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Full text of "A digest of the Nova Scotia common law, equity, vice-admiralty and election reports [microform] : with notes of many unreported cases and of cases appealed to the Privy Council and Supreme Court of Canada from Nova Scotia : containing also rules of court, and an index of the Imperial, Dominion and Nova Scotia statutes, referred to in the reports, with the notes and comments thereon"

A DIGEST 



OF THE 



! 



NOVA SCOTIA 

COMMON LAW, EOUITY. VICMDMIRALTY 
AND ELECTION REPORTS : 

Mitlj iJotfs 

OF MANY UNREPORTED CASES AND OF CASES APPEALED TO 

THE PRIVY COUNCIL AND SUPREME COURT OF 

CANADA FROM NOVA SCOTIA. 

ffiontaininn also Kulcs of Court, 



AND 



AN INDEX OF THE IMPERIAL, DOMINION AND NOVA SCOTIA 

STATUTES, REFERRED TO IN THE REPORTS, WITH 

THE NOTES AND COMMENTS THEREON. 



BY FEED. T. CONGDON, B. A., Ll. B.. 

BARRISTER AT-LAW. 



TORONTO : 

CARSWELL & Co., LAW BOOK PUBLISHERS. 

1B90. 



KR;7 
.H(o 



159026 



Entered according to Act of the Parliament of Canada, 

By Cars well & Co., 

At the Department of Agriculture, in the year 1891. 



V , 



„r, (••',.;.' 



PEEFACE. 



i 



This work contains a digest of nil tho reiiorted ciises before A. D. 1880, decided in 
the Supreme, E(|iiity, and Vice-Admiralty Courts in this I'rovince, and in the ad hue 
Klection Court. Nothing later than 20 N. S. R. lias been included, that having been the 
latest jjulilished report when the work went to press. It was considered better not to 
in.sert any case reported in 21 N. S. R., as it was impossible to insert all. 

In addition to rejjorted cases, a number of cases hitherto unreported have been noted. 

Whenever any case decided in the courts of this Province has been ajjpealed to tho 
Privy Council, or to the Supreme Court oi Canada, the decision on appeal has been 
inserted in the Digest, whether the decision below was rept)rted or not. 

A list of the cases ajipealed to the Privy Council, and also of those appealed tc the 
Supreme Court of Canada, has been appended. 

Under the head Statitks will be found, arranged in chronological order, under the 
sub-heads Imi'kiiiai., Dominion, and Nova SiotjAj every Statute to which reference 
has been made in the judgments contained in tlie rejjorts digested. Frequently, it has 
been thought advisable to give in full the exact language of the section passed upon. 
Following the reference to each Statute are notes of all the decisions a:id judicial 
remarks upon it. The subject, Stati'TKs, Nova Scotia, has been prefaced with a few 
notes, chietly taken from the valuable despatch of Sir Adams G. Archibald to the 
Secretai'y of State for Canada. These may perhaps not be strictly in place in a work 
of this kind, but are inserted as of interest and use. 

TJie Rules of Court jmblished herein are only those not previously printed in a con- 
venient form. It was deemed unnecessary to insert the Crown side, Election or Costs 
Rules, as tiiese are already easily accessible. 

A list of the Judges who have presided in the Supreme Court ha>: been inserted. 

Under the head Nova Scotia, will l)e I'ouiid the interesting case of The Fditiun of the 
rnliiihit<intn (if ( '»(/)(' liirtoii, which determined the (piestioii of the legality of the re-annex- 
ation of that Island to Nova Scotia. 

Stewart's Vice-Admiralty Reports is now ditlicult to (>l)taiii, and as a consequence 
apfiears not to be generally known. Many eases reported therein involve the discussion 
and decision of ([ucstions of the fir.st international importance. During the period they 
cover, 180.'M3, Dr. Alex. Croke, whom Kent in his " Comnientarie.s " styles "the 
enlightened .ludge of the Vice-Admirality Court at Halifax," was the Judge. Ho was 
appointed in August, 1801, being the first Judge of the Vice-Admiralty Court at Halifax, 
as reorganized under 41 (tod. J, c. f)(J. 

The Nova Scotia Decisions, in some instances, do not enable the reader to readily 
discover the decision of the Court. Smith v. MrEi'chr,;i, 1 N. S. D., 299 ; 3 N. S. D., 
35 and 279, atfbi'ds one such instance. The following stateiiient, kindly furnished nio by 

iii 



iv PREFACE. 






Hon. Mr Justice Moiigher, and voritied by reference to his notes, throws some light on 
the case : "On the first trial a verdict was given for plaintitT. This was sot aside l)y the 
judgment of the Court, delivered 12tl: August, 1868, c<jnsisting of Young, C, J., John- 
stone, E. J., DesBarres and Todd, J.J. This is the judgment reported, 1 N. S. D.. 29!). 
A new trial took place, and the presiding Judge, under the authority of that judgment, 
told the jury to find a verdict for defendant, whicli they did. This verdict was set aside 
by the Court, consisting of Ritchie, Wilkins, and McCuUy, JJ., Young, C. J., and 
DesBarre.s, J., disHeidinii. By this last judgment, three Judges of the Court, in spite 
of the dissent of two, overruled the former judgment concurred in by all of the four 
Judges first named." It is not cl'jar how, the first judgment liaving been delivered on 
13th August, 1808, McCully, J., on .July 1st, 1872, delivered the judgment of tlie Court 
(3 N. S. D., 35), and Ritchie, .J., on February 5th, 1873, also delivei-ed the judgment 
of the Court (3 N. S. D., 279), unless there were three trials and three arguments. The 
case was, it is l)elieved, only twice i) iore the Court, and there is doubtless a mistake in 
one or other of the last two dates. The difticulty in this, and in a number of other cases 
that could be mentioned, arises from the fact, that during the time covered by the Nova 
Scotia Decisions, there was no reporter of the Supreme Court. 

It was proposed to insert in this preface a l)rief sketch of the development of our 
judicial system, from the time at which Governor Cornwallis "set about ... to 
establish the Courts of Judicature and the forms of proceeding in them," following as his 
model the Courts of Virginia (nee Nova Scotia Archives, G05, and Order in Council of 
Dec. 13th, 1749), down to the Judicature Act, but during the preparation of the Digest 
1 have had no time to make the necessary investigations for an accurate sketch, and 
deem it inadvisable to delay the work in order to do so now. 

I have to acknowledge my great indebtedness to Mr. Thomas Notting, Ll. B., without 
whose hearty co-operation and invaluable assistance I should have found it impossible to 
finish the work. I trust the Digest will prove of some assistance to the legal profession. 
Whatever errors it may contain are, I believe, of a minor character, and not such as 
to mislead. 

FRED. T. CONGDON. 
Halifax, December, 1890. 




CHIEF JUSTICES OF THE SUPREME COURT. 



1754 Hon. .IOXATHAX BELCHER. 



30th Marcli, 177() .. 
15th April, 1778 . . . . 
8th August, 1785. . . 
8th August, 1788.... 
20th Octob' r, 1789 . 
9th September, 1797 



31 St January, 1833 . 
3rd August, IStid. . . 
20th May, 1881 .... 



CFIARLES MORRIS (Temporarily). 

BRYAX FINUCANE, or FEXUKANE. 

ISAAC DESCHAMPS. 

JEREMIAH PEMBERTON. 

SIR THOMAS ANDREW STRANGE. 

SAMPSON SALTER BLOWERS, vice 
STRANGE, promoted to Bombay. 

SIR BRENTON HALLIBURTON. 
SIR WILLIAM YOUNG. 

JAMES Mcdonald. 



JUSTICES OF THE SUPREME COURT. 



1764 Hon. 

1764 . " 

29th April, 1769 " 

24th May, 1770 " 

1781 " 

15th August, 1801 " 

10th January, 1S07 " 

lOthJune, ISIO " 

7th Decembur, IS!.") " 

30th March, 1816 " 

30th March, 1816 " 

1830 " 

1833 " 

9th April, l.S-U " 

1st April, 1841 " 

19th February, 1848... " 

14th Novein))er, 1848... " 

14lii August, 18.-)6 " 

11th May, lt;64 " 

28th September, 1870. . " 

28th September, 1870.. " 

5th Xovcm))er, 1873 ... " 

15th January, 1875 " 

8th January, 1877 " 

7th October, 1878 " 

17th December, 1881 ... " 

24th July, 1882 " 

26th September, 1885.. " 

4th March, 1887 

29th September, 1889.. " 

23ril April, 1890 " 



JOHN COLLIER J. . , , a„,:„.„„^ 

I Appointed na Assistant 

CIIAKLES MORRIS j •'«*''''^es. 

JOHN DLTORT Succeeded Hon. John 

ISAAC DESCIIAMPS Succeeded Hon. John 

Duport, app'd Chief 
Justice of St. Joiin. 

JAMES BRENTOX Succeeded Hon. Charles 

Morris. 

GEORGE H. MOXK Succeeded lion. Isaac 

Uesciiainj)s. 

BRENTON IIALLIBL'RTOX Succee.led lion. Jamea 

Hrenton. 

FOSTER HUTCIIIXSOX Appointed as Third As- 
sistant Justice. 

JAMES STEWART Succeeded lion. Fo-ster 

Hutchinson. 

LEWIS MORRIS Succeeded Hon. George 

H. Monk. 

PELEG WISWALL Appointed Associate 

RICHARD J. UXIACKE Succeeded Hon. Jumes 

Stewart. 

WILLIAM HILL Succeeded Hon. Brenton 

Hallil)urtoii, appoint- 
ed Ciiief Justice. 

WILLIAM BLOWERS BLISS Succeeded Hon. Richard 

I. I'niacke. 

THOMAS CHAXDLER HALIBURTOX. .Appointed as Fourth 
(" S.vM Slick.") Assistant Justice. 

EDMUXD MURRAY DODD Succeeded Hon. Lewis 

M. W ilkins. 

WILLIAM FREDERICK DESBARRES .Succeeded Hon. William 

Hill. 

LEWIS MORRIS WILKISS Succeeded Hon. Thomas 

C. Halil)urton. 

JAMES W. JOHXSTOX App'd .ludge in ;:.iuity 

and Senior Assistant 
Justice. 

JOXATHAN McCULLY. 

JOHX W. RITCHIE AppM Judge in Ecpiity 

July 9th, 187.3. 
HUGH McDOXALD. 

HENRY W. SMITH. 

ALEXAXDKR JAMF.S \ppM Jud^e in Equity 

JulyJ4th, 1882. 
ROBERT L. WEATHERBE. 

.■^AMUEL n. RIG BY. 

JOHX S. D. THOMPSOX. 

J. NORMAX RITCHIE. 

CHARLES J. TOWXSHEND. 

WALLACE GRAHAM App'd Judge in Equity 

same time. 
XICHOLAS H. MEAGHER. 



INDEX OF TITLES. 



ABANDON'MKXT— 

Ok Suii' OK (\\U(io— .?«'' Insih.iM.'k, Ma- 
ui nk. 71.">. 

ABATK-MKN'T- 

I. Ok XnsANCKs— A'f Ckiminai, I,a\v, 417. 

II. Pl.KAS IS -.SVi; Pl,KAI>INli, lO'.'l. 

AlJ.^^KXr OR A1JSC0X1)IX(; DKIiTOH- 

I. Will) MAV OK I'kOCKKPKI) AliAINST AS, 1. 

II. Akkihavit kou attaciimknt, 3. 
III. Attaciimknt, Wkitmk, (i. 
IS'. 8r"MMONs FOR A<;knt, \'2. 

V. MiscKi.nANKois Casks, 1."). 

VI. AUKKST ox .MKSNK I'KOCKSS, 17. 

A(X'IOPTAXCE-.9ee Bills ok Kxi iiavik and 
Promissoky Xotks, 1<),i. 

AC'CK.S.SORY— .SV« Criminal Law, 40(5. 

A('Cll)i;XT— .SVfi XEiiUdKNCK, IMS. 

ACCORD AXI) SATI.SFACTIOX, -JO. 
ACCOUXT, •_'(». 
ACCOUXT ST ATKl), iJ. 



ADVKR.SK POS.SKSSIOX — .S:w. E.ikctmknt, 
483— Limitation' ok Actions and 
Sl'its, 844— Trespass, 1554. 

ADVERSE \VrrXK8.S-.SV>K Evii)KN(.E, 5-'3. 
AFFIDAVIT, i?9. 

AFFILIATIOX-.S't.; Hastard, 103. 
AOEXT— .S>e Pbi.vcip.u. and Aoknt, 1110. 

AGREEMEXT, 35. 

I. Constriction t>v—Sce Contr.vct, 325. 
II. CoNsiDER.\Tio.v for -.S'ce Contract, 333. 

III. I.,ei;alitv of -Se<? Contract, 342. 

IV. Parol l-.klanation ok — Si-e Evidenck, 

543-5. 
V. Relatini; to Sale of Proi-ertv — Si'<; 

Sale, 1200. 
VI. Specific Performance dv—Sm Specific 

Per'.dkmanoe, 130f). 
vii. To Demise— .?<;': Landlord .,nd Tenant, 
824. 

VIII. Within the St.vtite of Frai'ds — Sei' 
Contract, 302 - Landlord and 
Tenant, S2S-Sale, 1225, 1232. 



ACI'RETIOX— »(! Rivers, 1201 - Trespass, \LIEX 30 
15.58. 



ACKXO W LED( i MEXT - 

I. Of Deiits or Demands to iuk .Statctk. ALTER \TI0X 
II. Of Title to Land— .*<• Limitation of 
Actions and Simts, 842. 



ALLUVIOX— .S'-r Rivers, 1201. 



ACQIIIESCENCE-See Estoppel, 511. 

ACTS OF PARLIAMEXT-See .Statites, 
1307. 

ACTIOX, 24. 

AIWUSTMEXT— ftr Insurance, Fire, 008. 

AD.M[XISTRATORS-.SV, Exkci tors and Ad- 

MINISTR.VTOliS, 5()4. 

ADMIRALTY, 20. 

ADMISSIOXS-See Evidence, 523. 

ADVANCEMEXT— Presumption of, to Chil- 
dren— Sec Will, 1011. 



I. Of Xecotiable Instri'men'ts— .S'cc Bills 

OF F..\CllANOE AND PROMISSORY 
Xotes, 10(i. 
II. Ok Bond— .Vf' Bond, 244. 

AMP.ASSADORS, .37. 

AMEXD.MEXT- 

I. Of Writ, 38. 
II. Of Pleadinos, 41. 

III. Ok Riles, 47. 

IV. MiSCELLANEors, 4S. 

AMERCEMEXT OF COUXTIES, .55. 
AMERICAX WAR, .5.5. 
AXIMAL, 57. 



vili 



INDEX OF TITLES. 



AI'PKAL- 

I. Fkom Ahskssmf.nt, 58. 
11. FitdM City Coikt, Hamka.v, ns. 

III. KlUlM (.'OMMISSIONKU OK MiNKH, .")0. 

IV. Fkom Commissionkks in Isdkjknt Dkiit- 

OK Mattkhs, 50. 

V. Fkom CorsTv Coikt, (iO. 

VI. Fkom K(;iitv Coikt, 7(). 
VII. Fkom Jistichs of tiik 1'kai'k, 7". 
vm. From I'ltonATK Coi-rt, 80. 

IX. To TIIK PlUVV ColNCII., 81. 
X. To TIIK .Srl'KKMK CoTKT OK CANADA, 81. 

XI. MiscEU.ANKors Cases, 91. 



ATTACHMFXT- 

1 I. Ok Dkiits, 1(14. 

II. Ok tiik 1'kkson, 105. 

III. In I'KocKKinNiis aiiainst AnsKNT OR An- 

SCONDINIi DkIITOKS — Sir AllHKNT 
OK AllSCoNIUNd Dkiitou, .1. 

IV. Under Insoi.vknt Acts — ,Si:i: Insol- 

vency, (iliti. 

ATTORNEY, 107. 

AUCTION, 171. 

AVERAOK— .SVclNsrHANTE, Fire, 092- Insik- 
ance, Makink, 716. 



AITEARANCK, 95— *%e,n^o, PKAriiCE, 1044. AWARD -**: Ariutration and Awarh, 90. 

APPRAISEMENT, dG-Sc, aUo, SinniNo, ^AIL. 173. 

1259. 

RAILMKNT, 178. 

APPROPRIATION OF PAY.MENT.S — .SVr 

Limitation ok Actions and Skits, RANKS, 181. 
"4-->. 



ARBITRATION AND AWARD, 96. 
ARMIN(i, 116. 



RANKRUPTCV, 189. 

BARGAIN AND SALE. 

I. Of fioons— .SVp .Sai.k, 1209. 
II. Ok Lands— .S'c^' Sai.k, 1228. 



BARRATRY-** Insirance, M.uunk. 7.14. 



ARREST- 

1. Ox Mesne Process, 117. 
II. In Other Casks, 121. ! 

III. Actions kor Arrkst and False Impris- ; BARRISTER-AT-LA\\ , 191. 
ONMENT, 122. 



ARTICLES OF CLERKSHIP, FILING OF— 

See Attorney, 167. 

ARTS AND SCIENCES, 124. 

ASSAULT, 124. 

ASSEMBLY, HOUSE OF, 120. 

ASSESSMENT- 

I. Of Banks, 127. 

II. City ok Hai.ikax, 129. 
311. Ok Dyke Lands, 129. 
IV. In New Glasoow, 1.31. 

V. Of Railways, 1.32. 

VI. For School Rates, 1.36. 

VII. Of Shippino, 139. 

VIII. Remedy when relatively too high, 
141. 

ASSIGNMENT— 

I. For Benekit OK Creditors, 141. 
II. Of Choses in Action, 148, 1637. 

III. Under Insolvent Acts, 150— .^ee, also, 

Insolvency, 604. 

IV. Fraidi'lent, 155. 

V. Miscellaneous, 1.58— S'ee, aho. Bills of 
Sale, 232— Deed, i35. 

ASSOCIATION, 163. 



BASTARD, 193. 

[BEQUEST -.SV Will, 1012. 

i 

JBIGAMY-zS'^fi Criminal Law, 400. 

BILL- 

I. Of Costs -.S're Costs, .381. 
II. Of Ladino — See .Siiippini., 12.')9. 
III. Of Particclars — ,*?f p Practice, 10,38. 

BILLS OF EXCHANGE AND PROMIS.SORY 
NOTES— 

I. Acceptance, 19.5. 

II. Alteration, 196. 

III. Consideration, 197. 

IV. Evidence, 204. 

V. Foreign Law, 207. 
VI. Indorsement, 208. 
vii Interest, 212. 
VIII. Notice of Dishonor, 213. 
IX. Pleadi.ncs, 214. 
X. Presentment, 218. 
XI. Stamping, 219. 
XII. Miscellaneous, 224. 

BILL OF LADING -See Shipping, 1259. 

BILLS OF SALE, 232. 

BLOCKADE-Sce Shipping, 1259. 



BOARD OF HEALTH, 24 1. 
BOND, 244. 
I'.OUNDARIES, 259. 
BOTTOM FiY-.SV, Siiii'n\(i, 1259, 



INDEX OF TITLES. 

COLOR OF TITLE, .114. 
I COLORE OFFICII, .114. 
CLUB, 315. 



ix 



BREACH OF PROMISE OF MARRIAOK— 

See HrsilAM) AND WlKK, (i.S.'). 

BRITLSH NORTH AMERICA ACT, 264. 

BRITLSH .SURJECT, 273. 

I'.ROKER, 274. 

nUILDIN'O SOCIETY- *f^ AnniTRATios am. 
A WAUt), flO — BoM), 244 — Mokt- 

CAiiK, 8H.S. 

BURfiL.\RY-.S'(c Ckimisai, Law, 400. 

(ALLS— ,SVc Banks, ISI. 

CAN.M)A TEMPERANCE ACT, 27.-.. 



I COMMISSION, EXAMINATION OF WIT- 
NESSES U.NDER- Sec Evidkxoe, 
j 523. 

CO.MMISSIONER, 316. 

COMMON' LAW, 317. 

COMPANIES, 317. 

COMPOSITION, 319. 

