not be
" sworn sooner than the day after that
on which the notice of application
shall expire," and should in all oases
state "whether any interrogatories
were served before the expiration of
the fifteen days' notice, and if ^v. Trhe*
ther the answers thereto upoii uMth
have been duly made and filed, and
when notice thereof wasdven:" (N.
B. 148.]
(d). Since 10 & 11 Vic. cap. 16 is
repealed, no debtor can now apply to
be discharged upon a mere aJBdaidt
that he is not worth £6 exclusive of
wearing apparel. A debtor so dronm-
stanced if in custody on final pro- '
cess must, with a view to his dis-
charge firom custody, take the pro-
ceedings made necessary by this sec-
tion: (TVavM V. WatUeat,. Chambers,
March 19. 1867, McLean,. J., III. U.C.
L. J., 89.) 1
(«) By 10 & 11 Vic. cap. 16, it was
enacted that any person in custody in :
execution for debt, &o., might giva^
^J^^
m
k
Fft , !
i :.;
w.
i
500
THC COMMON LAW PBOOIDUBK ACT.
;■ »
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te
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[ccc.
gKtorita.
■erred with any interrogatories), (e) apply to the Court from
which the process on which he is confined issued, (/) or to a
Judge as aforesaid, (g) for a rule or summons to show cause
why he should not be discharged from custody, (A) and xmn
the return of such rule or summons, and where there are inter-
rogatories, if the answers thereto are deemed sufficient by such
Court or Judge, («') such debtor shall be by rule or order dig-
charged from custody, and such discharge shall have tho same
and no other effect as a discharge for non-payment of the weekly
ProTiM: ibr allowance ; (J) Provided that the Court or Judge may on the
return of the rule or summons, if the Plaintiff has already filed
interrogatories (which he is hereby authorized to do in like
manner as on an application for the weekly allowance), (it) and
if further inquiry appears requisite t'urthe ends of justice, allow
to the Plaintiff a reasonable tim& to file further interrogatories
and for the debtor to answer them beforu the rule or summons
be finally disposed of; (l) Provided also, that the Court or
Judge may make it a condition of the debtor's discharge, tkat
he shall first assign and convey to the party at whose suit he
is in custody any right or interest which he may have or be
presumed to have in and to any property, credits, and efifects
other than the wearing apparel, beds, bedding, and household
utensils before mentioned, such aaoignment or conveyance to
ProflM:
'iMlgnment
by debtor
lujba n>
aoued.
fifteen days notice of application for
his discharge, and tliat upon proof
thereof, &o., and npon making an affi-
davit, &o., the Court or a Judge might
order his discharge, provided he should
have satisfactorily answered interroga-
tories which the creditor might cause
to be filed and served before tiie expir-
ation of the notice. On 14th August,
being Saturday, an application was
made under this Act by a debtor in ex-
ecution for his disohnrge. On 80th
August, being Monday, plaintiff filed
interrogatories : Held that the day of
service was to be excluded in the com-
putation of the fifteen days, and that
tiien the last day being a Sunday or
•ditt non, plaintiff had all Monday, 30th
August, to file interrogatories : (Bulh-
liy et al.y.Origge, 1 U.C. Cham. R. 60.)
(/) See note b to s. ccxct.
{ff) See note e to s. coxct.
(A) The Courtunder 6 Win. lY. cap.
8, only granted a rule niti or a Judge
a summons to show cause in the first
instance : {Kinff y. Keogh, 6 O.S. 826.)
(t) The expressions "if the answers
thereto are deemed sufficient by snch
Court or Judge," are of the same im-
port as *'to the satisfaction of the
Court or Judge," used in s. cczcvi.:
(see note » to s. ocxcvi.)
(y) See note I to s. coxov.
{k) See ss. ccxcv-ccxctL
{I) Additional interrogatories may
at all times be filed with the leare of
the Court or Judge.: (see note u to i.
coxcvi.)
rogatories may
th theleaTeof
jee note u to >•
I. ocoi.]
GAOL LIMIT8.
601
1)0 approTed by the Court or Judge ; (m) Provided lastly, that Pro?iw: if
if it shall appear that the debt for which suoh debtor is con- ttom ituA,
fined was contracted by any manner of fraud or breach of trust, tnMt, *o.
or that he is confined by reason of any Judgment in an action
for breach of promise of marriage, seduction, criminal oonver-
latioD, libel, or slander, (n) the Court or Judge may order the
Applicant to be re-committed to close custody for any period
not exceeding twelve calendar months, and to be then dis-
charged, (o)
CCGI. (|)) The limits of each County and Union of Counties (4iv. ox C)
to ban
10 ft 11 Vio. oap. 16, 8. 4.
This part of the seotioa appears
, .J DOW and original.
(o) Gommittai to close ciistody under
tiie oiroamstanoes mentioned in the
Notion can only be considered in the
light of a punishment more than a
means to enforce payment of the d-Jbt
dae. The imprisonment for a period
••not exceeding twelve calendar
months" is similar to the period nam-
ed in 6 Wm. IV. oap. 8, s. 4.
Ip) The origin of this seotion is 10
& 11 Vic. cap. 16, s. 1. In England
the regulations of the Court of Quoen's
Bench in regard to the custody of
debtors in execution were before 1842
the same that now prevails in Upper
Canada. The Queen's Bench prison
being under the control of the Court
of Queen's Bench, that Court by vari-
ous rules published from time to time
from the reign of Qeorge I. downwards
extended the limits of the prison by
declaring that certain spaces in its vi-
cinity should form part of it. The
Sheriff had authority under these
rules to keep debtors in execution
either within the walls of the prison
or anywhere else within the limits,
tod was not liable for an escape nnless
the debtors passed beyond the limits.
But as the Sheriff was responsible for
the safe keeping of the debtors, being
Usble even when they broke the walls
of the prison, he was of course not
compelled to give them the indulgence
of any limits beyond the walls, unless
they made him secure by such seouri-
ties as he would accept. In tiddng this
security, whether by bond or otherwise,
the Sheriff did nothing illegal. So the
law appears to be now in Upper Ca-
nada under the C. L. P. A. So far as
regards debtors in custody, the limits
arc made part of the gaol, and Uie She-
riff by letting the prisoners enjoy them
is not suffering an escape, even it he
should take no security. As he incurs
great risk, however, in relinquishing
the security which the walls of the
prison afford, he is not bound to do so,
unless the prisoners shall indemnify
him. The law in Upper Canada
stands in this respect preoisely on
the same footing as in England be-
fore the passing of Statute 6 Vic.
cap. 22, which abolished the Queen's
Bench prison: (s. 1), and also abol-
ished the limits or liberties of Uie gaol
as they are described in that Statute :
(s. 12.) The Queen's Bench extended
the limits of the prison by their rules
of Court, and in Upper Canada the
Legislature has done the same tiling.
If therefore in Upper Canada, the she-
riff having taken his prisoner, and had
him in custody, place him upon the
limits instead of keeping him within the
walls, he does nothing wrong: ^see
Campbell v. Lemon, Robinson, C. J, 2
O. S. 406. ) For all purposes of arrest
the limits constitute the gaol, and the
debtor while confined within the limits
is in legal custody: (/&. Maoaulay,
J, p. 419.) But so far as the debtor
is concerned, there is still a difference
between these limits and the actual
/ '"'
'1 v'.
i
I
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r
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m
I ii
602
THl OOMMOW LAW PROOKDURB ACT.
[■• cccii.
tw^iat^ W4u,^min Upper Canada for judioial purposea, shall be and are herebv
i M ,' ', -
'iM
if' I'
V.
omidiim to ^^^'^'^^^ ^ ^ ^^^ limits of the Gaoli of such Countii
toUmi(i«( UnioDi of Oounties respeoiively. (q)
i« or
U Om. IT.
CCCII. (r) The Sheriflf of any luch County or Union of
Sol. The Sheriff may allow the
btor to ei\)07 them or he m%j not ;
and in this rtapeot he hM it in hii
S)W«r to show the debtor ease and
▼or, for he may without ezaoting
any seonrity or any consideration per-
mit the debtor to go ont upon the lim-
its if willing to inour the rink. On the
other hand, he may refuse to do so
unless saUsfkotory security be offered.
The sheriff under some oiroumstanoes
tnay make this power of sranting or
withholding the pririlege of the limits
the occasion of that kind of extortion
which the 28 Hen. IV. cap. 9, was
intended to restrain, and so render
liimself liable to the penalUes of
extortion. If, for instance, he should
in consideration of allowing the limits
exact a bond from the prisoner
that he would conyey to him a certain
lot of land or pay him absolutelv a
certain sum of money, such an obliga-
tion would be undoubtedly roid. The
objects and the extent of the Statute
28 Hen. VI. are fully stated in Z>yer
▼. Manningham, Plowden, 67. If the
sheriff upon the occasion of allowing
the limits, will take such a security as
he may enforce, he must take such an
one as is contemplated by the next
succeeding section : (Leonard y. Me-
Bride, Robinson, C. J, 2 O.S. 2.) As
to the history of the gaol limits, show-
ing their gradual extension, see note n
to s. ccxcT. This section (s. ccoi.) is
applied to County Courts.
(a) As to counties united fbr judi-
eial purposes, see 12 Vic. cap. 78, s.
6. in Stat 18 Vic. cap. 69, intituled
*'An Act milking certain provisions
rendered necessai^ by the separation
of the Counties of Halton and Went-
worih," there is a provision which no-
body would expect to find in an Act so
intitled. It is as follows—" And be it
enacted, for the purpose of preventing
injustice to parties, that in any case
where a person shall have heretofore
or shall hereafter be admitted to th«
limits of any Union of Countlee in the
manner prescribed by law, and wlien
such Union shall have been heretofore
or shall hereafter be diBsolved,or where
any one or more Counties shall htve
been heretofore or shall hereafter be
separated flrom suclti Union after tuoh
admission, then and in every such ease
the said person shall be held to retain
the right to travel and reside in anv
portion of the said Counties, as if no
such dissolution or separation had
taken place, and the said person shall
not be held by reason of such travel or
residence to have broken any bond or
condition thereof, or to forfeit any ae-
cnrity given for the purpose of obtain-
ing the benefit of such limits. I'rovided
always that in case when prooeedion
at law have been instituted before the
passing of this Act against any person
or his or her sureties by reason of
such person having travelled from one
County into another County of the paid
Union, or by reason of his or her bar-
ing continued to reside in one County
of the said Union after any dissolution
or separation, such legal proceedings
may be continued and prosecuted until
the payment by the defendant or de-
fendants of the plaintiffs' costs of suit
as between attorney and client, and on
such payment the said proceedings
shall be discontinued :" (s.)
(r) This section, though resembling
in part each of the repealed Statutes
11 Geo. ly. cap 8 ; 10 & 11 VJc. cap.
15; 16 Vic cap. 176, cannot be said
decidedly to be a re-enaotment of any
one of them. The sheriff under the 1 1
Geo. IV. cap. 8, was enabled to take a
bond to the limits when giving a debtor
the benefit of the limits to seciJre him-
self from risk. Of the sufficiency of
this bond the sheriff was obliged to
judge, and the responsibility of a
it'
I. ceoii.]
BOND TO THS LIMITS.
608
Ooonties may (•) take fVom any debtor confined in the IQaol e. s. lo a u ctm i>is^ fy^
thereof in execution or upon mesne process, {() a bond with i« y.*t na ' ** "* '-^
not less than two or more than four sufficient sureties, (u) to sbwurmav
be jointly and severally bound in a penalty double the amount ftom'S^r'
for which such debtor is so confined, (o) conditioned that such bl''^i h!S!p
ff 2-4^2^
brtaeh he was obliged to Msume. But
to reliere him of this responsibilitr 10
1 11 Vio. OKp. 16 was passed, wbioh
labftituted a recognisance of bail for
the bond to the limits. The reoogni-
iiDoe when taken was filed with the
Clerk of the Crown or bis dejputy in
the Court in which the action was
pending. After being filed proceed*
iDgi were bad for its allowance, to
which proceedings plaintiff was made
a psrty. When allowed, the Clerk
with whom the recognisance was filed,
mated a certificate thereof, which
was the sheriff's authority for giving
the debtor the benefit of the limits:
(lee MUUr f. Jamet, 6 U. C. R. 216 ;
rWttr. Pitch it al, 7 U. C. R. 1.)
Between the time that the debtor was
arrested and the time when his reoog-
nlxaaoe to the limits was allowed, an
interral of several days necessarily
elapsed, daring which the sheriff not
having any security against risk was
accustomed to imprieoa within the
wi^li of the gaol. For remedy 1 6 Vic.
cip. 175 was passed, which enabled
the sheriff before the allowance of the
recogniiance of bail to take a bond for
his own security, and forthwith give
to the debtor the benefit of the limits :
(88. 7, 8.) The effect of the section
here annotated is to restore the law to
its early etate by making the sheriff
responsible for the conduct of a debtor
on the limits. The sheriff for his own
security may at any time take a bond
with sureties, conditioned that the de-
fendant shall remain within the limits,
&o. In the event of a breach plaintiff
may either sue the sheriff or take an
assignment of the bond. The recogni-
iance of bail to the limits, which as a
step in the cause had its existence
under 10 & 11 Vio. cap. 16, is abol-
ished. The Court will not order an
tameretur to be entered on a bond to
the limits upon the ground that the
debtor has obtained a final order for
bis discharge in an Insolvency Court :
(Nordheimer v. Orov«r, Chambers,
March 11, 1867, Robinson, C.J, III.
U. C L. J. 74.) In the event of an
action being brought by the sheriff on
the bond, if the Court would do anr*
thing more than stay proceedings In
the action it would be to order the bond
to be delivered up to be cancelled i {lb.)
(<} The sheriff being responsible for
the safe-keeping of prisoners oommife-
ted to his custody, and liable even if
they break the walls of the prison, is
not of course compelled to give them
the indulcence of any limits beyond
the actual walls, unless the prisoner
make him secure by such security as
he will accept: ^see note/> to s. occi.)
Read in connexion with this seo. ss.
26,26, of C.L. P. A., 1867.
(/) It was held under the old stat-
utes that a debtor in custody on mesne
as well as final process might have the
benefit of the limits ; (Montgomery t.
Rowland, £. T. 2 Vie. MS. R. k H.
Dig. •• Limits," I, 2 ; Chgg v. MeNab,
1 U. C. Prao. R. 160), and that a pri-
soner in custody for contempt might
also have that benefit : IRex v. K^d^
H. T. 6 Wm. IV. MS. R. & H. Dig.
« Limits," I, 1.) Before the passing
of 10 & 11 Vio. cap. 16, it was consi-
dered that after the return of an
attachment for non-payment of money
the sheriff might of course take bail to
the limits : (Lane v. Kingtmill, 6 U.C.
R. 679.)
(u) The Cfourt refused to make an
attorney pay the costs in an action on
a bond to the limits, though he had on
a mere parol authority executed the
bond in the name of and upon behalf
of one of the obligors : (Leonard t.
Olendentnen, M.T. 1 Wm. Iv. MS. R. ft
H. Dig. "Attorney," IL (8) 4.)
(v) By the common law a sheriff
might have taken a bond flrom snreties
, »
504
THE COMMON LAW PROOEDVBS ACT.
[s. eccii
i
[1^
T iH|
B
iWt
|H
^^^H
W
1
m
m
,^d^
P<
*•;-• r
h
IF'-
tbeUmtto, debtor shall remain and abide within the liuiits of snob Ganl
ftii ordan of and shall not depart therefrom, unless discharged from custodv
popart, .^ ^^^ ^.^ ^^ matter upon which he was so confined by due
course of law, {w) and also that such debtor shall and will
during all the time that he shall be upon the limits subject to
such custody, observe and obey all notices, orders, or rules of
Court touching or oonoerning such debtor, or his answeriD*
interrogatories, or his returning and being remanded into close
custody, and that they will produce such debtor to the Sheriff
jnitMestioB^hen they or either of them shall be required, upon reasonable
tfes. notice, (2c) and the Sheriff may also reqube each surety whea
there are only two, to make oath in writing, to be annexed to
to indeBiBify him against the conse-
qaeaoes of any indulgenee he might
ohooee to show to a prisoner in exeoik>
tion: (see note/' to a. eooi.)
(w) The oondition that the debtor
**Hiall renutm and abid« within the
limits of the gaol," evidently intends
eases only where at the time of enter-
ing into the bond the debtor is wttkim
the limits. The condition, teo, tiiat the
debtor shall not "depart" from the
limits strengthens this opinion. These
expressions are in effect the aame as
the langaage of 11 Geo. lY. cap. 8,
vndw which it was held by a majo-
rity of the Court that a debtor
Who had never been on the limits
eovld never depart therefrom within
the meaning of the Act, and that a
bond so conditioned given under such
dronmstaacea was void : {Campbell r.
Lemm, 2 0. S. 401.) If the debtor
depart from the limits of the gaol an
aoti<Hi may be Inwught by plaintiff
eitiier against the sheriff or apon an
assignment of the bond against the
soreUes: (see note r, «t(/ra.) In such
an action the departure must be dearly
alleged and as dearly proved. A wil-
fal departore is meant. Prima facie a
wilful departare is proved by addno-
kig evidence to show that the debtor
Ad 111 llMSt go oat of the limits, which
now eonsist of the whole of the
Comty or Union of Coanties in
which the gaol is dtuate: (s. ccci.)
But where it is shown that the debtor
ft MJstalMn aft t* boondariea iu a
doubtful case, and has no idea of
transgressing the limits, it is not clear
that upon sach facts a departure can
be inferred within the intent and mean-
ing of an ordinary bend : (Leuit v
Grant, 1 U. C. R. 290.) However if
the debtor, transgress the limits' by
going from one County into another
though informed that be isnettrans^
gressing the limits, if there be really
ne doubt as to boundaries, the bond is
broken : (Bedden v. Oregory, 10 U.C.
B. 884.) It would seem that if the
debtor transgress the limits in obedi-
ence to the call of paramount duty
for instance, in obedience to tiie com-
mand of militia officers to quell a riot,
such departure from the limits i»
not a breach of the bond : (Dmglat v.
Mwrehisonet al, 6 0. S. 481.) An ad-
mission by a debtor that he did depart
from the limits has been held to be no
evidence after his death in an action
against his sureties for breach of the
bond to the limits : (Freeltnd v. Jona
et al, 6 0. S. 44.) Where in such aa
action it was proved that the debtor
had been seen fifty yards beyoud the
limits, and the jury notwithstanding
found for the defendants, a new trial
was granted on payment of costs:
iChetley v. McMillan, S T. 8 Tic. MS.
I. & H. Dig. "New Trial," I, 8.)
(x) When a sheriff is legally called
upon by order of the Court to re-com-
mit to close custody a debtor whom he
has admitted to the limits, his failnre
to obey the esder is an esespe. Ei»
••• 1
.eeouij
BONI> T0> THS LIBIITS.
60&
ike bond, (y) iih»i ke is a freeholder or honsebolder ia some
part of Upper Canada, Btating where, and is worth the sum for
f bioh the debtor is in custody (naming it), and fifty pounds
more over and above what will pay all his debts, (z) or where
(j^gn WW more than two sureties, then that each surety shall
jBike oath as aforesaid, that he is a freeholder or householder
ig aforesaid, and is worth one-half the sum for which the debtor
is in oostody (naming it), and fifty pounds more, over and
alwve what will pay idl his debts, (a)
OCCIU. (6) Upon receipt of such bond, (c) accompanied by (Am. a>. c.) cv^ ; 'X7^
tn affidavit of a subscribing witness of the due execution cip. ^vT ' "^ '/'^i^
thereof, (d ) and by the sureties* affidavits of solvency, (e) if re- on neeiiit of ^ '' '* '
qoiied by the Sheriff, (/) it shall be lawful for the Sheriff to ^ ^^S?*
1
I ,
deelufttioB that he oaiinot find the
debtor ia eyideifte of an escape. After
• debtor hM been once drprWed of the
linitB hj order of the Court, his con-
tinMDoe open them after the sheriff
kaa ksdreuonable notice of the order,
ia •• niwh an escspe as if there were
BO limits b^ond the iralls of the gaol.
It oooseqnentlv becomes immaterial
Tkether the debtcr was within or
trithont the limits after the period
vbea die slKuriff ought to have had
him in dose cnstodj. The provisions
ef 8 ft 9 Wm. Ill- cap. 27, s. 7, are in
foree in Upper Canada. When a |Mri-
Nner is no k>nger entitled to the Um-
itB, the sheriff is bound to prodooe him
in twenty-fonr honrs, as in England :
(aee Wragg ▼. Jorvif, 4 0. S. 817.)
(y) Where a blank for the amount
if Uie debt had been left at the time
^tbe execution of a bond to the lim-
its, which blank was afterwards, with
the assent of the obligor thongh not in
his presence, filled up according to the
indorsement in the ea. ta. under which
the arrest was made, held not safficient
to justify a nonsuit of plaintiff Upon an
inae of non ett factum : {Leonard t.
Jftrri^, Dra. Bep. 294.)
(a) The aJBdavit may be in tiiia form
-%le of Court and Cause. We, A. B.
it, Ac., G. D. of, &o., do severally
make oath and say as follows, First,
I, deponent, A. B., de make oath and
say, I am a fireeholder or householder
iat the ease may be) residing at, &o.»>
cr '< in respect of freehold estate at,"
(0., depenmt mutt thow kimtelf to b»
a freeholder or houeeholder in Upper
Canada, and etate "where"} and am
worth the sum for which the defendant
in this cause is in custody, that is to
say, £ — {naming the mwi), uid Mtf
pounds more over what will pay my
just debts. Secondly. I, deponent, C.
D., do make oath and say that I au,
&o. {aebrfore.}
(a) The affidavit in this case may be
in the same form as the preceding; with
the alteration of the number of sure-
ties and the respective amounts of se>
ourity.
(6) The origin of this section is s. ft
of 11 Oeo. lY. cap. 8. It is ^plied
to County Courts.
(e) i.e The bond mcnti<med in tha
preceding section (ceoii.)
{d ) The affidavit may be in this form
—Style of Court and Caute—I, A. B.
of, &o., do make oath and aay that i
was present and did see tlM anaezed
bond duly signed, sealed, and delivered
by the therein named C. TH.^ E» F., Ac^
the obligors, and that I am a subenrib^
ing witness to the same.
ie) See note » tupro.
If} The bond being ferthe security
of the sheriff, it is for him to judge of
its sufficiency, which he may do eitiiev
f
I i ;'l
..!
i
■ i lei
J
ti
m
V 'Mi
506
THE OOMnON LAW ntOOEDVBB ACT.
[a. ccoiy,
may aUow permit and allow {jgf) the debtor to go oat of dose custody
(hfliimitt, in Gaol, into and upon the Gkol limits, and so long as such
tN^'ukUe debtor shall remain within the said limits without departing
*'*°'*" therefrom, and shall in all other respects observe, fulfil and
keep on his part the condition of the said bond, such Sheriff
shall not be liable to the party at whose suit such debtor was
confined, in any action, for the esc&i^e of such debtor from
gaol, (h)
Afw siTTh « rv- <4fip. ». c) CCCIV. (t) In case the Sheriflf shall have good reason to
iftheMu^ apprehend {J) that such sureties or either of them, have, after
ke
.11
ml
if! '
Mc
\H
of his own knowledge or by means of
the affidavit of solvency.
(if) In the event of a breach of the'
eondition of the bond, the sheriff may
sue the sureties upon it, or if requested
may assign the bond to plaintiff so as
to entitle plaintiff to sue upon it : (s.
ecov.) If the sheriff sue, his action
may be brought even before he has
been sued for the escape or paid any
money upon aeooant of it : (Ruttan v.
WiUon tt al, 8 Vic. MS. R. & H. Dig.
"Escape," 22.) In such an action it
is not neoessury for the sheriff to show
tiiat he has sustained any pecuniary
damage : (Kingtmill v. Oardirur et a/,
1 U.G.R. 228.) One of the sureties of
a debtbr to the limits hearing of the
debtor's escape, paid to the sheriff the
amount of the debt and costs for which
the debtor was imprisoned, exclusive
of the sheriff's own fees. The sheriff
then sued the remaining obligor named
in the bond to recover from him the
amount of costs in an action which the
creditor had brought against him, the
sheriff. Held that after receipt by the
sheriff of the money paid by the first
mttitioned obligor Uie sheriff could not
recover for those costs, since he ought
to have paid over the money to the cre-
ditor at once instead of alio wing the ac-
tion to proceed for the recovery of it :
{Cwbett V. Lake, 6 U.C.R. 454.) In an
action by a sheriff on a bond to the lim-
itsif the defendant plead that the debtor
left thelimits but afterwards returned to
tiiom and always remained on them after
his return, the sheriff may without
new assigning, take issue on the sab-
sequent rem«i.ining. However, this he
cannot do, unless the defendants by
their plea admit the bond to have been
broken before the debtor's return, be-
cause otherwise the plea would amoaat
to the general issue : {Cameron v. Jfe-
Ltod tt al, T. T. 4 Vic. MS. B. & H
Dig. " Sheriff," IV. 1.) The sheriff
declared that the debtor left the limits
in February. Plea that plaintiff as
sheriff removed the debtor in Novem-
ber and that he returned to the limits
and always afterwards remained there-
on. RepUoation that the debtor did
not always afterwards remain on the
limits. Issue joined and verdict for
plaintiff. Held that the verdict accor-
ding to the time stated was consistent
with plaintiff's right and that the issue
being on the subsequent remaining
only, there was no ground for arrest of
judgment: (/ft.) Nondamnificalut'vi
no answer to a declaration on a limit
bond containing specific conditions:
(Kingtmill v. Oardiner et al, 1 U.C.B.
228.)
(h) See notejp to s. ccoi.
m This section appears to be new
ana original. It is applied to Goantj
Courts.
(/) "In case the theriff shall have
good reason to apprehend, &q." All
these sections as to insolvent debtors
are consistent in treating bonds to the
limits as direct securities to the sheriff
to cover his responsibility to plaintiff.
t. owv.]
INSOLVENCY Off SUBETIBS.
607
entering into such bond, (k) become insufficient to pay tbe ^}JJT*
tmonnt severally sworn to by them, (l) it shall be lawful for*«>-i M»*rt|r
him again to arrest the debtor, and to detain him in close cus-*^ debtor,
tod;/ (m) ^°^ ^^^ sureties of such debtor may plead such arrest o/^ ^
and detention in bar of any action to be brought against them
upon the bond so entered into by them, and such plea if sus-
ttdned in proof shall wholly discharge them from such action ;(n)
provided always, that such debtor may again obtain the benefit provin.
of the Oaol limits, on giving a new bond with sureties, as {y ^
aforesaid, to the Sheriffr(o) ^^^
CCCV. {p) Upon any breach of the condition of such bond,(g') Upp. q>. c.)
the party at whose suit the debtor is confined may require the cap. a, mo. 1;
Sheriff to assign the same to him, (r) which assignment shall i76ym.*io.'
(k) i. e. The bond for ivhich provi-
rion is made in s. ccoii<
(2) See note e to s. occiii.
(m) See note j> to s. ccxcv.
(fl) And this whether the action be
at the suit of the sheriff or his assig-
nee suing under s. ccct.
(o) See 8. cccii.
Ip) The origin of this section is 11
Geo. IV. c. 3, s. 6. It is applied to
Ccnnty Courts.
(q) It would seem thatihe bond will
not be void altogether although part
of the condition be contrary to the sta-
tute: (Stebbina v. 0' Grady, 6 0. S.
742.) Where in a declaration on a
bona to the limits the condition set out
was that the debtor should not depart
from the limits, and the defendant on
oyer showed the condition to be that
the debtor would remain on the limits
until payment of the debt or should be
legally discharged. Held a variance :
(MeOuire v. Pritiffle, M.T. 8 Vic. MS.
R. & H. Dig. " Limits," II. 8.) Now
that oyer is abolished (s. civ.) and
that all amendments " necessary to the
determination of the real question in
controversy" between the parties may
be made (s. ccxci.), it is doubtful how
far the foregoing case can be deemed
an abiding authority.
(r) It is a general maxim of law t^ at
a ehote in action cannot be assigned,
^,*'iw'^
^/ :Mw
»?'' ti
and that an assignee cannot sae there-
on. Bail-bonds were made assignable
by St. 4 Anne, c. 16, a. 20. Since that
Statute most oases in the books are
between the bail and the sheriff's as-
signees. Antecedently the action was
necessarily brought by the sheriff
himself or at least in his name. Bonds
to the limits were in Upper Canada
first made assignable by Statute 11
Geo. IV. cap. 8, s. 6. The authority
to assign under the Statute of Geo. IV.
was on the debtor ** withdrawing or
departing" from the limits. It is under
the section here annotated '* upon any
breach of the condition of such bond."
A bond, however, either before or after
breach of the condition may be deli-
vered up to be cancelled : {L« Meaurier
V. Smith, Maoaulay, J, 2 O. S. 486.)
If after an escape and before assign-
ment of the bond, the sheriff accept
the debtor from his sureties and give
up the bond to be cancelled and it be
cancelled accordingly, the sheriff dis-
ables himself from afterwards assign-
ing it : {Jb.) The bond is annulled by
cancelation, so that it no longer sub-
sistfl and not subsisting cannot be as-
signed : (lb.) But a mere surrender
to the sheriff after breach neither
cancels the bond nor bars the remedy
upon it : {Shaw v. Evatu et tU, Dra.
Rep. 14.) The bond therefore may in
such case be assigned and oonvey to
J ^j. iii*:
nl
I \u.
!
■f -T'
! . ti ■>- C^
*,' ?
< '*«!
?'.'
508
Inoaieof
breaeh,
SiMriffiiuy
IwrMuInd
toMUgn tlu
Bond, and
on doing ao
durilbedhh
oharged
ftom ItobiU-
THE COMMON LAW PROOBDUBB AOT. [s. COCT
be made in writing, under the seal of the Sheriff, («) and at-
tested by at least one witness, (t) and the assignee of the
Sheriff or the executors or administrators of such assignee mav
maintain an action in his or their own names upon such
bond, (u) which action the Sheriff shall have no power to re-
lease; (v) but upon executing such assignment at such request
the assignees a good right of action
against the sureties : {lb.)
(«) The assigment may be in this
form — I, A. B. of, &c.. Sheriff of, &c.,
within named, have at the request of
C. D., the plaintiff, also within named,
assigned and by these presents do as-
sign to him, the said C. D., the within
bond to the limits, and all benefit and
advantage arising therefrom, pursuant
to the Statute in that case made and
provided. In witness whereof I have
hereunto set my hand and seal of office
this — day of, &c.: (Chit. F. 6 £dn.
284.)
(t) An assignment of a bail bond
under 4 Anne oap. 16, s. 20, mast be
made in the presence of two credible
witnesses. Sheriffs should note the
di^erenoe in the practice, and be
earefal to observe it. Unless the as-
signment in each case be conformable
to what the Statute authorizes, it will
be void. The right to assign is purely
statutable, and a right which is, too,
at variapoe with the common law :
(see note r, tupra.)
(«) In an action on a bond to the
limits whether at the soit of the sheriff
or of his assignee it should be shown in
express terms and not merely by impli-
cation that the defendants became
bound : {Douglas v. Murehiton et al, 6
O.S. 48. ) In such an action if the sheriff
sue it would appear that he is under
no obligation to disclose the condition
of the bond in his declaration, but
may ae in other cases between ordinary
parties declare upon the bond simply :
(Leonard v. MeBride, Robinson, C. J,
8 O. S. 8.^ But when an assignee
sues, he being enabled only by statute
so to do, must by inducement state the
judgment ea. aa., &o., and so lay a
foundation for the sheriff's right to
assign and his, the assignee's, right to
sue. Without these circumstances
sues by special leave of the statute
The one requires a substratum for hig
suit, the other does not : {lb. per Mac-
aulay, J, p. 9.) If a sheriff on suinit
upon a bond to the limits declare upon
it according to its legal effect, which
he may do, it is not very clear how
much or how little of the original pro-
ceedings must be made to appear in
the declaration : {lb. p. 1.) It is no
plea to an action by the assignee that
the debtor before the assignment of
the bond left the limits without the
knowledge of defendants, and after-
wards and before the commencement
of the action returned to the limits and
still continued thereon: {McMahony,
Mattera et al, M, T. 7 Vic. MS. R. &
H. Dig. " Limits," II. 14.)
{v) Even in the case of a chost in
action not made assignable by statute
the assignor will not be suffered to give
a release in fraud of his assignee:
{Rowland v. Tyler„ M. T. 6 Wm. IV.
MS. R. & H. Dig. "Release," II. 1;
Barclay v. Adatr, Chambers, March 6,
1867, III. U.C.L.J. 88.) In an action by
the assignee of a chose in action in the
name of the assignor, the Court set
aside a plea of release so given and
ordered that it should not be made use
of at the trial : lib.) When a bond to
the limits has been assigned by the
sheriff, his assignee is entitled if the
original debtor were in custody on
final process to recover the amount in-
dorsed on the ca. «a., together with the
sheriff's fees and interest : (Callagher
V. Strobridge, Macaulay, J, Dra. Rep.
168.) And if plaintiff in such' a case
there is nothing to show the right of
the assignee to sne, and on general
demurrer his declaration would there-
8.eecyi.] stjrrbnbxb or pbinotpal. 609
the Sheriff shall be thenoefbrth discharged from all liability on
icooant of the debtor or his safe custody, (to)
CCCVI. (x) The sureties of any such debtor may surrender (i(n>. a». c.) cw
im into (he custody of the Sheriff at the gaol, (y) and it shall clpT rrl' ''• ^
him
he the duty of the Sheriff, his Deputy, or Gaoler, there to re-
SuretM
nu7
fore be bad. The sheriff sues at oom-
DOD law upon his bond. The assignee
by mistake takes a verdiot for the pen-
alty of the bond leave to amend the
pitta by the Judge's notes may be
giren: (lb.)
(w) There is a clause in the G. L.
P. A., Vi&l, to enable the sheriff to
inign either before or after breach
tnd be thereby discharged : (s. 25.)
(z) The origin of this section is 11
Geo. IV., cap. 8, s. 8. It is applied
to County Courts. In ciril actions
there are now at least two ordinary
kinds of bail — to the sheriff, and to the
ution. Bail to the sheriff cannot
13 of right take their principal into
eastody or surrender him in d^oharge
of themselves, but like main- pernors at
the common law can do nothing,except
perform the condition of their bond.
They are barely and unconditionally
soreties for their principal. Like
sureties for the performance of any
other act they become liable when the
eondition of their obligation is brok«n,
tnd are entitled to no favour beyond
what is allowed by the Statute 4 & 5
Anne, cap. 16, s. 20, and the equi-
table powers and practice of the
Conrt: (see Petersdorff on Bail, 216.)
Bail to the action, generally eallea
special bul, are not only responsible
for the safe keeping of their principal,
bnt have the right to surrender him in
discharge of themselves. Bail to the
limits have under the section here an-
notated privileges similar to bail to the
action: (see Evant t. Shav, Sher-
wood, J, Dra. Rep. 28.) An interim
order for protection under the Insol-
vent Debtors' Act does not prevent bail
from surrendering their principal:
[Roit et al. V. Brocket et al, Chambers,
March 25, 1857, Robinson, C.J.) Nor
can bail to the limits apply to be al-
lowed to enter an exontretur qpon the
ground that the principal has obtained
a final order for his discharge : (Nord-
h«imer ▼. Orover, Chambers, March 11,
1867, Robinson, C. J, III. U. C. L. J,
74.) The final order does not dis-
charge the bail flrom liability if bail be
previously fixed: (liott et al. y.
Brooke* et al, ubi tupra.)
(y) It is not stated when or under
what circumstances Uie surrender may
be made. It was made a question
under the old statute whether the sur-
render could be made after breach of
the bond so as to discharge the sureties :
(Evatu T. Shaw, ubi tupra.) Under
the present Statute, however, there is
much less room for doubt. It is en-
acted that the surrender when made
may be pleaded "in bar of any action
brought on the bond for a breach of
the condition happening after such
surrender," &o. This means that the
surrender to be an effectual bar to the
acUon must be made be/ore breach. It
was also a question under the old
law whether bail to the limits had
the right to follow their principal be-
yond die limits, retake, and then sur-
render him. The point was raised in
Evatu T. Shaw, ubi tupra, and one
Judge (Sherwood, J.) expressed an
opinion Uiat the Legislature under the
Statute then in force "intended to
allow the bail for the limits the right
of taking and surrendering their prin-
cipal, if they found him within or with-
out tho limits:" {lb. p. 26.) But it
is manifest that if bail to retake their
principal so as to surrender Mm are
obliged to follow him beyond the lim-
its, such a fact of itself establishes a
breach of the bond. Wherefore if so
surrender after breach can be an ef-
fectual bar to an action on the bond,
no surrender under such circumstances
can have the effect of discharging th^
saretiea.
510
THE COMMON LAW PROOEDURB ACT.
w
der of tha
dabtor.
[s. cccvii.
SSroriJ"" °®*^® *"*'^ debtor into custody, («) and the sureties may plead
suoh surrender or an offer to surrender, and the refusal of th
Sheriff, his Deputy, or Gaoler to receive such debtor into cus-
tody at the gaol, (o) in bar of any action brought on the bond
for a breach of the condition happening after such surrender or
tender and refusal, and such plea, if sustained in proof shall
discharge them from any such action ; (b) Provided always
that such debtor may again obtain the benefit of the limits on
giving a new bond with sureties as aforesaid, to the Sheriff. (A
CWv 9 laf ^i^o^V^"^ CCCVII. (d) The party at whose suit any debtor is confined,
4.(?. (*K. rif cap. 8, R. 10. may at any time while the debtor enjoys the benefit of the
/i)V^ ^ csp.ioii.4. limits, file and serve such interrogatories, to be answered by
such debtor in manner aforesaid; (e) and in case such debtor
£uteand shall ncglect or omit for the space of fifteen days next after
ProTlio.
§i
i
(a) There to receive, ^e. i. e. at the
gaol. It is not the duty of the sheriff
or his deputy to receive trom the sure-
ties their principal wherever they
choose to tender him. Reason and
oonTenience alike require the tender to
be at the gaol wherein the shwiff
without risk and without delay may at
once incarcerate the prisoner.
(a) The plea may be either a sur-
render or an offer to surrender at the
gaol and refusal there to accept him.
(6) The decision of the Court in
Evan* T. Shaw, ubi tupra, was that to
an action on a bond for the limits
no surrender after breach was a
defence. Such appears to be the
law arising upon the construction
of the section here annotated." (see
note If, tupra.) But whether a sur-
render after breach constitute an equi-
table ground of defence so as to admit
of an equitable plea is a question to be
decided. The following remarks of
Maoaulay, J, made in Evan* v. Shaw,
ubi tupra, bear upon the question.
<* The undertaking of bail is a contract
and the contract here was not that L.
A. should make no escape, but that
< he should not go or remove beyond
the limits of the gaol.' The breach is
that he did go, remove, withdraw, and
depart The plea admits a departure,
aad seeks to avoid the penalty by
avoiding the breach. A depasture is
doabtlttss a literal breach of the condi-
tion, aad if so the penalty was incur-
red f but it is contended that the con-
dition was saved by the subsequent
surrender. Such a defence rests I
fear rather upon equitable than upon
legal grounds:" (Dra. Rep. p. 87.)
(e) i.e. Under s. ccoii.
(d) The origin of this section is 11
Geo. IV. cap. 8, s. 10, and 4 Wm. IV.
cap. 10, s. 4. It is applied to Countv
Courts. '
(e) The reference here made by the
expression " such interrogatories,"
and "in manner aforesaid," appears
to be to the provisions contained in s.
ccxovi. If so, the interrogatoriesmay
be for " the purpose of discovering
any property or effects which such
debtor may be possessed of or entitled
to." &o. See also s. ccc. The old law
allowed a creditor to serve a demand
upon the debtor for a statement of his
effects, which demand was required to
be signed by plaintiff or his attorney:
{Meighan v. Reynolds, 4 0. S. 19.)
Where a defendant in execution on the
limits on demand of plaintiff's attorney
gave him a schedule or debts due to
him (the debtor), and of property be-
longing to him amounting to more
than £2000, and offered to assign the
whole for the benefit of his creditors,
but refused to give up any part to the
plaintiff alone, the debtor was re-com-
INTSaROOATOBIIS.
611
service thereof, (/) to answer suob interrogatories and to fil«5i„,-|^
the answers, {g) and to give immediate notice of such filing toi*^
the party at whose suit he is in enstody, or to the Attorney of
that party, (h) the Court or a Judge as aforesaid, (%) may make a
rale or order for such debtor's being committed to close cus-
y« (y ) ^^^ ^^ B^^l^ ^ ^^ ^^^7 ^^ ^^ Sheriff on due notice
nf saoh rule or order, forthwith to take such debtor and re-
commit him to close custody, (Je) until he shall obtain a rulenniK).
of Court or Judge's order for again admitting him to the lim-
its on giving the necessary bond as aforesaid, '(Z) (which rule *" ^ ^s'-^-
or order may be granted en the debtor's showing that he has
filed his answers to such interrogatories, and has given to the
Plaintiff or his Attorney ten days' notice thereof, and of his « , ^^ ^
intention to apply), («») or until he shall be otherwise dis- ^^f
charged in due course of lawi-^ / ^35*
CGOVIII' (») The party at whose suit any debtor is confined um, Cb, C)
in execution, (o) may, whenever such debtor shall take the oii?aLfc»." ^*
benefit of the limits, (j>) sue out any execution against hisu'^'j^i^
r«5jf-a-? fiw^^
•xteattm
lands or goods, (q) notwithstanding such debtor was charged ^^Sa^
in execution, (r) and such execution shall not be stayed, butH^,**^
shall be proceeded with until executed, («) although such debtor **»• "^'^
has been re-committed to close custody ; (f) Provided always, ProriM.
pro>
)r was re-oom-
mitted to close custody : (Bruneau v.
Joyce, E.T. 7 Vic. MS. E. & H. Dig.
"Limits," I 4.)
(/) As to computation of time see
note a to 8. Ivii.
(g, The answers must not only be
filed but be satisfactory when filed, i.e.
ntisfaotory to the Judge to whom ap-
plication is made : CKitby ▼. MitehM,
in.C. Cham. B. 187.)
Q) It appears that the notice may
be either given to the party at whose
Boit the debtor is in custody, or to his
attorney. Qu. — Does not the first part
of the provision apply to a plaintiff
sniog in person ?
(t) It was held under 4 Wm. IV. o.
4, 8. 10, that a Judge when applied
to in vacation for the committal to
close custody of a debtor on the limits,
disposed of the case without the power
of appeal by declining to interfere :
{Shaw et al. t. Kickerton^ 7 U. C. B.
641.)
(y ) The rule if nisi ought to be per-
sonally served : {Mtighan v. Xeynoldt,
4 O. 8. 19.) The order when granted
should be directed to the sheriff and
follow the words of the Statute : (J7a-
milton V. Anderson, 2 U. G. R. 452.)
(k) Close custody. See note j) to s.
cczcv.
il) Under s. oooii.
m) See note A, supra,
n) The origin of this section is
Stat. 11 Geo. IV. cap. 8, s. 9. It is
applied to County Courts.
(o) i.e. In custody upon final prooess
as to which see note n to s. oozov.
(p) i.e. Under s. ocoii.
Ig) As to executions generally in
Upper Canada see note n to 8. clzxziiv
ir\ See 8. oxoii. and notes thereto.
«) Sse note h to s. olxxxiz.
Under s. ocovii.
u'/l
! I
, t
]l^ ;!
m
m »
$
H
512
THS COMMON LAW PBOOIDIT&I IflT.
1'^"
!«!! -
IH
m
t--i
tU
\b
'A.
i
[«. oooU*x.
»«npJoM that the wearing apparel of Buoh debtor and that of hia hauij
**<>&• and their beds and bedding, and household utensils, not ex!
oeeding together the value of ten pounds, (u) and the tools aod
implements of the trade of such debtor, not exceeding in valM
ten pounds, (v) shall be protected from such subsequent exe*
oution.
^400. Cb. C)
» s?cc? i^M^t'^^^ CCCIX. (w) None of the foregoing provisions relative to the
t L 5. l^^oM ^^^^^y allowance, discharge from custody on account of insol.
^^f - Siniitol^r. ^«"°y (^) °' ^*°* ^^™^*^' Cy) shall extend or be applicable to
•oniincoa- debtors who shall at the same time be in custody upon anv
on any cri- criminal charge, (z)
mliudeharga ° ^ ■'
Cb.C.)
1.IV.
«ap. 3, 1. 11.
Snnd«*^*"y proceedings under this Act, (A) wilfully and corruptly give
F«^«««? false evidence or wilfully and corruptly swear or affirm any
iMpeijorj. thing which shall be false and shall be thereof convicted, shall
be liable to the penalties of wilful and corrupt perjury, (c)
And with respect to costs ', (d) Be it enacted as follows :
u
26 % /^ -
(Am. Cb. c.) CCCX. (o) Every person who shall upon any examinatioa
11 o«o. IV. upon Qat;!^ or affirmation or in any affidavit made or taken in
(u) TweWe pounds and ten ahillings
was the sam mentioned in 11 Geo. IV.
cap. 8, B. 9. See now b. 28 of C. L.
P. A., 1857.
(v) As to implements of trade pro-
teoted under 11 Qeo. IV. cap. 8 there
was no limit as to valoe. Implements
of trade to the Talue of £16 are pro-
tected from execution in ordinary
eases : (C. L. P. A, 1867, s. 28.)
(w) The origin of this section is 11
Oeo. IV. cap. 8, a. 6. It is applied to
County Courts.
Sb. ccxcTi. et $eq.
Sb. ccci. et teq.
t was held under the old statutes
that an insolvent debtor while also in
custody on a criminal charge could not
obtain a rule for weekly allowance in
a civil suit: (17iomp»on r. HughaoHj
M. T. 6 Vic. MS. R. & H. Dig. " In-
solvent," 22.)
(a) The origin of this section is 11
Geo. IV. cap. 8, s. 11. It is applied
to County Courts.
(b\ See 12 Vic. 0. 10, s. 5, sub. s. 18.
(ej Perjury at common law is de-
fined to be a wilfully false oath by one,
who being lawfully required to depose
onncy t
(z) Sb
(y) Sb
(«) It^
the truth in any judicial proceeding
swears absolutely in a material to the
point in question, wheUier he be be-
lieved or not: (Hawk, P. C. 6, 1, c
69, 8. 1.) In order, therefore, to con-
stitute legal guilt of perjury, the oath
muat be Mm, the intention wilful, the
proceedings judicial, theparty lawfully
sworn, the assertion absolute, and Uie
falsehood material to the matter in
question : (Chit Crim. Law, III. 802.)
(d) There was no such thing as
costs at common law eo nomine; but
they were generally included in the
damages given by the jury. This,
however, being discretionary and in-
adequate, the l^islature in 1278 pat
a plaintiff '» right to oosts upon a surer
basis. It was in that year that the
Statute of Gloucester was passed. It
refers to certain original writs no<r ob-
solete, and enacts ths* "demandant
may recover against the tenant the
costs of his writ purchased .together
with the damages," and that the Act
'* shall hold place in all eaiu where a
party is to recover damages :" (6 Edw.
I. cap. 1.) Though the Statute gives
the oosts of the "writ," it has bees
g.OCOxi,] C0ST8.
GGCXI. Until otherwise ordered by rule of Court, the costs
518
construed as extending to tbe costs of
joit generally. But as by It costs were
jnade recoverable in all oases indiscri-
minately, irrespective of the quantum
of ddinsges, however smnll, so long as
gome damages wnre recovered, plain-
tiffghaving trifling demands forsook the
inferior, to bring their actions in the
gaperior Courts. To prevent this
abuse tbe legislature enacted that "if
upon any action personal to be brought
in any of her Majesty's Courts at
Westminster, not being for any title or
interest of lands, nor concerning the
freehold or inheritance of lands, nor
for any battery, it shall appear to the
Judges of the same Court, and so sig-
nified or set down by the Justices be-
fore whom tbe same shall be tried, that
the debt or damages to be recovered
therein in the same Court shall not
amount to forty shillings or above, that
in every such case the Judge and Jus-
tices before whom any such action
shall be pursued shall not award for
costs to the party plaintiff any greater
or more costs than the sum of the debt
or damages so recovered shall amount
onto but less at their discretions :" (43
Elii. cap. 6, s. 2.) The effect of this
statute is to authorize a Judge's certi-
ficate, the consequence of which is
plainly to deprive plaintiff of costs be-
yond the amount of his verdict. In
1623 a statute was passed which ope-
rated differently. It enacts that " in
all actions upon the case for slander-
ous words to be sued or prosecuted by
any person or persons, &c., if the jury
npon the trial of the issue in such ac-
tion, or the jury that shall enquire of
the damages do find or assess the dam-
ages under forty shillings, then the
plaintiff or plaintiffs in such action
shall have and recover only so much
costs as the damages so given or as-
sessed amount unto, without any fur-
ther increase of the same :" (21 Jao.
I. cap. 16, s. 6.) The operation of
this Statute depends not upon any cer-
tificate but upon the mere finding of
the jury. Though under the Statute
HH
of Elisabeth plaintiff can have no mors
costs than damages, if the damages bs
under 40s. in ease the Judge certify,
by a still later statute if the damages
be under 40s. plaintiff shall have no
more coats than damages unless tbs
Judge do certify. It is enacted that
"in all actions of trespass, assault,
and battery, and other personal actions
wherein the Judge at the trial shall not
find and certify under his hand upon
the back of the record, that an assault
and battery was sufficiently proved by
the plaintiff against the defendant, or
that the freehold or title of the plain-
tiff against the defendant, or that the
freehold or title of the land men-
tioned in the plaintiff's declaration
was chiefly in question, the plaintiff in
such action in case the jury shall find
the damages to be under the value of
40s. shall not recover or obtain more
costs of suit than the damages so found
shall amount to:" (22 &23 Car. II., st. 2,
cap. 0.) This Statute notwithstanding
the use of the words "other personal
actions," was construed as extending
only to actions of trespass quare clausam
f regit and eusault and battery, After-
wa^s in 1697, " for the preventing of
wilful and malicious trespasses," it
was enacted that "in all actions of
trespass to bo commenced, &c., in any
of his Majesty's Courts of Record, &o..
wherein at l^e trial of the cause it
shall appear and be certified by the
Judge under his hand upon the back
of the record that the trespass upon
which any defendant shall be found
guilty was wilful and malicious, the
plaintiff shall recover not only his da-
mages but his full costs of suit : (8 &
9 Will. III. cap. 11, s. 4.) Such were
the chief features of the English law
as to costs of plaintiffs when the " laws
of England relative to property and
civil rights" were in effect adopted in
Upper Canada (32 Qeo. III. cap. 1, s.
8), and when by the Legislature of
Upper Canada it was expressly de-
clared that " the allowance of costs to
either party pluntiff cr defendant ia
:'- M
614
THE COMMON LAW PROCEDURE ACT.
W \<
[8- cccxi.
^ *¥ ^ S?||; S°d„r of Writs (c) issued under the authority of this Act and of all other
^ftAa,^ £'L^hereto.P'^°°®®'*^''8* ^°^®' *^° ^'^^^f "^^^^ ^® '^"'^ remain as nearly as
'^^ ^henrUM *^° laturo thereof wiU allow, the same as heretofore, but in no
ordartHL case greater than those already established ;"(/) Provided
vtoiiMouMto^^^^y^) t^J^* hereafter no mileage shall be taxed or allowed for
mUeage. j|jq service of any Writ, paper, or proceeding, without an affi.
dayit being made and produced to the proper taxing officer
^ 'tfjjj- stating the sum actually disbursed and paid for such milcai^e
^l/^
all ohil suits, &o., be regulated by the
Statutes and usages ivhioh direct the
{>ayment of costs by the laws of Eng-
and:" (2 Geo. IV. cap. 1, s. 88.)
Subsequently the legislature of Upper
Canada in f\irtheranco of the intention
and spirit of the English Statutes
enacted that in any suit brought in
a Superior Court of Common Law
of the proper competence of a County
Court, no more than County Court
costs should be taxed against defen-
dant: (8 Vic, cap. 18, s. 59; Har.
Prac. Stats, p. 85) ; and with respect-
to suits of the proper competence
of a Division Court a similar pro-
vision exists: (18 & 14 Vio. cap. 58,
s. 78 ; Har. Prac. Stats, p. 186.) Still
later the Proyinoial Legislature follow-
ed the example of the English Legis-
lature in extending the principle of the
English Statute of Charles to all ac-
tions of trespass. This was done by
ProT. Stat. 16 Vio. cap. 175, s. 26,
taken from Eng. Stat. 3 & 4 Vic. cap.
24, 8. 2. Though 16 Vic. cap. 175, s.
26, is repealed by the C. L. P. A, yet
B. ccoxii. of this Act is a substantial
re-enactment of it. Bather than re-
pea*: unnecessarily, the Editor refers
the reader to that section, as showing
the provisions engrafted upon the
earlier Statutes.
Until the Statute of 23 Hen.VIIL cap.
16, a-defendant was not entitled to costs
in any case except on a writ of right of
ward maliciously brought, which costs
were given by the Statute of Marl-
bridge. Bat even from the tim3 of
Hen. VliL to the reign of James I. a
defendant was entitled to costs only in
certain specified actions. During the
reign of James it was enacted « that if
any person or persons, &c., shall com-
mence, &c , any action, &c., wherein
the plaintiflF or demandant might have
costs (if in case judgment should be
given for him) and the plaintiff or
plaintiffs, demandant or demandants in
any such action, &c., after appearance
of the defendant or defendants bo non-
suited, or that any verdict happen to
pass by any lawful trial against the
plaintiff, &c., in any such action, &c.,
that then the defendant, &c., in every
such action, &c., shall have judgment
to recover his costs against every such
plaintiff," &o.: (4 Jac. I. cap. 3, s 2.)
This with other Statutes giving costs
to defendants in case of discontinuance
nonsuit and demurrer noticed in other
parts of this work and not necessary
to be here repeated were introduced
into Upper Canada in like manner and
, at the same time as the Statutes giving
costs to plaintiffs. In 1830 the Legis-
lature of Upper Canada passed a Sta-
tute entitling a defendant pleading a
set-off and proving a greater one than
plaintiff's demand to recover a verdict
•'besides his costs and charges:" (11
Geo. IV. cap. 5, s. 1 ; Har. Prac. Stats.
p. 20.) This completes the sketch in-
tended of the principal Statutes which
give to plaintiffs and defendants costs
of suit. There are others of minor
import, a notice of which in this place,
time and space alike forbid.
(e) This is a temporary provision,
with which there is a corresponding
provision in Co. C. P. A., 1856, s. 18.
(/) See N. Rs. which in Schd. B.
establish a table of costs to be talien
fV). c.) <.
g.ccoxii.] COSTS. 516
and the namo of the party to whom such paymeht was ina(lo.(f/)
CCCXII. (h) If the Plaintiff in any action of trespass (i) or ViHin'tiiT in
trespass on the case (y ) brought or to bo brought in cither of inHpMs'on
the said Courts (A) or in any County Court in Upper Canada, (/) rBmUr no
shall recover by the verdict of a Jury less damages than forty veidiot be'for
byattorneyg, slierlfFa, and other officers
of the Courts.
(ij) N. U. 100 ia substantially the
same as this proviso. See further C.
L. P. A., 1857, 8. 28. f«44. 73 9
(A) Thisisare-enactrointof 16 Vic.
cap. 175, s. 26, which was taken from
Eng. Stat. 8 & 4 Vic. cap. 24, s. 2.
It may bo mentioned that the last-
named Statute repeals the Act of 43
Eli«. cap. 6, " so far as it relates to
costs in actions of trespass or trespass
on the case," and so much of the 22 &
23 Car. II. cap. 9, " as relates to costs
in personal actions:" {aee Morgan v.
Thorne, 7 M. & W. 400) ; but that our
16 Vic. cap. 175, s. 26, did not do S9
in express words any more than the
eection bore annotated. Referring to
16 Vio. cap. 175, s. 26, Robinson, C. J,
said, "The new provision forms a
single clause in a Statute whijh relates
to a multituJe of other subjects. No
intention is expressed of consolidating
the existing law on this point or of af-
fording one simple rule as a substitute
for all others relating to the plain-
tlfPa costs in actions of trespass and
trespass on the case. It follows then,
we think, that we can only take this
isolated clause as it stands and give
effect to its provisions by allowing
them to overrule any previous enact-
ment with which they conflict. We
cannot go so far as to hold that this
clause virtually repeals all former
laws on this subject, though we may
and must hold it to have virtually re-
pealed whatever is clearly inconsistent
with it:" {Pedder v. Moore, 1 U. C.
Prac. R. 119.)
(t) It is a noticeable fact that the
specific terms "trespass" and "trespass
on the case" are retained here, though
forms of action are elsewhere in a man-
ner abolished : (see note TB to s. xvii.)
It is not clear that the Statute
of Will. III. {ante note d,) which al-
lows plaintiff's full costs in actions of
trespass upon a certificate of the pre-
siding Judge that the trespass proved
is wilful- and malicious, no matter
what the amount of the verdict may
bo, ia repealed : ( Wise v. Jlewson, 1
U. C. Prao. Rep. 282.) In nn action
of trespass since the Stat. 16 Vic. cap.
175, 8. 26, of which this section is a
re-enactment, the verdict was for 45s,
and application was made at the trial
fer a certificate under the Statute of
Will. III. The Judge took time to
consider and before judgment entered,
but after the first four days of the terra
next following the trial certified that
the trespass was wilful and malicious,
and that the case was one proper to
be tried in a Superior Court : Hcid
that plaintiff was entitled to full costs
and that the delay in granting the cer-
tificate was no objection : (iA.)
(y ) Though assumpsit is a species of
trespass on the case, yet it is not con-
templated by this section. The only spe-
cies of actions on the case intended are
those brought for "grievances," i.e. ac-
tions for tort : (see Morrison v. Salmon,
10 L. J. C. P. 92 ; Townsend v. Syms,
2 C. & K. 381.) For example, actions
for the infringement of patents : ( Gil-
let V. Green, 7 M. & W. 347) ; for
libel : {Foster v. Pointer, 1 Dowl. N.S.
28 ; Newton v. Rowe, 2 D. & L. 816) ;
for nuisance : (Shuttleworth v. Cockerf
9 Dowl. P. C. 76; Reidy. Ashhy, l^C. B.
897, and generally for any wrong com-
mitted {ex delicto) which is the subject
of an action.
•
{k) i. e. Queen's Bench or Common
Pleas.
{I) This section is also expressly
adopted by the Co. C. P. A, s. 2.
Mi#>.i'^
'" jfiii""^
616
THI COMMON LAW PROCEDURE ACT.
.» .'■
iMitlum
ibrty thU
[•• cccxii.
shillings, (m) inch Plaintiff shall not be entitled to recover in
^tinSSr ™"P«<'* ^^ ""o** verdict any costs whatever, (n) whether the
2JJJ^,^^ verdict be given on any issue tried, (o) or Judgment have
passed by default, (^)) unless the Judge or Presiding Officer
before whom such verdict shall be obtained (j) shall iumicdi-
i:
im) See noto n, ir\fra.
n) If the plaintiff, &o., shall reco-
ver, &o., less damages than forty uhil-
Ungs, &o., he shall not bo entitled to
reoorer in respect of such verdict any
eoit» whattver. The penalty is.different
ttom that enacted by the Statutes of
Elisabeth, James, and Charles II. which
debar plaintiff from recovering "more
costs than damages:" (see note d, ante.)
(o) The Eng. Stat, of 8 & 4 Vic. o.
24, B. 2, which reads, <' upon any iosuo
or iaauea tried, &c.," was clearly held
to contemplate actions in which there
were more issues than one : (New-
ton V. Jiowe, 1 G. B. 187.) In an action
for a libel the defendant pleaded not
guilty and several pleas of justification;
the plaintiff recovered a verdict on all
the issues, damages three far tilings :
Held under Stat. 8 & 4 Vio. that be
was not entitled to any costs: (76.)
Referring to this case the Court of Ex-
chequer said, "We concur entirely in
that deciHion:" (Sharland y. Soaring^
1 Ex. 875.) To a count of trespass
qu. cl. fr. upon three closes the defen-
dant pleaded several pleas ; the plain-
tiff new assigned trespasses extra viam
M to the third close, to which the de-
fendant pleaded not guilty. The de-
fendant had a verdict on some of tho
issues with respect to the first and se-
cond closes, and the plaintiff upon the
others, so that the defendant succeeded
M to the causes of action in those
closes ; the plaintiff bad a verdict with
one shilling damages upon the new as-
Bignmwt. There was no certificate
under The English Stat, of 8 & 4 Vic.
Held that the causes of action were di-
visible, and that under Stat. 4 & 5
Anne, cap. 16, ss. 4-o, the plaintiiF
was entitled to the costs of the issues
found for him with respect to the
.causes of action in the first and second
closes ; but that he was deprived of nil
costs by the 8 & 4 Vic. with respect
to tho cause of action for trcfipu!<8 in
the third close : (76.) By tbo one
Statute the defendant is puniHliciI for
pleading pleas which ho cannot Hup.
port ; by tho other tho plaintiff h pu.
nishod for bringing a frivolous action
though ho succeed: (76.) A pbin!
tiff having obtained jmlgmcnt up-
on a demurrer to a replication, tho
cause went down for trial upon the
issues of fact without a venire tam
quam: tho plaintiff recovered only
20s damages, and tho Judge refused to
certify under 8 & 4 Vic. cap. 24. Hold
that plaintiff was only entitled to the
costs of the demurrer: {l*<jule v
Grantham, 2 D. & L. 522.)
(p) Tho words "issue tried" and
"default" do not comprehend nn
inquiry after judgment on demurrer
though the verdict be only for one far-
thing damages : {Taylor v. Rolf cl al,
5 Q: B. 337.)
{q) An action of trespass qu. cl. fr.
was referred to arbitration nnd by the
order of reference the arbitrator was
empowered to certify in the same man-
ner as a Judge at Nisi Prius. The ar-
bitrator though awarding Is. damages
did certify that the action was brought
" to try a right besides the mere right
to recover damages." Held, plaintiff
entitled to full costs : {Spain v. Caddl,
9 Dowl. P.C. 745. ) And per Aldersor,
B, "It seems to me that the parties
are concluded by their own agreement
upon which we must put a reasonable
construction. By tho order of refer-
ence the parties have consented that
the arbitrator shall stand in tho same
situation and have the same pcrwcr to
certify as a Judge at Nisi Prius. . .
They have then given to the arbitrator
the same authority as a Judge possesses
I. ooozii]
GO§Tg.
617
to detorinine whothor or not tlio vor-
(llot U to onrry costs ; I certainly am
of opinion that an arbitrator wUo J ■
ioreitted witli auoh a power by oonaeui
of tlio parties must in all substantial
points follow the directions of the Sta-
tute, that is to say, he must gire his
opinion immediately on the matter, ho
eannot make bis award atone time and
oertit'y at another. That is In substance
the power possessed by the Judge
at Nisi I'i'ius, and as the latter is by
the Statute required to indorse his
certificate on the record at the time of
the trial, ho it would be altogether a
nugatory act, and not fulfilling the in-
teotion of the parties, if the arbitrator
waa to give a certificate on any subse-
quent occasion. He is bound to carry
the ngreoment into effect cy pret, the
modo of doing which is b^ immediatelv
inserting his certificate in the award.
l)y this construction the intention of
the parties can be carried into effect,
and we think we can adopt it consist-
ently with the provisions of the Act :"
(lb.) Ity an order of reference in an
action fur an injury to tho plaintiff's
revertiion by making a drain into his
premises, a verdict was directed to be
entered for the plaintiff, claim £500,
costs 408, subject to the award of a
barrister, to whom the cause and all
matters in difference were referred,
and who was empowered to direct a
Tcrilict for the plaintiff or the defend-
ant as he should think proper, and to
have all the same powers as the Court
or a Judge sitting at Nisi Prius, and
the costs of the suit to abide the event
of the award. The arbitrator by his
award found all the issues in tho action
in favor of the plaintiff except the first,
and that ho found partly for the plain-
tiff and partly for the defendant ; and
he further directed that the verdict en-
tered for the plaintiff should stand but
that the damages should be reduced to
one farthing. Held that the plaintiff
was not in the absence of a certificate
under 3 & 4 Vic. cap. 24, s. 2, entitled
to the costs of the cause : ( Cooper v.
Ptffff, IG C. B. 454.) Where in an ac-
tion on the case for diverting a stream
or water-course '* all matters in differ-
oiict' in the cause" were referred to
arbitru! 'in, « the costs of tho suit to
abidu the etunt of the award or ampir-
age," but no powi<r was given to cer-
tify under 8 & 4 Vic. cap, 24, a. 2.
Held that the true meaning of the sub-
missioD waa what its worda import,
that costs, I. *. the payment of coats
should follow tho event, i. e. the legal
event of the award, that he in whose
favour the decision waa ahould be paid
by the other party the costs of the
suit : (OriJ/Uht t. Thomai, 4 D. & L.
100.) In this case the arbitrator found
for the plaintiff on all the issues and
assesHed his damages at Od. Held that
plaintiff notwithstanding was entitled
to full costs: (^Ib.) If a verdict be
taken at Nisi Pnua subject to a refer-
ence though no power to certify bo
conferred upon the arbitrator, still the
case will come within the Statute de-
priving a plaintiff of costs " who shall
recover by the verdict of the jury less
damages than 40s. :" {Reid v. Aahby,
18 C. B. 897.) In this case the first
count of the declaration charged the
defendants with injury to the plaintiff's
party wall in excavating by the side of
it and raising and overloading it. The
defendants pleaded, first, as to the
raising and overloading not guilty by
Statute, secondly, as to the residue
paymen ; into Court of £80. The
plaintiff' joined issue on the first plea,
and replied damages ultra to the se-
cond. At the trial a verdict was taken
fur tho plaintiff for £2000, subject to
an award, but no power was reserved
to the arbitrator to certify under 3 &
4 Vic. cap. 24. Tho arbitrator having
directed a verdict to be entered for the
plaintiff on the first issue, damages
20s. and for the defendant on the sec-
ond issue. Held that plaintiff was not
entitled to any costs whatever : (lb.)
AVIiere on a writ of inquiry in England
directed to the sheriff, the certificate
granted under the 8 & 4 Vic. cap. 26,
was by the under-sheriff, it was held.
necessary for him to sign it in the
name of tho sheriff and not in his own
name: {^Stroud v. Watts, 8 D. & L.
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618 THE COMMON LAW PROCEDURE ACT. [s. CCCXii
ately afterwards (»•) certify on the back of tbe record or of the
799. ) If the record be so framed that
a right beyond a mere right to recover
damages may come in question, the
Court in banc, cannot inquire whether
the " Judge or presiding officer" be-
fore whom such verdict shall have been
obtained has exercised a sound discre-
tion in granting the certificate : {Shut-
tUvoorth V. Cocker, 1 M. & G. 829.)
But even supposing the record so
framed that the right could not come
in question, yet the action may still
have been brought to try a right, al-
though the defendant afterwards did
not think proper to contest such right.
An action may be brought to try a
right, where nothing appears to indi-
cate such an intention. An action of
trover is often brought for the purpose
of trying a right without exhibiting
anything on the record to show what
the intention was in commencing the
action, or whether or not the right
came in question at the trial. The ob-
ject of the section is manifestly to dis-
courage frivolous suits. But an ex-
ception is made in favour of persons
who although tbey claim only small
damages seek to negative the right of
other parties to do the act of which
they complain. If the case be one in
which it is proper for the Judge to cer-
tify, the Court above can have nothing
to do with the "vidence given at the
trial ; for the power to grant the cer-
tificate rests with "the Judge or other
presiding officer," and there is no au-
thority to review his decision : [lb.
Maule,J.) Tlie Judge or presidiugofficer
has a discretion vested in liim whether
lie will certify or not, in all cases of
trespass or trespass on the case, with
the exercise of which discretion no
Court has the right to interfere. If
an attempt at appeal be made the
questions to bo asked are these — Is the
action one of trespass or trespass on
the case ? did the Judge exercise his
discretion ? If affirmative answers
must be given to both these questions
there is no power to review : {^liarkcr
• T. Hollier, 8 M. & W. 613.) In an
action against an attorney for mali
ciously refusing to give notice to the'
Bheriflf that a judgment had been satis-
fied by a co-defendant, whereby the
plaintiflF wos taken in execution after
the judgment had been satisfied thd
jury having found for the plaintiff with
nominal damages, the Judge refused
to certify that the grievance was wilful
and malicious, and refused to receive
affidavits either in support or in oppo-
sition to the application: (Tebbiltv
Holt, 1 C. & K. 280.) ^
(r) Immediately afterwards. The
word " immediately" excludes all in-
termediate time and action ; but it ap-
pears th<it in this section it has not
necessarily so strict u signification-
(Rex v. Francis, Cas. Temp. Hardw
114.) To make good the deeds and
intents of parties it should be construed
such convenient time as is reasonably
requisite ibr the doing of a thine-
(Pybris v. Mitford, 2 Leon. 77.) It is
certainly impossible to say that there
is no doubt on the construction of this
Act of Parliament, but such is the case
with respect to many, nay most Acts of
Parliament. If they could be construed
literally consistently with common
sense and justice, undoubtedly they
ought to be so construed. If it were
manifest that the intention of the leg-
islature when framing this section was
that not a single moment's interval
should take place before the granting
of the certificate, the Courts would
feel bound to submit to tlint declnrcd
intention : (Thompson v. Gtlmn, 8 M.
& W. 281.) But such cannot be the
interpretation. How, therefore, con-
sistently with common sense and the
principles of justice are the Tords
" immediately afterwards" to bo con-
strued ? If they do not mean tliat the
act is to be done the very instant after-
wards, do they mean within ten min-
utes or a quarter of an hour after-
wards? They should be interpreted
to mean " within such reasonable time
as will exclude the danger of interven-
ing facts operating upon the mind of
t. cccxii.] COSTS. 619
^it of trial or inquiry (») that the action was really brought to
try a right besides the right to recover damages for the trespass
the Jadge or other presiding officer, so
ts to disturb the impressioa made upon
\[ by the evidence in the cause :"
i[b. per Abinger, C. B.) It has been
held too late to apply for the cer-
tificate after application made to the
Master to tax full costs and a refusal
by him to do so: (Oillett v. Green, 7
M. & W. 847.) In an action on the
case for a nuisance to the plaintiff's
junrket, which was the last case tried
at the assizes, a verdict was found for
the plaintiff with nominal damages.
The Judge thereupon immediately ad-
journed the Court to his lodgings and
qaitted the Court. No application was
made in Court for a certificate under
3 & 4 Vic. cap. 24, but the plaintiff's
counsel followed the Judge to his lodg-
ings ond there within a quarter of an
hour after the delivery of the verdict
obtained the certificate : Held that it
was well given : (Thompson v. Gibson
tt al, 8 M. & W. 281.) In one case it
was doubted whether the certificate
could be granted after another cause
had been called on : {Gillette. Green,
9 Dowl. P. C. 219) ; but that doubt
has been set at rest by holding that
notwithstanding, the certificate may be
granted : {Ptige v. Pearce, 9 Dowl. P.
C. 816.) And per Abinfeer, C. B., " I
think that a Judge need not certify
before he takes another case. He
surely may take time to consider ; and
can it be said that he ought to post-
pone every other cause until ho has
made up his mind? Such a course
would be unreasonable and very incon-
venient :" {lb.) The effect of the de-
cisions of Thompson v. Gibson and
Page v. Pearce, ubi supra, is that the
word •' immediately" in the sense in
which it is employed in the Act does
not mean so soon as the verdict is given,
without any time whatever being taken
for consideration, but that a reason-
able time for consideration may bo
taken, nnd that a Judge if called upon
to certify under the Act must have
some time allowed him for considera-
tion. If the word were construed to
mean the moment the verdict is deli-
vered, the Judge would have no time
whatever to view the bearings of the
case: [Nelmes v. Hedges, Patterson,
J, 2 Dowl. N. S. 350.) A certificate
applied for even after one of the jurors
in another cause had been sworn and
granted after the whole of them had
been sworn, was held to be sufficient :
(lb.) The result of the foregoing cases
so far as a result can be deduced is
that the certificate must be granted
within a reasonable time, and that the
reasonableness of the time can only be
determined in reference to the circum-
stances of each particular case. To
an action of trespass the defendant
pleaded four pleas, one of which was
found for him and the others for the
plaintiff. The plaintiff applied to the
Judge at the trial to certify under 3
& 4 Vic. cap. 24, that the action was
brought to try a right, &c. It being
suggested that the plea found for the
defendant was bad non obstante vere-
dicto, the Judge said he would certify
if it became necessary to do so, and
subjoined the following memorandum,
" I certify if necessary that the right
came in question." Several terms
afterwards a rule for judgment for the
plaintiff non obstante veredicto was made
absolute, and subsequently the learned
Judge after hearing the parties on
summons indorsed on the record a
certificate that the action was brought
to try a right, &c. It was held under
the circumstances that what took place
at the trial was equivalent to an assent
that the certifreate was to be taken to
have the same effect as ifthen made :
{Jones V. Williams, 2 D. & L. 247.)
(s) There is nothing in this statute
to say that a certificate shall give full
costs or shall prevail against any other
restraining statute : (see note d to s.
cccxi), but simply that xoithout a certi-
ficate there shall be no costs whatever :
(Pedder v. Moore, Robinson, C. J, 1 U.
C. Prac. R. 124.) The Statute does
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[s-ccexii.
or grievance in respect of which the action was hrought or
§3;?^ that the trespass or grievance in respect of which the action
Twisha'ii ^'^ hrought was wilful and malicious ; (t) Provided always, U)
to* " uS"* *^*' nothing herein contained shall extend or be construed to
tnBpasfies. extend to deprive the Plaintiff of costs in any action brought for
a trespass or trespasses over any lands, (y) wastes, closes, woods
Bot interfere with 21 Jac. 1, cap. 16 :
{lb. ante note d. ) Where in an action for
slander no special damage being laid,
the Terdict was for one shilling dam-
ages, although the Judge certified
that the grievance was wilful and ma-
licious, the plaintiff was held to be re-
strained under 21 Jao. I. cap. 16, from
recovering more costs than damages :
(lb.) In England it was held at Nisi
Frius that in an action of trespass gu.
tl. fr. the 3 & 4 Vic. cap. 24, should
be construed with reference to the 8 &
9 Will. III. cap. 11. 8. 4: (see note d
to s. cccxi), under which Statute it was
always held that a plaintiff was enti-
tled to full costs where the defendant
committed the trespass after notice :
(Sherwin v. Smndall, 1 C. & K. 402.)
(t) An action of trespass or trespass
on the case in which less damages
than forty shillings are recovered, is
frivolous within the meaning of this
section. Those suits are exceptions to
it, which are in fact brought to try not
merely the right to recover damages,
but to try a right beyond that or to
vindicate the plaintiff from the vexa-
tion of a wilful or malicious injury.
All others are frivolous and vexatious,
and the plaintiff should be deprived of
his costs : [Marriott v. Stanley, Maule,
J, 9 Dowl. P. C. 61.) The object of
the Act is to prevent plaintiffs from
bringing actions of a vexations and
litigious nature, where very little da-
mage has been sustained and there is
no right in issue: {Shuttleworth v.
Cocker, Tindal, C. J, 1 M. & G. 835.)
What the Judge is called upon to do is
to see the design which the plaintiff
had ia instituting the suit, and if satis-
fied by the course of the evi^ience that
the plaintiff really thought he had a
right which came in question or which
might by possibility come in issue
though the form of action may not be
fitted for that purpose, and the right
did not in fact come in question he
has R discretionary power in grantine
the certificate : (Morrison v. Salmon
per Maule, J, 9 Dowl. P, c. 387/
and the Court will not interf"'^'} Tvith
the exercise of that discretion in cases
proper for its exercise : (see note q
tupra.) The Judge has power to cer-
tify where the action is for selling me-
dicines which the defendant faisely
represented as prepared by the plain-
tiff: {Moriaon v. Salmon, nbi aupra)
or for a nuisance to the plaintiff's
messuage from the defendant's fac-
tory: {Shuttleworth T. Cocker, uhiiup.)
But where the action was for leavinz
dangerous instruments in the highway
it was doubted whether a Judge had
a discretion to certify: {Marriott v
Stanley, 9 Dowl. P. C. 69.) In order
to justify a Judge in certifying under
this section that the net complained of
was malicious, in actions for libel he
must be satisfied that the conduct of
the defendant arose from personal ma-
lice as contradistinguished from malice
in law, which is esssntial to sustaiu the
action : {Foster v. Pointer, Alderson
B, 8 M. & W. 395), but in actions of
trespass without personal malice the
act may be considered so violent and
outrageous as to be considered mali-
cious within the meaning of the sec-
tion: {lb.) An act committed without
authority and after notice Bi"y bo
deemed malicious : {Sherwin v. Swin-
dall, 12 M. & W. 783.)
(u) The origin of this proviso is
Eng. St. 3 & 4 Vic. cap. 24, s. 3.
(r) The word "commons" here fol-
lowed in our Stat. 16 Vic. cap. 175, as
copied from Eng. Stat. 3 & 4 Vic. cap.
J. occxii.] COSTS. flSl
plantations, or inolosures, or for entering into any dwelling,
out-building, or premises, in respect to whioli notice not to
trespass (w) shall have been previously served by or on behalf
of the owner or occupier of the land trespassed over, upon, or
left at the last reputed or known place of abode of the Defend-
ant in such action; (x) Provided also, that nothing in this Proviso:
24 9. 3, but is intentioDally omitted
from the section here annotated.
(w) Read " thereon or therein" in
Eng. Stat. 3 & 4 Vic. cap. 24.
(i) There is some difficulty in pui-
tiog a construction upon this proviso.
Oae interpretation of it may be that
wherever a notice in writing has been
given, the plaintiff shall be entitled to
costs without any certificate, although
the amount of damages be less than
403. ; but if so, unless the fact of the
notice appear on the face of the decla-
ration, it would seem that there must
be n suggestion on the record for that
purpose., which the defendant would
be at liberty to traverse, — or the
meaning may be that it shall be im-
perative on the Judge to certify where
a written notice has been given, where-
as in other cases it is discretionary.
Probably in order to avoid inconveni-
ence thelattei is the true construction :
SSktrwin v. Suindall, Parke, B, 12 M.
I W. 790.) However, where in tres-
pass for placing stumps and stakes on
the plaintiff's laid the defendant paid
40s. into Court, wtich the plaintiff took
out in satisfaction of the trespass, and
the plaintiff afterwards gave the de-
fendant notice that xnless he removed
the stumps and stakts a further action
would be brought agaost him ; it was
held that leaving the sttmps and stakes
on the land was a new trenpass, and that
the plaintiff was entitle! to full costs
in an action for their continuance
after the notice, though ho recovered
less than 408. and the Jujge refused
to certify that the trespass was wilful
and malicious; and that (he proper
mode of obtaining the costs was by a
suggestion that the trespass was com-
mitted after notice : {Bowyer v. Cook,
i C.B. 236.) In an action of trespass
where the plaintiff recovered less da-
mages than 408, and the trespass had
been committed after a verbal notice
not to do it, it was held a matter of
discretion with the presiding Judge to
certify for costs under 8 & Will. III.
cap. 11, s. 4, as altered by 8 & 4 Yio.
cap. 24: {Sherwiny. SwindaU,ubi tup.)
It has bean held that if in trespass the
damages recovered be less than 40s,
and the Judge do not certify that
the trespass was wilful and malicious,
proof that written notice not to tres-
pass had been previously given will
not entitle plaintiff to full costs : {Daw
v. Holt, 16 L. J. Q. B. 32.) The plain-
tiff in trespass for crossing a field had
given notice to the defendant not to
trespass on the field. Defendant justi-
fied under a right of way. Plaintiff
traversed the right of way and new as-
signed. Defendant joined issue on
the rightof way, and suffered judgment
to go by default on the new assignment.
The jury found for the defendant as to
the right of way, and gave the plaintiff
Is. damages on the new assignment.
The Judge refused to make any certi-
ficate under 8 & 4 Vie. cap. 24. Held
the Statute did not apply and that
plaintiff was not entitled to full costs :
{Bourne v. Alcock, 4 Q. B. 62.) And
per Patterson, J, " Before this action
was brought defendant asserted a
right of way over the plaintiff's close.
The plaintiff gave him notice not to
trespass there, that is, in effect not to
assert the right he claimed. If the
plaintiff had succeeded on the justifica-
tior his notice would have entitled him
to costs, but the defendant has estab-
lished his right to do what the notice
forbade. The plaintiff says that the
trespass extra viam was that which the
defendant had notice not to do ; but
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THE COMMON LAW PROCEDURE ACT.
[s ccoxii.
^^^h"^j^£J section (y) shall be construed to entitle any Plaintiff to recover
brou wTn ^°^*^ ^ ^^ *"* action brought in a Superior Court in any case
^^forio' where by law his action might properly have been brought in
^'^ 35>? ^^ inferior Cour^. (z)
RuUs. (a) And in order to enable the Courts and Judges to carry
this Act thoroughly into effect, and to enable them from time
that is not so. If the plaintiff bad said
< It is true you have the right of way
OTer a particular part of the close, but
take care you do not go out of that
way,' the case would have been differ-
ent. Here he has or^ly given a notice
not to come upon the close at all."
{y) This proviso, which is original,
has special reference to Frov. Stats. 8
Vic. cap. 13, s. 69 : (Har. Prac. Stats,
p. 86) ; 18 & 14 Vic. cap, 53, s. 78:
{lb. p. 185.)
{z) Though a Judge certify that " the
action was really brought to try a right
besides the right to recover damages,"
&o., or that "the trespass or griev-
ance in respect of which the action was
brought is wilful and malicious," yet
if the verdict be within the jurisdiction
of an inferior Court, a further certifi-
cate that the cause is one fit to be tried
in a Superior Court seems to be re-
quired : (see Wise v. Hetcaon et al, 1
U. C. Prac. R. 232.)
(a) The power of Superior Courts
of Common Law to make regula-
tions for the practice in their Courts,
60 long as not inconsistent with
some express statutory provision,
seems never to have been doubted.
A distinction, however, appears to
exist between practice properly so
called and pleading. The distinc-
tion is evidenced by the language
used in the English Common Law Pro-
cedure Acts. The Act of 1852 is in-
titled "An Act to amend the Process,
Practice, and Mode of Pleading in the
Superior Courts of Common Law," &c.
The Act of 1854 is intitled "An Act
for the further amendment of the Pro-
cess, Practice, and Mode of Pleading,
&c." In the preamble to the Act of
1852 it is recited that "the process,
practice, and mode of pleading in the
Superior Courts of Common I .w nt
Westminster may be rendered more
simple and easy," &c. Our C. L. P A
though adopting the greater part of
the tng. C. L. P. Acts, merely recites
that " it is expedient to simplify and
expedite the proceedings in the Courts
of Queen's Bench and Common Pleas
for Upper Canada." Whatever tie
reasons for the distinction may be it
is evident that throughout the Eng.
C. L. P. Acts a line is drawn between
process, practice, and mode of plead-
ing. In our C. L. P. Act the same
may be discerned. Preceding section
ii. there is a preamble as follows
"And with respect to the sealing
and issuing of VI rits, &c." So preced-
ing s. xvi. are the words, " And with
respect to the writs for th« commence-
ment of personal actions. &c." Then
follow no less than twenty-seven distinct
sections relating exclusively to first
process in a suit. Froio this it is made
to appear that the frst part of the
Act is intended to relate to Process.
Then wo find s. Ijx. and following
sections prefaced with the words,
" And with respec* to the appearance,
&c.," which is a matter of practice.
There are many other groups of sec-
tions also prefa«ed with recitals relat-
ing solely to mitters of practice. This
presents the second great division of
the Act, whi(4i is designed to relate to
" Practice." Then preceding .sections
xcviii.-cxxxtx. there is a recital, "And
with respeoc to the language and form
of pleadings in general, &c." In this
there is rapresented the third great
division o.' the Act, which is the one
relating to " Pleading." There are
other groups which are sub-divisions of
one or ether of these great divisions.
The Legislature has, it will be per-
gceexiii] power to make miLES. 528
to time to make rules and regulations, and to frame Writs and
proceedings for that purpose j Be it enacted as follows :
CCCXIII. (h) It shall be lawful for the Judges of the said Eng. c. l. p.
ecWed, adhered to tho distinction in
the following sect'ons, the object of
trbich is to enable the Courts and
Judges " fi'on^ time to time to malie
rules and regi^iations" in order " to
carry this Act thoroughly into effect,"
gnd "to frame writs and proceedings
for tliat purpose."' It is expected that
the powers to bo exorcised by the
Courts will be exercised in reference
to and upon the model of the Act itself.
The divisions of Process, Practice, and
Pleading, the landmarks, as it were,
of the Act, are to be kept in view by
the Courts when framing rules and
regulations. First, us to Process,
there is power to issue "new or
altered writs :" (s. oocxiv.) Second,
83 to Practice, there is power to make
rules and orders " for fixing the costs
tobeallowed," &c., "for apportioning
the costs of issues," &c., and '• for the
purpose of enforcing uniformity of
practice in the allowance of costs,"
&c.: (see first part of 8. ocxiii.) Third,
As to Pleading, there is power " to
make alterations in the time and mode
of pleading," "in the mode of entering
and transcribing pleadings," &c., "iu
the time and manner of objecting to
errors in pleadings," &c., "in the
mode of verifying pleas," &c. : (see
second part of s. cccxiii.) Tho power
of the Courts to make alterations in
existing laws or issue rules contrary
to existing Statutes is a power deriv-
able from statute rather than inherent
in the jurisdiction of the Courts. It is
as it were a power delegated to the
to the Courts by the Legislature, and
only exercisable in tho manner the
Legislnture prescribes. In England
in 1833 the Legislature authorized the
Judges of the Superior Courts at any
time within live years to make altera-
tions in the mode of pleadinur, &o. : (3
& 4 Wm. IV. cap. 42, s. 1.) Tho le-
gislature of Upper Canada shortly
afterwards adopted this Statute as a
part of our laws : (7 Wm. IV. cap. 8,
s. 1.) Both in England and in Upper
Canada the power was limited in dur-
ation to five years, and in each country
the Judges availed themselves of it
and issued rules within the time
limited. The powers were then allowed
to expire, and in both countries after
the time limited wholly ceased to exist.
In England in the year 1850 the power
was revived by express authority of the
legislature for a further term of five
years: (13 & 14 Vic. cap. 16.) Tho
Act reviving the power appears to be
substantially a re-enactment of the
previous Statute, 3 & 4 Wm. IV. c.
42, e. 1. No re-enactment of our 7
Wm. IV. cap. 3, was made previous to
the passing of the Common Law Pro-
cedure Act, 1850, s. cccxiii., which
contains the re-enactment required.
The latter part of s. cccxiii. ofourC.L.
P.A. and s. 1 of Eng. St. 13 & 14 Vic.
0. 16, are copies of the same original :
(3 & 4 Wm. IV. cap. 42, s. 1), ond are
therefore copies of each other. It is
submitted that under our s. cccxiii. the
Judges have no general power to make
rules over-riding the C.L.P.A. Refer-
ring to the recital as a key to what fol-
lows, the powers are given " to enabl?
the Courts and Judges to carry this Act
thoroughly into effect," and " for that
purpose" "to make rules, &c." If
rules contrary to the letter of the Act
were necessary for thoroughly carry-
ing into effect its spirit, such rules
might it seems be made : (see Rowberry
V. Morgan, 9 Er. 730.) Of this N. R.
146 as compared with s. xiii. of C. L.
P. A., 1856, is an example.
(6) Taken from Eng. Stat. 15 & 16
Vic. cap. 76, s. 223. — Not applied to
County Courts. The power of the
Judges of the Supreme Courts to make
rules for the government of County
Courts has been doubted: (Chard v.
Lount, Chambers, Oct. 6, Burns, J. II,
U. C. L. J. 227), but since this
r u-
i!!i- V
• , f
Vir
Mi^
h- u
I'^l.-'li IfvS
\m-i
:*"'
I '
■ '■ IR.'iJ
; i^?
?i
i-i
624
I'ower to
make rules
•flbct
Act.
THE COMMON LAW PROOKDURE ACT.
"'§33 3
(>y
5i«U!' Sff<. /;
C^'^MiW^.
[8. oocxiii.
Courts (c) or any four or more of them, of wliom the Chief
Justices shall be two, (d ) from time to time to make^l such
K«vinK general rules aud orders for the effectual execution of this Act
and of the intention and object hereof, (e) and for fixing the
costs to be allowed for and in respect^f the matters herein con-
tained and the performance thereof, \f) and for apportioninc
the costs of issuesj^flr) and for the purpose of enforcintr uni-
formity of practice in the allowance of costs in the said Courts (h)
as in their judgment shall be necessary or proper, {%) and for
that purpose to meet from time to time as occasion may re-
quire ; (y ) and it shall also be lawful for the said Judges {k)
or any four or more of them, of whom the Chief Justices shall
pleading, 4c. bc two, (V) by any rule or order to be from time to time by
To make
Airther alte-
rations in
mode of
case a olanse has been introdaced
into the recent G.L.P.A, 1857, giving
the requisite authority: (s. 0.)
