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SUBJECT OF DIVISION COURT LAW, — AN1> — THE INTRODUCTION OF SEVERAL STATUTES BEARING A CLOSE RELATION TO THE GENERAL PRACTICE OF DIVISION COURTS : -BY- J. S. SINCLAIR, Q. C, Judge of the County Court aud Local JudKe of the Hi>ih Court of Justice at Hamilton. HAMILTON : Times Pbintino Compa ny. 3 H uohson Street North. 1885. Entered according to an Act of the Parliannent of Canada, in the year of our Lord one thousand eight hundred and eighty-five, in the office of the Minister of Agriculture, by James Shaw Sinclair, Q. C, Judge of the County Court and Local Judge of the High Court of Justice at Hamilton. TO HIS HONOR JUDGE DEAe0N, Of Pembroke, Tbis Worl I WITH HIS PERMISSION, Respectfully Itieorlbed. PREFACE. THE Amendment to the Division CourtH Acts ^ and the other legislation of the last session of the Provincial Leg-islature ai)peared to the writer to render sneh a work as is here presented eminently necessary. He has earnestly striven to elucidate and explain the subjects of such legislation with as much fullness and accuracy as their importance appeared to demand, and also to throw as much light as possible on the general subject of Division Court Law. It is hoped that the full discussion to be found of the subjects of Replevin and Interpleader will be of much practical value to the profession and others. Many subjects which have to be considered in the daily admin- istration and practice of Division Court Law will be found discussed and considered. Several Statutes of practical value have been either introduced or appended, so as to render a ready reference to them always easy and convenient. The writer again asks that kindly forbearance and consideration of the reader for all defects and omissions herein, which his previous efforts have hitherto received. An earnest endeavor has been made to produce a work which will be of practical utility, not only to the legal profession, but to Vlll. I'KEJ ACE. DiviHion Court ()ffioei*H an well. Whether that haw been acdompllHlied or not must be left to the .judgment and determination of kindly and eritic^al readers. The kindly asHistance given by some of the brother Judges of the writer, and by members of the profession, is here gratefully acknowledged. There could not have fallen into better hands the preparation of the Index of Subjects and the List of Cases than to Mr. Edward Herbert Ambrose, of Hamilton, Student-at-Law, whose wonderful apti- tude for such work haw produced these exceedingly full and accurate parts of this book. The writer desires here to express his grateful thanks for these contributions which form such a necessary and important part of the work. J. S. SINCLAIR. Hamilton, October, 1885. TABLE OF CONTENTS. Table of Cases, ..... Division Court Amendment Act, 1885, . Act for further Improving the Law, 1886, Act to amend the Law as to Oarnishing Debts, , General Assignment for the Benefit of Creditors, An Act Kespeoting Wages, An Act for the further protection of Sheep from Dogs, Married Women's Property Act, New Bules of Division Court, Tariff of Fees, etc. , . Forms, ...... Index of Subjects, ..... Paokh. 11 1—228 229—263 264—266 256—262 263—264 266-266 267—274 276—281 282—284 286 TABLE OF CASES. Abbott V. RiohardB, 160 Adair V. Townend, 45, 102 Adau'K V. Blaokwell, 141 " V. The Q. W. R'y Co., 34 Ahreiis v. MoOilligat, (i. T. Ky Co., (iarnisheeB, 14, 212 AitohesoQ t. Mann, 63 Alanson v. Walker, 100, 101 Aldridge v. Medwin, 19 Alexander v. Diamoud, 116 " V. Jones, 46 Allen V. Geddes, 19 " V. Walker, 74 AUbusen v. Labouohere, 116 AUman v. Kensel, 43 Auoona v. Marks, 103 Anderson v. Bank of British Co- lumbia, 117, 118, 119, 120 Anderson t. George, 183 V. Hafeler, 260 '• V. Hamilton, 251 " V. MoEwan, 288 V. Todd, 186, Andrew v. Marris, 176 Angell T. Baddeley, 140 Anglin t. Minis, 236 Anglo-American v. Ilowlin, 162 Applegarth v. Graham, 236, 242 Aroedeokne in re, Atkins v. Arce- deokne, 205 .\rchibald v. Bushey, 31 Arkell v. Geiger, 166 Armitage exp., in re Learoyd, Wilton* Co., 144 Arnold v. Hamilton, 241 " V. Higgins, 238 Arthur v. Lee, 180 Ashby V. James, 56 Ashton T. McMillan, 243 Askew V. Manning, 237 Assessment Appeal, 112 Atkinson v. Woodhall, 60 Attenborongh t. London and St. Katharine's Dock Co., 168 Atty.-Genl. v. Halliday, 114 At wood V. Chichebier, 71, 108 Austin V. Davis, 187 " V. Mills, 169 Aylett V. Ashton, 71 B Bacon v. Bacon, 117 V. Langton, 248 Bain v. Gregory, 19 Baker v. Heard, 67 " V Howel, 249 " V. Lane, 115 " V. L. & 8. W. Ry. Co., 119 " V. Newton, 116 " V. Wait, 30, 31, 32 Baldwin v. Benjamin, 43 Banco de Portugal, exp., in re Hooper, 11, 97 Bank B. N. A. v. Eddy, 118 Bank of Commerce v. Bank B. N. A., 193 Bank of Hamilton v. Blakeslee, 45 V. The Western Ins. Co., 48 Bank of Ireland v. Perry, 143 Bank of Montreal v. Cameron, 91 V. Little, 151 Bank of Ottawa v. McLaughlin, 29, 45, 62, 102 103, 109, 146 Bank of Toronto v. McDougall, 91 Bank U. C, v. Ketchum, 85 Barber v. Armstrong, 241 " V, Gregson, 71, 72 " V. Russell, 93 Barclay v. Sutton, 238 Bardell v. Miller, 51 Barker v. Palmer, 19, 27, 178 " V. Westover, 71 Barned's Banking Co , re, 122 Barnes v. Bartlett, 247 Bateman, re, 24 " V. Farnsworth, 176 Bates V. Mackey, 243, 244 Townley, 56 Beadon V. King, 117 Bearss v. Neville, 85 Xll. TABLE OF CASES. Beattie v. Hatch, 60 Beaty v. Bryce, 156 Becker t. Ball, 243, 244 Beebe v. DeBann, 245 Beeston v. Beeston, 55 Begg V. Cooper, 92 Beiding t. Bead, 147 Bell V. Chamberlen, 125 «' V. Frankis. 1 14 " V. Lament, 34, 178 •' V. Biddell, 71 Bellamy v. Hoyle, 25, 87 Bellbouse v. Ounn, 151 Belmonte v. Aynard, 153, 156, 168 Bennett v. Atkins, 12 " V. Bayes, 172 " V. Brumfitt, 18 " V. CoBgriff, 26 Berkley v. Thompson, 212 Berry v. Zeiss, 70, 72 Best V. Hayes, 160 Betts V. Lee, 248 *' V. Menzies, 119 Bewioke v. Graham, 116 Bickford v. Darcy, 116 Biddulph V. Gray, 101 Bilke V. Havelock, 148 Blades t. Arundel, 146 Blain, exp., in re Sawers, 13 Blake t. Beech, 108 " V. Walsh, 103 Bland v. Andrews, 51 Bletcher v. Burn, 244 Bloomley v. Grinton, 66 Bloor V. Huston, 142, 156 Boag y Lewis, 113 Bodger v. NichoUs, 29 Body V. Esdaile, 185 Bolton V. Cor. of Liverpool, 120 Booth V. The Preston and Berlin By. Co., 160, 177 Borough V. James. 193 Boston V. lielievie, 14 Boustead v. Whitmore, 73 Bovill V. Cowen, 154 fiowen, re, 25 " V. Bramidge, 151 Bowes V. Howell, 85 Bowman V. Yielding, 169 Boyd V. Haynes, 48, 92 Boys V. Smith, 242 Boyson t. Coles, 247 Bradley t. Clarke, 243 Braham v. Sawyer, 101 Breokon v. Smith, 66 Brewer t. Fleming, 250 Bridge v. Branch, 22 Bridges v. Douglas, 32 Briggs V. Briggs, 221 Bristol, Earl of v. Wilsmore, 246 Mayor of, v. Cox, 120 B. N. A. Bank v. Eddy, 113 Brockton, Corporation of, t. Deni • son, 51 Brooks T. Bockett, 60 Brown re, 26 " V. Caldwell, 249 " V. Capron, 125 " V. Cooking, 26, 37 " V. Nelson, 141, 156 " V. Oakshott, 120 " V. Sax, 247 " V. Shaw, 19, 178 " V. Wildbore, 101 " v. Winning, 73 " v. Zimmerman, 234 Browne v. Smith, 65 Brunsden v. Humphrey, 140, 177 Bryant v. BuU, 75 Bubb V. Yelverton, 65 Buck T. Hurst, 56 Bndworth v. BeU, 163, 166 B. & J . H. By. Co. V. Gordon, 241 Buffington v. Gerrish, 246 Builder v. Kerr, 92 Building and Loan Association v. Heimrod, 145 Buist V. McCombG, 231 Bnllen t. Lingham, 92 BuUock V. Corry, 117, 118 " V. Richardson, 123 Bulman v. Young, 116 Bunbury v. Bunbury, 117, 120 Burke t. Glover, 244 " V. McWhiiter, 238 Burmester v. Hogarth, 56 Burnham v. Waddell, 171 Burns v. Rogers, 28, 60 Burr V. Munro, 251 Burrell v. Nicholson, 122 Burrowes, re, 41 Bursill V. Tanner, 75, 102 Bush V. Pimlott, 239 Bustros V. White, 117, 118, 119, 125 Butler V. Butler, 72, 74 " V. Cumpston, 72 " V. Knight, 105 Butters, exp., in re Harrison, 90 Button V. O'Neill, 43 TABLE OF CASES. Xlll. Byrne v. Van Tienhoven, 40 c Caird v. Fitzell, 44, 46 Caister v. Chapman, 193 Calcutt V. Uattan, 242 Caledonian By. Co., The, v. North British By. Co., 10 Callander v. Howard, 55 Cameron v. Allen, 84, 194 V. Lount, 165 V. Butherford, 72, 75, 103, 127 Campan v. Luoas, 243 Campbell v. Cashman, 170 . " V. Lepan, 238 V. Beid, 171 Canada C. By; Co., The. v. Mo- Laren, 126, 180 Canada Southern By. Co. v. Geb- hard, 34 Canadian Bank of Commerce ▼. McMillan, 181 Canadian Bank of Commerce v. Tasker, 161, 152 Candy v. Maughan, 168 Canniff v. Bogart, 240, 245 Carey v. Lawless, 20 Carlisle v. Orde, 99, 101 " V. Tait, 91 Carmarthen and Cardigan By. Co. V. The Manchester and Milford By. Co., 200 Caron v. Uraham, 178, 234 Carpenter v. Pearoe, 146, 160 Carpmael v. Powis, 117 Carr v. L. & N. W. By. Co., 108 Carter v. Stewart, 152 Carver v. Pinto Leite, 116 Carvett v. Gre-nwood, 241 Caspar v. Keaohie, 215 Castrique v. Imrie, 248 Caswell V. Catton, 244 Cataraqni Boad Go. t. Dann, 92 Cater v. Chignell, 160, 177 Catterall v. Catterall, 15 Chadwick v. Ball, 23, 227 Challiner t. Burgess, 140 Chambers v. Green, 24 Chapleo t. Brunswick P. B. Socie- ty, 107 Chapman t. Speller, 147 Chard v. Jervis, 77, 180 Chase v. N. Y. C. B. B. Co., 8 Chesterfield, &e. Co. v. Black, 115 Childers v. Wooler, 167 Chin V. BuBsell, 242 Chown V. Parrott, 105 Christie v. Conway, 156 Church V. Perry, 125 Churchward v. Coleman, 166 Ginqmars v. Moodie, 141 Clark V. Cnllen, 45, 102 " T. Buttan, 242 Clarke t. Bradlangh, 62 •' V. Creighton, 71, 72, 73 " V. FuUer, 19, 102 " y. Maodonald, 21, 22, 23, 45, 62. 102, 103, 109, 146, 227, 228 Clarke v. Powell, 240 Claydon v. Green, 11 Clegg V Edmonson, 116 Clement v. Wright, 249 Clements v. Matthews, 147, 170 Chfton T. Davis, 152 " V. U. S. A„ 114 Clough V. L. & N. W. By. Co., 240, 246 Gockerell y. Van Diemen's Land Co , 111 Cocking y. Ward, 66 Code and Grain, re, 12 Colborne v. Thomas, 188 Cole y. The Bank of Montreal, 48 Coleman y. Kerr, 236, 243 Coles y. Ciyil Service Supply Ass., 193 CoUen v. Wright, 107 CoUett V. Dickenson, 71, 76 " V. Foster, 165 Collins V. Evans, 167 Commerce, Bank of, v. Bank B. N. A., 193 Commercial Bank v. Harris, 187 " Midland District v. Deniaon, 181 Conley v. Lee, 186 Connecticut Mut. Life Ins. Co. v. Moore, 180 (Jonner v. Comstock, 247 Lonnor v. McBride, 92 Oonolan v. Leyland, 69, 72 Conservators of the Thames v. HaU, 13 Consolidated Bank of Canada v. Henderson, 76 Consumers' Gas Go. v. Kissock, 101 XIV. TABLE OF CASES. Goutraot Corporation, Goooh'a Case, re, 122 .Cook V. Fowler, 234 " V. Lemieux, 127 Goquillard v. Hunter, 235 Corbett v. Johnston, 236 " V. Lewis, 260 " V The Greneral Steam Nav- igation Co., 213 Cork & Youghal By, Co., re, 16 Corporation of Brockton, The v. Denison, 61 Corporation of Essex v. Parke, 188 Welland v. Brown, 202 Corporation of Yarmouth v. Sim- mons, 13 Cosgrave Brewing and Malting Co., The, V. Starrs, 205 Cossey v. L. B. & S. Coast Ry. Co., 118 Costa Eioa, Republic of, v. Erlanger, 116 Cotes V. Davis, 106 Cotton V. Stokes, 164 Couch y. Crawford, 171 Countess of Rothes, The, v. Kirk- caldy Waterworks Commission- ers, 10, 98 Cowans' Estate in re liapier v. Wright, 50 Cox v. Prentice, 61 Craig V. Corcoran, 187 " V. Craig, 145, 146 Grain v. Coll. Institute of Ottawa, 14 Cramer v. Matthews, 146, 167 Crawford v. Thomas, 233, 239 Credits Geruudeuse (Limited) The v. Van Weede, 169 Creed v. Fisher, 134 Creen re, 43 Cresson v. Stout, 249 Cronshaw v. Chapman, 167 Crooks V. Law, 69 V. Stroud, 76 C. K. & C, re, 51 Cropper V. Warner, 146. 146 Grossman v. Shears, 108 Culham v. Love, 244 Gundy v. Lindsay, 247 GunlifFe v. Whitehead, 112 Curlewis v. Gorfield. 114 Gurlinp v. Perring, 118 Curtis V. Flindall, 69 Curtis V. Rickards, 66 Cushman v. Reid, 60 D Dain v. Oossage, 13 Dalton V. Whittem, 173 Dame v. Carberry, 170 Daragh v. Dunn, 173 Darby v. Waterlow, 146 Darling v. CoUatton, 141 " V. Hitchcock, 14 V. Rice, 72 Davey v. Cartwright, 171 Davidson V. B. & N. H. Ry. Co., 86 Davidson v. Cameron, 49 V. Reynolds, 173 " V. Ross, 14 Davies v. Jenkins, 71 " V. MaoHenry, 24 V. Westmacott, 100 Davis V. Ballenden, 71, 76 " V. Code, 85 " V. Easley, 260 " V. Great Eastern Ry. Co., 146 Davis V. Morris, 45, 102 " V. Pearce, 44, 46 •• V. The Flagstafif Silver Min- ing Go. of Utah, 191 Dawson v. Remnant, 61 V. Wood, 174 Deal V. Potter, 235 Dear v. Western Ass. Co. , 181 Death v. Harrison, 140, 169, 161, 178 Debenham v. Mellon, 68 DeBuBsohe v. Alt, 108 DeGrenchy v. Wills, 70 Delisser v. Towne, 185 DeMott V. Hagerman, 249 Dempsey v. Caspar, 152 Denham v. Brewster, 71 De St. Martin v. Davis, 152 Devanney v. Brownlee, 206 DeWitt V. Morris, 260 Dickson v. Grimshawe, 86 " V. Hunter, 249 " V. The Neath and Brecon Ry. Co., 92 Dillon V. Cunningham, 76 Direct Gable Go. v. Dominion Telegraph Co., 34 TABLE OF CASES. XV. Dixon V. Snarr, re, 27 Dodd V. Drummond, 101 Dodds V. Shepherd, 140, 178 Doe V. Date, 122 " V. Ross, 122, 182 Doer V. Hand, 152 Dolphin V. Layton, 61 Dominion &o., Co., v. Stinson, 188 Donly Y. Ilolmwood, 15 Dougall V. Wilson, 180 Douglas T. Rowland, 202 Dove V. Dalby, 186 Dowling V. Miller, 261 Doyle V. Lasher, 169 Drew V. Nunn, 176 Drinkwater v. Clarridge, re, 52 Duffil V. Erwin, 239 Duncan v. Cashin, 142 Dunlop V. Higgins, 40 Dnrnin v. McLean, 60 Durrant t. liicketts, 71, 75 Dyer v. Pearson, 247 E Earl of Bristol v. Wilsmore, 246 Eaton V. Southby, 248 Eberts v. Brooke, re, 34, 48 Ebrard v. vrassier, 166 Eccles V. Harpur, 183 Ecdestone v. Jarris, 260 Eden v. Weardale Iron and Coal Co., 192 Edgar v. Magee, 52 V. Newell, 181 Edmonds v. Lord Foley, 124 Edrick's Case, 6 Edwards t. Bridges, 174 " V. Farebrother, 176 Egremont v. Egremont, 122 Ellis V. Fleming, 26 " V. Watt, 27 Emmens v. Middlemiss, 125 Engelback v. Nixon, 142 English T. MulhoUand, re, 34 V. Tottie, 119 Loan Co. v. Harris, 28 Esdaile v. Visser, 77 Essex, Corporation of, v. Parke, 188 Evans v. Louis, 114 " V. Nicholson, 26 V. Sutton, re, 42 Everard v. Watson, 18 Everett v. Mills, 7 Eyre v. Moreing, 193 " V. Thorpe, 185 F Farley v. Lincoln, 246 Farr. v. Newman, 176 Farrow v. Tobin, 166, 160, 163 Fear v. Castle, 71 Federal Bank v. Harrison, 193 Fee V. Mcllhargey, 27, 32 Fell V. WUliams, 51 Fenner v. L &. S. E. Ky. Co., 118 Fenwiok v. Laycook, 176, 176 Ferguson v. Earl of Kinnoul, 20 v. Kerr, 60 Ferrier v. Cole, 172, 236 Fetriqe ex p. ia re Ferrige, 21 Fesenmayer v. Adcock, 56 Fidgett v Penny, 64, 67 Field V. McArthur, 71, 72 Finlay v. Scott, 193 Finlayson v. Howard, 160 Fisher v. Keane, 221 Fitzsimmons v. Mclntyre, 26 Fletcher v. Marillier, 172 " and Noble, re, 87, 152, 156 Flight V. Robinson, 116 Flitters v. AUfrey, 159 Floreyv. R. C. Bank, 187 Flower ▼. Buller, 71 " v. Todd, 193 Foakes v. Webb, 121 Folger V. Minton, 242 Ford V. Drew, 46 Forfar v. Climie, 28 Forristal v. McDonald, 108 Foster, re, 24 V. Pritchard, 160, 178 Foulger v. Taylor, 171, 172 Fox V. Toronto and Nippising Ry. Co., 65 Francis v, Wigzel, 71 Eraser v. Burrows, 124 " V. Home Ins. Co., 124, 126 Frederic" r. Vanderzee, 91 Freehold Loan and Savings Co. v. Bank of Commerce, 91 Frey v. Mut. F. Ins. Co. of Wel- lington, 181 Frey v. Wellington M. Ins. Co., 40 1-1 XVI. TABLE OF CASES. Friend v. L. C. & D. Ry Co., 118, 119 Friendly v. Needier, re, 27, 31, 86 Fryer v. Roe, 57 FurnesB t. Mitchell, 71 G G V. R , 71 Gage T. The Canada Pub. Co., 154 Gallagher v. Gairdner, 113 Gandee v. Stansfield, 122 Gardner v. Green, 101 " V. Inrin, 125 " V, Lane, 260 Garland v. Omnium SecoritieB Co., re, 28 GaskeU v. Marshall, 175 Gass V. Cololeugh, 182 Gibbings v. Strong, 90 Gibbs y. Cruikshank, 232 Gibson v. McDonald, 139 Gilchrist ▼. Conger, 241 Gildersleeve t. Ault, 171 Gill v. Woodfin, 90 Gillard y. Chalae, 36 Gillespie y. Nickerson, 209 GiUies y. Wood, 236 Gilmonr y. Buck, 235 Giraud y. Austen, 159, 209 Girdlestone y. North B. M. Ins. Co., 115 Glasspoole v. Young, 174 Gleddon y. Trebble, 138 Gloucestershire Banking Co, y. Phillips, 102, 193 Goddeu y. Corsten, 61, 63 Gplding y. Bellnap, 244 GoodaU y. Little, 119 Goodhue, re, 14 Goodright y. Saul, 182 Gordon y. Jennings, 11 Gore Bank, The y. Crooks, 168 Goring y. Cameron, 194 Gough y. Findon, 64 Gould y. The British America Ass. Co. 181 Gould ex p. in re Walker, 249 Goyt. S. Invest. Co. y. Dempsey, 193 Gowanlook y. Mans, 62 Grand Biyer Nay. Co. y. Wilkes, 101 Grant y. Easton, 48, 49 Grant y. Holland, 20 " y. Young, 69 Grass y. Austin, 170 Great Ship Co. re, 173 G. W. Ry. Co. y. Chadwick, 241 " V. MoEwan, 236, 242 Green y. Amey, 122 " y. Burtoh, 60 " V. Stevens, 170 " V. The Hamilton Provident Loan Co. , 49 Greene y. Pro. Ins, Co., 15 Greenough v. Gaskell, 117 Gregory y. Cotterell, 148 Grey y. Pearson, 12 Griffin y. Dickenson, 209 «' v. Patterson. 71 Griffith y. Brown, 86 Guardians, &o. v. Franklin, 215 Guelph C. Co., The v. Whitehead, 118 Guy y. G. T. Ry Co., re, 90, 212, 214 H Haacke v. Marr, 236 Hadley v. McDougall, 124 Hagel V. Dalrymple, re, 30 Haggart v. Kernahau, 240 Haldane v. Eckford, 113 Hale y. Cove, 182 Hali V. Brown, 209 " y. Lannin, 49 " v. White, 261 Hallas v. Robinson, 147 Halpin v. Calder, 287 Halsted v. McCormack, 171 Hamelyn v. Whyte, 117, 125 Hamilton v. Harrison, 170 V. Nott, 119 v. Street, 122 Hamilton, Bank of v. Blakeslee,45 " "V. The West- em Ins. Co., 48 Hamlyn v. Betteley, 33, 133, 144 Hammersmith and City Ry Co. v. Brand, 13 HammUl v. DeWolf, 169 Hammond v, McLay, 235 Hampson v. Hampson, 117 Hand v. Agnew, 181 Hands y. Noble, 29 TABLE OF CASES. XVll. Hanns v. Johnston, 46, 99 Hansen v. Maddox, 142 Harborough v. Shardlow, 181 Harding v. Hall, 172 Hardman v. Booth, 246 Hares T. Lea, 25 Harlan v. Harlan, 246 Harmer v. Cowan, 160 V. Gouinlock, 164 Harper, ex p. in re Bremner, 159 " V. Sorimgeour, 77 Harpham t. Child, 18 Harris t. Chapman, 64 " V. Smith, 246, 247 Harris' Case, 40 Hart V. Fitzgerald, 260 " V. Euttan, 43 Hartford v. Power, 72 Hartley v. Jarvis, 172 Harvey t. Croydou Union Rural Sanitary Authority, 90, 210 Hastings v. Ivall. 122 Hately v. The Merchants' Des- patch Trans. Co. , 154 Hatt V. Gilleland, 246 Haworth v. Ormerod, 10 Haydon v. Crawford, 170 Hays v. Armstrong, 99 Haythcrn v. Bushford, 246 Hayward v. Duff, 169 Hazlewood v. DeBergue, 92 Heaton v. Cornwall, 242 " V. Findley, 249 Hedley v. Bates, 24 " V. Closter, 244 Heley v. Cousins, 243 Helps V. Eno, 19, 204 Henderson v. Henderson, 48 V. Lauok, 247, 248 " V. Moodie, 170 " V. Sills, 240 Henly v. Mayor of Lyme, 20 Henry v. Cook, 237 " T. Mitchell, 163, 164, 166 HewiEon v. Negus, 72 Higginbotham t. Moore, re 26 Higginsv. Barton, 246 Highmore v. Primrose, 64 HiU V. Campbell, 123 " V. Hall, 13 " V. Hart-Davis, 87 " V. Lott, 54, 68 Hills v. Benny, 144, 158, 162, 178 Hitchcock V. Smith, 100 Hobsonv. Monks, 102 Hodgson V. Barvis, 182 Hoffmann v. Postill, 116 Hogan V. Malone, 67 " V. MoSherry, 67 Hogg V, Brooks, 100 " V. Turner, 101 Holden v. Langley, 169 Halland v. Wallace, re, 30 Hollier v. Laurie, 160, 173, 177 HoUingsworth v. Hollingsworth, 153 Holme V. Brunskill, 245 Holmes v, Baddeley, 120 " v. Carley, 8 Hood V. Cronkite, 43 " V. Martin, 61 Hooke V. Ind, Coope <& Co., 143 Hooper v. Gumm, 1 17 V Lane, 173, 176 Hoorigan v. Driscoll, 239, 242 Hope V. Ferris, 49 " V. Liddell, 122 Hopkinson v. Lord Burghley, 124 Horner v. Kerr, 71 Hoskins, re, 86 Household F. Ins. Co. v. Grant,40 Howard v. Earl of Shre »rsbury, 13 Howcutt v. Bees, 122 Howe v. McKernan, x23 Howes v. Barber, 65 Hudson v. Tooth, 27 Huebschmann v. McHenry, 249 Hughes V. Biddulph, 117 " V. Field, 209 " V. Gamons, 118 " V. Thorpe, 66 " V. Towers. 171 Hughson V. Gordon, 127 Hulme V. Tenant 71 Hungerford v. Bedford, 250 Hunt V. Chambers, 246 " v. Elmes, 122 " v. Strew, 245 Hunter v. Caldwell, 186 " V. Lauder, 114 " V. Vanstone, 140, 151, 169, 160 Hurrell v. Wink, 236 Huskinson v. Lawrence, 172, 261 Hutchinson t. Gillespie, 4b v. Glover, 124, 126 Hutchison ^ Colorada U. Mining Co., 193 H XVlll. TABLE OF CASES. IbbotBon T. Henry, 242, 243 Ibotson T. Phelps, 100 Imperial Bank t. Diokey, 76 Ingram v. Taylor, 170 Ireland, Bank of v. Perry, 143 Irving V. Askew, 140, 178 " V. Motley, 247 " V. Veitoh, 54, 57. Jabloohkoff Electric Light Co. v. MoMurdo. 193 Jackson v. Duchaire, 182 " V. Litchfield, 45, 102 Jacobs T. Brett, 22 " V. Brown, 193 " V. Fisher, 55, 66 '• V. Friedburg, 24 James t. Barraud, 73, 74 . " V. Biou, 114 Jameson t. Kerr, 238 Jardine t. Smith, 133 Jarmain v. Hooper, 165, 166, 167, 168. 174 Jenkins v. Miller re 25, 37 " V. Morris, 180 Jenkyns v. Bushby. 120 Jessop v. Crawley, 160, 177 Johnson v. Gallagher, 72 " V. Hnnt,246 " V. Parke, 244 " T. The Credit Lyonnais Co., 108 Jolly T. Bees, 106 Jones ex p., 71 " V. Cook, 241 " V. DeBergue, 92 " V. Elderton, 193 " V. HUl, 169 " V. Jenkins, 169 " V. McDowell, 187 " V. Williams, 160, 177, 178 183 Jones dem Griffiths v. Marsh, 100 Joseph T. Henry, 25 " V Lyons, 170 Jonsiffe t. Bayley, 160 Joy ▼. Hadley, 113 Julia Fisher, The, 154 K Kaitling t. Parkin, 237 Kavanagh v. The Corporation of the City of Kingston, 49 Keane t. Stedman, 140 Kearsley v. Philips, 124 Keefer v. Merrill, 249 Keena v. O'Hara, 180 Kelly T. The Isolated Bish and Farmers' F. Ins. Co., 49 Kendall t. Hamilton, 159 Kennedy v. Hall, 242 " V. Patterson, 164, 165 Kent V. Jones, 101 Kerby v. Denby, 178 Kerkin v. Kerkin. 25 Kero V. Powell, 203 Kerrv. Gillespie, 119 " V. Malpns, 108 Kershaw v. Chantler, 133 Kettlewellv. Barstow, 121, 124 " V. Watson, 17 Kiely t. Massey, 92 King, ex p. 91 " V. England, 171 " V. Farrell. 30 " V. Lucas, 69, 72 " V. Simonds, 209 King of the Two Sicilies t. Will- cox, 128 Kingsford t. Merry, 246 Kingsman v. Kingsman, 73 Kinnear v. Blue, 72, 75 Kinsey v. Boche, 29 Kirby v. Cahill, 246, 261 Kirkendall v. Thomas, 245 Kirton v. Wood, 56 Knowles v. Michel, 64 Kyle V. Barnes, 52 Lafone v. Falkland Island Co., 117 Lake ▼. Biggar, 235 " and the Corporation of Prince Edward, re, 20 Lamb, ex p. , in re Southam, 20 " V. Johnson, 261 Lambert v. Townsend 46 Lamond t. Ei£fe 7 Lanark and O. Plank B. Co. t. Bothwell, 19 111;! TABLE OF CASES. XIX. 1 Land Corporation v. Pulestou, 121 Lane v Hill, 56 Langford v. Foot, 176 Lavery v. Wolfe, 126 Lawford v. Davies, 21 Lawless v. Badford, 244, 263 Lawlor v. Marohison, 116 Lawrie v. Bathbun, 14 Lawson v. Laidlaw, 71> 76, 76 Layoook v. Pickles, 61 Lazarus t. Mozley, 124 Learning v. Woon, 60, 143 Le Banque des Travauz Pabli- ques, etc. v. Wallis, 164 Lecky v. MoDermott, 246 Lee T. Bayes, 170 " T. Gaskell, 249 " V. Bead, 123 Lees V. Corporation of Garleton, 222 Lehman t. Killerman, 260 Leibes v. Ward, re, 139 Lemere v. Elliott, 64, 65 Levi V. Abbott, 166, 167 Levy V. Bail ton, 86 Lewis V. Blarton, 100 " V. Holding, 162 " T. Teale, 242 Leyden and Munster Union v. Scuthgate, 26 Lightbound v. Hill, 169 Lindsay v. Candy, 246 " V. Morrison, re, 28 Lindus v. Bradwell, 106 Lion, The 16 Lion Life Ass. Co. v. Atkinson, 198 Lister v. Northern By. Co., 164, 166 Liverpool Co. v. Fairhurst, 176 L. & Y. Bank v. Cooper, 122 Lloyd's V. Harper, 206 Lloyds' Banking Co. v. Ogle, 93 Lockwood V. Bew, 126 Logan V. Byan, 186 London Chartered Bank v. Lem- priere, 72 Lond. 0. Co., re, 173 L. C. & Dover By. Co. v. Board of Works, 13 Loudon and Devon Bisooit Co., re, 173 London Land Co., The v. Harris, 194 London, Mayor of v. London Joint Stock Bank, 48 Lopez V. Deacon, 124 Lord V. Hall. 106 " V. Wardle, 186 Lough V. Coleman, 162 Lovegrove v. White, 63 Lovell V. Wardroper, 162 Low V. P'reeman, 248 " V. Martin. 248 " V. Owen, 18 Lowell V. Todd, 114 LucB V. Dicker, 18 " V. Tarleton, 172 Lumley v. Gye, 112 Luxon, exp ,in re Pidsley, 20, 179 Lydney and Wigpool Iron Ore Co. V. Bird. 163 Lyell V. Kennedy, 117, 121 Lynch, ex p., 24 Lyness v. Sifton, 176 M Macclesfield v. Bradley, 182, 186 Macdonald v. Farewell, 215 Macdonell v. Macdonald, 113 Macfarlan v. Bolt, 117 Macfie v. Hunter, 142, 160 Macgregor Laird , The, 114 Mackinley v. McGregor, 246 Maclean v. Anthony, 146 Maolem v. Dittriok, 181 Macpherson v. Norris, 161 Macqaeen v. Turner, 71 Mahony v. N. W. L. Ass. Fund, 119 Maitland v. Globe Printing Co., 204 Maiden v. G. N. By Co., 118 Mann v. Backer field, 178 Manning v. Moriarty, 92 Manser v. D'n, 120 Mansfield v. Childerhouse, 116 Man. & Mer. M. F. Ins. Co. v. Campbell, 22, 28 Mapleson v. Misini, 164 Marshall v. Jamieson, 40 Martin v. Bannister, 113 " V, Butchard, 119 " V. McCharles, 209 " qui tarn v. The Consoli- dated Bank, 92 XX. TABLE OF CASES. MaBon V. Bickle, 108 " V. John SOD, 2.38 " V. Morgan, 170 " V. Wirral Highway Board, 169, 1«5 Mason in re Mason v. Cattley, 118 Massey t. Allen, 166 ^' V. Rapelje, 107 Masaret t. Lansdell, 166 Mather t. Trinity Church, 249 Matthewman'8 Case, Mrs. 72 Matthews v. Whittle, 71 May T. Howland, 164 " V. Severs, 171, 172, 176 Mayor of Bristol v. Cox, 120 Mayor of London v. London Joint Stock Bank, 48 Mead v. Creary, re 21, 29, 47 Meager v. Pellew, 76, 77 Meek v. Scobell, 26 Mellor T. Leather, 283 Meloche t. Beaume, 216, 244 Melville v. Carpenter, 60 Mennie v. Blake, 233 Mercer v. Stanbury, 160, 178 Merchants Bank v. Herson, 140 " V. Pierson, 118 " V. Tisdale, 122 " V. Van Allen, re 81, 33, 86 Merrick v. Sherwood, 73 Mersey Steamship Co., The v. Shnttleworth, 88, 94 Mersey Steel and Iron Co. v. Naylor, 193 Met. B. & S. Society v. Bodden, 85 Metropolitan Loan and Savings Co., The V. Mara, 76 Meyers v. Baker, 242, 244 " V. Maybee, 243, 244 Middleditch v. Ellis, 67 Middlefield v. Gould, 200, 201, 202 Middleton v. Pollock, 66 Mildrum v. Snow, 245 Miles V. Mcllwraith, 108 Miller v. Hill, 107 " V. Miller, 171, 233, 240 Millett V. Coleman, 26, 159 Minet v. Morgan, 117 Minor v. L. & N. W. By. Co., 218 Mitchell V. Foster. 109 v. Render, 218 Mitchell V. Mulholland, 178 Moffatt V. Prentice, 113 Montreal, Bank of v. Cameron, 91 V Little, 151 Moody V. Steward, 25 Moore v. Connecticut Mut L. Ins. Go , 187 Moore v. Craven, 115 " V Drinkwater, 173 " V. Hicks, 180 Moran v. Schermerhorn, 107 Morgan v. Bees, 143, 144 Morrell v. Wootten, 124 Morris v. Bethel, 115 Morrison v. The Universal M. Ins Co., 246. Moser, re 249 " v. Snarr, 181 Moses V. Bichardson, 76 Mossop V. Great Northern Bail- way Co., 140, 178 Mostyn v. West Mostyn Coal Co., 117, 120 Mouflet v. Cole, 215 Mowrey v. Walsh, 246 Moxham v. Day, 246 Muirhead v. Direct U. S. Cable Co , 92 Mullin v. Pascoe, 165 Mnlvaney v. Hopkins, 244 Munday v. Asprey, 28 Munsie v, McKinley, 148, 160, 260 Munster v. Bailton, 102 Murray v. Gibson, 201, 202 " V. G. W. By. Co., 100 " V. McCallum, 71 " V. Walter, 124 Mutual Society, re, 122 Myles V. Thompson, 168 Mc MoArthur v. Cool, 163 V. Walkley, 172 McCallum v. Gracey, re, 36 V. Pro. Ins. Co., 101 McCann v. Waterloo Co. F. Ins. Co., 40 McCaskill v. Pazton, 12 McCausland v. McCallum, 249 McClevertie v. Massie, 166 McCoUum T. Kerr, 164 MoCorquodale V. Bell, 118, 119 McCraoken v. Creswick, 28, 29, 49 TABLE OF CASES. XXI. McCrary v. McCrary, 261 McCrea v. Waterloo Co. M. F. Ins. Co., 21, 40, 178 McCready v. Higgins, 72 McCulloch V. The Gore District M. F. Ins. Co., 181 McDonald v. Cleland, 4.S V. Forrestal, 2.S8 V, Lane, 236, 243, 248 McDonell v. McKay, 125 V. Smith, 113 " v. Vankoughnet, 118 MoDonough v. Alison, 109 McDougall V. Campbell, 61 V. Smith, 251 MoFarlan v. Bolt, 117 MoFarlane v Murphy, 73 McGarel t. Moon, 116 MoGill V. Peterborough, 13 MoQowan v. Midrlleton, 26, 94 McGregor v. McNeil, 240 McGuin T. Benjamin, 101 McHardyv. Hitchcock, 116 Mcintosh V. Mcintosh, 143, 160 Mclntyre v. Stata, 146 McKay v. Grinley, 60 MoKelvey v. McLean, 191, 243, 244 McKenzie t. British Linen Co , 108 McKenzie v. Stewart, 209 McKinstry, v. Arnold, 60 McLaren v. Muirhead, 181 V. Sudworth, 92 McLaughlin v. Bank of Ottawa, 21 McLean v. McLeod, re, 27 V. Pinkerton. 103, 109 134, 179 McLean v. Smith, 71 McLeish v. Howard, 61, 203 McLellan qui tarn v. Brown, 20 MoLeod V. Fortune, 164 McMartin v. Hurlburt, 173 McMaster t Beattie, 85 McMillan v. Gore District Mut. F. Ins. Co., 181 McMnrty v. Munro, 68 McNabb v. Howland, 250 McNaughton v. Webpter. 60 McQueen t. McQueen, 67 MoWhirter v. Learmouth, 169 N Nasmith v. Manning, 40 National Coffee Palace Co. in re, fx parte Panmure, 107 Nealdv. Corkindale, 191 Nerlich v. Clifford. 27 V. Malloy, 20 New British M. Invest Co. t. Peed, 121 Newberry v. Colvin, 183 Newell V. The People, 9 Newborn t. Lawrence, 68 Newton v. Harland, 173 Nias V. N. & E. By. Co., 120 Nicholl V. Elliott, 125 *' V. Jones, 120, 125 Nicholls V. Cumming, 14 NickoU exp. . in re Walker, 17 Nixon V. Sheldon, 164 Noble v. Adams, 182 Nordheimer t. Bobinson, 238 Nordon v. Defries, 120 Nurse v. Durnford, 107 Nutt V. Bush, 85 o Oakes v. Turquand, 246 Oastler exp., in re Friedlander, 18 Oates y. Cameron, 249 O'Brien v. Ball, 156 Ockley v. Masson, 114 O'Donohoe v. Wiley, 40 Offay V. Offay, 66, 84 Ogden T. Craig, 141 " V. Stock, 249 Oliphant v. Leslie, 140, 161, 160, 164, 177 O'Neil V. Clason, 46 Ontario Bank v. Burke, 127 Ontario Glass Co. v. Swartz, 29, 113, 212 Oram v. Brearey, 22, 23, 227 O'Bourke v. Lee. 237 Ortner v, Fitzgibbon, 71 Osgood T. Green, 245 Ottawa, Bank of, v McLaughlin, 29, 46, /.2, 102, 103, 109, 145 Ottway v. Wing, 76 Owen V. Flack, 114 " V. Wynn, 121 xxii. TAHr.K OF CASES. Paoaud v, McEwan, 244 Paoey v. Loudon Tramways Co., 118 PaddoD V. Winch, 118 Palmer v. Baker, 205 " V. McLennan, 59 Palomares, The, 148 Paris Manufacturing Co. v. Walls, 141 Park V. Taylor, 164 Park Gate Iron Co. v. Coates, 108 Parkes t St. George, 169 Parko V. Davis, 20 Partridge v. Swaby, 245 Patch V. Ward, 125 Patersonv. Bowes, 113 " V. Maughan, 187 Patterson v. Fuller, 244 " V. Langley, 169 " V. MoKellar, 240 Paul V. Joel, 19 Peacey v. Ovas, 172 Peacock v. Harris, 61 V. Purvis, 171 " V. The Queen, 21 Peareth v. Marriott, 169 Pearse v. Pearse, 117, 120 Pease v. Gloahec, 246 Peck and The Corporation of the Town of Gait, re, 188 Peer v. Humphrey, 246 People V. Westbrook, 24 Peroival v. Stamp, 176 Perkins v. Dangerfield, 133 Perks v. Mylrea, 71, 76 Perrin v Conley, 241 Perry v. Attwood, f 6 Phillips v. Barnet, 74 " V. Bruce, 86 " v. Findlay, 164, 166 v. Spry, 46 Phipps V. Beamer, 156 Phosphate Sewage Co. v. Molle- son, 169 Photographic Artists Co-operative Supply Ass., re, 165 Pioard v. Hine, 75 Pickering v. Noyee, 122 Pierce v. Stephens, 245 Pierpoint v. Cartwright, 208 Pike T. Fitzgibbon, 71, 72, 76 Plant y, Eendrick, 124 Plas-yn-Mhowys Coal Co., re, 173 Plummer v. Price, 143 Polak v. Everett, 108. 246 Pole V. Leask, 168 Pollock V. Campbell, 45, 102 Pontifex v. Foord, 193 Poole V. Canning. 76 Porter v. Flintoff, 170 " v. Foster, 246 Porters v. Miller, 193 Postman v. Harrell, 172 Potteries, Shrewsbury & Nortli Wales Co v. Minor, 173 Potteries, Shrewsbury St North Wales By. Co, re, 173 Powell v. Smith, 249 " v. Williams, 133 Poyser v. Minors, 146 Prescott Election, re, 19 Prestney v. Corporation of Col- chester, 112 Preston v. Wilmot, 203 Prestwick v. Poley, 105 Price re Stafford v. Stafford, 74 " V. Plummer, 143 " V. Thomas, 101 Prideauz v. Warne, 248 Progress Ass. Co., re, 173 Pryor v. City Offices Co., 26, 145 Pulver V Yerex, 172 Pnnnett, ex p., in re Eitchin, 289 Pybus v. Gibb, 203 Pyke, ex p., in re Lister, 55 Q Quartz Hill &c. Co. v. Beall, 74 Quebec Bank v. Radford, 72, 76, 103, 127 Quick V. Staines, 176 R Railway Sleepers Supply Co., re, 109 Ramsden v. Brearley, 74 Rapp V. Palmer, 247 Rasbotham v. Shropshire Union Rys. and Canal Co., 112 Rattan v. Ashford, 148 Ray T. Blair, 181 Read v. Anderson, 56 Reaume v. Leavitt, 155 Redondo t. Ghaytor, 165 Reoce t. Trye, 120 TABLE OF CASEH. XXUl. Seed V. Reed, 58 " V. Smith, 62 Rees V. MoKeown, 240 Rees Urquhart t. Toronto Trusts Co , rty 135 Reeve v. Whitmore, 147 Reeves v. Barlow, 147 Reg V. Aberdare Canal Co., 109 Andrews, 240 Baker, 180 Berkshire, Justices of, 20 Bishop of Oxford, 12 Boteler, 63 Buckle, 240 Bunting, 24 Chester Lines Committee, II V. ' V. ' V. ' V. ' V. ' V. ' V. ' V. 221 ' V. College of Physicians and Surgeons, 221 " V. Collins, 221 " V. Court of Revision of Corn- wall, 33 " v. Crouch, 108 " V. Derbyshire, Justices of, 18 " v. Doty, 140. 178 " V. Doutre, CI " V. Fee, 138 " V. Garbett, 123 " V. Hart. 187, 207 " V. Hughes, 108 " V. Huntingdonshire, Justices of, 17 " V. Hutchings, 160 " V. Judge of the Marylebone County Court, 90, 93 " T. Justices of Berkshire, 20 "v. " Derbyshire, 18 " V. " Huntingdonshire, 17 " V. " Middlesex, 109 " V. '• the North Riding of Yorkshire, 100 " V. Justices of Salop, 17 " V. " Shropshire, 109 " V. " Rurrey, 17, 18 " V. " Westmoreland, 18 " V. Law, 221 " V. Lefroy, 113 " V. Leominster, 19, 102 " V. Lightfoot, 212 " V. L. B. AS. C.Ry. Co, 114 " V. Marylebone County Court, Judge of, 90, 93 " V. Middlesex, Justices of, 109 " V. Nichol, 17, 18 Reg. V. Oxford, Bisliop of, 12 " V. Pawlett, 150 " V. Recorder of Hath, 196 "V. " of Ipswich, 196 " V. Salop, Justices of, 17 " V. Shaw. 108 " V. Shropshire, Justices of , 109 " V. Skone, 10 " V. Smith, 108 " V. S. Eastern Ry. Co., 90, 178 " V. Stock, 196 " V. Stone, 108 " V. Surrey, Justices of, 17, 18 •' V. Tomb, 48 " v. Washington, 10, 12 " V. Westmoreland, Justices of, 18 " V. Whelan, 14 " V. Yorkshire, Justices of the North Riding of, 100 Reid V. Langlois, 117, 124 " V. McDonald, 237 Republic of Costa Rica v. Erlan- ger, 115 Republic of Peru v. Weguelin, 126 Rew V. Hntchins, 115 Reynolds v. Barker, 155 " V. Howell, 107 Rhodes v. Executors of Crawford 57 Richards v. Johnston, 146 " V. Marten, 30 Richardson v. Hastings, 124 " V. Reed, 251 " V. Shaw, 31, 209 " V. Williamson, 107 Ritchie v. Prout, 59 Rob V. Jos. Digest, 113 Roberts v. Dauphin Bank, 239 " V. Oppenheim, 123 Robertson v. Comwell, 30 V. Coulton, 43 " V. Cowan, 155 V. Shewell, 124 " V, Thomas, 170 Robinson t. Kitchtn, 123 " V. Pickering, 72, 75 '< V. Ralston, 51 " V. Waddington, 172 Robson V. Arbuthnot, 19, 109 V. Crawley, 115 Roe T. Roper, 146 Rogers v. Arnold, 245 " V. Dutt, 20 XXIV. TABLE OP CAHEH. Rogers v. Kennay, 170 " V. L. C. dc I). By. Co., 84 214 RoisBier v. We8tbrook, 107 Roland v. (iuiuly, 247 Rolfe V. Lenrmoutl), 218 Rooda V. Gun and Shot and Grif- fin's Wharves Co., 102 Rose ▼. Savory, 66, 61 Rosier, re Jones v. Bartholomew, 94 Ross Kstatd re, 116 " V. (irange, 210 " V. Robertson. 118 Rossi T. Bailey, 169 Bothes, The Countess of v. Kirk- caldy Waterworks Oommission- ers, 10, 98 Bowberry v. Morgan, 21 Rowland v. Yizetelly, 100 Rowley v. Bigelow, 246 R. C. Bank v. Kelly, 289 f RuiDohr T.' Marx, 109 Runnaoles t. Mesquita, 98 Rusden v. Pope, 148 Russell V. Wells, 67 Ruthven v. Ruthven, 66 . Rattan t. Short, 244 S Saffrey, ex p., in re Lambert, 21 Salisbury v. Sweetheart, 101 Salter t. MoLeod, 162 Sanderson t. Perrin, 143 " T. The Kingston Marine By. Co., 172 Sangster v. Kay, 213 Sargant v. The City of Toronto, 286 Sato T. Hubbard, 84, 195 Saunders t. Furnivall, 122 Sayward v. Warren, 245 Soadding v. Eyles, 60 Scales ▼. Sargeson, 161 Sohaffer v. Dumble, 234 Sohamehorn v. Traske, 160 Schulenburg v. Harriman, 248 Scott V. G. T. By. Co., 188 " T. Mitchell, 43 " V. McRae, 234 " V. North, 240 Sear v. Webb, 94 Seaward v. Williams, 151 Segsworth v. Meriden Silver Pla- ting Co , 162 Senn v. Hewitt, 116 Severance v. Civil Supply Associa- tion, 73, 74 Shand v. Grant, 61 Shannon v. Hastings U. F. Ins. Co., 40 Sharpe, re, 48 Shaver v. Jamieson, 187 Shaw V. Niok<4rson, 209 Shearick v. Huber, 261 Sheffield NioKle Co. t. Unwin, 240 Shelford v. The Louth and East Coast By. Co., 44, 92 Sherry, re London and County Banking Co. v. Terry, 206 Shields t. The Great N. By. Co., 214 Shillitoe t. Claudge, 182 Shingler v. Holt, 168, 170 Sibbald v. Boderick, 236 Sills v. Hunt, 240 Simmons v. King, 169 Simpkin, ex p., 21 Simpson t. Brown, 117 Sinclair v. Ghisholm, 60 " v. llobson, 52 Sivewright v. Sivewright, 112 Skinner v. G. N. By Co., 118 V. Todd, 73 Slaght T. West. 166 Small T. Eocles, 114 Smalley v. Gallagher, 236 Smart v. Miller, re, 48 " V. N. & D. B. By. Co., 63 and OBeilly, re, 81 Smiles v. Belford, 12 Smith T. Aubrey, 236 " V. Babcock, 113 " V. Barnes, 125 " V. Berg. 115, 125 '• V. Critchfield, 141, 177 " V. Daniell. 117. 119 " V. Darlow, 178 '• V. Dobbin, 180 " V. Cowling, 116 " T. Duke of Beaufort, 122 " V. Hobson, 237 " V. Keal. 166, 168 " V. Page, 65 " V. Boblin, 107 " V. Spurr, 101 " V. Williamson, 243 " V. Wilpon, 50, 51, 63 " V. 'Loung, 17 Smonc \ . Ubery. 176 TABLE OF CASES. XXV. Sneary v. Abdy, 148 Snyder v. Vaux, 248, 249 Sooiete Oenerale de Paris v. Tram- ways Union Co., 109 Solicitor, re, 99 Solomon v. Bitton, 180 Sonles V. Koules, 48 Houthampton Dock Co. v. Rich- ards, 49 South wark Water Co. v. Qaiok, 118. 119 Sparling v. Savage, 66 Speller t. British Steam Nav. Co,, 198 Spencer v. Roberts, 246 Spry T. MoEenzie, 236 Squire v. Mooney, 236 Staley v. Bedwell, 162 Standard Bank v. Boulton, 71 " V. McOuaig, 76, 114 Standard Bank v. Wells, 51, 52 Star Kidney Pad Co. t. Green- wood, 118, 193 Steele T. Stewart, 117 Steels T. Hullman,-73 Stephen v. Gwenap, 202 Stephens v. Berry, 69 " V. Cousins, 242 '- T. Laplante, 2A Stevenson v. Newnham, 246 Stewartstown Loan Co. v. Daly, 90 Stoeser v. Springer. 240, 242, 246 Stokes V. Eaton, 164 Stone V. Kuapp, 70 Stovelv. Coles, 116, 122, 128 Strutton v. Hawkes, 101 Stuart v. Branton, 209 Summers v. City Bank, 94 Sunbolf V. Alford, 246 Sutherland v. Sutherland, 116 Sutton V. Devonport, 114 V. Sutton, 11 Swan V. Clelland 186 Sweetman v. Morrison, 168, 166 Swift v. Jones, 43 Swinborne v. Nelson, 116 Sykes v. Brookville and Ottawa Ry. Co., 48 Tanored v. Allgood, 176 Tanner v. European Bank (Lim- ited), 160 Taylor v. Collier, 102 V. Jones, 26 " V. Nicholls, 26 Tennant v. Bawlings, 19 Thames, Conservators of v. HriJj, 13 The i.ion, 16 Theodor Korner, The, 118, 119 Third National Bank of Chicago v. Cosby, 60 Thomas v Dunn, 128 «• v. Hawkes, 66, 61 «• V. Bawlings, 117 Thompson v. Kaye, 248 " V. Langridge, 159 V. Pettitt, 178 " V. Rose, 246 V. Wright. 142 Thorley's Cattle Food Co. v, Mas- sam, 74 Thornton v. Adams, 13 Thorpe v. Adams, 13 " V. drier. 187 Threlfall, re, 239 Thwaites v. Sainsbury, 182 Tiffany v. Bullen, 91 Tillett V. Ward, 231 Tilson V. Warwick Gas Co., 67 Tilt V. Jarvis, 164 Tinkler v. Hilder, 159, 160, 178 Tomhne v. The Queen, 122 Tomlinson v. Bullock, 15 " V. Land and Finance Corporation, 153 Toms V. Bills, 64, 66 Toppin V. Buckerfie'.d, 144, 164 Toronto, The Bank of v. McDou- gBll, 91 Toronto Gravel Road Co. v. Taylor. 118 Townsend v. Hamilton, 186 Trimble v. HUl, 16, 69 Trubody v. Brain, 183 Trueman v. Hurst, 65 Trust and Loan Co. v. Jones, 99 " " " V. Lawrason, 239 Tucker, ex p., in re Tucker, 221 " V. Barrow, 56 Tufifts V. Mottashed, 238 Tunbridge Wells Local Board v. Akroyd, 221 Turner v. Bridgett, 140 I XXVI. TABLE OF CASKS. Tnmer t. Imperial Baak of Can- ada, re, 148, 149 Turner v. Neill, 86 Turton v. Barber, 117 Tyke v. Coaford, 68 u Union F. Ins. Co. v. Fitzsimmons, 40 United States v. Freeman, 8 U. S. of America v. MoRae, 123 U. C. Bank v. Ketchum, 85 Vale V. Bayle, 182 " V. Oppert, 123 Vanoe v. Wray, 241 Van Every v. Ross, 248 Vansittart v. Vansittart, 72 Vanstaden v. Vanstaden, 151, 156 Van Wart v. Carpenter, 205 Vaaghan ex p., 25 Vausse v. Russell, 248 Verratt v. McAulay, 205 Victoria Mutual Fire Ins. Co. v. Davidson. 202, 203 Victoria Mutual Fire Ins. Co. v. Thomson, 236 Vidal V. Bank of Upper Canada, 180 Viney exp., in re Gilbert, 21 Vivian v. Little, 125 Vogt V. Boyle, 33 w Wagstaff V. Jacobowitz, 108 Wainford v. rieyl, 73 Wake V. Hall, 249 Walbridge v. FoUett, 181 Walker v. Hicks, 50 " V. Hyman, 108, 238 " V. Niles, 141 " V. Olding, 160, 16/, 164 165 " V. Booke, 45, 102 " V. Wildman, 124 Wallace v, Bossom, 159 V. Cowan, 243 " V. Hutchison, 71 Wallbridge v. Brown, 60 Wallingford v. Mutual Society, 88 Wallis V. WalliB, 92 Walsh y. lonides, 25 Walsham v. Stainton, 119, 120 Walton, ex v., in re Levy, 12, 196 Wanzer v. Stontenburgh, 85 Ward V. National Bank of New Zealand, 205, 246 " V. Raw, 108 " V. Vance, 98 Wardrope v. Can. P. Ry. Co.. 48 Warehouse Co. v. Durraut, 45 Warely v. Poapst, 107 Warne v. Routledge, 72 Wurner v. Cushman, 248 Warrick v. Queen's College, Ox- ford, 125 Warwick v. Bacon, 100 Washington v. Webb, 160 Waters v. Earl of Shaft»bury, 123 Watkins v. Washburn, 59 Watson v. Severn, 49 Watt V. Barnett, 180 Wavman v. Hilliard, 54 Webb V. East, 123 Webster v. Leys, 73, 74 Weeks v. Laylor, 237 V. Propert, 107 " V. Wrav 21 179 Weldou V. DeBathe, 73, 74 v. Winslow, 73, 74, 76 Welland, Corporation of, v. Brown, 202 Welsh V. O'Brien. 244 Western of Canada Oil Co., The, V. Walker, 125 Westlob V. Brown, 108 West of England and S. Wales D. Bank v. Canton Ins Co., 12.' Westover v. Turner, 212 Wharton v. Naylor, 171 Wheatley v. Williams, 56, 67 Whelan v. The Queen, 14 Whetwell v. Wells, 246 Whiley v. Whiley, 226 Whistler v. Hancock, 19 Whitaker v. Izod, 123 White, ex p ,76 V. Garden, 246 v. Spettigue, 170 V. Watts, 169 White Sewing Machine Co. v. Belfry, 28, 37 Whitehead v. Fothergill, 148 Whitton ex p., in re Greaves, 21 Whitwell V. Brigham, 52 TABLE OF CAHEH. XXVll. Wicks V. Wood, 143 Widmeyer t. MoMahon, re, 28, 29, 49,70,72 Wier V. Tucker, 116 Wilkes V. Buffalo B. * G. By. Co. Wilkins T. Peatman, 162 Williams v. Crow, 231 V. Grey, 146, 171 " V. Mercier, 76 " V. Preston, 107 V. Prince of Wales, Ac, Co ,124 Williams v. RiohprdsoD, 140 ^,r.,!'. '^ P' *" ''« Jones, 20 Willing V. Elliott, re., 146 Willis V. Gipps, 221 Willmott V. Barber, 207 Willock V. Noble, 74 Wills V, Hopkins, 151 Wilson V. Church, 208 V. Corporation of Middle- sex, 236 Wilson V. Dnndas, 60. 143 " V. Hill, 181 V. MoGuire, re, 139 V. Isighiingale, 172 V. Northampton Ry. Co., 117 " V. Raffalovich, 121 V. Thornbury, 116, 123 V. Tumman, 166, 167 „/' V. Wilson, 65, 56, 151 Wiltsey V. Ward, 27, 28 Wiltsie V. Ward, 28 Wiman v. Brads'ireet, 119 Wingate v. Smith, 248 Winger v. Sibbald, 26. .^' Winter v. Bartholomew, 160, 177 Winterfield v. Bradnnm, 164 Wood V. Woad, 221 " V. Young, 69 Woodruff V. McLennan, 90 Woods V. Nixon, 246 V. Rankin, 171 Wood word v. Woodward, 72 Woolen V. Wright, 164 Woolley V. Clark, 177 " V. N. L. Ry. Co., 118 Woolmer v. Devereux, 123 Wright V. Western Ins. Co., 125 Wynn v. Humberston, 120 Wynne v. Ronaldson, 21 Yarmouth, Corporation of, v. Simmons, 13 Young V. Fluke, 69 V. Herdio, 260 " V. Higgon, 20, 179 " V. Morden, re, 30, 36 " V. O'Reilly, 21 " V. Schuler, 68 V. Smith, 86 " ex p., ^5, 102 " ex p., mrcKitchin. 