CONSTABLE, ,320, Ifi.SS. 

CONSTRUCTIVE SERVICE, .322— 5ee Prac- 
TICK, 1038. 

CONTEMPT, .323 — .S'se Assembly, House of, 
12(5. 

CONTINUANCE— Sep Practice, 10.38. 



CAPE BRKTfVN^ ANNEXA^K)^ OF, TO ^.qnTRACT, 323. 

N0\ A .SCOriA— iS". Nova Scotia, i ' 

16.37. 



CAPIAS-^ff Arrest, 117. 

CAROO-iV.' Siiii'iiNc, 12.')9. 

CARRIERS, 283. 

CATTLE - 

I. IxjiRiKs TO i!Y Dons— .SVv- Animal, 57. 
II. lN,irRi\(i— .5ee Criminal Law, 406. 

( ERTIORARI, 289. 

CHALLEXfiE- 

Of .Jruv IN Civil Actions— .S'cp Jcrv, 
803. 

CHAMBERS, JUDOES'-.S'f« Practice, 10.38. 

CHAMPERTY AND MAINTENANCE, 312. 

CHARACTER— 

I. Defamation ov—See Defamation, 455. 

II. (iiviNfi Servants — See. Master and 

Servant, 8.^8. 

III. Rei'rf.sentations as to — See Fraud 

AND MlSREI'RESEXTATIOX, 572. 

CHOSE IN ACTION, 312, 1637. 

CLERK, ATTORNEYS'- .S'ee Attorney, 167. 

CITY BUILDING ACT - See Halifax, City 
OF, 616. 

CLERK OF LICENSE, 313. 

COLLISION— 5ce Shipping, 1259. 



I 



CONTROVERTED ELECTIONS-fi-f^ Elkc 
Tiox Law, 497. 

CONVENTION OF 1818, 367. 

CONVENTIONAL LINE — .Sfee Boundaries, 
259. 

CONVERSION— .S-fic Trover, 1570. 

CONVICTION— 

I. Summary- Se^ Ji'stices of the Peace, 

807. 
II. Quashing — Sue Certiorari, 289. 

CORPORATION, .369— Se^- Banks, 181— Com- 
panies, 317— Negligence, 918. 

COSTS, .381. 

COUNTIES, AMERCEMENT OF- 

See Amercement of Counties, .55. 

COUNCIL, T0WN-.9ee Contract, .356-Cor- 
poration 369. 

COUNTY COURT, 400. 

COURT, 404. 

COVENANT, 406. 

CRIMINAL LAW, 406. 

CROWN, 419. 

CNRRENCY, 42i. 

CUSTOM, 422. 



X 

CUSTOMS ACTS -See Customs Act, Acts 
18.^5, 4-2-2. 

CUSTOMS HOUSE EMPLOYEE, 4->2. 

DAMAGES, 423. 

DARTMOUTH -See Assessment, 137. 

DEATH, 427. 

DEBENTURES, 429. 

DECEIT— (Se FiiAND andMiskeI'Rksentatio.v, 

582. 



DECREES OF BERLIN AND MILAN, 429. 
DEED, 430. 
DEFAMATION, 4r)5. 
DEMURRER- *e Pleadini!, 990. 
DEPOSnTON-&e Evidexoe, 523. 

DEVIATION AND CHA.VOE OF VOY.\(iE— 

Ac, Siiii'PiNd, 12,")9. 

DEVISE-Sce Will, IGH. 

DISCOVERY— See Evidence, 523. 

DISMISSAL, WRONGFUL— Sfe Master and 
Servant, 858. 

DISTRESS FOR RENT -Se Landlord and 
'I'enant, ^524. 

DOMICIL, 424. 

DONATIO MORTIS CAUSA, 405. 

DOWER, 4(i5. 

DRAINAGE. 407. 

DROITS OF ADMIRALTY— DROITS OF THE 
CROWN— S(c Admiralty, 2(!. 

DURESS, 467. 

DYKE LANDS, 468. 

DYNAMITE— See Criminal Law, 406. 

EASEMENT, 469. 

EASTERN EA'TE.NSION RAILWAY— SeeCoN- 
tract, 323. 

EJECTMENT, 474. 

ELECTION LAW, 497. 

EMBEZZLEMENT- <yee Criminal Law, 406. 

EMPLOYEE, 508-.9.e Customs Hoise Em- 

. PLOVEE, 422. 

ENGLISH BANKRUPTCY ACT, 508. 



INDEX OF TITLES. 

EQUITY COURT, 509. 

EQUITABLE PLEAS -See Pleading, 990. 

EQUITABLE RIGHTS, 510. 

ESCAPE, 510. 

E.SCHEAT, 510. 

ESCROW— .Sic Deed, 430. 

ESTATE, 510. 

EST.4TES TAIL, 511. 

ESTOPPEL, 511. 



ESTREATING RECOGNIZANCE— .9 e Recoo- 
mzance, 1169. 

EVICTION— See Landlord and Tenant, 824. 

EVIDENCE, 523. 

EXECUTION, 553. 

EXECUTORS AND ADMINISTR.^TORS, .^04. 
EXTRADITION —See Criminal Law, 40(). 

EXTR.\-TERRIT0RIALITY, 573. 

FALSE ARREST AND IMPRISONMENT- 
S' e Arrest, III., 122. 

FALSE PRETENCES, .574- See Fraud and 

M ISREl'RESENTATION, 5S2. 

FEES, 574- See Costs, 381. 

FELONY— See Criminal Law, 406. 

FEME COVERT -See Husband and Wife, 635. 

FENCES, 575. 

FILIATION-. See Bastard, 193. 

FI>H AND FISHERY, 57.5. 

FIXTURES, 577. 

FLAG OF TRUCE, 578 -S\e Pri/e of War, 
1121. 

FORBEARANCE, 578. 

F0RCI1M.E ENTRY, 579. 

FORECLOSURE -See MoRTr.AUE, 883. 

FOREIGN AD.TUsr.MENT — Sr-e Insurance, 
Marine, 715. 

FOREIGN BANKRUPTCY ACT, 579. 

FOREIGN CORPORATION, 580. 

FOREIGN LAW, 580. 



INDEX OF TITLES 



XI 



FORFEITURK— 

I. Of (ioons FOR Unpaid DfTiEs— 5''<; Rev- 
en uk, 1197. 
II. Of (Jkant fok Non-1'ekformance uf 
CoNDiTr.N— See (Jkant, 00.5. 

III. Of Lease— S'ee Landlord and Tenant, 

824. 

IV. Of Mimn<; Areas — See Mining: Law, 

8(5(i. 

V. Of Prize of War, 1121. 

FOlUiKRY— AW' Bills of Kx(irAN(;E and I'ko- 
MissoRv Notes, XIL. 224 -Crim- 
inal Law, 40!) Will, Kill. 

FR.AUD AND MLSRKl'RKSHNTATIOX, 582. 

FRAUDS, STATUTE OF, ,->n4. 

FRFIOHT -.<?*« Carriers, 2S;r Lnsirance, 
692— SiiiiTiN.i, 12,')!t. 

FRIVOLOUS PLKAS-*e 1'lkadino, 0!)0. 

FRUCTUS XATUKALES, (ioo. 

f4AMI.VG, GOO. 

(iARIXSHEK— *-; Atta-iiment, \r,3. 

<;AS, G02. 

(JEXERAL ISSUE— Sff; Pleadings, 990. 

(ilFT, 60,S. 

(iOOD WILL, 604. 

COVERXMEXT RAILWAYS ACT, 60.'). 

(ilfAXT, 66.J. 

GRASS, (iROWIX( ;-.<?,,. Furtrrs Xatiralks, 
600. 

GRKAT SEAL OF THE PROVIXCE, 612. 

CUARANTEK --.<;>»■ Contract, .•}2;]. 

CUARDIAN, 61.S. 

HABK.VS CORPUS, 614. 

HALIFAX, CITY OF. 616. 

HA RHOR REGUL.\TIO.\S- .sw. Siiin-iNii, 12.-)9. 

HAWKRRS AND PEDLARS, 631. 

HKALTH, 0.S1. 

HKII{, 6.S1. 



HORSE, 6.3.S. 
HOSPITAL, 6.34. 

HOUSE- 
ATTACHMENT OF TO Soil. ->'«'<' TliOVER, 

' l.")7o. 

.HOUSI-: OF ASSEMBLY, POWKRS OF-.s-; 
I Assembly, Hoi-se of, 126. 

HUSHA.VD A.\D WIFE, 03r.. 

IDENTITY, (i4.-). 

IMPORTATION, 64.->. 

IXDIAX COM.MISSIONER, 64.-i. 

INDICTMEXT-.V, Crlmnal Law, 406. 

INDICKNT DEl!T()i{-.S'w Aim>eal, IV., M— 
Insolveni V, iHYA. 

IXDORsEMEXT- 

I. Of Bills and Xotes -.S'-^ Rills of Ex- 
chance AND I'romissorv Xotks, 
194. 

II. Of Rills of La1)INi; — .S<'Siiipi'inc, I2.')9. 

INEVITABLE ACCIDENT - v. Sim'nN,^, 
12.)9. 

' INFANTS, 646. 

IXJUNCTIOV, 648. 

INLAND REVENUE ACT. 662. 

IN.soLVENCY, mx 

INSURANCE- ■SVf^ Insirance, Fire. 692, IC.'^S 
-- Insirance, Life, 710, lti.'?9 - 
Insi-rance. .Marine, 71.">, 1640. 

INTERE.ST OX .MOXHV, 749. 

INTERNATIONAL LAW-.^^. Fokek.n L\w, 
580. 

INTERPLEADER, 7.-)2. 

INTER lUXJATORIES, 7.-);). 

IXTESTATE- S.e Fxecitors and Adminis- 
trators, ,")(U. 



HKUI .SE.\S- 

Offences Committed o\-S" Criminal 
Law, 406. 

HIGHWAY— &e Wav, 1601. 

HIRIXG, (i.S.3. 



IXTOXICATIXG LIQUOR.-;. 7.Vx 

JOIXDER— .SV' Practice, 103S. 

JOINT SPECULATION, 7.-)7. 

.lOINT .STOCK COMPANIES, 7.-)7. 
i JUDGE, 762. 
j JUDGMEXT, 764. 
'jURAT-.V' Affidavit, 29. 



xU 

JURISDICTION, 785. 



INDEX OF TITLES. 



JUSTIFICATION', PLEAS OF-See Pleading, 
<)90. 

JURY, 803. 

JUS TERTII, 806. 

JUSTICES OF THE PEACE, 807. 

KI.V(;S COLLEGE, 8-2-2. 

LABEL, 823. 

LADING, P.ILL OF-.Vrr Siiii-i'iyc, l-J.'.n. 

LANDLORD AND TENANT, S-24. 

LARCENY— 5m Chiminai. Law, 4<>(!. 

LAW STUDENT, 834. 

LEASE, KU. 



MARRIED WOMEN'S PROPERTY ACT OF' 
1884— Ste Hlsband and Wike, 
635. 

MASTER, 856. 

MASTER AND SERVANT, 8.-)8. 

MEDICINE AND MEDICAL PRACTITIONER, 

8(i-2. 

MERCANTILE LAW AMENDMENT ACT, 804. 

MERCHANT SHIPPING ACT-Sce Siiii'i'i.vd, 
l-2.')n. 

MESNE PROFITS-.Sv=e Use and OccrPATiov, 

.MILITIA, 865. 

MININ(^ LAW, S66. 

MINOR, DEED \i\—S,, Dkkp, 4.30. 



LEAVE AND LICENSE-.v« Tkespass, 1548. minuTES OF JUIXiE. S74. 
LE0AC\,S3j. MISDEMEANORS— ><' Ckiminai. Law. 401. 

LI:(;AL tender, 8.3.-). misdirection- .S' ^ New Tkiae, 927. 

LKOISLATIVE AC I'HORITY - S" Mkitish 

NoKTii Amkkmv a. t, 2(14. MlSFEASANiE -5-r NE.:u<iENTE, itis— TnEs- 

I'Ass, 154S. 

IJIVY, 8.31)— 5m ExrciTioN. .">.V). 

MISREPRESENTATION— 5m Fkah. am. Mis- 

LIP.EL-SM Deiamation, 4.V.. hepkesemaiion, .-.S2. 

LICENSE, S,37. MONEY COUNTS, 875. 

LIEN, S.3S. M;)RT<iA(iE, 883. 

LIMIT \TION OF \CTIO\S WD SUITS 842 MORTIS CAUSA -5m Dona no MohtisCaisa, 

465. 



IJQUIDATED DAMA(;F.S-5i. CoNruArr, .32.3. 

LIS PENDENS, 84!i. 

I-OAN SOCIETY — 5(fc BriLDtNc Societv, 274. 

LUNATIC, 8,-)0. 

MAGISTRATES-5M .Dstk es hf the Peace, 
807. 

MAINTE.NANCE AND CHAMPERTY, S51. 
MALICIOUS ARREST— 5'f AnuEsT, 117. 



I 



MOTIONS — Sm Pkactk e, l(i.3S. 

MUNICIPAI- C(»KPOR\TI')NS-.S''' Ct.Ki'.)- 
KMioN, 369 -Halifax, City of, 
616. 

MURDER-. S'' Criminal L\w, 406. 

NAVIG.VTION, 915. 

NECESSARIES- 

FoR iNFANTS-.S'fi In*-ant, 646. 
For Vessels— .Vee Shii-i'INi;, 1259. 



MALICIOUS IN.IURY TO PROPERTY- 5m NEGI.UiENCE, 918. 
Ckiminal Law, 406. 

InEW <;L\SG0\V, ASSESSMENT UNDER, 
MANDAMUS, 851. P.V LA\V-.Sm> Assessment, IV., 31. 

MANSLAUlJHTER— Vr Culminal Law, 406. SEW TRIAL, 927. 

MAltlNE INSURANCE-5M Issi kanie. Ma- 1 N0N-J0INDER-5f( Pr.vctke, 10.38. 
lUNE, 715, l<t40, 

, XON PROS, 963. 

MARRIA(iE LAW. FOREIGN. PROOF OK— 

5n Ckimlval Law, 406. < XON SLIT, 963. 



INDEX OF TITLES. 



Xlll 



NOTES— (S'ee Bills ok Exchanoe and Promis- I'liRJURY— 5e« Criminal Law, 40G. 

SORY NoTE.S, 194. 



NOTICE OF ABAXDOXMENT— See Insdr- 
ANCK, Makink, 715. 

NOTICE OF DISH0X0R-5M Bills of Ex- 

CllAN(iK AND I'ROMUSOKV XolES, 

194. 

NOTICE OF TRIAL-5fifi Trial, 1565. 

NOTICE TO QVIT-Sm Landioki) and Ten- 
ant, 824. 

NOVA SCOTIA, 970. 

NOVATION, 971. 

NUISANCE, 971. 



OFFICERS OF Tl... CROWN, ACTIONS 

A(;AIXST-Ve E.)ECTMEN1, 474. POOR LAW, Km. 



I'ERPETUATIXGTESTIMOXY-^ee Evidence, 
5l';j. 

PERSONAL CHATTELS, 99S. 

PEW HOLDER, JXTKRFKREXCK WITH 
RIGHTS OF— .See As.saulT: P.M. 

PILOTAGE- &e Shii-pinc;, P259. 

PIRATES, 990. 

PLANT, 990. 

PLKAUIXG, !)!>i». 

PLEDGE- ,SV. Lien, 8.S8. 

POLICY— .S'm Insckance, Fiiie, Like and Ma- 
ui ne, (i'J2. 



ORDKRS IN COL'XCIL, 971. 
OVEIJHOLDING, 974. 
OVERSEER— &e Poou Law, 1034. 

OVER-^VALUATIOX- 6'eclNsrRANi E,FiuE,(59-_'. 

PARLIAMEXT OF CANADA, JURISDICTIOX l'**-^<^^"'''t"'', lO.SS 
OF— Sf British Nuiuii America 



I'OUTS— &« Shii'I-in<;, P_V)9. 
POSSKSSIOX, 103(j. 
POUXD KEKPER, 1037. 
POWERS, 1037. 



Act, •J()4. 

PAROL EVIDENCE Sw Evidence, .Vi.S. 

PARTICLLARS-i'(;« Pleadi.\(;, 990. 

PANKL-*^.)iUY, 803. 

PARENT AXD ClllLD-^Sc Infants, 646. 

PARTIES — Aee Amendment, .38 — Pleadinc, 
990 -Practice, 1038. 

PARTITIOX, 975. 

PARTNERSHIP, 977. 

PART OWNERS— .See SiiH-iMNu, l-_'59. 

PARTY WALLS- *V Fences, 575. 

P.'VSSEXGKR — 6V.e Carriers, -283 - Neiju- 
liENOE, 918. 

PAUPER-&e Poor Law, 1034. 

PAYMENT, 984. 

PEACE OFFICER, 986. 

I'EDLAR-6c" Money Counts, 875. 

PENALTY, 987, 1640. 



PRECEUEXCK AT THE BAR-&-; Qceens 
i CdiNSE',, 1146. 

Pi{ESCRlPTIOX-,SVe Ejectment, 474--Limi- 
TAHoN OF Actions and Scits, 
I 842— Trespass, 1548. 

PHESEXTMKNT-Sie Bills of Exchance and 
Promissorv Notes, 194. 

PRINCIPAL AXD AGENT, 1110. 

PRISONER- .S'ee Criminal Law, 400. 

PRIVILKGED COMMUNIC.VITOXS-.SVe De- 
I famation, 455. 

PRIVY COUXCIL, 1120. 

PRIZE OF WAR. 1121. 

PROBATE COURT, 11.32. 

PROCLAMATIOX, 1142. 

PROCTOR— &e Probatf. Court, 1132, 

PROHIBITION, 1142, 

PROMISSORY NOTES — ^SVe Bills of Ex- 
chanoe AND Promissory Notes, 
194. 

PROSPECTING LICENSES- A'ee Minino Law, 
866. 



PERFORMANCE— See Contract, 323-Pleai)- 

990— Specific Performance, 1.306. PROTHONOTARY, 1144 



XIV 



INDEX OK TITLES. 



P;;OVINCIAI- RAIIAVAVS-iSVe Railways, SALVAGK-.SV. Shiitini;, 1250. 
1U8. 

SATI^^PACTIO-V- 

II. (.)K .lri>i:MKNT — «SVf JUDCIMKNT, 704. 

ITBLIC COMl'A.NV-iSV, ('(impamks, ,'{17- 

iMKioKATioN, Htiit. SCHOOL LAW, 1-2C4. 

I'll'.LIC STPxKL;! -.Sm Way, KiOl. 

l^iLKK.V, THK S. .S.vkki;i.;n, Tiik, l.mi 

gUEE.V.S CoL'X.xHI-, UK). 

(.•(■(tRr.M. llts. 

(.>lO WARRANTO, 1148. 

KAILWAY^;, 114S. 

KAXSOM-.SV. PiiizK «v Wai;, IIl'1. 

RATK-.V. AssKss.MF.NT, l-.'7. 

RKCKIIT, 111!.-.. 

RHCKlVKi;, 11 (is. 

RK('i)(;.\l/C\.\(K, 1I(;!I. 

RECORD, llTit. 



.'^KA, l-24-_'. 

SEAL, V2V.i 

.SKAMAN-.SV. Siiii'i-iNc, 1-_V.9. 

SECURITY FOR COSTS- A'. c Costs, 381. 

i SEDL'CTION- ,S": Hisiia-nd ant. Wifk, (!.'«. 

I SERVANT— »S'- Mastki: am> Skuvant, 8.">8. 

SKRVICE — »SV; CoNsTKi iTiVK Skhvkk, .S"J2 — 
I'H.ViTirK, I0;«. 

I 

j SKSSIOXS, 1'244. 
iSET-OI'F, 1-J4.-.. 
SFTTLIvMHNT - .Sm 15astaki>, I9.S— Poor Law, 



SKWERS, l-24(i. 

KK((>liDER, OF CITY OF HALIFAX— 6'm SHKRJFF, I'.V.O. 
Halifax, City of, (IKi. 



