UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY t'Z.l* ■&*tf^ 7 l^'C^- z-i^C jh 2, /7 MANUAL OF EVIDENCE IN CIVIL CASES. BY R. E. KINGSFORD, M.A., LL.B., Lecturer on Commercial Law, Contracts and Evidence to the Law Society of Upper Canada. ASSISTED BY J. E. HANSFORD, Of Osgoode Hall, Barrister-at-Law. TORONTO: WILLIAM BRIGGS, 78 & 80 KING STREET EAST. 1889. T Entered according to Act of the Parliament of Canada, in the year one thousand eight hundred and eighty-nine, by Jeffrey Ellery Hansford, at the Department of Agriculture. 3S« PREFACE. The Manual now published is founded on lectures delivered by me as Lecturer on Evidence for the Law Society of Upper Canada. Some of those who attended represented that they would be glad to have these Lectures in permanent form. They stated that other students, who had not been able to attend, would also be likely to derive benefit from the pub- lication. Two of those who did attend, Messrs. Hans- ford and Mussen, undertook to make all necessary arrangements and to do the w T ork of proof-read- ing, etc. I agreed to put the MS. in as good form as my other employments would permit, and the present Manual is the result. It does not pretend to be anything more than an attempt to answer the ques- tion, What must I prove ? I know of no w T ork which solves this difficulty for beginners. Roscoe is too minute, and his book is intended for work on Circuit or at the Sittings. I have extracted from him and other authorities such general principles as seemed to me materia], and have illustrated these selections by iv PREFACE. reference to Canadian cases wherever the citation seemed apposite. I have added, as £h appendix, the new Supreme Court Rules relating to evidence, and also the Evi- dence Act, as contained in the Revised Statutes of Ontario, 1887. I hope the Manual will be found useful not only to students, but also to members of the profession It will be more than gratifying to me if it justifies the expectations of the students who thought the lectures deserving of reproduction. My thanks are due to Messrs. Hansford and Mussen, to whom it is really owing that the lectures have been put into their present shape. Mr. Hansford's services have been particularly valuable. R. E. KINGSFORD. 34 Murray Street, Toronto, January, 1880. TABLE OF CONTENTS. Paqk Table of Cases ix Abbreviations xiv Introductory * PART I. Actions on Simple Contracts ° Sale of Real Property 7 Vendor against Vendee 7 Vendee against Vendor 13 Use and Occupation 15 Waste, Bad Husbandry, etc 19 Bills of Exchange, Cheques, and Promissory Notes 22 Payee v. Maker of Note or Acceptor of Bill 22 Indorsee v. Maker or Acceptor 24 Drawer v. Acceptor 25 Payee or Indorsee v. Drawer 26 Indorsee v. Indorser 27 Policy of Insurance 28 Marine Insurance 28 Life Insurance 34 Fire Insurance 34 Contract of Affreightment 35 Shipowner v. Charterer or Merchant 36 Merchant v. Master or Shipowner 37 Guarantee 39 Warranty ** Warranty on Sale of Chattels 41 Promise of Marriage *5 Award ^ Solicitor's Bill i9 Against Solicitor for Negligence 50 By Medical Practitioners 51 vi CONTENTS. Actioxs on Simple Contracts— (Continued). Page For Wages and Wrongful Dismissal 52 Not Accepting Goods 53 Not Delivering Goods 56 Goods Sold and Delivered 57 Work and Materials 62 Money Paid °5 Money Lent 66 Money Had and Received 67 Account Stated 70 Against Carriers 70 Letter Carriers 74 Passenger Carriers 74 Passengers' Luggage -Liability Therefor of Common Carriers. 75 Against Innkeepers 75 Against Pawnbrokers 76 PART II. Defences in Actions on Simple Contracts 77 Introductory Remarks 77 Accord and Satisfaction 79 Alteration 8° Fraud 81 Frauds, Statute of 81 Illegality 82 Infancy 8i Insanity ^ Intoxication 8 ° Limitations, Statute of 85 Disabilities 8 7 Subsequent Acknowledgment 88 an Merger "" Payment a " 92 Release Rescission Set-Off 94 93 Tender PART III. 96 100 Actions on Specialties On Covenants 10 ° Some of the Most Material Issues Arising in Actions on Deeds and Bonds generally 101 Mode of Proving a Deed 102 CONTENTS. VI 1 Actions on Specialties— (Continued). On Covenants— (Continued). Paok Some of the Most Mate: ial Issues Arising in Actions on Leases or other Conveyances of Real Property 107 Where Plaintiff Sues as Assignee of Reversion 107 With the Defences of— Assignment Over of Reversion by Plaintiff. 103 Assignment Over of Term by Defendant 109 Surrender 109 Eviction 109 Where Defendant is Sued as Assignee of the Lease, with Defences 110 Action for Rent under Indenture of Demise Ill With the Defences of— Payment •' HI Plea of Readiness to Pay on the Land Ill Statute of Limitations Ill Actions on Covenants Relating to Land 113 Not to Assign or Sublet without Leave 113 As to Trade on Premises 114 For Good Husbandry H* To Insure 114 To Repair » — U5 To Pay Rates and Taxes 115 For Title 116 To Yield Up Possession of Premises at End of Term 116 For Double Value 11" For Double Rent H" On Bond and Defences 118 For Penalty 119 PART IV. Actions on Wrongs Independent of Contracts 121 Nuisance 122 Negligence 126 Negligent Driving of Carriages and Railway Trains 127 Negligent Navigation of Ships 129 Negligent Keeping of Animals 129 Negligent Use of Land 130 Negligent Keeping of Fire or Inflammable Matter 130 Negligence of Railway Companies 131 Negligence of Fellow-Servants 135 Wrongful Act, Default or Neglect, Causing Death 136 Disturbance of Support of Land •. 138 Obstruction of Light or Air 139 Disturbance of Way 139 Vlll CONTENTS. Actions on Wrongs Independent of Contracts— (Continued). Pagk Disturbance of Watercourse 142 Infringement of Copyright 145 Infringement of Trade Marks 145 Infringement of Patents 147 Deceit and Misrepresentation 149 Defamation 159 Malicious Prosecution 162 Malicious Arrest 164 Wrongful Distress 165 Excessive Distress 165 Irregular Distress 167 Illegal Distress 168 Seduction 171 Assault and Battery 173 False Imprisonment 174 Trespass to Personal Property 179 Trespass to Land 180 Mesne Profits 181 Conversion of Goods 182 Detention of Goods 193 Recovery of Land 193 Replevin 200 APPENDIX. Sections Selected from R. S. 0. 1887, Cap. 61— Evidence Act 201 Rules of Supreme Court Relating to Evidence 214 TABLE OF CASES. A Page Abernethy v. Hutchinson 145 Alderson v. Maddison 9 Aldons v. Cornwall 80 Aldridge v. Johnson 185 Allen v. Hay ward I"-* Allen v. Lyon 145 Allison, re 19 Ambrose v. Fraser 110 Anchor v. Keith 32 Anchor v. Phoenix 33 Annis v. Corbet 112 Arnold v. White 126 Atkinson v. Bell 63,185 Attack v. Brain well 169 Attrill v. Piatt 143 B Badgley v. Dixon 63 Baglehblc v Walters 54 Bagueley v. Hawley 41 Bain v. Fothergill 14 Ball v. Crompton. 147 Balme v. Hutton 179 Bamfleld v. Massey 173 Barnett v. Earl of Guilford 180 Barr v. Gibson . . 42 Bateson v. Gosling 92 Battishill v. Reid 125, 13S Baxendale v. G.W.R. Co 67 Beam v. Merncr 147 Beasley v. Hamilton 137 Beavan v. McDonnell 85 Bedingfleld v. Onslow 122 Bell v. Irish 167 Bennett v. Parker 99 Bensley v. Bignold 82 Bertie v. Woods 110 Betts v. De Vitro 117 Biggc v. Parkinson 43 Bishop v. Howard 17 Black v. Coleman 166 Blackburn v. Smith 14 Blake v. Midland 137 Blofleld v. Payne 146 Bloxam v. Sanders 184 Page Birth v. Birmingham 127 Bottomley v. Xuttall 60 Boulton v. Blake 115 Bowen v. Owen 97 Bower v. Hill 141 Bradlaugh v. Xewdegatc 82 Brass v. Maitland 37 Bridge v. Gd. J. Ry. Co 12S Brittain v. Lloyd 66 Brocklebank v. Sugrue 28 Brown v. Kdgington 43 Brown v. Jones 80 Brown v. McKinally 09 Bruce v. Jones 33 Bnindage v. Howard 79 Brydon v. Stewart 135 Burgess v. Gray 124 Burn v. Miller 63 Burroughes v. Bayne 189 Burrowes v. Cairns 22 Burrows v. Gates 17 Burrows v. Leavens 81 Byrne v. Boadle 131 Calder v. Dobel 60 laid well v. Stadacona 34 Cameron v. Cameron 81 Cameron v. Carter 12 Cameron v. Spiking 8 Campbell v. McKerrichcr 9, 61 Campbell v. Shields 22 Canada Pub. Co. v. Gage 145 Caiman v. Wood 92 Capper. Ex pte 15 Car v. King 61 Carter v. Grasett 139 Cart wrighl v. Gray 126 Carviek v. Blagrave 108 Casey v. Hanlon 11 Caswell v. Coare 45 Central Bank v. Osborne 96, 151 Chamberlain v. Chamberlain.... 96 Chanter v. Hopkins 42 Chase r. McDonald 130 TABLE OF CASES. Paob .. 26 .. 68 .. 74 68 29 Cheek v. Roper Chesney v. St. John Christiu v. Griggs Clark v. Eckroyd Clark v. Scottish Imp Clarke v. Bradlaugh 119 Clayton's Case 91 Clayton v. Corby 142 Cleave v. Jones 89 Cleaver v. North of Scotland M. Co 8 Clendinning v. Turner 16 Clow v. Clow 21 Coates v. Coates 9 Coe v. Wise 125 Colbert v. Hicks 164 Confederation v. O'Donnell 34 Copeland v. Can. Loco. Co 35 Corby v. Hill 123 Costello v Hunter 46 Cowan v. LandelJ 151 Cox v. Hamilton Sewer Pipe Co. 137 Crathern v. Bell „ . 41 Crawford v. Bugg 114 Crossfleld v. Gould ... 11 Crosson v. Bigley . . 83 Culley v. Tavlcrson 196 Cunliffe v. Sefton 104 Curtis v. Spitty 110 Curtis v. Wheeler 200 D Daines v. Hartley 156 Daniel v. M. Ry. Co 128 Davis y. Burrell 115 Davis v. Hewitt 83 Dawson v. Morgan 66 Dean v. Ont, C. M. Co 137 Deering v. Winchelsea 65 Delong v. Burrell 137 De Medina v. Norman 11 Demorest v. Midland 99 Devine v. Griffin 8 Dixon v. Clark 98 Dixon v. Cross 112 Dixon v. Yates 185 Doe v. Passingham 194 Doe v. Payne 113 Doe d. Bond v. Burton 195 Doe d. Fleming v Sommerton... 197 Doe d. Hindly v. Rickerby 113 Doc d. Wimbnrn v. Kent 116 Doherty v. Allman : 20 Doss v. Doss 179 Doswell v. Impey 175 Douglass v. Murphy 113 Downs v. Lee 137 Dracachi v. Anglo-American Nav. Co 36 Drake v. Wigle 21 Page Drew v. Baby 126 E Eaves v. Dixon 45 Eckstein v. Reynolds 97 Edwards v. Hooper 190 Elliott v. Baird 143 Ellis v. Abell 9 Ellis v. Hamlin 63 Ellis v. Sheffield Gas Co 124 Emblen v. Myers 125 Emmett v. Quinn 110 Exall v. Partridge 65 Evans v. Judkins 97 Eylesv. Ellis 92 F Farquhar v. Farley 14 Ferguson v. Veitch 173 Fesenmayer v. Adcock 70 Field v. Mitchell 167 Finch v. Blount 191 Fisher v. Prowse. 123 Ford v. Beech 92 Forsyth v. Bristowe 106 Foulkes v. Sellway 47 Fowler v. Sadler 83 Fox v. Millington 146 Frederick v. Lookup 120 Freeman v. Jeffries 68 Frye v. Milligan 44 G Galbraith v. Irving 108, 112 Gallaway v. Herbert 196 Gardiner v. Chapman 126 Garland v. Thompson 150 Garrett v. Roberts 120 Garton v. Bristol 72 Geary v. The Gore Bank 65 Gilmour v. Supple 55 Glover v. Coleman 141 Godefroy v. Dalton 51 Godef roy v. Jay 51 Godwin v. Francis 9 Goodtitle d. Revett v. Braham . 198 Gordon v. Harper 184 Goring v. Cameron 96 Gorst v. Barr 151 Goss v. Lord Nugent 9, 94 Gough v. Bench 3, 11 Gould v. Johnson 86 Gray v. Palmers 23 Green v. Burtch 70 Green v. Gosden 81 Green v. Sevin 96 Greenizen v. Burns 8 Greer v. Johnston 118 TABLE OF CASES. XI H Page Hamilton v. Pandorf 37 Hardy v. Rylo 178 Hare v. Cawthrope 3, 96 Harrison v. Blades 103 Hart v. Baxendalc 72 Hart v. Windsor 19 Hately v. Merchants' Despatch. . 39 Hathaway v. Doig 126 Henderson v. Squire 111! Hendrie v. Neelon 56 Henkel v. Pape 9 Higginbotham v. Hawkins 20 Hiort v. Bott 189 Hobbs v. L. & S. W. R. Co. ... 75 Holderness v. Lang 21 Holds worth v. Wise 32 Holmes v. Goring 141 Holmes v. Kcrrison 86 Holmes v. Mather 127 Holroyd v. Marshall 186 Hope v. White 169 Howard v. Lancashire 34 Howard v. Shaw 17 Howard v. Tucker 37 Huntley v. Russell 20 Hyde v. Bulmer 150 I Imperial Bank v. Docks Co 192 International Wrecking Co. v Lobb 39 Irons v. Smallpiece 185 J Jackson v. Allen 105 Jackson v. Toilet .. . . 127 Jacobs v. Seward 190 Jefferson v. Morton 195 Jeffries v. G. W. Ry. Co 188 Jenner v. Smith 55 Johnson v. Durant 48 Johnson v. Midland Ry. Co 71 Johnston v. Sumner 61 Johnstone v. Huddlestone 118 Jones v. Corbett 23 Jones v. James 46 Josling v. Kingsf ord 43 K Kaatz v. White 22 Kannen v. McMullen 52 Kennedy v. Oldham 8 Kimball v Smith 173 Kingsf ord v. Merry 186 Kinloch v. Craig 192 Kinnaird v. Webster 91 Kitching v. Hicks .... 81 Knight v. Egerton 168 Page Koster v. Innes 30 Laing v. Fidgeon . 43 Laird v. Paton 12 Lamb v. Walker 138 Lawrence v. Errington 13 Law Society U. C. v. City of To- ronto 69 Ledyard v. McLean 11 Lee v. Shore 57 Leigh v. Thornton 19 Lickbarrow \. Mason 29, 192 Lockridge v. Lacey 99 Long v. Long. . 99 Loomer v. Marks 80 Lord v. Davidson 36 Lundie v. Robertson 26 Liinn v. Thornton 186 Lythgoe v. Vernon 09 M Mackreth v. Symmons 192 Manby v. Scott (il Marriot v. Hampton 69 Martin v. Andrews 68 Martyn v. Williams 107 Mason v. Hill 143 Mason v. Morgan 130 Mason v. Rumsey 23 Matthews v. Baxter 85 Matthews v. Hamilton Powder Co 137 Maughan v. Casci 140 Maugham v. Hubbard 104 Merchants' Bank v. McDougalL. 26 Merchants v. Rumsey 29 Meredith v. Meigh .... 58 Merry weal her v. Xixan 66 Midland Ry. Co. v. Ontario Roll- ing Mills 91 Miller v. Newman 57 Miller v. Race 188 Miner v. Gilmour 142 Minshull v. Oakes 115 Mitchell v. Henry 140 Mitchell v. Reynolds 83 Moens v. Ha v worth 81 Monteith v. Walsh 96 Montgomery v. Spence Ill Moore v. Buckner 48 Morley v. Altenborough 41 Morris v. Williams 114 Moxley v. Can. Atl. Ry. Co 137 Mucklow v. Mangles... 185 Munsiev.Lin.dsay 21 McCall v. Thial 145 McCallum * . Snyder 169 McCann v. Clusholni 138 Xll TABLE OF CASES. Page McCarthy v. Cooper 9 McClung v. McCracken 9 McDonald v. Brennan . : 18 McDougall v. Ridout 112 McEdwards v. Ogilvie Milling Co 53 McEwan v. McLeod 38 McFarren v. Johnson 9 McGibbon v. N. Ry. Co. ... . 131, 137 McGowan v. Middleton 96 McKay v. Grinley 70 McKenzie v. Dancey 38 McLaren v. Canada Central 131 McLay v. Bruce 151 McLaughlin v. Moore 4G McLellan v. Winston 64 M'Manus v. Cricket 127 McMaster v. Geddes 69 McNab v. Wagstaff 65 N Neal v. Ewing 28 Neil v. Park 3 Nelson v. Whittall 103 Newcombe v. Anderson 75 Newton v. Allin 110 Nichols v. Pitman 145 Nicholson v. Revill 92 Noble v. Ward 93 North American v. Craigen 34 Norton v. Ellam 85 O Oliver v. Powell 195 Ord v. Portall 25 Ormond v. Holland 135 Owen v. Taylor 169 P Paisley v. Broddy 80 Panama Mail Co. v. Kennedy ... 81 Parkinson v. Lee 42 Partridge v. Scott 138 Pasley v. Freeman 150 Patrick v. Milner 10 Pearson v. Spencer 140 Peck v. Powell 12 Penny v. Foy 119 Penruddock s Case 124 Phene v. Popplewell 109 Phoenix v. Anchor 32 Pickford v. Grand Junction Ry. Co 71 Pigot's Case 80 Planche v. Colburn 63 Porter v. McMahon 150 Potter v. Rankin 30 Preston v. Camden 137 Price v. Lloyd 16 Price v. Moulton . Priestly v. Fernie Page .. 90 .. 60 Q Queen v. Silvester . 83 R Randell v. Trimen 45 Read v. G. E. R. Co 137 Regina v. Woodworth 151 Reignolds v. Edwards 141 Richard v. Stillwell 41 Rivers v. Griffiths 99 Roberts v. Bethell 23 Robertson v. Skelton 11 Rochleau v. Bidwell 8 Rolf e v. Abbott 61 Ross re 67 Routledge v. Ramsay ... .... 90 Rowley v. L. & N. W. R. Co. 129 Rudd v. Bell 137 Rushforth v Hadfleld 191 Ryall v. Rich 117 Ryan v. Fish 3, 182 S Sanderson v. Burdett 10 Saner v. Bilton 96 Saunders v. Breakie 21 Saxby v. Easterbrook 153 Sayles v. Brown ■ 80 Scaramanga v. Stamp 38 Schultz v. Reddick 167, 168 Scott v. Crerar 150 Seagrave v. Union . .' 29 Sears v. Lyons 180 Severin v. Kcppell 190 Sharp v. Powell 125 Simmonds v. Parminter 25 Smiles v. Belford 144 Smith v. Ashforth 167 Smith v. Chance 58 Smith v. Marrable 19 Smith v. McGuire 37 Smith v. Peat 115 Smith v. Thorno 89 Smith v. Young 190 Smyth v. Anderson 60 Snarr v. Granite . 138 Sommerville v. Rae 80 Steinhoff v. Kent 137 Stephens v. Elwall 190 Stephenson v. Bain 11 Stewart v. London & N. W. Ry. Co 75 Still v. Halford 48 Stimson v. Block 183 Stinson v. Magill 113 TABLE OF CASES. Xlll Page Stone v. Marine Ins. Co 30 Stooke v. Taylor 95 Street v. Blay 54 Sturgeon v. Wingfield 108 Sturges v. Bridgman 123 Summerfeldt v. Worts. 83 Swain v. Lewis 197 Tancred v. Leyland 105 Tarling v. Baxter 184 Tarrant v. Webb 135 Taylor v. Chester . . 82 Thomas v. Crooks 14 Thomas v. Evans 97 Thomson v. Davenport 59 Tilley v. Thomas 11 Tipping v. St. Helen's Smelting Co 123 Toleman v. Portbury 115 Topham v. Dent 180 U Urquhart v. Macpherson 69, 93 U. S. Exp. Co. v. Donohoe 68 Van Dieman v. Victoria 26 Vaughan v. Taff Vale Ry. Co. . . . 131 Vickers v. Wilcocks 74 W \\ ade's Case Wallis v. Harold Ward v. Morse Watson v. Threlkeld. Waynam v. Bend. . . Webb v. Fairmancr.. Wells v Abrahams Wells v. Lindop West v. Blakeway Page .. 98 .. 18 .. 96 .. 61 . 24 . . 62 .. 69 150 93 Western v. Scanlan 33 Wheeler v. Monteflore 179 Whynan v. Garth 103 Wilks v. Atkinson 56 Wilkinson v. King 186 Williams v. Earle 114 Willis v. De Castro 92 Willoiighby v. Backhouse 93 Wilmot v. Stalker 8 Wilson v. Finch Hatton 19 Wilson v. Rvkert 90 Winfleld v. Kean 163 Winterbottom v. Derby 122 Winterbottom v. Ingham .... 17 Withy v. Cottle 10 Wittrock v. Hallinan 107 Wolf enden v. Wilson 64 Wray v. Morrison 138 Wright v. Court 177 Wyld v. Pickford 73 Wynne's Case 105 Yarwood v. Hart 16 ABBREVIATIONS. In referring in the text to the English Reports the usual mode of citation, as given in English digests, has heen followed. The following abbreviations relate to Canadian Statutes and Reports : — A.R Court of Appeal Reports, Ontario. Chy. R Upper Canada Reports, Court of Chancery (Grant's). C.R Consolidated Rules of Practice, Supreme Court of Judicature, Ontario. O.R Ontario Reports. P.R Practice Reports. R.S. C Revised Statutes of Canada. . R.S.O. (1887) . . Revised Statutes of Ontario (1887). S.C.R Supreme Court Reports, Canada. U.C.C.P Upper Canada Reports, Common Pleas. U.C.R Upper Canada Reports, Queen's Bench. MANUAL OF EVIDENCE IN CIVIL CASES. In dealing with the law of evidence the subject may be considered with regard to : 1. The nature of evidence. 2. The object of evidence. 3. Proof of documentary evidence. 4. Proof by witnesses. 5. Proof by affidavits or depositions. G. The effect of evidence. The knowledge of these branches may be described as book work. The next steps in dealing with evidence are, the course of evidence and the practice at Nisi Prias- Many difficulties formerly met are now settled by Statute and Rules of Court, which are printed as an appendix to this Manual. Finally, the essentials of proof in the different species of actions are an absolutely necessary application of the law of evidence. 2 2 MANUAL OF EVIDENCE IN CIVIL CASES. A thorough acquaintance with this last branch can only be acquired systematically by practice. There are, however, certain lines of proof which can be pointed out as being appropriate to each species of action, and it is with these I propose to deal. Before commencing the discussion of the evidence required in the various kinds of actions, it is necessary to explain the assumption on which I proceed. The powers of amendment now given to the courts are very extensive. See Supreme Court Rules* 423, 444 and 780. The words of C. R. 423 arc : The Court or Judge may at any stage of the pro- ceedings order to be struck out or amended any matter in the pleadings respectively which may be scandalous, or which may tend to prejudice, embarrass or delay the fair trial of the action. C. R. 444 is as follows : The Court or a Judge may at any time, and on such terms as to costs or otherwise as to the Court or Judge may seem just, amend any defect or error in any pro- ceedings ; and all such amendments may be made as may be necessary for the advancement of justice, de- termining the real question or issue raised by or de- pending on the proceedings, and best calculated to * Referred to hereafter by the abbreviation " C. R.," as in volume of Consolidated Rules. MANUAL OF EVIDENCE IN CIVIL CASES. 3 secure the giving of judgment according to the very- right and justice of the case. C. R 780 allows amendments of clerical slips. How the powers of amendment have been applied can be seen in Gourjh v. Bench, 6 0. R 706. Neil v. Park, 10 P. R. 476. Ryan v. Fish, Ibid 187. Hare v. Caiuthrope, 11 P. R 353. It follows that a case based on a certain set of plead- ings may, by amendment, become so altered as to be a different species of claim. The requisites for proof will vary as the amendments vary. The fact that the nature of the case has altered does not alter the requi- sites for the proof of the amended claim. My assump- tion, then, is that the precise claim has been defined, whether on the pleadings as they originally stood or by amendment. Again, it is necessary to call attention to the dis- tinction between the English and Ontario systems of pleading. In Ontario, C. R, 403 provides that " the silence of a pleading as to any allegation contained in the previous pleading of the opposite party is not to be construed into an implied admission of the truth of such allega- 4 MANUAL OF EVIDENCE IN CIVIL CARES. tion." C. R. 400 requires " each party [to] admit such of the material allegations contained in the statement of claim or defence of the opposite party as are true." The English Rules (Order 19, Rules 17, 20, 22) pro- vide that the want of denial of a fact will operate as an admission, and will entitle a party to move for judgment. In other words, in Ontario the plaintiff must prove his case ; in England he may not be compelled to do so. If this distinction is not borne in mind English cases may mislead here. A further point to be remarked is the effect of a non-suit under C. R. 797. By that rule "any judg- ment of non-suit, unless the Court or a Judge other- wise directs, shall have the same effect as a judgment upon the merits for the defendant ; but in any case of mistake, surprise, accident, or otherwise, any judgment of non-suit may be set aside on such terms as to pay- ment of costs and otherwise as to the Court or Judge shall seem just." The consequences of a failure to prove the plaintiff's case may be more serious under this rule than for- merly. I now proceed to consider the various species of actions in their order, and the mode in which I pro- pose to deal with the subject is to adopt the general MANUAL OF EVIDENCE IN CIVIL CASES. division of actions, viz., those on contracts (simple or by specialty), and those on wrongs independent of con- tract, and to state: 1. Where necessary, observations as to the gist of the action. 2. Plaintiff's case. 3. Defence. On the latter point, only special defences will be noticed. Defences which may be common to all actions will be discussed in the sequel. PART I. ACTIONS ON SIMPLE CONTRACTS. The actions under this heading are as follows : — Page Sale of real property 7 Use and occupation 15 Waste, bad husbandry, etc 19 Bills of exchange, cheques and promis- sory notes 22 Policy of insurance 28 Contract of affreightment 35 Guarantee 89 Warranty 41 Promise of marriage 45 Award 47 Solicitor's bill 49 Against solicitor for negligence .... 50 By medical practitioners 51 For wages or wrongful dismissal ... 52 Not accepting goods 53 Not delivering goods ....... 56 Goods sold and delivered 57 Work and materials 62 Money paid 65 Money lent 66 SALE OF REAL PROPERTY. Page Money had and received G7 Account stated 70 Against carriers 70 Against innkeepers 75 Against pawnbrokers 76 ACTION ON SALE OF REAL PROPERTY. This action may be brought either by vendor against vendee, or by vendee against vendor. It includes claims for specific performance of contracts of sale, and is often met by a counter claim for rescission of the alleged contract. It frequently ends in a reference as to damage sustained by aggrieved party. VENDOR AGAINST VENDEE. In an action on sale of real property by vendor against vendee on purchaser's default, the plaintiff must prove : 1. The contract. 2. The performance by himself of all conditions precedent. 3. The default. As to proof of the contract, the provisions of the Statute of Frauds (29 Car. II. c. 2, s. 4) must be borne 8 MANUAL OF EVIDENCE IN CIVIL CASES. in mind. A defence under this statute must now bo pleaded specially. Greenizen v. Bums, 13 A. R 481. When it is so pleaded it will be necessary to prove a contract in writing. See Cleaver v. North of Scotland M. Co., 27 Chy. 508. A question often arises as to what is an ' : interest in or concerning " land, etc., within section 4 of above Act. The note or memorandum required by the statute must be in writing, and signed by the party to be charged therewith, or some other person by him law- fully authorized. Subject, terms, and names of the parties must appear. As to names, See Wilmot v. Stalker, 2 0. R 78. Cameron v. Spiking, 2-3 Chy. 116. As to terms, Sec Devine v. Griffin, 4 Chy. 603. It is not necessary that the names or terms should appear in any single paper. The contract may be collected from several connected papers. Rochleaw v. Bid/well, Dra. 345. Kennedy v. Oldham, 15 0. R 433. SALE OF HEAL PROPERTY. 9 The connection ought to appear on the papers, and not by extrinsic oral evidence only. McClung v. McCracken, 3 0. R. 596. When a proposal is made in writing by one party and accepted by the other, either verbally or by acting upon it, the contract is a written one. Ellis v.Abell, 10 A. R. 220. An agreement wod under the Statute of Frauds can, it seems, be wholly rescinded, but cannot be varied by a subsequent oral agreement. Goss v. Lord Nugent, 5 B. & A. 58. (See p. 93 post.) The person authorized by the party to sign need not be authorized in writing. As to telegrams, see Godwin v. Francis, L. J. 5 C. P. 295. Henkel v. Pape, L. J. 6 Exch. 7. McFarren v. Johnson, 6 O. R. 1G1. McCarthy v. Cooper, 12 A. R. 284. Where there has been a part performance of a con- tract falling within the provisions of the Statute of Frauds (sec. 4), although there is no written note or memorandum of the agreement, as required by the section, specific performance will be ordered. Alderson v. Maddison, 8 App. Ca. 420. Campbell v. McKerricher, C 0. R. 85. Coates v. Coates, 14 O. R. 195. 