(e) i.e. Queen's Bench and Common
Pleas.
{d) The Eng. C. L. P. A, reads, " It
shall be lawful for the Judges, &o., or
any eight or more of them, of whom
the Chief Justices of each of the Courts
shall be three," &o. In England there
are three Superior Courts of common
law jurisdiction, each having one Chief
J 'stice and three Puisne Justices. In
Upper Canada there are only two, each
having one Chief Justice and two
Puisne Justices. Hence the change in
the language of our C. L. P. Act as
compared with the Eng. C. L. P. Act
(e) The power here conferred is to
" make genera/ rules and orders for the
efficient execution of this Act," &o.
Immediately following there is power
given to make rules and orders, for
subjects of practice specifically men-
tioned, as " costs to be allowed," &o.
These rules, whether general or parti-
cular, are clearly to be made "for the
effectual execution of this Act and of
the intention and object thereof."
(/) See Sch. B. to N. Rs.
\g) SeeN. R. 51.
(A) The Eng. C. L. P. A. here con-
tinues *' and of ensuring as far as may
be practicable an equal division of the
business of taxation amongst the Mas-
ters of the said Courts."
(i) The powers conferred are very
extensive ; but it is a question whether
they authorize the Judges to make
rules overruling the C. L. P. Act or iu
any way altering its provisions, though
in the opinion of the Judges necessary
for the effectual execution of the Act.
See Rowberry v. Morgan, 9 Ex. 730.
(y) The sent of the Superior Court
of Common Law in Upper Canada is
Toronto, and is the place intended for
the meeting of the Judges.
(A) •• And it shall also be lawful,"
&c. The Eng. C.L.P.A. reads, «'And
it shall be further lawful," &c. The
inference is that the section proceeds
to confer powers such as are not con-
ferred by the previous part of the sec-
tion. The remainder of the section
here annotated is taken from Eng;. St.
18 & 14 Vic. cap. 16, which never hav-
ing been in force in Upper Canada is
specifically enacted. In the Eng. C.
L. P. A. it is simply provided that "it
shall be lawful for the Judges . .
from time to time to er-^rrise all the
powers and authorit;,' ^':ivl.n them by
Stat. 13 & 14 Vic. cap. 16, with re-
spect to any matter in the C. L. Act
contained relative to praotice and
pleading:" (Eng. C.L.P. Act, 1852, s.
223.)
(Z) See note d, supra.
|,0001U>'] POWER TO MAKE RULES.
them made in Term or Vaoation at any time within five years
after this Act shall come into force, (i») to make such iVirthcr
alterations in the time and mode of pleading in the said
Courts, (n) and in the mode of entering and transcribing plead-
ioss judgments, and other proceedings in actions at law, and
JQ the time and manner of objecting to errors in pleadings and
other proceedings, and in the mode of verifying picas and ob-
taining final judgment without trial in certain cases, as to them
may seem expedient, anything in this Act to the contrary not-
withstandinj^^ A^o) and all such Kule, Order, or Regulations ( p)
shall be laid before both Houses of Parliament of this Province,
if Parliament be then sitting, immediately upon making the
same, or if Parliament be not sitting, then within twenty days
after the next meeting thereof; and no such Bule, Order, or
Be^ulation shall have effect until thiee months after the same
shall have been so laid before both Houses of Parliament, (3)
625
RuIm, Ae., to
be Uid before
ParliHment,
«it«l not to
liave oRoet
tot a certatn
time
tli«Nr««ft«r.
(>.'
§^^6-
Un) Within five years, &c. There
yiis a similar limitation in Stat. U. C.
7 Wm. IV. 0. 3, s. 1, which was taken
from Eng. Stat. 8 & 4 Wm. IV. c. 42,
e. 1 ; the origin of Eng. St. 13 and 14
Vic. cap. 16 : (see note a, ante.)
In) "To malte alterations in the
timi and mode of pleading," &c. The
power to make alterations in the time
of pleading, which is a power neither
conferred by Eng. Stat. 3 & 4 Wm.
IV. cap. 42, s. 1, nor 13 & 14 Vic. c.
16, would seem to contemplate altera-
tions at variance with the C. L. P. A,
which makes provision for the time of
pleaiding: (ss. cii. cxii.)
(0) With the exception pointed out
in the previous note, this part of the
section is an enactment of Eng. Stat.
13 & 14 Vic. cap. 16.
(p) And all sucfi rules, &c. A ques-
tion might be raised whether the rules
intended are those for which provision
is made in the first part ns well as in
the part of the section under consider-
ation. Though the words of the sec-
tion might bear such a construction, it
would be a construction quite at vari-
ance with the Eng. C. L. P. A. Both
the Eng. C. L. P. A. and our C. L. P. A.
as already observed in noto a, ante^
provide for at least two sets of rules—
the one for practice, the other for
pleading. It is intended that tiie
former shall take effect from the time
of their promulgation ; but the latter
only after having been laid before Par-
liament for a specified period of time.
Such was the view taken by the Judges
of Upper Canada, who in issuing tiie
rules of T.T. 1856, made the first divi-
sion of tjie rules relating to practice
take effiact immediately, but declared
that he second division relating to
pleading should not take effect until
E.T. 1857. The object was to lay the
latter before the legislature which was
expected to meet early in the Spring of
1857. This object it is believed has
been carried into execution during the
late session of the legislature.
(p) Within twenli/ days, &o. The
time limited in the English and Cana-
dian Stats, of William IV. was " five
days."
(j) Rules when laid before Parlia-
ment in pursuance of a direction such
as the above have the effect of an Act
passed by the legislature. The object
of submitting the rules to the legisla-
i •■'*
■ mill !.*«>
■■I
526
THE COMMON LAW PROCEDURE ACT.
■1* 'mwhi
(7/
[s- cccxiii,
and any Rule, Order, or Regulation so made shall, from and
after such time as aforesaid, (r) bo binding and obligatory on
the said Courts («) and on all Courts of Error and Ap )eal in
this Province, into Tvhich the Judgments of the said Courts or
either of them shall be removed, (0 and bo of like force and
effect as if the provisions contained therein had been expressly
§33() enacted by the Parliament of this Province] '(h) ProviJed
ProTiso: always, that it shall bo lawful for the G ovcrnor of this Provinoo
Such rules , , . n • ^ <• i -it ,^ '*"*•«,
may bo by proclamation, or tor either oi the Houses ot Parliament bv
in whoioor any resolution, at anytime within three months next after such
" **" ' Rules, Orders, and Regulations shall have been laid before
Parliament, to suspend the whole or any part of such Kules
Orders, or Regulations, (v) and in such case the whole or such
ture ia that they may be either con-
firmed or rejected as the legislature in
its wisdom may see fit. This pre-
sumes an inspection if not a critical
examination of the rules submitted.'
But the presumption is not supported
by facts, and the form of submission is
known to bo idle and useless. The rules
in general provide for matters of prac-
tice in detail and are made by men
fully competent from knowledge and
position to do them justice. This is
more than can be aaid of any mixed
body of men such as a Parliament, of
whom few members are lawyers. The
majority have neither the disposition
nor capacity to revise rules of Court
made by the Judges of the Courts.
Under these circumstances the wisdom
of enacting that " no such rule, &c.,
shall have eflFect for three months until
after the same si all have been laid
before both Houses of Parliament" is
difficult of discernment.
(r) t. c. After the expiration of
three months, &c., as mentioned in the
last note.
(») i. e. Caeca's Bench and Common
Pleas.
(<) There is only one Court of Error
and Appeal in Upper Canada : (20 Vic.
cap. 6.)
(w) This effect of laying rules before
Parliament is of moment. Should the
rules clash with existing Statutes, the
Statutes would become virtually re-
pealed. When two Acts of the Legis-
lature are inconsistent, the later of "the
two being the last expressed intention
of the Legislature is considered as an
abrogation of the former. It is enact-
ed that the rules intended by tliis sec-
tion shall "bo of like force and effect
as if the provision contained therein
hud been expressly enacted by tlio
Parliament of this Province." Tho
conclusion is manifest. Rules made
at different times but inconsistent with
each other will bo governed by lilje
principles.
(i-) Provision is only made for lay-
ing tho rules, &c., before both Houses
of Parliament, and yet it sliall be law-
ful for the Governor of the Province
to suspend, &c. Either House may
also by resolution suspend, &c. It
would have been more proper to have
provided for laying tho rules, &,c., be-
fore the Governor General, in addition
to tho two Houses of Parlinmont. Tlie
intention is that any one of the tliree
branches of the Legislature may ex-
ercise the power of suspending the
rules. Such being tho case, each of
the three branches of tlio Legisla-
ture should bo equixlly iiiforticd,
in order to the exercise of the
powers conferred by liaving the
rules laid before it. Tho anomaly is
that cither one of the three branches
(. ccoxiv.]
POWER TO FRAME NEW WRITS.
62T
\
V
part thereof as shall be so suspended, shall not be binding or
obligatory on the said Courts or on any Court of Error and
Appeal; (w) Provided also, that nothing herein contained shall JI"J''?*"
1)6 construed to restrain the authority or limit the jurisdiction pow«r to
of the said Courts or the Judges thereof, to make rules or not affected.
nrders. or otherwise to regulate and dispose of the business /« , o
therein, (x) / ■ .
CCCXIV. (y) Such new or altered writs and forms of V^^'MtAm^'<^e^j f^^t/-^^
ceedings (z) may bo issued, entered, and taken, as may by thc«^^-^- i^.^'.cA 12
Tud^es of the said Court, (a) or any four or more of them, of *c .ofnawor ^ i 58
" o , nlturcd
Trhom the Chief Justices shall be two, (6) bo deemed writs,
necessary or expedient for giving effect to the provisions hero-
JDbefore contained, and in such forms as the Judges as afore-
said shall from time so time think fit to order ; (c) and such . .
writs and proceedings shall be acted on and enforced in such
and the same iaanner as writs and proceedings of the said
Courts are now acted upon and enforced, or as near thereto as
the circumstances of the case will admit ; (<?) and any existing as to exist-
writ or proceeding, the form of which shall bo in any manner '^hiduho*^
altered in pursuance of this Act, shall, nevertheless, be of the Ji^^J^ i,y
same force and virtue as if no alteration had been made therein, *^'* ^''*'
except so far as the effect thereof may be varied by this Act. (c)
may ("ercise the powers, but that
two only can regularly have the neces-
sary information.
(it) It is enacted that the rules, &c.,
"suspended" shall " not be binding or
obligatory" on the Courts. The word
"suspended" seems to be used in the
sense of the word ♦' annulled." To
annul a thing is to put an end to it for
all time to come ; but to suspend it is
only to put an end to it for a certain
time. In this sense we speak of " sus-
pending the Habeas Corpus Act."
(z) Tlie rules authorised by this
section appear to be general rules of
praclice, particular rules of practice,
rules of pleading, and rules for the
disposal of business pending in the
Courts.
(y) Taken from £ng. Stat. 15 & 16
Vic. cap. 76, s. 224.
(z) See note a to s. ccxiii.
(a\ Court. " Courts" intended.
\b) See note d to s. ccxiii.
(c) See Schd. of Forms to N. Rs. of
T.T. 1856.
{d) One great change brought about
by the forms attached to the N. Rs, is
that of making writs of execution re-
turnable " immediately after the exe-
cution thereof:" (See forms Nos. 29
et aeq. to N.Es.) Formerly executions
were made returnable on a fixed
day, in term, appearing in the body
of the writ. When not returned on
the appointed day the sheriff was
liable to be attached for contempt
of Court. The sheriff is still liable to
attachment for breach of duty in ne-
glecting to return a writ within a rea-
sonable time after its receipt : (see note
A to s. clxxxix.)
(e) With the exception of writs of
execution being made returnable " im-
>■■ ,
1 »
Mi
«-
Ll.:&
y
W8 THE COMMON LAW PROCEDURE ACT. [ss. CCCxiv<-y
CCCXV. (/) Nothing in this Act contained shall in any
l^Iny lid^ way restrict or limit the powers now vested by law in any one
&"of fti* °^ ^^ Judges of the Superior Courts of law, sitting apart from
the others of them, in Term time, or sitting in Chambers but
all the powers conferred by an Act of the Parliament of this
Province, passed in the Session held in the thirteenth and
fourteenth years of Her Majesty's Reign, and intituled, An Act
to confirm and give effect to certain rules and regulations
made by the Judges of Her Majesty's Court of Error and
Appeal for Upper Canada, and for other purposes, relatinn
to the powers of the Judges of the Courts of Law and EquUu
iu that part of the Province, and the practice and decisions of
certain of those Courts, (g") shall continue to be exi icised by
such Judges, and shall extend to all matters and questions to
arise and be decided under this Act, (/t) and whorever any
power is given by this Act to the Court or a Judge, the words
" a Judge " shall be held to authorise any Judge of either of
the said Superior Courts, to exercise such power, although the
particular proceeding may not be in a cause pending in the
Court whereof he is a Judge, (t)
c^ sut f6y-j„ag,,„^y CCCXVI. (J) It shall be lawful for the Judges of the
^ '^ foMh^'wie'" Superior Courts (Je) during each term (I) to appoint one or more
purpoBe of ,jayg within ttrce weeks next ensuing the last day of such term,
judgment, qu which they will give Judgment; (m) and such Superior
Courts on the days appointed may sit in banc, for the purpose
only of giving Judgment, and of making Rules and Orders in
matters which have been moved and argued in such Courts
respectively ; («) and all Judgments, Rules, and Orders which
"^^D
,ti'; 'ii:v fi'
mediately after the execution thereof,"
as mentioned in the preceding note,
they remain substantially the same as
before the C. L. P. A, 1856.
(/ ) This section, which is original,
is intended to prevent questions which
might arise had it not been passed.
(ff) 13 & 14 Vie. cap. 61 : (Har.
Prac. Stats, p. 181.)
(A) In connection with 13 & 14 Vic.
cap. 61 {ubi supra) see 12 Vic. c. 63,
0. : (Har. Prac. Stats, p. 163.)
(j) See Palmer v. Justices Aisurance
Co, 28 L. T. Rep. 120.)
(J) The origin of this section is
Prov. Stat. 4 & 6 Vic. cap. 5.
(k) i.e. Queen's Beach and Common
Pleas.
(I) As to the terms see note n, infra.
(m) As to computation of time, seo
note d to s. Ivii.
(n) Writs were formerly always
made returnable at certain stated days
in different seasons of the year. These
iticcs Aiiuranet
). . .
this section is
I, eoozvii-viii.] acts repealed. 629
shall be pronounced and made on suob days in pursuance of
the authority hereby given, shall have the same c£fcct to all
intents and purposes, as if they had been pronounced or made
in Term time, (o)
COCXVII. (jp) In citing this Act in any instrument, <loou- short Titi« <
ment, or proceeding, it shall be sufficient to use the expression (i862,i.!a6.)
"The Common Law Procedure Act, 1856." (q)
CCCXVIII. (r) And be it enacted, That from the time Acts and
when this Act shall commence and take effect, the fourth, repoaitd.
fifth, sixth, seventh, eighth, ninth, fourteenth, and thirty-
fifth Sections of an Act of the Parliament of Upper Canada,
passed in the second year of the lleign of the late King George
the Fourth, intituled. An Act to repeal part of and amend Fa.rt ot Act
the laws now in force respecthuj the practice of JIls Majesty* 8\c,'\,''
Court of King* 8 Bench in this Province; («) the whole of an
Act passed in the fifty-ninth year of the Reign of the late Kirg
George the Third, intituled. An Act to pr^cvent the abatement j^^^^f^Q
of any action against a Joint obligor, or contractor, or partner, ** ^' ^ '• ^'
on account of the other joint parties not being made defend-
mti ; (0 the whole of an Act passed in the Session of Parlia-
retorns or Termini ad quos when they
fell very near together collectively,
eonstitnted a period of legal business
thich was generally called Terminus
or Term: {2 Reeves' His. 66.) The
terms are those periods of the yew
during which the Courts sit for the des-
patch of business. They are four in
number, -viz., Trinity, Michaelmas,
Hilary, Easter. Trinity begins on the
Monday next ofter 2l8t August, being
the expiration of the long vacation,
Michaelmas on the third Monday of
November. Hilary on the first Mon-
day in February. Easter on the third
Monday in May. Each term begin-
ning on a Monday continues until the
Saturday of the ensuing week : (G. L.
P. A, 1867, s. 29.) The right to sit
after term is by this section for tho
purpose only of giving judgment and
of makiug rules and orders in matters
which have been moved and argued in
such terms respectively.
(o) A term generally is considered
only as one day, so that a paper in-
titled as of a particular term may be
taken to have reference to the first day
of that term.
if) This section corresponds with
8. 235 of Eng. St. 15 & 16 Vic. c. 76.
(}) The practice of calling Acts of
Parliament by short titles is a mo-
dern innovation. It is, however, one
which owing to its utility is becoming
daily of more general application.
(r) This section repeals five distinct
clauses of Acts, viz., Acts relating to,
1, Practice generally ; 2, Absent De-
fendants ; 8, Absconding Debtors ; 4,
Insolvent Debtors ; 6, Qaol Limits.
(s) As to parts unrepealed see Har.
Prac. Stats, p. 8.
(f) K'a, to joinder of parties, &c., see
S3, bcvii. tt teq. of this Act
^•^i^t
-^k,i
f'
/
t
010
TBI COMMON LAW PROOKDURE ACT.
[i. cccxYiii.
Act of
CaoMtat
8 v., 0. 5
ment held in the fourth and fifth years of Her Majesty's Keign
j^^^ intituled, An Act to facilitate the detpatch of buiineu in the
rSTr, e. 6. Court of Queen' $ Bench in Upper Canada ; (u) the forty.
fourth Section of an Aot of the Parliament of this ProTiuce
passed in the eighth year of Her Majesty's Reign, intituled
Pu-tof Aet An Act for the relief of intolvent debtors in Upper Canada
8V.,c.48.* and for other purpoae$ therein mentioned j (y) the whole of
an Act of the Parliament of this Province, passed in the eighth
year of Her Majesty's Reign, intituled. An Act to allow the
iuuing of testatum Writs of Capias ad respondendum in the
several districtt of Upper Canada, and for other purposes
therein mentioned ; (w) the nineteenth, twentieth, twenty-first
twenty-second, twenty-third, twenty-fourth, twenty-fifth
twenty-sixth, twenty-seventh, twenty-eighth, thirtieth, thirty.
first, thirty-third, thirty-fourth, and thirty-sixth Sections of an
Aot of the Parliament of this Province, passed in the twelfth
year of Her Majesty's Reign, intituled. An Act to make further
provision for the Administration of Justice hy the establish-
ment of an additional Superior Court of Common Law, and
also a Court of Error and Appealin Ujtpcr Canada, and for
other purposes; (x) the first Section of an Act of the Parliament
of this Province, passed in the twelfth year of Her Majesty's
Reign, intituled,^n Act to amend and extend the provisions of
the Act of this Province, intituled, ' An Act to allow the issuing
* of testatum writs of capias ad respondendum in the several
* districts of Upper Canada, and for other purposes therein
, ;•; J mentioned;' (y) the whole of an Act of the Parliament of this
Province, passed in the Session holdcn in the fourteenth and fif-
CtMda. teenth years of Her Majesty's Reign, intituled. An Act to alter
^*ii4. ^'*''' ^^^ Kttle the mode of proceeding in the action of Ejectment ; (z)
Part of Act
of Canada,
12 v., e. 63.
Part of Aet
of Canada.
12 v., c. 68.
(u) Substantially re-enaoted by s.
cccxvi. of this Act.
(v) As to parts unrepealed see Har.
Prac. Stats, p. 95.
(to) The Testatum Writs Aot is re-
pealed because no longer necessary :
(ss. xxTii-xxxi.)
(z) As to parts unrepealed see Har.
Prac. Stats, p. 160.
(y) There is only one section of this
Act remaining unrepealed. It ms
framed to remoTe doubts as to certain
judgments entered on cognoTits in
outer districts where no process bad
issued before the passing of the Act.
Having no prospective operation it is
of no general importance.
(z) This Aot is re-enacted and mncli
amplified by the C. L. P. A.: (see ss.
ccxx. et seq.
8. ccoxviil]
ACTS REPIALXD.
581
(he whole of an Act of tho Parliamont of this Province, passed
in the Session holdon in the fourteenth and fifteenth years of
Her Majesty's Reign, intituled, An Act to alter <A«i>«nW/or a^^^^
yding certain Cmrti in the County of York ; (a) the whole i* v., c. i6.
of an Act of tho Parliament of this Province, passed in the
Session holden in the fourteenth and fifteenth years of Her
Majesty's Reign, intituled. An Act to provide a remtdy againtt Act of
ohtent Defendant) ; (h) the whole of an Act of the Parliament is v., c. lu'.
of this Province, passed in the sixteenth year of Her Majesty's
Beign, intituled. An Act to explain an Act intituled, * An Act of
Act to provide a remedy against absent Defendants ;* (c) theieV.o'.ss
fint twelve Sections inclusive, the fifteenth, twenty-sixth,
twenty-seventh, twenty-eighth, and twenty-ninth Sections of
an Act passed in the sixteenth year of Her Majesty's Reign,
intituled. An Act to provide for the more equal distribution o/o'^MdJu*
hiuiness in and to improve the practice of the Superior Courts^^ v., 0.175.
of Common Law in Upper Canada, and for other purposes
therein mentioned; (d) tho forty-third, forty-fourth, and forty-
fifth Sections of an Act passed in the eighteenth year of Her
Majesty's Reign, intituled. An Act to amend the Criminal ^^^'^^^^
Law of this Province ; (e) the whole of the Act of the Parlia- ^^ v., 0. n.
ment of Upper Canada, passed in the second year of the Reign
of the late King William the Fourth, intituled, An Act to
afford means for attaching th4 property of Absconding Debt-iW. 4, c. 6.'
on; the whole of an Act of the Parliament of Upper Canada,
passed in the fifth year of the Reign of tho late King William
the Fourth, intituled, An Act to continue and amend the law xetotv.c^
for attaching th^ property of Absconding Debtors ; the whole * ^' *'"" *'
of an Act of the Parliament of this Province, passed in the
twelfth year of Her Majesty's Reign, intituled. An Act to re-^^t^f
duce the expense of proceedings in Upper Canada against the 12^"' 67.
property of Absconding or Concealed Debtors; (/) the whole
(a) New provision is made by s.
clii. et leq.
(b) The provisions of the C. L. P. A.
as to British subjects, &c., resident
abroad (s. xxxv.) and as to absconding
debtors have rendered this Act un-
necessary. „,
(c) For the reasons mentioned in
the last note this Statute is also re-
pealed.
{d ) For parts unrepealed see Ear.
Frac. Stats, p. 246.
(e) See C. L. P. A. 1857, s. 80.
(/) Owing to the consolidation ot
I ;
i .:'.
532
THE COMMON LAW PROCEDURE ACT. [s. CCCXviii.
■:»i A
of an Act of the Parliament of Upper Canada, passed in the
forty-fifth year of the Reign of the late King George the Third
Act ofu. c, intituled, An Act /or the relief of Insolvent Debtors ; the whole
'of An Act of the Parliament of Upper Canada, passed in the
second year of the Reign of the late King George the Fourth
ActofU.C, intituled, An Act to make further regulations respecting th
' ' ' ' tceeklj/ maintenance of Insolvent Debtors ; the whole of an Act
of the Parliament of Upper Canada, passed in the eighth year
of the Reign of the late King George the Fourth, intituled, An
Act for the further relief of Insolvent Debtors; the whole of
an Act of the Parliament of Upper Canada, passed in the fourth
year of the Reign of the late King William the Fourth, intituled
An Act to afford relief to persons confined on mesne process : (g)
the whole of an Act of the Parliament of Upper Canada, passed
in the eleventh year of the Reign of the late King George the
Fourth, intituled,'14n Act to repeal and amend the laws novo in
force respecting the limits of the respective Gaols in this Pro-
vince ; the whole of an Act of the Parliament of Upper Canada
passed in the fourth year of the Reign of the late King William
ActofU.C, the Fourth, intituled, An Act to extend ths limits assigned to
'the respective Gaols in this Province, and to afford to Plaintiff's
the means in some cases of more effectually compelling the pay-
ment of debts due to them by Defendants in execution; the
whole of an Act of the Parliament of Upper Canada, passed in
the fifth year of the Reign of the late King William the Fourth,
ActofU.C, intituled, An Act to mitigate the laio in respect to imprimnment
ow.4,c.3. y.^^ debt; the whole of an Act of the Parliament of this Pro-
vince, passed in the Session held in the tenth and eleventh
years of the Reign of Her Majesty, intituled. An Act to amend
the law of imprisonment for debt in Upper Canada; (K) to-
gether with all other Acts or parts of Acts of the Parliament of
Upper Canada or of this Province, at variance or inconsistent
with the provisions of this Act, shall be and the same are hereby
ActofU.C,
8 O. 4, c. 8.
ActofU.C,
1 W. 4, c. 3.
ActofU.C,
11 G. 4, c. 3,
Act of
Canada, 10,
11 v., c. 16.
- , I
ri
the laws as to Absconding debtors : (s.
xliii. et acq.) this and the two preceding
Acta are repealed,
(g) Owing to the consolidation of
the laws as to Lisolvent debtors the
repeal of the three preceding Acts
is necessary: (a. ccci.)
(A) Owing to the consolidation of
the laws as to Gaol limits the repeal of
this and the three preceding Acts
became necessary.
s. cooxviii.]
ACTS REPEATED.
588
repealecl, (i) except so far as the said Acts, or any of them, or ^,g^*'„t''"°°"
anything therein contained, repeal any former Act or Acts, or enactments,
any part thereof, all which last mentioned Act or Acts shall
remain and continue so repealed, Q' ) and excepting also so
far as the said Acts or parts of Acts are repealed, and the pro- Exception,
visions thereof or any of them, shall and may be necessary for
supporting, continuing and upholding any writs that shall have
been issued, or proceedings that shall have been had or taken
before the commencement of this Act, and any further proceed-
ings taken or to bo taken thereon. (Jc)
(A On every act professing to repeal
or interfere with the provisions of a
former Act, it is a question of con-
struction whether it operate as a total
or partial, or temporary repeal. The
word " repealed" is not to be taken in
an absolute, if it appear upon the whole
Act to be used in a limited sense :
(Dwarris on Stats. 534.) Where seve-
ral Acts of Parliament upon the same
subject had been totally repealed and
others repealed in part, it was held
that it must have been the clear in-
tention of the legislature that only the
part of an Act particularly pointed out
should be repealed : (lb.)
(;■) By the repeal of a repealing
Statute (the new law containing nothing
in it that manifests the intention of
the Legislature that the former Act
shall continue repealed) the original
Statute is revived ; but if a Statute be
repealed by several Acts, a repeal of
one Act or two and not of all does not
revive the first Statute : (Dwarris on
Stats. 534.) If a repealing Statute
and part of the original Statute be re-
pealed by a subsequent Act, the resi-
due of the original Statute is revived.
If an Act of Parliament be revived, all
Acts explanatory of that so revived are
revived also: (76. p. 635.) It is, how-
ever, usual when no revival is intended
expressly to provide against the revival,
as is done in the section here annotated.
(k) The law of arrest before the C.
L.P.A. 1856, was St. 8 Vic. c. 48, s. 44.
It was continued by Stat. 18 Vic. cap.
85, to 1st January, 1856, and from
thence ♦' to the next ensuing session of
Parliament and no longer." The next
ensuing session was that of 1856, which
ended on 1st July, 1856. The C.L.P.
Act, which came into force on 21st
2l8t August, 1856, repeals 8 Vic. cap.
48, 8. 44, with the exception here an-
notated, for the support of pending
proceedings. Held that between 1st
July and 21st August, 1856, there was
no power to arrest under 8 Vic. cap.
48, B. 44 ; but that the right to arrest
existed under the old Statute of 2
Geo. IV. cap. 1, s. 8, which during
that period was revived : (Barrow v.
Capreol, Chambers, Sept. 26, 1856,
Burns, J. II. U. C. L. J. 210.)
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SCHEDULE A. -
(a) No. 1. — {Vide Section XTi.) '
Wbit of Summons when thb Defendant sesides within tub Jueisdiotion.
Upper Canada, \ Victoria, by the Grace of God, &c.
To C. D. of
in the County of
County of
(Seal.)
We command you that within ten days after the service of this Writ on you,
inclusive of the day of such service, you do cause an appearance to be entered
for Tou in our Court of , in an action at the suit of A. B. ; and take
notice that in default of your so doing, the said A. B. may proceed therein to
jadgment and Execution.
Witness, &o.
In the margin.
Issued from the Office of the Clerk {or Deputy Clerk) of the Crown and PleaF,
in tbe County of
(Signed) J. H., Clerk {or Deputy Clerk).
Memorandum to be subscribed on the Writ.
}f,B._This Writ is to be served within six calendar months from the date
tiiereof, or if renewed, from the date of such renewal, including the day of such
date, and not afterwards.
Indorsements to be made on the Writ before the service thereof. '
This Writ was issued by E. F., of , Attorney for the said Plaintiff, or
this Writ was issued in person by A. B., who resides at {mention the City, Town,
Incorporated or other Village, or Township within which such Plaintiff resides.)
Also the Indorsement required by the twenty'sixth Section of the Act.
Indorsement to be made on the Writ after service thereof.
This Writ was served by X. Y. on C. D. (the Defendant or one of the Defend-
snts), on the day of one thousand eight hundred and
(6) No. 2.— {Vide Section xxii.)
Writ of Capias.
}
Vtctokia, &c..
To the Sheriff of, &o.
Upper Canada,
County of
(Sbal.)
We command you that you take C. D., if he shall be found in your (County or
United Counties], and him safely keep until he shall have given you bail in an
action (on promise or of debt, &c.) at the suit of A. B., or until the said G. D.
shall by other lawful means be discharged from your custody : And we do further
(a) Eng. Stat. 16 & 16 Vic. cap. 76, Sch. A. No. 1.
(6) Prov. Stat. 12 Vic. cap. 68, Sch. No. 8.
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1 '■ ;«--.'si.. ' j
■II
536
THE COMMON LAW PROCEDURE ACT.
'•1,
I i
I I
l>
c^'a
command you, that on execution hereof you do deliver a copy hereof to the said
C. D. ; [isind We hereby require the said C. D. to take notice that within ten davs
after execution hereof on him, inclusive of the day of such execution, he cause
execution hereof, you do return this Writ to the said Court, together with the
manner in which you shall have executed the same, and the day of the Execution
thereof, or if the same shall remain unexecuted and shall not be renewed accordioi;
to law, then that you do return the same at the expiration of six calendar months
from ths date hereof, or of the last renewal hereof, or sooner if you shall be
required thereto by order of the Court or of a Judge. « . .
Witness, &c. ' i
In the margin.
Issued from the Office of the Clerk {or Deputy Clerk) of the Crown and Pleas
in the County of '
{Signed) J. H., Clerk {or Deputy Clerk).
Menoranduvi to be subscribed on the Writ. ^
N.B. — This Writ is to be executed within six calendar months from the date
hereof, or if renewed, then from the date of such renewal, including the day of
such date, and not afterwards. > ,
• > Warning to the Defendant.
1. If a Defendant being in custody shall be detained on this Writ, or if a De-
fendant biing arrested thet-eon shall go to prison for want of bail, the Plaintiff
may declare against any such Defendant before the end of the Term next after
such arrest, and proceed thereon to Judgment and Execution.
2. If a Defendant having given bail to the Sheriff on the arrest, shall omit to
put in special bail conditioned for his surrender to the SheriflP of the County from
which the Writ of Capias issued, and to file the bail piece in the Office of the
Clerk or Deputy Clerk of the Crown and Pleas for the same County, the Plaintiff
may proceed against the Sheriff or on the bail bond.
8. If a Defendant having been served with this Writ and not arrested thereon
shall not enter an appearance within ten days after such service, in the OflBce of
the Clerk or Deputy Clerk of the Crown from which the Writ issued, the Plaintiff
may proceed to Judgment and Execution.
Indorsement to be made on the Writ before the Service thereof.
This Writ was issued by E. F. of , Attorney, &c., as in form No. 1.
Bail for £ , by affidavit, or by Judge's order, as the case may be.
Also the Indorsement required by the twenty-sixth Section of the Act.
Indorsement to be made on the Writ after execution thereof.
This Writ was executed by X. Y., by arresting C. D., or as the case may le, as
to service on any Defendant, on the day of ons
thousand eight hundred and
U 'I
I
SCHEDULE (a).
537
(c) No. 3. — ( Vide Section xxxt.)
Writ whebb ths Defendant, beinq a British Subject, besides out of
Upper Canada.
Upper Canada, "» Victoeia, &c.
County of J ToC. D., of
(Seal.)
We oommand yon that within {here insert a sufficient number of days aeeordinff
to the directions in the Act,) days after the service of this Writ on you,
inclusire of the day of suoh sorvice, you do cause an appearance to be entered
for you in our Court of , in an action at the suit of A. B. ; and take
notice that in default of your so doing, the said A. B, may, by leave of the Court
or a Judge, proceed therein to Judgment and Execution.
Witness, &o. '
In the margin.
Issued from the Office of, &o. {as in foregoing cases).
Memorandum to be subscribed on the Writ.
IT.B.— This Writ is to be served within six calendar months from the date
thereof, or if renewed, then from the date of such renewal, including day of such
date, and not afterwards.
Indorsements to be made on the Writ before the Service thereof.
This Writ is for service out of Upper Canada, and was issued by E. F. of
Attorney for the PlaintiflF, or this Writ was issued in person by A. B. who resides
at {mentioning Plaintiff's residence, as directed inform No. 1.)
{Also the Indorsement required by the twenty-sixth Section of the Act, allowing ih»
Defendant two days less than the time limited for appearance, to pay the debt and
costs, > .. . .
{d) No. 4. — (Vt'cfe Section xxxvi.)
Wbit wnsBB TUE Defendant, not beinq a British Subject, besides
OUT OF Upper Canada.
}
Victoria, &c.
To C. D., late of
, in the County of
Upper Canada,
County of
(Seal.)
We command you that within days (insert a sufficient number according
to the directions oj the Act) after notice of this Writ is serve J on you, inclusive of
the clay of such service, you do cause an appearance to be entered for you in our
Court of , in an action at the suit of A. B. ; and take notice that in
default of your so doing, the said A. B. may, by leave of the Court or a Judge,
proceed thereon to Judgment and Execution.
Memorandum to be subscribed on the Writ.
The same es on form No. S. '^ '
Indorsetncnt also as on form No. 8.
And in the margin. ' '
Issued from the office of, &c. {as in foregoing eases).
(e) £ng. Stat. 15 & 16 Vic. cap. 76, Sch. A, No. 2.
(d) Ibid. No. a.
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538
•: •-iii}
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THE COMMON LAW PROOEDURE AOT.
m-:. &
Notice of the foregoinff Writ.
To C. D., late of (the City of Hamilton, in Upper Canada.) or (now realdinff .»
Buffalo, in the State of New York). - ^ ^"
Take notice that A. B., of , in the County of , Upper Canada
has oommenoed an action at law against }ou, C. D., in Her Majesty's Court of
, hy a Writ of that Court, dated the day of , a.D. one
thousand eight hundred and , and you are required within days after
the receipt of this notice, inclnsiTO of the day of such receipt, to defend the said
action, by causing an appearance to be entered for you in the Office of the (Clerk
or Deputy Clerk) for the County of , to the said action, and in default of
your so doing, Uie said A. B. may, by leave of the Court or a Judge, proceed
thereon to Judgment and Execution.
{Signed) A. B., the Plaintiff in person.
or
■ .^ ■ E. F., Plaintiff's Attorney.
(e) No. 5.— ( Vide Section xU.)
Special Imdorsbmicmt. < •- <.
(After the Indortement required by the twenty'Sixth Section of the Act, (hit
ipeeial Indorsement may be ineerted.)
The following are the particulars of the Plaintiff's claim : '^
1851. January 10. — Five barrels of Flour, at 20s £ 5
July 2. — Money lent to the Defendant 80
October 1. — A Horse sold to Defendant 26
£60
Paid : 7 10
Balance due £52 10
Or,
To Bread (or Butcher't Meat) supplied between the 1st January,
1851, and the 1st January, 1852 £40
Paid 12 10
Balance due £27 10
(2f any account has bten delivered^ it may be referred to with its date, or the
Plaintiff may give such a description of his claim as on a particular of demand, so
as to prevent th« necessity of an application for further particulars.)
Or,
£100, principal and interest, due on a bond, dated the day of ,
conditioned for the payment of £200 and interest
Or,
£100, principal and interest, due on a covenant contained in a deed dated the
day of , to pay £500 and interest.
Or,
£100, on a Bill of Exchange for that amount, dated the 2nd February, 1861,
accepted (or drawn or indorsed) by the Defendant, with interest and 'Notarial
charges.
(e) Eng. Stat. 15 & 16 Vic. cap. 76, Sohd. A, No. 4.
SCHEDULE (a).
Or,
580
j^lOO, on a Promissory Note for that amount, dated the 2d February, 1861, made
{oT indorsed) by the Defendant, ^ith interest and Notarial charges.
Or, ,
£100, on a Guarantee, dated the 2d February, 1851, whereby the Defendant
mjaranteed the due payment by E. F., of goods supplied (or to be supplied) to him.
iln all caset where interest ia lawfully recoverable, and it not ahovt expretted, add
)e Plaintiff claims interest on £ from the day of until
Judgment.")
If.B.— Take notice, that if a Defendant served with this Writ within Upper
Canada, do not appear according to the exigency thereof, the Plaintiff will be at
liberty to sign final Judgment for any sum not exceeding the sum above claimed
(vith interest), and the sum of for costs, and issue execution at the
expiration of eight days from the lasc day for appearance.
I ' >l
," it
*. i
deed dated the
(/) No. 6.— (FiVfe Section xlii.)
Wnrr of Capias in an Action albkabt ooumknosd.
}VlCTOEIA, &o.
To the Sheriff of, &c.
Upper Canada,
County of
(Seal.) ^'
We command yon, that you take G. D., if he shall be found in your (County or
United Counties), and him safbly keep, until be shall have given you bail in the
action (on promises or of debt, &c.), which A. B. has commenced against him,
and which action is now pending, or until the said C. D. shall, by otJior lawfUl
means, be discharged from your custody. And we do further command you, tiiat
on execution hereof, you do deliver a copy to the said C. D., and that immediately
after execution hereof, you do return this Writ to our Court of , togeUier
Titli tlie manner in which you shall have executed the same, and the day of the
execution hereof; and if the same shall remain unexecuted, and shall not be
renewed according to law, then that you do so return the same at the expiration
of six calendar months from the date hereof, or of the last renewal hereof, or
sooner if you shall be required thereto by order of the said Court or a Judge.
And We do hereby require the said C. D., that within ten days after execution
hereof on him, inclusive of the day of such execution, he cause special bail to be
put in for him in our said Court, according to the warning hereinundor written
or indorsed hereon, and that in default of his so doing, proceedings may be had
and taken as are mentioned in the warning in that behalf.
Witness, &c.
In the margin. .
Issued from the Office ef the (Clerk or Deputy Clerk) of the Crown and Pleas,
in the County of
(Signed) J. H. (Clerk or Deputy Clerk).
Memorandum to be subteribed on the Writ.
N.B.— This Writ is to be executed within six calendar months firom the date
hereof, or if renewed, then from the date of such renewal, including the day of
snch date, and not afterwards.
'. ~ (/) Original.
I I !
i :
;'f*m:p\
540
THE COMMON LAW PBOOSDURI! ACT.
Warning to the Defendant.
1. This suit which was commenced by the service of a Writ of SnmmoQg «iii
be continued and carried on in lilco manner as if the Defendant had not'becn
arrested on this Writ of Capias.
2. If the Defendant having given bail to the Sheriff ou the arrest on this Writ
shall omit to put in special bail for bis surrender to tlio Sheriff of the Countv
from which the Writ of Capias issued, and to file the bail piece in the office of the
Clerk or Deputy Clork of the Crown and Pleas for the County of ^.
Plaintiff may proceed against the Sheriff or on the boil bond. '
Indortements to be made on the Writs be/ore the exeeution thereof.
1. This Writ was Issued by E. F. of, &c. (as inform JVb. 1).
2. Bail for £ by affidavit or by Judge's order (<i« the ease may be).
Also the indorsement required by the twenty-sixth section of the Act.
Indorsement to be made on the Writ after the execution thereof.
This Writ was executed by arresting C. D. {according to the facta), on the
day of 18
" "«! ! '' 3
'H't'-
n
(^r) No. 7.— (FA/c Section xliii.) ,
Writ of Attachment. '
Upper Canada, *> Victohia, &c.
County of J To the Sheriff of, &c. . ^ ,.
(Seal.) ' "*' " '■""' ' " '
Wo command you, that you attach, seize, ond safely keep all the real and per-
sonal property, credits, and effects, together with all evidences of title or debts
books of account, vouchers and papers belonging thereto, of C. D., to secure and
satisfy A. B, a certain debt {or demand) of £ {the sum sicorn to), with his
costs of suit, and to satisfy the debt and demand of such other creditors of the
said C. D., as shall duly place their AVrit of Attachment in your bonds, or other-
wise lawfully notify you of their claim, and duly prosecute the same. And we
also command the said C. D., that within {the time named in the Judge')
order or rule of Court) days after the service of this Writ on him, inclusive of the
day of such service, he do cause speoial bail to be entered for him in our Court
of , in an action to recover £ ' '
said A. B. : And we require the said C.
personal property, credits, and effects in Upper Canada have been attached at the
suit of the said A. B., and that in default of his putting in special bail as afore-
said, the said A. B. may, by leave of the Court or a Judge, proceed tlicrein to
Judgment and execution, and may sell the property so attached : And wc comuiand
you, the said Sheriff, that as soon as you have executed this Writ you return the
same with the inventory and appraisement of what you have attached thereunder.
Witness, &c.
... . ..'.' »
Jn the margin. ji ,,, ..»
Issued from the Office of, &c. {as in foregoing eases).
Memorandum to be subscribed on the Writ.
N.B. — This Writ is to be served within six calendar months from the date
thereof, or if renewed, then from tho date of such renewal, including t'he day of
such date, and not afterwards.
{g) Original.
ilhe sum sworn to), at the suit of the
». to take notice, that his real and
SCHEDULE (a). 541
Indorsement to be made on the Writ before service thereof.
This Writ may be served out of Upper C' Ja, and itns issued by E. F., of
, Attorney, &o. {as oh a rt'^rit of Summons).
■ t
(h) No. 7 {bis).— {Vide Section Ix.) '■^. / V j
In the (Q. B. or C. P.) ^
Oa the day of , A.D. 18
(Day of signing Judgment.)
Upper Canada, ") A. B. in his own person {or by , his Attorney, sued
to wit: J out a Writ of Summons against C. D., indorsed according to
The Common Law Procedure Act, 1856, as follows :
{Here copy special Indorsement.)
And the said C. D. has not appeared, therefore it is considered that the said
A. B. recoTer against the said G. D., J& , together with £ , for costs of suit.
■\
(0 No. 8,— (Tirfe Section Ixxvii.)
In the (Q. B. or C. P.)
The day of , in the year of our Lord, 18
County of 1 Whereas A. B. has sued C. D., and
to wit: J denies,
affirms, and
{Here state the question or questions of fact to be tried.)
And it has been ordered by the Honorable Mr. Justice , according to
The Common Law Procedure Act, 1856, that the said question shall be tried by
a Jury; therefore let the same be tried accordingly.
O) No. 9.— {Vide Section cciii.)
FosM OF A Rule oa Summons where a Judgment Obcditob applies fob '
Execution against a Judgment Debtob.
{Formal parts as at present.)
C. D., to show cause why A. B. {or as the case may be), should not be at liberty
to enter a suggestion on the roll in an action wherein the said A. B. was Plaintiff,
and the said C. D., Defendant, and wherein ;Jie said A. B. obtained Judgment for
£
, against the said G. D., on the
day of
that it mani-
festly appears to the Gourt that the said A. B. is entitled to haye execution of
the said Judgment, and to issue execution thereupon, and why the said G. D.
should not pay to the said A. B. the costs of this application to be taxed.
Note. — The above may be modified so as to meet the case of an application by or
against the representative of a party to the Judgment.
{h) Eng. Stat. 15 & 16 Vic. cap. 76, Schd. A, No. 5.
(i) Ibid. No. 6.
{jy Ibid. No. 7.
l^
!'M
642 THE COMMON LAW PROCEDURE ACT.
(k) No. 10.— {Vide Section ooIt.)
FoBX or BvoaiBTioR that thb Jcdohknt Cbeditoe is bntitlid to
EXBOVTION against TUB JUDGMENT DbdTOB.
And now, on the day of it is sngKested and manifestly appears
to tlie Court, tliat tlie said A. B. {or E. F., as executor of tlio last Will and Tes-
tament of the said A. B., deceased, or at the cate may be) is entitled to have
execution of the Judgment aforesaid, against the Sbid C. D. {or against G. H. as
executor of the last Will and Testament of the said C. D., or as the eaie may be) •
therefore it is considered by the Court, that the said A. B. {or E; F., as such
executor as aforesaid, {or at the cate may be) ought to have execution of the said
Judgment against the said C. D. {or against Q. H. as such executor as aforesaid
or aijhe cate may be), '
YXOTOKIA, &o..
To C. D.
{I) No. 11.— (FtV;« Section cot.)
Fobk or Wbit or Rbvivoe.
of
Grbktimo :
We command you, that within ten days after the sorrioe of this Writ upon yon,
inclusivo of the day of such serrice, you appear in our Court of
to show
cause why A. B. {or E. F., as executor of the last Will and Testament of the stud
A. B., deceased, {or at the cate may be) should not have execution aga^jst yon
(if against a representative, here insert, as executor of the Iftst Will and Testament
of , deceased, or at the case may be) of a Judgment whereby the said A.
B., (oT as the case may be) recovered against you {or as the case may be), £ ;
and take notice that in default of your doing so, the said A. B., {or as ike cait
may be), may proceed to execution.
Witness, &c.
(m) No. 12. — ( Vide Seotion oexxi.)
Ejeothbnt.
Yiotobia, &o..
To X., Y., Z., and all persons entitled to defend the possession of {describe (he
property with reasonable certainty) in the Township of , in the County of
,-to the possession whereof A., B., and C, some or one of them claim to
be {or to have been on and since the day of , A.D. )
entitled, and to eject all other persons therefrom. These are to will and command
you or such of you as deny the alleged title, within sixteen days of the service
hereof, to appear in our Court of , to defend the said property or such
part thereof as you may be advised, in default whereof Judgment may be signed,
and you turned out of possession.
Witness, &o.
(n) No. 18. — ( Vtefe Section ccxxxi.)
Judgment in Ejectment in case or Non-appbabance.
In the Q. B. {or C. P.)
The day of
18 (date of the Writ).
{k) Eng. Stat. 16 & 16 Yic. oap. 76, Schd. A, No. 8.
{I) Ibid. No. 9.
(m) Ibid. No. 13.
(n) Ibid. No. 14.
80HEDUL1 (a).
548
Coanty of 1 On the day and year abore irrittei^ a Writ of our Lady the
to wit : / Qaeen issued out of this Court in these words, that is to say :
ViCTOBiA, &o. {copy the Writ), and as no appearance has been entered or defenoe
ntde to the said Writ, therefore it is considered that the said {intert the namet 0/
the periont in whom title ia alleged in the Writ) do recorer possession of the land
ia tlie said Writ mentioned, with the appurtenances.
(0) No li.— {Vide Sections ccxxxi-ii.)
In the Q. B. {or C. P.)
On the day of , 18 , {date of the Writ).
County of \ On the day and year above written, a Writ of our Lady the
to wit : j Queen issued out of this Court, in these words, that is to say :
ViOTOBiA, &o. {copy the Writ), and G. J), has on the day of ,
appeared by , his Attorney {or in person), to the said Writ, and has
defended for a part of the land in the Writ mentioned, that is to say {state the
fart), and no appearance has been entered or defenoe made to the said Writ,
except as to the said part ; therefore it is considered that the said A. B. {the
Claimant) do recoyer possession of the !and in the said Writ mentioned, except
the said part, with the appurtenances, and that he have execution thereof forth-
vitli; and as to the rest, let a Jury come, &o.
(p) No. 16.— (F»d« Section coxxxii.)
IntheQ.B. (or C. P.)
On the day of , 18 , {date of the Writ).
County of ) On the day and year above written, a Writ of our Lady the
to wit : / Queen issued out of this Court, in these words, that is to say :
ViCTOBiA, &c., {copy the Writ), and C. 1>. has on the day of ,
appeared by , his Attorney, {or in person) to the said Writ, and defended
for the whole of the land therein mentioned ; therefore, let a Jury come, &o.
(g) No. 16. — ( Vide Section ccxxxiv.)
Afterwards on the day of , A.D. , before
Justice of our Lady the Queen, assigned to take the assizes in and for the wiihia
County, come the parties within mentioned, and a Jury of the said County being
sworn to try the matters in question between the said parties, upon their oath,
gay : that A. B. {the Claimant) within mentioned, on the day of ^
A.D. , was and still is entitled to the possession of the land within mentioned^
as in the Writ alleged ; therefore, &o.
(r) No. 17.
In the Q. B. {or C. P.)
On the day of ,
18
{Vide Section ccliv.)
, {date of the Writ).
(o) Eng. Stot 15 & 10 Vic; cap. 76, Schd. A, No. 15.
(p), Ibid. No. 16.
(?)
Ibid.
Ibid.
No. 17.
No. 18.
1 \.
^1
.If
n
I ^',;
IT
«
■W'w
B44 THE COMMON LAW PROCEDURE ACT.
County of "» On the day and year above written, a Writ of our LaJy the
to wit : j Queen issued out of this Court, in these words, thnt is to say :
Victoria, &o. {coft/ the Writ), nnd C. D. has on the iky of
appeared by , his Attorney (or in person) to the said Writ, nnd A. Ij'
has discontinued the action: therefore, it is conHidored that the said C. B. bo
acquitted, and that he rooovcr against the said A. B. £ for his costs of dcfonoe
(») No. 18.— {Vide Section colvi.)
In the Q. B. (or C. P.)
On tho day of ,18 , {date of Writ).
County of "> On tho day ond year above written, a Writ of our Lady the
to wit : / Queen issued out of this Court, in these words, that is to say :
ViCTonu, &c. {copy the Writ), and C. D. has on tho day of
appeared by , his Attorney {or in person), to tho said Writ, and A. b!
has failed to proceed to trial, though duly required so to do ; therefore, it ia
considered that the said C. D. be acquitted, and that he do recover agaiuat the
said A. 1). £ for his coats of defence.
*»'•)
I" I
(<) No. 19.— (TiV/e Section oclvii.)
In the Q. B. {or C. P.)
The day of ,18 , {date of the Writ).
County of 1 On the day and year above written, a Writ of our L;idy the
to wit : ( Queen issued out of this Court, in these words, that is to say :
ViCToniA, &c. {copy the Writ), and C. D. has on tho day of
appeared by , hia Attorney {or in person), to the said Writ, niid the said
C. D. has confessed tlie said action {or has confessed the said action as to part of
the said Ian 1, that is to say: {state the part) ; therefore, it is considered that the
said A. B. do recover possession of the land in the said Writ mentioned, (or of
the said part of the said land) with tho appurtenrnccs, and £ for custa.
,1
\ I
In the Q
The
County of
to wit :
the tenor of
(«) No. 20. — ( Vide Section colxvi.)
B. {or C. P.)
day of ,18 , (date of Writ).
■» On the day and year above written, a Writ of our Lady tho
/ Queen issued out of this Court, with a notice thereunder written,
which Writ and noticu follows in these words, that is to say:
{Copy the Writ and notice, which latter may he as follows ;)
" Take notice that you will be required, if ordered by the Court or a Judge, to
•• gi»e bail by yourself and two sufficient sureties, conditioned to pay the costs
•« and damages which shall be recovered in the action."
And C. D. has appeared by , his Attorney, {or in person) to the said
Writ, nnd has been ordered to give bail pursuant to the Statute, and has failed
80 to do ; therefore, it is considered timt the said {landlord's name) do
recover ])osscssion of tho land in the said Writ mentioned, with the appurtenances,
together with £ for costs of suit.
(») Eng. Stat. 15 & IG Vic. cap. 76, Schd. A. No. 19.
It) Ibid. No. 20.
(«^ Ibid. ^ No. 21.
i ti, «» 80IIEDULE (n) 546
SCHEDULE B.
FORMS OF PLEADINOS ( Vi<le Sootion oxl).
On Comtbacts.
1,— (it) Money payable by the Dofondnnt to the Plaintiff {theie toordi •• money
rayable," &o., ihould precede money counts like 1 to II, but need only be inserted
in the first) goods bargained and »old by the Plaintiff to the Defendant.
2,_(u') Work done and materials provided by the Plaintiff for the Defendant
at his request.
3,_(z) Money leut by the Plaintiff to the Defendant.
i.—(!/) Money paid by the Plaintiff for the Defendant at his request.
6._(j;i Money received by the Defendant for the use of the Plaintiff.
6.— (a) Money found to bo due from the Defendant to the Plaintiff on accounts
stated between them.
l.—(b) A messuage and lands sold and conveyed by the Plaintiff to the Defendant.
i.—ic) The Defendant's use by the PlalntlfTs permission of messuage and lands
of the Plaintiff.
9,_((/) The hire (as the ease may be) by the Plaintiff let to hlfe to the Defendant.
10.— (() Freight for the conveyance of the Plaintiff for the Defendant at his
request of goods In (ships, &c.)
11.— (/) The demurrage of a (ship) of the Plaintiff kept on demurrage by the
Defendant.
12.— (r/) That the Defendant on the day of A.D. by his
Promissory Note now overdue, promised to pay to the Plaintiff £ {two)
months after date, but did not pay the same.
13.— (A) That one A, on, &o., {date) by his Promissory Note now overdue,
promiseii to pay to the Defendant or order £ (two) months afterdate, and the
Defendant indorsed the same to the Plaintiff, and the said note was duly presented
for payment and was dishonored, whereof the Defendant had due notice, but did
not pay the same.
14._(i) That the Plaintiff on, &o. {date), by his Bill of Exchange now overdue,
directed to the Defendant, required the Defendant to pay to the Plaintiff <£ ,
[(leo) months after date, and the Defendant accepted the said Bill, but did not
pay the same.
15._(y) That the Defendant on, &o. {date), by his Bill of Exchange to A. re-
quired A to pay to pay to the Plaintiff £ , {two) months after date, and the
said Bill was duly presented for acceptance and was dishonored, of which the
Defendant had due notice, but did not pay the same.
(v) Eng. St. 16 & 16 Vic. o. 7G, Sch. B, No. 1.
Ibid. " ~
Ibid.
Ibid.
Ibid. , ,
Ibid.' ' "'
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
(; ) Ibid.
KK
No.
2.
No.
3.
No.
4.
No.
6.
No.
6.
No.
7.
No.
9.
No.
12.
No.
13.
No.
14.
No.
16.
No.
16.
No.
17.
No.
18
*
I' .1
W\' * :f
f'
f-'
■CI-.
!
^^A^^ga
t
'
"^
\
M^r]
548
THE COMMON LAW PBOOEDUBE ACT.
ii>i'
h.
*:
*;»*J
^J I
16.— (X;) That the Plaintiff and Defendant agreed to marry one another, and a
reasonable time for such marriage has elapsed, and the Plaintiff has always been
ready and willing to marry the Defendant, yet the Defendant has neglected and
refused to marry tiie Plaintiff.
17._(;) That the Defendant by warranting a horse to be then sound and quiet
to ride, sold the said horse to the Plaintiff, yet the said horse was not then sound
and quiet to ride.
18.— (m) That the Plaintiff and Defendant agreed by charter party, that the
Plaintiff 's schooner called the Toronto, should with all conTenient speed sail to
Hamilton, and that the Defendant should there load her with a full cargo of floor
and other lawful merchandize, which she should carry to Kingston, and there
deliyer, on payment of freight per barrel, and that the Defendant should be
allowed four days for loading and four days for discharging, and four days for
demurrage, if required, at £ per day ; and that the Plaintiff did all things
necessary on his part to entitle him to have the agreed cargo loaded on board the
said schooner at Hamilton, and that the time for so loading has elapsed, yet the
Defendant made default in loading the agreed cargo.
19.— (n) That the Plaintiff let the Defendant a house, being {designate it) for
years, to hold from the day of A.D. at £ a year
payable quarterly, of which rent quarters are due and unpaid. '
20. — (o) That the Plaintiff by deed let to the Defendant a house {designate it), to
hold for seven years from the day of A.D. , and the Defendant
by the said deed covenanted with the Plaintiff, well and substantially to repair
the said house during the said terms {according to the covenant), yet the said house
was daring the said term out of good and substantial repair.
Fob Wrongs independent of Contract.
21. — {p) That the Defendant broke and entered certain land of the Plaintiff,
called lot No. &o. and depastured the same with cattle.
22. — {q) That the Defendant assaulted and beat the Plaintiff, gave him into
custody to a Constable, and caused him to be imprisoned in the Common Gaol
28. — {r\ That the Defendant debauched and carnally knew the Plaintiff's wife.
24. — («) That the Defendant converted to his own use {or wrongly deprived the
Plaintiff of the use and possession of) the Plaintiff 's goods, that is to say (m«i-
Uoning what articles, as for instance, household furniture).
25.— {t) That the Defendant detained from the Plaintiff his title deeds of land,
ealled lot No. &c. in, &c. that is to say {describe the deeds).
26. — (u) That the Plaintiff was possessed of a mill, and by reason thereof was
entitled to the flow of a stream for working the same, and the Defendant, by cat-
ting the bank of the said stream, diverted the water thereof away from the said mill.
(A) Eng. St. 16 & 16 Vic. cap. 76, Sohd. B, No. 19.
h) Ibid. No. 20.
(m) Ibid. No. 22.
(n) Ibid. No. 23.
(o) Ibid. No. 24.
(/>) Ibid. No. 25.
{q) Ibid. No. 26.
(r) Ibid. No. 27. •
(«) Ibid. No. 28.
^ h) - ■ Ibid. No. 29.
(«j ' Ibid. No. 30.
SOHXDULE (b).
547
27.— (v) That the Defendant having no reasonable or proper cause for belioTing
that the Plaintiff was immediately about to leave Upper Canada with intent and
design to defraud the Defendant, maliciously caused the Plaintiff to be arrested
and held to bail for £ •
2i.—Cw) That the Defendant falsely and maliciously spoke and published of the
Pluntiffthe words following, that is to say, "He is a thief" {if there be any
nteid damage, here ttate it, with ettch reatonable particularity at to give notice to
the Dtfendant of the peculiar injury complained of, as for instance, whereby the
Pl^ntiff lost his situation as shopman in the employ of N).
29.— («) That the Defendant falsely and maliciously published of the Plaintiff
in a newspaper called the words following, that is ts say, « He is a regular
proter under bankruptcies," the Defendant meaning tiiereby that the Plaintiff
hid proved, and was in the habit of proving, ficUtioua debts against the estates
of bankrupts, with the knowledge that such debts were fictitious.
\
jf the Plaintiff,
GOHUBNCIMINT 07 PlEA.
30. -(y) The Defiendant by , his Attorney {or in person), says {here
ttati the substance of the -P^<<*)
81.— (2) And for a second Flea the Defendant says {here state the second Plea).
Pka in Actions on Contracts.
32.— (a) That he never was indebted as alleged. (S.K— This plea is applicable
to other declarations like those numbered 1 ^o 11.)
38.— (6) That he did not promise as alleged. (2%ts plea is applicable to other
Marations on simple contracts not on bills or notes, such as those numbered 16 to
19. It would be objectionable to use *' did not warrant," « did not agree," or any
other appropriate denial.)
84.— fc) That the alleged deed is not his deed.
35.— (a ) That the alleged cause of action did not accrue within years {state
tk period of limitation applicable to the ease) before the suit.
86.— (c) That before action he satisfied and discharged the Plaintiff's claim by
payment.
37.— (/) That the PIdntiff, at the commencement of this suit, was, and still is,
indebted to the Defendant in an amount equal to {or greater than) the Plaintiff's
claim for (state the cause of set off a« in a declaration, see form ante), which amount
the Defenaant is willing to set off agtdnst the Pluntiff's claim {or, and the De-
fendant claims to recover a balance teom the Plaintiff).
88.— ^y) That after the claim accrued, and before this suit, the Plaintiff, by
deed, released the Defendant therefrom.
(v) Eng. St. IC & 16 Vic. cap. 76, Schd. B, No. 81
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
No. 82.
No. 83.
No. 84.
No. 85.
No. 36.
No. 87.
No. 88.
No. 89.
No. 40.
No. 41.
No. 42.
i^i
I'^a-
mr }
548
THE COMMON LAW PBOOEDUBE ACT.
Pi:.XAS IN AonoNs foe Wbonqs ikdbfkndent or Conteact.
89.— (A) That he is not guilty.
40.— ri) That he did what is complained of by the Plaintiff's leave.
41. — (/) That the Plaintiff first assaulted the Defendant, who thereupon neces-
sarily committed the alleged assault in his own defence.
42. — (k) That the Defendant, at the time of the alleged trespass, was possessed
of land, the occupiers whereof, for twenty years before this suit,, enjoyed as of
right and without interruption, a way on foot and with cattle from a public bich-
way over the said land of the Plaintiff to the said land of the Defendant, and from
the said land of the Defendant over the said land of the Plaintiff, to the said public
highway, at all times of the year, for the more oouTenient occupation of the said
land of the Defendoat, and that the alleged trespass was the use by the Defend-
ant of the said way.
Beplioations.
48. — (l) The Plaintiff takes issue upon the Defendant's first, second, &c., pleas.
44. — (m) The Plaintiff as to the second Plea, says : {here state the answer to the
plea, ortn the following forms.)
46. — (n\ That the alleged release is not the Plaintiff's deed.
46. — (o) That the alleged release was procured by the fraud of the Defendant,
47. — \p) That the alleged set off did not accrue within six years before this suit!
48. — Iq) That the Plaintiff was possessed of land whereon the Defendant was
trespassing and doing damage, whereupon the Plaintiff requested the Defendant
to leave the said land, which the Defendant refused to do, and thereupon the
Pluntiff gently laid his hands upon the Defendant in order to secure him, doing
no more tiban was necessary for that purpose, which is the alleged first assault
by the Plaintiff.
49. — (r) That the occupiers of the said land did not for twenty years before this
suit, enjoy, as of right and without interruption, the alleged way.
New Assiqnmbnt.
50. — («) The Plaintiff as to the and pleas, says, that he sues
not for the trespesses therein admitted, but for trespasses committed by the De-
fendant in ozoess of the alleged rights, and also in other parts of the said land,
and on other occasions and for other purposes than those referred to in the said
pleas.
(A) Eng.
k
I
St. 16& 16 Vic. 0. 76, Sch. B, No. 48.
Ibid. No. 44.
Ibid. No. 45.
Ibid. No. 46.
Ibid. No. 48.
Ibid. No. 49.
Ibid. No. 60.
Ibid. No. 51.
Ibid. No. 52.
Ibid. No. 53.
Ibid. No. 54.
Ibid. No. 66.
as possessed
tho Defendant,
tefore this suit.
Defendant was
the Defendant
thereupon the
ure him, doing
;ed first assault
ears before this
,y8, that he sues
itted by the De-
»f the said land,
)d to in the said
SCHEDULE (B).
649
If the Plaintiff replies and new astigna, the new aaaignment may bt aa followa :
51. — (;) And the Plaintiff as to the and pleas, farther says
that he sues not only for the trespasses in those pleas admitted, but also for, &o.
ff the Plaintiff replies and new aaaigna to aome of the pleaa, and new aaaigna
only to the other, the form may be cu followa :
C2.— (u) And the Plaintiff as to the
that he sues, not for the trespasses in the
admitted, but for the trespasses in the
admitted, and also for, &c.
and
pleas, farther says
pleas, (the pleaa not rqtlied to)
pleas, {the pleaa relied to)
(t) Eng. St. 15 & leVio. o. 7G, Soh. B, No. 66.
(u) Ibid. No. 61K,
i\
'Uf
U li
Kt
rt!
L<
THE
COUNTY COURTS PROCEDURE ACT, 1856.
19 & 20 Vio.— Cap. 90.
An Act to simplify and expedite the proceedings in the County
Courts in Upper Cant*daf and to alter and amend the law
in relation to these Courts. [Assented to 1st July, 1856.] (a)
Whebeas it is expedient to simplify and expedite the pro-
ceedings in the several County Courts in Upper Canada, and Preomu*.
to alter and amend the law in relation to these Courts : (6)
(a) This, a companion Act to the
C. L- P- A., 1856, ia designed to accom-
plish for County Courts that which the
C. L. P. A, 1856, does for the Superior
Courts, namely, Sin^Ufy and Expedite
their Procedure. In citing the Act,
it will be sufficient to use the short
title, " The County Courts Procedure
Act, 1856 :" (s. 27.) In one particular
the Aot, as indicated both in the title
and the preamble, goes beyond the C.
L. P. Act, 1856. Its design is not only
to simplify and expedite the proceed-
ings in County Courts, but '* to alter
and amend the law in relation to these
Courts." This last is done by s. 20,
which enlarges and more clearly defines
the jurisdiction of the Courts. So in
8. 21, which provides for the payment
of fees for business done not strictly
in relation to pending suits, but autho-
rised or required to be performed by
County Judges.
(i) As the due administration of
justice is an object of paramount im-
portance, the means by which it may be
best secured should be one of the first
objects of goTcmment. No individual
should be barred from asserting a
right, however triflinj^ which the law
recognises. But if the tribunals through
which he is to obtain redress are diffi-
cult of access or their procedure slow
and expensive, there is a practical
denial of justice to the poor man, whose
claim is too small to bear the expenses
necessarily attendant upon close and
thorough investigation. The essenA
of civil jurisprudence comprehends the
principle that the differences between
man and man of which the law takes
cognisance should be decided in a man-
ner the most speedy and cheap, that
is consistent with the due dispensation
of justice. A sum of money which to
one man might be a trifle, to another
man might be " his all." All suitors
should receive equal consideration —
all, if possible, should be placed on an
equal footing. The recovery of dis-
puted claims whether great or small
can only be had upon proper investiga-
tion by persons competent to adjudi-
cate. The work of investigation is not
to be measured by the amount at
stake. The right decision of a ques-
tion for a subject matter of five pounds
may involve principles, the apprehen-
sion and application of which demand
not only sound judgment but trained
'%
iif ,]'!." I.
rr t
-leir'"^'
552 THE COUNTY COURTS PROCEDURE ACT.
Therefore, Her Majesty, by and with the advice and consent of
VS5?I
ill
ability. At the same time it is obvi-
oua that wherelarge amounts and large
interests are conoerned a more elabor-
ate and expensive machinery may be
required tiian in smaller demands
where the primary interests of those
concerned is to secure a speedy and
InexpensiTC acyudioation. Hence the
difficulty of combining speed and eco-
nomy with that which is sound in ad-
ministration.
It was the wise provision of the law
of England at a very remote period, to
bring justice to every man's door, by
constituting Courts of Judicature not
only in every County but even in
smaller localities throughout the King-
dom. All administration of justice was
at first in the hands of the King.
When by the increase of the people the
burden was not only too great for the
King but oppressive to the people, and
the kingdom was divided into Counties,
hundreds, &o., so the administration
of justice was distributed amongst
various Courts, of which the sheriff had
the County Courts, and lords of liber-
ties, their leet courts. As early as
J 617 a Court for the recovery of
mall debts, known as a Court of Con-
science or Court of Requests, was, by
Act of the Common Council established
in London. In 1605 the same Court was
fully confirmed by Act of the Legis-
lature: (3 Jac. I. cap. 15.) This
Court having been found very benefi-
cial in London, Courts of a similar
nature were established by numerous
Acts of the Legislature in different
parts of the kingdom. The accumu-
lation of inferior Courts throughout
England exhibited the popular desire
for the local administration of justice.
By reason of the diversity of these
Courts and the defects in their consti-
tution, and in order that "one rule
and manner of proceeding for the re-
covery of small debts and demands
should prevail throughout England,"
all small Courts were abolished, and a
system of County Courts fully estab-
lished: (9& 10 Vic. cap. 96.) The
principles on which the earlier Courts
were based have been re-asserted and
carried out in the present County
Court system of England. In the
words of a writer in U. C. L. J. the new
system is but "a resuscitation of the
County Courts improved by a simple
procedure, and made effective by a
learned and independent judiciary."
The origin of local Courts in Canada
is almost coeval with its population.
Immediately after the conquest, by the
proclamation of October, 1768, consti-
tuting the Province of Quebec, power
was given to the Qovernor of the Pro-
vince to erect Courts of Judicature as
well criminal as civil. It was under
this authority that the earliest tribun-
als in Canada were established. Of
their nature and jurisdiction the Editor
is not in a position to say anything. In
1774, by the Statute 14 Geo. III. cap.
83, this proclamation and the Courts
constituted under it were in great part
superseded. Provision was made for
the erection of new Courts, of which
the Government of the day seems to
have availed itself; for in 1787, under
an ordinance of that year, a portion
of the Province of Quebec now con-
stituting Upper Canada, was divided
into four Districts, viz., Luneberg,
Mecklenburg, Nassau, and Hesse, in
each of which Courts, called Courts j!
Common Pleas, appear to have beta
established: (27Geo. in.c.4.) These
Courts consisted of a first Judge and
several of the principal magistrates of
the District ; their jurisdiction was re-
stricted to civil cases. In November,
1791, by proclamation of that date,
Upper, was separated from Lower, Ca-
nada, and made a distinct Province.
This proclamation was issued under
the authority of an existing Statute
which conferred all the necessary
powers: (31 Geo. III. cap. 31.) Then
Upper Canada began to legislate for
itself. By an Act of 1792 the names
of the districts were changed and new
distripts created, having as before, it
would appear, a Court in each dis-
ACTS REPEALED.
558
the Legislative Council and Assembly of Canada, enacts as
follows:
trict: (32 Qeo. III. cap. 8.) Doubts
hBTiDg arisen as to the constitution of
these Courts they were afterwards
placed upon a surer basis : (34 Geo.
III. cap. 3. ) From the first the people
of Upper Canada were favoi "ble '
system of local administrati Ii.
first session of the Parliament oi Uppc
Canada, besides the Acts already no-
ticed, the Legislature, anxious to con-
tribute to the convenience of the inha-
bitants, established CoTirts for the
covery of "small debts," known as
Courts of Requests : (32 Qeo. III. cap.
6.) These Courts, however objection-
able in other respects, had at least the
merit of being uniform in constitution
and jurisdiction. Their jurisdiction
vts gradually increased and their pro-
cedure improved. At first presided
over by Commissioners who were not
professional men, the Courts fell into
disrepute. Afterwards the appoint-
ment of professional men of standing
improved the efficiency of Division
Courts (the new name for Courts of
Sequest), and gave to them a character
which commands the respect and favor
of the masses. Division Courts now
possess an ordinary jurisdiction to ten
pounds, and in certain cases of con-
tract to twenty-five pounds. Thus
they embrace a large share of the busi-
ness of the country. But the Editor's
present business being with County
Courts, it is not his intention to do
more thnn make this incidental refer-
ence to Division Courts. The origin
of District Courts, as already explain-
ed, probably may be dated back as far
83 1787. However,.the first Act which
gave them a standing and influence
vas that of 1794, intitled " An Act to
establish a Court for the cognizance
of small causes in each and every Dis-
trict of this Province :" (34 Geo. III.
cap. 3.) It was amended by 87 Geo.
III. cap. 6 ; 38 Geo. III. cap. 3 ; 61
Geo. III. cap. 6 ; and 69 Geo. III. cap.
9. A consolidation of all these Acts
next followed : (2 Geo. IV. cap. 2);
but the Act consolidating them was
itself repealed, amended and re-enact-
ed : (8 Vie. cap. 18.) In these Acts
may be traced the growth of the Goun^
Courts now existing In Upper Canada.
At first it was not necessary that the
Judges who preside . these Courts
should be barrister. , but in 1846,
when the practice underwent some
improvement, the Judges wore thence-
forth required to be barristers and
residents within the local limits of
their respective jurisdictions : (8 Yio.
cap. 13, 8. 8.) The jurisdiction of the
Courts was at first merely local, and
their process had no efl'ect beyond the
limits of the particular district. From
this .the first great step was that of
allowing writs both of mesne and final
process to be served or executed in any
County of Upper Canada : (13 & 14
Vic. cap. 52, ss. 2, 8.) The extent of
jurisdiction, originally £15 in cases of
unliquidated demand and £40 in oases
of liquidated demand : (2 Qeo. IV. o.
2, s. 8), has also been gradually en-
larged. The amounts at present ore
respectively JBGOand £100: (Co.C.P.A,.
1856,8. 20.) Equity powers to a limited
-extent have also been conferred : (16
Vic. cap. 119.) The enactments regu-
lating the practice of County Courts,
formerly few in number, are now very
considerable.
It is indispensable that every
Court of Justice be governed by fixed
rules of practice restraining caprice
and securing uniform action. But
if the rules be either too refined or too
difficult of application, they may ope-
rate as a denial of justice. On the
other hand, if there be no rules or
rules disregarded, the Court becomes
arbitrary. The chief end of legis-
lative action in reference to County
Courts has been to apply to them only
such rules as are suitable to their
constitution and jurisdiction. The Act
now under consideration is in this re-
respect a great improvement upon all
Acts preceding it. It having been found
>.'--4
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654
Certain Mo-
tions of the
Acts,
THE COUNTY COURTS PBOOEDURE ACT.
C8.i.
I. (c) From the time when this Act slull commence and
take effect, the tenth, oloventh, twelfth, fourteenth, fifteenth
necessary to simplify and expedite
proceedings in the Superior Courts, the
same was found necessary for County
Courts. This has been done so as to
conform the practice of County Courts
as nearly as possible to that of the
Superior Courts. 'Where there are
many Courts of co-ordinate jurisdic-
tion, it is advisable that there be uni-
formity of practice The attainment
of such an object cannot be better
effected than by haying the Superior
Courts not merely as Courts possessing
an appellate jurisdiction, but as models
for the imitation of inferior Courts.
The Judges of the latter have all the
benefit of judicial expositions in the
former. From these expositions if hay-
ing a relation directly or indirectly to
County Courts there can be no depar-
ture of long continuance. The exercise
of the appellate jurisdiction of the Su-
perior Courts must always have the
effect of compelling a due observance
of established precedents. Hence a
tendency to one general uniform and
universal practice in all our Common
Iaw Courts of Record, superior and
inferior. To the bench, to the bar, and
indeed to the profession at large, this
is an immense advantage. Instead of
there being several sets of rules for as
many separate Courts, there will be one
set of rules equally to be observed in
all the Courts. The lawyer who studies
tiiese rules becomes capable with sa-
tisfkction to himself and security to
his client to practice in any one of the
Courts or in all of them.
The mode taken in the Act under
consideration to assimilate the practice
of County Courts to that of the Supe-
rior Courts may now be explained. It
is first by the repeal of those clauses in
existing County Courts statutes which
would interfere with the new practice,
and second, having regard to the con-
stitution, nature, and objects of County
Courts by incorporating in the Co. C.
P. Act, 1866, all the provisions of the
C. L. P. A, 1856, which are applica-
ble tc these Courts. The Ejectment
clauses of the C. L. P. A. are not
incorporated in the Co. C. P. A for
County Courts have no jurisdiction in
any action where the title to land
shall be brought in question. Nor are
the Mandamus clauses of the C.L.P a
1866, because probably of the prero-
gative nature of the proceeding. Nor
the injunction clauses, perhaps for
similar reasons. But all the clauses
relating to ordinary procedure from
the commencement to the conolasion
of an action and proceedings subse-
quent to judgment have been extended
to County Courts. In this manner the
practice of our Superior and Inferior
Courts is as nearly as possible placed
on the same footing. And that it was
the manifest intention of the Legisla-
ture to do 80 may be gathered from
the enactment, which declares that in
any case not expressly provided for by
law, the practice and proceedings in
County Courts shall be regulated bjand
conform to the practice of the Superior
Courts : (Co. C. P. A, 1856, sec. 19.)
The mode of extending the practice of
the Superior Courts to the County
Courts, and of making the one conform-
able to the other, is first by expressly
applying such sections of the C.L.P.A,
1856, as could with certain general
modifications be readily applied : (Co.
C. P. A, 8. ^), and the second is by
aUering the language of the sections in
the C. L. P. A, 1856, that could not be
thus applied, so as to suit the consti-
tution, jurisdiction, and periods of
Bitting in the County Courts. Of this,
8. 4 of the Co. C. P. A, ISSB, taken
from ss. iv. and y. of the C. L. P. A,
1866; s. 6, taken from s. x. of the G.
L. P. A, 1856; and s. 15, taken from
s. oli. of C.L.P.A, 1856, aay be men-
tioned as examples.
(c) In pursuance of the plan men-
tioned in the preceding note, the legis-
lature here repeal certain parts of ex-
isting Acts either inconsistent with
the practice here enacted or otherwise
g.i.] A0T8 EEPXALED.
sixteenth, seventeenth, eighteenth, nineteenth, twenty-second,
twenty-third, twenty-fourth, twenty-eighth, thirty-first, thirty-
gecond, thirty-fifth, thirty-ninth, forty-first, forty-fifth, and
forty-sixth sections of an Act of the Parliament of this Province
passed in the eighth year of Her Majesty's Reign, intituled,
i» Act to amendf consolidatCf and reduce into one Act the
teverd laws now in forces establishing or regulating the prac-
tice of District Courts in the several Districts of that part of
555
8 Vlo. 0. 13.
onnecessaiy. The sections repealed
are principally those Trhioh have refer-
eaoe to matters of practice for which
other and more ample provision is now
made. Thus, since s. zoviii. and fol-
lowing sections of C. L. P. A, 1856,
as to pleading have been expressly
applied to County Courts, ss. 10, 11,
12 of 8 Vio. cap. 18, which contain
regulations on the same subject ore
umecessary and therefore repealed.
la the game manner s. xxii. and fol-
lowing sections of C. L. P. A, 1856,
Thich provide for the commencement
of bailable actions having been ex-
pressly extended to County Courts, ss.
14, 15, 16, 17, and 18 of 8 Vio. c. 13,
relating to the same subject have also
been repealed. So one might if neces-
sary proceed, accounting in detail for
the repeal of each part of an Act in
words repealed by the section here
annotated. To do so would be of no
real utility, though probably not a little
interesting. Those interested, how-
ever, can by a simple comparison of
theC.LP.A, 1866, with the repealed
sections with certainty and without
difficulty satisfy themselves. It by no
means follows that all parts of Acts
regulating the practice of County
Courts which are not in words repealed
yet remain in full force. For instance,
s. 9of8. Vio. cap. 13, which enacts
that the time for pleading, &c., shall
be /our days, must be taken to be vir-
tually repealed by s. cxii. of C.L.P. A,
1856, made to apply to County Courts,
which enacts that the time shall be
eight days. The two provisions are
wholly inconsistent. The latter being
expressly adopted in the Co. C. P. A,
as if *< repeated at length" therein,
and being tiie more recent provision of
the two, is the last declared intention
of the legislature, and therefore an ab-
rogation of a former inconsistent de-
claration. The same may be said of
8. 5 of 13 & 14 Vio. cap. 52, as to
summons and orders to compute when
read in connection with s. cxli. of C.L.
P.A, 1856, which makes other provi-
sion for computations, and is applied
to County Courts. The view taken as to
8. of 8 Vic. 0. 18, being impliedly ab-
rogated, is confirmed by subsequent ex-
press action of the legislature, for by
the C. L. P. A, 1857, ^at section is ex-
pressly repealed : (3.19.) There are
still other clauses which though not in
words repealed, and though not incon-
sistent with the new Act are unneces-
sary and to a great extent superseded.
Such is 8. 47 of 8 Vic. cap. 13, autho-
rising County Judges under certain
circumstances to order references to
arbitration. This clause must be
more or less overridden by ss. Ixxxiv.
and clvi. of G.L.P. A, 1856, as to re-
ferences to arbitration, which have
been applied to County Courts. In-
deed, P. 10 of the Co. C. P. A. 1866,
also contains provisions of a like na-
ture : (see ss. 10 et teq.) If there
be a provision retained in the old Act
precisely the same aa one to be found
in the new Act, the retention of the
former, though unnecessary, cannot
be of any harm. Thus, it is enacted
by B. 2 of 18 & 14 Vic. cap. 52,
that writs of summons, &o., *' may be
served in any County of Upper Canada.'
As to writs of summons, 8. xxxi. of the
C.L.P.A, 1856, which is applied to
lli-^:
:^:
ti-
566
12 V. c. 00,-
•nd
W 4 14 V.
C.62;
And other
proTieions
IneonMlstent
with this Act
repealed.
Ezoeption :
M to repealed
Acts, (Mind-
ing prnceed-
Inga, Ac.
THE COUNTY COURTS PROCEDURE ACT. Pg j
this Province formerly Upper Canada; (d) tho second third
and fourth seotiona of an Act of the Parliament of this Pro.
vinco, passed in tho twelfth year of Her Majesty's Reign
intituled, An Act to amend and extend the provisions of the
Act of this Province, intituled, * An Act to amend, consolidate
and reduce into one Act the several laws now in force, establish
imj or regulating the practice of the District Courts %u the
several Districts of that part of this Province, forme rli/ Upper
Canada; (c) the fourth section of an Act of tho Parliament
of this Province, passed in the thirteenth and fourteenth years
of Her Majesty's Reign, intituled, An Act to alter and amend
the Act regulating the practice of the County Courts in Upper
Canada, and to extend the Jurisdiction thereof; (/) together
with all other Acts or parts of Acts of the Parliament of Upper
Canada or of this Province at variance or inconsistent with the
provisions of this Act, shall be and the same are hereby re-
pealed, (g) except so far as tho said Acta or any of thorn or
anything therein contained repeal any former Act or Acts or
any part thereof, all which said last mentioned Act or Acts
shall remain and continue so repealed, (7t) and excepting also
so far as the said Acts or parts of Acts hereby repealed and the
provisions thereof, or of any of them, shall and may be neces-
sary for supporting, continuing and upholding any Writs that
shall have been issued, or proceedings that shall have been had
or taken, before the commencement of this Act, and any further
proceedings taken or to be taken thereon, (i)
County Courts, is not only in effect but
in words the same. As to writs of ex-
ecution there is a similar provision
unrepealed: (18 & 14 Vic. cap. 62, s.
3.) And with the latter provision s.
olxxxvi. of C. L. P. A. 1856, corres-
ponds. How far early provisions are
superseded by those more rtcent, it is
for the Courts to decide. The exercise
of caution with respect to the repeal
of the old Acts, was not without rea-
son, and must be so considered at least
when it is remembered that County
Courts, unlike the Superior Courts,
have no jurisdiction that is not de-
rived from statute : Their powers
uhcreat but statutory. The
repeal of a section containing a power
without adequate substitution might
have led to very serious inconvenience.
Feeling this, the Legislature no doubt
thought it safer to repeal too little than
to repeal too much.
(rf ) For the unrepealed portions of
this Act see Har. Prac. Stats, p. 73.
(<) For same, see Har. Prac. Stats.
p. 16G.
(/) For same, see Har. Prao. Stats.
p. 183.
(g) See note i to s. cccx'viii. of C.
L. P. A, 1850.
(A) See note j to same.
(t) See note k to same.
ii]
88. OF 0. L. P. A. EXTENDED TO CO. COURTS.
557
II. U) ^^® enactments contained in the ninth^ ^o^^<'<'"*^> uon^'of the*^*'* ^^^ (^
I'roco-
sixteenth, seventeenth, eighteenth, nineteenth, twentieth, common
twenty-first, twenty-second, twenty-third, twenty-fourth, twonty- I'^.^g^*'*,"'
fifth, twenty-sixth, twenty-seventh, twenty-eighth, thirtieth, »"J certein
thiity-first, thirty-second, thirty-third, thirty-fourth, thirty-fifth, mado under
thirty-sixth, thirty-seventh, thirty-eighth, thirty-ninth, fortieth, tJ tiie coun-
forty-first, forty-second, forty-third, forty-fourth, forty-fifth,
forty-sixth, forty-seventh, forty-eighth, forty-ninth, fiftieth, fifty-
first, fifty-second, fifty-third, fifty-fourth, fifly-fifth, fifty-sixth,
fifty-seventh, fifty-eighth, fifty-ninth, sixtieth, sixty-first, sixty-
second, sixty-third, sixty-fourth, sixty-fifth, sixty-sixth, sixty-
seventh, sixty-eighth, sixty-ninth, seventieth, seventy-first,
seventy-second, seventy-third, seventy-fourth, seventy-fifth,
(/) In pursuance of the plan de-
scribed in note d to s. 1 it is the design
of this enactment to apply many sec-
tions of the C.L.P. A, 1860, to County
Courts. This is not without precedent.
The Eng. C. L. P. A, 1854, applies
sbsolutely certain of its provisions to
eyery Court of civil judicature in Eng-
land and Ireland: (s. 103.) It also
^ves power to the Queen in Council to
apply all or any parts of its proyisions
to all or any of the Courts of Record
in England and Wales : (s. 105). Few
of the Bcctions of our C.-L. P. A, 1856,
can be applied to our County Courts
without some modification making ne-
oessary either an actual or presumed
alteration of language. With the latter
alteration only is the Editor at present
concerned. The sections applied are
extended to County Courts as if " re-
peated at length in this Act," but sub-
ject to the following general modifica-
tions— /\'r«<. "All the powers under
the said sections exercisable by the
Court of Queen's Bench or the Court
of Common Pleas, or by any one of the
Judges thereof, shall* and may in like
manner be exercisable by the Judges
of the County Courts respectively in
term or vacation as the case may re-
quire as to matters and proceedings
tiierein within the jurisdiction of the
said County Courts respectively."
Second. " Such of the said sections as
relate to proceedings in Banc or at
Ni$t Priua respectively shall be under-
stood as referring and relating to the
sittings of the said County Courts
in term and the sittings thereof for the
trial of issues of fact as the case may
be." Third. "All the provisions of
the said sections applicable to Deputy
Clerks of the Crown shall apply to the
Clerks of the County Courts respec-
tively." Fourth. In order that there
may be no failure of the intention of
the legislature, the provisions are ap-
plied " subject to such other modifica-
tions as may be necessary to give full
and beneficial effect to the said several
sections in their extension and applica-
tioii to the County Courts, and all ac-
tions and proceedings therein within
the jurisdiction of the same Courts re-
spectively." The value of the last
mentioned provision, which is ample
enough to cover the preceding provi-
sions, cannot at present be fully esti-
mated. It reposes in the tribunals,
whose duty it is to construe the sec-
tions a most extensive discretion.
No difficulty of moment calling for an
exercise of that discretion, much less
a difference of opinion among the many
Judges presiding over County Courts
has yet arisen. Latent difficulties,
though few, do however exist. The first
section applied is s. ix. of C. L. P. A,
1856. It enacts that all proceedings
t
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658
THE COUNTY COURTS I>ROOEDURV ACT. % }j
sevonty-sixth, BOTODty-soventh, sovoDty-oighth, seventy-ninth
eightieth, eighty-first, eighty-second, eighty-third, oighty-eighth'
eighty-ninth, ninetieth, ninety-first, ninety-second, ninety-third
ninety-fourth, ninety-fifth, ninety-sixth, ninety-eighth, ninety-
ninth, one hundredth, one hundred and first, one hundred ond
second, one hundred and third, ono hundred and fourth one
hundred and fifth, ono hundred and sixth, one hundred and
seventh, one hundred and eighth, ono hundred and ninth, one
hundred and eleventh, one hundred and twelfth, one hundred
and thirteenth, ono hundred and fourteenth, one hundred and
fifteenth, one hundred and sixteenth, ono hundred and scven-
tcenth, ono hundred and eighteenth, one hundred and nine-
teenth, ono hundred and twentieth, one hundred and tventy-
to final judgment ehnll be carried on
ia the office from which first process in
the action was saed out, and that the
service of all papers and proceedings
subsequent to the writ shall be made
upon the defendant or bis attorney,
and that " if the attorney of either
party do not reside or have not a duly
authorised agent residing in the county
wherein such action was commenced,
then service may be made upon the
attorney wherever he resides, or upon
his duly authorised agent in Toronto."