REFERENCE, ORDER OF- .V. Auci'.u.moN- 
"anu .\\\ai;ii, !Mi. 



SlllPI'lX(i, l--V.it. 
SL.\XDER-.SV( Dkfamation, 4.')."). 



RE(il.>-TRAR OF VICI'; AD.M ll{A,;:'V COURT SLAVE TRADE, l.'^til. 

-.S- I'ui/F. OF Wai:, lllM. 



RKGI.<TRATIOX-.S> Rf.(Msti;ation, 117:1. 
RFLATOR-.S'< I'ha.ti.f., KWS. 
RF.LF.ASE, U-J. 

KENT- .S' ' Lankloki. AM. Tknant, S'_'4. 
RKFLEVIX, 11S7. 



.<MUli(;LlXO -,S'.. SMl(;(;LIN(i, 1.S02 — Rkvk- 
MK, II!I7. 

SOLICITOR- 6V« Attounf.y, lti7. 

jSOVEREKiX, THE, 1:1(I3. 

SPECIAL DA.MAOES-.Su DAM.MiKs, 4'J:{. 

SPECL\LT1ES, 1. •{(),-). 



RKSTRAIXIXO 0RDI:R-<S ' Inkm ri n, (i48. SPECIFIC PERFORMANCE, l.SUO. 



IIF.VENCF, 11!(7. 

RIOT, P.'(M». 

RIVFRS, 1-JOI. 

ROAD. I-Jii-J. 

RULKS OF ColRT, I'-'d-i. 

SAlLoR-.S-'.-^iiin'i.sc, l-2')'X 

SALE— 

I.' Of (.ixnts-jV- Salf:, 1'_'(I!». 
n. Of Lam.s— ,SV( Salk, PJJS. 



STAKEHOLDER -,SVt Oami.nc, GOO. 

STATUTES - 

Uo.MiNuiN. 1;!07-Imi'kiual, 13.10 -Xova 
S(<iTiA, 1.S74. 

STAYINci PROl'EEUINGS— AVc Pk.vctuk, 

io:is. 

iSUPRFMK COURT OF CANADA, APPiCAL 

I TO-.SV« Ai-i'KAL, X.', 81. 

I SURETY, l.->4-2 -.S'.- Kail. 17;1 Hills ok Ex 

, CIIAMIF, AM. PkoMISTOKY .NoTF.S, 

I 194 -llo.M., •_'44-Cu.NTKAi;i, ,T.':i. 



TAXATION — 

I. Ok r.ANKS, 181. 
11. Ok I'dsTs, .SSI. 
in. Ok .^^iiU'i'i.Nc, 1'2.59. 



LNDEX OF TITLES. 

1 USK AM) Ot'CUl'ATION, \:m. 
USUltV— jSV- Istkkkst on Monkv, 7-t'V 
VENDOR AND ITKCHASKH, l.MW). 



XV 



TAXF>. LIEN FOK-,SW; Haukax, City ok, VEXIKE DE NOVO-Nm Ciumi.sai, Law, 406. 
(illi-MoilTCACK, 8S;{. 1 



TKLKGKAl'H- 

I. CONTKAIT nv- Srf CONTliAOT, '.Vlli. 



VEXUE-.SV/ Tkiaf,, l.-.(i.-.. 
VERDICT, l-m. 



... P.M.OK OK TK..KUKAM.-&e Kv.OKN.K, , ^j(,g ^0^,j,j^, _ ,-,,. 



.... L.A.siLiTy OK Tki...:.i.i.u'ii Co.m.'any .-ok i VICE-ADMIRALTV COURT- ^efAi.M.iiAi.TV, 

TiaNSMITT.N.: Lll'.K.J.O.S MkS- •.V,-,^,,, ITl NO, llT.!). 

SAoi;-.S((' Dekamat.on, io"). 



TEX A. NT, L-)44. 

TENDER -iV'< H.i.Ls ok Exch.vnok ank I'ho- 

MISSOKY XOTKS, VJ., II, 1!)4 — 

Plea 1)1 no, 9(»U. 
TIME, L-.4(i. 

TRADE AXD TRADE MARK, 1.547. 

TREATY, I.-.4.S. 

TRE.SPASS, L-,48. i 

Ti;iAL, L-.ti.-.. 
TROVER, 1.-.7U. 
TRUST, L-)8-_>, 
USA(;E, \'^H'X 



WAGER— ,Sfec (iA.MiNO, 00(1. 
WAR, L->!)7. 

WARriHOU.sEMAX AXD WlIAKEIXiiER, 
L'lStS. 

WARRANTY, LVJS. 

WASTE— *V DowKi:, 4(i."). 

WATER AXD W.Vl'ER COURSE, 1601. 

WAY, UiOl. 

WEIGHTS AXD MEASURES-AVt IIalikax, 

CiTV OK, (11(). 

WIFE— *<- HrsiiANi) ank W.ke, O.T). 

WILL, 1011. 

WORK AND LA]JOR-,S'ef Cpntkact, .323. 



A CHliONOLOGlCAL LIST 

OF 

^\)c Ucports 
CO^IPEISED IX THE DIGEST. 



NA.MK OK REPORT. 



COURT. 



DATKS. 



HOW CITKl). 



Stewart. 

1 'I'liomson, 1st Etlitiou. 

Oxley's Young's Ailmi- 

ralty's Decisions. 
Russell's E(juily Decisions 

of Ritchie, E. J. 
Russell's Election Reports. 



Vice- Admiralty. 

.Supreme. 

Vice-Admiralty. 

E(iuity Court. 

Ad Hoc Election Court. 





r 1 


1 Tiiomson, 'ind Edition. 


Supreme. 




o 


.James. 


Supreme and Vice 




'a 


•2 Thompson. 


Supreme. 




4 


Cochran. 


It 




.") 


I Oldright. 


Supreme and Vice 




(> 


2 Oldright. 


Supreme. 


g 


7 


1 (ieldcrt & O.xley. 




€ 

w 




(Nova Scotia Decisions.) 


1 1 


u 


8 


2 " 


li 


P5 





3 


" 


5 ■ 


K) 


1 Russell & Chesley. 


{( 


H 


11 


2 " 


li 


^ 


\'l 


.S " 


(t 


Vl 


VA 


1 Russell & Geldert. 


(( 


> 


14 


2 " 


(( 


;! 


1.-. 


ii 


<< 




M 


4 


ft 




17 


■) 


(( 




18 


(i 


(( 




lit 


7 


(( 




.20 


8 


t( 



Admiralty. 



B-Admiralty. 



180;M81.S Stewart. 
18.S4-1841 1 Tliom.,(lst Ed.) 
1863-1881 Y. A. 1). 

1873-1882 R. E. 1). 

1874 Rus. Eloc. Rep. 



1S:U-18.-)1 I Th()ni.,(2dEd. 

lS,".;M8,Vi .lauies. 

lS.-)ti-18:)!> 2 Thorn. 

18.")!) Cochran. 

18(iO-lS(i,-> 1 Old. 

18G5-18G7 2 01(1. 



isdii- 

18(i!»- 
1872- 
187;-,. 
187t!- 
1877- 
1S7!|. 
1880- 
1881- 
188.S- 

188:?- 

1884- 
1880- 
1887 



I8(iy 

1872 

187.-> 

1870 

1877 

1879 

1880 

1881 

1882 

1884 4 R. 

1884 !-■) R. 

1880 it) R. 



1887 



1 i\. S. D. 

2 X. S. D. 
.-J X. S. 1). 

1 R. & C, 

2 R. & C. 
:? R. & ( '. 
1 R. &(i. 
2R. & (;. 

3 R. & (J. 
& O. 

& (;. 
& (;, 
& (;. 

20 X. S. R., 
(8 R. tS; G. 



R. 



Murdoch's Epitome, cited as Murd. Epit., contains notes of s<in.c Xova .Scotia ca-ius which 
have been included in the Digest ; 

Cassels' Reports of the Supreme Court of Canada are cited as S. C. R. ; 
Cassels' Digest as Cas. Dig. ; 
Canada Law Times as C. L. T. 



DIGEST 



OF THE 



NOVA SCOTIA 

COMMON LAW, EQUITY, VICE-ADMIRALTY, 
AND ELECTION REPORTS. 



THE LATEST REPORT INCLUDED IN THIS DIGEST IS 20 N. S. R. (8 R. & G.) 



ABANDONMENT- 

OF SHIPS OR CAROO. — .S'et INSURANCE. 



ABATEMENT- 

I. OF NUISANCES.— .S'te CRIMINAL 
LAW. 

II. PLEAS IN.— .S'ee FLEADINCJS. 



ABSENT OR ABSCONDmO DEBTOR. 

I. WHO MAY BE PROCEEDED AGAINST. 

1. Man of War Sailor- A sailor coming 
into tlie Province, for a sliort time, in His 
Miijesty's service, ciin scarcely lie the person 
intun<kMl by the Act (1 Geo. .3 e. 8 of Nova 
Scotia), iin-lcr tlie description of an absent or 
absconding debtor. 

The Bermuda, Stewart, 231. 



2. Effect of appearance on question of 

jurisdiction— Plaintiffs, iloing business in the 
State of New York, issued an attachment 
against defendant, a dealer in preserved gf)ods, 
residing in Maine, as an absent del>t(jr. It ap- 
peared that defendant had for several years con- 
tinuously carried on business, through agents, 
at Sable Island and other places in Nova Scotia, 
wliich defendant admitted tluit he occasionally 
visited in prosecution of his business, renuiining 
a few days. One of the plaintiffs swore that a 
consiilerable portion of the claim was for money 
advanced to enable defendant to carry on his 
bushiess in Nova Scotia, and that he verily 
believed that a large part, if not the whole 
claim, arose in Nova Scotia. Defendant swore 
that no part of the claim in suit could be for 
indeljtedness contracted in Nova Scotia, and 
that he had not carried on any busuiess with 
plaintiiT, within the Province since the date of 
the first item in tlie partiLt:Iar8 of demand. 
Held, by DeslJarres, J., (who delivered the 
judgment of the Court), that facts had been 
; sworn to by plaintiff, which, if true, gave the 
I Court jurisdiction, that it was not for the 
Court to look at conflicting statements in the 
I afiSdavits, and, further, that defemlant could not 



s 



ABSENT OR ABSCONDING DEBTOR. 



raise the (piostidn of jnri.sdictiDU after liaving //</</, tliat this was a defect which might be 
tiled an appeatuuce ; Wiiiiiiis, .J., dii^ditiinj. cured l)y waiver. 

Dudley, ef. nl. v. Joins, 1 R. & C".,;j(M). ' A//nii v. Ca-in-,//, \ Old., 40ri. 



3. Absent on pleasure or business— Wheie 

a pai'ty goes out of the province for a short time, 
either on Imsiness or jileasure, leaving his 
family, rftfiileiit therein, he is not an alment 
debtor, within the meaning of the Act ; hut 
when he terminates his Imsiness, removes his 
family, and his affairs are in a state of embar- 
ras.sment, he will come witl-.in the Act. 

S/nn- t.f a/, v. Mnin-iy, 2 'I'hom., 244. 

4. Necessary that defendant has resided 

or debt being contracted in the province— To 
enal)le ])laintitl' to maintain an action against 
defendant as an al>sent delitor, defenitant must 
have resided or the debt have been contiacted j 
within the I'rovincc. 

Cochrfiii V. />/(;(('a», '2 '1 hom., SO. 
Mi/chimii v. JJniicaii, Id., 8(j. ; 

5. Acquisition of Real Estate by non-resi* 

dents — The purchase and ac(|uisition of real ' 
estate in this Province by a i)arty who has I 
never resided or done business therein, either by 
himself or agents, is not sutiicient to Ijring him : 
within the jurisdiction of the Court as an ab- 
sent or al)sconding debtor. ! 
Cochran v. Duimtii, "iTIiom., SO, afHrmed. 
Mills V. Smith, •_' Old., JSO, I 

II. AFFIDAVIT FOR ATTACHMKXT. i 

I 

1. Intituling—Description of Deponent— ' 

I" is no objection to an athdavit for attachment 
against an absent or absconding debtor that it 
is heatled in the cause, nor that the ileponent, 
who was the plaintitl', described himself as "I, 
A., of Shelburne, merchant, the defendant in ; 
this cause," as the latter words may lie rejected i 
as surplusage. 

Allan v. Casinll, 1 Old., 405. \ 

I 

2. Before whom sworn— Where the affi- 
davit on which an attachment was grounded was 
made before a .lustice of the Peace, and it ap- 
peared that a connnissioner for the County was, 
at the time, at his usual residence, within three 
miles oi' the place where the aftidavit was made, 
the attachment was set aside. 

Knod'l V. Jhsf, 2 Thom., 149. 
S^ee Infra iii. 12 ami Ifl. 



4. Claim sounding in damages— U'here 

the affidavit on which to ground an attachment 
contained a claim in an action sounding in dam- 
ages, hi Id, that the ])i'ocesscoidd not be sustaine<l. 

/Vr Bliss, J. Wlienever the case is such that 
I if bailable process were to be issued, a special 
order of a Judge would be reijuired, the writ of 
attachii.ent cannot be issued. 

.Viiiison V. .Uiirison, 1 Thorn., (1st Kd.), 102; 
(2nd Kd.). i:tl. 

Rut •(«'.; r)th Rev. .Stats., c. 104, O. xlvi, R. 2. 

5. Statement of cause of action -Defects 

in — Bad in part — An attinhuient ca-mot be sus- 
tained for unli<|uidated damages : and wiieii a 
claim for such damages is iniited with a demand, 
for which an attaciiineut coidd be ^ustained, it 
will invalidate the whole proceedings. 

t)verruled bj- Mrjjonald v. Frasir,li R. & O., 
203; and «-, .'.th Rev. .Stats., c. 104, O. 
xlvi. R. 2. 

.]/ iirisoii v. Miirison, 2 Thorn., 252, 

6. Cause of action Indorsement on writ 

— Amount too large —Allowance of writ not 
nece.saary — The atlidavit for attachment against 
tlefendaiit as an alisconding delitor set out that 
defendant Wiis indebted to plaintitl' in the sum 
of .':<H2.82, for tiiat plaintitl", by his promissory 
note, itc, had promiseil to pay plaintitl', as 
guardian .^oti.TO, with interest, itc. Also, that 
defendant was indelited to plaintili" for expenses 
in comiection witli said note. 

Held, that as there was nothing in the expres- 
sion as to expenses to indicate a legal liability, 
the affidavit of a cause of action in that respect 
was not sufficient, but that a distinct "cau.se of 
action" was shown ami could be gatiiered from 
the atKdavit to the amount required for an 
attachment, and although the writ was not in- 
dorsed for the amount so shown, but for a larger 
amount (/. t. including expenses), the attach- 
ment could not be set aside on that ground. 
The indor.sement of the amount need not be 
signed by theCommissioner,nnrthewrit allowed. 
McDonald, C. .)., dissi ntiiiij as to the necessity 
jf signing the indorsement. 

McDonald v. rraso; 3 R. & O.. 203: 
2C. L. T.,(10(i. 



3. Claim for Interest- Xo contract to pay I. Trustee -Suflllclency of Affidavit by — 

— The affidavit stated the debt to be for goods Where ])laintiir, as trustee, olitained a writ of 
sold anil for interest, without alleging a contract attachment on an atlidavit, which set foith that, 
to pay interest, or distinguishing the amount from proceedings on tile in tlie Court, it appear- 
due for interest. ed, that defendant stood indebted to the trust 



ABSENT OR ABSCONDING DEBTOR. 



6 



fiitiil ill tlie sun' of .t!'J!l0.4H. and conuliulcil thus : 
" Anil tliis (li'ponent fiiitlu'r saitli tliiit liu vuiily 
bvliuvtM timt tlie siiid .liiliii MLl'iiitnL'y is 
afi'iiriliiiiilii iliilelitud to tiii« cKpoiient, us Miili 
trui'tuu in tlicsaid Niini," iitlidiivit licld sullicicnt. 
Kask V. McCartiiij/, '2 Tlioin., lt>7. 

I 

8. Aflldavlls as to absence -An .uiaLlnncnt 

iigiiin.st a dctViidiint as iin id)S(;iindingilelitor will 
l)f set a.-ido on tlii' dcfindant shewing that 
having left tiic I'l-ovince with the intention of 
I'etiiining imniediatuly, his alisenee was pro- 
longed l>y linavoidalile delays in eoneliiding his 
linsiness. 

Miirdorl; v. Hmjlux, James, .'WS. 

0. Prncess aj^alnst absooiulins debtoi*, 

burden on creditor Against absent burden on 
debtor - //'/(/, that when attaeinnent issues 
against a party absconding, plaintitt' must fur- 
nish clear evidence of the fact to t!i" Court to 
prevent the exercise of their summary juris- 
diction in setting it aside. Hut wlu'U against 
party absent, defendant must prove that such 
absence was temporary, and the issue of the 
attaeinnent an abuse of the process. Bliss, .1. 
(/(«< iitiiiij. 

IliKii •! III. V. Sniih , 1 Thorn., CJnd Kd.), 200. 

10. Affidavits as to absence — I'rocess 

against a party as an alisent or alisconding debtor 
will be .set aside upon atiidavits that he was at 
home and alxjut his oi'dinary business when the 
process issued. 

The fact of a defendant merely keeping out of 
till! way of service of pi iccss is not a sutKcient 
grounil to sustain process agiiinst him as an 
alisent delitor-. 

(Juncfi — Whether writs of attachment and 
stnnmons against absconding dcbtoi's should be 
made returnable under I'raet. Act, Acts IS.")."}, 
e. 4 sec. IM, or under Acts 1S.")4, c. 7, sec. 1. 

•Slaplcifl III. v. Taylor, James, 'A'H). 

11. Affidavit ns to absence— Process was 

issued against defen^'unt as an alisent or ab- 
sconding debtor on the usual atlidavit. Appli- 
cation to set the process aside was supported 
by defendant's alKdavit setting out that he liad 
never been out of tiie l'ro\ inee, but had merely 
gone to Annapolis and elsewhere in the Province 
on business. Aliidavits were read in answer 
showing that the members of defendant's family, 
one of whom had been constituted his agent, 
had given " unsatisfactory if not contradictory" 
answers to iniiuiries, and that the defendant's 
son on one occasion iiad stated that his father 
was in Toronto and he expected was then on 



his way home. Held that the defendant was 
rightly proceeded against under the Aliscomling 
Debtors' Act, 4tli R. .S., c. !I7, s. 1. 

h'liit V. Adli„iii(,,i. '1 \K. k ('., 14. 

III. ATTACHMKXT, WFITor. 

1. Equitable claim — An attachment may 
issue for an ei(uitable claim. 

A'((.</i V. MiCarhii I/. '2 Thom.. lt)7. 

2. Writ issued by Assij^nee of chose in 

action— Notice of assignmtnt unnecessary be- 
fore is.«ue of— 4th Rev Stats., c. 94, .sec. .S57 
— I'laintitV, as assignee of .J. .S. Mel)., to whom 
defendant was indebteil, attached certain goods 
of the clebtor ; chattel moitgagees sought to 
'. .s(!t asiile plaintiH's attachment, on the ginund 
j that the debt was not "justly due " and "jiay- 
lable" to plaintitt', as there had been no notice 
j given by jjlaintirt' nmler 4th Rev. Stats., c. !)4, 
I sec. .'{.")7. 

I //'/(/, that notice was not neces.sary in order 
to eiuible plaintitt' to attach, cf. 5th R. S., c. 1(»4, 
(). l.\i. 

/'ui-snus V. Mar I. Kill, .S R. & <;.. 41)."). 

3. When attachment binds proper!} -An 

attachment against an alisconding clelitni' does 
not bind property not actually levieil upon. 

Cnii/hfon it ul. v. Daiii'U, James, 804. 

4. Attachment and summons for at,'ent 

binding, although appearance entered and 
common bail filed— When the defemlant is liable 
to be ])roceeded against as an absent or ab- 
sconding debtor, the plaintitt' will be entitled 
to retain the goods taken under the iittueinnent, 
and the goods, etl'ects and credits in the hands 
of a duly sunnnoncd agent of the defendant « ill 
be l)Ound. even althoutrh the defendant entei' an 

I appearance ami tile connnon bail in the action. 