202 " re Trye v. Sullivan, 75 Zaritz v. Mann, 27 Zimmerman v. Woodruff, 60 THE DIVISION COURTS AMENDMENT ACT, 1885. Chapter 14, {Ontario.) An Act to Further Amend "The Division Courts Act." [Assented to SOtk March, 188S.] HER MAJESTY, by and with thef.T. ' "^ ded. advice and consent of the Legis- lative Assembly of the Province of Ontario, enacts as follows : — 1. Section 14 of The Division Courts Act, 1880, is hereby amended («) by adding thereto the words following: — (b) ^^ And every such notice shall be in writing; (c) and prohibition to a Division Court shall not lie in any such suit from any Court whatever, (d) where c 8, araen- I" DIVISION COURTS ACT, 1885. [Sec. 1. such notice disputing the jurisdiction has not been duly given as aforesaid." («) THE INTERPRETATION OF STATUTES. In commencing to comment oii an amending and remedial Statute like this, it will not be out of place to recall to the mind of the reader a few of the cardinal rules by which judicial construction is placed upon all Statutes. Like every other branch of law, it was found necessary in the early history of English jurisprudence to lay down certain rules or canons of statutory construction, which, though not altogether uniform or consistent as discussed by different minds and decided by different Judges, in the main, come down to us unchanged and as fresh as when expounded by Lord Mansfield a century ago. By gaining an understanding of these rules, which are a guide to us in the proper view to be taken of our written laws, can the highest duty of advocate or Judge only be performed. In the exposition of all law the most eminent will find that other minds have considered and other tongues have expressed its meaning and elucidated its principles much better and clearer than they can ever hope to do. From the legal sages of the past more than the distin- guished Judges and jurists of the present do we draw our highest conceptions of law. To the former particularly do we owe almost entirely the wise rules which obtain and the principles to be observed in the construction of all Statutes. To the present race of Judges we owe the enlarge- [Sec. 1. DIVI8I0N COURTS ACT, 1885. meat of those rules to meet the necessities of an advanced and progressive age, and the ever recur- ring requirements of mankind, and that enlight- ened exposition of principle by Avhich only all laws are truly construed or administered and justice attained. It is proposed in tlic following extracts taken from the well-known authority on the construction of Statutes by Sir Fortunatus Dwarris, edited by Mr. Justice Potter, of the Supreme Court of the State of New York, to give in the words of the text some of the cardinal rules to be observed and principles to be deduced on that subject. There will also be found a citation of some of the latest cases on points that frequently arise, and the meaning to be placed in that large pa.rt of our jurisprudence, the written law. At pages 38 and 39 of the work just mentioned it is said : " That a nation's progress in morality, philosophy, letters, arts, science, trade and com- merce, civilization and refinement, may be pretty accurately ascertained from their written or Statute laws. Their spirit should, and doubtless does, enter into the language in which they are drawn. Just in proportion as these laws are grounded in natural justice, and. speak a language, evincing moral and intellectual progress, they exalt and adorn the character of her people. " In our own, as in every system of jurisprudence, the Statute law forms but a part of the law of the system ; and it may be safely asserted, that no system of jurisprudence would be perfect, that should be confined to legislative enactments. It DIVISION COURTS ACT, 1886. [Sec. 1. is not within the power of the human mind, or in any combination of minds, to foresee and provide rules beforehand, to regulate the condu(;t of men in every change and variety of circiumstances and conditions, so that when individuals neglect, or violate rules thus prescribed, the departure from right, finds its exact description, and finds a recog- nized rule to be applied to it, which shall restore the legal relations of the parties. Therefore it follows, that the laws of every community, consist of two elements. First, those rules of conduct which are introduced by the law-making power in an express and positive form ; which control the particular cases and circumstances to which they relate or describe, and which are called Statutes, made by legislation ; and Second, those precepts of natural right which are not superseded by Statute law, and which, therefore, remain in full force as to all other circumstances and cases, and which forever continue in force as the measure of justice until superseded or changed by legislation ; and while in force, controlled by the rudiments of ^s',^! science and the profoundest of human wisdom ' I experience, remain at all times the highest . ' 'ity and protection of the citizen. " Perhaps in no feature of a nation's character, more than in her written laws, is her moral and industrial character made manifest. They indicate the progress of her civilized development, by their relative fitness and simplicity ; and they afford materials for forming a judgment as to her lettered skill and intellective wisdom. Next to inspired revelation, the book which contains a nation's laws, Seel.] DIVISION COUUTS ACT, ISS;!. 6 is most important. From this, tlie citizen learns the extent of his rip-lits, and the nature of his political and social duties. In a country which has adopted it as one of its maxims, tliat " ignorance of law excuses nobody," it should be the aim of the lawmaker, that its Statutes should be drawn in language clear and simple; that their meaning should be plain and unmistakeable ; and if am- biguity or doubt do seem to appear; its maxims and rules of interpretation should be formed in the soundest wisdom." In speaking of the meaning to be given to the same word occurring in different places, the learned author says at pages 195 and 196 : " According to Vattel, it is by no means a correct rule of interpretation, to construe the same word in the same sense wherever it occurs in the same enact- ment. "It does not follow," he says, "either logically or grammatically, that, because a word occurs in one section with a definite sense, that therefore the same sense is to be adopted in every other section in which it occurs. The framers of laws do not weigh only the force of single words, as philologists and critics, but of w^hole clauses and designated objects, as statesmen and practical reasoners. In common language the same word has often various meanings." The peculiar sense in which a word is used in any section is to be determined by the context. Words used in a consolidation Act may have a different meaning from that of the same words when used in any of the Acts comprehended. If the words of a Statute are plain, they must be strictly followed ; but if DIVISION COURTS ACT, 1886. [Sec. 1. they are ambiguous, the whole context must be looked to for their explanation. " The correct rule is to construe Acts of Parlia- ment according to their grammatical and natural sense, unless the context show clearly that a different sense was intended." In giving effect to the words used in the enact- ing clause, the author says at page 198 : "It is a safe method of interpreting Statutes to give effect to the particular words of the enacting clauses. For when the legislature in the same sentence uses different words, the courts of law will presume that they were used in order to express different ideas. So, if there be a material alteration in the language used in the different clauses, it is to be inferred that the legislature knew how to use terms applicable to the subject matter. "The several inditing and penning of the different branches," said the Judges in Edrick's Case, " doth argue that the maker did intend a difference of the purview and remedies." So also it is said at page 199 : " It is a rule of construction, founded in reason and supported by many authorities, that words in a will or Statute are to be construed according to their strict and proper acceptation, unless there be something to show that such a construction is not intended. Words of known legal import are to be considered as having been used in their technical sense, or according to their strict acceptation, unless there appear a manifest intention of using them in their popular sense." Against the danger of importing into Statutes Sec. l.J DIVISION COURTS ACT, 1886. language not there used, the author says at pages 199 and 200 : "Every day," said Patteson, J., in a late case, " I see the necessity of not importing into Statutes, words which are not to be found there. Such a mode of interpretation only gives occasion to endless difficulties. In Lamond v. Eiffe, 3 Q. B. Rep. 910, Lord Denman said, " We are required to add some arbitrary words to the section, which would exclude us from acting in certain cases. We cannot introduce any such qualifications ; and I cannot help thinking that the introduction of qualifying words in the interpretation of Statutes is frequently a great reproach to the law. None of the distinctions suggested are contained in the plain words of the Act, and we cannot qualify them by any arbitrary introductions." So, in Everett and Mills, 4 Scott, N. C. 531, Tindal, C. J., said, " It is the duty of all Courts to confine them- selves to the words of the legislature ; nothing adding thereto, nothing diminishing. We must not import into an Act a condition or qualification which we do not find there." Again, he says at page 201 : " In construing the words of an Act of Parliament, and collecting from them the intentions of the legislature, the terms are always to be understood as having a regard to the subject matter ; for that, it is to be remembered, will always be in the eye of the framer of the law, and all his expressione directed to that end." To this the American editor adds : " Whenever any words of a Statute are doubtful or obscure, the intention of the legislature is to be resorted to, in order to find the meaning of the words. 8 DIVISION COURTS ACT, 188.>. [Sec. 1. The meaning: of the leR-iwlature may be extended beyond the precine words used in the law, from the reason or motive npon which the lejyrislature proceeded,— from the end in view,— or the imrpose which was designed; the limitation of the rule being, that to extend the meaning to any case not included in the words, the case must be shown to come within the same reason upon which the law- maker proceeded, and not only within a like reason : United States v. Freeman, 3 How. U. S. R. 565." At page 203 it is said by the American editor that : "" The words of a Statute, if of common use, are to be taken in their natural, plain, obvious and ordinary signification ; and it is an established rule in giving construction to a Statute, first to ascertain its intent. This may be determined from the language of the whole, and every ])art of the Statute ; and sometimes from the cause or necessity of making the Statute. When ascertained, it should be followed with reason and discretion ; though such construction may seem contrary to the letter of the Statute, for it is the intent which often gives meaning to Avords otherwise obscure and doubtful. A thing which is within the intention of the makers of a Statute, is as much within the Statute as if it were within the letter ; and a thing which is within the letter, is not within the Statute, unless it be within the intention of the makers : Holmes v. CarUy, 31 N. Y. R. 290 ; Chase v. N. Y. O. R. R. Co., 26 N. Y. 523. But all the provisions of the Statute to this end should be taken into con- sideration, and no interpretation should be given Sec. l.J DIVISION COURTS ACT, 1885. 9 (•oiifiiied to a part of the Statute, or to a weparate yection alone : Newell v. The People, 7 N. Y. R. 97." The author, in speaking of a literal interpretation of Statutes, remarks at page 212 : " In the conatru(5- tion of a Statute, it is the office of an expositor to put such a sense upon the words, that no innocent l)erson shall receive any damage by a literal construction. Where a Statute will bear two interpretations, one contrary to plain sense, the other agreeable to it, the latter shall prevail. If words literally understood, bear only a very absurd signification, it is necessary to deviate a little from their i)rimary sense ; and Blackstone admits, that if, out of Acts of Parliament, there arise, coUater- aUy, any absurd consequences, manifestly contra- dictory to conniion reason, Acts are, with regard to those collateral consequences only, held void. Such cases, indeed, are excepted out of the Statute by common sense, and the nonsensical words are said to be " controlled by the common law." The views of the late Justice Story, on the construction of Statutes from impolicy or incon- venience, are expressed at page 215. in the language of that great Judge : " Arguments," says Story, " drawn from impolicy or inconvenience, ought to have little weight. The only sound principle is to declare ita lex scripta est, to follow and to obey. Nor if a principle so just could be overlooked, could there be well found a more unsafe guide in prac- tice, than mere policy and convenience. Men, on such subjects, complexionally differ from each other ; the same men differ from themselves at different times. The policy of one age may ill suit 10 DIVISION COURTS ACT, 1886. Sec. 1.] tho wiHheH or the poli(;y of another. Tlie law is not to be Hubject to such fluctuations." At the same pa^e it is said : " It remains to illustrate the rule— that effect cannot be given to an intention not expressed. "Of this rule there seem to be tvvro brandies. The first instance that may be stated, is, where the legislature may have intended to provide for a particular case, and yet not have carried its inten- tion into effe(5t. "We can only say of the legis- lature," said Lord Ellenborough in Bex. v. Skone, " quod voluit non dixit,^'' 6 East, 518. " If the legis- lature intended more," said Lord Denman, in Hawoi'th v. Ormerod, 6 Q. B. R. 307, " we can only say, that according to our opinion, they have not expressed it." "Again, the subject may have been entirely over- looked by the legislature. A ca«u8 omissus can in no case be supplied by a Court of Law, for that would be to make laws. Judges are bound to take the Act of Parliament as the legislature have made it." In the case of The Caledonian Ry. Co. v. North British By. Co., 6 App. Cas. 114, Lord Selborne says, that the mere literal construction of a Statute ought not to prevail, if it is opposed to the inten- tion of the legislature, as apparent by the Statute ; and if the words are sufficiently flexible to admit of some other construction by wiiich that intention will be better effectuated. See also B. v. Washing- ton, 46 U. C. R. 221, 229. A reasonable construction should be given to an Act of Parliament. In the case of The Countess of Bothes v. Kirkcaldy Water- fill ' Sec. 1.] DIVISION COUR'1'8 ACT, 18815. 11 wfyrhs Cornmmion€7% 7 A pp. Can. 694, Lord Blacrk- buni Hays at page 702 : '' I (juite aj?ree that no Court is entitled to depart from the intention of the lepriHlature, as appearing from the words of the Act, because it is thought unreasonable. But when two constructions are open, the Court may adopt the more reasonable of the two." As to the hardship consequent on a certain interpretation of an Act of Parliament, Lord Justice Bramwell says, in the case of Ex parte Banco de Pwtugal, In re Hooper, 11 Ch. D., at page 322 : " I think, as I have had occasion to say more than once, that when a particular construction of an Act of Parliament, or a particular proposition of law, leads to hardship, there is a presumption against that construction or proposition being right, because I do not think that our law does, usually at least, lead to hardship." The marginal notes to the sections of an Act of Parliament are not to be taken as part of the Act : Sutton V. Sutton, 22 Ch. D. 511 ; Clay don v. Oreen, L. R. 3, C. P. 511. Sometimes the popular and not the etymological meaning is to be given to an expression in a Statute. For instance, in Gordon v. Jennings, 9 Q. B. D., at page 45, it was held, that, though the term " wages " in an etymological sense meant any compensation for services, yet, that the popular meaning should be looked to, and that it could not be held to apply to the remuneration of a high or important officer of the state, or a company, for instance, but to that of domestic servants, laborers, and persons of a similar description. T' 12 DIVISION COURTS ACT, 1885. Sec. 1.] In Bennett v. Atkins, 4 C. P. D., at page 88, Lord Coleridge, C. J., says : '' I am reluctant to be led into tlie consideration of what is called intuitus, or purpose, or spirit of an Act of Parliament, when such consideration would compel me to do violence to the words of it." The late Chief Justice Moss, in the case of In re Code and Grain, 3 App. R., at page 560 says : " That where the language of the legislature is fairly susceptible of two different meanings, that should be preferred which excludes and prevents conse- quences that are mischievous and unjust." As to the effect of the title or preamble of an Act on the enacting clause, the reader is referred to R. V. Washingtmi, 46 U. C. R. 221, and the cases there cited. In penal Statutes, questions of doubt are to be construed favorably to the accused : McCashill v. Paxton, 1 Hodgins, E. C. 304. In Ex parte Walton, In re Levy, 17 Ch. D. 746, in appt 1 , it was laid down by Jessel, M. R., that a Statute may be construed contrary to its literal meaninnr, when a literal construction would result in an absurdity or inconsistency, and the words are susceptible of another construction which will carry out the manifest intention. See also Grey v. Pearson, 6 H. L. C. 106. The speech of the Lord Chancellor in the House of Lords during debate on a measure, was held authority for interpretation of an Act of Parlia- ment: R. V. Bishop of Gxfoi'd, 4 Q. B. D. 525; Smiles v. Belford, 1 App. R. 436. A general Act does not repeal a previoua particular Sec. 1.] DIVISION COURTS ACT, 1885. 13 Act, unless there is some express refererxCC to previous legislation, or unless the two Acts are necessarily inconsistent : Thorpe v. Adams, L. R. 6 C. P. 125 , L. O. & Dover By. Co. v. Board of Works, L. R. 8 C. P. 185 ; Hill Y.'Hall, 1 Ex. D. 411 ; Conservators of the Thames v. Halh L. R. 3 C. P. 415. The headings of different portions of a Statute are to be referred to, to determine the sense of any doubtful expression in a section ranged under any particular heading : Hammersmith and City Ry. Co. V. Brand, L. R. 4 H. L. 171. A saving clause in a general Act has no operation if it is inconsistent with the express provisions of a subsequent special Act : Corporation of Yarmouth V. Simmons, 10 Ch. D. 518. Prima facie, an English Statute affects only English subjects, or foreigners who come either permanently or temporarily within the allegiance of the English Crown : Ex parte Blain, In re Sawers, 12 Ch. D. 522. When a recital in an Act of Parliament is a confirmation of title : see Hmoard v. Earl of Shrewsbury, L. R. 2 Ch. 760. The words "herein contained " were held to have application only to the clause in which they were contained, and not to the whole Act : McOill v. Peterborough, 12 IT. C. R. 44. The word "section" does not necessarily mean one of the divisions of the Act, numbered as such, but may refer, if the context requires it, to any distinct enactment, of which there may be several included under one number : Dain v. Gossage, 6 P. R. 103. f M'l 14 DIVISION COURTS ACT, 1885. Sec. 1.] As to how the different Statutes of the R. S. O. may be treated, see Whelan v. The Queen, 28 U. C. R. 108 ; Boston v. Lelievre, L. R. 3 P. C. 162. per Lord Westbury. The divisions of a Statute, under which the clauses are arranged and classified, may be looked to as affording a key to the construction : Lawrie V. Rathbun, 38 U. C. R. 255. Statutes regulating the practice and procedure of a Court, only apply to matters within its jurisdic- tion, and cannot be called in aid to give jurisdiction where it is in question : Ahrens v. McGilligat, G. T. Ry. Co. Garnishees, 23 C. P. 171. The rule that when a Statute has received a construction, either from long practice or by judicial interpretation, and is afterwards re-enacted in the same terms, the legislature is deemed to have had that construction in view in the re-enact- ment, does not apply to Dominion legislation where different constructions obtained in different Provinces : Davidsmi v. Ross, 24 Grant 22 ; R. v. Whelan, 28 U. C. R. 27, 43 ; Nicholls v. Oumming, 1 Sup. R. 395 ; Crain v. Coll. Institute of Ottawa, 43 U. C. R. 498. Courts are bound to take judicial notice of every public Act of the Provincial legislature, though its operation may be limited : Darling v. Hitchcock, 25 U. C. R. 463. In private Acts of Parliament the interests of persons not named are unaffected : Re Goodhue, 19 Grant 366. Where a colonial legislature has passed an Act in the same terms as an Imperial Statute, and the Sec. 1.] DIVISION COURTS A.CT, 1885. 15 latter has been authoritatively construed by a Court of Appeal in England, such construction should be adopted by the Courts of the colony : Trimble v. Hill, 5 App. Cas. 342 ; Catterall v. Catter- «^^, 9 Jur. 951. In construing an obscure clause in an Act of Parliament, the Court may look at the title for assistance : Greene v. Pro. Ins. Co., 4 App. R. 521. So also may the headings of a Statute be referred to, to assist the construction : Donly v. HoLmwood., 4 App. R. 555. Where a penalty is imposed by an Act of Parlia- ment upon any transaction, the transaction will be illegal, though it is not expressly prohibited by the Act : In re Cork <& Youghal My. Co., L. R. 4 Ch. 748. The meaning of particular words in a Statute, in the absence of express definition, " is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used, and the object that is intended to be attained": Per Abbott, C. J., in 1 B. & C. 136, approved of in the case of The Lion, 6 Moore, P. C. 163, 171. For authorities generally, bearing on the question of statutory construction, see Dwarris on Statutes, by Potter ; Maxwell on Statutes ; Fisher's Digest, 8206-8240 ; Rob. & Joseph's Digest, 3654-3667 ; L. R. Digest, (1880), 4091. An Act comes into force from the earliest moment of the day of its receiving assent, or of the day named for its commencement: Tomlinson v. Bulloch 4 Q. B. D. 230. See Potter's " Dwarris on Statutes," 100, note 3. 16 DIVISION COURTS ACT, 1885. Sec. 1.] (b) THE TEXT OF THE SECTION. Section 14 of the Division Courts Act, 1880, with the amendment here made, will therefore read as follows : " In all cases where a defendant, primary debtor or garnishee, intends to contest the juris- diction of any Division Court to hear or determine any cause, matter or thing in such Court, he shall leave with the Clerk of the Court, within eight days after the day of service of the summons on him (where the service is required to be ten days before the return), or within twelve days after the day of such service (where the service is required to be fifteen or twenty days before the return), a notice to the effect that he disputes the jurisdiction of the Court, and such Clerk shall forthwith give notice thereof to the plaintiff, primary creditor, or their attorney or agents, in the same way as notice of defence is now given ; and in default of such notice, disputing the jurisdiction of such Court, the same shall be considered as established and determined, and all proceedings may thereafter be taken as fully and effectually as if the said suit or proceeding had been properly commenced, entered or taken in such Court ; [and every such notice shall be in writing; and prohibition to a Division Court shall not lie in any such suit from any Court whatever, where such notice disputing the jurisdiction has not been duly given as aforesaid."] At pages 31 and 34 of Sinclair's D. C. Act, 1880, will be found the views of the writer on the section as it originally stood, to which reference is now simply made. r- Sec. 1.] DIVISION COURTS ACT, 1886. 17 (c) NOTICE TO BE IN WRITING. It may be argued that if the defendant was obliged to " leave with the Clerk of the Court " a notice to the effect that he disputed the jurisdiction of the Court, as required by the 14th section of the A -t of 1880, that he could only do so by a ivritten notice. But leaving a notice is nothing more than ffivinff it. In the case of Bex. v. The Justices of Salop, 4 B. & Aid. 626, 629, Bayley, J., says in regard to the giving of a notice of appeal under a Statute which did not prescribe the notice to be in writing : " It may be convenient that a notice of appeal, particularly where it is a notice of the cause and matter of the appeal, should be in writing, and in many cases the Statute giving the appeal requires that there should be a written notice ; but we cannot say that a notice in writing is necessary, where it is not required to be in writing by the clause of the Statute which directs a notice to be given." Under another Statute giving the right of appeal, the same opinion was expressed in Rex. v. The Justices of Surrey, 5 B. U. C. L. J. 63 ; Hart V. Ruttan, 23 C. P. 613 ; In re Sharpe, 2 Chan. Cham. 67 ; McDonald v. Oleland, 6 P. R. 289 ; Scott V. Mitchell, 8 P. R. 518 ; Robertson v. Coulton, 9 P. R. 16. The Judge could, however, receive the affidavit, notwithstanding these defects : Rule 133. If endorsed on the summons, the style of Court and cause need not be given in an affidavit of service of special summon^^j. Form 107. The affidavit of service need not contain anything more than the Statutes or Rules of Court require : Baldwin v. Benjamin, 16 U. C. R. p. 54. The heading of an affidavit is merely descriptive and not an allegation of fact : Hood v. Cronkite, 4 P. R. 279 ; Re Oreen, 15 L. J. N. S. 35. An affidavit of service would be good though it should state the service as made on the day ot a certain month, " instant,''^ without stating the i/ear : R. V. Tomb, 4 U. C. R. 177. The affidavit in any Division Court proceeding can now be taken by a Notary Public : 48 Vict. Chap. 16. It is doubtful if an affidavit could be taken out of the Province by any of the persons mentioned in the 38th section of chapter 62 of the Revised Statutes of Ontario, except by a Commissioner appointed under the 7th and 8th sections of chapter 63 of the Revised Statutes. It would seem that the if) 3 44 DIVISION COURTS ACT, 1885. Sec. 3.] f ! other persons mentioned in chapter 62, section 38, would have authority only to take affidavits to be used in Courts of Record. See also D. C. Act, section 105. It will be observed that the section declares that due proof of service is to be made " by affidavit or otherwise. ''"' It is submitted that the words " or otherwise " only mean that the facts may be proved by oral testimony, or other legal proof of the fact of service : Oaird v. Fitzell, 2 P. R. 262 ; Davis v. Pearce, L. R. 5 C. P. 435 ; but would not justify a Judge in acting on anything less than that. As remarked by Cotton, L. J., in Shelford v. Louth and East Coast Ry. Co., at page 319 of 4 Ex. D., in construing the same words in the Judicature Act : " The words " or otherwise " mean by any other evidence to which the Court can look." ig) THE SERVICE. It need scarcely be said that where the amount of the plaintiff's account, claim or demand, exceeds $8.00, service of the summons must be personal, but where it does not exceed that sum service may be made on the defendant, his wife or servant, or some grown person, being an inmate of his dwelling house, or usual place of abode, trading or dealing : Sinclair's D. C. Act, 93-95. Where personal service is not made, it is important that the Bailiff should serve one of the persons mentioned in the 72nd section of the Division Courts Act, and that the fact distinctly appear in the affidavit of service : See Sinclair's D. C. Law, 1884, 232, 235. The clauses of the Ontario Judicature Act not Sec. 3.] DIVISION COURTS ACT, 1885. 46 being applicable to the Division Courts, except where specially declared to be : Clarke v. Mac- donald, 4 Out. R. 310 ; Bank ofOttaiva v. McLaughlin, 8 App. R. 543 ; the provisions therein contained for serving one of several partners of a firm on behalf of the whole have no application to these Courts : See Pollock v. Campbell, 1 Ex. D. 50 ; Walker v. Rooke, 6 Q. B. D, 631 ; Jackson v. Litchjield, 8 Q. B. D. 474 ; Clark v. Gullen, 9 Q. B. D. 355 ; Adam v. Townend, 14 Q. B. D. 103 ; ONeil v. Glason, 46 L. J. Q. B. 191 ; Bank of Hamilton v. Blakeslee, 9 P. R. 130 ; Ware- house Co. V. Durrani, 10 Q. B. D. 471 ; Ex parte Young, 19 Ch. D. 124 ; Davis v. Morris, 10 Q. B. D. 436. These cases shew the nature of proceedings against partners under the Judicature Act, and the rights of parties therein. Care should be taken that service which is not personal should be on the defendant's wife or servant, or some grown person who is at the time of service "an inmate of the defendant's dwelling house or usual place of abode, trading or dealing." Bouvier defines an " inmate " as " one who dwells in part of another's house, the latter dwelling at the same time in the said house ; a fellow-lodger ; a fellow-boarder." The person to be served (in the absence of personal service) should be some one of the three persons mentioned in the section, and if one of the latter two an '' inmate " of one of the places mentioned in the section. A stranger found in the defendant's dwelling house could not be served, and before service the Bailiff should make sufficient inquiry to justify ?5 i to "Ml Sen "A 46 DIVISION COURTS ACT, 1885. Sec. 3.] him in making the service and the affidavit of having done so. Contrast section 203 of the Division Courts Act. The time of service is regulated by the 70tn and 71st sections of the Act. As to what is personal service, and how made, the reader is referred to Sinclair's D. C. Act, 93 et seq ; Lambert v. Townsend, 1 L. J. N. S. Ex. 113 ; and Phillips v. Spry, 1 L. J. N. S. Ex. 115. As to what is a man's "residence," "dwelling house," " usual place of abode," " trading or dealing," in addition to the authorities cited at pages 86-88, of Sinclair's D. C. Act ; D. C. Act, 1880, pages 22 and 34 ; D. C. Law, 1884, pages 22 and 24, reference may also be made to the following authorities : Alexander v. Jones, L. R. 1 Ex. 133 ; Ford v. Drew, 5 C. P. D. 59 ; Hanns v. Johnston, 3 Ont. R. 100, and the notes to section 11 hereto. It is submitted that strong presumptive evidence of the due service of the summons on the defendant would be the fact of his having given notice of defence under section 79 of the Division Courts Act : Caird v. Fitzell, 2 P. R. 262 ; Davis v. Pearce^ L. R. 5 C. P. 435. But it would not be evidence of having been served on any particular day anterior to the notice. In fact, the giving notice of dispute would waive any irregularity in the service of summons, or probably the service itself. It is analagous to an appearance in the High Court. " An appearance entered by the defendant waives all irregularities in the process, and even the total want of it " : Arch. Pract. i2th Ed. 218. Sec. 3.] DIVISION COURTS ACT, 1886. 47 {h) SPECIAL SUMMONS. The section has application only to a special summons issued in pursuance of section 79 o:'' the Division Courts Act : Sinclair's D. C. Act, 99, et seq. The proof must be not only that a special sum- mons has been served, but that the service must have been made of the plaintiff's particulars of demand as well, as required by the 79th section. These particulars must not consist of any claim for unliquidated damages, or anything beyond " any debt or money demand^ These are the words of the legislature, and whatever is within their legal signification only comes within the provisions of the section in question. The writer has, in his first work published on Division Courts, at pages 99 and 100, and at pages 3 and 99 of Sinclair's D. C. Act of 1880, attempted to give a general outline of the cases which would properly be the subject of special summons. Very many cases have been decided since, and many were overlooked. The writer has attempted to collect as many of these cases as possible in this note and in the notes to the next succeeding section. It may be stated in general terms that all claims which are the subject of garnishment are also the subject of special summons in the Division Court. The writer, of course, only refers to the nature of the claim, for in such cases as Re Mead v. Greary, 32 C. P. 1, where part of a debt beyond the jurisdic- tion of the Court was held garni shable, the rule would not hold good, and on the contrary, for ■Mr 09 SSI 48 DIVISION COURTS ACT, 1886. Sec. 3.] f I ! ! I instance, a claim for wages would be the subject of special summons when possibly it would be exempt from garnishment. Special summons could properly issue on a judgment of a Court of Record in this Province : Hutchinson v. Gillespie, 11 Ex. 798; Me Eberts v. Brooke, 4 C. L. Times 282 ; or on a judgment of such a Court in any other Province : Henderson v Henderson, 6 Q. B. 288 ; or on a foreign judgment : Grant v. Easton, 13 Q. B. D. 302. Nothing but a payment made by compulsion of law would be any answer by a garnishee in an action on a special summons against him by his original creditor : Mayor of London v. London Joint Stock Bank, 6 App. Cas. 393 ; Sykes v. Brockville and Ottawa Ry. Co. 22 U. C. R. 459 ; Wardrope v. Can. P. Ry. Co., 20 L. J. N. S. 133 ; In re Smart v. Miller, 3 P. R. p. 393. It is questionable if money due under the pro- visions of a will would be the subject of special summons : Soules v. Soules, 35 U. C. R. 334. In Bank of Hamilton v. Tke Western Ins. Co., 38 U. C. R. 609, it was held that money payable under a fire insurance policy was "a purely money demand" under the Act of 36 Vict., chap. 8, s. 2 (Ont.) But see Boyd v. Haynes, 5 P. R. 15. In Cole V. The Bank of Montreal, 39 U. C. R. 54, it was held that where the assignors of a judgment had received part payment of the moneys due on such judgment before assignment, and had in the deed of assignment covenanted that they had not received the same, the claim for repayment of such moneys was " a purely money demand " under the Statute last quoted. Sec. 3.1 DIVISION COUKTS ACT, 1885. 49 An action for breach of covenant for title was held not to be for " a purely money demand " under that Statute : Kavanagh v. The Corporation of the City of Kingston, 39 U. C. R. 415 ; but in Kelly v. The Isolated Risk and Farmers'' F. Ins. Co., 26 C. P. 299, a (ilaim on an interim fire insurance receipt was held to be so. It was doubted in the case of Green v. The Hamilton Provident Loan Co., 31 C. P. 574, whether the claim of a second mortgagee for the surplus proceeds of a sale by the first mortgagee, after satisfaction of the moi-tgage of the latter, was " a purely money demand." It is doubtful if an unasc^ertained balance, claimed to be due by one partner to another at the time of dissolution, and whi(*h would require the taking of accounts between them to ascertain it, would be the subject of special summons : Hall v. Lannin, 30 C. P. 204. It is submitted it would not be : Hope v. Ferris, 30 C. P. 520 ; but interest on a promissory note or bill of exchange accrued after maturity would be : McCracken v. Creswich, 8 P. R. 501 ; In re Widmeyer v. McMahon, 32 C. P. 187 ; Southampton Dock Co. v. Richards, 1 M. & G. 448. It is submitted that Davidson v. Cameron, 8 P. R. 61, in which the Master in Chambers held that a foreign judgment was not a liquidated or ascer- tained amount within the meaning of R. S. O., chap. 50, section 153, cannot now be considered law, in view of the later case in the Court of Appeal in England of Grant v. Boston, 13 Q. B. D. 302. Goods sold and delivered would clearly be the subject of special summons : Watson v. Severn, G I &Q ^ N^ 50 DIVISION COURTS ACT, 1886. Sec. 3.] ili l. 6 App. R. 559 ; />?/mm v. McLean, 20 L. J. N. S. 290, 10 P. R. 295 ; Smith v. Wilson, 4 C. P. D. 392, 5 C. P. D. 25 ; McNauqUon v. Webster, 6 U. C. L. J. 17 ; Wallbridge v. Brown, 18 U. C. R. 158. It is (Submitted in view of the later cases, that McKinstry v. Arnold, 4 U. C. L. J. 68, cannot now be considered authority. In Sinclair v. Chisholm, 5 P. R. 270, it was held that notarial fees on a bill dishonored for non- acceptance were not the subject of special endorse- ment in the absence of an agreement to accept, but that such fees on a promissory note would be is authorized by Bums v. Rogers, 17 L. J. N. S. 209. A promissory note made in the United States, payable in American currency, would be the subject of special endorsement : Third National Bank of Chicago v. Cosby, 43 U. C. R. 58. See Cushman v. Reid, 20 C. P. 147. So also would a share or contribution to the payment of certain bills of exchange and promissory notes on which the plaintiff and defendant might have been jointly liable : Walker v. Hichs, 3 Q. B. D. 8. Debts of an equitable as well as of a legal nature are the subject of special summons : D. C. Act, section 54, sub-section 2 ; Wilson v. Dundas, "W. N. 1875, 232 ; In re Coivans' Estate, Rapier v. Wright, 14 Ch. D. 638 ; Learning v. Woon, 7 App. R. 42. It is submitted that, generally speaking, where a claim would be the subject of special endorsement under Rule 14 of the Judicature Act, or the subject of immediate judgment under Rule 80 of that Act, it would be the subject of special sum- mons under section 79 of the Division Courts Act V ' T Sec. 3.1 DIVISION COURTS ACT, 1886. 51 and thiH section, but more npecific particulars are recjuired in the Division Court than under the Judicature Act : Sinclair's D. C. Act, 239 (e) ; Smith V. Wilson, 4 C. P. D. 892, 5 C. P. D. 25 ; Goddeu V. Comten, 5 C. P. D. 17. A claim for interest should either expressly or impliedly shew the amount and the period from which it is claimed : Bardell v. Miller, 7 C. B. 753. There could not be a special summons where something beyond the recovery of money is sought : Fell V. Willimtis, 3 C. L. Times, 358 ; Standard Bank V. Wells, 20 L. J. N. S. 71 ; nor in an action for the price of land before conveyance made : Hood v. Martin, 9 P. R. 313. But if the summons should be issued for a proper claim, and also one improperly joined, the latter could on application be struck out: Robinson v. Ralston, L. R. 8 Irish 26. Counsel fees could under the law of this Province be the subject of special summons : McDougall v. Camp^)ell, 41 U. C. R. 332 ',ReC.K.& C, 6 P. R. 226 ; R. V. Doutre, 6 Sup. R. 342; but the fees of an arbitrator where no award was made could not be : The Corporation of Brockton v. Denison, 20 L. J. N. S. 86. An action against a Division Court Clerk or Bailiff for suitor's money in his hands would be the subject of special summons : McLeish v. Howard, 3 App. R. 503 ; Dolphin v. Layton, 4 C. P. D. 130 ; Bland v. Andrmvs, 45 XJ. C. R. 431. Where an original demand beyond the jurisdic- tion of the Court is ascertained by the signature of the party liable, and a balance not exceeding $200 m • ■■»» 52 DIVISION COURTS ACT. 1886. Sec. 3.1 remains due, the latter is the subject of special summons from the I)i vision Court : Bank of Ottawa V. McLauffhlin, 8 App. R. 543. The Clerk should enter judgment on a special summons without production of the security on which the action is brought : In re Drinkwater v. ClanUge, 8 P. R. 504. A debt not due could not be sued for : Sinclair's D. C. Law, 1884, 138 ; Kyle v. Bai^s, 10 P. R. 20. The summons should shew the names of plaintiff and defendant in full. Rule 3, and as the provisions of the Judicature Act in regard to suing parties in their partnership name do not apply to Division Courts, the names of all partners should be given as parties : Clarice v. Macdonald, 4 Ont. R. 310 ; Bank of Ottawa v. McLaughlin^ 8 App. R. 543. A claim for damages for breach of covenant in a lease would not be the subject of special summons : Gowanloch v. Mans, 9 P. R. 270 ; see also Standard Bank v. Wells, 20 L. J. N. S. 71. The issue of a writ of summons is not a judicial act, and the Court may inquire what period of the day it issued, whether before or after the cause of action arose : Clarke v. Bradlaugh, 8 Q. B. D. 63 ; see Sinclair v. Bobson, 16 U. C. R. 211 \s Edgar v. Magee, 1 Ont. R. 287 ; Beed v. Smith, 19 L. J. N. S. 12 : Whitwell v. BHgham, 19 Pick. 117. (i) PARTICULARS OF CLAIM OR DEMAND. It will be observed that particulars of the plain- tiff's claim or demand, as required by the 79th section of The Division Courts Act, must be served with the summons. That section requires that the particulars of plaintiffs claim "with reasonable Se(;. 3.] DIVISION COURTS ACT. 1885. 68 certainty and detail" niuHt be ''endorsed on or attax^hed to the HumnionH," and tliat a ropy of the Hinnnionw and i»arti(ruhirH, with a notice in the form prewcribed by the general RuIch or Ordern relating to Division Conrtn, from time to time in force — Sinclair's D. C. Act, 290— shall be duly served on the defendant before any judgment against him can be obtained. The 79th section must be read in connection with Rules 3, 4, 12 and 15 of the Division Court Rules : Sinclair's D. C. Act, 239-241. The remarks which are made in the next preceding note, as to the necessity of giving the individual names of partners in the summons in suits by or against them, has equal application to particulars of claim or demand. As to forms of particulars see Sinclair's D. C. Act, 287. The 79th section of the Division Courts Act, and Rules 3 and 4, require a much fuller statement of the particulars of claim than is required under the special endorsement clauses of the Judicature Act : Sinclair's D. C. Act, 239 {e) ; Synith v. Wilsmi, 4 C. P. D. 392, 5 C. P. D. 25; Godden v. Cwstm, 5 C. P. D. 17. ij) ACCOUNT STATED. Frequently claims are entered as "To balance of account rendered." This is not a compliance with the Statute or Rules of Court, and it is submitted that a Judge should not give judgment under this section on such particulars : Wilhes v. Buffalo B. <& G. Ey. Co. 2 U. C. L. J. 230 ; see Smart v. N. <& D. R. Ry. Co., 12 C. P. 404. The rendering of an account simply in ordinary I ft* 00 -A 54 DIVISION COURTS ACT, 1885. Sec. 8.] transactions, not between mendiant and merchant, and unreplied to, does not constitute evidence of a complete admission of a debt. Taken in connection with other circumstanc^es it may be some evidence of it, but is not of itself sufficient. If the plaintiff desires to maintain his action in the Division Court on an account stated, his particulars should distinctly shew that contention, and if V^ cannot prove an account stated, he would, unless a. ^ owed to amend, fail in his action. An adjournment of the case upon terms would be granted almost as a matter of course, with the view of the plaintiff's amending his particulars of claim : Sinclair's D. C. Act, 106, 107 and 240, Rule 4. As the account stated is a very common form of claim in Division Courts, a few remarks concerning it may not be inopportune. It is an admission of a sum of money being due from the defendant to the plaintiff, and may be charged as a distinct cause of action : 2 Wms. Saunders, 122 c. ; Irving V. Veitck, 3 M. & W. 90, 106. It lies upon an absolute acknowledgment made by the defendant to the plaintiff of a debt due from him to the plaintiff, and pi yable at the time of action brought : Wayman v. Hilliara, 7 Bing. 101 ; Knmoles v. Michel, 13 East 249 ; Highmore v. Primrose, 5 M. & S. 65 ; Gough V. Fimlon, 7 Ex. 48 ; Lemere v. Elliott, 6 H. & N. 656 , Hill v. Lott, 13 U. C. R. 465. An account stated alone does not extinguish, supersede or alter the previous debt respecting which it was stated ; Toms v. Sills, 29 U. C. R. 497 ; Ha ris v. Chapman, 17 L. T. N. S. 517 ; Fidgett v. Sec. 3.] DIVISION COUETS ACT, 1885. 55 Penny. 1 C. M. & R. 108 ; Smith v. Page, 15 M. & W. 683 ; Perry v. Attwood, 6 E. «fe B. 691. An account stated respecting debts on both sides may, by agreement between the parties, operate as a r/^mplete extinction of the cross demands, and so operate as payment j^ro tanto : Ashby v. James, 11 M. & W. 542 ; Callander v. Howard, 10 C. B. 290. An account stated alone is not conclusive between the parties, but the debts respecting which it was stated may be examined to ascertain if any mistake has occurred : Trueman v. Hurst, 1 T. R. 40, 42 ; Thomas v. HawJces, 8 M. & W. 140 ; Perry v. Attwood, 6 E. & B. 691 ; Toms v. Sills, 29 U. C. R. 497. For instance, if an atttion were brought on an I. O. U. given for a prospective debt, that fact (;ould be shewn to defeat tl action : Lemere v. Elliott, 6 H. & N. 656 ; or if stated respecting a debt witliout consideration, or upon a < /isideration that has failed : Jacobs v. Fisher, 1 C. B. 178 ; Wilson v. Wilson, 14 C. B. 616 ; or that the debt was upon an illegal consideration, or for an illegal purpose : Rose V. Savory, 2 Bing. N. C. 145. But the account could be statc^d for money borrowed to pay a gambling debt, or foi* money paid by an agc'nt who had been employed to make a bet and had lost : Read v. Andei^mn, 13 Q. B. D. 779 ; Brd)h v. Yelverton, L. R. 9 E(i. 471 ; Beeston v. Beeston, 1 Ex. D. 13 ; Ex parte Pyke, In re Lister, 8Ch. D. 754. It is no defence that the account was stated respecting a debt due under a contract within the Statute of Frauds of which there was no memoran- I S ag CO ^3i "A 56 DIVISION COURTS ACT, 1885. Sec. 3.] diim in writing; : Cocking v. Ward, 1 C. B. 858 ; also see Sparling v. Savage, 25 U. C. R. 259. The acknowledgment may be proved by writing, aa by a bill of ex(5liange or promissory note : Wheatley v. Willianm, I M. & W. 588 ; either of which would be evideiK^e of an account stated between the immediate parties to it, but not between remote parties : Burmester v. Hogarth, 11 M. & W. 97. An I. O. U. is evidence of an account stated with the person to whom it is addressed : Jacobs v. Fisher, 1 C. B. 178 ; Wilson v. Wilson, 14 C. B, 616 ; and if it bears no address, then with the holder in the absence of evidence to the contrary : CuHis v. Richards, 1 M. & G. 46 ; Fesenmayer v. Adcovk, 16 M. & W. 449 ; Buck v. Hurst, L. R. 1 C. P. 297. The acknowledgment must shew either expressly or by sufficient reference that a sum certain is due and must be paid either to the plaintiff or to his ?!gent : Hughes v. Thorpe, 5 M. & W. 656 ; Kirton V. Wood, 1 M. cfe Rob. 258 ; Lane v. Hill, 18 Q. B. 252 ; Bloomley v. Grinton, 1 C'. P. 809. It is not sufficient if made to a stranger : Breckon V. Smith, 1 A. & E. 488 ; Tucker v. Barrow, 7 B. 3 ?1 -1 58 DIVISION COURTS ACT, 18«5. [Sec. 3. years to run." It was held that it could not be sued on as a note, or given in evidence on the ac(^ount stated : Neivhom v. Lawrence, 5 U. C. R. 859. The following do(;ument was held evidence of an account stated : "" Three months after date, we, or either of us, promise to pay to Elias S. Reed (the plaintiff), or John Eraser, his guardian, at the Post Office, Embro, ^111 17, Cy., value received in rent of farm," thoug>i not a promissory note : Reed v. Reed^ 11 U. C. R. 26. A claim upon an account stated cannot be supported by a note which was not due when the action was commenced : Hill v. Lott, 18 U. C. R. 465. At the trial the plaintiff produ(5ed a draft by himself on the defendant, in which were the words, " being the balance in full of your account," and proved that when presented the defendant acknow- ledged the amount to be correct, but would not accept it as he was afraid he w^ould be sued, was held evidence of tbe account stated : McMurtru v. Munro, 14 U. C. R. 166. An instrument in this fomi was held evidence of an account stated : " $300— Good to T. T. to the amount of $800, to be paid to him or his order, at E. C's. mill, in the Township of Elma, in the County of Perth, in lumber at cash price " : Tyhe v. Cosford, 14 C. P. 64. An instrument dated at Mew York, signed and endorsed by defendant, promising to pay "to the order of myself," $1040.28 /it the Bank of Upper Canada in Toronto, "with the current rate of exchange on New York," though not a promissory Sec. 3.] DIVISION COURTS ACT, 1885. 