10 MANUAL OF EVIDENCE IN CIVIL CASES. The Courts will enforce the contract where the ab- sence of a written memorandum is caused by fraud. The plaintiff must next prove performance of con- ditions precedent. If the vendors title be put in issue, he must prove it. This is generally done on reference. The Court refers the question of title to the Master to report upon, re- serving costs until he shall have made his report. See Vendors and Purchasers Act (R. S. 0. 1887, c. 112) and the Act respecting the law and transfer of property (R. S. 0. 1887, c. 100), and also the pro- visions of the Registry Act as to the effect of register- ing. These enactments have rendered evidence of title more simple. When a day is fixed for completion, unless the ven- dor make out a good title by that day the purchaser was at law entitled to rescind the contract ; but not so in equity, which now prevails. The equitable prin- ciple does not apply where the property fluctuates in value from day to day, as in the case of a life annuity, Withy v. Cottle, Turn. & R 78, See also Sanderson v. Burdett, 16 Chy. 119. or of a reversion, Patrick v. Milner, 2 C. P. D. 342, SALE OF REAL PROPERTY. 11 nor where property is bought for the purpose of resi- dence Tilley v. Thomas, L. J. 3 Chy. 61. See also Crossfield v. Goultl, 9 A. R. 218. An averment of readiness to convey is negatived by proof of a defective title, for it negatives ability to convey. Be Medina v. Norman, 9 M. & W. 820. Accidental deterioration after the date of the con- tract is a loss which must fall on the vendee. Robertson v. Skelton, 12 Beav. 260. See also Stephen&on v. Bain, 8 P. R. 258. The Court has cognizance of all the rights of all the parties arising out of an agreement ; and if either is entitled to damages the Court ought to ascertain them. Casey v. Hanlon, 22 Chy. 445. See also Ledyard v. McBean, 10 Chy. 139. Goucjh v. Bench, 6 0. R. 699. A reference having been taken in the latter case the result is reported in 9 P. R. 431. The conduct of the party asking damages being held to be virtually fraudu- lent, he was declared to be disentitled to damages. As to costs, the ordinary rule in a vendor's suit is that the costs are given against him up to the time when he has first shown a good title ; but where the 12 MANUAL OF EVIDENCE IN CIVIL CASES. question as to title is not the chief matter in dispute the costs will follow the result. Laird v. Paton, 7 0. R. 137. When the price is payable by instalments the pur- chaser of land has a right to have a reference as to title, and to have title manifested before he makes a single payment. Cameron v. Carter, 9 O. R. 426. If the parties have, before suit, carried out any of the terms of a contract, such executed portions will not be disturbed. Peck v. Powell, 11 S. C. R. 494. DEFENCE.' Denial of contract. See C. R. 413. This rule requires the defendant specifically to allege in his defence that he relies on the Statute of Frauds, or on fraud, or mis- description. The position of a defendant resisting a claim is more favourably considered than that of a plaintiff endeav- ouring to enforce an agreement, the terms of which * Sec post as to defences available in actions generally. In this Part a few special observations only arc made with regard to defences peculi- arly applicable to the action under consideration. See page 5 ante. SALE OF REAL PROPERTY. 13 may not have been defined so as to clearly satisfy the requirements of the statute. Lawrence v. Erringtcn, 21 Chy. 261. Where more than one person is employed by the vendor to bid at a sale by auction, this will be deemed a fraud. See R. S. O. 1887, c. 100. Other special defences are: Imperfection of title, defects in subject-matter of contract. VENDEE AGAINST VENDOR. If vendor refuse or is unable to complete his con- tract, purchaser may sue for damages ; or if purchaser has paid a deposit or part of purchase money, and has not taken possession, he may sue to recover his money. So, if fraud practised, he may rescind and sue for deposit. In a special action on the contract by the purchaser, he must prove the contract. He must "prove the per- formance of conditions precedent. To enable purchaser to maintain an action for money had and received in order to recover the deposit the contract must be disaffirmed ab initio upon grounds entitling him to such disaffirmance. When plaintiff seeks to recover the deposit he must prove payment to defendant or defendant's agent. 14 MANUAL OF EVIDENCE IN CIVIL CASES. "Where the contract is oral he can recover deposit only, but no damages. In other cases he may get the deposit with interest and expenses of investigating title, etc. Farquhar v. Farley, 7 Taunton 592. If the purchaser has taken possession of the prem- ises under the contract, he has adopted the contract, and cannot disaffirm it afterwards by quitting the premises. His remedy is then on the contract itself. Blackburn v. Smith, 2 Ex. 783. Where, on a sale of land, there has been a conveyance perfected, and the seller having no title, the purchaser is evicted, unless fraudulent misstatement or conceal- ment is made out, there can be no action except on the covenants, and where there are no covenants, or none that will extend to the cause of action, there can be no action against the vendor. Thomas v. Crooks, 11 Q. B. 579. The purchaser is not in general entitled to recover " fancy " compensation where the vendor is, without fraud, incapable of making a title. Bain v. F other gill, L. R. 7 H. L. 158. Where, however, the sale does not go off for want of title, but by reason of the refusal of the vendor to take the necessary steps to give possession, the plain- USE AND OCCUPATION. 15 tiff can recover damages for the loss of the bargain, the measure of damages being the difference between the contract price and the market price at the time of the breach. (S. C.) Where the contract contains a variety of stipula- tions of different importance, and one sum is stated to be payable on breach of performance of any one of them, then, though it be called liquidated damages, it is in reality a penalty, and the actual damage sustained is alone recoverable. Ex pte., Capper, 4 Ch. D. 724. ACTION FOR USE AND OCCUPATION. Founded on 11 Geo. II., c. 19, s. 14.* This is a form of action on the case, based on the relationship of landlord and tenant. Action of debt for rent on a contract for use and occupation lies at common law, and not on this statute. The plaintiff proving a legal title to the premises, *The section is as follows:— It shall be lawful for landlords, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, or hereditaments held or occupied by the defendants in an action on the case for the use and occiipation of what was so held and enjoyed; and if, on the trial of such action, any parol demise or any agree- ment (not being by deed) whereon a certain rent was reserved shall appear, the plaintiff shall not, therefore, be non-suited, but may make use thereof as evidence of the quantum of damages to be recovered. 16 MANUAL OF EVIDENCE IN CIVIL CASES. and a mere naked possession by the defendant, is en- titled to a verdict. He need not prove an attornment or contract between himself and defendant. Price v. Lloyd, 3 U. C. R 120. In Clendinning v. Turner, 9 O. R 34, a defendant counter claimed for use and occupation against a plain- tiff. He was held not entitled on the evidence. If defendant has come in under plaintiff, or has acknowledged title by payment of rent or otherwise, he cannot dispute plaintiff's title, but he may show it has expired. In general, title of plaintiff is established by the production of writing or agreement, which is proved in the usual manner ; but if there be no actual lease or agreement, the plaintiff's title may be established by evidence of the defendant having paid rent to him or submitted to a distress. Notice to produce the re- ceipt for rent, or the notice of distress, should in such cases be given by the plaintiff. If it appear from the plaintiff's witnesses that de- fendant holds under a written agreement not produced, plaintiff will not be allowed to give oral evidence of the holding ; but if plaintiff has made out a prima facie case, and the defendant seeks to show that he holds under a written agreement, he must produce the instrument, or his objection is untenable. USE AND OCCUPATION. 17 There must be an occupation or holding, actual or constructive ; therefore a tenant who has agreed to take premises, but has not entered, is not liable to an action for use and occupation. It is prima facie sufficient for the plaintiff to prove that the defendant did occupy the premises, and the continuance of the occupation will be presumed until the contrary appears. If, after the determination of a lease, the tenant holds over and pa} T s rent, such holding over and pay- ment of the rent are conclusive evidence of a tenancy; and he will be liable in an action for use and occupa- tion for the time that he occupies the premises. Bishop v. Howard, 2 B. & C. 100. It is not necessary that there should be an express contract creating the relation of landlord and tenant between the parties ; the relation may be implied. Thus where the defendant has entered under a con- tract for sale, which ultimately goes off, and his occu- pation has been a beneficial one, he may be liable in this action, but only for the period since the putting an end to the contract. Howard v. Shaw, 8 M. & W. 118. Winterbottom v. Ingham, 7 Q. B. Gil. Barroivs v. Gates, 8 U. C. C. P. 121. 3 18 MANUAL OF EVIDENCE IN CIVIL CASES. Where rent is mentioned in the lease or agreement, such rent will be the measure of damages; but where there is no lease, the value of the premises must be proved. Executors ma}- sue for use and occupation of testa- tor's land during his lifetime, but not where the agree- ment has been that the tenant should pay in produce, not money. Wallis v. Harold, 23 U. C. R. 279. DEFENCE. The defendant may rely on termination of tenancy, cither by expiry of landlord's title, or notice to quit, or eviction, or the bringing of an action of ejectment, or pavment, or that the premises have been knowingly let for an immoral purpose. Where it is quite evident that defendant did not occupy under the plaintiff, or with his permission, cither express or implied, but under a third party, the plaintiff will be non-suited. McDonald v. Brennan, 5 U. C. R. 599. The defendant in the case of a ready-furnished house may rely upon the defence that there has been no WASTE, BAD HUSBANDRY, ETC. 19 beneficial occupation, whether by reason of the house bein. Where the cause of action does not arise until after request made, the statute will only run from the time of such request. Gould v. Johnson, 2 Salk. 422. By 21 Jac. I. c. 16, s. 8, actions of account, and on the case (other than concerning the trade of merchan- dise between merchants or their factors or servants, and other than for slander) actions of debt on lending or contract without specialty, or for rent in arrear, are to be brought within six years from the cause of action, and not after. The exception of merchants' accounts is abolished, and by R. S. O. 1887, c. 60, s. 2, All actions of account, or for not accounting, or for such accounts as concern the trade of merchandise as between merchant and merchant, their factors and servants, must be commenced within six years after the cause of action. Limitations of other actions are as follows : Twenty years. (a) Actions for rent upon an indenture of demise. DEFENCES IN ACTIONS ON SIMPLE CONTRACTS. 87 (6) Actions upon a bond or other specialty. (c) Actions upon a recognizance. Six years. (d) Actions upon an award where the submission is not by specialty. (e) Actions for an escape. (/) Actions for money levied on execution. Two years. (g) Actions for penalties, damages, or sums of money given to the party aggrieved by any statute. R S. O. 1887, c. 60, s. 1. DISABILITIES. In case a plaintiff is, at the time of the cause of action accruing, an infant or non compos, the six years run from the removal of the disability. A plaintiff resident without the limits of Ontario has no longer period of time to commence an action than if he were resident in Ontario when the cause of action accrued. In the case of a defendant without the limits of Ontario at the time of the action accruing, the action may be brought within such times as are above men- tioned after the return of the absent person to Ontario. In cases where some joint debtors have been within 88 MANUAL OF EVIDENCE IN CIVIL CASES. and sonic without Ontario, no further time is allowed to commence action against any of the joint debtors who were within Ontario when the action accrued by- reason only that some other of the joint debtors were at that time without Ontario. A judgment recovered in such a case will not be a bar to another action against the joint debtor who was without Ontario. SUBSEQUENT ACKNOWLEDGMENT. The effect of the Statute of Limitations may be avoided by proof of an unqualified acknowledgment of the debt within six years, which is evidence of a new promise to pay the debt, and not a mere revival of the original promise. By the Act respecting Written Promises and Ac- knowledgments of Liability, R S. O. 1887, c. 123, a written memorandum is required to take the case out of the Statute of Limitations. Part payment of a debt takes a case out of the statute, as evidence of a fresh promise to pay. the debt. The payment must be such as to warrant the jury in inferring an intention to pay the rest. It must appear that the payment was on account of the debt for which the action was brought, and that it was made as part payment of a greater debt. DEFENCES IN ACTIONS ON SIMPLE CONTRACTS. 89 A part payment within six years, though proved only by an oral or unsigned admission of the defend- ant, will take the case out of the statute. Cleave v. Jones, 6 Ex. 573. An acknowledgment, or promise, or part payment, by one of several co-contractors, does not make the co-contractor liable to lose the benefit of the statute. R. S. 0. 1887, c. 123, s. 2. The acknowledgment or promise may be made or contained by. or in some writing signed by, the party chargeable thereby, or by his agent duly authorized to make such acknowledgment or promise. An admission of a debt made to a mere stranger can only repel the statute when it can be properly left to the jury as equivalent to or implying a promise to the plaintiff to pay him. The construction of a doubtful document given in evidence to defeat the statute is for the Court and not for the jury, though if intrinsic facts are adduced in explanation, the facts are for the consideration of the jury. Smith v. Thome 18 Q. B. 134. Whether the promise be qualified or not is a ques- tion of construction for the Court and not for the jury, 90 MANUAL OF EVIDENCE IN CIVIL CASES. except where extrinsic evidence affects the construc- tion. Routledge v. Ramsay, 8 A. & E. 221. Wilson v. Rykert, 14 0. R. 188. MERGER. The technical explanation of merger is as follows : Where a debtor gives his creditor a higher securit} r for the debt due and co-extensive with it, the debt is merged by operation of law irrespective of the inten- tion of the parties. Price v. Moulton, 10 C. B. 561. Under the heading of "Action for Money Lent " this defence has been alluded to, and it has been stated that the present powers of amendment render it much less available than formerly. PAYMENT. Most usual way of proving payment is by producing receipt. To an agent or by an agent, good. In general, the party who pays money has a right to direct the application of it ; but where money is paid to a creditor generally, without any specific appro- priation to the party paying, and the creditor has several demands against the party paying, he may DEFENCES IN ACTIONS ON SIMPLE CONTRACTS. 91 apply the money paid to whichever of those demands he pleases. Clayton's Case, 1 Mer. 572. In some instances, and in the absence of any proof of special appropriation, the law will direct or presume the application of money paid generally. Of this nature are accounts current with bankers and others, where there are various items of debt on one side and credit on the other, occurring at different times, and no special appropriation is made by the parties; successive payments will then be applied to the discharge of antecedent debts in the order of time in which they stand. Kinnaird v. Webster, 10 Chy. D. 139. There is a distinction between cases where payment is made by bill or note payable to bearer in exchange for goods sold at the time, and those where such a bill or note is given for a pre-existing debt. In former case, barter with risks ; in latter case, not so. The legal effect of accepting on account of a debt a bill or note not treated as cash is that of a conditional payment. It implies an agreement to suspend the remedy except in the case of specialty debts or rent, in which last cases no such implication is held to arise. 92 MANUAL OF EVIDENCE IN CIVIL CASES. A payment may be made by mere transfer of figures in an account. Eyles v. Ellis, 4 Bing. 112. If goods be accepted in satisfaction of a debt, this constitutes payment. Cannan v. Wood, 2 M. & W. 465. RELEASE. After breach a contract can only be discharged by release under seal or by accord and satisfaction. Before breach it may be discharged by parol. Release of one of two joint or joint and several debtors is a discharge of all, Nicholson v. Revill, 4 A. & E. 675 ; but not so the release of one co-debtor, reserving reme- dies against the other, Willis v. Be Castro, 27 L. J. C. P. 243, or a release of the principal debtor, reserving rights against a surety. Bateson v. Gosling, L. R. 7 C. P. 9. An unqualified covenant not to sue has the effect of a release on the ground of avoiding circuity of action. Ford v. Beech, 11 Q. B. 853. DEFENCES IN ACTIONS ON SIMPLE CONTRACTS. 93 Fraud can only be relied on in reply to a release contained in a contract when the plaintiff can disaffirm the contract and remit the defendant to his former state. See Urquhart v. Macpherson, 3 Ap. Ca. 821. RESCISSION. Before breach a simple contract may be rescinded aud discharged by a mutual oral agreement. A deed cannot be revoked or discharged by parol or writing not under seal. West v. Blaheway, 2 M. & Gr. 729. An executory agreement in writing not under seal may, before breach, be discharged by a subsequent oral agreement. After breach it cannot be discharged except by l-elease under seal or accord and satisfaction, Willoughby v. Backhouse, 2 B. & C. 824, or by a valid agreement, substituting a new cause of action in place of the old, for an invalid agreement will not discharge the former one. Noble v. Ward, L. R. 1 Ex. 117. A distinction is to be observed between simple con- tracts in writing under the Statute of Frauds and contracts at the Common Law. In the former case an 94 MANUAL OF EVIDENCE IN CIVIL CASES. oral contract will not be admitted to show a subse- quent variation in the written contract. Goss v. Lord Nugent, 5 B. & A. 58. But it is otherwise if the contract is not subject to the control of a statute. Where such a contract has been reduced into writing it is competent to the par- ties at any time before the breach of it, by a new con- tract not in writing, either altogether to waive, dissolve or alter the former agreement, or to qualify the terms of it, and thus to make a new contract, to be proved partly by the written agreement and partly by the subsequent oral terms engrafted upon it. Goss v. Lord Nugent, 5 B. & A. 65. A contract within the Statute of Frauds can, it seems, be wholly discharged orally. Midland R. Go. v. Ontario Rolling Mills, 10 Ap. R. 677. SET-OFF. C. R. 373 is as follows : A defendant in an action may set up, by way of counter claim against the claim of the plaintiff, any rio-ht or claim, whether the same sound in damages or not. The distinction between a set-off and counter claim is still material for some purposes, and especially with DEFENCES IN ACTIONS ON SIMPLE CONTRACTS. 95 reference to costs. A set-oft" alleges a liquidated de- mand due from the plaintiff to the defendant, which balances the liquidated claim of the plaintiff, and shows that on the whole account between the plaintiff and the defendant nothing is due to the plaintiff. A set- off to an amount equal to the plaintiff's claim is, there- fore, a defence to the action. A counter claim is in the nature of a cross action by the defendant, which may be made, although in respect of or against a claim for unliquidated damages. Stooke v. Taylor, 5 Q. B. D. 576. Where the defendant succeeds on a simple set-off, or on a counter claim founded on matters that would have been a defence prior to the Judicature Act, and to an amount not less than the plaintiff's claim, he has a complete defence to the action, and is therefore en- titled to his costs. See Stooke v. Taylor, ubi sup. Where, however, the counter claim is in the nature of a cross action, and the plaintiff is successful on his claim, and the defendant also on his counter claim, the plaintiff is entitled', even although the defendant re- cover the larger amount, to the general costs of the action. The defendant is entitled to the costs of the counter claim ; but there is no apportionment of such 96 MANUAL OF EVIDENCE IN CIVIL CASES. costs as, if the claim and counter claim had been sepa- rate actions, would have been incurred in each of them. Ward v. Morse, 23 Chy. D. 377. Where the claim and counter claim are both dis- missed with costs, the plaintiff pays the general costs of the action, and the defendant the amount only by which the costs have been increased by the counter claim. Saner v. Bilton, 11 Chy. D. 416. 2 Geo. II. c. 22, s. 13. 8 Geo. II. c. 24, s, 45. See McGoivan v. Middleton, 11 Q. B. D. 464. Where the issues in the claim and counter claim are the same, the plaintiff is not entitled to adduce fresh evidence to contradict the defendant's evidence. Green v. Sevin, 13 Ch. D. 589. See Monteith v. Walsh, 10 P. R. 163. Goring v. Cameron, 10 P. R. 496. Hare v. Gawthrope, 11 P. R. 353. Chamberlain v. Chamberlain, 11 P. R. 501. Central Bank v. Osborne, 12 P. R. 160. TENDER. The following are the main requisites for a valid tender : The actual production of the money due is neces- DEFENCES IN ACTIONS ON SIMPLE CONTRACTS. 97 sary, unless the creditor dispense with the production of it at the time, or does anything which is equivalent to a dispensation. Thomas v. Evans, 13 East 101. There must be evidence of an unqualified offer. An offer of payment clogged with a condition that it must be accepted as the balance due does not amount to a valid tender. Evans v. Judkins, 4 Camp. 156. Whether a tender be conditional or not is a ques- tion for the jury, where the words or facts accompany- ing it are disputed. Eckstein v. Reynolds, 7 A. & E. 80. But if the goodness of it turns on the meaning or legal effect of a letter or writing accompanying it, then the question is for the Judge. Bowen v. Owen, 11 Q. B. 130. The same rule would apply to unwritten expressions used by the party tendering, where the tenor of them is not disputed. The tender need not be made by the debtor himself ; it is sufficient if made by his agent. A tender to a person authorized by the creditor to receive money for him is sufficient. 98 MANUAL OF EVIDENCE IN CIVIL CASES. Tender of a part of one entire debt is inoperative. Dixon v. Clark, 5 C. B. 365. If a man tenders more than he ought to pay, it is good. Wades Case, 5 Rep. 114. But such a tender is only good where it is made in moneys numbered so that the creditor may take what is due to him ; therefore, e.g., a tender of a Dominion note for fifty dollars, requiring change, is not good. By R. S. C. c. 3-1, An Act Respecting Dominion Notes, such Dominion notes are authorized. Section 4 provides : " Such notes shall be a legal tender in every part of Canada except at the offices at which they are respec- tively made payable." By R. S. C. c. 30, An Act Respecting the Currency, gold coins may be struck for Canada of the standard of fineness prescribed by law for the gold coins of the United Kingdom, and bearing the same proportion in weight to that of the British sovereign which $5 bears $4.86f. These coins shall pass current and be a legal tender in Canada for $5. Silver, copper or bronze coins are legal tender as follows : Silver coins to the amount of $10 ; copper or bronze coins to the amount of twenty-five cents in DEFENCES IN ACTIONS ON SIMPLE CONTRACTS. 