I Stun- v. Muiir, ij, •_> Thoni.. •_'44. 

I .1. .lurisdiction Sheriff's return Where 

I .Sheritt "s return stated that he had attaciied 
goods " f(.« ■ the projiertj- of the absent ilebtol-. 
Ill III. not to be a return warranting the t'ouit 
in assuming jurisdiction. 

To give the ( ourt jurisiliction the return 
should state positively tiiat tlu^ .Sheritt' has 
attached goods or estate of the absent debtor. 

Itdli'liford V. ('Iiiji»iaii, '2 Tiiom., '2li't. 

6. Jurisdiction — Sheriff's Keturns — 

Amending — Actual seizure of property, belong- 
ing to the defendant, under the attaeinnent or 
the summoning of an agent who has goods, &c., 
of the defendant and not the slieritt's return 



ABSENT OR ABSCONDING DEBTOR. 



8 



iiieiL'ly givof) tlu' Court jurisdiction in iiinci's.s 
(iguinst tiliMcnt or iiliHooniling ilubtor. 

ItntchUird v. Clii/niuiii, '2 Tlioin., 'J.M.'), di.stin- 
guisiifd. 

Mnr'nou V. lUnjil, "J Tlioni., 'IVi. 



10. MortgiiKe recorded Then atturhmcnt 

—Then aHHignment of mortgiige - Attacliing 

creditors do not acquire property over HHsignee 

'I'lio (lefeiuliint, lioiding a mortgage on curtaiu 

real estate wliiuli was duly reconlid, assigned 



Ti.e Court will pmnit ti>e ^i.^riil' ,o unuanl '''^' *'="'''^ ^'' ^''^ •'''""^i''"^' '^f'^'' ^'''y'' '^^^^^^^^^^^ 



his return to a writ against an alisent delttor, 
so as to state that the property attached was 
the property of the absent dehlor when the 
ownersiiip of the property is nut disputed. 

ll,id. 

7. Return to writ of— <?«««« — Whether 



purchased the eipiity of i-edenij)tion, and the 
deed was didy recorded. Attichnients were 
thi^n issued against the defendai.: as an abscond- 
ing debtor, and the attachments, \\h well as the 
judgments entered thereon, »>X'ro placed ou 
record before the assignment of the mortgage. 
'I'lie attaching creditors claimed, under 4tli Re- 



writs of iittachment and summons shouhl be vised .Statutes, c. 7!», sees, lit and '2^2, to nave 

made returnable umler Pract. Act, Acts IS.").'}, I»"i'»'ity, as against tlie assignee of the mortgage. 

0. 4, sec. 10, or under Acts of bS.-)4, c. 7, sec. 1. H'l'l^ that the mortgage remained a lien on 

S>apf<s i:t a/. V. Taylor, .James, .'f-'d. ^Iie property, whether the assignment was rc- 

I corded or not, and that the att^iehing creditors 
8. Attachment, writs of Priority— The \ ha<l not the priority claimed. 



attorney of A, B and C, on the Kith .luly, took 
out writs of attachment which were levied on 
property of the defendants in Halifax County 
on July ITtli, and on July litth he issued a writ 
of attachment, at the suit of 1)., which was for- 
warded with the other three writs on the same 
day to the .Sheriff of Hants, where they were 
levied on defendant's property there. On .July 
17th, a writ was issued at the suit of E, and 
levied on the Halifax property on the same day, 
but subsequently to the levies at suit of A, B 
and C, and on the 19th July a writ was issued and 
levied on the Halifax property at the suit of F. 

HiM, reversing the decision of Young, C. J., 
who had confirmed the reiM)rt of the Master, 
that the property levied on in Hants had been 
rightly appropriated in the first place to the pay- 
ment of D's claim, and the balance to the claims 
of A, B and C. 

Hdd, also, that an appeal from the order of 
Young, C. J., having been refused a motion to 
rescind it could be resorted to. 

In re, Cameron's Circus, 2 R. & G., 248; 
1 C. L. T., 709. 

9. Waiver of Irregularities— The affidavit 

stated the debt to be for goods .sold, and for 
interest, without alleging a contract to pay inter- 
est, or distinguishing the amount due for interest. 
Hi Id, that this was a defect which might be 
cured by waiver, and that it was so cured in 
this case l>y lapse of time and a step taken in 
the cause, though the step itself was a nullity, 
as it appeared that the attachment was issued 
in June, 18G2, and the defendant, in July, 1862, 
by letter, spoke of the suit and admitted the 
del)t, — tliat judgment was entered in May, 
186.3, and that the defendant filed an appearance 
and plea on 3rd October without leave. 

Allan V. Ca-sicell, 1 Old., 405. 



Raymond ct al. v. liichardx, R. E. 1)., 423. 

11. Sheriff Justifying under writ of attach- 
ment— Must prove indebtedness— Affidavit of 
attachment not uufficient proof— Where the 
defendant, as sheriff, seized, under a writ of 
attachment, goods in the ptissession of the plain- 
titf, to whom they had been transferred by the 
alleged absconding debtor, and the transfer was, 
in a suit by the plaintiff against the sheriff for 
the alleged conversion, attacked as fraudulent. 
Held, that tlie justification of the seizure under 
the writ was not complete without proof of an 
indebtedness from the alleged absconding debtor 
to the party attaching, and that the production 
of the affidavit on which the attachment issued 
was not sufficient for that purpose. 

MilLt V. McLean, 1 R, & C, .S79. 

12. Conflicting statements In affidavits— 

Conflicting statements in affidavits are not re- 
garded in application to set aside attachment 
against absent delators, where facts have been 
sworn to by plaintifT which, if true, gives the 
court jurisdiction. 

Dudley at al. v. Jone», 1 R. & C, 3(J6. 

13. Assignment under Insolvent Act 

after attachment issued, but beforejudgment— 
Assignee entitled to money paid into Court as 
proceeds of sale under order in the attach- 
ment suit— Plaintiff, on the 16th August, 1873, 
issued a writ of attiichment against defendant, 
an absconding debtor, the affidavit of debt des- 
cribing him as a trader. Defendant's goods 
were attaclied August ,30th, and, pursuant to a 
judge's order, made September 4th, were sold 
on iSeptendier l,")th, and the money was paid 
into Court on October 7th, to respond the plain- 



9 



ABSENT OR ABSCONDING DEBTOR. 



10 



till s illil>,'IIU'llt, llftff uhicli, (Ml tile I'.ttll ()ct'>- 
JM'f, (wowciliiijis were tiikiMi iiiicli'C tlii' IiihoI- 
vent Ai't of 1S7."), Ik )nil (Iffi'lidiillt'f* cst.ltt' ill 
(•riMij)iil«i'ry liiniiiliiticin, iiml tlic c.xtiiti' |);iKSfil 
into till' liiiiuls of tilt! iisMi;.'Mi't'. i'lniiitill'i'laiiiii'il 
a lii'li illliic'l' ills uttiiclililciit ; Ihlil. tlliit the 
aHsij.'in'u wiis ciitititil tu the iiKHicy jiiiiil iiiln 
Cuiirt. 

14. Asslgnre under IiiNolvent Act— KIkIUm 

of before jiiilyment to iirojurty attached 
\Viits of altucliiiifiit iij,';iiiisl the iiiort^';i;4(pi', an 
nil .iliseoiiiliiij,' (li'litor, wiTt; isMiiiMJ, and dcliver- 
cil to the shciitlon M:iy'.'t»tli. An a|)i)niisiiiuMt 
(if the iiiort;,'iii,'i'il jirciiii.ses was iiiaile, ami iiopifs 
(if the Wlit, with the appiaiseliieut aliil cle.srn|)- 
linii of the land, were legisteied on May iMst. 
On the saints day a Wlit of iittiiehnient, under 
the iiisolvent Act of llSliO, wa.s taken out iij,'aiiist 
the niort^'at;or, Imt was not delivered lo the 
Kheiiir until after' hi! had re','i.stered the doeu- 
lie'iits iiiiimvfed with the |)rocuei lings under' ihe 
Aliseondiii!,' Dehtois' Aet. 

I[il<l, that the eliiiin of the assignee of the 
t'state to the sui'iilus jiroeeeds. must pr'evail 
over that of the attaching creditors. Section 
2\. of c. 7!l. 4tli K. S., is eontriilled liy the In- 

pnlvellt Act. 

A/ moil it (il. V. <!nn/ </ <il.. K. K. I)., 11. 

15. Property rraiKliilcntly nsslKned At- 
tachment of .su.^taiueJ Defi'ii laiit a|i|)lied to 
.set aside a wi'it of attacliinent, levy and shelitl's 
retur-ii on the gi'ouiid that tids Court had no 
jiirisilietioii ln'cause the property attached was 
not that of the defeiiflant, liaviiig heeii oonveyud 
to a trustee in trust for his wife some time jire- 
viously. Atlidavits were read in reply to shew 
that the trust deed was made fraudulently and 
in contemplation of insolvencj'. 

The rule was ilischnrged with costs. 

Thoiiijis.iii V. /•://!■■<. i R. & (;., .SOT. 

16. Creditors' nssijj^nec lti;a^lit.s of, agiiinst 

att:vching creditors — .1. ('. died about the year 
I.Sd'J. ])ossesseil of a fund amounting to t8,ti3S 
■_'s. 4d., wliieh he devised to trustees upon cer- 
tain trusts in favor of his daughter and others, 
iiriil upon failui-e of such devises, then to his 
nieces or- their' lawful issue. The original de- 
vises in the will having failed, a r'ule was ]> issed 
in the I'^ipiity Court on a suit instituted liy the 
trustees liy which it was ordered that a portion 
of the fund shouhl lie distrilmted and j)aid liy the 
trustees in certain pi'oportions among the next 
of kin of the .said J. C. 
M. \V. being entitled as one of the next of 



kin, with .1. S. W. her husband execulid a 
power' of attorney to S., enipower'ing him to 

' receive the iiiomy coming to her by virtue of 
the said will. On the ."ird April, iHliH, S. received 
under said jiower the sum of .'?l,!f27, which, on 
tin' same day, was attaehi'd in his hands by 
K. r>. on process issued against .1. .S. W., the 
hrbb'cud, as an absei.'t or ubsconding debtor. 
Or. the 'J.'ti'd l'"ebi'uary |ireviously, d. .S. W. had 

' li.'eii adjudicated a bankrupt in i'liigland, and a 
creditors' assignee was appointed. Notice of 
this was received by S, on May "Jlst, I.MiS. but 

' no notice of the bankruptcy had been received 
by K. U. at the time of the issue of the attaclimeiit 
prdcess. .S. was iiotilicd by .M. W. on duly 
•_'!ttli. ISI'iS, that she claimed the fund in i|Ucs- 
tion in her own right, and she followed this uj) 

I by a suit in l''.i|uity. 

! //•/'/, on a case prcpar'ed that the creditors" 
assignee was entitled to the fund as against H. I!. 

' the attaching cri'ditor'. 

' //(A/, also, llial the bankrui)tcy of .1. S. W. 

I determined llii! ]iowel' of S. to r'eccive tlic fund, 
that it had not been reduced into possession, 
and that it, therefore, must be treated as if still 
remaining in the li.iiids of the trustees. 

Jl(/il, also, that tlii! cr'editois" assignee was 

' rrot entitled to the fuiiil without making ])rd- 
visiori for' the wife, and that the latter, beirr<' 

1 eiititli'il to the fuiul as a rhn.ii In iirliim^ w'as 

justilied ill coming into eipiity for' her pidtection. 

Ililil, also, that as .J. S. \V., the husliand, was 

a liankrujit, and the sum in controversy not 

large, and .M. \V., the wife without any ])ro- 

vision made befoi'e or at the time of her' m.irriage, 

the taxable costs being til'st ])aid. the balance of 

tlu' fund sliould be paid or'secur'ed to her' for- her- 

own bcnetit. 

/i'oy«(/' v. y,li<uiiinii, ■_' \. S. ])., 14(). 

\1. Subsequent uttaclier KIglil or, when 

debt of first attacher' secured — \\'lieii T. , a 
snbse(|ueiit attacher, in his alHdavit in sujiport 
of a motion to set aside ])r'ocess of pr'eceding 
attacher, stated that the plaint ilf was secured, 
in part, by a mortgage and that, if the direc- 
tions of the Court of Chancery had been com- 
plied with, security had been given for tlie 
whole amount. 

Held, that T. had shown a riglit to interfere. 
The Cour't dii'ectcd a jury to iii(|uir'e whether 
])lairititr had any and what good and sutlicieiit 

security. 

Xa<li V. Mr/'rirhi' I/, '2 Thorn., KiT. 

18. Attarlinient, writ of-lteturn day -Set- 
ting aside for benent of subsequent attacher^ 
A writ of attachment against an absconding 
debtor will not be set aside for defect in the 



11 



ABSENT OR ABSCONDING DEBTOR. 



12 



li'tui'ii iliiy except iit the iiiwtiiiice (iiul for the j 
tielietit of tlie ilefemlimt ; iiinl wlici'e groiin(l» 
are liiid for Hii|)|icisiii;{ thiit tlie ii|)|)li>"itioii iiiiiy 
)((• lliiiih' fill' the interest of a siiliseiiuelil iit- 
tiU'hc'r the Court will reiniire iitHil;ivit-i to the 
contrary liefore j.'riintini.' the rule. 

',<(«(</■' —Wliet her wiits of uttiiciniunt •-liiiiihl 
ho niiide retiuimhle on ii !*|>ecial return ihiy or 
umler Act of IS.'it, c. 7. Cri iii/tliui it (i/. v. 
I hiiili Is, .Iiinu's, ;U7. 

lU. Scllliie aside profeiMliiiKN Who may 

move— IMiiintiir liaving |)roceecUil aj^aiiist liu- 
femhmt as an ahsent (hlitor an a|)|ilicatiiin was 
niacU' (in hehalf of one Willis claiming; to lie 
owner (if the property attached to set aside the 
])i(iceedin>,'s. It a)i])cai(Ml that defendant had 
two others in ])artnership with him in the Im.si- 
iicss in connection with which tlie deht arose, 
one of whom was in the Province at the time 
the process was issued. 

//</(/, that, neither defendant nor either of his 
partners having moved, there was no one 
before the Court who could he heard in support 
of the contention that defendant when sued was 
not suliject to the law autliori/ing proceedings 
against absent or absconding debtors. Affidav- 
its made in Boston, ])urporting to be made before 
I'.in^'liam, "Chief .histice of Sujjreme Court," 
without specifying the court, held good, when 
the jm'at contained the words " the seal of which 
court is affixed," and the uttidavit bore the seal 
of the ])rojier court. 

Itoh'-rt-toii V. Cameron, 2 R. & C, 2()1. 

20. Appraisement — Sh raring Appraisers 

Levy— When it may be made — From when j 
effectual — When the appraisement shows that j 
theajipraisers were sworn and thesherill "s return i 
refers to the appraisers' warr.mt the swearing of 
the appi'aisers sufficiently appeal's. 

".Service on the agent fif process to ap])ear," 
in sec. l?(>, c. !>7, of 4th Rev. .Stats., means 
service on the company's agent of process 
rerjuiring the company to appear. 

Levy \inder the attachment under that chap- 
ter may be made liefore service on the agent. 

The levy is eH'ectual from the time of sei'/.ure 
of the pi'o])ei'ty and not merely after appraise- 
ment and sel( ction of the property to be held to 
respond the judgment. 

T/i' .\f< rcliaii/x' /iniih v. The Sitel Company of 
Cannihi (Limited ), ."> R. k O., '258. See ,'>th 
Rev. Stats., c. 1(»4, 0. xlvi, R. 4. 

21. Execution without positive instruc- 
tions to levy— Attachment — An execution had 
been in the .Sheriff's hands a little befcjre an 



attachment, but he did not receive positive direo- 
tions to levy itninediately under thi! execution, 
but under the attachmeiil he did. 

1 1' III, that this execution did not bind per- 
sonal jii'operty against tiie attachment. 

Mil'liill V. /{in/niiif, ;< Murd. Kpit., •_'.'{.">. 

22. First allacher entllied to costs bcfiire 

seeond at*aeher can come in A \esseliif de- 
fendant had I n attached by several crcilitois. 

The defendant returned to the jiroviiice a:id con- 
fessed judgment to the first attache!', who lliere- 
upon levied his execution for his debt and costs in 
full, and the subse(iuent attacher, endeaMM'ed to 
olitain a rule against the .Sherill' (who had acted 
under an indemnity), but the Court upheld the 
course ])ursued by the tirst attacher, deciding 
that a judgment obtained under these circum- 
stances was regular, and that the tirst attacher 
nnder the absent debtor law was entitled to his 
costs, before the subserpient attachers could 
come in for anything, contrary to the rule in 
attachments not uiu'er that Act. 

JIurtIr V. IhnU' , ;t Murd. Kiiit., •_'.■).■>. 

IV._,SUMM(1XS FOR A(;i':N'T. 

1. Who Is an agent, &f. Prize agent - 

A prize-agent is not either an attorney, factor, 

agent or trustee within the meaning of the Absent 

and Absconding Debtois" Act (1 (ieo. '^, c. S of 

Nova Scotia.) 

'I'hi /{irniiiiln, Stewart, '-'."{I. 

2. Deposit in Savings Banii in debtors' 

own name of money not his— ^Cashier not an 
agent — When an absconding delitor deposited 
money belonging to others in the .Savings' Rank 
in hi- own name, the cashier cannot be held to 
be agent of the absconding ihditoi'. 

MacAijij V. Ciiiiiior.i, '2 Thoin., S. 

3. English Banlirupt— Debts due him in 

this Province cannot be attached -After a 
party has been declared bankrupt in Kngland, 
debts due him in this Province cannot be at- 
tached. 

FrcMn- V. .Von-oir. •_' Th(mi., i.T^. 

4. Actual summoning and not sheriflT's 

return gives Court jurisdiction — Actual sum- 
moning of an agent who has goods, &e., of the 
defendant, and not the sheriff's return merely, 
gives the Court jurisdiction in process against 
ab.sent or absconding debtor. 

Katchford \. Chipman, 2 Tlioni., 23,"), distin- 
guished. 

Murinon el al. v. Boyd, 2 Thonj. , 247. 



13 



ABSENT OR ABSCONDING DEBTOR. 



14 



5. Llablllt J of agent after service - r>>o 

(Irfciuiaiit's lpiii'i(iio ciin^lit tiii;, uiiil wasNUUttlud 
mill Huiik ill lliilifiix liiirlior. Slir whs iiiiM(Ml liy 
till' Ciiliiinl.iii Coast WrcikiiiK Cimipaiiy ami 
siild 111 mil' (!. Wilson, at |iiiipli(; uuctioii, on 
Drirliilpi'l-'J-Jnil, iHti.'i, iov till' sum of Oi.VJ lOs., 
Ill' piiyiiii.' a (li'posit of t'."i(>, ami rt'tainiii),' tlic 
lialiuic'c. On tin' null .lainiaiy, IStlti, Wilson 
rci'i'ivfd a Mil of salt' of the liaii|ne, Imt iliil 
not ri'pster it niitil the "iritli of May. Un the 
1-ltli of Maii'li, ])i't'vious, the plaintitl' com- 
ineiioc'd pioct'i'iliiiLis aj^aiiist defemlant as an 
alwi'iit or alisi'omliiig ilelitor, nmler which the 
hai'ipie was attached, and, on the Utth of the 
same inonth. Wilson was served with a sum- 
mmisi, as defendant's agent, in order to liiiid the 
lialanee still remaining in hi» hands. Suhso- 
(pient to the service upon liini of the »iiinnioii.s, 
Wilson, out of the funds in his hands, paid to 
the agents of the Wrecking Company the sum 
of i^sH.S.tiT, f'>r their demand for salvage services. 
Jfi/d, iiifi r alia, that having done so with 
notice of plaintitr's intei'est in the fund, and 
without enal>ling him to c<intest the Conijiany's 
claim, in whole or in ])art, he must lie regarded 
as having made the jiayinent of his own wrong, 
and that plaiiititl"s right to the fund could not 
be prejudiced thereliy. 