There appears to be no reason why this
provision should not be read as incor-
porated in the Co. G. P. A, 1856, with-
out special modification. Then if so
read, what is the effect of it ? That if
the attorney of either party reside out
of the county, in the County Court of
which an action has been commenced,
and have no duly authorised agent
resident ia that county, papers and
proceedings subsequent to the writ
may be served on such attorney in
whatever county he resides or on his
agent in Toronto. The service of papers
and proceedings on the Toronto agent
of a country attorney in a County
Court suit is the point to which the
Editor chiefly desires to direct atten-
tion. This at first blush appears to be
an extension in words if not in practice
of the agency system. Whether the
practice prevailed to any extent before
the passing of the Act or not, there
seems to be now for the first time an
express provision to authorise it. This
provision ought perhaps to bo read ia
connection with N. R. 187, wluch re-
quires country practitioners to make
an entry in Toronto (in a book to be
kept for the purpose) of the name and
address of his agent, and provides that
if such country attorney «• neglect to
make the entry in this rule mentioned,
the fixing up of a copy of any pleiiding,
notice, summons, order, rule, or other
proceeding for. such country attorney
in the Crown Office at Toronto shall
bo deemed a sufficient service." It is
further enacted by the C.L.P.A, 1857,
that "the provisions of the C. L. P. A,
1856, and all rules of Court mode under
or by virtue thereof shall, so far as the
same are or may be made applicable
extend and apply to all proceedings to
be had or taken under this Act," &o.:
(s. 81) ; and that s. 81 shall extend
and apply to and be in force in the
several County Courts in Upper Canada
and actions and proceedings therein
respectively, as also the rules and
forms already made or to be made as
mentioned in the said twentieth {qu.
thirty-first) section, subject to the mo-
difications expressed in the second
section of the County Courts Procedure
Act, 1856:" (s. 82.) It may be held
as a result of these enactments that
g, ii.j 88. OV 0. L. P. A. EXTENDED TO 00. COURTS.
first, one hundcod and twonty-sooond, one hundred and twenty-
third, one hundred and twenty-fourth, one hundred and twenty-
fifth, ODO hundred and twenty-sixth, one hundred and twenty-
MTcnth, one hundred and twenty-eighth, one hundred and
twenty-ninth, one hundred and thirtieth, one hundred and
tbirtj-first, one hundred and thirty-second, one hundred and
thirty-third, one hundred and thirty-fourth, one hundred and
thirty-fifth, one hundred and thirty-sixth, one hundred and
thirty-seventh, one hundred and thirty-eighth, one hundred and
thirty-ninth, one hundred and fortieth, one hundred and forty-
fint, one hundred and forty-second, one hundred and furty-
fourth, one hundred and forty-fifth, one hundred and forty-
eighth, one hundred and forty-ninth, one hundred and fifty-
650
(!
N. R> 187 entitles a party in a County
Court suit under tho circamstancea
ipecified in the rule, to fix up papers in
the Crown Office, which shall be deemed
good service thereof. The point, how-
ever, is involved in doubt. The N. R.
137 is under the operation of the C. L.
P. A. 1867, so far as applicable in
force as to proceedings in County
Coarts. If applied to its fullest extent
BO as in the cases intended to authorize
service of papers in a County Courts
suit by affixing them <'in the Crown
Office at Toronto," the first question
would be, which Crown Office is meant
—that of the Queen's Bench or Common
Pleas? for in each of the Superior
Courts tliere is a "Clerk of tho Crown
and Pleas:" (12 Vie. cap. 63, s. 11.)
Section x. of C. L. P. A., 1856, the
next in order, which authorises judg-
ment to be entered upon a cognovit
adiontm, ^c, which << shall have been
given in the first instance and before
the suing out of any process," being
incapable of extension to County
Courts except with tpecial modifica-
tions, lias been so modified and sub-
stantially enacted in the Co. C. P. A,
1856: (s. 6.) The three subsequent
sections (xi. xii. xiii.) belong for the
most part excluhiyely to Superior
Courts, and owing to the constitution
of County Courts could not either with
general or special modifications be ap-
plied to those Courts. Then s. xiy. as
modified, empowering clerks of County
Courts to sign and issue rules "i She-
riffs and Coroners for the i ■m.m of
process applies in its iutegr! y. The
section which directs that a Deputy
Clerk of the Grown shall keep books
" in which shall be minuted and dock-
eted all judgments entered by such
Deputy Clerk of the Crown :" (s. xv),
instead of being absolutely a; plied as
other sections, is made the subject of
a distinct provision in tho Co. C. P. A,
1866: (s. 7.) Then follow in the C.
L. P. A, 1860, twenty-seven sections
*' with respect to the writs for the
commencement of personal actions in
the said Courts against defendants
whether in or Ail ;if the jurisdiction
of the Courts: ( u xvi-xlii.) All of
these, with the exception of s. xxiz,
are applied in express terms to County
Courts. The first three sections of
this olafis (ss. xvi. xvii. xviii.) as to
the fvirm and contents of the writ of
summons in personal actions require
no explanation in this place. But s.
xix. cannot be passed over without re-
mark. It enacts that every writ of
summons and capias <' shall be tested
in the name of the Chief Justice of the
Court from which the same shall issue,
or in case of a vacancy of such office,
then in the name of the senior Puisne
Judge of the said Court." This pro-
. .^
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IS, I ' ' ,i ' ♦ ■
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660 • : THE COUNTY COURTS PROCEDURE ACT. Ta ,"
yo' 11.
sixth, one hundred and fifty-seventh, one hundred and fiftv.
eighth, one hundred and fifty-ninth, one hundred and sixtieth
one hundred and sixty-first, one hundred and sixty-second one
hundred and sixty-third, one hundred and sixty-fourth one
huddred and sixty-fifth, one hundred and sixty-sixth, one hun-
dred and sixty-seventh, one hundred and sixty-eighth one
hundred and sixty-ninth, one hundred and seventy-first one
hundred and seventy-second, one hundred and seventy-third
one hundred and seventy-fourth, one hundred and seventy.
fif^h, one hundred and seventy-sixth, one hundred and seventy-
seventh, one hundred and seventy-eighth, one hundred and
seventy-ninth, one hundred and eightieth, one hundred and
eighty-first, one hundred and eighty-second, one hundred and
vision may for convenience be divided
into two branciies ; 1st, that all writs
of summons and capias shall be tested
in the name of the Chief Justice for
the time being ; 2d, that if there be
no Chief Justice, these writs shall be
tested in the name of the senior Puisne
Judge. The first branch of the provi-
sion with modification by substitution
for " Chief Justice" of the words " se-
nior Judge of the County Court," is
clearly applicable to County Courts.
(16 V. c. 20, s. 1.) The second branch
of the provision is not entirely so free
from doubt. Though there may be one
or more Judges in each County the
one who'ic commission is " of the oldest
date" being considered the Senior:
(8 Vic. cap. 13, s. 2; 16 Vic. cap. 20),
or in the case of the illness, unavoidable
absence, or absence on leave of a sole
County Judge, there may be a deprty
appointed : (Co. C. P. A, 1857, s. 14) ; in
neither case can there be said to be a
vacancy in theotficeof the Senior Judge.
TheabsenceofaJudgefromtheProvince
does not make it improper to test writs
in his name : (see note u to s. xix. of
C L. P. A, 18o6.) The next section
applied which requires the officer
issuing a writ to make the ordinary
memorandum in the margin needs no
comment : (s. xx.) nor the section
which requires the attorney to make
the usual indorsements on the writ :
(s. xxi.) But s. xxii, which provides
that in all all actions wherein it shall
be intended to hold any person to spe-
cial bail, the process •' may be directed
to the Sheriff of any County or Union
of Counties in Upper Canada," deserves
some attention. Since a plaintiff is not
obliged in ordinary personal actions to
sue a defendant in the County Court of
the county where he resides, the uti-
lity of the provision secures for it an
absolute adoption as a part of the
County Courts Procedure. It is not
clear but that the fact of its adoption
is of itself an extension of the jurisdic-
tion of County Courts. Before 1850
writs of summons could only be served,
and writs of capias only executed
within the limits of the county from
the Court of which process issued.
By a Statute of that year it was en-
acted that " all writs of sunmohs sued
out, &c. (not mentioning capias), may
be served in any County of Upper Ca-
nada:" (13 & 14 Vic. cap. 62, s. 2);
and that " writs of subpoena and writs
of execution against goods and chattels,
lands and tenements, and also all pro-
cess against the person when authorised
by law, &c., may be issued from the
County Court in which any judgment
has already or hereafter may be entered
up, or action brought into any other
County in Upper Canada, and served
and executed there," &c. : {lb, s. 3.)
g. ii.] SS. OP C. L. P. A. EXTENDED TO CO. COURTS.
eighty-third, one hundred and eighty-fourth, one hundred and
eighty-fifth, one hundred and eighty-sixth, one hundred and
eiwhty-seventh, one hundred and eighty-eighth, one hundred
and eighty-ninth, one hundred and ninetieth, one hundred and
ninety-first, one hundred and ninety-second, one hundred and
ninety-fourth, one hundred and ninety-fifth, one hundred and
ninety-sixth, one hundred and ninety-seventh, one hundred and
5G1
Of these two sections of the Act of
1850 the one is not meant to extend to
frits of capias, and tho other is so
ein''ularly worded as to lea^e the
meaning obscure. Upon the question
whether a ' 'it of capias as first pro-
cess can bb issued from the County
Court of one county to be executed in
another county, there is no longer
room for doubt. The enactment of s.
uii. of C. L. P. A, l1B56, and its exten-
sion to County Courts has set the doubt
at rest. S. xxiii. of C. L. P. A, 1856,
is also applied to County Courts. It
enacts tliat it shall not be lawful to
issue any writ of capias unless an affi-
davit be first made by plaintiif, his
servant, or agent of plaintiff's cause of
action, and provides that "it shall not
be necessary that any such affidavit
siiall be at the time of the making
tiiercof entitled of or in any Court, but
that the style and title of the Court
may he added at the time of suing out
the process," &c. There is uo reason
why this proviso should be held appli-
cable to County Courts. The cause
which made it necessary as regards
Superior Courts does not exist in
County Courts. The cause is suffi-
ciently explained in note t to s. xxiii,
and need not be here repeated. There
is no reason why affidavits made for
the purpose of issuing writs of capias
&om a County Court should not be in-
titled in that Court. The proviso,
however, though not' applicable to
County Courts with the same force as
to Superior Courts, cannot be said to
be wholly without existence. The
sections between s. xxiii. and s. xxix.
need no remark ; but s. *xxix. as al-
ready noticed, not being applied to
County Courts la express terms is in
LL
substance enacted in the C. L. P. A,
1856 : (s. 8. ) There is nothing in any
of the sections between xxix. and xxxv.
that appears to need any remark. It
is enacted in s. xxxv. that " in case
any defendant being a British subject
is residing out of the jurisdiction of
the said Superior Courts it shall be
lawful for the plaintifiP to issue a writ of
summons," &c. Here, if the words
"County Courts" be substituted for
the words "Superior Courts," accord-
ing to the ordinary general verbal
modifications, there can be nothing
gained by the extension of the section,
thus altered, to County Courts. The
phrase " residing out of the jurisdic-
tion of the Superior Courts," &c., is
descriptive oi locality, the jurisdiction
of these Courts extending over Upper
Canada. The section as applied to
County Courts ought, it is presumed,
to be read, " In case any defendant
being a British subject is residing out
of h\^per Canada it shall be lawful,
&c." If this be done, the result is a
further «Jxtension of the jurisdiction of
County Courts. The Act of 1850 gave
any one County Court a jurisdiction
throughout Upper Canada. The Act
here annotated gives jurisdiction with-
out Upper Canada. This is an impor-
tant change. To give any effect what-
ever to s. xxxv. the construction must
be as herein supposed. To give " full
and beneficial effect" to it the con-
struction ought to be so. The declared
intention of the Act is not only " to
simplify and expedite the proceedings
in County Courts, but to alter and
amend the law in relation to these
Courts." These observations will
equally apply to b. xxxvi, allowing,
actions to be conducted against per-
562
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THE COrNTT COURTS PROCEDURE ACT. [g, Jj
ninety-eip;hth, one hundred and ninety-ninth, two hundredth
two hundred and first, two hundred and second, two hundred
and third, two hundred and fourth, two hundred and fifth two
hundred and sixth, two hundred and seventh, two hundred and
eighth, two hundred and ninth, two hundred and tenth two
hundred and eleventh, two hundred and twelfth, two hundred
and thirteenth, two hundred and fourteenth, two hundred and
sons not being British subjects resi-
ding without the jurisdiction of the
Superior Courts. The two follow-
ing sections (ss. zzxvii., zxxviii.)
explain themselves without altera-
tion or amendment. In s. zxxix.
which enacts that a writ for service
within the jurisdiction may be issued
and marked as a concurrent writ with
one for service out of the jurisdiction,
and vice versa, the modifications
suggssted in ss. zzxv. and zxzvi. if
made will be strongly marked ; thus
"a writ for service within Upper
Canada may be issued and marked as
a concurrent writ with one for service
without Upper Canada," &c. In s. zl.
similar special modification must be
made ; but upon the consideration of this
section a still fUrther question presents
itself. It enacts that any affidavit for
the purpose of enabling the Court or
a Judge to direct proceedings to be
taken against a defendant resident out
of the jurisdiction of the Superior
Courts may be sworn before certain
public functionaries named, and then
provides "that if any person shall
forge any signature to any such affi-
davit, or shall use or tender in evidence
any such affidavit with any false, forg-
ed, or counterfeit signature thereto,
knowing the same to be false, &c., he
shall be guilty of felony, and shall
upon conviction be liable at the dis-
cretion of the Court to be kept confined
at hard labour in the Public Peniten-
tiary of this Province for any term not
less than four years nor more than ten
years," &c. It might seem upon
reading this section as npplied to
County Courts that the Court intended
is anjf County Court, and that quoad
the matters contained in the section
criminal jurisdiction is conferred upon
these Courts; but the more likely
construction is, that «* the Court"
means a Court having criminal Jurit-
diction ; such as Courts of Oyer and
Terminer and General Gaol Delivery
&c. First, there is a statement of the
offence, "forge any signature, &o.,"
which, if a party do, '• he shall be
guilty of felony." Thus far the oflFence
is defined and characterized. Then se-
condly, it is declared what shall be the
punishment of the party for such
offence, "and shall upon conviction be
liable at the discretion of the Court to
be kept confined, &c," The offender
shall upon conviction— i\xhi is to say,
upon enquiry, trial, and judgmei.t, be-
fore a tribunal having power to convict,
be liable, &c. This would seem to intend
some ordinary Court now having cri-
minal jurisdiction, such as Courts of
Assize, Oyer and Terminer, Genera!
Gaol Delivery, and Quarter Sessions. It
is also provided by s. xl, of C. L. P. A.
1866, as applied to County Courts, that
" if any person shall wilfully and cor-
ruptly nLake a false affidavit before such
Chief Justice, &c., every person so
offending shall be deemed and taken
guilty of peijury," &c. The foregoing
remarks as to forgery apply equally to
the offence of perjury and its punish-
ment. The nezt section is xii, which
commences by enacting that "in all
cases where the defendant resides
within the jurisdiction of the Court,
&c., the writ may be specially in-
dorsed," &c. This may be read
" in all cases where the defetidant re-
sides within Upper Canada," &c. Such
is the obvious intent of the section
when examined in connection with ss.
xzzv-vi. already noticed. Then as to
,. ii.] SS. 0. L. P. A. XXTEMDED TO 00. COURTS.
fifleeath; two hundred and sixteenth, two hundred and seven-
teenth, two hundred and eighteenth, two hundred and nine-
teenth, two hundred and eighty-seventh, two hundred and
eighty eighth, two hundred and eighty-ninth, two hundred and
niaetieth, two hundred and ninety-first, two hundred and ninety-
second, two hundred and ninety-fifth, two hundred and ninety-
sixth, two hundred and ninety-seventh, two hundred and
563
s. xlii, which enables plaintiff, after
UviiJ(j commeDced a suit by writ of
tammons to issue a capiat " that may
be directed to the sheriff of any County
or Union of Counties in Upper Canada,
the remarks upon s. zxii. ante, will
ipply. This completes so much of the
C L. p. A, 1856, as relates to " writs
for the commencement of personal ac-
tions against defendants," &o., "whe-
ther in or out of the juri8dir*ion.of the
Courts." The sections of the C.L.P. A,
1856, having been arranged according
to the ordinary course of an action from
first process to execution, and these sec-
tions having been adopted in numerical
order, the sections as read in the Co.
C. P. Acts must preserve the arrange-
ment, which is both desirable and con-
venient. The class of sections next in
order of succession is that which
relates to " absconding debtors," which
being a class tui gentrU does not form
a link in the course of an ordinary
suit. This class numbers sixteen sec-
tions: (ss. xliii-lviii,) all of which
have been extended to County Courts.
Of these sections s. xliv. is the first
tiiat engages attention. The question
which arises upon the construction of
it is whether Judges of County Courts
have jurisdiction to issue attachments
for amounts beyond the jurisdiction of
tiieir Courts. This question received
consideration in note d to s. xliv. of
C. L. P. A, 1856. In addition to the
observations there made, it is only ne-
cessary to state that as the question
has never been brought judicially be-
fore the Courts to the Editor's know-
ledge, the observations have neither
been cunfirmed nor reversed. They
must therefore stand upon their own
merits. The opinion of the Editor
Btill is that County Judges may issue
attachments against absconding debt-
ors for any amount, however large ;
but that no proceedings to judgment
can be had in a County Court unless
for an amount within the limited juris-
diction of such Court. In the first
case, where the amount exceeds the
jurisdiction of County Courts, County
Judges act as it were in aid of the
Judges of the Superior Courts. In
the second case, where the amount is
within their jurisdiction, they ex-
ercise the ordinary jurisdiction of their
own Courts. The only alterations ne-
cessary in s. xlv. seem to be general
modifications. The next section (s.
xlvi.) which admits of the issue of
concurrent writs of attachment "to
any sheriff other than the sheriff to
whom the original writ was issued,"
fully coincides in letter and in spirit
with the ordinary jurisdiction of
County Courts : (18 & HYic.cap. 52>
s. 2.) Then s. xlvii. requires no re-
mark ; but 8. xlviii, which enacts that
upon putting in and perfecting special
bedl, sc, "the action shall proceed as
in ordinary cases begun by writ of
capias," must be rewi in respect of
County Courts only so far as the
amount due is within the jurisdiction
of those Courts. The same may be
said of that part of the section which
upon defendant proving that he was
not an absconding debtor at the time
of the issue of the attachment, gives to
defendant his costs and allows plaintiff
to issue execution only for the balance
between the defendant's costs and
plaintiff's verdict. The balance in
such a case must, it is apprehended,
be one within the ordinary jurisdiction
of County Courts. A still farther
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604 THE COUNTY COtTRTS rROOEDURE ACT. [g. g
ninety-eighth, two hundred and ninety-ninth, three hundredth
three hundred and first, three hundred and second, three hun-
dred and third, three hundred and fourth, three hundred and
fifth, three hundred and sixth, three hundred and seventh
three hundred and eighth, three hundred and ninth, thiee
hundred and tenth, and the three hundred and twelfth sections
of an Act passed in the present session of ParKament and
question, however, may arise wlien the
balance is so small as to be within
the jurisdiotion of a Division Court :
(see 18 & 14 Vic. cap. 58, s. 78; Har.
Prao. Stats, p. 186.) From s. xlviii-
Iviii. the Editor has not been able to dis-
cover any provision requiring more than
general modifications. Then come a
number of sectioni " with respect to
the appearance of the defendant and
the proceedings of the plaintijQP in de-
fault of appearance." These number
eight, being flrom lix-lxvi, all of which
are applied to County Courts. Their
application, subject to general modifi-
cations, is not to be questioned. The
Editor therefore passes on to the ten
following sections (Ixvii-lxxvi), "with
respect to the joinder of parties to
actions." Upon reading these, until one
reaches 8. Ixxv. there appears to be
nothing demanding special attention.
The last named section enacts that
« causes of action of whatever kind,
provided they be by and against the
same parties and in the same rights,
may be joined in the same suit," &c.
Replevin and ejectment are excepted.
The exception of ejectment is super-
fluous, inasmuch as County Courts
have no jurisdiction as to that form of
action. The section then proceeds to
enact *' that where two or more causes
of action so joined are local and arise
in different counties the venue may be
laid in either of such counties," but
that the Court or Judge "may order
separate records to be made and sepa-
rate trials to be had," &c. The appli-
cation of this section in its entirety to
County Courts leaves the power of a
County Judge in some doubt. With-
out question the County Judge of any
county may say ta a plaintiff " Yon
have no right to sue for all these causes
of action in one suit in my county," but
he cannot say, " You must make up
separate records for the counties of
B. C. and D. and have separate trials
in those counties." The Judge of tiie
latter counties is free to act indepen-
dently of any such order. The law is
different with regard to Superior
Courts, which have a jurisdiction in
each one and all of the counties of
Upper Canada, and may order trials
in any of them to be named for the
purpose. But an examination of the
Co. C. P. A, 1856, proves the exten-
sion of s. Ixxv. to County Courts with-
out special modifications to be a cler-
ical error. The legislature, acting as
if it were not in words extended has
modified it so as to suit County Courts
and enacted it in separate form as an
independent section: (Co. C. P. A,
1856, 8. 9.) Section Ixxvi., which is
the last of the group of sections relat-
ing to the joinder of parties, appears to
need no remark. The sections which
follow (Ixxvii-lxxxiii), seven in num-
ber, are all applied and applicable to
County Courts. They are enacted
"for the determination of questions
raised by the consent of the parties
without pleading." They must all, how-
ever, be read in reference to the limited
jurisdiction of County Courts ai. to pe-
cuniai*y demands. Thus, s. Ixxviii,
which provides that "the parties may if
they think fit, proper, &c., enter into an
agreement that upon the finding of the
jury, &o., a sum of money to be fixed
by the parties, &c., shall be paid by
one of such parties to the other of
them either with or without the costs
of the action." The sum here intended
must, it ia believed, be oneinnoerent
g. ii.] SS. <3. L. p. A. EXTENDED TO CO. COURTS.
known as the " Common Law Procedure Act, 1856," and the
several provisions of the Rules to be made in pursuance of the
goid Act, or such of them as may relate to the said sections,
shall apply and extend to the several County Courts in Upper
Canada, and actions and proceedings therein respectively ; and
thia Act shall be read and construed as if the said several sec-
tions of the said " Common Law Procedure Act, 1856," were
565
exceeding the jurisdiction of County
Courts when the suit is pending in one
of these courts. This observation holds
good as regards s. Ixxxii, which con-
tains a similar provision as the last,
where judgment is given by the Court
Id banc, upon points of law and not of
fact. The sections ** fur the more ex-
peditious determination of matters of
mere account," next call for consider-
ition. In the C. L. P. A, 1856, there
are fourteen sections relating to this
subject, viz., Ixxxiv-xcvii. Five out
of the fourteen of these have not been
applied to County Courts. Four of
them (Ixxxiv-lxxxvii) owing to the
necessity for much alteration in lan-
guage have with special modifications
been substantively enacted : (Co. C.P.
A, 1857, 10-18.) The remaining sec-
tion (xovii) cannot fi-om its nature
apply to any other than the Superior
Courts. Of the nine sections which are
left, with perhaps the exception of
xcvi. nothing suggests itself for obser-
Tation in this place. It enacts that
when any award made on any submis-
sion directs that possession " of any
lands or tenements capable of being
the subject of an action of ejectment
shall be delivered to any party, &o., it
shall be lawful for the Court of which
the document authorising the reference
is or is to be made a rule or order to
order any party, &c., to deliver pos-
sessfion, &o., and such rule or order to
deliver posset-sion shall have the effect
of a judgment in y'ectment, &c." To
show the inapplicability of this section
to County Courts, it is only necessary
to mention that County Courts have in
general no jurisdiction whatever in
ejectment. The Editor cannot help
thinking that the legislature did not in-
tend to apply it to County Courts, and
that the insertion of it with the sections
extended to County Courts was in-
advertent. The next class of sections in
the C.L.P.A, 1856, is that "with respect
to the language and form of pleadings in
general." These are nine in number :
(xcviii-cvi), and have all been applied
to County Courts. Saving s. di. none
call for comment. It is provided by
this section that " no rule to declare,
reply, plead, &c., shall be allowed but
a notice requiring the opposite party
to declare, &c., within eight dajs,
otherwise judgment shall be sufficient."
The application of this section in its
integrity to County Courts must for
the reasons mentioned in note « to s. 1
of this Act be taken to be an abroga-
tion of s. 9 of 8 Vic. cap. 13, although
that section is by some oversight pre-
served in the repealing clause of this
Act. This view has been confirmed by
the Legislature in the repealing clause
of C. L. P. A, 1857 : (s. 19.) Nearly
allied to the last class of sections is
that which follows, passed " with re-
gard to the time and manner of declar-
ing :" (cvii-cx.) These, four in num-
ber, of which three have been applied
to County Courts, need no more than
general modifications to make them
fully applicable to County Courts.
They require no explanation as regards
their application. The fourth section
and that which is not applied, relates
to averments in actions of libel and
slander: (s, ex.) The next class of
sections is that " as to pleas and sub-
sequent pleadings :" (cxi-cxxxix.)
These a.^e twenty-nine in number, and
are applied to County Courts. With re-
spect to s. cxii. which enacts that "in
cases where the defendant is within
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t,
THE COUNTY COURTS PROCEDURE ACT. [g. Jj
repeated at length in this Act; subject to the following modi-
The said seo i
tions to be
SlJ^i^n^^^fications, that is to say, all the powers under the said sections
»"*iM'to" 6^6'^isable by the Court of Queen's Bench or the Court of
County
Courts.
Common Pleas, or by any one of the Judges thereof, shall and
may in like manner be exercisable by the Judges of the County
Courts respectively in term or vacation, as the case may require
as to matters and proceedings therein within the jurisdiction of
the jurisdiction, the time for pleading
in bar unless extended, &o., shall be
eiffht days," &o., the remarks already
made upon s. oil. may be read as
applicable to it. Little is requisite in
this class of cases to assimilate it to
County Courts jurisdiction and prac-
tice. Seo. oxxiii. 'which declares that a
plea shall be good though it treat an
alleged breach of contract as a wrong,
is confirmed by 8. 20 of Co. C. P. A,
1866, which in efifect does away with
the distinction between actions on
contract and for tort. The legis-
lature in the C. L. P. A, 1856, next
give " examples of the statements of
causes of action and of forms of plead-
ing." This is done in one section
(cxl), including schedules, the whole
of which are applied to County Coui'ts,
and being applicable subject to general
modifications call for no remark.
Next there is a class of sections *' with
respect to judgment by default and the
mode of ascertaining the amount to
be recovered thereon :" (cxli-cxlv.)
These number five, four of which have
been applied to County Courts. The
one not applied (cxliiij, which makes
provision for ascertaining the amount
of damages to be recovered by plaintiff
when substantially a matter of calcu-
lation, is in effect enacted in the Co. C.
P. A, 1856: (s. 14.) The class of
sections which follow " with respect to
notice of trial or of assessment of dam-
ages and countermand thereof:" (as.
cxlTi-cxWiii), next demand attention.
Two of these (sa. oxlvi-vii) which pro-
vide that notice of trial shall be eight
days and countermand four days, have
not been extended to County Courts.
The old law upon this head declaring
that there shall be six days' notice of
trial and three days' countermand
still exists: (8 Vic. cap. 18, s. 29.)
The secti'^n applied absolutely which
enacts that " a rule for costs of the
day for not proceeding to trial pursu-
ant to notice or not countermanding in
sufficient time may be drawn up on
affidavit without motion made in Court
explains itself as regards County
Courts : (a. cxlviii.) The section which
abrogates the Eng. St. 14 Geo. 11. cap.
17 as to judgment in case of nonsuit
is applied to County Courts, and needs
no comment: ^s. cxlix.) But the two
sections following (s. cl-cli), instead
of being so applied are with special
modifications substantively enacted:
(Co. C. P. A, 1856, s. 16.) The sec-
tions " with respect to the holding of
Courts of Assize and Nisi Prius, and
to the Nisi Prius record and trial,"
next follow : (s. clii-clxiv.) They
make two divisions, the one relating
Courts of Nisi Prius and Assize, the
other relating to general procedure at
the trial. The first division, composing
ss. clii-clv, is of course quite inap-
plicable to County Courts and there-
fore not extended to them. It
may, however, be mentioned that so
much of 8. cliv. as enacts that records
shall not be sealed or passed is in
effect applied to County Courts under
s. 19 of the Act under conside.'ation.
Indeed there never was any practice
requiring records to be pasted in
County Courts. The second division
composing ss. clvi-clxiv, which in a
manner may be made to relate to all
Courts are, subject to general modifi-
cations, applied to County Courts.
The same may be said of the sections
" with respect to the admission of do-
cuments," three in number, all of
g, ii.] GENERAL MODIFICATIONS.
the said County Courts respectively ; such of the said sections
as relate to proceedings in Banc, or Nisi Priua respectively,
shall be understood as referring and relating to the sittings of
the said County Courts in term, and the sittings thereof for the
trials of issues of fact, as the case may he ; all the provisions
of the said sections applicable to Deputy Clerks of the Crown,
5G7
which are absolutely extended to
County Courta : (ss. clxv-olx ' .) The
section •* with respect to rules for new
trials or to enter a verdict or nonsuit,"
requires no comment,being quite appli-
cable and fully applied to County
Courts: (s. clxviii.) Next, there are
thirteen sections " with respect to pro-
curing affidavits from unwilling per-
sons and the production of documents
generally, and also for the discovery
of documents and other matters from
parties to a cause :" (ss. clzix-clxxxi.)
All of these, excepting clxx, have been
applied to County Courts, and it ia
enacted with special modifications :
(Co. C. P. A, 1856, 8. 16.) The next
is a class of sections " with respect to
execution." They number twenty:
(ss. clxxxii-cci), and are, with the ex-
ception of 8. cxciii, all applied to
County Courts. The section not ap-
plied is substantively enacted in the
Co. C. P. A, 1856: (a. 17.) It is
only necessary to remark upon one of
this class of sections, viz., clxxxvi.
It enacts that it shall not be neces-
sary to issue any writ directed to the
sheriff of the county or united counties
where the venue is laid, but that writs of
execution may issue at once into any
county or united counties, and may
be directed and executed by the sheriff
of any county or united counties with-
out reference to the counties or united
counties where the venue is laid, &c.
The section seems to go no further
than existing provision in the County
Courts Act of 1850 : (13 & 14 Vic. c.
62, s. 8.) " With respect to proceed-
ings for the revival of judgments and
other proceedings by and against
persons not parties to the record,"
there are six sections in the C.L.P. A,
1856 : (ss. ccii-ccvii), all of which,
subject to general modifications, are
applied to County Courts. In oon.se-
quence of the error mentioned in note
n to a. coii, that section has been re-
pealed by the legislature and re-en-
acted as amended: (C. L. P. A, 1857,
a. 10.) For the same reason the legis-
lature have expressly declared that it
shall not extend to County Courts, but
have substantially enacted it in amend-
ed form in the Co. C. P. A, 1857, a. 1.
The next class of sections applied to
County Courta a .hat •* with respect
to the eft'ect of ^'^*th ornmrringe upon
the proceedings in nn action:" (sa.
ccviii-ccxvi.) Theae sections, nine in
number, are all applied to County
Courts, and require no observations.
Then follow the sections *' with respect
to the proceedings upon motions to
arrest the judgment and for judgment
non obstante veredicto :" (ss. ooxvii-
ocxix), which, subject to general mo-
difications, are also extended to County
Courts. Since County Courts have in
general no jurisdiction as to ejectment:
(8 Vic. cap. 18, sa. 5- 13 ; C. L. P. A,
1866, 8. XX.) none 'of the fifty-four
sections of the C.L.P. A, 1856, '< with
respect to the action of ejectment"
have been so extended. Owing to the
prerogative character of the mandamus
clauses they have not, it is believed,
been applied to County Courts : (as.
cc^xxv-cclxxxii.) For similar reasons
it is thought the iqjunotion clauses are
also omitted : (aa. oolxxxiii-oclxxxvi.)
Then come four sections regulating
equitable pleading, all of which are
extended to County Courts : (ss.
cclxxxvii-ccxc.) Thi a. oclxxxvii. for
the causes n.entioued in the Editor's
note n to that section has been repealed
and re-eni\cted in amended form : (C.
L. P. A, 1857, a. 11), and has been
i i; -.*'■
t ■:«
U, H
568
THE COUNTY COURTS PROCEDURE ACT.
[8.
• ••
m.
m
-■•J.
W
■ h
Jsi
shall apply to the Clerks of the County Courts respectively •
and also subject to such other modiBcations as may be necessary
to give full and beneficial effect to the said several sections in
their extension and application to the County Courts, and all
actions and proceedings therein within the jurisdiction of the
same Courts respectively.
8»vvstit.^ ^^ Clerks to be HI- («) The Clork of each County Court shall be dubject to
'*'<■'■ eh 11. "^n *** such rules for his governance in his office as my from time to
time be made in that behalf (i) according to the provisions of
k:h
Jeclared not to apply to County Courts,
but as amcndod is enacted in the Co.
C. P. A, 1857, (8. 2.) Next as to a.
oozci, enlarging the powers of amend-
ment vested in the Courts and Judges.
It is, subject to general modifications,
extended to County Courts, and can
without difficulty be read as being in-
corporated in the Co. C. P. A, 1866.
So also 8. ccxcii. "with regard to
actions on bills of exchange or other
negotiable instruments." Then ss.
coxciii-iv. *» with respect to proceed-
ings in error and appeal," being from
their nature and character unsuited to
County Courts, have not been applied
to these Courts. However, the sixteen
sections " with respect to the payments
of the weekly alh .vanoe to insolvent
debtors, and as to gaol limits, and to
the discharge of such debtors: (ss.
ccxcv-cccx) have, subject to general
modifications, been extended to County
Courts, and are quite adapted to the
practice and constitution ot the Courts.
Indeed some of them, s. ccxcv. for ex-
ample, upon the face of it applies to
County Courts. The next section : (s.
ccoxi) being a temporary provision as
to costs in Superior Courts is not so
applied. But s. cccxii. as to costs in
actions of trespass or trespass on the
case, a most important provision, is ex-
tended to County Courts. The last pro-
viso, which is "that nothing herein con-
tained shall be construed to entitle any
plaintitf to recover costs as of an action
brought in a Superior Court in any
case where by law his action might
properly have been brought in an in-
ferior Court," when read as incorpo-
rated in the Co. C. P. A, relative to in-
ferior Courts must be understood to
have reference to cases of the cogniz-
ance of Division Courts : ( 18 & liVio.
c. 63, B. 78; Har. Prao. Stats, p. 185.)
This completes the review inte ided of
the two hundred and eleven sections of
the C. L. P. A, 1856, originally made
applioable to County Courts, some of
which, for instsinoe, s. xovi, though
applied in words, is inapplicable in
fact ; and others, for instance, ss. ccii,
cclxxxvii, owing to error in the ori-
ginal enactments, though at the time
made to apply, have since been de-
clared inapplicable, and other provi-
sions substituted.
(a) :8 section corresponds with
8. iii of C. L. P. A, 1866, which relates
to the Clerk of the Process in the Su-
perior Courts.
(6) The Clerk of a County Court is
an officer of the Court appointed by the
Crown. No British subject, whatever
his profession, calling, or employment,
is disqualified to hold the ofiice : (12
Vic. cap. 66, s. 12.) The duties of
the office are various, both in respect
of the Crown and of the public. In
relation to iche Crown, the dutibs are,
amongst other things, to keep ac-
counts : (8 Vic. cap. 13, s. 62 ; liar.
Prao. Stats, p. 86) ; to pay over mo-
neys to the proper officer in that be-
half: {lb. B. 64; Har. Prac. Stata. p.
87) ; and for the performance o*f these
duties the Clerk is required to give se-
curity : (lb. a. 65 ; Har. Prac. Stats.
p. 87.) in relation to the public the
g, iv.] CLERKS or COUNTY COURTS. 569
the three hundred and thirteenth and three hundred and four-
teenth sections of " The Common Law Procedure Act, 185G/'
in like manner as Deputy Clerks of the Crown, (c)
IV. (d) The Clerk of each County Court shall sign and seal dem-shd.fvt^
jll writs and process whatsoever which are to be issued from «iffn»nd mi '-■^IZ
such County Courts, and shall account for and pay over all feesand account ^' ^' ^
due and receivable by County Court Clerks for writs, processes.
duties are varioas ; but all incident to
the nature of the offioe, such aa issuing
process, filing pleadings, &c. No at-
tempt to describe these duties in a single
note would bo at all satisfactory. As an
officer of the Court the Clerk is subor-
dinate to the Judge and bound to obey
all rules that may be lawfully mado for
his goTernance. For the most part an
Infringement of any such rule is an
offence which maybe made the subject
of complaint to the Judge. There are
other offences ot a graver nature, such
as extortion, bribery, and the like,
which appear to be punishable at com-
mon law : (see note d to s. ii, of C. L.
P.A, 1856.) Clerks of County Courts
are in general ex officio Deputy Clerks
of the Crown ; but there is a saving in
favor of present incumbents : (12 Vic.
oap. 63, s. 11 ; Har. Prac. Stats, p. 164.)
The offioe of the Clerk should be in the
Court-house of the County, or if apart-
ments be not there provided for him, in
some other convenient place within the
county town of his county: (12 Vie. cap.
66, 8. 12 ; Har. Prac. Stats, p. 166. ) The
office must be kept open on every day
(Sunday and the legal holidays ex-
cepted) from the hour of ten in the
forenoon to Ihe hour of three in the
afternoon, and in term time from the
hour of nine o'clock in the morning to
the hour of four o'clock in the after-
noon: (/6.) As to the effect of dis-
charging duties of any kind either be-
fore or after office hours, see the latter
part of note x to s. xiii. of C. L. P. A,
1856.
(c) All the provisions of the C. L. P.
A, 1856, extended to County Courts,
wlkich relate to Deputy Clerks of the
Crown, apply to Clerks of County
Courts: (s. 2 of Co. C. P. A, 1866.)
The rules, however, of T. T. 1856,
under s. cocxiii. of C. L. P. A, 1856,
have not been in words extended by the
legislature to County Courts. But as
regards Clerks of County Courts so
much of the rules as relate to Deputy
Clerks of the Crown in effect extend
to the former under the operation of
the section here annotated : (seeCAarof
V. Lottnt, Chambers, Oct, 4, 1866,
Burns, J, II. U. C. L. J. 227.) To
dispel any existing doubts upon this
subject, it is now enacted that the
Judges of the Superior Courts shall
have power to extend and apply to
County Courts " all or any of the :. ales
and orders made or to be made under
any Statute now in force in Upper
Canada, with and under any modifica-
tions they may deum necessary," and
shall also have power " to make such
rules and orders for and specially ap-
plicable to the said County Courts as
may appear to them expedient for car-
rying into beneficial effect the laws ap-
plicable to the said County Courts"
and that " all rules and orders of the
Superior Courts that may hereafter be
made shall {unless the contrary be ex-
pressed therein) be in force in and apply
and extend to the several County
Courts in Upper Canada, and actions
and proceedings therein respectively,
subject to the modifications expre&sed in
the second section of the County Conrts
Procedure Act, 1856:" (Co. C. P. A,
1867, s. 9.)
(d) This section corresponds with
ss. iv. and v. of C. L. P. A, 1856, re-
lating to the Clerk of the Process in
the Superior Courts.
y 1
670
THE COUNTY COURTS PBOOEDURE ACT.
[
8. V.-Tl.
-in , "
In what
Bummonses, orders, and proceedings under this Act, (c) an they
are now bound by law to do for all other fees received by them
and with and under lik-^ responsibilities. (/)
y . (./) In oases in which the cause of action shall be transi-
OountT*iuit« tory, (A) and within the jurisdiction of a County Court, (t) the
SSSiliMiMiML action may be brought and the plaintiff may sue out the writ
for the commencement of the action in any County Court; (j)
where the venue is local (k) the writ for the commencement of
the action shall be sued out from the Office of the County Court
within the proper County. (/)
2 '»'tfA f»v- Final jmig- VI. (m) Final judgment may be entered upon a cognovit
novit. «ft;., actionem or Warrant of Attorney to confess judKnient, 00 For
not over , iii i-i/n/.
*ioo,m*ybean amount not exceeding one hundred pounds], (o) whichshall
County have been given or executed in the first instance and before the
suing out of any process, (/>) [in any County Court], (q) at the
[ • tf. eh. XX
(e) In the Superior Courts it is the
duty of the Clerk of the Process to
sign, seal, and issue all process what-
soever " which are to be issued from
such Courts respectively :" (C.L.P.A,
1856, 8. 4.) It is also his duty to
keep accounts, make returns, and pay
over all fees received by him : (/A. s.
5.) Similar duties as regards County
Courts devolve upon the Clerks of
these Courts under the section here
annotated.
(/) See 88. 62 and 64 of 8 Vic. cap.
18: (Har. Prao. Stats, pp. 86, 87.)
(g) This section corresponds with
ss. vi-vii. ofC. L. P. A, 1866.
(A) As to when causes of action are
transitory, see note/ to s. vi. of C. L.
P. A, 1856.
(t) As to jurisdiction, see s. 20 of
this Act (Co. C. P. A, 1856), and notes
thereto.
(/) No distinction is made, it will
be perceived, in respect of the resid-
ence of cither plaintiff or defendant.
The process, whether bailable or non-
bailablo, may, when the cause of action
is transitory, not only bo sued out
from any County Court but may be
served or executed in any County of
Upper Canada : 13 & 14 Vic. cap. 52,
184, as ei-
P. A. 1866,
to County
8. 2 ; Har. Prao. Stats, p.
tended by s. xxxi. of C. L.
which has been applied
Courts.
{k) As to when, local, see note /to
B. vi. of C. L. P. A, 1856.
{I) When the cause of action is local,
the «' proper County" is that county in
which the cause o? action arose.
(m) This ia copied from s. x. of C.
L. P. A, 1856, with special modifica-
tions hereafter noticed.
(n) For the difference between a
cognovit actionem and a warrant of
attorney, see note u to s. z. of C.L.P.
A, 1856.
(o) The words in brackets form a
special modification in the original
section, and have reference to the jur-
isdiction of County Courts as described
in s. 20 of this Act.
(p) As to the difference prevailing
between the law of England and of
Upper Canada in this respect, see note
u to s. X. of C. L. P. A, 1856.
(q) The words in brackets are sub-
stituted for the words "in any of the
said offices" in the original section, in-
tending offices of Deputy Clerks of the
Crown of the several counties of Upper
Canada.
^ >#-
g. yii.] JUDGMENT BOOKS. 571
option of the plaintiff, unlosa some particular Court (r) in wbioh
tbe judgment is to be entered be expressly stated in such cog-
novit or warrant. («) I
VIT. (t) [The Clerk of each and every County Court] (m) ciork to ,3^^ ^^^ ^_
sball keep a regular book, in which shall bo minuted and dock- foTc^Mketiag ^^eh. a.t |
eted all Judgments entered by such Clerk; and such minute iM^whTtu ^2^j, 2^<^!
shall contain the name of every Plaintiff and Defr idant, theronuin. ^ZL^"
date of the commencement of the action, (y) the date of the 1'
entrj of such judgment, the form of action, the amount reco- "" " *^^'7^- yf^ I
vercd, (w) the amount of costs taxed, and whether such jtidg-
ment was entered upon, or by verdict, default, confession, non
ms, non-suit, discontinuance, or how otherwise ; (x) and in ^'^ 8 ^ a ;?
oase the original judgment-roll be lost or destroyed, so that no
exemplification or examined copy thereof can be procured, (^)
a copy of the entry in such docket book, certified by the Clerk f"|^Jf J(,**be°
having such book in his custody, shall be evidence of all mat- "**^«=* •"
ters therein set forth and expressed \\z) and when any such §'^ 4^^
Clerk shall enter up any Judgment in either of the said
Courts, (a) he may give to the party on whose behalf it is en-
(r) The word " Court" is eubstitut-
ed for " office" in the original section
for the reason given in the preceding
note.
(«) As to Superior Courts see N. Bs.
26, 27, 28, of T. T, 1866.
\i) This is taken from s. zt. of C.L.
P. A, 1856, with special modifications
hereafter noticed.
(u) The words in brackets are cub-
stitttted for *' Every Deputy Clerk of
the Crown and Pleas" in the original
section. This being rather a general
than a special modification, the Editor
avails himself of the opportunity of
stating that wherever general modifica-
tions occur in the subsequent sections
of this Act, ne special notice will be
taken of them. Wherever they do
occur, a little reflection makes them
sufficiently obvious.
(y) See note z to s. xv. of C.L.P.A,
1866,
(v) The original section reads thus,
"the form of action, the amount [of
iiU or damages]^ recovered," &c. For
the reasons mentioned in note b to that
section (xv) the language of the sec-
tion here annotated appears to the
Editor the more correct.
(z) The original section here goes
on to provide that each Deputy Clerk
of the Crown shall within three months
after the entry of judgment in his office
transmit the papers to the principal
office in Toronto. This being a prac-
tice wholly inapplicable to the consti-
tution and jurisdiction of County
Courts, is here omitted.
(y) County Courts being Courts of
Record : (8 Vic. cap. 13, s. 2 ; Ear.
Prac. Stats, p. 78), it is very properly
enacted that they may furnish exem-
plifications of judgment rolls.
{z) The original section reads thus,
" a copy of the entry in either of such
docket books," &c., intending the
docket books in the office of the Deputy
Clerk of the Crown, as well as the
principal office at Toronto : (see note
z, tupra.
(a) <* In either of the said Courts,"
i.^. i
It
V ' 1
.-,
' Mit
ill.
N'lr'
».j^
'*-*i^
SOrkit
>*■ J
572
Oertiflcates
nuv b« Riv«n
andragii-
toiwdioMto
bind Undi.
(V
^1^^
■ . iiraed bofuro
"^^ this Act Hhall
be In force.
Oontinuiog
writi.
THE COUNTY COURTS PROCEDURI! ACT. [s. viii.
tered, or to his logal representative, a certificate signed by him
of such Judgment, oontsining the like particulars as nro
required in certificates of Judgments given by the Clerks of the
Crown and Pleas, (b) and such certificate may bo rcgiHtcrcd in
the Reg itry Office of any County in Upper Canada, and the
same oertifioate and the registration thereof shall have the like
force and effect in binding or operating as a charge upon lands
tenements, or hereditaments situate within such County, as if
the certificate had been granted by a Clerk or Deputy Clerk of
the Crownl't^)
VIII. {d ) When any Writ of Summons or Capias in any such
action shall have been issued before, and shall be in forco [at
the time of] (e) the commencement of this Act, such Writ
may, at any time before the expiration thereof, be renewed
under the provisions of, and in the manner directed by this
Act, (/) and where any Writ, issued in continuation of a pre-
ceding Writ, according to the provisions of the laws in
force in the County Courts before the passing of this Act, (*/)
shall be in force and unexpired, or where one month next after
the expiration thereof shall not have elapsed at the commence-
mcnt of this Act, such continuing Writ may, without being
returned non est inventus, or entered of record according to the
&o. The language of the C. L. P. A,
1856, is followed too closely. «• Either"
is grammatically incorrect when ap-
plied to the several County Courts.
The word *' any" is intended.
lb) See note c^ to s. xv. of G.L.P.A,
1866.
(c) See note e to same section. It
is now enacted that " every judgment
Mgistered against lands in any county
shall cease to be a lien or charge upon
the land of the party against whom
such judgment has been rendered, or
any one claiming under him, in three
years after such judgment has been
registered, or within one year after the
passing of this Act, unless before the
expiration of the said period of three
years, or within one year after the
passing of this Act, such judgment
shall be re -registered, and that such
lien or charge shall cease whenever
the period of three years eball at any
time be allowed to elapse without a
further re-registry:" (C.L.P.A, 1857.
s. 19.)
{d ) This is a copy of s. xxix. of C.
L. P. A, 1856, with special modifica-
tions hereafter noticed.
(e) The words in brackets aro not
in the original section.
(/) This Act adopts s. ixviii. of C.
L. P. A, 1856, which contains the ne-
cessary provisions for renewal, and as
s. xxviii. is adopted " as if repeated at
length in this Act:" (Co. C.P. A, 1850,8.
2), it may be well said that writs shall
bo renewed "under the provisions of
and in the manner directed by this
Act."
{g) In the original section a special
reference is here made to 12 Vic. cap.
63, which extends only to the Superior
Courts of Common Law.
,, ix.] JOINDER or CAUSES OF AOTIOX. 678
provisions of the said laws (A) bo filed in the proper office of
the Court, within one month next after the expiration of such
Writ, or within twenty days after the ooinmencement of this
^ot, (0 and the original Writ of Summons or Capiat in such
action may thereupon, but within the same period of one month
next after the expiration of the continuing Writ; or within
twenty days after the comraonoomcnt of this Act, {J) be re-
newed under the provisions of, and in the manner directed by
this Act : (k) and every such Writ shall, after such renewal, nonowid
have the same duration and cifect for all purposes, and shall be,
if necessary, subsequently renewed in the same manner as if it
had originally issued under the authority of this Act. (I)
IX. (jn) Causes of action of whatever kind, provided thoy vrhat unsei .->>-, SZt^t^hn.
by and against the same parties and m the same rights, (w) be joined. '^ -z-i
• trKn ininod /'n^ in flio aatnAoiiif /" »i^ Kiif. fViio aTinll nnf nr^.^/.A 'C^^t>9 , /./
1
be
may bo joined (o) in the same suit, (^>) but this shall not cxtciud
to replevin oi; ejectment, (q) or to causes of action which are
local and arise in different Counties, (>■) and the Court or a
Judge shall have power to prevent the trial of different causes
of action together, if such trial would be inexpedient, (s) and in
such case the Court or a Judge may order separate records to
be made up and separate trials to be had ; (t) Provided always,
that nothing herein contained shall bo construed to restrict or
diminish the obligation or right of a Plaintiff to include in one
action all or any of the drawers, makers, endorsers, and accept-
ors of any Bill of Exchange or Promissory Note, (w)
(h) " According to the provisions of
the said laws," i.e. the laws in force in
the County Courts before the passing
of this Act.
(i) As to the computation of time,
gee note d to s. Ivii.
{j) See preceding note.
(k) See note/, supra.
(I) See note/ to s. xxix. of C.L.P.A,
1856.
(m) This is a copy of s. Ixxy. of C.
L. P. A, 1856, with special modifi-
cations hereafter noticed ; besides,
though evidently an error, s. Ixxv. is
vith general modifications extended to
County Courts : (C.L.P.A, 185G, s. 11.)
(n^ See note/ to s. Ixxv.
(o) Sea note k to some section.
ip) See note I to same section.
q) See note m to same section.
r) "Or to causes of action which
are local and arise in diflferent coun-
ties." These words ore substituted
for " where two or more of the causes
of action so joined are local and arise
in difierent ooucties, the venue may be
in any of such counties." The modi-
fioation is a special one, and necessary
for the reasons pointed out in note /
to s. ii. of C.L.P.A, 1856.
(s) See note o to s. Ixxv.
(t) i.e. Separate records to be made
up and separate trials to be had in the
county over which such Judge presides :
(see note ji' to s. ii. of C.L.P.A, 1856.)
(m) See note^ to s. Ixxv.
i''fe
m
.'l i
li,
I I
'H
t*?
hi
'i r+iP
674
THE OOUNTT COURTS PROCEDURE ACT.
[8.x.
^/^•^
C4n^ stfti j^ Matters of ^' (^) ^' ** ^® ^^'^^ *° appew, at any time after the issuing
^ *■ eix-Li. Mconnt may of the Writ («>) [of any County Court], (a) to the satisfaction
■»»«nn^ri>y of the Judge, upon the application of either party, (^y) that the
matters in dispute consist wholly or in part of matters of mere
account, {£) which cannot conveniently be tried in the ordinary
way, (a) it shall be lawful for such Judge, upon such applica.
tion, if he think fit, to decide such matter in a summary ^Ban-
ner, (6) or to order (c) that such matter, either wholly or in
part, be referred to an arbitrator appointed by the parties, {^'\
upon such terms as to costs and otherwise as such Judge shall
think reasonable ; (c) and the decision or order of such Court
or Judge, or the award or certificate of such referee, shall be
enforceable by the same process as the finding of a Jury upon
the matter referred. (/)
i\ 5
(r) This is a copy of s. Iqfxxiv. of C.
L.P.A, 1856, with special modifications
hereafter noticed.
[w") See note v to s. Ixxxiv.
(z) The words in brackets are of
course not to be found in the original
section. ,'.-.. ^.
(y) See note w to s. Ixxxiv.
\z) See note x to same section. In
the first part of note z as printed, a
slight error exists. For the word
••wholly" in the eighth line of the
note, the words •' in part" must be
substituted. The commencement of
the note thus amended will read " that
the matters in dispute consist wholly
or in part of matters of mere account."
'•These words are susceptible of two
mods of interpretation, 1. Either
tbate wher" th« u.u.**ers in dispute
consist wholly oi matters uf account,
the whole may be referred, and that
where it consists in part of matters of
mere account such part only may be
referred," &c. If it appear to the
Court that defendant intends to set up
defences wholly independent of matters
of account, which defences should be
disposed of by a jury, no reference will
be made under this section : lEvana t.
Jackson, Chambers, March 10, 1857,
Robinson, C. J, III. U. C. L. J, 88.)
(a) See note y to a. Izxxv. of C. L.
P. A, 185G.
.!')
See note z to same section.
See note a to* same section.
There is nothing to prevent the Court
amending the particulars of a plain-
tiff's demand after a reference made
under this section : {Atterbury v. /ar-
vis, 29 L. T. Rep. 129.) Whether a
similar power exists after a reference
by consent is not yet decided.
{d ) The words in the original sec-
tion are '• or to an oflScer of the Court
or in country causes to the Judge of
any County Court," &c., which, read
in reference to the Superior Courts is
easily understood.
{e) See note /to s. Ixxxv. of CLP.
A, 1866. Where a plaintiff having ob-
tained an order for a reference to tiie
Master under Eng. C. L. P. A, 1854, s.
3, and the Master declined it, and
plaintiff thereupon obtained an order
to rescind the former order and pro-
ceed to trial : Held that he was not
entitled to costs in these proceedings
as oojts in the cause: [GrihbU r.
Buchanan, 18 C. B. 691.) Where by
the terms of an order granted under
the said section, the costs of the refer-
ence and award are directed to abide
the event of the award, and.the event
is partly in favor of plaintiff and partly
in favor of defendant, no costs are
payable on either side : {lb.)
(/) See note g to s. Ixxxv.
ne section.
c, which, read
serior Courts is
gs. xi-xu-xui.]
REFERENCES TO ARBITRATION.
676
>'/■
/
y?-a?
/7
rrw^
XI. (^) If it shall appear to the Judge that the allowance or q^j^^^j^^j^ ^^ c<r^siixi-t^
disallowance of any particular item (JC) or items in such ac jj^^l^^''^*" ^ ^'^^ ^ ^ '
count {i) depends upon a question of law fit to be decided by juch account
the Court, or upon a question of fact fit to be decided by a mined.
J«i7) U ) ^* ^^^^^ ^® lawful for such Judge to direct a case to
be stated (k) or an issue or issues to be tried ; (I) and the de-
cision of the Judge upon such case, (m) and the finding of the
Jury upon such issue or issues, (n) shall be taken and acted
upon by the arbitrator as conclusive, (o)
XII. ( p) It shall be lawful for the arbitrator upon any com- Arbitrator •"■
1 i»» f \ 'If 1. 1-11 f 1 ^ / •. ni«y 9tat«
nulsorv reference under this Act, (q) if he shall think fit, (r) special case
". . ■, , t /-v. ..!• nin award.
and if it is not provided to the contrary, (s) to state his award
as to the whole or any part thereof, (<) in the form of a special
oase for the opinion of the Court ; (u) and when an action is
referred, (v) judgment, if so ordered, may be entered according
to the opinion of the Court, (to)
XIII. (x) The proceedings upon any such arbitration as Proceedinga
aforesaid (y) shall, except otherwise directed hereby or by the tion cases,
submission or document authorising the reference, be conducted
in like manner and subject to the same rules (z) and enactiuents
as to the power of the arbitrator and of the Court, the attend-
ance of witnesses, (a) the production of documents, eiifoicing
^?rr
o»T-iSAif fin-*
((/) This is a copy of a. Ixxxv. of C.
L. P. A, 1856. Tlie only modifications
made are general and need not be spe-
cifically noticed.
(A) See note i to s. Ixxxv.
(t) See note J to same section.
(/ ) See note k to same.
(jfc) See note m to same.
(l) See note n to same. "' '
hn) See note o to same.
m See note^ to same.
See note^ to same.
ij)) This i^ a copy of s. Ixxxvi. of
p. A, 1856, with special modifi-
oaticus hereafter noticed.
(j) See note « to s. Ixxxvi. The
words in the original section " or upon
any reference by consent of parties
whore the submission is or may be
made a rule or order of any of the Su-
perior Courts of Law or Equity in
Upper Canada," are here omitted.
M S
it) S
See note w to s. Ixxxvi.
See note x to same.
See note y to same.
(li) See note 2 to same. -•-
^i>) £ee note a to same. '"-,
Cw) See note b to same.
(x) This is a copy of s. Ixxxvii. of
C. L. P. A, 1856, with special modifi-
cations hereafter noticed.
iy) See note d to s. Ixxxvii.
z) See note e to same.
a) See note/ to same. In reading
this note it will be necessary to re-
member that County Courts, unlike the
Superior Courts, have no jurisdiction at
common law. The affidavit upon which
an application is made for an order for
the attendance of witnesses and pro-
duction of documents before arbitra-
tors, must show that the documents
required are such as the witnesses
would be compelled to produce at a
' i'dw
) U..C.
(,',
576 THE COUNTY COURTS PROCEDURE ACT. [gg, xiv-XV
(6) or setting aside tbe award, or otherwise, (c) as upon a reference
made by consent under a rule of [the Superior Courts] (d) qj
Judge's order, (e)
s^a-? ie,„^ XIV. (/) In actions in which it shall appear to the Judge
'^fi -x^v^i^^cL *^a* ^^^ amount of damages which ought to ((/) be recovered
not te"*^** by the Plaintiff is substantially a matter of calculation, (A) it
referred. gijg^jj mj^ jjg neccssary to assess the damages by a Jury, (i) but
the Judge may ascertain (J) the amount for which final Judg-
ment is to be signed, and the attendance of witnesses and the
production of documents before such Judge (k) may be com-
pelled by subpoena, in the same manner as before a Jury; Q)
and it shall be lawful for such Judge (m) to appoint the day for
hearing the case, and to adjourn the inquiry from time to tin:e
as occasion may require j (n) and such Judge shall make an
order in writing, (o) declaring the amount found by him (p)
and such and the like proceedings may thereupon be had as to
taxation of costs, signing Judgment, and otherwise, as upon
the finding of a Jury upon an assessment of damages, (q)
XV. Where any issue is or shall be joined in any cause (s)
Where the
Plaintiff ueg-
trial. ( Carroll et al v. Bull, Chambers,
Nov. 14, 1850, Draper, C. J., Ill U. C.
L. J. 12). An order was granted exparte
upon an affidavit of plaintiff that the
cause L id been duly referred, that the
arbitrators appointed certain days for
proceeding, and that certain parties
whose names and residences were given,
were material and necessary witnesses
for the plaintiff: (Gailena v. Cotton,
Chambers, Nov. 17, 1856, McLean, J.,
Ill U. C. L. J. 47.)
(li) See note y to s. Ixxxvii.
(c) See note a to same.
/) For the words in brackets read
3ourt" in the original section.
(c) See note i to s. Ixxxvii.
(/) This is a copy of s. cxliii. of
C. L. P. A., 1856, with special msdifi-
cations hereafter noticed.
(g) See note / to s. cxliii.
(/() See note tn to same. In an ac-
tion on the Common Courts for goods
sold, interlocutory judgment having
been signed the Court will not grant a
reference under this action, if any
dispute be likely to arise as to quality
or price: (Hutchison v. Sidawavs. 14
U. C. R. 472.) ^ '
(i) See note n to s. cxliii.
(j) In the original section the
power is to tho Court or Judge to direct
the amount to be ascertained by certain
officers therein named. Here it is for
the Judge himself to ascertain, &c.
ik) See note « to s. cxliii.
/) See note t to same.
m) See notice u to same,
(ra) See note v to same,
(o) The original sections read thus,
" shall endorse upon the rule or order
for referring the amount of damages
to him the amount," &c.
(p) The original section reads, "and
shall deliver one rule or order with
such endorsement to plaintiff."
(q) See note y to s. cxliii. .
(r) This is a copy of s. cli. of C. L.
P. A. 1856, with special modifications
hereafter noticed.
(«) See note e to s. cli.
..xvi.]
PRODUCTION OP DOCUMENTS, ETC.
577
and the plaintiff has neglected or shall neglect to bring such, ^^^^^^^j^^
issue (0 on to be tried [at the first sittings of the Court (u) {j?,",|^"'*{^r„\°
then next following, whether the plaintiff shall in the meantime tiff may
have given notice of trial or not,] (v) the defendant may give
twenty days' notice to the \, nntiff (w) to bring the issue on
to be tried at the next sittings of the Court, (x) after the
expiration of the notice; (y) r^d if the plaintiff afterwards
ne'^lects to give notice of trial for such sittings (z) or to proceed
to trial as required by the said notice given by the defendant,
(a) the defendant may suggest on the record that the plaintiff
has failed to proceed to trial, although duly required so to do,
(h) (wbich suggestion shall not be traversable, but only be
aubiect to be set aside if untrue,) (c) and may sign Judgment And sign
/■ T\ '111 1T-1 1111 judgmeut,
for his costs; («) provided that the Judge shall have power
to extend the time for proceeding to trial, with or without
terms, (e) / \
XVI. (/) Upon the hearing (g) of any motion or Summons, Judge may
(h) it shall be lawful for the Judge, at his discretion (i) and l^nseroTd'o-
upon such terms as he shall think reasonable, from time to helTring*' °°
time (y) to order such documents as ho may think tit to Ti^e "'^ ■'°"^' *"•
produced, (Jc) and such witnesses as he may think necessary,
to appear and be examined vioa voce (/) cither before such
Judge [or b-ifore the Clerk of the Court], (m) and up. > :, >iear?ng
(t) See note /to b. cli.
(«) As to sittings and terms in
County Courts see ss. 16, 17, of Co. C.
P. A. 1857.
(v) The words in brackets are in-
serted instead of a corresponding part
of the original section, which relating
as it does to the division of causes into
town and country causes, and referring
to the assizes and terms of the Superior
Courts is vrhoUy inapplicable to County
Courts.
(w) See note m to s. cli.
[x) "Assizes" in the original section.
f )/) Sec note o to s. cli.
(2) "Assizes" in orifinal section.
Sec note ;j to s. cli.
(a) See note q to .'?nmo.
ib) See note r to same.
(c) See note « to same.
MM
i:
(d) See no\ e i to s. cli.
[e) See nocc v to sam?. The origi-
nal sectir ; here uontinuc.^, i.nd "pro-
vided b.i^'^, that uo ru'e for trial by
proviso shall thereafter be necessni-y. "
(See note w to s. cli.)
(/) This is a copy of s. clxx. of
C. L. P. A. 1850, with special modifi-
cations liereafter noticed.
' ff) See note t to s. clxx.
(A) See note « to same.
See note v to same.
See note w to same.
Sec note x to same.
See note »/ to same.
(m) Instead of the words in brackets
read in the original section "or before
a Judge of any County Court, or boioro
any Clerk or Deputy Clerk of the
Crown."
J)
{Jc)
I)
Ill
"M
678
THE COUNTY COURTS PROCKDUEE ACT.
[s. xvii.
<So^ S2a? -f^n-
\\ ,'
^.\ i
torexiimlned
as to his
i
■;.'i'i
r "' i
• 1 ■ '
^':l
auch evidence or reading the report (n) of the Clerk, to make
jt^^-iiM*.}-..^ such order as may be just, (o)
Jadgment XVII. (/)) It shall be lawful for any creditor who has ob-.
have Lis dlb^tained a Judgment (5) [in any County Court] (r) to apply to
the Judge for a rule or order that the Judgment debtor should
be orally examined as to any and what debts are owing to him
(«) before such Judge of any County Court or before any other
person to be specially named, (<) and the Judge may make
such order («) for ihe examination of such Judgment debtor
and for the production of any books or documents, {v) and the
examination shall be conducted in the same manner as in the
case of an oral examination of an opposite party under this
Act. {w)
And with respect to costs : (a:-) Be it enacted :
(n) See note d to s. clxx.
(0) See note e to same.
(/>) This is a copy of s. cxciii. of
C. L. P. A. 1866, with special modifi-
cations hereafter noticed.
(7) See note w to s, cxciii.
(r) In original sectio!: «' in any of
the Superior Courts.'' See note x to
B. cxciii.
v (s) See note z to same.
■ (<) In original section ''before the
Judge of any County Court, or before
any Clerk or Deputy Clerk of the
Crown, or ar' other person to be spe-
cially named.
(u) See note b to eame.
if («) See note c to same. Disobedi-
ence no doubt in a Superior Court
case, upon the order being made, a
rule of Court would be punishable as
contempt of Court. The attachment,
: however, it has been held, cannot be
granted lay a Superior Court Judge
sitting in Chambers : (Oreene et al. v.
Ward, Chambers, Mar. 30, 1857, Ro-
binson, C. J., III. U. C. L. J., 113.]
(u;) See note d to s. cxciii.
(x) The costs in County Courts until
lately were regulated by Stat. 8 Vic.
cap. 13, the schedule of which was
thus sub-divided.
1. — Fees to be received by the Clerk,
and in belong to and be paid over to
the Fee Fund: (Amended by 9 Vic.
cap. 7, sched. A.)
2.— Fees to the SheriflF.
3. — Fees to a Commissioner.
4. — Fees to the Attorney. ' /
5. — Fees to the Crier.
6.— Fees to the Clerk.- (Amended
by 9 Vie. cap. 7, sched. B.)
By the Co. C. P. A. 1856, that part
of the schedule of 8 Vic. which a{)plied
to fees to be received by the Clerk, and
to belong to and be paid over to the
Fee Fund, (sub-div. 1. tupra), and the
amending enactment 9 Vic, cap. 7,
sched. A, were repealed and a new
tariff enacted : (s. 23.)
By the Co. C. P. A. 1857, that part
of the schedule of 8 Vic. which applied
to fees to the Attorney (sub-div. 4 ««-
pro) was repealed with a view to a
new tariff, to be enacted under b, 8 of
the same Act, which authorizes the
Judges of the Superior Courts to de-
termine and adjudge " all and singular
the fees which shall and may be allowed
to be taken by Counsel and Attorney,
sheriffs, coroners.and ofBcersofthesaid
Courts respectively :" (s.. 8.) Power
was given to the Judges of the Superior
Courts, when framing or altering the
table of costs, to associate a Judge of
a County Court with thorn.
aissioner,
xviu. J
r tr*^rt*tr\f\
COSTS.
#i-i*ftr i^ r\r\ n >
'T
679
BxtxpUoB.
XVIII. (v) Until otherwise ordered by rule of Court made »•«■*«>«- a^ s?5r ^
\, •' main M now. . ,. _'
in pursuance of the " Common Law Procedure Act, 1856," («) ui»tu»itM«i. \,J\^^\
the costs of Writs issued under the authority of this Act, and ^
of all other proceedings under the same, shall be and remain, c:«^«»c/z /5" g^
afi nearly as the nature themof will allow, the same as heretofore, sa/^^^^c ^t2'i'2,
but in no case greater than those already established, (a) except
that there shall be payable to the Clerks of the County Courts
for and to form part of the general fee fund, (6) the following
fees, viz. : for every Special Hearing before the Judge five
shillings, and the sum of ten shillings for every day's sittings
in taking examinations and evidence, «nd the like sum on every
reference to the County Judge from the Superior Courts,
together with one shilling per folio on the evidence taken before
him, and five shillings for every report thereon ; (c) Provided proyigo,
always, that hereafter no mileage shall be taxed or allowed for
the service of any Writ, paper or proceeding, without an affi-
davit being made and produced to the proper taxing officer, ,^''
The Judges of the Superior Courts
having assoeinted with them James Ro-
bert Gowan, Esq., Judge of the County
of Simcoe, hnve, in the exercise of the
powers conferred upon then:, framed
aud issued *• A Table of Costs for the
several County Courts of Upper Cana-
da." There being a legislative exten-
sion of the practice of the Superior
Courts to Coi: I ty Courts, and a legis-
lative declarution that in matters not
expressly provided for the practice of
the County Courts should conform to
that of the Superior Courts the new
tariff for County Courts is as respects
snlject matter common with that
framed for the Superior Courts in
1856. The business of the Courts,
both Superior and Inferior, being as
nearly as possible the same, the only
real difference between the two tarilfs
is the amount chargeable for the busi-
ness done. The new tarilf, though
not affecting the amount to be paid to
Clerks of County Courts for the Feo
Fund, as established under C. L. P. A.
1856, 8. 23, supersedes the whole of
the tariff set forth iu the schedule Co
8 Vic. cap. 13,
(;/) This, like s. cccxt. of C. L. P. A.
1866 is a temporary provision.
(«) The Rules of T. T. 1856, made
pursuant to the C. L. P. A. 1866, w«re
held not in any way to affect the
amount of costs chargeable in County
Courts: {Chard v. Lovnt, Chambers,
Oct. 4, 1866, Bums, J., II. U. C. L. J,
227 ; Coulter v. Willoughby, Simcoe,
Gowan, Co. J., III. U.C.L.J., 214.) A
doubt having been entertained as to
the power of the Judges of the Superior
Courts under C. L. P. A. 1866, to frame
a tariff for County Courts, that power
is now conferred by the Legislature in
language positive and unmistakeible :
(C. L. P. A. 1857, s. 8.)
(a) The fees established by the taii?
recently issued, "and no other or
greater shall be allowed in taxation, or
taken or received by any Council, At-
torney, Sheriff, or Officer:" (See th«
order preceding the tariff, liar. Mau.
of Costs in Co. Courts, p. 7.)
(6) In addition to the fees mads
payable under s. 23 of this Act.
(r) These are made necessary in
consequence of the alterations in the
pi'actioe effected by the C.L.P.A. 18&9.
I I
i-' il
530
THE COUNTY COURTS PROCEDURE ACT.
[s. xix-sx.
stating the sum actually disbursed and paid for such mileage
and the name of the party to whom such payment was made. ((/)
sU* fgy^ Proctko In XIX. (e) In any case not expressly provided for by law, the
cv,. ^ ^•'„Vid.^* for. practice and proceedings in the several County Courts in Upper
Canada shall be regulated by and shall conform to the practice
of the Superior Courts of Common Law at Toronto; and the
practice of thj said Superior Courts, as the same rcraaiui, now
or may be hereafter altered, shall, in matters not expressly
provided for as aforesaid, apply and extend to the County
Courts and to all actions and proceedings therein.
Recital. XX. (/) And whereas it is exppAliout to enlarge and more
clearly define tho jurisdiction of the several County Courts in
J.V/
{d) N. R. IGO of T. T. 1856, is sub-
stautially tho same as this provision.
(c) This is ono of tho most impor ' int
sections in Co. C. P. A. 1850. Its ope-
ration is very extensive. Its effect will
be to secure as much as possible uni-
formity of practice in all the Courts of
Record of Common Law jurisJiclion.
The anomaly of a practice in tho
County Courts defective in that in
which the practice of tho Superior
Courts is complete cannot now woU
occur. Provision has been made in
express language for extending to
County Courts so much of tho practice
of the Superior Courts as appeared to
tho Legislature to bo suited to tho
Inferior Courts. But so infinite, as
remas'lied by a writer, ore tlic possible
combinations of events and circumstun-
ces that they elude the power of enu-
meration, and are b'"7ond tV" reach of
human forcsiglit. '• • lea.t reflection
serves to evince tli't it would bo
impossible by positive ^nd direct legis-
lative authority sp •.lally to provide
for every particular case which iiuiii
happen: (Doug. Rep. Preface.) How-
ever much, thoreforo, is the fr.ib-
ject of express provi.-Ion, there may as
regards the practice of County Courts
bo more for which no positive provi^?ion
is made. To muet such it is enacted
that "in any case not expressly pro-
vided for by law the pructice au'.'
proceedings in the several County
Courts of Upper Canada slinll bo regu-
lated by and bhiUl conform to tlic
practice 'if the Superior Courts of
ComiHon Law at Toronto, &c." The
Superior Courts of Upper Canada ars
not 90 restricted with regard to practice
as the County Courts. Tho Court of
Common Pleas has tho same jurisdic-
tion, powers, authorities, and privi-
leges, as arc exercised by the Queen's
Bench, (12 Vic. cap. O-O, s. 8), and the
Queen's Bench po.ssesses all such
powers and authorities as by the law
of England aro incident to a Superior
Court of Civil and Criminal Jurisdic-
tion : (.34 Geo. III. cap. 2, 8. 1)
(/) The object of this section is "to
enlnrgc and more cleariy define the
jurisdiction" of the Cov.aty Courts.
Though slightly increase.! in cases of
tort, the jurisdiotioa i;; not mnteri-
ally cnlar;:;cd as to nmouot, but rather
as to subject matter. And the juris-
diction is not only enlarged, but h
more clearly drrmed, by doing nwny
with tho distinction between differeut
forms of actions, and givinj; a general
jurisdiction in '♦«?/ personal aclions
where the ainonnt claimed is not nnn
than XoO." The demands cognizable
in County Courts mo.y bo divided into
two classes — those li(iuidatcd ornscer-
tainjd by the act of tho parties or the
signature of the defendant — ami those
not so ascertained. This two-fold
division has been ol-^erved since the
S. XX.]
JURISDICTION.
t T.-
581
Upper Canada — It is enacted, That for and notwithstanding juHadiotion
anything contained in the first section of an Act of the Parlia-ooS?tTeu-
meat of this Province, passed in the thirteenth and fourteenth n*l|53;uh-
years of Her Majesty's Reign, intituled, An Act to amend omP**'*'*'"'*
first constitution of the Courts. There
never was jurisdiction in cases where
the title to land came in question.
7lie enlargement in jurisdiction has
been progressive, aa the following
gynopsis will show.
The jurisdiction was: In 1822, of
"all matters of contract from 408. to
£16 "where the amount was "liqui-
dated or ascertained either by the act
of the parties or the nature of the trans-
action, to £40 ; " and in all matters
of tort relating to personal chattels"
where the damages did "not exceed
£15" and the title to the land did
"not thereby be brought into ques-
tion:" (2 Geo. IV. cap. 2, s. 3.) In
1845, of *' all causes or suits relating
to debt, covenant, or contract, to the
amount of £26," and " in cases of
contract or debt on the common
counts," where the amount was " as-
certained by the signature of the de-
fendant to £60," and also " in all
matters of tort to personal chattels
"where the damage did" not exceed
L f £20, " i^nd where titles to land "
I ' ■;TCie ^ot brought in question:" (8
Vic. cap. 13, 8. 6.) In 1850, of "all
causes or suits relating to debt, cove-
nant, or contract, to the amount of
£50," and " in cases of debt or con-
tract," where the amount was *' ascer-
tained by the signature of the defendant
to £100," and also " in all matters of
tort relating to personal chattels "
where the damages " did not exceed
£30, and where tiie title to land" was
'not brought in quef^tion :" (13 & 14
Vic. cap, 52, s. 1.) /i 1856, of " all
personal actions where the debt or
damages is not more than £50," 'ind
of ' all cases or suits relating to debt,
covenant, or contrnet, where the
amount is liquidated or asoertiiined by
the act of the parties or the pignaturo
of the defendant to £100." " Provided
that the said Courts shall not have
cognizance of any action where the
title to land shall bo brought in ques-
tion, or in whicli the validity of any
devise, bequest, or limitation, under •
any will or settlement, nuiy be disputed,
or for any libel or slander, or for
criminal conversation, or for seduc-
tion:" (Co. C. P. A. 1856, 8. 20.)
In 1822 there was not, it will be
observed, any distinction as to forms
of action, excepting those on contracts
a&d those for torts. In 1845 the
jurisdiction as to amount was not only
increased, but a distinction without a
difference was made in speaking of
debt, covenant, or contract, as if neither
debt nor covenant were a species of
action on contract. In 1850, though
the jurisdiction as to amount was still
further increased, the i..ngungo as to
forms of action remained unchanged.
In 1856 the distinction between actions
ex contractu and tx delicto is to some
extent done away with, for jurisdiction
is given " of all personal actions where
tlie debt or damayta is not more than
£50," &o. The rule is now that in all
personal actions whore the amount
claimed does not exceed £50, County
Courts have jurisdiction. In this pro-
position there «\re two branches
or subordinate rules — the first regard-
ing tlie description of action — the
second the amount of claim. To each
there is an exception. Tliough actions
for libel, slander, crinnnaloouversntion,
and seduction, are personal actions,
there is no juris<lictiou as to them.
Next as to the amount claimed. The
general rrlo is that in no personal
action for an amount exceeding £50
hhall County Courts have jur!^?diction.
The exceptions are " causes or suits
relating to debt, covenant, or contract,
where the amount is liquidated, or
ascertained by the act of the parties or
the signature of the defendant," in
which cases there is jurisdiction to
£100. In each of the foregoing in-
stances tlto exception proves the rule.
< fkc ajiU o/- ^ ^^J*- *^ <-/• *?
'^*^i. El-
I
! !
ii H
ife'^
w^
THK OOUNTT OOVRTt HtOOXOURB ACT.
[8-XX,
pit '■'•*■ r ■•■'
i3*nviB. *''*' '^ ■^^'* regulating the practice of the County Courts in
Mp. 6S. Upper Canada, and to extend the Jurisdiction thereof, (g) q,
any other Act of the Parliament of this ProTinoe, tbe said
County Courts respectively shall hold plea of all personal
actions where the debt or damages claimed is not more than
fifty pounds, (A) and of all causes or suits relating to debt
covenant or contract, (t) where the amount is liquidated or
ascertained by the act of the parties or the signature of the
ProTiw: u defendant, to one hundred pounds; (J) Provided always, that
ToiTinKUUa the said County Courts shall not have cognizance of any action
where the title to land shall be brought in /nostion*, (k) or in
Sfiaddt/H^ which the validity of any devise, bequest or limitation under
Ijiirb UUO j^py ^jji Qj. settlement may be disputed, (/) or for any libel or
20 J^ J <^ W 30 L alander, or for criminal conversation or seduction, (m)
XtkJbWoiMA, yi
IWCCPt^'h (g) 18 & 14 Vic. cap. 62: (H»r.
' ' Prio. Stats., p. 18S.)
(A)
366.
It is enacted it the C. L. P. A.
1866 that in all actions where the
plaintiff recovers a sum of money the
amount to which he is entitled shall be
awarded to him by the judgment gene-
ridly without any distinction being
therein made as to whether such sum
is recovered by way of debt or damages :
(s. oxUt, applied to County Courts.)
The propriety, therefore, of super-
seding the rule which gave jurisdiction
to County Courts in actions on contract
to one amount, and in actions for torts,
where damages only are claimed, to a
different amount, is sufficiently obvious.
Whetherthe sums ought to be recovered
be £50 or under, whether claimed as
debt or damages, there is jurisdiction.
(t) The technical distinction be-
tween forms of action having been
abolished {C.L.P.A, 1856, s. xvii, ap-
lied to County Courts) tbe Court will
look at what is substantially the nature
of the action, in order to determine
any question contingent thereopon:
{Ltggt V. TucTccr, 28 L. T. Rep., 145.)
It may be that the words " debt, cove-
nant, or contract," as used in this
section, are descriptive of causes rather
than forms of action.
(jf) i.i either of the cases mentioned
though theamountclaimed be £100 Co*
Courts have jurisdiction. These are
where " the amount is liquidated or
ascertained by tbe act of the parties
or the signature of the defendant"
The word " liquidated" seems to refer
" to the act of the parties," and the
word "ascertained" "to the signa-
tures of tbe defendant."
(*) Ejttotment may strictly speaking
be maintained in certain eases where
the ♦•«« to land is not in qnestion.
Thus for example ejectment by a
landlord against bis tenant to recover
possession of property leased, owing
to forfeiture for non-payment of rent,
(C. L. P. A. 1836,8. cclxiii), inwliicb
case the tenant is estopped from dis-
puting his landlord's title. Whether
County Courts have jurisdiction of
ejectment in the case supposed, or
indeed in any other case, is a point
deserving consideration. The fact thot
none of the ejectment clauses of the
C. L. P. A. 1866, having been extended
to County Courts, is an argnment
against such • view.
(/) In these cases title to land maj
be brought in question.
(m) See note/ »tipra.
tie to land m»j
B. xxii.]
•T^"**. tflm'-Ja^O lEBB.
rry^r-iy*'
588
XXI. (n) In all applications and prooeediags before t^«pe«inoer- '^^ S't^.t /fn^
County Judges, not relating to suits instituted in any Court of Jjjj,'!*"'^ "" ^^ fY^'
Civil Judicature in Upper Canada, there shall be payable to ~
the Clerks of the several County Courts, for and to form part
of the general fee fund thereof, (o) such fees, as nearly as the ,
nature of the case will allow, as are now payable on proceedings
under the Act for the relief of insolvent debtors, {p)
XXII. (j) Svery County Judge shall be paid by a certain j^^g,,,^ c^^ iUi f^
salary of not more than six hundred and fifty pounds or less wy to b« * « <"/v A"
tlaD two hundred and fifty pounds; (r) and the Governor in£66o,«nd
I •
^Y/-
(n) There are many kinds of pro-
ceedings, not relating to suits, directed
to be had before County Judges. They
are generally termed the collateral
duties of the County Judges. For
these proceedings when had certain
fees are under this section made pay-
able to the general fee fund : (See note
V to 8. 23 of this Act.
(o) In all applications and proceed-
ings before County Judges not relating
to suits instituted in any Court of Civil
Judicature there shall be payable to
and forming part of the general fee
fund, the same fees as are mentioned
in the new tariff for ordinary proceed-
ings in the Courts, "so far as the
same are applicable:" (SeeHar. Man.
rfCostsin Co. Courts, p. 14.) So with
regard to the Clerks and attorneys for
similar applications and proceedings,
the fees made payable for ordinary
proceedings in the Courts, •* so far as
the same are applicable," are also
directed to be paid : {lb. p. 18.)
(p) Stat. 8 Vic. cap. 4S, Har. Prao.
Stats., p. 95. The ft«8 were in pnr«u-
ance of thestatute framed by the Judges
of the Court of Queen's Bench in H. T.,
9 Vio. The following is an extract
from the tariff as regards fees, to the
Ckrlc: " Fee for filing petition for pro-
tection, with schedule. Is. ; drawing
every order for protection ad interim,
Is. 3d. ; each renewal for protection.
Is. 3d. ; each order of appointment
of aasignee, Is. 8d. ; for attendance of
petitioner or other person for the pur-
pose of discIo8ure,and for production of
books, papers, &c.. Is. 8d. ; to appraise
excepted articles. Is. 8d. ; to substitute
the name of surviving assignee or new
assignee. Is. 3d. ; notice of final order,
2s. 6d. ; final order for protection,
2b. 6d. ; every order for rescinding
final order for protection, 2s. 6d. ;
every order for discbarge of petitioner,
28. 6d. ; order on official assignee to
sell, 2s. 6d. ; order respecting lease or
agreement to lease to petitioner, 2s. 6d.;
order for a dividend, 28. 6d. ; order on
assignee to sell or assign debts, 2s. 6d. ;
on every writ or warrant of commit-
ment or attachment, 2s. 6d. ; every
summons to a witness, Is. 8d. ; draw-
ing certificate of appointment of as-
signee. Is. 8d. ; swearing affidavit. Is. ;
every order not hereinbefore specified
and necessary to be made, 1 s. 8d. ;
copies of all proceedings made by
Judge or Commissioner, or by desire
of party, per folio of 100 words, 6d. ;
every certificate of authentication,
Is. 3d. ; filing each necessary pro-
ceeding in a case, 6d." (II U. C. L. J.,
180.)
(q) It is the object of this section to
regulate the payment of salaries to
County Judges. It in effect supersedes
so much of 8. 61 of 8 Vic. eap. IS,
(Har. Prac. Stats., p. 86) as is incon-
sistent with it.
(r) " In no case more than £500 or
less than X250," under Stat, of 8 Vio
cap. 13. s. 61.
1 ■ f
:.;x
I!
584
TUB COUNTY COURTS PROOEDURB ACT.
fixed hy Oo-
vcrnor In
Couudl.
acrr>. ilKl ^fvT. Part nf ^s.'ho-
[8- xxiii.
Council (k) shnll fix the remuneration to bo paid to the Judccs
respectively, having due regard as well to tue v< pulation of the
several Counties or Union of Counties, as to the amount of
foes received by the County Treasurer, under the several stn-
tutes establishing fee funds; (0 and the remuueratiun of
Judges may be increased, or as vacancies shall occur may bo
diminished, by the Governor in Council, ^w;
XXIII. (v) So mueh of the Schedule of Feci annexed to
«*.<:« 7^1.3 ^"{,%^[^;";?, the Act passed in the eighth year of Her Majesty's Roign
'^ ^^ <:cJii-^r [hS^'^hf,,*"^} chaptered thirteen, as applies to the " Fees to be received by
that to v, ^Ijq Clerk, and to belong to and be paid over to the Fee Fund "
and tl^ whole of Schedule A annexed to an Act passed in the
ninth year of Her Majesty's Reign, chaptered seven, shall be
New Scho- and the same are hereby repealed, and the following schedule
IS substituted there lor :
Every Writ of Summons or Capias ad Respondendum, one
shillings and six pence, {w)
Every Verdict, six shillings and three pence,
Esocuting each Writ of Trial and Enquiry and making
lleturrt thereto, six shillings and three pence, (lo)
Every Report made by the Judge of the proceedings on
executing a Writ of Trial or Enquiry, five shillings.
tutud.
Tho Sched-
xlo.
(«) For the legi-slative interpretation
of these words see 12 Vie. cap. 10, s.
6, sub-s, 3: (Har. Prnc. Stats., p.
140.)
(i) 8 Vic. cap. 13, s. (-2, C. L. V. A.
1856, B. 23.
(w) The latter part of this section is
substantially the same as the latter
part of sec. Gl, 8 Vic. cap. 13. Within
the maximum sum prescribed a judge's
salary may be increased, but during
his incumbency the mmnncration once
fixed cannot bo diminished. The
salaries of the County Judges can
only be diminished "as vacancies shall
occur."
(«) The design of this section is to
increase the Fee Fund of each County
Court. With this object existing sta-
tutes regulating the payment of fees
to the Fee Fund at a rate lower than
that mentioned in this section are re-
pealed. The Fee Fund, it may be
mentioned, is a fund esttiblii-licd iu
1845 (8 Vic. cap. 13), and intended to
defray the disbursements necessary on
account of County Courts, including
the salaries of County Judges: (s. 66).
In tho event of a deficiency the Gover-
nor General is authorized to issue his
warrant in favor of the County Trea-
surer for the amount required to make
up the Judge's salary.
{w) "Executing each Writ of Trial
and Inquiry, &c." The clauses of 8
Vic. cap. 13, authorizing -Writs of
Trial and Inquiry (ss. 51-56) have
been repealed: (Co. C. P. A. 1857,
8. 19). This and the sncceediug item
arc therefore done away vith.
hu:.
y- i,
8. XXV.] FEES. 686
Kvery Certificate of prucoedings niado by the Judgo to be
transmitted to the Court of Queen's BoQch, two shillliogs and
six pence,
Kvery Rule requiring a motion in open Court, one shilling
and six ponce,
Every Rule or Order of Reiercnce, one shilling and six
pence,
Every other Rule or Judge's Order, one sUuiing and throo
pence, .1. . . i ,
Every Recognizance of Bail taken by tlu , one shilling
and six pence, 1.
Every Affidavit administered by Judge, one shilling,
Every Computation of principal and interest on a Bill, Note,
Bond, or Covenant, for payment of money, three shillings.
Every Writ of Subpoena, one shilling, >
Every Judgmcr't entered, six shillings and three pence,
Every Oath administered in open Court, one shilling.
XXIV. {x) In ac^dition to the fees now received by each pheriff'a '^^l "^^f^ <^^
Sheriff for mileage and poundage, it shall be lawful for him to^'iXg*"'* ^ ^ ' ' ^
charge and receive for mileage, twu pence per mile on all writs
executed, and for poundage, upon all moneys actually made
under aji.fa. or a ca. sa., six pence in the pound.