59 note wan held evidence of the account stated : Grant v. Young, 28 U. C. R. 387 ; Wood v. Young, 14 C. P. 250. The defendant signed a note or instrument agreoini*- to pay five per cent, a month, held that tlie amount agreed upon was recoverable under the common court for interest and account stated : Young v. Fluke, 15 C. P. 360. During the existence of the Stamp Act it was held that an unstamped note was not evidence of an account stated : Stephens v. Berry, 15 C. P. 548 , but the existence of unstamped renewals of a note given before the Stamp Act did not prevent the latter being given in evidence in support of the account stated : Ritchie v. Prout, 16 C. P. 426. It was held that an instrument in this form, " Good to Mr. Palmer for $850 on demand," was not a promissory note, but evidence of an account stated : Palmer v. McLennan, 22 C. P. 258, 565. A plaintiff may recover on the account stated on an express promise to pay a specified sum, part of an account : Crooks v. Law, 5 O. S. 006. An account stated by an execMitor, of a debt due by his testator, never before ascertained or deter- mined, w^as held sufficient to charge the executor as a substantive debt without any express promise to pay : Watkins v. Washburn, 2 U. C. R. 291. A casual observation will not support the account stated : Curtw v. Flindall, 3 U. C. R. 323. Where A, as part consideration for the purchase of certain timber from B, promised C to pay B's debt to him of £20, and paid i^lO to C, and was to pay the remaining £10 next morning, it was held I |«aa CXI ]1 60 DIVISION COURTS ACT, 1885. [Sec. 3. 1^1 that C could re(-over the tlO from A on account stated : Fergiisson v. Kerr, f) U. C. R. 2f>l. An admission made v usually to a stranq-er, and not to the plaintiff or an agent of his, is not in itself sufficient to sustain an action on the ac(;ount stated : Green v. Bnrtch, 1 C. P. 313. A statement made out by the defendant's book- keeper at the plaintiff's reciuest was held insufficient to support the account stated : Zimmerman v. Woodmf, 17 U. C. R. 584. The mere calculation of what is due on a former transaction will not support the account stated : McKay v. Grinley, 30 U. C. R. 54. A stating and settlement of accounts may be pleaded to an action for mattei*s taken into such account : Melville v. Carpenter, 11 U. C. R. 132 ; Beattk v. Hatch, 12 U. C. R. 195. An offer to pay a sum less than the sum claimed, if unaccepted, is not any evidence of an a(;count stilted in an action for the larger sum : Atkinson V. Woodhall 1 H. & C. 170. An admission by the defendant of a debt dnv to a solicitor for his services as such, will not enable the solicitor to recover on an account stated, so as to defeat the provisions of the Statute reqidring a signed bill to be delivered by the solicitor before action : B^ook-s v. Bockett, 9 Q. B. 847 ; Scaddiny v. KyUi^, 9 Q. B. 858. A defendant who has admitted that he (nves a certain sum of money to the i)laintiff, and has recognized the title of tho latter to the money, cannot of his own accord set up the riglit of a third Sec. ;}. DIVISION COURTS ACT, 1885. 61 party for the purpose of defeatini*- the plaintiff's elaiiii : Peacock v. Harns, 10 East 107. Where two [)ai*ties meet and settle their acc^omits, such settlement will not be set aside or re-opened on the ground of the existence of inconsistent cliarges or overcharges, or on the ground of some mistake as to legal rights, or on the ground that s(mie of the claims or demands were those for which no action could be maintained, or were only e(iuitable moral claims : Dawson v. Remnant, 6 Esp. 24 ; Laycoch v. Fiehles, 4 B. & S. 497. But a party who has admitted the correctness of an account is not conclusively bound by it : Shand V. Grant, 15 C. B. N. S. 324. He may shew that the admission was made under a mistake : Thomas v. Hawkes, 8 M. & W. 140 ; or that certain items were miscalculated or founded in error : Rose v. Savory, 2Bing. N. C. 145; Cox v. Prentice. 8 M. & S. 344. But he must do so promptly and before the other party has innocently acted upon the faith of the corrt^ctness of the account and altered his previous position so as to render it inequitable to call upon nini to refund the money : Addison on Contracts, 7 ¥a\. 1073. For reference to the other causes of action which would be the subjec^t of claim on special summons under the 79th section of the Division Courts Act, see Sinclair's D. C. A(;t, 63-(i9. The particulars of claim or demand must be (ieliv(n*ed to the Clerk with the necessary (5opy or copies for service : lb 90. Where the summons is issued from a Court whose pla(5e of sitting is the nearest to the residence en ( 5?3 to -1 62 DIVISION COURTS ACT, 1885. [Sec. 3. i i 1 of the defendant under ye(;tion 63 it must contain the statement mentioned in Rule 5. It will be observed that the latter part of section 82 of the Division Courts Act requires personal service of the summons and of " detailed particulars of the plaintiff's (;laim," but the 79tli section of that Act and this section only require ordinary service of the summons, with particulars of the plaintiff's claim " ivith reasonable certainty and detail^ A summons issued on a claim not exceeding $8, and where service was made under the last alter- native of section 72, would come within the pro- visions of this section. Whatever may have been the meaning of the concluding part of section 82 of the Division Courts Act, it appears to the writer that its operation will be almost entirely superseded by this provision. {k) IF DEFENDANT DOES NOT APPEAR. It will be observed that the defendant must appear ''in open Court,'"' pursuant to the special summons, either " in person or by agent," if he wants to prevent .judgment being given against him by default under this section. The expression here, " in open Court," is evidently intended to mean a visible appearance of the defendant in Court, personally or by agent, and not the technical appearance which a notice of dispute has been thought to imply. Any person may appt^ar at the trial and act as the agent and advocate for the defendant : Sin- clair's D. C. Act, 107. The authority of the agent would generally cease ( 1 Sec. 8. DIVISION COURTS ACT, 1885. 68 witli the judffinent : Loveifvove v. White, L. R. H C. P. 440, 444 : Rob. tfe J'h. Diffc^st, 818. Tlie appt^aniiuH^ muHt b(^ at the proper sitting:, and should the hearing*' of the ease for any cause be ad.jonrned, the Judpre would have the same power at the ad.journcnl hearin.y- as he had ( >ri^inally, and if the defendant should appear at tiie first sitting? and not api)ear at the ad.j()urnnient, never- theless judgment could on the latter day be given against him by default. The " default'' here mentioned is the absence of the defendant or his agent from "open Court," and of there being no opposition to the plaintiff's claim. In the event of such default of appearance, the Judge " mr/.?/," without requiring proof of the plain- tiff's claim or demand, give judgment against the def the right of other creditors to intervene under iCule 36, it is submitted that this section wouiVI 10': apply to such cases. See Offay v. Offay, 26 U. C. II. 363. (J) CONSEQUENCES AND EFFECT OF JUDGMENT. The consequences and effect of the judgment are declared to be the same as if the plaintiff "had proved his claim or demand in open Court." In other words, whatever rights the plaintiff would have on a judgment recovered in a contested case, the same are assured to him on a judgment by default under this section. As to the effect gen- erally of judgments in the Division Court and the subsequent proceedings that may be taken thereon, see Sinclair's D. C. Act, 5, 6, 172, 173, 189. The usual consequence of a Division Court* judgment is the right of a plaintiff to have execution issued against the goods and chattels of the defend- ant, and such goods and chattels levied upon by the Bailiff, and in default of sufficient goods or chattels, the proceeding against lands allowed to be taken under the 165th and four following sections of the D. C. Act, and the proceeding by judgment summons authorized by the 177th to 189th sections. It appears to the writer that the last p»4,rt of this section is superfluous. The section only relates to a matter of proof. On the plaintiflTs obtaining judgment, and default being made in the payment Sec. 3.] DIVISION COURTS ACT, 1886. 67 of it, he would, under the 156th section of the Division Courts Act, have the right to issue execution, and under other sections of the Act take other proceedings as fully as if the words " with the same consequences and effect " had been omitted. However, they place the right beyond question. The right to move against the judgment on any ground open to a defendant in contested cases would equally be open to him here. (m) RIGHTS AND LIABILITIES OF MARRIED WOMEN. This seems an appropriate place to take a short view of the Statute lately passed relative to the rights of property of married women, to state very briefly the conclusions which decided cases had established under the law as it formerly stood, and to shew what general propositions are deducible from the present Act of 47 Victoria, chapter 19 (Ontario). More particularly does this appear not only opportune, but necessary, when we consider how frequently the rights and liabilities of married women come up for discussion and adjudication in the Division Courts. The Married Women's Property Act, 1884, like its predecessors, was not intended to givF;, nor does it give, the same remedies against a married woman that the law affords against her husband. It is intended to allow a married woman to contract as a fenw sole with reference to her separate property, and to render her present or future separate property liable for her contracts and torts, and to preserve to her all such property in whatever form as exclusively her own. Another object was to «ifford the means of m^ 8^ 3 "— r= mm 68 DIVISION COURTS ACT, 1885. [Sec. 3. T- reaching her separate property, not only for her contracts, but her torts as well. Under the law in force before the first of July, 1884, the test of a married woman's capacity to contract was her being possessed of property, real or personal, at the time of the contract. The law subjected that and that only to the liability of such contract. But the late Statute now shifts the onus from the party con- tracting with a married woman to herself, and declares that in all contracts entered into by her it will be presumed that she so entered into them with reference to her then or subsequently acquired property- It must, however, appear that a married woman means to contract on her own behalf, and not on behalf of her husband or anybody else- Necessaries got by her, for instance, for the pur- poses of the household, would be presumed to have been so got on the credit of her husband, and not with reference to her own separate property, unless the contrary were distinctly shewn : Debenham v. Mellon, 6 App. Cas. 24. But a married woman could contract for herself and as the agent for her husband jointly with herself as well : Young v. Schuler, 11 Q. B. D. 651. Her rigljts and remedies for the protection and security of her property, even against her husband, are assured to her under the Act. Her ante-nuptial contracts can be enforced, and her separate property rendered liable for them in a manner unknown to the common law. A married woman may be an executrix or administratrix, either alone or jointly with any other person. She may, under certain circumstances, obtain protection for the earnings Sec. 3.] DIVISION GOUBTS ACT, 1886. of her minor children, and she may devise by her will whatever separate property, real or personal, she may possess, to whomsoever she may think proper, as freely as if she were unmarried. In fact this Statute confers rights and remedies on married women in respect to their property far beyond any law hitherto in force. In the following pages a faint glance will be taken at some of the provisions of this Act, to shew a few propositions of law deducible from it, and more especially those having reference to Division Court practice. The general subject is too extensive to do more. Our Act very closely follows the Married Women's Act, 1882, of England, so that we have the advantage of many decisions in the mother country which will be found invaluable authority in the construction of our Statute : Trimble v. Hill, 5 App. Cas. 342. The following are a few : GENERAL PROPOSITIONS. 1. Every contract entered into since the first day of July, 1884, by a married woman, with respect to and to bind her separate property, shall bind not only the separate property which she is possessed of and entitled to at the date of the contract, but also all separate property which she may thereafter acquire : The Married Women's Property Act, 1884, section 2, sub-section (4). But as respects contracts entered into hef(yre the 1st of July, 1884, property acquired after the date of the contract cannot be made chargeable therewith : Oonolan v. Leyland, 27 Ch. D. 632 ; King v. Lucas, 23 Ch. D. 712. \i 3 Is '4 i4 70 DIVISION COURTS ACT. 1885. [Sec. 3. Contra, see In re Widmeyer v. McMdhon, 32 C. P. 187, and Berry v. Zeiss, 32 C. P. 231. 2. Every contract entered into by a married woman since the first day of July, 1884, shall be deemed to be a contract entered into by her with respect to and to bind her separate estate unless the contrary be shewn : The ' arried Women's Property Act, 1884, section 2, sub-section (3) ; Griffith on Married Women's Property, 5th Ed., pages 31, 36 ; Thioknesse on the same subject, 22, 30, and 60 to 62. 3. A married woman can be sued for tort com- mitted by her during marriage as if she were a feme sole : The Married Women's Property Act, 1884, section 2, sub-section (2) ; Griffith on Married Women's Property, 5th Ed. 28; SUme v. Knapp, 29 C. P. 605. But the Statute does not appear to extend this liability in such cases to subsequently acquired property : Lennard on Married Women, 19. 4. In addition to the liability of the wife's prop- erty for her torts, her husband is also personally liable therefor to the extent of all property what- soever belonging to his wife which he shall have acquired or become entitled to from or through his wife, after deducting therefrom any payments made by him and any sums for which judgment may have been bona fide recovered against him in any proceeding at law in respect of her wrongs, for in respect to which his wife is liable : The Manied Women's Property Act, 1884, section 13 ; Thicknesse on Married Women's Property, 59, 106, 114; De Greuchy v. WUh, 4 C. P. D. 362; Sec. 3.] DIVISION COUBTS ACT, 1886. 71 Mattheios v. Whittle, 13 Ch. D. 811 ; Fear v. Castle, 8 Q. B. D. 380. 5. A husband shall be liable for the debts of his wife contracted, and for all contracts entered into by her before marriage, to the same extent and subject to the same exception as mentioned in the next preceding proposition : The Married Women's Property Act, 1884, section 13 ; Thicknesse on Marriefl Women's Property, 106, 114. 6. A married women cannot contract so as to give a personal remedy against her, the remedy is against her separate property and that alone : Francis v. Wigzel, 1 Madd. 262 ; Hulme v. Tenant, 1 Brown C. C. 16, 21 ; Aylett v. Ashton, 1 My. & Cr. 105 ; Atwood v. Chichester. 3 Q. B. D, 722 ; Ex parte Jones, 12 Ch. D. 484 ; Durrant v. Ricketts, 8 Q. B. D. 177 ; Davis v. Ballendm, W. N. 1882, 92 ; Barber v. Gregsm, 43 L. T. N. S. 428 ; Fike v. Fitzgibbon, 17 Ch. D. 454 ; Ortner v. Fitzgibbon, 43 L. T. N. S. 60 ; Macqueen v. Turner, 30 W. R. 80 ; Davies v. Jenkins, 6 Ch. D. 728 ; Fl(ywer v. Buller, 15 Ch. D. 665 ; Lawson v. Laidlaw, 3 App. R, 77 ; Perls v. Mylrea, W. N. 1884, 64 ; Standard Bank v. Boulton, 3 App. R. 93 ; Field v. Mc Arthur, 27 C. P. 15 ; Clarke v. Creighton, 45 U. C. R. 514 ; Griffin v. Patterson, 45 U. C. R. 536 ; Collett v. Dickenson, 4 Ex. D. 285, 11 Ch. D. 687; Denham v. Bretmter, 28 C. P. 607; Murray v. McCallum, 8 App. R. 277 ; McLean v. SmUh, 10 P. E. 145 ; O v. R , 9 P. R. 174 : Bell V. Riddell, 2 Ont. R. 25, 10 App. R. 544 ; Wallace V. Huichisofi, 3 Ont. R. 398 ; Homer v. Kerr, 6 App. R. 30 ; Barker v. Westover, 5 Ont. R. 116 ; Furness v. I"- S3 5| i 3 72 DIVISION COURTS ACT, 1886. [Sec. 8. I I I h %M Mitchell, 3 App. R. p. 527 ; Darling v. Rice, 1 App. R. 43 ; Quebec Bank v. Radf(yrd, 21 L. J. N. S. 162 ; Came/von v. RutJierfwd, 21 L. J. N. S. 162 ; Kinnear V. Elite, 10 P. R. 465. Contra— Berry v. Zeiss, 32 C. P. 231 ; In re Widmeyer v. McMaJum, 32 C. P. 187, and the dissenting opinion of Armour, J., in Clarke V. Creighton, 45 U. C. R. 514. 7. With respect to the separate estate of a married woman free from restraint upon anticipation, she is competent to contract with her own husband : Hewison v. Negus, 16 Beav. 594, 598 ; Vansittart v. Vanmttart, 4 K. l I> '0- 11 'I 7. [^7*6 state as concisely as is consistent with clear- ness tJie facts upon which the plaintiff'' s claim is found- ed. Mere matters of evidence need not necessarily be stated, but a good cause of action must be disclosed, and the plaintiff'' s claim in respect of it verified, and in some cases it may be advisable to state the evidence by which it is supported. The form of affidavit must necessarily vary according to the facts of each particular case. The statement of facts may be confined to on£ para- g'f'aph, or divided into several, as may be found most convenient. Each paragraph should contain as far as possible a separate allegation of fact. The affidavit should be made as strong as possible, and any facts tending to shew an admission of the claim by the defendant should^ be distinctly stated.] 8. In my belief there is no defence to this action, and that the notice in writing left by the defendant with the Clerk of this Court that he disputed the claim sued for herein, has been so left for purpose of delay only. 9. That the defendant has not left with the Clerk of this Court any notice to the effect that he disputes the jurisdiction of this Court. Sworn, &c. [If any person other than the plaintiff makes the affidavit, the above form can easib- be adapted to it. Where the defendant disputes the jurisdiction see note (o) to this section.] {s) SERVE DEFENDANT WITH NOTICE OF MOTION. The question will at once arise how service of notice of motion can properly be made. Undoubt- edly, if personal service is duly made— Sinclair's u \ Sec. 4.] DIVISION COURTS ACT, 1886. 97 D. C. Act, 93, 94— subsequent proceedings on such notice can be taken as of course. But can any other than personal service be effected^ As will be seen hereafter it certainly can. The 125th Rule of the Division Court Rules makes provision for the plaintiff and- defendant each leavix-o' with the Clerk his address, so that notices might be sent to such address, and on such being done that "sufficient service" might be considered as made : Sinclair's D. C. Act, 266. The whole scope and language of this Rule was intended to meet cases of ordinary procedure, and to prescribe a method by which the Clerk should communicate with the parties, and was not, the writer submits, intended to meet a case of this kind. In many cases the notice would not reach its destination by mail before judgment would be entered, if service of the notice of motion under Rule 125 could be made. Service of notice on Friday for the following Monday would be suffi- cient service, yet, in places where there is only a mail service twice or three times a week, judgment on such notice could be ordered and entered on Monday morning, perhaps before the letter hf d left the post office in which it was deposited. Neither the Rule of Court nor the Statute should be read so as to produce such injustice : Ex parte Banco de Portugal, In re Hooper, 11 Ch. D. 317. Lord Justice Bramwell thus expresses himself at pag6 322 of the report : " I think, as I have had occasion to say more than once, that when a par- ticular construction of an Act of Parliament, or a particular proposition of law, leads to^ja hardship, M teg 98 DIVISION COURTS ACT, 1885. [Sec. 4. > :i : ; ■■ i \ ! L_ there is a presumption against that constru(;tion or proposition being right, because I do not think that our law does, usually at least, lead to hardship." So also, substantially the same view was expressed by Lord Blackburn in the House of Lords, in the case of The Countess of Rothes v. Kwhcaldy Water- iDorl's Commissioners, 7 App. Cas. at page 702. That learned Judge says, " I quite agree that no Court is entitled to depart from the intention of the legislature as appearing from the w^ords of the Act, because it is thought unreasonable. But when two constructions are open, the Court may adopt the more reasonable of the two." If, therefore, there is any doubt as to the meaning to be given to the Rule of Court already adverted to, that doubt should, it is submitted, be given in favour of a just and reasonable interpretation, and not one productive of hardship and injustice. But even if it did apply, in the great majority of cases the defendant does not " give to the Clerk his address" when entering his notice of dispute, and the notice must be received whether he does so or not. In such cases, therefore, taking the most favourable view of the Rule, the plaintiff would have to effect service as if no such Rule was in existence. We will therefore proceed to shew how service, other than personal service, can be effected of this notice of motion. In Ward v. Vance, 9 U. C. L. J. 214, Adam Wilson, J., says in regard to the service of an attaching order and summons to pay oyer under the garnish- ment clauses of the Common Law Procedure Act : "The Statute does not require in express terms" »Sec. 4.] DIVISION COURTS ACT, 1885. 99 (as here) " that there shall be a personal service, as our Kind's Bench Act of 1822 did of the Ga. Re., upon the defendant ; and I cannot say that the rule of law is so stringent as to require a personal service of a copy of the attaching order, or to make void every other service than a personal service. On the contrary, I am inclined to think that personal service is not imperatively demanded, unless in those cases where it is sought,— that is where it is the purpose and object^ to charge the party with a contempt for not appearing to, or for not performing some act required by the summons, writ, rule or order." Service on the defendant's wife at the dwelling house of the defendant would be sufficient : Hanns V. Johnston, 8 Ont. R. 100 ; Trust ami Loan Co. v. Jones, 8 P. R. 65. See, however, Hays v. Armstrong, 7 Ont. R. 621. The notice of motion could be served by leaving it at the place of residence of the defendant with some grown up person there dwelling : In re A Solicitor, 14 Ch. D. 152 ; Carlisle v. Orde, 7 C. P. p. 459. The motion in the first case was for the issue of a writ of attachment against a solicitor for dis- obedience to an order made on an original petition requiring him to deliver certain documents of title to his client, the petitioner. The order made on the petition had been served personally on the solicitor, and the notice of motion had been served by leaving it at his residence. The only question was whether the last service was sufficient or not. Jessel, M. R., held that it was. He says at page 153 of the report : " The ordinary way before the 11 5^ S3 i II 10() DIVISION COURTS ACT. 1886. LSec. 4. I! r n Judicature Acts in which a notice of motion was given in a matter was by leaving it at the place of residen(;e of the respondent, and I see no reason for changing that practice. I think, therefore, that the service in the present case was sufficient." The cases of Jones dem. Griffiths v. Marsh, 4 T. R. 464 ; M. V. Justices of the North Riding of Yorkshire, 7 Q. B. 154 ; Murray v. G. W. Ry. Co., 6 P. R. 211 ; are to the same effect. The case of Hogg v. Brooks, 14 Q. B. D. 475, was decided on the strict language of the lease in question there, and does not impugn the authority of the previous cases here cited. Service on a clerk of the defendant at the defend- ant's counting-house would not be sufficient : Rmv- land V. Vizetelly, 6 M. ; Blake v. WaMi, 2\) U. C. R. 541, 545. The late Division Court Rule, framed by tlie Board of County Judges, respHctin^' ai)plicati()nH in the Division Courts (to b(^ found post), (^annot ap|)ly to this case whert^ spe(;ific statutory provision is made that the motion must be made by iioti(;e of motion. Tlie Statute prescribes a "notice of motion," and any other form of ai)plication would not be proper. Sunday would, it is submitted, be rcn^koned as one of the two clear days, the 457th Rule of the Ontario Judicature Act not api)lyin^ to Division Courts, nor would the service after two o'clock in the afternoon of a Saturday be reckoned as of the Monday following : Sinclair's D. C. Act, 1880, p. 19, 46, 80 ; Clarke v. Macdonald, 4 Ont. R. 310 ; Bank of Ottawa v. McLauffhlin, 8 App. R. 543 ; McLean v. Pinherton, 7 App. R. 490 and pap:e 21 ante. The 62nd section of the Division Courts Act of 1880 could not be invoked in aid of substitutional service being ordered. That section only provides for substitutional service of a " summons upon the defendant, primary debtor or garnishee." It cannot in any way be read as applicable to this notice of motion. Service would be good on some one the defendant designated as his agent for the purpose of being ^ ^ S3 mOq S3 104 DIVISION COURTS ACT, 1886. ISec. 4. Herved, for a wolicntor Ih Himj V the aj?ent of hiw c^liout, posHeHHtd of the implied authority to accept Her vice of papei'H in the caiine for hiy client : Lush'n Practice, 24i), 250. But a very neriouH (lueation ariHeH aa to the validity of wervice of notice of motion on Home one who Ih Haid to be the a^ent of the defendant, from the fact that he may have entered for the defendant the notice disputing the plaintiff's claim or demand. In the High Court of Justice it is the practice to serve the defendant's soli(ntor, entering the appearance with this notice of motion, and no doubt it is proper to do so, but in the Division Court, solicitors as such are not recognized, except in some particular instances, as in the 16tli, 18tli, 20th, 21st, 22nd and 59th sei^tions of the Division Courts Act of 1880. In the High Court, a solicitor having appeared for a defendant, his authority is presumed to continue until .judgment so far as the relation of parties is concerned, or until there is some distinct termination of it. Will the same rule exist in Division Courts ? Will the fact that a solicitor enters a notice disputing the plaintiff's claim, under the 79th section of the Division Courts Act, whether stated in the notice (as is sometimes the case) or not that he gives it as solicitor for the defendant, entitle the plaintiff to serve the notice of motion on him ? Will the leaving of the notice of dispute by one who is not a solicitor, as agent for the defendant, render the service of notice on him sufficient under this section ? From the nature and constitution of the Division Courts, their pur- pose and object, the summary character of their Is:-" Sec. 4.] DIVISION COURTS ACT. 188S. 105 practice, the abneiu-e of formal pleadiiiKH, the ri^ht of all perHoiiH to appear an apeutH at the heariiiK of (jauHCH, the absence of any responHibility of solicitorn or othei'H an officM^'H of nncth Courty, and upon the general principleH of law relative to principal and agent, the writer iw of opinion that the leaving with the Clerk of the Court the disputing notice by a H()li(;itor or other agent, does not in itself constitute him an agent, (clothed with the authority to receive, or warrant the plaintiff in serving him with the notic^e of motion under this section. It is (juite within the s(H)pe of Division Court practice that a i)ers()n may be retained or employed to give the disputing notice only, without regard to the subseciuent conduct of the suit. One test that might be applied would be if an agent had authority to give the disputing notice only, could he bind his (jlient by a bona jide settlement of the suit without express authority ? : Ghown v. Parrott, 14 C. B. N. S. 74 ; Presttvwh v. Poleu, 18 C. B. N. 8. 81)6 ; Butle7' V. Kniffht, L. R. 2 Ex. 109. Or would he have powder to accept service of notice to admit and produce, give admissions perhaps of the making of the note sued upon (if such it should be), consent to judgment, subject the defendant to the conse- quences of not produc'ing papers under notice to produce, or do the many other things which a solicitor has in the higher courts the implied authority to do '( At page 524 of Broom's Commen- taries on the Common Law, 5th Ed., the learned author in discussing this subject says : " Let us take, on the other hand, the case of an attorney, who (without having a general retainer) is author- N ?3 • ■*' 5^ 106 DIVISION COUETS ACT, 1885. [Sec. 4. I ! Hi ized to do some particular act ; liis authority will then necessarily be confined to doing such act ; and his right to recover for work done and matters incidental thereto, as against his client, will depend upon whether the business charged for fell within the scope of the authority with which he was invested or not." There is no doubt but that the defendant could give the notice by an agent, on the general principle that whatever a person sui juris may do himself he may do by another, and such agent may be a minor or a married woman : Lord v. Hall, 8 C. B. 627 ; Lindus v. Bradwell, 5 C. B. 583 ; Cotes v. Davis, 1 Camp. 485 ; Story on Agency, 4th Ed. 6 ; Jolly v. Bees, 15 C. B. N. S. 628. " The fact of agency may be proved by shewing an express authority given to the alleged agent ; by shewing circumstances from which the requisite authority must necessarily or may reasonably be inferred, or by establishing the existence of a particular relation between parties, whence an authority to contract will be implied by law " : Broom 519. Now keeping in mind the principles, and applying the law .just expressed, can it be said that the circumstance of a person giving the notice disputing the plaintiff's claim, without fur- ther evidence of authority, establishes the existence of any such relation between the plaintiff and such agent, as to invest the latter with authority to accept service of notice of motion for judgment under this section ? The writer is unable to come to the conclusion that it would. Evidence of Sec. 4.] DIVISION COURTS ACT, 1885. 107 expresH authority to do so would be an entirely different thing : Broom 516. If a person assumes to have authority to accept service of the notice of motion when he had not, he might be held responsible for warranting that he pofcisessed an authority which he had not, within the principle of such cases as Collen v. Wright, 7 E. &, B. 301 ; Richardson v. Williamson, L. R. 6 Q. B. 276 ; Weeks v. Properf, L. R. 8 C. P. 427. In Be National Coffee Palace Co. Ex ijarte Panmure, 24 Ch. D. 367 ; Chapleo v. Bimnswick P. B. Society, 6 Q. B. D. 696 ; but tlie Defendant should not be prejudiced by the unauthorized or fraudulent act of a soli(;itor or agent : Reynolds v. Howell, L. R. 8 Q. B. 398 ; Nurse v. Dumford, 13 Ch. D. 764 Williams V. Preston, 20 Ch. D. 672 ; Miller v. Hill, 4 L. J. N. S. 78 ; and if Judgment should be obtained by service of some one who had no authority to accept service, it would be set aside, and the defendant restored to his original position. Arch. Pract. 13th Ed. 86, 103 ; Masseyv. Rapelje, 5 C. P. 134. Where one of three defendants wcs served with a summons and he caused an appearance to be entered for all three, it was held that the defend- ant served had no power to enter a defence for the )thers : Roissier v. Westbrook, 24 C. P. 91. The . case of Warely v. Poapst, 7 U. C. L. J. 294 cannot now be considered law since the cases of Reynolds v. Howell, L. R. 8 Q. B. 398, and Nurse v. Dumford, 13 Ch. D. 764, but the right to take advantage of a Judgment entered upon insufficient service may be waived by delay, with knowledge of it : Moran v. Schennerhom, 2 P. R. 261 ; Smith v. Roblin, 13 C. P. 108 DIVISION COURTS ACT, 1885. [Sec. 4. 430 ; Kerr w.Malpus, 2 P. R. 135, but not in ignorance of it : Johnson v. The Credit Lyonnais Co., 3 C. P. D. p. 40, 2)er Co(;kburn, C. J. ; Westloh v. Brown, 43 U. C. R. 402 : McKenzie v. Br'tish Linen Co., 6 App. Cas. 82 ; Walker v. Hyrnan, '' App. R. 345 ; Crossrnan V. Shears, 3 App. R. 583 ; Forristal v. McDonald, 9 Sup. R. 12 ; Carr v. L. & N. W. Ry. Co., L. R. 10 C. P. 307 ; Mason v. BicUe, 2 App. R. p. 298 ; Miles V. Mcllivraith, 8 App. Cas. 120 ; DeBussche v. Alt, 8 Ch. D. 286 ; Polak v. Everett, 1 Q. B. D. 669. If no irreparable wrong would be done a plain- tiff who had obtained judgment by default, lapse of time would not be a bar to an application to set it aside : Atwood v. Chichester, 3 Q. B. D. 723. Where the affidavit is defective and an applica- tion upon it fails in consequence, a second applica- tion can be made on fresh materials. The decision on the first application simply means that a case for judgment was not made out on the then mate- rials : Wagstaff v. Jacohowitz, W. N. 1884, 17. By appearing and arguing the question on the merits without objection, the defendant would thereby waive any defect in the notice, or any objection to the sufficiency of the time of service, or even to any notice at all : Park Gate Iron Co. v. Coates, L. R. 5 C. P. 634 ; R. v. 8t(me, 1 East. 649 ; R. v. SJiaw, 12 L. T. N. S. 470 ; R. v. Smith, L. R. 1 C. C. 110 ; Blake v. Beech, 1 Ex. D. 320 ; R. v. Hughes, 4 Q. B. D. 614 ; Ward v. Raw, L. R. 15 Eq. 83 ; R. v. Crmwh, 35 U. C. R. 433, and ante page 33. The notice must be served "not less than two clear days" before its return. This means two days at least, that is, exclttding the day of service [Sec. 4. DIVISION COURTS ACT, 1886. 100 and the day when it is returnable before the Judge : In 7'e Railway Sleepers Supply Co., W. N. 1885, 85 ; R. V. Justices of Shropshire, 8 A. & E. 173 ; Mitchell V. Foster, 9 Dowl. 527 ; R,. v. Aberdare Canal Co., 14 Q. B. 854 ; R. v. Justices of Middlesex, 9 Jur. 758 ; Rumohr v. Marx, 19 L. J. N. S. 10. But in the Division Courts inclusive of Sunday : Clarke v. Macdonald, 4 Out. R. 310 ; Bank of Ottawa v. McLaughlin, 8 App. R. 543; Sinclair's D. C. Act, 1880, 19, 46, 80 ; McLean v. Pinkertmi, 7 App. R. 490. Service can only be effected of any paper by mail, so that time begins to count from mailing, in pursuance of a previous agreement to that effect : Robson V. Arbuthnott, 3 P. R. 313 ; McDonough v. Alison, 9. P. R. 4. Service on a corporation, to be effectual, must be given to the corporation itself through its proper officers. Casual knowledge acquired by one of the officers would not be good service : Soci£te Generale de Paris v. Tramways Union Co., 14 Q. B. D. 424 ; section 11 of this Act. Substitutional service of the notice could not, it is submitted, be ordered under the 62nd section of the Division Courts Act, 1880, but that service of it could be made on one occupying the position of '' agent " under the Uth section of this Act. The notice of motion may be in the following form, or to the like effect : In the Division Court of the County [or, united Counties] of Between A. B., Plaintiff, AND C. D., Defendant. Pi m I ■ :i ■ 110 DIVISION COURTS ACT, 1886. [Sec. 4. Take notice that a motion will be made on behalf of me, the above named plaintiff, before the Judge of thiB Honourable Court, at his Chambers in the Court House, in the of , in the said County of , on day, the day of A. D. 188 , at o'clock in the noon, or so soon thereafter as the motion can be heard, for an order that I, the plaintiff herein, be at liberty to have final judgment entered in my favor in this cause by the Clerk of this Court for the amount of the debt or money demand sought to be recovered in this action, together with interest, if any, and costs, and that in support of such motion will be read the affidavit of me, the plaintiff herein, a true copy of which accompanies this notice. Dated this day of A. D. 188 . To C. D., the above named De- fendant herein. Yours, &c., A. B., the Plaintiff, or, E. F., Solicitor [or agent] for the above named Plaintiff in this action. [N. B.— If given to anj other person who has authority to receive the notice, address it accord- ingly ; and if any other affidavit is to be used reference should be made to it and a copy served.] it) KXAMIMATION OF THE DEFENDANT. This provision for the examination of the defend- ant is evidently made for the purpose of better elucidating the facts of a case. Frequently it is difficult to form an accurate or satisfactory opinion . Sec. 4.] DIVISION COURTS ACT, 1885. Ill upon matters in dispute from what appears in affidavits. The legislature no doubt understanding that, have here provided for the oral examination of the defendant. The obscurity which often sur- rounds the statements made on affidavit, the absence of direct assertion on certain points, the evasion of others, the suppression of facts which make against the deponei'.t while those favorable are clearly brought ok;, and many other reasons which could be given 'iom every day experience, prove that the interee' ; of truth and justice are in most cases best ; observed by an oral examination of a party. It ij the experience no doubt of every Judge that tilth can be best ascertained by the oral rather than by the w^ritten deposition of any person. The practicml operation of this provision will probably bear further evidence of that fact. The Statute does not say how the order is to be obtained, nor whether it is necessary in all cases that there should be a formal application for it founded upon affidavit. In the absence of any authority that the writer can discover, he submits that the application may, if the Judge thinks it necessary, be granted on a formal application, but if the affidavits before him create such doubt in the mind of the Judge which he believed ah oral examination of the defendant might remove, and that a clearer concep- tion of the truth could be got by such examination, then he would have not only the power, but it would be the duty of the Judge instantly to grant an order for the examination on the material which he had before him : CocJcerell v. Van Diemeu^s Land Co., 16 C. B. p. 261. In either case the order for S3 112 DIVISION COURTS ACT, 1886. [Sec. 4. {! 'Si [' --^ It: :h examination of the defendant should be made and the examination thereunder should take place durii^ he pendency of the application for judg- mfcii 11 .' this section, the object being to use the evidence thereon. It is submitted that on such exiji iiiiation the counsel or agents for both plain- tiff and ixefthiifiiit should have an opportunity of being present and taking part in the examination if they so desired it : Assessment Appeal, 6 L. J. N. S. 295 ; and if that opportunity was not accorded them that the depositions should not be received or acted upon : Lumley v. Gye, 3 E. & B. 114 ; Cunliffe V. Whitehead, 3 Dowl. 684 ; Sivewright v. Sivewright, 8 P. R. 81. The order might direct the examination to be taken before such person as the Judge thought fit. It should be conducted according to the principles of law, and if not, the depositions should, it is submitted, be suppressed in whole or in part: Lumley v. Gye, 3 E. & B. 114 ; Taylor on Ev., 7th Ed., 451 ; Arch. Pract. 12th Ed., 334, 337. The Judge may change the place of production of documents by altering the order : Prestney v. Corporation of Colchester, 24 Ch. D. 376. The defendant would not be bound to make inquiries of his servants and others to aid the plaintiff on the examination : Rashotham v. Shropshire Union Rys. and Canal Co., 24 Ch. D. 110. It is submitted that the plaintiff is entitled to an order for the examination of the defendant and the production of books, documents, 8e the nature of lier separate property under this s,3(tion : Standard Bank v. McGuau* 7 P. R. 3')'^'. She could, however, be examined and be I iS Sec. 4.] DIVISION COURTS ACT, 1886. 115 called on to produce the same as any other defend- ant. See notes to section 3, pa^e 76 ante. Sufficient notice of the examination and produc- tion should be given to the defendant: Senn v. HewitU 8 P. R. 70. As to the production of books and accounts in support of claims in an administration suit, see Re Boss Estate, 5 App. R. 82. Irrelevant Questions.— The defendant may object to answer questions put as to matters which are irrelevant to the matters in question in the action : Girdlestone v. North B. M. Ins. Co., L. R. 11 E(i. 197 ; Wier V. Tucker, L. R. 14 Eq. 25 ; Rohson v. Crawley, 2 H. & N. 766 ; Reiv v. Hutchins, 10 C. B. N. S. 829. The objection will not be allowed unless the irrelevancy is obvious : Hoffmann v. Postill, L. R. 4 Ch. 673 ; McGarel v. Moon, L. R. 10 Eq. 22 ; Morris V. Bethell, L. R. 4 C. P. 765 ; Sutherland \. Sutherland, 17 Beav. 209 ; Chesterfield, &c., Co. v. Blach, W. N. 1876, 204; except in cases where the discovery might be used prejudicially to the party inter- rogated, when the Judge should look more closely into its relevancy : Carver v. Pinto Leite, L. R. 7 Ch. 90 ; Moore v. Craven, L. II. 7 Ch. 94 n. ; Republic of Costa Rica v. Erlanger, L. R. 19 Eq. 33 ; Mansfield v. Childerhouse, 4 Ch. D. 82 ; Smith v. Berg, 36 L. T. N. S.471. • Questions which are not put bona fide for the purposes of the action ma> be objected to. This objection, like that of irrelevancy, may be raised to interrogatories for the purpose of shaking a party's character or credit : Allhusen v. Labouchere, 3 Q. B. D. 654 ; Baker v. Newton, W. N. 1876, 8 ; Baker m j^V'' * tesD 5^ 116 DIVISION COURTS ACT, 1886, [Sec. 4. J r:l V. Lane, 3 H. : Pi^ i ■ i P I m^ mu ■A- — .1 ant, was not bound to procure production of docu- ments by the husband for the benefit of his co- defendants. Although a plaintiff may be entitled to call for the production of documents, it does not follow that the contents of such documents are in them- selves evidence : The Canada C. By. Co. v. McLaren, 8 App. R. 564. This provision as to production is quite independ- ent of that contained in the 137th Rule, which was evidently framed in the interest of defendants only : Sinclair's D. C. Act, 269. Costs.