Oxhyx. S/iearirater, 1 X. .S. I)., 144. 

6. What property in hands of agent bound 

by — H. McK. was .><unnnoned to ai)pcar and lie 
examined as to whether or not he was agent or 
trustee of the defendant, an aliKsnt or abscond- 
ing debtor, and as to whether he had goods or 
credits of such defendant in his possession or 
under his control. 

Defendant had made an assignment to H. 
MoK. for the benefit of his creditors, including 
a debt due by C. Bros.. At the time of the 
issue of the sunnnons, McK. had no money of 
defendants in his hands, but two days after- 
wards C. Bros, paid the amount due by them. 
All of defendant's creditors who had executed 
the assignment had previously been paid in full. 

Hild, that the debt due by ('. Bros, to defen- 
dant was in McK's. hands covered by the words 
of the Act "goods and credits of the absent or 
absconding person then in his possession or 
under his control," and that plaintifT was 
entitled to execution therefor. 

Rohertmn tf al. v. U'i/liamti, 6 R. & (i, 393; 

6C. L. T., 488. 

7. What property in hands of agent bound 

by operation of Absent Debtors' Act— Prize 



the custody of the Court of Admiralty until 
iictual judgment, and courts of law have no cou- 
current jurisdiction. 

A prize agent is not either an attorney, fac- 
tor, agent or trustee within the meaning of the 
Absent and Absconding Debtors' Act, 1 (Ico. 3, 
c. 8, of Xiiva .Scotia. They are in reality ap- 
pointed by the I'ri/e Act for certain purposes 
and are rather otHcers of the (^inrt of Admiralty 
than agents of the parties. 

A sailor, coming into the i'rovince,'for a short 
time, in His Majesty's .service, can scarcely be 
the person intended by the Act, under the des- 
cription of '(// nlisciit iir uhsraiiilliiij ililitiir. 

The Act does not apply to prize money, 
because it is not the property there described, 
and because neither the prize agents, luir sailor 
himself, are the persons against whom it is 
directed. 

'I'ho Act cannot apply to prize money because 
such an interpretation would make it repugnant 
to the Prize Acts, and therefore so far illegal 
i\nd void. 

A decision of the .Supreme Court of the Pro- 
vince, apparently to the effect that prize money 
may be attached in the hands of prize agents, 
reviewed. 

An attachment tnken out by a creditor against 
a prize agent for ])rize money in his liands not a 
bar to the -laim of (Greenwich Hospital for 
unclaimed shares of ])rize money. 

Tht Bermuda, Stewart, 231. 

8. Second summons to same agent— It is 

no objection to a summons to bring in an agent 
under the absconding debtor process, that a pre- 
vious summons has been issued for the same 
agent. 

Halifax BanMwj Company v. Worrall, 5 R. 
& G. , 7t). 

9. .4ssignee of debtor Tor benefit certain 

creditors — Assents to debtor's instructions to 
pay certain other creditors as well — Where 
such payments will exhaust whole fund in 
assignee's hands, the assignee has nothing 
which can be attached — A creditor to whom 
an absent debtor had assigned all his goods, in 
trust for the benefit of certain creditors, re- 
ceived a letter from the debtor directing pay- 
ment of surplus proceeds to certain other 
creditors. Assignee expressed his willingness 
to comply with such directions. 

Hehi, that not having sufficient to pay the 
parties mentioned in the letter, there was 



ninney cannot be attached until the property has j nothing which could be attached in the hands of 
become absolute and vested by the Prize Act, i the assignee as agent. 



either by a demand in person, or l)y an acknowl- l 
edged power of attorney. The property is under 



Metzkr v. Harvie, 1 Thom., (Ist Ed.) 38; 

(2nd Ed), 64. 



15 



ABSENT OR ABSCONDING DEBTOR. 



16 



10. Discharge ofparty siiminoncd as agent 

— When to be granted -Construction of 5 R. 
S. c. 104, (). xlvi, R. 18— (i. >*>: K. were suiii- 
liioned to iipjjfar iis agents of tlie dcfeiiilant I'., 
an absent or absconding debtoi', to <liMoIo.su what 
goods, credits or erteets of 1'. were in their 
hands at tlie time of tlie service of tlie writ 
iilioii tlieni. <;. iS: K. appeared severally and 
denied having any goods or credits of P. in theii' 
possession or under their control with the ex- 
ee])tiiinof (■crtuiu goods which had been deposit- 
ed witii them as sueurity for an uni)aid balance 
of account. (!. & K. were thereupon discharged 
under an ordei' of the Chi-'f Justice at Clmmbcrs. 

Ifild, on a])]ieal //< /' James, .J., tiiat tiie woiils 
of the Act, .")lh K. S. c. 104, O. xlvi. R. IS, in 
relation to tlie discharge of the agent, only 
apply to cases where he has tiled a declaration 
that he had not at the time tlie sumnioiis was 
served u])on him, any goods, ell'ccts or credits of 
the debtor in liis possession or under his control, 
and as (;. & Iv. admitted goods of the defendant 
in their possession tliey weie not entitled to 
such discharge. 

Per Ritchie and McD'iiald, J. J., that assum- 
ing that the Judge had power to grant the 
discharge after the possession of assets was 
admitted, which was doubtful, such <liscliarge 
should not be granted until after plaintiti' had 
obtained judgment and could avail himself of 
tiu! provisions of Rule \'■^ to realize the value of 
the goods, less (t. & K's lien. 

Also, that the appeal should be allowed with 
costs, and that the discharge should not be 
granted, but that the lien should be reduced to 
the amount proved, and that (i. & K. should be 
allowed their costs of filing their declaration 
and of appearing to be examined. 

Aii(hr.<oH V Parhr, 7 R. k (J., •2i-2\ 
7 C. L. T., ;«s. 

11. Defective service of summons— ^Vllere 

a copy of the summons fudy was served on the 
agent, and no declaratif.n tiled, a judgment of 
non-suit was given with costs to the agent. 

Huh v. liohirfxon, .'? Muril. Kiiit., 14.'?. 

V. MI.SCELLAXEOUS CASES. 

1. Suit for proceeds by subsequent attacher 

where earlier attachment set aside — Grounds 
set out in order /(/</, but not in order absolute 
— Jurisdiction aniply shown — The defendant 
R., on the .ith June, 18S0, sued out a writ of 
summons and attachment against M., under 
which the Sheritl' attaciied certain propeity of 
M., which was sold as perishable property. In 
December following, defenchmt obtained an i x 
parte ordei', on default of ajipearance by M,, 



permitting him to enter judgment against M. 
for the amount of his debt and costs, and direct- 
ing the Sheriff to pay the amount of tlui delit 
and costs out of the jirocceds of the sale in his 
hands. 

On January 14tli, 1S8'2, plaintiff, as subse- 
quent attacher, obtaineil an order, making 
absolute an order iilxi previously granted, re- 
scinding and quashing <lefendant's summons and 
attachment, and all subsequent proceedings, in- 
cluding tiu; order for the payment of the jiroceeds 
of the sale, on the grounds that the debt claimed 
was not due or payable when the action com- 
menced ; that the allidavit stated no proper 
cause of action, and was irregular and defective ; 
that the summons was not properly indoi'sed ; 
that there was no order for the issue of the 
summons or attachment, and on other grounds. 

Defendant having refused to repay the amount 
received from the Sheriff after demand, and the 
Sheriff having declined to commence an action 
against him to recover the amount or to allow 
plaintiff to do so in his name, plaintiff com- 
menced ])ioceeilings by bill in Equity, praying 
that an account be taken, and that defendant lie 
ordered to jiay the amount realized to the 
.Sheriff or to plaintiff. The prayer of the 
petition having been granted with costs on the 
ground that the judgment obtained by defen- 
dant against M., had been set asiile, and the 
decision not appealed from or reversed. 

//( /'/, that the ground stated was sutHcient to 
su])port the judgment. 

A/so, that as all th^i necessaiy facts were con- 
tained in the order »/•<;' of the l.'ith January, 
which was made absolute l>y the order of the 
14tli January, IHS'J, the latter order was suffi- 
cient, and the jurisdiction of the Court was not 
<iuly ample but was amjily shown. 

Corlii-lf it at, V. Iloliiiisoii it at. 

7 R. & (;., 4S0; 
8 C. L. T., 15. 

2. Debt barred by Statute of Limitations 

— \o judgment for against absent debtor per- 
mitted — The Court will not allow judgment to 
be entered up against an absent debtor for a 
debt barred by the Statute of Limitations. 

Smi//i V. Ciif, 2 Thom., 12. 

3. Reason for Rule in above— Per Haiiimr- 

ton, J. — "As the .Statute of Limitations to be 
taken advantage of must be pleaded, and in this 
form of action, thei'e being no defendant in Court 
to ])lead, it is the duty of the Court to confine the 
plaintiff to proof that is not affected by the 
Statute of Limitations." 

MfhW v. U'ooflirnnl, 3 Murd. Epit., 141. 



17 



ABSENT OR ABSCONDING DEBTOR. 



IS 



I. Entcrin;; Suggestion ~ Dcrcndant out of 

Province — Publication in Royal Gazette neces- 
sary — To entitle plaiiilitr to enter suggi'stion on 
the reeonl of a jiulgnient, nioie tlian six yeais 
old, where ilefendnnt is out <]f th(^ {'rovince, the 
rule must lie |)nl)lislie(l thirty days in tlie Royal 
(Jazette. 

Kdth V. CiinnliKjhnni, 'JTlioni., 14!). 
.Vm r)th R. S., e. 10+, O. xl, R. •_';{. 

5. Execution \o Bond for Execution set 

aside — WiuTe an I'xeeiitinn is takm mw on im 
nttaehnient against iu; iihscnt or ahsitonding 
driitor, without the hond for such execution 
having lieen allowed by the Court or a .Imlge. 
the Court will set it asiile but without costs, 
though tlie bond be actually made and tili'd 
before the issue of the exeuntion, and tlu' 
sureties unexceptional ile. 

Allan V. Cam-ill, 1 Old., 40.'). 

«. Landlord's lien for rent- Meaning of 

"Execution" in 4th R. S., c. 107, s. 7. -cf. ,oth 
R. S., c. 125, 8. 14 — Does not include attach- 
ment — Sfc'tion 7 of cha])ter 107 Revised .Stat- 
utes (4th .Series) providing tiiat no goods shall 
be removed from tlie premises under Kxecution 
until one year's lent or a ratable part tlieicof 
be paid to the landlord, does not ajiply to goods 
taken under attachment under tlie Aliscondiiig 
Debtors' Act. 

Milhrw [J Hi I, 4 U. & (i., 1. •!.".. 

Rut XVI- ,")tli R. .S. , c. I'2."), s. 14, which corres- 
ponds with 4th R. S., c. 107, s. 7. 'I'lie word 
" attachment " has been there specially inserted. 

7. Effect of appearing; l)y liiing common 

bail, &c., in absconding process —'I'lie Court 
was apiilied to on the part of the defeiidaiit. fur 
an oilier to strike out the wor<ls absent and ab- 
sconding debtoi', from the proceedings mi lill^ the 
defendant's iittorney-at-law having tiled an ap- 
pearance ill the usual form, but the Chief .lustire 
( Rlowers) refused to grant the rule, as he said 
that a party might be abaconiling to-day and 
not so to-morrow. The Court saiil that the rule 
of practice was established, that on entering an 
appearance to an action, commenced nuclei' tin- 
first section of theAbscoinling Debtors" Act (such 
as the case under discussion was) by filing eoiii- 
mon bail, .and a warrant of attorney, and giving 
notice of appearance, the absconding character 
of the action was cured and eft'aced. 

Mi'Dniiijal v. Iliii-ihilirnoil, 

SMurd. K])it., 14.'). 



8. Sale by Corporation 



Stats., N. S., c. 97, and c. 53, see. 15— I'laintill 
purehased all the personal pinjierty of the L. 
Coal Milling Co., after the Com]>any had lieeome 
hopelessly insolvent, receiving a bill nf sale 
signed by the agent of the Company, but imt 
sealed with the eoi]iorat.e seal, proveil to have 
been jiossessed by the Coinpany. He timk ]ios- 
session of the goods at the time of the sale, and 
i'(niiaiiied ill possession until the eause of artimi 
indicated below arose. 

//'/'/. in action agi;"!iist a .Sjierilf for selling, 
the goods uiicler an order of the .Sii](reiiie 
Court, following a levy under a writ of attach- 
ment against the L. Co.al Mining Comi)aiiy. that 
under the ])rovisions of ciia])ter ."t.'i, Ith K. .s.. sec- 
lioii 1."), the use of the corp.irate se.il upon the 
hill of sale was not necessary. Wilkiiis, .J.. 
i/issiiih'iii/. 

Ill III, on demurer to the defendant's ])lea, 
which set out the attachmi-nt and levy of the 
goods " as and being the goods of the L. Coal 
•Milling Co.," and the sale of the goods, ■•being 
the |)iopcrty of the L. Coal Mining Co.." that 
the jilea was liad, as it did not allege that the 
goods were not the gooils of the jilaintitf. 

W'ilkins, .(., ili'y.^i n/ini/. 

Ilrailli;/ v. Mi-L.an. ■_' R. il' C., .■■.S4. 

Picverscd r)ii apjieal to the .Sujireine C.uirt of 
Canada. (.Sec Iii/rit. ) 

One IT. institute<l jiroceeilings against tlie L. 
V. M. (~'o., the ollicei's of which resiilecl in the 
I'uited .States, but wliicii did business in Xova 
Scotia, and, on the l?."itli May. Is7-, caused a 
writ of attachment to lie issued out of the 
.Supreme Court at Amherst, umler the Absent 
and Absconding Debtors" Act of Xova Scotia. 
directed to the aiipell.uit. tlie Ifigli Shcrili' of 
tile County ')f Cuiiibei-land. I'leler this writ, 
the appellant seized certain chattels, as being 
tin,' chattels of the said ('oin|)any. On the i'JtIi 
N'ovember. ]S7l!, an order was issued out of the 
said Court, directing the apjx 



ipiieliant to sell, and 
a])pellant ilid sell said ehaltels as being of a 
jierisliable nature. On the 1 1th December, 1S74, 
a discontinuance was tiled in the said cause by 
H. On the .'iOth May, lS7i>, the resix.ndeiit 
commenced an action against the apjiellant for 
the conversion of the chattels in (piesti<in, con- 
tending that the Company, having failed in its 
operations, and being desirous of winding u)) 
its atl'airs, and being iiidetited to him, had sold 
and conveyed to him the said chattels liy a cer- 
tain niemorandum of sale, dated .Inly ."itli, l.St>7. 
"signed on behalf of the Conipai;y," by one 
" Hawley, agent." 'i'o this memorandum a seal 
was attixed which diil not purport to be the seal 
Conversion by ' of the Company. The appellant pleaded to the 



Sheriff—Sale under order of Court— 4th Rev, , declaration that lie did not convert ; goods not 



ACCIDEM >v, NK(;|,I(;KNTE. 



19 ACCOUNT. 2a 

plaint ill's; not p.sscsso.l : ami also a special ACCEPTANCE— V" BILLS OF KXCHAXCE 

])W of jiistitication, si'tting foith the proceed- | AN'l) I'itOMISSORY NOTES. 
ings hy H., an<l that he ha<l sei/eil and sold the j 

gooits as the goods of the Company, in ohudienee 

to the attachment, and order issui'd iii said 

pio.ee.lings. The tvspondent replied, setting ACCESSOKY -S., CrUMIXAL LAW. 

lip tlie discontimiance. Tiie ajjpellant rejoined 

that the proceedings were not iliseciitinned. and 

that the iliscontinuance was not tiled till after 

the s.ile. Ife also dennn-red, on the ground that. 

heing liound to oliey the order of tlie t'ourt, 

he could not he afi'ected liy the discontinuance. 

At the trial, a verdict of .■*.")()(» damages vas 

ren.lered for respondent. The appellant ohtained ^^,^^,j,j ^^.,j j. ^tISFACTIOX. 

a rule iiii} to set aside verdict, ami the rule am: 

ilemurrei- were argued together. The Court M'llilt IiniOlintS (0 - IMaintill' lirought action- 

liclow refused to .set aside the verdict, am' g.ive foi' .>-'S4. .'!."{ for work done, itc., foi' defendant, to 

judgment for plaintitt'. on the demurrer. On wliich dcfcmlant iilcailcd ])aym»'nt after action 

ap])eal to the .Supreme Court of Canaila. hrought. It ai)f)eiircd in jironf that wiiile jiliin- 

//'W, tliat the appeal should he allowed ; that titV was in ])rison on a charge, the n.ituie of 

the plea of ju.'^tilicatiou slioweil a sullieient which was not disclosed, defendant ohtaiiied 

answer to the declaration; that the replication from him a written a'knowledgment as follows ; 

was had. and that the verdict must he set asiile "This day I have settled all matters of account 

anil judgment he for the defendant on the de- and the suits hrought .igainst me hy .lohii MeCahe 

murrer. for .•*S4..S.S." (.Sgd.i •• !•". H. McNutt." The 

/*' /• Ritchie. .!., (//.-vi )(////(/, on the ground that signing; of thi« w.is followed liy t'ae payment of 
the seizing umler the attachment, and not the ; tifty cents hy defeud.iiit to ])laintiH'. which the 

sale, constituted the conversion ; that there was County Court judge held to lie sntlicieiit under 

suttieient eviilenee to show tliat the I'hattels in the plea. Yet hi' give t]w. ))laiiitit}" judgment 

(luestion had heen transferred hy the Com])any for ten cents to eiiahle him to tax summary 

to resj)oiident. and that under sec. I.'i. cap. .">.') costs. The Court set the judgment aside and 

of 4th Rev. .Stats., the sale of the chatteW ilid remitted tlu' ca-^e to the County Court, 

not reipiire to lie \inder the eurporate seal of the /''*• Ritidiie. K. ^. 

Company. T do not think the defendant can possihly 

/'< r Strong. J. — The sale, and not the seizure, succeed under a jilea of payment. It is only a 

was the conversion complained of. and to this payment of a j)art and seems to lie rather a case 

the order of the Court was a sulKcient answer, of accord and satisfaction. 

Sfiith/,, a mere taking of the goods of a third MrXiiit v. Mvdth^, 2 \\. k (i., .'{7'2. 
person under mf■■>ll^ attachment against a defeii- , 

dant to keep them /(( mul'to until the termiua- ' 

tion of the action, is not a eonversiou. 

Pir Henry, J.— The order for the sale would ACCOl'XT. 

not have lieen a justitication for the original lew 

on the goods, as' well as for the sale, if thev had <• ■*<•<'«" ^^^ '^ ^'^''^''^ "''" '""" '""' '^'^^'''■ 

heen the property of the respondent, hut the f''""'- »"'"*>■ ^''■"■'" '" «'"' "'^""^' "^ ''"• '^ • 

evidence failed to 'show a sale hy the Company f"'-""'''!'' " pl^intilV. twenty in the name of II. 

to the respondent. Such a sale' would reip.ir'e '^'- (''■"■"•'^'l. '^ 'l^'fendant, twelve in the joint 

.1 1 .1 . \ c ^\ I ■ names of K. Hivelow. .Sons & ( o., plaintiHs. 

to he under the corporate seal of the (, oinpany, ■ i.. . .», , i 

and did not come within the meaning of .see. i:,, ''''"^' ""t"*" ""'-''^ purch.ased hy E. Higeh.w, .Sons 

cap. .-iH of 4th Rev. Stats. , * <^"- "'"^ '•'• ^'' * "• "^'^ <'i"'">'i>'- ^"'>.|.osing 

' ii_^ i! r r- 1.11 tj 1... „., .11 1 



M,-h(tt, V. lirriillni. •! S. C. R.. WX^. 



the Hrin of Crandall Hros. , under an alleged 
agreement that they should he paid for out of 
the first earnings, hefore any division was made 

among the owneis. The shares of Crandall Rros. 

were afterwards transferred to .1. E. & E. Rand, 

who claimed a right to divide tlie earnings tiefore 

FOR CASES OF AKKEST rXDEU CAPIAS, paying for the onttits. The evidence was cm- 

OKOER FOR ARREST OR E.YECl- tradictory, hoth as to the original agreement 

TIOX — *<'" ARREST. and as to the knowledge of it on the part of 



21 



ACCOUNT STATED. 