XXV. (y) It shall be lawful for the Governor in Council to^j^^jj^ ^„j^^,
cause to be paid to the Clerk of the County Court for the o^YoA^an*
United Counties of York and Peel, and after the dissolution of P"!-
the Union of such Counties, to the Clerk of the County Court
»-.u
S-V^"
?3^
(z) This section is in eflFect super-
seded by the New Tariff of Fees for
County Courts (see Har. Man. of Costs
in Co. Courts, p. 16); thus, ^* mileage,
going to arrest when arrest made, per
mile, 6d." " Actual mileage from the
Court-house to the place where service
of any process or proceeding is made,
per mile necessarily travelled, 6d."
" Poundage on executions and on at-
tachments in the nature of executions,
upon the sum actually made in the
pound, Is."
(y) The Fee Fund for the United
Counties of York and Feel is annually
greater in amount than that of any
other County or Union of Counties in
Upper Canada, and the surplus after
defraying all necessary disbursements
on account of the Court is greater
than that of any other Co. Court. Out
of this uurplus the Governor Qeneral
is here authorized to pay to the Clerk
of the County Court of the United
Counties of York and Peel over and
above all fees "an allowance not to
exceed one hundred pounds per annum. '
The payment, however, can only be
made "after all present charges there-
on shall have been first defrayed."
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Corporation
23 WiST MAIN STREET
WEBSTER, NY. MStO
(716) 872-4S03
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O
67S
THE NEW RULfcd OP PLEADING.
[R.8.
Bome matter of fact, exempli gratid — the drawing or mailing, or
indorsing or accepting, or presenting, or notice of dishonour of the bill
or note. (A)
8. — (t) In every species of action on contract, all matters in
confeHsioQ and avoidance, including not only those by way of discharge,
but those which show the transaction to bo either void or voidable in
point of law, (^ ) on the ground of fraud, or otherwise, (Jc^ shall be
specially pleaded, (/) exempli yraHd, — infancy, coverture, release, pay-
%W
does not prohibit the plea of the gero-
ml isaue to a count on a bill where the
plea la given by statute : ( Weeks ▼.
Argent, 16 M. & W. 817.)
(A) The effect of the rule is to com-
pel the defemlant to traverse or admit
each material allegation from which
his liability arises : {Sibley v. Fisher,
7 A. & £. 444.) In an action by in-
dorsee against indorser of a bill, the
defendant cannot deny the makiu)$ be-
cause the indorsement admits it: {Al-
len V. Walker, 2 M. & W. 317.) So the
acceptor of a bill payable to the order
of the drawer cannot deny the authority
of the drawer to draw or indorse uch
bill: {Halifax v. Lyle, 3 Ex. 440.)
But if the defendant charged as maimer
deny it, he may succeed if he show
that he was indorser only : ( Gwinnell
T. Herbert, 6 A. & B. 436 ) A plea
denying the indorsement puts in issue
not only the fact of the signature but
also a delivery with intent to transfer :
{Maraton v. Allen, 1 Dowl. N S. 442 ;
Bee also Belt v. Ingestre, 12 Q.B. 31.)
And as to the efiuct of a plea denying
plaintiff to be tlie bolder, see Kemp v.
Watt, 15 M. & W. 672. Any plea
which compels the plaintiff to produce
the bill ur note will enable the defend-
ant to take advantage of any defect
apparent OM the face of the instrument:
(Cock v. Coxwell, 2 C. M. & R 281 ;
Calvert v. Biker, 4 M. & W. 417;
Vaw'oa V. Macdonald, 2 U. & W. 26 ;
M Dowallw. Lyster, 2 M. & W. 52;
Jenkins v. Crouch, 5 Dowl. r.C. 293 ;
Field V. Woods, 7 A. & E. 114 ; but see
Mawny.Bradle:i,\ D. & L. 38U.) Where
to a declariUion, the first count being
on a promissory note, and the other
counts being cotiunon counts, the do-
fcadaut without leave to plead several
matters pleaded to the first count a
traverse of the making of tlie note ia
that count and " for a further plea to
the who'e declaration," non ansumpsil,
it was held that the plaintiff wnsj en-
titled to sign judgment: {Haivty y,
Hamilton, 4 Ex. 43.)
(i) Taken from Eng. R. G. PL
No 8 of H. T. 1853, the prijin of
which is Eng. R. G. No. 3 orH, T.4
Wm. IV. (Jerv. N. R. 129) with which
our old Rule Q. B. No. 1 of E. T. 5
Vic. (Cam. R. 65) corresponded.
{j ) The meaning of this part of the
rule is to require matter to be speciallj
pleaded which would have been h
subject of proof on the part of the de-
fendant, as usury, fraud, &c., and not
to exempt the plaintiff from proving
anything which he would formerly
have been required to prove : {BulUr-
mere v. Hayes, 5 M. & W. 456.) There-
fore the general issue is a denial that
the requisitfs of the Statu'e of Frauds
(29 C.ir. II. c. 3) and Lord Tenterden's
Act (13 & 14 Vic. cap. 71) have been
complied with in cases where these
Statutes apply : {Turnleyy. Macgregor,
6 M. & G 46 ; Eastwood v. Kenyan,
11 A. & E. 438 ; Leafy. Tulon, 10 M.
& W. 392.)
(A) In indebitatus assumpsit for goods
sold and delivered, where there hns
been a sale in point of fact the defend-
ant cannot show under the general
issue thfit the plaintiff had no title lo the
goods at the time of sale : ( Walker v.
Mellor, 11 Q.B. 478.) In this case it
will be observed that the defindnnt
confesses thiitplairrtiff did stli in point
of fact and then attempts to show that
the sale was void: (lb.)
(0 Illegality must be specinllj
pleaded, though it appear from the
[R.8.
(T making, or
our of the bill
all matters in
y of discharge,
J or voidable in
le, (k^ shall be
re, release, pay-
tbe first count a
ing of tlve uute ia
r a further plea to
»n," no" a''««'''P'^
) plaintiif wiw en-
ment: {Haivey y.
■^Eng. H. 6- PL
1853, the orijin of
LNo. 3 ofH. T.4
B 129) witU whicb
\. No. 1 of E. T. 5
corresponded.
,g of this part of tk
natter to be specially
ould have been le
n tbe part of the de-
fraud, &Cm ftnd not
aintiff from proving
he would formerly
sJ to prove: {BuUtr-
I &\V. 456.) There-
98ue is a denial that
Ihe Statute of Frauds
andLordTenterdens
.. cap. 71) bavebeeu
n cases wbere these
Turnley v. Macgregor,
Eastwood V. Kenm,
ietf/v. 2'M«on,10M.
masmmpsit for gooii
red, where there Las
Jint of fact the defend.
w under the general
478.) In this case It
J that the df 'ndan
aitrtiffdids^llnPj;;
'attempts to show that
;'=.S\e specially
[h it appear from the
B. 8.]
TRINITY TERM, 1856.
679
ment, (m) performaDce, illegality of consideration either by statute or
common law, (n) drawing, indorsing, agcepiing bills, &c , or notes, by
way of accommodation, (o) set off, mutual credit, unseaworthiness, mis-
plaintiff's own case : (Fenwick v. Lay-
eoek, 1 Q. B. 414 ; Vainiree v. Hut-
chinson, 10 M. & W. 85; Bennett v.
Bull, 1 E.v. 598 ; AUport v. Null, 1 C.
B. 974) ; for instance, that tbe attorney
Tfts guilty of maintenance in the suits
in respect of which he sues : {Potts v.
Sparrow, 1 Bing. N. C. 694;) in an ac-
tion for demurrage that the plaintiff
defrauded the customs : {Aleock v.
Taylor, 6 N. & M. 290) ; in an action
for money had and received that it whs
tho produce of an illegal wager : ( Mar-
tin V. Smith, 4 Bing. N. C. 446.) So
partial failure of consideration must
be pleaded : {Head v. Baldrey, 6 A. &
E. 670.) If a simple contract debt be
merged in a specialty subsequently
given it must be specially pleaded:
[Wuton V. Foster, 2 Bing. N. C.
693.) So if a subsequent account
be stated upon which the defendant re-
lies : {Fidgett v. Penny, 1 C. M. & R.
108.)
(m) Where goods are sold for ready
money and payment is made accord-
ingly no debt arise."?, and such p.ayment
13 therefore proveable under the gene-
ral issue : ( Bussey v. Barnett, 9 M. &
W. 312.) So if there be a prepayment :
(Smithy. V; inter, 21 L. J. C. P. 158;
see also Littlechild t. Banks, 7 Q. B
739.)
(n) The defendant cannot avail him-
self of illet^ality unless specially plead-
ed, though it appear from the plaintiff's
own case: (see note I, supra.)
(o) If the defence be that the bill or
note was drawn indorsed or accepted
by way of accommodatioc, or that it
was obtained by fraud or under any
circumstances which disentitle the
plaintiff to sue upon it, this defence
must be specially pleaded. Tbe plea
vfwant of consideration must be proved
by the defendant : [Laceif v, Forrester,
2 C. M. & R. 59 ; Noel v. Bmjd, 4
Dowl. P. C. 415), unless indeed tho
plaintiff state tho consideration in
his replication in answer to tho plea
and make it part of tbe issue : {Loic v.
Burrows, 2 A. & E. 488.) This plea
in form must show the real grounds of
defence, and state the circumstances
under which the bill or note was given,
for it is not sufficient to state generally
that the defendant received no consi-
deration for the bill or note : [Slough-
ton V. Kilmorey, 1 C. M. & R. 72 ;
Graham v. Pitman, 8 A. A E. 521 ;
Trinder v. Smedley, 3 A. & E. 622 ;
Low V. Chiffney, 1 Bing. N. C. 267 ;
French v. Archer, 3 Dowl. P. C. 180;
Reynolia v, Ivemy, 3 Dowl. P. C. 453;
Kearns v. Darell, 6 C. B. 590.) If,
however, tho plaintiff take issue on a
plea that " there was not consideration
for the bill," tho defendant will be at
liberty to give in evidence all matters
of defence to which such plea i.s appli-
cable: {Easton v. Pratchett, 1 C. M. &
R. 798 ; Mills v. Ody, 2 C. M. & R.
103.) So it is not sufficient to ca!>t a
suspicion on the plaintiff's title — the
circumstances which constitute the de-
fence must be specially pleaded :
(Stern v. Vglesias, 1 C. M. & R. 565 ;
Bramah v. Roberts, 1 Bing. N.C. 469.)
If the plea alleges the circumstances
under which the bill was given, ond
conclude that there was no considera-
tion, a traverse of the first averment
will be sufficient : {Atkinson v. Duvies,
11 M. & W. 236.) It is a general rule
that a defendant cannot in defence to
an action on a bill or note, ^ct up n
contract different from that which the
bill or note imports : {Besant v. Cross,
10 C. B. 895.) He may, however, im-
peach the consideration or set up a
collateral agreement furnishing nn an-
swer to the demand for pnyuient :
(Foster v. Jally, 1 C. M. & R, 703.)
For instance, he may show that the
bill, &c., was to be renewed: (Thomp-
son V. Chubley, 1 M. & W 212), either
generally or upon a condition broken :
(Byasa v. Wyllie, 1 C. M. & R. 686.),
It was at one time Bufficient to cast a
suspicion upon a bill in order to require
Tfif,
':|j,-/
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;, il*- T%\
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im
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in ' *
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i 1 1
680
THE NEW BULBS OF PLEADING.
[Rs. 9, 10.
representation, concealment, deviation, and yarious other defences (p)
must be pleaded.
9. — (2' ) In actions on policies of insurance the interest of the assured
may be averrdd thus : " that A. B. C. and D. (or some or one of them)
were, or was interested," &c. (r) And it may also be averred " that
the insurance was made for the use and benefit and on the account of
the persons so interested."
10. — (s) In actions on specialties and covenants, the plea of non e»t
/actum shall operate as a denial of the execution of the deed in point of
fact only } (t) and all other defences shall be specially pleaded including
the plaintiff to prove oonsideration. The
rule is now different. The onut lies
on the defendant to prove want or ille-
gality of oonsideration and in each case
to trace the vice of the bill to the
plaintiff, although in one case {Mills r.
Barber, 1 M. & W. 425) it was doubted
whether this was necessary where the
bill has been obtained by fraud : (Per-
eival V. Frampton, 2 C. M. & R. 180 ;
Lewis y. Parker, 6 N. & M. 294: Whit-
taker V. Edmunds, 1 A. & E. 638 ; Hd-
munds v. Groves, 9 M. & W. 742 ; see
also Smith v. Martin, 9 M. & W. 304 ;
Bingham v. Stanley, 2 Q. B. 117.)
Where the defendant pleads illegality
or fraud of the original party to the
bill : (Masters v. Ibbtrtson, 8 C.B. 100),
and that the plaintiff took the bill
without value: {Brown v. Philpott,
2 M. & W, 285), on proof of the ille-
gality or fraud, the onus is thrown
upon the plaintiff. Upon the trial of such
an isvue it is not the duty of the Judge
to determine as a preliminary fact whe-
ther fraud is sufficiently proved to cast
on the plaintiff the onus of proving
consideration, but only whether there is
evidence of fraud for the jury. And it
is correct for him to direct them that
if they think the fi-aud proved in the
absence of proof by the plaintiff of
consideration, the defendant is entitled
to a verdict : [Bailey v. Bidwell, 13 M.
& W. 73 ; Harvey v. Towers, 6 Ex.
650.) Payment or tender by the ac-
ceptor after the bill becomes due is no
answer to the action : {Poole v. Turn-
bridge, 3 M. & W. 223 ; Chapman v.
Vaudevelde, 1 H. & W. 685.)
( p) As to the nature and quality of
pleas in confession and avoidance eee
Steph. PI. 199.
{q) Taken from Eng. R. 0. FI.
No. 9 of H.T. 1858, the origin of which
is Eng. R. Q. PI. 4 of H.T. 4 Wm. IV.
(Jerv. N. R. 130) with which our old
Rule PI. Q. B. No. 4 of E. T. 6 Vic.
(Cam. R. 66) corresponded.
(r) In a declaration on a policy of
insurance it is necessary truly to de-
scribe the interest on which the policy
is effected: {Cohen v. Hannam, 5
Taunt. 101.) If therefore A. and B.,
jointly interested, effect an assurance,
and there be two counts, one averring
interest in A. and the other in B,
plaintiff cannot recover on either count:
{lb.) An averment that A. and B. and
certain other persons trading under
the firm of A. B. & Co., were interested
in the property, is sufficient, on a mo-
tion in arrest of judgment : ( Wright v.
Welbie, 1 Chit. Rep. 49.)
(s) Taken from Eng. R. G. PI.
No. 10, of H. T. 1853, the origin
of which is Eng. R. G. PI. No. 1 of H.
T. 4 Wm. IV. (Jerv. N. R. 130), with
which our old Rule PI. Q. B. No. 1 of
E.T. 5 Vic. (Cam. R. 55) corresponded.
(t) Thou party against whom a
deed is al! nay be allowed to say
non eat fact. ..., viz., that the deed is
not his, lie is on the other hand pre-
cluded from denying its effect or ope-
ration, because if allowed to any non
concessit or non demi-it, when the in-
strument purports to grant or demise,
he would be permitted to contradict bis
own deed, from which by law he is es-
topped. In the case of a person not a
party but a stranger to the deed, the
[Rs. 9, 10.
r defences (p)
li of the assured
r one of tbem)
avened " that
the account of
plea of non ett
ieed in point of
eaded including
ind avoidance see
Eng. R. G- Fl.
the origin of irhich
)f H.T. 4 Wm, IV.
rith which our old
4 of E. T. 6 Vic.
sponded.
lion on a policy of
Bssary truly to de-
an which the policy
len V. Hannam, 5
herefore A. and B.,
effect an aasuranoe,
ounts, one averring
id the other in B,
over on either count:
it that A. and B. and
sona trading under
Co., were interested
sufiScient, on a mo-
dgment: {WrighU.
•49.) „ „
Eng. R. G. PI-
1853, the origin
I. G.Pl.No.lofH.
rv. N. R. 130), with
ePl. Q. B. No.lof
R. 56) corresponded.
arty against whom a
fiy be allowed to say
iz., that the deed is
the other hand prc-
ing its effect or ope-
f allowed to say non
emi-it, when the in-
,9 to grant or demise,
ittedto contradict his
hichbylawheises-
iftseofapcrsonnoU
gcr to the deed, the
n
IZ.
VLB. 11-13.]
TAINITY TERM, 1856.
681
matters which make the deed absolutely void, as well as those which make
it voidable, (tt)
11. — (y) The plea of nil debet shall not be allowed in any action, (lo)
12. — (x) All matters in confession and avoidance shall be pleaded
specially, as above directed in actions on simple contracts, (y)
13. — (a) In all cases in which the plaintiff (in order to avoid the
expense oi the plea of payment or set-off) shall have given credit in the
particulars of his demand for any sum or sums of money therein ad-
mitted to have been paid to the plaintiff, or which the plaintiff admits
the defendant is entitled to set-off, it shall not be necessary for the
defendant to plead the payment or set-oft' of such sum or sums of
money, (a) But this rule is not to apply to cases where the plaintiff,
rule is reversed, and the form of tra-
verse is in that case noii concessit, &c,
the reason of which seems to be that
estoppels do not hold with respect to
strangers: (Steph. PI. 198.)
(«) See Trott v. Smith, 12 M. & W.
688.
(v) Taken from Eng. R. G. PI.
No. 11 of H. T. 1853, the origin of
which is Eng. R. G. PI. No. 2 of H.T.
i Wm.IV. (Jerv. N.R. 130) with which
our old Rule PI. Q. B. No. 2 of E. T.
5 Vic. (Cam. R. 66) corresponded.
(w) It was at one time doubted
whether the rule of William (with
which the rule here annotated corres-
ponds) in terms applied to actions of
debt on penal statutes: {Faulkner v.
Chevell, 6 A. & E. 213.) It was how-
ever afterwards decided that it did
not, and that nil debet is still a good
plea in such actions : (Spencer v.
Swannell, 3 M. & VT. 155 ; see also
Burgess V. Bodgear, 7 M. & G. 428 n ;
Williamn v. Bryant, 5 M, & W. 477.)
If nil debet be pleaded to a; declaration
containing a count on an account stat-
ed, it is bad for the whole declaration,
although to the other counts it is a good
plea by Statute : {Calvert v. Moggs, 10
A. & E. 682.)
(i) Taken from Eng. R. G. PI.
No. 12 of H. T. 1863, the origin of
which is Eng. R. G. PI. No. 3 of H.T.
4Wm. IV. (.Jerv. N.R. 130) with which
onr old R. PI. No. 3 of E, T. 6 Vic.
(Cum. R. 57) corresponded.
(y) See R. No. 6, supra.
(z) Taken from Eng. R. G. PI.
No. 13 of H. T. 1853, the origin of
which is Eng. R. G. PI. of T.T. 1 Vic.
as extended to set-off (Jerv. N.R. 166)
with which our old Rule No. 15 of £.
T. 5 Vic. (Cam. R. 23) corresponded.
With r:'8pect to the extension to cases
of set-off, see Shirley v. Jacobs, 2
Bing. N. C. 88; Ernst v. Brown, 8
Bing N. C. 647 ; Kenyan v. Wokes, 2
M. & W. 764 ; Nicholl v. Williams, 2
M. & W. 758 ; Coates v. Stevens, 2 C.
M. & R. 118; Booth y.Heward, 6
Dowl. P.C. 438 ; Eastwick v. Ilarman,
6 M. & W. 13 ; Rowland v. Blaksley,
1 Q. B. 403.)
{a) A plaintiff is not bound to give
the defendant a statement of the items
of payment admitted : {Myatt v. Green,
13 M. & W. 377 ; see also Townson v.
Jackson, 13 M. & W. 374; Lamb v.
Micklethwait, 1 Q. B. 400 ; Nosotte v.
Page, 20 L. J. C. P. 81.) When the
payments are admitted in the particu-
lars, the effect of the rule is to put the
admission on the same footing as if
there had been a plea of payment and
no evidence of it except the admission
in the particulars: {Goatley v. Her-
ring, per Maule, J, 12 L, J. C. P. 32;
Russell V. Bell, 10 M. & W. 340; Ihir-
ner v. Collins, 2 L. M. & P. 99.) Where
the plaintiff in his particulars of de-
mand admits a payment generally, as
"Cr. by bills," &o.,this is to be taken
as a payment admitted to have been
made to the plaintiff by the defendant :
{Smethurstir. Taylor, 12 M. & W. 545.)
;■'< •!
.9
'I
r
iil.
I
ffl"
682
THE NEW RULES OF PLEADING.
[Rs. 14, 15.
after stating tlie uinount of his dciunnd, states that ho seeks to recover
a certain balance without giving credit for any particular sum or sums,
or to cases of 8et-o£f where the plaintiff' does not state the particular
of such set-off. (6)
It. — ((■) Payment shall not in any case be allowed to he given in
evidence in reduction of damages or debt, but shall be pleaded in bar. (f/)
15. — (e) In actions for detaining goods, the plea of non defhiet shall
operate as a denial of the detention of the goods by the defendant, but
not of the plaintiff's property therein, (/) and no other defence than
such denial shall be admissible under that pica, (y)
But that admission may be explained
by showing on what uccount such pay-
ment'4 were made. Thus in an action
for use an occupation to recover £42
83. lOd., the balance of an account of
of £iii Os. lOd., where the particulars
of duniitnd contained an admission
"on account £21 123.," and the plain-
tiff at the trial proved a debt to the
amount of £14 3s. 6d., it was held
that t'le plaintiff mi^ht explain on what
account th? £21 r2s. had been paid,
and 01 evidence being given that £12
10s. of that sum liad be^n paid for a
debt not due to the plaintiff, that he
was entitled to recover £5 la. Gd. being
the difference between the amount of
the debt and that part of the payments
in the particulars of demand remaining
unexplained: [Mercy v. Galot, 3 Ex.
851.) Where the plaintiff gave credit
for a bill and then debited it as disho-
nored, it was held thiit these state-
ments must be taken together and that
there was no admission of payment:
\Oreen v. Smithies, 1 Q. B. 7%.) It
has been held by Pollock, C.B, that if
a plaintiff in bis particulars of demand
delivered in a cause do not give cre-
dit for any cum paid, but in it refer to
"full particulars" alreaily delivered,
and those full particulars do give cre-
dit for a sum paid by defendant, this
would not dispensfi with the necessity
of the dffctidant's pleading such pay-
ment: [ILtrt v. Middlcton, 2 C. & K.
9 ; see also liosltij v. Moore, 8 Dowl.
P.O. 37V)
(A) Where a pa'ty demamls a ba-
lance without stating liow it iirises, if
thedeft'udnnt plead payment, the plain-
tiff may show that in his balance cre-
dit has already been given for the sum
pleaded : (see Lamh v. Mic'delhiruiu,
9 Dowl. P.O. 531 ; Townson v. Juehon
2 D. & L. 869 ; Morris v. Jonfs, 1 Q
B. 397.)
(e) Taken from Eng. R. G. p)
No. 14 of II. T. 1853, the orljjin of
which is the latter part of En<?. K. T.
T. 1 Vic. (Jerv. N.ll. 167) with which
the latter part of our old Rule No. 15
of E. T. 5 Vic. corresponded.
(d) Payment cannot be given in evi-
dence even for the purpose of showin"
that the jury ought not to give «lam-
ngfs in respect of interest : (AJtmu t.
J'alk, 3 Q. B 2 ; see also Late v. Mul-
tins, 2Q B. 254)
(e) Taken from Eng. 11. G. PI.
No. 15, the origin of which is Eiijt.
11. G. Div. 111. of II. T. 4 Wm. IV.
(Jerv. N. R. 13), with which our oUl
Rule Div. III. of E.T. 5 Vic. (Caai R.
57) corresponded.
(/) The word "detention" in this
rule or " detained" in a plea, menus
an adverse detention. Tlieret'ortj a
pledge to defendant cannot be givca ia
evidonoo under the plea of " i.on ile-
tinet," because it sets up a right to the
gooils : {Clements v. Ftiyht, l(j .M. &
W. 42 ; see also Owen v. Knuiht, 4
Birig. N. 0. o2 ; Phidipx v. Ilii/wm-il,
3 Dowl. V. 0. 3G2- Biniwell v. IIV/-
Hams, 7 M. & G. 403 ; CrosflkiJ v.
Such, 22 L. J. Ex. 05.)
(ff) If the dotcnco b? that pi liatiff
is not possessed of the^oods, or that
defendantis justified in diitainiii^ thorn,
such a defence should bo s|ii'oi Uly
pleaded: (^liichiirda v. IVaiikm:!, (J .M.
B. 16.] TKINITY TERM, 1856. 683
16. — (/i) In actions for torts, the plea of "not guilty" (t) shull
jt W. 420.) The dcfenlant cannot
either under a plea of non detinet or of
not poascsscd, wi up a temincy in
common with the plain tiif: (Mason y.
FitrntU, 12 M. & W. 674), nur upon a
5 lea denying property in plaintiff, can
efendant aa a defence set up tlint
there are other persons co-tennnta with
the plaintiff who are not joined in the
action : ( Broadbent v. Ledivard, 1 1 A.
& E. 20^) ; but under a plea that the
goods are not the goods of the plaintiff
defendant may set up a lien : ( Lane v.
Ttwson, 12 A. & E. 116 n.) Formerly
the defendant couul not traverse the
bftilment : ( Walker v. Jonen, 2 C. &
M. 6*2 ; Whitehead v. Harrison, 6 Q.
B. 423 ; Crossman v. White, 7 Q.B. 43.)
(A) Taken from Eiig. R. G. PI.
No. 16, the origin of which is Gng. R.
0. of H. T. 4 Wm. IV. Div. IV. (Jerv.
N.R. 181) with which our old Rule of
B.T. 5 Vic. Div. IV. (Cam. R. 57) cor-
responded.
(i) The plea of "not guilty" which
operates as a di^nial of the breach of
duty or wrongful act and admits the
inducement, does not admit circum-
stances ir rele van tly sta ted nor precl ude
the defendant from dit^puting under
that plea the character of the act upon
which frequently the action is founded.
Thus in an action for malicious arrest,
"not guilty" denies the malice and
wiHit of probable cause, though it ad-
mits the arrest : (Cotton v. Browne, 3
A. & E. 812 ; Drummond v. Pigou, 2
Bing. N. C. 114 ; W->.tkins\. L-e, 5 M.
& W. 270 ; Coles v. Bank of England,
10 A. & E. 437 ; Ilounsfield v. Drury,
11 A. & E. 98.) So in an action for
kneping mischievous animals, it denies
the scienter : ( Thomas v. Morgan, 2 C.
M. .4 R. 496 ; Card v. Case, 5 D. & L.
609.) So in an action for a deceitful
rcpreseutation, it puts in issue both
the representation and the deceit :
(yortoH V. Scholejield, 9 M. & W. 6G5 ;
Mummergy. Paul, 14 L. J. C. P. 9.)
So in an action for erecting a cesspool
near a well and thereby contaminating
the water of the well, not guilty puts in
issue both the fact of the erection of
the well and the averment that the
water was thereby contominatcil : [Nor-
ton V. Schofield, ubi svpra.) S<> in an
action for running down the plaintiff's
carriage, it may under not guilty be
proved to have resulted from accident
or from the plaintiff's negligence : (see
Vodd v, flolme, 1 A. & E. 493 ; Daw-
son V. Moore, 7 C. & P. 25 ; Whalley
V. Pepper, 7 C. & P. 606 ; Gough v.
Bryan, 2 M. & W. 770; Bridge v.
Grand Junction R. Co, 8 M. & VV. 244 ;
Dakin v. Brown, 7 D. & L. 151 ; South
Shields Waterworks Co. v. Cockson. 15
L. J. Ex. 315; Ilolden v. Liverpool
Gas Light Co, 3 C. B. 1.)
It is, however, to be observed as an
established rule of pleading not affect-
ed by the New Rules, that matters of
inducement not material to the action
cannot be traversed, and therefore are
not admitted by the plea of not guilty :
(see Mummery v. Paul, 1 C. B. ;^16 ;
Mitchell V. Crass weller, 22 L. J. C P.
100.) But it must not be supposed
that not guilty admits only so much of
the inducement as is necessary to found
the action if the wrongful act be done.
Additional duties may be created by
subsequent and additional facts, and if
such subsequent statement raise an ad-
ditional duty, it is admitted by not
guilty, even though without it an action
might be maintained. Thus in an ac-
tion against a sheriff for breach of
duty in executing process upon the
delivery of the writ against goods, he
is bound to look out for the goods, if be
find them he is bound to levy, if he
levy ht is bound to pay over the mo-
ney ; for the breach of each of these
duties an action would lie, but if all
are stated all the duties but not the
breaches thereof, are admitted by the
general issue : (see Wright v.Lainson, 6
Dowl. P. C. 146; Lewis v. Akock, 6
Dowl. P. 0. 389; Rowev. Ames, 6 M.
& W. 747 ; Ncedham v. Frasrr, 1 C.B.
8 5; Atkinson v. Raleigh, 3 Q.B. 379.)
It has been decided in an action for
running down the plaintiff's chaiao
I ;
ti.
■[:■:•
If
^■^ \'l
J: !
Vt
'4
«i » '
684 THE NEW EULES OF PLEADINO. [R. 16.
operate as a denial only of the breach of duty or wrongful act alleged
that if the declaration allege that the
Uerondant by his Berrant was possoBsed
of a horse, &c., such pocaession is ad-
mitted by not guilty : (see Wheatley t.
Patrick, 2 M. & W. 650; Hart v.
Crowley, 12 A. & E. 878 ; Tavemer r.
Little, 7 Scott, 796; Damford y.Trat-
iUa, 12 M. & W. 629.) But tbia does
not seem to be quite consistent with
the general rule, for if the defendant
were guilty of the wrongful act either
by himself or servant, the pos-
Bession is immaterial and therefore
not traversable. So to a declaration
that the defendant was employed by
commissioners of sewers to make a
sewer in a public highway, that he
kept and continued in the highway
two iron gratings lying thereon in the
custody and care of the defendant in
forming the sewer, without placing
any light to show that the gratings
were there, not guilty does not put in
issue the averment that the gratings
were in the custody and care of the
defendant, for it is an immaterial
averment : (Grew v. Hill, 6 D. & L.
664 ; see also Atkinson v. Raleigh, 3 Q.
B. 79; Greenfield v. Edgecombe, 7 Q.B.
661 ; Bennett v. Peninsular S[ Oriental
Steamboat Co, 6 D. & L. 887.) Every
material allegation in the inducement
must be specially traversed, even
though improperly incorporated with
the breach : (see Frankum v. Falmouth,
2 A. & E. 462 ; Dukes v. Gosling, 1
Bing. N.C. 688 ; Drummond v. Pigou,
2Bing. N.C. 114 ; Dunford\.Trattles,\
D. & L. 654; Wren v. Heslap, 12 Q.B.
227 ; Brink r. Wiguard, 2 C. & K. 667.)
In an action for negligently driving
a horse and cart against the plaintiff's
horse, defendant cannot under not guilty
show that he was not the person driv-
ing when the injury happened and that
the cart did not belong to him : {Ta-
vemer V. Little, 6 Bing. N. C. 676.)
Where the plaintiff's possession of the
cart is alleged by way of inducement
it is admitted by the plea of not guilty :
{Emery v. Clarke, 2 M. & R. 260 ; see
also Hart v. Crowley, 12 A. & E. 878.)
Leave and license may be given in
evidence to an action for an assault .
(see Christopherson v. Bare, 11 Q. B.
478 ; Rughar v. Clements, 12 Q.B. 260;
see further Benyon v. Dtvison, 8 M. &
W. 179 ; Edmund y. Grover, 8 M. & W.
177 ; Martin v. Stone, 9 M. & W. 808;
Binghamy. Stanley, 2iQ.B. 126); butia
an action for keeping a mizzen near
the plaintiff's house, whereby the air
was corrupted, defendant was not al-
lowed under not guilty to give in evi-
dence an uninterrupted user for twenty
years : (Flight v. Thomas, 2 P & D.
681.) In trover not guilty puts ia
issue the wrongful conversion : ( Young
V. Cooper, 6 Ex. 161 ; overruling
Stancliffe v. Hardwick, 8 Dowl. P. C.
762), and the defendant might Uudcr
that plea have proved a tenancy in
common with the plaintiff unless he
have destroyed the article : (Stancliffi
V. Hardwick, 2 C, M. & R. 1 ; Fanar
v. Beswick, 1 M. & W. 782.) Under
not guilty the defendant v^innot set up
an absolute property in himself by
purchase from the plaintiff: {Barton v.
Brown, 6 M. & W. 298) ; nor a right
to detain the goods on a delivery of
them to him by- the plaintiff as a se-
curity for rent: {White y. Teal, A?.
& D. 48.) The plea of not possessed
puts in issue the right of the plaintiff
to the possession of the goods at the
time of the conversion : (liiaac v. Bel-
cher, 7 Dowl. P. C. 616.J A lien may
be given in evidence under a plea thit
"the plaintiff was not lawfully pos-
sessed :" {Brandao v. Barnett, 1 M. &
G. 208.) In general, under this plea
defendant may show that plaintiff has
no right to immediate possession:
{Owen V. Knight, 6 Dowl. P. C. 245.)
Thus he may shew that the goods were
with the consent of the plaintiff hand-
ed over to a third party : ( Ver7ion v.
Shipton,2 M.& W. 9) ; or pledged by the
plaintiff to n third party because the
plea raises in question the right of pos-
session as well as the right of property:
{Samuel v. Morris, 6 C. & P. 520.) But
under suck plea the defendant cannot
!
[R. 16,
aot alleged
be given iu
r an assault.
iare, 11 Q. B.
i,12Q.B.260;
):ivt«on, 8 M. &
)v«r,8M.&W.
M. &W. 808;
B. 126); but in
h mizzen near
'hereby the air
nt ^as not al-
to give in eyi-
user for tweuty
nai, 2 P & D.
guilty puts in
ersion: [Young
51 ; overruling
, 8 Dowl. P. C.
at might iludcr
d a tenancy in
,intiff unless he
fcicle: {StancliJlfe
& R. 1 ; Farrar
V. 782.) Under
nt u^innot set up
r in himself by
ntiff: {Barton \.
38) ; nor a right
jn a delivery of
laintiff aB a se-
litev. Teat,A?.
of not possessed
t of the plaintiff
^he goods at the
(Jiiaac V. Bel-
6.) A lien may
nder a plea th*t
ot lawfully pos-
Barnett, 1 M. &
under this plea
that plaintiff has
ate possession:
>owl. P. C. 245.)
_at the goods were
le plaintiff hand-
arty: {Vernon y.
or pledged by the
arty because the
1 the right of po8-
right of property:
C.&P. 620.) But
defendant cannot
B. 16.]
TRIIflTT TERM, 1856.
685
to have been committed by the defendant, (/) and not of the facts
stated in the inducement, (k) and no other defence than such denial
shall be admissible under tnat plea ; all other pleas in denial shall take
issue on some particular matter of fact alleged in the declaration : (/)
Exempli gratid. (m)
In an action for nuisance to the occupation of a house, by carrying
on an offensive trade, the plea of " not guilty " will operate only aa
a denial that the defendant carried on the alleged trade in such a way as
to be a nuisance to the occupation of the house, (n) and will not operate
as a denial of the plaintiff's occupation of the house.
In an action for obstructing a right of way, (o) such plea will operate
as a denial of the obstruction only, and not of the plaintiff's right of
way.
In an action for slander of the plaintiff in his office, profession, or
show an execution as hia justification
for making a seizure of the goods : {Sa-
muel V. Duke, 8 M. & W. 622) ; nor a
claim to seize the goods for toll dues
for landing them at a particular wharf:
(Webbr. Tripp, 1 Dowl. N. S. 589.)
He may however show that the sale of
the goods to the plaintiff was fraudu-
lent: {Ashbij T. Minett, 8 N. & P. 281 ;
Nicolla V. Bastard, 2 C. M. & R. 659 ;
see also Pickard v. Sears, 6 A. & E.
469.) The plea of not guilty and not
possessed together make up the old
plea of not guilty, and whatever might
be given in evidence under not guilty
before the New Rules of Pleading were
first framed may be prove J under one
or other of these pleas: ( Whittnore v.
Oreen, per Alderson, B, 18 M. & W.
107 ; see also Kyniston v. Crouch, 14
M. & W. 266.
{}) See Pickwoody. Neale, 10 M. &
W. 206; Mummery y. Paul, 1 C.B. 316.
[k) See McGregor y. Gregory, 11 M.
& W. 287.
({) As to the effect of omitting to
deny material traversable averments
or averments immaterial, see note t,
ante,
(m) The instances which here follow
are merely illustrations of the general
application of the rule.
(n) In an action for erecting a cess-
pool near a well and thereby contamin-
ating the water of the well, the plea of
not guilty puts in issue both the fact of
the erection of the cesspool and that the
water was thereby contaminated: {Nor-
tort y. Seholefield, 9 M. & W. 666.)
Where a declaration in case stated
that before, &o., the defendant was
employed by certain persons, &o., to
make a sewer in a highway, and there-
upon theretofore, &o., the defendant
kept and continued upon the said
highway two iron gratings then lying
on the said last mentioned highway, in
the custody and care of the defendant
for the purpose of forming the said
sewer, without placing any light or
signal at or near such gratings, where-
by, &c. Pica not guilty. Held that
the allegation that the gratings were
in the custody and care of the defend-
ant was not matter of inducement or
material, and was therefore not ad-
mitted by the plea of not guilty :
{Greew v. Ilill, 6 D. & L. 664.)
(o) There are, according to Coke,
three kinds of ways — first, a footway,
which is called iter, quod est jus eundi
vel ambulandi homini, and this was the
first way. The second is a footway
and a horseway, which is called actus,
ab agendo. The third is via or aditus,
which contains the other two, and also
a cartway, &c., for this is jus eundi pe-
hendi et vehiculum vel j'umentum ducen-
di: (Co. Litt. 56 a.)
I 1
if. ,
i
'
I;
i.5('
:.: ij--]':
686
THE NEW RULES OP PLEADING.
>% ^
{^i
P, il
CR. 16.
trado, tha ploa of " not guilty" will o; oruto in denial of spoukinj; the
words, of speaking them nmliciously, and in the defamatory sense im-
puted, (p) and with roforonco to the plaintiff's office, profession, or
(p) In an action for libel or sltimlor
the ploa of not guilty puta the malioo
In iswuo : {lloare v. Silverlock, 9 C. B.
20.) Where, however, tlie worls aro
proved tlie inference of niulioe mny be
disproved : (/VcA'i/A v. McQrath, II. T
7 Wm. IV. M.S. 11. & II. Dig. Libol
and Siiinder, III. 211.) Under the
generiil iasue in libe. the defendant
may disprove the fuct of publication,
or Mhow thiit it is not of nn injuriuu.s
clianictcr, or tiiivt it was publialied on
some jiiatiflablo occasion (O'JJrien v.
Ct'tiiciit, 8 D. & L 67()); but the
truth of the defondnnt's remarks on
the report of a trial nud the evidence
given thereat cannot be given in evi-
dence under not guilty (Sinall v. Mc-
Kcmie, Drn. Rep. 183), and if comment
be uiiulo the defendant may plead that
the suppuMcd libel was] a fair and bona
filj comment witliout malice, on the
conduct of the plaintiff in n public ca-
pacity: (Lucas V. Smith, 2 J«r. N. S.
1170.) To an action for libel contained
"in any publio newspaper or other
periodical publication," defendant may
pla d that the libol was inserted with-
out malice and without gross nogli-
gonce, and that he published or offered
to puBHsh an apology (13 & 14 Vic.
cap. 60, 8. 3, Il.ir. Prac. Slats, p 208),
and may notwithstanding 7 Wm. IV.
cap. 3, pay money into Court: (//>.)
If the action bo for slander all the
circumst.incca immediately attending
and procding the speaking of tiie
worls may be given in evidence under
the general issue: (Feer/an v. Rtbuon,
6 U. C. R. 375 ) So the defendant
may give facts and circumstances in
evidenctj in mitigation of damages:
{Johnson v. Eu'^tman, Tay U. C. R.
327.) If the words be not actionable
per ae the plea of not guilty puts in
issue the special damage alleged as
well as the uttering the words : ( Wdhy
V. El.lon, D. & L. 143 ) The defendant
spoke to the plaintiff'- m stress words
chac^ini; the plaintiff with irregularity
in her conduct as a servant girl, in
consequenca of which she lost her
place Hold, that under not gailty
the defendant might disprove malice
in the various methods by which it is
u<>ually disproved, yet that ho wng
stopped from giving evidence of tbe
truth of the facts as rebutting the ma-
lice, because he had not pleaded thnt
the facts were true: {Kunmet/ v. HViA,
Car. & M. 104, Coltman, J ) Thmgh
in such case the absence of the proof
of speciul damage (that the plnintitf
thereby lost her place) cannot effect
the verdict, yet the jury may consider
it in assessing damages : (lb.) When
the declaration contains prefatory al-
legations the defendant will not be
allowed under not guilty to go into
evidence as to the prefatory allega-
tions: (Girynne v. Sharps, Cur. & M.
633, I'attecon, J. ; Ilemininu v. Powtr,
10 M. & W. 601.) The prefatory alle-
gations must bo taken to be perfectly
true as the defendant has not di'tiicJ
them, which he might have done if be
had meant to put the plaintiff to the
prove of them: (lb.) The defemliint
may, howov.ir, show that the words
spoken were used in a privileged coin-
municitioa (Richards v. Boulton, 4
O. S. 95), and where the words im-
puted as slanderous were spoken on an
occasion when cither from public duty,
private interest, or the relation ot the
parties to each other, the chaiactcrof
the party complaining may be treely
discu-ised, the jury must find e: press
malice upon evidence sufficient to war-
rant their finding before thedefenln't
can be pronounced guilty: (lb.) iV •
vileged communications comprcbeiid
all statement made bona fiile in the
performance of a duty, or with a fair
and reasonable purpose of protecting
the interest of the person making them:
(Somervill v. Havkins^ 10 C B. 583;
sec also Tuson v. I'Jvans, 12 A. & E.
738 ; Coxhcad v. Richards. 2 C.13 569;
Blackburn v. Pujh, Ih. Gil; Benmii
ipoukin;? the
jry sense im-
protession, or
srvftnt girl, io
I tslio \mt licr
dcr not guilty
Jisprove tnivlice
1 by which it is
3t that ho vms
evitlenco of tlio
•butting the mn-
jot piendeil thnt
Ramsey v. WM,
an, J) Th.ugli
sncc of the proof
that tho pinintitf
cc) cannot offect
VI vy mtty consider
;os: {lb.) Wl>cn
lins prefntwry nl-
ilant will not be
guilty to go into
prefiitovy allega-
Sharjie, Cur. & M.
Heminini/ v. Power,
Tho prefatory alle-
jcn to he perfectly
nt has not denicJ
ht have done if lie
Lhe plaintiff to the
>. ) The dcfendiint
w that tho worda
\ a privileged coin-
rds V. BouUon, 4
ere the words im-
J were spoken on an
:r from public duty,
the vclalion ot the
er, tho chat ncter of
ling >nny be trccly
must find eipreiS
ice sufficient to wiir-
)cfore thedefenb't
guilty: (/6.)/^,
atioiis coinprebeud
10 bona fide in the
duty, or with a fmr
ii-pose of protecting
jerson making them:
'*'"'^' '^^, ?• ffi'
, Kvarm, VI A. & b-
eicAc/rc/».2C.B5b9;
,h, Ih. GU ; ^«»"«"
R. 10.]
TRINITY TERM, 1856.
687
trftJo, ('/) to* it wi" ^^^ oporuto as a denial of tho fact of tho plaintiff
holding tho oflioo, or being of tho profession or trade alleged. (*•)
In actions for an esoapo, it will openite as a denial of tho ncgleot
or dcfuult of tho sheriff or his officers ; («) but not of tho debt, (<)
V f)eiiron, lb. 028 ; Wilson v. Robinson,
7Q. B. (58; Griffiths v. Lewis, 7 Q. U.
61 ; Ifopwood V. Tharn, 8 C B. 2!»8 ;
Tijilor V. Ifnokins, 10 Q. B. 81)0.) The
onii-* (^f proving malice in such oases
lies on tho plaintiff: (lb.) In order
to entitle the plaintiff to have the
question of malice left to tho jury ho
need not show circumstances necessa-
rily loading to the conolusion that
malice existed, or such as are incon-
sistent with its non-existence, but tliey
must be nuoh as to raise a pmbiibility
of malico, and bo more consistent with
its existence than its non-exiatence:
(Ih.)
(q) Where in an action by a person
describing himself in the declaration
as a druggist, vender of medicines and
apothecary, the witnesses proved that
several persons practising physic had
purchased medicines from liim, this
evidence upon a motion for a non-suit
was considered suffi jient to support the
verdict: {Terry v. S'arkweather, Tay.
U. C. R. 68.) But where the plaintiff
described himself as a physician and
surgeon licensed to practice according
to the laws of the Province, it was held
that proof that he acted as such was
in!<nffijient without showing a license:
IB'irwen V. Hamilton, \l. T. 2 VVm. IV.
V.i' R. & H. Dig Libel and Slander,
II. 8.)
(r) In an action for a libel the de-
fendant at first pleaded not guilty, but
afterwards pleaded to the further
maintenance of the action that the
plaintiff had recovered damages against
another person for the same grievancs.
New assignment that the pending
action was brought for other and dif-
ferent grievances. Plea to the new
asignment not guilty. Held, that
this dill not admit the inuendos, and
that by pleading not guilty to the new
sssignment tlie defendant had raised
precisely the same issue, as if the libel
had been sot out in tho declaration and
tho defendant had pleided not guilty
to it : Uirunswick v. 1'cppf.t, "1 C. & 11.
8:J, Erdol ) To an notion for words
imputing to the plaintiff in the way of
his trade that he was dishonest and a
cheat, tho defendant pleaded a judg-
ment recovered in a formor action.
Upon th« trial of tho issue upon nul
tiel reord, the record when produced
showed that the former notion had
been brought for calling the plaintiff a
thief simply and not in the way of his
trade. HuM no bar : ( Wardsworth v.
Benll'y, 1 B. & C 203.)
(.h) An action for an escape should
bo brought against tho shoritfand not
ngain-t the bailiff who arrested, unless
the defendant has been guilty of a res-
CHO : ( Wilson v. McCuUouyh, 5 0. S.
080.) Tho Court refused to discharge a
prisoner from custody upon the ground
that the gaoler having taken him be-
fore a magistrate without warrant had
suffered a voluntary escape: {Robin-
son V. ILdl, Tay, U. C. II. 625) ; but
where in England a debtor in cuUody
on mesne process was after tho writ
was returnable taken by tho gaoler to
a revising barrister in the same county
though returned to gaol on tho same
day, this was held to bo an escape :
{^Williams v. Idostyn, 4 M. & W. 145 )
(<) In an action against a sheriff
for the escape of A. 11., arrested on a
ca. re. at the instance of the plaintiff,
the declaration averred '• that ho (A.
B.) was indebted to the plaintiff in a
large sum of money, to wit, &o., upon
and in respect of certain causes of
action before then accrued to the plain-
tiff against the said A. B.," &c. Pleas,
1st, not guilty, 2d, denying that A. B.
was indebted to tho plaintiff uiodo et
fnrmt, &c. Held that under these
pleadings plaintiff was entitled to re-
cover if he showed that any debt accru-
ed to him against A. B. before he sued
out tho writ: {O'Reillf/ v. Moodie, 4
U. C. 11. 200.) In debt for an escape
I I
) ■ ',,
i
'It *
'(- '
1^
if
i"'' '
688
THE NKW RULCS OF PLKADINO.
[•I:
Is I
[R. 17.
jadgmont or preliminary proceedings (u)
In notions against a carrier, the plea of " not guilty" will operate as
a denial of the loss or damoge ; (t;) but not of the receipt of the gouds
as a carrier for hire, or of the purpose for which they were received, (w)
17. — (a;) All matters in confession and avoidance shall be pleaded
specially, as in actions on contract, (y)
the shoriiT cannot plead in bar of the
action Biititifaction previous to the iusu-
ing of tbo writ : (Munton v. IlamiUon,
6 0. S. 118.)
(m) It is not open to a sheriff sued
for an oHoape to set up technical ob-
Jeotions in regard to forma of action
and points of practice having nothing
to do with the fact of the existence of
a debt: {O'Reaiy v. Hoodie, 4 U.C.R.
266.^ To an action against a sheriff
for the escape of a party attached, the
sheriff will not be allowed to deny the
submission or the award, or to set up
any defence which might have been
taken in the prooeedings upon the
award — he cannot go further back than
the order authoriiing the attachment :
{HunUty V. Smith, 4 U. C. R. 181.)
(v) A person engaged to transport
goocu for hire is not by virtue of such
engagement merely a common carrier
and as such liable for all accidents,
whether negligent or not : {Benedict v.
Arthur, 6 U.C.R. 204.) So where the
declaration alleged that the defendants
were common carriers of passeneers
from Southampton to Gibraltar, a place
beyond the sens, to which the defend-
ants pleaded that they were not com-
mon carriers modo et forma. Held that
the plea only put in issue the fact of
the defendants carrying passongcra
f:om Southampton to Gibraltar for
hire, and not whether they were com-
mon carriers in the strict technical
sense of the term : {Bennett v. The
Peniniular and Oriental Steamboat Co,
6 D. & L. 887.) Where several defen-
dants are charged as common carriers
and plead traversing only, the delivery
to them of the parcel without saying
*< or any or either of them," the plea
notwithstanding is good : (Parke et al.
v. Davis, 4 U. C. R. 411.)
(w) The defendant under not guilty
cannot sot up that the goods were lost
through the negligence of the plaintiff'
( Webb V. Poye, 6 M. & O. 190) ; nor
is it competent for defendant under
suck a plea to set up as a defence ttiat
the plaintiff misrepresented the weight
of the goods which the defendant
agreed to carry « ( Webb v. J'aye, G
Scott, N. R. 951.) The defendant
ought to plead the misrepresentation
specially or traverse the aoceptnnc i of
the goods for the purpose of being
carried : (^Ib.) In an action (by the
plaintiffs in an action of ejectment)
against defendants as common carriers
for not delivering within a reaHonable
time the record of Niti Prim at the
assize town, it was held not open to
the defendants to put in issue the
plaintiff's title to the land, the subject
of the action of ejectment: {Parke tt
al. V. Davia et al, 6 U. C. R. 411.)
(a;) Taken from Eng. R. 0. PI.
No. 17 of H.T. 1853, theorigin of which
is Eng. R.G. of H.T. 4 Wm. IV. "Case"
sub-div. 2 (Jerv. N.R. 133) with which
our old Rule of E. T. 6 Vic. " Case '
sub-div. 2 (Cam. R. 60) corresponded.
(y) If the breach or wrongful act be
admitted, and the defendant seek to
protect himself from the consequences
thereof by other circumstances, he
must plead specially. Thus it has
been held that a carrier to avail him-
self of a Statute which requires notice
must plead it : {Si/mei v. Chaplin, 6
A. & E. 634 ; Smith v. Thomas, 2 Blng.
N.C. 872 ; Perrin v. Harris, 2 M. &
R. 5 ; Webb v. Page, 6 M. & G. 196.)
Formerly in trover a lien could not be
given in evidence under not guilty:
{ White V. Teal, 12 A. & E. 106; Stan-
cliffe V. Ilardwicke, 3 Dowl. P.C. 762;
see also Kynaston v. Cronk, 14 M. &
ill operate as
of tne )<;oo<ls
received, (tc)
x\\ be pleaded
inder not guilty
goodst were loHt
I of the plaintiff:
& a. 19C) ; nor
defendant under
tg a defence that
lented the weight
the defendant
Vtbb y. Viujt, 6
The defendant
misreprcsontatlon
the occeptnnc ) of
jurpose of being
in action (by the
on of ejectment)
,8 common carriers
ithin a reasonable
ifiai Priui at the
held not open to
put in issue the
LO land, the subject
>ctmont: {Parlctet
U. C. R. 411.)
Eng. R. 0- ri
the origin of which
4Wm.IV. "Case"
[r. 138) with which
T. 6 Vic. " Case'
60) corresponded,
or wrongful act be
defendant seek to
n the consequences
circumstances, he
i\ly. Thus it ha»
rrier to avail him-
uich requires notice
iymei v. ChapUn, B
Vi\. TAomo*, 2 Bing.
▼. Jlarria, 2 M. &
\ge, 6 M. & G. 196.)
a lien could not be
under not giiiUyi
lA. &E. 106; Stan-
,3 Dowl. P.C. 702,
Ri. 18, 19.]
TRINITY TBBM, 1860.
689
18. — (z) Iq aotioDB of irospoM to land, the oloio or plaoe in which,
!io., must be designated in the declaration by name, or abuttals, or other
description, (a) in failure whereof the plaintiff may be ordered to amend
with costs, or give such particulars as the Court or Judge may think
reasonable, (b)
19. — (c) In actions of trespass to land, the plea of "not guiltv" shall
operate as a denial that the defendant committed the trespass alleged in
the place mentioned ; but not as a denial of the plaintiff's possession, or
W. 266) ; but now it seems it may, and
is at all events clearly admissible
under not possessed : {Rieharda t. Stf'
moM, 8 Q.B. 00.)
(f) Taken from Eng. R. O. PI.
No. 18 of H. T. 1868, the origin of
which is Eng. R.O. "Trespass" sub-div.
1 of H. T. 4 Wm. IV. (Jerv. N.R. 134)
with which our old Rule " Trespass"
sttb-dlv. 1 of E.T. 6 Vio. (Cam. R. 60)
corresponded.
[a) The plaintiff must prove the
abuttals as alleged, and though he will
not be defeated by a minute variance,
yet he must show that the close in
vhich the trespass was committed is
faithfully described in substance, so as
to give the defendant full information :
( mUr V. Rieharda, 1 Q. B. 439.) A
statement of two abuttals only may be
sufficient: {North v. IngamtUa, 9 M.
& W. 249.) The description, aa of
a particular township, must be proved
as laid: (Matliee y. Furr et al, Tay,
U.C.R. 289.) A house, in one part of
which the plaintiff's shop was kept, and
in the rest of which the plaintiff's
clerk and his family resided, although
the plaintiff never resided there was
iield to be properly described as plain-
tiff's dwelling-house : (Beatty v. Me
Maittrt el al, T. T. 2 & 8 Vio. MS. R.
&H. Dig. Trespass, II. 10.) Where
the declaration stated that the defend-
ant broke and entered *' certain lands
of the plaintiff covered with water,
being the bed and channel of the river
T, and under the same in the several
parishes of L. and L, in the county of
Y," it was held that the locua in quo
was sufficiently described by name :
(Beau/or/ v. Vivan, 7 Ex. 680.) The
TT
loeua in quo should be designated by
abuttals or other description as it was
at the time of the trespass and not at
the time of the declaration filed :
iUumfrty v. Th« London ^ North Weat
I. Co., 7 Ex. 825 ; see also Lempriert
V. Uun\frtya, 8 A. & E. 181.) In
trespass to a dwelling-house it has been
held a bad plea to plead that the close
in which, &o., is the close of the de-
fendant : ( Vail T. NohU et al, 2 U.C.
R. 142.) So in trespass for breaking
and entering the cloae of the plaintiC
it was held a bad plea for the defend-
ant to plead that Uie clott* in which,
&o., was not nor was either of them tlie
close of the plainUff : ( Woodruff tt al.
V. Davia, 2 U.C.R. 404.) To a decla-
ration setting out the close by metes
and bounds, the defendant pleaded that
the part of she close on which, &o.,
was his close, and not the close of tha
defendant, as stated in the plea, the
replication was held good : (Jliaeott v.
Cox, I U. C. R. 489.) To support an
action of trespass upon the plea of the
closo not being the close of the plain-
tiff, the plaintiff must prove an actual
and immediate occupation of the locua
in quo: MeNeily. TVain, 5 U.C.R. 01.)
And under that plea, the question of
possession is a fact for the jury : {lb.)
(6) Court or Judijt — Relative powers
see note m to s. xxxvii. of C. L. P. A.
1856.
(c) Taken from the Eng. R. 0. PI. No.
19 of H. T. 1853, the origin of which is
Eng. R.G. "Trespass" sub-div. 2 of H.
T. 4 Wm. IV. (Jerv. N, R. 134) with
which our old Rule "Trespass" sub-div.
2 of E. T. 6 Vio. (Cam B. 60) corresf
ponded.
:4: li
>■;'
i''t^'--:
690
THE N£W RULES OF PLEADING.
mm
^m-
■'*:-icv
m
[R. 20.
right of possession of that place, which, if intended to be denied, must
be traversed specially, (d )
20. — (e) In actions for taking, damaging, or converting the plaiotiff'a
goods, the plea of " not guilty " shall operate as & denial of the
defendant having committed the wrong alleged, by taking, damaging
or converting the goods mentioned ; but not of the plaintiff's property
therein. (/)
(d) The plea of not guilty denies the
possession stated in the declaration,
t. e., a sufficient poasession to sustain
the action : {Heath v. Milward, 2 Bing.
N. C. 98 ; Harrison t. Dixon, 12 M.
& W. 142.) that is to say, as against a
mere wrong doer the actual possession ;
as against a defendant alleging title
the legal right to pottetiion : (Pumell
T. Young, 3 M. & W. 288 ; Harrison r.
Dixon, ubisup.; Jones v. Chapman, 2
Ex. 803.) The plaintiff complained
of an injury to a messuage and premi-
ses in his possession, and the defendant
pleaded not possessed; and it being
foand that the defendant had only part
of the house, the defendant occupying
the rest, it was held that the plaintiff
was entitled to a verdict: {Fenn v.
Grafton, 2 Bing. N. C. 617.) The
plea of not possessed puts in issue the
possession of the close described in the
declaration, (Bond v. Downton, 2 A. &
£. 617), and if more than one close be
described the issue upon the plea is
divlHible, and the defendant will be
entitled to a verdict as to so much as
is not proved: (Phythian v. White, 1
M. & W, 216; Wilcox y. Montgomery,
6 O. S. 812.) Where in a trespass
quare elausam /regit by one of two
tenants in common it was proved that
the defendant entered upon the land
under a writ of execution against the
goods of the other tenant, it was held
that such entry could not be given in
evidence under not guilty, but should
be specially pleaded: {Newkirk v.
Payne, 6 0.8. 458.) The plea of libe-
rum tenemeniutn admits the possession
and renders it incumbent on the defen-
•dant to prove title either by deed or by
showing twenty years' actual posses-
sion: Brest y. Lever, 7 M. & W. 598.)
<0n this plea the defendant is entitled
to a verdict if he establish a title to
that part of the close on which the
trespass was committed, and is not
bound to prove title' to the whole close :
(Smith V. Royston, 8 M. & W. 381.)
To a declaration in trespass quart
elausam fregit, and for carrying away
the plaintiff's hay and corn, the plea
of liberum tenemenium was held bad :
(Wilcox V. Montgomery, 5 O.S. 312.) '
(e) Taken from Eng. R. a. PI
No. 20 of H. T. 1853, the origin of
which is Eng. R.O. PI. of H. T. 4 Wm.
IV. " Trespass" sub-div. 3 (Jerv. N.r!
134), with which our old Rule of E. T.
6 Vic. "Trespass" sub-div. 3 (Cam. r1
61) corresponded.
(/) The plea of no property puts in
issue the property as well as the pos-
session: {Harrison v. Dixon, 14 M. &
W. 142 ; Ashmore v. Hardy, 7 C. & P.
501.) If the defendant claim the
goods he may under this plea show his
title and that the plaintiff's title is
fraudulent ; for in such a case as
against the defendant the plaintiiF has
no property : {Nicolls v. Bastard, 2
C. M. & R. 659 ; Ashby ▼. MinneU, 8
A. & E. 121.) In England it has been
held that if the defendant justify taking
the goods as assignee of a bankrupt
and the plaintiff reply that the goods
are not the goods of the assignee but
the goods of him, the plaintiff, he can-
not under that replication dispute the
bankruptcy : {Jones v. Brown, 1 Bing.
N.C. 495.) In trespass for taking goods
the defendant cannot under the general
issue even in mitigation of damages
prove a repayment by him after action
of the money produced by the sale of
the goods : {Bundle, v. Little, 6 Q. B.
174; see farther C/arA;fl V. Durham tl
al, E. T. 8 Vic. MS. R. & H. Dig.
Trespass, II. 19; Carey v. fo/e, 6 0.
[R. 20.
e denied, must
2 tlie plaintlff'a
denial of the
king, damaging
intiff's property
istabUsVi a title to
;lo9e on which the
Qitted, and is not
to the whole close:
8 M. & W. 381.)
in trespass quart
i for carrying away
r and corn, the plea
ntum was heW bad:
mery, 5 O.S. 312.)
m Eng. B. G- PI-
1858, the origm o!
J.Pl. ofU.T.4Wm.
lub-div. 3(Jery.N.R.
our old Rule of E.T.
,''8ab-diT.3(Cam.R.
of no property puts in
ty as well as the pos-
sony. Dixon, UU.k
,rev. frardy,7C.&P.
defendant claim tla
ider this plea show Ws
the plaintiff's title is
,r in such a case aa
jndant the plaintiff has
■Nicolls V. Bastard, 1
;• Ashby ▼. MmneU, 8
In England it has been
iefendant justify tabni5
wsignee of a bankrupt
Iff riply that the goods
,d8 of the assignee but
ini, the plaintiff, he can-
plication dispute the
•respass for taking good
iftunot under the general
'Sigation of damages
aent by him after action
produced by the s.^e of
bundle V. Little, 6 Q. »•
19; Careys- ra(e,60.
Rs. 21, 22.]
TRINITY TERM, 1856.
691
21. — (g) In every case in which a defendant shall plead the general
issue, intending to give the special matter in evidence by virtue of an
Act of Parliament, he shall insert in the margin of the plea the words
« by statute," (A) together with the year or years of the reign in which
the Act or Acts of Parliament upon which he relies for that purpose were
passed, and also the chapter and section of each of such acts, (t) and shall
specify whether such acts are public or otherwise — otherwise such plea
shall be taken not to have been pleaded by virtue of any Act of Parlia-
ment ; (./ ) and such memorandum shall be inserted in the margin of the
issue aad of the nisi prius record, (^k)
22. — {I) A plea containing
t defence arising aflber the commencement
{h) " According to the Statute" in-
stend of " by Statute" written in the
S. 147 ; Ahrams v. J/bon, 1 U. C. It.
652; Lunn v. Tamer, 4 U. C. R. 252.)
(y) Taken from Eng. R. 0. PI. No. 21
ol H.T. 1853, the origin of which iF>Eng.
B.G. of T. T. I Vic. (Jei-T. N. R. 156),
with which our old Rule. No. 16 of E.
T. 5 Vio. (Cam. R. 24) corrf :iponded.
i) «' Accoi
i of »' by
margin, may be dut&oient : (Robertson
V. Cooley et al, 7 U. C. R. 305.) The
Court will not in general with this pica
allow other pleas : (^Neale v. McKenzie,
2 Dowl. P. U. 702 ; Fisher v. Thames
JunclionCo,^ Dowl. P.O. 773 ; O'Brien
T. CUmtnt, 15 M. & W. 435; Leggey.
Botjd, I M. & G. 898 ; but see Lang-
ford V. Woods, 7 M. & G. 625 ; Bar-
tholomtw ■■ Carter, 10 L. J. C. P. 257 ;
Coy\. Forester, 8 M. & W. 312.)
(i) Under our old Rule the words
"by Statute" in the margin were suffi-
cient. It was not necessary to gire the
year of the passing of the Statute,
much Ies8 the chapter and section. The
old English rule was not more exacting.
Bat where in an action of trespass for
hunting over plaintiff's land, the de-
fendant pleaded not guilty by Statute,
the Court on an affidavit of the plain-
tiff that ho could not disover the Sta-
tute under which the defendant meant
to justify, mide absolute a rule upon
the defendant to point out within three
days the Statute under which the plea
was pleaded, or elf^e that the words
"by Statute" should be struck out of
the margin of his plea: (Coy v. For-
rester, 8 M. & W. 312.) The compre-
hensiveaess of the general issue " by
Statute" is not affected by any of the
new rules: {Ross v. Clifton, 11 A. &
B. 631 ;) and notwithstanding the Stst-
tute 7 Wm. IV. cap. 3, a. 1, corres-
ponding with the Eng. Stat. 3 & 4 Wm.
IV. cap. 42, s. 41, where the defendant
seeks to g've special matter in evidence
under the general issue, pursuant to
some statutory provision, it is neces-
sary that he should insert the words
•' by Statute" in the margin of his
plea : {Bartholomew v. Carter, 9 Dowl.
P. C. 896.)
(y) If the defendant omit to follow
the requirements of this rule, he can-
not givd special matter in evidence to
bring himself within the terms of an
Act of Parliament Which allows a plea
of not guilty ; but if at the end of the
plaintiff's case it appear that the de-
fendant was entitled to a notice of ac-
tion, and to have the venue i.'iid in the
proper county, and the plaintiff^ gave
no notice of action, and the venue be
in the wrong county, this is not aided
by the defendant having omitted to add
the words " by Statute" in the margin
of his plea : {Coy v. Forester, 8 M. &
W. 312.)
(k) Where a defendant pleaded not
guilty, intending to justify under a
Statute, but the nisi prius record had
not the words " by Statute" added to
the margin, the Judge at Nixi Prius
refused to allow an amendment by the
addition of these words, as it could not
be shown that they were in t!io margin
of the defendant's plea: (Forman v.
Bawes, 1 C. & Marsh, 127.)
(/) Taken from Eng. R. G. PI. No,
22 of H. T, 1853.
¥ 1 ■
»»
t I
k
t 'I
K.
'¥.' i
692 THE ITEW BtTLES 0!F PBAOTICE. [Bs, 2S-25,
of the action, may be pleaded, together with pleas of defences arising be>
fore the commencement of the action ; (m) provided that the plaintiff
may confess such plea, and thereupon shall be entitled to the costs of the
cause up to the time of pleading such first mentioned plea, (n)
23. — (o) When a plea is pleaded with an anegation that the matter of
defence arose after the last pleading, ( p) the plaintiff shall be at libertj
to confess such plea, and shall be entitled to the costs of the cause up to
the time of pleading such plea ; (q) provided that this and the precedJDg
rule shall not apply to the case of such plea pleaded by one or more only
out of several defendants, (r)
24.— («) If a plaintiff in ejectment be non-suited at the trial, the de-
fendant shall be entitled to judgment for his costs of suit, (t)
25. — (m) No entry of continuances by way of imparlance, curia advU-
ari vultf vicecomes non misit breve, or otherwise, shall be made on any
record or roll whatever, or in the pleadings, (d)
(m) It is enacted by tbe C. L. P. A,
18o6, that " any dufeDoe arising after
the oommeacement of tbe action shall
be pleaded according to tbe fact :" (s.
cxvii.) The notes to that section may
be read with reference to the rule here
annotated.
(n) Between pleas puis darrein eon-
tinuanee and the pleas contemplated by
this rale there is a difiTerence. See
note j7 to s. cxvii. of C. L. P. A, 1856.
Tbe next rule (No. 18) seems to apply
exclusively to pleas jput« darrein conti-
nuance.
(p) Taken from Eng. B. O. PI. No.
23 of H.T. 1863.
(p) Commonly known as a pleaj9ut4
darrein continuance : (see 8. cxviii. of
C. L. P. A, 1856, and notes thereto.)
(^q) If tbe plea go to part only of tbe
action, the plaintiff may enter a nolle
prosequi or discontinuance ; but if he
reply or demur and the defendant suc-
ceed, the defendant will be entitled to
bis costs up to the time o^ pleading ;
{Lyttleton v. Cross, 4 B. & C. 117.)
(r) It has in England been held that
if one of several defendants plead a
plea of bankruptcy at Nisi Priu8, the
plaintiff cannot confess such plea and
go to trial with the other defendants:
(Pascall V. Horsley, 8 C. & P. 872.)
(«) Taken from Eng. R. G. PI. No.
30 of H. T. 1858.
(<) If tbe defendant appear, and the
claimant do not appear at the trial,
the claimant shall be non-suited : (C.
L. P. A. 1856, 8. ccxxxvii.)
(u) Taken from Eng. B. Q. PI. No.
81 of H.T. 1853, the origin of which is
Eng. R.G. PI. No. 2 of H.T. 4 Wm. IV.
(Jerv. N. B. 115) with which our old
Bale No. 23 of E. T. 6 Vic. (Cam. R.
29) corresponded.
(v) These forms, all of which have
been long disused, may, as a matter of
curiosity, bo found upon referenos to
2Wms.Saund. 214.
.iK\ I-
[Bs, 23-25.
ces arising be-
at the plaintiff
;lie costs of tbe
la. (n)
at the matter of
all be at liberty
the cause up to
id the preceding
ne or more only
the trial, the de-
lit. CO
moe, curia advh-
I be made ou any
5 time o** pleading :
,, 4 B. & C. 117.)
igland been held tliat
defendants plead a
.y at Nisi Pritts, the
onfesB such plea and
Ibe other defendants:
e«,8C. &P.872.1
ndant appear, and the
t appear atthetnid,
II be non-suited: (C.
. ccxxxvii.)
mEng. R.G.P\■J?•
theo^iginofwh.ch>8
».2ofH.T.4Wm.IV.
with which OUT old
T. & Vic. (Cam. R.
ks
SCHEDULE A.
FORMS TO THE COMMON LAW I'llUlLL l UU A(.l, alJJU .
1. — Form of an Itsue in general.
In the Q. B. (or C. P., a« the case may be.)
The day of , in the y«ar of our Lord 18 . (daU of Declaration.)
{Thi Venue.) A. B., by P. A., his Attorney (or in person, as the cote may be), sues
C. D., who has been sammoned to answer the said A. B., by virtue of a writ issued
on the day of , in the year of our Lord (the date of the first writ), out
of Her Majesty's Court of <)tteen'8 Bench (or Common Pleas, as the ease may be)^
for &c. (copy the Deelar*tion from these words to the end, and all the Pleadings with
their dates, writing each Plea or Pleading in a separate paragraph, and numbering
the MMe «< in the Pleading filed, and conclude thus) : Therefore let a Jury come, &c.
2.~-Special Case for the (pinion of the Court, under Sec.85,tcJieret7ie allowance
or diaalbwanee of a particular item or items depends on a giiestion of law.
In the a B. (or C. P.)
Between A. B., Plaintiff,
and
C. D., Defendant
The following case is stated for the opinicn of the Court under a rule of Court
(or order of the Hen. Mr. Ju><tice }, dated the day of 18 ,
made pursuant to the eighty-fifth section of the Common Law Procedure Act,
1856, (here state the material facts of (he ease bearing upon the question of law to be
ittided.)
The question (or questions) for the opinion of the Court is (or are)
piMt,— Whether, &o.
Seoond,— Whether, &c.
i.—hsue to he tried by a Jury tohere the Court or a Judge has directed it wider
See. 85, where the allowance or disallowance of a particular item or items
depends on a question of fact.
IntheQ.B. (or C. P.)
The day of 18 , (date of Issue when delivered by the plaintiff.)
(Vmue.) A. B , by his Attorney, sues C. D., and the plaintiff (or defendant)
tirms, and tb . defendant (or plaintiff) denies, that, &c., (here state the question
if fact to be tried, as directed by the Court or a Judge, in some cases it may be
idvmble to state an inducement before stating the question in dispute. If there be
more than one question to be decided, state it thus) : and the saia plaintiff (or defen-
dant) also affirms, and the defendant (or plaintiff) also denies, that, &c. And it
has been ordered by the Court (or by the Hon. Mr. Justice ) that the said
question (or questions) shall be tried by a Jury. Therefore let tho same be tried
accordingly.
4. — Special Case stated by an Arbitrafor under Sec. b6.
(In ike Special Case the Arbitrator must state whet/,. < the Arbitration is under ■a
t '. I
■ i :i\
? i
\m"
1 I!:
694
THE COMMON LAW PROCEDURE ACT.
>
compulsory reftrtnet under the Act, or whethtr it it upon a reference by content of
the parties where the tubmitiion hat been or it to be made a Rule of one of the Courts.
In the former caae the Award mutt be entitled in the Court and Cause, and (he Rule
of Court must be tet forth. In the latter ease the termi of the reference relating to
the submission, being a Bute of Court, must be set forth.)
5. — Form of a Niai Priua Record in ordinary cases,
(The Niai Priua Rtrjrd will be a copy of the Issue, as delivered in the action
6.--Form of a Fostea on a verdict for the plaintiff on all the issues, and where
the defendant appears at the trial.
Afterwards, on the daj of A. D. at in the County (or '
United Counties) of , before , one of the Justices of our Lady the
Queen, assigned to take the Assizes in and for the within County (or United Coun-
ties), oome the parties within mentioned, by their respeotive Attornies within
mentioned ; and a Jury of the said County (or United Counties) being summoned
also come, who, being sworn to try the matters in question between the baiil par-
tiesi upon their oaths say, that (state the negaliveor affirmative of the issue as it is
found for the plaintiff, and in the terms adopted by the pleading. If there be several
issues joimd and tried, then aay), as to the first issue joined, upon their oath say
that, &e. (state the affirmative or negative of the iaaue, as it it found for the plavtiff]-
and as to the second issue within joined, the Jury aforesaid, upon tlieir oath
aforesaid, say, that, &c. (so proceed to state the finding of the Jury upon all tht
iaauet. Conclude by stating an aattttwent of the damaget thut) : and they assess
the damages of the plaintiff on occasion of the premises within complained of br
him, over and above his costs of suit, at £ . Therefore, &o.
( 7. — Poaiea on V^e Issue numbered 3, ante.
(The tame at in ordinary eases, except that there is no assessment ofdamagen.)
8. — Fostea where a Judge, upon a trial before him, directs a reference on some of
the issues, and of the accounts involved therein, and takes a vndict on
others of the issues, referring the amount of damages under sec. 156.
Afterwards, on the day of 18 , (the Commission day of the Assizes,)
at , in the County (or United Counties) of , at the Assizes there
holden before the Hon. , one of Her Majesty's Justices of the Court of
for Upper Canada, come the parties within mentioned, by their Attorneys
within mentioned ; and a Jury of the said County (or United Counties) beitg sum-
moned, also come and are sworn to try the matters in question between the snid
parties : and as to the plaintiff's claim in the count of the Declnrntion
within mentioned, it appears to the said Judge that the questions arising thereon
involTe the inrestigation of long accounts on the plaintiff's side ; and thiit the
questions arising on the defendant's plea that the plaintiff r.t the comuiencenient
of this suit was and still is indebted to the defendant in an amount equal to {or
greater than, (as the case may be) the plaintiff's claim within tnentioneiJ, invoke
the investigation of long accounts on the defendant's r>ide, which cannot be conve-
Biently tried before him. And hereupon the said Judge orders and directs that a
verdiet be entered on each of the issues on the said count of the Declnra-
tion, in faror of the plaintiff, except upon the issue on the plea to the m\i
count , that the alleged cause of action did not accrue within six years before
this suit; and that such verdict shall be subject to, and that the matters indiffer-
ence between the said parties on the said count (except as to the said last
mentioned plea) be referred to the award of upon the terms that {set forth
the terms of the order) ; and as to the said plea so excepted, the Jurors afore-
ice hy eonient of
ne of the Courts,
lit, and the Rule
'erence relating to
ses.
in the aetion
issues, and where
in the County {or '
)B of our Lady the
f {or United Coun-
I Attornies within
i) being summoned
ween the mii par-
of the iaaue as it is
If there be several
iipoD their oath say
nd for the plavtiff)-
id, upon their oatii
e Jury upon all the
is) : and they assess
in complained of by
nent of damages.)
refermce on some of
id takes a vndid on
nder sec. 156.
m day of the Assizes,)
at the Assizes there
jticcs of the Court of
id, by their Attorneys
Counties) beit'g sum-
Ition between the said
nt of the Declfirfttion
itions arising thereon
,''8 side; and thiitthe
fr.t the commencement
n amount equal to {or
lin mentioned, involve
hich cannot be conve-
lers and directs that a
count of the Declnra-
plea to the naid
within six years before
a the matters in difter-
ccpt as to the snid las
he terms that {set forth
■pted, the Jurors afore-
SOHEDULE (a).
695
Baid upon their oath say, that the alleged cause of action in the said count
did accrue within six years next before this suit. And as to the plaintiff's claim
in the count (or counts) within mentioned, the Jurors aforesaid upon their
oath say, that the defendant did not promise as alleged. Therefore, &o. (ThU
is only given aa a general guide, and must be varied according to the pleadings, terms
of reference, and circumstances of each case.)
9. — Form of Judgment for Plaintiff on a Verdict.
{Copy the Nisi Prius Record, and then proceed thus) : Afterwards, on tho
day of , in the year of our Lord , {day of signing final Judgment,)
come the parties aforesaid, by their respective Attorneys aforesaid {or aa the ease
may be), and the Hon. Mr Justice , assigned to take the Assizes in and
for the said County {or United Counties), before whom the said issue was {or
issues were) tried, bath sent hither his record, bad before him, in these w o^ "
&o. {copy the postea). Therefore it is considered, that the plaintiff do recover
against the defendant the said moneys by the Jurors aforesaid in form aforesaid
assessed {or if the action be in debt, and the Jury do not assess the debt, but only the
damages, then say, do recover against the defendant the said debt of £ , and
the moneys by the Jurors aforesaid in form aforesaid assessed) ; and also £ ,
for his costs of suit, by the Court here adjudged, of increase to the plaintiff;
which said moneys and costs {or debt, damages and costs) in the whole amount
to £ ■ (■'* ^''* margin of the roll, opposite the words " therefore it is considered,"
write Judgment signed the day of , A. D. stating the day of signing
the Judgment.)
10 — Form of Postea, on a verdict finding a balance in favor of a Defendant,
on a plea of Set-off, and on other pleas.
Afterwards, on the day of , A. D. {the Commission day of the
Astizes), before the Hon. , one of the Justices assigned to take the Assizes
in and for the within County {or United Counties), come the parties within men-
tionei, by their respective Attorneys within mentioned; and a Jury of the said
Coanty {or United Counties) being summoned, also come, who, being sworn to try
the matters in question between the said parties, upon their oath say {if non'
mumpsit was the first plea), as to the first issue within joined, that the defendant
did not promise as within alleged {or if (he first plea was, that he never was indebted,
say that the defendant never was indebted, as within alleged). And as to the
second issue within joined, the Jurors aforesaid, upon their oath aforesaid, say
that the plaintiff was and is indebted to the defendant, as within alleged. In an
amount greater than the plaintiff's claim in the declaration within alleged ; and
they further say, that the balance due from the plaintiff to the iefendant, upon
the matters contained in the said declaration and the said second plea, amounts
to £ . Therefore, &c.
11. — Form of Judgment for Defendant thereon.
{Proceed in the usual form to the end of the Postea, and then thus) : Therefor'J It
isconsidered that the plaintiff do take nothing by bis said writ, bnt that the defen-
dant do recover against the plaintiff the sum of £ , in form aforesaid, found to
he due from the plaintiff to the defendant, together with £ for his costs of
defence, — amounting in the whole to £
{In the margin of the roll, opposite the words *'thei*eforc it U considered," write
Judgment signed the day of , A. D. )
12. — Form of Judgment on a Special Case stated by an Arbitrator,
(vide ante Ko. 4.)
{Copy the special case, and then proceed thus) : Afterwards, on the day
I'M
/■-[
/i.
'4
J '
I(K:.llr
^1^'
\ '.
696
THE COMMON LAW PROCEDURE ACT.
of I 18 • oome here the parties aforesaid, and the Court is of opinion that
{atate the opinion of the Court on the question or queationt atated in the eai«, ui Me
affirmative or negative aa the eaae may be). Therefore it is considered that the
plaintiff do recover against the defendant the said £ . , and £ for his costs
of sait.
(/h the margin, opposite theworda ''therefore it is considered," ^c, tPnV« Judg-
ment signed the day of 18 , inatrting the day of aigning final Judgment,)
13. — jFbrm of an Lsue tohm it it directed to be tried by the Judge of the County
Court.
{Commence the issue as in Form No. 1, above prescribed, then copy all the pUad^.
inga, and after the Joinder of issue proceed as foUovos) : And forasmuch as the sum
sought to be recovered, and endorsed on the copy of the original process served
does not exceed £, , {or and forasmuch as the debt or demand sought to be
recovered is alleged to be ascertained by the signature of the defendant,) here>
upon on the day of , in the year 18 , {date of the Writ of Trial,)
pursuant to the statute, the Judge of the County Court for the County (or United
Counties) of is commanded that he proceed to try such issue (or issues) at
the first (or second) sittings to be next hereafter holden of the said County Court,
by a Jury returned for the trial of Issues joined in the said Court ; and vrhcn the
same shall have been tried, that he make known to the Court here what shall hate
been done by virtue of the writ of our Lady the Queen, to him in that behalf
directed, with the finding of the Jury thereon endorsed, within ten days after the
execution thereof.
14.— Form of the Writ of Trial, (a)
Victoria, by the Qraoo of Qod, of the United Kingdom of Great Britain and Ireland,
Queen, Defender of the Faith.
To the Judge of the County Court of :
Whereas A. B., plaintiff in our Court of Queen's Bench (or Common Pleas) in
and for Upper Canada, at Toronto, on the day of , 18 , (the date of
the summons or other first process,) impleaded C. D. in an action for, &o. (htrt
recite the Declaration in the past tense.) And whereas the defendant, on the
day of last (date of the plea), by his Attorney (or aa the cast »iny bt),
came into our said Court and said (here recite the pleas and pleadings to thejoindtrcf
iaaue). And whereas the sum sought to be recovered in the said action, and
endorsed on th^writ of summons (or aa the eaae may be) thereon, docs not exceed
£ . (Or) And whereas the debt or demand sought to be recovered in this
action is alleged to be ascertained by the signature of the defendant, and it is
fitting that the issue (or issues) should be tried before you the said Judge : H>,
therefore, pursuant to the statute in such cases made and provided, command you
that you <io proceed to try the said issue (or issues) at the first (or second) sittings
of the said County Court, to be holden next after the date of this our writ, by a
Jury returned for the trial at the said sittings of Issues joined in the said County
Court: and when the same shall have been tried in manner aforesnid, We
command you that you make known to our Justices of our said Court of Queen's
Bench (or Common Pleas), at Toronto, what shall have been done by virtue of
this writ with the finding of the Jury, hereon endorsed, within ten days after the
execution hereof.
Witness, &c.
(a) Since the framing of these forms, s. 61 of 8 Vic. cop. 13, authorising writs
of trial has been repealed: (C. L. P. A. 1857, s. 19.)
ritoin and Ireland,
3, authorising urits
SCHEDULE (a).
697
li.—Fonn of Endorsement of the Verdict on the Writ of Jhial (6)
Afterwards, on the day of 18 , (the date of trial,) before
me. Esquire, Jadge of the County Court within mentioned, came as
well the within named plaintiff as the within named defendant, by their respective
Attorneys within named {or a* the ease may be), and the jurors of the Jury whereof
mention is within made being summoned also came, and being duly sworn to try
the issue {or issues), on their oath said that, &c. {state the finding of the Jury m
on apottea on a trial at Ni»i Friua.)
16. — The like in case a Nonsuit takes place, (c)
(Proceed at in the above Form, but after the words '< duly sworn to try the issue
within mentioned," proceed as follows) : and were ready to give their verdict in
that behalf; but the plaintiff being solemnly called, came not, nor did he further
prosecute his suit against the defendant.
17.— fbm of Judgment for Plaintiff, after Verdict on Writ of Trial {d)
{Copy the Issue, and then proceed as follows) : AfterwardB, on the day
of , 18 I (day of signing final Judgment) come the parties aforesaid, by
their respective Attorneys aforesaid (or as the ease may he) ; and the said Judge,
before whom the said issue (or issuer) came on to be tried, hath sent hither the
H^d last mentioned writ, with an endorsement thereon, which said endorsement is
ia these words, to wit: (copy the endorsement.) Therefore it is considered, &o.
{twfiluds as in other cases. See the Form Supra No. 9.)
18.— JRww of Entry afltr Judgment by Default or on Demurrer, where the
Damages are to be assessed before a Judge of a County Court.
{Copy the pleadings commencing the Issue, as in Form No. 1, and proceed) ani the
defendant, in his proper person (or by , his Attorney), says nothing in
bar or preclusion of the said action of the plaintiff, whereby the plaintiff remains
therein undefended against the defendant (or copy to the end of the Demurrer book,
and then proceed) : and hereupon, on the day of > 18 , (the day of
gimg judgment on the demurrer,) came here as well the plaintiff as the defendant,
by their respective Attorneys aforesaid ; and it appears to the Court here that
the declaration (or replication) is good in substance (or that the plea aforesaid is
bad in substance), therefore the plaintiff ought to recover against the defendant
hb damages on occasion of the premises above complaiaed of by him. But
beoause it is unknown to the Court here what damages the plaintiff hath sustained
onoeoasion of the premises, hereupon, on the day of i 18 , (dafe of
mtix of inquiry,) the Judge of the County Court of the County (or United Counties)
of is commanded that he diligently enquire what damages the plaintiff
hath sustained by treason of the premises, at the first (or second) sittings to be
next hereafter holden of the said County Court by a Jury returned at such
dttings ; and that he make known to the Court here what shall have been done by
virtue of the writ of our Lady the Queen to him in that behalf directed, within
t«B days after the execution thereof.
19. — Form of Wrii of Inquiry. («)
Vietoria, &o. (as in Form No. 14.)
To the Judge, &o. (as before.)
Whereas, &c. (as in Form No. 14, setting oitt to the end of the Declaration, and
pnettding as in Form No. 16, according as it is on judgment by defuult or judgment
(b) (c) (d) See note a to form 14.
(() S. 64 of 8 Vie. cap. 11, which authorised the issue of writs of inquiry, is
repealed by C. L. P. A. 1857, s. 19.
r-t
i
■iV(, .
i-
098
THE COMMON LAW PROCEDURE ACT.
^1
t H
t
9
on demurrer, and proceed). But because it is unlinown to the said Court here what
damages tbe plaintitf hath suHtained by renf>on thereof, and it is fitting the same
should be enquired of by you the said Judge, We, therefore, pursuant to tbe
statute in such case made and provided, command yoa that you do diligently
enquire what damages the said plaintiif hath sustained by reason of the premises
at the first {or second) sittings to be next hereafter holden of the said County
Court, by a Jury returned at such sittings for the trial of Issues Joined in snch
Court. And we further command you that you make Icnown to our Justices of
our said Court of Queen's Bench (or Common Pleas), at Toronto, what shall have
beeu done by virtue of this Writ with the finding of the Jury hereon endorsed
within tea days next after the execution hereof.
Witness, &o.
20. — Form of. Return to be endorsed. (/)
Afterwards on the day 18 , (rfay of Aiietement) before
me, , Esquire, Judge of the County Court within mentioned, came
tbe within named Plaintiff by his Attorney within named, and the Jurors of the
Jury whereof mention is within made, being summoned, also came and being duly
sworn to assess tbe damages sustained by tlie Plaintiff by reason of the premises
within mentioned, say on their oath, that the Plaintiff bath sustained damages
on occasion thereof over and above his costs and charges by him about his suit in
that behalf expended to £ .
' 21. — Form of Judgment thereon, {g)
Afterwards, &o., (aa inform No. 15) came the Plaintiff by his Attorney afore-
said, and the said Judge before whom tbe said damages were assessed, bath sent
hither the said last-mentioned Writ, with an Endorsement thereon, in these words
to wit, (eopy the Endorsement). Therefore it is considered, &o.| (conclude at in
other caiea).
22. — Form of Issue, where there are hsues in fad to he tried, as well as damages
to be assessed on default, or on issttes in law before the County Court, [h]
(Commence at in No. 1, copying the pleadinys, the Joinder of Issue, adding the
similiter, and inserting the Joinder of Issue to be tried by the record or the judgment
bjf defiult as to part of the pleadings, or the Judgment by theplaintiff on demurrer, at
the caie may be, and if there be judgment by default, or judgment for plaintiff on a
trial by the record or open demurrer, proceed thus.) Wherefore the Plaintitf ought
to recover against the Defendant his damages on occasion of the premises &c.
And because it is at present unknown to the Court here whether the Defendant
will be convicted of the premises upon which issue is above joined between the
parties or not, and because it is also unknown to the Court here what damages
the plaintiff hath sustained on occasion of tbe premises, whereof it is considered
that the Plaintiff ought to recover his damages as aforesaid, and it is convcniect
and necessary that there be but one taxation of damages in this suit, therefore let
the giving of judgment in this behalf against the said defendant be stayed until
the trial of the said Issue (or Issues) above joined between the said parties be tried
by the Country {or if judgment on demurrer, or on the trial by the record has not
been given — /Aen after the entry of the joinder of issue in fact and the demurrer or on
the trial by the record — proceed.) And because the Court here are no* yetndvibed
what judgment to give upon tho premises whereof the parties have put tlicmKclves
upon the Judgment of the Court (or as the case may he.) And because the Court
here are not advised what judgment to give upon the premises whereon issue is
(/) iff) W See note « to form 19. v
SCHEDULE (a).