99 any one payment. The holder of the notes of any person to the amount of more than $10 shall not be bound to receive more than that amount in such silver coins in payment of such notes if presented for pay- ment at one time, although any of such notes is for a less sum. The defence of tender is only applicable to cases where the party pleading has been guilty of no breach of his contract. The defence will be defeated by showing a demand and refusal prior or subsequent to the tender. Bennett v. Parker, L. R. 2 C. L. 89, Ex. The demand must be proved of the precise sum tendered. Rivers v. Griffiths, 5 B. & A. G30. See Demorest v. Midland, 10 P. R. 640. Lockridge v. Lacey, 30 U. C. Q. B. 494. Long v. Long, 17 Chy. 251. PART III. ACTIONS ON SPECIALTIES, The actions under this heading are as follows : Page On covenants 100 For double value of land demised . .117 For double rent 117 On bond 118 For penalty 119 ACTION ON COVENANTS. A covenant is an agreement expressed in an instru- ment in writing executed as a deed. Such agreements after proof of the deed in which they are contained are subject to the rules of construction applicable to ordinary documents. There need be no formal words of covenant. Any words in a deed showing an agree- ment to do a thing make a covenant. As land is for the most part conveyed and leased by instruments under seal, certain covenants usually COVENANTS. 101 inserted in these instruments are frequently the sub- ject of an action. The covenants relating to land are principally : Not to assign or sublet without leave. As to trade on premises. For good husbandry. To insure. To repair. To pay rates and taxes. For title. To yield up possession of premises at end of term. Besides the actions on these special covenants it is well to notice : 1. Some of the most material issues arising in actions on deeds and bonds generally. 2. Some of the most material issues arising in actions on leases or other conveyances of real property. The actions on particular covenants will be consid- ered after the above cases, 1 and 2. i. Some of the Most Material Issues Arising in Actions on Deeds and Bonds Generally. Under C. R. 413, quoted on page 78, the defendant may deny the making of the contract in fact. This defence now in part takes the place of the old plea of non est factum. 102 MANUAL OF EVIDENCE IN CIVIL CASES. The plaintifl under this defence need only produce and prove the execution of the deed. Where the action is not for any liquidated sum it is also necessary to prove the amount of damage. The following are the principal rules as to the mode of proving a deed between private parties : It was formerly the rule that whenever a deed or other instrument was subscribed by attesting witnesses, one of them at least must have been called to prove the execution. Now, by R. S. O. 1887, c. 61, s. 50, "It shall not be necessary to prove by the attesting witness any instrument to the validity of which attestation is not requi- site, and such instrument may be proved by admission or other- wise, as if there had been no attesting witness thereto." This section does not apply to cases where attesta- tion is essential, as wills, instruments under powers, bills of sale, etc. Even in these cases the necessity for calling the attesting witness only arises where it is necessary to prove the instrument; for the parties against whom any of these instruments requiring at- testation are sought to be used may waive the neces- sity of calling the attesting witness by admission. Where proof has to be given of attestation, the neces- sity for calling the attesting witness cannot be avoided by putting the party to the deed, and against whom COVENANTS. 103 it is sought to be used, into the witness box, and ex- tracting an admission of the execution from him. Whynan v. Garth, 8 Ex. 803. Where the attesting witness is dead, or insane, or infamous, or absent in a foreign country, or not amen- able to the process of the Superior Courts, or where he cannot be found after diligent inquiry, evidence of the witness' handwriting has always been admissible. The sufficiency of the inquiry is for the determina- tion of the Judge, who will found his opinion upon the nature and circumstances of each case. When the Court is satisfied that due diligence has been used to find the witness, then it is sufficient to prove his hand- writing, without proving the handwriting of the party, unless with the view to establish the identity. • Nelson v. Whittall, 1 B. & A. 10. It is not sufficient ground for admitting evidence of the witness' handwriting that he is unable to attend from illness and lies without hope of recovery. The party interested in his testimony must in such a case get a Judge's order to examine him out of Court. Harrison v. Blades, 3 Camp. 457. Where the name of a fictitious person is inserted as witness, or where the subscribing witness denies any 104 MANUAL OF EVIDENCE IN CIVIL CASES. knowledge of the execution or gives evidence that the document was not duly executed, or where the attest- ing witness subscribes his name without the knowledge or consent of the parties, — in these cases it becomes necessary to prove the instrument b}^ calling some one acquainted with the handwriting of the person execut- ing it, or who was present at the time of execution, or by admission of the party. Where there are two attesting witnesses, and one of them is incompetent, or his evidence cannot be ob- tained, the other witness must be called, and evidence of the handwriting of the absent witness will not be sufficient. Cunliffe v. Sefton, 2 East 183. In proving the execution of a deed, the attesting witness frequently states that he does not recollect the fact of the deed being executed in his presence, but that seeing his own signature to it he has no doubt that he saw it executed. Sufficient. Maugham v. Hubbard, 8 B. & C. 16. Where notice was given to produce a deed in the defendant's possession, and the defendant at the trial refused to do so, plaintiff was allowed to prove it by a copy without calling any attesting witness, and it was held that the defendant could not put the plaintiff to COVENANTS. 105 a strict proof by afterwards producing the attested original. Jackson v. Allen, 3 Stark. 74. Some evidence of the identity of the party to the instrument must be given, though any slight evidence will be sufficient. To prove a corporation deed, the seal must be proved by some one who knows it, but it is not necessary to call a witness who saw it affixed. A lease may be proved prima facie by producing the counterpart executed by the defendant, without notice to produce the original lease. Where there is a discrepancy between the two in- struments the lease prevails. Where an indenture is in two parts, each party executing each part, if there is a material variation between the two parts the indenture is void for want of mutuality. Wynnes Case, L. R 8 Ch. 1002. The above are the general rules as to proving a deed, and are, I trust, a useful digression. To return to actions on deeds and bonds generally, the defence of denial by the defendant of the making of the deed has been already stated. Under special defences the defendant may show that 106 MANUAL OF EVIDENCE IN CIVIL CASES. the deed was executed as an escrow, and was to take effect as a deed only upon some event which has not happened; or that the deed, after being sealed, was tendered to the covenantee, and he expressly rejected it ; or, in the case of a corporation deed, irregularity or want of due authority in the execution of the deed. Other special defences are : Alteration of deed. (See page SO.) Fraud. (See page 81.) 'Statute of Limitations. The Statutes of Limitation applying to deeds or specialties are K S. O. 1887, c. 60 and c. 111. The effect of these statutes is that no more than six years' arrears of rent or interest in respect of any sum charged on or payable out of any land or rent shall be recovered by way of distress action or suit other than and except an action of covenant or debt on a specialty, in which case the limit is twenty years. In an action on the covenant in a mortgage deed to pay the mortgage debt the limit is ten years. R. S. 0. 1887, c. Ill, s. 23. It must be shown which of the three sorts of ac- knowledgments, viz., writing, payment, or satisfaction in part, is relied on. Forsyth v. Bristowe, 8 Ex. 347. COVENANTS. 107 2. Some of the Most Material Issues Arising in Actions on Leases or Other Conveyances of Real Property. This will be considered — (a) Where plaintiff sues as assignee of reversion, with the defences of : Assignment over of reversion by plaintiff. Assignment over of term by defendant. Surrender. Eviction. (6) Where defendant is sued as assignee of the lease. (c) Action for rent under indenture of demise, with the defences of : Payment. Plea of readiness to pay on the land. Statute of Limitations. (a) WHERE PLAINTIFF SUES AS ASSIGNEE OF REVERSION. The assignee of a reversion cannot recover rent ac- crued due before the assignment. See Wittrock v. Hallinan, 13 U. C. R 135. The assignee of the reversion cannot sue for breaches of covenant which accrued before the assignment to him. Martyn v. Williams, 1 H. & N. 817. 108 MANUAL OF EVIDENCE IN CIVIL CASES. Although R S. 0. 1887, c. 109, s. 10, enacts that a right of entry for condition broken shall pass by will, yet this does not extend to an action upon a covenant broken in a testator's lifetime. Where plaintiff at time of lease has no title, but after- wards acquires one, the lease and reversion take effect in interest, and an action will lie by the assignee of the reversion on the covenants in the lease. Sturgeon v. Wing field, 15 M. & W. 224. Galbraith v. Irving, 8 O. R 751. The plaintiff must prove title by showing mesne conveyances from original lessor. Garvick v. Blagrave, 1 B. & B. 531. DEFENCE. Assignment over of Reversion by Plaintiff. The lessor cannot bring an action of covenant on the lease, after he has parted with his reversion, for any breach of covenant running with the land which has accrued subsequently to the grant of the reversion ; but the action can be brought only by the assignee of the reversion. The defendant may therefore set up 32 H. VIII. c. 34. This statute only applies to leases by deed. COVENANTS. 109 Assignment over of Term by Defendant. In an action against the assignee of a term on a covenant in the lease, he may plead that he assigned over the term before breach, for the assignee is only liable for those breaches which have occurred while he is assignee ; but for those breaches he may be sued even after he has parted with the term. The defendant must prove that the whole term has been legally transferred by him to another, i.e., when necessary by deed. See R. S. O. 1887, c. 100, s. 8. Surrender. A surrender of a lease must be by deed, not being of an interest which might by law have been created without writing. R. S. O. 1887, c. 100, s. 8. There may also be a surrender by act or operation of law. Anything which amounts to an agreement on the part of the tenant to abandon and on the part of the landlord to resume possession of the premises amounts to a surrender by operation of law. Phene v. Popplewell, 12 C. B., N. S. 340. Eviction. An action of covenant for non-payment of rent can 110 MANUAL OF EVIDENCE IN CIVIL CASES. be defeated by proof of an eviction of the defendant from the premises in question, either by the lessor or by one whose title is better than his. Not so if defendant has not given up possession of the whole. Newton v. Allin, 1 Q. B. 518. (6) WHERE DEFENDANT IS SUED AS ASSIGNEE OF THE LEASE. It will be necessary to prove either a transfer of the interest by deed, or facts from which an assignment may by law be inferred. It will be sufficient prima facie evidence to show that the defendant has paid rent as assignee, or is in possession of the premises. DF.FENCE. The defendant may prove that he is not an assignee of the whole term, but only an undertenant. The defendant is not chargeable as assignee of the land for the entire rent if the assignment be of part only. Curtis v. SpiUy, 1 N. C. 756. As to what covenants run with land so as to bind the assignees, see Spencers Case, 1 Sm. L. Cas. and Notes Berrie v. Woods, 7 C. L. T. 8. Ambrose v. Fraser, lb. 364. Emmett -v. Quinn, 7 A. R. 306. COVENANTS. 1 1 1 (c) ACTION FOR RENT UNDER INDENTURE OF DEMISE. An action lies by lessor, or grantee of reversion, against lessee on his express covenant to pay rent, non obstante he have assigned the lease, and the lessor or his grantee have accepted the assignee as his tenant. But the lessor cannot, after he has parted with his reversion, bring an action of covenant for rent accrued due after grant of reversion under 32 H. VIII. c. 34. The lessor may bring an action of debt against as- signee of lessee by reason of privity of estate ; but an action of covenant will not lie against original lessee after acceptance of assignee by lessee as his tenant. Montgomery v. Spence, 23 U. C. R. 39. The demise may be proved by production and proof of a lease executed by the plaintiff and accepted by the defendant, or by proof of the execution of it by the defendant. DEFENCE. Payment. (See page 90.) Readiness to pay on land good in case of debt for rent ; not good in action on covenant. Statute of Limitations. (See page 85.) An instance where it was doubtful whether the assignment should be treated as of the reversion or 112 MANUAL OF EVIDENCE IN CIVIL CASES. of future rent accruing out of the land, and so void as not under seal ; or as an assignment of a chose in action, viz., of the moneys payable under the covenants of the lease, and so valid. Galbraiih v. Irving, 8 0. R 751. Any act of the tenant without the knowledge or sanction of the landlord can only affect his interest as tenant, and cannot prejudice the reversioner. Dixon v. Cross, 4 O. R. 465. A plea to an action of covenant for rent against the assignee of a lease, that all the estate of the lessee did not come to and vest in the defendant, is a good plea. Annis v. Corbet, 1 U. C. R 303. A, as lessor, leases to B, and covenants to repair, and then assigns to C, the rent for the term which B is to have. B sues C on A's covenant. Held, C not liable, as he had no reversion, and the covenant would not run with the rent. McDougall v. Ridout, 9 U. C. R 239. Covenant by lessee to insure in the name of the lessor, the insurance money to be expended in the erection of new buildings. Held, a covenant running COVENANTS. 113 with the land, and that an action would lie on it against the assignee of the lessee. Douglass v. Murphy, 1G U. C. R 113. In covenant for rent, a plea relying on the plaintiff's acceptance of the assignees as his tenants, and on his receipt of prior rent (not the rent sued for) from them, as relieving defendant, the lessee, from any further liability, is a bad plea, as being no defence to an action on an express covenant. Stinson v. Mdgill, 8 U. C. R. 271. ACTIONS ON COVENANTS RELATING TO LAND. We now consider actions for the breach of the various covenants as enumerated on page 101. Action for Breach of Covenant not to Assign. To prove the breach of a covenant not to assign or under-let it has been held to be prima facie sufficient to show that a stranger was in the possession of the premises apparently as a tenant, and that on inquiry such stranger said he rented the house. Due d., Hinclly v. Rickerby, 5 Esp. 4. In another case it was held not sufficient, for non constat that the party in possession was not a tortious intruder. Doe v. Payne, 1 Stark. 86. 114 MANUAL OF EVIDENCE IN CIVIL CASES. Morris v. Williams, 6 B. & C. 41, seems to show that mere possession would be evidence of an assign- ment. See Crawford v. Bugg, 12 0. R. 8. The measure of damages in an action for a breach of covenant not to assign, etc., is such a sum of money as will put the plaintiff in the same position as if the covenant had not been broken, and the plaintiff had retained the liability of the defendant instead of an inferior liability. Williams v. Earle, L. R. 3 Q. B. 739. Actions for Breach of Covenant as to Trade on Premises, and for Breach of Good Husbandry, etc. The proof of any act which, according to the natural and ordinary meaning of their words, is for- bidden by these covenants will entitle the plaintiff to a verdict. Action for Breach of Covenant to Insure. Where the affirmative is peculiarly within the know- ledge of the party charged, the presumption of the law in favour of innocence is not allowed to operate ; but the general rule applies that he who asserts the affirma- tive has to prove it, and not he who avers the negative. Thus, in an action on a covenant for not insuring COVENANTS. 115 premises against fire, it lies on the defendant to prove he has insured. Toleman v. Portbury, L. R 5 Q. B. 288. Action for Breach of Covenant to Repair. The proper measure of damages is the diminution of the value of the reversion at the time of action. See, further, Mlnskull v. Oakes, 2 H. & N. 793. Smith v. Peat, 9 Ex. 161. Action for Breach of Covenant to Pay Rates and Taxes. An absolute covenant to pay rates is broken on non- payment, although no demand has been made on the tenant for payment. Davis v. Burrell, 10 C. B. 821. Held, that under the wording of the covenant to pay " all taxes, rates, duties and assessments what- soever . . . now charged, or hereafter to be charged j upon the said demised premises," the defendant was liable for local improvement taxes, and for the addi- tions made under the Assessment Act, year by year, to the amount of the taxes in arrear, or additions made by the municipality. Boulton v. Blake, 12 O. R. 532. 116 MANUAL OF EVIDENCE IN CIVIL CASES Action for Breach of Covenant for Title. The covenants for title on which actions are brought are principally : A covenant that the grantor is seized in fee, or has power to convey ; for quiet enjoyment, and for freedom from incumbrances. By R. S. 0. 1887, c. 100, s. 17, certain covenants are implied. Action for Breach of Covenant to Yield up Possession of Premises at the End of the Term. The landlord is entitled to recover all the loss he has sustained by not being put in possession of the entire premises at the end of the term ; he is entitled to a sum equivalent to the rent he has lost, and to the costs of an ejectment where necessary. Henderson v. Squire, L. R. 4 Q. B. 170. Where a lessee took a lease of premises for two years and covenanted to leave the premises without notice at the end of that time, Held, that on ejectment, brought by the lessor at the end of the term, the lessee could not set up a former lease to him for a longer period. Doe d., Wimburn v. Kent, 5 O. S. (U. C.) 437. DOUBLE VALUE. 117 ACTION FOR DOUBLE VALUE. Under 4 Geo. II. c. 28, against tenant wilfully hold- ing over after — 1. Determination of term. 2. Demand made. 3. Notice in writing. Notice to quit includes a demand. Plaintiff must prove the demise, the determination of the term, the demand, and the value. In estimating value only the land and its real ease- ments and appurtenances can be included. DEFENCE. The defendant may show that the plaintiff has waived the notice to quit on demand of possession; and where the plaintiff has accepted rent due from the de- fendant after the expiration of notice to quit, it is a question for the jury whether such rent was received in part satisfaction of the double value or as a waiver Myall v. Mich, 10 East 52. ACTION FOR DOUBLE RENT. By 11 Geo. II. c. 19, s. 18, if any tenant shall give notice to quit, and does not quit, he shall pay double rent. 118 MANUAL OF EVIDENCE IN CIVIL CASES. The statute only applies to those cases in which the tenant has the power of determining his tenancy by a notice, and actually gives a valid notice sufficient to determine it. Johnstone v. Huddlestone, 4 B. & C. 922. ACTION ON BOND. See 8 and 9 W. III. c. 11, s. 8. The plaintiff must set out the breaches he relies upon, in two ways : 1. By assignment, which is traversable. 2. By suggestion, which is not traversable. In latter case defendant cannot show excuse of per- formance. But plaintiff must show that bond pro- duced is same on which judgment obtained. The jury are to find nominal damages and costs as well as damages on the breaches ; but plaintiff cannot recover more than the penalty and costs. Greer v. Johnston, 40 U. C. R. 116. DEFENCE. Payment. Payment before the day fixed for it was always evidence of a plea of payment at the day ; but before Statute 4 and 5 Anne, c. 3, s. 12, payment after the PENALTY. 119 day fixed, or at a different place from that fixed, was not pleadable in bar. By that Act pa} r ment of princi- pal and interest due on a mere money bond made be- fore action is a bar, though not made exactly accord- ing to the condition. The defendant must prove the defence, though such defence is in fact a denial of the breach of the condi- tion. Penny v. Foy, 8 B. & C. 8. ACTION FOR PENALTY. In an action of debt on a penal statute the general evidence for the plaintiff is proof of the commission of the act upon which the penalty has accrued, and, if a time be limited by the statute for bringing the action, proof that the action was brought within the time. The Crown alone can sue for the penalty where the statute does not say who shall recover it, unless an interest therein is given to some person by the statute expressly or by sufficient implication as if it is created for a party grieved. Clarke v. Bradlaugh, 8 Ap. Ca. 354 D. P. The writ is in all cases the commencement of the action, and the statement of claim will show the day 120 MANUAL OF EVIDENCE IN CIVIL CASES. on which it is issued. When the writ has been re- newed proof of the renewal is requisite. DEFENCE. By 21 Jac. I. c. 4, s. 4, not guilty by statute may be pleaded. (See page 79.) Held, that 18 Eliz. c. 5 is in force in Ontario, and, therefore, the plaintiff, an infant, suing by his next friend, could not maintain an action for a penalty under the Election Act. Garrett v. Roberta, 10 A. R. 650. No damages are recoverable in a penal action except the penalty. Frederick v. Lookup, 4 Burr. 201S. PART IV. ACTIONS ON WRONGS INDEPENDENT OF CONTRACT. The actions under this heading are as follows : Paob Nuisance 122 Negligence 126 Disturbance of support of land . . . 138 Obstruction of light or air 139 Disturbance of way 139 Disturbance of watercourse 142 Infringement of copyright 144 Infringement of trade marks . . . .145 Infringement of patents 147 Deceit and misrepresentation .... 149 Defamation 150 Malicious prosecution 162 Malicious arrest ......... 164 Wrongful distress 165 Seduction 171 Assault and battery 173 False imprisonment 174 Trespass to personal property . . . .179 Trespass to land 180 Mesne profits 181 Conversion of goods 182 Detention of goods 193 Recovery of land 193 Replevin . . 200 122 MANUAL OF EVIDENCE IN CIVIL CASES. ACTION FOR NUISANCE. Where the nuisance is a public one, so as to be an indictable offence, an indictment or information is the proper remedy, and an action will npt lie at the suit of a private person, unless he has sustained special damage by such nuisance beyond that sustained by other persons. Winterbottom v. Lord Derby, L. R. 2 Ex. 316. The plaintiff must prove his possessory title, the nuisance and the damage. If the plaintiff is in possession, whether as owner or otherwise, it is sufficient to prove that he was possessed of the premises injured by the nuisance. If the nuis- ance be of a permanent nature, or injurious to the reversion, an action may be brought by the rever- sioner, as well as by the tenant in possession. Bedingfield v. Onsloiv, 3 Lev. 209. The action lies by the reversioner even against his own tenant, and even although the injury is caused by an act done in breach of an express covenant by the defendant. To erect anything offensive near the house of an- other, as to make it useless, is actionable. In case of a public nuisance, where special damage NUISANCE. 