•)•> 



tlu' R:iii(ls, lint the t'fuirt drew frniii tlit; uvi- 
lU'iifu the inference that thei'e wiis sueh an agree- 
ment. lUiil that tlie Hiincls were aware fpf it, ancl 
(Irrrceil an aeeouiitinj.' as ))rayeil for. 

/liir /""•<' (('■ V. /.'(iiiil 'I '('.. ]',. K. !»,. 4'.)."). 

2. i'iaiiititr was jdiiit o« ner with ih'femlunts 
(if a vessel engaged in tisliing xnyage.s, jilaintill' 
lieing master of the vessel. In his writ plaint itl' 
ilaimed an amiamt due. Imt the master rejinrted 
an amnunt due liy idailitill' to tiie ilefeiidants 
arising nut fif nutt^.s uf hand given Ky plaint ill' 
and defeinlants jointly fur the purchase of the 
vessel, which notes defendants had retired, and 
an order received hy plaintiff for money in 
whic'li all thr jiarties were interested. 

//•/(/. that the amounts were i>roiifily 
allowed. 

.\ claim for w.iges made liy plaintilf was dis 
allowed under the evidence. 

»(;/»'/. /-.v V. lli,lil^iroiih <l ((/., H. K. I)., 411. 

3. .ictlon for .\f roiiiit Order to riirthrr 

answer interrogatories - Facts material to 
Plaintifl's' case — Discretion of Judge- In an 
action for an account in relation to paitnershij) 
dealings lietween Jilaintilfs and ilefeiidant, res- 
pecting the purchase and sale of a mine, and 
for payment of jilaintili's' share which was 
alleged to have lieen iinproj)erly received ;ind re- 
tained liy defiMidant. plaintill's after the com- 
meiiiemcnt of the action, ulitained an order 
rei|uiring defendant to answer certain interroga- 
tories. After receiving defendant's answer, a 
further finler was ohtained from a Judge at 
('liaml>ers, rerpiiring defendant to attend liefure 
a Master for further examination a.s to matter 
eontained in certain of the interrogatories. 

l>efendant aj)pealed, on the ground that he 
was not fililiged t'l answer until ])laintitl's had 
first estalilislied their interest. 

It appearing that the facts sought to he elicit- 
ed liy the ilitelTOgiitories, were essential to the 
plaintiff ea-'ie. 

Held, that fhere was no ground for interfering 
with the discretion of the .Judge lielow, ami 
that the defendant must answer as ret|nired. 

Ji iikiiix 1 1 ttl. V. '/'iip/iiy, 7 R. .^ <>., .">fHi ; 

8(". L. T., (i'J. 

4. Acdon for not accounting - Piaintiii' 

liireil defeiiclant to travel and sell certain goods 
for him for cash or ap|)i'oved notes, to return 

such goods as were not disposed of, and at unt 

for tlie proeeciLs of those .sold. Defendant 
having failed to acconnt, this action was brought, 
the declaration containing a count in trover and 
a count for money had and received. Defen- 
dant having been shown plaintiff's account for 



the goods, by his attorney, admitted it to be in 
the niiiin correct, and offered to pay .^lOO (being 
less than the plaintiff claimed ). which was re- 
fused ; and on plaintiff's att<irnev asking tlefen- 
dant if he would neither acconnt for the goods, 
nor give them up nor pay for them, ilefeiidant 
said he vvould do neither, //i/il. that this an- 
swer was no evidence of a wrongful conversion, 
thiie being no evidence that the defendant, 
when he made it, had any of the goods in his 
jiossession, as he had previously stated to plain- 
tiff's attorney that he had sold them all. 

'{'he plaintif!' stateil in his evidence that defen- 
dant had ]iidniised to come to his place and 
settle, and that he (plaint iff I. undeistood from 
the defendant on that occ^tsioi; that all the goods 
were sold, excejit a few bridles. This evidence 
was not contradicteil by the defendant. J/i/d, 
that it was not snflicient to warrant the conclu- 
sion that the goods were sold for cash, as the 
defi'iidant was authorized to sell either for cash 
or aiijiroved notes. 

Si }iih/i , that under the evidence, the plaintiff 
could have recovered on a count for not ac- 
counting. 

HV(//.v /• V. ('itiiiiiiKjlKiin. .S K. it ('., 1. 

5. Report of .Master -Sustaining Objec- 
tions to — When — Where in a ipiestion of ac- 
counts and disbursenieiits a thoroiiglily compe- 
tent person has been selected as referee with the 
approval of both parties, and he reports thereon 
after a full examination, those who would take 
objections to such a report are bound to prove 
their objections by clear and satisfactorj' evi- 
dence, for it will not be overruled unless there 
be an overpowering case made against it which 
shall satisfy the mind of the Court that it ought 
not to be maintained. 

Tl,' .In mi." Frn*i\ V. A. D., ir.O. 



ACrOlNT STATE I». 

1. Necessary to show mutual understand- 
ing — riaintitf sued the defeinlants !•'. ifc L. for 
wages due him for work done as a diver in 
saving goods from a wrecked steamer at the 
Island of .\nticosti, and also for two four- 
teenths of the jiroceeds of the goods saved, under 
an agreement to that effect. The defendant L. 
suffered judgment to jtass against him by de- 
I fault. 'I"he defeiK'ant V. contesti'd the claim as 
j to the share of the pro-'ci'ds claimed. In the 
I County Court judgment was given in plaintiff's 
I favfir, ba,sed on what purported to be an adjust- 
I inent fif the salvage account between I'", and L. 
I in a previous suit brought to secure a settlement 



23 



ACTION. 



24 



of llniir iicoduiits. 'rUcrc was im iviilfiice us to 
will) inado tliu piijM r. nr tliiit tlii^ (Icfttiidaiit K. 
kni'W its L'oiitoiits, iunl il appi'iiiccl fiiitlier tliiit 
it had 1)0011 liuiidfd to j)laiiitiH"s solicitor, who 
was iiotiiii,' at the tiino as tho solicitor f)f the 
dt^fciidaiit N. in loniicctioii with tlu' pii-vious 
suit without iircjinlirf, and on thi' lUidiTstaiid- 
inii that it wis not to lie made ii-^i' of in any 
other suit. 

//./'/.on appeal that thci'o was no fviiiciicc to 
support the jndgiiu'nt ap|)('al('d front. 

'i'o snpjioit an aiconnl stated it is neeessai'y 
to show a nnitnal nndeTstandiiit: hetWfin llio 
plaintitrand ilefendant as to a l>alaiice .-ti'iuk or 

sum admitted. 

\nrilir v. I'liroiihar it (it., 

•20 \. S. D., (S I!. S {'..). VA; 

<»('. L. T., •_>:«. 

2. Mdiiorundum - Consideration Prom- 
ise to pay the debt of another — I'laiiitifl'had a 
oliiim ai;ainst defenilant and also a elaiin a;_'aiiist 
defendant's lifotlier. Defendant haviiii; as^i'eed 
to a.ssiinie lioth delits si^'ni'd a tnemorandiim as 
follows : -" ISSl. Oet. '.M , to lial. per .settloiiiolit 
at this date, .SSK.dO. 1 aeknowledL'o the ahove 
anionnt to he eorreet ami jjiomise to juiy it 
fortliwith." 

l/t/il. not an account stated. .!/«/, that to 
onahle j)laintitr to leeover as on an original 
contract a (■onsiileratioii for assuming the 
brother's ilel)t should have been shown. 

Frns,r v. Mrl,.,„l, tl R. & (!., -.Nti ; 
('. L. T., 4.V.>. 

3. Mere striliins bulanre does not con- 
stitute an account stated — Defendant inaile a 
note of li.iud to S,, wiiicli was incloised to piain- 
titr. who received payments on account of it from 
time to tine' from the inch.rser. I )efendant made 
no payinoiit.s, liut, after si.K years from the date 
of the note, mailo a new note to plaiiititl' for the 
balance due on the original note, the stainj) on 
whicli, bearing dati' identical with the date of 
tile note, was for the single duty, and was alKx- 
oil by plaintill' on the clay subse([iient to the 
delivery of the note to him. 

ITild, that tho stamping was insudicient, and 
that the note oould not bo received on the trial 
as an acknowle'lgnient to take the case out of 
the statute of limitations, that the payments by 
tho indorser did not inure to prevent tho opera- 
tion of the statute as against tho maker, ttiidlhnt 
t/ii niirf ttrrkhiii of n Jid/aiiff a^ lutinrii thi jmr- 
fifs (lid not roii-ililuli- an iifcoiiiit sidtiil to take the 
fnsi out of Ihi slut lite. 

AfrFcilri,/;/,: v. /[iiiifir, 3 R. ci C, L'89. 



.U( IlKTION - 

.SVc; HIVHK.S-TRK.si'ASS. 



ACKNOWLEDCaiENT - 

(1.) OF DKins OK DEMANDS TO T.AR 
HTATU'i'K. 

(•_'.) OF ■JITLF TO LAND. 

!<<•,' LIMITATION'S OF ACTION'S AND 
SUITS. 



.ICQIIESCENCE- 

S(r FSTOI'l'EL. 



.tCTS OF P.tRIilAMENT- 
TIIEIi: (ONSTRUCTIOy AND OPERATIOX 

See STATUTES. 



AiTioy. 

1. liy whom maintainable— Plaint ill and 

defeiiclaiits were. Icy coniinission from the f.iou- 
teiiaut ( iovernor, appoiiitecl ( 'cunmissioners of 
sewers for the towiisiii]) of Falmouth. I'laiii- 
tiff having been selected by projiriotors, repre- 
senting two-thirds in interest, Comniissioiior of 
the Village Dyke. 

//</(/, tiiat tho plaintitr alone could luaintaiii 

an action against defendants, although at tho 

I time of his selection, and when the work was 

done, dofendant.s wore naiiiod with him in the 

E.xocutive Commission. 

Darldsoii v. Lairri'iicr it a/., 1 N. S. I)., .S'J. 



2. Halifax, City of-Actlon against -No- 
tice of —Notice of action against city, given iiy 
plaintitf'a attorney, liold sutiioient and uiiob- 
joctionablo, although in the alternative as to 
amends being paid. 
Wo/ktr v. Tin City of Hal I fax, 4 R. c!k (i., .'HI. 

Atfirnieil on appeal to the Supreme Court of 
Canada. 

Cas. Digest, 98 



ADMIRALTY. 



20 



;{. Notice of Action— WliLTu plaintill' in an 
action ag.iinst tlie t'ity of Halifax, for coiniiun- 
sation for injuries ruteivuil through negligcnco 
(if tlie city's contraclms, failed to give any 
jii'iicf of notice of action heyoml a minute of 
the City t'ouncil, stating that a letter from 
pliiintiirs solicitrir claiming (lamagc-, had heen 
read hefore the Council, and a notice to defend- 
ants to produce the letter not c<)nij)lied with. 

Hdil, that the plaintifl' coidd not succeed for 
want of .sulKcieiit notice of action under .Section 
'J7() of the City Charter. 

Uuhiii.ion V. Tin Citij of I/iilijax, 
2 K. & C., .•{7"). ! 

4. Judgment — Action on Husband of 

wife against whom judgment before her mar- 
riage — Like other defendants cannot plead 
matter of defence to original action — 'I'o an i 
artioii on a judgment the defendant cannot plead 
any fact which might have heen pleaded as an an- ; 
swer to tiie original action. Where a party has 
ohtaincd a judgment agaiust another, he may ] 
proceed upon it at common law, and is not com- 
pelled to proceed by wiit of revivor. The 
husband of one of several parties against whom 
a judgment has been formerly obtained, stands 
in no better position than the other defendants, 
and cannot plead matter of defence to the judg- 
ment that was available in the original action. 
Beiijamiii v. Camj)l>i/l tt at, '1 N. S. D., 3'20. 

5. Use and occupation —Action for does 
not lie against party who goes into possession 
under contract which fails — Where a vendor 
lets a vendee into possession of lands on a eon- 
tract which afterwards goes off, he cannot re- 
c(jver for use and occujjation. 

Temple et cd. v. McDonald, '2 Old., 155. 

6. Effect on bail in action of reference by 

consent — When a cause, by consent of both 
Jjiutics is refcrre<l to arbitration. 

JLIil, that the bail, in the original action, is 
discharged. 

Allison V. Deshrixay, Cochran, 19. 

1, Plaintiff may become non-suit at any time 
before verdict. 

Grant V. Prohr/ioii lii.t, Co., 

1 Thorn., (1st Kd.), 10 ; 

('2nd Kd.), !•_». 

8. Si mill, that an action will lie agaiust a 
ISIieriir for taking insulhcient bail. 

Jackson v. Camphdl, 
1 Thorn., ('ind Kd.), 18. 



ADJISTME.M- 

.V,. IX.SURANCK. 



ADMIMSTBATIOX- 

,SVr KXKCUTOR.S AND ADMINIfSTRATOR.S. 



ADMIMSTKATOK 



See EXECUTORS AND ADMINISTRATORS. 



ADMIKALTY. 

1. Contempt— Commitment for contempt 

— Petition for discharge in UKJst humble terms, 
and discharge. 

Enoch Stanicood's Case, 
Stewart, PJ3. 

2. Prize Court -Instance Court— Yicc-Ad- 

miralty Court —Respective jurisdictions — As 
a Prize Court, no Court of Aihniralty has juris- 
diction in revenue cases. As an Instance Court, 
which is the proper tribunal for cause of tluit 
nature, a Court of Vice-Admiralty has no 
authority to take cognizance of otlences com- 
mitted not within the limits of its local juris- 
diction. (The jurisdiction of the Instance 
Court has since been extended by Act of Parlia- 
ment. ) 

The Xuesira Senora Del Carmen, 
Stewart, 8.S. 

8. Adnilralt}' — Vice — Jurisdiction of — 

Special contract — For seaman's wages, what 
constitutes ; cannot be enforced in Vice-Admi- 
ralty Court- 
Two out of three proinovents shipped at Ber- 
muda on board the ship libelled, a bhjckade 
runner, for the round voyage from Hermuda to 
Wilmington, North Carolina, and thence to 
Halifax, Nova Scotia. The remaining prouio- 
vent shipped at Wilmington in room of one of 
the others. No ship's articles were signed, but 
there was evidence to prove that the master had 
contracted to pay to eaeli of the promovents cer- 
tain specified sums, in three eijual instalments. 
The contract was absolute as to two of the 
instalments, and as to the third, thei-e wa.s a 
c(mdition that it was to be paid only if the 
claimants' conduct were satisfactory. 



27 



ADMISSIONS. 



28 



llil(i, (I.) 'I'liivt this WHS nut Mil iiiiliiiiiry ell- ISl'J, imt aiitlnnizcil liy that ii|ip(iiiituu.nt tn 

gaguliii'iit for si-aniuns wages, hut a spueial ciiii- iccrivo llioso droits, nor to receive prizes whiiii 

tract. liail Ipceii eoiKh'liilieil to tlie captors. 

('!.) Tliat previous to tlie .\ihuiraity Court .n'//o«/'.< /'i/(Vio//i, .Stewart, 4'J7. 
Act of lS(il. -Jl Vict. ch. lit, tiu; High Courl of 

A(hniralty iiad no jurisiliction over sucii con- 8t DroltSOf -l)islinct from the King's riglits 

tracts. -Jill'' I'Di-i'ii'i . 'i'hi Ltiili Jim, .'ml caxi, 

(;}.) Tiiat tiiis .Act ilid not extend ti> the Viou- ; .Stewart, '.i'M. 
Admiralty Courts, noi- weri' the provision.* re- 
specting si)ecial contracts, eUihraccd in its tenth J(. Who entitled to rei:eive them, the Cover- 
section, extended to those Courts l)y the Act of nor of a Province, as a N'ice-.Adndral, oi- the 
18(i,S, '2(i N'ict. <h. '24, sec. 1(J. Receiver-Ceneral of ilroits. l)ecisiou in favi.r 

(4.) That, although the connnission formerly of the laltcr. /hiil. 
issiuid to the X'ice-Ailmiiiilty .ludge empoweied 

him "to hear an.l deteiniine all causes auconling: 10. Admiral Lord High I'alt'llt lO thC 

to the civil and inaiiti:ne laws and ■ustonis of oui- Commissioners for executing the ortice of Lord 

High Court of .Vdmiralty of Kngland." yit this High Admiral. 

power, liki' some others assnnieil to he liestoWed i 



Kxtraot from Tatt'iit of 



.Stewart. 4'_'.") 



hy the commission, is freiiuently ino|)erative, 
and that, therefore, this Court has no jurisiliction 
in ciLsos like the present. 

I/p/d, a/no, that, although the respondi^nts 
were hound 'o have olijected to the jurisdiction 
ill limiiK , liy ap])earing under protest, still, that, 
where the Court is of opinion that it has no 
jurisdiction, it will not only entiitain tlu' 
ohjection at the hearing. Imt is hound itself to 

raise it. Kxtract from— 

Tlh Clli/ "/ l''ln:^lnir<j. 1 Old.. .sU; 
V. A. ])., 1. 

InstriKiioiis to lteeeiver-(ioiii>ral 

4. Admiralty Kiile as to Ket'ovcry in It ' 

is the rule of the Ailmiralty. as it is of dl other 

Courts, that a i)artv can onlv recover .VI .((/((/((//I , . .,,,.,,,. 

, • - 1 1,,' legislation ol the Donnnion r.ulianient i.)l 

'Che Alma, 1 ( )1,1. . 7,S'.». ^ "-•• ''■ ^- ''■ '■'''>- «'^''»« ^he \ lee- Admiralty 
Court jurisdiction in cases for the collection of 

5. Judge, rigllf of to instruct partie.S It l"^^"''lti''« f'"' iH^'g^'l .listiUing, is ultra rins, an.l 

is competent for a .ludge of a Court of Admiraltv ' "'" Vice- Admiralty Court, as an inferior Court, 
toimlicate, ...-;/AV/„, to the iiarties, any views I "'■i.v he restraine.lhy the .Supreme Cmrt hy writ 
which may .-eem to have an important hearing "' prolulntioii. 
on their rights. 

'I'll' l,)ntiii v. '/'/(( Chi''r(jt' ukr it" Canjo, 

I Uul., (.)(. j Oiiujijiful to t/ii Siijinm, Court of Canada, 
„ „ . _. , ... , I //./'/, that so much of sec. l.'.d of ;{1 Vic. c. S, 

6. Property recaptured from Pirates— ,,. i i i i. \ ^ ivi-, ;. 

,,'.,,. . , I Dominion Inland Mcveiiiie .Act, IM), as gives 



Their Power and History - 

Tin l.ilt/i Jof , :,itl Cus, , 
.Stewart, 3!t4. 

Admiralty Drolls tommlssion of Kecelver- 

General of — 

rroni— 

.Stewart, 4'J."). 
/'/.. 4'J(). 

II. Vice-Admiralty Court -Prohibition to 



Attij.-di 111 of ('aiiaila v. /■'///// ./ «/. , 

.■J R. iS: (i., 4.".;i. 



Disposal of— It is the ordinary practice of the 



the Court of \'ice- Admiralty jurisdiction in case? 



( oiirt of .Vdiiiiraltv to ilirect proiiertv retaken ' . , ,, . .. , ■ <• -n i i- ■ 

, • , , . , , tor the collection ot penalties tor illegal dlstl.. 

from pirates to he i-eturned to the owners witiiout ' . . . .,,, . , e ,' ■ 

, , , , , . liig IS //(^ri /•((•'.I. 1 he ndgmeiit ot the .Suiirciue 

delay, and, except where there is a stroiu' ne- , , , .. , . , 

'^ . , ..,..(. ourt of Nova .Scotia reversed. 



cessity rei|uiring it, without rei|uiriiig hail foi 
latent claims, t.iking care to protect the rights 
of Kulror.i, and the droits of Admiraltj'. 