— "No provision is made in the Statute for the payment of the travelling fees or expenses of the defendant in attend ing to be examined. Although the Statute is silent on the subject, it would not seem fair to compel the defendant to attend at his own expense. Probably the Judge would in the order impose pre-payment of conduct money as a condition of defendant's attendance. See Form of Order, post. It is submitted that a fair rule in regard to the costs of the application for examination and pro- duction, and consequent thereon, would be that if after such examination and production are had, the plaintiff is held entitled to an order for immediate judgment, they should be made costs in the cause, but, if not, they should be costs in the cause to the defendant in any event. See Republic of Peru v. Weguelin, L. R. 7, C. P. 352. As the costs in any case must be trifling, probably they will usually be made costs in the cause. In addition to the cases cited at page 93 of this Sec. 4.] DIVISION COURTS ACT, 1885. 127 work, as to tlie necessity of a clear case beiiif? made out against a defendant and the absence of any defence by him, before an order will be made for inniiediate judgment, reference may also be made to the reports of the following cases .just published : Ontario Bank v. Burke, 10 P. II. 501, 648 ; Hughson v. Gordon, 10 P. R. 565 ; Cooh v. Leniieux, 10 P. R. 577 ; Carneron v. Rutherford, 10 P. R. 620 ; Quebec Bank V. liadford, 10 P. R. 611). The following Forms are appli(;able to proceed- ings under this secition : ORDER FOR FINAL JUDGMENT. In the Division Court for the County of [Name of the Judge\ in Chambers. Betwp]kn a. B., Plaintiff, and C. D., Defendant. Upon hearing and upon reading the affida- vit of filed, and It is ordered that the Plaintiff be at liberty to have the Clerk of this Court, whic^h he is hereby em- powered to do, enter final judgment for the amount of the plaintiff's debt or money demand sought to be recovered in this action, as appears by the par- ticulars of claim endorsed on {or attached to) the special summons herein, with interest, if any, and costs to be taxed, and that the costs of this applica- ti(m be Dated the day of 188 - Judge. 7 1 Ill 1 ; 128 DIVISION COUUTS ACT, 1886. [Sec. 4. ORDER FOR LEAVE TO DEFEND UNCON- DITIONALLY. Ill the Division Court for the County of \N(nne of the Jiid(/e\ in ChainberH. Bktwekn a. B., Phiiiitilf, and C. D., Defendant. Upon hearing and upon reading the affidavit of filed, and : It is ordered that the defendant be at liberty to defend this action unconditionally, and that the costs of this application be Dated the day of 188 . Judge. li:A I i ORDER FOR LEAVE TO DEFEND ON PAYMENT INTO COURT. In the Division Court for the County of . [Name of th£ Judge\ in Chambers. Between A. B., Plaintiff, and C. D., Defendant. Upon hearing , and upon reading the affidavit of , filed and : It is ordered that if the defendant pay into Court within days from the date of this order the sum of $ , he be at liberty to defend this action, but if that sum be not so paid, the plaintiff be at liberty to have the Clerk of this Court, which the Clerk is hereby empowered to do, enter final judg- ment for the amount of the plaintiff's debt or money demand sought to be recovered in this action, as Sec. 4.] DIVISION COUKTS ACT, 1886. 129 appears by the particulars of (;laim or demand endorsed on {or attached to) the specnal summons herein, with interest, if any, and (iosts, and that in either event the costs of this application be Dated the day of 188 . Judge. order for t.eave to defend as to part on paymh:nt into court and as to residue unconditionally. In the Division Court for the County of . [Name of the Judge] in Chambers. Between A. B., Plaintiff, and C. D., Defendant. Upon hearing , and upon reading the affidavit of filed, and It is ordered, that if the defendant pay into Court within days from the date of this order the sum of $ he be at liberty to defend this action as to the whole of the plaintiff's claim in this cause, and it is ordered, that if that sum be not so paid the plaintiff be at liberty to have the Clerk of this Court forthwith enter .judgment for that sum, which the said Clerk is hereby empowered to do, and the defendant be at liberty to defend this action as to the residue of the plaintiff's claim ; and it is ordered that the costs of this application be Dated the day of 188 . Judge. Q tesn ^ l'!l!|| ^F 130 DIVISION COURTS ACT, 1886. [Sec. 4. ORDER KOR THE DEFENDANT'S EXAMINATION AND PRODUCTION OK HOOKS, &C. Ill tlie DiviHiou Court for tlici (youiity of . \Naine of the Judge] in ChamberH. Betvvkkn a. B., Plaintiff, and C. 1)., Defendant. Ul)on liearin^ , and upon reading the affidavit of filed, and It is ordered that the defendant do [upon payment of proper (jharges for conduct money] attend before the Judge of this Court, at his Chambers in the Court House, in the of on the day of instant, at ten of the clock in the forenoon of the same day, or at such time as Chambers may first thereafter be held, and be examined upon oath, and there and then produce any books or documents, or copies of or extracts therefrom, pursuant to the sixth section of the Division Courts Amendment Act, 1885, and particularly the following : [here describe them shortly.] Dated thev day of 188 . Judge. [Should the order be for the examination and pro- duction before some one else, the above foimi can easily be changed.] IS' ! iJi Sec. 5.] DIVISION COURTS ACT, 1885 131 B. S. O., c. 47, 8. 1 U re- pealed. Summon- ing jurors. 5. Section 114 of The Division Courts Act is hereby repealed and the follow- ing substituted therefor : - 114. For the trial of all actions re- quired (x) to be tried by or before a jury at any session of a Division Court the clerk of such Court shall cause not less than twelve (.?/) of the persons liable to serve as jurors to be summoned to attend at such session at the time and place to be mentioned in the summons, and such summons sh'iU be served at least three days before the Court, either personally, or by leaving the same with a grown up person at the residence of the juror. (x) WHEN JURY REQUIRED. The Judge has to try aU actions in the Division Court himself, except in cases where either party having the right, requires a jury to be summoned 'Si ta 132 DIVISION COURTS ACT, 1886. [Sec. 5. il under the UOth section of the Division Courts Act, or where he may choose to call a jury from the body of the Court under tin? provisions of section 122 of that Act. The ri^ht of either party to a jury existed from the establishment of the; Division Court system in the year 1850 until the Division Courts Act, 1880, in cases of tort, where the amount sought to be recovered exceeded $10, and in all other actions where such amount exceeded $20 : Sinclair's D. C. Act, 141. By the 43rd se(;tion of the Division Courts Act 1880, the 109th section of the Division Courts Act was repealed and new provision made instead. Later Statutes have also extended the right to a jury and which now exists in the following cases : (1 .) In actions of tort, where the sum sought to be recovered exceeds $20 : D. C. Act, 1880, section 43. (2.) In actions of replevin where the value '>f tl.e goods sought to be recovered exceeds a) : D. C. Act, 1880, section 43. (3.) In all other actions where the amount .-< >ught to be recovered exceeds $30.00 : D. C. Act, 1880, section 43. (4.) In any interpleader issue, no matter what the value of the goods in dispute or the amount of their proceeds may be : Sinclair's D. C. Law, 1884, 57. In interpleader issues either party can have a jury summoned by giving to the Clerk or leaving at his office notice in writing requiring a jury within five days after the day of service of the summons on him : Sinclair's D. C. Law, I884, 57. :.'. in Sec. 5.1 DIVISION COURTS ACT. 1886. 133 The notice to the Clerk for a .jury mufit be in writing. Where a party ha« complied with the ttn'inH iieceHsary to entith^ liim to a .jury, the Judge lias not power to try the insue without a .jury : Hamlyti v. Betteley Q. B. D. 63; nor enter up .judguKHit in oppowition to their finding : Perhm v. Danoerjield, W. N. 1879, 172 ; Jardine v. RmltK H W. R. 4«4. It is imperative on the Judge in such case to try the f;aus(^ with a jury : Poinell v. WiMimns, 12 Ch. I). 2.S4: Sinclair's 1). C. Act, 1880, m and 70, and Sinclair's D. C. Law, 1884, m. If a Judge after hearing the (widence of the plain- tiff and part of the (evidence for the defence thinks proper to discharge thci .jury and enter a non-suit his decision could not be (juestioned, according to the authority of Kershaw v. Chantler, 26 L. T. N. S. 474. {y) NUMBER OF JUKOllS TO UK SUMMONP^D. It will be observed that the ITith section of the Division Courts Act is amended by the 44th section of the Division Courts Act, 1880, so that Clerks in selecting the persons to be summoned must observe the requirements of both sections of these Acts. It was a question formerly whether twelve .jurors were not required to be summoned in each case. D. C. Act, section 114, as amended by the D. C Act 1880, section 48. There was no necessity for incurring such expense or occasioning much incon- venience to the parties summoned. Under this Act the number of persons to be summoned as .juTors "at any session" is not to be less than 'S3 a.ai 1^ 134 DIVISION COURTS ACT, 1886. [Sec. 5. 11^^ twelve. This the Legislature thought would be ample, and now since jurors receive some reason- able compensation for their time and trouble (Sinclair's D. C. Act, 1880, pages 71 and 72), thereby causing a fuller attendance of the persons sum- moned, there is no doubt that the views of the law- makers will be found correct. The summons must be issued "at least three days before the Court." This means clear days, excluding the day of service and the day of Court, but inclusive of Sunday. Sinclair's D. C. Act, 1880, 19, 46. McLean v. Pinkerton, 7 App. R. 490. See note (s) to section 4 of this Act, at page 103 ante. As to service of the jury summons, how and upon whom made, see Sinclair's D. C. Act, 143 (m). RIGHT OF CHALLENGE. In the absence ot Statutory enactment the right to challenge s^yov^ peremptorily and without cause does not exist in civil actions : Creed v. Fisher^ 9 Ex. 472. The 115th section of the Division Courts Act pre- serves to all parties their right of lawful chal- lenge. The law formerly was that each party had the right to challenge three persons peremptorily who were called as jurors. Sinclair's D. C. Act, 144. The Jury Act of 46 Victoria (Ontario), chapter 7, section 111 extends the right of peremptory chal- lenge to " any foxir of the jurors drawn to serve on the trial of the cause." For further reference to the right of challenge the reader is referred to Sinclair's D. C. Act, 144. Sec, 6.] DIVISION COURTS ACT, 1885. 135 Certain persons are " freed and exempted " from serving as jurors " in any Court ;" 46 Victoria, (Ontario), chapter 7, section 6, and they will be found enumerated in that and the f Uowing sec- tion. The 49th section of the Division Courts Act, 1880, makes provision that in the event of the panel being exhausted before a jury shall be obtained the Judge can direct the Clerk to summon from the body of the Court a sufficient number of disin- terested persons to make a full jury, and any per- son so summoned may, saving all lawful exceptions and rights of challenge, sit and act as a juror as fully as though he had been regularly summoned. I J 1 mm 136 DIVISION COURTS ACT, 1885. LSec. 6. K.H.O. c. 17, fi.21(), sub-H, 3 repealed. County Judge to adjudicate on certain claims ou amount of Roods seized in execution. (). Sub-section 3 of section 210 of The Division Courts Act is hereby repealed, (z) and the following substi- tuted therefor : — (3) The County Judge having juris- diction (a) in such Division Court shall adjudicate (^b) upon the claim, and make such order (c) between the parties in respect thereof, and of the costs [d) of the proceedings, as to him seems fit; and shall also adjudicate between such parties, or either of them, and such officer or bailiff in respect of any damage or claim of or to damages (e) arising or capable of arising out of the execution of such process by such officer or bailiftj and make such order in respect thereof, and of the costs of any proceedings as to the Judge shall seem fit; and any I if 1 t^ ^f\ 6.] DIVISION COURTS ACT, 1885. 137 such order shall be enforced in like manner as an order made in any suit brought in such Division Court, and shall be final and conclusive between the parties, except that upon the appli- cation of either the attaching or execu- tion creditor or the claimant, or the officer or bailiff, within fourteen days after the trial, the Judge may grant a new trial (/) upon good grounds shewn, as in other cases under this Act, upon such terms (r/) as he thinks reasonable, and may in the meantime stay pro- ceedings. (z) It win be observed that the 3rd sub-section of section 210 of the Division Courts Act is repealed by this section, and further provision for the more complete disposal of interpleader matters is hereby made. The repealed sub-section was in these words : "The County Judge having jurisdiction in such Division Court shall adjudicate rpon the (;laim, and make such order between the parties in respect thereof, and of the costs of the proceedings as to him seems fit ; and such order shaU be enforced in R I Vi If:.! ^: ^tr- Site «5« *1 138 DIVISION COURTS ACT, 1886. CSec. 6.' like manner as an order made in any suit brought in sut;li Division Court, and shall be final and conclusive between the parties, (^xcej^t that upon the ai^plication of either the atta(-hing or execution creditor or the (claimant within fourteen days after the trial, the Judj^e may grant a new trial upon good grounds shewn, as in other cases under this Act, upon such terms as he thinks reasonable, and may in the meantime stay proceedings." (a) JUDcn-: having jurisdiction. . Any Judge or Junior Judge of the County, or any Deputy Judge appointed under chapter 42; section 6, of the Revised Statutes of Ontario, or the Judge of the County Court of any other County, duly recjuested so to do, or acting in pursuance of R. S. ()., chapter 42, sections 16, 22, or any Deputy Judge appointed by the Judge under the 20th section of the Division Courts Act, would have "jurisdiction in such Division Court" under this section. Where a Deputy Judge is appointed by Government the law presumes that the necessary facts exist to wai'rant such appoint- ment, and on the party disputing the validity of the appointment rests the onus of establishing its invalidity. In II V. Fee, 3 Out. R. 107, it was held that where a (jommission was issued by the Governor- General in Council a|)pointing a barrister a Deputy Judg(^ during pleasure and the absenc^e of the County Judge under leave of absence granted to him by Order in Council, it was not necessary to prove the Order in Council granting such leave of Sec. 6.] DIVISION COURTS A.CT, 1886. 139 absence, and that the general presumption of law should prevail, namely, that a person acting in a public capacity was properly appointed and duly authorized to act until the contrary was shewn by the person disputing it. It was also held in that case that it was not essential that the County Judge should be absent from the County in order to enable the Deputy Judge to act. The Junior Judge has the same power to appoint a barrister as Deputy Judge to hold a Division Court sittings as the Judge has, and all the powers of the Junior Judge would continue until the Deputy Judge had performed the purpose of his appointment : In re Lelbes v. Ward, 45 U. C. R. 375. In the case of In re Wilson v. McGuire, 2 Out. R. 118, it was contended that the Provincial Legislature could not authorize the Judge of one County to hold a Division Court in another County. This contention was not sustained, but in Gibson v. McDonald, 7 Ont. R. 401, it was held that a Judge of one County could not preside at the Court of General Sessions of any County but his own. For further remarks on the subject generally, see Sinclair's D. C. Act, pages 18 and 19. {b) MUST ADJUDICATE. The language of the repealed section and this declares an imperative duty, and the Judge has no alternative but to adjudicate on the (juestions which are properly presented to him in the inter- pleader issue. Whether in all cases the adjudica- tion here mentioned must be by the Judge alone, or whether the provisions of 47 Victoi'ia, Chapter ^ 140 DIVISION COUBTS ACT, 1885. [Sec. 6 10, section 10 (Sinclair's Division Court Law, 1884, 57 et mq.) can be invoked will be discussed here- after. The adjudication here mentioned is simply the judicial determination of some question or questions in dispute between the parties to the interpleader issue. In order to bind parties there must be tf^i adjudication ovl the interpleader sum- mons, and anything short of that will not satisfy the Statute : Bininsden v. Humphrey, 14 Q. B. D. 141. The question in dispute must have become res judicata so as to be obligatory on all parties con- cerned : Challiner v. Burgess, 2 U. C. L, J. 137 ; but no particular form of words is necessary : Oliphant v. Leslie, 24 U. C. R. 398; Hunter v. Vanstone, 7 App. R. 750. Unless a new trial is moved for as prescribed by this section, the decision of the Judge is final and conclusive as to the goods or the proceeds thereof, i?. V. Botu, 13 U. C. R. 398 ; Keane v. Stedman, 10 C. P. 435 ; Williams v. Richardson, 36 L. T. N. S. 505 ; Turner v. Bridgett, 9 Q. B. D. 55. The Judge could not reverse, change or alter his decision after the time had elapsed : Mossop v. Great Northern Raikvay Co., 16 C. B. 580, S. C. 17 C. B. 130 ; Irving v. Asheiv, L. R. 5 Q. B. 208, 211 : Death v. Har7%son, L. R. 6 Ex. 15 ; Dodds v. Shepherd, 1 Ex. D. 75. Should the Bailiff return the execution without the order of the Judge there could not be an inter- pleader issue or a proper adjudication : Merchants Bank v. Hersan, 10 P. R. 117 ; Angell v. Baddeley, 3 Ex. D. 49. On the subject of interpleader generally in Divi- [Sec. 6. DIVISION COURTS ACT, 1885. 141 sion Courts, see Sinclair's D. C. Act, 214. As to wlicat is (;onsidered "the pro(;ee(ls or vfilue" of goods for the purposes of interpleader, pee Sin- clair's D. C. Law, 1884, 47 ; Smith v. Critchjiekl 14 Q. B. D. 873. Where a Bailiff sells goods with the consent of both parties he does not thereby exercise his discretion so as to deprive him of the right to interplead : Darlind v. Oollatton, 10 P. R. 110, nor would such a right be defeated by receiving from the claimant the amount due on the execution in cash, and withdrawing from the seizure of the goods : Paris Manufacturing Co. v. Walls, 10 P. R. 138. If the Bailiff should, after notice of claim, pay over to the execution creditor the amount of his execution, he would not be entitled to inter- pleader : xidams v. Blackwell, 10 P. R. 168. The Division Courts Act does not apply to prop- erty intended to be taken. Sinclair's D. C. Act, 214 (//) ; see also Offden v. Oraiff, 20 L. J. N. S. 367 ; Brown v. Nelsori, 20 L.J. N. S. 390. As to the course to be pursued by an officer where a claim is made to goods seized, the reader is referred to Clnqmars v. Moodie, 15 U. C. R. p. 606 ; Walker v. Niles, 3 Ch. Cham. 59 ; Sinclair's D. C. Law, 1884, 58 et seq. Where the claimant fails the Bailiff's costs are to be allowed to him out of the amount levied unless otherwise ordered. Rule 40. If the Bailiff does not retain his costs out of the amount levied, he cannot, if the claimant has been ^ 142 DIVISION COURTS ACT, 1886. [Sec. 6. ordered to pay the (;ostB, sue the execution creditor for them : Bloor v. Huston^ 15 C. B. 266. It frecniently becomcH a question with a Bailiff whether he is bound to interplead unless the amount is prepaid, or security is given to him for the costs which he must necessarily incur by inter- l)leading. No provision has apparently been made for such a case. We think if he desires to protect himself he should interplead under any circum- stances, but surely some provision should be made for such a case. Where a foreigner is claimant. : see Sinclair's D. C. Law, 1884, p. 60. Where one party gives a bond of indemnity, or does any act which would otherwise prejudice a Bailiff's right to interpleader, he cannot set up his own act to the prejudice of the Bailiff's right : Thompson v. WHght, 13 Q. B. D. 632. As to the issue to be tried, and what is necessary for the claimant to show to sustain his claim, and the right of apportionment of costs, see Sinclair's D. C. Law, 1884, 60, 61. Execution creditors in the Division Court should be made parties to interpleader proceedings in the High Court : Macjie v. Hunter, 9 P. R. 149. The Judge could not adjudicate upon any ques- tion of costs except the costs of the proceedings mentioned in the Statute : Hansen v Maddox, 12 Q. B. D. 100. Equitable as well as legal rights are the subject of adjudicat'in in an interpleader issue, and must be recognized by the Court : Duncan v. Cochin, L. R. 10 C. P. 554 ; Engelhack v. Nixon, L. R. 10 C. P. Sec. 6.] DIVISION COURTS ACT, 1885. 143 045 ; Runden v. Pope, L. R. 3 Ex. 269 ; Bank of Irelmul V. Perru, L. K. 7 Ex. 14 ; Mcintosh v. Mcintosh, 18 Grant 58; Wilsmi v. Dundas, W. N. 1875, 232; Leamiuff v. TFbow, 7 App. R. 42. The issue of the interpleader summons does not remove the case from the control of the Court : Wicks V. Wood, 26 W. R. 680. Neither an interpleader issue nor any othei* case can be adjourned by consent of parties without the consent of the Judge : Morgan v. Rees, 6 Q. B. D. 508. An action of trespass can be brought pending an interpleader issue. In Hoohe v. Ind, Ooope <& Co., 36 L. T. N. S. 467, Denman, J., says: "I think it cannot be laid down that a writ cannot be issued pending the trial of an interpleader issue." The (nrcumstances might, however, warrant a stay of proceedings. Where more goods are seized than claimed, the claimant must in his particulars of claim, under Rule 38 or otherwise, specify the particular goods which he claims : Pi'ice v. Plurnmer, 25 W. R. 45 ; Plmnmer v. Price, 39 L. T. N. S. 657. A cestui que trust who is in possession of settled goods by virtue of an authority from the trustees, is entitled to the same as against the Sheriff or Bailiff seizing them for the execution creditor of a debtor living in the house wherein such goods are, and it is not necessary for the trustees to be parties to an interpleader issue directed in order to deter- mine the right of possession : Sanderson v. Perrin, 22 L. T. N. S. 419. The High Court of Justice has no power to order S3 ii 144 DIVISION COUKTS ACT, 1885. [Sec. 6. a Judge of the Divinion Court to re-enter a cause on liiH list for re-trial : Moruan v. Rees, 29 W. R. 213. There is power to ad.jiidic'ate as to d.amages, even if the goods have been sold by the Bailiff : Hilla v. lienyiy, 5 Ex. D. ai.'j. Where a party to an interpleader issue is entitled to have it tried by a, jury, the Judge (;annot i)r(5vent that right : Hamlijn v. Bettelet/, 6 Q. B. D. 68. He could preserve his right by simply protesting. Lord Selborne, L. C, says at page (55 of that rei)()rt : " Wliere a protest is made against jurisdiction, the party protesting is not bound to retina ; he may go through the wlioh^ case subject to the protest he has made." There could not be a trial by si)ecial jury in the Division Court : 46 Vict., chapter 7, ss. 109-130 ; Ex parte Arniitai/e, In re Learoyd, Wilton & Co., 17 Ch. 1). 13. Wliere on a claim being made to goods seized by a Bailiff the execution creditor does not direct the Bailiff to give up the goods to the claimant, but appears and contests his title in interpleader pro- ceedings, it was held no eviden(;e of a ratification by the execution creditor of the Bailiff's detention : Toppin V. Duckerjield, 1 C. & E. 157. Should the Bailiff, with the consent of the exe- cution creditor and the claimant, temporarily with- draw from possession of the goods or chattels, they would no longer be in the custody of the law, and a landlord could distrain upon them for rent, altl lough he knew that the interpleader proceedings were Sec. 6.] DIVISION COURTS ACT, 18H6. 145 penidinff : Cropper v. Waiiier, 1 C. & E. 152 ; neti Craid V. Cra'ni, 7 P. R. 2(M). It would Hcciin, though doubted in Poyner v. Minor.% 7 Q. B. I). 329, that by Order XVI., rule 17 of the Eiivrliwh C.ouiity Court Orders, 1875, a .judg- ment of non-Huit in an English County Court lias the same eff{3ct as a .judgment on the merits for the defendant, unless the Judge otherwise directs. We have no similar provision in this Province, so that a judgment of non-suit in ordinary actions in the Division Court has now the same effect only that it always had, and a second action can be brouglit : Building and Loan Association V. Heimrod 8 C. L. Times 861, 19 L. J. N. S. 254 ; In re Williuf/ v. Elliott, 87 U. C. R. 320 ; Clarle v. Macdonald, 4 Out. R. 310 ; Pry or v. City Offices Co., 10 Q. B. D. 504 ; Davis v. Great Eastern Ry. Co., 89 L. T. N. S. 635 ; Bank of Ottaiva v. McLaughlin^ 8 A pp. R. 543 ; Poyser v. Minors, 7 Q. B. D. 329. Division Court Statutes do not contain any pro- vision such as is to be found in the English County Courts Amendment Act of 19 and 20 Victoria, (chapter 108, section 72, where provision is made that a claimant of goods taken in execution may deposit with the Bailiff t;ither the amount of the value of the goods claimed, or the sum which the Bailiff may be allowed to (;harge for k(;ei)ing possession of sut^h goods until the decision in the inter ple.'ider issue can be obtained, and in default of so doing the Bailiff shall sell such goods as if no such claim had l)een made, and shall pay into Court the proceeds of such sale to abide the decision of the Judge. A Division Court Bailiff under our law has no 1 fcr" ST'*' S3 *^ 146 DIVISION COURTH ACT, 18«6. [Sec. H. n- alternative but to keep poHseHsiou of the proodn or (•liattelH Heized, and yliould he take a bond from tlie dt^btor and aUow him to remain in poHset^sion of the goods, or othervvine abandon th(^ poHseHHlon, th(! riglitH of other creditors— jffr>e v. lioper, 28 C. P. 7(5 ; Williams v. Grey. 23 C. P. m\ ; Sini-hiirV D. C. Act, 176: niaden v. Ammlel, 1 M. tfe S. 711 ; Darhy v. Watedow, L. R. 3 C. P. 453— or of the \i\\n{\o\'i\ Oro2)per v. Warmr, 1 C. & E. 152; (Jruii/ v. Craid. 7 P. R. 209 ; Mclntyre v. Statu, 4 C. P. 248— would prevail. Should the execution creditor be prejudiced by the BailifrH abandoning the seizure, the latter wouhl be liable : Maclean v. Anthony, <> Out, R. 330. The right of the Bailiff in England to sell the goods on default of the claimant making the deposit is very advantageous : Cramer v. Matthews, 7 Q. B. D. 425. Under tlif^ power to stay proceedings the Court or Judge has the power to stay the action against the execution creditor as well as the officer : Carpenter v. Pearce, 27 L. J. Ex. 143. In an interpleader suit the execution creditor may claim property which the execution debtor has disabled himself from claiming ; for an estoppel wliich would be binding against the execution debtor in a claim put forward by him will not be binding on the execution creditor or the Bailiff, who are strangers to the acts of the execution debtor : Richards v. Johnston, 4 H. to costs only are specifically mentioned. A superficial glance at the 122nd section of the : ft* 1 I t, ■KM 150 DIVISION COURTS ACT, 1885. [Sec. 6. i Tfi-'Wi. i U' It'Dl Division Courts Act would seem to be applicable to such a case as that we are (X)nsidering, but so it woidd in the same way to interpleader issues when Munsie v. McKinley, 15 C. P. 50 was decided ; yet the Court there held that the Judge must "adju- dicate on the claim " himself without the aid of a jury. The writer, therefore, reluctantly comes to the opinion that the (luestion of damages arising or capable of arising out of the execution of the process must be determined by the Judge alone. The anomaly will appear, that a jury may be try- ing the right to the property seized or attached, and the Judge the subject oi damages in conse- quence of such seizure, The legislature oidy can supply the remedy if any is needed. No provision is made fox* any formal statement of claim for damages, or notice of it tc; the opposite party. Possibly it may be found necessary for the ^oard of County Judges to frame rules concerning tne practice and proceedings in such cases. Until then each Judge might lay down for the guidance of suitors and others in his own Courts, som-:^ general rules of practice to be observed, with the object of fafilitating th<' speedy, just and fair trial of the (juestions |)resented. The Judge (u^uld not impose any conditions im^onsistent with tli(^ pro- visions of the Statute : R. v. Pa\dett, L. R. -S Q. B. 491. The exe(-ution creditor, not having autliorized the seizure, is not bound to (^^ntest the interpleader issue, and if after service of summons he abandoned all claim to the goods, lu; could not be made liable for theBailiirs costs: 6". v. />., W. N. 1883, 207; Sec. 6,1 DIVISION COURTS ACT, 1885. 161 Can. Bank of Cotmnevce v. Tosher, H1)EI{. When the Judge has formally dec-lared his d(M*i- siou, and when tlie same is embodied in an order and (ait(U\;d in the Pro(tedure Hook, it then b(;comes evidence of the adjudication mentioned in the Statute. As has been already remarked no partic- ular form of words is necessary to cionstitute a valid order of adjudication : (Hiphant v. Leslie, 24 U. C. R. 398 ; Hunter v. Vanstope, 7 A pp. R. 750. {d) COSTS. It will be observed that the subject of costs is mentioned twice in the section ; first in regai'd to the costs of the interpleader proceeding to test tlie right to the goods seized, and second, in respe(;t to the (Xjsts of the proceeding incident to the in- ((uiry as to damages. As to the (luestion of (^Oi^ts between the parties to the interpleader issue it may be said tLat costs usually follow the '"esult. It is a rvde generally observed and subjec^t to few exce|)tions, if any : Secnrard v. Williains, 1 Dowl. 528: Scales v. Saruexon, 3 Dowl. 707; WilU v. Hojdins, 3 Dowl. 34(5 ; J> DIVISION COURTS ACT, 1885. [Sec. 6. When ea(-li party siicceedH as to part, the costs will be apportioned: Lewis v. Hoidmg, 3 Scott N.Ii. lt)l ; Htaleii v. Bedwell 10 A. & E. 145 ; CUftiHi V. Daim, (i E. tt; B. 892 ; Dempseu v. Casjxir, 1 P. R. 184 ; 6V/y'^er v. Stewart, 7 P. Pt.85 ; Segsworth V. Meriden Silver Plating Co., 8 Ont. R. 418. Should either the execnition creditor or the claimant, after ^lie isi: le, at the instance of the Bailiff, of tie interpleader summons, wish to aban- don all claiia to the goods, it is not definitely estab- lished Avliat the effect of doing so would be on the question of costs. If an execution creditor had not given any in- stru('tions as to the seizure of the goods, and on being made aware of it had given notice of his abandonment of all claim to tluaii, it is submitted that he could not be held responsible for costs : Wilkins V. Peatman, 7 P. R. 84 ; Canadian Bank of Commerce v. Tasler, 8 P. R. 851 ; liooda v. Gun and Shot and Griffin's Wharves Co., 28 L. T. N. S. 685. The ((uestion of costs cannot be ; Anglo-American v. Se<^ 6.] DIVISION COURTS ACT, 1885. 153 Roudin, 20 L. J. N. S. 871 ; Tondimon v. Land and Finance Corporation, UQ. B. 0.589. Assuming that Herurity for costn in interpleader cases in the Division Court can be ordered, refer- eiu;e to some of the hiter cases on the general question may not be out of place here. The parties to an interpleader issue are really in the position of plaintiffs in an ordinary action, and the defendant, the execution creditor, can be ordered to give security for costs as well as the plaintiff : Tomlinson v. Land and Finance Corpo- ration, U Q. B. L. 589. The case of Betinonte v. Aynard, 4 C. P. D. '221, 852, which decided that when a ntigant v/ho resi- ded abroad was for mere convenience made plain- tiff in an interpleader issue, and where one of the defendants was really interested in the result as a plaintiff, the plaintiff could not be called on to give security for costs, was not followed in the case just cited. A married woman will now be ordered to give security for (;osts in the same cases that an unmar- ried w^oman would be so ordered : Griffith on Marrieni Women's Property, 28, 24, 80. Sweetman v. Morrimn, 10 P. R. 446. The application for security for costs may now be made at any time : Ijudneu and Wiupotd Iron Ore Co. v. Bird, 28 Ch. D. 858 ; Bud worth v. Bell 21 L. J. N. S. 142. The statement of a party's residence out of the Jurisdiction on information and belief is not suffi- cient : Holiiuifxu'orth v. /I(dlin(/sfrortk, 10 P. K. bh. VViiere a plaintiff leaves the .jurisdiction perma- i 154 DIVISION COURTS ACT, 1885. [Sec. 6. neiitly duriii.t-- the pendency of an ju-tion, wecMirity for costs will be ordered : Hatelu v. The Merchants Demttch Trans. Co.. 10 P. K. 253. Where a defendant admits the phiintiff's causti of action and s(^ts np a (;onnter-(5hum founded on a distinct claim lie is not entitled to security for costs: Winterjield v. Bra. ft i. interpli^ader issu(\ caiid tin; HailifF as tlie olliccr ext^'uting the process, to liav(^ the dainn^cs, (if any) (xjcasioned by this seizun; suiniiiarily s(;ttU'(l. It is eoiifiiied to them entin^ly, and lias no application whatever to otlier parties, whtither purchasers of the ^oods or otherwise. Hills v. Jienutf, 5 Ex. 1). 31 a. The Jud^e lias poAver and it is his imperative duty not only to ad.judicate between thc^ parties to the issue or either of them, but also as between either of them and the offi.(5er or Bailiff in respect of any damage, or claim of or to damages arising or (japable of arising out of the execution of the l)rocess by the officer or Bailiff. The words of the section are very comprehensive;, and are intended to cover, and it is submitted do cover all and every claim for damages whic'li any of the parties would have had against the other in any way arising, or that by possibility might arise out of the execution of the process. A question may arise on seizure made under warrant of attac;liment issued by a County Judge or Justice of the Pe^ace, under the 191st section of the Division Courts Act, and damagcis (insu(^ whether such damages would be the subject of ad.judication under this se(;tion. It is submittcnl that a liberal (;onstru(;tion of the section should be given, and that such warrant would be; " pro- cess of a (any) Division Court," under the primary part of section 210. We think that if any of the parties mentioned in this new provision had any claim for damages within the meaning of this section it would be his Sec. (•). DIVISION COURTS ACT, 18H5. 169 duty to assert it in tlie iutcrplt'iKlcr issu(\ If \w should lie idly hy, iiotclioosiiiK to assert liis(tlaiiii to daiiia.M-cs, and allow the Jud^(^ to adjudicates upon i\w other (piestious he would bts conehKhsd by it. Tlie object of the; section is that there! should bcs but one trial not only as to the riuht to the; i^oods or cliattels s(M/,ed, or thtMr i)r()ceeds, but also as to all damages, whether a^-ainst ofliccu' or party, which luiuhtl^y possibility aris(; out of tins ex(?cuti()n of the process. He should have soui^ht an ad,judi<*a- tion on the (pn^stion of daniau-es during the peii- denc^y of tlu; interphsader issue, and not havini^ doiH' so hr should aft(;rwardsb(s estopped from ma- kin,i»' claim to them : Death v. Harnmn, L. H. <3 Kx. If) ; AV>.s'.s/ V. Bdileif. L. K. .-i Q. H. i\'l\ ; floiiesv. Hill L. K. T) Q. J^. 'M)\ Wallace y.B;} Cli. D. 18l> ; Kendall v. Hamilton. 4 A|)|). Cas. 504; Kx parte Havpev, In re Brenmei\ \u R. 10 Ch. 879 : Amtin v. MilU, 9 Ex. 288 ; Flitters V. Allfreii, L. R. 10 CJ. P. 29 ; Millett v. Coleman, 88 L. T. N. S. 204 ; Hunter v. Vanntone, 7 A pp. R. 750 : Mason V. Wirral Hiuhwau Board, 4 Q. B. D. 459. Should any person take tlie b(Uiefit of any order made under this section he w^ould have to take the burden of those parts of the order unfavorable to him : Haifirardv. Duff, 12 C. B. N. S. 8(U ; Giraud V. Amten, 1 Dowl. N. S. 708 ; Tinkler v. Hilder, 4 Ex, 187 ; Sim/nonsv. Kiui/, 2 D. & L. 786 ; Tkompmn V. iMnuridiie, 5 I), cfe L. 218. If the matter upon whicli \\w Juds-e ad.judicated, ()]• had the right to ad.judicate ui)on, be beyond his 1 1. "" li 33 SI'S •^ .* IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 us. 12.0 ■tt 1^ 122 US lU u u ,_ ■UUl. 6" FhdDgraphic Sdmoes Carporatian n WBT MAM STMIT \MIISTM,N.Y. USM (7U)I73-«S03 iMii Mta -I / 160 DIVISION COURTS ACT, 1885. [Sec. 6. I jurisdiction or the scope of the enactment, then of course it would not be a bar to an action : R. v. ^?/Mm/7S, 6Q. B.D. 300; Sinclair's D. C. Act 42, c ycfept as governed by section 7 of this Act. ^^y the first part of section 210 of our Division C\jurt Act (which follows section 118 of 9 and 10 V.ct(.ria. chapter 95 of the Imperial Act), provision in made for staying proceedings in an action in any of our Courts brought in respect of the claim to the goods seized, against the officer. Instances of this application and of the effect of interpleader generally will be found discussed in the following cases : Tinkler v. Hilder, 4 Ex. 187 ; Jessoj) v. OrawleyA^ Q. B. 212 ; Foster v. Pritchard, 2 H. & N. 151 ; Jones v. Williams, 4 H. & N. 706 ; Mercer v. Stanbury, 2 H. & N. 155 ; Winter v. Bar- tJioloniew, 11 Ex. 704 ; Finlayson v. Howard, 1 P. R. 224 ; Washington Y. Webb, 16 U. C. R. 232 ; Schanwham v. Traske, 30 U. C. R. 543. And see also Cater v. Ohiffnell, 15 Q. B. 217 ; Abbott v. Richards, 15 M. & W. 194 ; Jousiffe v. Bayley, 15 L. T. N. S. 219 ; Carpenter v. Pierce, 27 L. J. Ex. 143; Oliphant v. Leslie, 24 U. C. R. 398 ; Walker v. Olding, 1 H. & C. 621 ; Mcintosh v. Mcintosh, 18 Grant 58 ; Hollier v. Laurie, 3 C. B. 334 ; Harmer v. Cowan, 23 U. C. R. 479 ; Best v. Hayes, 1 H. 1 166 DIVISION COURTS ACT. 1885. [Sec. 6. in .the cases of Staff ht v. West, 25 U. C. R. mn ; McClevertie v. Masde, 21 C. P. 516 ; Phillips v. Findlay, 27 U. 0. R. 82. In the latter case the present Chief Justice of the Province says at page 34 of the report : " The latter (the execution (Teditor) is clearly liable if his attorney give mUcIi a direction as causes the mistake." In support of this proposition the cases of Wlson v. Tumman, 6 M. & G. 242 and Jarmain v. Hoojej\ 6 M. & G. 827, are cited. He says, however, that if the writ is delivered to the officer without any instructions, and to be acted on in the usual course, the creditor cannot be held liable if the wrong person's goods are seized. But the subject of the creditor's liabil- ity for the acts of his solicitor has, at a compara- tively recent date come up for decision in the Court of Appeal in England, and a full review of the leading cases there took place. The result is that a much more reasonable limit has been placed to the liability of the creditor than the earlier cases would seem to decide. In Smith v Keal, 9 Q. B. D. 340, the facts were these : The defendant had recjov^red judgment against one Law, who had at one time been in partnership with the plaintiff, and issued execu- tion upon such judgment. After the delivery of the^. fa. to the Sheriff, his officer, doubting as to the goods available for seizure under it, wrote to the defendant's solicitors, asking for an interview, and their managing clerk accordingly had an in- terview with the Sheriff's officer, and had some conversation about some goods at a brewery, which was the address indorsed on the writ. To the Sec. B.] DIVISION COURTS ACT, 1886. 167 ()ffi((U''H reciuest for information the Clerk answer- ed that he thou^lit that Law had a share in the brewery, and tliat the Sheriff had better seize there. Aft(ir tiiis (conversation the officer seizcMl at the bi"(nvery some ffoods belon.M'in^' to tlie pres(^nt plaintiff. Tlu! plaintiff claimed the ^^oods as his exclnsive property. An interpleader issue, to try the cpiestion whether the jjroods were the property of the plaintiff as against the defendant, w\as ordered and tried. It was decided in favour of the plaintiff, who then broug-ht an action against the defendant for the wrongful seizure of his goods by the Sheriff. The plaintiff was non- suited at the trial. He obtained a rule to set aside the non-suit, but after argument the application was refused by Manisty and Stephen, J. J. and ...^ Pollock, B. The plaintiff appealed from that :,••"'» decision, relying on Jarmain v. Hooper, 6 M. . DIVISION COUllTS ACT, 1885. 169 221, ,152 : The Credits GemmleuMe {Limited) v. Van- TTm/c, 12Q. B. D. 171. A (jomiiiission oould issue under the 99tli section of the Division Courts A(it to take evidence to be used, in any (;ase arising under the 210tli section as amended by this section ; see White v. Waits, 12 C. B. N. S. 267. It is not necessary on the trial of an interpleader issue to prove the judgment or execution against the debtor : Hammill v. DeWolf, 10 C. P. 419 ; Holden v. Lanqlen, Patterson v. Langley, 11 C. P. 407, 411 ; Mc Whirter v- LearmoutK 18 C. P. 136. It is submitted that the same rule would prevail in trying the question of damage. In an inter- pleader issue the plaintiff rested his case upon proof of a chattel mortgage of certain goods men- tioned therein, made to him by the execution debtor, and duly filed. It was held clearly insuffi- cient, for it afforded no proof that the goods mortgaged were the same as those seized by the Sheriff and claimed : J ernes v. Jenkins, 25 U. C. R. 151. The Interpleader Act makes no distinction be- tween an attaching and an execution creditor, and whatever transfers the Sheriff may impeach the attaching creditor may also impeach : Doyle v. Lasher, 16 C. P. 263 ; Parhes v. St. Ge(yrge, 10 App. R. 496 and cases there cited. The execution creditor could not sustain a claim to property stolen from the plaintiff even though innocently purchased by the execution debtor or some one under whom he claimed : Bowman v. I •: ii -»1 fr-P h !'.! 170 DIVISION COURTS ACT, 1885. [Sec. 6. Yuldina, M. T. 8 Vict. ; White v. Spettigue, 13 M. & W. 603 ; Lee v. ^ayes, 18 C B. 599. If A. leases goods to B. and they are seized under an execution against B., but are not sold or remo- ved, A has no claim against the officer, because his reversionary interest has not been damaged : Hemiersoti v. Moodie, 3 U. C. R. 348, but should A's reversionary interest be prejudicially affected by the seizure damages would be recoverable. Growing crops are the subject of seizure and sale on Division Court execution, and consequently can be the subject of an interpleader issue in the Division Court and of damages under this section : Ingram v. Taylor, 7 App. R. 216 ; Gram v. Austin, 7 App. R. 511 ; Hamilton v. Harrison, 46 U. C. R. 127 ; Haydrni v. Crawfwd, 3 O. 8. 308, 583 ; Campbell v. Cushman, 4 U. C. R. 9. As to a bill of sale of future crops, see Clements v. Matthews, 11 Q. B. D. 808 ; Joseph V. Lyons, 51 L. T. N. S. 740. A bill of sale of growing crops does not require registration : Hamiltmi v. Harrison, 46 U. C. R. 127 ; nor an assign- ment for the general benefit of creditors : Robertson V. Thrnnas, 8 Ont. R. 20. A claim to goods condemned under the revenue laws could not be sustained : Dam^ v. Carberry, 10 U. C. R. 332. If a person has the possession of goods that is sufficient as against a Bailiff, who has no right to take them : Porter v. Flintoff, 6 C. P. 337 ; Green v. Stevens, 2 H. '1 '"»R |Hll«| •"if 1:' 'ii^lf'' ifc Ufct Il ^1 ' ! 