123 is alleged, the private injury or damage as a ground of action appears. Whether an act done is a nuisance or not depends not only on the act itself, but on the surrounding cir- cumstances, for what would be a nuisance in one place would not be a nuisance in another. Sturges v. Bridgman, 11 Chy. Div. 852. There is a difference between a nuisance which pro-' duces material injury to the property and one which produces merely sensible personal discomfort. Tipping v. St. Helen's Smelting Co., 11 H. L. C. 642. If, after a highway has been established, anything be newly made so near to it as to be dangerous to those using the highway, this will be unlawful and a nuisance ; but a road may be dedicated to the public subject to the inconvenience or risk arising from its peculiar condition. Fisher v. Proivse, 31 L. J., Q. B. 212. Where the obstruction is lawful it may give rise to an action upon proof that it was concealed and the plaintiff invited to pass near it. Corby v. Bill, 4 C. B., N. S. 5|56. The action may be brought either against the per- 124 MANUAL OF EVIDENCE IN CIVIL CASES. son who originally occasioned the nuisance or against his alienee who permits it to be continued ; but a re- quest to the alienee to remove or abate the nuisance must be proved. Penruddock's Case, 5 Rep. 101. If a contractor employed to do a lawful act causes a nuisance in the course of his work, the contractor alone, and not the employer, is responsible. In such cases the action lies only against the person who by himself or his servant committed the injury; and a subcontractor or other person exercising an independ- ent employment is not a servant within the meaning of the rule so as to render his employer liable. Allen v. Hayward, 7 Q. B. 960, 975. Where the employer retains his control over the contractor, and personally interferes and makes him- self a party to the act that has occasioned the damage, he becomes liable. Burgess v. Gray, 1 C. B. 578. Where the nuisance directly results from the thing contracted to be done the employer is liable. Ellis v? Sheffield Gas Go., 2 E. & B. 7G7. Although the owner of land, after letting it, is not NUISANCE. 125 liable for a nuisance erected by the tenant, yet if he lets or re-lets the land with a nuisance upon it, or retains control of the repairs, he is liable. Trustees or commissioners acting for public pur- poses without salary or reward are not exempt from the responsibility which is incurred by private indi- viduals. Coe v. Wise, L. R. 1 Q. B. 711. As to municipalities, see liabilities imposed by the Municipal Act. R. S. O. 1887, c. 184. The injury must be the natural or ordinary conse- quence of the defendant's wrongful act. Sharp v. Poivell, L. R. 7 C. P. 253. Where the nuisance is a continuing one, so that sue- cessive actions may be brought, the measure of dam- ages is the amount of injury sustained up to the time of assessment of damages, and the jury may, upon a further action, give substantial damages. Battishill v. Reicl, 18 C. B. 696. The defendant's intention in doing the act is to be taken into consideration in assessing the damages. Emblen v. Myers, 6 H. & N. 54. 126 MANUAL OF EVIDENCE IN CIVIL CASES. DEFENCE. It is a good defence to show that what was prima facie a nuisance arose unavoidably from the perform- ance by the defendants of acts expressly sanctioned by the Legislature ; but the defendants will be liable if their acts cause needless injury, or if they do not take reasonable steps within their power for averting such injury. Where the gist of the action is the consequential damage, the time of limitation begins to run from the accruing of the consequential damage. Hathaivay v. Doig, 6 Ap. R. 264. Gardiner v. Cliapman, 6 O. R. 272. As to damages, see Drew v. Baby, 1 IT. C. R. 438. As to contaminating air, see Cartwright v. Gray, 12 Ch. 399. As to action by tenant, see Arnold v. White, 5 Ch. 371. ACTION FOR NEGLIGENCE. The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing something which a prudent and reasonable man would not do ; and an action may be brought if NEGLIGENCE. 127 thereby mischief is caused to another person not inten- tionally. Blyth v. Birmingham, 11 Ex. 7, sub-section 3, in any case where the workman knew of the defect or negligence which caused his injury, and failed within reasonable time to give notice to the company or some person superior to himself in the company's service, unless he was aware that the company or such superior already knew of the said defect or negligence, in such case the work- man loses his remedy. As to damages occasioned by fire from locomotives, NEGLIGENCE. 135 besides the general principles already mentioned, special provisions are made by R. S. 0. 1887, c. 213, s. 9, An Act to Preserve the Forests from Destruction by Five, enforcing special regulations as to locomotives. NEGLIGENCE OF FELLOW-SERVANTS. A master, although liable for the negligence of a servant acting in the course of his employment, is not at common law generally responsible for an injury sustained by that servant owing to the negligence of another servant engaged with him in a common em- ployment. To make a master liable to his servant or workman, there must be personal negligence or interference of the master, or a special contract. Ormond v. Holland, E. B. & E. 102. The master is, however, bound to exercise due care and caution in the choice of his servants ; otherwise he may become liable in respect of his own negligence in this respect, Tarrant v. Webb, 18 C. B. 787 ; and he is bound to take all reasonable precautions to secure the safety of his workmen. Brydon v. Stewart, 2 Macq. 30. 136 MANUAL OF EVIDENCE IN CIVIL CASES. The above rules must now be read subject to R. S. O. 1887, c. 141, referred to on page 134. Its title is, The Workman's Compensation for Injuries Act. It pro- vides for compensation against an employer where personal injury is caused to a workman by reason of 1. Defect in machinery. 2. Negligence of superintendent. 3. Negligence of any co-employee under whose orders the injured workman was. 4. Disobedience to by-laws of some other employee. 5. Negligence of pointsman, driver or train hand on a railway. Notice in writing must be given within twelve weeks after the injury, and the action must be commenced within six months. Assessors may be appointed for the purpose of ascer- taining the amount of the compensation. WRONGFUL ACT, DEFAULT OR NEGLECT, CAUSING DEATH. By R S. 0. 1887, c. 135, An Act Respecting Com- pensation to the Families of Persons Killed by Accidents and in Duels, an action is given to recover damages for the death of any person caused by any wrongful act, neglect or default. NEGLIGENCE. 137 Such action shall be commenced within twelve months after the death of the deceased. The negligence is the cause of action, and the death of the person injured does not, under this statute, give rise to a fresh cause of action to the personal repre- sentative. Read v. G. E. R. Co., L. R. 3 Q. B. 555. The jury, in estimating the damages, cannot take into consideration the mental suffering of the survivors or loss of society which they have sustained, but are to award compensation for pecuniary loss alone. Blake v. Midland Ry. Co., 18 Q. B. 93. See McGibbon v. N. R. Co., 14 A. R 91. Steinhofv. Kent, 14 A. R. 12. Preston v. Camden, 14 A. R. 85. Moxley v. Can. Atl. 14 A. R. 309. Dean v. Ont. Cotton Mills Co., 14 O. R. 119. Cox v. Hamilton Seiver Pipe Co., 14 O. R. 800. Matthews v. Hamilton Powder Co., 7 C. L. T. 304 Belong v. Burrell, 7 C. L. T. 23. Rudd v. Bell, 7 C. L. T. 61. Downs v. Lee, 7 C. L. T. 214. Beasley v. Hamilton, 9 O. R. 112. 138 MANUAL OF EVIDENCE IN CIVIL CASKS. ACTION FOR DISTURBANCE OF SUPPORT OF LAND. No one has a right to deprive the soil of his neigh- bour while in its original condition of lateral support ; but the plaintiff may acquire a right to the support of the defendant's soil by grant, express or implied. Partridge v. Scott, 3 M. & W. 220. Tenant may maintain action. McCann v. Ghisholm, 2 O. R. 506. See Wray v. Morrison, 9 O. R. 180. The plaintiff may recover prospective damage as well as that which has already accrued from the inter- ference with his right of support, for he can maintain one action only for the whole damage he may sus- tain. Lamb v. Walker, 3 Q. B. D. 389. See Snarr v. Granite, 1 O. R. 102. See Battishill v. Reid, 18 C. B. 696, as to a continu- ing nuisance. How far a disturbance of a support of land may be considered as a nuisance so as to come within the rule of Lamb v. Walker, supra, does not appear to be decided. DISTURBANCE OF WAY. 139 ACTION FOR OBSTRUCTION OF LIGHT OR AIR. By R. S. 0. 1887, c. Ill, s. 36, no person shall acquire a right by prescription to the access and use of light to or for any dwelling-house, workshop or other building ; but this section shall not apply to any such right acquired by twenty years' use before the 5th of March, 1880. This section altered the law as it stood under R. S. O. 1877, c. 108, s. 36, by which twenty years' access and use of light gave an indefeasible right. See Carter v. Grasett, 11 0. R. 331. ACTION FOR DISTURBANCE OF WAY. The plaintiff must prove : 1. Possession of certain premises. 2. The existence of a right of way appurtenant thereto. 3. The disturbance of it by the defendant. The modes of proving a right of way are : 1. By express grant. 2. By usuer. 3. By necessity. The proof of a right of way by express grant is a question more of construction than evidence. 140 MANUAL OF EVIDENCE IN CIVIL CASES. The right of way by necessity arises by implied grant. If A grants a tenement surrounded by his own land to B, B is entitled to right of way to it through the land of the grantor if such way be absolutely neces- sary to the right of enjoyment to what is granted. As to the mode of ascertaining the way, see Pearson v. Spencer, 1 B. & S. 571. Formerly a right of way not claimed by express grant must have been shown to have existed from time immemorial, i.e., from the beginning of the reign of Richard I., A.D. 1189. This is called a claim by prescription at Common Law to distinguish it from a claim by prescription of statute. By R. S. 0. 1887, c. Ill, s. 35, rights of way or water are not to be defeated by showing only that they began more than twenty years before. When enjoyed over forty years the right is indefeasible. The plaintiff must prove some disturbance by the defendant. By Short Form Act, R. S. O. 1887, c. 105, every deed, unless an exception be made therein, shall be held to include all ways, easements and appurtenances whatever to the lands therein comprised. See Maughan v. Casci, 5 O. R. 518. DISTURBANCE OF WAY. 141 DEFENCE. The defendant may, under the defence of the denial of the right, prove that the way was only a way by sufferance during the pleasure of himself and the plaintiff. Reignolds v. Edwards, Willes 282. As evidence of which he may show that he has kept a gate across the road or that the plaintiff has paid him a compensation for the use of the way. If the way is claimed as a way of necessity, the defendant may show that the plaintiff can approach the place to which it leads over his own land, and that consequently the way of necessity has ceased. Holmes v. Goring, 2 Bing. 76. The defendant may also show that the right of way has been removed and abandoned by acquiescing in an obstruction for more than twenty years. Bower v. Hill, 1 N. C. 555. Or where it is claimed under the Act the defendant may show an acquiescence in an interruption for one year of the twenty or forty relied on by the plaintiff. Glover v. Coleman, L. R. 10 C. P. 108. The defendant may also prove an extinguishment 142 MANUAL OF EVIDENCE IN CIVIL CASES. of the right by a substantial alteration in the original object of the grant of the way. Unity of possession extinguishes an easement. Clayton v. Corby, 2 Q. B. 813. The action cannot be brought by a reversioner unless the disturbance be of a permanent character, so as to threaten an injury to the freehold. ACTION FOR DISTURBANCE OF WATER- COURSE. The plaintiff must prove : 1. The possession of a mill, backwater or other tene- ment in respect of which the right of water is enjoyed. 2. The right to the water. 3. The disturbance. 4. The damage. A riparian proprietor has a right to a reasonable use of the water for his domestic purposes and for his cattle, without regard in the case of a deficiency to the interests of proprietors lower down the stream. Miner v. Gilmour, 12 Moo. P. C. 156. The right to use it to the prejudice of any proprietor of land above or below, by throwing back, diverting DISTURBANCE OF WATERCOURSE. 143 or polluting it, is a right for which the claimant must show a title by contract, prescription or other adequate authority. Mason v. Hill, 5 B. & Ad. 1. The owner of the banks and bed of a river (not being a navigable one) may sever them and deal with them as with any other real estate. Elliott v. Baird, 26 Chy. 549. See Attrill v. Piatt, 10 S. C. R. 425. Sections 3 to 6, inclusive, of the Act respecting Mills and Mill Dams (R. S. 0. 1887, c. 118) relate to appliances for passing timber. By section 15, when an action is brought against a mill-owner for overflow caused by his mill-dam, and it appears that the injury was caused by a dam which was built before the purchase of the land by the grantee of the Crown, and before the grant thereof to him, and that the purchaser obtained a reduction of the price of the land, or was otherwise indemnified in consequence of its being so overflowed, then at the trial these facts may be taken into consideration. By R. S. O. 1887, c. 119, An Act Respecting Water Privileges, persons desiring to enter and acquire lands for improving water privileges may do so in the mode provided by the Act. An application is made to the County Judge. 144 MANUAL OF EVIDENCE IN CIVIL CASES. By R. S. O. 1887, c. 120, An Act for Protecting the Public Interest in Rivers, Streams and Creeks, provi- sions are made allowing the construction of improve- ments for the purpose of floating down timber and for levying tolls. By R. S. O. 1887, c. 121, The Saw-logs Driving Act, provision is made for the proper management of driv- ing logs down rivers and streams. ACTION FOR INFRINGEMENT OF COPYRIGHT. R. S. C. c. 62, The Copyright Act, contains full pro- visions as to who may obtain copyright and how copy- right may be obtained. International copyright is governed by 7 and 8 Vict. c. 12. As to copyright in the colonies, see 10 and 11 Vict, c. 95. See Ontario collection of Imperial Acts before referred to. See also Smiles v. Belford, 1 A. R. 436. A plaintiff must prove, in an action for infringement of copyright, that he was entitled to copyright at the time copyright was granted, and that the requisites of INFRINGEMENT OF TRADE MARKS. 145 the Act as to deposits of copy, etc., had been complied with. By section 26 all copies and extracts certified from the Department of Agriculture shall be received in evidence without further proof and without production of the originals. As to copyright in Lectures, see Abemethy v. Hutchinson, 3 L. J. O. S. Ch. 209. Nichols v. Pitman, 50 L. T. 254. To create a perfect right under the Copyright Act there should be an assignment in writing of such parts of the book as the owner of the copyright is willing to permit his licensee to publish. The owner may disentitle himself by his conduct to an injunction. A I Jen v. Lyon, 5 O. R. G15. See The Canada Publishing Co. v. Gage, 11 S.G.R. 306 ACTION FOR INFRINGEMENT OF TRADE MARKS. The principle on which the court protects trade marks is that it will not permit a party to sell his goods as the goods of another. McCall v. Theal, 28 Chy. 48. n 146 MANUAL OF EVIDENCE IN CIVIL CASES. Trade marks are provided for by R. S. C. c. 63. The questions to be determined are : 1. Whether the defendant's mark is a colorable imi- tation of the plaintiff's mark. 2. Whether the defendants have been selling goods so marked, so as to lead purchasers to believe that they are the plaintiff's goods. Mitchell v. Henry, 15 Chy. D. 181. C. A. To found an action at law there must have been an intention to deceive and make the goods pass as those of the tradesmen who had appropriated the marks, and the questions for the jury are : Is the resemblance such as to deceive ordinary persons ? Was the mark adopted by the defendant with that intent, and in order to supplant the plaintiff's goods ? If the jury find in the affirmative, no special damage need have been proved. It is not necessary that the defendant should be aware that the mark had been appropriated by the plaintiff. Fox v. Millington, 3 Myl. & Cr. 338. It is not necessary to show that defendant's goods are inferior to the plaintiff's. Blofield v. Payne, 4 B. & Ad. 410. INFRINGEMENT OF PATENTS. 147 ACTION FOR INFRINGEMENT OF PATENTS. The issue of patents is regulated by R. S. C. c. Gl. The patent is proved by producing the patent itself. By section 50 the seal of the Patent Office is to be evidence, and all copies or extracts certified under the seal of the Patent Office shall be received in evidence without further proof and without production of the originals. The plaintiff must prove that the article was not made by him or his agents. The question of fraudu- lent intention to infringe is not material ; the acts alone are material. The plaintiff must, in the first in- stance, give some slight evidence of the nature and novelty of the invention. Prior use may avoid a patent, though not generally if the use was not secret- The plaintiff must elect whether he will proceed for damages or for an account which the Court may award. He cannot have both. Betts v. DeVitre, L. R. 6 H. L. 319. Beam v. Merner, 7 C. L. T. 234. Ball v. Crompton, 7 C. L. T. 181. DEFENCE. 1. Denial of grant. 2. Denial of infringement. 148 MANUAL OF EVIDENCE IN CIVIL CASES. A slight deviation from the process described in the specification, for the purpose of evading the patent, is a fraud. The question is whether the defendant's mode is substantially different. If a well-known equivalent, chemical or mechanical, is substituted by the defendant for part of the patent invention, it is a mere colorable variation, and there- fore an infringement. A patent for a combination of several things, old and new, is infringed by an imitation of that part which is new. 3. That the plaintiff is not the first inventor, or that the invention is not new. 4. Public user before patent granted. If the invention was publicly put in use by the in- ventor before the grant, it will avoid it, though mere knowledge and publication of it after invention but before grant will not. 5. That the specification does not truly describe the invention and how it is to be performed. Section 13 of R. S. C. c. 63 sets out the requisites for the specification. Section 28 of the same Act voids a patent if any material allegation in the petition or declaration of the applicant required by the Act in respect of such patent is untrue, or if the specifications and drawings contain more or less than is necessary for obtaining DECEIT AND MISREPRESENTATION. 149 the end for which they purport to be made, when such omission or addition is wilfully made for the purpose of misleading. If the omission or addition were involuntary, a patent may be allowed to be good to a partial extent. Sections 30, 31, ->2 and 33 deal specially with actions for infringement of patent, and provide that such actions may be brought in any Court of Record having jurisdiction to the amount of the damages claimed in the Province in which the infringement is alleged to have taken place, and which is also that one of the said Courts which holds its sittings nearest to the place of residence or business of the defendant. Power is given to issue injunctions, and where it appears that the defendant used or infringed any part of the inven- tion justly and truly specified and claimed as new, the Court may discriminate. The defendant is allowed to plead specially, as mat- ter of defence, any fact or default which, by the Act itself or by law, renders the patent void. ACTION FOR DECEIT AND MISREPRE- SENTATION. An action will lie in respect of a fraudulent repre- sentation made by the defendant to the plaintiff, in- 150 MANUAL OF EVIDENCE IN CIVIL CASES. tended to be acted on by him, and on which he has acted and thereby suffered damage. Pasley v. Freeman 3 T. R. 51. With respect to the liability of A for the fraud of another person, A is liable for the fraudulent repre- sentations made by his agent B in the course of carry- ing on A's business for his benefit. A person is responsible for a false representation made by him to another on which a third person acts, provided that the representation were made with the direct intent that it should be acted on by such third person in the manner that occasions the injury, and that the injury be the immediate consequence of the representation. Garland v. Thompson, 9 O. R. 376. The plaintiff must prove actual damage to himself in order to maintain the action. Hyde v. Buhner, 18 L. T. N. C. 293. ACTION FOR DEFAMATION. Scott v. Grerar, 14 A. R. 152. Wells v. Lindop, 14 O. R. 275. Porter v. McMahon, 7 C. L. T. 250. DEFAMATION. 151 Regina v. Woodworth, 7 C. L. T. 246. Coivan v. Landell, 7 C. L. T. 71. Gorst v. Barr, 7 C. L. T. 225. Central Bank v. Osborne, 12 P. R. 160. Jl/cZa?/ v. Bruce, 14 0. R. 398. There is a well-known distinction between written and spoken slander. False defamatory words, if spoken, constitute a slander ; if written and published, a libel. Words which produce any perceptible injury to the reputation of another 'are called "defamatory." If false, they are actionable. In any given case the fact that the words employed by the defendant have perceptibly injured the plain- tiff's reputation may be either 1. Presumed from the nature of the words them- selves, or 2. Proved by evidence of their consequences. It will be presumed from the nature of the words themselves, (a) If the words, being written and published, or printed and published, are in any way disparaging to the plaintiff, or tend to bring him into ridicule and contempt. (b) If the words, being spoken, 1. Charge the plaintiff with the commission of some indictable offence. 152 MANUAL OF EVIDENCE IN CIVIL CASES. 2. Impute to the plaintiff a contagious disorder tend- ing to exclude him from society. 3. Are spoken of the plaintiff in the way of his pro- fession or trade, or disparage him in an office of public trust. In all these cases the words are said to be action- able per se, because on the face of them they clearly must have injured the plaintiff's reputation. But in all cases of spoken words the fact that the plaintiff's reputation has. been injured thereby must be proved at the trial by evidence of the consequences that directly resulted from their utterance. Such evi- dence is called "evidence of special damage," as dis- tinguished from that general damage which the law assumes, without express proof to follow from the em- ployment of words actionable per se. The intention or motive with which the words were spoken is, as a rule, immaterial. Sometimes it is a man's duty to speak fully and freely, and without thought or fear of the conse- quences ; and then the above rule does not apply. The words are privileged by reason of the occasion on which they were employed, and no action lies therefor unless it can be proved that the defendant was actuated by some special spite, or some wicked or malicious motive. In all other cases malice in fact need not be DEFAMATION. 153 proved at the trial. The words are actionable if false and defamatory, although spoken or published acci- dentally or inadvertently, or with an honest belief in their truth. The person defamed has a civil remedy to recover damages, and in some cases he can also proceed crim- inally by way of information or indictment. There is no method of anticipating or preventing a libel or a slander. There is no censorship of the press. Any man is free to speak or to write and publish whatever he pleases of another, subject only to this : that he must take the consequences should a jury deem his words defamatory. This is what is meant by the " liberty of the press." No injunction can be obtained to prohibit the pub- lication or republication of any libel, or to restrain its sale. The Crown has no authority to restrain the press ; and the Courts, whether of law or equity, can- not till after verdict issue any injunction in respect of any libels, save such as are contempts of Court. Saxby v. Easterbrook, 3 C. P. D. 339. The question in each case is, Has the reputation of this individual been appreciably impaired in conse- quence of the words employed by the defendant ? No general rule can be laid down beforehand what 154 MANUAL OF EVIDENCE IN CIVIL CASES. words are defamatory and what are not. The injury to the reputation is the gist of the action. In libel the words need not necessarily impute disgraceful conduct to the plaintiff; it is sufficient if they render him contemptible or ridiculous. Everyone has a right to comment on matters of public interest and general concern, provided he does so fairly and with an honest purpose. It is often said that such criticism is privileged. This does not mean that the words are " privileged by reason of the occasion " in the strict legal sense of the term. The defence really is that the words are not defamatory — that criticism is no libel. What are matters of public interest ? The public conduct of every public man. All political, legal and ecclesiastical matters, therefore, are matters of public concern. With regard to construction the question is, How would ordinary men, previously unacquainted with the matter, fairly understand the words ? This is clearly a question for the jury, and therefore it is expressly provided (32 Geo. III. c. 60, Fox's Libel Act) that in all criminal actions for libel the jury are to decide the question of libel or no libel, subject to the direction of the Judge. In civil proceedings for libel the practice is the same, save that here, if the DEFAMATION. 