I. Droits of the Crown— .Fure corona) - 

Taken before the order for reprisals, 13th Oct. 
1812 — Agents who were appointed lo receive 
ships detaineil under the orders of the '2,'ird .June, 



Attij.-tleu'l of Canada v. f'liiit (t al., 

Kith January, 1,SS4, Cas. l)i)^•st, .•{•24 ; 

4C. L. T., lUi. 



A»MISSIO>S- 

Ste KVIDKN'CK. 



29 



AFFIDAVIT. 



30 



AIIVAXEMKNT - 

I'HKsrMT'riOX OF lO CHILDRKX. 
s,, WILL. 

ADVERSE POSSESSION - 



S., Ivll 
ACTK 



•'.('IMKNI- LIMITATIONS OF 
)NS AM) SLTI'S. I'HKSI'ASS. 



ADVEKSE WITXESS- 

S,, FVIDKNTK. 



AFFIDAVIT. 
1. Aflldavils read and tiled \i)t referred 

to in nilf iii'^i Rule allowed to be amendeil 
Wlii'i'c atliiliivits were i-eud ainl tileil at the lime 
a rule iii"! was moved for, tiioiijjli the \n\r did 
not n'f«'i' to tliem, the Court, no smprise liciiig 
alle<;ed hy the othei- side, allowed tlie ride to lie 
aiiiemled at thi' aru'ument hy ret'ereiiee to the 
attiilavits. Wdkius. .1.. «//.>..•(/('///;/. 

/■y/inlf ,/ (t/. V. Udhl. -JOi.].. 170. 

'2. Aflidavits anNwering new matter 

Leave touseretused— 4tU R. S., c. 96. s. lo -cf. 
5th R. S., c. 104. O. xxxvi. R. 18 -The ( nurt lia> 
rarely permitted allidavits id he pi-mluefd under 
sec'. I.') of the Kviileme Art. 4tli H. S.. i\ lit), and 
in the few cases in whieii lliey ha\ e done >o. s-ueh 
course iuis l)een 'cndered neees.sary to j levent 
tlie lirossest injustiee or to vindicate the -tand- 
in); .-it niemliers of the liar. 

On argument of a rule to set aside a jndj.'ment 
obtained against clcfendaiil an the ground, among 
olliers, that the judgment had lii.'en entered in 
fraud of defendant and against good faith, tiie 
Court refused to allow defendant to produce 
ntlidiivits in support of his rule when the aliida- 
vits of plaintill' contained no new matter except 
in refercMci; to the title of the defendant to the 
laml on wliicii the juilguieiit loi'nu^d a lieu. 
Tiierc Was a variance lietwecn plaintili".s ami 
difciulaiit's statements as to tiie consjdeiation 
for wiiich tile confession was given, piaintitl' 
having deiiosed that it was for the indebtedness 
to him of defendant's lirotiieis. who lia<l become 
insolvent, and tliat he iiad agreed to credit them 
witli further sup])lies of goods upon being .sntli- 



ciently secure<l. Defi'tidant deposed tiiat the 
security was given wiudly for future advame.s 
of goods and oliiigatjons to be incurred by plain- 
tilVon account of the insolvents, ami that plain- 
till' had wiiolly refused to carry our his j)art of 
the contract. I'laintitt'. when I'onfronted with 
the faet.s us deposed to by ilefemlaiit, admitted 
I that clefeiiihuit's statements were true, but con- 
jteildeil that t he judgliiillt was not siillicient for 
I the ])urpose for which it had lieeli given, and 
' said that lie held it as a security for the [last in- 
debtedness of the insolvents, for which hu had 
accepted a compromise. The judgment was .set 
aside. 

oMii/i;,, v. Mr Dm,. ,1,1, ;{ H. .V C, u'ttl. 

3. Attachment -Aflidavit.s on uppliralion 

to set aside- Coullicting statements in allidaviis 
are not regarcled in aiijdicatioii to set aside at- 
tachment iigainst aliseiit debtors. That is a 
matter ff)i- siibsennent iii(|iiirv. 

huilhu ,1 nl. V. ./../,..«, 1 R. \- ('., -MS. 

4. Attachment under Insolvent Act, 1H«.) 

— Affidavit for — Requisite.s - I'laintitl "s atli- 
davit lor the issue of a writ of attachment iiiuler 
the Insolvent Act of \S~7i. followed the recpiire- 
nicnts of the .Statute, .-eciion It, setting out us 
g.'ounds for the belief that defendant was in.sol- 
vent. the fact that he hiol called a meeting to 
coiii])ounil with his creditors, hiid exhibited a 
statement showing his inability to meet his 
liabilities, and hail otlier\visc acknowledged his 
insolv uey, (sec. .'i. u. ) 

ll'l'l. reversing the ilecision of dolinstone, .)., 
that till' atlidavit was sullirifnt. 

Fuskr V. liuonu, W K. .t C., ;}44. 

.1. Capias issued without aflidavit -Capias 

issued by magistrates sit aside on the ground 
that it was issue<l, and the defendant arre.sted 
c'lder it. without an altidavit of the grouiuls 
of plaintill's belief, as reijiiired by chapter '21, 
of Alts of IS7!». .sec. .S. 

McL'dii V. M.-Kny. 1 H. A; O., .'IS.S. 

6. Comnilssioner appointed by the Insol- 
vent Court- -Who considered such — A writ of 
attaihnieiit under the Insolvent Act of 1,S(>!», 
(c. liil having been issued at the instance of 
plaiutitr against defciulant, the latter, three ilays 
before the leturn day of the writ, procured a 
rule iii.ti to set the attachment, the writ ami 
other l)roceedings thereon aside. The rule was 
taken, among other things, on reailing tht^ atli- 
davit of defemlant sworn before William Aikins, 
designated as a commissioner for taking atlidavits 



;i 



AFFrDAVIT. 



S2 



to lie ii-c'il III till' Siiprciiu' ('(111 It, Ci unity nf ('i>l 
(.lu'-tiT, mill tliu ulliiliivit (if .l(isc|)li Niiriii.iii 
Kilcliiu, sworn lit H;ilitiix, liofoif ('. M. Nuttiu^'. 
(It'sigliiitfil ii> a idiiiiiii.s.siouer of Siipifiiii' ('(nirt, 
('(iiiiity (if Halifax. 'I'lir rule liaviiij; Imcii iiiiidc 
iilisoliitf. .-iltili;; the attachiiiLlit asiilf, plaiiitill 
11]i|I(-m1i'i1 (HI the (.'loillld iiliMillg otluM-.s, tliat the 
Jiiilgi' ill liisdlvi'iicy iiail no jiiiisdictidii t(i make 
till' iiidei-, that tlu' iillidavit.s welu iiii(iid|)t'rly 
sworn, liuiiig iiM|iiirc'd liy tin- Act to lie sworn 
liy oIlic'ciN appoinlfd l>y tlie uotiil, and tlial di-- 
fendiint's jii-tilioii to st^t as^idi! the writ was 
inciiiitiiii', in lii'inj^ jncsuntud lieforc tliu ri'tuiii 
day of tile writ. 

ll'I'l. \>\.. That tile .hidge jiossessc'd juris- 
diction iiiidi.r .suction -(» of tin; Act wiiiili em- 
jiowi'is him to entertain a petition to set aside 
tlu' writ under the provisionn of section I'tj. 

•_'nd. 'I'liat from tlie mere fact of the coin- 
niissioiiers acting, there was a prestim|ition in 
favor of their authority which must stand, until 
destroyed liy evidence snthcicnt to annihilate it. 

.Srd. 'That it was left l>y liie Act in the dis- 
cretion of the )iarty petitioning, whether lie 
Would await the return day or not, the words 
being "may petition the Judge at any time 
within three days from the return day of the 
writ, liut not a/ttrirard-i." Doni. Acts, IStiO, 
c. 1(5, 8. 26. 

(Juatn, whether the writ could be set aside 
until actually returned. 

The Act providing that the petition is to be 
heard and determined in a suiiiiiiary manner, 
" it is for the learned Judge to decide -.vhat that 
summary manner of hearing shall be, and as 
regards the nature and eti'ect of the evidence 
liy which his determination is to be governed, 
provided it be legal and sufficient evidence." 

The learned J udge having proceeded by order 
viii. 

Uilil, that the course was perfectly unobjec- 
tionable, whether viewed in regard to the dis- 
cretion so exercised, or to the nature of the 
mode of proceeding itself. 

A commissioner who is in practice and law- 
fully recognized by the Court (as wouhl be 
Akins or Nutting) as an officer legally exercising 
a function so iniiiortant, is within the meaning 
of the words of section I'J.'J, "A Conunissioner 
appointed by the Court." 

Iaihij v. Foreman, 2 N. S. 1)., 540. 

I. Constructive service — Affidavit for - 

I'laintill'oljtained in the C'ounty Court an order, 
under 4tii R. S., c. !M, s. 44, for constructive 
service of a writ of summons on the defendant, 
who was absent at the time in England. Tlie 
atlidavit on which the order was taken was siib- 



.•-t.iiitially ill these teliiis : — "That said defend- 
ant is absent from the Province, and is, as I 
am informed and believe, in (ireat Hritain, so 
that pi'isonal .service cannot be ell'ccted Upon 
him. if at all, witiiout great expense and iiicon- 
V(.'iiifiice ; tiiat I have a good and available 
cause of action against defendant ; tiiat H. 1'. is 
the agent and ]iartiier of tiie dt^fciidant in this 
i'ldvincc. " 

J/i/il, reversing the decision of the County 

Court, that the aliiilavit was not sufficient, but 

that it slioiild have set out the facts and eii'cum- 

stances necessary to make it "appear to the 

.satisfaction of the Judge," exercising his own 

1 judgment in tiie matter, that the ca^j came 

I within till' terms of the statute providing for 

constructive service. 

/•'«>,'(/• V. Ilooii'i, ;{ H. & C, 344, distinguished. 
Mrl^./lcui V. littlibnii, .S K. iV ('., ■..■)4. 

8. Description of deponent -deponent, 

who was tiie jilaintitr, described himself as"], 
A., of .Shelburne, merchant, the defendant in 
this cause."' 

Ilild, no objection as the latter words may lie 
rejected as surplusage, 

Allan V. Casinll, 1 Old., 4(15. 

9. Description -Variance In — WTiere one 

of the plaintitfs described himself in the writ 
as " Chailes A DeWolf," ami in an alHdavit 
made in the cau.se was intituled, "Charles 
Aubrey l)e Wolfe." 

Iltlil, that it could not be rejvd. 

I)<\Volf,<>»'- V. XiilttaL, 
1 N. S. 1)., 179. 

10. Filing affidavits in reply— ^vhere a rule 

»/'>i for a new trial is granted on affidavits, the 

opposite side is not bound to tile his atlidavits 

in reply before producing and reading them on 

the argument. 

Suly V. Purdy, 2 Thom., 414. 

U. Intituling Xamcs of Parties— An aiii 

davit is sufficiently intituled in the cause, al- 
though the words " plaintifl " and " defendant " 
are omitted in the heading after the names of 
the parties. 

Jlarriiv. Fad,)-, 1 N. S. D.,3; 
2 Old., 371. 

12. Intituling in absent and absconding 

debtor proceeding — Misdescription of depo- 
nent — It is no objection to an affidavit for an 
attachment against an absent or absconding 
debtor that it is headed in the cause, nor that 
the deponent, who was the plaintifl', described 



;{.s 



AFFIDAVIT. 



U 



hiiiisrif lis ■-.!. A., of siu'iiiiiriK'. nii'iviiiuit. tiic I 17. liitKiiliiiK of, ill proccediiiKH f<>r roil- 

ili'ffliilaiit ill this ^•lul^^c•," as the laltci' w cuds I tempt A lillr /(m/ fur allariiiui-rit fur a con. 

ni.iN lie ri'jcili'il as siir|)liisaj.'c. hcnipt of ('nun will In' (liscliar;.'iMl, if litadi'il 

Af/itii V. I'lisirvll, 1 Old., 40,'). ! '• III n . .Vr." \\ Iumc tliert' is im siiill iiialli'r 

cli'|)i'iiiliiiji ill ( 'oiii I. 

\:\. IiilUiiKii;; of, In certiorari Afn-r '" " /' '■'• A'-- , •_> i;. .v c, .-.•mi. 

issm-, hut lu'toro n-turn .\ wril of ,,,•/;.„„,/ , ^^ MoCloll tO ITSCllUl Proof of A|)|»!U'a. 

,viM- l..rli issurd out ot tlif S„|,r.M,.. Coiirl to ; ^j^„ ^^ j,,^,^,^. ^,,^^ ,,^.^^,^, ^,,,,^,j, ,.^.,,,_,^. ^^^_ ^^^^_ 



ihr Cliicf Ciiiiiiiiissioiicr of .Mines, tin- Coinniis- 



])licatii)ii is niailc to tlio Coiiit to rcscini! an 



>i,.M.T .l...lin..| rrtnrn.nf,' or ol,,.yii.L' tiie writ tor i ,„.,^.,. „,• ^^ ,,,,|^,^._ ,|,,,,i,,„i„„ ,,,„„,,| ,„. ,„„|,, ,„ 
ivavoMswIiU'h tlieCoiirt lirMinsullirleiit.an.laj,!,,. _,,,,,^,,, ^^.,,,, ^,,.^,,^,,.,, ,|^,, ,_^.^,,,,.^ ^^,_,| ,,^^, 
rnl. nis; tor an atta.-liim.nt was tlicnMiiion ,,„,„,, ^^..„ ,,^,,^,^j,,^, j,,,^,,.^.^. j,,,,,,,. ^j^.^^ ^^,,,,^ 
Kiaatnl. Tills ruK' was o|,,,os,mI on two ^',o„ii,is, ,,,,,,ii,,^ti„ii I,.-.;, |„rn iiiadr. Atlidavit of infor- 
til.. siTon.! Ikmiik tliat tlir alli.lavits -" wl'i''!' ; ,„„i„„ „,„, |,,,i,.f „„,,.,,„,,„,„,„,■ ,|„. ,|,„L'.. in 
tlic rule was pant..,lw..r..intituU-.l ,n ,1„. .■ause. jj.,,^^,, ,^^^,^, ^^^^^ ,„|,i,,|,,,i. 

y/./-/, Wllkins, .1., ,/,«.»/,»;,, that allliou-h ; ^^, ^.^, s,„ I Comi,u,„J of Canu.ln (IJmif,,/), 

the writ iii f rllimii'i had not vet heeii reluriied, j - i> «. /• i- 

tile matter was already in the Conrt. and there- | 

fore the allidavits were ii.L'litfiilly intituled. |j>. Oil Appeal froill JllStiCC I'lif allidavit 

In n l'/i/,l, Con/ mid Miiiiiii/ Cn., 2 N. S. |)., .")(!. f,,r appeal from a dustiee of the I'eaee, in eivil 

lases, iiiusl l)u inad(! lii'fort' the Justice wiio 

14. IiilltiiliiiK of. In tcrtlorarl Hcforo trie.l the cause. 

return of writ - Ellect of so intituling, and ('nrnj v. I.i rrnx, 4 II. I'i: (;., ;{I. 

othevacts- After the Court, with full linowledye 



tliut a writ of ny/iorari had not lieen returned. 



r>ut s,< -,th 1!. .S,, e. l(|-_', .sec. :U, wheie it is 

,. , . , . , , , . ,. provided thai the allidavit for api>cal or for a 

icicived afiidavit.s on the part of the plaiiillll ... , , .'' , . 

, , , , , , , . . writ ot eaiuas may he sworn hetore anv •lust ice 

iiilitulccl 111 the cause, and Ufanted a rule /"</ c , i, 

, 1 1 r 1 11 , ot the I'eaee. 

tliticiiii, ami detendant a])peared l>y counsel, 

and resisted the rule i,),on an allidavit of defen- , >^q Q^^^^^ „f SeSSlOHS -Additional Or SUp- 

diuit also intitule,', in the cause. plemental attidavits An order of sessi.ms for 

»W, that it was too lato to rai.sc the ol.jec ,.,.„^„^..^, „f .^ |,,,„j,^,,. ,,,,„„,,, ,,,„,„ i,„„|,i,.ient 
tion that the cause was not properly before the j,,.„„„,,^ ,.,^,„,„i |,^ sustained l.y alli.lavits of 
Court, or that the Court ha.l n.. power to j^^t^ omitted to he verified before the order 
ailjiidicate thereon. ' imssed 

Jiaiiil v. Flarin, '2 N. S. I)., 80. BnriHihy >t al. v. ilardiiu r ,/ a/., daincs, .'JOfi. 



15. Intituling of, in certiorari— Before and 

after issue — No cf )7/o)Tt)'( shoul.l issue in a civil 
suit without an allidavit sh.iwing sufficient 
grounds therefor in the estimation of the Court 
or Juilge who grants it, and wliieli may be eon- 
troverte.l on other affidavits ami motion to .set 
the II rliortiri aside. The alli.lavits for the writ 
should n.)t be intituled in the cause. The alli- 
diivit.s after the cause is brought up must be so 
intituled. 

Crawley v. Anderson, 3 R. & C, .37. 

16. Intituling of, on application for man- 
damus— The affi.iavit upon which an application 
for a iiuuidamus was made was headed, " In the 
matter of an application intended to be made to 
the Supreme Court for a mandamus," &c. 

Held, mere matter of description, and distin- 
guishable from the heading of the aflSdavit in re 
ftter Iio,Hs, 2 R. &C., 596. 

Be Wilson, 6 R. & G., 180. ; 
6 C. L. T., 447. 



21. Place where sworn -Statement of in 

jurat — In allidavits it is necessary that the 
place where they are sworn to, but not the 
county should be stated in the jurat. 

Jiorhvellv. Ross, I N. S. D., 18.3. 

22. Pleas— Affidavit to set aside, as false, 

&e — Contenta — Allegatifnis in defendant's affi- 
davit that "the pleas are not false, frivolous and 
i vexatious, and are not pleaded solely or princi- 
: pally for delay. " 

I Held, of no eflect in opposing motion to set 

aside pleas under 4th Rev. Stats., c. 94, s. 133. 

Qiimrc, whether the contrary allegation in 

plaintiff's affidavit on such motions is necessary. 

Ford v. Broint, 2 R. <!k C, 408. 

23. Pleas— Affidavit to set aside as false, 

&c. — By whom to be made — An affidavit to set 
aside pleas as false, frivolous, or vexatious must, 
in general, be made by the plaintiff himself, and 
must state facts showing that the pleas are so. 



85 



ALIEN. 



IM] 



All iifliilavit luiiilc lis iiliiiiitiU's (■ouiiscl, coii- 
' 1 

tiiiliilin II lin'if >,'i;uial stiiti'lUL'Iit that the |iUmi» 

are fiilstt, fiivoliiiis (ir vcXiiticuiK, as lit' hiiK \ 

liiMMi infoniicil liy tlu' ])laiiilitl' and verily )(u- 

liivis, tliniij.'li iiiiiiiiilrailiitiMl liy any allidavit 

on till' part of liit' cUfcnilant, is ii<it siilliricnt. 

(;ih.-<oii V. Kill I/, 1 1)1(1., 7'.'4. 

"M. Kradliiff of, at nrsiimonts In reply— 

Alliilavils DM \\ liiili a rii'i' is cilitaiiifd must lie 
rcail at the ar^riiiinMil ; and allidavils in rejily 
may liu used in slicwing lause a^'aiiist it. i 

Thoriii- V, Shfiir, 1 Old,, 542. ' 



1. CONS'I'IU'CTIOX OF— .sVf; (ON- 
•I'M ACT. 

II. CONSIDKHATIOX FOK.-.sv, (ON- 
TRACT. 

JII. Li:(iALn^' OF. —sVt CONTRACT. 

JV. I'AJiOL K.XI'LANATIOX OF. — .Vcc 
KVIDKXCK. 