178 DIVISION COURTS ACT, 1885. [Sec. 6. U. C. R. 398 ; Tinkler v. Hilder, 4 Ex. 187 ; Foster v. Pritchard, 2 H. ■■ ill |llr I a ~!i :■: i ■ 186 DIVISION COURTS ACT, 1886. [Sec. 6. distance it was imposed as a condition that his evidence given at the last trial should be read from the Judge's notes : Conley v. Lee, 12 U. C. R. 456. In a verdict for defendant clearly against evi- dence on one part of the case, a new trial was granted unless the defendant consented to a verdict for the plaintiff on that part of the case : Anderson v. Todd, 3 U. C. R. 16. In Dove v. Dalby, 5 U. C. R. 457, a new trial was granted on terms of the defendant paying into Court or securing the amount of the verdict and costs of the former trial by a day named. When the question for trial depends on estab- lished rules of law, and the finding is in opposition thereto, the party injured is entitled to a new trial without costs : Logan v. Ryan, 10 U. C. R. 15. The plaintiff having died pending an appli cation for new trial, it was made a condition that in the event of a second verdict for plaintiff, .judgment should be entered as if such verdict had been ren- dered at the time of the first trial : Swan v. del- land, 13 U. C. R. 335. In an action for taking goods, the jury having found a general verdict for defendant, tlie Court granted a new trial to the plaintiff on his under- taking to restrict himself at such trial to a certain portion of the property as to which they thought the evidence in his favour : Townsend v. Hamilton, 5 C. P. 230. Where the damages given were complained of as being too small, a new trial was granted, with costs to abide the event of the plaintiff's recovering more than the amount of the first verdict : Jones t 1 Sec. 6.] DIVISION COURTS ACT, 1886 187 ft i. V. McDowell, 12 U. C. R. 214 ; Oraia v. Corcoran, 24 U. C. R. 406. Where the evidence was not sufficient to go to the jury, but the attention of the Judge at the trial had not been drawn to the particular question, the costs on granting a new trial were ordered to abide the event : Shaver v. Jamiesmi, 25 U. C. R. 156. In the case of Commercial Bank v. Haiiis, 27 U. C. R. 301, the Court refused to grant a new trial except upon condition of the defendant's withdraw- ing the plea of usury : S. C. 27 U. C. R. 526. Where a plaintiff after argument of an applica- tion for non-suit or for a new trial on the ground of excessive damages, elects to reduce his verdict instead of submitting to a new trial with costs to abide the event, he is not entitled to the costs of opposing the application : Ftorey v. R. C. Bank, 5 P. R. 257. Costs were refused where the plaintiff had im- properly written letters to the Court on the subject of his suit : Thorpe v. Grier, 1 U. C. R. 528. It was made a condition on refusing a new trial that the plaintiff should assign to the Sheriff, who was the defendant, his interest in a certain mort- gage, so that if possible the Sheriff might recoup himself: Paterson v. Maughan, 39 U. C. R. 371. See R. V. Hart, 45 U. C. R. 1. The Court would not exercise the power of enter- ing a verdict for defendant instead of granting a new trial where the action had been tried by a jury in the case of Moore v. Connecticut Mut. L. Ins. Co., 6 Sup. R. 634 ; Austin v. Davis, 7 App. R. 478 ; and l:S":a ■■% Ma. DM I I !|i 1 188 DIVISION COURTS ACT, 1886. [Sec. «. I the Division Court would not have the power to do so either. Where a new trial is granted with costs to be "costs in the cause," this means the costs of the party who is successful in the cause : Scott v. G. T. By. Co., 3 P. R. 276. Costs, if any, of opposing an application to set aside an award are costs in the cause : Ccn^pora- tion of Essex v. Parke, 12 C. P. 159. The costs of a commission to take evidence in a foreign country form part of the costs of the cause : Colbome v. Thomas 4 Grant 169, provided the evidence taken under the commission is used : Dominwii, cfec, Co. v. Stmson, 9 P. R. 177. If either party wants costs he should ask for them. Gleddon v. Trehble, 9 C. B. N. S. 367. In re Peck and The Corporation of the Town of Gait, 46 U. C. R. 211. Sec. 7.1 DIVISION COURTS ACT, 1885. 189 of „ to award damages. 7. (i) Under the provisions of sub-TudgJ \ / *• awar section 3 of section 210 of The Division Courts Act as amended by this Act, the Judge in said sub-section mentioned shall have power to adjudicate upon and award damages, even though the amount of the damages claimed, found or awarded should be beyond (A) the jurisdiction of a Division Court. (2) In respect of any damages claim- ed, found, awarded or adjudicated upon, or of any order, judgment or finding under the provisions of said sub-section or of this section, there shall as to all parties concerned, be the same rights of defence and counter-claim, {i) and the same right of appeal, (j) including in all cases the right and liability to costs, as would exist under The Division 1:5 '■•■111^ • 11 8i| I. tw.a "1^ m F^ 190 DIVISION COURTS ACT, 1885. [Sec. 7. !! Courts Act, 1880, had an action or suit within the jurisdiction of a Division Court been brought or instituted to recover said damages. (h) DAMAGES BEYOND THE JURISDICTION. The object of this section evidently is to give tlie Judge full power to try the question of dama- ges no matter to what amount such damages may be. A somewhat analagous provision is to be found in the 78th section of the Ontario Judica- ture Act. The Division Courts have jurisdiction now : (1) In all personal actions where the amount claimed does not exceed $60 : D. C. Act, section 54, sub-section 1 ; D. C. Act, 1880, section 3. (2) All claims and demands of debt account or breach of contract, or covenant or money demand, whether payable in money or otherwise, where the amount or balance claimed does not exceed $100 : D. C. Act, section 54, sub-section 2. (3) All actions of replevin, where the value of the goods or other property or effects distrained taken or detained does not exceed $60 : D. C. Act, section 56 ; D. C. Act, 1880, sr ..;ion 3. (4) All claims for the recovery of a debt or money demand, the amount or balance of which does not exceed $200, and the amount or the origi- nal amount of the claim is ascertained by the signature of the defendant or of the i^erson whom as executor or administrator the defendant repre- sents : D. C. Act, 1880, section 2. Sec. 7.] DIVISION COURTS ACT, 1885. lyi (5) An action on any bond given in the (X)urse of any proceeding nnder the Division Courts Act, notwithstanding the penalty contained in siicli bond may exceed 1^100 : D. C. Act, section 207. Ordinarily the penalty of the bond is the test of jurisdiction : McKelvey v. McLean, 34 U. C. R. (>3r). y6) Any right of action enforceable in the Divi- sion Court by virtue of special legislative enact- ment : R. S. O. Chapter 120, s. 12 ; R. S. O. Chai)ter 144, s. 24 ; R. S. O. Chapter 174, ss. 136, 207 ; R. S. O. Chapter 198, s. 8 ; R. S. O. Chapter 199, s. 10 ; 41 Victoria (Ontario), Chapter 12, and any other Stat- ute that now or hereafter may confer jurisdiction. (7) Counter-claim, even if beyond the jurisdic- tion of the Division Court : O. J. Act, s. 78 ; Davis V. The Flagstaff Silver Mining Co. of Utah, 3 C. P. D. 228 ; Neald v- Oorhindale, 4 Ont. R, 317. (8) Claims for damages arising from seizure of :^oods triable with interpleader issue : D. C. Act. 1885,8.7. (t) RIGHT OF DEFENCE AND COUNTER-CLAIM. All parties interested in the question of dama- ges and the adjudication thereon under the next previous section of this Act have the same riglit of defence and Counter-claim as they would have if an action or suit within the jurisdiction of a Division Court had been brought to recover such damages. The right of defence here referred to means the right of any person against whom a claim for damages is made, whether he be officer. Bailiff or execution creditor, to defeat that claim by any means known to the law, and the nature of such defence must depend on the circumstances of • iH...,n I ujj^ If'"** nn ' u.. T!1 TT' 192 DIVISION COURTS ACT, 1886, [Sec. 7. If : . * '.* . ' ■i-'^"'; ilif ''^^f:'- !' % • i ' 4 ■' ■ . ■ ■> : '":' : ti • *< 1 ; i u i '! ^ '. * ^ 1 i ' J B 1 ^^n: 1 1 i'^ H '; j ', \ I I iQBj^Bl •i 11 ll y iiikL 1 i ; 1 '■ each imrticular case. The extent of Hiich defent^e is only limited by the law, which affords an answer to all claims, actions, or suits preferred or brought by one person against another. The right of Counter-claim in this Province is of comparatively recent creation, dating back only to the Ontario Judic^ature Act of 1881. The character of Counter-(;laim and a short sketch of its history will be found at page 182 and the following pages of Sinclair's D. C. Law, 1884. It is not here proposed to make any elaborate comment on the cases in England or this Province on the subject, but only to refer, as we have done, to what the writer has already said on that subject, and to the remarks of a learned writer on the Ontario Judicature Act. It is also proposed to give a note of any cases decided since the publication of either of those works, on the subject of Counter-claim. See Sin- clair's D. C. Law, 1884, pages 179-215 ; Maclennan's Judicature Act, 278-287, 290, 304-306, 313-315, 402. Where a person is doing an act which if skilfully done would entitle him to reward, and an action is brought therefor, the defendant is entitled to set up by way of Counter-claim the damages which he sustained by reason of the negligence or miscon- duct of the plaintiff, or those performing the act for him : The Yan-Yean, 8 P. D. 147. A third party also who has been brought into a suit cannot Counter-claim against the original plaintiff : Bden v. Weardale Iron & Coal Co., 28 Ch. D. 333. A party on being sued attempted to Counter-claim for a debt alleged to be due by the Sec. 7.] DIVISION COURTS ACT, 1885. 198 I 3 plaintiff and another party, but it was held he could not : Eure v. Moreino, W. N. 1884, 58. As to indenniity by third parties under the Out. Judicature Act, the reader is referred to Pontifex V. Foord, 12 Q. B. D. 152 ; Jacobs v. Broion, W. N. 1884, 23 ; Oaistev v. Chajytnan, W. N. 1884, 31 ; Jmies V. Elderton, W. N. 1884, 39 ; Hutchison v. Colorado U. Mining Co., W. N. 1884, 40 ; Floiver v. Todd, W. N. 1884, 47 ; Jablochkof Electi^ Light .Co. v. McMurdo, W. N, 1884, 94 ; Speller v. British Steam Nav. Co., 13 Q. B. D. 96 ; Finlay v. Scott, W. N. 1884, 8 ; Bank of Commerce v. Bank B. N. A., 10 P. R. 158 ; Federal Bank v. Harrison, 10 P. R. 271 ; Porters v. Miller, 31 W. R. 858 ; Borough v. Jannes, W. N. 1884, 32 ; Coles v. 6Vt;e7 Service Supply Ass., 26 Ch. D. 529 ; Gloucestershire Banking Co. v. Phillips, 12 Q. B. D. 533 ; Jones v. Elderton, W. N. 1884, 39. The right to Counter-claim exists where a party under fraudulent representations purchases a par- tially useless article and gives a note therefor, and is sued on such note by the vendor : Star Kidney Pad Co. V. Greenioood, 5 Ont. R. 28. Where a company is being wound up, a contribu- tory cannot, in answer to an action by the liquida- tor for calls, counter-claim for damages against the company : Govt. S. Invest. Co. v. Dempsey, 50 L. J. Q. B. 199. See Mersey Steel ami Iron Co. V. Naylor, 9 App. Cas. 434 ; Lion Life Ass. Co. v. Atkinson, W. N. 1885, 54. To an action of ejectment the defendant was allowed to counter-claim for damages which he had sustained by reason of the plaintiff's trespass y i.ir- 1 ■I , 194 DIVISION COURTS ACT, 1886. [Sec. 7. ■»•.. 1 i, r 1 i 1 1 ■ '■ iiii ji i i upon the land : Goring v. Cameron, 21 L. J. N. S. 59. In action by the purchaser of land against the vendor for return of the deposit, see The London Land Go. v. Harris, 13 Q. B. D. 540. {j) RIGHT OF APPEAL. The writer is unable lo give satisfactory mean- ing to the language here employed in reference to the subject of appeal. The sub-section in (juesticm declares that '' all parties concerned "in " the dam- ages claimed, found awarded or adjudicated upon" shall have " the same right of appeal '^ * * as would exist under the Division Courts Act, 1880, had an action or suit within the jurisdiction of a Division been brought or instituted to recover said damages^ Under the Act of 1880 there never was any right of appeal where unliquidated damages w^ere sought to be recovered. That right was con- ferred by the Act of 1880, section 17, only in cases "wherein the sum in dispute upon the appeal exceeds one hundred dollars exclusive of costs." There could not be any sum in dispute above one hundred dollars except where the amount or origin- al amount of the claim " was ascertained by the signature of the defendant or of the person whom as executor or administrator the defendant repre- sents." According to the provisions of the 2nd section of the Division Courts Act of 1880, as re- marked by Osier, J., in the case of In re Turner v. Imperial Bank of Ganada, 9 P. R. 19, the right of appeal was only conferred by that section in cases under the extended jurisdiction created by that Act. The same view was expressed in Gamermi V. Allen, 10 P. R. 192, where it was held that there Sec. 7.] DIVISION COURTS ACT, 1886. 195 was no appeal from the decision of a Judge in a garnishee proceeding in the Division Court, and such is the law as to garnishment proceedings at the present time : Sato v. Hubbard, 6 App. R. 546 ; Mason v. The Wirral Highway Board, 4 Q. B. D. 459. As will be seen by reference to 47 Victoria (Ontario), Chapter 10, section 9, an appeal is allowed in proceedings before a Division Court in an interpleader issue where the money claimed or the value of the goods or chattels claimed, or the pro- ceeds thereof, exceeds $100, and in all actions in which the parties consent to an appeal. Sin- clair's D. C. Law, 1884, 44. But the sub-section under consideration in no way refers to the Statute of 1884 just quoted from, which is the only one allowing appeal in interpleader cases. It may be said that the words " rights of defence and Counter- claim " also here spoken of are also controlled by the reference to the Division Courts Act of 1880. Not so, however, these words being surplusage, for the right of defence exists by common law and Statutory enactments, and the right to Counter- claim in a Division Court "shall as regards all causes of action within its jurisdiction" be as extensive as in the High Coiirt of Justice : O. J. Act, section 77. But as the right of appeal is of Statutory creation : Sinclair's D. C. Act, 1880, 36 ; Sinclair's D. C. Law, 1884, 45 ; it should not be left to intend- ment. As remarked in Paley on Convictions : "A right of appeal must be given by express enact- ment, and cannot be extended by an equitable construction to cases not distinctly enumerated " : i:ri ■"-••(I ' : «» ""•CI 1 w 196 DIVISION COURTS ACT, 1885. [Sec. 7. "ilf I ' •I'M ■ 1 % 5 it M i?. V. Stock, 8 A. & E. 405 ; E. v. Recorder of Bath, 9 A. & E. 871 ; R. v. Recm'der of Ipswich, 8 Dowl. 103, «/i^e p. 17. Again, this part of the section was intended to mean something, and it would be the duty of Courts to give to it if possible that meaning which would best effectuate the intention of the legisla- ture. In Ex parte Walton, In re Levy, 17 Ch. D. 746, it was held that a Statute may be construed contrary to its literal meaning, when a literal construction would result in an absurdity or inconsistency, and the words are susceptible of another construction which will carry out the manifest intention. It must be left to the Court of Appeal to decide what cases, if any, are the subject of appeal under this sub-section ; the writer does not attempt to do so. Sec. 8.] DIVISION COURTS ACT, 1886. 197 8. In all cpses not already provided for, where, in any suit or proceeding in a Division Court, it is necessaiy for any party thereto to give notice to any other party thereto or to the Clerk of the Court such notice shall be in writing (k), (k) NOTICES TO BE IN WRITING. In many cases in Division Court practice in respect to notice, verbal notification was sufficient. As has been already remarked at pages 17-22, ante, where a Statute simply prescribes notice to be given to any person, it has been clearly established that verbal notice is sufficient. In order to render written notice necessary, statutory enactment or some other authority having the force of law must so declare it. In the High Court of Justice the giving of notice is provided for by the 451st Rule. It is there declared that "all notices required by these (O. J. Act) Rules shall be in manuscript or print, or partly in manuscript and partly in print, unless expressly authorized by a Court or Judge to be given orally." Under the Common Law Procedure Act all notices were by Rule of Court 131 required Noticea to be in writing. Ui.'8 ••■•n n »M« i'^S 204 DIVISION COURTS ACT, 1886, LSec. 9. ! I J. iiii I iti ' such Clerk or Bailiff" shall be prima facie evidence against his surety. It will therefore be seen that all entries made by a Clerk or Bailiff, not only in books vsrhich he is required by Islw to keep, but in any books that are actually kept by him in regard to Division Court matters, can be given in evidence in an action against the surety. Such entries are only made prima facie evidence of the facts to which they refer, which, like any other piece of prima facie evidence, can be controverted by testimony shewing the real facts of the case. This section would apply to cases not only where the action is against the sureties themselves, but where they are sued with their principal as well. At common law the entries would be evidence against the person who made them, and this Statute renders them evidence also in an action against the sureties. (n) CLERK OR BAILIFF OUT OF OFFICE. If the first part of the section stood alone it would be questionable if it had application to any cases but those against the surety of a Clerk or Bailiff then in office : Jlelps v. Ao, 9 U. C. L. J. 302 ; Maitland v. Globe Printing Co., 9 P. R. 370 ; but all doubts on that point are set at rest by the concluding part of the clause. As to a Clerk or Bailiff ceasing to be such, see Sinclair's D. C. Act, 1880, 64, 66. The following references may be of service in considering any question involving the relatit-ud of principal and surety to third parties and to each other : Addison on Contracts, 8th Ed. ; R. <& J's. Sec. 9.] DIVISION GOUBTB ACT, 1885. 205 Digest, 3027, 4678 ; Ontario Digest. 651 ; Law Reports Digest (1880), 3360, 4135 ; Law Reports Digest (1883), 813 ; Fisher's Digest, 8268, 9735 ; In re Arcedechne, Atkins V. ArcedecJme, 24 Ch. D. 709 ; In re Sfierry, Lon- don & County Banking Co. v. Terry, 25 Ch. D. 692 ; The Cosgrave Breioing and Malting Co. v. Starrs, 5 Ont. R. 189 ; Verratt v. McAulay, 5 Ont. R. 313 ; Devanney v. Brownlee, 8 App. R. 355 ; Ward v. National Bank of New Zealand, 8 App. Cas. 755 ; Palmer v. Baker, 23 C. P. 302; Ll/yyd's v. Harper, 16 Ch. D. 290; Van Wart v. Carpenter, 21 U. C. R. 320 ; Sinclair's D. C. Act, 25. ■-3 '•ti "5^ •«;i RUI ■llf;'!;, 206 DIVISION COURTS ACT, 1885. [Sec. 10. trial. :!kS4itiiu!i lite*"* II .1.!;''* 10. Where in a Division Court any St r^.tio^^ or suit is being tried (o) by a jury, the Judge, if he thinks it expedient for the interest of justice, may postpone or adjourn the trial for such time and upon such terms, if any, as he shall think fit. (o) TRIED BY A JURY. The expression which is here used, " any action or suit is being tried by a jury," is somewhat indefinite. Do these words mean that the action or suit must be in course of trial, that a jury must actually be sworn and the trial of the cause pro- ceeding before the Judge can postpone or adjourn the trial, and impose such terms as he shall think fit, or do they mean that the section has applica- tion to cases where the suit is coming on for trial at a particular sittings, and that before the jury is sworn or the trial of the cause is entered upon, application is made for a postponement ? The object of the section could scarcely be to give the Judge power to adjourn the hearing of the cause only, because that power was already vested in him by the 83rd section of the Division Courts Act. It is there declared that the Judge Sec. 10.] DIVISION COURTS ACT. 1885. 207 r Postpone - " ment of trial. may adjourn the hearing of the cause " upon such conditions as to the payment of costs and admis- sion of evidence or other equitable terms, as to him seems meet." The amendment here made was evidently in- tended to give the Judge power in cases where a .jury is summoned, and the case is coming on for trial, though the .jury is not actually sworn, to ad- .iourn the trial, and to impose on a party applying for adjournment the payment of the fees of jury- men who have been summoned and attended : See R. v. Hart, 45 U. C. R. 1 ; Willmott v. Barber, 17 Ch. D. 772. By the 47th section of the Division Courts Act of 1880 such fees are borne by the County, and a doubt probably arose whether a Judge had the power to impose the payment of such fees in addi- tion to the ordinary costs as between party and party as one of the terms of adjournment ; Sin- clair's D. C. Law, 1884, pp. 223, 224. It may be urged that the section in question does not confer any greater power on the Judge than he possessed under the 83rd section of the General Act and Rule 141, but the intention of the legislature surely must have been to extend the authority of the Judge. He is empowered to " post- pone or adjourn the trial for such time and upon such terms, if any, as he shall think fit." It is sub- mitted that the words which we have italicised are sufiiciently comprehensive to confer on a Judge the power of imposing the payment of jury fees on an applicant for postponement or adjournment of atrial. '■J '"Ss <•■ **^ "«| •■.if - ■■'■1 m^: wr 208 DIVISION GOUBTS ACT, 1886. [Sec. 10. lit"- .!►■ ,1* 1)1 ic:: "1*1 A's has been asked in a previous part of this note, what is the meaning of the words " being tried by a jury?" It is submitted that the Judge would have the power to " postpone " a trial under this section even though the jury had not been sworn or the trial otherwise entered upon, that these words really mean ''about to be tried ^^ or ''coming onfortriar^ at a particular sittings, and do not limit the power of the Judge only to cases where the Jury has been sworn : See Pierpoint v. Oart- Wright, 42 L. T. N. S. 259. It will be observed that the words " postpone or adjourn" are both used. A trial is said to be " postponed " where it has been put oft before being entered upon, and "adjourned" where the trial is deferred after its commencement : Har. C. L. P. Act, 290, 291. A Judge may in the language of this section consider it " expedient for the interest of justice" that the trial of a cause should be postponed, yet not be willing or consider it just to impose on the taxpayers of a county the payment of jury fees in such a case. The discretion which this section confers on the Judge should be exercised upon those principles which regulate the conduct of all judicial officers where discretionary powers are conferred, and so aptly defined by Sir James Maxwell in his work on the Construction of Statutes, p. 100 : Sinclair's D. C. Law, 1884, pages 11, 13 ; Wilson v. Church, 9 Ch. D. p. 558. When an order for postponeireyit of a trial is made on terms, the party in whose favor the postponement is granted, having acted upon it, or Sec. lO.j DIVISION COURTS ACT, 1885. 209 taken cadvantage of its provisions, is bound by its terms and cannot repudiate any part of it : Griffin V. Dickenson, 7 Dowl. 860 ; Giraud v. Austen, 1 Dowl. N. S. 703 ; King v. Simnumds, 7 Q. B. 289 ; McKenzie V. Stewart, 10 U. C. R. 634. So that if a party asked for a postponement of a trial and obtained it on payment of jury fees as well as other costs, he would be bound to pay them, for he could not take the benefit of the order for postponement without its burthen : Richardson v. Shaw, 6 P. R. 296. To use the words of Tindal, C. J., in Giraud v. Austen, 1 Dowl. N. S., at page 704, the party " would set up his own non-performance of the condition in order to get rid of that which is the consequence of his own act." See also Martin V. McCharles, 25 U. C. R. 279. The words "upon payment of costs" are words of agreement, not mere words of condition, and execution may be issued upon an order in these words : Stuart v. Branton, 9 P. R. 566. A Judge could open again an order for adjourn- ment granted by himself, or even rescind it before it was acted on, upon his discovering that he had made it inadvertently, or had been surprised into making it by any perversion or concealment of facts, or from the misconception on his part of the law or facts : Shaw v. Nickerson ; Gillespie v.. Nickerson, 7 U. C. R. 541 ; Hughes v. Field, 9 P. R. 127. So long as an order stands unreversed it will be assumed that neither party is dissatisfied with it : Hall V. Brown, 3 P. R. 293. If there should be any objection to the mode of compliance with a Judge's AA "3' ■ ;'» •» ■ i>\ ■ in ''Us -^ "«! f!!l !^f ^ lit"; ■ tk- >|. l!!„ «IE!'I It ';si: 210 DIVISION COURTS ACT, 1886. [Sec. 10. order application should be made to the Judge, who made it for correction : Rosa v. Grange, 4 P. R. 180. Any order made under this section need not be drawn up or served, but should be entered by the Clerk in the Procedure Book : Rule 149. If the order do not prescribe when fees or costs are to be paid the party would have fifteen days from the rendering of the decision granting postpone- ment in which to pay : Rule 149. Where consent is given to the making of an order, such consent cannot be arbitrarily with- drawn : Hai'vey v. Croydon Union Rural Sanitary Authority, 26 Ch. D. 249. 10. Sec. 11.] DIVISION COURTS ACT, 1885. 211 4 E)d ed i9. ire )in le- an th- 11. (i) Every summons or process issued out of a Division Court against" a corporation not having its chief place of business (i?) within the Province, and all subsequent papers and proceedings in the action, suit or proceeding in which said summons or process has been issued, may be served on the agent («) of such corporation whose oflSce or place of business as such agent is either within the division in which the summons or process issued, or is near- est thereto. (2) For the purposes of this section the word "agent" (r) shall be held to include, («) In the case of a railway com- pany any stationmaster having Service of process.etc, on corport- oni. ..«n '5J> 212 DIVISION COURTS ACT, 1885. [Sec. 11. I If: I,!; «»., charge of any station belonging to such railway company ; (^) In the case of a telegraph com- pany, any person having charge of any telegraph office belongT ^ to such telegraph company, and ( c) In the case of an express com- pany, any person having charge of an express office belonging to such express company. (p) CHIEF PLACE OF BUSINESS. The provisions of this section are intended to meet a class of cases that frequently arise in prac- tice. Many people having small claims against corporations whose chief places of business are not within this Province have been virtually denied their rights by reason of the inability to obtain redress in our Division Courts. To resort to the higher Courts would be too expensive for them. Hitherto there has been no provision by which in ordinary actions in the Division Court against such corporations service of process could be effected : Ee Ahrem v. McGilligat, 23 C. P. 171 ; Westover v. Turner, 26 C. P. 510 ; In re Guy v. G. T. By. Co., 10 P. R. 372 ; Berhley v. Thmnpsm, 10 App. Cas. 45 ; Ontario Glass Co. v.^Swartz, 9 P. R. 252 ; R. V. LightfooU 6 E. < . ♦!•■■ "some fixed place at which the party's business is carried on, at least for a certain time." In Shields v. The Great N. By. Co., 7 Jur. N. S. 631, it was held that where a railway company had their principal office in London for the regulation and guidance of their undertaking in the various places through which their railway passed, and had a station at A, that they carried on their business at London and not at A. A railway company was held to carry on its business where the general superintendence and management of the business took place : Rogers V. L. a & D. Ry. Co., 26 W. R. 192. - In the case of In re GuyY. G. T. Ry. Co., 10 P. R. 372, before this Act, the defendants, having their head office in Montreal, were held not defendants residing or carrying on business in this Provmce ; but although the service on a station agent was void, that having appeared at the trial, they waived the objection. iq) SERVICE ON THE AGENT. If an agent, such as the Statute declares or contemplates, has an office or place of business as such agent within the division in which the summons or process issued, then the same and all subsequent papei's and proceedings in the action, suit or proceeding may be served on such agent ; but if any such i'gent is not to be found, then on such agent as has his office or place of business as such agent nearest to such division— that is to the nearest point on the boundary of such division : Sinclair's D. C. Law, 1884, 37. The distance would not be measured by the Sec. 11.] DIVISION COURTS ACT, 1886. 215 travelled road, but in a straight line on the hori- zontal plane, or, ah popularly expressed, "as the crow flies " : Mouflet v. Cole, L. R. 7 Ex. 70 ; L. R. 8 Ex. 32 ; Sinclair's D. C. Law, 1884, 28-32. It will be observed that the distance is to be measured from the oflice of the agent as such to the limit of the division of the Court out of which the summons or process issued. The word " process " here used means, it is sub- mitted, any proceeding in the nature of a summons issuing from a Court, under its seal, and whose object is to compel a corporation to answer in Court why an alleged right should not be enforced against it. The expression " all subsequent papers and pro- ceedings in the action," would, it is submitted, apply to service of papers required to be made after judgment as well as before : Macdonald v. Fareioell, 5 C. P. 101. An application for new trial, therefore, could be served in the same way as the summons in the cause. As to what is a "proceeding," see Meloche v. Reaume, 34 U. C. R. 606 ; Caspar v. Keachie, 41 U. C. R. 599. Although a corporation could be sued by a com- mon informer for penalties, yet it could not sue as such without being empowered by Statute so to do : Guardians, <&c., v. Franklin, 3 C. P. D. 377. {r) THE AGENT TO BE SERVED. The definition which the Statute here gives to the word " agent " is not intended to define the only class of agents that may be served. The "••IE I: I n-i ft ll'>»l. i^kj; S!> - t; h' 216 DIVISION COURTS ACT, lc36. [Sec. 11. word is pfiven by way of example and not as deter- mining who only may be served as an agent. Unless the corporation appears in the suit the Judge should be pcarticular in having by affidavit or other evidence due proof of the proper service of the summons or otliei 7>rocess before rendering judgment in the case. A female, married or single, a minor, or an alien, could be an agent under this section. For a dis- cussion of this subject see Sinclair's D. C. Law, 1884, 39-42, and ante page 106. In addition to those persons mentioned in the Statute the question of agency must depend on the circumstances of each particular case. The character and general purpose of the corporation and the nature and extent of its business must be considered for the determination of that question. Generally speaking, he must not be a subordi- nate servant of the corporation, but one who may be considered the representative of the corporation at a particular place, and having his offi(;e or place of business liiere. Substitutional service of the agent could not be ordered under the 62nd section of the Division Courts Act, 1880, for the provision here made is in effect substitutional service of the defendants. The following is a form of affidavit of service of summons on an agent : {Court and Cause.) I, E. F., of &c.. Bailiff of the Division Court of the County of {or of the above-mentioned Court), make oath and say : 1. That I did on the day of 188 , duly Sec. 11.] DIVISION COURTS ACT, 1885. 217 serve one G. H., as agent for the above defendants, with the within {or annexed) summons, notices, memorandum or warnings therein and thereon, in this cause, by delivering a true copy of each to and leaving the same with the said G. H. personally. 2. That at the time of such service the said G. H. was the stationmaster (or, as the case may he) of the above-named defendants at {name of place) and that at the said time he as such stationmaster (or, as the case may be) had his office {or place of business) at said place ; that such office {or place of business) was at the time of such service within the division of the Division Court of the County of , and that I necessarily travelled miles to make such service. Sworn, &c. [If thersummons or other process is necessarily served on some agent of the corporation whose office, or place of business is not within ll^e divis- ion of the Court out of which such summons or process issued, then the affidavit should shew that such office, )»l< • Atii; 220 DIVISION COURTS ACT, 1886. [Sec. 12. partly within the division for which such Court is held, such reasonable share of the cost of provi- ding accommodation for holding the Court as shall in that behalf, be decided and ordered by the Judge of the said Court, to be paid arid contribu- ted by the latter municipality ; and in every such case the total cost of providing such accommoda- tion for holding the Court shall be deemed to be five dollars for every day on which the Court is held."] It will be observed that as the law previously stood the municipality in which the Court was heldwaB obliged to furnish the Court room and necessary accommodation for holding the Court, or bear the expense of it : Sinclair's D. C. Act, p. 8 ; now, in all cases where a division comprises the whole or parts of two or more municipalities, not only is the municipality in which the Court is held but all others forming parts of the division are to bear a fair and proper share of the expense. The section does not apply to city or town muni- cipalities. As to what is necessary accommodation for the purpose of holding a Division Court, the reader is referred to the views the writer expressed at pages 7 and 8 of Sinclair's D. C. Act. Before the municipality that seeks contribution under the Statute, for money disbursed by it, from the other or others, can recover, it is necessary that the expenses should be first paid. Anything short of that would not give any right of action. The payment, too, must be made to the owner, lessee or tenant of the building in which the Court is held. Sec. 12,1 DIVISION COURTS ACT, 1886. 221 It will. be observed that the municipality which is liable under this section is only subject to a " reasonable share of the cost of providing accom- modation for holding the Court." What that " reasonable share " is must depend on the circum- stances of each particular case. The Judge of the Court has to determine what that share is, and make his order accordingly. It could not be done ex parte. The municipal- ity alleged to be in default would have a right to be heard, and to shew cause why it should not pay the claim preferred : Sinclair's D. C. Act, 127, 133, 141, 155, 209 and cases cited. ^ As enunciative of this principle and in addition to the cases cited at the pages referred to, reference may be made to Willis v. Gipps 5 Moo. P. C. 379 ; R. V. Cheshire Lines Committee, L K. 8 Q, B. 344 ; Wood V. Woad, L R. 9 Ex. 190 ; B. v. Collins, 2 Q. B. D. p. 36 ; Fisher v. Keane, 11 Ch. D. 353 ; Ex parte Tucker, In re Tucker, 12 Ch. D. 308 ; R. v. College of Physicians and Surgeons, 44 U. C. R. 146 ; Tunbridge Wells Local Board v. Akroyd, 5 Ex. D. p.p. 201, 204, 211 ; Briggs v. Briggs, 5 P. D. 163 ; R. v. Law, 27 U. C. R. 260. In support of the principle just mentioned refer- ence may also be made to the eloquent language of Chief Baron Kelly, who at page 202 of 5 Ex. D. says : " I must say that it appears to me, not only a violation of one of the first principles of the law of England, but, also, neither more nor less than an outrage upon justice, to hold that a court of law, or an arbitrator, or any other tribunal in this coun- try, can adjudge a man to lose his money or his ■ <» in •n in -'••9 18 ■m 222 DIVISION COURTS ACT, 1886. [Sec. 12. m ', w\ u ,,1... tt: ■; I •n. land without being heard or having the means of being heard in his defence." At page 204 of the same report the same learned Judge says : "The truth is that the Act of Parliament is so negligently and improvidently framed as to create great and formidable difl3.culties in carrying its provisions into execution. But this cannot justify the Board in setting at naught the first principles of the law and constitution of this country by seeking to recover in a court of law or equity, or be- fore any other tribunal, the property of the subjects of the realm, without permitting them to appear and be heard in their defence." The outside limit which all the municipalities would be called upon to pay as the total cost is five dollars per day, but part of a day would count as a whole day, no provision being made for a fractional part of a day, but only " for every day on which the Court is held^ The sum which each would have to pay would be small, yet the proportion should, if possible, be settled upon some principle of fair contribution. It is submitted that population and assessed value of the whole or parts of the respective muni- cipalities within the division would be a fair basis on which to estimate the reasonable share of each. No particular method of collecting the amount due by the delinquent municipality is prescribed by the Statute, and in the absence of such it would seem that the proper proceeding would be an action in the Division Court : Lees v. Corporation of Oarletcm, 33 U, C. R. 409, and authorities there cited. Sec. 13.] DIVISION COURTS ACT, 1886. 223 13. Section 24 of The Division Courts f^Leadeu Act, 1880, is hereby amended by insert- ing therein after the word "officers" (t) the words "or other person or persons." it) The 24th section of The Division Courts Act, 1880, win now read as follows :— " When the said Inspector considers it expedient to institute an inquiry into the conduct of any Division Court Clerk or Bailiff in relation to his or their official duties or acts, it shall be lawful for the said Inspector to require such Clerk or Bailiff or other person or persons to give evidence on oath, and for this purpose the said Inspector shall have the same power to summon such officers [or other person or persons] to attend as witnesses, to enforce their attendance, and to compel them to produce books and documents, and to give evidence, as any Court has in civil cases." For a discussion of the section as it stood before this amendment, the reader is referred to Sinclair's D. C. Act, 1880, p. 61. It will be observed that as the section now stands not only has the Inspector power in making inquiry into the official conduct of any Clerk or Bailiff to require such Clerk or Bailiff or any other person to give evidence on oath before him, and to summon 'Ti :■■« p^ |i^ -: I ' I I %l 224 DIVISION COURTS ACT, 1886. [Sec. 13. such officers to attend as witnesses, but he has also the further power of summoning su(;h " othei' person ar persons " to attend as witnesses, and to enforce their attendance, and to compel them to produce books and documents, and to give evidence, as any Court in civil cases has. The extended power conferred by this section has no doubt been found by experience to be necessary for the proper investigation by the Inspector of the official conduct of Clerks and Bailiffs. The public interests demand that the fullest investigation should be allowed in such cases, and this provision is in furtherance of that object. i li: i m. li: r 'Urn Sec. 14.] DIVISION COURTS ACT, 1885. 226 14. This Act shall be read and con-^^ead'^wHh R. S. O., c. stmed as part (u) of The Division Courts endiSgrt« Act, and of any Acts amending the same. (u) PART OF OTHER DIVISION COURT ACTS. This section incorporates this Act with all other Division Court Acts, thereby making it as mncli a part of them as if it had originally been part of Division Court legislation. "Every Act and every provision or enactment thereof shall be deemed remedial, whether its immediate purport be to direct the doing of any- thing which the Legislature deems to be for the public good, or to prevent or punish the doing of anything which it deems to be contrary to the pub- lic good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act, and of such provision or enactment, accord- ing to their true intent, meaning and spirit." Inter- pretation Act— Rev. Stat. Ont. Chapter 1, section 8, sub-section 38. All Division Court Acts must be read as a whole, and their apparent inconsistencies harmonized, and their variances, if any, reconciled in all cases, with a view of promoting justice and right and preventing the commission of wrong. " Where the CO 1X11} m Jit* h'' t lir !,< III I* V 1 > ^ r| *) [U I i t- 226 DIVISION COURTS ACT, 1886. [Sec. 14. lan^MiagH of an A(;t of Parliament will admit of two constrn(;tionH, if one of them would lead to liarnhresa or in.ju8tice, we may fairly infer that the other will give effect to the intention of the legiH- lature, and adopt it in preference." Per Williams, J., in Whiley v. W/iUei/, 4 C. B. N. S. p. 661. »«*•■"■■"' I ■ I f f»-f'l:«l jl «»^ " I' ifMi 14. Sec. 15.] DIVISION COURTS ACT, 188«. 227 of to the niH, 15. This Act may be cited as The Di- short Tme. vision Courts Amendment Act, 1885. [v) (v) THE AMENDMENT ACT OF 1885. This Act is a part of the legislation of the year 1885 on the subject of Division Court law. There are parts of other Statutes to which reference will be made hereafter, more or less affecting the Division Courts, but this is the chief piece of legislation on that subject. Some of the sec- tions, in view of recent decisions, may be unnecessary and some the writer fears may not fully accomplish the purpose which the framer intended. For instance, the late case of C/iad- ivick V. Ball, 14 Q. B. D. 855, decided by the Court of Appeal in England on the first of April, 1885, overruling Oram v. Brearey, 2 Ex. D. 346, on which the case of Clarke v. Macdonald, 4 Ont. 310, in our Queen's Bench Division, was decided, would appear to render unnecessary the 1st section of this Act. In the above case of Chad- wick V. Ball, 14 Q. B. D. 855, it was held that where the Salford Hundred Court of Record Act of 1868 enacts that "No defendant shall be permitted to object to the jurisdiction of the Court otherwise than by special plea, and if the want of jurisdiction be not so pleaded the Court shall have jurisdiction for all pur- •n fv'il if '':i I t: 228 DIVISION COURTS ACT, 1885. [Sec. 15. poses ; " the absence of such a plea gave the Court complete jurisdiction. This language it is submitted is no stronger in favour of concluding the question of jurisdiction by the want of a plea than does the 14th section of our Division Courts Act, 1880, by the absence of notice disputing the jurisdiction : See the remarks of Hagarty, C. J. in Clarke v. Macdonald, 4 Ont. R. 315, 316. Thelanguage, too, of sub-section (2) of section 7 of this Act has, it is feared, for the reasons given in the notes to that sub-section, possibly failed to give an appeal which evidently the clause was intended to confer. But on the whole many salu- tary reforms are introduced by this Act, which it has been the earnest aim of the writer in the fore- going pages to elucidate and explain. AN ACT FOR FURTHER IMPROVING THE ADMINISTRATION OF THE LAW. U<9 Victoria, Chapter IS, {Ontario.) [Assented to 30th March, 1885.'] Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. This Act may be cited as the short Tiue. Administration of Justice Act, 1885. [/Sections 2 to 7, both inclusive, have no reference to Division Court proceedings^ 8. Where a writ of replevin is suedofdernd *- aut in re' out for any personal property which °^^'»»8^«' had not been previously taken out of the plaintiff's possession, and for which the plaintiff might bring an action of trespass or trover, the defendant shall be entitled, if the plaintiff fails in the n H ■■» !^ ! 1(1% I';:'' ' Ik Hi I m I ■. I a:: ^. tir f fc,-. I "'■ Isi r^' lit ! »• 230 REPLEVIN. action, to be fully indemnified against all damages sustained by the defendant, including any extra costs which he may incur in defending the action ; and the bond to be taken by the Sheriff or Bailiff shall be conditioned, not only as heretofore required in that behalf but also to indemnify and save harmless the defendant from all loss and damage which he may sustain by reason of the seizure, and of any deterioration of the property in the meantime, in the event of its being returned, and all costs, charges, and expenses which the de- fendant may incur, including reasona- ble costs not taxable between party and party : this section shall not apply to cases of distress for rent or damage- feasant. THE OB.TECT OP THE SECTION. The intention of the legislature evidently has been to afford to those from whom, in certain (;ases chattel property has been wrongfully replevied, an ! REPLEVIN. 