155 Judge thinks that the words cannot possibly bear a defamatory meaning, he may enter a non-suit. If the Judge considers that the words are reasonably sus- ceptible of a defamatory meaning, as well as an inno- cent one, then it will be a question for the jury. The Judo-e should not lay down as a matter of law that the publication complained of is or is not a libel. The proper course is for the Judge to define what is a libel in point of law and leave it to the jury to say whether the publication in question falls within that definition. So, too, in slander the Judge usually decides whether the words are or are not actionable per se, and whether the special damage assigned is or is not too remote. If the defendant's words cannot reasonably bear the meaning attached to them by the inuendo, and the Judge thinks the words without that meaning are not actionable, he will stop the case ; but where there is any reasonable doubt as to the true construction of the words, the Judge leaves the question to the jury. The inuendo is the statement by the plaintiff of the construction he puts upon the words himself, and which he endeavours to induce the jury to adopt at the trial. If, in their ordinary English meaning, the words used would be intelligible, facts must be given in evi- dence to show that they may have been used in a par- ticular sense on this particular occasion. After that 156 MANUAL OF EVIDENCE IN CIVIL CASES. has been done a bystander may be asked, " What did you understand by the expression used ?" — not before. If the words are local, or slang, or cant terms, etc., evi- dence is admissible to explain their meaning (provided such meaning has been properly alleged in the state- ment of claim). JDaines v. Hartley, 3 Exch. 200. Where the meaning of the defendant's words is clear or has been ascertained, the next question is, Was the imputation sufficiently definite to injure the plaintiff's reputation ? Is it clear that it was the plaintiff to whom he referred ? Unless these questions can be answered in the affirmative no action lies. Publication is the communication of the defamatory words to some third person. It is essential to the plaintiff's case that the defendant's words should be expressed. It is no publication when the words are only communicated to the person defamed; for that cannot injure his reputation. There must be a com- munication by the defendant to some third person other than the plaintiff. The plaintiff must prove a publication by the defendant in fact. That the third person had the opportunity of reading the libel is not sufficient, if the jury are satisfied that he did not in fact avail himself thereof. Though composing a libel without publishing it is DEFAMATION. 157 not actionable, merely publishing it without composing it is actionable. So again, every sale or delivery of a written or printed copy of a libel is a fresh publication, and every person who sells or gives away a written or printed copy of a libel may be made liable, unless he can satisfy the jury that he was ignorant of the contents. There is a great difference between libel and slander. The actual publisher of a libel may be an innocent messenger ; whereas in every case of a republication of a slander the publisher acts consciously and volun- tarily — the repetition is his own act. Therefore if A slanders B, A is only liable for the damages which result directly from his own act. The truth of any defamatory words is, if pleaded, a complete defence in any action of libel or slander (although alone it is not a defence in t a criminal trial), The onus of proving that the words are true lies on the defendant. A justification must always be specially pleaded. In criminal matters the defendant must also prove that it was for the public benefit that the matters charged should be published. Before 1843 (G and 7 Vict. c. 96) the truth of the libel was no defence to the indictment. The maxim prevailed, " The greater the truth the m-eater the libel." In Rome the truth of the 158 MANUAL OF EVIDENCE IN CIVIL CASES. « libel was undoubtedly a defence both to criminal and civil proceedings. (See Horace Satires, Bk. II. 1, 83, 5.) It is a defence to an action for libel or slander to prove that the circumstances under which the defama- tory words were written or spoken afforded an excuse for their employment. And this is so even though the words be proved or admitted to be false. The occasion is said to be privileged. The utterance is excused for the sake of common convenience and for the welfare of society. There are two kinds of privileged occa- sions — 1. Absolutely privileged, such as words spoken in Parliament. 2. Qualified. The course of procedure at the trial is as follows : The plaintiff is always entitled to begin, even where the onus of proof lies on the defendant. The plaintiff must prove, where necessary, his special character. He must next prove that the defendant published the libel or spoke the slanderous words to some third person. The libel itself must be produced at the trial. The jury are entitled in all cases to see it. The defendant is entitled to have the whole of it read. Whether a communication is or is not privileged is a question for the Judge alone. If there is any doubt as to the circumstances the jury finds what they were, DEFAMATION. 1 59 and then, on their findings, the Judge decides whether the occasion was privileged or not. If the occasion was not privileged, and the words are defamatory and false, the Judge will direct a verdict for the plaintiff. If the occasion was absolutely privileged, judgment will be given for the defendant. If, however, the Judge decides that the occasion was one of qualified privilege only, the plaintiff must then, if he can, give evidence of actual malice on the part of the defendant. If he gives no such evidence, it is the duty of the Judge to nonsuit him or to direct a verdict for the defendant. If he does give any evidence of malice sufficient to go to the jury, then it is a question for the jury whether or not the defendant was actuated by malicious motives. Malice is defined as any indi- rect and wicked motive which induces the defendant to defame the plaintiff. If malice be proved, the privi- lege attaching to the occasion is lost at once. In cases of slander the onty way to prove publica- tion is by calling those who heard the defendant speak the words. Whenever the words used are not well known and perfectly intelligible English, but are foreign, local, technical, provincial or obsolete expressions, parol evi- dence is admissible to explain their meaning, provided such meaning has been properly alleged in the state- ment of claim by an inuendo. 160 MANUAL OF EVIDENCE IN CIVIL CASES. If the libel does not name the plaintiff, there may be need of some evidence to show who was meant. The plaintiff may give evidence of all surrounding cir- cumstances, i.e., the cause, the occasion of publication, later statements made by the defendant, and other extraneous facts which will explain and point the allusion. The plaintiff may also call at the trial his friends or others acquainted with the circumstances, to state that on reading the libel they at once concluded that it was aimed at the plaintiff. It is not enough for the plaintiff to prove his special character, and that the words refer to himself; he must further prove that the words refer to himself in that special charac- ter, if they be not otherwise actionable. The Judge must decide whether the occasion is or is not privileged, and also whether such privilege is abso- lute or qualified. Malice may be proved either by extrinsic evidence of personal ill-feeling or by intrinsic evidence, such as the exaggerated language of the libel, the mode and extent of publication, and other matters in excess of the privilege. If the defendant has pleaded a justification, the plaintiff's counsel may, if he chooses, rebut the justifi- cation, or he may leave such proof till the reply ; but he cannot call some evidence to rebut the justification and more afterwards, thus dividing his proof. DEFAMATION. 161 The plaintiff need give no evidence of any actual damage where the words are actionable per se. He can nevertheless recover substantial damages. But if the plaintiff has suffered any special damage, this should be pleaded and proved. It cannot be proved unless it has been pleaded. Where the words are not action- able per se, the plaintiff cannot prove a general loss of custom ; he must call individual customers and friends, and ask them why they have ceased to deal at his shop or to entertain him. DEFENCE. The defendant's counsel often prefers not to call any witnesses, so as to have the last word with the jury. He may rely instead upon the cross-examina- tion of the plaintiff's witnesses. These may be cross- examined not only as to the facts of the case, but also as to the credit, i.e., as to matters not material to the issue, with a view of shaking their whole testimony ; but the defendant must take the witness' answer — he cannot call any evidence to contradict it, except on the point of a previous conviction. The defendant must be careful not to increase by such cross-examination the amount of damages that may be given against him. 12 162 MANUAL OF EVIDENCE IN CIVIL CASES. The defendant may show that the plaintiff's trade is illegal. The defendant may show, in mitigation of damages, that he published the libel innocently, without any knowledge of its contents. He may also give evidence of antecedent conversa- tions and transactions, or other circumstances well known to the bystanders, which show that the words were not used in their ordinary signification. The defendant may urge that the occasion of publication was privileged. The defendant may also prove the justification. Strict proof must be given that the whole charge made is true in every particular. Where no justification is pleaded the defendant can give no evidence of the truth of his words, not even in mitigation of damages. The Ontario Act relating to libel and slander is R. S. O. 1887, c. 57. The Dominion Act respecting libel is R. S. C. c. 163. ACTION FOR MALICIOUS PROSECUTION. The plaintiff must prove : 1. The prosecution of the plaintiff. 2. Its determination. MALICIOUS PROSECUTION. 163 3. That the defendant was the prosecutor. 4. His malice and want of probable cause. 5. The damages sustained. The fact of the prosecution, where instituted in the Superior Courts or Sessions, is usually proved by the production of the record or an examined copy. By R. S. O. 1887, c. 61, s. 23, a certified copy of a record is evidence of the record. The proper evidence to establish the fact that the defendant was prosecutor is : that the defendant em- ployed a solicitor or agent to conduct the prosecution ; that he gave instructions concerning it, paid the ex- penses, procured the attendance of witnesses, or was otherwise active in forwarding the prosecution. It is essential that the plaintiff should give some evidence of the defendant's malice. If the plaintiff proves want of probable cause, malice may be inferred ; but for this purpose the want of probable cause must be proved to the satisfaction of the jury. Want of probable cause is not conclusive evidence of malice. Winjield v. Kean, 1 O. R. 193. The onus of proving the want of reasonable and probable cause, and of proving the existence of such facts as are evidence of such want, lies on the plaintiff. " Reasonable and probable cause is for the Judge." 164 MANUAL OF EVIDENCE IN CIVIL CASES. The jury may give damages for the loss of reputa- tion, the imprisonment (if any has taken place), and the expenses incurred by the plaintiff in making his defence. DEFENCE. The defendant may not give evidence of the plain- tiff's bad character. ACTION FOR MALICIOUS ARREST AND ABUSE OF CIVIL PROCESS. In an action for malicious arrest the plaintiff must prove : 1. The affidavit for the Judge's order to arrest. 2. Its falsehood. 3. The order for the arrest. 4. The arrest under it. 5. The rescission of the order or the determination of the suit. 6. The defendant's malice and want of reasonable and probable cause. 7. The damage. Colbert v. Hicks, 5 A. R. 571. As to actions against magistrates and other officers, see under " Actions for False Imprisonment," post. WRONGFUL DISTRESS. 165 The present Ontario Act respecting arrest and im- prisonment for debt is R. S. 0. 1887, c. 67. ACTION FOR WRONGFUL DISTRESS. EXCESSIVE DISTRESS. Founded on 52 Henry III. c. 4, which enacts that " distress shall be reasonable and not too great, and he that taketh great and unreasonable distresses shall be grievously amerced for the excess of such distresses." The plaintiff must prove : 1. The tenancy of the defendant at a certain rent. 2. The rent claimed to be due. 3. The taking a distress of goods of much greater value than the rent in arrear and charges of the dis- tress. 4. The damages. The simple fact of making a distress accompanied by an untrue claim of more rent than is due, and sell- ing the goods under such claim, is not actionable unless some special damage be proved, or unless it be shown that a larger quantity of goods has been sold than was sufficient to satisfy the rent actually in arrear. Tancred v. Leyland, 16 Q. B. 669. 166 MANUAL OF EVIDENCE IN CIVIL CASES. In action for excessive distress, the plaintiff may recover though no special damage be proved. Black v. Coleman, 29 U. C. C. P. 507. The tenancy must be proved by production and proof of the lease, or by the defendant's receipts for rent or notices to quit, or other admission by him of the tenancy, or by oral evidence of the contract when there is none in writing. These preliminary statements are, however, usually admitted by the bailiff's notice^ of distress or other proceedings. The plaintiff must prove that his goods were dis- trained, but it is not necessary to prove that they were sold or taken away ; the seizure as a distress is suffi- cient. The fact of the distress may be proved by calling the bailiff or other person who made the distress, who will also prove his authority from the defendant. If this evidence cannot be procured, the plaintiff should serve the defendant with notice to produce the war- rant of distress and give secondary evidence of it, or should connect the act of the bailiff with the defendant by some other evidence. When a landlord is about to make a distress he is not bound to calculate very nicely the value of the WRONGFUL DISTRESS. 167 property seized, but he must take care that some pro- portion is kept between that and the sum for which he is entitled to take it. In order to establish the excess the plaintiff must be prepared with proof of the value of the goods seized. The question of excess is for the jury. Smith v. Ashforth, 29 L. J., Ex. 259. DEFENCE. Not guilty, by statute 11 George II. c. 19, sees. 19, 21. The defendant may give evidence that the distress was not excessive, or that the chattel distrained was entire, and that there was no other distress ; but this statute does not apply to an illegal distress. Field v. Mitchell, 6 Esp. 71. Where a party distrained as landlord on goods which, as a matter of fact, had by subsequent agree- ment between himself and the tenant before the distress became his absolutely. Held, that he might justify the taking on this latter ground. Bell v. Irish, 45 U. C. R. 170. Shidtz v. Reddick,^ U. C. R. 155. IRREGULAR DISTRESS. At common law goods distrained for rent were 168 MANUAL OF EVIDENCE IN CIVIL CASES. merely a pledge, and could not be sold. 2 William and Mary, c. 5, gave the landlord the power of selling the goods, subject to the provisions of that Act, which must be strictly complied with. If there was any irregularity in making or treating the distress, the landlord was at common law liable as a trespasser ab initio. This rule was altered, in the case of a distress for rent clue, by 11 George II. c. 19, s. 19, which enacts that a party aggrieved by an irregu- larity can recover satisfaction for the special damage sustained thereby. In an action for selling goods distrained for rent without appraisement the measure of damages is the real value of the goods sold minus the rent due. Knight v. Egerton, 7 Ex. 407. Schultz v. Eeddick, 43 U. C. R 155. DEFENCE. By 11 George II. c. 19, s. 20, it is provided that the tenant shall not recover for any unlawful act or irregu- larity if tender of amends has been made by the party distraining before action brought. ILLEGAL DISTRESS. Where a distress is made by a stranger, or by a person who has no right to distrain, an action for trespass or conversion will lie. WRONGFUL DISTRESS. 169 Where a distress is made by a landlord (1) no rent being due,* or (2) after a tender of the rent, or (3) after a formal distress, or (4) if the distress be illegal owing to the time, place or manner of making it, or from the nature of the goods taken, the proceeding is illegal ab initio, and an action for trespass or conversion, or of replevin, may be maintained. An action for distraining for more rent than is due cannot be maintained without a tender of the sum which is really due. Owen v. Taylor, 39 U. C. R. 358. In the case of an illegal distress the measure of damages is usually the value of the goods seized, and no deduction can be allowed for any rent due. Attach v. Bramwell, 3 B. & S. 520. DEFENCE. The defence of not guilty by statute above referred to (11 George II. c. 19) lets in evidence of everything that might lawfully be done in order to make the dis- tress. • Where a landlord distrains and sells where no rent is due, hy 2 W & M. Sess. 1 c. 5 s. 4. the plaint iff shall recover double the value of the goods distrained. See McCallum v. Snyder, 6 U. C. L. J. 187. Hope v. White, 17 U. C. C. P. 52. 170 MANUAL OF EVIDENCE IN CIVIL CASES. R. S. 0. 1887, c. 143, An Act Respecting the Law of Landlord and Tenant, contains most important pro- visions as to exemptions from distress. Section 27 enacts that goods exempt from seizure under execution are not liable to seizure by distress. By section 28 goods on the premises not the property of the tenant are to be exempt under certain restric- tions. Section 29 gives the tenant a right of set-off against the rent due, a debt due to him by the landlord. By section 30 a tenant who is in default for non- payment of rent, and claims the benefit of the exemp- tion under the Act, must give up possession of the premises. By section 31, the common law, strict demand of rent is dispensed with when the landlord is entitled to re-enter. Unless the premises are vacant, the demand must be made fifteen days at least before entry. By section 32, when growing or standing crops, which may be seized and sold under execution, are seized for rent, the landlord need not reap, thresh, gather, or otherwise market such crop, but may adver- tise and sell them like other goods. Sections 27, 28, 29, 30 and 34 apply only to tenancies created on or after the 1st of October, 1887. The protection of goods of lodgers from distress is provided for by section 44. SEDUCTION. 171 The boarder or lodger may serve on the landlord, or on the person making the distress, a declaration that the immediate tenant has no property in the goods distrained, and that such goods are the property of the lodger, also setting but what amount is due for rent or board from the lodger to the immediate tenant. If the landlord, after receiving the declaration and the rent due by the lodger, proceeds with the distress against the lodger's goods, he is liable to an action for illegal distress. ACTION FOR SEDUCTION. These actions are not cognizable by County Courts (R. S. O. 1887, c. 47, s. 18) or by Division Courts (R. S. O. c. 51, s. 69). By R. S. O. 1887, c. 58, the following provisions are made : Section 1. — The father, or, in case of his death, the mother, whether she remains a widow or remarries, of any unmarried female who has been seduced, and for whose seduction the father or mother could maintain an action in case such unmarried female were at the time dwelling under his or her protection, may main- tain an action for the seduction, notwithstanding such unmarried female was at the time of her seduction 172 MANUAL OF EVIDENCE IN CIVIL CASES. serving or residing with another person upon hire or otherwise. By section 2, upon the trial of an action for seduc- tion brought by the father or mother, it shall not be necessary to prove service performed by the person seduced, but the same shall in all cases be presumed, and no proof shall be received to the contrary. In case the father or mother of the female seduced had, before the seduction, abandoned her and refused to provide for and maintain her as an inmate, then any other person who might at common law have maintained an action for the seduction may maintain such action. By section 3 any person other than the father or mother who could at common law have maintained an action for an unmarried female may still maintain such action if the father or mother be not resident in Ontario at the time of the birth of the child which may be born in consequence of the seduction, or, being resident in Ontario, does not bring an action for the seduction within six months from the birth of the child. Subject to the above Act the plaintiff must prove : 1. That the party seduced was in the plaintiff's ser- vice. 2. The seduction. ASSAULT AND BATTERY. 173 • The plaintiff' must prove the defendant to have been the father of the child ; mere proof of seduction by him will not be sufficient. Kimball v. Smith, -5 U. C. R. 32. 3. The subsequent loss of service. The plaintiff cannot give evidence of the daughter's good character, except in answer to evidence of yeneral bad character given on the other side. Bamfield v. Massey, 1 Campbell 4 GO. DEFENCE. The defendant may show that he is not the father of the child. In mitigation of damages the defendant may show the loose character of the girl. Evidence as to defendant's means is inadmissible. Ferguson v. Veitch 45 U. C. R. 160. ACTION FOR ASSAULT AND BATTERY. An assault or battery must be an act done against the will of the party assaulted. The circumstances of time and place, when and where the assault was given, require different damages. 174 MANUAL OF EVIDENCE IN CIVIL CASES. DEFENCE. • There is no assault if the plaintiff consented to the defendant's act, nor if the injury is the result entirely of a superior agency and is unavoidable, and the con- duct of the defendant entirely without fault. The following are the main defences in this action : 1. That the plaintiff made the first assault, and the defendant's battery was in self-defence. 2. That the assault was committed in defence of possession. 8. Reasonable chastisement. 4. Process of law. 5. Conviction or certificate of dismissal under the Summary Convictions Act, R. S. G. c. 178, s. 75. ACTION FOR FALSE IMPRISONMENT. The plaintiff must prove : 1. The fact of imprisonment. 2. That it was caused by the defendant. 3. The special damage, if any. In actions against Magistrates, Judges, etc., the rule is, that if they do any act beyond the limit of their authority they thereby subject themselves to an action of trespass ; but if the act done be within the limit of FALSE IMPRISONMENT. 175 their authority, although it may be done through an erroneous or mistaken judgment, they are not thereby liable to such an action. Doswell v. Impcy, 1 B. & C. 1G9. Even where they exceed their jurisdiction they are are not liable unless they know or have the means of knowing the defect of jurisdiction. Actions against Justices of the Peace cannot be brought in the County Court if the objection is taken (R. S. O. 1887, c. 47, s. 18), nor in a Division Court (R. S. O. 1887, c. 51, s. 69). See also R. S. O. 1887, c. 73, s. 15. R. S. O. 1887, c. 73, An Act to Protect Justices of the Peace and others from Vexatious Actions, provides as follows : Section 1. — In an action for things done within the jurisdiction of a Justice of the Peace or a Police Magis- trate, malice and want of probable cause must be alleged and proved. By section 20, if at the trial of the action the plain- tiff does not prove : 1. That the action was brought within six months next after the act complained of was committed ; 2. That notice of action in writing was given one month before the action was commenced ; 176 MANUAL OF EVIDENCE IN CIVIL CASES. 