699
joined between Ihe said partioa to bo tried by tlie record. And because it is con-
tenient and neoeHanry that there be but one tiixHtion of dnmages in this Huit, and
foMsniucli as the sum sought to be recovered and endorsed on the copy of the
original process served, does not exceed £ , {or forasmuch as the debt or
demand sought to be recovered is alleged to be ascertained by the signature of
the Defendant,) hereupon on the day of 18 , (date of th$
Writ and Trial of enquiry) the Judge of the County Court of the County {or Uuited
Counties) of is commanded that he proceed, as well to try the issse {or
issues) joined between the parties to be tried by the Country, as also, diligently
to en(iuire what danages the Plaintiff bath sustained on occasion of the premises
whereof it is con.^idered that the plaintiff ought to recover against the defendant
on occasion thereof as aforsaid, (or according to thefactt the premises whereof the
parties have put themselves upon the judgment of the Court as aforesitid, or the
premises wherein issun is joined between the particH to be tried by the Record, if
judgment shall happen to to be thereupon given for the plaintiflf) at the first {or
second sittings) to be next hereafter holden of the said County Court, by a Jury
returned at such sitting for the trial of issues joined in the said Court, and that
be make known to to the Court here what shall have been done by virtue of the
Writ of our Lady the Queen to him in that behalf directed, with the finding of the
Jury tbtreoQ endorsed, within tea days next after the execution thereof.
IZ.—Form of Writ of Enquiry to try ihe issues and assess damages contin-
gently on demurrer or issue by the record or where there is judgment by
default or on demurrer as to part. ( i)
{Commence the Writ at in number 17, setting out the pleadings, joinder in issue,
^e., at the case may be, and according to the suitable form given in number 20, and
then proceed.) We, therefore, pursuant to the statute in such case made and pro- '
vided, command you that you do proceed to try the issue {or issues) joined be-
tween the parties, to be tried by the Country, and also diligently enquiie what
damages the plaintiff hath sustained by occasion of the premises, whereof it is
considered that the plaintiff ought to recover against the defendant his damages
on occasion thereof as aforesaid (or the premises whereof the parties have put
themselves upon the judgment of the Court as aforesaid or the premises whereon
the parties to be tried by the record as aforesaid, as the case may be) if judgment
shall happen to be thereupon given for the plaintiff, at the first (or second) sit-
tings to be next hereafter holden of the said County Court by a jury returned at
snob sittings for the trial of issues joined in the said County Court — and that you
m»ke known to us in our said Court of Queen's Bench (or Common Plens) at
Toronto, what shall have been done by virtue of this Writ with the finding of the
jury hereupon endorsed, within ten days after the execution hereof. Witness, &o.
24. — Form of Endorsement of Verdict (hereon, {j )
Afterwards on the day of 17 , (dat/ of the Trial, Jfc, hefore me,
, Esquire, Judge of the County Court of the County {or Uuited Counties,
within mentioned, came as well the within named parties by their respective
attorneys within named (or otherwise, as the case may be), and the jurors of the
Jury, whereof mention 1,8 within made, being summoned also come and being
duly sworn to try the issue {or issues), nnd also to assess the damages sustained
by the plaintiff on occasion of the premises within mentioned, on their oath, said
(&c., according to the finding of the Jury on the issues, and if for the plaintiff, pro-
utd), and the said jurors upon their oath aforesaid said that the plaintiff hath
sustained damages on occasion thereof, and on occasion of the other premises
t
(') 0) See note c to form 19.
Ill I
11:
ii
■\ M
700
TBK COMMON LAW PROOEDURK ACT.
is
.1'
within mentioned, over and above hia coste and oharges bj him about bii snit ia
thie behalf eipended, to £
25 — Farm ofNonmit iherton. (A)
(Proceed at inform No. 24, to the etatement that the Jury were ttcom, ^e.—a/itr
the end of which etatemtnt, proceed a» followa)—mtr9 ready to giro their verdict Id
that behalf, bat the plaintiff, being eolemnly cailed, oame not, nor did he Airther
proeeoute his said suit against the defendant
26. — Ibrm of Judgment thereon, {I)
{Thii will be mutatis mutandis, according to the direetione given in Xo. 21.)
27. — Form of Entry oj Judgment, where the Court or a Judge decides in a
aitmmary manner, under section 84, before declaration.
In the Queen's Bench (or Common Pleas)
Upper Canada, \ The day of 18 , (the day on which Judgment it
to wit, f tigned) A. B. in his own person (or by his attorney,)
on the day of 18 , sued out a Writ of Summons against C. D., and
the said C. D., on the day of 18 , by bis Attorney (or in per-
son) caused an appearance to be entered for him to the said writ (or and the .laid
C. D. did not cause an appearance to be entered for him pursuant to the exigency
of the said Writ) and aderwards by a rule of the said Court of Q. B. (or C. P.)
(or by an order of the Honorable one of the Justices of the Court of ),
dated the day of 18 , made in pursnanee of the eighty-fourth sectioa
of the Common Law Procedure Act, 1856. It was ordered that the said C. D.
should pay to the said A. B. the sum of £ (tetting out the termt or aubttanet
of the rule or order, and if coatt were ordered, proceeding thua) together with the
costs of the said A. B., by him expended in and about the said writ and the pro-
ceedings thereupon. And now on the day of 18 , (thedayofaigning
Judgment) it is manifestly shown that the said C. D. hath not paid the saiil sum
of £ , and the said costs, therefore it is considered that the said A. B. do
recover against the said C. D. the said sum of £ so ordered to be paid as
aforesaid, and also £ for his costs of suit by the Court here adjudged to
the said A. B., which said monies and costs in the whole amount to £
(in the margin of the rule oppoaite the words ** therefore it is considered" write
"judgment signed the day of A.D. " stating the day of aigninj
Judgment.)
28. — The like, where the case ia referred to an Arbitrator,
(Proceed aa in foregoing form, No. 27, down to thcworda *• It was ordered,'
and
then proceed as followa) — It was ordered that the claim of the plaintiff be referred
to (stating the name of the referee, and the substance of the rule or order of refertnce)
— And afterwards the said (referee) by his award (or certificate) did award (or
certify) that there was due and payable from the said C. D. to the said A. B. the
sum of £ and now on this day of 18 , (the day of signing judg-
tnent) it is manifestly shown that the said C. D. hath not paid the said eum of
£ . Therefore it is considered that the said A. B. do recover agaiost the
said C. D. the said sum of £ , (the amount awarded or certified; andifcoiti
were given by the rule or order or were directed to abide the event of the reference,
and also £ for his costs. Conclude aa in the preceding FonuL No. 27.)
(These two Forms Nos. 27 aud 28 may be so altered and modeled as to auil other
cases arising under section 84.)
(k) (I) See note e to form 19.
in
Dut his snU in
om, ^e.—afltt
heir verdict in
did he further
in No. 21.)
s decides in a
ion.
Mch Judgment ti
his attorney,)
;ain8t C. D., and
orney {or in per-
{pr and the ,iaid
It to the exigency
Q. B. {.or C. P.)
( Court of ),
ity-fourth Beciion
at the said C. D.
ternu or lubttanct
together with tl>e
writ and the pro-
{thedayoftigning
)aid the sali sum
the said A. B. do
sred to be paid as
here adjudged to
at to £
considered" write
the day of tigninj
Itrator.
tras ordered," and
aintiff be referred
' order of referme)
ate) did award {or
the said A. B. the
layoftigningjudg-
d the said euro of
>ecover against the
rtified: andifeosti
It of the reference,
hrfiiNo.21.)
led as to suit other
lOHSBULK (a).
701
WRITS OP EXECUTION, (m)
29.— Fieri Faeiaa on a Judgment for Plaintiff in (untmptU.
Victoria, br the Orace of Ood, of the United Kingdom of Great Britain and Ire-
land, Queen, Defender of the Faith.
To the Sheriff of , Qreeting.
We command you that of the goods and chattels in your Bailiwick of ,
you cause to be made £ , which lately in our Court of Queen's Bench
(or Common Pleas) before the Justices of our said Court at Toronto, reootered
against for damages which bad sustained, as well by reason of
tbe not performing certain promises and undortalcings then lately made by the
laid to the said as for eosts and charges by about suit
in that behalf expended, whereof the said is convicted as appears of record,
and have that money before our Justices aforesaid at Toronto immediately after
the execution hereof to be rendered to the said , and in what manner you
shall have executed this our Writ make appear to our Justioes aforesaid at To-
ronto immediately after the execution hereof, and have you there then this Writ.
Witness at Toronto, tUe day of in the year of our Lord, 18 .
ZO.—The like in Debt.
{Commenee aa in No. 29, and proceed dovm to ''cause to be made," thenproeeeu
tu follows,) as well a certain debt of £ , which lately in our Court of
Queen's Bench {or Common Pleas) before the Justices of our said Court at Toronto
recovered against , as also {if the Judgment be in that form) for damages
which had sustained, as well by occasion of the detaining of that debt as
for his costs and charges, &o. {conclude as in the foregoing form, vfhich may be va-
ried to suit eases in trespass and other kinds of action, except ^ectmtnt.)
31. — Ihe like against Lands.
Victoria, &o.
To tbe Sheriff, &o.
We command you that of the lands and tenements of , in your Bailiwick,
yoa cause to be made, &c., {as before) and have that money before our Justices
aforesaid at Toronto immediately after the expiration of twelve months from tbe
day of your receipt hereof, and in what manner, &c. {as before to the end.)
32. — Fieri Facias on a rule for patfment of money under a Judgment
in form No. 27. .\- r •
Victoria, &o.
To the Sheriff, &c.
We command you that of the goods and chattels of C. D. in your Bailiwick, you
cause to be made £ which lately in our Court of Queen's Bench {or Com-
mon Pleas) by a rule of our said Cnort {or by an order of the Honorable ,
one of the Justioes of our Court of ,) dated the day of 18 ,
were ordered to be paid by the said C. D. to A. B.,* as appears of record, and
have that money before our Justices of our said Court of at Toronto im-
mediately after the execution hereof, and in what manner you shall have executed
this our Writ, make appear to our Justioes aforesaid at Toronto immediately after
the execution hereof, and have you there then this Writ.
Witness, &c.
(m) It is well to notice that although it is enacted by the C. L. P. A. 1866, that
"it shall not be necessary to mention any form or cause of action in any writ of
summons, or in any notice of writ of summons issued under the authority of this
Act:" (s. 14.) yet the Judges in framing the following forms have seen fit to
retain forms of action, and to observe the distinctions between them.
1. 1
rM
ii'
1 V
: ■ :.r
\'i
T02
THE COMMON LAW PROCEDURE ACT.
Iv s
K i
€
!■'»■"■■■« 'I
Vhi
hi
■ t" -tlj -
33. — Fieri Facias on a rule for paymeiii of Money and Costn,
Victorin, &o., (a« in form No. 82 down to the *) together with certain costM in
the HMiiJ rule mentioned, which said ooHts hare beea taxed and allowod by onr
said (/ourt iit £, , and have thuue moniua before, &o. [concluding at in jirt.
ttdinjf/orm No, 82.)
34. — Fieri Facias on a rule for payment of coals only,
Victoria, &o , (tame at inform No. 82, to •• niudo £ ,") for certain co«t»
which by a rale of our Court of Queen's Uuncli ('>r Common Pleaa) dutvd the
day of 18 , wore ordered to be paid by the said C. D to A. H,, wbicli
said coMtH have been taxed and allowed by our eaid Court at the said fuiu as
appears of rucord, and have that money before, &o. (concluding at in preceJiiia
form No. 82.) '
35. — Writ of Capias ad salltfaciendmn on a Judgment for Plaintiff'.
To the Shcriflr of, &o.
Wu ooiiiniand you tliat you taicc C. D., if he shall bo found in your Ilailiwick
and him toifviy keep ho that you may have his body before our JuHticcM of our
Court of Queen's Uunch {or Common IMeaR) at Toronto immediately after the ex-
ecution hereof, to sati.-ty £ ,* (the amount of all monies recovt leil by tjio
judgment) which the said A. D. lately in our Court of Queen's Uencli (orOoniiion
FleiiM) recovered against the said C. !>., for his damages (or debt and drii.,figi>,s,
or othertoiae ticcordniff to the form of action) whereof the said C. D. is convicted,
as appears to us uf record, and have you then there this Writ.
Witn^ ss, &o., (a» in preceding form No. 32.)
30. — Writ of capias ad salinfacieudum on a rule for payment of money.
Victoiia. &c., (sinne at inform No. .'^5, to the *) which lately in our Court of
Queen's Bench (or Common IMeas) by a rule of our said Court (or by nn order of
the Honorable , one of the Justices of our Court of .) dated the
day of 18 , were ordered to be paid by the said C. D. to A. B., as appears
to us of recordj and have you then thero tliis Writ.
Witner^s, &c.
37. — W, it of capias ad sutiifanicndum on a rule fir payment of money
and cunts.
Victoria, &c , (same aa A^o. 36, down to the wordi • were ordered') were ordered
to be paid by the said C. D. to the said A. B., together with certain costs in the
said rult; mentioned, which said costs have been taxed and allowed by uur snid
Court at £ , (the amount of the allocatur or allocatura, if more than one), ns
appears to us of record, and further to satisfy the said A. B. the i^aid luht uien-
tiuued sum, aud have you then there this Writ. Witness, &c.
38. — Writ of capias ad satisfaciendum on a rule for the paymeHt of costs only,
Victoria, &c., (same as in No. 35, down to the word " immcdiatLdy,") immedi-
ately after tlie execution hereof, toBatisfyA. B. £ for certain costs, whicli,
by a rule of our Court of Queen's Bench (or Common Picas or by an order of tlie
Ilouorabie one of tlie Justices of our Court of ), dutyd tho dny
of 18 , were ordered to he paid by the said C. D. to the said A. B., wliich
said costs have been taxed and allowed by our said Court at the t-aid sum, as
appears to us of record, aiid liave you there tliea this Writ. Witness, &c.
BOnRDVLB (a).
70S
CoaU.
certain costH in
Hllowetl by our
iding «• «« ;>«•
rur curtnln coBti
t) duti'd the
;o A. H., wbicli
the snid vum as
/ Hi in prtxtding
or Plaintiff.
n your Ruiliwick,
ir Ju«ticu8 of our
ktely at'lor tlio cx-
1 rccovijed by the
jencli (or Ooiii uon
I'bt nnd diii..ago»,
C. D. i« convicted,
nwit of mmwj,
ly in our Court of
(or by nn onlcr of
.) dated the
A. B.,09 appears
/ment of money
lered') were ordered
J certain costs in the
lallowed by our i?«id
7nore thun one), ns
tl»c said luht uien-
Wnf.Ht nf costs only,
fcdiiit-^ly,") immedi-
tertiiin costs, which,
[r by an onler of the
Idattd tlio tiny
llie said A. B-, wl"ch
lilt tlic said sum, as
Witness, &c.
30. — Wriit o/exeailion, where the Court or a Jmhjo decides on maliers of
account, under ncelion 84.
(Alt thtu mny bf framed upon th«/ormi already j/iven, videj'onnt Xo, i'i, it itq,
to No. 88, iiiclutivt.)
40. — Writs of execution where matter vf account is rrjiried to and decided on
by an Arbitrator. Officer of the Cunrt, or Judye of the ('mudi/ Court.
(Tht tame a» dirtehd in the next preeediiuj form, but initead of ilolini/ tfir levy to
de of money ordered by a rule or order to be piiid, lay) £ , wliicit by nn iiward
(or oortiflfnto) dated the day of 18 • {diite of award or crrlifieate)
made by B. F., an nrbitrntor appointed by the pnrtieH, or by E. F., Clerk of the
Crown and IMcas (or othn officer, naminif hit ojfice), of our Court of or by
S. F., Ksquire, the Judge of the County Court of , (oro//irru'i«r, at the can
may bt) inm awarded {or certified) t > be duo nitd payable front the said C. D. to
A. B. as appears to us of record, and have you there then this Writ. Witness, &o.
41. — Writ of habere facias in ^'ectinent, ujmn a Judtjmtnt by default,
Victoria, &o.
To the Sheriff of, &o.
Whereas A. B., lately in our Court of Queen's Ucnoh ('ir Common Pleas) by
the Judgment of the said Court recovered poMHosHion of , {ffrtcribe the pro-
perty at in the Writ of ej'eclment, or if part only of the land han been reoovrred de-
ttriht »ueh part at in the judgment) with the appurtenaiioen in your Hailiwick.
Therefore we command you that without delay you oauHO the »aid A. U. to have
possession of the said land and premises, with the appurtenances, nnd in what
manner, &c. {as inform No. I'd.)
\1.— WrU
of habere facias ami fieri facias for costs upon a Jiidyment for
Plaintiff in yectment where defendant has ajipeared.
Victoria, &c. WhoreaK A. D., lately in our Court of Queen's Uonch {or Com-
mon Pleas) recovered posHessionof ('/<'»cri/»c/A«^ro/)er/y aain the writ of ejectment
or if part only of the land hat been recovered, describe tuch part as in the Judgment)
with the appurtenances in your bailiwick, in an action of ejectment at the suit of
the said A. D. against the said C. D. Therefore we command you that without
delay you cause the said A. B. to have poHscssion of the said land nnd premises,
with the appurtenances — and we also command you that of the goods nnd chattels
of the said C. D. in your biiiliwick, you cause to be made £ , which the
said A. B., lately in our said Court, recovered against the said C. D., for the said
A. B.'a costs of the said suit, whereof the said C. D. is convicted, nnd have that
money in our said Court immediately nftor the execution hereof, to bo rendered
to the sail A. B., and in what manner, &o. (as inform No. 2U.)
43.— W)'t7 of fieri facias for costs only on a judgment for Plaintiff in yectment
where defendant has appeared.
Victoria, &o. {as inform No 2!), down to the word •'recovered") recovered
against him for the snid A. B.'s costs in an action of ejectment brought by the
said A B. against the said C. D. in that Court whereof the snid C. D. is convicted,
and have that money, &c. {as in the next preceding form to the end.)
H,—Writ of habere facias possessii mem on a rule to deliver i:o3session of land
pursuant to an award under section 90.
Victoria, &c.
To the Sheriff of, &c.
We command you that without delay you cause A. B. to have possession o£
704
THE COMMON LAW PROOSDURE ACT.
(here describe the lands and tenements as in the rule for the delivery of possession),
and of which lands and tenements by a rule of oar Court of Queen's Bench (or
Common Pleas) dated the day of 18 , made pursuant to the 96th
section of the Common Law Procedure Act, 1856, E. F. {the party named in the
rule) was ordered to deliver possession to the said A. B., and in what manner yoa
have executed this our said Writ, make appear to our said Court at Toronto im-
mediately after the execution hereof, and hare you there then this Writ.
Witness, &c.
45. Fi Fa. against a garnishee under the 196/A section toJien the debt is not
disputed or garnishee does mt appear.
Victoria, &c.
To the Sheriff, &c.
We command yoa that of the goods and chattels of E. F. in your Bailiwick
you cause to be levied £ , being the amount of {or part of the amount of
if the debt be more than the Judgment debt) a debt due from the said E. F. to C. d!
heretofore attached in the hands of the said E. F. by an order of the Honorable
, one of the Justices of our Court of Queen's Bench {or Common Pleas)
dated the day of 18 , pursuant to the statute made in such case, to
satisfy {or if the debt be less than the judgment debt) towards satisfying £
which A. B. lately in our Court of Queen's Bench {or Common Pleas) recovered
against the said C. D., whereof the said C. D. is convicted, as appears, to usof
record, and that you have that sum of £ before our said Court immediately
after the execution hereof to be rendered to the said A. B. and in what manner,
&c. {concluding as inform No. 29.)
46. Ca Sa in the like case.
Victoria, &o.
To the Sheriff, &o.
We command you that you take E. F. if he be found in your Bailiwick, and
him safely keep so that you may have his body before our Justices of our Court
of at Toronto, immediately after the execution hereof, to satisfy A. B.,
£ being the amount {or part of the amount if the debt be more than the Judg-
ment debt) of a debt due from the said E. F. to C. D. heretoforo attached in the
hands of the said E. F. by an order cf the Hon. one of the Justices of our
Court of , dated the day of 18 , pursuant to the statute in such case
made to satisfy {or towards satisfying, if the debt be less than the Judgment debt)
£ which the said A. B. lately in our said Court of recovered against
the said C. D. whereof the said C. D. is convicted as appears to us of reconl and
have you there then this Writ.
Witness, &c.
47. Writ against garnishee to shew cause why the Judgment creditor should not
have execution against him for the debt disputed by him, under section 197.
Victoria, &c.
To E. F. of in the County of
We command you, that within eight days after the service of this Writ upon
you, inclusive of the day of such service, you appear in our Court of Queen's
Bench {or Common Pleas) to show cause why A. B. should not have execution
against you for £ , being the amount {or part of the amount if the debt
exceeds the Judgment debt) of a debt due from you to C. D. to satisfy (or towards
satisfying if the debt be less than the Judgment debt) £ , wlflch on the
day of 18 , {date of Judgment) the said A. B. by a judgment of our Court
of recovered against the said C. D. and for costs of suit in this behalf, and
]f of fOiietiion),
leen'B Bench [or
ant to the 9ttth
trty namtd in the
irhat manner you
rt at Toronto im-
bis Writ.
n the debt is not
n your BalUvick
of the amount of,
saidE. F. toC.D.
r of the Honorable
r Common Pleas)
,de in tiuch case, to
jatisfying £
n Pleas) recovered
as appeorSito UHof
Court immediately
ad in what manner,
your Bailiwick, and
iBticea of our Court
,f, to satisfy A. B.,
ft more than the judg-
foro attached in the
If the Justices of our
k statute in such case
an the judgment debt)
1 recovered against
B to us of record and
it credits slmldnot
[under section 197.
Le of this Writ upon
W Court of Queens
i not have execution
U amount if the dtbt
Jto satisfy {or towards
I. vyKich on the
adRment of our Court
ait ia this behalf, and
SCHEDULE (a).
705
take notice that in default of your not so dobg the said A. B. may proceed to
execution against you.
Witness, &o.
The following endortement must be made on the Writ — This Writ was issued by
R. A. {Plaintiff's Attorney' t name in full) of {place of abode in full, aUo if
tutd out at agent for another Attorney here tag 'as agent for A. A. of ,')
Attorney for the said A. B.) or if sued out by the Plaintiff in person, " This Writ
iras issu3d in person by the Plaintiff within named who resides at ," {mtn-
tioniny the City^ Town Incorporated, or other Village, or the Township within which
inch Plaintiff resides. ) The Plaintiff claims £ {the amount of the debt claimed
from the garnishee) and £ for costs, and if the amount thereof be paid to
the Plaintiff or his Attorney within eight days from the service hereof, further
proceedings will be stayed. ( Within three days after the service fill up thefollowing
tndorsement,) This Writ was served by me X. Y. on £. F. on the day of
n
48. Declaration thereon.
In the Queen's Bench (or Common Pleas.) ' * ;
The day of A.D, 18 .
{Venue) A.B. by his attorney {or in person) sues E. F. by a Writ issued
out of this Court in these words — Victoria, &o. (copy the Writ) and the said B.
F. bas appeared to the said Writ, and the said A. B. by his attorney aforesaid
says that the said debt due from the said E. F. to the said C. D. is for, &c. {hert
state the debt as in a declaration in ordinary cases), and the said A. B. prays that
execution may be adjudged to him accordingly for the said £ , and for
costs in this behalf. .....'
E. F,
ats.
A. B
:i
49. — Pka tlierdo. '
In the Queen's Bench {or Common Pleas). *
The day of 18 . The said E. F. by his attorney,
says that he never was indebted to the said C. D. as alleged {or plead
such other defence or several defences as in other cases.)
50. — Issue thereon.
{Copy the Declaration and Pleadings, and conclude thus), Therefore let a Jury
come, &o.
51. — Postea thereon. ■'
The same as in ordinary cases, omilling the assessment of damages. a
52. — Judgment for Plaintiff therein. . ,
The same as in ordinary cases to the statement of the Judgment, which may he
tAus, Therefore it is considered that the said A. B. have execution against the
said E. F. for the said £ , the amount {or part of the amount) of the said
debt due from him to the said C. D., to satisfy {or towards satisfying, if the debt
kltss than the Judgment debt,) the said £ , which the said A. B. on the
said day of 18 , {date of Judgment against judgment (fe6<or) by the
judgment of this Court recovered against the said C. D., and it is further consi-
dered that the said A. B. do recover against the said £. F. £ , for his costs
ofsult in this behalf.
V V
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4
m
THE COMMON LAW PROCEDURE ACT.
"4
"'^'tV
h
! ;
53. — JV. ^a. therein.
Victoria, &c., {as in No. 29, down to) that of the goods and chattels of E. P. iff
your Bailiwick, yoa cause to be made £ , the amount (or part of the
amount, if the debt be more than the Judgment debt,) of a debt due from the said
E. P. to C. D., to satisfy (or towards satisfying, if the debt be less than thejudgmtnt
debtj £ , which A. B. on the day of 18 , {date cf Judgment
against Judgment debtor, by the Judgment of our Court of Queen's Bench [or
Common Pleas) recovered against the said C. D., and whereupon it has been
adjudged by our said Court that the said A. B. should have execution against the
said E. F. for the said £ , and also £ , which in our same Court were
adjudged to the said A. B. for his costs of suit which he hath been put to on
occasion of our said Writ, sued out against the said E. F. at the suit of the said
A. B. in that behalf, whereof the said E F. is conviotod, and have the said
moneys before our said Court at Toronto immediately after the execution hercof|
to be rendered to the said A. B., and iu what manner, &c.
54. — Ca. Sa. therein.
Victoria, &o. {beginning as in the preceding form) that you take E. F., if he be
found iu your Bailiwick, and him safely keep, so that you may have his body
before our Court of Queen's Bench {or Common Pleas) at Toronto, immediately
after the execution hereof, to satisfy A. B., £ , the amount {or part of the
amount, if the debt be more than the judgment debt) of a debt due from thei sai 1 E.
F. to C. D., and for the levying of which it has been adjudged by our Court of
Queen's Bench {or Common Pleas) that the said A. B. should have his execution
against the said £. F., to satisfy {or towards satisfying, if the dibt be less than the
judgment debt) £ , which the said A. B. on , {date of the judgment
against the judgment debtor) by the judgment of the said Court, recovered against
the said C. D., and further to satisfy the said A. B., £ , which iu our same
Court were adjudged to the said A. B. for his costs of suit which he hath been
put to on occasion of our Writ against the said E. F., at the suit of the said A.B.
in that behalf, whereof the suid E. F. is convicted, and have you there then tliis
Writ, Witness, &c.
55. — Judgment/or Plaintiff after verdict that a Mandamus do issue
under section 111.
{The same as in the ordinary form of an entry of judgment to the end ofthepostea
and then oro^^ed,) Therefore it is considered that a Writ of Mandamus do issue,
commanding the defendant {state the duty to be performed or the thing to be done os
claimed by the declaration), and it is also considered that the plaintiff do recover
of the defendant the said monies by the Court aforesaid, in form aforesaid, above
assessed, and also £ , for his costs aforesaid in that behalf.
(In the margin of the Judgment opposite the words, Tlicrefore it is considered,
&c. , wnV« Judgment signed the day of 18 , inserting the day of sign-
ing Final Judgment.)
66. — JFHt of Inquiry to ascertain the expense incnrred by the doing of an ad
for the doing of which a Writ of Mandamus was issued under section 280.
Victoria, &c.
To the Sheriff of the County {or United Counties) of , greeting.
Whereas upon an application by A. B., the plaintiff, in an action against C. D.,
in our Court of Queen's Bench {or Common Pleas) at Toronto, our said Court
did, on the day of 18 , {date of order) direct that ^state the terms of
the order directing the act to be done at the def'ndant's expense), and the said A. B.
{or and E.F. if another person than the plain' iff has been appointed by the Court to
do the act), has done the said act so directed to be done, and in order to enable
It I
'.f. SCHEDULE (a).
707
,ttel8ofE. F.iff
or part of the
ae from the said
hanthejudgmenf
date cf Judijvml
leen's Bench [or
ipon it has been
ation against the
BftBie Court were
1 been put to on
e suit of the said
id have the said
execution hereof,
ikeE. F.,ifhehe
nay have his body
onto, immediately
unt {or part of the
le from thel sai 1 E.
ed by our Court of
have his execution
diht be less than the
date of the judgment
t, recovered against
which in our same
which he hath been
uit of the said A.B.
you there then tliis
our said Court to ascertain the amount of the expense of doing the same, we
command you that by the oath of twelve good and lawful men of your Bailiwick,
you do proceed diligently to enquire what is the amount of the expenses incurred
by the said A. B. (or iy JS. F., as the case may he) in the doing of the said act,
and that you send to our Justices of our said Court at Toronto, on tho day
of , now next ensuing, the inquisition, which you shall thereupon take under
your seal, and the seals of those by whose oath you shall take the inquisition,
together with this Writ. Witness, &c.
^1 ,— Writ of Execution in detinue under section 201, for the return oj the
chattel detained, and for a didringas until returned, separate from a Writ
of execution for damages or costs.
Victoria, &c. ^ v.
To the Sheriff, &c.
We command you that without delay you cause the following chattels, that is
to say {here enumerate the chattels recovered by the judgment for the return of which
mention has been ordered to issue) to be returned to A. B., which the said A. B.,
lately in our Court of at Toronto, recovered against C. D. in an action for
the detention of the same, whereof the said C. D. is convicted.* And we further
command you that if the said chattels cannot be found in your Bailiwick you dis-
train tho said C. D. by all his lands and chattels in your Bailiwick, so that neither
the said C. D. nor any one for him do lay hands on the same until the said C. D.
render unto the said A. B. the said chattels and in what manner, &o. {concluding
as in Form No. 29.)
' .'<.;- ,. .*
58,_27ie like, hut instead of a distress until the chattel is returned, commanding
the Sheriff' to levy on defendant's goods the assessed value of it.
(Follow the preceding form until the *, and then proceed) and we further com-
mand you that if the said chattels cannot be found in your Bailiwick — of the
goods and chattels of the said C. D. in your Bailiwick, you cause to bo made £.
{the assessed value of the chattels) whereof the said C. D. is also convicted,
and that you have that sum of £ , &c. {concluding at in No. 29.)
h^.— Indorsement on Writ of Summons of claim of a Writ of Injunction under
section 283.
The plaintiff intends to claim a writ of injunction to restrain the defendant from
(here state concisely for what the Writ of Injunction is required— as for example thus)
"felling or cutting down any timber or trees standing, growing, or being in or
upon the land and premises at in the county of , and from committing
any further or other waste or spoil in or upon the said land and premises." And
take notice that in default of the defendant's entering an appearance as within
commanded, the plaintiff may, besides proceeding to judgment and execution for
damages and costs, apply for and obtain such Writ.
'1 ■ !
! «r ■
708
CD
QO
at
I
1
o
o
COMMON LAW PROCEDURE ACT.
psaooid ivm
jofipaj^ fnamSpnf
%vvf} aapio JO 9»«a
joj »pio JO »»«a
'j»pjo ipns JO e^vQ
'oaqsraivQ Xq prad
oq 0% pajapjo ^unotay
')naaiqov))y
joj japoo JO ajBa
'aaqsioivo jo amv^
■)aaia3pnf jo a^tjQ
'}aaai3pnf jo ^anomy
^namSpnf jo amv^
•JBWa^Itl JO orauii
^..^ j^-x::. I
SCHEDULE B.
) T -A. B Zj B OF COaXS.
General Allowance for Plaintiffs and Defendants, as well between
Attorney and Client as between Party and Party.
i
i ' TO THE AT^TORNEY.
i .. WRITS. .--, ^ . - ■ ■" '
£ s. d.
Summons, including attendance 10
Concurrent Summons 7 6
Renewed Summons 7 6
Capias 10
Concurrent Capias 7 6
Benewed Capias 7 6
Capias ad satisfaciendum 10
Benewed Capias ad satisfaciendum 7 6
Capias ad satisfaciendum for the residue 10
Benewed do. do. 7 6
Fieri Facias 10
Benewed Fieri Facias 7 6
Concurrent Fieri Facias 7 6
Fieri Facias for the residue 10
Benewed do. do. 7 6
Htt^ gw Fmi a o poap e gBioa am and Fieri Faeiaa or Capias ad flfctiafacie n-
dum for e o Bt o iifjne mi t ..i> im......T.tiiin . i iii ii>»»ii m 16
Habere Facias possessionem alone 10
Special endorsement of demand on Writ of Summons 5
Writ of Revivor ..: 10
Ejectment, (summons in) 10
Writ of Trial, drawing, if under seven folios 6 3
if above, 6d. per folio for all above. <:
Writ of Enquiry the same.
Subpoena ad testificandum 6
Subpoena duces tecum 6 8
and if above four folios, additional per folio, 6d. •
Attachment against Goods of absconding debtor 10
Attachment against Garnishee 10
Habeas Corpus obtained by Plaintiff, including allowance thereof 10
Procedendo 10
Venditioni exponas 10
Supersedeas 6 8
Mandamus 10
Injunction 10 0^
Note.— The above nllowancos include all charges for attemlauce for the writ, and
iluUvtiriDg it to the officer.
/«<
ii-S
710 THE COMMON LAW PROCEDURE ACT.
COPY AND SERVICE OF WRITS OF SUMMONS AND OTHER PROCESS.
For each copy, including copies of all notices required to be endorsed, £0 6
Service of each copy of Writ, if not done by thu Sheriff, or an officer
employed by liiini, when taxable to the Attorney 2 C
Mileage per mile, for the distance actually and necessarily travelled,
when taxable to the Attorney 6
INSTRUCTIONS TO THE ATTORNEY.
Taking Instructions to sue or defend^...... 10
Inaiructions for Pleading :
For Special Affidavits, when allowed by the Master, and instructing
Counsel on special matters 5 Q
Instructions^ Cpunsel^comgj^oi^ matters 2 G
Note— No Feo luiowed for instructions to CouuhoI, whore such Counsel is attorney "^ *
in the suit, or his partner.
Instructions for Brief 5
Bn ii if fiiffimilt i nn-l i Tw i y wi lf m rr i t ■ 1f i'iiiri " ii h, \ \m T W t Im "
Tiffip°r. f" "'^Q^* "f *'■" "■■■ntf J 11 1 II -^«i#«9-
iJffr for every suggestion 5
'tfbt for issue of fact by consent 7 6
©Oi for suggestion to revive, or for writ of revivor, when no
rule necessary 5
Do. for rule for writ of revivor when necessary 5
Ddi to defend for Executor, after suggestion of death of
original defendant 5
])o> ' for agreement uf damages 5
Ddf for confession of action in ejectment, as to the whole or
t; . in part 5
Do. to strilce or reduce a SpccialJury 10
DRAWING PLEADINGS, &c.
Declaration, inclusive of instructions and Engrossing, and of attend-
ance to file or serve, but not inclusive of copies to serve 12 C -
If a^ove 10 folios, for eirgpy folio above ten, in addition 10
One or more Pleas, if tfiSae folios or under, > » e l»Bi T> t t laotomti e uD ,
but it ^Mui vo of aa grorioing , a nd oopi a»4»«M— e 5 '
If above t lw^ folios, for every folio in addition, an » Uci¥ » t S t oyy > o
««**« 1
Jcinder of Issue, inclusive of copies and engrossing .... 2 6
Demurrer, i<Mlniirfii nf enBrniBinfi, snd^MiinrtgaM— 5
Joinder of Demurrer, inclusive of copies and engrossing 2
Marginal statement of matters of Law for argument, exclusive of
copies for the Judges 5
Replications, now Assignments, and other Pleadings, the same as the
foregoing charges for Pleas.
Postea, including engrossing 5
Judgment, whether by default or final » 2 G
Authority to Receive Moneys out of Court 2 6
Suggestions, Pleas to Suggestions, and subsequent Pleadings of three
folios or under, inclusive of engrossment ■■*tfopT«r .' 4
If above three folios, for every folio, drawing an<l engrossing 1
Issue for the trial of facts by agreement, for every folio I
Special Case, per folio 1
niER TROCESS.
idorsea,£0 5
D officer
2 G
•avollcil,
6
10
2.:
structing
6
» I I
is attorney '
5 'Oil
re- t axing
5
7 6
vrheu no
6
5
death of
5
6
■whole or
5
10
of attend-
e 12 G '£
1
' 5 •<
1
2
5
2 C
xclusivo of
5
pamo as the
5
2 6
""." 2 6
,gs" of three ^ ^ ^
incr 1
* ° 1
1
SCHEDULE (B.) 711
{Drawing interrogatories or answers for any purpose required by Law,
including engrossing, per folio 10
Agreement of Damages, and copy, if five folios or under 5
Above five folios, for every folio, drawing and engrossing 10
mv)\ V^i Jj'm 6
Special particulars of demand, or set-oif, mttmitB^sxopj^, per folio ... 1
Short ditto mill II iipi , 3 6 "B- ^
Dill of Costs and copy for taxation 6
^^pgfcfMMth^'^yywts pwty 2
Taking Cognovit, and entering Judgment thereon, when there has been
no previous proceeding, and the true debt does not exceed £60... 2
For the same services, when the true debt exceeds £50 8
Drawing and Engrossing Cognovit, and attending execution, whore
there have been previous proceedings 6
Replication, accepting money out of Court, in full of demand, mefa-
mv uP iuBt i iuu t iiunu 3 C
ha<i<hqyli o?i > it e m a Engro«gingii ta li i dod|unloq[j^yjuytLi,lj w.lluwudfUi ;y_.- >« . /*
COPIES.
Declarations, when not exceeding ten folios. .f.liS^^';. 6 8 *J~0
Do. above ten folios, per folio. .jCA^R^. 6
Other Pleadings before enumerated above, tbiSSnolios, per folio iM<k^ 6
Issue (Pleadings), if fifteen folios or under 7 6
If above fifteen folios, for every folio 6
AH Proceedings, Interrogatories, Answers, and other papers, of which
copies are to be delivered, per folio 6
Judgment for non-appearance on specially Endorsed Writs, or Writs of
Revivor, and in Ejectment, to be taken as nine folios, including
the Writ. , t t ^ ^ y am
ToTneciare, xv^iVKSS^\vas^/^^mWi^Hiffg^^<ti9 ■mia aawym 2 6 .
By defendant to bring issue to tria17^<t»p y aira oai > ¥W <i 0-8 6 2.u
To Executor or Administrator of sole Defendant deceased, to appear to
writ and suggestion 3 6 -SL. (J
Of appearance, when appearanee duly entered and notice given on the
day of appearance, but not otherwise 2 6
Of appearance to Writ of Beyivor 2 6
ToPlead '. 2 6
Of Declaration, when necessary, «ip9H«iMM«PMe m 2 6
Of objection for mis-joinder or non-joinder of plaintiflF, ■njyand cagyiao 2 6
To Sheriff to discharge a prisoner out of custody, MfgMMMUMnMt.... 3 6 2u o
Notice in ejectment to defend for part of the premises, MudaBBM 5
If above three folios, for every folio additioi^.^..yj^;^^^^^ 10
Kotice of claimant's or defendant's title, Wft g D^oti3il[b*2{2ajbBd 384 ,
the same fee|.
Kotice of admiss^n of right, and denial of ouster by a Joint Tenant, ^
&c., M > d aai i i o e 8 6 7~. 6
If above three folios, for every folio 10 ^
Of discontinuance by claimant in ejectment, M uLaeww e 3 6 2. 6
Of confession of action of ejectment, as to the whole or in part, AfN^ .
LUiia»> 6 '^O
Of trial or assessment, e «p y axd s e rT i ce 3 6 7-. 6
Demand of residence of plaintiff and all other common notices, e opy
2 «
I
xm,.
'. I-'
l:?l,!
^^^-!
/
Jl
712 THE COMMON LAW PBOOEDVBE ACT.
To admit or produce, if not exceeding two folios, a a py i m i ei M i e ..... 2 6
For eaoli folio abore two 1
Hew— flip— 4MMla»i—lM4iA4>4h»<*i'»Hi toBH) whi^— »<«hMwiUi ii | ii M ii.
COPY AND SERVICE. • - -
Of special and common rales... .',...i 8 9
Of special rule, above three folios, per fblio additional 1
Of summons or order of a Judge 2 6'
Of order to charge a prisoner in execution * 0" 8 6
Mileage on services, as on a writ of summons.
EJECTMENT.
Instruetion? to sue and examining deeds, as in other cases.
If title contested ^ 10
ATTENDANCES.
''Attendance at Judges' Chambers^ at t he Cwon s IBms , aa J a ll wtbti
ce mw sa a tttudiiuutB lu tli e uuuisu uf a taa s tj 2 & 4~
Fee on every record, writ of trial, or enquiry 5
Fee on every rule of Court, or Judge's order 6
j) I Attending Assizes if cause entered, where no fee is charged by the at- 1
j^ '\ ^ torney as counsel 6 fO,\
./'^'^^K \ Attendance on Master on special matters 6
/j**^*' I For every hour after the first..... .j 6
Taxation of costs on postea f%f(itimK*nfi:l7. 5
O f ooDte e f sa a ss) e t hs s ir i ss t h a n e a pujtta 0- 3 ■4.
^ Of iat s il ss utiuj mu ttes B i. 0—2—0- ,
^y*"*^ rw dreVing per foTto^ oTOrigrofM^^ a^se a£y ni ^ter ... .% 10 ^"'i
./'^^. ^''JDVIJ^*'JliJLn*^'"^''"fln nTilnrnininTinfnrirTtrlpftyilT**^'* 6
/t^p^' Cop£Tor seconlfcounsel, where fee taxed to him, per folio 6
TERM FEES.
jp Term fee, after declaration filed 5
Drawing IB)weW Afl5davit|, per folio, iaehiding angitngiing 10
an5?oSffir;f?h: 5
DEPENDANTS,
■appearance 3 6
For each additional defendant 1 &
A second summons, and order for time to plead, shall be allowed in
special cases whe|%jif(cessary.
COUNSEL FEES.
Fee on Motion of Course, or on motion for Rule Nisi, or on Motion to
make Rule Absolute in matters not special 10
On special motion for Rule Nisi (only one counsel fee to be taxed) 15
To attend reference to Master, where counsel necessary ^ 1 5 Qi
I
P.
.... 2 6
.... 1
... S »
-010
... 2 ft
..•0'8 6
" 1
■•■.. „
•• 2 6 i-
5
6
ly the at- i
6 /Oil
5ft
5
' 5
Q. 2 6.
'..*•»...•■• V 2 ft *
t
1 ^"'1
6
e
5
tf iim.... — 2 6
»••■• •••••» u 1
^;^^.,«.. 6
• ••• «•» ••• U 6
• ••• ••• ••« u J, t>
owed ia
otion to
10 ft
:ed) 15
1 5 ft
to 0P9ttt9i that so much of the Rule of thi
Ites to the Taxing of Fees to Counsel, be rescinded ^
taster Term next, and that the following be substitud
OOUNSljt 1PEe(
Fee on Motion of Course, or on Motion ^r Rule nI
make Rule Absolute, ppC -►►w.-^csr -rvrZ*^ j
OnSr • ' " •• - - ^^
n^e^ ««ai«r wnen ^'ounsej^ngcij
siij^orting or oj>posing Riil^^S
on argument of Demurer, Special Case or Appeal,
. J?r!^ f ,<^ ^^^^ Maater, at Toronto,
Fee with brief on
fWith brief at Trial, in ca«« af Tort^ or in Eject,
t of Contract, when the sum to be movewa eweedi
T. b. inoMj«d by the T»xi,« Officer » ki, di»«tio. to » »
•"wglitj wliit sliaii have power t& ta
at of a speoiai and important
e:e
by
^ wW^tium
^necessary, i i H . Iw th t ^ iOs,
in>iiii
I ■
vsi
Hilary Term, 22nd Victoria.
M 4i)^tftVttlti that so much of the Rule of this Court and of the Table of Fees as
38 to the Taxing of Fees to Counsel, be rescinded, upon, from, and after the First day
ister Term next, and that the following be substituted.
OOUNSEL FEES.
Fee on Motion of Course, or on Motion fbr Rule Nisi, or on Motion to
make Rule Absolute, vmT ^^^'^^^AAtxf ^rur<-yUe^*»/ - ^0 10
1 5
1
On Special Motion forJRiile Nisi^nly one Cpunsel Fee to be Taxed,^
To attend fie^rence forMaster wfieiTtounsel is necessary, / -
For argmii[3Rf»h supporting or opposing Rules on Re'turn 6f Rule Nisi,
on argument of Demurer, Special Case or Appeal, - - -
To be increased tv^The discretion of the Master, at Toronto, to a sum not to exceed
£6 5 0, wibj aBt kn A ppe al to k k t Oo i m 4 o j a Ju d g a; to goiuee - the antoun t a ll wyed.
Fee with brief on Assessments, - - - - - -
Fee with brief at Trial, in cases of Tort, or in Ejectment, or in matters
of Contract, when the sum to be recovered exceeds <£100,
To be increased by the Taxing Officer in his discretion, to a sum not exceeding £5, to
Senior Couq^eL^^ ^ ^O^tn Junior Counsel, in actions of a special and important
5
2 10
1 5
2 10
nature, wiMJL*ii Uj bu Appeal lu ^^e Mast^ (at Torontp) o f i he Oourt wh a rn thn nntinn u as
I t f ough t } whft shall have power to tmr^frfn In Ihn Snnjnr ffniinael, tn nnj inm nnt nTHTif>r l in ]r
i ilO; i. m >d t 8 t ha Jwior fnunipl, uo t BTn aa ding igyprovifl a d th a t mojo than o ne O e u i i i o l
F oe s hall no t bo a Mowod in tin .j|t o a ia no t of a special and important nature.
^:<? - ' " ■
/v.
E e o with byjnf in oWi miJmmma. ,- .^
Fee to Counsel on argument or Examination ipChambers, to be allowed
by the « fei(|geattho timo when he considers^the attendance of Counsel
» necessary, i iat Icoo than . 10s, hoj m^o than flSoi iiw i . y ^^^^X,e<«..i^
Af Uy\,<^^^A^<^ hex jfamB^M^ttj '
OC;^ -{JU^ ^.A^ ..^ 4<.^^JL hF-Vw.o.^U^ J- B- ROBINSON, C, J.
^^ „^ U JUwJlrvr-^ tuk^-fovuuu M ^- H- DRAPER, a J, a p.
t^ hi^i:::K/*fu» e/J|-trtx^ br Aj«^<-a «/— tZu^H A. McLEAN, J.
U^ ROBERT E. BURNS, J.
WM. B. RICHARDS, J,
)thFebmaru, l86d«
u
■ /
*
J
.r
; /
For argument ot
or argumoni
To b« IricrcMud In tt
Foe with Brief o
Fee with Brief a
of ooiitrnct,
increased bj
X5 in aotlor
to snob sum
of tite case,
Fee witb Brief, i
Fee to counael o
by the JuJg
counsel aec(
To be Taken and
In addition to al
Every Writ
Every ooncurreti
Every appearan(
Every appearant
Filing every affi(
Amending every
Every ordinary :
Every special ru
Every judgment
Every final Judg
Taxing every bil
Every reference,
to the Mast
Do. do. for ei
Upon payment c
Do. £50 and u
Do. £100 and i
Every certificate
including ai
Excmplication, <
Every search, if
Every search ex
Every search ex
Every aflidavit, ;
Every allowance
Taking recognizi
Filing affidavit a
attorney ...
Every admission
Entering satisfac
any necessn
Every commissi^
Every commissic
Entering exoner
Making up recoi
Entering and do(
For making the
scnKDULi (b.) 718
For argument on Hupportlng or oppoaiiig rules on return of R«ilo NUi,
or arguraont of demurrer, Hpuoiiil ciise, or upiiual 2 10
ToImi Iii(.t«.m«kI iiitbedlNoretloa ofUit MiuUr, tut^eot toappvul tuth«Courtora JihIkm.
Foe with Brief on AsaeiMments '. 16
Fee with Brief at Trial, in cases of Tort or In ejectment, or In matters
of ooutraot, where the sum to be recorered exceoils XI iM) (to bo
incroisod by the Master in his discretion, to a sum not c-zoeeding
£5 in actions of a special and important nature) or by a Judge,
to such sum as shall appear to him proper under the circumstances
of the case, not exoevding in any case £20 2 10
Fee with Brief, in other oases 16
Fee to counHoI on argument or examination in chambers, to be allowed
by tlio Judge at the time, when ho considers the attendance of •
counsel necessary, not less than 10s nor more than 25s. i
FEES r^xc." -C. 'jUjL tlu^W CerxSKT U-Cttij
To be Taken and Received hy the Clerks of the Crown and Pleas, or their "—
Deputies or by the Clerk (\f the l^octts.
In addition to all fees expressly imposed by statute — * k
Every Writ 2 C
Every concurrent, alias, pluries, or renewed writ.... 2 6
Every appearance entered, and filing memorandum thereof 10
Every appearance, each defendant after the first 6
Filing every affidavit, writ, or other proceeding 4
Amending every writ or other proceeding 18
Every ordinary rule 18
Every special rule not exceeding six folios, per folio 10
Every judgment by default 2 6
Every final Judgment otherwise than judgment by default 2 6
Taxing every bill of costs, and giving allocatur 8 4
Every reference, inquiry, examination, or other special matter referred
to the Master, for every meeting not exceeding one hour 5
Do. do. for every additional hour or less 5
Upon payment of money into Court, for every sum under £50 6
Do. £50 and under £100 10
Do. £100 and above that sum 10
Every certificate made evidence by law, or required by the practice,
including any necessary search 2 6
Excmplication, or office copy of proceedings, per folio 6
Every search, if not more than two terms 6
Every Hearch exceeding two, and not more than four terras 10
Every search exceeding four terms, or a general search 2
Every affidavit, affirmation, &c., taken before them 10
Every allowance and justification of bail 18
Taking recognizance of bail 18
Filing affidavit and enrolling articles previous to the admission of an
attorney 2 6
Every admission of an attorney 10
Entering satisfaction on record, and filing satisfaction piece, including
any necessary search 2 C
Every commission for the examination of witnesses 5
Every commission for taking bail and affidavit (to be on parchment)... 10
Entering exoneretur on bail piece 18
Making up records of conviction, or of acquittal, per folio 6
Entering and docketing jndgment 2 6
For making the entry required in the debt attachment book 2 6
If
%
i' .
\
f
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1
714
THE COMMON LAW PBOt^EDURE ACT.
CLERK OF ASSIZE AND MARSHALL.
The Fees provided by 14 & 15 Vic. cap. 118, to be accounted for to
the Fee Fund.
CLERK IN CHAMBERS.
Every Summons : 1 3
Every Order 2 6
For receiving and taking charge of Nisi Prius records and exhibits in
each cause 2 6
Filing each paper 4
Every fiat for a rule of Court 1 3
Taking every affidavit or affirmation 1
Office copies of papers, per folio 6
For searching, the same allowance as to the Clerk of the Crown and
Pleas.
SHERIFF— (CIVIL SIDE).
Every warrant to execute any process, mesne or final, when givor to
abailiflF. .'. 2 6
Arrest, when amount endorsed does not exceed £50 5
Do. do. over £50 and under £100 10
Do. do. " £100 and over 10
Mileage, going to arrest, when arrest made, per mile 6
Do. conveying party arrested from place of arr jst to the Gaol, per mile 6
Bail bond, or bond for the limits 5
Assignment of the same 5 P
For an undertaking to give a bail bond 5
Service of process, not bailable, scire facias, or writ of revivor (includ-
ing affidavit of service), each defendant 6
For each summoner on writ of scire facias, to be paid by the sheriff... 2 6
Serving subpoena, declaration notices, or other papers (besides mile-
age for each party served) 2 6
Receiving, filing, entering, and endorsing all writs, declarations, rules,
notices, or other papers to be served, each 13
Return of all process and writs (except subpoenas) 2 6
Every search, not being by a party to a cause, or his attorney 10
Certificate of result of search, when required 2 6
Fee on striking special jury. .^ 10
Serving each special juror 13
Summoning special jury, each mile's travel from the Court-house 6
Returning panel of special jurors 5
Every jury sworn 5
Poundage on executions, and on attachments in the nature of execu-
tions, where the sum made shall not exceed £100, five per cent.
Where it exceeds £100, and is less than £1000, five per cent, for the
first £100, and 2^ per cent, for residue.
Over £1000, 1^ per cent, on whatever exceeds £1000, in addition to
the poundage allowed up to £1000, in lieu of all fees and charges
for services and disbursements, except nileage^ in going to seize,
and disbursements for advertising, and except disbursements ne-
cessarily incurred in the care and removal of property, in cases
exceeding £1000, to be allowed by the Master in his disci etion.
Schedule of goods taken in execution, including copy to defendant, if
not exceeding five folios 5
SCHEDULE (b). 715
Each folio above five , 6
The sum aolually disbursed for adTertisements required by law to be
inserted in the official Gazette or other newspaper.
Drawing up advertisements, when required by law to be published in
th'5 official Gazette or other newspaper, and transmitting the same
in each suit 5
Every notice of sale of goods in each suit 2 6
Every notice of postponement of sale on execution, in each suit 18
Service of writ of possession or restitution, besides mileage 10
Bringing up prisoner on attachment or habeas corpus, besides travel
atls. permile 5
Actual mileage from the Court-house to the place where service of any
process paper or proceeding is made, per mile fi
Seizing estate and effects, on attachment against an absconding debtor 10
Every inventory, to be charged as on executions.
Bemoving or retaining property, reasonable and necessary disburse-
ments and allowances to be made by the Master, or by order of
the Court or a Judge.
Presiding on execution of writ of enquiry, under sect. 280 of the Com-
mon Law Procedure Act, 1856 1 o
Summoning jury 5
Bailiff's fee, summoning jury, mileage per mile 6
Hire of room, if actually paid, not to exceed lOs.
Mileage from Court-house, to place where writ executed, per mile 6
Bond to secure goods taken under an attachment, under sec. 50 of the
Common Law Procedure Act, 1856, if prepared by the sheriff 5
IN REPLEVIN.
Precept to the bailiff. 2 6
Notice for service on defendant 2 6
Delivering goods to the party obtaining the writ 10
For writ, &o., de retorno habendo 6
Replevin bond 6
CRIER.
Calling and swearing jury 2 6
Cdling plaintiff on non-suit 10
Proclamation and calling parties on recognizance, each person 10
Swearing each witness, or constable 6
JURORS.
Where not specially provided for by Statute.
Special jurors, each day's actual attendance, to be paid to those only
whoare sworn 6
Common jurors, when not paid by the county, every cause in the infe-
rior jurisdiction, each juror 7}
In every other case, each juror 1 3
ALLOWANCE TO WITNESSES.
To witnesses residing within t>iree miles of the Court-house, per diem. 8 9
To witnesses residing over three miles from the Court-house 6
Barristers and attorneys, physicians and surgeons, when called upon
to give evidence, in consequence of any professional service ren-
dered by them, or to give professional opinions, per diem 10
• •
itr
u
h'
'S5V .
V A
I
W'
CTidenoe of any
^yidenoe depend-
SOHEDULi: n(b).
^gineers and Burveyor8,^>lwn called upon to^
[^ofessional service rendmd by them, or to
io^iJipon their Bkill or judgmnnt, per diem
If the wim^aes attend in one oaus^mly, they will be it^itled to the
full allo^^nce. If they attend n^fiore than one oa8e^Hke7 will
be entitleoWa proportionate part n^ach cause only.
The travelling exp^n^s of witnesses, over ran miles, shall be allo^
' according to thesHma reasonably and a^V^lly paid, but in n^
case shall exceed on^Nihilling per mile, one
1
COMMISSIONER.
For taking every affidavit 10
Taking every recognizanqp of bail 2 6
*#r
-*,,) •■'
20th victoria, cap. 5.
' *« it
Ui
CB>y.
An Act to amend the Laws in Upper Canada, respective
Appeals, and to alter the Constitution of the Court of Error
and Appeal,
[Assented to 27th May, 1857.] .
Her Majesty, by and vritli the advice and consent of the Preamble.
Legislative Council and Assembly of Canada, enacts as follows :
I. The thirty-ninth section of an Act of the Parliament of Sect. 39 of «^ .
Canada, passed in the twelfth year of Her Majesty's Reign, repealed. ^ l,ft£--^
intituled, An Act to make further provision for the Adminis- ^^
tration of Justice, hy the establishment of an additional
Superior Court of Common Law, and also a Court of Error
and Appeal, in Upper Canada, and for other purposes, is
hereby repealed.
II. The Court of Error and Appeal shall be composed How the Oy^i^i^tr^
henceforth of the Judges of the several Courts of Queen's ror and Ap- "-^'^^/s
Bench, Chancery and Common Pleas in Upper Canada, who hereafter bt ^^y^^'
shall be ex officio members thereof, and of such other persons '^™^"
being Barristers of the Upper Canada Bar, and having held ^ •
the office of Judge of some or one of the Superior Courts of
Common Law or Equity in Upper Canada, as the Governor of
this Province shall, by Commission under the Great Seal
thereof, appoint to be a Judge of and in the said Court of
Error and Appeal, and every person to be so appointed shall ^'^^ § 5
take such rank and precedence, after the Chief Justice of the
Court of Queen's Bench, the Chancellor of Upper Canada,
and the Chief Justice of the Court of Common Pleas, in that
Court, as shall be designated in his Commission. ^V ^ ^ 3**^^
Jt.v'
F ,i
m
II
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It
rf \
718!
^hyO i^e^tAw Powers of
G ^/. /_ the Court.
ERROR AND APPEAL ACT. [SS. iii-vii.
m. The Court of Error and Appeal so composed shall
have, possess, exercise and enjoy the same powers and autho-
rities as are contained and conferred in and by the above
mentioned Act, passed in the twelfth year of Her Majesty's
Reign. i
«*.<?. CK /»r the Court.
01
IV. The Court of Error and Appeal shall hold its sittings
at the city of Toronto, on the second Thursday next after the
several Terms of Hilary, Easter and Michaelmas, and shall
have power to adjourn from time to time, and to meet again
at the time fixed by such adjournment, for the transaction of
Who shall, business; and the Chief Justice of the Court of Queen's
Bench, for the time being, and in his absence, the Judge of
the said Court entitled to precedence over all the Judges
nrhoi
preaide.
(tl
H'
How the Act
•haU apply
to pending
Quorum, actually present, shall preside therein, and seven members of
& / the Court, shall be necessary to constitute a quorum.
V. All appeals which shall be depending in the said Court
at the time this Act shall come into force, shall be carried on
under the provisions of this Act, but where any such appeals
shall bo standing for Judgment, Judgment may bo given as
if this Act had not been passed.
^•^vSl«L> **v-S°"*™"^ ^^' '^^^ Court of Error and Appeal shall have power to
" ' ^ft /-h owsdiugs^T quash proceedings in all cases brought before it, in which
«c»«
f /<?
certain cases.
Error and Appeal does not lie, or where such proceedings are
taken against good faith, or in any case in which proceedings
might heretofore have been quashed in the said Court,
according to the law and practice in England.
<S^ Si,
T^d^mJnt*''* ^^^' ^^^ Court of Error and Appeal shall in all cases have
"•^Jt /J the Court be- pQ^gj to dismiss the Appeal, or to give such Judgment or
//^ II.
hare given : Decrcc, and to award such process or other proceeding as the
and award ' ,.. ",, . f ,
restitution Court whose dccision IS appealed againt ought to have given,
and costs. tr o o o 7
in
without regard to the party alleging Error, and may also award
^ff restitution of payment of costs; and the Judgment, Decree
Jadgment to or Award shall be certified by the Clerk of the Court of Error
BHifgivenbyand Appeal to the proper Officer of the Court below, who
below. shall thereupon make all proper and necessary entries
thereof, and all subsequent proceedings may be taken there-
89. vi'ii-xiii.] appeals from q. b. and o. p.
719
upon, as if tho Judgement, Decree or Award had been origi-
nally given in and by the Court below. (Z) ^'^/z
VIII. The appellant shall in all cases be at liberty to dis- Appellant cffn-i 9?.->/»i,^
.... ,. , . . , •' may always ; iiy t. pr^
continue nis proceedings by giving to the respondent a notice d'*''o«>tinue 't-c.e h./'i
headed in tho Court and cause, and signed by the appellant ^'*'*** "*" ^ lb-
or his Attorney, stating that he discontinues such proceed-
ings ; and thereupon the respondent shall be at onco entitled
to the costs of and occasioned by tho proceedings in Appeal,
and may either sign judgment for such costs, or obtain an Consequona*
Order for their payment in the Court below, and may take allTOn?hI^w,
further proceedings in the Court below as if no appeal had
been brought.
IX. The respondent shall in all cases be at liberty to con-p^g ^^^^ Ccr,^ s,T^ if^yi^
sent to the reversal of the Judgment, decree or proceeding ^"^ *°^°^
appealed against by giving to the appellant a notice headed in
the Court and cause, and signed by the respondent or his
Attorney, stating that he consents to the reversal of such
Judgment, decree or other proceeding, and thereupon the •'"^sment
Court shall pronounce Judgment of reversal as of course.
X. The death of the appellant after the security required Appeal not to
by law to be given by him shall have been perfected, and death ^f
have been, or shall stand allowed, shall not cause the appeal after'^curity
to abate but it may be continued as hereinafter mentioned. ^''™*
XI. The death of the respondent shall not cause the appeal ^'o' by
to abate, but it may be continued as hereinafter mentioned, respondent.
XII. The marriage of a woman appellant or respondent. Nor by mar-
shall not abate the appeal, but the proceedings in error and Laie party,
appeal shall go on as if no such marriage had taken place, and
the decision of the Court shall be certified as in other cases.
And as to appeals from the Court of Queen's Bench and ^^^^^^^
Common Pleas ; Be it enacted as follows :
XIII. An appeal shall lie upon a Judgment upon a spe- Appeal to lie
. , . .^^ *: T J X fromjudg.
cial case in the same manner as upon a Judgment upon amenton
special verdict, unless the parties agree to the contrary ; andunies*, Aef*
the proceedings for bringing a special case before the Court
of Error and Appeal shall, as nearly as possible, bo the same prooeediDgB.
• i.e »/% /%
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720 ERROR AND APPEAL ACT. [fiS. xiv-XlX.
as in tho case of a special verdict, and the Court of Error and
" , V ■ Appeal are required to draw any inferences of fact from the
facts stated in such special case, which the Court where it was
originally decided ought to have drawn.
XIV. An appeal shall lie in all cases of rules to enter a
And on rules
to enter ym-
ptSuWe'serJ*- vcrdict or non-suit upon a point reserved at tho trial, if the
^' rule to shew cause be refused, or if granted, be afterwards
discharged or made absolute.
r^<>
And on rules
fi>r new trial
on certain
grounds.
ProTidcd one
Jndge dis-
sents or
Court allows
appeal.
Mot tn lie in
certain cases.
Notice of ap-
peal to be
given, and to
whom and
where.
§i7
Appeal in
^ectment.
XV. In all cases of motion for a new trial upon tho ground
that the Judge has not ruled according to law, if the rule to
shew cause be refused, or if granted, bo afterwards discharged
or made absolute, the party decided against may appeal, pro-
vided any one of the Judges dissent from the rule being
refused, or when granted, being discharged or made absolute,
as the case may be, or ^Tovidcd the Court in its discretion
think fit that an appial should be allowed ; provided that were
the application for a new trial is upon the matter of discretion
only, as on the ground that the verdict was against the weight
of evidence or otherwise, no appeal shall be allowed.
XVI. No appeal shall be allowed in either of the cases
mentioned in the three next preceding sections, unless notice
thereof be given in writing to the opposite party or his Attor-
ney and to the Clerk of the Crown of the proper Court within
fourteen days after the decision complained of, or within such
further time as may be allowed by the Court or a Judge.
XVII. An appeal shall He in ejectment in the same man-
ner and to the same extent as in any other case.
piy^ j?^"nt XVIIl. An appeal shall lie in all cases in which any By-
STa^kiptti* ^^^ °^ ^ IMunicipal Corporation has been quashed by rule of
B;-Law. Court after argument. '
s toX ^ peauxcept* XIX. No Other appeals from the decision of the said
^^*t^"^ *c?o&"* Courts of Queen's Bench or Common Pleas, shall be allowed,
'*"*• unless the judgment, decision, or other matter appealed
against, shall appear of record.
X ;
as. xx-xxiii.] appeals from q. b. and o. p.
721
XX. A Writ of Error and Appeal shall not, be necessary writof Error c>,, y;^7^t^
or used in any cause, and the proceedings to appeal against "S^u^gSS** -4- r'X iT
any Judgment shall be a step in the cause, and shall be taken $3 2.
in manner hereinafter mentioned : but nothing in this Act ^^ w^Tod
contained shall invalidate any proceedings already taken or
to be taken by reason of any Writ of Error and Appeal issued
before the commencement of this Act.
* 33
XXI. Either party alleging error in law, may deliver to the Party aiieg.
Clerk of the Crown of the Court wherein the suit was insti- m»y&^m*-
luted, a Memorandum in waiting, in the form contained in ili''foi?^"o'f
the Schedule A to this Act annexed (No. 1.) or to the like fod^selJ^et
effect, entitled in the Court and cause, and signed by the Sment of
party or his Attorney, alleging that there is error in law in fr7or°on th»
the record and proceedings, whereupon the Clerk shall file ^rty *^
such Memorandum, and deliver to the party lodging the
same a note of the receipt thereof, and a copy of such note
together with a statement of the grounds of error, intended
to bo argued, may be served on the opposite party or his
Attorney.
XXII. Proceedings in any appeal from decisions in the ProeeediDgs
Courts of Common Law shall be deemed a supersedeas of supi*r^e *
execution, from the time of the perfecting and allowance of Ind'from'
the security required by the fortieth section of the above '^** *'™''
mentioned Act, passed in the twelfth year of Her Majesty's
Reign J Provided always, that if the grounds of Error or proviso, if
Appeal shall appear to be frivolous, the Court whose judg-cia^^^M-**^
ment is appealed from, or a Judge upon summons, may order ***"*•
execution to issue.
XXIII. The assignment of and ioinder in error in law Assfgnment '^'^^ ^^^ /sttv-
M:
Cory j2»? /W>-
1 II t 1 1 • 1 1 <. and joinder
snail not be necessary or used, and instead thereof a sugges- in error ua-
,«., .iii-i 1 necessary
tion to the effect that, error is alleged oy the one party and
denied by the other, may be entered on the Judpcment-roll, in Suirgestion
, « . 1 . r. 1 1 1 » 1 . . ■, At substituted,
the form contained m schedule A to this Act annexed (No.
2.) or to the like effect : Provided that in case the respondent Proviso, if
intends to rely upon the proceeding in error being barred by relies on pro-
lapse of time or by release of error or other like matter of fact, error being
ho may give four day's notice in writing to the appellant, to
XX
ll.O. C/i /I
I I
> 'I
I,
P •
If- ■
•f^
T22 ERROR AND APPEAL ACT. [S3. Xxiv-XXvii.
file and serve a copy of his grounds of error and appeal as
heretofore, instead of entering the suggestion, and he shall
within eight days plead thereto the bar by lapse of time, or
release of error or other like matter of fact, and thereupon
further proceedings may be had according to the law and
practise in England. . .
2«n^ Slcd-r^ ^^**'% XXIV. The roll shall be made up, and the suggestion last
tt-<». <?^ /3 wnun a c«r' aforesaid entered by the appellant, within ton days after the
S^'i(^ defendant scrvice of the note of the receipt of the Memorandum alleg-
judgmentof ing error, or within such other time as the Court or a Jud«e
nonprot. ^^^ order, and in default thereof, or of assignment of error in
cases when an assignment is required, the respondent, his
executors or administrators, shall be at liberty to sign Judg-
ment of non pros.
^^rv^s? 4 £, ^Pro'isJfn'n XXV. Itt caso of au Appeal on a Judgment given against
'Ji
of BOTcna*'^ several persons, and one or some only shall appeal, the Memo-
^Jjg't randum alleging error, and the note of the receipt of such
menfii"''^ Memorandum shall state the names of the persons who appeal,
gj^^'^j^^^^'and in case the other persons against whom Judgment has
appeal. jjgQu given decline to join in the appeal, the same may be
continued and the suggestion last aforesaid entered, stating
the persons who appeal without any summons and severance
or if such other parties elect to join, then the suggestion shall
state them to be and they shall be deemed appellants although
not mentioned as such in previous proceedings.
Ui)on entry XXVI. Upon such Suggestion of error alleged and denied
legeTand ^^ing entered, and after the security required to be given by
•ecurit *id^ *^ appellant shall have been duly allowed, the cause may bo
toffl'^'f't' f*^®' ^^"^^ ^^^ argument in the Court of Error and Appeal as
jndgment to heretofore, and the Clerk of the Court appealed from shall,
be transmit- ' .
ted to Court on payment of his lawful fees, prepare a full transcript of the
Appeal. Judgment appealed from and certify the same under the seal
of the Court, and shall forthwith transmit the same to the
Clerk of the Court of Error and Appeal.
<^^'>>^st<ki.jTn- In appeals XXVII. In cascs of appeals upon motions or rules for new
'*''■ '^^ ' ? mo^ona or ° trials, or to enter a verdict or non-suit, or upon rules whereby
SS. i
any
state
bytl;
shall
docui
necesi
Error
forth V
of Err
requin
allowei
least fo
argume
Judges,
tioned i
thereof
xxr:
suggest!*
not be t
untrue,
the suit
the sole
XXX
the appei
of the la,
Judge, e
legal rep
but shall
procecdinl
against s
such sugi
an affirms
the Court
tied to.
a sug<'09ti
It" t i
I
ss. xxviii-xxxi.] appeals prom q. b. and o. p.
728
>>^^
any by-law is quashed, such appeal shall be upon a case to be ^Jj't^,
stated by the parties (and in case of difference to be settled *"•' <«""« 'a
by the Court or a Judge of the Court appealed from) in whic> • ^"'ed .
shall be set forth so much of the pleadings, evidence, affidavits, ""•' ««'<«, on
documents and the ruling or judgment objected to as may be mw»t.
necessary to raise the question for the decision of the Court of
Error and Appeal ; and the case so stated and settled shall bo
forthwith delivered by the appellant to the Clerk of the Court
of Error and Appeal, and the cause may, after the security
required to be given by the appellant shall have been duly
allowed, be set down for argument.
XXVIII. The appellant shall deliver to the said Clerk at^PP«"»"t*» c*^v y^^t"^
..„■,, . doliTercoplM ,
least four clear days before the day appointed for hearing the"' Judgment "•'='• ^^ '"J»
argument, for the use oi the Judges, a copy for each of the ^'»«'> *«»* to
Judges, of the transcript of the Judgment or of the case men-
tioned in the last section, as the case may be, or in default
thereof the appeal may be dismissed with costs.
XXIX. In case of the death of one of several appellants, acasoof
suggestion may be made of such death, which suggestion shall of several °*
not be traversable, but shall only be subject to be set aside if p?ovidSi for.
untrue, and the proceedings may be thereupon continued at
the suit of and against the surviving appellant, as if he were
the sole appellant.
XXX. In case of the death of the solo appellant, or of all Case of
the appellants, the legal representative of the sole appellant, or appellant or
of the last surviving appellant may, by leave of the Court orahn'tsp^Svi-
Judge, enter a suggestion of the death, and that ho is such
legal representative, which suggestion shall not be traversable
but shall only be subject to be set aside if untrue, and the
proceedings may thereupon be continued at the suit of and
against such legal representative as the appellant, and if no
such suggestion shall be made the respondent may proceed to
an affirmance of the Judgment according to the practice of
the Court, or 'take such other proceedings as he may be enti-
tled to.
XXXI. In case of the death of one of several respondents, 9*80 of f'^
* ^ 'deuthofone «^« ■ ' 'i
a suggestion may be made of such death, which suggestion of several ^^g
*^->.
;^r
*^* ''tVt? f)^. Cum of
724
proTidcd for.
donth cf Bolo
rmipoudont.
or of all res-
pondentK,
proTiUtxl for.
Case of mar-
riage of to-
male appel-
lant or ref-
pondent, pr(V
Tided fur.
'<.<?.<•/ 1
Appeals from
Chancery.
c>^ 4 _;> Mode Instl-
' ^ appeaf from
5 ^,i/ » decree or
order.
Notice to op-
posite party.
Petition in
appeal not to
be auBwered,
but parties
to attend and
argue the
case, at the
time appoint-
ed.
ERROR AND APPEAL ACT. [S8. XXxH-XXxir.
shull not bo traversable but shall only bo subject to bo sot
aside if untrue, and the proceedings may be continued
against the surviving respondent.
XXXII. In ca.se of the death of a solo respondent or of
all the respondents, the appellant may proceed upon givin"
one month's notice of the appeal, and of his intention to con-
tinue the same as to the representative nf the deceased respon-
dents, or if no such notice can bo given, then by leave of the
Court or a Judge, upon giving such notice to the parties
interested, as the Court or Judge may direct.
XXXIII. If a woman being appellant or respondent shall
marry pending the appeal, and Judgment shall be given for
her, execution may thereupon be issued in the Court below
by the authority of the husband, without any suggestion or
Writ of Revivor, and if Judgment be given against her, such
Judgment may be executed in the Court below against the
wife alone, or by suggestion or Writ of Revivor pursuant to
the Common Law Procedure Act, 1850, Judgment may be
obtained against the husband and wife, and execution may
issue thereon.
And as to appeals from the Court of Chancery j Be it
Enacted as follows :
XXXIV. Every party desirous of appealing from any
Decree or Order in the said Court of Chancery, shall file a
petition of appeal to be in the form contained in Schedule A
to this Act annexed (No. 3.) with the Clerk of the Court of
Error and Appeal, and a copy thereof, together with a notice
of the hearing of the appeal, shall be served on the respon-
dent, his Solicitor or agent, at least two months before the
time named in such notice for the hearing of the appeal, and
such petition shall not be answered, but at the time named in
the notice of the parties must attend to argue the appeal, and
after the filing of the petition and service of a copy thereof,
and of the notice aforesaid, proceedings shall go on as if the
petition had been answered and the time named in the noticp
had been appointed by the Court for hearing the appeal.
99. XXXV-XXXvii.] APPEALS FROM CHANCERY.
725
XXXV. In appeals from any decree or order of the Court w"*"*" «'»•»« 4.^
of Chancery, it shall be the duty of the appellant to bring the "»•"•' «»« * '^ '
same to a hearing within the time following, that is to say : upon hiring. ^M"^
appeal from any decree or decretal order ; within one year from
the pronouncing of such decree or decretal order; and upon
appeal from any interlocutory order, not being a decretal order,
within six calendar months from the pronounciii"- of the same
or within such further time as may be allowed for that pur-
pose by the said Court of Error and Appeal, or by the Court
of Chancery or a Judge thereof, upon special grounds shewn to
the satisfaction of the Court or Judge granting the same :
Provided always that as to any decrees or orders which, under ProvUo; dc
any general orders of the Court of Chancery, do not become rt^koned
absolute upon the same being pronounced, the time limited del??,^'^,'"'
for appealing therefrom shall be computed from the time when Staorute**"*
the same shall have become absolute.
And with respect to the giving security in cases of appeal Appoain to
Privv Coiin*
to Her Mijcsty, in Her Privy Council, and to costs in suchcu.
cases of appeal ; Be it enacted as follows :
XXXVI. Every Judge of the Court of Error and Appeal Any judg* ^
shall have authority to approve of and allow the Bond or other of Ap%ai"
security to bo given by any party who intends to appeal to Her may miow
Majesty in Her Privy Council, whether the application for&o! " '
such allowance be made during any of the terms appointed for
the sitting of the said Court, or at any other time : Provided proTiso; ap-
always, that every Appeal to Her Majesty in Her Privy Coun- S^ado^vithi'n
oil shall be made and entered there within six months from HmrMd'^'"
the date or time of the allowance of said Bond or other secu- 1" 'a^'a^lXn.
rity, and pressed to a hearing and conclusion there with all
reasonable speed, in default whereof the Court in which the
Judgment shall have been originally pronounced may, in its
discretion, by rule of the same Court, order proceedings to be
had and pursued upon the Judgment of the said Court of
Error and Appeal as if such Judgment were and stood con-
firmed by Her Majesty in Her said Privy Council at the time
of the making of such rule.
XXXVII. Any costs awarded by any decree or order ofherRaooverir of
m
6Z- '
lih
ii
Ij ?^
in-
1, ■ ^
1
t
Win
Ct.J
sA-.r/
ft^
726
4mU wMilod
KIlROn AND API'KAL ACT.
[s. xxxviii.
^/■•^
Majesty, in I Tor Privy Council, upon nn Appeal from thn Piud
Court of Error nnd Appeul, hIiuII be rocovcrnblo by tlio sniiio
process as costs awarded by the said Court of Krror and Ap.
peal.
Ruioi nndtr And in order to enable the Jud«j;eH to carry this Act
thoroughly into effect by making rules and regulations, and to
frame all necessary proceedings for that purpose ; ]Jo it enacted
as follows :
WfT-JudKCi In
'■ Krror and
^ Appeal to
make rule*
fbr carry log
thin Act into
•ffeet, and
tariff of fiiM
nndar it.
Provlm; pre-
wnt rules to
apply until
aftored.
XXX VII I. It shall be lawful for the Judges of the said
Court, or ony live or more of them, of whom the Chief Justice
of the Court of Queen's Bench and the Chancellor bhall be
two, from time to time to make all such general rules and
orders for the effectual execution of this Act, and of the inten-
tion and object thereof, and for fixing the costs to be allowed
for and in respect of proceedings in the said Court, and for
regulating the different proceedings in appeal, as to thorn may
seem expedient for any of the said purposes; ond also from
time to time to alter and amend any of the existing rules, or
any rules to be made under the authority of this Act, and to
make other rules instead thereof: Provided always, that until
such rules arc made, the present rules and the existing prac-
tise and mode of proceeding of and in the said Court, except
so far as changed, modified and superseded by the provisions
of this Act, shall continue and remain in force.
"-=■'(
FORMS. 7ST
SCHEDULE A.
REFUIIUUD TO IN TIIK yoilKOOINQ ACT.
Nol.
In the (Q. B. or C. P.)
Tho day of in the yeftr of our Lord, 18
{The day of lodging note of Error.)
A. D. ond C. D.
Tho plaintiff {or defendant) saya that there is error in law in tlie rooord and
proceeiiingH in this action, and the defendant (or pluintUr) aays that there is no
error therein.
{Signed)
!i, 11/ V.lll 1
A. B. Plaintiff.
(or C. D. Defendant)
(or E. F. Attorney for Plaintiff or Dofondant.)
No. 2.
.' yi
The
day of , in tho yonr of our Lord, 18
{T/ie day of making the entry on the Roll.)
The plaintiff {or defendant) says that there is error in tho above record and
oceedlngs, ana the defendant {or plaintiff) says there ia no error therein.
procee
f
I
\ ('
No. 3.
IN TUE COURT OF ERROR AND APrBAL.
• »
Between A. B. Appellant, and C. D. Respondent. .! , • i
To the Honorable the Judges of the said Court.
The petition of the said A. B. sheweth :
That a Decree (or Order) was on pronounced by Her Majesty's
Court of Chancery for Upper Canada, in a certain cause depending in the said
Court, wherein your petitioner was plaintiff {or defendant) and the above named
C. D. was defendant {or plaintiff), which said Decree {or Order) has been duly
entered and enrolled.
That your petitioner hereby appeals from the said Decree {or Order) and
prays that the same may be reversed or varied, or that such other Decree {or
Order) in the premises may be made as to your honorable Court shall eeeu
meet. '
And your petitioner will ever pray, &c.
{Certificate of Counsel to be added.)
h ' n
i':^'
i
ki.,:.i^
:.i J
20th victoria, cap. 57
U e.
V
An Act to amend the Common Law Procedure Act, 1856, and
to facilitate the remedies on Bills of Exchange and Pro-
missorj/ Notes.
[Assented to 10th June, 1857.}
ProamWe. Her Majesty, by and with the advice and consent of the
Legislative Council and Assembly of Canada, enacts as follows :
^srsr ^-^ce^taof the I. The Clerks of the Crown and Pleas, the Clerk of the
piMiTi^ Process and the Deputy Clerks of the Crown and Pleas in the
tiM.'a^''^e Courts of Queen's Bench and Common Pleas in Upper Canada,
ProcMaf to** shall, within two calendar months after this Act shall come
wUhiTa^MV- i^*o force, or within one month next after being appointed to
foiwh™Vur-*^y ^^ *^® ^^^^ offices, give security to Her Majesty, Her
5*!litamonnt Heirs and Successors, in such sum, and with so many sureties
*"• and in such form as the Governor in Council shall direct, con-
ditioned for the dve performance of the duties of their office
and for the rendering of the quarterly accounts and returns
required from them by law, and for the due payment to the
Receiver General of this Province, of all the fees, dues,
emoluments, perquisites and profits received by them on
account of their said offices respectively, and for and on account
of any duty or service done and performed by them respectively,
^ in thoir said several offices ; and the neglect to give such
gi'o •»«•» security by any such Clerk or Deputy Clerk or to render quar-
Tacate their terly returns or to pay over all such moneys within twenty
ProTifo.
days next after each quarterly day, shall ipso facto render his
appointment void, and vacate his office : Provided that such
avoidanod.shalLpot annul or affect any at, matter or thing
done by any such Clerk or Deputy Clerk, during the time that
he shall actually hold his appointment.
II. The Governor of this Province shall approve of the
^.<!». cr A. / ' Bubli«ct*toa^ security and sureties to be given by the said Clerks and Deputy
f\a rn^ Cuor.^''*' Clerks, (the Judge of the County Court first certifying his
C#w ^/i->— £_ Bonds and
7^^ ->/« ^JlV^guretleg tobe
(O
ss. in, iv.]
BILLS AND NOTES.
729
L«->-l
sic
approval in writing of the security and sureties to be given
by the Deputy Clerk of the Crown for his County,) and such
securities shall, as soon as they are so executed and approved,
be duly recorded in the manner provided by the third section Bonds to be
of the Statute passed in the session of the Provincial Parlia-""/^"*^**^,^
ment, hold in the fourth and fifth years of Her Majesty's "• ^^*
Beign, chaptered ninety-one, and then deposited in the office
of the Inspector General of Public Provincial Accounts; and
if any surety in any such security shall die or cease to reside be given in
in Upper Canada, or become insolvent, it shall be the duty A^ofasure^
of such Clerk or Deputy Clerk, within one month of his ^^'
knowledge of the fact or after being thereto required by the
Inspector General to give a new security, in manner herein.
before provided, and the omission to give such new security shall Failure to
render the appointment of the Clerk or Deputy Clerk go *'"''* ««<=«•
omitting, void.
' III. Every Deputy Clerk of the Crown shall, within twenty- Deputy
four hours after notice in writing delivered to him at his office crown to *
for that purpose, enclose, seal up and transmit by post to the Jvigf^^^
proper principal office at Toronto, addressed to the Clerk J^^*^ „ ^^
thereof, any record of Nisi Prius in his custody to be^^^sMied
mentioned in such notice, together with all eAibits filed at ^^1""^"^"
the trial, and in default thereof, he may be adjudged guilty of
contempt of Court, and be dealt with in the discretion of the » conJ^,^^*
Court accordingly. And if, after such notice, the Nisi Prius
record shall not be in Court at the time of moving any rule ^^^^^ such
requiring a reference thereto, the party moving may, on filing ty way move
an affidavit of the service of notice, and that the record, on record be not
in Court ;
search, has not been found in the said principal office, be allowed first flUngaf-
1 . flduvitofno-
by the Court to move any such rule without the production of tice.
the Record of Nisi Prius.
tho first day of July, in the year of Formol^m-' ^^^ ^
■^ mons in ac-
'il
1 )
. i
y.
in ter iBt July,
either of the Superior Courts of Common Law, within six
S tions on Bills •'?^~^' f AA
or Notes, af- {tzi^ lii e. \]lx.fl%.
"i^^ Lii)
ff
P,
780
COMMON LAW PROCEDURE ACT, 1857. [sB. V-vii,
^ $««^ «««. kieS
For what
ment may*be ™onths after the same shall have become due and payable, may
signed on fee by Wilt of summons in the special form contained in the
yice, unless Schedule to this Act annexed, numbered one, and endorse aa
obtain leave ia therein mentioned : and it shall be lawful for the Plaintiff
to appear , »»<.»ut<ii»
and do ap- on filing an affidavit of personal service of such writ within
the jurisdiction of the Court or an order for leave to proceed
aa provided by the Common Law Procedure Act, 1856, and
a copy of the writ of summons and the endorsements thereon,
in case the Defendant shall not have obtained leave to appear,
and have appeared to such wrii, according to the exigency
thereof, at once to sign final judgment in the form contained
in the Schedule numbered two, to this Act annexed, (on which
judgment no proceeding in error shall lie) for any sum not ex-
amount 4c. ceeding the sum endorsed on the writ, together with interest to
the date of the judgment and a sum for costd to be fixed by a rule
of Court, unless the Plaintiff claim more than such fixed sum, in
which case the costs shall be taxed in the ordinary way, and the
Plaintiff may upon such judgment issue execution at the expi-
ration of fifteen days after such judgment has been signed.
V. A Judge of either of the said Courts, or a Judge of a
Se"obta?ned Couuty Court, shall upou application within the period of
by defendant gj^jggj^ days^from such servico, give leave to appear to such
writ, and defend the action on (he Defendant paying into
Court the sum endorsed on the writ, or upon affidavits satis-
factory to the Judge, which disclose a legal or equitable
defence, or such facts as would make it incumbent on the
holder to prove consideration, or such other facts as the Judge
may deem sufficient to support the application, and on such
terms as to security or otherwise as to the Judge may seem fit
Judgment VI. After judgment, the Court or a Judge may, under
special cir- special circumstauccs, set aside the judgment and if necessary
«am«tanoe8, '■ , • i ,• 1 • 1 ,
te let aside, stay or sct aside execution, and may give leave to appear to
the writ, and to defend the action, if it shall appear to be
reasonable to the Court or a Judge so to do, and on such terms
as to the Court or Judge may seeiu just.
Depooit of VII. In any proceedings under this Act, it shall be conir
Ind wJurity poteut to the Court or a Judge to order the bill or note sought
Execution.
How leave to
ill
If
S3.\ viii-xi.]
EQUITABLE DEFENCES.
731
to hQ proceeded upon to be forthwith deposited with an officer ["Jo^J^^^
of ^he Court, and further to order that all proceedings shall
bo stayed until the Plaintiff shall have given security for the
costs thereof.
■VIII. The holder of every dishonored Bill of Exchange or ^»""« '*™®-
•' o dyforexpen'
Promissory Note shall have the same remedies for the recoverv*''*°'P''<'t«**
, . , . . damages, &c.
of the expenses incurred in noting or protesting the same for as for
° amount
tote.v X
non-ticceptance or non-payment, or otherwise, or of damages bui or Note.>
wherd damages for non-payment are by law recoverable, by >\,
reason of such dishonor, as he has under this Act for the re- r\ VV
covery of the amount of such bill or note.
IX. The holder of any Bill of Exchange or Promissory Note f^" pSm.'®**^
may proceed against all the parties to such bill or note under Notem»y
this Act in one action, in conformity with the provisions of action
the Acts of the Parliament of Upper Canada and of this
Province, enabling the bringing a ioint action against all
parties to any Bill of Exchange o.' V Ts^ssory Note
And with respect to proceedings f
Be it enacted as follows :
X. The two hundred and second section of the Common of^jg""^" y
Law Procedure Act, 1856, is hereby repealed ; and during c-^^^ repealed
the lives of the parties to a judgment or those of them during ^'"on n»'''i«-
whose lives execution may at prescni issue within a year and
a day without a scire facias, and within six years from the
recovery of the judgment, execution may issue without a re-
newal thereof.
Aod with respect to Equitable defences, Be it enacted as KqiiitaWe
follows
XL
. evival of judgments, Revival of
•' o ' Judgments.
(* <-?-*'/^ 2.-2.
Defeucos.
The two hundred and eighty-seventh section of the Section 287
19, 20 V. c.
Common Law Procedure Act, 1856, and the words placed «, repealed,
and now pro-
between that and the next preceding section, are hereby vision made.
repealed; and after this Act shall come into force it shall be
lawful for the Defendant, or the Plaintiff in replevin, in any
cause in either of the Superior Courts, in which, if judgment tiMing*to
were obtained he would be entitled to relief against such judg- Uploaded.
meat on equitable grounds, to plead the facts which entitle
him to such relief by way of defence, and the said Courts are
m\
%\
f:--
H\
I.
r
1
R
^IPE;
\\
:^'
1
>
W^
1 \'i'
:■ ■ 1
•J i' ' ..1.
r
1 1
'i '
1
^i
; A>->-'»lCt.i "^ttf.