231 enlarged ri^lit aw to the meawure of damages re- coverable in conHeqiience of the replevin. It is probable that tlie former state of the law as disclosed by the case of Williams v. Ormv, 10 A pp. R. 301 was the reason for the enactment of this section. It does not apply to cases of distress for rent or daiiiage-feasant, that is " found doing damage : " See Tillett v. Ward, 10 Q. B. D. 17 ; Buist v. Mc- Oombe, 8 App. R. 598. The words "for any personal property which had not been previously taken out of the plaintiff's possession" are somewhat difficult to understand. Wherever an action of trespass or trover would be maintainable (except for distress for rent or dam- age-feasant) the defendant would be entitled to the benefit which this section confers should he Liucceed in the replevin action. The defendant is to be indemnified " against all damages " sustained by him. This cannot be taken in its widest sense and be held to include all sorts of damage immediate or remote which the defend- dant has sustained. The words here used must mean that the defendant shall be entitled to recover such damages as would naturally flow from and be the reasonable consequence of being deprived of his property through the wrongful act of the plaintiff in replevying, whether the same may hitherto have been the sub.iect of damage or not. It may be stated 'urther in general terms that whatever would be the subject of damage in an action of trespass or trover would be recoverable as damages under this section. t 1 : 4 ♦ 232 BEPLEVIN. m ■1! Mi 1; n |i 1 «». II II' P«^« m '» 234 v\ - Wr I- ■ ■, ■. •iri H> 1 **■' EEPLEVIN. 226, the same question was touohed upon but not decided. But whatever the extent of the remedy by this form of action was at common law, our Statute, first enacted in the year 1851, and our law still, de- clares that wherever any goods, chattels, property or effects have been wrongfully taken or detained the owner or other person or corporation capable of maintaining an action of trespass or trover for personal property, may bring an action for the recovery of the damages sustained by reason of the unlawful taking and detention, or of the unlawful detention, in like manner as actions are brought and maintained by persons complaining of unlaw- ful distresses : Rev. Stat. Ont., Chap. 53, section 2. Wherever trespass is maintainable so also is the action of replevin : Cook v. bowler, 12 U. C. R. 568 ; Broivn v. Zimmerman, 15U. C.R. p. 563. If neither trespass nor trover would be maintainable neither would replevin : Caron v. Graham, 18 U. C. R. 315 ; Schaffer v. Dumble, 5 Ont. R. 716 ; except in those cases where it would be maintainable at common law. lb. Replevin will not lie for a chattel seized by a Collector of Customs for breach of the revenue laws, and if a writ issues therefor it will be set aside : Scott v. McRae, 3 P. R. 16. Notwithstanding the provisions of the Munici- pal Act which prevents actions being brought for anything done under a by-law until such by-law has been quashed such Act applies only to suits for the recovery of damages, not to actions of REPLEVIN. 235 replevin : Wilson v. The Ooi'poration of Middlesex, 18 U. C. R. 348. In order to maintain the action against a lien- holder, the lien must first be discharged or an offer or tender of the amount of the lien made : Lake v. Biggar, 11 C. P. 170. Any person out of whose possession books, &c., have been taken, whether by force or fraud, or with- out right, may replevy under our Statute, but when the right to the custody and possession depends on the holding of an office, it should appear that the applicant holds the office and is therefore entitled to such books, &c. : Hammond v. McLay, 10 U. C. L. J. 269. Under our law, replevin will lie though there has been no wrongful taking, but a detention merely, for every detention is a new taking : Deal V. Pottei\m U. C. R. 578. In replevin against one person, goods cannot be taken out of the peaceable possession of another without notice or demand ; G. W. Ry. Co. v Mc- Ewan, 28 U. C. R. 528. A person in possession of goods may have no right against the true owner, yet may have a right to maintain replevin against a wrong-doer ; Gil- mour V. Buck, 24 C. P. 187 ; McDonald v. Lam, 7 Sup. R. 462. One who is entitled to possession of a chattel as agent of a foreign corporation, the owner of it, is entitled to maintain replevin in his own name : Ooquillard v. Hunter, 36 U. C. R. 316. Where an action of replevin is brought on the ground that the facts would sustain an action of m i 11 it |ii ! '■i ' u M pIMMpP" liM «::■ f ■: lO <►■ 1l> kt.. u II II- ». t. I:. 236 KEtLEVlN. trover, the fact of conversion must be clearly established : Smalley v. Gallagher 26 C. P. 531. A stranger whose goods have been distrained for rent on the premises of a tenant cannot in replevin any more than the tenant question the landlord's right to demise ; Smith v. Aubrey, 7 U. C. R, 90. A landlord is not liable in replevin for the ille' gal seizure by his bailiff of property not found on the demised premises : Ferrier v. Cole, 15 U. C. R, 561. Replevin may be brought upon a distress for school rates, and notice of action is not necessary therefor : Applegarth v. Graham, 7 C. P. 171 ; Spry V. McKenzie, 18 U. C. R. 161 ; See also Gillws v. Wood, 13 U. C. R. 357 ; Haache v. Marr, 8 C. P. 441. Where a distress was made for rates, some of which were legally collectable, others not, it was held that replevin would not be maintainable for the seizure until after the payment of the rates legally collectable : Corbett v. Johnston, 11 C. P. 317 ; See also Anglin v. Minis, 18 C. P. at page 174. per A. Wilson, J. But the legal rate must separately appear on the collector's roll : Hurrell v. Wink, 8 Taunt. 369 ; Sibbald v. Roderick, 11 A. & E. 38 ; Coleman v. Kei^r, 27 U. C. R. 5, 13 ; Squire v. Mowiey, 30 U. C. R. 531 ; VictoHa Mut. F. Ins. Co. v. Thomson, 9 App. R. 620 ; to .justify the distress. In replevin for goods seized as a distress for taxes it must distinctly appear that such goods are liable to distress in order to .Justify the seizure : Sargant V. The City of Toronto, 12 C. P. 185. Distress was made for school taxes, which it was found had been illegally rated, it was held that REPLEVIN. 237 replevin was maintainable therefor : Hatpin v. Oalder, 26 C. P. 501 ; See also Ashew v. Manning, 38 TJ. C. R. 345. The plaintiff sold to one F. certain goods, taking notes in payment therefor, and a written agreement was entered into that unless the notes were promptly paid the property should not vest. It It was held that in default of payment of the notes the plaintiff could replevy the goods : Weeks v. Lalor, 8 C. P. 239. On sale of property it often becomes material to determine in an action of replevin, whether the delivery was absolute with intent to pass the prop- erty or conditional on the defendant's doing some- thing stipulated to be done : Smith v. Hobson, 16 U. C. R. 368. Where goods are sold so that the property in the goods is vested in the purchaser, and the vendor re- fuses to deliver, replevin by the purchaser will lie : aUourhe v. Lee, 18 U. C. R. 609. A Division Court Bailiff cannot, when a claim is made by a third person to goods and chattels, sell the goods seized under execution and issue an in- terpleader for the proceeds, and replevin may be maintained against the purchaser of the goods at such sale by the claimant : Heid v. McDonald 26 C. P. 147, but if claim is made to the proceeds of goods sold he may interplead therefor. Ih. p. 163. Where neither possession nor property in a chat tel has passed, a purchaser cannot maintain reple- vin : Henry v. Cook, 8 C. P. 29, nor if there is not a contract within the Statute of Frauds : Kaitling y. Parifci/i, 23 C. P. 569. •8J •» il W it if ' i'. ■> '■■t ■ " J ■ ^ .1 til ! i 'h \ ■!■■'^ III «•■ • , ifr"*" •4[ lit fl . I«l i> n* 1 Mtt 238 REPLEVIN. Where a chattel is hired and possesHiou given on the terniH of certain monthly payments being made, and on such being made the chattel is to be- (;ome the property of the person to whom it is hired, the hirer can, in default of payment of the instalments, maintain replevin for the chattel : Mason v. Johnson, 27 C. P. 208. See, also, Nord- Tieirner v. Robinson, 2 App. R. 305 ; Walker v. Hyrnan, 1 App. R. 845 ; McDonald v. Forrestal, 29 Grant 300, but a demand should first be made therefor : Tuffts V. Mottashed, 29 C. P. 539. In Arnold v. Higgins, 11 U. C. R. 191, it was held that goods seized under an attachment fi'om the Division Court might be replevied in a Superior Court by a third party claiming them as his own, and so he would appear to have tiie right to do yet, as the attachment is not against him : Rev. Stat. (Ont.) Chapter 53, section 3. See Jameson y. Kerr, 6 P. R. 3 ; Anderson v. McEwan, 8 C. P. 532 ; Barclay V. Sutton, 7 P. R. 14. Where the goods of A. having been seized by the Sheriff under an execution against D. had been handed over by the Sheriff to an assignee to whom B. had made a voluntary assignment in insolvency, it was held that A. might maintain replevin against t'le assignee : Burhe v. Mc Whirter, 35 U. C. R. 1. During the Insolvent Act it was held that goods could be replevied out of the hands of the guar- dian in insolvency : Jarnesmi v. Kerr, 6 P. R. 3, but that goods in the hands of an official assignee could not be : Barclay v. Sutton, 7 P. R. 14. See, also, Campbell v. Lepan, 21 C. P. 363. A person agreed to manage a farm in considera- EEPLEVIN. 239 tion of his pretting among other tilings, one-third of tlie inci-ease of the young Htock. On the death of the owner the farm manager sold all the stork, and it was held that he had no right to do so, and replevin might be maintained by tlie administra- trix of the owner against the purchaser : Duffili\. Enoin, 18U.C. R.431. The taking of property under one writ of replevin does not prevent the operation of a second writ upon the same property : Orawford\. Thomas, (Sheriff), 7 C. P. 63 ; provided the plaintiff is not the party against whom the first writ issued : Replevin Act, section 3 and 48 Victoria, Chap. 13, section 8 (Ontario.) Although there may be moneys due on settle- ment of accounts between workman and employer, the latter can maintain replevin against the former for tlie goods on which the work is done : Bush v. Pmilott, 9 C. P. 54. Goods cannot be replevied from the possession of any one but the defendant, but an amendment could be made substituting the possessor of the goods as defendant : Hoorigan v. Driscoll, 8 P. R. 184. As to replevin against a mortgagee distraining for arrears of interest : see R. C. Bank v. Kelly, 19 C. P. 196, 20 C. P. 519, 22 C. P. 279 \ T. & L. Co. v. Lawrasori, 45 U. C. R. 176 ; Ex parte Punnett, In re Kitchin, 16 Ch. D. 226 ; In re Threlfall, 16 Ch. D. 274 ; 14 L. J. N. S. 8 ; Ont. Digest 211. A plaintiff in replevin can recover for such portion of the property replevied as he can prove title to. The action is divisible : Henderson v. m* ' !' 240 BEPLEVIN. ■ ■ .' ' :P|||J ^M Sillfi, 8 a p. 68 ; Sills v. ^?/w^, 16 U. C. R. 521 ; Miller v. Miller, 17 C. P. 226 ; Haggart v. Kernahan, 17 U. C. R. 841 ; Oannijf v. Bogart, 6 U. C. L. J. 59. A person who purohaaes goods under a fraudu- lent representation by him may give title to his vendee so as to defeat an action of replevin by his vendor against such vendee if the original seller has not disaffirmed the contract before the issue of the writ of replevin : Olough v. L. & N. W. Ry Co., L. R. 7 Ex. 26 ; Stoeser v. Springer, 7 App. R. 497 ; Sheffield Nickel Co. v. XJnwin, 2 Q. B. D. 214. Growing timber sold and cut into logs can be replevied by the purchaser as against the owner of the land : McGregor v. McNeil, 32 C. P. 538. A Sheriff or Bailiff who has seized goods under execution and has not abandoned the seizure, is entitled to maintain replevin therefor : Patterson v. McKellar, 4 Ont. R. 407. In an action of replevin a boarding-house keeper can set up a lien under R. S. O., Chapter 147 : Rees V. McKeown, 7 App. R. 521. As to who is a boarding-house keeper within the meaning of that Statute : see R. v. Buckle, 4 East 346 ; Clarke v. Pmuell, 4 B. ■ ft «■: Oalcutt V. Ruttan, 13 U. C. R. 146 ; Clark v. Ruttmu 6 C. P. 97. Where an action is brought for the detention of the goods only, the claim should be framed a^s in detinue : Stephens v. Cousins, 16 U. C. R. 829 ; but a lien cannot be given in evidence under a plea denying the plaintiff's property : lb. A writ of replevin cannot be legally execi.' ^d by a Bailiff by taking goods out of the peaceable possession of one man when his writ is against another : G. W. Ry. Co, v. McEwcm, 28 U. C. R. 528, 3C U. C. R. 559 ; Stoeser v. Springer, 7 App. R. 497. In a writ of replevin it was held insufficient to describe the property as " two hundred and thir by sheep and lambs" unjustly detained by the defend- ant, and that such property could not be seized under such writ while they w^ere in possession of a party not named therein : Hoorigan v. Driscoll, 8 P. R. 184. A writ of replevin in tne Division Court may be served in the same way as an ordinary summons in that Court : Replevin Act, section 5. Notice of action is not necessary in replevin : Folger v. Minfon, 10 U. C. R. 428 ; Kennedy v. Hall, 7 C. P. 218 ; xipplegarth v. Graham, 7 C. P. 171 ; Leivis V. Teale, 32 U. C. R. 108 ; Ibbotson v. Henry, 21L.J. N. S.273. It is doubtful if a replevin suit can be removed by certioran : Meyers v. Baker, 26 U. C. R. 16 ; but see Heaton v. Goimwall, 4 P. R. 148. A Bailiff would be liable for not executing the writ : Boys v. Smith, 9 C. P. 27, 6 U. C. L. J. 182. REPLEVIN. 243 III some respects the action of replevin is within tlie Judicature Act : Campan v. Lucqm, 9 P. R. 142 ; Wallace v. Cowan, 9 P. R. 144 ; Bradley v. Clarice, 9 P. R. 410. Where one party intermingles his property with that of another ^11 the latter can require in re- plevin is that he should be permitted to take from the whole an equivalent number and quality for those which h» originally possessed : McDonald V. Lam, 7 Sup. R. 462 ; Drake on Attachment, 5th Ed., section 199. Payment into Court may be pleaded to an action on the bond : Thompson v. Kaye, 13 C. P. 251 ; so also "lay set-off : McKelvey v. McLean, 34 U. C. R. 635. A certificate for costs is necessary in the High Court and C smty Court : Ashton r. McMillan, 3 P. R. 10 ; Ln re Coleman v. Kerr, 28 U. C. R. 297, but it is not so in the Division Court. It has been decided that replevin is not main- tainable against a pound-keeper : Ibhotson v. Henry, 21 L. J. N. S. 273. liEPLEVTN BOND. A replevin bond entered into by the principal and tkree sureties is svifiiciently in accordance with the Replevin Act, and the assignee may sue on it in his own name under that Act : Meyers v. Mayhee, 10 U. C. R. 200 ; Bacon v. Langton, 9 C. P. 410 ; Becher v. Bull, 18 U. C. R. 192; or under the Rev! -jd Statutes of Ontario, chapter 116, section 7 : Bates V. Machey, 1 Ont. R. 34. A subscribing witness is ne(^essary to its validity but one will do : Heley v. Cousins, 34 U. C. R. 63. 5« IT;T*)e*W^,»l^,^^ 244 REPLEVIN. iK An action would be maintainable aprninsi the Bailiff for refusin.q- to assiM-n the bond i- die per- Hon entitled : Pacaud v. McEwcm, 31 U. C. R. 828. The Court has always power, which it will exer- cise, to stay proceedings on a replevin bond, when ever it would be equitable and just to do st ; Bates V. Mackeu, 1 Out. R. 34 ; see also, Ruttan v. Short, 12 U. C. R. 485 ; Hedley v. Closter, 13 U. (J. K. 333 ; Oldham v. Love, 30 U. C. R. 410. If the plaintiff does not prosecute his suit with effect and without delay, the defendant may take an assignment of the bond from the Bailiff, and sue on it in his own name : Becker v. Ball, 18 U. C. R. 192 ; Welsh v. CBrien, 28 U. C. R. 405 ; Mulvaneyy. Ho^yJcins. 18 U. C. R. 174; Johnsons. Parke, 12 C. P. 179 ; Meloche v. Reau.de, 34 U C. R. 606 ; Culham w.Love, 30 U . C. R. 410 ; Casivell v. Catton, 9 U. C. R. 282, 462 ; Bletcher v. Bum, 24 U. G. R. 124, 259 ; Meyers v. Baker, 26 U. C. R. 16 ; Goldhg V. Bellnap, 26 U. C. R. 163 ; Patterson v. Fuller, 31 U. C. R. 323 ; McKelvey v. McLean, 34 U. C. R. 635. If a Bailiff should seize without first taking the necessary bond, the seizure could be set aside : Landless v. Radford, 9 P. R. 33. A matter- of defenrn^ to the action of rei)levin cannot be wet up in an a(;tion on the bond : Meyers v. May bee, 10 II. C. R. 2(X). The sureties to a replevin bond may be uninten- tionally discharged, as by a release; or dis(;harge of one of the obligers, postponement of the trial, or reference to arbitration, without their consf^nt, or any new arrangement without the concurrence of ■ REPLEVIN. 245 the sureties by which their rights miglit be preju- diced : Klrkendall v. Thomm, 7 U. C. R. 80 ; Hatt V. GiUelawl, 1 U. C. R. 540; Oatmiff v. BogerU 6 C. P. 474 ; Burke v. Glover, iH U. C. R. 294 ; Polak V. Everett, 1 Q. B. 1). ()BU ; Holme v. Brnmkilh 3 Q. B. I). 495 ; Ward v. Nationnl Bank of New Zealand, 8 App. Cas. 755 ; Sinclair's D. C. Act, 75. The bond can be sued in the Division Court, no matter wluit the penalty may be : Sin(;lair's D. C. Act, 213. REPLEVIN GENJ:RALLY. It is not necessary that the plaintiff should '^ ver liave had pv)ssession of the pi'operty to maintaii. the action of replevin : Woodi^ v. Nixon, Addison 134 ; Harlan v. Harlan, 3 Harris 507 ; Say ward v. Warren, 27 Maine 453 ; Beehe v. Z>^/ 5.??i/i, 3 English 510 ; Os:food\. Green, 10 Foster (N. H.) 210 ; Chinn v. Russell, 2 Blackf. 172, and whether the property in the goods be absolute or (lualified : Whetivell v. Wells, 24 Pick. 25; Johnson v. Hunt, 11 Wendell, 137 : liouers v. Arnold, 12 Wendell, 30 ; Hunt v. Chaitihers. 6 Penn. L. J. 82 ; Sniih v. Williamson, 1 Har. >•& J. 147 ; Mildrnm v. Snow, 9 Pick. 441. But the plaintiff must have the ri{/kt of possess- ion ; Haythorn v Wishford, 4 Hai-r. R. bU) ; Hands V. Smith, 3 8. & R. 20 ; Pierce v. StepJitm. 30 Maine, 184 ; Partridife v. Sira()y, M\ Maine, L^4 ; Hunt v. Strew, 33 Mich. 85 ; Spencer v. Roberts, 42 Conn. 75 ; Morris on Replevin, 77. Articles carried about tli3 pei-son of the defendant or worn by . im cannot while so worn or carried te taken from him under the writ of replevin : 246 REPLEVIN. .^ \,^::.; %:'i ^««: .W. '^'-ix^ ir t> 11 r « Moxham v. Z>^.SV/,z?, 7 V 248 REPLEVIN. Hi ii •Ml, r k r Cowen, 95 ; Belts v. Zee, 5 JoliiiH. 848 ; Wingate v. Smith, 20 Alaine, 287, /SXyr/e/' v. Vaux, 2 R. 427. Where there was an agreement for the sale of corn, to be paid for on delivery of the last load, and the corn as hauled to tiie buyer's mill was, in the presence of one of the sellers, emptied into a heap with other corn, and after delivering the last load the buyer failed to pay, it was held that the mixture of the corn did not prevent the reclama- tion of so much of it as the vendor delivered, and that replevin lay for it : Henderson v. Lauck, 9 Harris, 359 ; Low v. Freeman, 12 111. 4H7 ; Lmo v. Martin, 18 111. 286 ; Warner v. Cushman, 81 111. 283 ; Schulenburg v. Harriman, 2 Dillon, 398 ; McDonald V. Lane, 7 Sup. R. 462. Replevin will lie for a swarm of bees : Morris on Replevin, 101 ; Rev. Stat. Ont. Chapter 96, and for the increase of animals, though the inc-rease were after the taking : Morris, 101 ; but not f(jr animals ferce naturm and unreclaimed : //;. Replevin will lie for a ship and Ikm- sails : Mars':. 110; Prideaux v. Warne, Sir T. Raym. 132, but not after a decree of condemnation as a prize by a Court of Admiralty : Morris on Replevin, 102. Rev)levin can be maintained for a vessel ac(|uired under proceedings in rem in a foreign A'lmiralty Court: Morris on Replevin, 102; VanEvery v. Ross, 21 II. C. R. 542 ; Castrique v. Lnrie, L. R. 4, H. L. 414. As a general proposition, title to land cannot be tried in an action of rej)levin : Eaton v. SoufMt/, Willei-', 131 ; Snt/der v Vauv, 2 R. 427; Vausse v. Mussel, 2 McCord, 329 ; nor can a house built on REPLEVIN. 249 leawed land be taken in replevin, nor will the writ justify the severance and delivery of fixtures ; Ttohei'U V. Dauphin Bank, 7 Harris, 71 ; C reman v. StouU 17 Johns. 116 ; Oates v. Cameron, 7 U. C. R. 228; Lee v. Gaslell, 1 Q. B. D. 700; Keefer v. Merrill, H App. R. 121 ; Ex parte Gould, In re Waller, 18 Q. B. D. 454 ; In re Moser, 13 Q. B. D. 738 ; Wale v. Hall, 7 Q. B. D. 295. S. C. 8 App. Cas. 195 ; Dickson v. Hunter, 29 Grant 73 ; McCausland V. McCallum, 3 Ont. R. 365 ; R. rt'i;/.9 v. Easley, 13 111. 192 ; Anderson v. Hapler, 34 111. 436. The title to land may incidentally arise in re- plevin : Lehman v. Killerman, 15 P. F. Smith, p. 492 ; and if it should in the Division Court, it would not, it is submitted, oust the jurisdiction ; Munsie v. McKinley, 15 C. P. 50. A Sheriff or Bailiff should not deliver more articles than are named in the writ. Thus, a writ requiring a Sheriff to replevy 400 tons of ore, was held not to justify him in delivering 720 tons : Dervitt v. Morris, 13 Wend. 496 ; Gardner v. Lane, 9 Allen, 492. It is a good return to say that the cattle are dead or the goods destroyed by fire : Morris on Re- plevin, 115. The Statute of Limitations applies to the action of replevin, therefore the w^rit must be issued within six years from the unjust taking or deten- tion : Morris on Replevin, 121. Several persons cannot join in one replevin for several goods where the property is several : Hart V. Fitzgerald, 2 Mass. 509. All part owners of a chattel must join in a replevin suit, nor can a tenant in common, or joint tenant or partner maintain replevin against his co-tenant or co-partner for taking the common property : McNabb v. Howland, 11 C. P. 434 ; Morris on Replevin, 125 ; Ecclestone v. Jarvis, 1 U. C. R. 370. Replevin should not be brought in REPLEVIN. 251 the name of a mere servant whose possession is that of his master: Ih. 125, or of one who never had any lawful possession ; Cool v. Mulli{jcm, 13 U. C. R. 613. In general, any one in possession of the goods or having control of them may be made defendant : Hall V, White, 106 Mass. 599 ; Richardson v. Reed, 4 Gray, 441. If goods are taken by A. at the command of B. the replevin may be against both of either : Gilbert on Replevin, 162 ; Kirby v. Cahill, 6 O. S. 510. Replevin lies after sale against the vendee of the Sheriff or other officer : Shearich v. Huber, 6 Binn. 2 ; Lamb v. Johnson, 10 Gushing, 126. As to the rights and liabilities of parties to the replevin bond : See Morris on Replevin, 266-296. Possession obtained improperly will not give a right of action in replevin : McOrary v. McOrary, 22 U. C. R. 520. But generally, possession is good as against a mere wrong-doer : McDougall v. Smith, 30 U. C. R. 607. Under our Statute replevin can be maintained for leases or other title deeds. Burr v. Munro, 6 O. S. 57 ; Anderson v. Hamilton, 4 U. C. R. 372 ; Doiv- ling V. Miller, 9U. C. R. 227. Replevin can be brought for goods distrained off the premises : HusUnson v. Lawrence, 26 U. C. R. 570. Where the action is founded on trover a demand before action is necessary in replevin, if it would have been necessary in an action of trover : R. & J's Digest, 3836, 3837. REPLEVIN. ( YAitf^- It Pi- 'Of'" t Ji h ft Ah to when trespaBHand trover are maintainable and an a (lonHeqnence rei)levin : set; R. said notice ia not published in the regular number of the Penalty tor Ontario Qatettf., and of such newspaper as aforesaid, which shall respect- pulit^^joQ ively be issued first after five days from the execution of the assignment by the assisfttor, or if the assignment is not registered as aforesaid within five days from the execution thereof, the assignor shall be liable to a penalty of twenty-five dollars for each and every day which shall pass after the issue of the number of the newspaper in which the notice should have appeared until the same shall have been published ;. and a like penalty 260 GENERAL ASBIGNMEMT. to' Ik- K r *>. . Ik.. Compel. Una publi- oauon and regiatni- tion. for each and every dsy which shall pass after the expiration of five dayx from the ezeontion of the assignment by the assignor nntil the same shall have been registered. (2) The assignee is to be sabjeot to a like penalty for each and every day whioh shall pass after the expiration of five days from the delivery of the assignment to him, or of five days after his assent thereto, the burden of proving tlie time of saoh delivery or assent being upon the assignee. (8) Such penalties may be recovered sammarily before a Judge of the High Court or the County Court ol the county in whioh the assignment ought to be published or registered ; one- half of the penalty shall go to the party suing, and the other half for the benefit of the estate of the assignor. 14. In case the assignment be not registered, and notice thereof pub- lished, an application may be aaade by any one interested in the assign- ment to a Judge of the High Court, or of the County Court aforesaid, to compel the publication and registration thereof ; and the Judge shall make his order on that behalf, and with or without costs, or upon the pay- ment of costs by such person as he may in his discretion direct to pay the same. 15. The omission to publish or register as aforesaid, or any irregular- invalida- ^^^ "^ ^^ publication or registration, shall not invalidate the assignment. omisaTon to ^^' ^^ ''^^^ ^ ^^ ^^^ °^ ^^^ assignee to immediately inform himself, eto^''"'^ by reference to the debtor and his records of account, of the names and . . . residences of the debtor's creditors, and within five days from the date of call meet- assignment to convene a meeting of the creditors for the appointment of ing of cred- iton. inspectors and the giving of directions with reference to the disposal of the estate, by mailing prepaid and registered to every creditor known to him, a circular calling a meeting of creditors to be held in his office or other con- venient place to be named in the notices not later than twelve days after the mailing of such notice, and by advertisement in the Ontario Oatette ; and all other meetings to be held shall be called in like manner. 17. At any meeting of creditors the creditors may vote in person, or by proxy authorized in writing, but no creditor whose vote is disputed shall be entitled to vote nntil he has filed wi'dh the assignee an affidavit in proof of his claim stating the amount and nature thereof. 18. (1) Subject to the provisions of section 6, all questions discussed at meetings of creditors shall be decided by the majority of votes, and for such purpose the votes of creditors shall be calculated as follows : ASBil mem not Votiagat Scale of votes. El. • fit' ' GENERAL A8SI0MMENT. 261 For evety daim of or over tlOO, and not exoeeding 9200. ... 1 vote. " " »200, '• " 1600... 2 votes. •• " #600, " " »1000....3ToteB. " additional 91000, or fraction thereof. 1 vote. (9) No person shall be entitled to vote oa a olaim aoqaired after the assignment unless tLe entire olaim is acquired, but this shall not apply to persons acquiring notes, bills or other securities upon which they are Uable. (8) In case of a tie the assignee, or if there are two assignees, then the assignee appointed by the creditors, or by the Judge, if none has been appointed by the creditors, shall have a casting vote. (4) Every creditor in his proof of claim shall state whether he holds any security for his olaim or any part thereof ; and if such security is on the estate of the debtor, or on the estate of a third party for whom such debtor is only secondarily liable, he shall put a specified value thereon, and the assignee under the authority of the creditors may either consent to the right of the debtor to rank for the olaim after deducting such valuation, or he may require from the creditor an assignment of the security at an advance of ten per cent, upon the specified value to be paid out of the estate as soon as the assignee has realized such security ; and in such case the difference between the value at which the security is retained and the amount of the gross claim of the creditor shall be the amount for which he shall rank and vote in respect of the estate. (5) If a creditor holds a claim based upon negotiable instruments upon which the debtor is only indirectly or secondarily liable, and which is not mature or exigible, such creditor shall be considered to hold security witliin the meaning of this section, and shall put a value on the liability of the party primarily liable thereon as being his security for the payment thereof ; but aftor the maturity of such liability and its non-payment, he shall be entitled to amend and revalue his olaim. 19. (1) Every person claiming to be entitled to rank on the estate „ . . assigned shall furnish to the assignee particulars of his olaim proved by claim, affidavit and such vouchers as the nature of the case admits of. (2) A person whose olaim has not accrued due shall nevertheless be entitled to prove under the assignment and vote at meetings of creditors, but in ascertaining the amount of any such claim a deduction for interest shall be made for the time which has to run until the claim becomes due. 80. The law of set-off shall apply to all claims made against the „ . estate and also to all suits instituted by 'the assignee for the recovery of debts due to the assignor, in the same manner and to the same extent as if If > 262 GENERAL ASSIGNMENT. J Amdavits. Oom- menoe- ment of Act. the asBignor were plaintiff or defendant, as the case may^ be, except in bo far as any claim for set-off shall be affected by the provisions of this or any other Act respecting frauds or fraudulent preferences. 21. Any affidavit authorized, or required, under this Act may be sworn before auy person authorized to administer affidavits in the High Couit, or before a Justice of the Peace, or, if sworn out of Ontario, before a Notary Public 22. This Act shall not go into force until a day to be named hj the Lieutenant-Governor by his proclamation. [A proelavnation ha$ been is$ued by the Lieutenant-Oovernor bringing thit Act into force on thefirtt day of September, 1885.] r -i wm it ■'"' RESPECTING WAGES. 263 AN ACT RESPECTING WAGES. 48 Victoria, Chapter ip (Ontario.) [Assented to 30th March, 1885.^ Her Majesty, by and with the advice and ooneent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. Whenever an assignment is made of any real or personal P'op^r^J wages or for the general benefit of creditors, the assignee shall pay in priority to the h^'y^'pjj***. olAims of the ordinary or general creditors of the person making the same, ity in as- BiRnmentB the wages or salary of all persons in the employment of sach person at the for beneHt time of the making of such assignment, or within one month before the tors. making thereof, not exceeding three months' wages or salary, and such persons shall be entitled to rank as ordinary or general creditors for the residue, if any, of their claims. 2. In distributing the assets of a company under the provisions of Tht Wages or Joint Stock Companiea' Winding up Act, the Uquidator shall pay in have prior- priority to the claims of the ordinary or general creditors of the oom- j^y^^p^g,' pany the waxes or salary of all persons iu the employment of the company ^^^.^P^ y at the time of the making of the winding-up order, or within one month c. 5. before the making thereof, not exceeding three months' wages or salary, and such persons shall be entitled to rank as ordinary or general creditors of the company for the residue, if any, of their claims. 8. All persons in the employment of an execution debtor at the time of j^j^hts of the entry of the notice mentioned in section five of The Creditors' Relief ovaployeea Act, 1880, or within one month before such entry, who shall become tion debt- orSi entitled to share in the distribution of money levied out of the property of a debtor within the meaning of the said Act, shall be entitled to be paid out of such money the wages or salary due to them by the execution debtor, not exceeding three months' wages or salary, in priority to the claims of the other creditors of the execution debtor, and shall be entitled to share pro rata with such other creditors as to the residue, if any, of vheir claims. 4. This Act shall apply to wages or salary whether the employment in wages or respect of which the same shall be payable, be, by the day, by the week, by ^ff^d by the job or piece or otherwise. *^^" Act. 6. This Act is not intended to apply to an assignment made under the Applica- provisions of any Act of the ParUament of Canada relating to or respecting *'^°° °^ ''^°*- Bankruptoy or Insolvency. I la'' 264 MUTUAL FIBS INSURANCE OOlfPANIES. AN ACT TO AMEND THE ACT RESPECTING MUTUAL FIRE INSURANCE COMPANIES. 4S Victoria, Chapter 35 {Ontario.) El ■ i [Assented to 30th Mareh^ 1885^ w tu- rn w t t «. »• I. » > B. 8. O. 0. 161, 1. 71. amended. Salts on premium noteii in Division Courts, where brought •4 • -:i;. • It .:. < -•«1 .i ^ Her Majesty, by and with the advioe and oonsent of the Legialatite Assembly of the Provinoe of Ontario, enaote ai follows : — 1. Section 71 of Th« Act retpeeting Mutual Fire Ituuranee Com- paniei, chapter 161 of the Befised Statutes, ia hereby amended by adding thereto the words following : " Provided always, that the provisions of this section shall not apply to nor inolade any such premium note or underta- king made or entered into after the first day of July, 1885, nor any sum assessed thereon, unless within the body of suoh note or undertaking or across the face thereof, there was at the time of the making or entering into the same, printed in conspicuous type, and in ink of a colour different from any other in or on such note the words following ; ' any action which may be brought or commenced in a Division Gourt in respect or on account of this note or undertaking, or any sum to be assessed thereon, may be brought and commenced against the maker hereof in the Division Court for the division wherein the head office or any agency of the company is situate.' " [See Sinelair'a D. C. Act, page 88, note (p)]. ^ '■».«;ii m I TAX ON DOOS. 265 AN ACT TO AMEND THE ACT TO IMPOSE A TAX ON DOGS, AND FOR J /IE PROTECTION OF SHEEP. 48 Victoria, Chapter i6 {Ontario). [Assented to 30th March, i88s.] Her Majesty, by and with the advioe ami consent of the Legislative r. s. O. 194 B. 16 Assembly of the Provinoe of Oniario, enacts as follows :— am'endecl. 1. Section 16 of The Act to impose a Tax on Dog$ and for the Pro- ^PgJ oJ°°" tection of Sheep, chapter 194 of the Revised Statutes, is hereby amended damage, by adding thereto the sub-sections following : (2) If it shall appear before the court or judge at the trial of any such action for damages, or before such justice at the hearing of the said infor- mation or complaint before him, that the damage or some part of the dam- age sustained by such aggrieved party was the joint act of some other dog or dogs, and of the dog or dogs owned or kept by the person charged in such information or complaint, the court, judge or justice shall have power to decide and apportion the damages sustained by the complainant, among and against the respective owners or keepers of the said dogs, as far as such owners or keepers are known, in such shares and proportions as such court, judge or justice shall think fit, and to award the same by the judgment of the said court or judge, or in the conviction of t^uch justico, on behalf of such aggrieved person. (3) When in the opinion of the court, judge or justice, the damages were occasioned by dogs the owner or owners of which are known, and dogs the owner or owners of which are unknown, or the owner or owners of which have not been summoned to appear before the court, judge or justice, the court, judge or justice may decide and adjudge as to the proportion of such damages which, having regard to the evidence adduced as to the strength, ferocity and character of the various dogs shewn to have been engaged in committing such damage, was probably done by the dogs the owner or owners of which have been summoned to appear before such court, judge or justice, and shall determine in respect thereof and apportion the damage which such jurt, judge or justice decides to have been probably done by the dogs whose owners have been summoned, amongst the various owners who have been summoned as aforesaid. HH .'..) m m- iij pi SSirt ; r s {;:»■■; « 266 TAX ON DOGS. (4) The same proceedings shall be thereupon had against any person fonnd by such judge or justice to be the owner or keeper of the dog or dogs which by such court, judge or justice shall have been found to have contributed to the damage sustained by the person aggrieved, as if the information or complaint had been laid in the first instance against such person. (6) The court, judge or justice shall net decide 'nd apportion the said damage against any person other than the person in the information or complaint first charged, nor award the same in the said judgment or conviction without such other person having been summoned to appear before such court, judge or justice, and having had an opportunity of calling witnesses. (6) Appeals from or against any conviction, or order under the said 16th section, or from or against any apportionment or order made under this Act, shall be made to the Division Court holden in the Division in which the cause of action arose, or in which the party complained against, or one of them resided at the time of making the complaint; and the proceedings shall be the same as nearly as may be, as provided by the fleotiona numbered from 60 to 63 of The Divi$ion Courts Act, 1880. Iff ,1 I'' ■' It! '■ m h i ' MARRIED WOMEN'S PROPERTY ACT. 267 AN ACT RESPECTING THE PROPERTY OF MARRIED WOMEN. 4f Victoria^ Chapter ig {Ontario^ {Assented to 25th March^ 1884.^ [Came into force ist July, 1884.^ Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. This Act may be cited as " The Married Women's Property Act, 1884." 2. (1) A married woman shall, in accordance with the provisions of Short title, this Act, be capable of acquiring, holding and disposing by will or other- wise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee. (2) A married woman shall be capable of entering into and rendering Married worcanto herself liable in respect of and to the extent of her separate property on any be capable contract, and of suing and being sued, either in contract or in tort, or profrarty aa otherwise, in all respects as if she were a feme sole, and l'3r husband need ^Z""' "'*'■ not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her ; and any damages or costs recovered by her in any such action or proceeding shall be her separate property; and any damages or costs recovered against her in any such action cr proceeding shall be payable out of her separate property, and not otherwise. (3) Every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary be shewn. (4) Every contract entered into by a married woman with respect to and to bind her separate property, shall bind not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate p'operty which she may thereafter acquire. 3. Every woman who marries after the commencement of this Aotp^^pg^yof shall be entitled to have and to hold as her separate property and to dispose ^^j,^^ of in uanner aforesaid all real and personal property which shall belong to after this her at the time of marriage, or shall be acquired by or devolve upon her beld by her aMfetnetole. after marriage, including any wages, earnings, money, and property gained or acquired by her in any employment, trade, or occupation 268 MARRIED WOMEN'S PROPERTY ACT. If ■ hi H r I 1^ ' !hi IliH P Si i i r. r !::■' in which she is engaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic, or scientific skill. 4. The execution of a general power by will by a married woman shall have the effect of making the property appointed liable for her debts and other liabilities in the same manner as her separate estate is made liable under this Act. 6. Every woman married before the commencement of this Act shall be entitled to have and to hold and to dispose of in manner aforesaid as her separate property, all real and personal property, her title to which, ^'1^^^. whether vested or contingent, and whether in possession, reversion, or Act to be remainder, shall accrue after the oommeuoement of this Act, including any iield by her as a wages, earnings, money, and property so gained or acquired by her as feme sole, , . , aforesaid. Execution of general power. Property acquired after this Act by a woman married As to stock, etc., to which a married woman is entitled. 6. All deposits, all sums forming part of public stocks or funds, which at the commencement of this Act cure standing in the sole name of a married woman, and all shares, stock, debentures, debenture stock, or other interests of or in any corporation, company, or public body, munici- pal, commercial, or otherwise, or of or in any industrial, provident, friendly, benefit, building, or loan society, which at the commencement of this Act are standing in her name, shall be deemed, unless and until the contrary be shewn, to be the separate property of such married woman ; and tlie fact that any such deposit, sum forming part of public stocks, funds, or of any share, stock, debenture, debenture stock, or other interest as afore- said, is standing in the sole name of a married woman, shall be sufficient prima facie evidence that she is beneficially entitled thereto for her separate use, so as to authorize and empower her to receive or trans- fer the same, and to receive the dividends, interests, and profits thereof, without the concurrence of her husband, and to indemnify all public officers, and all directors, managers, and trustees of every such corporation, com- pany, public body, or society as aforesaid, in respect thereof. As to stock '^' ^ ^°°^ particulars mentioned in the preceding section which after etc., to be ^j^g commencement of this Act shall be placed, or transferred in or into, or transferrea etc., to a made to stand, in the sole name of any married woman shall be deemed, woman. unless and until the contrary be shewn, to be her separate property, in respect of which, so far as any liability may be incident thereto, her separate estate shall alone be liable, whether the same shall be so expressed in the document whereby her title to the same is created or certified, or in the ProTiso. books or register wherein her title is entered or recorded, or not ; Provided always, that nothing in this Act shall require or authorize any corporation or joint stook company to admit any married woman to be a holder of any MABBIED WOMEN'S PBOPEBTT ACT. 269 shares or stook therein to which any liability may be incident, contrary to the provisions of any statute, charter, by-law, articles of association, or deed of settlement regulating such corporation or company. 8. All the provisions hereinbefore contained as to such particulars Invest- ments in mentioned in section 6, which at the commencement of this Act shall be joint standing in the sole name of a married woman, or which, after that time, ^^^Id* shall be, or placed, or transferred to or into, or made to stand in, the sole Q^hers! ^° name of a married woman, shall respectively extend and apply, so far as relates to the estate, right, title, or interest of the married woman, to any of the particulars aforesaid which, at the commencement of this Act, or at any time afterwards, shall be standing in, or shall be placed, or transferred to or into, or made to stand in, the name of any married woman jointly with any persons or person other than her husband. 