3. The cause of action stated in the notice ; 4. That the cause of action arose in the county or district the county town of which is named in the statement of claim as the place of trial ; 5. Where the plaintiff sues in a County, District or Division Court, that the cause of action arose within the county, district or united counties for which such Court is holden ; Then and in such case the plaintiff shall be non- suited or a verdict given for the defendant. By section 21, if the plaintiff is proved to have been actually guilty of the offence of which he was con- victed, or that he was liable by law to pay the sum he was ordered to pay, or that he has undergone no greater punishment than the legal punishment, he is entitled only to three cents damages and no costs of action, even if he proves his cause of action in other respects. By section 23, costs are allowed as between solicitor and client to a successful plaintiff or defendant in this action. By R. S. 0. 1887, c. 16, s. 30, every bailiff or con- stable, and by section 29 every coroner or elisor, guilty of misconduct in execution process are liable to the party aggrieved in damages. If a private person falsely and maliciously, and FALSE IMPRISONMENT. 177 without any probable cause,, puts the law in motion to cause the apprehension of another, it is properly the subject of an action for malicious prosecution. DEFENCE. The defendant may prove in justification that a felony has actually been committed (but not a misde- meanor, except in cases of breach of the peace com- mitted in the defendant's presence, with a danger of a renewal of the breach), and that there is reasonable and probable cause to suspect that the plaintiff com- mitted a felony. A constable having reasonable cause to suspect that a felony has been committed is justified in arresting the party suspected, though it afterwards appear that no felony has been committed. It is otherwise in the case of misdemeanor without a warrant, except in the case of a breach of the peace committed in his pres- ence, or in the presence of someone else who gives the person committing into custody, there being a danger of renewal ; but if there is no such danger, and the arrest is not the result of a continued pursuit, the arrest is unlawful. He is in no case justified in hand- cuffing a prisoner, unless it be necessary to prevent an escape, or an escape be attempted. Wright v. Court, 4 B. & C._596. 13 178 MANUAL OF EVIDENCE IN CIVIL CASES. By 24 Geo. II. c. 44, s. 8, no action shall be brought against any constable for anything done under a war- rant unless commenced within six calendar months after the act committed. In an action for a false imprisonment the six months are to be reckoned exclusive of the day of the dis- charge of the prisoner. Hardy v. Ryle, 9 B. & C. 603. By 21 Jac. I. c. 21, s. 3, an action for false im- prisonment must be brought within four years after such cause of action. By the last-mentioned statute, 21 Jac. I. c. 12, any action brought against any "mayor or bailiff of city or town corporate, head borough, portreeve constable, tithing man, churchwarden or overseer of the poor," for any matter done by virtue of their office, such action must be brought in the county where the offence was committed. The defendant may plead the general issue and give his special matter in evidence. Evidence may be given in mitigation of damages where such evidence tends to show reasonable grounds of suspicion. TRESPASS TO PERSONAL PROPERTY. 179 ACTION FOR TRESPASS TO PERSONAL PROPERTY. This action includes every direct forcible injury or act disturbing the possession of goods without the consent of the owner, however slight or temporary the act may be. Any possession is sufficient as against the third per- son who has no title at all. Property is sufficient without possession, for the right of property draws to it the possession. Balme v. Hutton, 9 Bing. 471. Where a mortgagor of chattels is not to enter till default, he cannot bring trespass against the third party before such entry. Wheeler v. Monte/lore, 2 Q. B. 133. In an action for taking goods under a legal process wrongfully issued, the plaintiff is entitled to at least nominal damages, or to such substantial damages as the jury think adequate, although special damage is alleged but not proved. Doss v. Doss, 14 L. T., N. S. 646. 180 MANUAL OF EVIDENCE IN CIVIL CASES. ACTION FOR TRESPASS TO LAND. In order to maintain this action the plaintiff ought to have possession, actual or constructive. Topham v. Dent, 6 Bing. 516. An interest in the soil, without an exclusive use of it, is sufficient to support trespass. On the other hand, exclusive possession, without property or interest in the soil, is also sufficient for this action. It must appear that the plaintiff was in the actual and immediate possession of the locus in quo when the trespass was committed. There are some cases in which, by the doctrine of relation, the plaintiff is allowed to recover for trespass committed at a period when he was not in fact in possession ; thus the entry of an heir relates back to the time of the right of entry, so as to support an action against a wrongdoer for a trespass committed after the accrual of the right and before actual entry. Barnett v. Earl of Guildford, 11 Ex. 19. As to damages, the jury may consider not only the pecuniary damage sustained, but also the intention with which the act has been done, whether for insult or injury. Sears v. Lyons, 2 Stark. 318. MESNE PROFITS. 1M DEFENCE. Not guilty by statute. Denial of property or possession in plaintiff. De- fendant may set up title in himself or a third person, by whose command he entered. In this defence the issue is upon the defendant. Disclaimer and tender of amends. This is allowed by 21 Jac. I. c. 16, s. 5. Where the defendant sets up a justification, it is enough to prove a justification which covers the trespass, although it does not cover mere matters of aggravation. The defendant may set up also a right of way or a license. The license may be either an express one or one implied from circumstances. ACTION FOR MESNE PROFITS. A plaintiff can now include a claim for mesne profits with an action for recovery of land. Hence the action for mesne profits seldom arises alone. It may occur, however, and is therefore set out. The plaintiff must prove : 1. His title. 2. His re-entry. 182 MANUAL OF EVIDENCE IN CIVIL CASES. 3. The defendant's liability by reason of possession. 4. The amount of damage. This action is an instance of the application of the doctrine of relation. As to damages, the jury are not confined to the mere rent or annual value of the premises, but may give such extra damages as they think tit as a com- pensation for plaintiff's trouble, etc. Other special damage may be recovered if laid as deterioration of the premises by waste or mismanage- ment by the defendant. As to claims for mesne profits in an action for dower. See Ryan v. Fish, 4 O. R. 335. ACTION FOR CONVERSION OF GOODS. This action is equivalent to the old action of trover. To maintain the action there must be an act of con- version such as must amount to a deprivation of the possession to such an extent as to be inconsistent with the right of the owner and evidence an intention to deprive him of that right. The old learning on the subject of " conversion " need not be imported into the system introduced by the Judicature Act, which provides for redress in case CONVERSION OF GOODS. 183 the plaintiffs goods are wrongfully detained, or in case he is wrongfully deprived of them. In all such cases the real question is whether there has been such an unauthorized dealing with the plaintiff's property as has caused him damage ; and, if so, to what extent has he sustained damage. Stimson v. Block, 11 O. R. 96. The above remarks do not preclude the application of the following rules : As to the evidence, the plaintiff must prove : 1. A general or special property in the goods, or, as against a wrongdoer, mere possession of them. 2. An actual or constructive possession or right of possession. 3. A wrongful conversion by the defendant. 4. The value or damages. The damages are the value of the thing converted. The evidence for the plaintiff will depend upon the nature of his particular title. Where there is both a general and a special owner, but the general ow r ner has not transferred his right to the possession, he may still maintain this action. Thus, where he has deliv- ered the goods to a carrier or other bailee, and so parted with the actual possession, he may still main- tain trover for a conversion by a stranger ; for the 184 MANUAL OF EVIDENCE IN CIVIL CASES. owner retains the possession in law as against a wrong- doer, and the carrier or other bailee is only his servant. Gordon v. Harper, 7 T. R. 42. With regard to the time at which the property- passes at a sale of goods, where goods are sold and nothing is said as to the time of delivery or of pay- ment, and everything the seller has to do with them is complete, the property rests in the buyer, so as to subject him to the risk of any accident which may happen to the goods. Tarling v. Baxter, 6 B. & C. 360. The seller is liable to deliver them whenever de- manded upon payment of the price, but the buyer has no right to have possession of the goods till he pays the price. If the goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of possession and the right of property vest at once in him ; 'but his right of pos- session is not absolute : it is liable to be defeated if he becomes insolvent before he obtains possession. Bloxam v. Sanders, 4 B. & C. 948. In the case of the sale of unascertained goods, until both parties have assented to the appropriation of CONVERSION OF GOODS. 185 some particular goods to satisfy the contract, the prop- erty in them does not pass. Dixon v. Yates, 5 B. & Ad. 313. But where an appropriation has been made by one party, in pursuance of an authority to make the elec- tion conferred by agreement, it becomes final and irre- vocably binding on both parties. Aldridge v. Johnson, 7 E. & B. 885. In general, when goods are ordered to be made, so long as the order is not executed, but only in course of execution, no property passes to the person for whom they are to be made. Mucklow v. Mangles, 1 Taunt. 318. In order to pass the property there must in such cases be a completion and an acceptance, or at least an approval l>y the buyer. Atkinson v. Bell, 8 B. & C. 277. By a gift of goods the property does not pass unless the gift be by deed or instrument of gift, or be exe- cuted by an actual delivery of the thing given to the donee. Irons v. Smallpiece, 2 B. & A. 551. A grant of goods not in existence, or not belonging 186 MANUAL OF EVIDENCE IN CIVIL CASES. to the grantor at the time of executing the deed of grant, was void at law until the grantor ratified the grant by some act done by him with that view after he had acquired the property therein. Lunn v. Thornton, 1 C. B. 379. In equity, however, a contract which engaged to transfer to a purchaser or mortgagee property of which the vendor or mortgagor was not possessed at the time, transferred the beneficial interest immediately on the property being acquired by him. Holroyd v. Marshall, 10 H. L. C. 191. On this point equity now rules under the Judica- ture Act. By a fraudulent or illegal sale or transfer of goods no property passes. Wilkinson v. King, 2 Camp. 335. But when a vendee obtains possession of a chattel with the intention by the vendor to transfer both the property and the possession, although the vendee has committed a false and fraudulent representation in order to effect the contract or obtain the possession, the property vests in the vendee until the vendor has done some act to disaffirm the transaction. Kingsford v. Merry, 11 Ex. 577. CONVERSION OF GOODS. 187 By the common law an agent entrusted with goods cannot convey to a stranger a better right than he himself possesses. By R. S. O. 1887.. c. 128, An Act Respecting Con- tracts in Relation to Goods Entrusted to Agents, sec. 5, any person may contract for the purchase of goods with any agent entrusted with the possession thereof, or to whom the same may be consigned, and may receive and pay for the same to such agent, and such contract and payment shall be binding upon the owner of the goods, notwithstanding the purchaser has notice that he is contracting only with an agent. Any agent entrusted with the possession of goods, or of the documents of title thereto, is deemed the owner thereof for the following purposes : 1. He can make a sale or contract, as just mentioned. 2. To entitle the consignee of goods consigned by such agent to a lien on the goods for any advance, as if the a^ent were the owner of the goods. 3. To give validity to any pledge, lien or security bona fide made with such agent on the security of the goods, or for a continuing advance. 4. To make a contract binding upon the owner of the goods, although the person claiming lien knew that he was dealing with an agent. In all cases contracts must be bona fide. The con- 188 MANUAL OF EVIDENCE IN CIVIL CASES. viction of any agent for a contravention of the Lar- ceny Act, R. S. C. c. 164, is not admissible in evidence in any action against him. An antecedent debt does not authorize a lien under the Act. If stolen goods are sold the property is divested out of the owner. By R. S. O. 1887, c. 69, a summary mode of recovery is provided of stolen property after trial. The property in a bank note, like that in cash, passes by delivery, and the party taking it bona fide and for value is entitled at common law to retain it as against the former owner from whom it has been stolen. MiUer y Racf} j Burr> 452i The same rule applies to negotiable instruments. At common law the goods of an execution debtor are bound by a writ of execution from the time of its teste ; but by the Statute of Frauds, 29 Car. II. c. 3, s. 16, the goods are only bound from the time of the delivery of the writ to the Sheriff. If the plaintiff wishes to claim by virtue of a special property, he must prove it. Where the action is brought against a mere wrong- doer, it will be sufficient for the plaintiff to show that he was in possession of the property. Jeffries v. 0. W. Ry. Co., 5 E. & B. 802. CONVERSION OF GOODS. 189 The plaintiff must show that he has a right to the immediate possession of the goods in order to recover in this action. The reversioner or person entitled to the freehold of lands on lease may sue in this action for fixtures after severance from the demised land. The ffist of the action is the wrongful conversion of the plaintiff's goods by the defendant. A conversion may be proved either by evidence of a direct act of conversion, or by showing a demand of the goods by the plaintiff and a refusal by the defendant to deliver them, which is evidence of one. Burroughes v. Bayne, 5 H. & N. 296. An unlawful taking of goods out of the possession of the owner is itself a conversion, and not mere evi- dence of it. A conversion is described as where a man does an unauthorized act which deprives another of his property permanently or for an indefinite time. Hiort v. Bott, L. R. 9 Ex. 89. A person in the lawful possession of goods may be guilty of a conversion of them by dealing with them contrary to the orders of the owner. In order to constitute an actual conversion it is not necessary that the party should deal with the goods as his own. It is enough if it be a dealing for a third person adversely to the true owner. 190 MANUAL OF EVIDENCE IN CIVIL CASES. A wrongful sale of goods is a conversion, and no demand is necessary. Edwards v. Hooper, 11 M. & W. 363. A demand of the goods by the plaintiff, and a refusal to deliver them by the defendant, he having the power to deliver them, are evidence of a conversion ; but, being only presumptive evidence of a conversion, it may be rebutted by evidence to the contrary. A refusal must be proved ; mere excuses for not de- livering the goods will not be sufficient. Severin v. Keppell, 4 Esp. 156. In order to render a demand and refusal evidence of conversion, it must appear that at the time of the demand made the party had it in his power to deliver up or retain the article demanded. Smith v. Young, 1 Camp. 441. A servant is liable in an action of trover for conver- sion, though for his master's benefit. Stephens v. Elwall, 4 M. & S. 259. Trover cannot in general be maintained by one joint tenant in common or parcener against the others. Jacobs v. Seward, L. R. 5 H. L. 464. In actions for conversion the general rule as to CONVERSION OF GOODS. 191 damages is : the damages shall be the value of the thing converted. Finch v. Blount, 7 C. & P. 478. DEFENCE. A lien on the goods, either general or particular, and a right to the possession of them until the claim is satisfied, is a defence. A general lien may be proved either by evidence of an express agreement, or of the mode of dealing be- tween the parties, or of the general usage of other persons engaged in the same employment of such notoriety as that it may be fairly presumed to have been known to the owner of the goods. Rushforth v. Hadficld, 6 East 526. In general, where a person bestows his labor upon a particular chattel delivered to him in the course of his business, he has a lien upon such chattel for the amount of his charge. By R S. O. 1887, c. 126, s. 32, every mechanic or other person who has bestowed money or skill and materials on a chattel may sell the chattel if, after three months, payment. is not made. The vendor of goods not sold upon credit has a lien for the price. This lien is not lost so long as he keeps 192 MANUAL OF EVIDENCE IN CIVIL CASES. possession of the goods as vendor only, even though he has parted with a document transferring a title to the goods. Imperial Bank v. Docks Co., 5 Chy. D. 195. In general a lien cannot arise at law unless the party claiming it has possession of the goods. Kinloch v. Craig, 3 T. R 119. There may be an equitable lien without possession. Mackreth v. Symmons, 1 5 Ves. 329. Stoppage in transitu is in the nature of an equit- able lien. In general every unpaid vendor of goods has a right, on the insolvency of the vendee, to stop the goods if still on their way to the vendee. The most usual way in which the right of a vendor to stop goods in tran- situ is defeated is by assigning the bill of lading to a bona fide assignee. Lickbarrow v. Mason, 2 T. R. 63. See R. S. 0. 1887, c. 122, s. 5. By Statute 21 Jac. I. c. 16, s. 3, this action must be brought within six years after the cause of action RECOVERY OF LAND. 193 ACTION FOR DETENTION OF GOODS. It is enough to show that the plaintiff is entitled to the possession of goods wrongfully held by the de- fendant. It is frequently brought in England to recover the title deeds of real estate. The damages are in general merely nominal ; but the jury find the value of the articles detained, and the common law judgment is that the plaintiff recover the articles or their value, together with the damages and costs found by the verdict, and costs of increase. DEFENCES. Leave and license. Illegality. Statute of Limitations. ACTION FOR THE RECOVERY OF LAND.* The plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's- r. i;. U6 is as follows : No defendant in an action for die recovery of land who is in possession by himself or his tenanl need plead Ids tide, - Ids defence depends on an equitable estate or right, or he claims n-lict' upon any equitable ground againsl any righl or title asserted by the plaintiff. But, except in the cases hereinbefore ationed, it shall be sufficient tostateby way of defence that he is so in possession. And lie may nevertheless rely upon any ground of defence which he can prove, .is hereinbefore men! toned. 14 194 MANUAL OF EVIDENCE IN CIVIL CASES. The receipt of rents and profits of land stands on the same footing as actual possession. The plaintiff must show that he had a right of entry at the time mentioned in the writ. The plaintiff may, for the purpose of recovering mesne profits from an earlier day, claim the right of possession of the premises from such last-mentioned day. By the Lands Titles Act, R S. O. 1887, c. 116, s. 82, any certificate of charge is prima facie evidence of the matters therein contained. The plaintiff must formerly have proved a legal tide ; an equitable title is not sufficient. By the Judi- cature Act, R S. O. 1887, c. 44, s. 52, the same relief is given for an equitable title as formerly the Court of Chancery would have given, and the plaintiff need only prove an equitable title. By R S. 0. 1887, c. 44, s. 53 (4), a mortgagor entitled to the possession of land may sue for the recovery thereof in his own name. In other cases, however, the person in whom the legal estate is vested must be a plaintiff in the action. It is, therefore, still material to consider where it is vested. The general rule is, that in the case of passive trusts created by deed or will the use must either be reduplicated, if limited on a freehold, or must be limited on a term of years ; RECOVERY OF LAND. 195 otherwise a legal estate passes. Where the estate limited to a use is a leasehold or chattel interest, the Statute of Uses is inoperative, and the use limited is a mere trust. Doc v. Passingham, 6 1!. & C. 305. With regard to grants and devises in trust, where something is to be done by the trustees which makes it necessary for them to have the legal estate, such as the payment of the rents and profits to another's sepa- rate use, or of the debts of a testator, or to pay rates and taxes and keep the premises in repair, or the like, the legal estate is vested in them, and the beneficial devisee or grantee has only an equitable estate. Jeffreson v. Morton, 2 Wms. Saund. 11 B. The defendant may in some cases disprove the legal title of the party through whom both "he and the plaintiff claim : thus, where the plaintiff claims under a conveyance from A B in 1818, and the defendant under a conveyance from A B in 1824, the defendant may show that in LM8 A B had no legal estate to con- vey. Oliver v. Powell, 1 Ad. & E. 531. But the defendant may estop himself from settino- up such defence ; thus an agreement to purchase by a party m possession is such an acknowledgment of 196 MANUAL OF EVIDENCE IN CIVIL CASES. title in the vendor as, in the event of the purchase not being completed, to estop the purchaser from denying the title of the vendor. Doe d. Bord v. Burton, 1G Q. B. 807. Where the plaintiff is entitled with the defendant as joint tenant, tenant in common or co-parcener, he cannot maintain ejectment unless he has been actually ousted from his possession, or the defendant has done that which is equivalent to ousting. Gulley v. Taylerson, 11 Ad. & E. 1008. In an action by a landlord for the recovery of his land, the plaintiff in general need not prove his own title, but only the demise and its expiration, either by efflux of time, determination of will, demand of posses- sion, notice to quit, disclaimer or forfeiture. If there fe a demise by deed or in writing, it must be proved by the production of the original lease, un- less admitted. If in the defendant's possession, notice to produce should be given. Where the lease is oral it may be proved by a per- son who was present at the making, or by an admis- sion of the defendant. A tenant at will cannot be ejected until after de- mand, which must be made before the date of the wntl Gallaway v. Herbert, 4 T. R. 680. RECOVERY OF LAND. 197 When a tenancy ;it will is created, any act inconsis- tent with a tenancy at will done by either party will amount to a determination of the will, and render un- necessary a formal demand of possession. Evidence of a demise from year to year may, in the absence of other proof, be gathered from the payment and receipt of yearly rent. This evidence may be rebutted, as by showing that the plaintiff received it on what was really a void lease. Whether an instrument is a lease or an agreement fur a lease depends on the intention of the parties, as may be gathered from the instrument. Notice to produce a notice to quit* is not necessary. Doe d. Fleming v. Sommerton, 7 Q. B. 5S. Where the lessor proceeds on a forfeiture of the lease, he must prove the demise and the forfeiture. By R. S. 0. 1887, c. 143, An Act respecting the law of Landlord and> Tenant, a right of re-entry or forfeit- ure under any proviso or stipulation in a lease for a breach of any covenant or condition in a lease shall not be enforceable until after notice, which notice must be proved. This does not apply to non-payment of rent (sub-sec. 7). ' Nor a notice of dishonour. Swain v. Lewis, 2 C. M. & R. 261. 