OmX%. k
2?
Olm(^^
(imJC
Arbitration,
P. directing
reference at
trial, may do
eo lu tiia
manner pro-
Tided by sa.
84* 85 of 19.
20 Vic, c. 43,
and powers
and proceed-
ings of Arbi-
trators to be
as undor ss.
80 A 87.
r o
% V-
^ '2.1^
732 COMMON I AW PROCEDURE ACT, 1857. [SS. xii-^Jv.
hereby empowered to receive such defence by way of plea, Pro-
vided that such plea shall begin with the words " For defepnce
on Equitable grounds/' or words to the like effect.
And as to reference to arbitration ordered at the trial ;| Be
it enacted as follows :
[60 Judge at K XII. The Judge at Nisi Prius directing any reference u/der
the one hundred and fifty-sixth section of the Common iLaw
Procedure Act, 1856, may direct such reference, if he/sLall
see fit to do so, in like manner as he has power to do under
the eighty-fourth and eighty-fifth sections of the said Act, and
every arbitrator so appointed at Nisi Prius shall be subject to
the provisions of the said sections, and shall have the powers
expressed in the eighty-sixth section and be subject to the
same regulations as are mentioned and provided in regard to
arbitrators in and by the eighty-seventh section of the said
Act.
And as to trials at bar, Be it enacted as follows :
XIII. The Plaintiff or Demandant, and the Defendant or
Tenant, respectively, in any action or suit whatever commenced
or brought, or to be commenced or brought in either of the
Courts of Queen's Bench or Common Pleas for Upper Canada
may, in the Term next after issue joined apply to the said
Courts respectively for a trial at bar, and each of the said
Courts respectively may, in its discretion, upon hearing the
parties, grant or refuse the same.
XIV. In all cases in which the Crown may be actually or
immediately interested, a trial at bar, may bo had as of right
upon the same principle, and be regulated and governed thereby
as in similar cases in England.
Trial at Bar
may he de-
manded and
granted for
caoM.
^•»v, 'bted Xiv-s "^^ ^ >"»<* of
a...c;.,g^ nghtin
*' Crown cases.
proceec
the pra
but if
order
••n^ ftVttt fr^^ n^fml'^'be ^^' ^^ ^"^ *"*^ "' ^'"^ ^^^^^ ^^ directed by either of the
*«-.<•. e ^ It had. said Courts, it shall be competent to the Judges of such Court
^ "^ ^ to appoint such day or days for the trial thereof as they shall
t think fit, and the time so appointed, if in vacation, shall, for
I the purposes of such trial, be deemed and taken to be a part
of the preceding term.
leged
less th
ment b
case si
debtor
may b(
I
i
8. xvi.]
PROCEEDINGS AGAINST GARNISHEES.
788
And as to proceediDgs against Garnishees ; Be it enacted as <'*"•'•'»*«■•
follows :
XVI. "When the amount claimed as due from any garnishee ^"i** o'<*er '-^'^ s^*t/*>-^*<
,111 .1.1..,.. „ Bhallbemade i-'/j. /> ^ g -2 .tz
shall be within the jurisdiction of any County or Division when the _„' »■'/•'
n **U ixi J 4iU 1.11 1- amountls ^?^«J'V,*y*-
Gourt, the order to bo made under the one hundred and nine- within the </2y- ~
jiiiisdiftion
'Vii|„Kt,, J
ty-fourth section of the Common Law Procedure Act, 1856,of a County /^^^ ^^a
shall be for the garnishee to appear before the Judge of the ckmrt ^°^ ^
County Court of the County within which the Garnishee re-
sides — at some day and place within his County to be appointed
in writing by such Judge — and written notice thereof shall be Not'ce to
given to the garnishee at the tim of the service of the order,
and if the garnishee does not forthwith pay the amount due
by him, or an amount equal to the Judgment debt, and does
not dispute the debt due or claimed to be due from him to the
Judgment debtor, or if he does not appear before the Judge
named in the order at the day and place appointed by such
Judge, then such Judge may, on proof of service of the order
and appointment having been made four days previous, make
an order directing execution to issue out of the County Court „
J. . . 7 . Execution
or out of a Division Court according to the amount due, and from County
° . ' orDiTi^lon
which order shall be sufficient authority for the Clerk of Court, if the
either of such Courts to issue execution without any previous does not dis-
writ or process, to levy the amount due from such garnishee ; debt,
and the Sheriff or Bailiff to whom such writ of execution shall
be directed, shall be thereby authorized to levy, and shall levy
the amount mentioned in the said execution, towards satisfac-
tion of the Judgment debt, together with the costs of the
proceeding, to be taxed, and his own lawful fees, according to
the practice of the Court from which such execution issues j
but if the garnishee disputes his liability, such Judge may
order that the Judgment creditor shall be a liberty to proceed
against the garnishee according to the usual practice of the Jf hed^sputes
County or Division Court as the case may require, for the al- **** •^®*'**
leged debt or for the amount due to the Judgment debtor if
less than the Judgment debt, and for costs of suit, and pay-
ment by or execution levied upon the garnishee, in any such
case shall be a valid discharge to him against the Judgment
debtor to the amount paid or levied, although the proceeding
may be set aside or the Judgment reversed.
^■■\
U
"■: %^ ' \
■^ Hi
■fSm
!J
t'
%
li
784
COMMON LAW PROOEDURE ACT, 1857. [Sj. XVii-XlX.
|ji And with respect to confessions of judgment and to judg-
;j! meats and the registration thereof; Be it enacted as follows :
£r>x }^i fsr-x/i^i^^^ /' XVIH. No confession of judgment or cognovit actionem,
eh. ax^^^ thtaActtobe^y ""J Person, shall be valid or effectual to support any judg-
/ registered, mgnt or Writ of exccutiou, unless the same, or a sworn copy
thereof, shall be filed of record in the proper office of the
Court in the County in which the party giving such confession
of judgment or cognovit actionem shall reside, within one
month after the same is given ; and a book shall be kept in
every such office, to be called the Cognovit book, in which
shall be entered the names of the plaintiff and defendant in
every such confession or cognovit, the amount of the true debt
or arrangement secured thereby, tho time when judgment may
be entered and execution issued thereon, and the day when
such confession or cognovit, or copy thereof, is filed in the
said office ; and such book shall be open to inspection by any
person during office hours, on the payment of a fee of one
shilling
Confessions XVIII. No confcssiou of judgment or cognovit actionem
fciven before given before the passing of this Act, which shall be still un-
un8»ti8fied satisfied when this Act comes into effect, shall be valid and
tcred '**^ effectual to support any judgment or writ of execution, unless
the same, or a sworn copy thereof, shall be filed of record as
aforesaid within four months after the passing of this Act ;
and the same entries shall be made iu respect of such confessions
or cognovits, in the Cognovit Book, as by the next precceding
section are required in respect of confessions or cognovits given
after the passing of this Act.
4bw xi^Ji ^^Registration XIX. Evcry judgment registered against land in any County
%L*.c/^^rt^ tobindknd shall ccasc to be a lien or charge upon the land of the party
years from against whom such judgment has been rendered, or any one
w^nryear claiming undor him, in three years after such judgment has
of'thisTct"^ been registered or within one year after the passing of this
u°ed? "^'^ -^^^j unless before the expiration of the said period of three
years, or within one year after the passing of this Act, such
judgment shall be re-registered; and such lien or charge shall
cease whenever the period of three years shall at any time be .
allowed to elapse without a further re-registry.
%^*
■' I
gs. xx-xxii.]
EXECUTION.
785
III p 'ill" r
is
i
XX. Any judgment registered against land shall and Hia,yjJ^8i8tiryof Cff,, j,, ^
be discharged from the registry of the County where the same ™»y ^<w»- ft ^ . ^J^ X^
is registered, on the production to the Registrar of such County e^Jiiicate of ^ ^^ z/Vif y\
of a certificate signed by the judgment creditor, or, if more creditor. ^^^ ^
than one, by any one of them, his executors, administrators or / /'
assigns, to the following effect :
« I do hereby certify that a judgment rendered in favour of Fom and
A. B. against C. D., for the sum of £ , and registered ^rtm^to.
in the Registry Office of the County of . ' been
discharged."
And such certificate shall be proved to the Registrar by the
affidavit of one subscribing witness who has witnessed the ex-
ecution of such certificate, which affidavit may be taken before
any person before whom any affidavit for the registry of any
deed or other instrument can be taken : Provided always,
that the registry of a judgment may also be discharged in the
manner now provided by law.
And in order to facilitate the conduct of suits ) Be it enacted
as follows :
XXI. In any action in any of the Superior Courts of Com-po^erof ^^*^^^^^ f^r>-
mon Law, when the attorneys of both plaintifi"and defendant j^^go when i/?J'y/^^_
reside in the same County, the Judge of the County Court ^ygreJi^ein, —
of such County may issue summonses and orders for'*'«^""*y-
copy or inspection of documents and particulars of demand SM^\/y - a^i.'-^
or set-olF security for costs, and time to plead, with the same /^ iru /7'i', §/y^
effect and authority as if such summonses and orders were
issued by any Judge of either of the said Superior Courts.
And with respect to exosution ; Be it enacted as follows :
XXII. After this Act shall come into force, the sheriff or gheriff^a^l-Jl\f7i^/'
other officer having the execution of any writ of fieri /«cias*„^*^°^*y .
against goods sued or to be sued out of either of the said Courts ^onlJ"' ^^ ***»(•« w*
or out of any County Court, or of any precept made in pursuance / <• 1 Vi« , II fi ^ fZ,
thereof, may and shall seize and take any money or bank notes CkUQ (UcA ' S9^
(including any surplus of a former execution against the de-
fendant or party,) and any cheques, bills of exchange^ promis-
sory notes, bonds, mortgages, specialties or other securities foe
1 '^
I (■
€:
f
...,,.>
786
COMMON LAW PROCEDURE ACT, 1857.
8. XXIM.
the exeou-
tion.
Paymenta
thereon to
the Sheriff
to be valid.
-. *1
money belooging to the person against whose effects such writ
to'bo'^Sd"* oi fieri facias shall be sued out, and may and shall pay or deliver
tiikln "'"*{*"*' *^° party suing out such execution, any money or bank
notes which shall be so seized or a su£Bcient part thereof, and
may and shall hold any such cheques, bills of exchange, pro-
missory notes, bonds, specialties or other securities for money
as a security or securities for the amount by such writ ot fieri
now the facias directed to be levied, or so much thereof as shall not
Mcnrities ...
xotzttd shau havo been otherwise levied or raised, and may sue in the name
be dealt , / •'
with. of such sheriff or other officer for the recovery of the sum or
sums secured thereby, if and when the time of payment thereof
shall have arrived; and the payment to such sheriff or other
officer by the party liable on any such cheque, bill of exchange,
promissory note, bond, specialty or other security with or with-
out suit, or the recovery and levying execution against the
party so liable, shall discharge him to the extent of such pay-
ment or of such recovery and levy in execution, as the case
may be, from his liability on any such cheque, bill of exchange
promissory note, bond, specialty or other security ; and such
sheriff or other officer may and shall pay over to the party
suing out such writ, the money to be so recovered, or such
part thereof as shall be sufficient to discharge the amount by
such writ directed to be levied ; and if, after satisfaction of the
amount so to be levied together with sheriff's poundage and
SurpiiMtobe expenscs, any surplus shall remain in the hands of such sheriff
partya^inst or othor officcr, the same shall be paid to the party against
exuRution whom such Writ shall be so issued ; provided that no such
**" ■ sheriff or other officer shall be bound to sue any party liable
Sheriff not ii i.'Mr"i. • xii
bound to Bue upon any such cheque, bill ot exchange, promissory note, bond
uat "^cured gpg^j^jj.y ^^ other sccurity, unless the party suing out such ex-
ecution shall enter into a bond with two sufficient sureties for
indemnifying him from all costs and expenses, to be incurred
in the prosecution of such action, or to which he may become
f liable in consequence thereof; the expense of such bond to be
deducted out of any money to be recovered in such action.
.Apparel, XXIII. The ueccssary wearing apparel, the bed and bed'
empt«d*'from tli^»g> ^Q^ 0^6 stovG and the cooking utensils, of a party against
execution.
Sheriff to
pay over
money ri so
paid to htm.
whom any writ of execution may be issued, or of his family.
88. xziv., zzv.]
DEBTORS IN CUSTODY.
787
'''.<'. ah. -LI
and also the tools and implements of his trade to the value of
fifteen pounds, shall be protected firom seizure under any
execution from either of the said Courts or from any County
Court
XXIV. Where a writ against the goods of a party has Cam in ^w, sf«9
issued from either of the said Courts or from any County cuuon^i
Court, and a warrant of execution against the goods of the oountTOoiut
same party has issued from a Division Court, the right to the c^urt at"th«
goods seized shall be determined by the priority of the time ofJI^nrttoi
delivery of the writ to the sheriff to be executed, or of the Jl^;,^**^;
warrant to the bailiff of the said Division Court to be executed ;
and the sheriff, on demand, shall, by writing signed by him or
his deputy or any clerk in his office inform the bailiff of the
precise time of such delivery of the writ, and the bailiff, on
demand, shall shew his warrant to any sheriff's officer; and
such writing pu^orting to be so signed, and the endorsement
on the warrant shewing the precise time of the delivery of the
same to such bailiff, shall respectively be sufficient justification
to any bailiff or sheriff acting thereon.
' '■>i! .
And with respect to debtors in close custody ; Be it enacted
as follows : - , *
XXV. In all cases in which the sheriff of any County or
Union of Counties shall take from any debtor confined in the
gaol thereof a bond under the provisions of the three hundred
and second section of the Common Law Procedure Act, 1856,
such bond shall in addition to the conditions in the said three
hundred and second section mentioned, contain a further con-
dition that the said debtor shall, within thirty days from the
delivery thereof to the sheriff, cause and procure the said bond,
or that to be substituted for the same according to the pro-
visions hereinafter contained, to be allowed by the Judge of
the County Court of the County or Union of Counties wherein
the debtor is confined, and such allowance to be endorsed
thereon by the said Judge ; and for this purpose the sheriff
shall, upon reasonable notice by the debtor given, cause such
first mentioned bond to be produced before the Judge, and
upon such allowance being so endorsed, the sheriff shall be
Y Y
fir-
1
-J
'■ ,1
F
1
i
'* :'■ !
1
. i
'''/^'
l-^\
S'f?,-
Further con-
dition in tho
bond— that
it sliall be
aliowed by
a CSounty
Judge with-
in 30 days.
4- ^
^7
Production
of the bond
to the Judge
for allow-
ance, Ac.
\%
Il
^^8 COMMON LAW rRooiicuaE ACT, 1857. [xxvi-xxviii.
(liHoliurgcJ from all responsibility roapccting such debtor, un-
Icaa such dob ^c bo again couKuittcd to tlie close custody of
such sherifFiu duo form of law; find the said bond uhall,upon
any broach of the above mentioned condition, bo assignable in
like manner and tlio like romodiea bo had thereon as it- pro-
, vidcd in respect of other breaches in the three hundred and
\i fifth section of the said Couimon Law Procedure Act cou-
j! tuiacd.
[■
je^w sirrt-vyv-AiiowBneeof XXVI. Such allowance shall bo made upon motion by the
!'*<•• 6 A bond to be on , , . „ ,,,.,„,
\ "b^ 7 A motion Bud ilohf.nr. niifl T.iiir r>Io:ir Hnva n(ifii-»n fhoronT all
?> / ti » 4* y
7
^^Z^-raotion and dobtor, and four clear days notice thereof shall be given in
after notice. , . i i . . ,». i • i i . ,
writing to the plaintin or his attorney, who may object thereon
to the sufficiency of the sureties; and if the Judge shall refuse
his allowance of such bond, then tlie debtor may cause another
bond made to the sheriff in the same terms and under the same
conditions, to be executed without any further application to
Its effects, the shcrift, and may move in like manner and upon the like
notice for the allowance thereof; and such boud, if allowed
and endorsed as aforesaid, shall be substituted for and take
place of and have the like effect in all respects, and the like
remedies shall bo had thereon, as the bond so first given to the
sheriff as aforesaid would have had upon the allowance thereof,
and such first given bond shall thereupon become void.
And with respect to interpleader ; Bo it enacted as follows :
XXVII. In all cases of attachment against absconding
**<''C^ "^o terpieaiiug. ^cbtors, the sheriff shull have the like right of interpleading
»»/** • t V /^ Jig jg provided in respect of writs of execution, and all the pro-
visions of law in that behalf shall in such cases apply.
'il And with respect to the service of writs ; Be it enacted as
follows.
i' Co-u Oic n r«e» not XXVIII. No fees shall bo taxed or allowed for the service
!i; R^ck'i.a Mr^M"o*f' of any writ whereby an action at law is commenced in either
I % 'S •'■^-^VVretura in-'^ °^ *'^® Superior Courts of Common Law or in any County Court
I ^"^^f /^ ^ dorsed. uulcss a return of the sheriff (or coroner, in ac-ions against the
sheriff) of the County in which such service is made, shall be
endorsed thereon, unless v;hen the sheriff shall have omitted
to serve the said writ within fifteen days after it has been de-
livered to him for service.
, C»*v^2cr? ^j-- Sheriff 'a
I Exception.
every y
and bet
Comajis,-
lost^ au
tllCJ Ki(it
sliull rc,
suJi Cl
to bo ua
bo the C
v.iiojii bi
"11 J to w
Courts
S3.
xxix., XXX.]
T£r:ms and ashizes.
739
•.4
I after the twonty-firet day of August f:;*'""'',^" "^ ^'<^ V^T fr^
ictiou of the Act of Parliunicut of tbis P'"'"-' ^^'n "•'^♦"'^ ^0^1%
XXTX. I'rom and
next the nineteenth sec ^. ^ ^. „ .
rroviiioo, passed in the twelfth year of Ilor Majesty's Reign, i''J7.
iutitulc<l, An A*l to nut/ce fnrtha' provmon/.r the admin 'H'
iraiioii o/Juiitire, hy the entabh'shmcnt of an additional Sn-
•pcrior Court of Common Law, and aho a Court of Error
(lud Appeal, in Upper Canada; and for ofhr 2>nrj>0'ie^,s\n\\\
he and tlio same id hereby repealed, and tbo terms of sitting
of tlio Court of Queen's IJeiioh and Common I'leas in Upper
Ciinadii, shall be as follows : Trinity Term shall begin ou thowud* tho
Monday next after tlio twenty -tlr.st day of Augusi, and .shall end a'Mi* c. ?!
on the Saturday of tlio ciiHuing week ; Michaelmas Term shall ?itI!r|Jrttr
begin on tho third ^londuy in November, and shall end on tho'
Saturday of tho ensuing v.'ock ; Hilary term shall begin on tho
first Monday in February, and shall end on the Saturday of
the ensuing week : and Easier Term shall begin on the third
Monday in May, and sliall cnl on the Saturday of the ensuing
week.
htlJ.
G«rvvS2a.7' ^
XXX. The one hundred and fifty-second and the one hun-Sprtimisisa c<n^sia.^
urea and nltv-tnird sections oi the (Jommon Law Procedure •.;<' v. c 4:j, ^, ,. ,„.
Act, 1856, arc horcby repealed from and after the last day ofiiftn Tiiuity '
Trinity Term next ; and thenceforth Courts of Assize and '''''•
Nisi IVms, of Oyer and Terminer and of General Gaol deli-
very shall bo held in every County or Union of Counties in which rouri«
Upper Canada, (except in that County or Union of Counties AV«riv,Ma
within which the City of Toronto is situate,) in each and Jheildfter
every year in the vacations between Hilary and Easter Terms ^^V'
aud between Trinity and Micliaolmas Terms, with or without jj^y ^e hHia •
cuinmisaions as to tho Governor of this Province shall seem o„t'j,^)„^|^'
be^t; and on such days as tho Chief Justices and Judges of '''"'^''"
tho s;tid Superior Courts of Common Law in Upper Canada
shall respectively name ; and if connnissions are issued, then who shau
such Courts shall be pio,.-idcd over by any one of the persons commissions '
to be named in such toninu,f>ions (among whom shall always"'''"'^'
bo the Chief Justices and Judges aforesaid, and any one of
whom being present shall always preside in tao said Courts,)
and to whom may be added such of the Judges of the County
Courts or of Her Majesty's Counsel Learned in the Law of
'■.«.
' i\
iU: ?'
And if no
•ommlwion
740 COMMON LAW PBOOXDUIUB ACT, 18G7. [s. ZZZi.
the Upper Oaoada Bar as ihall be named in any one or more
of Buoh oommissioDS, and who shall preside in the absence of
of the Chief Justices and Judges of the Superior Courts ; But
' if no such commissions are issued, then the said Courts shall
be presided over by one of the Chief Justices or of the Judges
of the said Superior Courts, or in their absence then by some
one Judge of a County Court, or by some one of Her Majes-
ty's Counsel Learned in the Law of the Upper Canada Bar,
upon such Judge or Counsel being requested by any one of
the said Chief Justices or Judges of the Superior Courts to
attend for that purpose ; and each and every of the said Chief
jndM!i,°*fl, Justices and Judges and of such Judges of the County Court
•^''qJJ^ and of such of Her Majesty's Counsel Learned in the Law,
presiding at any Court of Assize and Nisi Prius, or of Oyer
and Terminer and General Gaol Delivery shall and may pos-
sess, exercise and enjoy all and every the like powers and
authorities as have been usually set forth and granted in com-
missions issued for holding all or any of the said Courts ; and
it shall not be necessary to name any associate Justices in any
commissions of Oyer and Terminer and General Gaol Delivery
ooiSi^ona that may be issued, or that any associate Justices should be
Temtam"^ nominated or should attend or be present at any Court of Oyer
Deu^ry or ^^^ Terminer and General Gaol Delivery to be holden after
Oonrtobeid"^^^ day in this section mentioned; and all such Courts shall
nadar themj^Q jj]jq manner bo held in the County or Union of Counties
within which the city of Toronto is situate, three times in
each year, to commence on the Thursday next after the hold-
ing the Municipal Elections in January, on the second Mon-
day in April, and on the second Monday in October in each
P"^! year : Provided that nothing herein contained shall restrict
er to isBue the Govemor of this Province from issuing special commis-
■peoial oom- o <r
sions for the trial of any offenders when he shall deem it expe-
dient to issue any such commissions.
C^^SU^ ^ProTisiors of XXXI. The provisions of the Common law Procedure
t.^.t^/^^^^w^^o^v. ^^^^ ISbQ, and all rules of Court made under or by virtue
thereof, shall, so far as the same are or may be made applicable
extend and apply to all proceedings to be had or taken under
this Act, and the powers conferred on the Judges by that Act
AnooUta
JoatioM
[not
S
/
ply to pro-
oeedings
nnder this
Act ; rnlea
andlbraas
itoglTing
«. xzxii., xzxiii.]
roEMs.
741
shall be and are hereby extended to the makinir fVom time to *f*^^^
• II I t » M Which, majr
time all rulos, and new forms of proooedings necessary for ^ina^.
giving effect to this Act.
XXXII. The fourth, fifth, sixth, seventh, eighth, ninth o»rt»«n i^ .^^,j?«r|fr"
and thirty-first sections of this Act shall extend and apply to^otto apply ,^.*^ ^' *J ^
and be in force in the several County Courts in Upper Canada, Courti? ' _^*^J^^
and actions and proceedings therein respectively, as shall also ^ ?> i! —
the rules and forms already made or to be mode, as mentioned
in the said twentieth section, subject to the modifications
expressed in the second section of the County Courts Proce-
dure Act, 1856.
XXXIII. In citing this Act in any instrument, document short ntti*
or proceeding, it shall be sufficient to use the expression, '''^''^'^
'( The Common Law Procedure Act, 1857.
■i<t^« ^
SCHEDULE REFERRED TO IN THE FOREOOING ACT.
No.l.
Victoria, by the Grace of God, &o.
To C. D. of , in the County of
(PaocKss Seal.)
We warn you that unless within sixteen days after the service of this Writ on
you, inclusive of the day of such service, you obtain leave flrom one of the Judges
of our Court of Queen's Bench, or of Common Pleas (()r as the ease may be), at
to appear, and do within that time appear in our Court of
in an action at the suit of A. B., the said A. B. may proceed in Judgment and
execution.
Witness, &c.
Memorandum to be subecribed on the Writ.
N. B. — This Writ is to be served within six calendar months firom the date
hereof, or if renewed, from the date of such renewal, including the day ol' saoh
date and not afterwads.
Indorsement to be made on the Writ, before aervie<- thereof.
This Writ was issued by E. F., of , Attorney for the Plain-
tiff, or this Writ was issued in person by A. B., who resides »t (mention the City,
Town incorporated, or other Village or Township within which such Plaintiff r«-
sides). . i^'.!-yi}i.Ht;i <■
if
W'
1.^ i
i 1 I
Fi^
<i ni '
742
COMMON LAW PROCEDrRB ACT, 1857.
Indorsement.
The Pkintiff claims £ , principal and interest, (or £ bnlancs
of principal and interest) due to him as the ptiyee (ar "endorsee," &c.,) of a
Bill of Exchange, (or *' Proraissory Note," of which tlio following is a copy [here
Coj)t/ Bill of Exchange or Promissory Note, and all endorsements njwn it), and alto
shillings for noting (or "protesting," as the case may be,) and £
for damages tif damages be recoverable on the Bill under 12 Vict. chap. 76,) and
& for posts, and if the amount thereof be paid to the Pluintiif, or his
Attorney, within eight days from the service hereof, further proceedings Avill be
stayed.
* 1
Notice. , 1 ■ '
Take notice, that if the Defendant do not obtain leave from one of the Judges
of the Queen's Bench or Common Pleas, within sixteen days after having been
served with this writ, inclusive of the day of such service, to appear thereto, and
do within such time, cause an appearance to be entered for him in the Court out
of which this Writ issues, the Plaintifif will be at liberty at any time after the
expiration of such sixteen days to sign final judgment, forany sum not exceedirio'
the sums above claimed, and the sum of £ for costs, and issue execution
for the game.
Leave to appear may be obtained on an application at the Judge's Clinmberg,
Osgoode Hall, Toronto, supported by affidavit, shewing that there is a defence to
the action on the merits, or that it is reasonable that the Defendaut should bo
allowed to appear in the action.
Indorsement to be made on the Writ after service thereof.
This Writ was served by X. Y. en C. D., (the Defendant or one of the Defend-
ants,) on day, the day of ,18
(Signed,)
X. Y.
ii.
No. 2. -^ ■*,-■; ;';;7:;
In the (Q. B., or C. P.) ' t ,
On the day of ' , in tho year of oitr Lord, 18
Upper Canada, 1 A. B,, in his own person {or hy his Attorney)
to wit: / sued out a writ against C. D., indorsed as follows :
[Here Cojvj Indorsement ofPlainHJj'^s Claim.
And the said C. D. has not appenrcd, thorcfcre it ia considered that the said
A. B, recover against the said G. D. £ together with £ for
costs of suit.
\
/■f ,
S3. 1-lU.J
EQUITABLE DEFENCES.
'7AO
20Tn VICTOPtIA, CAP. 58.
An Act to alter and amend the Luis in relation to the Ui>i)cr
Canada Cuiinti/ Courts.
[Assented to lOtli June, 1857.]
Her Majesty, by and with the advice and consent of the preamble.
Legislative Council and Assembly of Canada enacts as follows :
With respect to the proceedings for the revival of Judg-
ments,
I. The two hundred and second section of the Common LaWc, on. i.,.
Set-. 202 of 0. (J^y , S"?of
Procedure Act of 1856, shall not extend to the County Courts ^■'•f;''^-i^50' ^-.g. ^u
in Upper Canada; and dv ng the lives of the parties to a J? County ii. § S£»/
' '-^_ ^ Courts.
Judgment, or those of them during whose lives execution may
at present issue within a year and w d;iy without scire facias Oiixer provi-
, , sioii made.
and within six years from the recovery of the Judgment, ex-
ecution may issue without renewal thereof.
And with respect to equitable defences ; Be it enacted as |
follows : '"' ' ' I
II. The two hundred and eighty-seventh section of thescc. 287ofc. C<m sZo^^j
Common Law Procedure Act, L'-'oG, and the words placed not to e'steua '^' ^^
between that and the next preceding section shall not apply couX? ■* ^^eV^cS/^l
or extend to the County Courts in Upper Canada ; and after
this Act shall come into force, it shall be lawful for the De- sion mJdT
fandant or the Plaintiff in leplcvin in any chuhc in any of the
said County Courts, in which if Judgment were obtained, ho
would be entitled to relief :;gaii!st .such Judgment on equitable ]-,,„nai,,e
grounds to plead the facts which entitle him to such relief by ^Jjl^^f'^ljlj^^b*
way of defence, and the said Courts arc hereby empowered to p'*'*'^^'*-
receive such defence by way of plea, provided that such plea
shall begin with the words " for defence on equitable grounds "
or words to the like effect.
And with reference to Arbiratioii ordered at the trial : Bo
it enacted as follows :
IIL That the Judge of every County Court at the sittings Appnint-^^^^'^X'^V
of the said Court for the trial of i;:suc?.' in fact, directing any wtntorg.un, ^AU:
F*!fKI t
744
COUNTY COUETS' PROCEDURE ACT, 1857.
[s. iv.
deri.l66ofC.
li. P. A. 1856,
and their
powera and
aaties.
Sections 10,
11,12,13, of C.
L. P. A. 1850,
to apply.
J u,
dty^ «»wi ifwv-
What order
■hall be made
when the
amoant
claimed ft<om
gamiaheeis
within the
juriadiction
of the DiTi-
Mkm Courts;
and proceed-
ings thereon.
reference under the enactments contained in the one hundred
and fifty-sixth section of the Common Law Procedure Act,
1856, may direct such reference, if he shall see fit to do so in
like manner as he has power to do under the enactments con-
tained in the tenth and eleventh sections of the County Courts
Procedure Act, 1856, and every Arbitrator so appointed at
such sittings, shall be subject, to the provisions of the said
sections, and shall have the power expressed in the twelfth
section of the last mentioned Act, and be subject to the same
regulations as are mentioned and provided in regard to Arbi-
tration in and by the thirteenth section of the said Act.
And as to proceedings against garnishees, Be it enacted as
follows :
IV. When the amount claimed as due from any garnishee
shall be within the Jurisdiction of any Division Court, the order
to be made iu actions in the said County Courts under the
enactments contained in the one hundred and ninety-fourth
section of the Common Law Procedure Act, 1856, (applied to
County Courts) shall be for the garnishee to appear before the
Clerk of the Division Court within whose Division the gar-
nishee resides, at his office at some day to be appointed in the
said order by the Judge of the County Court ; and the said
order shall be served on such garnishee, and if the garnishee
do not forthwith pay the amound due by him or an amount
equal to the judgment debt, and do not dispute the debt due
or claimed to be due from him to the judgment debtor, or if
he do not appear before the Division Court Clerk named in
order at his office at the day appointed by such Judge, then
such Judge may, on proof of the service of the order having
been made four ' days previous, make an order directing
execution to issue out of the Division Court of the Division
in which such garnishee resides, according to the amount due
and which order shall be sufficient authority for the Clerk of
the said Division Court to issue execution without any previous
summons or process, to levy the amount due from such gar-
nishee, and the bailiff to whom such writ of execution shall be
directed shall be thereby authorized to levy and shall levy the
amount mentioned in the said execution towards satisfaction'
person, (
that he i
VI. I
Canada,
tionof th
to such
thereof
Mayor oi
shall or
or seals
prima /
shall be
V, vi.]
COMMISSIONS FOR WITNESSES.
746
of the judgment debt together with the costs of the proceeding J^^^^
to be taxed and his own lawful fees ; but if the garnizhee p||*« ws iia-
dispute his liability, such Judge may order that the judgment
creditor in the said County Court shall be at liberty to proceed
against the garnishee, according to the practice of the said
Division Courts for the alleged debt or for the amount due to
the judgment debtor if less than the judgment debt, and for
costs of suit ; and payment by or execution levied upon the Paycent by
garnishee in any such case, shall be a valid discharge to him ais^ge
as against the judgment debtor to the amount paid or levied,
although the proceeding r"»y be set aside or the judgment
reversed.
And with respect to Commissions for the examination of
witnesses ; Be it enacted as follows :
V. When the plaintiff or defendant in any action now pend- in what cases <^^' sha (m^
ing or hereafter to be brought in any of the said County Courts sion may % la — -lO
,,,11. n • iv i !• - 1 \wxk'6 for the ^^ 7
shall be desirous of procuring the testimony oi any aged or examination
infirm person resident within Upper Canada, or any person who
is about to withdraw himself or herself out of the same, or who
is residing without the limits of Upper Canada, it shall and
may be lawful to and for any of Her Majesty's County Courts,
or for any Judge thereof, in vacation, upon hearing the parties
upon the motion of such plaintiff or defendant, to issue one or
more Commissions under the seal of any such County Court
to one or more Commissioners to take the examination of such
person, due notice being given to the adverse party to the end
that he may cause such witnesses to be cross-examined.
■^- " !.' ^
M'l " •
of witnesses.
!r
ass.!
ip
■ ./
\ JS jf;
■■1
■ii '!■■'..
' ■*
V^:\
!
% 7.Y
- \
i w
\\
i
VI. In case of witnesses residing without the limits of Upper Provision in c«r>, slcA if-v*~ ,
Canada, such Commission or Commissions, with the examina- ness be not ' " .^ !r, ^ ^
tion of the witness or witnesses taken pursuant thereto returned nada.
to such County Court, with an afi&davit of the due takin;;;
thereof thereto annexed sworn before and certified by the
Mayor or Chief Magistrate of the City or place where the same ,
shall or may be taken, close under the hand or seal or hands
or seals of one or more such Commissioners, shall be taken
frima facie to have been duly executed and returned and
shall be received as evidence in the said cause : Provided
.,,
I
746
COUNTY courts' PKOCEDURE ACT, 1857. [S3, vii, viii.
tV^ %.to.\ ^,ry~
pers, &c.
Proviso.
MQinTi' ^^' ^^''^"•y^j ^^^^ ^^^^ examiuation or examinations sliall not bo
not to 1)0 YQUfi or jfivon in evidence ia the said cause iu case the denonent
tain caaes. ov depoueuts respectively .shall bo living within Upper Canada
and of so; nd mind, memory and understanding at the time
such examination or examinations shall be offered to be given
in evidence, and provided it is made to appear to the Court
before which such examination or examinations ia or are put
in, that the same has or have not been duly taken.
County"' ^^^' '^^^ several County Courts in Upper Canada may issue
Courts to writs of suhpana ad tcstifiatndum to enforce and secure thp
Bummon imd -^ •' ^ ^ ~v.»v, mc
wiforce at- attendance of witnesses resident within Upper Canada, and also
witncssHs, writs of suhiKi'iia ditici trruin to enforce the attendance of
and the pro- ^ . i
ducti.iiiofpa- witnesses and the production of deeds and papers, and may
proceed against persons who having been duly served with a
subpoena shall disregard or disobey the same, with the same
poAVcrs, in like manner, and by the same mode of proceedino-
as belongs to and as is practised iu the Superior Courts of
Common Law at Toronto . Provided always, that every witness
shidl be entitled to the same allowance as if attending under
subpoena from cither of the said Superior Courts.
^itcAftrUje. l^^^l'^^^Z VIII. It shall be lawful for the Judges of the Superior
\™''^.'"*'-'»- Courts of Common Law at Toronto, or any three of them, fof
rill ul lees ii)r i j > v^^*-
tho County ^hom onc of the Chief Justices shall be one) and tlioy arc
hereby rcfiuircd to frame a table of costs for the several County
Courts in Upper Canada, and from time to time to ascertain,
determine, declare and adjudge all and singular the fees which
shall and m?iy be allowed to be ttdvcn by Counsel and Attorney
SherilTs, Coroners, and OlHcers of the said Courts respectively,
in respect of any business hereafter to bo done or transacted in
the said County Courts, as wf^ll as in all matters, cnnscs or pro-
ceedings depending in the said Courts as before the Judges
thereof, in all actions and proceedings within the jurisdiction
of such County Courts or of the Judges thereof; and the costs
and fees authorized by such table or by any amended table from
time to time made, and no other or greater, shall be taken or
received by any Counsel or Attorney, Sherifls, Coroners and
Officers of the said Courts, for any business by them respec-
: .-'^; .■.'■"lJ^,
;/
H-
ss.
ix-xi.]
COURT OF IMPEACHMENT.
747
tively done in the said County Courts or before the Judges
thereof; and the said Judges so fmining or altering such table jmiges may
of costs may, if they shall think fit, associate with them in couni>Ctourt
framing or altering such table anyone of the County Court them*in tva-
Judges already appointed or who may hereafter be appointed tiliff.*^®^*'*
under and in pursuance of the power and provision contained
and set forth in the tenth section of the Upper Canada Divi-
sion Courts Extension Act of 1853.
IX. The Judges of the Superior Courts of Common Law at j^^^^^ ^^^ c^rr^ i^*-2 1^
Toronto, or any three of them (of whom one of the Chief «]<*""«« ^"p«- '^-••'^'^ 22
rior Court & 'X'XC'^tliA
Justices shall be one) shall have power to extend and apply to J"'«8«» * -s^t^hl.
the several County Courts in Upper Canada, all or any of the Courts with
rules and orders made or to be made under any btatute now intious.
force in Upper Canada, with and under any modifications they
may deem necessary, and shall also have power to make such
rules and orders for and specially applicable to the said County
Courts as may appear to them expedient for carrying into
beneficial effect the laws applicable to the said Cftunty Courts
jind all rules and orders of the said Superior Courts that may Superior
hereafter bo made, shall, (unless the contrary be expressed hereafter
therein) be in force in and apply and extend to the several ply to counh
County Courts in Upper Canada, and actions and proceedings lusg^otherl'"
therein respectively, subject to the modifications expressed in ^^^ ^'°'
the second section of the "County Courts Procedure Act,
1856."
fl
X. The Judges of the several County Courts in Upper Ca-cntmty c^rn s'J't? ■S-<r^
during good S T ~
nada now holding office, as well as tbe Judges to be hereafter to hod oiBco '*''''
appointed, shall hold thoir offices during tbeir good behaviour ; bohsviom-.
Provided always that it shall be lawful I'br the Governor to re- proviso: for
move any such Judge for inability or misbehaviour when such jnSjiiity or^
inability or misbehaviour shall have been established to the ^'Ij^uy^*^*'
satisfaction of the Court by the next section constituted.
XI. There is hereby constituted and established a Court Courtfortry- c«>t. s2i*.? i?»r-
which shall possess all the incidents, powers and privileges oimentof «i / -/ -^
a Superior Court of Record, and be called the Court of Im- judges,
pcachnient, and such Court shall bo composed of the Chief
Justice of Upper Canada, the Chancellor of Upper Canada,
% / ^'
lu-i
m.
t48
COUNTY courts' PROCEDURE ACT, 1857.
[sa. xu.
IH
>t
ICc^v
Qovernor
may refer
casea of com:
plaint
aitaindt
County
Judges to the
■aid Court
ofarlrlt.
What points
the Court
■hall decide.
Judgment to
he oertiflcd
to the Gover-
nor la Coun-
cil.
and the Chief Justice of the Court of Common Pleas, and shall
hold its sittings at the City of Toronto as occasion may require
and the said Court may make such rules and orders as shall
from time to time be deemed necessary.
XII. In case any complaint for inability or misbehaviour in
office shall be preferred against any County Judge, if the Gov-
ernor shall find the same to be so sufficiently sustained and of
such moment as to demand judicial investigation by the said
Court of Impeachment, he shall direct such complaint, and all
papers and documents therewith connected, to be transmitted
to the Chief Justice of Upper Canada as President of the said
Court ; and thereupon the said Court shall appoint a day for
the meeting of the said Court, at such sittings or at any
adjournment thereof the Judges of the said Court shall proceed
to the trial of the charges laid and set forth in the said com-
plaint, and to the hearing of the parties complainant and
accused, or their counsel, witnesses and proofs respectively,
and shall adjudicate upon such complaint and charges, and, if
such complaint be for inability, shall determine if such inability
has been proved, and if it has, shall state in the judgment of
the Court the nature of the inability established, and if the
same be, in the opinion of the Court, of such a character as to
render it expedient to remove such Judge, and if such com-
plaint shall be for misbehaviour in oflSce, shall determine whe-
ther such Judge be guilty or not guilty of such misbehaviour
and if not guilty, still, has the conduct of such Judge been
censurable or unbecomiog ; and the judgment of the said Court
shall be certified to the Governor in Council, and shall be final
and conclusive to all intents and purposes whatsoever.
Power «t the And the said Court shall have power to award reasonable
uward costs, costs to be paid by one party to the other, according to the
nature of the adjudicature, viz : If the complaint be adjudged
to be false or vexatious, the accused shall be entitled to nis
costs of defence, if the conduct of the Judge complained against
(whether he be found guilty or not guilty) be adjudged to be
censurable and unbecoming, the complainant shall be entitled
to his costs of prosecution.
■/ 1
8s. xiii-xv.]
DEPUTY JUDGES.
149
XIII. In case oi the illness or unavoidable absence of anv I? ■"* <2«^ sIaI fm^
_ •' Ooart Sanlor .. ^ ,.< .,
. Court Senior
oneof the said Judges of the said Court, the Senior Puisne Judse^''°eJ*idKe
-,_._,.-_ ' „ ° maysitinkb-
of the Superior Courts of Common Law at Toronto, may act senceofchief
tL.(P.L'h.
/^
JoBtlce.
tt.C.O/r. f*r
%^ vs.
instead of Judge so ill or absent, and with the like powers as
aforesaid.
XIV. In and for each of the several Counties in Upper Ca- in OonntioB
nada, where there shall be only one Judge in discharge of the is no Junior
fanotions of Judge in the County Court, and it shall not bejudgefaBar
deemed necessary to appoint a second or junior Judge for such ?p^iXd to " ' '2.3 **
County, it shall be lawful for the Governor of this Province, SudJ^ta 'er-
firom time to time to appoint during pleasure some B lister at*^ **^*
Law of at least three years' standing at the Bar of Upper Ca-
nada, as Deputy Judge to execute and perform the duties of
Judge of the County Court in and for the County to which he
is appointed at any time or times during such appointment
when it may be necessary so to do by reason of the illness,
nnavoidable absence, or absence on leave of such Judge (or v
upon his demise until his successor shall be appointed,) and \
saoh Deputy Judge during such illness or absence (or vacancy
by death) as aforesaid, shall and may perform and disharge all '
the ordinary duties and functions of the Judge so ill, absent or
deceased as aforesaid, and all other acts and duties incident to the
office of County Judge, as fully and effectually as the Judge of
the County Court in whose place he may act might or could do ;
and such Deputy Judge shall have all the powers of the Judge mspowereas
so ill or absent as aforesaid ; and such Junior Judge and Judge.
Deputy Judge need not be Justices of the Peace to entitle them
respectively to preside as Chairman at the General Quarter
Se^ons \oi ihe Peace during the illness or absence of the
Senior Judge of the County Court as aforesaid, and in case the
Judge of the County Court so ill or absent as aforesaid, shall
also bo the Judge of the Surrogate Court for the County, such jobe Judge
Deputy Judge shall likewise during such illness or absence asc[,^]^'°**
aforesaid, have all the powers and privileges and perform all
the duties of such J udgc, as Judge of the Surrogate Court.
XV. And every Deputy Judge so to be appointed as afore- Deputy "^^^ ^^'^ r^
said, before he shall act as such, shall take an oath before some sworn.
i:^=
■ i : 1^'^^
.'A'
oue authorbed to administer the same, to the effect that he
•3'
(
\ ■ 'l
760
COUNTY courts' PROCEDURE ACT, 1857. [SS. xvi, Xvil.
yiW ns occasion may require, truly and faithfully according to
his skill and knowledge, execute the several duties, power and
Not to he de- trusts of the office without fear or favour ; but no such Peiiutv
barrud fl-om , . . » ./
practisius;. Judge shall be held to bo disabled from practising or currying
on the profession of the Law whilst holding Mich appuiutincut
as Deputy Judge.
And whereas it is expedient to alter the periods of holJing
the several Courts of Quarter Sessions of the IVace and County
Courts in and for the several Counties and Unions of Counties
in Upper Canada, Be it enacted :
.St^^rj"- Act7V.c.33 XVI. The Act passed in the scvenlh year of the reign of
from Int All- Her Majesty, iniituled, An A<t to fix the iwrlod for lujldhig
gust, 1867. ^j^^ Courts of Gcncval Quarter Sessions of tlic Peace and Lis.
trict Courts in tJiat part of the Province formerly Upper Ca-
vacla, is hereby renealcd from and after the first day of August
Times for ncxt after tho pagsing of tliis Act; and from and after that
Quifi't"? p.>3-'^''y ^''0 Courts of the Goncral Quarter iScs.siuns of the Peace
after ***"'"" ^'^ ^^^ ^^^ ^^^ several Counties and Unions of Counties in
Upper Canada, and the sittings of the said County Courts for
' the trial of issues in fact, shall be and are hereby directed to
be held on the second Tuesday in the months of JMareh, Juno
September and December in each year, respectively, any law
or usage to the contrary thereof in any wise notwithstanding;
Appoint- and it shall be lawful for the said Courts at their sittings iti
Sfastabkaf the month of March in each year to nominate and appoint a
High Constable and a sufficict.t r .ibcr of persons to f.erveth-
office of constable for iheir several Counties.
99w%j!ai.^ ^^v !?"«• Sofov. XVII. From and after the First day of August next, tlio
|*^>»«/x.^^ fr,,m'M"\u- third section of the Act passed in the ninth yerr of Her
^AshrV- ^"*' "'' Majesty's Reign intituled, An Act to amend en Act passed
during the la )tt Ses^sioii of thii^ Parliament, mtitided, An Aet to
amend, consolidate, and reduec into one Art (he several Laics
noiv in force establishing or reepdating the practice of Dis-
trict Courts in the several Districts in that part of this Pn.-
xince formerly Vpper Canada, is hereby repealed, and after
the said first day of August next, the several County Courts
Courts tiiero- in Upper Canada, shall respectively hold Four Terms in each
year \vhich shall severally commence on the first Monday nu
T«miB of
Comity
ss. X, xi.]
ACTS RErEALED.
751
t- fleets:
January, April, July, nncl Ootubor in cauli ycRr, atulsluill end
on the Suturday of the suuio wotlc.
XVEII. It shall bo lawful for each of tho Jud"es of thO'^^-'R"* ^ay ccyy '^la.i 4in^
sevoralUouuty Courts clunnu- each lerm, to!ippf)int one or morc'i'""". <"f(;'v- ^ ' ^^
wilhin a fortnight next ensuing the last day of such Term, on w't^"', *<••. in ^ (-
which ho will give judgment ; and the i<aid Judges respectively ii.iv.« won
on tho days appointed, may pit as ot lerni, for the purpose only mi;uLd.
of giving judgment and of making rules and orders in matters
which 'lave been moved and argued in such Courts : and all
Judgiuents, llules, and Orders which shall be pronounced and
nr.do on such days in pursuance of tho authority hereby given
shull have the same ofi'ect to all intents and purposes as if they
had been pronounced or mado in term time.
XtX. From tho time when this Act it^liail commence and r-itiin fcc-
talvO c.Tcct, the niiit'i, tliirty-LliU'd, thlrty-fuuvth, forty-fourth, c.'T'.^qniii'
fifty first, fifty-second, fiftli-thl;d, finy-fuurth, f.fy-ilfLh, and A'ltiuV'''''
fifty-sixth sections of an Act of the rarllamout of this Pro- '*''*"'"""'*•
viace passed in tho ciglith year of Ilcr Majesty's Reign intitu-
led, All Act to amend, coiisolidufc, and reduce into one Act
the several Laws now in force ca'aljUoliuij or rcQidatlnj the
prarfice of District Courts in the several Districts inthat2)nrt
of this Province formcrJj/ Upper Canada, also so much of
tlio >'.'chedule of fees annexed to tho said Act as applies to
"foes to tho z\.tlonioy/' and the whole of an Act of the Par-
liaiiiout of. this Fiovince passed iu the uiuth year of Her
Majesty's Ileign chaptered 30, and intituled, ^l;i Aci to amend
an Act passed in the last Session of this Parliament, c»//V(;- ■^''" ^'if) ,
■'■ . whole ol tha
Jad An Act to amend, consolidate, and reduce in-'o one Ac.t'^^'-'^-^^-
tlie several Laws now in force estallishinj or re^ndating the
practice of District Courts in the several Districts of that lyart
of this Provinceformcrl// Upper CrnjacZa, together with all other Ai^onndher
Acts and parts of Acts of the Pavhament ct Upper Canada orsi^.it with
^. . 1 > •..•.1.1 ti"8 Act.
uf this Proviuce, at vananco and inconsistent with tho pro-
visions of this Act, shall be and tb.c same are hereby repealed,
except so far as the sfsid Acts or any of them, or anything
therein contained, repeal any former Act or Acts or any part
tlicrcof, all wbich last mcutioucd Act or Acts shall rcniaia and
I, r#i
•x-
t •
fJ ^
y,;
I
t
^thi^
m
OOUNTT courts' PBOCXOUBS ACT, 18S7. [ss. zx, xxi.
y^'
BiceptioB. oontinue so repealed, and excepting so far as the said Acts or
parts of Acts hereby repealed, and the provisions thereof or
any of them, shall and may be necessary for supporting, con-
tinuing, and upholding any writs that shall have been issued
or proceedings that shall have btion had or taken before the
commencement of this Act, and any further proceedings taken
or to be taken thereon.
^"t'*f°tw ^^' ■"^^^ P'^^ ^'^°^ °^ *^^^ ■^°* "^'^^ come into operation
Act. on tlie first day of July in the year of Our Lord one thousand
eight hundred and fifty-seven, except the provisions contained
in the eighth and ninth sections which shall come into opera-
tion on the passing pf this Act.
Short Title of XXI. In citing this Act in any instrument, document, or
this Act. proceeding, it shall be suflBcient to use the expression " The
County Courts Amendment Act, 1857."
m
_ i 'I
^¥
If Hi
II,.'- . ), '■■'.
1
1 t
\ ■
■'*r;L
u.
It
or
or
)n-
led
the
cen
Aon
and
ned
lera-
t, or
Tho
INDEX.
Abandoning action.
When, after appearance by certain defendants, 188.
Costa in such case, 183, r.
Abandonment to some, when to all, 149, h.
Abatement of action.
On deatti of husband or wife in joint action, 165.
Marriage of female plaintiff or defendant not an abatement, 882.
See also •• Death of parties ;" " JIuaband and w\fe;" •• Marriage."
Abatement, pleas in. ,
Definition of, 139, r.
Time for pleading, 140, r.
Costa in, not allowed to either party, 143, k.
Plea bad to one count, bad to all, 145, x.
Special demurrer to, for formal defects, not necessary, 145, «.
Evidence in support of plea,. 145.
Absconding debtor.
Who deemed such, 94.
Being a resident and indebted, departing, &o., 04, A t.
Possessed of real or personal estate, 95, k.
Proceedings,
Affidavit by plaintiff and contents, 96.
debt exceeding £125, 97.
Further affidamt of two credible persons, 97.
Should state the grounds of their belief, when residing at a distance,
Rule or order for attachment to issue, 97. [97, *.
I By Judge of Superior or county Court, 97.
To be marked inferior jurisdiction if in county court, 98.
Rule to appoint time fur special bail, 98.
Time for, to be regulated by distance, 98.
Attachment to be in the form required, 96. ', '
Attachment to contain a summons, 96.
Duration of, six months, 96.
Renewal of, 96.
Attachment to issue in duplicate, 98. •
Form of the writ and indorsements, 540.
Form of judgment in default of appearance, 541.
Further proceedings.
After service or attempted service, 99.
Personal service necessary where practicable, 99, /.
Court or Judge may appoint some act to be done to be deemed good
service, 99.
M vy permit plaintiff to proceed upon terms, 99.
Plaintiff lo prove his claim, how, 100.
Execution not to issue until af&davit made of existing debt, allowing
credits, 100.
Execution t) be indorsed for sums sworn to with taxed costs, 100.
Or the amount of judgment and costs, which ever least, 101.
t i'il
.1 »
:?
II '■
764
INDEX or SUDJEOTS.
Abioonding Debtor. — (Continued.)
Ooneurrent writs of allachmenf.
May isiiuo withia eix montlis, without furthor order, 101.
To be marked " oonuurrenl." in the margin, 101.
Need not be in duplicate or served, 101.
Operation of, 101.
Duration of, 101, z.
Restoration of property attached and defence.
Court or Judge may let in clelondaat to put inl)uil and defend, any time
before execution executed, 102.
Afllduvit in such case must dincloso good dcfcuce upon the merits, 102.
What held sufficient compliance, 102, /.
Conditions for restoration of property attached, 103.
Of net proceeds of goods sold, 108.
Unless grounds for detainer, 108.
Action to proceed as on capias, 108.
Ga. sa. may issue without further aflidavit, 103.
Defendant to recover couts, on proof that he was not an abBConding
debtor, 104.
Plaintiff's execution in such case restricted, 104.
Defendant's remedy for costs when exceedingjudgmont against him, 104.
Proceedings by Sheriff.
Description of property attachable, lOi.
Necessary disbursements allowed, 105.
Inventory of property attached to be made, 105.
Assisted by two substantial freeholders, 105.
To be signed and returned with writ, 105.
Appraisement, 105, x.
Perishable goods, how dealt with, lOG.
What to be sold, on plaintiff givius security, 107.
What, without security, 107.
Restoration, on plaintiff's neglect to give security after four days'
Four days' notice, how computed, 108, k. [notice, 108.
Debtors and holders of property.
Liability of, after notice of attachment, 100.
Description of debts liable, 109, o, 110, p.
Service of notice on debtor, 110, q.
Proviso — 1. Recovery of judgment by plaintiff against absconding
debtor, 111,
2. Stay of proceedings until property attached proves insuffi-
cient, 111.
8. Trial of disputed facts. 111.
Action against debtor by sheriff, 112.
Upon rule or order, 112.
Defence to be as against absconding debtor, llo.
When restricted, 113, c.
Money recovered to be assets, 113.
Declaration to contain introductory averments, 113.
Sheriff not bound to sue without security and indemnity, 114.
Action not to abate by sheriff's death, 115.
Continuation of, by liis successor, 115.
Suggestion to be entered of record, 115.
Sheriff's costs, payment of, by attaching creditor in fir^t inataacc, 115.
Allowance of, against absconding debtor, 110.
Subsequent writs of attachment.
A new inventory not necessary, 110.
\
ft
■ f -
*'4 I'' ' ! Wl>'
INDEX or SUD.liiOTS.
765
Alw • :jJ'ug hkibtor.— (Continued,
i'liiintiff.
In ni !.ion oommonoed, and proocsa gorved, before writ of oltnchment
iHsuod inny proceed to judgment and eiooutlon, 110.
Priority, when, 117.
When Hubjeot to ooHtH of ottnohmcDt, 117.
Proviso— Ml Lore action fraudulent or oollnsivo, 118.
Diviiion Court.
Property or proceeds in tlio handa of any Division Court officer to be
doliverod to Hlicrlff, 118.
Judgment crcditoi- in, to Bliaro pro rata, wlien, 110.
Dittriiution.
Wlicre several attaclimcntH issued, 120.
When delayed, ond how, 120.
Judgment creditors not entitled unless attnchnicnt Issued within elx
months from the first vrit, 120.
Six months, how computed, 120, d.
llesidut.
Restoration, after sotisfactlon of debts, 121. ^ '
To an agent appointed by parol sufficient, 122, i.
IntcrpleaJer.
Sheriff to have the some right of, under nltachmcota ns under write of
execution, 788.
Abuttals.
In notion of trespass to land, dcsignntlon by name or abuttals requi-
site, (;89.
Proof of, when sufficient, 089, a.
If abuttals omitted, plaintiff may be ordered to nmond or give particu-
lars, with costs, GaO.
Acoord and Satisfaction.
Plea of, with other pleas, 260.
Account (Proccodinga in matters of).
Summary decision by Court orJudgc, 1G3.
Order of reference to an arbitrator, 104.
" or an officer of the Court, 1C4.
" or Judge of County Court in country oases, 161.
Decision enforceable as upon verdict, 105.
Rjforeo may summon witnesses, 104, c. ■
Issues of law or fact, how tried, 105.
Decision thereon to be acted upon by arbitrator, IfiO.
Special case by arbitrator for opinion of the Court, 107.
Reference at trial, 800, 732. ' »
Arbitrators, limited number, 300.
How named. If parties disagree, 300. '
Award, moving against, 301.
Form of judgment upon decision of Court or Judge (under s. 84) before
declaration, 700.
'* where referred to an arbitrator, 700.
" of writ of fi. fa. for payment of money, 701.
•« *' for payment of money and costs, 702.
" of writs of execution where matters of account referred to and de-
cided on by an arbitrator, officer, or Judgo of Co. Court, 708.
See also ^* Arbitration and Award.'''
Act of Parliament.
Of plea under, to have the worda " By Statute" inserted in the m
with other particulars, 091.
Ill:^
■L
U I ' i'
;!'
756
INDEX OF SUBJECTS.
,'i
,1
f I'i
Act of Parliament. — (Continued.)
Also in the margin of the issue &n\ Nisi Prius record, 691.
Omission when not amendable at Nisi Prius, 691, k.
Aotion, Commencement of.
By issue of the writ, 24, z.
Form or cause of, need not be stated in the writ, 80.
Proceedings in, to final judgment to be carried on in the office
which the first process issued, 10.
See '■* Proceedings " '■^ Venue."
Action, Venue, Local— Writ for must be sued out in the proper county, 7.
Action, Transitory.
Writ in may be sued out from the principal office, or by deputy, 7,
Actionem non. Actionem ulterius non.
Allegation of, in pleading, abolished, 221. ,, , ,^
Address of attorney to be indorsed on writs, 33, 619.
When sued out as agent, 33, 620. ' . ,
Address of defendant ncci'ssary, when appearance in person, 129.
See also "^^jijuearance." ,
Adjournment of trial may be ordered, when, "^05.
Administrator. — See ^^ Executor."
Admission of Documents. ,, , ,, ,
Notice to admit, by either party, 316.
Form of notice, 609. i .
Costs of proof in case of refusal, 317, 610. , ,
Costs of proof, when not allowed, 318, 610.
Proof of admissions, 3 1 8. ..(. ,', (. , ,
Partial admissions, 318, <.
See also " 7'mi." , ,
Adyerse Witness may be contradicted by other evidence, 300.
Kefusing to make affidavit may be examined, 331.
See also " Examination."
Advortisemont to be inception of execution against lands, 353.
Affidayit to hold to Bail. ^
Must be made before suing out process, 38.
Title not necessary at the time of making, 41 {^),
Description of deponent, 41 ('). . i
" of defendant, 43 (*).
?v Statement of cause of action, 43 (5).
Conclusion of affidavit, 40 (8j. , i
Commissioner, 47 C). ^^ ; ; * , ,,. . ,,
Signa?;ure of deponent, 47 (8). > ., . . ' , . - . ■ ^
Jurat, 48(9). ' -
Irregularities, how taken au .antage oi", 49 (1°).
Title to may be added on suing out process, 52.
Affidavit in general.
Witness refusing to make, summons on, 331.
Order for examination of, 331.
Addition and place of abode to bo inserted in affidavits, 642.
Jurat, where two deponents, 643.
Interlineation or erasure in jurat, 643. . t
Affidavit must be drawn up in the first person, 044.
And divided into paragraphs and numbered, 644.
,^^ Costs of, disallowed on infraction of rule, 644.
When such, may not be read without permission of the Court, 644.
': ' Certificate in jurat where deponent illiterate, 644.
A
from
Affi
Affi
Age
Agr
Agr
Amoi
Amei
INDEX OP SUBJECTS.
757
)m
AfiBdavit in general. — (Continued.)
Affidavit not to be sworn before attorney in the cause or his clerk, 644.
Except affidavit to hold to bail, 645.
Affidavit sworn before a Tudge to be intitled, when, 645.
Limited time for filing affidavits, 645.
Opposite party may use same, 645, I.
Attorney when compellable to file, 645.
Rule granted before affidavit filed, not to be in force, G45.
Exceptional cases, 645, o.
Affidavit by plaintiff when defendant appears in person, 646.
Affidavit of increase, by whom to be made, 604.
AffirmaVion if false to be deemed perjury, 612.
Ageiit for Attorney, appointment of at Toronto, 11, 652.
Agreement as to damages, upon a special case for the Court, 161.
Agreement to refer.
By parties to any deed or instrument hereafter executed, 182.
Order for stay of proceedings after action brought, 182.
Proviso for discharging order, 183. > .?.«
See also *^ Arbitraiion." • • ',
Amended Pleadings, time for pleading to, 270. ' v "
See also ^^ Amendment," ^* Time for Plead'ng." ■ '' :
Amendment.
Adding or striking out names of plaintiifs before trial, 136.
Joinder of plaintiffs at trial, 137.
Amendment of writ upon notice or plea in abatement, 139.
Costs of amendment to be paid by plaintiff, 140.
Defendant may plead de novo, 140.
Joinder of too many defendants, how arvindable before trial, 141. ?
Upon what temns, 141.
Upon plea in abatement of non-joinder of defendants, 143.
Amended writ to be served on new defendants, 143. . ' ' ' /
ComTjencement of action as against them, 143. .tjv
Costs of plea in aba+'-ment, 144.
Costs of amendment, 144, 5'. ' f
Ju'lgment against defendants liable, 144.
Defendants not liable entitled to costs, 144.
Plaintiff entitled to costs on pica and amendment against original de-
fendants, 144.
Amendment, genei*al powers, 482.
If refused by a Judge, party not precluded from applying tq Cou»t,482, A.
Amendments, their extent^ 483, t.
Re-amendment, 484, k. '
Amendment, costs of, 484, i.
Terms, 484, m. ^H/i
Striking out a plea after demurrer not allowed, 486, n.
Appeal.— See " Error and Appeal."
Appearance by plaintiff for defendant unnecessary, 1 22.
By attorrtey. "
Mode of, 130. ■ ;
Form of, 131.
Entry of, 592. '
By two or niorf» dofendants, 592. '■
' Without authoTiij, may be set aside, 592, u. ■'
Where defendant sued by a wrong name, 131, a.
May be entered at any time before judgment, 127.
Miiy be eutered in long vacation, 132.
Wr
'^iii ti
w
I
s
768
INDEX OF SUBJECTS.
Appearance — Entry of. — (Continued.)
When not entered in due time, 1 28.
When the last day for, falls on a holiday, 132.
Written notice of, when dispensed with, 128, wt. [ing, 128.
Entered after the time, defendant not entitled to further time for plead-
In default of notice, plaintiff may proceed as on non-appearance, 128.
Attorney not appearing after undertaking liable to attachment, 693.
By defendant in person.
Requisites, 129.
Mode of appearance, 130.
Form of, 131.
Memorandum of residence, 653. » ; ;.
When some of the defendants only appear.
Action to be considered as abandoned ngainst othorg, when, 133.
Costs in such case, 133, r.
Upon Joinder, further appearance unnecessnty, 1-10.
Illusory or fictitious appearance.
Plaintiff moving to set aside, must isliow the fact, 130, w.
See also "Proceedings,"
Arbitration and Award.
Reference when compulsory, 1G3.
Special case for opinion of the Court, when, 107.
Arbitrator, Umpire, ^c. \
Appointment of, by Judge in certain events, 183.
Of a third arbitrator, when, 185, 2.
Of a new arbitrator, in certain events, 18G.
When one may proceed, as sole referee, 180. • ,
Appointment of, without express provision, 180.
Umpire refusing to act, appointment of another, 185, k.
When umpire may proceed, 190.
Proceedings on reference, 170. . .
By arbitrator, 170, e.
May not privately examine a party on his own behalf, 170, e.
Nor receive affidavits in evidence, 1 70, e.
Examination of parties on leave given, 170, e.
Enlarging time for making award, 170, e.
Enlargement by consnut of parties, 188.
When arbitrator may liame a day for payment, 170, c. ^
Attendance of witnesses compulsory, 172, /.
Arbitrator may swear witnesses, 172, /.
Witness in close custody, how brought up, 172, /.
Order for attendance of witnesses, how obtained, 172, 178, /.
Subpoena duces tecum, 173,/.
Parties and witnesses attending, rrivileged, ]73, /. .
'v Voluntary witness, privileged, 173. »;
Award.
To be in general made within 3 months, unless otherwise provided, 187.
Must be in wrUing, and signed, 187, o.
Jklixy be made on day of reference, 188, r.
When void, for corruption or undue means, 175, h.
Enlnrgement of, by consent of parties, 188.
What held to be an eulargemant, 188, u.
Enlargctncrt by Court or Judge, 189.
To be for one calendar month, where no period stated, 189, lOO, z.
Award, wlieu final, 180.
.Publication, meaning of, 180, «>. >
^
PAt-i*. t-C
CtV
^^\
Ut
2^y^-
C'
I
INDEX OF SUBJECTS.
759
Arbitration and Award. — [Coniinued.)
Enforcing Award.
By action, 173, 174, g.
By attachment, 17-1, g.
Imprisonment for contempt not an exonevctur of the award, 174.
When affecting lands, 174, 175, g.
When possession of land to be delivered, IJU.
Application for order, what it should show, 191, m.
Effect of order, 192. , _ ..
Award, where doubtful, 175, ^.
' Attachment discretionary with the Ccurt, 175.
On compulsory reference, when it may bo enforced, 181.
Notice of award, when necessary, 301, /.
Taxing costs on, 655. • , ., -,
Setting asids award. ' "' ' ' ""'""
Limited to cases where submission may be made a rule of Court, 175, A.
Cannot be set asic e upon the merits, except under extraordinary cir-
cumstances, 17f), h.
Where party has not had full opportunity on the reference, 175, A.
Grounds for, must appear on the face of the award, &c., 175, A.
The fact relied on must be sworn to, 176, h.
Submission obtained by fraud not a sufficient ground, 176, A.
Nor defect in the style of cause, 176, h. '^^'
Rule nisi, statements in, 176, h. .
Must state all the objections, 176, h.
On compulsory reference, when application must be made, 180.
Withholding award until payment of extortionate fees no excuse for de-
laying application to set aside, 180, iv.
When must be made, where award made iu terra, 180, x.
Remission of Aivard. ' ' .-. ""
When, of matters referred, 178. , . . '
How often, 178, «.
May be made upon terms, 179, p.
Staying Proceedings in Cour'. [cuted, J 83,
On agreement to refer by parties to deed or instrument hereafter exe
Proviso — for discharge of rule, 183.
Application must be made in the Court where proceedings had, 'M2,p.
- May be made by a defendant without the jurisdiction, 182, r.
Where refused, defendant may bring action for breach of agron'ocnt t j
refer, 183, to.
Prospective Suits, submission of, 182, I.
Reference at trial, provision for, 732. — -
Submission.
Revocation of, 171, e.
May be made a rule of Court, 192.
- Oral, excluded, 192, s. '
Application, when to be made, 193, u.
When limited to a particular Court, 193.
When upon a case stated, where no pi-ovision made for submission being
a rule of Court, 193.
Non-interference of other Courts, 193. _ ,,
Costs.
Without, when award pci: nside for arbitrator's irregularity, 175, h.
When arbitrator mny award, 177, i.
Under rule of rof^'reiice, restricted to costs between " party and party,"
Arbitrator cannot tax, 177, /. [177, •'.
^;lf
1 1 %<"
■I
760
INDEX OP SUBJECTS.
Arbitration and Award — Coats. — {Continued.)
Without power, where costs to abide the event, 177, t.
Costs not intended, unless there be express direction, 177, i.
Under general power delegated, 177, i.
County Court costs, 177, i.
Where order of " nisi prius" silent as to costs, 177, t.
Where reference after paymeni of money into Court, 177, i.
Arreat.
Capias to issue for, 34. See " Capias."
Affidavit to hold to bail, 38.
Amount for which, must be made, 38,
Consequence if excessive, 88, o.
Bight of foreigners to arrest, and liability to be arrested, 40, (i).
Upon a Judge's order in certain cases, 47.
Irregular, how taken advantage of, 48, ('").
Privileged persons exempt, 50, a.
Arrest of Judgment. — See "Judgment."
Assault and Battery.
Paymenc into Court in general not allowed, 227.
Il^cceptions, 227, /.
Count, for assault and imprisonment, 540.
Assessment of damages. I
In matters of calculation abolished, 274,
Upon assignment of breaches, 277.
Notice of assessment, 279.
Of countermand, 282.
After short notice, 282.
Assets in future, proceedings upon a judgment for, 384.
Assignee. — See," Bail Bond."
\ssignmer . of Breaches.
Imp. Stat. 8 & 9 W, 3, cap. 11, declared in force, 277.
As;5essment of damages under, 277.
AflSi?^ and Nisi Prius.
Holding of in counties, when, 789,
With or without commission, 739.
Presiding Justices, when commission issued, 739.
:\ When no commission issued, 740.
* i In case of Judge's^ absence, ', ^0.
Power and authority of the Court, 740.
To be held three times in the year at Toronto, 740.
At what periods, 740.
Special Commissions, proviso for, 740.
Associate Justices.
Sec. 152-153 of C. L. P. Act, 1856, as to appointment of, repealed, 739,
Need not be named in Commissions of Oyer and Terminer, 740.
Attachment against the Person.
Rules for, absolute in the first instance, 054.
Exceptions. 654.
See also "Coroner," " Sherif."
Attachment against Goods, &o.— See "Absconding Debtor."
Attachment of Debts.
Form of debt attachment book, 708. *■
Pec " Garnishee," "Judgment Creditor.^*
Attesting Witness.
Not npccssnry to prove document, 812. See also " Trial.'"
\
INDEX OF SUBJECTS.
761
■-.•?>> i^jiV
>-'i^hA'
Attorney.
His authority, in general, 355, q.
Written order by, when necessary for discharge on a ca. sa., 355.
Discharge without creditor's authority, not n satisfaction of the debt, 356.
Client's consent necessary to a discharge, 350.
Not allowed to take recognizance of bail, when attorney in action, 628.
Admission of, u87. \_Qu,. superseded by 20 Vic. cap. 63.]
Que3tion8 to be answered bv the clerk, 689.
Questions to be answered by the attoruoy, 589.
Certificate of service by the attorney, 590.
Attorney neglecting to appear, after undertaking, liable to attachment,
Change of attorney must be by Judge's order, 593. [698.
Otherwise, when defendant appears first in person, 593, y.
Order granted without afidavit, 593, y.
Attorney's Lien for Costs.
Not to be prejudiced by set oflF between the parties, 618. -
Exception as to interlocutory costs, 618. . .-, ., j
Attorney, Service of Papers on.
If resident in Toronto, 651.
If resident in the country, 652.
Attorney and Guardian. — See "■ rrochein Amy,"
Attornment to the Jurisdiction, definition of, 77, r.
Audita Querela, equitable deff ncc by way of, 474.
Averment.
Of performance of condition precedent, necessary in pleading, 211.
Plea in answer must be specific, 212.
Award See ^' Arbitration and Award."
Bail to the Sheriff".
Definition of, 53, u.
May be excepted to, when bail to the action, •notwithstanding assign-
ment to bail bond. Olio. See ali-o " Special lidil."
Bail to the Action, who may not be, 628. See also '■'Special Bail."
Bail Bond.
Misnomer of defendant when not a sufficient ground for canccUing
bail bond, 624.
Action upon by the Sheriff' may be brought in either Court, 625. '
But otherwise where : .tion by assignee, 025, x.
Where bail bond directed to stand as security, plaintiff may sign judg-
ment upon it, 625.
Staying proceedings on, 625.
Application for, when too late, 625, b.
Proceedings on bail bond restricted pending rule to bring in the body, 625.
Rule for staj^ing proceedings must be grounded on affidavit of merits, 626.
And bail must lie first perfected, 626, t. ' ^i»
Bailee. — See " Carriers."
Bailment. — Sec " Carriers."
Bail-piece not perfect as a recognizance (ill filed, 02i , q. See also "Special Bail."
Bankruptcy, plea of discharge finder, with other pleas, 200.
Bar, Pleas in, must be pleaded specially, as on contract, 088.
See also " Contract."
Bill of Exceptions.
Tender of, in ejectment, 411.
Statements in, 411, m.
Bills of Exchange.
Indemnity for loss of, 487.
Count by drawer aguiiust acceptor for nonpayment, 515.
(;,
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i
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I
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,i
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< t
762
INDEX OF SUBJECTS.
WA
Bills of Exchange. — (C'oniinued.)
Countby payee against Hie Ji'awer for non ncceplaticoby the drawee,5'l5.
Pleas of «' non assumpsit," " nunquam indebitatus," inadmissiblo, 67?!
Plea iu denial must traverse some fnct, C77.
Form of summons upon, after ],st July, I808, indorsement and notice
Final julgraenfc thereon, 7^0. [720, 7-11, 742.*
Form of, 742.
Appearance and defence, leave for, when and how obtained. 730.
Setting aside judgment on terms, 7yO.
Security for costs by plainliiF, when, 730.
Expense of noting and protest, how recoverable, 731. ,
Suit against all parlies to, 731. "
Blank Writs to be supplied by Clerk of the Process, o.
Body (Corporate), service of process upon, 71.
Breach of C< rlrac', iniiinclion for rcstminlog ropotiiion or coutlnuanco of, 4Co.
Sec jilso ••Injunction."
Breaches, Aasr nmcnt of. Imp. St. 8 & 9 W. 8, cap, 11, declared in force. 277
Si> : ,h' io i 0/ after Judgment, sol. fa. how tested and directed. &c.j 372.
British Oonsii',, .; liJavit for holding to ball, sworn befVire, doubtful, 47, (7).
" ^^i^ieot, THOceedings against, if rcfeldins without the juiisdiction, 75.
Fo'- 1 of the writ, &c., 537.
b<iQ ':^•^0 *' Summons." • , . ' . . .
Capia". • n \
Commcn< .■ -)/ Acilon. " -. ,
Date U';ii teste, 32.
Memorandum in margin, 'i'l.
Indorsement of name and abode of parly suing out, 83.
Wi-it to be in form required, 31.
,■■*:; Direction of, 34.
Copies and sei-vice, 35.
,'t« ■ Date of executTon or service to be endorsed, 36. "'
Direction as to service or arrest, 37.
Effect of service, 88.
Affidavit required before suing out, 38.
Form of the writ and indorsements, 539.
Warning to the defendant, 540.
After action commenced. = '■ '
May be sued out before judgment on the usual aflidavii, 92.
t Or upon Judge's orilcr, 92.
Wi'ii one or more ooncurrent writs, 92. '
Affidavit should be intltled in the cause, 02, to.
Such writ, &c., maybe renewed, 92, 2.
Writ to be in form required, 93.
Direction of, 93, b.
Copies with requisite indorsements 10 be sovvod. 93.
• .!> , Date of execution to be endorsed, '. ;.
Proceedings to judgment may be caiiiedon without » o.Mvd to capias, 93,e.
Costs of capias allowed on taxation, 93j d, e.
Capias to be issued ont of same Court as the original writ. 94,/.
Form of writs and indorsements, 53'.).
Warning to the defendant, 510.
Capias ad Satisfacieiulum.
Writs of, 17.
When defendant held to hail, no furlher ■iDidiivlt neoow^ty.'ooO.
When dcfcmhint not held to bail, 350.
■» . Cannot be issued when fi. fa. not returned, 350, /.
3- \ ,f
■;. ^ I
TABLE OP SUBJECTS.
768
Capias ad Satisfaoientlnm. — {^Coniimied.')
Nor where bailable proceedings abandoned, 3u0, m.
For costs, when, 8-30, n.
Against an executor, when, 351, q.
Upon nHidavit sworn in Lower Canada, 851, r.
Discharge of prisoner by attorney, when suflicicut, 855.
Form of, on a judgment for plaintiff, 702.
" on a rule for payment of money, 702.
on a rule for payment of money and coasts, 702.
on a rule for payment of costs only, 702.
Carriers— Bailees.
Pica, " non assumpsit," in action ugaiiist, effect of, G70.
" Ni/ guilty," effect of, 688.
Defendant cannot, under plea of " not gnilty." set up that the goods
were lost through plaintiff's negligence, 088, w.
Nor misrepresentation by plaintiff in the weigUt oi' die gooil.s, G88, w.
Case. — Sec " Sj^ncial Co -in."
Cassetur Breve, of wrlc of revivor not allowed ft/icv i^.pciiuuice except on pay-
ment of costs, G21.
Causes of x\ction. ■■.-•.'■ . . ■■ .
Statement of, in afii.lavii to hold to bwil, 4G. •
Joinder of several, in same su't, 140, 100. .' '
Replevin and ejectment excepved; 151. '
Joinder not compulsory, 1 50, /t. ' .
Consolidation of, when, 150, A. '
Arising in diffei^ent counties, venue mny l/o loid in either, 151.
Court or Judge may prevent trial of dijT»retit cnii^cs when inexpedient,
And order separate records, 151. [151.
Plaintiff's right to include in one acl" vi pni lies to bills of exchange, &c.,
not to be restricled, 151.
Snit by husband and wile may also iiicltule soparaie f^tdt of husband,
Separate action for, may be consolidated, 15-1. [153.
On death of either plaintiff, suit to abate for acium not smvivirg, 154.
See also " Ihiibaiid and u'ife."
Cepi Corpus.
Defendant arrested on a ca. sa. a good answer to a i ale for an attach-
ment for not bringing up the body, 21, x,
Bule to bring in the body, upon return of, 026.
A side bar lule, 026, m.
Should be issued pron.ptly, (i2(), m.
Cannot be issued before return day of the writ. '.i2G, m.
Or before time expired for putting in bail, 620, in.
Nor after judgment for an escape, '"20, m.
Nov after discharge of defendant by plaintiff's order. 020, m.
! Must be served within a reasoiialile tii;.?, i)20, '".
>Vhere retutn of cepi corpus made in vacation, ruU may issue to bring
the defendant into t^ourt by putting i:i special bail, 027.
Attachment for contempt, 027.
Setting aside upon perfecting b\il, when, 027, .i.
Rule on cepi coi'pus when sheriff out of ollice, O'^O.
Certificate for Costs.
By Judge at trial, 510.
When certificate must be moved for, 0!>2. r.
Certificate of Ju(l{;meut..
By deputy clerk of the Crown, 25.
Contents, and etfeot thereof upon registration, 26.
i-H
Uu
vm
m
7G4
INDEX OF SUBJECTS.
Iff
Chambors. — See " Judffe in Chambers."
Charter Party, count upon, for breach of, 540.
Chattels, Detinue for.
Payment of money into Court, •when aliowcd, 227, e.
Judgment by default, final, when sum indorsed, 274, e.
In action for detention of, Court or Judge may order execution for spe-
cific returu of, 8G6.
Form of writ for a specific return, and distringas, 707.
Execution, how enforced, 807.
Damages, execution for, 807.
Form of execution for the assessed value, 707.
See also *' Detinue."
Claimant. — See ** £jectment."
Clerk of Assize.
Deputy Clerks of the Crown, Clerks of Assize ex offieio, 298, /.
" of the Croivn and Pleas.
To be supplied with certain writs by Clerk of the Process, 5.
Offices to be kept open certain hours, 056.
To give security for due performance of duties, 728. i 'J
" of the Process.
His appointment, 2, d. ■,
To give security, 728. l
To be an officer of both Courts, 3. i . • , '
His office to be kept at Osgoode Hall, 3.
To be subject to certain rules for his guidance, 4, /.
To have a seal for each Court for sealing writs, 4.
To supply deputies whth Hank writs, 6.
To issue writs to parties or their attornics, 5.
To issue certain writs on receiving prtcoipe, &c., 059.
, ' Such writs to be issued alternately in Q. B. and C. P., 600.
^ f; Renewal of writs, 6.
AVrits for commencement of actions to be issued alternatelj', 5.
But not to aff'ect concurrent writs, 6, h.
To make quarterly returns to Inspector General and pay over fees, 6, «.
Fees to form part of Consolidated Fund, 7.
■ ^ Hours of attendance, 000.
To permit searches and grant copies of papers, 600.
«' to Attornej/ — Hee ^^ Atlornej/." v
See further ^^ Deputy Clerk of the Crown." <
Close Custody.
Debtor on the limits not a debtor in close custody, 492, p.
Discharge of debtor on giving bond to the limits, 505.
Surrender, by sureties, 500.
Recommittal of debtor for not answering interrogatories, 511.
See also "■' Gaol Limita" '■^ Insolvent Dtbtor.'^
Cognovit. i V? <
Judgment on, without process, 12.
Execution of cognovit in presence of attorney for defendant, 605.
Nature and effect of, must be explained to defendant, 006.
And subscribed by defendant's attorney as attesting witness, 606.
Affidavit of execution and filing, 007.
Reading over cognovit not necessary, if defendant informed of its nature
and effect, 000, k.
Information need not bo in private, GOG, k.
'•Vhcn defendant illiterate, 000, k.
Neglect of defendant's attorney to explain will not vitiate unless fraud,
or collusion, 000, k.
INDKX OF SUBJECTS.
766
Cognovit. — (CvHlinued.)
Alterution after execution, effect of.GOG, /.
Attestation, requisites in form of, 607, o.
Objection by a third party to informal execution not allowed, C07, o.
Where cognovit more than one year old and under ten years.
Leave necessary to enter judgment, 007.
Application must be made to Judge in Chambers, C07, r.
Lea/0 not necessary where defeasance so framed, (i07, r.
Leave necessary, on cognovit by wife dum sola, 607, a.
.Judgment must be entered on the original, 607, s.
Copy sufficient, under special circumstances, 007, s.
Where cognovit mote than ten years old.
Rule to show cause necessary, 608.
Service dispensed with where defendant avoids service, 608, u.
Cognovit, filing of on record.
Must be filed within one month in the proper Court, 734.
And entered in the cognovit book, 734.
Cognovits already given must be filed within four months after the pass-
ing of this Act (10th June, 1857), 734.
Commencement of Action, by issuing the writ, 24, z.
See also ** Summons."
Commission of Assize, &c. — See *' Assize," " Oger and Terminer,"
Commissioner. — See " Affidavit"
Common Law Procedure Acts. . ^ '
Commencement of the Act of 1850, 2. ' ,
Short title of, 629.
Provisions of the Act of 1856, and rules of Court under the same, to
extend when applicable to the Act of 1857, 740.
Short title of the Act of 1857, 741.
Comparison of Handwriting with other genuine writing, 314.
Computation of Time.
Where the time fixed by any writ of summons or capias falls on a
holiday, 132.
First and last days when inclusive, 665.
Compute, Rule to, abolished, 273. .
Concilium, Rule for, abolished, 597.
Conclusion. ' •
Of affidavit to hold to bail, 46.
Of declaration, 210.
Concurrent Writ.
Issue of, on summons or capias, 03.
Within what time, 68. '
From what office, 03. '
To be tested of same day as original, 03.
And marked "concurrent" in the margin, 64.
Duration of concurrent writ, 64. ■'■■
Renewal of, 05. "
Certain writs may be made concurrent, 86.
Condition Precedent.
Averment of performance in pleadings, 211. ■
Plea in answer must be specific, 212.
Confession. — See " Co^noivV.'' '
Confession and Avoidance, all matters in, must be specially pleaded, 688.
Consolidation of Actions. — See " Husband and Wife."
Consideration, Illegal, plea of requisite, 679.
f/y.
■/H'tftt
i-
'U
766
INDEX or nUBJEOTS.
m.i
Consideriiti'^'i, Wunt of.
Mn . bo pleaded, C70.
And proved by defciidant, 679, o.
Statement in plcii, vbnt it must show, 079, o.
Consul
When afliJavit mny be sworn before, 8(3.
To bo perjury if false, 87
Oontinuanoo of Action, eniry jf, hy way of imparluncc, &c., not noccasary in
pleadings or on U.e roll, G92.
Contract, Action on.
Contract made -witli •wife, Leforo coverture survive when, to huHbaad,
Husband must sue as administrator, 151, tv. [1C4, «'•
Plea of denial,with otlier pleas, 259.
All matters in confession and avoidiinco must bo -pecially pleaded, 078,
Exempli gratia, infancy, 078.
coverture, 078. '
release, 078.
payment, 07'^. • i
performanc , ii79.
illegality of consideration, 679.
drawing inilorsing, accepting bills, &c., ornotesby
way of accommodation, 079. ,
set off, 079. . , , I
mutual credit, 079. t , ■
unseaworlldness, 070. ^
mit'X'presentation, 079.
coiiooalmcnt, '180.
" deviation, ti^O.
Conversion of Gt.')ds, plea of " not «i(ilt.,, ' efiV-ct of, 090.
Conviction f'ji- Crime.- oi>.' " l'7£;(.?s5." '
^opy.
Cognovit, wlieu b-'flficient for entry of judgment, 007, s.
Admission of the copy of a document not an lulinisaion of tlio original,
Coroners. . ,. j. V^^'tfj-
Rules on, may be issued y deputies, 20.
May act when sheriff inc;.i'iioitiited, 80, //,
Direction of writ to, where several coroners in a county, 2-^, /.
Return must bo in the names of all, '2'',, x.
Where several coroners, and some interested, 'J.'i, x.
Ou writ directed coronatoribus, survivors vaay execute it, 23, x.
But otherwise, if only one survivor, 21, r.
Writ of attachment must bo personally deliveiod to tho coroner, 28, x.
Fees and poundage, allowance of on taxation. Of) t.
Corporation, sci. fa. against, how tested and directed, occ, 872.
" Aggrcf/ate. ' ^'_
Service of process upon, how to be made, 71.
Service upon a clerk, who meant, 71, i. V!*
upon an agent, 72, d.
••« Sole, service of process upon, how to bo made, 71, z.
<«
M.
M
at
Costs.
Reviewing, when taxed by a deputy, 10.
Deputies, when liable to ccsts of revision, 17, w.
When more than one-sixth disallowed on writ of summons; plaintiff's
attorney to pay the costs of taxation, 02.
On amendment fornon-joinder of plaintiff, 144. . ' ■•
On plea in abatement for non-joinder of defendant, 144.
Defendants when entitled to, after plea in abatement, 144. •■
INDEX or SUBJECTS.
767
III
I by
inr.l,
3-
QQi\A.- -{Continntd.) [costs, 144.
On plea of non-joinder and nmendmiMit, original defendant liable to
Coi^tii of any is»uo of fact or law to follow the Judgment, l2uU, G18.
Where uo material iseuo in faot found for the party othcrwiuo entitled
to general cuftts, 018.
Apportionment of Cotti.
Upon plea of general issue, when, 2C7,y. *'
When judgment by default ngiiinst one dcrcnt*ant, and verdict for others.
Coats of the divj. [267.;.
For not proceeding to trial or asBoasment, 288,
Rule for how drawn up, 285.
Coatt in general.
Costa of writs and other proceedings to remaiu as formwly . ntil other-
wise ordered by rule of Court, 5liJ.
In trespass and case, 515.
Under an award, 510. , ,
Certificate for, at trial, 510, 7.
In trespass, after notice, 522. •
Inferior jurisdiction, 521.
Courts authorised to make rules for, 5i?8.
In action brought upon a judgment party not entitled to costs unless
the Court so order^ 370, j.
Taxation.
Notice of, to opposite party, w'len necessary, 017.
Effect of neglect, 017, 6.
Notice of taxing, when not necessary, 018. ' *
Execution for coats only.
Form of fi. fa., 702.
Costs, Table of, as between Party and Party. ' ' / ,
To the attorney for writs, 709. V*
Instructions to sue or defend, 710. • i
Instructions for pleading, 710. '
Drawing pleadings, 710.
Copies, 711. ,1 . o
Notices, 711.
^ Copy and service, 712. i ■
Ejectment, 714. <i
Attendances, 712. . •
Briefs, 712.
Term fees, 712. • /
Affidavits, 712. = / '
Defendants, 712.
Counsel fees, 712.
Clerks of the Crown & Pleas, Deputies, Clerk of the Process, fees to, 713.
Clerk of assize and Marshal, 714.
Clerk in Chambers, 714. .. ■ <- * ■; -
Sheriff, civil side, 714. ..?•';
in replevin, 715.
Crier, 715. ,
Jurors, 715.
Witnesses' allowance, 715, ■ ■ ' ^'\
Commissioner, 710. . '■' »
Counsel.
Signature to pleadings not necessary, 2C0.
Necessary to motion in Court, 200, q.
Counsel's fees, 712.
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IMAGE EVALUATION
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INDEX TO SUBJECTS.
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Coantermand.
Notice of trial or assessment, 282.
Short notice of, 282.
Country Causes, what so deemed, 286.
Counts. — See " Forma in Pleading."
County Courts.
Sections of former nets repealed, 551.