9. It shall not be necessary for the husband of any married woman, in As to respect of her interest, to join in the transfer of any such particulars named standing in in section 6, which are now or shall at any time hereafter be standing in Q^^ea^t the sole name of any married woman, or in the joint names of e '.married ^ married ^ ' woman woman, and any other person or persons not being her husband. and others. 10. If any investment in any of the particulars set forth in section 6 Fraudulent shall have been made by a married woman by means of moneys of her ments with husband, without his consent, the Court may, upon an applioatiou under ^ug^uid. section 15 of this Act, order such investment, and the dividends thereof, or any part thereof, to be transferred and paid respectively to the husband ; and nothing in this Act contained shall give validity as against creditors of the husband, to any gift, by a husband to his wife, of any property, in fraud of his creditors, or to any deposit or other investment of moneys of the husband made by or in the name of his wife in fraud of his creditors ; but any property or moneys so deposited or invested may be followed as if this Act had not been passed. 11. Every woman, whether married before or after this Act, shall have B<>uiedies in her own name against all persons whomsoever, including her husband, ^omsm^fo the same remedies for the protection and security of her own separate P'^^°''^°° property, as if such property belonged to her as a feme tole, but, except as ity of sepa- aforesaid, no husband or wife shall be entitled to sue the other for a tort. erty. In any proceeding under this section it shall be sufficient to allege such property to be her property; and in any proceeding under this section a husband or wife shall be competent to give evidence against each other. 12. A woman after her marriage shall continue to be hable in respect „„. , *^ Wife's ante- and to the extent of her separate property for all debts contracted, and all nuptial contracts entered into or wrongs committed by her before her marriage ; liabilities. P'H ■r* III ' i 1 •km-- C ' Ik . IT; m 270 MABBIED WOMEN'S PBOFEBTT ACT. Proviso. Husband and she may be Bned for any suoh debt and for any liability in damages or otherwise under any suoh oontraot, or in respect of any snoh wrong ; and all sums recovered against her in respect thereof, or for any costs relating thereto, shall be payable oat of her separate property ; and, as between her and her husband, unless there be any contract between them to the contrary, her separate property shall be deemed to be primarily liable for all such debts, contracts or wrongs, and for all damages or costs recovered in respect thereof : Provided always, that nothing in this Act shall operate to increase or diminish the liability of any woman married before the commencement of this Act for any such debt, contract or wrong, as aforesaid. 13. A husband shall be liable for the debts of his wife contracted, and to be liable for all contracts entered into and wrongs committed by her, before marriage, wife's and for wrongs committed by her after marriage, to the extent of all property debts and other lia- whatsoever belonging to his wife which he shall have acquired or become certain ex- entitled to from or through his wife, after deducting therefrom any payments ^°^' made by him, and any sums for which judgment may have been bona fide recovered against him in any proceeding at law, in respect of any such debts, contracts or wrongs for or in respect of which his wife is liable ; but he shall not be liable for the same any further or otherwise ; and any court in which a husband shall be sued for any such debt or liability shall have power to direct any inquiry or proceedings which it may think proper for the purpose of ascertaining the nature, amount or value of such property : Provided always, that nothing in this Act contained shall operate to increase or diminish the liability of any husband married before the commencement of this Act for or in respect of any such debt or other liability of his wife as aforesaid. 14. A husband and wife may be jointly sued in respect of any suoh debt or other liabiUty (whether for contract or for any wrong) contracted or incurred by the wife as aforesaid, if the plaintiff in the action shall seek to establish his claim, either wholly or in part, against both of them ; and if in any saoh action, or in any action brought in respect of any suoh debt or liabiUty against the husband alone, it is not found that the husband is liable in respect of any property of the wife so acquired by him, or to which he shall have become so entitled as aforesaid, he shall have judgment for his costs of defence, whatever may be the result of the action against the wife if jointly sued with him ; and in any such action against husband and wife jointly, if it appears that the husband is liable for the debt or damages recovered, or any part thereof, the judgment to the extent of the amount for which the husband is liable shall be a joint judgment against the hus- band personally and against the wife as to her separate property ; and as to Proviso. Suits for wife's lU- bilities. ,^ MARRIED WOMEN'S PROPERTY ACT. 271 the residue, if any, of saoh debt and damages, the judgment shall be a separate judgment against the wife as to her separate property only. 15. (1) In any question between husband and wife as to the title to or Qaeations possession of property, either party, or any corporation, company, public ^„g*|2d body, or society in whose books any stocks, funds, or shares of either party and wife are standing, may apply by summons or otherwise, in a summary way, to petty to be decided in any judge of the High Court of Justice, or (at the option of the applicant, a Bummary irrespectively of the value of the property in dispute) to the judge of the ^*^" county court of the county in which either party resides, and the judge may make such order with respect to the property in dispute, and as to the costs of and consequent on the application, as he thinks fit ; or may direct such application to stand over from time to time, and any inquiry touching the matters in question to be made in such manner as he shall think fit. (2) Any order of a Judge of the High Court made under the provisions of this section, shall be subject to appeal in the same way as an order made by the same judge in a suit in the said court would be. (3) Any order of a county court under the provisions of this section, shall be subject to appeal in the same way as any other order made by the same court would be. (4) All proceedings in a county court, under this section, in which, by reason of the character or value of the property in dispute, such court would not have had jurisdiction if this Act had not passed, may, at the option of the defendant or respondent to such proceedings, be removed as of right into the High Court, by writ of certiorari, or otherwise, as may be prescribed by any rule of the Supreme Court of Ontario ; but any order made or act done in the course of the proceedings, prior to the removal, shall be valid, unless order is made to the contrary by such High Court. (5) The judge of the High Court or county court, if either party so require, may hear any such application in his private room. (6) Any such corporation, company, public body, or society, as afore- said, shall, in the matter of any such application, for the purpose of costs or otherwise, be treated as a stakeholder only. 16. A married woman, who is an executrix or administratrix, alone or Married jointly with any other person or persons, of the estate of any deceased woman as person, or a trustee alone or jointly as aforesaid, of property subject to any trix or trust, may sue or be sued, and may transfer or join in transferring, in that *^*^"'^- character, any such particulars as mentioned in section 6, without her hns- band, as if she were a feme sole. •f- m h *■■■• r- w. r P'-^' *■■, i: I' It 272 MARRIED WOMEN'S PROPERTY ACT. 17. Nothing in thin Act contained shall interfere with or afifeot any set- tlement or agreement for a settlement made or to be made, whether before Bavins of existiDK settle- ments, and or after marriage, respecting the property of any married woman, or shall mo po^vOs interfere with or render inoperative any restriction against anticipation at to make future set- tlements. In what cases a married woman present attached or to be hereafter attached to the enjoyment of any prop- erty or income by a woman under any settlement, agreement for a settle- ment, will, or other instrament; but no restriction against anticipation contained in any settlement or agreement for a settlement of a woman's own property to be made or entered into by herself shall ) vre any validity against debts contracted by her before marriage, and no settlement or agreement for a settlement shall have any greater force or validity against creditors of such woman than alike settlement or agreement for a settlement made or entered into by a man would have against his creditors. 18. (1) Any married woman having a decree for alimony against her husband, or any married woman who lives apart from her husband, having been obliged to leave him from cruelty or other cause which by law justifies uf o^er (rf ^^^ leaving him and renders him liable for her support, or any married woman ^r thcf'^'* whose husband is a lunatic with or without lucid intervals, or any married earnings of ^qqji^q whose husband is undergoing sentence of imprisonment in the children. Provincial Penitentiary or in any goal for a criminal offence, or any married woman whose husband from habitual drunkenness, profligacy, or other cause, neglects or refuses to provide for her support and that of his family, or any married woman whose husband has never been in thi.^ Pro* '>'x-^, :•! any married woman who is deserted or abandoned by her husl^i . z' ; c'btaia _ . an order of protection entitling her, notwithstanding here*; v./;' ?, »c have and effect and to enjoy all the earnings of her minor children, and any .a/sitions order. therefrom, free from the debts and obligations of her husband and from his control or dispositions, and without his consent, in as full and ample a manner as if she continued sole and unmarried. (2) The married woman may at any time apply, or the husband or any of the husband's creditors may at any time on notice to the married wo- man, apply for the discharge of the order of protection ; and if an order for such discharge is made the same may be registered or filed like the original order. (3) Either order may issue in duplicate, and where the married woman resides in a city or town in which there is a police magistrate, the order for whom protection or any order discharging the same shall be made by the police in cities magistrate, and shall be registered in the registry office of the Registration Begistoa^" Division in which the city or town is situate, tion. How and by whom an order dlBchar* ging pro- tection maybe obtained. Either order may be in da- plicate. By MARRIED WOMEN'S PROPERTY ACT. 273 (4) Where the married woman does not reside in a city or town in By ^bom which there is a police magistrate, the order shall be made by the Judge ^^^^ ^^^ or one of the Judges, or the acting or deputy Judge of the Division Courts |n oity or or a Division Court of the County in which the married woman resides ; and instead of being registered, shall be filed for public inspection with the clerk of the Division Court of the Division within which the married woman resides. (6) The hearing of an application for an order of protection, or for an jjearinK order discharging the same may be public or private, at the discretion of the ™^,.^ judge or police mag rate. private. (6) The order for protection shall have no effect until it is registered or order not tiled, and the registrar or clerk shall immediately on receiving the order ese^^until endorse thereon the day of registering or filing the same ; and a certificate registered, of the registering or filing and date, signed by the registrar or clerk for the time being, shall be prima facie evidence of such registering or filing and date ; and a copy of the order which is registered or filed, certified under the of order, hand of the registrar or clerk to be a true copy thereof, shall be sufficient ° °' prima facie evidence of the order without proof of the signature of the registrar or clerk, and without further proof of the order itself, or of the making or validity thereof. (7) The order for discharging an order of protection shall not in any From what case be retroactive, but shall take effect from the time it is made, and the or^er dis- order for protection shall protect the earnings of the minor children of the —o^'h^ marrried woman until an order is made discharging such order of protect- shall take ion, and the married woman shall sontinue to hold and enjoy to her separ- ate Qse whatever, during the interval between the registering or filing of the order of protection and the making of the order discharging the same, she may have acquired by the earnings of her minor children. 19. For the purposes of this Act the legal personal representative of Legal rep- any married woman shall, in respect of her separate estate, have the same of^marriel rights and liabilities and be subject to the same jurisdiction as she would ^°'^^'>- be if she were living. 20. The separate perscual property of a married woman dying intes- Separate tate shall be distributed in the same proportions between her husband and property of her children as the personal property of a husband dying intestate is to be ^'testate"* distributed between his wife and children ; and if there be no child or ^P7 ^ be distributed children living at the death of the wife so dying intestate, then such pro- perty shall pass and be distributed as if this Act had not passed. 21. The word " contract " in this Act shall include the acceptance of lnterpreta> any trust, or of the ofi&ce of executrix or administratrix, and the provisions "Contract" II 274 MABBIED WOMEN'S PROPERTY ACT. r of this Act as to liabilities of married women shall extend to all liabilities by reason of any breach of trust or devastavit committed by a married woman being a trustee or executrix or administratrix either before or after her marriage, and her husband shall not be subject to such liabilities unless he has acted or intermeddled in the trust or administration. The word " property " in this Act includes a thing in action. 22. The Married Woman's Property Act is hereby repealed : Provided, that such repeal shall not affect any act done or right acquired while the said Act was in force, or any right or liability of any husband or wife mar- ried before the commencement of this Act, to sue or be sued under the pro- visions of the said repealed Act, for or in respect of any debt, contract, wrong, or other matter or thing whatsoever, for or in respect of which any such right or liability shall have accrued to or against such husband or wife before the oo^^imencement of this Act ; that part of section 3 of The Mar- ried Woman's Real Estate Act, which follows the words " feme sole " in the tenth line ; also sections numbered from 4 to 12 inclusive, and that part of section 6 of the Revised Statute respecting Dower which follows the word ** dower " in the fourth line, are also repealed. 23. The date of the commencement of this Act shall be the first of July, 1884. "Property" B. 8. 0. 0. 125; B.S.(>. c. 12G, B. (in part) and R. S. O. c. 127, 8. 3 (in part) and B8. 4-12 repealed. Com- inence- ment of Act. ii < if h i » ¥': III ^^BB^t^ aril ' ; H 1^ IP fS B' j w ■b }, ^^^B i^^^H ^^^^^R i^^B ; ! ; J^^Hi DIVISION COURT TARIFF, 1884, 275 lities rried I or iities The "Property" J.J B. S. O. c. """'laS; R.8.(). the «• 126, 8. 6 (in part) nar- and R. 8. O. c. 127, B. » pro- (in part) . and 88. 4-12 rao'i repealed. any wife Ifar- " in that the jt of Com- mence- ment of Act. NEW RULES, TARIFF OF FEES, FORMS AND ORDERS, WHICH GAME INTO FORCE ON THE FIRST DAY OF JANUARY, 1885. We, the undersigned, " the Board of County Judges," acting under and in pursuance of the powers vested in us by the Division Courts Act, have framed the following additional Rules and Orders to be in force from and after the first day of January, A. D. 1885, until otherwise ordered ; And we do certify the same under the provisions of the 239th section of the said the Division Courts Act accordingly. RULES. No. 181.— From and after the first day of January, 1885, Rule No. 171, of the additional Rules and Orders of the 'iSth day of November, 1879, and Form 129, and Schedule of Clerks' Fees (Form 130), and Schedule of Bailiffs' Fees, (Form 131), shall be rescinded ; and the fees set forth in the tariff hereto annexed, marked Schedule of Clerks' Fees (Form 183) and Schedule of Bailiffs' Fees (Form 134), shall be the fees to be received by tho several Clerks and Bailiffs of Division Courts in Ontario for and in relation to the duties and services to be performed by them as officers of the said Courts, and shall be in lieu of all other fees heretofore receivable. No. 182. —Rule No. 179 and Form 129 are hereby rescinded from and after the said first day of January, 1885, and Form No. 132 is substituted for the said Form No. 129. No. 183.— Rule No. 178 is hereby amended by substituting for the words and figures " Form 129," the words and figures " Form 132." No. 184.— All summary applications to a Judge in Chambers other than applications for new trials under Rule No. 142, may be made on notice or by summons. 276 p ■ C:;:!* 1"' SSitr '■' 1- >«'; «'• 'i «r- : «M.. i:;V « 1^.1 Ik m hi r . 1.. t Ik . DIVISION COURT TARIFF, 1884. FORMS OF BILLS OF COSTS. FORM 132. Bill of Costs upon a claim, for say 920 up to and inoluding judgment entered by the Clerk upon special summons, ao notice of defence being given. Olerk't Fees. Receiving claim, numbering and entering in Procedure Book. . . 90 16 Issuing Summons with necessary notices and warnings thereon. 40 . Copy of summons, including all notices and warnings thereon . . 20 Receiving and entering Bailiff's return to summons 16 Affidavit of service and administering oath to the deponent 26 Notice to Plaintiff, when defendant has failed to give notice of defence, ISc. ; postage and registration 6c 20 Entering final judgment by the Clerk 60 Total Clerk's fees 91 86 Bailiff's Fees. Service of summons 90 30 Return of service and attending Clerk's office to make necessary affidavit 16 Total Bailiff's fees 46 Total costs - 92 30 Taxed this day of 18 . CUrk. I fjvt Bill of Costs upon claim for say, 960.00, defended, cause tried, and judgment entered for plaintiff with costs : Clerk's Fees. Receiving claim, <&c «0 16 Issuing summons, t&c 50 Copy of summons, &c 20 Receiving and entering Bailiff's return, &e 16 DIVISION COURT TARIFF, 1H84. 277 Affidavit of Berviuf, &o 90 26 Entering imd noting defence, <&o., in Proeedare Book 26 SnbprBna to witness 16 Three copies 16 Notice of defence, <&c., to plaintiff, and mailing sanae, 16c; postage and registration, 6o 20 Recording and entering judgment rendered at the hearing 60 Total Clerk's Fees . »2 60 Bailiff's Feen. Service of summons, Ao 90 40 Attending to return, &e 16 Service of subpoena (3 witnesses) 46 Galling parties and their witnesses 16 Total Bailiff's fees 1 16 Total costs 98 66 Taxed this day of 18 . Clerk. N. B.— Mileage and fees to witnesses, if any, to be added. FORM 133. SCHEDULE O^ CLERKS' FEES. 1. Receiving claim, numbering and entering in Procedure Book 90 16 (This item to apply to entering in the procedure book a tran- script of judgment from another court, but not an entry made for the issue of a judgment summons.) 2. Issuing summons with necessary notices and warnings thereon, or judgnient summons (as provided in the forms), in all. Where claim does not exceed 920 40 " " exceeds 920 and does not exceed 960 60 •• , >• exceeds 960 and does not exceed 9100 , 60 " " exceed89100 100 ? ^ m ■ I? I' ^^1 ( A. J : -I I r tKHRfr II Ik • .. ■ \ 278 DIVISION COURT TARIFF, 1884. [N. B. — In replevin and interpleader Buits the value of goods to regulate the fee.] 8, Copy of summons, including all notices and warnings thereon . . . |0 30 4. Copy of claim (including particulars), when not furnished by plaintiff (to be paid by the plainti3) 20 6. Copy of set-off (including particulars), when not famished by the defendant (to be paid by the defendant) 20 6. Receiving and entering Bailiff's return to any summons, writ or warrant issued under the seal of the Court (except summons to witness and return to summons, or papers from another Divi- sion) 1b 7. Entering and noting every defence or notice of admission in Pro- cedure Book 86 (To be paid in the first instance by the defendant or other per- son entering it— but it may be afterwards taxed against the plain- tiff should costs be given against him.) 8. Taking confession of judgment 10 (This does not include affidavit and oath, chargeable under itemQ.) 9. Every necessary affidavit, if actually prepared by the Clerk, and administering oath to the deponent 2A 10. Copies of papers for which no fee is already provided — neces- sarily required for service or transmission to the Judge — each . . 10 11. Every notice of defence or admission entered, or other notice re- quired to be given by the Clerk to any party to a cause or pro- ceeding, or to the Judge in respect to ijumishee.] u DIVISION COURT TARIFF, 18R4. 279 14. Subpoena to witnesH 90 16 (The Subptuna may include any number of names therein, and only one original 8ubp«nna shall be taxed, except the Judge other- wise orders. ) 16. For every copy of Subpu«na required fur service. 05 IC. Summons for enoh juryman, when called by the parties 10 (Only 25 cts. in nil is to be allowed for returning a Judge's jury.) 17. Every order of reference or order for adjournment made at hear- ing and every order requiring the signature of the Judge, and entering the same 26 (Any warning necessary with order, «. g., the warning in form 42, forms part of the order.) 15. Transcript of judgment (under sections 161 or 165) 26 10. Every writ of execution, warrant of attachment, or warrant for itrrest of delinquent and delivering same to Bailiff. 50 20. Renewal of every writ of execution when ordered by the judg- ment creditor ,. 15 21. Every bond when necessary and prepared by the Clerk (inclu- ding affidavit of justification) 50 22. For necessary entries in the debt attachment book in each case (in »U) 20 23. Transmitting transcript of judgment ; or transmitting papers for service to another division, or to Judge on application to him, including necessary entries, but not postage 25 24. Receiving papers from another division for service, entering the same, handing to the Bailiff, receiving and entering his return, and transmitting the same (if return made promptly, not otherwise) 30 (This fee does not include a charge for receiving transcript of judgment, for which a fee of 16 cents is taxable under item 1.) 25. Search by person not party to the suit or proceeding, to be paid by the applicant, 10c. ; search by party to the suit or proceeding where service is over one year old 10 (No fee is chargeable for search to a party to the suit or pro- ceeding, if the same is not over one year old.) 2G. Taxing costs in defended suits 26 281) DIVISION COURT TARIFF, 18S4. r liii- FORM 134. SCHEDULE OF BAILIFFS' FEES. 1. Service of summons, writ or warrant, issued under the seal of the Court, or Judge's summons on each person (except summons to witness and summons to juryman) : Where claim does not exceed $20 90 30 " " exceeds $20 and does not exceed $60 40 " " " HO and does not exceed $100 50 " " " $100 76 [In interpleader suits the value of the goods to regulnte the fee ] 2. For every return as to service of summons, attending at the Clerk's office and making the necessary affidavit (as provided by Rule 90) 16 3. Service of summons on witness or juryman, or service of notice.. 16 4. Taking confession of judgment and attending to prove 10 5. For calling parties and their witnesses at the sittings of the Court in every defended case, as provided by Rule 91, amended by Rule 168 ; . 16 6. Enforcing every writ of execution, or summons in replevin, or warrant of attachment, or warrant against the body, — each Where claim does not exceed $20 50 '< " exceeds $20 and does not exceed $60 76 " " " $60 100 (Executing summons in replevin, includes service on defendant. The value of the goods to regulate the amount of the fee.) 7. Every mile necessarily travelled to serve summons or process, or other necessary papers, or in going to seize on attachment, or in going to seize on a writ of execution, where money made or case settled after levy I'J (in no case is mileage to be allowed for a greater distance than from the Clerk's office to the place of service or seizure. ) 8. Mileage to arrest delinquent under a warrant to be at 12 cents per mile, but for carrying delinij[uent to prison, including all expenses and assistance, per mile 20 9. Every schedule of property seized, attached or replevied, inclu- ding affidavit of appraisal, when necessary, DIVISION COURT TARIFF, 1884. 281 Not exceeding »20 30 Exceeding 920 and not exceeding $60 60 Exceeding 960 75 10. Every bond when neoeseary, when prepared by the Bailiff, (inclu- ding affidavit of justification. ) 50 11. Every notice of sale not exceeding three, under execution or under attachment, each 16 12. There shall be allowed to the BaiU£f, for removing or retaining property seized under executian or attached, reasonable and ne- cessary disbursements and allowances, to be first settled by the Clerk, subject to appeal to the Judge 13. There shall be allowed to the Bailiff five per cent, upon the amount realized from the sale of property under any execution, but such percentage not to apply to any overplus thereon (But if execution be satisfied in whole or in part after seizure and before sale, the Bailiff to be entitled to charge and receive three per cent, on the amount realized. ) S. J. Jones, County Judge. County of Brant. D. J. Hughes, County Judge, Elgin. James Damiell, County Judge, Prescott and Russell, J. S. Sinclair, County Judge, Wentworth. Approved ISth December, 1884. ADAM WILSON, C.J., Q.B.U. • M. C. CAMERON, C.J., C.P. THOMAS GALT, J. JOHN E. ROSE, J. JJ 282 FORMS. FORMS. %: >:■ ii '. l\ I r ft" k.'. FORM OF ORDER UNDER SECTIONS 144 AND 146 OF THE DIVISION COURTS ACT, WHERE A THIRD PARTY CLAIMS THE DEBT GARNISHED. In the Division Court for the County of Bbtween a. B., Primary Creditor, and C. D., Primary Debtor, and E. F., Oarnishee. Upon reading the summons issued in this cause, and upon hearing the primttry creditor [the primary debtor] and the garnishee : It is ordered that the further hearing of the parties to the said summons herein do stand adjourned until the day of A. D. 188 at [or "the next sittings of this Court,"] and that G. H., claiming to be entitled to the said debt, the primary creditor, the primary debtor, and the garnishee, their solicitors or agents, attend before the presiding Judge at the next sittings of this Court, at on the day of A. D. 188 at ten o'clock in the forenoon of the same day {or such other time as may be appointed), and state the nature and particulars of their respective claims to such debt, and maintain or relinquish the same, and abide by such order as may by the said presiding Judge be made herein, and therefor that all necessary amendments may be made in the proceedings herein. Dated, etc. Judge. [In a ease of Cowan v. Carlill, 79 Law Times (Journal) 408, it was held that where nothing could be made on execution against a garnishee, the latter could be brought up under the Judicature Act as a ^^ debtor," and examined as to what debts were owing to him and tohat property or means he had of satisfying the debt.] FOEMS. 283 FORM OF JUDGMENT SUMMONS AFTER ENTRY OF JUDGMENT BY THE CLERK. SnUHONS TO DBFENDANT AFTEB JDDOHBNT. In the Division Court in the County of . No. A. D. 18 [Seal.] Between A. B., Plaintiff, and C. D., Defendant. To the ahove named defendant : Whereas, on the day of A. D. 18 the plaintiff duly recovered judgment against you in said Court for $ for deht, and $ for costs of suit, which amounts remain unsatisfied {or, if part paid, ''oi which the sum of 9 remains unsatisfied"). You are therefore, etc. (the name as at page 293 of Sinclair's D. G. Act, Form 28). FORM OF SUMMONS TO DEFENDANT AFTER DEFAULT, WHERE JUDGMENT ENTERED BY THE CLERK. In the Division Court in the County of No. A. D. 18 [Seal.] Whereas, on the Between day of 18 Plaintiff, and Defendant, the above named plaintiff obtained a judgment against you for the sum of 9 for debt, and 9 costs, to be paid , and which said judgment remains unsatis- fied {or, if part paid, " of which the sum of 9 remains unsatisfied ") ; And whereas, etc. {the same as at page 293 of Sinclair's D. C. Act, Form 29). FORM OF ADJUDICATION ON INTERPLEADER WHERE DAMAGES CLAIMED AND AWARDED UNDER SECTION 6 OF THE D. C. ACT, 1885. Adjudged, that the goods [or, the goods, chattels and moneys, or proceeds of the goods, etc. (a» the case may be),] mentioned in the (within interpleader summons [if only for a part of the goods, etc., add the words, "hereinafter mentioned, that is to say," {here enumerate them)] are the property of E. F. {the claimant). It is also adjudged that the said E. F. {the claimant) has sustained 284 FORMS. m Is J 1'^ -V r damages arising, or capable of arising, out of the execution of the process by which said goods {or as the case may be) were taken in execution {or attached) to the amount of 9 and that the same is recoverable from and payable by A.. B. {the execution creditor, or L. M., the Bailiff), to the said E. F. (the claimant), and which said sum is hereby ordered to be paid forthwith {or at the case may be). It is further ordered that the costs of the said interpleader proceeding and of the said claim for damages be paid by (here insert such order at the Judge may have made at to costs in each of these two proeeedingi), in days. ISee ante paget 136-138, at to the subject generally, and at to the necetiity for preferring claim for damages in interpleader proceedings tee page 159 ante.] FORM OF ADJUDICATION ON INTERPLEADER WHERE DAMAGES CLAIMED UNDER SECTION 6 OF THE D. C. ACT, 1886, AND DISALLOWED. Adjudged, that the goods [or, the goods, chattels and moneys, or proceeds of the goods, etc. (as the case may be),] mentioned in the (within) interpleader summons [if only for a part of the goods, etc., add the words, "hereinafter mentioned, that is to say," (here enumerate them) are the property of E. F. (the claimant). It is also adjudged that the said E. F. (the claimant,) has not sus- tained any damages arising, or capable of arising, out of the execution of the process by which said goods (or as the case may be) were taken in execution (or attached). It is further ordeied that the costs of the said interpleader proceeding and of the claim for damages be paid by (here insert such order as th£ Judge may have made as to costs in each of these two proceedings), in days. [As to costs see ante pages 151-156.] m ■t\ ■.-» INDEX Abamdomhbnt of Excess — not a release of amount abandoned till after recovery of judg- ment, 31 Abscomdino Debtor — judgment against, cannot be given without claim proved, 66 proceedings against, not subject of speedy judgment under sec. 4, 84 AccouMT Stated — what constitutes, 53, 64 does not extinguish previous debt, 64 not conclusive between the parties, 66, 61 what is evidence of, 64, 56, 67, 68, 69, 60, 61 Act of Pabluuent — See Statute • AOJOUBNUEMT — case cannot be adjourned by consent of parties without consent of judge, 143 AduiBmIOM of Debt — an account rendered and unreplied to does not necessarily constitute an, 64 Affidavit — Of Service of Summons :— form of, 42 judge could receive defective, 43 In Division Court Proceedings : — can be taken before notary public, 48 by whom taken out of Ontario, 43 In Assignment for Benefit of Creditors : — before rvhom to be sworn, 262 Afteb Acquired Property — bill of sale covering, gives merely equitable interest in, 147 Agent — Of Foreign Corporation: — for service of process, etc. who is— (1) in the case of a railway co., ail lii i'l 286 AOBNT- INDEX. ■Continued. (2) in the case of a telegraph co., 212 (3) in the case of an express co., 212 a female, married or single, ii minor or an alien could be, 216 form of affidavit of service of summons on, 21G Appeal- prohibition will not be granted pending, 27 from judge's decision as to costs, must be made within the time limited for new trial, 34 no right of, in actions for unliquidated damages, 194 lies where the sum in dispute upon the appeal exceeds $100 exclusive of costs, 194 no appeal from the decision of a judge in a garnishee proceeding in the Division Court, 195 allowed in an interpleader issue if money claimed or goods valued at over SlOU, 196 or if parties consent, 195 right of must be given by express enactment, 195 from conviction of owner of dog injuring sheep, to be made to Division Court, 266 Applications — all summary applications to a Judge in Chambers, other than applications for new trials, may be made on notice or by summons, 275 Assignment for Benefit of Creditors — equity will not restrain an, by married woman, 75 does not require registration, 170 gifts, transfers, etc., made by insolvents, which defeat or pre- judice creditors, void, 256 payment of money to a creditor within one month before the execution of, void as against the assignment, 257 but not as against persons claiming in any other way, 257 the debtor may, with the consent of certain creditors, make to some other person than the sheriff, 257 form of, 257 how claims to rank, 257 appointment of assignee, 257 rights of assignee, 258 rights of creditors to cause proceedings for the benefit of the estate to be taken, 268 INDEX. 287 time $100 iding ;oods le to than 56 or Assignment fou Benefit of Creditors— Continued. recovery of proceeds when property which was subject of gift, etc., sold, 258 takes precedence of judgments and executions, 258 amendment of, by court, 258 remuneration of assignee, 259 notice of, to be published, 259 copy to be registered, 259 penalty for neglecting publication, 259 judge may make order compelling publication and registration, 2G0 omission to publish or register does not invalidate, 260 assignee to call meeting of creditors, 2()0 voting at meeting, 260 scale of votes, 260 proof of claim under, 261 the law of set-off shall apply to claims made against the estate, 261 before whom affidavits may be sworn, 262 wages or salaries have priority in, 263 Bailees — B pre- I the 67 ce to the R. S. 0., c. 54, s. 24, relating to interpleader by, does not apply to the Division Courts, 178 Bailiff — See Officer — not entitled to fees for seizing goods belonging to stranger, 148 cannot depute another person to execute a writ of execution for him, 148 except under 45 Vic, c. 7, s. 4, 148 seizing goods under a writ of execution is responsible in dam- ages if he takes the goods of the wrong person, 173, 174 has no right to seize the goods of a stranger in the possession of the execution debtor, 174, 175 selling goods in the possession of the execution debtor as the ostensible owner but which had been hired by him, not liable in damages for the wrongful sale, 176 unless owner prevented by the act of the bailiff from recovering possession of his goods, 176 schedule of fees of, 277 288 INDEX. M ; <»•■. K Ik... ■ Biiiij OF Costs — form of, 276 Bill of Sale — ^ covering after acquired property gives merely equitable interest in, 147 of future crops, 170 of growing crops does not require registration, 170 BoABDiNo-HonsB Keeper — who is, within the meaning of B. S. 0., o. 147, 240 Garbiebb — B. S. 0., c. 64, s. 24, relating to interpleader by, does not apply to the Division Courts, 178 "Carries on Business" — meaning of, 213 Case— cannot be adjourned by consent of parties without consent of Judge, 143 Certiorari, Writ of — by what court granted, 24 Chanoebt Division — power of to grant yrrit of certiorari, 24 Chattel Mobtoaqe — See Bill of Sale Children — a married woman may obtain protection for earnings of her minor, 68, 272 proceedings on obtaining such order, 272, 273 Clebx of Division Court — See Officer must notify plaintiff forthwith, if defendant disputes jurisdiction, 19 omitting to give notice liable for damage, 20 but neither party's rights in the suit would be prejudiced by such omission, 20 refusing to perform duty may be compelled by mandamua, 21 must send Judge information to make return of judgment debtors committed, 38 information must be in writing, 39 and may be sent by post, 40 schedule of fees of, 277 INDEX. 289 rest •ply ; of her ion, I by tors COMUIBSION — could issue to take evidence in interpleader suits, 169 Consent — case cannot be adjourned by consent of parties without consent of judge, 143 when ^'^(iveu to making of order cannot be arbitrarily withdrawn, 210 OoNBTBOCTioN OF STATUTES— See Statutes — rules for, 2, 6, 8, 9, 14, 16 COBPOBATION — service on, 109 meaning of chief place of business, 218 where they carry on business, 213, 214 could not sue as common informer without being empowered by statute so to do, 216 Foreign — See Agent qf Foreign Corporation :— service of process, etc., on, how effected, 211, 214 agent of, may maintain action of replevin in his own name, 236 Costs— judge of court from which case transferred no power over costs of court to which transfer made, 26 appeal from judge's decision as to, must be made within time limited for application for new trial, 34 if defendant does not appear at trial a plaintiff though not called on to prove his case, may tax costs of preparing for trial, 66 rale as to, on examination of defendant on application for judgment, 126 usually follow result, 161 when each party succeeds as to part, costs apportioned, 162 question of, cannot be considered before disposal of issue, 162 except where statute otherwise declares, if no order made each party must pay his own costs, 185 if either jparty wants costs he should ask for them, 188 a certificate for, is necessary in an action of replevin in the High Court and County Court, 243 but not in the Division Court, 243 " Costs in the Cause " — meaning of, 188 KK 290 INDEX. |t| ;:; VV': mm W. t . t, ■ ■ |«tMI;} " Costs to Abide the Event " — meaning of, 183, 184, 185 Coumteb-Glaiu— plaintiff cannot by discontinuing action prevent defendant from recovering on, 26 is of comparatively recent creation, 192 character of, 192 action for work done, counter-claim for negligence in doing it, good, 192 a third party who has been brought into a suit cannot counter- claim against the original plaintiff, 192 a defendant cannot counter-claim for a debt due by the plaintiff and another party, 192 where a Go. is being wound up, in an action for calls by liquida- tor, counter-claim for damages against Co. not allowed, 193 action of ejectment, counter-claim for trespass good, 193 action by the purchaser of land against the vendor for return of the deposit, 194 defendant has right to, in Division Court, 195 COUBT-BOOM — right of a municipality providing to recover from any other municipality, within the division for which such court is held, a share of the cost of providing, 218 total cost of providing shall be deemed to be 95 per day, 219 Cbeditobs' Belief Act, 1880 — provisions of Sec. 21 apply to garnishment proceedings in the Division Court, 254 CusxoDiA Leois — should bailiff temporarily withdraw, goods no longer in, 144 goods in, cannot be seized, 171 D Damaoe-Fbasant — meaning of, 231 Damages Abisimq in Consequence of Seizube— «See Interpleader and Seizure. Debt — cannot be sued for till due, 52 what it is, 83 INDEX. 291 Defence — time for delivering, does not run between time when notice of motion for judgment given, and when disposed of, 102 right of one defendant to enter, for co-defendants, 107 Defendant — if impossible for, to give notice disputing jurisdiction, not debarred >.( his right, 20 Dibcontinoance — plaintiff cannot prevent recovery on counter-claim by, 26 DiBTBBBS — a landlord cannot purchase goods sold under his own warrant, 171 unless the tenant consented to the sale, 171 seizure of goods which have been the subject of an illegal, 171 , 172, 173 irregular, followed by sale of gcods distrained would not affect the title of the purchaser, 172 but a sale by a bailiff for his fees after payment or tender of rent to the landlord would give no title, 172 nor would a sale after surrender or other determination of the term, 172 • an illegal seizure of goods would not prevent the landlord's bailiff from afterwards executing a legal warrant, 176 DOCDMENTS— production of — see production defined, 116 judge may apportion damage between owners of, injuring sheep, 265 appeals from conviction to be made to Division Court, 266 E Ehplotees — wages or salaries of, have priority in assignment for benefit of creditors, 263 • . and in winding up proceedings under 41 Vic, c. £, 263 rights of, of execution debtors to wages or salary, 263 Enlaboement— (Sist Adjournment Estoppel— binding against execution debtor, not binding on execution creditor or bailiff, 146 Dogs — 293 INDKX. ;i -i >■ r : -; fv " Ik.. . •»• • • » '.i *• .1 s EviDENCB— all entries which a clerk ia required by law to make in his procedure book when signed by him are, 208 Examination — Of Defendant : judge may order defendant to be examined on motion for judg- ment, 80 how order for examination obtained, 111 examination should take place daring pendency of application for judgment, 112 counsel for both plainti£F and defendant should have an oppor- tunity of being present, 112 may be taken before such person as judge thinks fit, 112 defendant may be ordered to produce books, documents, etc., 112 proceedings for, could not be taken in Division Oonrtif defendant resided beyond jurisdiction, 118 defendant could not be committed for disobedience of order, 118 but should defendant refuse to be examined judge would be ' justified in presuming against meritorious character of his defence, 114 no provision in statute for examination of officer of corporation, 114 sufficient notice of examination should be given defendant, 115 irrelevant questions on, 116 defendant entitled to conduct money, 126 rule as to costs, 126 form of order for, 130 , Execution, Writ of — bailiff cannot depute another person to execute for him, 148 except under 46 Vic, c. 7, s. 4, 148 goods of a testator cannot be seized under, against the executor personally, 176 assignment for benefit of creditors takes precedence of, 268 Execution Creditor — if prejudiced by bailiff's abandoning seizure bailiff would be liable, 146 not authorizing seizure need not contest interpleader issue, 160 and not liable for bailiff's costs unless he gave bailiff special directions to seize, 161, 162 INDEX. 