198 MANUAL OF EVIDENCE IN CIVIL CASES. Under same statute, sections 17 to 26, special provi- sions are made for the recovery of premises by land- lords where a half year's rent is in arrear. Under these sections a landlord must be prepared with evi- dence of the right of re-entry ; a service of the writ or the affixing of a copy of it, etc.; that half a year's rent was in arrear, and that no sufficient distress was found on the premises. Where the plaintiff claimed as heir at law, he must at common law have proved that the ancestor from whom he claimed was actually seized of the land ; or, if he claimed as heir to a remainder man, that his an- cestor was the person in whom the remainder first vested by purchase, and also that he was heir to such ancestor. Under the Devolution of Estates Act, R. S. O. 1887, c. 108, all fee simple estates descend to the legal personal representatives of the deceased. By section 10, the personal representatives of a person dying after 1st of July 1886, are to be deemed in law his heirs and assigns. Special provisions are made in the same statute as to descents before 1st of July, 1834; since 1st of July, 1834; between the 1st of July, 1834, and 1st of January, 1852; and since the 1st of January, 1852. The proof of heirship will vary according to these dates. In ejectment by heir at law the most common de- RECOVERY OF LAND. 199 fences are illegitimacy and a will. The defendant, by admitting plaintiff's pedigree and the dying seized, may, where he defends as devisee under a will, entitle himself to begin and reply. Goodtitle d. Revett v. Braham, 4 T. R, 497. Where the plaintiff claims a freehold interest by a devise, he must prove : 1. The right of the testator to devise the land. 2. The regular execution of the will. 3. The death of the testator. 4. The determination of any prior estates. The defendant may show a disclaimer by the plain- tiff to take under any part of the will, or he may im- peach the will by showing the want of due execution, etc - See Wills Act, K S. O. 1887, c. 109. A devisee of a leasehold interest must prove : 1. The title of the devisor to the property, unless the defendant be estopped from disputing it. 2. The probate of the will. 3. The assent of the executor to the bequest. In ejectment by an executor or administrator, the plaintiff must prove : 1. The leasehold title of his testator. 2. The testator's death. 3. The probate or grant of administration. The death of the termor is proved by oral evidence, 200 MANUAL OF EVIDENCE IN CIVIL CASES. or by proof of the register of death or burial and iden- tity of the party deceased. The statute relating to limitation of actions relating to real property is R. S. 0. 1887, c. 111. ACTION OF REPLEVIN. The Replevin Act is R. S. O. 1887, c. 55. Where goods have been wrongfully distrained, the person complaining of such distress as unlawful may bring an action of replevin. Where goods have been other- wise wrongfully taken or retained, the owner, or any person capable of maintaining an action for damages therefor, may bring an action of replevin for the re- covery of the goods. The right to begin at the trial in replevin is the same as in other actions, although both parties are Curtis v. Wheeler, M. & M. 493. Statute 11 George II, c. 19, makes special provisions with regard to distress for rent. It does not apply to distress for damage feasant. To an avowry for rent the plaintiff might -plead a tender of the rent ; to an avowry for damage feasant tender of amends. APPENDIX. SECTIONS SELECTED FROM R. S. 0. 1887, CAP. 61— EVIDENCE ACT. COMPETENCY OF WITNESSES. 2. No person offered as a witness shall hereafter be Witnesses not to excluded by reason of any alleged incapacity from De incapacitated crime or interest from giving evidence, according to *I r ^ me 0I '"" the practice of the Court, on the trial of any action, issue, matter or proceeding, in any Court of Ontario, or before any person having, by law or by consent of parties, authority to hear, receive and examine evi- dence. R. S. 0. 1S77, c 62, s. 2. 3. Every person so offered shall be admitted to give Such persona evidence notwithstanding that such person has an in- admitted to terest in the matter in question, or in the event of the glveevl ence " trial of any issue, matter, question or inquiry, or of the action or proceeding in which he is offered as a witness, and notwithstanding that such person has been previously convicted of any crime or offence. R. S. (). 1S77, c. 62, s. 3. 4. On the trial of any action, issue, matter or pro- Evidence of ceeding in any Court in this Province, or before any parties. person having, by law or by consent of parties, author- ity to hear, receive ami examine evidence, the parties to the proceedings, and the persons in whose behalf the action or other proceeding is brought or insti- tuted, or opposed or defended, shall, except as herein- after excepted, be competent and compellable to give evidence, according to the practice of the Court, on behalf of themselves or of either or any of the parties to the action or proceeding; and the husbands and Evidence of wives of such parties and persons shall, except as husband and hereinafter excepted, be competent and compellable e " to give evidence, according to the practice of the 202 APPENDIX. Questions tend- Court, on behalf of either or any of the parties to the action or proceeding. R. S. 0. 1877, c. 62, s. 4. 5. Nothing herein contained shall render any person need not be answered. Evidence in actions for breach of promise. Evidence in proceedings in consequence of adultery. ing ri°nAt i hp" ate compellable to answer any question tending to crimi- nate himself or to subject him to prosecution for any penalty. R. S. 0. 1877, c 62, s. 5. 6. The parties to an action for breach of promise of marriage shall be competent to give evidence in the action : Provided always that no plaintiff in an action for breach of promise of marriage shall recover a ver- dict unless his or her testimony is corroborated by some other material evidence in support of the promise. 45 V. c. 10, s. 3. 7. The parties to a proceeding instituted in conse- quence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in the pro- ceeding: Provided that in such case the husband or wife, if competent only under and by virtue of this Act, shall not be liable to be asked or bound to answer any question tending to shew that he or she has been guilty of adultery, unless he or she shall have already given evidence in the same proceeding in disproof of his or her alleged adultery. 45 V. c. 10, s. 4. 8. No husband shall be compellable to disclose any communication made by his wife during the marriage, and no wife shall be compellable to disclose any com- munication made to her by her husband during the marriage. R. S. 0. 1877, c. 62, s. 8. 9. On the trial of any proceeding, matter or ques- tion, under any Act of the Legislature of Ontario, or on the trial of any proceeding, matter or question be- fore any Justice of the Peace, Mayor or Police Magis- trate, in any matter cognizable by such Justice, Mayor or Police Magistrate, not being a crime, the party op- posing or defending, or the wife or husband of the person opposing or defending, shall be competent and compellable to give evidence therein. R. S. 0. 1877, c. 62, s. 9. 10. In any action or proceeding by or against the heirs, executors, administrators or assigns of a de- )n ceased person, an opposite or interested party to the the evidence of ' action shall not obtain a verdict, judgment or decision therein, on his own evidence, in respect of any matter occurring before the death of the deceased person, un- less such evidence is corroborated by some other mate- rial evidence. R. S. % 1877, c. 62, s. 10. Communications made during marriage. Evidence in trials under Acts of Ontari In actions by or against repre- sentatives of a the opposite party must he corroborated. APPENDIX. 203 11. In any action or proceeding bv or against a per- In actions by or son found by inquisition to be of unsound mind, or^ ,n e 8 ^^ being an inmate of a lunatic asylum, an opposite or opposite party interested party shall not obtain a verdict, judgment to becorrobo- or decision therein, on his own evidence, unless such ****"• evidence is corroborated by some other material evi- dence. R, S. O. 1877, c 62, s. 11. AFFIKMATIONS. 12. In any case in which an oath, declaration or Quakers, Meno- amrmation is required by law, or upon any lawful "J„, l '": ( e f '3i , .-. ' , ' J . etc., permitted '• asion whatever on which the oath of any person is to make affhrna- by law admissible, a Quaker, Menonist or Tunker, ortion. a member of the church known as the " Unitas Fra- trum," or the United Brethren, sometimes called the Moravian Church, having first made the following declaration or affirmation, viz.: " I. .1. /.'.. do solemnly, sincerely and truly declare and affirm thai I am one of the Society called Quakers, Meno- nists, Tunkers or Unitas Fratrum or .Moravians" {as the ease ma n be) ; may make his affirmation or declaration in the form following, that is to say : "I, A. B., do solemnly, sincerely and truly affirm and declare," etc.; and such affirmation or declaration shall have the same force and effect to all intents and purposes, in all Courts and all other places, as an oath taken in the usual form. R. S. 0. 1S77, c. 62, s. 12. 13. If a person called as a witness, or required or Certain persons desiring to make an affidavit oi\» deposition in a pro- Iu i l >' ma k e ceeding, or on an occasion whereon or touching a mat- declaration in- ter respecting which an oath is required, whether on stead of oath. taking office or otherwise, refuses or is unwilling, from I conscientious motives, to be sworn, the Court or Judge, or other presiding officer, or person qualified to take affidavits or depositions, may permit such per- son, instead of being sworn, to make his or her solemn affirmation or declaration in the words following, viz.: "I, .1. II. do solemnly, sincerely and truly affirm and declare that the taking of an oath is. according to my re- ligious belief, unlawful; and I do also solemnly, sincerely and truly affirm and declare," el ■■.: which solemn affirmation and declaration shall be of the same force and effeel as if such person had taken an oath in the usual form. R. S. 0. 1877, c. 02, s. 13, 204 APPENDIX. Persons who object or are incompetent to take an oath to be allowed to make a declara- tion. Interpretation. Persons author- ized to adminis- ter oaths may administer affirmation. Proof of contra- dictory written statements. Proof of contra- dictory oral statements. 14. — (1) If, in a Court of justice, a person caller! to give evidence objects to take an oath, or is objected to as incompetent to take an oath, such person shall, if the presiding Judge is satisfied that the taking of an oath would have no binding effect on his conscience, make the following promise, affirmation and declara- tion: "I solemnly promise, affirm and declare that the evi- dence given by me to the Court shall be the truth, the whole truth, and nothing but the truth." And upon the person making such solemn affirmation and declaration his evidence shall be taken in the said proceeding. 45 V. c. 10, s. 5. (2) The words "Court of justice" and the words "presiding Judge" in this section shall be deemed to include any person having by law authority to admin- ister an oath for the taking of evidence. 45 V. c. 10, s. 2. 15. Every person authorized or required to adminis- ter an oath for any purpose may administer any affir- mation or declaration as aforesaid. R. S. 0. 1S77, c. 62, s. 14. EXAMINATION OF WITNESSES. 17. Upon the trial of any cause a witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the cause, without the writing being shewn to him ; but if it is intended to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the pur- pose of so contradicting him; and the Judge at any time during the trial may require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as lie thinks fit. R. S. 0. 1877, c. 62, s. 24. 18. If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he did make such statement, proof may be given that he did in fact make it ; but before such proof can be given the circum- stances of the supposed statement, sufficient to desig- nate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he did make such statement. R. S. 0. 1877, c. 62, s. 25. APPENDIX. 20. ; 19 — (1) A witness may be questioned as to whether Proof of pre- he has been convicted of any felony or misdemeanor, v ' ou * conviction and upon being so questioned, if he either denies the i, e j' . .i ^ , , J . l J . r _ viif-'iii s r rinter mental or other regulation purporting to be made by and published the said Lieutenant-Governor or Administrator in with Statutes, to Council, or by any other person or persons authorized be prima /oci« by Law to make such regulation, purporting to be e%1 e " ce ' printed by the Queen's Printer at Toronto, and pub- lished with the Statutes of Ontario, shall be received in any Court as prima faci( evidence of the tenor of the order or regulation. 48 V. c. 13, s. 9. 206 APPENDIX. How public or official docu- ments proved. Dominion Orders 22. A copy of an Order in Council purporting to Minted by ' ^ e mac ^ e by tne Governor-General of Canada, or his Queen's Printer deputy, or other Chief Executive Officer or Adminis- and published trator of the Government of Canada, or a copy of a with Statutes, to departmental or other regulation made by the said be prima facte . , L .-, , , . ,° . ,, «/. „ „ evidence. Governor-General or his deputy, or other Chief Execu- tive Officer or Administrator of the Government of Canada, or by any other person or persons authorized by law to make such regulation, purporting to be printed by the Queen's Printer at Ottawa, and pub- lished with the Statutes of Canada by the said Queen's Printer, shall be received in any Court as prima facie evidence of the tenor of the order or regulation. 48 V. c. 13, s. 10. 23. In every case in which the original record could be received in evidence, a copy of any official or public document in this Province, purporting to be certified under the hand of the proper officer, or person in whose custody such official or public document is placed, or a copy of a document, by-law, rule, regulation or pro- ceeding, or a copy of any entry in any register or other book of any corrjoration, created by charter or statute in this Province, purporting to be certified under the seal of the corporation, and the hand of the presiding officer or secretary thereof, shall be receivable in evi- dence without proof of the seal of the corporation or of the signature or of the official character of the per- son or persons appearing to have signed the same, and without further proof thereof. 11, S. 0. 1877, c. 62, s. 28. 24. Where documents are in the official possession, custody or power of a member of the Executive Coun- cil, or the head of a Department of the Public Service of this Province, if the deputy head or other officer of the Department has the documents in his personal pos- session, and is called as a witness, he shall be entitled, acting herein by the direction and on behalf of such member of the Executive Council or head of the De- partment, to object to produce the documents on the ground that they are privileged ; and such objection may be taken by him in the same manner, and shall have the same effect, as if such member of the Execu- tive Council or head of the Department were person- ally present and made the objection. 49 V. c. 16, s. 16. Copies of public 25. — (1) Where a book or other document is of so books or docu- p U blic a nature as to be admissible in evidence on its ments admissi- l , ,. . ,, . , ., ble in evidence mere production from the proper custody, and no other Privilege in case of official documents. APPENDIX. 207 statute exists which rentiers its contents provable by means of a copy, a copy thereof or extract therefrom shall be admissible in evidence in any Court of justice, or before a person having by law or by consent of par- ties authority to hear, receive and examine evidence, provided it l>o proved that it is an examined copy or extract, or that it purports to be signed and certified as a true copy or extract by the officer to whose cus- tody the original has Keen entrusted. (2) Such officer shall furnish such certified copy or Copies to be de- extract to any person applying for the same at a rea- livered if re- sonable time, upon his paying therefor a sum not ex- 'i" lred - ceeding ten cents for every folio of one hundred words. R. S. O. 1877. c. 62, s. 29. ( '. rtain Statutes. 26. Any copy of the Statutes and Ordinances of the Copus of Acts of late Province of Lower Canada, printed and published L - C., printed by by the printer duly authorized to print ami publish X U v?" L 8 chisVe the same by Her Majesty, or by any of Her Royal evidence thereof. Predecessors, shall be received as conclusive evidence of the several Statutes made and enacted prior to the Union of the Provinces of Upper and Lower Canada by the Legislature of the Province of Lower Canada, and of the tenor of such Statutes and Ordinances, in any Court of civil jurisdiction in Ontario. R. S. O. 1877, e. 62, s. 37. [C. S. C. c. 5, s. 14 (1), also enacts that a similar <'"/ii/ ahull in conclusive i vidt m-< of such Statutes and Ordi- nances in Courts of criminal jurisdiction in Ontario.] Signatures of Judges. 27. All Courts, Judges, Justices, Masters, Clerks of Judicial notice Courts, Commissioners judicially acting, and other *° be taken of judicial officers in this Province, shall take judicial jud^es'ltc! notice of the signature of any of the Judges of the Su- preme Court i't' Canada, the (' i of Appeal, the High Court of Justice, the County Courts of Ontario, or the Superior or Circuit Courts in Quebec, where such sig nature is appended or attached to any decree, order, certificate, affidavit, or judicial or official document. R. S. (). L877, c. 62, s. 30. Fori ign Judgments. 28. Any judgment, decree or other judicial proceed- Foreign judg- ing recovered, made, had or taken in the Supreme ments, etc, how Court of Judicature in England or Ireland, or in any prove " 208 APPENDIX. of the Superior Courts of Law, Equity or Bankruptcy in Scotland, or in any Court of Record in any of the Provinces of Canada, or in any British Colony or Pos- session, or in any Court of Record of the United States or of any State of the United States of America, may be proved in any action or proceeding in Ontario, in which proof of such judgment, decree or judicial pro- ceeding may be necessary or required, by an exemplifi- cation of the same under the seal of the Court, with- out any proof of the authenticity of such seal or other proof whatever, in the same manner as any judgment, decree or similar judicial proceeding of the High Court in Ontario may be proved by an exemplification thereof in any judicial or other proceeding in the said Court. R. S. 0. 1877, c 62, s. 31; 43 V. c. 7, s. 1. Notarial Documents. 29. A copy of a notarial act or instrument in writing made in Quebec, before a Notary, filed, enrolled or enregistered by such Notary, and certified by a Notary or Prothonotary to be a true copy of the original there- by certified to be in his possession as such Notary or Prothonotary, shall be receivable in evidence in any judicial or other proceeding in Ontario in the place and stead of the original, and shall have the same force and effect as the original would have if produced and proved. R. S. 0. 1877, c. 62, s. 32. How impeached. 30. Such certified copy may be rebutted or set aside by proof that there is no such original, or that the copy is not a true copy of the original in some mate- rial particular, or that the original is not an instru- ment of such nature as may, by the law of Quebec, be taken before a Notary, or be filed, enrolled or enregis- tered by a Notary in Quebec. R. S. 0. 1877, c. 62, s. 33. Notarial Acts in Quebec ad- missible. Protests prima facie evidence. Certificate of notaries to be prima facie evidence. Protests of Bills and Notes. 31. All protests of bills of exchange and promissory notes shall be received in all Courts as prima facie evidence of the allegations and facts therein contained. U. S. 0. 1877, c. 62, s. 34. 32. Any note, memorandum or certificate at any time made by one or more Notaries Public, either in Ontario or Quebec, in his own handwriting or signed by him at the foot of or embodied in any protest, or in a regular register of official acts kept by him, shall be prima facie evidence in Ontario of the fact of notice APPENDIX. 209 of non-acceptance or non-payment of ;i promissory note or bill of exchange having been sent or delivered, at the time and in the manner stated in such note, certifi- cate or memorandum. R. S. 0. 1877, c. (i'2, s. 35. 33. The production of a protest on a promissory note Production of or bill of exchange, under the hand or seal of one or Potest '" ,!"' more Notaries Public, either in Ontario or Quebec, dence tfoat pro- in any Court in Ontario, shall be prima facie evidence test was made. of the making of such protest. R. S. 0. 1877, e. G'2, s. 36. Depositions. 37. Where an examination of a party or witness has Copies of deposi- been taken before a Judge or other officer or person fciona cei *ifled by .,,.,,,, 6 . , ,, . ' . persons taking appointed to take the same, copies of the examinations the same admis- and depositions, certified under the hand of the Judge, sible in evidence, officer or other person taking the same, shall, without proof of the signature, be received and read in evi- dence, saving all just exceptions 42 V. c. 15, s. 3. Proof of Wills. 38. Iii any action where it is necessary to produce In actions con- and prove an original will in order to establish a devise —J ^ 'Ik te or other testamentary disposition of or affecting real e t c ~ _ to be prima estate, the party intending to establish in proof the facie evidence of devise or other testamentary disposition may give wil '- etc., after notice to the opposite party ten days at least before sav^whercits the trial or other proceeding in which the proof is in- validity is put tended to be adduced, that he intends at the trial or "» issue. other proceeding to give in evidence, as proof of the devise or other testamentary disposition, the probate of the will or letters of administration with the will annexed, or a copy thereof, stamped with the seal of the Surrogate Court granting the same, or with the seal of the Court of Chancery, where the probate or letters of administration were granted by the former Court of Probate for Upper Canada; and in every such case the probate or letters of administration or copy thereof, respectively stamped as aforesaid, shall be sufficient evidence of such will, and of its validity and contents, notwithstanding the same may not have been proved in solemn form, or have been otherwise declared valid in a contentious cause or matter, under Th Sur- Rev. Stat. c. 50. rogati ( 'ourts Act, unless the party receiving the notice within four days after the receipt gives notice that he disputes the validity of the devise or other testament- ary disposition. Li. S. 0. 1877, C. 62, s. 41. 15 210 APPENDIX. As to costs of proving a will in an action. Proof in the case of will of real estate filed in Courts in other British posses- sions. Certificate to be prima facie evidence. 39. In every case in which in such action the original will is produced and proved, the Court or Judge be- fore whom such evidence is given may direct by which of the parties the costs thereof shall be paid. R. S. 0. 1877, c. 62, s. 42. 40. In case of the death of a person in any of Her Majesty's possessions out of Ontario, after having made a will sufficient to pass real estate in Ontario, and whereby such estate has been devised, charged or affected, and in case such will has been duly proved in any Court having the proof and issuing probate of wills in any of such possessions, and remains filed in such Court, then in case notice of the intention to use such probate or certificate in the place of the original will is given to the opposite party hi such proceeding one month before the same is to be so used, the production of the probate of the will, or a certificate of the .Judge, Registrar or Clerk of such Court, that the original is filed and remains in the Court, and purports to have been executed before two witnesses, shall, in any pro- ceeding in any Court in Ontario concerning such real estate, be sufficient prima facie evidence of the will and the contents thereof, and of the same having been executed so as to pass real estate, without the produc- tion of the original will ; but the probate or certificate shall not be used if, upon cause shewn before such Court, or a Judge thereof, the Court or Judge finds reason to doubt the sufficiency of the execution of the will to pass such real estate as aforesaid, and makes a rule or order disallowing the production of the pro- bate. R. S. 0. 1877, c. 62, s. 43. 