Gehain sections of C. L. P. Act of 1856, and rules to apply to County
Courts, 557.
Subject to certain modifications, 560.
Section 202 of said Act not to extend to County Courts, 748.
County Court Clerk.
To be subject to cei ^ain rn\e3, 569.
To sign and seal y; rits, 569.
To account for and pay over fees, 569.
County Court Suits, in what county action may comipeuce, 570.
Cognovit, Warrant of Attorney. '; ". * •■'h ,
Judgment on, not t() exceed £100, 570.
Entry of, in what Court, 570.
Judyments. , • ,
Docketing of, minutes, 571.
Copy of, evidence, when, 571.
Certificate of juilgment, 571.
Registry of certificate, 672. i' -
Etfcct thereof, 572. See also *• Registering Judgmentt."
Writ of Summons — Capias, renewal of, 672.
Joinder of Actions.
In what cases, 573. .;.
Exceptions, 673. ^ " "' '
Separate trials, when and how ordered, 573.
Proviso, as to bills of exchange and promissory note!^ 578. ,,
Account, Matters of.
Summary decision of, 574, .,
Reference to arbitration, 674.
Questions of law in, how to be decided, 575.
Award and special case, 675.
Arbitration, proceedings in, 575.
Damages, when matter of calculation, how to be ascertained, 676.
Trial, Notice of.
When plaintifi' neglects to proceed to trial, 570.
Dtil'eudunt may give notice to proceed, 677. , '
Suggestion by defendant in case of default, 577. r
Judgment for costs, 577.
Proviso —extending time for trial, 577,
Documents — Witnesses — Judyinenl Debtors.
Order for production of documents, 577.
Witnesses, examination of, 677. , .
Judgment debtors, exumination of, 678. ■ "^> , ^ f
Costs. . .,,'<•. •. .'. ;
As heretofore, until altered, 579. * > -
Except certain additional fees, 579.
Provi.so as to mileage, 679.
Judges of the Superior Courts to frame table of costs, and Cees to coun-
sel and attorney, sheriff, and other officers, 746.
Execution, when it may issue without aci. fa., 743.
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INDEX OF 8UBJ10TS.
County Comia.— {Continued.) '
JPraetiee.
Regulation of, in oases not provided for, 680.
Judges of the Superior Courts may extend rules and orders of Superior
Courts to County Courts, 747.
Juriadielion.
Enlarged as to amount, 680.
Excluded, where title to land in question, 682.
Or where the validity of any device, &c., is disputed, 682.
Or for libel, slander, criminal conversation, seduction, 682.
Court Fm», in special cases, 683.
Salaries of Judges, rates of, 688.
Fee Fund.
Part of Schedule to 8 Vic. ctlp. 13, and the whole of Schedule A, of 9
Vic. cap. 7, repealed, 684.
New schedule substituted, 684.
Mileage and Poundage, additional, 685.
York and Peel County Court, extra allowance to Clerk, 685.
Coste — no privilege allowed for exempting any plaintiff flrem restrieUoA
to, 619.
Execution — Priority over Division Court execution when, 737.
Common Law Procedure Act of 1857.
Sections 4, 6, 6, 7, 8, 9, 31 of this Act apply to County Courts, subject
to modifioationa of sec. 2 of the County Courts Procedure Aot, 741.
Equitable Defmeea.
See. 287 of C. L. P. A. of 1856 not to extend to County Courts, 743.
New provision for, 748.
Refermce at Trial, provision for, 743.
Qarnisheea.
Order where amount claimed is within the Division Court, 744.
Payment by, to be a valid discharge, 745.
J^amimtion of Witnesses.
Commission for whom and how isnued, 746.
Where witnesses no<; resident in Upper Canada, 746.
Examination, not evidence, if deponents living within Upper Canada,
when offered, 746.
Courts empowered to issue writs of subpoena ad testificandum, and
subpoena duces tecum, to enforce attendance of witnesses, &o., 740.
Judges.
To hold office during good behaviour, 747.
Removal for inability or misbehaviour, 747.
Court of Impeachment constitntei), 747.
The Governor may refer complaints against any County Court Judge to
said Court, 748.
The Court to decide on inability or misbehaviour, 748.
Costs of inquiry, 748.
In case of illness or absence of any of the Judges of said Court, of
Impeachment, the senior Puisne Judge of the Superior Courts to act
instead, 449.
Deputy County Court Judge, appointment of, 749.
His powers and duties, 749.
Deputy Judge to he sworn, 749. 5' " =^^'
Not to be disabled from practising, 760.
Terms.
Commencement of, and ending, 750.
Judge may appoint sittings after term for giving judgments, 761.
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IMDIZ or SVBJI0T8.
CoTurture.
Plea of, not a plea of "non-joinder, 146, y.
Plea of, with other pleas, 260.
CoTeaant.
In ejeotment for breach, the notice should disclose the part broken, 895, #
Effect of plea of *' non est factum," 680.
Other defences must be specially pleaded, 680.
Criminal Conversation.
Payment of damages into Court not allowed, 227. ,
County Courts no jurisdiction, 582.
Cross Examination.— See " Witnettes."
Curia Adrisari Vult, continuance by way of imparlance abolished, 602.
Date.
Of writ of summons or capias, 32:
Of service thereof to be endorsed on writ, 70.
Affidavit of service to mention the day, 71.
Death of Parties not an objection to signing final judgment, 276, o.
0/ plaintiff or dtfendant, action not to abate, 874. [875.
0/ two or more plaintiffs or dtfmdantt, action to proceed between suivivors,
Of a sole plaintiff.
Legal representatives may proceed by suggestion, 876.
Form of suggestion, 876, a.
If before trial, suggestion to be trieu, 876. <
0/ a tole defendant. \
Before issue joined, 877. \
After issue joined, 877.
Service of pleadings, &o., on the executor, 377.
Executors to appear in ten days, 878.
Form of suggestion, 378, t.
Form of notice, 878, k.
Proceedings on appearance of new defendant, 878. [878.
' In cose no pleadings before death suggestion to form part of declaration,
In case declaration filed, and no plea before death, new defendant to
plead to declaration and suggestion, 878.
If plea filed before death, new defendant to plead to the suggestion
only, unless leave given to plead fresh matter, 879.
Continuation of the pleadings to issue, 879.
If plaintiff recover, the judgment thereon, 879. ..
Defendant succeeding entitled to costs, 879, t. ' . ^^
Cf either party between verdict and judgment.
Error not to lie if judgment entered within two terms, 380.
Actions on torts and contracts included, 380, v.
Non-suits not included, 880, v. ^
After interlocutory judgment.
Final judgment after, may be signed notwithstinding death of party,
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Death of plaintiff not an abatement, 8S1,
Except in particular cases, 881, b.
Death of defendant not an abatemc iike manner, 881.
Writ of Revivor.
By plaintiff, his executor or administrator, 881.
Form of writ. Schedule A, No. 11, 542.
Proceedings on appearance or default, 881.
Damages, how ascertained, 882. ->>•-< . ^i-
Trial, judgment, 382. ,i
Btfore interlocutory judgment actually tigned. a.
Not within the Statute, 881, a.
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771
Death of Vartln.— (Continued.)
Compultory proeeedinga.
By defendant against the party entitled to proceed, 888.
Sammona and order, 883.
Form of order, 884, u.
Suggestion of defaalt, 884.
Judgment for costs, 884.
Form of suggestion and judgment, 884, w.
Debt.
Plea of denial may be pleaded with other pleas, 259.
Debts, attachment of.
See " Ahaeonding Debtor," " OamUhee,** •« Judgmtnt Cfreditor.**
Declaration.
To be filed, when Summons ifot specially Indorsed, 126.
With notice to plead, 126.
Plaintiff not declaring within one year, to be out of Oourt, 214.
" Must serve a« well as file within that time, 214, d,
*' Where cause removed from inferior Court, 214, «.
Commencement of declaration, 216.
Venue, 216, i. V,
Suing by attorney or in person, 215, /. -
By prochein amy, 216, k.
Upon Summons, 216. '" '' ' .' ■,■ < ■• ^ ^ :■■-■/
Upon Capias, 216. i ^ > i^ ^
Conclusion, 216. / ' X\ . ;•■,•,■• •* •. , .*>
After plea in abatement.
For non-joinder of a defendant, 216.
For libel or tlander. • ; .i .• •
Averments in, 217. • .( .- ■> .i>f'
Indorsement of declaration.
Notice to plead, 220.
Time to declare. A«. ' •
Side bar rule abol.ahed, 694. y9(f
8e& also ^* Forma in pleading."^ v ■
Defamation. . , • . : , "
Se9 ** Libel and slander." • i ;■
Default.
• SW* Judgment (by default.)" ^r- « • ; /■
Defence. f
Formal defence in pleading not required, 222.
Arising after commencement of the action, how pleadable, 228.
Plea not stating that the defence arose before or after aoUon to be^
deemed a plea of matter before action, 222.
Defendant.
When entitled to costs on arrest, 88, o. ' . j ,v
Description of, in in affidavit to hold to bail, 48, {*). '
Demand of plea. ■• j*'
Unnecessary, 219. See ** Declaration." • i;-^*'
Demand of possession — see " Ovcrholding tenant." ;;i fi.ii
Demurrer. ■ ;*
To be substance only, 196. ' '
Ground of action, 198, p.
Upon issue joined, court may give judgment ou the subatano* without
regarding form, 198.
Pleas, when demurrable, 200, (*). i
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INDEX or BUBJSCT8.
Donarrer. —(Continued.)
' Replication, 202, (•).
Rejoinder, 208, (*).
' Dimurren distributiTe, 241, v.
Either party may, by leave, plead and demur at the same time, upon
affidavit, if required, 248.
■Ftrm of, and reguUite.
Form, 267.
Must be entitled of the proper Court, day and year, 267, h.
Must contain the part only of the pleading demurred to, 699.
If more added, costs will be allowable, 699. ^i
Matter of law, to be stated in the margin, 267.
Setting aside, as frivolous, 267.
■iTtinder on demurrer.
Form of, 269.
Wixfver of plea.
After demurrer, not allowed without leave, 694.
Practice on demurrer.
Four days notice to opposite party to join in^ 697.
Form of notice, 697, b.
Rule for concilium abolished, 697.
May be set down by either party for argument, 698. ■yy.^.'i
Notice thereof to opposite party, 698. i
/Will of notice, 698, A. • 1 i ^3
•Cannot be set down, before joinder, 608, h.
Party joining in demurrer, must deliver to the opposite party exceptions
to former pleadings, or be precluded taking such on argument, 698.
Exceptions must be entered on the demurrer books, 699.
Consequence, if omitted, 699.
Demurrer Books.
Copies to be delivered to the Judges, four days before argument by the
party setting down, 699.
In case of neglect, case not to be heard, 699.
And demurrer may be struck out, 699, p.
Judgment for plaintiff.
Form of, where damages assessed before a County Court Judge, 697.
Denial.
Plea of, as to plaintiflTs right to property, with other pleas, 260.
Deponent. .;','«i
Description of, in affidav'.t to hold to bail, 41, (*).
Depositions.
Upon examination of witnesses, where to be left, 848, 611.
May be read in evidence, 843, 611.
See alao ** Examination."
:I>epnl7 Clerks of the Crown.
To give security for due performance of duties, &c., 728.
To be supplied with blank writs by Clerk of tho Process, 6.
Such writs to be issued alternately, 6.
But not to affect concurrent writs, 6. ^
Cognovit.
May enter final judgment on, 12.
And issue execution, 14.
Taxation by, may be reviewed, 16. ' |
When liable for costs of revision, 17. - .
Other duties.
Offices, where to be kept, 18.
INDEX OF SUBJECTS.
778
Deputy Clerks of the Croym.— (Continued.)
* Days «nd hoarb to be observed, 18, 19.
May issue rules to return process, 20.
To keep books for minuting and docketing judgments, 24.
What such minutes should contain, 24.
Judgment rolls to be transmitted to principal office at Toronto within
three months, 26.
May give oertifloates of judgment, 25.
Contents and effect thereof upon registration, 26.
Memorandum to be marked in margin of writs, 83.
To be Clerks of Assise, ex officio, 298, /.
Filing papers, at private residence, and out of office hours, irregular,
19. X.
Delivery of a paper to in the street, not a filing or entering, 19, z.
Liable to attachment for issuing process without authority, 19, x.
To transmit N. P. records and exhibits to principal office at Toronto
within twenty-four hours after notice, 729.
De tuner.
See «< ChatttU."
Count for, of plaintiff's title deeds, 546.
Detention of Chattels.
See *♦ (?AoWefe.'* • ;/'
Detinue.
See «♦ ChafUh."
Effect of plea of non-detinue, 682.
Other grounds of defence must be specially pleaded, 682, g.
Payment of money into Court, whtn, 227, «.
Judgment by default, final, when sum endorsed, 274, e.
Form of writ of execution for a specific return of the amount, 707.
For levying assessed value, 707.
Discharge. *
Of prisoner, on a ca. sa., 355, 356.
Plea of, with other pleas, 260.
Discontinuance.
Defendants consent to, not necessary, 603.
Rule for, contents of, 604. , *
Refused pending a stay of proceedings, 604, f. ;-
Discovery.
Application for, by a party to the suit, 382.
Affidavit, statements in, 333.
Against a body corporate, 835. **''
Answer, by affidavit, 336. < '.
What it must shew, 336.
Order, 887.
See also '* EximiHation c/ Witneftea."
Discredit of Witness.
See "Wi^fiMs."
Disputed wiiting.
Attesting witness not necessary to prove, 312.
May be proved otherwise, 313.
ComparisoQ of, with other writing, 314.
Distributive pleas.
Nature of, 240.
How o^tnstrued, 241.
Issue thereon, 241. i ' : "?*
Verdict, 242. ; M
Costs, 243. ' ! u ^,?
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INDVX or BUBJKGTB.
IMstringM.
Form of writ in detioue, 707. *
Dooament.
Rule for prodaotion of, 824.
Application for discoTery of, 888.
Agunst a body corporate, 886.
Affidavit, statements In, 887. '
% Answer, by affidayit, 886.
What it must sliow, 886.
Order, 887.
Double pleading.
• Allowable by leave of Court, 250.
By plaintiff as well as defendant, 250.
Affidavit, when requisite, 256.
Dower, action of.
Defendant may plead several matters, by leave, 250, a.
Drawer.
Count by drawer against acceptor for non-payment, 645.
By payer against the drawer for non-acceptance by drawer, 645.
Ijjectment.
Action to be commenced by writ, 891.
To be directed to the persons in possession, 891. i
And to persons entitled to defend the possession, 892. j
Property to be described in the writ, 892, 4
What deemed a possession, 891, y.
What a sufficient description of property, 892, b.
Contenta of the writ. *
To state the names of all persons in whom the title alleged to be, 898.
To command defendant's appearance, 398.
Within sixteen days after service, 893.
With notice of consequence of default, 898.
Test of the writ, 398.
Where issued, 893.
Duration of, 893. ' V>
Form of writ. Schedule A, No. 12, 642. "-■ "
Memorandum in margin of, 402, e. ^
Setting aside, when issued out of the wrong county, 402, k.
Attorney's name to be indorsed, 394. v
Amendment of indorsement, 394, p.
Xotiee of plaintiff's title.
Notice to be attached, 394.
Restricted to one title, unless leave given, 895.
Claimant confined to proof of title in notice, 895.
Not obliged to set out documentary proof in notice, 895.
In ejectment for breach of covenant in a lease notice should disclose the
covenant broken, 895, ».
Service of writ.
How effected, 895. ^
In case of a vacant possession, 896, 397, 398. •- ■
Appearance,
Mode of, 399.
Notice of defendant's title to be filed with appearance, 899.
Appearance by party not n:imed in the writ, 400, 635.
What deemed a possession by such party, 401, e. ' \
Entry of appearance, where, 402.
Appearance by landlord, 408.
Landlord may appear jointly with tenant, 408, y. . .v,
niDBZ or 8UBJ10TI.
775
fi^^timmt— (Continued.)
"Defmee a» to part of ike prsmUet.
ProTision for, 408.
Notice and dMoription of the part defended, 408, 404.
Serrioe of sooh notice, 404.
form of notice, 404, n. [whole, 404.
Appearance without Buoh notice to be eonsidered appearance for the
Pariieuiart.
Insufficiency of, ground for better parUcnlara of breach of covenant, 404, f .
Dtfenet ofptrtont not in potteation.
Subject to control of Court or Judge, 406.
Judgment oy d^ault.
For % kVA of appearance, 406.
As to i.'.'^ part undefended, 40S.
Requisites Irsfore signing judgment, 684.
Form of, if for the whole, Schedule A, No. 18, 642.
Form of, if for part only. No. 14, 648.
Isiue.
How to be made up, 406.
Farm of, if for the whole. Schedule A, No. 16, 648.
Form of, if for part only, « •< 16, 648.
Special ease. y
By consent of parties, 407,
Rteord.
Particulars of claim and defence to be annexed to, 407.
Trial and verdict.
Question to be tried, 408.
Entry of verdict, form of. Schedule A, No. 16, 648.
Change of title after service of writ, 409.
Order for trial, in another county, 409. '
Suggestion of, on the record, 410.
Form of summons for, 410, /.
Form of suggestion, 410, g.
ybn-»mt.
In default of claimant's appearance, 410.
Verdict.
In defikult of defendant's appearance, 410, 685.
Special verdict.
Finding of, by Jury, 410, 635.
BUI of Etctptions.
May be tendered by either party, 411.
Statement in, 411, m.
Judgnunt.
Where claimant recovers, 412.
When it may 'be signed, and execution issued, 412.
Cotta.
Of claimant, upon verdict for him, 412.
Of defendant, <• " <• 418.
Claimant may have separate writs for possesdon and costs, 418.
Joint tenancy.
Appearance and defence by a joint tenant, 413.
Ouster, proof of, 416.
Judgment, 416. .'
Death of claimant.
Action not to abate, 416.
May be continued by suggestion, 415.
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INDXX Of SUBJIOTS.
lyeotment. — ( Conli9utd. )
Suggestion, not trarenable, 416.
May t>e set Mide, if untrue, 416.
In oaae of d«Atb of one of several ol&imMiti, 410,
If after verdiot, 417.
If of a sole claimant and before trial, 417.
Or one of several claimants, 417.
Suggestion of death of sole claimant after trial, *418.
Denial of, bj defendant, 418.
Trial of, 418.
Verdict and costs, 418.
Death of defendant.
One of several, before or after Judgment, 418.
Suggestion of, not traversable, 418.
May be set aside if untrue, 418.
Of defeidants before trial, 419.
Suggestion of, not traversable, 419.
May be set aside if untrue, 419.
Judgment for claimant in default of appearance of new defendants, 419.
Appearance of new defendant, 419.
Death of defendant after verdict, 419.
Death of defendant before trial defending separately for a portion of the
property not defended by others, 420.
When defending separately for a part defended also by other defen*
dants, 420.
Diaeontinuanee, «
As to one or more defendants, 421.
Judgment for defendants' co>ts, 421.
Form of. Schedule A, No. 17, 648.
Effect of, in nolle prosequi, after judgment, 421, u.
/brm of, notice, 421, V. - ..v ,
By one or more claimants, 422. .,.,..,... ^ «
Clamant not proceeding to trial. ,,,, V •*
Judgment for defendant, 422.
Form of, Schedule A, No. 10, 644. ' «
Cor{fet9ion of Judgment.
By one or all the defendants, 422. ' i;^.
Judgment and execution, 422. i>..
Form of. Schedule A, No. 19, 644.
By defendant for a portion not defended by other defapdaots, 42Z.
By defendant defending separately, 428.
Miteellaneout.
Entry on roll unnecessary in first instance, 424.
Effect of judgment, 426.
Notice by tenant to landlord of action, 426.
/brm of notice, 427, /.
Penalty for neglect of, 427.
Ejectment by mortgagee agninst tenant of mortgagor, 426, e.
Defence by landlord, after judgment against tenant, 427, j).
Ejectment by landlord against tenant for non-payment of rent, 428.
Service of writ, vacant possession, 428.
Judgment, 429.
Without relief, at law or in equity, when, 430.
Defendant's cost$i, on non-suit or verdict, 431.
After judgment against tenant, mortgagee of lease may redeem on
certain terms, 481.
INDEX or STJBJIOTS.
Tti
,419.
of the
defen-
tjjeotment. — (Continued.)
Relief in equity, how obtninnMe by leeaeo, &o., 482.
Aooountability of landlord, 488.
Payment by tenant of deflolency, 484.
Dieoontinuance before trial on payment of rent and costs, 485.
Overholding trnant.
EJeotmeat against, 436. "*
Notice to find ball for damages and cost, 487.
Rule to show cause, 488.
Order, 489.
Judgment in default of security, 430.
Form of judgment. Schedule A, No. 20, 644.
Landlord's remedy under 4 Wm. IV. o. 1, not to be effected, 440.
Mesne profits, recovery of, 440.
Reservation of other remedies, 444.
Mortgagee, action by, 444.
Payment into court, by mortgagee, 444.
Must be of the whole amount, 446, ff.
Rule for surrenderinji; mortgaged lands, 446.
Form of rule, 846, j.
Right of redemption, when disputed, 447. ' \
Disputing mortgagee's title, 447, m.
Contract for equity of redemption, 447.
Security for costs, in second action, 448.
Jurisdiction, in general, 450. .^
Defendant entitled to judgment and costs of "nonsuit," 692.
Form of writ of Habere upon judgment by default, 708.
•* " Habere and fi. fa. where defendant has appeared, 703.
" " fi. /«. for costs only, for plaintiff, 708.
«< « Habere, on a rule pursuant to an award, 708.
Equitable defence.
yUxea pleadable, 731. < .
Commencement of plea, 732.
May be set up by way of audita querela, when, 474.
Replication, 476. ., r^
Commencement of, 477. .. ■ .
Striking oat equitable pleadings, when, 479. ' '
Error and Appeal.
Within what time writ must be issued, 488.
In case of disability, 489.
Repeal of s. 89 of 12 V. c. 03, 717. *•
Court, how to be constituted, 717.
Powers of the Court, 718.
Sittings, 718. • ^ .
Provision as to pending eases, 718.
Court may quash proceedings in certain cases, yii :
yrhcre error and appeal does not lie, or where brought against good
faith, and award restitution of costs, 718.
Appellant may at any time discontinue, 719.
Respondent may consent to reversal, 719.
Appeal not to abate by death of appellant, after security given, 719.
Nor by death of respondent, 719.
Appeals from the Queen's Bench and Common Pleas.
When appeal shall lie, 719.
Shall lie on rules to enter verdict, &c., on points reserved, 720.
And on rules for new trials, when, 720.
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INDBX oy lUnjlOTB.
Error and Appeal. — {ConHnutd.)
Notloe of MpMl to b« giT«D, 720.
Appeal in ejectment, 720.
" on Djr-lawi quashed bv role of oonrt, after argnment, 720.
No other appeals allowed, unieee on matter of record, 720.
Writ of error and appeal abolished, 721.
Proceedings in appeal on error in law, 721.
Proceedings to be deemed a supersedeas of execution, 721.
Aesignment and Joinder not nooesBnrj, 721.
Koll, how made up and within what time, 722.
Proceedings wh^re one only of several parties appeals, 722.
Setting down cause for argument, 722.
Appeals upon rules to be on case stated, 722.
Copies of the judgment or case for the Judges, 728.
Provision in case of the death of one of several appellants, 723.
In case of death of a oolo appellant, his representativea may continue
by suggestion, 728.
Where one of several respondents dies, 728. *
In case of the death of a sole respondent, appellant may continue
against his representatives, 724.
Marriage of a female appellant or respondent, 724.
Appeals from Chancery.
Mode of proceeding, 724. ^
Within what time appeal must be brought, 725. ^
Appealt to Privy Council.
Security for, how approved, 725.
Recovery of costs, when awarded by, 726. ' .
Eulet and Regulationt.
The Judges authorised to make, 726. , , >
Form of note of error, 727.
<* denial of, by suggestion, 727.
" petition of appeal from the Court of Chancery, 727.
Escape.
Must be wilful, 504, w. , ,, j. ,,
When by mistake, 504, w.
When imperative, to quell riot, &c., 504 ,w.
' Sheriff neglecting to obey order for re-committal, 604, x.
Bound to produce debtor within a certain time, 505, z.
ESect of plea of •< not guilty," in action for, 687.
Evidence.
See "Admitaion of Documenta" "Affidavit^" ** Arhitralion," '* Exami-
nation," *' Handwriting," *' Trial."
Examination.
Of person refusing to make affidavit, 831.
Application for, by summons ami order, 831.
Codts of application, and proceedings, 832.
Proceedings upon order, 832. .
Of a party to the auit.
Plaintiff by leave may deliver interrogatories with declaration, 388.
And defendant, with plea, 888.
Nature of interrogatories, 889.
Application for leave, how made, 841.
Affidavit in support of, 341.
Interrogatories should be submitted at the time of application, 838, t.
Application may be made a/ltr declaration or plea, 838, u.
Or after issue joined, 388, u.
Rxi
Eseou
a
INDEX or 8UBJE0T8. 770
RitmlnAtion.— (Cofi<inu«</. )
The pUlntiflr, a foreigner, aul^oot to tDterrogatoriei, 839, «.
Extent of diicoTery, 380, y.
Answer to interrogatories to be filed in ten days, 840.
Omission to be a contempt, 340.
Where plaintiff or defenuant unable to Join in affidavit, 841.
Insufficient answer, 842.
Oral examination, rule for, 842. ,
Production of documents, 342.
Effect of rule, 842.
Costs of application, 342.
Depositions, where to be Icept, 843.
May be read in evidence, 848.
Special report by examiner, 844.
Cost of original application and order, 846.
Of witnettei, viva i)oc«, 826.
Motion for, 826.
Defore whom examination to be benrd, 826.
Rule for attendance of witnesfles, 320.
Disobedience to, a contempt, 820.
Proceedings thereon, 826.
Expenses of witneFses, 320. . '
Adjournment of bearing, 827.
Depositions, where to be filed, 843. - • . • , ' '•'
Office copies, may be given out, 343.
Depositions, may be read in evidence, 848, "
Execution.
Writs of, whence issued, 14, v.
Writ of fl. fa., 16.
Writ of ca. sa., 17.
Rules to return may be issued by deputies, 20.
Memorandum in margin of writ, 33.
Issuable on final judgment, where writ specially indorsed, 125.
Where writ not specially indorsed, 127.
Immediate, after verdict.
When and how issued, 346
Entry and record of judgment, 848. ,,
Setting aside judgment, 849.
Effect thereof, 349.
Application, when to be made, 849.
Separate execution for verdict and costs, when, 848, v.
Date and teste of writ, 368.
Duration of, 863.
Renewal, 366.
Effect of renewal, 355. ,
Evidence of renewal, 355. -
Against Debtor on Gaol limits.
May be issued against lands or goods, 611.
Exception of wearing apparel, tools, &c., 612.
Issuing Execution.
Entry of proceedings on the roll requisite, 619. ' 'v
Prsecipe to be filed, 619.
Endorsement on the writ, form of, 619.
Name of the attorney issuing writ to be endorsed, 620.
Or of the party in person, 620.
Teste of the writ, 620.
,•» f]
't
. \
II Ml
^.
, \ . .V
^■.
4.. •
INDEX OF SUBJECTS.
780
Exeontion. — (Continued.)
Againit Oooda.
Form of the writ of fl. f». in assaaipBit, 701.
The liko, in debt, 701.
The like, ou a rule for payment of money under a judgment under
seo. Izzxiv, 701.
Money, bank notes, surplus of former execution, cheques, bills of
exchange; and other securities seisable under, 735.
Securities seised how dealt with, 736.
Payment to the Sheriff, valid, 787.
Sheriff not bound to sue, until security given, 786. '
Necessary wearing apparel, bed and bedding, &c., to the value of £15
exempted from execution, 512, 786.
Againtt landt.
Writ may be executed by Sheriff's successor, 852.
Former Sheriff may execute conveyance, 852. ^^.
Advertisement, the inception of execution, 863.
Receipt of writ alone insufficient, 853, b.
/V>rm of the writ of yl. /a. against lands, 701.
Executor and administrator.
Proceedings against upon a judgment of assets in futuro, 884.
Action for or against, character on record not to bo in issue unless
specially denied, G72.
Security for costs by, when, 072, p, '
Fact.
Question of, when agreed upon, triable by issue, 156.
Consent and order therefor, 166.
Prooeedint{s to be subject to tho control of the Court, 157. ^
Parties may agree for payment of a fixed amount upon the finding, 157.
With or without costs, 15B.
Judgment and execution, 158. '*'■
Setting aside verdict, new trial, &o., 158. /
Proceedings may be entered of record, 159.
Form of issue, 641.
False evidence.
Under this Act (1856) pei^ury, 612. ' ^" ;
False imprisonment. - ..
Payment into Court, in general, not allowed, 227
Exceptions, 227, /. .7.
Fees.
See **Coat».'* "^ ' '
Femme Covert.
8e% ** Husband and Wife."
Fictitious appearance.
Application to set aside, must shew the fact, 130, v.
Fieri facias.
Writ of, 16.
See also " £xtcution."
Final judgment.
See " Exeeulion," "Judgment."
Folio. ^ ' " : -*
Meaning of, 100 words, 666.
Force and Arms.
Statement of in pleading immaterial, when, 104.
Foreigner.
Suing as plaintiff liable to examination on intorrogatorief, 839, v.
Form of process against, 537.
\.,..,.
INDEX OF SUBJECTS.
781
Form.
ler
of
S16,
inless
5,157.
Demnrrer to be for substance only, 196.
Court may give judgment without regarding form, 199.
Judgment not to be arrested, &o., 203.
Formal defence.
Not required in pleading, 222.
Forma in pleading.
On contracts
Count for money payable by defendant to plaintiff, 645.
« for goods bargained and F>old, 545.
" for work and materials, 545. '
" for money lent, 546. " '
for money paid, 645.
for money received, 645.
for money due on account stated, 545. ' \
for purchase money, 645.
for use and occupation, 545.
for hire, 546. > » '• ■ ' '
for freight, 545.
for demurrage, 545.
by payee against maker of promissory note, 546.
by indorsee against indorser, 645.
by drawee of bill of exchange against acceptor for non-payment,
645.
by payee against the drawer for non-acceptance of drawee, 545.
for breach of promise of marriage, 546.
on warranty of a horse, 546. ^
on charter party, 546.
for non-payroent of rent, 546.
for non-perlormance of covenant to repair, 546.
For wrongs independent of contract.
Count for breaking and entering plaintiSPs door, &c., 648.
" for assault and battery, 64G.
for seduction of plaintiff's wife, 546. ' i
in trover, 546.
for detainer of plaintiff's title deeds, 546.
« for diversion of a mill stream, 546.
«• for malicious arrest, 547.
" for slander, 647. •
" for libel, 647.
Pleas. »
Form of commencement, 547.
Of second plea, 547.
in actions on contracts.
That he "never was indebted" as alleged, 547.
That he "did not promise" as alleged, 547.
That the alleged deed "is not his deed," 647.
Statute of llmitiitions, 647. „ ,:* «s
Of payment, 647. , ' .' '
Of set-off, 647. . . -
Of release, 647. ■.■
For wrongs independent of contract. , ,. ,, , ..
Not guilty, 518. , , • ' -
Leave and license, 548.
Assault by defendant in his own defence.
Of a right way, 548.
1 \y n
l<
tl
It
l<
<(
<i
(C
l(
(I
<c
(<
iC
((
It
(I
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<(
«
ii! \
'lT\
If
782
INDEX or SUBJX0T8.
mmm
'>fln>
m
m
•3.
Fonns in pleading — on eontraett. — (Continued.)
Beplications.
Issue upon defendant's first, second, &o., pleas, 648.
As to defendant's second plea, answer, 648.
That the alleged release is not plaintiff's deed, 648.
That the alleged release was procured by fraud, 648.
That the alleged set-off did not accrue within six years, 648.
To alleged assault of plaintiff that defendant was trespassins on nlain-
tiff's land, &c„ 648. r o f
Non-enjoyment of right of way for twenty yeurs before suit, 648.
New ataignment.
For other trespasses than those admitted, 648.
^f plaintiff replies and new assigns.
Form of new assignment, 649.
If plaintiff replies and new assigns to some of the pleas, and new assigns only
to the others.
Form of new assignment, 649. , .^^ .
Forma of Proceedings.
Contained in Schedule A. to new rules Trin. Term, 1866, to be used, 666.
Forms of Writs.
Mesne Process.
Writ of Summons when defendant resides within the jr.risdiction, 636.
Writ of Capias, 636.
Writ, where defendant being a British subject r<isides out of Upper
Canada, 687.
Writ, where defendant not being a British subject, 687.
Writ of Capias in action already commenced, 639.
Writ of Attachment, 640.
Writ of Revivor, 542. . - -.t '
Writ of lyectment, 542. ' ' • • . ' , " ^
Writ of Trial, 696. ■ ' : •*^'' ,,]
Writ of Inquiry, 697.
Writ of Inquiry to try issues and assesses contingent damages, 699.
Final process.
Fieri Facias on a judgment for plaintiff in assumpsit, 701.
" in debt, 701,
" against lands, 701.
*< on a rule for payment of money under a judgment in form
No. 27 (page 700), 701.
" on a rule for payment of money and costs, 702.
Capias ad satisfaciendum, on a judgment for plaintiff, 702.
" on a rule for payment of money, 702.
" on a rule for payment of money and casts, 702.
'* on a rule for payment of costs only, 702.
Writ of Execution, when the Court or Judge decides on matters of
account, 703.
" when decided by an arbitrator, officer of the Court, or
County Court Judge, 703.
Ejeetment.
Writ of habere facias, in ejectment upon a judgment by default, 703.
" habere facias and fi. fa. for costs upon a judgment for plaintiff,
where defendant has appeared, 703.
'* fieri facias, for costs only, on a judgment for plaintiff, where
defendant has appeared, 703.
•< habere facias possessionem, on a rule to deliver possession of,
and pursuant to an award, 703.
¥on
Freight
Privoloi
Gaol Iim
Tntern
Exeeui
ol
Qanishee.
Sd
n
INDEX or SUBJIOTB.
788
Forms of Writs. — (Continued.)
Garniahee.
Writ of fi. fa. against, when debt not disputed, or gamisliee does not
appear, 704.
** ca. sa. in the like case, 704.
" against garnishee, to shew cause why judgment creditor shonld
not have execution against him for the debt disputed by
him, 704.
« fi. fa. thereon, 706.
" ca. sa. thereon, 706.
Mandamus.
Writ of inquiry to ascertain expenses, 706.
Detinue.
Writ of execution, for the return of the chattel and distringas, 707.
The lilce, for levy of the assessed value, 707.
Under the Act of \%bl.
Form of Writ on bills and notes after Ist July, 1858, 741.
Freight.
Count for, 545. =' ' • < '■ • ■ ■■••'•.■ - . ^ ■.. j
Frivolous pleas. ^ • :- ■.■; .,,,,,'
StrilLing out, by Judge's order, 204. '.■,■-, ' '
Oaollimits. ' ' '
Defined, 501.
Bond to Sheriff, 502. r •
When it may be taken, 508, r. . • ■ . r
Insolvency, no exonoretur, 503, r. -.^i. \-
Sureties, amount, condition, &o.,' 603. " --
Justification, 504*. . , *
Form of affidavit, 505, z.
Affidavit of execution of bond, /orm of, 605, <f.
Further condition in bonl, 737. ....
J 'i Allowance of bond by County Court Judge, 787.
Exonoretur of Sheriff after allowance, 737.
•^ Allowance of bond, proceedings for, 738.
Discharge of debtor from close custody, 606.
Sureties becoming insolvent, 606. "-
Liability of debtor to arrest 607.
Discharge of, on giving new bond, 607.
Assignment of bond.
Form of, 508, ».
Action by assignee, 508. ' 't J
Discharge by Sheriff, 609.
Surrender of debtor.
By the sureties, 609.
Must bti before breach, 509, y. '**
Debtor may give a new bond, 510.
Interrogatories.
DeMor on limits bound to answer, 510.
Re-committal in case of default, 611. ' '^>vr;L .
Re-admission to limits, 511. '.-^
Execution against lands or goods.
Of debtor on limits, 511.
Wearing apparel, tools, &c., exempt, &c., 512.
Garnishee.
Sm tAao " Judgment creditor."
Proceedings against, in what court to be taken, 620.
II
P'^
g^"
.ti;
;.-:. ■ I
■' i
i' '
784
INDEX or SUBJ10T8.
.Iv"
feyfe'!*!
Chtrnlshee. — (Continued.)
Entrjr of in debt attachment book, 620.
Who deemed a garnwhee, 860.
May be an individoal or corporate body, 864, m.
Order on, to shew oaase why he should not pay Judgment creditor 860
Service of order binds debts, 868. '
Execution against, when, 863.
" may be against goods or body, 864, e. ^
Proceedings where debt of, disputed, 864.
Payment by or under execution, a valid discharge, 866.
Attaohisent book to be kept, 365.
I'orai of attachment book, 708.
Unliquidated claims not intended, 360, I.
Priority of charges not affected, 860, I.
Debts in preesenti with a solvendum in future, liable, 860, 1,
Order in such case, 860, /.
Debts assigned not liable, 360, I. ^
Lien of garnishee protected, 3G0, I.
Plea of, to action by original creditor, 365, o. i
Form of Ft fa. against garnishee, under sec. cxcvi, 704.
Form of Ca. Sa. in the like case, 704.
" of Writ against, to shew cause why the jndgn.ent creditor should
not have execution under sec. cxovii, ft^T^J^
^, ,, " of Indorsement on writ, 705. , t
* ■ •''■ »• of Declaration thereon, 706.
•* of Plea thereto, 706. f ;
' ** of Issue thereon, 706.
' ' "of Postea 705.
''«jn =!' „ of Judgment for plaintiff, 706.
" of Fi. fa. thereon, 706.
" of Ca. Sa., 706.
Proceedings where the amount claimed is within the jurisdiction of a
County or Division Court, 733.
General Issue, Plea of.
Payment, when proveable under, 677, d.
When title to goods, or sale disputed, not allowed, 676, e.
When goods sold for ready money and payment accordingly, plea of
general issue sufficient, 679, m.
So in case of pre-payment, 679, m.
Under statute, marginal reference <o the statute requisite, 691.
'^ Insertion of, also in margin of issue and record, 691.
Omission, when not amendable at nisi prius, 691, b.
Ooods.
In action for, what statements immaterial in pleading, 196.
Count for, bargained and sold, 546.
See also "Trespass."
Guardian.
Admission to prosecute or defend by, 593. "V'- iv
Habeas Corpus. > ^u
Returnable in vacation, when, 21, x. i ■ i)-. " . ■
Habere facias in ejectment. (v* .»,'m >,t i-^.
/\>fm» of writ, 703. -. •«. ^. ^m ^
Handwriting.
Comparison of, with other writing, 314. \ ' .
High constable. ^ • rj-;-
Appointment of, 760. - 'v nv. . .
HL
Ho
Hot
Hug
l> IV
- 1
Idem
Illegal
Illitera
Illusorj
Immatq
ImparlJ
INDEX or SUBJECTS.
785
Hiring.
Count for, 645. .
Holiday.
What inoladed as such nnder Interpretation Act, C67, y.
See a.\ao ^^Computation of time."
House and land.
Count for purchase money of, 645.
Count for use and occupation of, 645.
Husband and wife.
In action for debt to wife, husband may add oluim in Lis own right, 163.
Separate actions, consolidation of, 164.
On death of cither plaintiff, suit to abate only for cw^ of action not sar-
viving, 164.
Causes ex contracto and ex delicto included, 152, r. ,^ ,, .^
AVben necessarily co-plaintiffs, 162, t.
■ -^ Wife cannot join in action upon a contract for her work and labour
during marriage, 152, ^
Exceptionable cases, 153, ^ .
Wife must join in actions for torts before marriage, 153, <. ' ^ ,^,
And for battery, slander, &c., during coverture, 163, t.
Husband alone must sue for words relating to wife not aotioaablo per
I;,', I se., but causing special damage, 153, t.
May join, or •sever, in detinue, trover, or trespass, to personal property
of the wife where inception before marriage, 154, (").
Inception and completion after marriage, husband algue to sue, 154, (>).
Recovery of the wife's land, 154, (').
Husband alone may sue for damages to the wife's reality, 154, (').
Husband entitled to wife's chattels real by survivorship, 164, «<.
And to all chattels given to her during covortuvo iu her own right,
154, w.
. Wife's choses in action before coverture do not survive, but husband
;i ',, must sue as her administrator, 154, w.
Survivorship in wife of her own chattels real and choses in action not
reduced into possession, 155, w.
Survivorship of husband in torts, for which he might havo sued alone
during coverture, 165, ('^).
*^ia .1 Survivorship of wife in torts to herself personally, or her property before
or after coTcrture, 155, {^).
Sci. fa. against husband upon judgment for or against wtfo, how tested
and directed, &c., 372.
Entering judgment on warrant of attorney by wife dum sola, COT, «. ,^i
Idem Bonans.
Mistake in defendant's name, if idem sonaus, not an irregularity, 181, <t.
Illegality.
Must bo specially pleaded when a ground of defence, G78, /. ,;
Ex. gr. maintenance, 679, I.
<' on demurrage, that plaintiff defrauded tlie customs, 679, {.
« money had and received, the produce of au illegal wager, 670, /.
Illiterate defendant. . > , )
Execution of warrant of attorney by, 60C, i.
Illusory or fictitious appearance.
Plaintiff moving to set aside must shew the fuct, 130, w.
Immaterial Issues.
Costs on, 390, t. .... ,;, ,, , , .?,,»,
Imparlance. ^ .,j,
Continuances by way of, abolished, C92. ' '^'
6BB
[|B|
m
M -I
mi
ifr.
m
INDEX OF SUBJEOTS.
Implements of trade.
Exemption of, from execution, 612, 786.
Indobitatua assampsit.
For goods sold and delivered, under the general issue defendant cannot
show that plaintiff had no title to the goods, 678, k.
Indebitatus Counts.
Averment of promise immaterial in pleading, 106.
Otherwise, when it is the consideration of a contract, 106, k.
Indemnifying bail. 1'
If indemnified by defendant's attorney, not allowed to jnstify, 628.
Indorsee.
Count by, on promissory note against indorsor for non-payment, £15.
Indorsement.
See " Special indorsement."
Indorser.
Count against, by indorsee on promissory note for non-payment, 545.
Infancy.
riea of, with other pleas, 2G0.
Infant.
See " Guardian" •' Prochein amy."
Inferior Jurisdiction.
Order of trial of causes, 208.
Initials. \
Insufficient in plea of " non-joinder," 146, 2. ■
In affidavit to hold to bail, 41, (').
Injunction.
In what cases issuable, 460. ,
/brma of writ of summons, 463. * '■''^!^ * ;
Indorsement on, 463. ,j ..;v; .^'J-t s-'^ ^^ '
Form of such indorsement, 707. . .
"' Proceedings in such action, 463.
Judgment in, for writ, 463. '^ '
Enforcement of, 463.
May issue at any time after commencement of action ex parte, 463.
Court may impose terms, 465,
Enforcement of writ, 465.
Order for injunction by a single Judge may be discharged or varied, 467.
Inquiry, writ of.
When it may be awarded, 276, t.
See " Writ of inquiry."
Insolvency.
Plea of discharge under insolvent law with other pleas, 2uO.
' Discharge of debtor, not an exonoretur of bail to the limits, 503, t.
Of sureties, in bail to the limits, 506.
Insolvent debtor.
In what cases entitled to weekly allowance, 492.
Debtor on the limits, not a debtor in close custody, 492, p.
Weekly allowance.
Proceedings to obtain, 493. ;.
Order for payment, 494. n.'^
Amount, 494. , •' ' , '■'•'..'>-.
Discharge if not paid, 494. *• - - ^ • > j ? •'
Effect 0^ if on mesne process, 494. t ' '
Rule for allowance not to be made pending interrogatories, 495.
ed Controversion of answers to interrogatories, 496, u.
Interrogatories after order made, 496. '*. ,'
INDEX OF SUBJECTS.
787
i-
InsolTent Dtthiat.— {Continued.)
StayiDg allowanoe until answers filed, 497.
IntprrogAtories after dofault in payment, bat bofore discharge, 497, b.
Arrears of, not recoverable, 497, ff.
Debtor in custody in soTerol suits entitled only to one amount, 498.
Default in payment, 498.
Interrogatories, joint, 498.
Apportionment of weekly allowance, 498.
Allowance recoverable by plaintiff, 498.
Diteharge.
Where debtor in custody over three months, 499.
Oath that he is not worth £5, 499.
And has answered interrogatories, 499. , ..]
Or has not boon served with any, 499. v- ■ *■ '
Further requisites in affidavit, 656.
, Proceedings, 500.
Court may grant time for filing farther interrogatories, 500. -•>
Condition of discharge, 500.
Re-committal, in what oases, 501. ' . i^A
Action^ Atitgnee.
Character in which plaintiff or defendant sues, or is sued on record, not
to be in issue unless specially denied, 672. ,
Inspection of documents. ' ' ■ i . . mi 1
Rule for, 825. . * "
Restricted to a certain class, 827. ^
Rule and order by County Court Judge, when, 735. ^ .>i
See aXao ** Admission qf documenls," ** Trial." ., .
Inspection of property. • ■ '
Rule for, by Jury, party, or witness, 828. * ., * ''
See also «• Ki«w."
Interlocutory judgment. [275, o.
Final judgment after, may be signed notwithstanding death of party.
Distinction bctwcea interlocutory judgment and judgment by default,
616, r. > -
Interrogatories.
See ** Etamination," " Gaol limits,"^ ** Insolvent debtor."
Interpleader issues.
Within the provisions of s. clxviii, 322, t. l
By Sheriff, in oases of attachneat against absconding debtors, 738.
Irregularity.
Setting aside process or proooedings for 640. ■;
Must be made within reasonable time, 640. . ' ..,
Computation of time in such oases, 640, /.
Must be made before any fresh step, after knowledge of, 641.
Summons must state the several grounds, 641. » Mi.
Costs, 641.
See iJso ** Setting aside process."
Issue.
A-r.;
See '* Fact," ** Special Case." • .'/ . ,
Issue Books.
To be made up and delivered according to practice in Edgland, 611.
i^orrn of an issue in general, 693.
•' of issue under 80C. 1 XXXV., 693."
*' of an issue when directed to be tried by a County Judge, 696.
*< of issue, when issues in fact to be tried, and damages assessed on
^'' *' default, or on issues in cases before the County Court, 698.
i':
I i: .'■
78a
INDEX 01* SUBJECTS.
Ifliue, Joinder of.
Bj either party.
Form of, hj plaintiff, 246.
« of, by defendant, 246.
Where plaintiff's pleading ia in denial of the defendan^te, 247.
Joinder in Demurrer.
Form of, 269.
Joinder of actions.
Against same parties, in the same rights, 149.
Beplerin and ejectment excepted, 151.
Joinder of parties.
0/ plaintiffs be/ore trial, 186.
Their liability, 136.
Joinder at trial, when, 187.
Mast be before Terdiot, 187,/.
Terms, 139.
Effect of such joinder, 189.
0/ defendants upon plea in abatement, 143.
Amended writ to be served on new defendants, 143.
Commencement of action as against them, 143. ,
Costs of plea in abatement for nonjoinder of defendants, 144.
Costs of amendment, 144, q.
Judgment against defendants liable, 144.
Defendants not liable entitled tr> costs, 144. I
Consent in writing of party added to be filed, 594.
Affidavit of handwriting, 594. , . , .
Notice to defendant, when necessary, 594. / ' - ''
Form of consent, 594, /. ,
•Joint Obligor or Contractor.
Action not to abate for non-joinder unless averred in plea with state-
ment of residence in Upper Canada, &c., 145.
Affidavit of verification required, 146.
Plea of "coverture" not a plea of " nonjoinder," 14G, y.
Initial letters in description of parties not joined, insufficient, 146, z.
Plea must state all the co-contractors not joined, 146, 2,
Must shew their domicile or residence in Upper Canada, 146, a.
Must shew a joint contract, although some of the parties non-resident,
Place as well as residence must be stated, 147, c. [146, b.
And the actual residence, 147, d.
Affidavit of verification may bo made by a third party, 148, e.
Joint contract may bo given in evidence against one or more of the
contractors, 149.
Effect thereof, 149. «
Joint Stock Companies.
Sei. fa. against, how tested and directed, &c., 372.
Joint Tenant. ^ -
Appearance and defence by, in ejectment, 418. ;:. ".
Ouster, proof of, 415. '
Judgment, 415. , '''
Judge in Chambers. .^
May open an order granted by himself, 83 ('). ' •«
Or rescind, when, 83 (").
Existing powers of, not to be affected by the Act, 528.
Any Judge of a Superior Court may act, 528.
Judgment.
Proceedings to, may be conducted in. office whence process issued, 10.
INDKX OF BVBJEOTS.
780
'•ii«„.;i
\'Mi
state-
Judgment. — (Continued.)
Entry of, upon cognovit or warrant of attorney, 12.
Judgment book to be kept by deputies, 24.
Transmission of rolls to prinoipal office, 25.
Evidence of, if lost, 26 e.
Certificate of, 20.
Contents and effect of such certificates, 26.
On non-apptaranc«.
Final, how signed, where writ specially indorsed, 124.
Amount not to exceed sum indorsed on writ, with interest and ooste, 124.
Execution, when it may be issued, 125.
Defendant m«y be let in to defend upon terms, 126.
Need not state the grounds of defence, 126, v>.
Proceedings where writ not specially indorsed, 126.
Declaration to be filed, with notice to plead, 120.
Final judgment in default of plea, 127.
Execution, 127.
Proviso, as to costs, 127. ^
By default.
Rule to compute abolished, 278.
.^ In what cases final, 273.
not final, when the whole debt or demand not indotrsable on writ
;»('■. of summons, 274, e.
Nor in actions for torts, 274, e.
Final, in detinue, when sum indorsed, 274 e.
In matters of calculation, amount how ascertained, 274.. ."-'^
Course of proceeding, 275.
Affidavit necessary, contents, 275 o.
May be signed after interlocutory judgment, notwithstanding death of
party, 275, o.
Indursement of amount, on order of reference, 276.
Taxation of costs, 276.
Form of entry of, when damages to be assessed by County Court Jadge,
For not proceeding to trial.
British Statute 14 G. II., c. 17, no longer in force, 286.
When defendant may give notice to proceed, 288.
Suggestion on record of plaintiff's default, 289.
May be set aside if untrue, 289.
Form of suggestion, 289, r. ' .
Arrest of. '
Requisites for, 885, b. ■ ■ \
Motion fojr, 388.
May be made before or after judgment, 389, t.
Suggestion of facts, 389. ">-■-
Plea to suggestion, 389.
Trial of issue, 389. . ■
Onus probandi, 300, o.
Judgment, where suggestion found true, 390.
Judgment, where otherwise, 390.
Costs, 390. , . . ..
Nunc pro tunc.
When and how entered, 617.
Record of.
Date and relation, 616.
Entry of proceedings before issuing execution, 619.
Entry of satisfaction on, 622.
[697.
' ■ m '■
f '
II
700
INDIX or BUBJE0T8.
m
Judgment — {Continued.)
Form of MtisfaotioD piece, 624.
Form of Jadgment for plaintiff on a terdict, 696.
** *' defendant on a plea of eet off and otber
pleas, 696.
Judgment Creditor.
May obtain order for examination of Judgment debtor as to his debts, 8&7.
Before whom, 868.
Application for attachment of debts, how made, 860.
Order on garnishee to shew cause, 360.
Exception as to absconding debtors, 862.
Debts in prosenti with a soirendum in futuro liable, 860, 1.
Order in such case, 860, 1.
Debts assigned, not liable, 860, /.
Lien of garnishee froteoted, 860, I. , ^ . .
Costs of attachment, 865. .^ , .
A debt attachment boolc to bo kept, 866. , ' . ^
Forma/, 708. ', \ ^ , "' .
Judgment in banc. , ., ',
Sittings in racation, 628. ,
> Judgment. — Registration of. [734,
Lien upon land to cease at the end of three years, unless re-registered'
Existing judgments to bo re- registered within one year from the pussinir
of Act, 784. *
.• Certificate of discharge, form of and proof, 786.
Jurat.
In affidavit, 48,^. _., ,
.)J 'Where two deponents, 643.
. ^- Interlineation or erasure in, 648.
•I Certificate in, where deponent illiterate, 644.
Jurisdiction.
Of Courts of Common law, 27, h.
Of County Courts, enlargement of, 680.
Jury.— See " Fiew."
Justifying Bail.
Form of Affidavit, 629.
See '• Indemnifying bail" " Special bail."
Landlord and Tenant.
Notice by tenant to landlord of action of ejectment, 426.
Form of totice, 427, /.
Penalty for neglect, 427.
Defence by landlord after judgment against tenant, 427,/.
Non-payment of Rent,
Count for non-payment, 546. ,>/» ,
Ejectment for, by landlord. , , ...
' Service of writ, vacant possession, 428. . J. .
Judgment, 429. ,. ,
When without relief, 430. , .: .V, .\
Belief when and how obtainable, 432. ,,., ;°
Accountability of landlord, 433. [■,'•>:'
Payment of deficiency by tenaat, 434. [.
Repairs.
Count against lessee for breach of covenant, 54C.
See also '• Ejectment,''^ " Over-holding tenant."
Lands.
Possession of, awarded, 175, g.
"When award directs possession to bo delivered, 191.
' - • '
;.
644.*"
' r
.■,', t h
)i '' »' '.
*. .
<...i t'
n.;
IMD£X OV 8UDJ£0T8.
791
Lands. — (Continued, )
Order for, 101.
Effect of, 102.
Application for order, 101, tn.
See also ** Execution [against Lands)."
Leave of the Court.
Allegation of, in second or othor picas, unnooesaary, 222.
Leave and License.
Plea of, with other pleas, 2G0.
Lessee. — See " Landlord and Tenant."
Libel and Slander. ,
Averments in declaration for, 217.
Payment into Court, in general, not allowed, 227.
Exception, 227, t.
County Courts, no Jurisdiction, G82.
Count for libel, 647.
Count for slander, 547.
Plea of •• not guilty" puts the malice in issue, 680, p.
Under "not guilty," in libel, defendant may disprove publication, C86, j>.
Or shew that it is not injurious, C8G, p.
. , Or published on some justifiable occasion, 086,/?.
' But the truth of defendant's remarks on the report of a trial, &c., cannot
bo proved under "not guilty," 686, p.
In action for libel in a newspaper defendant may plead insertion without
malice, and without gross negligence, and tender of apology, 686, p.
If for slander, circumstances preceding the words spoken may be given
in evidence under the general issue, 686, p.
And so fttcts and circumstances in mitigation of damages, 686, p.
In words not actionable per se '<not guilty" puts in issu^ the special
damage as well as the words, 686, p. [686, p.
Prefatory allegations, evidence ns to, inadmissible under general issue,
Must be taken as true, unless denied, 686, p.
Defendant may shew that the words spoken were used in a privileged
communication, 686, p.
Onus proband! of malice in such cases lies on plaintiff, 687, />.
Llberum tenementum. Plea of.
Effect of, 600, d.
Held bad, in trespass qiiare clausam fregit, 600, d. _ ./
Lien.
Of garnishee protected under attachment, 360, I. . , ;• .^■^,yi,
Sqq '* Judgment creditor." ,, ,. ;
Limitations, Statute of.
Plea of, with other pleas, 260.
Seo &\so '' Statute of Limiiations."
Liquidated demands. r <
May be specially indorsed on summons, 90.
Further particulars not necessary, unless by Judge's order, 01.
Long vacation. is-
No declaration or pleading to be filed or served in, 133.' .:...,,;
Lost instruments. r '<
Indemnity for, how settled, 487.
Lunatic defendant.
Service of summons upon, 75, i.
Malicious arrest.
Payment into Court not allowed, 227. , .
Count for, 547. ,
n-y.i..
:i.1
n
]' i"
iiH
1.
792
INDKX or BUMIOTS.
I I
V A
m
Mandamui.
Orif^inal jiirlnUctlon of Superior Courts not to b« nfTectcd, 457.
Motion for writ, 400.
Kule for, 45».
Teste of writ, 450.
Writ bow returnable, 459. .
Jfotp writ claimabU.
In wliat cases, 461, y. , '
Declaration, etatcmcnts in, 45n.
Pleadings and proceedings, 464.
Return to writ, 454, /. , ' ,
Judgment, 454. ' .
Kxecution fur damages and costs, 455.
Perrmptory writ.
How Issued, 455. •• '•'
Costs, 454, u. 1 , , ■ ' .■
Form of wit, 455. ■ 'u
To be dirootod to the party, 455. . ^ '
May bo issued in term or Taoation, 466. . ' ••
Return of writ, 450. ' ' ' '.'.
Enlarging time for return, 450, tf.
Effect of writ, 450.
Enforcement of obedience by attachment, 450. i
' Court may direct the not required to be done by plaintiff at defendant'ii
costs, 457.
Execution for, 457.
Form of judgment for plaintiff, after terdict under s. colxxvll, 700.
•• of writ of inquiry to osccrtain expenses, 700.
Maps and plans.
When allowable on taxation, C65.
Marriage.
Of female piniatiff or defendant no abatement of action, 882.
' ' ' ■ Proceedings in such case, 882.
Form of suggestion of mnrringo, 882, m.
In case of judgment for the wife, 382.
Wife's attorney, his authority, 388.
Execution may issue by authority of husband, 383. ' *
Marriage, Breach of promise of.
Count for, 646. , - ,
Mmdo process
Discharge of debtor upon for non-payment of weekly allowance not fo
prevent plaintiff from proceeding to ca. sa., 404.
Mesne profits.
Recoverable on trial of ejectment, 4 10.
See also "iyVc/wcn/." . . ' •
Mileage. • '
Costs of, upon affidavit, 614. ' ' .
Mileage in County Court, 679. \_ •• ■
Mill stream. • J ■
Count for diverting the water, 540. ,''..'
Mis-joinder. .• ]
C(/";'/(n'«/«/r« when amendable at trial, 1 37. ■ / , '
Amendment must be before verdict, 137,/. - .<
And upon terms, 139,
0/rfc/cn<f'/«^« in contract amendable at trial, 142.
► - But not afterwards in banc, 142, e.
Mi
Mis
Moi
Mori
Mori
Mort
Motio
Negota
Newal
New M
Now Rl
'li
INDEX or tUBJEOTH.
79S
MUnomor.
Not A ftronml of plea in nbntement, 210, m.
Aniendnblo at plaintiff'H co!<t8, 2 hi, in
Application when to be nmdc, '21)>, m.
Uofoiidant may appefir by his rl^^ht name, 131, a.
Deolaratioa in such "nso, 131, i/. [1^1, a.
Defomlant appearing hy wrong name pljiintiff, may so declare,
Whore idem Honans, 141, a.
Miatalco. [ooBts, 85.
In forms of oortnln writs erroneously substituted, amendable without
Money counts.
Money payable by defendant to plaintiff, 545.
Money lent by plaintiff to defendant, TAb,
Money paid by plaintiff for defendant .it his requcf>t, 646.
Money reoeiTod by defendant for plaintiff's use, 546.
Money found due from defendant to plaintiff on account stated, 64.').
Mortgapce.— See ^^ Mortgagee " ** Mortgagor."
Mortgagee.
Ejectment by, against tenant of mortgagor, 4'J6, c.
After judgment against a tenant, mortgngee of the lease may redeem
on certain terms, 431.
Equitable mortgagee entitled to redeem, when, 482, <i.
Mortgagor.
Redemption by, ofter ejectment brought, 444.
Court may order discharge of mortgage, 416.
. ^ And compel re-conveyance, 446.
Where the right to redeem is disputed, 447.
Motion. ^
Upon affidavits in answer to now matter, 328. . (..h
For production of documents by order, 324.
For examination of witnesses viva voce. 825. ,t>^
Before whom, 825. "
Rule for attendance of witnesses, 320. •
'* for production of documents, 326.
«* nt what place, 326. f
•« disobedience to, a contempt, 826.
'* proceedings thereon, 326. *
" expense of witnesses on rule, 326. ^ .}>
restriction as to documents producible, 827.
adjournment of hearing, 327. ■. -"-U
See aho ''New trial," '"Non-auity" ''Verdict." •
Negotiable instruments.
Loss of. Indemnity, &c., 487. *M».Vt:-i,ft, >;/
New assignment. ""' • •
One only allowed, 262.
Must be consistent with particulars, 2C2. ■ * * - \. ' Wr
Statements in, 264. « '•• "-• »
Pleas to, by leave of Court or Judge, 266. ' — ? ..,; ,• jii
General form of, 548. i s«^
Where plaintiff replies, and new assigns, 649.
AVhen plaintiff replies, and new assigns to some of the pleas, and new
assigns only to the others, 649.
New Matter — see "motion." . •< •< . <
Now Rules, Trinity Term, 185G.*
Former written rules annulled, and the following substituted, 691.
* The rules as here abrid;;od have beoa also distributed under their various headf .
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704 • INDEX or BUBJKOXS.
New Rules.
Practice.
Appenranoe, 602.
Attorney and Guardian, COS.
Joinder of parties, 503.
Pleadings, 604.
Payment of money into Court, 606.
Change of venuo, 600. . ,, , , ,. /
■v Particulars of demand, or of act oflF, 601.
•..f',;w Security for costs, 002. - ,,
Discontinuance, 002.
Staying proceedings, C04.
Cognovit ; Warront of Attorney ; Judge's order for judgment, 605.
Evidence ; admission and inspection of documents ; subpoena to pro-
duce records ; depositions on interrogatories, 608.
Issue Books, 611.
Trial; trial by proviso ; assessment; notice of trial, 611. ..
View, 013.
New trials; rootiona in arrest of judgment; judgment non-obstante,
; ., veridioto, 014. , r ,. ,i ■ .-
Judgment, 010. .", ]■,
Costs; setting off damages or costs, 617. . ,.' . <
Execution, 010, * I
Proceedings against garnishee, 620. -', . * .- ».>. ./ 1
Revivor and scire facias, 021. ,;. .. .i--..^
Entry of satisfaction on Roll, 622. — '. . , ■ • .
Bailable proceedings and Bail, 024, -'
Ejectment, 034.
Penal Actions, compounding of, 036. > , . ^
, Prisoners, and proceedings against them, 637. , J
Sheriffs, rules to rot'irn Writs, &c., 038. , /
Irregularity, 640. . -j
Afiadavits, 042. , ,, .
Rules, Summonses, and orders, 040. ..i. . . .
Notices: services of, and of rules, pleadings, &c., 640.
Attachment, 054.
Awards, 654. '• » ■ • . j ..4, . " ,.,.
Insolvent Debtors, 056.
Clerks <vnd Deputy Clerks of the Crown, 056.
Clerk of the Process, 068.
Taxation of Costs and directions to taxing officers, 000.
Miscellaneous, 005.
Pleadings.
Former Rules I'opcaled, and new rules framed, 668. ,, '
1. Counts, 000.
2. Pleas, Replications or subsequent pleadings, 070. ,
3. Costs of pleadings, 071.
4. County — Venue, 072.
6. Actions by and against Assignees, Executors, &c., 672.
6. Pleas in simple contract, 073.
7. Pleas — Bills of l^xchange. Promissory Notes, 077.
8. ("onfession and avoidance — on contract, 078.
0. Policies of Assurance, 080.
10. Specialties and Covenants, 080. *
11. Nil debet disallowed, 681.
12. Confession and avoidance on simple contracts, 081.
INDEX OF SUBJECTS.
795
New Rules — Pleading. — {Contimied.)
13. Payment or set oflF, 681. v , , .
14. Payment, plea in bar, 682. ' /\' ..
16. Non detinet plea, 082. ,' ' " '.
16. " Not Guilty," in torts, 083. ' =' '"
17. Confession and avoidance, special plea, 688.
18. Abuttals in trespass, 689. , ' '
19. " Not Guilty" in trespass t5 land, 689.
20. Conversion of goods — plea of not guilty, 600. ,7
21. General issue — per stat., 091. . ,,
22 1 ( ■ ■ ■
00" >■ J*uis darrein continuance, 092. '
24. Ejectment — non-suit — costs, 692. . ",'
25. Continuances, 692.
New trial. <-.
Motion for, within what time to be made, 014.
Affidavit in support, to be made within time limited, 615.
(iM.Ce K (^ Notice to be given to the opposite party, if motion entered in postponed
ift.^^tfSCfH. list, 616.
M fr t4i»m) ii5' Rule for, must state the grounds, 320.
* When moved by one of several defendants, 320, /. ' '
Where fact in i«sue already determined by Jury, 321, /.
Costs of first trial, 322, 015.
Where fretih matter disclosed, 322, t.
Interpleader issue, 322, /. [trial, 616.
Rule discharging rule for new trial for non-payment of costs of first
Nil debet.
Plea of, not allowed in any action, 681.
Nisi prius Record.
Form of, 694.
Non-appearance — see "Appearance" "Judgment." ";
Non assumpsit — plea of.
Effect of in actions on simple contract, 673. '
On a Warranty, 674.
On a Policy of Insurance, 676.
Against carriers and baillees, 676.
When such plea inadmissible, 070.
Non-est-factum.
Effect of plea of, in actions on specialties and covenants, 680.
Non-joinder — see "Amendment," "Joifidar."
Non obstante veredicto.
Requisites for arresting judgment, 38G, h,
Motion for, 388.
Within what time to be made, 614.
If entered in list of postponed motions, notice to be given to opposite
party, 615.
Suggestion of facts to be made, 389.
May be made before or after judgment, 389, i.
Plea to suggestion, 389.
. Issue, trial of, 389.
Judgment, when facts found true, 390.
" when otherwise, 390.
Onus proband! on trial, 390, 0. ^
Costs, 390.
Costs of former trial, 390.
Recovery of, 390. ,
Costs on immaterial issues, 390, t.
*"i-i
ll ■
t • i'j
(J
i hi
Q
b,-.»
796
INDEX OP SUBJECTS.*
iftimtsf't
i.^n
X,...
Non-payment of Rent.
Ejectment by landlord for, 428.
See also ^* Landlord and Tenant."
Non pros.
Judgment of, on non-payment of costs after rule to discontinue, 604.
No property, plea of.
What if puts in issue, 690, /,
Non suit.
Motion to enter, 'within what time to be made, 614.
If entered in list of postponed motions, notice to be given to opposite
party, 616,
Rule nisi, to state grounds for, 320. * -
Motion to set aside non-suit, and enter verdict, 321,/.
Leave reserved at nisi prius necessary, 322,/. "'' ■
Not guilty. , ■''» ■•
Plea of, -with other pleas, 260. ' ..v.- • , ,►*
Effect of plea, in trespass to land, 689. "', '
Effect of plea in relation to goods and chattels, 689. .'. ' ■'■
** Bee also '' LiM and Slander," '^ Tort."
Not possessed, plea of.
What it puts in issue, 690, d. ' '
Notes — see •* Bills of Exchange " "Negotiable Instruments."
Notice of claim. '
Indorsement of, on Writ of Summons, 61. *'.' '
Special, in place of particulars, 91. ' -' "'
To Plead. •" • '• " -"■• '
To be endorsed on declaration, 220.
May bo delivered at any time within twelve months, 230, t
To admit.
How proved on trial, 319.
' Formof notice, 319, z, 609.
Formof aflSdavit, 319, 6.
see also "Trial." ' • >••'■• ^
To produce. ., '
Form of; 319,2. ' ' ' ' ' ' '
How proved on trial, 319
Form of affidavit, 319, 6.
See also " Trial." "
Of Assessment. - ' ' = •' ••
Eight days requisite, 279,
Where notice of trial given, with replication, and plaintiff afterwards
signs judgment for non-joinder of issue, 612.
In case of defendant's demurrer, 612.
Where defendant pleads in bar or rejoinder, and plaintiff demurs, 612,
Of Trial.
Eight days requisite, 279.
Defect in, when waived. 279, /.
A nullity when only one of two defendants named, 279, /,
Form of notice ot' trial, 279, /.
Notice of trial, instead of assessment, irregular, 280, g,
AVhere issues in fact, and in law, 280, g.
Service of, when regular, 280, h.
Must be personal, when defendant docs not defend by Attorney, 280, h.
Wbere regular, when fixed up in office of Deputy, 280, A."
When fixed up in principal office nt Toronto, 280, h.
May bo served with repiication, 280, h, 012.
:i
I'l.lTC.
INDEX Of SUBJECTS.
797
1 I .a
iil
i(otice.— (Continued.)
Two days' notice sufficient, on trial by record, 281, t.
When proceedings stayed by injunction, after notice, 281, t.
When peremptory undertalcing given, 281, t.
Countermand, notice of, 282.
' After sliort notice, 282.
Short Notice. , .;
Meaning of, 282, e, 611. ' ,
Notice to proceed, ,.: . ,, , ''
By defendant to plaintiff, 288. , , ,' '
Suggestion of default, 289. . ^ -^ •;
Setting aside if untrue, 289. ... .•
JFbrm of suggestion, 289, r. '' '
Judgment for defendant, 289. ■ .' , '
Extending time for trial. , „
Upon terms, 289. ;, ' ' ' .
Term must not be indefinite, 289, r. ■• ' j ' !
Nun quam indebitatus — ^plea „ ' ' , : •'
Form of, on contracts, 647.
Effect of plea, 676.
On Bill of Exchange, promissory notes, iuadraissable, 677.
Officers, see " Clerks."
Oral examination, see *' Examination." '
Order to hold to bail.
When obtainable, 49, r. ,
Orders and Rules, see " i?M/e« ^J-c." i, .
Original record. tqiq
Subpoena for the production of, not to be issued without rule or ord«r
Notice to produce substituted for rule, 610, 612.
Ouster. , , r
Proof of, in an action by a joint tenant, 415. '" '^^
Outlawry. ' ., . '
Proceeding to, abolished, 76, m.
Orerholding tenant.
Ejectment by landlord against, 436. . . «
/brm of demand of possession, 437, X. !
Notice to find bail for costs and damages, 437.
Rule to shew cause, 438.
Judgment in default of security, 438.
Landlord's remedy under 4 Wm. IV., e, 1, not to be affected, 440-
Oyer.
Profert in pleading unnecessary, 210. ,,
If made, defendant not entitled to, 210.
Oyer and Terminer, Courts of.
Holding of, in counties, 739.
May be held with or without commission, 739. . .
Who shall preside if commission issue, 739.
If no com misson issue, 739.
Powers and authorities of the Court, 740.
Associate Judges need not be named in commission, 740. ^
Holding of, three times a year at Toronto, 740.
At what periods, 740. ,'
Parliament, see '^^ Privilege from arrest."
Paper days. . * ", .' ,
In Queen's Bench, 646, v. , ^ , -j
In Common Pleas, 046, V. ■ r. - • .
N
798
INDEX OF SUBJECTS.
k^
Partloulars.
Special notice on writ of Summons, substitute for, 91.
What recoverable under aggregate amount stated, 263, y.
Chief object of, 264, y.
Immaterial mistake in, 264, y.
Tlot services, does not include commission when, 264, y.
In actions of trespass, 264, y.
In breaches of contract, 265, y.
To be delivered with declaration, when, 601.
\ In case of neglect, costs of application not taxable to plaintiff, 602.
Summons for, obtainable without affidavit and before appearance, 602.
Order for, not a stay of proceedings, unless made so, 602, /.
Order not compulsory, 002, /
Copy of particulars to be annexed to the record, 602.
Variance, when ground of unsuit, 002, ^. ' "'
Defendant when entitled to new trial, 602, g. ■'■■■■■ r i
Liability of plaintiff's attorney for costs of trial, 602, g.
Time for pleading after delivery, 602.
Rule and order for particulars by County Court Judge, when, 735.
#■■
Parties.
Patent.
Joinder of, see "Joinder." ' " ' ''^^ ^'-
Death of, see ♦' Abatement," " Death of Parties."
Marriage of, see " Husband and wife," '•Marriage."
1
rr •■ M V
Injunction for infringement of, 405, i.
See also "Injunction." ' "• " ' » •
"Payee, see " Bills of Exchange." ..io*;'
Payment generally.
Not allowed in evidence in reduction of damages on debt, 682.
Must be specially pleaded, 682. i-,
Payment, plea of. ' ; li .-r i .-r yi
When necessary, 240, M. ? '
When pleadable with other pleas, 260. • • • - >,....»
When amount credited in plaintiff's particulars, plea of, unnecessary, 681.
Payment of money into Court.
In what cases allowed, 226. ' '»
■ Exceptions, 227. i • i : ,• ^
By one or more defendants, 227. ' '
Must be pleaded, 220.
Form of plea, 229.
Where demands several, 229, p.
Effect of pica. - * - - '
In actions of tort, 229, p.
As to one or more counts, 230, r. '
Plea when amendable, 230, x.
No rule for, necessary, 231.
Exceptions, 231.
Payment to whom made, 231.
Receipt to bo marked in margin of plea, 231.
Payment out of Court.
To plaintiff on demand, 231. ' ' '
Affidavit of plaintiff's signature not necessary on taking money out
unless required by the master, 596.
Plaintiff's costs, 596. > .
<loits.
Defendant's costs on defeating residue of plaintiff's claim, 596.
\^
i fs
G02.
INDEX OP SUBJECTS.
Paymont, plea of. — (Continued.)
Costs, where actions consolidated, 696.
Costs on new assignment, 596, v.
Jteplication.
By acceptance, 232. ' ,
Costs and execution for. 235. • - . ^ '
By refusal, 237.
Judgment and costs, 238.
Amendment of replication, 288, m. '
Fenal actions, compounding of.
Where part of the penalty goes to the Crown, G36.
Leave not obtainable, until after pica pleaded, GSti, ni.
May be granted after verdict, 036, m.
Tbule for, to contain defendant's undertaking to pay, G80,
Crown portion, to whom paid, G36.
Peremptory writ.
See ^^ Mandamus." '"
Peremptory undertaking to proceed to trial, 281, ». \
Performance of conditions precedent.
Averment of, in pleading, 211.
Plea in answer must be specific, 212.
790
False swearing under this Act (185G), 512.
Perjury.
Person.
See " Suitor in person."
Personal actions. . ■
Definition of, 27, <7. -
How commenced, 27.
3ee vilao ^* Caj)ias,'' *' Summons." . '
Plaintiff in person.
Memorandum of address, &c., 613.
Pleading.
What statements to be omitted, 194.
Omission compulsory or directory, 19G, m.
Pleading not invalid for causes heretofore ground of special d<»murrer,
203,
Unfair pleadings to be struck out or amended, 204.
Costs of application, 206.
^fust be intitled in the Court, 209.
With date of filing, 209.
Profert in, unnecessary, 210.
When a document ia whole or in part may bo set out, 211.
Averment of performance of conditions precedent, 211.
Plea in answer, must be specific, 212.
Express color unnecessary, 220.
Special traverse unnecessary, 221.
Allegation of actionem non, &c., abolished, 221.
Prayer of judgment unnecessary, 221.
Formal defence not required, 222.
Plea.
Commencement of, 222, 547.
Must be intitled of the Court, 222, e.
Of infant defendant by guardian, 222, /.
By a person not an attorney, not a nullity, 222, g.
Second plea, form of, &c., 222, 547. "*
Formal conclusion unnecessary, 223.
w
i :'
^kJUMJ> w A^^r<^ ckX. ^ ^6"^
800
INDEX OF SUBJECTS.
:-fv
7'-<i>
PleAding.-— (Con^i'nutcf.)
or matter subaeqent to oommencemeut of action, 228.
Puis darrein eontinuance.
Defence and allegation, 224.
Affidavit, necessary umtents, 225.
Effect of plea, 225, w.
Breaches and wrongs.
Plea, ■when sufficient, 239.
Distributive plra. , . . ^
How oonstraed, 241.
Traverse.
Qeneral or sepamte, 245.
By defendant of plaintiff's replication, 246.
Joinder of issue. ,". .
By either party, 246.
Form of, by plaintiff, 246.
" of, by defendant, 246.
Effect of joinder, 248. ^Z
Joinder by plaintiff for defendant when, 246.
Pleading and demurring at the same time.
Must be by leave of the Court, 248. . ,i '
Upon affidavit if required, 248.
Affidavit must be positive, 248, w. 1 '
Court to direct which issue to be disposed of first, 249.
Defendant by leave may plead several matters, 251.
Upon affidavit if required, 251. j n,^.
•^Replication. ,. . ■
Of several matters mast be by leave, 250. ,:, ,, . ^
Rule for hane to plead several matters. -^ ' „
! Not necessary, where order made, 268. ,^,' . ,r . '
Objections to pleadings, ■ vs . • .:. •
To be heard upon summons, 259.
May also be heard in banc. 259, «. -, „j ^.,^ .. , „
Pleas without leave of the Court. . .
» 5 Description of, 259.
Pleading without leave, where leave requisite opposite party may sign
judgment, 261.
Judgment may be set aside upon merits and terms, 261.
Signature of Counsel. ,,,,..
Not required to pleadings, 2G0. ^- ,■...':■, .\' j - . . ,.
New Assignment. ; '»;•:«,. ,
One only allowed, 262.
Must be consistent with the particulars, 262. . _
,, , Statements in, 264. ,. , ,', , , .
Plea to new assignment, 266. ,i j
Amended Pleading.
New notice to plead not necessary, 269. ..,i, ■ . ^
Pleading to amendment, 270. • . *
Plea of Judgment recovered.
Must contain statement in margin of the date, &c., 595.
If false, plaintiff may sign judgmect, 595.
Rule not applicable to a plea by executors, 695, q.
Nor to a plea of set-off, in a former action, 595, q.
Counts, several.
When not allowed on same cause of aetion, 669.
Eauracration of cases, 669, c.
P]
PI
Po
Poi
Pos
Pos
Prac
%i4idaai — 7/^
■'» %
•*
• J ,
INDEX or SUBJECTS.
801
may eign
Pleading.— (Con^un/. )
Flwt, Replicationtf Avowries, J^c, teveral.
On tn« same ground not allowed, 670.
Except on Judge's order, 6V0.
Coats.
VffIN*.
To be stated in tlie margin of declaration, 672.
And not in the body, or any subsequent pleading, 672.
ProTiso as to local description, 672.
Plene adminiatravit.
Plea of, with other pleas, 260.
Plene administravit pnoter.
Plea of, with other pleas, 260. , « '
Policy of Insurance. /'
In action upon, plea of non assumpsit, effect of, 675.
Averment of plainUff in action on, 680. ■■ .* \
Possession of land. .
May be awarded under arbitration, 191. •' .
Application for order, what it should state, 191, m. '''^
Effect of order, 192.
Postponed motions. ■ i' '
. List of, 615. • *
Postea, form of.
On yerdiot for plaintiff on all the issues, where defendant appears at
the trial, 691.
On an issue under sec. Ixxxv, 694.
Whore reference on some issues, and verdict on others, under sec. clvi,
694.
On a verdict for defendant, on a plea of set-off and other pleas, 695.
Fr&otioe.
Time for pleading when writ not specially indorsed, 126.
No pleading to be filed in long vacation, 133.
Time to plead, when not expired before vacation, 695.
When expiring on the first day of vacation, 595, o.
Notice to declare or plead sufficient, 207.
May be delivered separately, or indorsed on pleadings, 207.
Form of notice, 208, k.
Pleadings to be intitled, 209.
To bear date, 209. '
Irregular if a wrong date, b"t not a nullity, 209, p.
Pleadings with tlieir dates to be entered on record for trial, 209.
And on judgment roll, 209.
Profert, unnecessary, 209.
When made, party not entitled to oyer, 210,
Party attending to file joinder in demurrer entitled to precedence where
opposite party also attends to sign judgment, 20, x.
Rule for return of process may issue in vacation, 20, x. '*
Must bo a six days' rule, and original shown to the Sheriff, 20, x.
Habeas Corpus, when returnable in vacation, 20, x.
All notices required by rules or practice, to be in writing, 649,
Copies of pleadings in all cases to be served, 650.
When residence of defendant unknown, 650. -
Time of service of pleadings, rules, &c., 650. ' ^■'■
Service when plaintiff sues in person, 653.
" when defendant appears in person, 653. ■ "•'
'« when either aftewards acts by attorney, 654. • '
ceo
':;*5
^.v.4 v.;.'
802
INDEX OF SUBJECTS.
Practice.— (Con<inMed) ■♦
One appointment by Clerk of the Grown or Deputy sufficient to entitle
the party to proceed ex parte, 655.
Tersonal attendance requisite in all cases where party does not appear
by counsel attorney or agent, 656.
Cases unprovided for by statute or rule of Court, to remain In statu quo
Trayer of judgment. [^QQ.
Unnecessary in pleadings, 221.
Precludi, Non.
Allegation of, abolished, 221. , > ^
Prerogative Writ. .!, . i.>!ji-;
Motion for, 450. ,. ^
Rule, 459. ' / . ,^ ^,t, ,../ ,
Teste of Writ, 469.
How returnable, 459.
See also " Jl/a?jrfaw»«s." ,, ,,; .. ., . .'
Prisoners. . , . . ^
Time to declare against, 87, G88. -,,,..;,,
Examination of, under Habeas corpus, 820.
Supersedeas, on putting in special bail, G37. ., ;,..
Proceedings against, time for limited, 637.
Rule not applicnble to prisoners in criminal custody, 687, b, •
Where the delay in not proceeding unavoidable, 687, c.
Computation of time, for charging in execution, 637, e. '
Privilege from arrest.
Who entitled thereto, 60, *.
Proceedings.
jo final judgment, to bo carried on in the office from which the first
process issued, 10.
By plaintiff, in default of appearance or Special Bail, 182.
Where the last day for appearance fklls on a holiday, 182. '
Or in the long vacation, 182.
No declaration or pleading to be filed or served in vacation, 133.
Where appearance entered by some of the defendants only, the Writ
being specially endorsed, 138.
Abandonment of action against the others, when, 183.
Proceedings by suggestion against them, 184. »
See also ** Action."
Process, Clerk of.
See " Clerk of the Process." i '
Prochein Amy.
Authority from the infant unnecessary, 216, k. • . . >
Form of declaration by, 210, k.
Admission to prosecute or defend, restricted to particular suit, 593.
Production of documents.
Rule for, 324.
Application for discovery of, 333.
Affidavit, statements in, 837. ' " , ■ \
Against a body corporate, 335. ,
Answer, by Affidavit, 386.
What is, must shew, 336. ►
Order, 337.
Prcccipe — see *^ Execution."
Profert.
Unnecessary in pleadings, 210.
If made, opposite party not entitled to Oyer, 210.
^mi;.
INDEX or 8UBJB0TS.
808
ProxniBSonr Note.
Count for non-payment by maker, 645.
Count by indorsee, for non-payment, 645. ^
Plea of "non-aasumpslt," or " nunquam indebitatUB," inadmissible, 677.
Pica in denial, must traverse some ftiots, G77.
Form of Summons upon, after Ist July, 1858, endorsement and
notice, 729, 741, 742.
Final judgment thereon, 730,
Form of, 742.
Appearance and defence, leave for, when and how obtained, 780.
Setting aside Judgment on terms, 780.
Security for costs by plaintiff, when, 730.
Expenses of notice and protest, how recoverable, 731.
Suit against all parties, to, 731.
Prospective Suits.
Submission to arbitration, when, 182, 7. ' ' -^ f<*
Proviso, trial by.
Rule for unnecessary, when, 291.
Puis darrein continuance.
How pleadable, 223. 4n->
May be pleaded with other pleas, 092.
Confession of plea by plaintiff, and costs, 692. '•>:';
Where plea goes to part only of the action, C92, q. -,'
Quality.
Tn pleading, when immaterial, 19<J.
Material, when, 195, (jr. -
Quantity. . *-
In pleading, when immaterial, 195. -,;
Material, when, 195, </. ' " *,,
Quare dausum fregit. -t -''^
When entry must be specially pleaded, 690, d. ";;' ' i
Questions of fact. • '
See ''Fact." . ;': ' •
Questions of law. ■ "
ScQ " Sjieeial caae.^' , . , '
Qui tam actions. > * >
See " Penal actions."
ikecognizanco of Bail.
Not to bo taken by Attorney or Agent in the cause, G28.
Transmission of, to principal office, Toronto, in country causes, 628,
Render of principal, in action upon, 638.
See also " S}iccial Bail."
Record, Nisi Prius,
Need not be sealed or passed, 297.
Entry of, in country causes, when, 298.
Indorsement of, 298.
Lists of records to be made, 298.
1. Assessments and undefended issues, 298.
2. Defended issues, (Superior jiirisdiction,) 298.
3. Defended issues, (Superior jurisdiction.) 298.
Postponement of trials in '^.rd list, when, 298. , ,,
Record, entry of, after the time limited, 299. ' ' ^,.
Entry of, in Town causes, 299. '
•• after time limited, 299. ,',
Fees to Clerk of Assize on entry of, 658. ' '"[
Records, see " Rolls ami Ecconh" ■ ' ' '
I '
804
INDEX OF SUBJECTS.
\
Begistorins judgments.
Lien upon land to cease at the end of three years, unless Judgment
ro-registered, 784.
Existing judgment** to be re-reglstered within one year from the pass-
ing of this act. C.L.P.A., of 1867, 784. '
Certifioate of discharge, form of, and proof, 786.
Roloaso.
Plea of, with other pleas, 2C0.
Release of mortgage.
see " Mortgagor." '
Beliota yerifioatione.
Entry of, after demurrer not permitted without leave or consent, 604.
Relief in Equity.
See " Equitable di/ence," '* Ii\function." > - -■ i ■• »
Render. ,, ,,i, . ,
Of principal by bail, 632. ^ m • > . ». l ' r
See a\ao ^^ Special bail." . ■<
Renewal of writs. ■ ■ ' ^- '■ ■ •
See "Capiat," " Summont." -■>' — i
Rent. '■.,'.,,'
Count for non-payment of, 646. • ., .r ,.#
Repairs.
Count for breach of coyenant by lessee, 646.
Replevin.
Equitable defence in allowed, 4C7. —
Commencement of plea, 472. '
May be set up by writ of audita quorclo, when, 474.
Replication, 476.
Commencement of, 477.
Strilcing out equitable pleadings, when, 470. vf
Replication. ' • ^
Traverse of, by defendant, general or separate, 2lv>. (>>
Residence.
Of deponent in affidavit to bo stated, 642.
Residents. - >
Of Upper Canada entitled to hold to bail, 40, (>). i
Sed quoere as to foreigners temporarily resident, 40, ('). - ■ '
Restitution.
Sci. fa. for after reversal of judgment, 872. <,
Return of process.
Rule for, may issue in vacation, 20, x.
May be isued by deputy, 20.
Service of rule, 21, x. ,• ; , ■■
Costs of, when Sheriff liable for, 21, X. ...
Disputed title to goods, «cn insufficient answer, 21, x.
See also " Coroner," " Sheriff."
Reversal of judgment.
Sci. fa. for restitution, 372. . . »
Reviewing taxation.
See ''Costs," i
Revival of judgments.
Within TTliat time execution may issue without sci. fa., 731.
Prori>»dinffS,
When by writ of revivor, 369. , • ;. .
By suggestion on the roll, 369. . ' ■ ,.
Upon rule to show cause, 369.
INDEX or 8UBJE0TS.
806
ReriTal of judgments. — (Continued.)
Form of rule, No. 0. Sehcdule A., 641.
Personal servioe of, when dispensed with, 870, x.
Form of suggestion, No 10, Bobedule A., 641.
Execution, 870.
Costs, 870.
Dismissal of rule, 870.
In case rule refused, pIuintiiT may proceed by writ of reviyer, 870.
In action upon a Judgment, plaiutiif not entitled to costs, unless court
80 order, 870, /.
Writ of revivor.
To whom directed, 871.
Contents, 871. ' ' **
Form of. Schedule A., No. 11, 642.
May be sued out and served in any County, 872.
Venue in, 872.
Proceedings in, 872.
Costs, 872. • •
Appearance to, 372. : •"
Form of appearance, 872, x. : j > w- - • .»
When a second writ necessary, 371, t.
Plea in revivor, 372, w. ' . ;( w . ,
Writ allowed, without order, when judgment less than ten years old, 878.
Order necessary when judgment more than ten years old, 878.
Rule to shew cause requisite, when judgment more than fi/leen years
old, 873.
After twmti/ years, payment of interest saves the judgment, 878, y.
Quashing writ of revivor after appearance not, allowed except on pay-
ment of costs, C21.
Revivor, writ of.
See " Revival of Judgments.^' ■.-■■ ■ . ."•,->
Roll. , ' ' ■•
8qq " Judf/ment Roll." .; • -lo, < • if .:r
Rolls and records.
To be upon parchment or paper, and of a certain width, &o., 667.
Transmission of, by deputy, to chief office at Toronto, 667.
Other delivery prohibited, 658. ■' j
Rule /or time to declare.