293 hia udg- ktion »por- ,112 dant 118 i be )r of tion, 116 mtor 1 be 160 «oiAl Executor— Rooda of a testator oannot be seized nnder an exeontion against tbe executor personally, 175 F FoRBioN GoRFORATiON— iSe« Corporation, Foreign Forms— notice disputing jurisdiction, 22 affidavit of service of summons, 42 judgment against married woman, 75 affidavit for judgment under section 4, 95 notice of motion for judgment under section 4, 109 order for final judgment under section 4, 127 order for leave tc defend unconditionally, 128 order for leave to defend on payment into court, 128 order for leave to defend as to part on payment into court and as to residue unconditionally, 129 order for the defendant's examination and prodnotlon of books, etc., 130 affidavit of service of summons on an "gent, 216 replevin bond, 262 order to bring third parties before court in garnishment cases, 282 judgment summons where judgment entered by clerk, 288 judgment summons after default where judgment entered by clerk, 288 adjudication under Act of 1886 in interpleader oases where damages awarded, 288 adjudication where damages not awarded, 284 Forthwith — meaning of, in statute, 19 PoTORE Crops— bill of sale of, 170 G Garnishee — nothing but payment by compulsion of law would be an answer to an action by original creditor, 48 may be examined as a judgment debtor, 282 Garm:shhemt — part of a larger sum beyond the jurisdiotion of the Division Court can be garnished in that court, 29 ■p^ 294 INDEX. lit J 1^ -1 It r ■ t*:: -.;> Li^ Oarnishhent — Continued. proceedinRs uot subject of speedy judgment under seo. 4, 84 DO appeal from decision of judge in garnishment proceedings, 195 a plaintiff who attaches a debt in the Division Court before judgment deemed to do so for the common benefit of himself and all creditors entitled under Creditors' Belief Act, 25i if money is paid to the garnishor directly, or paid into court and paid out to him by the clerk, the sheriff may, if the case is within the Creditors' Belief Act, sue for and recover the amount, 264 the sheriff has the same right to any money paid into the hands of a Division Court Clerk under garnishment process as he would have under sec. 16 of the Absconding Debtors' Act, 264 Gemsbal Sessions — judge could not preside at Court of, in any County but his own, 139 Gbowimo Crops — are subject of seizure and sale on Division Court execution, 170 bill of sale of, does not require registration, 170 HOLIDAT- notice could be filed on, 19 service of papers on, good, 102 Imhate — definition of, 46 "In Open Court" — meaning of, 62 Inspector — may institute and hold enquiries as to conduct of clerks and bailiffs, 223 and summon witnesses thereon, 223 Intent — Of Statute— <9«e Statute often gives meaning to words otherwise obscure and doubtful, 8 governs construction of statute, 8 INDEX. 295 Intebbst — recoverable in Division Court on note over $100, 29 Imtbbplbadbb — County Judge to adjudicate upon the claim in, 136 and also to adjudicate between the parties and bailiff in respect of damages arising out of execution of process, 136, 158 even if goods have been sold by the bailiff, 144 Judge may grant new trial on, if good grounds shown, 137 unless new trial moved for decision of Judge final, 140 general law of, 140 bailiff paying money to execution creditor after notice of claim, not entitled to, 141 practice, on claim to goods being made, 141 bailiff's costs allowed if claim dismissed, 141 but not against execution creditor if costs not retained, 141 bailiff is bound to interplead whether or not security given him for costs, 142 issue to be tried on, 142 what it is necessary for claimant to show, 142 execution creditors in Division Court should be made parties to interpleader proceedings in High Court, 142 equitable as well as legal rights must be recognized by Court, 142 issue of summons does not remove case from control of Court, 143 an action of trespass can be brought pending issue, 143 where more goods seized thar claimed, claimant must specify particular goods which he claims, 143 trustees need not be parties to issue if cestui que trust in possession of goods by their authority, 143 if bailiff should temporarily withdraw from possession, gocds no longer in custody of the law, 144 bailiff must keep possession of goods, 146 if execution creditor prejudiced by bailiff's abandoning seizure, bailiff would be liable, 146 execution creditor may claim goods which execution debtor has disabled himself from claiming, 146 execution creditor not having authorized seizure, not bound to contest issue, 160 and not liable for bailiff's costs, unless he gave bailiff special directions to seize, 161, 162 wyf^^^mm 296 INDEX. h ii } ,4! 1'^ iil: i ■4i r- .■ t. : Oh I kit .-I »;; ..; : i| Intebpleadeb — Continued. no right to jary in interpleaider matters in oases for damages arising oat of execution of process, etc., 148, 149, 160 either party may be ordered to give security for costs, 153 party having claim to .amages must assert it in interpleader issue, 158 person taking benefit of order mast take the burden of those parts of the order unfavorable to him, 159 when summons issued, actions brought in respect of claim stayed, 160 effect of, 160 actions for damages arising in consequence of seizure, 161, 162 execution creditor simply placing execution in bailiff's hands not liable for damage sustained in consequence of seizure, 162 damages sustained subsequent to issue and service of interpleader summons not recoverable from bailiff, 163 interpleader proceedings no protection to execution creditor who had directed the seizure, 164 execution creditor by contesting interpleader issue does not thereby render himself liable for the seizure, 164 nor would claimant by contesting interpleader issue waive his right to damages, 164 creditor who instructed baiUff to seize not responsible for damage after service of the interpleader summons, 164 a married woman may maintain a claim on, 1 68 provisions of interpleader acts do not apply where Grown is interested, 168 but do to foreigners residing abroad, 168 commission could issue to take evidence iu interpleader suits, 169 judgment or execution need not be proved at trial, 169 property stolen from claimant, 169 growing crops can be subject of, 170 if claimant has possession of goods that is sufficient where bailiff has no right to take them, 170 lien by claimant sufficient, 170 goods exempt from distress for rent could not be the subject of a valid sale, 171 nor could goods in the custody of the law, 171 INDEX. 297 lages .60 9ader those Blaim 162 s not zare, eader who i not e his mage vn is B,169 xrhere it of a Imtebfleadeb — Continued. a purchaser relying on such sale could not succeed as against the owner of the goods, 171 claimant setting up title under distress of a tenant's goods off the demised premises must show a fraudulent removal to prevent a distress, 171 but not if there was an inception of the distress before removal, 172 a sale of a stranger's goods distrained off the demised premises cannot be sustained, 172 nor of the goods of lodgers or boarders etempt under 43 Vic, c. 16, 172 neither party could sustain his claim ander distress and sale of goods of a guest at an inn, 173 a claim to goods cannot be sustained where such claim is founded on a mere trespass, 173 or where goods are oxempt from distress, 173 can be had on a claim being made by a landlord for rent, 176 R. S. 0., 0. 54, s. 24, relating to interpleader by bailees and carriers does not apply to the Division Courts, 178 nor does 44 Vic, o. 7, 178 any one of the parties may apply for a new trial, 178 the adjudication on the question of damages would be the subject of an application for new trial, 179 Judge has power to adjudicate upon and award damages even though the amount of the damages should be beyond the jurisdiction of thu Division Court, 189 in respect of any damages adjudicated upon, the parties have the same rights of defence and counter-claim and appeal as they would have if an action or suit within the jurisdic- tion of the Division Court had been brought to recover Buch damages, 189, 191 appeal allowed in, if money claimed or goods valued at over »100, 195 or if parties consent, 195 I»T>T.?ri!:TATTON OP STATUTES — See Statutes. rules for, 5, 6, 8 LL 298 INDEX. I^i I Joint Tenant — cannot maintain replevin against his co-tenant for taking the common property, 250 JCDQE — who may act as, 138 of one County may hold Division Court in another County, 139 but could not preside at Court of General Sessions of any County but his own, 139. could not reverse, change, or alter his decision after the time had elapsed, 140 case cannot be adjourned by consent of parties without consent of, 143 authority conferrred on, must be exercised, 168 to adjudicate between parties and bailiff in respect of damages arising out of execution of process, 158 JnnoE IN Chambers — all summary applications to, other than applications for new trials, may be made on notice or by summons, 275 JCDOMENT — cannot be given on motion for new trial, 25, 179, 187 acquiescence to, bar to prohibition, 30 may be given against defendant if he does not appear at trial without plaintiff's claim being proved, 41 and plaintiff may tax costs of preparing for trial, 65 Clerk should enter on a special summons without production of security on which action brought, 52 form of, against married woman in Division Court, 75 assignment for benefit of creditors takes precedence of, 258 Under sec. 4 : — if defendant disputes claim, plaintiff may apply for speedy judgment on affidavit, 78 if defence applies only to part of claim plaintiff entitled to judgment for duch part as defence does not apply to, 80 if one defendant only has a good defence plaintiff entitled to judgment against other defendants, 81 provisions of Statute respecting judgment on motion for, rfctro' spective, 82 garnishee proceedings not subject of speedy, 84 nor proceedings against an absconding debtor, 84 INDEX. 299 the .39 ODB ime lent ges lew rial of to 80 led Judgment— Continued. cannot be granted where a defendant files a bona fide notice dis- puting jurisdiction, 84, 85, 86, 87, 88 but may be granted if Judge considers notice fraudulent or fictitious, 88 plaintiff may apply for, even though dispute filed by leave of Judge after time has expired, 89 application for, must be made on affidavit, 90 what the affidavit should contain, 92, 93 form of affidavit, 95 plaintiff must serve defendant with notice of motion for, 96 service need not be personal, 97 what is sufficient service, 99, 100, 101, 102, 103, 104 notice can be given by solicitor or agent for plaintiff, 103 substitutional service under sec. 62 D. C. Act, 1880, not allowable, 103, 109 an agent entering dispute not thereby entitled to receive service of notice of motion, 104, 105, 106 person assuming authority to accept service of notice of motion responsible for warranty that he possessed such authority, 107 but defendant not prejudiced by unauthorized act of solicitor or agent, 107 if application for, fails because affidavit defective a second ap- plication can be made on fresh material, 108 defendant by appearing and arguing question without objection waives irregularities in notice of motion, 108 notice must be served not less than two clear days before return, 108 form of notice of motion for, 109 form of order for final judgment, 127 form of order for leave to defend unconditionally, 128 form of order for leave to defend on payment into Court, 128 form of order for leave to defend as to part on payment into Court and as to residue unconditionally, 129 JanoMEMT Debtors — clerk must send Judge information to make return of, commit- ted, 38 garnishee may be examined as a, 282 300 INDEX. fen m- - JcoaMENT SnMHONS — married woman subject to, 76 Jui>icATnRB Act— provisions of, as to service on partnerships, not applicable to Division Courts, 45 in some respects the action of replevin is within, 243 •TUNIOB JCDOK — hi>.t '>me power to appoint a barrister as Deputy Judge as Ju'lge has, 139 JcBisDiCTiOM— iS^ei! Notice Disputing Juritdiction. if defendant disputes. Clerk must notify plainti£f forthwith, 19 notarial fees on note may be recovered though amount over »100, 27 when contract by letter, where action lies, 28, 80. Division Court has no jurisdiction to try question of warranty where damages claimed exceed 9100, 28 for assessment over 9100 on premium note, 28 interest on note over 9100 recoverable, 29 proof of damage beyond, does not oust Court if amount claimed within jurisdiction, 29 sum originally beyond jurisdiction, if reduced by payment to an amount not exceeding 9200 and ascertained by signa- ture of the defendant can be sued for in the Division Court, 29 where surety paid ifote over 9100 Court had no, 29 drawer of cheque drawn in one division upon bank in another division cannot be sued in division where cheque was drawn, 30 residence of defendant must be bona fide to give, 30, 31 primary creditor suing in a division in which no jurisdiction except in garnishment proceeding must prove garnish- able debt, 30 claim for salary and claim for money paid can be sued in sepa- rate actions, 30 9200 and interest beyond, 3Q, 36 abandonment of excess prevents its recovery after judgment, 81 claim not exceeding 9100 ascertained by signature of defendant joined with open account not exceeding that sum, 82 action brought upon judgment of County Gonrt triable in Division Court, 84 INDEX. 301 Jdbisdicxion— Continued. where terms of tenancy in dispute, title to land not in question, 34 cause of action arises where contract made by testator and not where will proved, 35 action may be brought where debt made payable if aggregate amount exceeds 9100, 35 onus of proof on party objecting to jurisdiction, 36 claim not exceeding 9200 must be sued in Division Court if amount ascertained by signature of defendant at any time before action brought, 36 amount beyond, reduced by set-off, 37 speedy judgment under sec. 4 cannot be granted if defendant files bona fide notice disputing, 84, 85, 86, 87, 88 but may be granted if Judge considers notice fraudulent or fictitious, 88 party protesting against, may go on with case subject to protest, 144 matters in which the Division Courts have, 190, 191 where suits on premium notes brought, 264 JUBOBS — JCBT — twelve to be summoned for trial of actions required to be tried by a jury, 131, 133 summons to, to be served three days before Court, 131, 134 right to challenge, 134 certain persons exempted from serving as, 135 cases in which right to, exists, 132 notice to Clerk for, must be in writing, 133 where a party has complied with the terms necessary to entitle him to a jury. Judge no power to try issue without, 133, 144 nor to enter up judgment in opposition to their finding, 133 no trial by special jury in the Division Courts, 144 no right to, in interpleader matters in cases for damages arising out of execution of process, 148, 149, 150 Land— tide to, cannot be tried in an action of replevin, 248 but may incidentally arise therein, 250 302 INDEX. Landlord — cannot purchase goods sold under his own distress warrant, 171 unless the tenant consented to the sale, 171 Iaws— consist of two elements, 4 Leoislatcbe— 5ee Statutes. Lebsob — has no claim against officer seizing goods under execution against lessee if reversionary interest not prejudicially affected, 170 I- i I I It-, ; 1 M Mandaudb — Clerk of Division Court refusing to perform duty may be compelled by, 21 Mabqinal Notes — not part of Act, 11 Mabket Ovebt — purchaser cannot acquire title by purchase in, as against the tmo owner, 247 Mabbieo Woman — rights and liabilities of, 67 contracts entered into by, since 1st July, 1884, presumed to be with reference to her then or subsequently acquired property, 68 necessaries got by, for purposes of household presumed to have been got on credit of husband, 68 ante-nuptial contracts of, can be enforced, 68 may be an executrix or administratrix, 68, 271 may devise her property by will, 69 contracts entered into by, since 1st July, 1884, binds not only separate property which she is possessed of at date of contract but also all separate property which she may thereafter acquire, 69 but if contract entered into before Ist July, 1884, property acquired after date of contract cannot be made charge- able therewith, 69 contracts entered into by, since let July, ^6S4, deemed to be entered into with respect to her separate estate, unless contrary shewn, 70 i' INDEX. 303 171 uon ally be ima ) be ired lave )nly B of nay erty rge- > be less Mabbibd Woman— Continued. oan be sued for tort committed during marriage, 70 husband of, liable for her torts to extent of property belonging to his wife which he shall have acquired, 70 also liable to same extent for debts of wife contracted and for contracts entered into by her before marriage, 71 may contract with her own husband with respect to her separate estate, 72 oan sue or be sued alone on contracts entered into or torts committed before or since 1st July, 1884, 73 cannot sue her husband in tort except where it afFects her separate property, 74 husband of, may maintain action against, for money lent during marriage, 74 will of, made during coverture will not pass property acquired after coverture has come to an end, 74 equity will not restrain an assignment by, 75 form of judgment against in Division Court, 75 subject to the process of judgment summons, 76 could be served with a notice of motion as if she were a feme tole, 102 may hold and dispose of property as a, feme tole and without the intervention of a trustee, 267 investments in joint names of married women and others, 269 fraudulent investments by, with monies of husband, 269 remedies of, to protection and security of separate property, 269 husband liable for his wife's debts and other liabilities to a certain extent, 270 questions between husband and wife as to property to be decided in a summary way, 271 ' may obtain an order of protection for the earnings of her minor children, 272 proceedings on obtaining such order, 272, 273 how separate personal property of wife dying intestate to be distributed, 273 MOBTOAOEE — always bound to produce mortgage deed for inspection of mortgagor, 125 not in possession, not hable for any injury occasioned by the goods mortgaged, 170 ifT^" " 304 INDEX. i ! N N»w Tbial— judge no power to give judgment on motion for, 26, 179, 187 may be granted in interpleader oases, 187 nnlesB moved for within proper time, judge's decision irrevocable 178 any one of the parties to an interpleader issne may apply for, 178 eonrse of proceeding in application for, 179 application for, must be made within 14 days after the trial, 179 the day of the trial excluded, 179 should judge postpone his decision the 14 days would begin to run on the day after the delivery of his judgment, 179 should last day fall on Sunday the application should be complete the day before, 179 the absence, negligence or omission of the clerk would not prejudice the application, 179 application for, should show the grounds of application, 180 principle on which granted, 180 general rule as to granting, 180 seldom granted where on the trial the question in issue was whether a crime had been committed by either party, 181 but sometimes granted in such cases, 181 judge may impose terms on granting, 181 where granted as a matter of right, terms will not be imposed, 181 terms that may be imposed on granting, 182, 185, 186, 187 if granted because verdict contrary to evidence, the costs of the first trial should abide the event, 182 so also where granted for misconduct of the jury, 182 • where verdict obtained by a trick, will be granted without costs, 182 or party obtaining such verdict might be ordered to pay the costs, 182 if successful party had a material witness concealed in bis house, would be granted without costs, 183 if granted on the ground of surprise, it should be on payment of costs, 183 i INDEX. 805 New Teial — Continued. J order for, made without anything being said as to costs, each party has to pay his own costs of the first trial, 183 rule where costs ordered to abide the event, 183 where grunted on payment of costs, 185 where granted as of right on one point of the ciise, it opens up the whole case, 186 Noi. Suit — second action can be brought notwithstanding judgment of, 146 Notice — need not be in writing unless required by clause in statute which requires it to be given, 17, 197 reasonable, does not mean that notice should be in writing, 17 must be given by clerk to plaintiff forthwith, if defendant disputes jurisdiction, 19 given by clerk when sent by post must be registered, 19 clerk omitting to give, liable for damage, 20 of dispute waives irregularity in service of summons, 46 or probably the service itself, 46 all notices required to be given in division court matters shall be in writing, 197 but may be partly printed and partly written, 198 Disputing jurisdiction — see Jurisdiction. to be in writing, 1, 16 need not state grounds, 18 need not be signed, 18 need not be in any particular form, 18 judge could not extend time for giving, 19 could be left with clerk on holiday, 19 but not on Sunday, 19 sent by mail must be received by clerk within proper time, 19 must be accompanied with proper fees, 19 defendant not debarred of his right, if impossible for him to give, 20 within what time to be given, 20 when last day for giving falls on Sunday, 21 only necessary where cause triable in some Division Court, 21 form of, 22 MM w^ m\ INDEX. « '14 Notice of Motion — for judgment under See. 4, »eeju(i, 208 if any objection to the mode of compliance with, application should be made to the judge who made it for correction, 209 when consent given to making of, it cannot be arbitrarily withdrawn, 210 Pabtnebs — cannot sue or be sued in partnership name in Division Court, 52 service of notice of motion on one, not good service on all, 102 one partner cannot maintain replevin against his co-partner for taking the common property, 250 Possession — is good as against a mere wrong-doer, 251 INDEX. l\()7 Postponement of Trial — where cause is being tried by n jury, the judgemay postpone the ti inl for such time and on such terniH as he shall think tit, 200 even though jury not sworn, 208 where mtule on terms, the party in whose favor the postponement is granted, having acted upon it is bound by its terms, 209 Premium Notes — where suits on in Division Court brought, 2G4 Principal and Surety — relatione to third parties and to each other, 204 Privileoed Communications — what are, 117, 118, 119, 120, 121 Proceeding— what it is, 216 Production — defendant may be ordered to produce books, documents, etc., on examination, 80, 112 what must be produced, 116 what need not be produced, 116 privileged communications, 117, 118, 119, 120, 121 title-deeds, 121, 122 documents which would expose defendant to penalty or forfeiture, 123 documents not in defendant's exclusive possession, 124 mortgagee always bound to produce mortgage deed for inspection of mortgagor, 126 form of order for, 130 Prohibition- - will not lie where notice disputing jurisdiction not properly given, 1, 16 right of superior courts to exercise, 23 by whom exercised, 24 statutory provisions in reference to issue of writ of, 24 general law of, 24 not granted if judge finds jurisdiction upon disputed facts, 26 if court no jurisdiction as to part of proceedings, partial prohibition may be granted, 25 in action for goods sold, 26 308 INDEX. '* I tS^, Prohibition — Continued. where judge allows one particular item to be withdrawn, 26 where evidence wrongfully received, 26 where case has been adjudicated upon by another tribunal, 26 granted when full notice pf trial not given, 27 not granted for failure to comply with rules of practice, 27, 34 not granted pending appeal, 27 will not lie where there is jurisdiction, 27 granting of, sometimes discretionary, 27 no costs of, if question '^ui. raised in conrt below, 27 may be granted to restrain proceedings on a judgment against an American citizen, 29 acquiescence iu judgment, bar to, 30 not granted for omission to make or file affidavit of Bervice of application for new trial within 14 days, 32 PBOMissoBr Note— interest recoverable on, in Division Court even though note over 8100, 29 Proof — Of Claim:— need not be given if defendant doss not appear at trial, 41 though not given plaintiff may tax costs of preparing for trial, 66 Of Service : — how made, 42, 44 Property — married woman may hold and dispose of as a feme sole and without the intervention of a trustee, 267 questions between husband and wife as to, to be decided in a summary way, 271 . ,^!?; R Bailway Company — carries on business where general superintendence takes place, 84 Replevin — defendant entitled, if the plaintiff fails in the action, to be indemnified against all damages sustained by him, 229, 230, 231 what bond taken by sheriff or baihff shall contain, 230 section shall not apply to oases of distress for rent or damage-feasant, 230 INDEX. 309 Beplevin — Continued. whatever would be the subject of damage in an action of trespass or trover would be recoverable by defendant as dam- ages, 231 the damaRee should be assessed in the replevin suit, 232 definition of, 232, 233 wherever trespass is maintainable so also is the action of replevin, 234 if neither trespass nor trover would be maintainable, neither would replevin, 234 except in those cases where it would be maintainable at common law, 234 will not lie for a chattel seized by a collector of customs for breach of the revenue laws, 234 municipal act does not apply to actions of, 234 what necessary in action against lien -holder, 235 will lie though no wrongful taking but a detention merely, 235 agent of foreign corporation may maintain action of, in his own name, 236 where action brought on the ground that the facts would sustain an action of trover, conversion must be clearly estab- lished, 235 landlord not liable in, for the illegal seizure by his baiUff of property not found on the demised premises, 236 may be brought upon a distress for school-rates, 236 notice of action not necessary therefor, 236 action of, for rates and taxes illegally rated, 236 cases in which action of, may be maintained, 237, 238, 239, 246, 247, 248, 252 a workman can maintain replevin against his employer for the goods on which the work is done, 239 goods cannot be replevied from the possession of any one but the defendant, 239 but an amendment could be made substituting the possessor of the goods as defendant, 239 against a mortgagee distraining for arrears of interest, 239 a plaintiff can recover for such portion of the property replevied as he can prove title to, 239 an action of replevin against a bona fide purchaser for value from a purchaser would fail, 240, 246 310 INDEX. I>: ■« . 1 I Replevin— Continued. growing timber sold and out int) logs can be roplevied by the purchaser, 240 a sheriff who has seized goods under execution and has not abandoned the seizure may maintain replevin therefor, 240 in action of replevin a boarun. j house keeper can set up a lien under B. S. 0. , cap. 147, 240 action of, in Division Courts, 240 plaintiff need never have had possession of the property to maintain action of, 245 but must have the right of possession, 245 articles on the person of the defendant cannot be taken from him under the writ of, 245 goods obtained by fraud can be replevied by the vendor, 246. owner of goods which have been stolen or found or bought from someone who had no authority to sell may recover them by, 246 a purchaser from one who has no title can acquire no better title than his vendor aud the owner can recover in, 246 will not lie if the owner of goods allow another to have possess- ion under circumstances which would imply a right to sell them and he does sell them, 247 title to land cannot be tried in an action of, 248, 249 but may incidentally arise in, 250 and ik it should in the Division Court it would not oust the jurisdiction, 260 a house built on leased land cann'it be taken in, 248 writ of, will not justify the severance and delivery of fixtures, 249 a building wrongfully removed may be recovered by owner of the land by, 249 owner of land may maintain, for timber severed from it and carried away by a trespasser, 249 a sheriff or bailiff should not deliver more articles than are named in the writ, 250 it is a good return to say that the goods are destroyed by fire, 260 writ must be issued within 6 years from the unjust taking or detention, 260 INDEX. 311 Replevin — Continued. several persons cannot join in, for several goods, where the property is several, 250 all part owners mubi join in action, 260 a tenant in common or joint-tenant or partner cannot maintain replevin against his co-tenant or co-partner for taking the common property, 250 should not he brought in the name of a servant whose possession is that of his master, 251 anyone in possession or having control of the goods may be made defendant, 251 if goods taken by A at command of B the replevin may be against both or either, 251 will lie after sale against the vendee of the sheriff, 251 possession obtained improperly will not give a right of action in, 251 but possession is good as against a mere wrong-doer, 251 can be maintained for leases or other title-deeds, 251 can be brought for goods distrained off the premises, 251 where action is founded on trover same demand necessary as in action of trover, 251 Proceedings in : — how deponent in the affidavit should be de :ribed where affidavit not made by the plaintiff himself, 240 affidavit should be sufficient to enable the sheriff to identify the property, 241 where sheriff is defendant, writ may be directed to the coroners, 241 in the Division Court, where writ must issue from, 241 should not in Division Courts be joined with any other form of action, 241 in action against bailiff a denial of taking would raise all hie defence, 241 where action is brought for detention only, claim should be framed as in detinue, 242 writ of, cannot be executed by taking goods out of possession of a party not named therein, 242 writ of, in the Division Court may be served in the same way ai an ordinary summons in that court, 242 notice of action is not necessary in, 242 312 INDEX. M I If* ■!* '*^. Beflevin — Continued. it is doubtful if a replevin suit can be removed by certiorari, 242 a bailiff would be liable for not executing the writ, 242 in some respects action of, is within the Judicature Act, 243 payment into court may be pleaded to an action on the bond, 243 a certificate for costs is necessary in the High Court and County Court, 243 but not in the Division Court, 243 is not maintainable against a pound-keeper, 243 BePIjEVIM-BOND — what it shall contain, 230 entered into by the principal and 3 sureties is sufficiently in accordance with the Beplevin Act, 243 assignee may sue on it in his own name, 243 a subscribing witness is necessary to validity of, 243 action maintainable against bailiff for refusing to assign to the person entitled, 244 court has power to stay proceedings on, 244 if plaintiff does not prosecute his suit defendant may take an assignment of the bond from the bailiff and sue on it in his own name, 244 if bailiff should seize without taking bond, the seizure could be set aside, 244 a matter of defence to the action of replevin cannot be set up in an action on the bond, 244 sureties may be unintentionally discharged, 244 can be sued in the Division Court no matter what the penalty may be, 245 rights and liabilities of parties to, 251 form of, 252 n!ust be in treble the value of the property to be replevied, 263 Bevbnue Laws — a claim to goods ccndduined under, could not be sustained, 170 Bevisbd Statutes, Ontario — how different statutes of, treated, 14 s Salabies — see Employees. Seodbity fob Costs — can be ordered in Division Court, 162 either party in interpleader issue may be ordered to give, 163 INDEX. 313 Secdbity fuh Costs — Continued. married woman will be ordered to give, 153 application for, may be made at any time, 163 will be ordered where plaintiff leaves jurisdiction permanently during pendency of action, 153 defendant admitting plaintiff's claim but setting up counter- claim not entitled to, 164 where one bondsman has become worthless, a new one will be ordered, 154 intended application for immediate judgment no reason for refusing, 154 would probably be granted in an action brought by a defendant against whom a judge had refused an order on a judgment summons, 154 defendant entitled to, from plaintiff whose permanent residence is out of jurisdiction, 154 temporary residence of one of several plaintiffs wHhin juris- diction will prevent the making of the order for, 155 subsequent acquisition of property no ground for rescinding order for, 155 one bondsman could be accepted, 165 Sbizdbe — if execution creditor prejudiced by bailiff's abandoning, bailiff would be liable, 146 actions for damages arising in consequence of, 161, 162 execution creditor simply placing execution in bailiff's hands not liable for damages sustained in consequence of, 162 execution creditor by conteAing interpleader issue does not render himself liable for, 164 liability of client for seizure by direction of his solicitor, 166, 166, 167, 168 growing crops are the subject of, 17U goods exempt from distress for rent not the subject of, 171 nor goods in the custody of the law, 171 of goods which have been the subject of an illegal distress, 171, 172, 173 bailiff has no right to seize the goods of a stranger in the possession of the execution debtor, 174, 175 goods of a testator cannot be seized under an execution against the executor personally, 175 NN 314 INDEX. Seizure- ! I".' h 'i^ 11 i 8L <**■ ■; < It ■• mi a. ij •• . :i i Set-off — -Continued. an illegal seizure under void process would not prevent the landlord's bailiff from afterwards executing a legal warrant, 175 can only be made under genuine process, 176 amount beyond jurisdiction reduced by, 37 law of, shall apply to claims made against the estate of a person who has made an assignment for the benefit of creditors, 261 Sheep- judge may apportion damage between owners of dogs injuring, 265 appeals from convictions to be made to Division Court, 266 Solicitors — not recognized as such in Division Courts, except in some particular instances, 104 no implied authority to direct seizure of particular goods, 167 Speciai- Jdry — could not be a trial by, in Division Court, 144 Special Bdmmons — what claims are subject of, 47, 48, 49, 50, 51, 62 all claims which are subject of garnishment are subject of, 47 there could be no, where something beyond the recovery of money is sought, 51 clerk should enter judgment on, without production of security on which action brought, f 2 Statdteb — roles for construction of, 2, 6, 8, 9, 14, 16 what they are, 4 should be drawn in language clear and simple, 5 meaning should be plain and unmistakeable, 5 words of, when plain, must be strictly followed, 6 but if ambiguous the whole context must be looked to, 6 method of interpreting, 6, 9 words of, to be construed according to their strict and proper acceptation, 6, 8, 10 when words of, doubtful or obscure, intention of legislature to be resorted to, 7, 10, 196 INDEX. 315 Statutes — Continued. intent of, often gives meaning to words otherwise obscure and doubtful, 8, 16 bearing two interpretations, one agreeable to plain sense shall prevail, 9, 11, 12, 98 void as to oonsequenoes contradictory to common reason, 9 marginal notes not part of, 11 words of, sometimes construed in popular sense, 11 penal statutes construed favorably to accused, 12 general Acts do not necessarily repeal previous particular Acts, 12 headings of different portions determine doubtful expressions in such portions, 18 saving clause in, no operation if inconsistent with subsequent special Act, 13 who English Statutes affect, 13 certain words in, how construed, 13 how Statutes of R. S. 0. treated, 14 regulating practice only apply to matters within jurisdiction, 14 courts bound to take notice of Provincial Statutes though operation limited, 14 interests of persons not named in private Statutes unaffected thereby, 14 where penalty imposed by, transaction illegal, 15 when they come into force, 15 29 Car. II. c. 3 (I) (Statute of Frauds), 56, 237 9 & 10 Vic. 0. 95, 8. 118 (I) (Small Debts Act), 160 19 & 20 Vic. c. 108, s. 72 (I) (County Courts Amendment Act) 145 30 & 31 Vic. 0. 130, s. 7 (I) (Salford Hundred Court of Record Act), 227 c. 142, s. 31 (I) (County Courts Acts Amendment) 156 . 38 & 39 Vio. c. 77, Order XIV, rule 1 (I) (Judicature Amendment Act), 93 R. S. O. c. 1, B. 8, 88. 38 (Interpretation— all Acts remedial), 88 225 0. 42, s. 6, (Local Courts— Deputy Judge), 138 g^ 16, ( " — division into districts), 138 g. 22, ( " — powers of Judge), 138 0. 47, 8. 9, (Division Courts— accommodation),21 8,219 r 316 INDEX. rl ^«<««g Statutes — Contimud. B. S. O. c. 47, B. 20, (Division Courts— illness or absence of judge), 138 8. 37, ( »1 -record of writs, etc..) 203 s. 63, ( (t —jurisdiction), 63 9. 64, ( tt — " ), 50, 190 B. 66, ( ti — " ), 190 s. 63, ( ii —where action brought) ,62 88. 70-71, ( kt —service of summon^), 46 8. 72, ( U - " ),44,62 8. 79, ( »t —judgment), 41, 46,47, 50, 52, 63, 61, 62, 78, 83, 89, 94, 104, 180 8. 82, ( ii —judgment) 62 8. 83, ( i( —adjournment) 207 s. 87, ( (t —payment into Court) 206 8. 99, ( (i —commissions), 169 8. 106, ( (t —affidavits), 44 8. 106, ( tl —judgment), 179 88. 109, 110 , et seq., (Division Courts— Jury) 132, 149 8. 112, (Divisi on Courts— jury), 133 8. 114, ( 4i — " ), 131, 133 8. 115, ( It - " ), 134 8. 122, ( t( — " ). 132, 148, 149, 150, 161 8. 166, ( ii —execution), 67 88. 165-169 ( tl - " ). 66 SB. 177-189, { (( —examination), 66 8. 182, ( (( — " ), 39, 40 B. 191, ( (( —absconding debtors) 168 8. 203, ( ii — " " )46 8. 207, ( a —action on bond), 191 8. 210, ( it —Interpleader), 136, 137, 167,168,160,161,169, 177, 189 B. 244, ( (( —practice), 87 • 0. 60, (Common Law Procedure), 98, 197 c. 62, SB. 2, S (Prohibition), 24 0. 53 (Beplevin), 234, 238, 239, 242 INDEX. 817 Staxdtbs— Continwed. B. S. O., 0. 64, B. 24 (Interpleader— Bailees and Carriers), 178 c. 61 (Limitation of Actions), 250 0. 62, s. 38 (Witnesses and Evidence— Affidavits), 43,44 0. 63, SB. 7, 8 (Commissioners), 43 c. 68, 8. 16 (Absconding debtors!, 254, 265 c. 106, 88. 3, 6 (Wills), 74 c. 116, 8. 7 (Mercantile Amendment Act— chose in action), 243 c. 118 (Fraudulent preference of Creditors), 266 0. 120, B. 12 (Mechanics' liens— Division Court), 191 c. 125, 8. 20 (Property of Married Women— Suits), 73 0. 140, 8. 32 (Attorneys— Costs). 60 0. 144, 8. 24 (Dentistry— Division Court), 191 0. 147 (Innkeepers), 240 c. 161, 8. 71 (Mutual Insurance Companies— Suits), 264 0. 174 (Municipal Institutions), 191, 234 c. 194, 8. 16 (Protection of Sheep— dogs), 265 c. 198, 8. 8 (line fences— how award enforced), 191 0. 199, 8. 10 (ditches and" water-courses — how award enforced), 191 41 Vic. c. 5 (0) (Winding up Joint Stock Companies;, 263 0. 12 (O) (Ditches and water-courses), 191 43 Vic. c. 8 (0) (Division Courts), 132, 149, 189, 190, 194, 195 c. 8, s. 2 (Division Courts— Jurisdiction), 36, 190, 194 8. 3 ( " _ " ), 190 s. 8 ( " —Venue), 25, 35, 86, 91 8. 9 ( " — '« ), 25 8. 11 ( " — Transfer)26, 29 8. 12 ( " —Power of Court), 35 8. 14 ( " —Jurisdiction), 1, 16, 22, 23, 228 8. 16 ( " —Costs), 104 8. 17 ( " —Appeal), 194 8. 18 ( " —Stay of Proceedings), 104 8. 20 ( " —Evidence), 104 8. 21 ( " —Appeal), 104 8. 22 ( " —Costs), 104 8. 24 ( " —Inspector), 223 8. 43 ( » -Jury), 132 r 5 ■ 1 i 1 ': H< « r t ■'■. Si*: 1 i ; '■;! 318 INDEX. B. 44 (Division GonrtB B.47{ 8. 49( B. 68 ( 8. 69( B. 62( Statutes— ContifiMed. ■Jury), 188 - " ), 207 - " ), 185 — Judgment Debtors), 38 -Judgment Summons), 104 — Substitutional Service), 108 . 109, 216 43 Vic. 0. 10, 8. 21 (0) (Creditors' Belief Act), 254, 265 c. 16, (0) (Lodgers and Boarders), 172, 173 44 Vic. 0. 6, (0) (Judicature Act), 100, 102, 192, 243 c. 5, s. 77 (0) (Judicature Act — County and Division Courts), 195 8. 78 (0) (Judicature Act— County and Division Courts), 190, 191 rule 14 (0) ( — Special Indorsement) 60, 83 —Judgment), 60, 82 —Months), 197 —Sunday), 21, 103 rule 80(0) ( rule 451 (0) ( rule 467 (0) ( 0. 7 (0) (Interpleader), 178 45 Vic. c. 7, B. 4 (0) (Division Courts— Deputy Bailiff), 148 45 & 46 Vic. 0. 76, (I) (Married Woman's Property Act, 1882) C9 46 Vic. c. 7 (0) (Jury), 134, 135 47 Vic. c. 9 (0) (Division Courts), 212, 213 c. 10, 8. 3 (0) (Administration of Justice — Fraudulent Preference), 256 B. 9 (0) (Administration of Justice — Appeal) 195 8.10(0) ( " —Interpleader) 139, 140, 148, 149 c. 19 (O) (Property of Married Women), 67, 69, 70, 71 73, 74, 102, 168, 267 ' 48 Vic. c. 13, 8. 8 (0) (Replevin), 239 c. 14, 8. 4 (0) (Division Court — Judgment), 85 B. 7 (0) ( " -Damages), 191, 228 c. 16, (0) (Garnishment), 254 c. 16, (0) (Notaries Public), 43 c. 26, (0) (General Assignment), 256 c. 29, (0) (Wages), 263 0. 35, (0) (Mutual F. Ins. Cos.), 264 0. 46, (0) (Protection of Sheep), 266 INDEX. 319 Statute of Limitations — applies to the action of replevin, 260 Stay op Proceedings— S« Interpleader, 160 Summons — issue of, not a judicial act, 62 Service of : appearing in suit and taking part in proceedings, waivei- of, 33, 36 remarks on this decision, 33 where claim exceeds 98, must be personal, 44 but if claim does not exceed f^H, may be made on defendant or certain clher persons, 44 if personal service not made, affidavit should show on whom summons served, 44 giving notice of dispute waives irregularity in, 46 or probably the service itself, 46 Sunday — Subety — notice could not be filed on, 19 papers could not be served on, 102 included in reckoning time, 103, 109 admission by principal, evidence against, 201 entries in office books made by principal, only evidence against, if principal is dead, 201 but correctness of this law questioned, 202 relation to principal and to third parties, 204 Surety of Clerk ob Bailiff — in actions against, the entries in the books kept by such clerk or bailiff shall be prima facie evidence against, 199, 204 even though clerk or bailiff has ceased to be such, 199, 204 T Tenant in Common — cannot maintain replevin against his co-tenant for taking the common property, 260 Testator — goods of, cannot be seized under an execution against the execu- tor personally, 175 Third Parties — indemnity by, 193 320 Title- index. •tit: > ••■ • where terms of tenancy in lUspate, title to land not in questiou, 34 of debtor alone p asses on sale under exeontion, 146 a piirohaser from one who has no, can acquire no better title than his vendor, 246 Titlr-Deeds — parties not compelled to produce, 122 replevin can be maintained for, 261 Transfer — can only be miide when cause entered by mistake or inadvertence, 28 Trbbpabb — action of, can be brought pending interpleader issue, 148 when maintainable, 262 Trebpabsbr — bailiff seizing goods of wrong man is a, 163 execution creditor directing seizure of wrong goods is a, 164 person merely taking a list of goods and telling defendant he must not remove them, not liable as a, 166 Trial— any person may act as agent or advocate at, 62 Trover — when maintainable, 252 Trubtbeb— need not be parties to interpleader issu. ceitui que trutt in possession of goods by their authority, 148 w Waobs — See Empluyeen. Will— words of, to be construed according to their strict and proper acceptation, 6 married woman may devise her property by, 69 of married woman made during coverture will not pass property acquired after coverture has come to an end, 74 Words — Of Statute :—See Statute. not always construed in the same sense wherever occurring in the same enactment, 6 peculiar sense in which used to be determined by the context, 6 INDKX. 321 lestion, ;er title irtence, Words — Continued. when plaiu mtist be strictly followed, R but if ambiguous the whole context must be looked to, (> to be construed aooordiug to their strict and proper acceptation, 6,8 of known legal import are to be construed as having been used in their technical sense, 6 not found in Statute not to be introduced, 7 when doubtful or obscure, intention of legislature to be resorted to, 7 .64 lant he rutt in proper roperty ring in text, 5 'W^ CLASSIFIED INDEX OF FORMS. Jil .« •Rn It 1 Adjupication — under Act of 1885, in Interpleader cases where damages awarded, 283 w]iere damages not awarded, 284 Affidavit — for judgment under Sec. 4, 95 of service of summons, 42 of service of summons on an agent, 216 Jddoubmt — against married woman, 75 JODOMENT SdMMONS — where judgment entered by clerk, 283 K^\?-\ default where judgment entered by clerk, 283 Notice — disputing jurisdiction, 22 Notice of Motion — for judgment under Sec. 4, 109 Obper — for final judgment under Sec. 4, 127 for leave to defend unconditionally, 128 for leave to defend on payment into Court, 128 for leave tu defend as to part on payment into Court, and as to residue unconditionally, 129 for the defendant's examination and production of books, etc., 130 to bring third parties before Court in Oarnishment cases, 282 Bbplivin-Bond, 262 ORMS. damages awarded, 283 I a Ooart, and as to of books, etc., 130 lent cases, 282