41. The production of the certificate, in the last pre- ceding section mentioned, shall be sufficient prima facie evidence of the facts therein stated, and of the authority of the Judge, Registrar or Clerk, without proof of his appointment, authority or signature. R. S. 0. 1S77, c. 62, s. 44. Copies of Registered Instruments. 42. The word "instrument" in the next succeeding three sections shall have the meaning assigned to the word "instrument" in section 2 of Tfo Registry Act. R. S. 0. 1877, c. 62, s. 47. Registered in- 43. An exemplification or a certified copy of any Btrument prima registered instrument or memorial, under the hand and seal oi office of the Registrar in whose ofhee the same Meaning of "instrument. Rev. Stat. c. 114, s. 2. facie evidence. APPENDIX. 211 is registered, shall be received as prima facie, evidence, in every < lourt in Ontario, of the original of the instru- ment or memorial, except in the casea provided for in section 45. R. S. 0. 1877, c. 62, s. 45. See also cap. 114, s. 24 44. In case one of two or more original parts of any Instrument with instrument is registered, the Registrar shall indorse ce^ficate^of upon each of such original parts a certificate of the ,„"•„",„ ',,„.,. registration in the form of Schedule G to 77c Registry evidence. Act, and such original so certified shall he received as primafacie evidence of the registration and of the due Rev- Stat c. n-t. execution of the same. R. S. 0. 1877, C. Ill, s. 56. • 45. In any action where it would be necessary to Certified copies produce and prove an original instrument which has g^^tsmay been registered in order to establish such instrument oe usea m8tea( j and the contents thereof, the party intending to prove of originals after such original instrument may give notice to the oppo- notice. site party, ten days at least before the trial or other proceeding in which the said proof is intended to be adduced, that he intends at the trial or other proceed- ing to give in evidence, as proof of the original instru- ment, a copy thereof certified by the Registrar, under his hand and seal of office; and in every such case the copy so certified shall be sufficient evidence of the original instrument, and of its validity and contents, unless the party receiving the notice within four days Exception, after such receipt gives notice that he disputes the validity of the original instrument, in which case the Costs in such costs of producing and proving the original may be * 368, ordered by the Court or .Judge to be paid by any or either of the parties as may be deemed right. R. S. 0. 1877, c 62, s. 16. Copies of Other Written Instruments. 45 — (1) In any action or proceeding in the cases of Copies of certain telegrams, letters, shipping hills, hills of lading, de- beaZuttod'w livery orders, receipts, accounts and other written in- evidence on cer- struments used in business and other transactions, tain conditions. where it is necessary to prove the original document, the party intending to prove the original may give notice to the opposite party, ten days at least before the trial or other proceeding in which the said proof is intended to he adduced, that he intends at the trial or other proceeding to give in evidence, as proof of the contents, an instrument purporting to be a copy of the document. 212 APPENDIX. Proviso. (2) Such copy may then be inspected by the oppo- site party at sonic convenient time and place; and in every such case the copy shall, without further proof, be sufficient evidence of the contents of the original document, and be accepted and taken in lieu of the original, unless the party receiving the notice within four days after the time mentioned therein for such inspection gives notice that he intends to dispute the correctness or genuineness of the copy at the said trial or proceeding, and to require proof of the original; and the Court or Judge, before whom the question is raised, may direct by which of the parties the costs which may thereupon attend any production or proof of the original document, according to the rules of evidence heretofore existing, shall be paid. R. S. O. 1877, c 62, s. 48. Evidence in actions wherein any person resi- dent in Great Britain is a party. Evidence in actions. Rev. Stat, e. 1P2, s. 1. Attesting wit- ness need not be called where none was re- quired by law. Comparison of disputed writing with genuine. MISCELLANEOUS PROVISIONS. 48. In an action or other proceeding relating to any debt or account (other than an action by or on behalf of Her Majesty), wherein a person residing in Great Britain is a party, the evidence and examination of witnesses on behalf of either or any of the parties to the action or proceeding shall be the same, and given in the same manner, as in other actions or proceedings, according to the practice of the Court. 45 V. c. 10, s. 6. 49. It shall not be necessary in an action to produce any evidence which, by section 1 of The Act to amend the Law of Vendor and Purchaser and to Simplify Titles, is dispensed with as between vendor and pur- chaser; and the evidence therein declared to be suffi- cient as between vendor and purchaser shall be prima facie sufficient for the purposes of such action. R. S. 0. 1877, c 62, s. 49. 50. It shall not be necessary to prove by the attest- ing witness any instrument to the validity of which attestation is not requisite ; and such instrument may be proved by admission or otherwise, as if there had been no attesting witness thereto. R. S. 0. 1877, c. 62, s. 50. 51. Comparison of a disputed writing with any writ- ing proved to the satisfaction of the Judge to be gen- uine shall be permitted to be made by witnesses; and such writings and the evidence of witnesses respecting the same may be submitted to the Court and jury as evidence of the genuineness or otherwise of the writ- ing in dispute. R. S. O. 1877, c. 62, s. 51. APPENDIX. 213 52 Where a document is received in evidence by When instru- virt.le of this Act, the Court, Judge, Commissioner or ^*™J "' other person acting or officiating judicially, who admits be impoun the same, may direct the s: to be impoimded and kep< in the custody of an officer of the Court, or other person, for such period and subject to such conditions as to the Courl or person who admits the document seems meet, or until further order touching the same has been made either by such Court or by the Court to which the officer belongs, or by the person or per suns who constituted such Court, or by some one of the Judges of the High Court or a County Court (as the case may be), on application made for that pur- pose. R. S. 0. 1877, c. 02, s. 52. RULES OF SUPREM E COURT OF JUDICATURE FOR ONTARIO RELATING TO EVIDENCE. Part of examina- tion to be evi- dence. Examinations. Rule 508. — Any party may, at the trial of an action or issue, use in evidence any part of the examination of the opposite parties ; provided always, that in such case the Judge may look at the whole of the examina- tion, and if he is of opinion that any other part is so connected with the part to be so used that the last mentioned part ought not to be used without such other part, he may direct such other part to be put in evidence. J. A. Rule 239. Subpoenas. Subpoenas. Rule 559. — All writs of subpoena may be tested, or may bear date upon the day when the same are issued. R. S. 0. 1877, c. 62, s. 15. Subpoena to pro- Rule 560. — -No subpoena for the production of an duce original original record, or of an original memorial from any Issue without registry office, shall be issued unless the order of the order. Court or a Judge is produced to the officer issuing the same, and filed with him, and unless the writ is made conformable to the description of the document in such order. Rules T. T. 1856, 31. Rule 561. — Any number of names may be included in one subpoena, and no more than one subpoena shall be allowed on taxation of costs, unless a sufficient reason be established to the satisfaction of the taxing officer for issuing more than one. Rules T. T. 1856, 163. Rule 562. — Wherever any party in any civil act'on desires to call the opposite party as a witness at the hearing or trial he shall either subpoena such party or give him or his solicitor at least eight days' notice of the intention to examine him as a witness in the cause ; and if such party does not attend on such notice or Any number of names may be included in one subpoena. Calling opposite party. APPENDIX. 215 subpoena, such non-attendance shall he taken as an- admission pro confesso against him in any such action, unless otherwise ordered by the Courl or Judge in which or before whom such examination is pending, and a general finding or judgment may be had against ,i, or the plaintiff may be non-suited, or the proceedings in the action may he postponed by the Court or Judge, on such terms as the Court or Judge sees lit t > impose. Et. S. O. 1*77, c. 62, s. 18. Rule 563. — Upon proof to the satisfaction of the Bench warrants. Judge presiding at the sittings of any Court of the service of a subpoena upon any witness who fails to attend or to remain in attendance in a icordance with the requirements of the subpoena, and that a sufficient sum for his fees as a witness had been duly paid or tendered to him, anfl that the presence of such witness is material to the ends of justice, the said Judge may, by his warrant, directed to any sheriff or other officer of the Court, or to any constable, cause such witness tip be apprehended and forthwith brought before him or any other Judge who may thereafter preside at such sittings, to give evidence ; and in order to secure his presence as a witness, such witness may be taken on such warrant before the presiding Judge and detained in the custody of the person to whom the warrant is directed, or otherwise, as the presiding Judge may order, until his presence, as such witness, shall be required, or, in the discretion of the said Judge, he may he released on a recognizance (with or without sureties) conditioned for his appearance to give evi- dence. Evidence at Trials, and Refen Rule 564.— In the absence of any agreement EvMeno^onWal between the parties, and subject to these Rules, the ° witnesses at the trial of an action or at an assessment of damages shall, lie examined viva race and in open Court, hut the Court or a Judge may at any time for sufficient reason order that any particular factor facts may be proved by affidavit, or that the affidavit of any witness may he read at the hearing or trial, on such conditions as the Court or Judge may think reasonable, or that any witness whose attendance in Court ought for some 'sufficient cause to he dispensed with, be examined before an examiner: provided that where it appears to the Court or Judge that the other party bona fide desires the production of a witness for cross- examination, and that such witness can be produced, 216 APPENDIX. Or before a Master. Depositions. an order shall not be made authorizing the evidence of the witness to be given by affidavit. J. A. Rule 282. Rule 565. — All witnesses in any matter pending before a Master, Local Master or Referee, shall give their testimony viva voce, and be subject to examina- tion before the Master, unless it is otherwise ordered by the Master, or by the Court or a Judge, on special grounds, or with the consent of the parties in the suit or controversy to which the testimony relates. R. S. O. 1877, c. 40, s. 100. Rule 5GG. — The Court or a Judge may, in any cause or matter where it appears necessary for the purposes of justice, make any order for the examination upon oath before an officer of the Court, or any other person or persons, and at any place, of any witness or person, and may order any deposition so* taken to be filed in the Court, and may empower any party to the cause or matter to give such deposition in evidence therein, on such terms, if any, as the Court or Judge may direct. J. A. Rule 285. Affidavitsbycon- Rule 567. — At the trial of an action, or of any of n the Court eaVe furthel ' directions therein, affidavits of particular wit- nesses, or affidavits as to particular facts and circum- stances, may be used by consent, or by leave of the Court; and such consent may be given on behalf of persons under disability, with the approbation of the Court. Chy. 0. 176. When to be filed Rule 568. — In case the parties in any action con- by plaintiff. sen ^ ^ t ne evidence being taken by affidavit as between the plaintiff and the defendant, the plaintiff within fourteen days after such consent has been given, or within such time as the parties may agree upon, or a Judge in Chambers may allow, shall rile his affidavits and deliver to the defendant or his solicitor a list thereof. J. A. Rule 301. Rule 569. — The defendant within fourteen days after delivery of such list, or within such time as the parties may agree upon, or a, Judge in Chambers may allow, shall tile his affidavits and deliver to the plaintiff or his solicitor a list thereof. J. A. Rule 302. Rule 570. — Within seven days after the expiration of the said fourteen days, or such other time as afore- said, the fdaintiff shall file his affidavits in reply, which affidavits shall be confined to matters strictly in reply, and shall deliver to the defendant or his solicitor a list thereof. J. A. Rule 303. When to be filed by defendant. Filing affidavits in reply. APPENDIX. 217 Rule 571 . — Where the evidence is taken by affidavit Cross-examin* any party desiring to cross-examine a deponent who t,on on iffldavit - has made an affidavit filed <>n behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing, requiring the pro- duction of the deponent for cross-examination before the Court at the trial, such notice to be served at any time before the expiration of fourteen days next after the end of the time allowed for filing affidavits in reply, orwithin such time as in any case the Court or a Judge may specially appoint; and unless such deponent is produced accordingly, his affidavit shall not be used as evidence unless by the special leave of the Court. The party producing such deponent for cross-examination shall not he entitled to demand the expenses thereof in the first instance from the party requiring such production. J. A. Rule 304. Rule 572. — The party to whom such notice as is compelling at- mentioned in the last preceding Rule is given shall tendance of be entitled to compel the attendance of the deponent witness, for cross-examination, in the same way as he might compel the attendance of a witness to be examined. J. A. Rule 305. Rule 573. — In actions for libel or slander, in which Libel or slander, the defendant does not by his defence assert the truth particulars, of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the Judge, unless seven days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence. Eng. R. 1883, 461. New. Rule 574. — Where an examination of any party or Copies of depo- parties, witness or witnesses, has been taken before a »tions certified Judge of the High Court, or of any County Court, or^S^mau before any other officer or person appointed to take admissible in the same, copies of such examinations and depositions, evidence. certified under the hand of the Judge, officer or other person taking the same, shall, without proof of the signature, be received and read in evidence, saving all just exceptions. 42 V. c- 15, s. 3. Rule 575. — An affidavit of the solicitor in the cause, Evidence of ser- or his clerk, of the service of any notice to produce, vice of^notice to and of the time when it was served, with a copy of pro UC8, 218 APPENDIX. Evidence on mo- tion or petition. Cross-examina- tion on affidavits. Attendance of witnesses for ex- aminations on motions, how procured. Court or Juds-e may, on hearing any motion or summons, order the production of documents or vioa voce ex- aminations. And may make rule or order thereon. such notice to produce, shall be sufficient evidence of the service of the notice, and of the time when it was served. R. S. 0. L877, c. 50, s. 173. Evidence on Motions. Rule 576. — Upon any motion or petition evidence may be given by affidavit. Rule 577- — Every person who makes an affidavit to be used in any action or proceeding shall be liable to cross-examination thereon, and may be required to attend in the same manner, and subject to the same rules, as a party to be examined in the cause. Rule 578. — A party to any action or proceeding may, by a writ of subpoena ad testificandum or duces tecum, recpxire the attendance of a witness to be examined before the Court, or before any officer having jurisdiction in the county where the witness resides, _for the purpose of using his evidence upon any motion, petition or other proceeding before the Court, or any Judge or judicial officer in Chambers. («) The attendance of such witness is to be secured in the same manner and subject to the same rules as upon the examination of a party in the cause. J. A. Rule 598. Rule 579. — Upon the hearing of any motion before the High Court or a Judge the Court or Judge at discretion, and upon such terms as it or he thinks reasonable, may from time to time order to be pro- duced such documents as it or he thinks fit, and may order such witnesses as it or he thinks necessary, to appear and be examined viva voce before such Court or Judge, or before a Judge of any County Court, or before any other person ; and upon reading the report of the Judge of the County Court or other person, as the case may be, or if no such reference is made, then upon examining sxich documents or hearing such wit- nesses by the Court or Judge, the Court or Judge may make such order as seems just ; and in cases within the jurisdiction of a County Court, the Court or a Judge therein having jurisdiction in the case may order the production of documents or the attendance of wit- nesses be'ore such Court or Judge, or before the Clerk of such County Court, and upon hearing such evidence or reading the report of the Clerk may make such order as seems just, in like manner as if the proceed- ings were had in the High Court. R. S. 0. 1877, c. 50, s. 175. APPENDIX. 219 RULE 580.— The Court or Judge may, by the order, Power by order command the. attendance ot the witnesses named tendancerfwit- therein for the purpose of being examined, or may nessesor produc- command the production of any writings or other tion of docu- documents, to be mentioned in the rule or order; and mentsin such in the case of a Judge, he may, if necessary urv or his counsel, in the event of his opponent not regu announcing at the close of the case of the party who begins, his intention to adduce evidence, shall be allowed to address the jury a second time at the close of the case, for the purpose of summing up the evi- dence ; and the party on the other side, or his counsel, shall then be allowed to open his case, and also to sum up the evidence (if any) The right to reply shall be the same as at present. R. S. O. 1877, c. 50, s. 261 Rule 676. — Where, through accident or mistake Evidence omit- or other cause, a party omits or fails to prove some ^^^elaow fact material to his case, the Judge may proceed ^,,,,,11^1. with the trial, subject to such fact being afterwards proved at such time, and subject to such terms and conditions as to costs and otherwise, as the Judge shall direct; and, if the case is being tried by a jury, the Judge may direct the jury to find a verdict as if such fact had been proved, and the verdict shall take effect on such fact being afterwards proved as directed ; and if not so proved, judgment is to be entered for the 222 APPENDIX. opposite party unless the Court or a Judge otherwise directs. This Rule shall not apply to an action for libel. J. A. Rule 271. Trial of equit- Rule 077. — Where, in any action, equitable issues able issues. are raised by the pleadings, they shall be heard and tried, and the assessment or inquiry of damages, if any, incidental thereto shall be assessed and inquired of by the Court or a Judge without the intervention of a jury ; but it shall be competent for the Court or Judge, upon the application of either party, sup- ported by sufficient reasons, to order such issues to be tried or damages assessed by a jury. R. S. 0. 1877, c. 50, s. 257. Legal and equit- Rule 67S. — Where, in airy action or other proceeding able issues. a t l aW; both legal and equitable issues are raised, such issues shall be tried at the same time, unless the Court or a Judge, or the Judge presiding at the trial, otherwise directs. R. S. O. 1S77, c. 50, s. 258. Costs of pro- Rule 679. — In an action brought to recover the test recoverable. amoun t of any bill, draft, order or promissory note, and the damages and interest, the expenses of noting and protesting, and all other chai-ges and postages incurred thereon, it shall not be necessary to specially claim such damages, interest, expenses and charges, but the same shall be allowed to the plaintiff at any trial, assessment of damages or reference, as if the same had been specially claimed. R. S. O. 1S77, c. 50, s. 144. Assessment of Rule 680.— Damages in respect of any continuing damages. cause of action shall be assessed down to the time of the assessment. Eng. R. 1883, 482. Adjournment of Rule 681.— The Judge, if he thinks it expedient trial. f or the interest of justice, may postpone or adjourn the trial for such time, and upon such terms, if any, as he shall think fit. J. A. Rule 272. Judge mav di- Rule 682. — Upon the trial of an action the Judge rect entry Sf may, at or after the trial, direct that judgment be judgment ; or signe( j an( j en tered for any or either party, or adjourn the case for further consideration. J. A. Rule 273. Exhibits at trial, Rule 683.— Exhibits put in at the trial are to be how to be ' marked thus: — " In the High Court of Justice— Div. marked. [short title]. This exhibit (the property of ) is produced by the plaintiff (or defendant C, an the reserve jud rnent. APPENDIX. 223 co.se maybe), this day of 18 . A. B." {Registrar, Deputy Clerk, Deputy or Local Registrar). Chy. 0. 177. Rule 684. — Where a party or witness is examined Evidence, oral or at the trial, or a document is put in as evidence and ^nTb^th- marked by the Registrar, Deputy Clerk, Deputj or drawn without Local Registrar, the deposition of the party, or wit- leave. ness so examined, or- the document so put in, is not to be withdrawn as evidence without the leave of the Court. Chy. 0. 178: Rule 685.— Where judgment is reserved the ex- Where judgment hibits used at the trial shall be deposited with the jj^j^ j,^ t Registrar, Deputy Clerk, Deputy or Local Registrar, w i tn Registrar, for the use of the Court, and shall not be delivered etc. out without order or consent- of parties. See Chy. 0. 179. Rule 686.— Where, upon the trial of an action, it When action appears that the same cannot conveniently proceed by ^™°^^^ reason of the solicitor for any party having neglected of absence ot- to attend personally or by some person in his behalf, solicitor, he maj or having omitted to deliver any paper necessary for be ordered to the use of the Court, and which according to its pay e ' practice ought to have been delivered, such solicitor shall personally pay to the parties such costs as the Court thinks fit to award. Chy. 0. 182. Rule 6S7.— The Registrar, Clerk of Assize or other By whom entries officer present at the trial shall enter all such findings oMtadtags to be of fact as the Judge may at the trial direct to be ma entered, and the directions, if any, of the Judge as to judgment, and the certificates, if any, granted by the Judge, such entry to be made in a book to be kept for the purpose, and also to be indorsed on the Record. J. A. Rule 274. Rule 6SS. — The said indorsement, or the certifi- Certificate of cate of the said officer or the certificate of the Judge, J« d « e ° r oft(:er - shall be a sufficient authority to the proper officer for signing judgments to sign judgment accordingly. J. A. Rule 275. Rule 6S9. —The Registrar, Clerk of Assize or other When and how officer present at the trial shall, after judgment has SiXaeUrer been given, or, in jury cases, after the time for the rccor d or ex- moving for a new trial' has expired, deliver to the hibits to at- solicitor of the party entitled thereto any record in torney or parties. their custody upon getting a receipt for the same. R. 8. 0. 1877, c. 50, s. 280. 224 APPENDIX. Costs of not Rule 1189. — When anything in the course of an admitting. action or reference which ought to have been admitted has not been admitted, the party who neglected or refused to make the admission may be ordered to pay the costs occasioned by his neglect or refusal. See Chy. 0. 234. J. A. Rule 163. Notice to admit. Rule 1190. — No costs of proving a document shall be allowed unless a notice to admit has been given under Rule 617, except when the omission to give the noticeis a saving of expense. LIBRARY FAClLUjr nwmi 3 AA 000 761 588 3