Abolished, 694. -?
«' to compute.
Abolished, 273.
«♦ for Judgment.
Abolished, 616. •
<« to plead.
Abolished, 219.
Rule to shew cause. '"i?
When not a stay of proceedings, 649.
Form of notice of motion for, 649, y. ' ...rY/^fl
Rules in general. • -
Authority given for making, 623. :--iii
To be laid before Parliament, 624.
Suspension of, provision for, 520.
Existing powers not aftccted, 527.
Rules, Summonses, and Orders.
Date of, 646. "- .^ .-
Side bar rules, by whom issued, 64G.
\ IH
f;r^
tm
r'
'♦ 1 'I
t' ]
80G
INDEX OF BUDJEOTtJ.
Uulofl, SummonsoR, and Orders. — (
May bo issuod in term or vaoiitioii, (1-17.
llulo inny bo enlargod without notioe when, 647.
At the itiHtunoo of cither pnrty, 047, b.
Enlarged rule when returnable, U47.
Summona,
One sufOcient before order, 047.
Attendance, what deemed sufficient, Gi7.
Content ordera.
Conuent for signing judgment to be filed with clerk in clinnilcrs, C47.
Where defendant has appeared by attorney, 048.
Where appearance in person, 048.
Consent by one partner not binding on another, 048, o.
Orders ycnerally.
When may be made rules of Court, 048. . i
Costs, provision for, in, 049.
Service.
Rulo need not bo shown unless demanded, except in cases of attach-
ment, 050.
Time of service, 050.
riatisfaction of Judgment.
Entry of, on judgment roll, 022. i
Satinfaotion piece to be signed and witnessed by attorney, G2u.
Where signed by a personal representative, 028.
Production of probate, &o., to the officer, 624.
Form of satisfaction piece, 024.
Entry of, when, 024. i r
Schedule of forms.
Seo ^^ Forms in plcadinff," "Formt of writs"
Scire facias.
Against a corporation how tested and directed, 372.
Where to bo brought, when recognizance taken in the country and
recorded at Toronto, 021.
Judgment for non-appearance when and how signed, 021.
Notice in writing a sufficient appearance, 021.
Rules to appear, plead, &c., on Sci. fo. at the suit of the Crown, may
be issued in term or vacation, 022.
And parties named therein bound to appear, plead, &c., within a certain
time, 622.
Seal. . -
To be kept by the clerk of process, 4. .;• v
Security for costs. uh 5
When application for, must be made, 003. w'
In what cases ordered, 003, m.
When defendant not entitled to, 003, p.
Cannot be required before appearance, 003, q.
Previous demand necessary for stay of proceedings, 003, q.
Seduction.
Affidavit to hold to bail, 50, ?•. . i, ' ,
,, ^ '■!% I Payment into Court not allowed, 227.
Jurisdiction of County Court in action for excluded, 582.
Count for seduction of plaintiflfs wife, 510.
Service of papers.
See '^Practice." ...
.Service of Writ of Summons.
To be personal where practicable, 72. • ,, , . , »
Si
Setl
Sett
INDSX OF BUnjKOTB.
907
C47.
attacli-
itry anil
yvn, may
a certain
SorTioo of Writ of aummons. — {Continued.)
Copy must bo loft with, and not moroly shewn, 78, /.
Original need not be shewn unleas required, 78, /.
'Whore inspection demanded and refused, proooedings set aside, 78, /.
Upon n wife, agent, or servant, not suiAuient, 78, /'.
IrroKulni , if served on a wltnoHS whlio attending nisi prius under
Bubpivna, 78,/.
Regular, if served on a plaintiff while attending assizes, 78, /.
Where defendant evades service Judge may order proooedings, 78, /
Sat-off.
Plea of distributive, 240.
After action coinmcnccd, 240, v.
Qenoral effect of plea, 240, v.
When a larger amount proved to bo due by plaintiff, 242.
May be pleaded with otner pleas, when, 260.
I?articular8, delivery of, with pleo, 001.
In case of neglect, costs of application for, not allowed to defendant, 602.
. v^ Defendant precluded trom giving evidence, when, 601, e.
Copy particulars of set-off to be annexed to record, 602.
Wllen credited In plaintiff*^ particulars, plea of, unnecessary, 681.
Form of postoa on verdict for defendant, 695.
" of judgment, C95.
Rule and order for particulars by County Court Judge when, 785.
Setting aside proceedings. [640.
For irregularity, application for must be made within a reasonable time.
Computation of time for, U40, /.
Not allowed where a party has taken a fresh stop after Jinowledgo of
the Irregularity, 641.
Ol^ectiona must bo stated in the summons, 641.
Costs, 641.
Setting aside process.
For irregularity, when, 81.
Amendment of writ, on application to set aside, 83.
Proceedings by summons and order, 82, m, (').
Application must bo made within a reasonable time, 82, m, (').
_■■ ,» Should be made In chambers, 83, {^).
Too lato after appearance, or boll perfected, 84, (^).
In what other cases, 84, (»).
Sheriff.
Rules on, may be issued by Deputy Clerk of the Crown, 20.
Writs to be returned to the office whence issued, 22.
Deputy may act, if Sheriff dead, 30, ff.
To indorse on Capias date of execution thereof, 30.
When indorsement to be made, 36, h. ,
When to arrest some, and servo other defendants, 37.
Effect of service, 38.
Sheriff not returning Writ within three months after attachment, for-
feits his oflBce, 21, a:.
And liable to £100 penalty, if acting, 21, x.
Personal service of a Summon^; for attachment, without shewing the
original, sufficient, 21, x.
Summons should name tlie Sheriff personally, 21, x.
Rule for setting aside attachment, for not bringing in the body, must
be grounded on affidavit, shewing the application is bon£l fido, and
without collusion, 026.
And Bail must be first perfected, 620, u
•- '.
i '
■h
i
y- f.
i ' 't^
, ' 1
r \ '
\h,
I
808
INDEX OF SUBJECTS.
Sheriff. — {Coniinutd.')
RuU to return Writ, or bring in the body.
To be six day rule, 638,
Whence issued, (339.
Time may be enlareed, 689, nt. . ,-
To be a side bar rule, 639.
Issuable in Vacation, as well as Term, C39,
Plaintiff not entitled to rule, where Writ executed by a special Bailiff
appointed by him, 689, q.
Or where collusion between Sheriff's officer and plaintiff, 689, q.
Or where action compromised, 639, q.
Or where Writ a nullity, 839, q.
Otherwise, if only an irregularity, 689, g*.
Filing of the Writ, 689.
Attachment for disobedience of rule to bring in the body in vacation.. 639.
Bender of defendant, or putting in bail after time limited in rule, will
not stay attachment, 639, x.
Sheriff liable, after out of office, 610.
Rule when issuable, 640, a.
Service of, 640. b.
Sheriff's Sale.
Preserving evidence of title of land sold at, 24. ^
On Sheriff going out of office pending currency of Writ, 352.
Conveyance by former Sheriff, wbcre sold by him, 352.
Short notice of trial or assessment.
Time for, four days, 611. '
Signature of Counsel.
Not required to pleadings, 260.
Necessary, to motions in Court, 260, q.
Simple contract.
In action upon, plea of non-assumpsit, effect of, 673.
Debt on, merger in specialty, roust be specially pleaded, 679, I.
And so matters on confession and avoidance, 681.
Sittings in banc.
After term, for giving judgment, 528.
Slander.
Averments in declaration for, 217.
Payment into court not allowed, 227. ^
Jurisdiction of County Court in, excluded, 582.
Effect of plea of <* not guilty" for slander of plaintiff in his office, profes-
sion or trade, 686.
Count for, 547.
8w B,\ao ** Libel and Slander."
Son assault demesne.
Plea of, with other pleas, 260.
Special Bail.
May bo put in according to present practice, 52. \
When the time for, expires on a holiday, 132.
May be put in at any time before the expiration of rule to bring in the
body, 626.
Aftei Special Bail, proceedings same as on Summons, 55.
Bail, how put in, 54 C)
Before whom, 56, (») '
Notice of more than two, when irregular, 627.
Cannot be chonged without leave of the Court or Judge, 627.
Adding bail, notice of, 028, w.
INDEX OF SUBJECTS.
809
■r^\'
Special Bail. — {Continued.)
Surrender of principal, 57, (*) j,
Justification of Bail. ^ , _,
\Vlio disqualified from justifying, 628.
Country bail, proceedings on justification in Court, 628.
Costs of justification, after exception and allowance, 629.
Costs of rejection, 629.
Form of affidavit of justification, 629.
Affidavit of justification, when insufficient, 631.
If insufficient, bail may justify in person, 631, </.
Where bail to the action, 632. _ .
Extending time for, 632, h. ,
Exception. ^ . , .
Notice of, when affidavit made, 630.
Exception, where notice of bail unaccompanied by affidavit, 631.
Where bail put in before a commissioner, 631.
Where the last day of exception happens on a Sunday, 631, d.
Entering exception, without serving notice, nugatory, 631, e.
Notice of, must be correctly entitled, &c., 631,/.
Xfotice of justification, time limited, Gd2,
Service personal, 632, /.
Notice, when a waiver of irregularity. 632, /.
Where two or more notices of justification given, 633.
Where given vexatiously, 633, t. ,
Render.
Special bail requisite for, 632, j.
By rejected bail, without fresh recognizance, 632.
After action on recognizance of bail, 632.
In computation of time, intervening Sundays reckoned, 633, I,
Plaintiff entitled to proceed, if costs of action not paid, 633, n.
Liability of Bail.
Limited to sum sworn to in affidavit of debt, and costs of suit, 633.
Error or appeal.
Application for stay of proceedings, time for limited, 633.
Supersedeas.
Order for, in rule for discharge of defendant upon puttinjr in special
bail, 637.
Proceedings against bail, 68, (S).
Teste and return of writ to fix bail, 357.
Proceedings by ca. sa., &c., 357, u.
Scire facias against, teste of writ, &c., 373.
Special case.
For the opinion of the court, without pleadings, after writ issued and
before judgment, 159.
Must be confined to questions of law, 160, c.
Court may, if necessary, order the case to go before a jury, 160.
Parties may agree upon a fixed sum on the questions of law, 161.
Or leave the same to be ascertained by the Court, 161.
With or without costs, 161.
Judgment for the amount, 161,
Execution forthwith, unless otherwise agreed, 162.
Or stayed by error or appeal, 162.
Case to involve money demands only, 161, y.
Error, confined to matter of law, 162, 0.
Case, on references compulsory or by consent, 163.
Concilium rule for, abolished, 597.
^
t*i
810
INDSX OF SUBJECTS.
Special ca.se.~{Continued.) ' •'•
Case may bo set down for argument by either party, 598.
Notice to opposite party, 598.
Copy of case to be deliverod to each of the Judges by the party settinc
down, 699. "^ ^
Form of special case under sec. Ixxxv, 693.
When stated by an arbitrator under sec. 80, 693.
JPor/n of judgment thereon, 696. , '/^
Special demurrer. ' ',. *
No pleading invalid, for ground of, 203.
Special indorsement. " '•
On writ of summons where demand liquidated, 89.
Form of, 538.
Further particulars not necessary, unless ordered, 91.
See also " Summons."
Special jury.
See "Juri/." -
Special traverse. V
Unnecessary in pleadings, 221.
Special verdict.
Rule for concilium abolished, 597.
May bo set down by either party, 508. ' i
Notice to opposite party, 698.
Copy special verdict for the Judges to be delivered by the party setting
down, 599.
Specialities and covenants. ....
Effect of plea of non est factum in actions upon, G80.
Other defences must be specially pleaded, 680.
Specific delivery of chattels.
See " Chattels."
Specific performance. ..
8eo " 3Ianclamus." v
Speeches to Jury. ' '
See " Trial." " -
Statute of limitations.
Saved by renewal of writs, 06.
rica, of, with other picas, 200.
Statute, repeal of.
Effect of a repeal on former Statutes, 533,/.
Staying proceedings.
Where writ issued without attorney's authority, 59.
Ou payment of bill of exchange or promissory note and costs, 604.
See also " Security for costs."
Striking out.
AVliere pleading framed so as to embarass or delay trial, 201.
Several counts on the same cause of action not allowed, GC9.
Counts in violation of this rule may be struck out, 009.
Application for striking out, when and how made, 009, m.
Appeal against, from judge in Chambers, 070, m.
Sub-lessee.
Entitled to redeem in action brought against original lessee, •405, I.
Submission.
See *' Arbitration."
Substance.
Demurrer to bo for substance only, 190. • '
Suggestion, see " Death of parties."
1 . i
INDEX OF SUBJECTS.
811
etting
setting
04.
0,1
Suitor in person.
Setting down motion in list of postponed motions, C15.
Notice to be given to opposite party in such case, 015. "
Summons, writ of.
Within the jurisdiction. • <
Form of, in personal actions, 27. '\
General contents, 28.
Form or cause of action need not bo mentioned, 30.
To contain names of all the defendants, 31,
Not to contain names of defendants in more than one action, 31,
Date and teste of, 32.
\ Memorandum in margin of, 33.
Indorsement of name and place of abode of the attorney suing out, 83.
When sued out by agent, 33,
"When by plaintiff in person, 3-4. .r .
Attorney on demand to declare if writ issued by his authority, 58. '
. And disclose plaintiff's residence and occupation, 58.
Proceedings to be stayed if writ issued witliout authority, 59.
Indorsement of plaintiff's claim for debt and costs, tiO.
Writ to bo in a certain form, GO.
First and last of 8 days for payment inclusive, 60, i.
Defendant may tax the costs notwithstanding payment, 62.
Form of the writ and indorsement, 535.
Without the jurisdiction.
Service of on a Brilii<h sithject, 75. ' '
Writ to be in a certain form, 7G,
Time of defendant's appearance to be regulated by distance, 70.
'' When, and on what proofs, plaintiff at liberty to proceed in case of
non-appearance, 77, t.
Must prove his debt by assessment or computation, 78.
; TTyrm of the writ and indorsement, 537. '' ■
Proceedings when defendant an alien, 78, 79, 80.
Writ to be in a cei tain form, 79. > '
Form of notice thereof to be served, 79.
Subsequent proceedings, 80.
Affidavit to ground proceedings before whom to be sworn, 86.
Forgery of signature to, felony, 88.
False affidavit, perjury, 88. ^
Form of the writ and indorsements, 537.
Notice to defendant, 538.
Corporations,
Service of writs upon, 71.
On a corporation sole, 71, 3.
Upon a clevlv, who meant tliereby, 71, b.
Upon an agent for a corporation, 72, d.
Concurrent.
May be issued, 03.
Within what time, 03.
General nature of, 03, p.
To be tested, same day as original, 03.
And marked " ('oncurrent," in the margin, 64.
Duration of, 04.
Certain writs msiy bo made concurrent, 80.
Renewal. . •;•"-•• '^'
"' Original, not to bo in force beyond six months, 05.
lleuewal of, 05.
\}\
i 't
' ! I-
h^
i =
J i
812
INDEX or SUBJECTS.
m
Summons, writ of, — (Continued.) r
Renewal to oe marked in the margin, 6C.
Effect of renewal, 66.
Renewal of writa already issued, 67.
Renewal, what, evidence of, 68. . ■ ' ,
Particulars of demand.
May be indorsed on writ, where defendant within jorisdiotion, 89.
Form of such indorsement, 90.
May contain " credits," 90, t.
Further particulars unnecessary, unless by Judge's order, 91.
Service and indorsement.
May be served in any county, 69.
' Indorsement of service by the person serving, 69. '
Who may serve writ, 69, «.
Indorsement of service by a marksman, 70, w.
Form of indorsement, 70, v.
Plaintiff not to proceed, in case of non-appearance, if service not duly
indorsed, 70, v.
Affidavit of service to mention day of indorsement, 70.
Service to be personal, where practicable, 72.
Where personal service cannot be effected, 74.
Affidavit in such case must show in addition to other facts, tha*. no
appearance had been entered, 75, /.
Order to proceed, absolute, in general, in first instance, 75, k. ^
Application for, must be made within reasonable time, 75, I.
Procedure, when writ specially indorsed.
Procedings, on non-appearance, 123, 124.
Judgment final, for, not exceeding, amount indorsed, 124.
With interest and costs, 124.
^, When pigned, on rule or order, 124, r. ^
•"' Execution, when it may issue, 125. .- :
' \ Defendant may be let in to defend, before or after judgment, 125.
Upon affidavit accounting for non-appearance, and disclosing merits
125.
Grounds of defence need not be stated, 125, w.
Procedure, when writ not specially indorsed.
Declaration to be filed, on non-appearance, 120.
With notice to plead in eight days, 126.
Judgment final, in default of plea, 127.
Execution for, not exceeding amount indorsed on summons, 127.
With interest and costs, 127, I.
Miscellaneous.
Writs not void for defects, but may be set aside or amended upon terms,
80, 81, 82, 83.
Amendable, on application to set aside, 83, 84.
Proceedings, by summons and order, 82, ('), m.
Application, to judge in chambers, 83, (^), m. \
Application, when too late, 84, (^).
Substitution by mistake of certain forms of writ, amcudablo without
costs, 85.
Sunday.
Affidavit made on, of no force, 045, n.
Service of proceedings on, void, 049, b. ,
Supersedeas.
Order for, in rule for discharge of defendant upon putting in special bail,
See also " Special bail." [037.
INDEX OF SUBJECTS.
813
Surrender. ,r >■ ••
By bail of principal, 67, (♦).
See also " Special Bail."
Table of costs.
To be those set down in Schedule B. to New Bules, Trinity Tepm. 185C
666,709. ^ * '
Taxation of costs.
To be governed by established practice in England, whtn not otherwise
provided for, 661.
In what cases County Court costs only taxable, G'Jl.
Two counsel fees only taxable on trial or argument, CG2.
Counsel fee not taxable on rule obtainable without motion paper in
term, 662. , *
Affidavit of disbursements when requisite, 6G3. *
Affidavit of mileage, 663.
When judgment signed on cognovit, or on Judge's order, costs of doola-
ration not taxable, 663.
Costs of counsel in Chambers, not taxable, unless Judge certify, 668.
One subpoena only taxable unless sufficient reason shown, 608,
Coroner's fees (same as Sheriff's) taxable, 604.
Affidavit of increase, contents of, 601.
Maps and plans, when allowable in taxation, 665.
See also "Costs."
Tender.
Plea of, with other pleas, 259.
Terms of Court. » .
Periods fixed for holding and ending, 739. ^vv (.»;(!«• y-yc'
Territorial jurisdiction of Courts defined, 27, b. '.
Teste of writ.
See ''Summons," "Capias," SiC. ^ »., ^ ^^
Time. W*t*:<'«» W#M'to4. fr'/»|A4t^^/ttfc'#M " iOTi
Omission of in pleadiiig, when immaterial, 195. /
Otherwise, if material, 195, /.
Computation of, see "Co?n^M<a<tow o/<eme."
Time for pleading.
To amended pleadings, 270.
Where plea before amendment, 270.
Where after summons to amend, 270, r.
Where plaintiff amends after order for time to plea, 270, m.
Title.
See "Ejectment."
Title deeds.
Count for detainer of, 546.
Tort, action for.
Payment into Court, effect of, 229, p.
Judgment by default in, not final, 274, e.
Plea of " not guilty" limited to denial of breach of duty or wrongiUl
act by defendant, 683.
But not of facts stated in the inducement, 085.
All other pleas in denial must traverse some fact, 085.
Effect of plea of " not guilty" in action for nuisance, 685.
" " for obstructing a right of way, 085.
" " for slander of plaintiff in his office, pro-
fession or trade, 085.
Town causes.
Where venue laid in United Counties of York and Peel, 104, d^
i
i
\u
^i '
i
. ' * -4* J
'.■" S '* •tft'i '
\ri.
814
INDEX OF SUBJECTS.
Trespass quaro clausum fregit.
Count for breaking and entering pl.intiff's close, &o., 546.
Abbuttala must be designoted in declaration, CS'J.
Wliat a sufficient description, 089, rt. ^ .,( ,,,
Effect of plea of not guilty, 689.
Where entry made under execution against one of two tenants in com-
mon, entry must be specially pleaded, 690, d.
Trespass to goods and chattels.
Effect of plea of "not guilty," 690. r ^, ,. . . , .
Effect of plea of "no property," 690,/. . ; '
Trial.
Entry of record for, 297. • * i ' - ' •
List of records to be made, 298.
Prtceediiiffs at. ..,>..
Address by Counsel, regulation of, 301. i, «•
Adjournment,
Order for, discretional with the Court, 805. > . ir
Witnesses.
Impeachment of testimony, when not allowed, 306.
Adverse witness, contradiction of, 306.
Cross examination of .
As to former statements, 308. ,-.,./. ,
Proof that such were made, 309. • \
\s to former statement in writing, 310. i .=
Judge may require its production, 31 1. I •
Discrediting witness.
Question, as to conviction of felony or misdemeanor, 311,
Proof of, by opposite party, 312.
Certificate of conviction, sufficient proof, 312.
Attesting witness.
< Proof by, of written instrument not essential, 313.
May be proved otherwise, 313.
Disputed writing.
Comparison of, |vith genuine writing, 814.
Admission of documents.
Notice to admit, 316.
Form of, 609.
Must be served a reasonable time before trial, 316.
Costs of proof, when admission refused, 317.
Where witness called to prove, gives evidence as to other matter, 318, /.
Admissions inadvertently made, may be withdrawn by Judge's order, 317.
Admission of a copy not an admission of the original, 317, J. [J.
Original must be produced, although admitted, 317,/.
Effect of on other trials, 317, /.
Immaterial variance in admission, 317,/.
Identity of document with odmission, not necessary, 317,/.
- Party refusing to admit, liable to costs, although verdict set aside, 318, in.
Inadmissible «locuments, costs not allowed, 318, n.
Affidavit of admission, sufficient evidence of, 318.
/'om of affidavit, 319, M.
Notice tn produce.
Affidavit of service, sufHcient evidence, 319.
Form of uffidfivlt, ?.19, b.
■ Notice good for subsequent Assize, 319, c.
Form of notice, 319, r.
Must bo served a reasonable time before trial, 819, z.
m
_ 2S
INDEX OF SUBJECTS.
816
7
Trial at iJrtr.
Notice of, 281.
To bo given to Clerk of the Crown nnd Pleas, before notice to the
party, G13.
May bo granted or roftiscd on application by either party, 732.
May bo had of rijijht vrhero (Jrowii interested, 732.
Appointment of day for trial, 732. v ;
Trial by consent o/partiet.
■Without formal pleadings, 155. , ,)
Question to be stated in issue form, 157.
Parties must have a bona, fide interest, 15G, ^. ^ t. "'
I^lay agree upon a fixed amount, 157.
Or leave same to the jury, 158.
Costs, 158.
Agreement for, need not bo embodied in the record, 157, n.
Venue, 168,/).
Judgment nud execution, 158. ^ '
E.Neoution to be in the V3ual form, 158, /. »■
Proceedings may be entered on record, 159. r'
Effect of judgment, 15*J.
Costs, 102.
Wi *y ;"■"*''"*"'•
Rule for unnecessary, 291, CI 3. '
Tral by record.
Notice of, 281, i.
Trover. ,
Count in, 54G.
Umpire. .
Appointment of, by Court or Judge, Tivhcn, 183.
Appointment of, by arbitrators, 185, k. V
See also "Arbitration."
Vacant possession.
Service of writ of ejectment how effected, 306, 428.
Judgment, 429.
See also •• tjcdmmt."
Value.
When statement immaterial in pleading, 195. '
"NVhen material, 195, y.
Variance.
When amendable at trial in case of joinder or misjoinder of plaintiffs, 1 3 /
Must bo before verdict, 187, /.
Upon terms, 189.
In case of joinder of too many defendants, 141, i, ■
Noiyoindcr of defendants, 142.
Cannot bo made afterwards in banc, 142, c.
Venue.
Issue of writ when venue transitory, 7.
>Vhen local, 7, L
When local or transitory, 7, J.
Change of venue, 8.
Snbsei|uent proceedings where carried on, 10, o.
■Where causes joined, 151.
Venue in ejectment, 402. /.
Venue not to be changed unless by consent or Judge's order, 599.
"When, before issue joined, 000.
Order for, in discretion of the Court or Judge, 600.
Li
816
INDEX or STTBJEOTS.
Pi
Verdict.
> Motion to enter must be made within four davs after trial, 614.
If entered in postponed list, notice must be given to the opposite partv
Rule nisi for, 320. fQ15.
Application for setting aside by one of seyeral defendants, 820, /. ^
Leave reserved at Nisi Prius, 821,/.
Vexatious and frivolous suits.
British Statute 8 & 9 W. III., c. 11, s. 8, to continue in force, 277.
Vice-comes non misit breve.
Continuance by imparlance abolished, 692.
View.
Rule for, 328.
Affidavit to be made on application for, 618.
Deposit to be made, 613. v ^«^^^.
Deficiency how payable, 618. ir
Payment and account by Sheriff, 618.
Scale of expenses, 618.
Voluntary witness.
Privilege of, attending trial or arbitration, 178, /. i . »
Waiver of plea.
After demurrer, not permitted, without leave or consent, 694.
Warrant of Attorney. '
Judgment on, without process, 12. - |
Execution of, 605. 1^ , ' y it
Explanation of, to defendant, 606. " '
Defendant's attorney, an attesting witness, 606.
Affidavit of execution, filing, &c., 607.
Reading over instrument not necessary, where defendant informed of
contents, 606, k.
Information need not be private, 606, k.
When dofeudant an illiterate person, 606, k.
Neglect of defendant's attorney to explain, will not vitiate unless fraud
or collusion, 606, k.
Alteration of, after execution, itg effect, 606, I,
Attestation, requisites in form of, 607, o.
Objection by a third party to informal execution not allowed, 607 o.
1/ warrant more than one 1/ear old and under ten.
Leave to enter judgment necessary, 607. '
Application to Judge in Chambers, 607, r.
p Leave not necessary where defeasance so framed, 607, r.
Leave necessary oil warrant by wife, 607, s.
Judgment must be entered on the original warrant, 607, a.
Exception in special cases, 607, a.
If warrant more than ten yeara old. •
Rule to show cause necessary, 608.
Service of, when dispensed with, 608, «.
Warranty.
Counts for the warranty of a horse, 546, \
Effect of plea of •' non-assumpsit, 674.
Way,
Plea of a right of way, 548. '
Wearing apparel, &c.
Of debtor on limits, exempt from execution, 512. •- '
Under execution, generally, 736. *
Weekly allowance.
See *^ Intolvent debtor."
|. '
INDEX 01* SUBJECTS.
817
Wife.
See ** JTuaband and W'/e."
Witnesses.
See **Affidt .<," " Arbitrt j," «• 7Via/,» " Voluntary Wilfiett:'
Work and materials.
Count for, 645. .' , .
Writ*.
Sealing of and issuing, 4.
Return of, 22.
Mistake in form, when amendable without costs, 85.
Costs of service, when not taxable, 788.
See also «• Clerk oftha Process," " Summons," **Capias," ** Iffeetment,"
" Execution," ^e.
Writings.
Need not be proved by attesting witness, 812.
May be proved otherwise, 818.
Comparison of writing, 814.
Written instruments. ^
See " Writings," «« Trial."
Wrongful act
Injunction for restraining repetition or continuance of, 466.
See also "Injunction."
Wfongs.
Sw *' Form in pleading."
y > r .-^<)'-
.; I -••,;'•:
M.. \
■V',.J#.
DDD
I;.!
rl
Pf
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"I
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, i
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Page]
u
>t
II
II
II
^/f/
ADDENDA ET CORRIGENDA.
During the progress through the press of a law book of such dimensions
as this volume, it must be ezpeotod that in consequence of decisions, new
rules, new statutes, or new matter of some kind, alterations and additions
will be necessitated. The reader of this work is requested to make the
following : —
Fage 1, not* 6, Hne 17, f&r " Both Reports will Iks found at length In the Introduotlon," aJbAiXvU
• " Both Seporti are In detached portions where appropriate, embodied In the notai to thli work "
(See further " FreflKe.")
Pag* 4, note «, lin* 17, aJUrr " Statute" add " lee N. Ri. Noi. 160 et aeq."
MM « ^ at (he end odd " See C. L. P. A. 1S67, «. 1, at p. 728 of this work."
Fage 7, note J, at the end odd " under the operation of thla leetion, Incoonoxion wtthi. 6ofU A15
Vlo., cap. 04, a writ of replevin when the cause of action U transitory may be issued fh>Ba
the office of a Deputy Clerk of the Crown in one County to be necnted in another —
Bufhlo * Lake Huron K. Co. y. Gordon, 3 U. 0. L. J., 28."
Page 0, note I, lulHlir. 1, at the end add " It Is In the discretion of the Jud((e cither to change or not
to change the venue on the ordinary grounds, according as he thinks it will farther the end
of Jasttoa.— Cramp t. Crew, 4 U. C. L. J., 20. Special grounds maj be shewn why a venaa
should not l>e changed on the ordinary application. (lb.)"
Fage 9, note I, sub^iv. 2, at the end add " An application to change the renne on special grounds
should not be mad* before plea pleaded.— Stewart t. Johnstone, 4 TT. 0. L. J., 21."
Fage 0, note (, sub-dlT. 3, at the end add " But changed on the common affidavit in an action ot
roplev.a brought for the recovery of goods and chattels detained for a cause other than a
dlstrest..— Vance etal. v. Wray, 3 U. C. L. J. 69;" also, "will be changed in like manner before
issue Joined in an action for use and occupation, although it be really for rent accruing on the
lease, unless it bo shown tlut the rent was secured by deed, or that tlie action oan be mora
oonrenlently tried in tlie County whore the venna was orlghully laid.— Smith t. O'Brien, 36
L. J. Ex. 30. The practice is now to change the venue to the County where the cause can be
moat oonrenlently tried.— /&. ; and see Uruoe t. Wilmor, 26 L. J. Q. B. 2."
Page 9, note I, saMlv. 4, at the end, add " But where defendant sued by the Municipal Council of
the County of Ontario applied for a change of venue to the United Counties of York and Peel,
upon the ground that as the Municipal Council of Ontario were plaintiff's, all the inhsbitants
of that County were Interested, and defendants could not get an impartial trial, the application
was granted upon payment of costs, and with the understanding that defendants should pay
the extra expense of mileage incurred for piaintltrs' witnesses in eonsequenoe of the change,
and in the event of the defendants' succeeding in the action, that they should not tax against
plalntin such extra mileage for their own witnesses.— Municipal Council of Ontario t. Com.
berland et al, 3 U. C. L. J. 11."
Page 9, note I, sulnilv. 6, at the end, odd " Cleghom ▼. Carroll, 14 U. C. Q. B. 480."
Page 10. note I, sub-div. 7, line 15, after " 1 U. C. R. 397," add " If the venue be laid by mistake In
the wrong County it may be changed.— Richardson t. Daniels, 3 U. C. L. J. 205; but the
plaintiff will not in general be allowed to change his own venue to a County in which ha
migl.t havo laid it in the first instance, nor will lie in general be allowed to change in order
to avo\d the consequences of his own delay or laches.— Barton et al v. Nowlan, 4 U. C. L. J, 20."
Page 10, /or not« I, sub^iv. 8, tubitituU the N. Rs. 190, 137.
M 10, note n, at the end, add " Summons iiisued ftom the Office of the Deputy Clerk of the Crown
' for the County of Elgin, venno laid in Middlesex, writ set aside.— Qreen t. Horton, 2 U.C.LJT.
213."
Page 11,/ornote r, iu6»«ufe The N. Rs. 136, 137. V
« lS,2dcol.lInel,/orRuleH. T. 13 Vic. Xo.47,nti9(ilh(teTheN. R.135.
" 13, " 28,/orRuleE.T. 9aeo.IV.»u6*<rti«l<!TheN.R.26.
" 14, 1st, 10, from the bottom, for Rule H. T. 11 Vie. mbttUuie Tlie N. R. 27.
" 16, " 20, /or "Agent," "Executor," «tt5»<«M<e" Agreement," "Execution." i
« 16, 2d col, line 13,/or Rule 44 T. T. 13 Vic. nibilituie N. R. 65.
« 17, 2d col. lino 8, firom the bottom, /or " have." tubslUuU "has."
» 18, at the end of the flrst parat^rapii and the word " Toronto," add " There can l>e no revision
of a bill taxed unless taxed in a cause in the Court.— Bouchier et al v. Fatten et al, 3 U.C.LJ.
X08."
820
ADDENDA ET CORRIGENDA.
M
U
Vn%n IS, 2d ml. lint lT,/or Dro. Rul«i p. lA, $uh$tilult N. Ri. 154, tt itq. ' '
" IS, •< 0, from the bottoiii,/'<r KuU 1 M. T, 4 0«n. IV. $ut>itiluU N. R. 154.
•< 10, " 0, firom the bottom./ur The Rule M. T. 18 Vlo. iulntilute Tbo N. It. 140.
•< 'j;i, lit ool. line 4, flrom the bottom, a/Ur " 1863," add ''and Id U. 0. by N. Ilf. lol, hvi"
•' 2tl, note «, line 4, o/lcr " Utter Statute,'' a(i<i •' aad 1. 10 of 0. L. P. Ah867."
" 2(1, 2J col. lino 7, /or " eutrj," luhstUule " Reglntry.l'
•< 27, note y, line 0,6</bre"Oimdii and Ctutteli,"a<i(<"Debt«."
•' 28, let ool. line 20, ^/llM- '• to be," a(/(i " and are hereby declared to Iw."
" •« 27, /or" entire" fub«<rttt<«" exterior."
•• 29,/or"be," fufci<i7u^« "Ho."
« 40, afUr " United," add " State*."
" 20, nott» /, line 33, a/Vw " per Pollock. C.H., p. OJW," add " Whore a writ wan directed to ' A. R
In the Til wnnhip of Nutt4waiia ja, In the County of Slnicoe,' and dufxudant ubtainud it Rumnion'i
. ^'^ to let anlde the writ, on the ((round that hii place ofruKidMncv wni wrongly deHcrlbfd, be
having for eluhteen months prevloui to the aervlce of the writ, and being at the time of such
Ki-rvioe roRidout In the city of I'uronto. In aniiwiir to tbii RiiplicHtlou plalntlfT prodtiivd and
Tcrlfii'd n letter from the di>rundant, datvd at Colllngwood, >lovuntb«r l.'1. 1H&5, wrlttf n by de-
fundiiMt tu plHiotllT, and enolo^ln^ the note on which the action was brouKht. llulj that
pi iintltl hud Hufflclent groundii fur his siippo*ltion that the rewldence of tho defuadaut was as
stated In the writ of summons.— Ullhorn v. Chapman, 2 U. 0. L. J. 231,"
Page 30, note n, Une 4, bt/ore " Rule," add '• old."
" 31, note </, line 6, Jw/ore" Rule." odd "old." '
" 31, 2d col. line 1, bt/ore " s. Ixxl." add " under."
" S3, note y, at the end, add " In England It has been held that If the writ Im Uaued by an at-
tornoy In p^r.'ton. It lit i>unicient In tlie endorst<nient to descrlbo him as reHlUing at thu placu
where hecarrlesonhlsbui«lnesR.— Ablott v. D.'«shsni,25 L. J. Q. U. 230. I'Ucu of aliude means
the place where a person Is likely to be fbund.— Allenburgh t. Thompson, 30 L. T. Kep. I&4.»
Page 34, 2d col. line 0,/or " la too beneflolal In practlco to be neglected," lubttitute "has been re-
enacUd In N. R. 100."
Page 30, tJt col. Hoe 3, add " So where the warning and signature of the Clork of the Process were
Ind jrMd on the hack of the copy instead of appearing on Its fiwe, the copy was held to be ro.
guUr,— Ollmgur t. McMillan, 3 U. C. L. J. 71."
Page 37. In note I, for old Rule No. 3, tubititute The N. R. No. 100 ; utA/or old Rule No. 4, lubiti-
UtU tb* N. R. No. 132.
Page 39, 2d col. at the end of the first paragraph, add " Where one of two or more defonrlants is ar-
rested for an amount greater than the Tordlct afterwards obtained, an order to deprive the
<> ptalntlif of costs will be granted under our Statute.— Arnold r. Jenkins et al, 3 U.C.L.J, 133."
Pag* 41, 1st col. line 11,/or "laws," lubitUuU "process."
» 41, Ist col. Une 37, afltr "terms," add " The rule will not apply if the (brolgnor arrested, In-
stead of having coqu to the Province far a temporary purpose, did In fact come to reside here.
Uluinonthall v. ftolomon, 3 U. C. L. J. 11. Defendant applying f >r his discharge from arrest
ou the ground that he did not come with an intention to reside, munt be explicit in declarini
that fact in his affidavit.— /6."
Page 42, line 3,/or The Rules T. T. 3 & 4 Wm. IV. and E. T. 4 Wm. IV., tubttitule The N. Rs. 109
etttq.
Page 42, line 13, /or « 1 U. C. Cham. R. 108," tubHUuU "2 U. C. Cham. R. 108."
<' 44, 1st col. line 27, after "these caaes," add " An affidavit where the debt arises on a sealed
,, ... instrument need not set out the data or other particulars ofthe deed or if i^ show diiitinctly the
' .^ nature of the debt and of the instrumenton which itaccrued.— Clarke v. Cinrko, 3 U.C.L.J. 149.
Pago 40, 2d col. line 17, afUr " R. 31,' add " But an affidavit concluding < with intent to defraud
disponent as assignee of the estate and effects of plaintiff,' Is substMntially a compliance with
ttie words of the Aet, ' to defraud the pUlntlff, Ac' — Bemberg v. Solomon, 3 U. C. L. J. 13."
Page 50, note », line 9,/or " n. h," tubttiliUe " n./."
Pago 51, 1st col. line 19, f{flf.r "s. 131," add "It appears also that the Court of a magistrate Is a Court
where the magistrate having begun an Inquiry, a wituess coming before 1 1 ia on tit Ir-d to privilege.
— Montague v. Harrison, W. R. 43; but a person who voluntarily attends before a nmgls^
trate and obtains a summons from him in order to enforce a p>*nslty, Im not thus prlvileKcd,
for he U but a common informer and not a witness.- iSc parte Cobbott, 29 L. T. Rep. 210."
Page 51, 1st col. line 33. qfler "ignorant," add " The privilege only extends to attorneys in the
cause, not to attorneys collaterally and incidentally in Court.— Jones v. Marshall, 29 L. T
Kep. 101."
Paee 52, at the end of the first paragraph, add " Tnbnoy is no ground for discharging a person frum
arrest— Clarke T. Clarke. 3 U. C. L. J. 149."
Page 53, 1st col. Une 17, after " other cases," add " See note n to s. ccscv."
ADDENDA XT CORRIQENDA.
821
I N. Ri. 109
Ion • Healed
iKtincttytbe
I.C.LJ.UB.
. to defraud
bllance with
[L. J. 13."
PaK« 56, lit eol. Una 22, htforn " «xi-ept," add •' within twenty dayi."
•• &8, litcol. llnaO, (^(i>r><R7,88,"a(/<("alioDoto« tof.cccvl."
" 69, onto u, lln» 17, nrtcr " upon htm, (I by' add " Upon an appllcntlon hr a defendant uroumlHd
on an amjavit of hU atf.uriiey, nUtlnii iMat Iih bad appl|i>d to pliilntlir'n attornny fur partlcu.
Urn (ifpliilDtllT'iiroKldHncH. and wm Informed by th»attorni<y that h* did not poelilvulv know
plalntllfi raildenco but Iwlleved It to bo at WIndRor, but that Ue, deponent, had k<'o4
ffround to liuliuve and did bii|l«vi» that pliitiitifr'a meldtinca wa« not at windior but In th«
llnltud Stiiten of Anierlcit. an ord^r for a «tay of urooeedlnii waa made, no eauio Iwlnir ihuwn
-Houghton v.O.W. K.Co.,8U. 0. li.J.70." * ' "»»•■'"«»■""'«>•
Page 01, note i, line at, hffore " D. A T,." add " 3," and (t,fftr "Ma." add " Under the nuanl order on
payment of tho d«bt and ( <mt» to bo taxed, the pliilnlHr'a attorney rannnt Immedliitt-ly after
the taxation dvinund pHymont of the dt-bt and ko*U, and on Ihu CIvrk or the dwrnJant'i
attornHV Ijoing unprepared with the amount, sljtn Judaniont.— IVrkIn* v. National AuuruDca
Co , -M) L. r. Kop. «a."
Paw 7'i. at tht) end of note e, ndd " dooa not apply to ac-tlonii of ijeotraent.— lUndley t. lloldornhotf .
2 U. C. L. J. 214." '
J^to 77, !it tho bonlnnhiR of nnfo r, adil "Tho unrtlon empowers tho Court or Judge to allow the
action to proceed, not In the event of thu cituw of notion having arisen within the JiiiWdlclInn,
biitln tliHOventof thuir belnn iiatlHflod that It did arise within the JurlRdletlon.—IIiittoii
y. Whltehouae, 20 Jur. a70, 4 W. R. 4t)3, 1 11. A N. 32."
Pago 77, at the end of note r, add " A Writ of dnnimona In tho form Rivon In the echedule, but with
no IndorHument on It, and nothing to Khow the drfointant tlie onuso of action, waa lirnued In
ordur to euo the d(<rund>«nt, who wm« a ItrliUh sutjwt ruHldIng out of the Jurladlcilon. An
order to proceed wbh miliUfquootly made bv a Judite on an affldaiilt, which contulurd no
gta'oment that thn cause of iictlon arot^e wllliln the jurl-dlotlon. It appeared bv the iifltdiivlt
(liif«rentlally at loHHt) that the Judg«''H order hnA not been nerved. A deelaratlnn wan flliid,
which the defendant aceordliig to Kugllxh practicu took out of the ulDce. Held that by doliitf
' io, any previous Irregularity on the part of tho plalntlll waa waived.— Hay no t. Stock, W. R.
171."
Paije 81, Ist col. lino 15, a^ftcr " 1 Kl. & H." add " But whore a defendant who had been arrostHd on
B capias applied to sot UHlde tho nrroat lor Irregularity, on the ground that a trne copy of tlio
'• ' vrit had not been served on him, and on his application died the copy served, in which It ap>
ponred that the variance connlsted In the words ' fltty-nlx' In the teste of the rt>py beln«
oniltt^. Held, the copy having been filed and In the custody of the Court, that under this
lection, taken In connuxlon with s. ccxcl, It might be amended, which was duno In this rase
on payment ofcoHts.— WIImod v. Story, 3 U. C. L. J. 60."
Page 81, note I, lino 8, at the ond, add '• Thus plaintiff's (ittoroey may amend the writ of snminons
before service by corroiting a mistake as to thh name or numberof defendants and may cau^e
it to be resettled without altering tho teste.— Ulbson r. Varley, 28 L. T. Rep. 158."
Paie 82, 2d col. line 7, after " Jh. p. 4(13," add " Where a party makes an application to full Court In
a vexatlouitand oppressive manner, when his ol^Ject might have been more speedily obtalnrd
at a fur less cost upon an appllcall'^n to a .1 udge In Chambers, the Court may discharge hit rule
wttb costs.— The Duko of Uruniwlck v. tileman, 6 C. U. 218."
Pasco 82, 2d col. line 10, after "1^*\" add " An appllcallon may be made to a .Tudge In Chambers to
rescind his own order. If ho refuse no aiipeul c*n be made to the full Court.— Thompson v.
Uecke, 4 Q. B. 7'>9."' AIm, '• A .Fudge In Chambers Is for the purpose of all motions K'fore him
a Judge of all the Courts.— Palmer y. Tho Justlco Assurance Co., 28 L, T. Rep. 120."
Piijo 82, 2d col. at tho end of line 30, add " and If having the power he exorcise his dlncretlon. In
doing soa dilTorence of opinion between him and the Court In tho particular cnfe cannot avail
against his order.— Bulford v. Toiiilinson, 4 Q. B. 042."
Pace 82 2d col. line 7 from the bottom. n/Vcr "373," add "Tho application should as a jrenerul rule
bo made In tho course of tho term next ofter thu decision.- Orchard v. Moxey, 2 Kl. & B. 200;
upheld In Collins et al v. Johnson, 10 C. B. 688."
r»irB90 at the end of note r, add " So in an action on a guarantne, the wilt may be specially in-
d'orsod —Tones v. Greer, 3 U. C. L. J. 01." " See further, McKlnstry T. Arnold, U. C. L. J.,
March, 1858.
Pace 97 lit col,, line 2, after "together," add "Where a warrant of attachment had been issued
a'lalnst an absconding debtor, \inder the practice that prevailed previous to this Act, and
the notice thereby re<iulred had been duly given, a wrltof attachment was granted under this
Act without a new affidavit.- Ross et al v. Cooke, 3 U. C. L. J. 48 ; Buchanan v. Ferris, 3 U.
C. L. J. 48."
PaseOO at the end of note 1-, add ' Clirkev. Mscklntosh, 2 U. 0. L. J. 231." Also, "Application
for leave to proceed under this section should show, 1. M'here the defendant resided, and what
waa his business or occupation when In this Province ; 2. What property he has (if any), and
in whose hands it Is ; 3. Whether ho has any (and If any, what) fiends or relations reading
>, in this Province; 4. That defendant has not put In special bail to the action ; 5. What speciflo
^ ■' efforts Uavo been made to effect personal service on tho defendant and to discover his where-
abouts.- Stephen et al v. Dcnnle, 3 U. C. L. J. 69." , ,.„ i
i; i:
,. vf ir-
822
ADDflNDA IT OOBBIOXNDA.
!;
1
^1 ivi G^ f
Mp
Page 100, Ist eol. at the end of the Mcood line from the bottom, add " 2 U. 0. L. J. 184." JUo « See
Airiher MoDounl ▼■ 01lehriit,8 U. 0. I*. J. 28; Kerr et al t. Wllaon et al, 3 76. 13; Ron et
al T. Oooko, 3 lb. 48 ; Bnohaaan et al t. n>rrls, 8 lb. 48; Baxter et al t. Dennle, 3 ib. 69 :
Lyman at al t. Smith, 8 /6w 107 ; Kerr et al t. j^mlth, 3 lb. 108." '
' Pan 110, 2dool. Una 10» trau "Leamon t. Deal, 660^' and tubttOtOe "Llsmore t. Beadle, 1 DowL
N.8.666."
Page 112, line 7 of text, q/ler plaintiff add <<(y y)" ; and In note Intltled y y, add " The order may be
had tstpctrU upon an aflhUTit which anowa olearly plaintifi'i right to make the application.—
Cleaver t. Vraaer, 3 U. 0. L. J. 107." The affldavlta on whieh the application was made in this
oaie waa that of the Sheriff (tattng that the real and perional property and effects of the de-
fendant were inauflloleBt to Mttify plaintiff's Judgment, and that of the plaintiff stating the
Issue of a writ of attachment, the recovery of judgment, that it was partially unsatlsfled, that
all the real and penonal property of delkndant was exhausted and Insafflolent to satisfy the
Judgment and tnat aoTeral persona within the Jurisdiction of the Court were Indebted to de-
fendant— 7b."
Page 112, note h, line 0, trait "7," and tubitituk " 8."
« 117, 1st col. at the end of line 6, add " This return applies only to oases where original process
has been served or executed.— Fiaher v. Sully, 3 U. C. L. J. 80."
Page 118, 1st col. line 2, cJUr " apply," add '• See Fisher v. Saley, 3 U. C. L. J. 89."
<• 118, at the end of note u, odd <* Attaching creditors in a Division Court havlngno priority with
the execution defltndant will not be allowed, on a summary application In Chambers, to ex-
cept to a Judgment In the Superior Court on the ground of fraud.— Fisher t. Oully, 3 U. 0. L.
J. 89."
Page 123, 2d col. line 13, flrom the bottom, (tfttr " 839," add " Where an appearance filed by defend-
ant waa by mistake Indorsed with the letters "C. C," which misled the Deputy Clerk of the
Chrown, who wu also Clerk of the County Court, and caused him to file the appearance
among bia County Court papers, and the plaintiff finding no appearance signed Judgment, the
Judgment waa aet aalde upon payment of coats by the defendant.— Dickie et al t. Elmsbe st al,
3U.C.L.J.107.
Page 124, at the end of note r, odd " On an application to set aside a final Judgment on a writ not
apeclally Indorsed, or Indorsed so Improperly, on the ground that the Judgment should have
been Interlocutory, defendant should produce the writ or copy, showing that it waa not so in-
dorsed, or that It waa not a proper case for special indorsement— Kerr et al t. Bowie, 3 U. C.
L. J. IfiO."
Page 125. at the end of note u, odd " See Kerr et al v. Bowie, in note o to N. R. Pr. No, 1, page 692,
post." Alto " Sue further llogers et al t. Johnson, 4 U. 0. L. J. 20."
Page 125, 2d col. line 3 flrom the bottom, i^fUr " 473," odd " An interlocutory Judgment was set
aside on terms where defendant though he did not in his affidavit distinctly swear that he
had ' a defence to the action on the merits.' yet from the fitcta stated clearly ditcloted such a
. defence.- Bouchier ot al v. Patton et al, 3 if. C. L. J. 108." " See further. Dexter v. Fitzgibbon,
4 U. C. It. J. 43; Weatlake v. Abbott, 7b. 46; Arnold v. Robertson, 7b., March No., 1858."
Ptkge 120, at the and of note a, add *' Also Cuff t. Sproule, 3 U. C. L. J. 12."
" 127, at the commencement of note t', ad)l "There can be no Judgment until Judgment is fully
signed. An appearance filed while plaintiff is sizning Judgment is in time though plaintiff
affect to disregard It.- Harris v. Andrews, 8 U. 0. L. J. 31.
Page 128, at the end of note i, oc^d " An attorney by accepting service of a writ of summons for bis
client, undertakea to appear fbr him, and has the same time to appear as if service had been
made on defendant himself — Starratt v. Manning, 3 U. C. L. J. 10."
Page 120, note u, line 11, a/ttr " Irregularity," add " Jones v. Greer, 3 U. C. L. J. 01.
" 131, at the end of note e, add " and where an attorney without authority appeared and defen-
dant had not received any notice of the writ, the service of the writ and all subsequent pro-
ceedings were aet aalde.— Wright et al v. Uull, 2 U. C. Proe. Rep. 20.";
Page 137. at the end of note/, odd "and at all eventa not after trial.— Cowburn v. Wearing, 9 Ex.
207."
Page 141, note t, line 9. nfter "enactment," add "The right to amend a mifjoinder after trial is
qnestionable.— Wlokens v. Steel ct al, 29 L. T. Rep, 161,"
Page 141, note «, at the end, add " T t haa been decided that one defendant in ejectment is not entitled
at the trial to have his name struck out on disciaimin;; all right to possession in order to be
called as a witness fbr hla co<lefi>ndant.— Grogan t. Adair ot al, 14 U. C. Q. B. 479."
Page 142, at the end of note e, add " Alao Wlckens v. Steel et al, 29 L. T. Rep. 161."
" 142, at the end of note/, add " The Act evidently refers to the case where a defendant has
been erroneously Joined, and not to a case when a defendant has been Joined not by mistake
but for the purpoao of trying hla Uability.— Wlckens v. Steel et al, 20 L. T. Rep 161."
Page 142, at tha end of note a, mid <• A. aned B., C, D., K.. F., O., and H., In an action on contract.
H. aufferad Jadgment by defKult and the action failed aa aKoinst F. andO. Held that it waa
competent to the Judge at Nisi Prius (o amend the record by striking out the names of F. and
I G.— Johnson v. Goelett et al, 18 0. B. 729. In a later case at Nisi Prius, Pollock, O.B., refused
to allow the plaintiff to amoi^d by striking ont the names of one of two debndanta, where
was set
aot entitled
order to be
ADDXNDA BT OOBBXOINDA.
828
UMeontraotaponwhlehtheaetlonirai btouht ma pnmd toluTebMnnudebyonoonlv
and aot by both delbiidMita<— Slianumda t. HngbM ot at, 29 Ih T. Hep. 6k"
Page 144, at the end of note q, (mM « The Aet la aQent aa to plalntUPa right to coata agalnat deftnd-
mta Joined In conaequenee of » plea te abatenent where thar are ftmnd to be Indebted to
plalntUt The qneation haa recently been adjndteated upon. An aetion waa orlgtniJlT brought
far a debt agalnat M. alone, who pleaded the noa-jolnder of B, and 0. The plalntlffamended
accordingly, and went on in hla action agalnat the three. M. paid £230 Into Oonrt, and aa to
the reildne pleaded never indebted. The two others pleaded never indebted. The Jury Ibnnd
a verdict for M, that aeiy i.WO waa due, but againat B. an<l C, that they were Jointly in-
debted with M. to the amoont of £212. Upon ttaia atate <a things, the Maater allowed M. his
eoata against the plalntili; but allowed the plaintiff his coata andnst B. and O. Hia taxation
waa aupported on the first point, but aa to the second it waa held that plaintiff was not en>
titled to costs against B. and G. either under the Statute of Gloucester, because he waa entitled
to no damages, or tuder the Statute of Anne, aa It was not a case of double pleadlne.— Oac-
nean V. H<MTi8, 25 L. J. Q. B. 120."
Page 161, note m, line 4, qfter " action," add " Where the first count of a declwatlon was in replevin,
and the second in trespass, a summons to strike out the second was made absolute wHh rosta.
—The O. W. R. Oo. v. Ohadwlek, 8 U. 0. L. J. 29."
Page 163, at the end of note n, add "The corresponding danse of the H^u. C. L. P. Aot extends to
CourtaofEquity.— InreAlkena,6W. R.145."
Page 163, note «, line 2, crow "more," and subtUtute "mere;" and line 8, traxe « vhoUy," and rat-
*(«irf«"lnpart.''
Page 164, 1st col. line 11, e^fUr "account," add "If it appear to the Oourt that defendant Intends
to set up defences wholly independent of mere matters of account, which defences should b«
disposed of by a Jury» no reference will be made under this aeotlon.— £vana v. Jackaon at al,
8 u. O. li. J. oo.
Page 164, lat col. at the end of line 13, add " Judgment by dellralt has been rigned."
Page 164, at the end of note «, add " When onoe an order has been made under this section, the re-
feree is bound to decide the ease as an arbitrator, according to all the ordinary modes, and
where one party alleges before the referee that a settlement of account has been obtained by
fkraud, the referee must consider and decide upon the alleged fraud.— Insul et al v. MorKUi,
80 L. T. Rep. 162 6, W. R. 126."
Page 165, at the end of note e, add " In England where a county judge reftised to aet, the superior
eonrt reftised to rescind the original order of reference and granted a rule in the nature of a
mandamus.— Cummins v. Birkett, SO L. T. Rep. 260. As a ground of reference it must appear
that the cause of action is one which cannot be tried in the ordinary way.— PeUatt v. Mark-
weU, 30 L. J. Rep. 276."
Page 166, at the end of note/ add "Where plaintiff having obtained an order for a reference to the
Master under Eng. C. L. P. A. 1864, s. 3, and the Master declined it, and plaintiff thereupon
obtained an order to rescfaid the former order, and proceed to trial. Held that he was not
entitled to costs of these proceedings or costs in the cause.— Gribbkr v. Buchanan, 18 O.B. 60.
Where by the terms of an order granted under the same section, the costs of the reference are
directed to abide the event, and the event is partly in &vor of pluintllTand partly in favor of
defendant, no costs are payable on either side.— /b."
Page 172. 2d col. line 29, t^ttr " a. 41," add " The afildavit upon which an application is made fi>r an
order for the attendance of witnesses and production of documents before arbitrators, must
show that the documents required are such as the witnesses would be compelled to produce
at a trial.— Carrall et al v. Bull, 3 U. C. L. J. 12. An order m parte was granted upon an affi-
davit of plaintiff that the cause of aetion had been duly referred, that the arbitrators had
appointed certain daya to proceed to business, and that certain persons whose names and re-
sidences were given were material and necessary witnesses for plaintiff.— Gallena v. Ootton, 3
U. 0. L. J. 47."
Page 178, at the end of note o, add "The power to remit will not in general be exercised, unless the
award be egregiously wrong or not sanctioned by the evidence.— In re Brown and Overholt,
2 U. C. Prao. Rep. 0. Where in an application for an attachment it appeared that the defen«l-
ant had not attended the arbitration through some misapprehension, the matters were referred
back under a power contained in the submission.- Blecker v. Royale, 9 U. C. Prao. Rep. 14.
The Jurisdiction to remit where there is no clause in the order of reference exists only in cases
where, before the C. L. P. A., the Court might have roiuitted such matter had there been
inch a clause.— Hodgklnson v. Femie, 6 W. R. 18L
Page 180, at the end of note a, add " Where a rule nisi is obtainvd before the last day of the term in
which the award must be moved against, the Court may allow ailditional affidavits to l>e filed
after that day.— In re Wheeler et al, 2 U. C. Prac. Rep. 32."
Page 182, at the end of note o, add " The words of the section do not seem to require that the action
should be brought upon the very point which is in difference between the parties. It is only
neoeaaary that it should be brou^t in respect of aome of the matters agreed to be referred.—
RusseU V. Pellegrene, 28 L. T. Rep. 121. The question to be referred must be one arising out
of the agreement and reasonably presumed to have been contemplated by thepartiea.— Wallis
V. Uirach, 2S L. T. Rep. 160. Where it appears to the Court that a queation of f^aud ia bona
Jide raised, they will not stay proceedings in order to reibr the case.— lb. It haa loeen held in
England that assignees of a iMnkrupt are not ' persons claiming through or under' the bank-
rupt within the meaning of the Er.g. C. L. P. A.— Pennell et al v. Walker, 18 C. B. 661.
m:
iri
i ",
it.
824
ADDENDA ET CORBiaSNDA.
m
iiWi
P»ge 181, at the end of note it, add " Parties cannot by contract oust tfae Conrte of their ordinarr
joriadiotton, <.e., they cannot agree that no Court shall havejariadlction In case of a breach of
the contract, but it Is quite legal and often beneficial for them to agree that no cause of action
shall arise out of the contract until an arUtrator or private tribunal shall have first abjudi-
cated on the suhiect matter, and settled the sum payable ; for in tliat case there is no ousting
of Jurisdiction, there being no juicisdictton possible until the sum has been ascertained by an
arbitrator.— Scott t. Avery, before H. L., 28 L. T. Rep. 207."
Page 186, at the end of note i, add " Under a reference to arbitration to be held ' in the nunal man-
ner' after each party has chosen an arbitrator, a Judge in Chambers vriU not, because of a
difference between the arbitrators as to an umpire, appoint the umpire dec ired before the ar-
bitrators themielves have proceeded to settle the matters in dispute.— Rowe v. Cotton, 8 U.O
L. J, 116. '
Page 188, at the end of note q, add "If the parties go on with the refbronce after the time limited
for the making of the award, they will be prevented flrom afterwardsmakingobjectionon that
account- Tyerman v. Smith, 2 Jur.N. S. 860."
Page 194, note d, line 7, erase " its," and tubtUtuit •' their."
<• 106, at the end of n.oi« k, add <■ In an action against the maker and indorsers of a note, a joint
and several liability need not since the C. L. P. A. be alleged.— Qladstone et al v. Voucher et
al, 1 U. C. L. J. 20.
'Page 196, at the end of note Z, add " Since the C. L. P. A. a declaration on an executory contract has
been held good, although the contract was not averred to be under seal, and there was no al-
legation of mutual promises.— Ancil v. Bricker, 3 U. C. L. J. 72."
■Page 190, at the end of note m, add " In one case since the C. L. P. A- upon an application by a de-
fendant to a Judge in Chambers to strike out superfluous matter in the declaration, the Judge
inferred the declaration to the Master, with instructions to do so with costs.— Patton v. Prov
Insurance Co., 3 U. C. L. J. 113."
' Pai(e 203, at the end of note r, add " Chase t. Scripture, 14 U. C. Q. B. 493."
<< 206, at the end of note a, add " See also Fountain t. Chamberlin, 18 C. B. 660." *
*• 206, erase note c, and substitute, the following, " If a rule under this section bo mode absolute
in its terms, the party obtaiuiDg it gets costs as costs in the cause. — Barnes v. Uayward. 2fi
L.J. Bx.318." y J i«
!Page 220, at the end of note r, add " In computing the eight days allowed to plead, the first and
last days are inclusive, unless the last day be a dies non. — Moore v. The Grand Trunk R. Co.
4 U. C. L. J. 20. The day of service of the declaration is reckoned as one of the eiaht davs for
pleading.— 76." '
Page 227, erase the first six linss of note e, and nibstUuU the following, "Payment of money into
Court cannot be pleaded In an action of detinue.— Allan y. Dunn, 28 L. T. Rep. 257 : but sea
Crossfield v. Suck, 8 Ex. 159."
Pago 242, at the end of note x, add " A pica bad in part is bad altogether, and cannot be construed
distributively under thto section.— Lyne v. Heifleld, 1 H. i N. 278."
Tage 244, Ist col. line 25, after " J," add " A defendant will not be allowed to traverse that which
Is not f peclfically alleged in the declaration.— Jarvis v. Durand, 4 U. C. L. J. 22.
Page 219, at the end of note to, add " In an action to recover the pMce of ahorse sold by plaintiff to
defendant, the latter pleaded that he became and was Indebted to the plaintiff by means of
the fraud of plaintiff. To this plea the plaintiff applied for leave to demur and reply: it was
refused.— lawton v. Elmore, 30 L. T. Rep. 244.)"
Page 240, note y, line 33, afttr "684," add "If the action In which leave to plead and demur be
be given be an experimental action, and open to question on many grounds, the Court will
order the demurrer to be determined before the irsues In fact are token down to trial.— Muni-
nicipality of Sandwich t. Drouillard, 3 U. C. L. J. 113."
Page 255, at the end of note g, add "It may be made by an agent of defendant's attorney. — Yeatman
T. DIstin, 3 U. C. L. J. 61."
Page 255, 2d col. line 6, from the bottom, afttr " Hagarty, J.," add " So the acceptor of a bill of ex-
change was npon application for leave allowed to deny, first, his acceptance; secondly, the in-
dorsement by plaintiff to payee ; and thirdly, to plead the Statute of Limitations.— Yeatnian
▼. DIstin, 8 U. 0. L. J. blJ^
■ Page 200, at the end of note o, add "An equitable plea cannot be pleaded as a plea of set off, and
therefore if pleaded with other pleas without a Judge's order entitles plaintiff to sign judi:-
ment-Watt T. George, 8 U. C, L. J. 71."
'^age 272, at the end of note y, add •' A plaintiff following the form of declaration given in s. cviil,,
declared thus, 'R. D. by E. F. his attorney, sues D. M., who has been summoned, Ac, (gtating
the process as usual) for money payable by the defendant to thu plaintiff, for goods bargained
and sold by the pUintlff to the defendant. Plaintiff then added a second count on an account
stated, and concluded, 'and the plaintiff claims £125.' Demurrer upon the ground that it
was not stated that this goods were sold by plaintiff to defendant at his recfuest, nor that the
defendant was indebted to plaintiff, nor in what amount, nor that the defendant owed
plaintiff anything fbr the said goods and chattels. Held declaration sufficient and demurrer
frlToloai.— Davis t. Maokle, 3 U. C. L. J. 116."
Page!
I
tir'
ADDENDA XT COBRIQEMDA.
825
-Yeatman
Ptge 203, erase a. elli. of the text, Inaamueh u It is repealed by a. 80. of 0. L. P. A. 1857.
•< 206, erase a. diii. for the aame reason.
<< 290, at the end of note <, add " See 0. L. P. A. 1857, a. 12."
Page 300, at the end of note t, add " It la for the presiding Judge to determine whether the case will
involve the inveBtigation of ' long accounta' within the meaning of the statute.— TVella v.
Gwoski, 14 U. 0. Q. B. 553."
Page 800, note y, lino 16, after <* No. 8," add " All the issuea Joined mnut be disposed of either by
reference or by verdict taken at the trial.— IVella v. Owoski, 14 U. C. Q. B. 553."
Page 314, at the end of note b, add " See Egan v. Corran, 30 L. T. Rep. 223. Smbh, the decision of
the Judge cannot be reversed. — lb. The section under consideration corresponds with a. 30
of the Irish 0. L. P. A. 1856. Under it a Judge at Nisi Priua admitted an anonymous letter
for the purpose of comparison of handwriting. The letter had not been regularly proved,
having been handed casually to a witness without the attention of the Court or opposite
counsel having been called to it until the aumming up of the defendant. The plaintiff at
thia stage of the proceedings denied that the letter was in his handwriting. There waa a
verdict for the defendant, which the Court aet aaide on the ground that an improper use had
been niide of the letter, the plaintiff not having been duly apprised.— Egan v. Cowan, 30 L.
T. Rep. 233."
Page 317, at the end of note j,* odd " Where the notice called on the defendant to admit the author^
ity under which the documents were signed. Held that defendant was not bound to do so,
and might rcgect the whole notice.— Oxfbrd W. A W. Co. v. Sundamore, 1 II. & N. 666.
Page 318, 1st col. line 6, /or "submission," substitute "admission."
« 320, Ist col. line 7 ftom the bottom, afttr " action," add " But see 20 Vic. cap. 6."
» 322, at the end of note t, add " and it has not altered the rule which in England precludes the
granting of a new trial upon the ground of the verdict being against evidt>nce, where the dv
mages are under £20.— Hawkins v. Alder, 18 C. B. 680. Where the plaintiff's counsel persists
in offering evidence against the opinion of the presiding Judge, and in claiming damages flrom
tbu nry founded on that evidence, although it is Inadmissible, and the Judge so rules if
thti - ' ;^'ve such a verdict as to convince the Court that the evidence so forced in must have
{u ' " ' 'heir minds, the verdict will be aet aside without costs.— Shaver v. The O. W. R.
Cf i 1.0. P. 321."
T>«if6 323 ..• ^e <», line 21, after « 16 C B. 566," add " Harris v. The Cockermouth & Worthington R.
^ Oo'.,6W.R.19."
Pace 323, 2d col. at the end of the 2d line fV-om the bottom, add " In a late case the English Common
Pleas decided Uiat the proper time for a party to file affidavits in answer to affidavits used by
his opponent in showing cause against a rule, is after the Court has heard the latter affidavits
read, and is of opinion they ought to lie answered.— Swinfen v. Swinfen, 28 L. T. Rep. 233."
Page 335, Ist col. test line, c^fler " 121," add " Bray v. Finch, 1 H. & N. 468."
i< 336 !^ col. at the end of line 10, add " Applications having for their object the discovery of the
coi: ' ' ' .its of documents should in general be made under the section here annotated — Ferric ct
al V. The G. W. R. Co. 3 U. C. L. J. 151.
Paee 335, 2d col. lino 23, after "163," add "It seems that if an application for inspection be one in
which, if a bill were filed before the 0. L. P. A., no discovery could be had, inspection will be
refused. Thus it has been hold that the demandant in an action of dower is not entitled
acainst a bona fide purchaser for value to inspect the deed of conveyance to her husband then
being in the hands of the purchaser.— Gowan v. Parrott, 30 L. T. Rep. 65.
Paae 336, 2nd col. lino 24, a^fter " 662," add "It wonld be exceedingly vexatious whenever a trades-
man brings an action for the amount of his bill if he were compelled to disclose to his customers
his manner of carrying on business.- British Empire Shipping Co. v. Soames, 29 L. T. Rep. 75.
Paee 336 2d col. line 19, <^fter "68," add "Interrogatories referring merely to the question of dam-
sees will not in general be allowed.— Ferrie et al v. The G. W. R. Co., Chambers, 8 U. C. L. J,
161 ; but see s. c. in banco, 4 U. C. L. J. 40."
Paie 838 at the end of note r, add " But the Court refused to allow plaintiff in ^ectment brought
for a forfeiture for not insuring to exhibit interrogatories to the defendant as to the subject
matter of the action.— Mav v. Hawkins, 32 L. & Eq. 595." " See further, Phillpotts v. Harrison,
4 U. C. L. J., March No., 1858."
Psae 338 at the end of pote t, add "The Court may allow interrogatories to bo delivered to a defen-
dant, after he has pleaded, wi*out a special affidavit.- James v. Bums, 17 C. B. 596."
Pane 340, at the end of note y, add " But a plaintiff in ^ectment has no right to call upon the
party in possession to answer by what title he is in possession.— Horton v. Hett, 29 L. T. Rep. 228.
In an action of ejectment by a mortitagee, defendant filed with his appearance, under s. ccxxiv.
of C. li. P. A., a notice setting up title in himself under an indenture of leaf e made to him by
plaintiff, to be allowed to tender Interrogatories as to the particulars of the lease, waa refused.
—West V. Holmes, 3 U. C. L. J. 72. Where a party to an action has a speciflc care, but the
materials necessary to support it are in the hands of the opposite party, he is allowed to Inter-
rogate him as to this, but is not allowed to deliver to him interrogatories the object of which
Is to find out how his adversary intends to shape hia ease, or whether there be some latent
• r
aV.
\- /J
826
▲DOXZIDA IT OOBBXQXNDA.
Ik''"!
t- - \
tit
defect in mob ew*, Ao— Moon Tk Boborto ot al, 8 Jar. M. B. 1221. la an aoUon wtdar 10 *
11 Vio. cap. 6, by tiifl reprowntetiTOt of a penon killed through tba negUgenoo of daftndanta,
the latter mur after plea pleaded pat Intemgatoriei affecting the meaiore of damagei.— Verrle
et al T. The 0. W. B. Oo, 16 U. 0. Q. u. 618. It ii no ground fttr reftuing to answer Interro-
Sttoriea In an action fcr the iafklngeiaeDt of a patent, that the anawen mar expoae the
efendant'B eoatoaen to aotloni.— Tetley t. luton, 18 0. B. (M." y«> uw
Page 840, note>, line 16, i^fler " sopia," add " Sidbottom t. Adkine, 29 L. T. Bep. 310."
« 840, at the end of note a, add '<It la ao gronnd Ibr reftuing to answer interrogatorlee In an
action Ibr the infktogement of a patent that the answer may oxpoee the defendants' cnstomen
to aeUons.— VeUej T. Baaton et al, 18 0. B. 643."
Page 841, at the end of note b, add "And the attachment will not under any dronmstanees be
tnanted unless it appear that personal serrice of the rule nisi has been eOaoted.— O'loole t.
Potts, 28 !«• T. Bep. 6u.
Page 846, at the end of note i add " Ihe ipractloe b not to issue an attachment for disoboylng a
Judge's order ; no attachment can be issued ontfl the order has been made a nde of Court —
Grore t. Scoriile, 20 L. T. Bep. 80."
Page 368, at the end of note s, add "Serrice of the order upon the wife of tl^e party, vlthout show.
ing that it came to his knowledge, is not sufficient to entitle his opponent to moyAbr an attach-
ment—Mason T. Huggeridge, 18 0. B. 642; but serrice at the defendant's "uraid place of
business," plaintilf bung unable to discover his usoal place t^abode, was held suffldent—
Bird T, Wretton, 30 L. T. B^. 268, W. B. 211.
Page 868, 2d ool. line 11 firom the bottom, afUr " Bichards, J.," add " Upheld in Smith t. McGill.
8 U. 0. L. J. 134." '
Page 360, at the end of note b, add " Dimbedienoe of it no doubt would be punishable upon the
order being made a rule of Court. The attachment, howcTer, it seems cannot be granted by a
Judge in Tacation.— Greene et al t. Ward, 3 U. C. L. J. 113."
Page 360, note I, line 9, afltr "debt," add "a debt means something due— Geraghty r. dherkev
a0I..T.Bep.a04.» "^^ ;
Pi«e 860, 2d eol. line 1, t^fUr " 781," add " Griswold r. B. B. A O. B. Co., 3 U. C. L. J. 16."
Page 360, 2d col. line 23, afUr "(lb.") add " It seems that a Ilabili^ which cannot be set off as a
debt, cannot be attached as a debt underthis section.— Griswofd t. B. B. A 0. B. Co., 3 U. 0.
L. J. U6.
Page 8W, 2d col. line firom the bottom, ajler "debtor," add "Where therv are cross okdmi
between the garnishee and the judgment creditor, the balance only due the lotter can be at-
tached.— Hedley T. B. & * O. B. Co., If^ Chambers, May 30th, 1867, BoUnson, O.J."
Page 800, 2d eol, line 2 fhnnthe bottom, tffter "lb." add <*Moner due In respect of Saving Bank an-
nidties to the wife of a judgment creditor cannot be attached.— Dingtey v. Bobinson, 26 L. J.
Ex. 66. Nor can a sum of money paid into Court in an action pending by defendant against
garnishee, but on which there is no recovery by plaintiff.— Jones et al v. BrcHit, 29 I1.T.R, 79,"
Page 362, 2d col. line 3, <{fter " assignee," add " Where, however, the assignee neglected to give the
garnishee precise and distinct notice of the assignment, and his attorney stood by while an
order was made upon the garnishee under this section, and thegamiBhee paid the debt to the
judgment creditor, the Court relieved the garnishee from furuer proceedings taken at the
Instance of the assignee in the name of the judgment debtor. — In re Jones, 6 U. C. C. P. 149.
Where the debt is attachable, it is superior to the lim of an attorney in respect of general
costs due to him firom the Judgment debtor.— Hough v. Edwards, 26 £. J. Ex. 64."
Page 363, 1st col. 1st line, q/Zcr "attached," add " The Judge may, if he consider the cause suffl-
dent, at once discharge the summons instead of uooeeding under s. xcvilL— Griswold v. B. B.
A G. B. Co., 3 U. C. L. J. 116. An order to attarn may be gruited though the amount do not
appear, but a summons to pay over will not be granted unlesa the amount be stated.— Bank
of Montreal v. Yarrington, 3 U. C. L. J. 186. A Judge in Chambers cannot cnrder money paid
Into Court without authority to be paid to the judgment creditor, but will order it to be re-
turned to the garnishee.- Mellish v. B. B. & O. R. Co., 3 U. C. L. J. 108."
Page 364, note I, line 1, after "s. cxcvi." add " A. B. sold ceitain goods to C. D., £100 to be paid
down, and the rest to be paid by bills at certain specified dates. A. B. was indebted to E. F.,
who sued tiim and obtained judgment on 24th May, and on the 28th B. P. obtained an order
under Eng. C. L. P. A. 1854, s. 61, against C. D., the garnishee, which vaa duly served on the
30th, and on the same day C. D., mthout the knowledge of B. P., the judgment creditor,
signed a promissory note for payment of £354, the balance due A. B.,. the judgment debtor,
at stated periods. On 2d June, 1866, A. B. committed an act of bankruptcy, whereon he was
duly adjudicated bankrupt, and notice thereof was duly given to the judgment creditor and
and to the garnishee early in June. On 2d July, the gaumishee paid to the credit of the judg-
ment creditor £100 in payment of the first instalment under the promissorv note. The plain-
tiffs were assignees of the judgment creditor undw the bankruptey. Held that the giving
of the promissory note was no protection to the garnishee; that payment to be a protection
must be compulsory and not voluntaiy ; and that the assignees were entiUed to recover from
the garnishae the whole amount due to the judgment debtor at the time the note was given.
— Turner v. Jones, 28 L. T. Rep. 341. To an action for work and labour, the defendant pleaded
, that B. recovered a judgment against the plaintiff, and being such judgment creditor applied
■for and obtained an order that the debt due from the now drfendant to the plaintiff should tie
Pages
Page 81
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Page 407,
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Page 414,
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Page 431,
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ADDENDA WS OOHBIOXNDA.
80?
Mttactaed to ansirer ihs Judgment lo resorered against the plaintiff by B., that ttM 4»M naa
■UU vniatiifled, and that the order atiU ramained In teea. Ilel4 a bad pna. tw not aUaglng
that the order waa served upon or notice given to the garnishee^— Lockwood T. Nash, 180.B.
Page 360, at the end of note y, add « In an ■ :tion fbr trovar fbr goods the defbndant canaot insist,
after writ, upon returning I'uum, except under the equitable Juriadletion of the Otwirt,—
Homer ▼. Mallerl, 80 L. T. Bep. 241. In such cose tlte meMwre of daataoM is their valoe at
Um time of the conversion, and not at the time of the oitsr to retorn.— iS."
Page 868, s. eeU. of the text is repealed by 0. L. P. A. 1857, s. 10. See p. 731 of this work.
Psge 360, at tlte end of note z, add "The executors of an administrator are not entitled to sttrvlTe
a Judgment more than 16 years oM by entering a suggestion under this seetion.— Croft T.
Joulk«8,30LT.Bep.241."
Psse 371, at the end of note o, add " If the writ omit to recite why it became neeeeaary, it mny ba
set aside as irregular.— GaUusiT. Butler, 3 U.O.L. J. 108."
Page 889, at the end of note a, add "In an action against deibudsnt for tluowing rubUsh into a
stream, so as to be carried down the stream into the mlU-pond of plalntur, and by choliing It
up to obatruot his mill, the defendant pleaded as to the throwing a rtitnt ^ prMeripUon to
tlirow into the stream near Ids mill tbeasblngs and sweepings necessarily arising ther^ iden>
tlfying with these the rubbish complained of; but the plea did not contain an avement that
during the period of prescription tlw rubbish bad been carried down to Uio pUtnlUra inlll In
the manner alleged in the declaration. A Terdict having been fbund for the oefondant on Uita
plea, plaintiff moved for Judgment nonobitante. Held tliat plaintiff wuentiUd to Judgment,
but on affidavit tlut the foot was proved at the trial, the rule was suspended to allow di^nd-
ant to enter a suggestion of the omitted iact— Murgatroyd v. Uobiuson, 3 V, C. L. J. TO."
Page 302, at the end of note t, add "When the writ has not been directed to but Bor>'«d on the tenant
in possession, it is ciaestionable whether the tenant can apply to set aside Uie writ as trregu*
lar. However, if, instead of making application for that purpose, he apply for particuUuni or
for otlier information, and allow ten days to elapse, he will be deemed to have waived the irn>-
gularlty, supposing it to be such, and his application should then be not to set aside <'e writ
but to be allowed to appear and defend, according to s. ccxx v., which providos for the appearance
of persons not named In the writ.— Thompson v. Starle, 25 L. J. Bx. 306,"
Page 400, at the end of note a, add " Thompson v. Welsh, 8 U. 0. L. J. 133."
« 401, 1st col. at the end of line 36, qfltr « 820," add " Mercer v. Bond, 3 U. C. L. J. IKO.**
<< 402, at the end of note I, add " Security for costs cannot be obtained before the eiitry of an])ear<
ance.— Crane et al v. McQuire, 3 U. C. L. J. 205. The entry of appearance in (\)mment does
not put the cause at issue so as so prevent the defendant applying for security t\)r costs.— i 6."
Psge 407, note p, line 7, eraie from " whether" to ihe end of the note, and siAsHlutt " and plaintiff
must proceed to trial as in other actions, or be subject to bo proceeded against under s, cclv."
Ptge 414, at the end of note d, add " Where the defendant in his notice claimed the whole premlsox
from A. B., he was not allowed at the trial to set up that he was teuant in coiimton with tlio
plaintiff and insist upon proof of ouster.— McCallum v. fioswell, 15 U. 0. Q. B. 343.*'
Page 431, at the end of note w, add « Where^a landlord applies to be allowed to enter Judjimrat for
want of appearance against a tenant who has absconded and cannot be j^rsonully served, t<i«
action being on a power to enter for non-payment of rent, ho must if po«slMo pivducv the
lease and show that he is entitled to re-enter.— Leviscompte v. Peucol, 3 U. C. L. J, 185."
Page 446, at the end of note i, add " Lawrence v. Hogben, 26 L. J. Ex, 65."
« 451, 2d col. line 28, after "425," add "Norris v. The Irish land Co., 30 L. T. Rep. 132.*
<• 453, at the end of note I, add " But see Norris v. The Irish Land Co, 30 L. T. Rvp. 13:i, in wlui^h
Lord Campbell overrules himself. See also 4 U. 0. L. J., p. U."
Page 462, at the end of note k, add " It has been contended that the words 'in like case,* as used
in this section, mean in actions of the same description mentioned in s, crixxv., which givos
the remedy in any action except ' ctjectment or replevin ;' but whether thMO two t)>rn)8 of action
are to be excepted from the operation of the section undtr consideration is a quostion,— Fraser
T. Robins, 3 if. 0. L. J. 112. There is clearly no such oxopption in s. cclxxxvl., wliloh allows
Interlocutory or temporary injunctions.— /5. In KnjilHnd an li\)unctlon has been refhied in
an action of cijectment.— Hayes v. Lepin, 26 L. J. C. P. 170.
Psae 464, note c, Una 2, after "injunctions," add « Fraser v. Robins, 3 XT. 0. L, J. 112 ; see alio Bell
V. White, 3U. C. L. J. 107.
Page 466, 1st col. at the end of line 6, add "But where under a clause contained in a contract for (he
sale of timber the vendor brought an action of ejectment, cininilos a forfoiture ibr defoult In
payment of the purchase money, an action to restrain tho cuttlujc of the thuber was reftiied.—
Walsh V. Brown, L. J. U. C, March 1858."
Page 468, at the end of note q, add " Where to an action to recover dainBK<»8 for a iVaudulrnt repre-
sentetion, the defendant asked leave for a defence on eqnUabli) ur lunds, to plead that the
defendsnt had filed a bill in Chancery for the very same allf^d crievancos and oausee of
actioQ, which Court gave judgment in favor of the defendant j the dools-ion In Chancery was
held to be no estoppel.— CoUlns v. Cave, 4 Jur, N. 8. 31."
8i^
▲ODXMBA ET OORBIQIMDi.
I
i
Page 472. at the «nd of note lotiaed, " Kril'-eqttaablepleaidUouMd,'* add « B'l irlft had ecmtraeted
a debt Iwfora marriage. After hia marriage B. and hla wife borrowed mooeyi on B.'a boud to
I pay off that debt, and then mortgaged to 0. lands which B. and hli wife held In fee In right
of the wife to raise money to dlsenaige the bond. On the wife's death 0. as her heir at law
beeaoM entitled to the eouity of redemption, haring before by the mortgage acquired the legal
estate. In an aetlon by 0. Malnst B. on his covenant In the mortgage deed for payment of the
sum of money seenred, the roregoing ikcts were held to be a good equitable defence.— Gee t.
Smart, 20 L. T. Rep. 278. Where an equitable plea has been allowed by a Judge, the Court
will not strilie itout merely because It Is doubtful whether Itdixdoses a right to absolute and
unconditional relief In equity.— Klliott ▼. Mason, 20 L. J. Ex. 176.
Page ^TS, 2d col., at the end of the 6th line firom the bottom, add "Where a defendant was under
terms to take short notice of (rial, and it was proposed to plead certain equitable pleas setting
up a cross claim, the Court held thtt the pleas were Inconsistent with the terms, and refased,
therefore, to allow the pleas permitting the defendant to bring cross actions. — Atterbury t.
Moore, 29 L. T. Rep. 128. To a declaration on set. fa. against a shareholder of a Company the
defendant pleaded that he was requested by plaintiff and others to become a transforee In the
Company as the nominee for A and B, and for their benefit, and upon the repreaentation of
the plaintiff and others that he should incur no responsibility on account of sudi shares— that
relying on such representations he became a transferee of the said shares— that he never had
any interest In the shares except as such nominee, Ac. — that the saldCompany and the scheme
thereof was entirely abandoned, and no profit was ever acquired by the said Company— that
the plain^ff woll knew the circumstances under which the defendant became a trannforee— and •
Is now Inequitably and fraudulently striving to make the defendant liable as a shareholder of
the Company. JBiild bad on demurrer, because it contained no allegation that tiie represen-
tation stated to have been mad<> to the defendant was fraudulent, or that there was an
agreement that the defendant should be indemnified from all liability to show anything which
cduld be construed as an <>,>coppel to prevent the plaintiff to maintain his action. — Bell v.
Richards, 29 L. T. Rep. i84; see also Balfour v. The Katon Fire Assurance Co., 3 Ju-. N. S.
304. To an action in a bill of exchange against the acceptor, the Court refliged l^ave to
plead an equitable plea that the bill was accepted on a distinct promise by plaintiff that if
the defendant would pay certain discount the plaintiff would renew from time to time until
the defendant was of ability to meet the bill.— flight v. Gray, 4 Jnr. N. S. 131."
Page 474, at the end of note r add " Where a defendant pleads an equitable plea alone he may possibly
have a right to do so without the leave of the Court; but where the application to plead such
plea is an appesl from the decision of a Judj^e at Chambers on a summons to add pleas the
allowance of such pleas is in the discretion of tho Court to be exercised with rererence to all
the circumstances under which the application Is made.— Atterbury v. Jarvle, 26 L. J. £x.
176, 29 L T. Rep. 128.''
Page 476, 1st col., line 4, erase (v), and subtlituU (w), and at the end of note w add " And semlh it
was not meant by the 0. L. P. A. that replications on equitable grounds should bo allowed
where the matters therein stated disclose that the foundation of tho plaintiff's claim is of a
purely equitable character. — Per Bramwell'B. in Hunter v. Gibbons, 2'i L. J. Kx. 1, 28 L. T.
Rep. 290. A replication on equitable grounds setting up lAatters, which, if they had been
alleged in the declaration would have rendered the declaratinn demurrable is bad.— Reis et al.
T The Scottish Equitable Life Assurance Co., 29 L. T. Rep. 113."
Page 47V, 1st col., line 18, after " 1282 " add " 26 L., J., Ex. 1, 28 L. T. Rep. 290."
Page 470, at the end of note x add "In an action on a policy of insurance defendants pleaded that
the life insured had gone beyond the seas contrary to the terms of the policy, and so vitiated
It Plaintiff proposed to reply on equitable grounds — first, fiicts showing that at the time of
the making; of the policy it was expresHly ai^reed that the policy should not be vitiated by tLe
life inxured going to places out of Europe ; secondly, leave and license to go to places out of
Europe. Leave to reply as in the first replication was refused, but granted as in the second.—
Reis et al. v. The Scottish Equitable Life Assurance Co., 38 L. T. Rep. 113. The Court cannot
deal with an equitable replication which sets up a term of years which ougJU to be surrendered
aa it has no power to order a surrender.— Ooreby v. Goreby, I II. & N. 144."
Page 484, 2d col., line 4, after "396" add << Makens v. Steel et al., 29 L. T. Rep. 161."
Page 488, at the end of note s add " In an action on a bill of exchange alleged to be lost the Court
will not stay proceedings until an indemnity be given by plaintiff to defendant, defendant
bwlng willing to pay the debt and costs.— Arrangnm v. Schoofleld, 1 U. & N. 494, 28 L. T.
Rep. 105."
Pag^ 404, at the end of note g add " An application for discharge must be supported by an affidavit
of the turnkey (if the gaoler employ one) that the money has not been paid. — Carpenter v.
Tout, 3 U. C. L. J. 161. If the gaoler do not employ a turnkey the affidavit of applicant
should show the fact.— ib."
Page 523, at the end of note a erase the following : " Of this N. R. 146, as compared with s. xiil. of
0. L. P. A. 1856, Is an example.
Page 652, 2d col. line 18, qfler "earliest" add "English," and in line 21 erase "Is not In a position"
and stAsUttUe " does not ttduk it necessary In this place."
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Pag*
ADDENDA £T CORRIGENDA.
829
Htt 689, Itt wi,, IlM 2, ({fUr - time" add « See Rules of Uw (Society, narrUnn't Rulei, p. 130.**
Ptge 60!l« 2d col., line 8, (^/ttr **/6." add <* In oomputinK the ten days for appearing the d«y of aerrloe
li reckoned tnelulT*, not exclnrire, lo that If the writ be lerrcdon Saturday Judgment may
be signed one week from the iiallowing day.— Roea et al t. Johnstone et al., 4 U. 0. L. J. 21."
page 000. at the end of note fi, mid " In all traniitory action* the venue may be changed by either
Slalntlff or deftndant on hie showing to the Court or Jadge a reasonable ground therefor.—
leroer t. Voght et al« 4 U. C. L. J. tl. The plaintiff mnst amend bis declaration In order to
eliange his venue.— 76. In order to expedite the trial of a cause, when the plaintiff swears
that otherwise he will probably lose his debt, It may be considered a reasonable ground for
ehang* of venue.— i 6."
Page 002, Rule 22, line 3 of the text, q/iTcr "summons" add " unless otherwise."
Page O&ft, atthe and of note/, add " As to Judgment it a verdict have been taken subject to areferenee
the Judgment may be t'-Mied *> ordinary courRe; but if no verdict have been taken the
award may he ontbrc" ' ai after publication.— O'Toole "^ i^'l. A B. 102, 3 Jar.
N. 8. 201?»
Page 086, at the end of note k, add " Kemuk v. Harder, 29 L. T. Rep. 02."
Page 002, note i, 2d line, M " 30 " tuhttitute " 20."
Page 093, line S,/br ** Forms to the Common Law Procedure Act, 1856," ttibiHtute " Porms to the
NawRnlet of Court."
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