V. KKLATIXC TO SALK OF I'UOP. 
EKTV.— .SV< SALK. 

VI. Sl'KCHTC I'KHFOHMANCE OF. - 
.SV. COX'l"RACr-SALE. 



'2.1. Snorii btTore piiblir oflh'lalH abroad 

— Allidavil made in lioston, piiriiipitiiig to lie i 

made licfoiv I'.inghani, "Chief .Ju.stieo (if Su- i VII. TO DKMISK.—.SV* LANDLORD AXD 

peridr Ciiiirt,'' witlicmt s]iucifyinn the Ci art, j 'll'".N.\Xr. 
Hihl, giHid where the jurat cmI iiiumI the vviirds i 

"the seal of whi.h Cdurt is allixud.'antl the Vin. WITH IX TMK STATUTK OF 

allidavit liore the .seal of the proper Court. FKACD.S. - S<, CO XT K ACT — 

IloUrUou V. Camn-on, •_' R. >^ C., -Jtil. CCAKAXTKH - LANDLORD AXl) 

TEXANT— SALE. 

20. SMorn without the Province Omis- 
sion ol'seal--^\n allidavit to .^et aside pleas was 
sworn without the I'rovinee liefore a eoiiiiiiis- 
sioner a]ipointed to take allidavils for use 
within the Province, Imt was not autheiitieated 
by the seal of the coinmissioner. 

//'/(/, that the allidavit could not be read. 



ALIEN. 



1. ( hlldren, tte., of liritlsh subjects born 

in foreign countries not- Failure of inherit- 
able blood by alienage — Land does not escheat, 
Liviii it III. V. Jii-Ktiiil, 5 R. & (1., '2{>,3. but goes to next heir -The ciiildreii anil 

giandehihlien of natuial li<irii lirilixh subjects, 
though born in a foreign country, are not aliens, 
and are, therefore, eapidile of transmitting ical 
estate in this Province by descent, and c'dier- 
wise. 

Where there is a failure of inheritable blood 
by reason of alienage, the lands do not escheat, 
but go to the next heir. 

Siil/irv. Jhii/hi-i, 1 Old., 409. 



AFFILIATIOX- 

iS'tK BASTARD. 



AGEM- 

See PRINCIPAL AXD AGENT. 



AGREEMENT. 
"Agreement" In 2nd Rev. Stats., c. 22, 

s. Hi, does not include "accounts stated." 

Smyth V. McNdl, 2 Old., 75. 



2. No right to Jury niedietate linguae- 
Alien ilefrndants are not entitled in tiiis I'rci- 
vince, in any case, civil or criminal, to a jury 
lie, mcilii fa/i limjuni'. 

(jmi'ii V. Ihirddlil ni, 1 Old., l-'O 



3. An alien may be a juror. 



7/."/. 



4. Oath of allegiance -Effect of American 

treaty— Aliens do not become British subjects 
by the oath of allegiance, and are not privi- 
leged by the license of the Governor of Nova 
Scotia. 

Amerieau treaty dissolved all connection with 
the subjects of the United States. Persons born 



;{ 



AMENDMENT. 



38 



tliclf llliilrl' llll' Killji's allfJ.'iMllff. ill!' llnl ell- 

liilcil In till' jiiivilcni's III' Kt'itish Nulijtits. 

Th' I'mrltl. iir, , Stcw.iil. IS(>, 

'}. I'roororallciiiiKC ulicn alien has title 

— WliL'ii ilil'iiiio of iiliiiiiiigu not aviiiljiblu - 
Till.' law leiiuiri's .-tiiit iirmit trmii ilic piii'tifs 
who .Nct up an iiliriiaj^'i' as ,ij,'aiii>t lilli. 

>i iiili/i . tliat as Inn^' assnlliricht fsiali' I i'liiains 
vcstfil ill an alien lif may inaiiil liii rjiTi inriil. 

(Jiiiii n /■' /• W'ilkins. .1., as loan alini drviscc 

in tl'llSt tn sell. 

/'(/•. I olinstont-', K. .1. It is not coiiipiiiiit to 
a iKU'ty who ;.'o('s in iimlii a cmitiait In piiriliasi.' 
to avail liiinsclf ot tin' (Icliinc of iilit'imj.'t'. 

}\'i/li(nii.^ •> nl. V. .l/.v /•.-■. •_• \. S. I)., I.-.7. 

ti. I'lireliasc of' liitor<>st In shipping: by 

I'laimill, liL'iiii.' an alien. |)iii(.'liasi'i| fioin A. S. 
one I'ouith of till! sihoonur Aiiaeonila. 'I'lii' piir- 
ehiiso moni'y was jiaid, luit tlieie wiisno loiiti'iK't 
in wiitiiij;, nor any liill of salo uxfeuteil, nor was 
any hill of sale or traiisfir ever ileinaliileil Ky 
])laiiitilV, lull it was agiei'd that, in the event 
lit A. S, (who was still to lie eonsiilereil sole 
nwiier as rei,'aiili'il tliiiil piiities)sellilii,' the three 
iviiiailiiiii,' folliths, lie sholllil also sell the Jilaili- 
tilV's I'ouith. 

.\. S. lia\ inuilieil. hisexeeutdl's.soldhisinteri.'st, 
hut ili'l not sell that of |)laiiitill'. who then hroiiglit 
liisaetiiin for lireaeh of the agreement. 

//' III. that plaintitr. as an alien, lieingdi.sipiali- 
liiil fioiii taking a liill of sale or transfer of a 
I'llitish Vessel, under 17 and 1 .s \'ir., e. Kll-, and 
tlie agreement sued on lieing an attempt to 
evade tlu' statute eould not he enforeed. 

Ciitt.i, V. Mrl'niiui,' 1 1 (iL, I N. S. I)., 4tiS. 



ALLIVIOX- 

*i. HIVKIt.s;. 



ALTKIMTIOX 

1. Ol" XKco'l'lAlilJ'; I.XS'l'lU'MKX'l'.S- 
^- KILLS ()!•' ];X( H.\\(;j.: AND 
ri:().\!i,~;M)KY Xo'l'Ks. 

•-'. Ol' H;)N!)-.sv, 150X1). 



AMBASS.inOKS. 
Cannot grant licenses to autliorizc the 

eiiuiiiy to trade with the British Dominion. 

Thil Srdlij Ann, Stewart, 3(57. 



AMKXDMKNT. 

I. (»l' W nil's, ;ts. 

11. OF lM,K.\l>IX(iS. 41. 

111. Ol' ltriJ:s,.t7. 

IN. .MI.SCKLLANKOUS, IS. 

1. OF WKITS. 
1. Amendment allowed of Common Law 

writ, so as to make it a siiimiions in Fipiity. 

A'l/.io// V. Cijiiiiov.i. 1 Old., 4(Mi. 

i. The Court will not amend a writ In so 

many pal lieulars as to make it an entirely new 
writ. 

Stdjili.i 1 1 nl. V. Taijli»\ .lames, .'}•_'(). 

3. Adding party as plaintifT after argu- 
ment of rule fornew trial y/« /(/, in an aetion of 
ejectiiieiit that as there was no jiretenee of title 
in the defendants and the phiintitl's would have 
hieii entitled to judgment if a third jiarty's 
name had heen on the leeoril, the reeord might 
now, after argument, lie amended hy aihling 
siieh third ])arty as a lilaiiitiH'. 

lidiilUli r V. Kiiork 1 1 a/., '2 Old., 77. 

4. Adding party I'arty Joined must con- 
sent in writing — Li'ave having heen granted, on 
an apiilieation made for that ])urpose, to aineilil 
hy aiUling the name of .\I. L. W., a.s a ])laiiititl' 

Hi ill, that, under the wording of Order .\\'l, 
I'ule 10, sueh an amendment eould not lie made 
in the ahsenoe of a written I'onsent hy the jiaity 
to lie joined. 

M'lirzhinyv. ll'iW/, 7 R. & ti., 414. 

5. Adding new plaintiff at trial Consent 

— 'Si mill' . a writ eannol lie amended on trial hy 
the addition of a new plaintitf without sueh 
|)laint ill's consent. 

CalioiJii if (il. V. Morroir, 1 Old., 148 

a. Adding party Xo laches— defendants 

deiiiiiried to plaint ill's" writ, on the ground, 
among others, that the Attorney-Oeneral had 
not lieen made a ])arty. The demurrci' was over- 
ruled liy the .ludge in Eipiity, wlio.se decision 
was sustained hy the Court //( Ikiiico on appeal, 
from which decision an appeal was taken to the 
Supreme Court of Canada, where the appea". was 
dismissed on the ground that the Court had no 
jurisdiction as the decision was not iinal. Plain- 
tiffs then sought to amend tlif writ by adding 
the Attorney-lieiieral, to which the defendants 



30 



AMKNDMKNT. 



40 



nlijcrlcil, nil till' niipiiriil iifilcliiy. Tlic ilrliml 
lints Will' ill iiiiKscKHinn ipf ilii> prcipi'i'ty. iikiii 
frnlii till' |il;ilii' ill's, ill M'>|ii'i't <it' wliii'h tin' Miil 
UiiN li|nii;.'lil , ami were ciiinyiii^' the w Imli' |Hcitlls 
(if it, Nil llial till' ilclay wa.1 |il('iuili<'lal In llic 
lilaiiitills latlici' than In lliiiii. 

Il'hi. lliat till' iilaiiililFs will' tiililliii (n \W 

aiiH'liiliiii'iit a|i|ilii'il fur as tliry liail ii<>t Imiii 

I'ciliiss ill till' |Hosciiiliiih iif the liUl.-r. 

Till W'liii^iir >{■ .tiiiiii/iiilix Itiiihriiii I'll, i: 'I tie 

III s/i rii I 'niiiih'i 1 Itiiihritii I 'n. , K. \',. I ). , .'(.■|,''i. 

;. Adding; (Icmidaiits liable In (lie ailcr- 

native I'iaiiitills a|i|ili('ii til iiiiii'iiil tlii'ii writ 
liy aililiii>; ilifiiiilaiils mi the ^'riiiiinl that a 
tU'feit cxisteil ill I lie iilj^lUlii'.iltiiil: nf liie iletVllil- 
aiit eiiiiipaiiy ami ill iiriler that in tiic event nf 
failure apiiiist the ilefemlant einiipaiiy, they 
might !ia\e relief aj,'ailiNt the ilefeinlaiils wlumi 
tliey siiiight to ailil. 

l/i/il, timt thu iiliit'liilnieni eoiilil imt he al- 
loweil. 

I'll- Hitehiu, H. .1. — Vim may iiiay alli'inate 
relief iigiiiiist tiic same defoiiilant ov ilefeiiiluiits, 
Init yim laniint luiiii; ilill'ereiit sets nf ilefeiulaiits 
anil say — " If I am not eiititleil tii relief against 
A, 1 am entitled to relief ayainst B ;" ynu must 
make u)) your mind against whom you are 
entitled to relief. 

Hut M_r iith Rev. .Stats. e. 1(14,0. Hi. 
2'he Xora ScoliaSn// IVork-til; Ex/loralloii Co. v. 
The Halifax <0 Capv Breton Railway <(• Coal 
Com/iaiiy, R, E. 1)., 333. 

8. Adding; parties— Boutilicr v. Knoclt, 

2 Old., 77, distinguished — A speeial venliet in 
ejectment had been taken for plaiiititl's hy con- 
sent, subject to the opinion of the Court. It 
appeared at the argument that the action had 
been brought in the name of some only of the 
individual members of a corporation, ami not in 
the name of the corporation itself. 

Held. Young, C. J., di.tseutiyif/, that the 
verdict must be set aside, with costs of trial and 
of argument, and that an amendment without a 
new trial, as granted in Boulilier v. Knock, 2 
Old., 77, would not be allowed, the amendment 
in that case without a new trial being granted 
solely on account of its peculiar circumstances. 
A new trial was granted, with leave to the 
plaintiffs to amend by adding the names of other 
plaintiffs. 
Battleman et al. v. McKenzie et al., 2 Old., 159. 

9. Adding parties- Policy of Insurance- 
Condition requiring action to be brought 
•within six months — New plaintiff allowed to 
be added after six months — At the trial of an 



aeliiiii on a policy nf insiiraliee ill aimiiillliellt 
Ma> jiialileil Iimri' I hall six months after the In^s 
allnMiii;,' a party tn be added as a plaintilV, 
allhniif.'|| the jinliey reipliled the aelinll tn liu 
brnii;:lil w itiiiii si\ imniths. 

Ill /'I. thai I he aiiiemluieiil was prnperly 
Lrraiileil. 

Ihiiill 1 1 III. v. 7V.' ir< «/i /■/( .1 <.<i//v(/(i'i i'li., 
I (» R. \ (I., ITS ; 

! ti ( '. I,. \\ , .•.;;'.». 

Oh ii/i/ii III h, III! ,>!ii/iri III! ('unit m' I 'imiiilii. 

The jml>.'melil nf the .Supreme Cniirt nf Nova 
Seiilia was re\erse(|, on ailnther pnilil linwever. 

y/e W'l >>i rii .liiiiriiiin (.'11111/111111/ w I li^'ill 1 1 nl., 

i-.'s. c. 1:., nil. 



1«. Writ by " Kxenitors of M. and J." 

Amendment after verdict siib.stitiiting the 
word " .J. aH surviving partner of M.." refused 

M. sued L. and 1'". as jnilit eniitraitnrs. I,. 
dieil, ami his execiilnrs were siibstitllteil nil the 
reenld. M. died, ami his exeelltnis were substi- 
tuted. On the trial it appeared that.!. Iiad been 
a i)artner and encnntraetnr with .M., ami l;!" 
name was added. The writ was amended by 
adding J.'s name and the cause went to trial 
as, Kxueutnrs nf M. and .1. i\ Kxeeiitnrs nf L. 
and F., and the jury t'niiml a verdict for .•?(j,')l in 
favor of .1. as survivng partner of M. 

Ill hi, that after verdict the t'ouit coulil not 
amend the writ by expunging the names of tl;e 
executors of M. and adding to the name of J. 
the words, "as surviving partner of M." 

JohiixoH et al, v. Lithijou et al., 
2 R. & C, ')ti7. 

11. Answer to amended writ— Time for— 

I'laintiffs liaving amended their writ, served it 
on defendant, with a notice, indorsed, loquiriiig 
him to answer within fourteen days, otiierwise, 
plaintiffs to be at lilierty to sign final judgment 
by default, and have the writ taken pro con- 

/('■■<.10. 

Defendant, who had duly put in his answer 
to the original writ, did not within the time 
limited in the notice, answer the amendment, 
and plaintiffs ol)taine(l a rule 7iisi, calling upon 
him to show cause why the writ should not 
be taken pro conjMno, etc., before the argument 
of which rule defendant put in an answer, not 
denying the statements in the amendment, but 
leaving the proof of them to the plaintiffs. 

Held, that the rule nid must be discharged 
with costs, defendant having a right to put in 
his answer at any time before tlie marking of a 
default. 

Lawaon et al. v. Belloni, R.E. D., 107. 



41 



AMKNDMKNT. 



42 



1*2. On niolinn for now trial i'Ik' ini^ 

lion to iniurt tliu niiincH of oii-tcniintH in n writ 
(if |)!iititi()ii in a fativl (iliji'i'tii)ii when taken iit tin- 
ti'iiil ami iiecil not )>(.' picuili'ii in aliati'Micnl. 
Till' Coiiit will not iinii'n<l tlif plaint ill's wiil 
dining' iirgiiinont of a motion to sit it asiilu. 

Ihiiitii V. .l/'7\'i //////, .lames, H'J8. 

i:{. TriiHloes of Hchool Rurd porNoniilly 

I'laintil1'lir<iiigiit action against the ilcfrm hints 
fill a ni iiiilainns to t'ompcl tlii'm to pidviili; for 
a ilclil iliii' him liy tiic trustees of a scIiudI stx'- 
tioii. 'i'lu'writ was a^jainst till' ilcffinlants per- 
sonally liut I'ontaiiU'il a stati'iufiit that thuy 
wi'iT triistocs, \-i'., ami that ileffmlant I), was 
sfcri'tary. Kviilcnci" was taken as to the I'xis- 
timii of till' (li'lit. anil the casi' eanic on for 
lnMrin:.' ninler the pli'ailin>;s ami oviilcnci'. Il< lil , 
tliiit the triistfL's coiilil only ln' sncil in their cor- 
pnrati' name ; ami that the amenilmi'iit to that 
ftri'i't, aski'il for l)y jjlaintitl' ai thu lieaiiiii;, 
I'linlil not lie jiermitteil. 

Codhw Diiriil.iiiii it (il., \\. i\ I)., :\~. 

11. Writ or replevin >'o notice to appear 

and plead indorsed Irregularity, but amend- 
atile A writ of replevin havinj,' lieen issued 
withniil the notiee reiniired to lie indoi'sed 
tiieieim liy the I'raetiee Act, (notiee to appear 
iiiid plead). //■/'/, that it was irreu'nlar, Imt 
might lie amended on payment of ensts. 

(''lull /•oil V. ('null run. 1 \. .">. I)., 17'>. 

II.- OK I'm:ai)IN(;,><. 
1. icilon for work and labor Counter- 

claim Reetilication oC eontract Amendment 
of pleadings - Laches, accounting for In an 
action to recover an ainonnt claimed to lie due 
fur work and lalior done, defendant sonj,'hl to 
plead liy way of otl-set or counter-claim, an 
iunoiint which plaintill' had agreed to pay for 
cvi'iy day that his contract should remain unexe- 
cuted after the date lixeil for its completion. 
Tlu! words "per day" having lieen omitted 
fniiii the eontract defendant ai)plied to the 
ciniity side of the court for a reetilication, and 
iilitaiiied an order staying proceedings in the 
inciiiitinie. 

All order, rectifying the contract liy adding the 
woiils omitted, was granted on the "iTtli May, 
hSS,"i, hut no stej) was taken liy defendant to 
iiiaciiil her pleadings until October following, 
when an application was made at Chambers for 
leave to amend by filing the counter-claim. 

I>efeiiilant"s counsel accrmnted for the delay 
I'.v alleging on atKdavit that he could not have 
comiter-clniincd prior to the rectification of the 



I'lililiact, and that suliseijuently he was delayed 
by the nlweneu of witneHses from whom it was 
necesHary to obtain certain information. Tho 
application for leave to amend having been 
refused, 

III III, on appeal, that although the delay after 

' tho lUaking of the order had not been natisfac- 
torily accounted for, the refusal to permit the 
amendment on terms was not justitied by the 
circunistancos of tliu ease. 

[ The power to amend is so plainly intended to 
allow all mistakes and errors made in pleadings 
io be rectilied in the ab.sence of inii/ii jiilm, and 
under such conditions as to prevent injury to 
the opposing party, that tho cimrt will hesitate, 
except under very exceptional circumstances, to 
refuse an amendmeiil to either party where such 
injury would not occur, or where, if occurring, 
it could be eompensated for. 

/*( ;■ McDonald, ('. .!., ilii-ii iilimj, that the 
defendant was guilty of undue and unexplained 
delay, and was not entitled to the amendment 
applied for by reason thereof. 

Si/nioiiils it ((/. V. /•'/>■/( »•/(■/', 7 R. & (•., 4.S7 ; 

7 C. L. T., 4;W. 

2. .4etlon on polley Addln!? eount for 

failing to furnish policy contracted for - 
I'laintitf being unable to recover on a policy of 
marine insurance on account of a clause inserted 
without his consent, was allowed on trial to add 
a count, setting out that defendant had con- 
tracted to furnish a policy such as they had been 
in the jiraetice of furnishing at the date of the 
ap|ilication, but had neglected and refused to do 
so, and to insure his vessel thereby. 

h'liliirt.ioii V. Diiilmitii, 1 R. i.*i ('., ."iD. 

.J. .\fter Judgment on dcinurrer-An ap- 

])licatioii to amend after argument and judg- 
ment oil a demurrer stands in a diH'erent posi- 
tion from one made before, and the a])])licant 
(defendant) should make it aj)pear by alKdavit 
that the defeni'C proposed to be ])leaded is 
founded on fact. When this was not done, and 
the pleas which it was proposed to add weie 
clearly demurrable, the Court alKinied the order 
of the Judge at Chambers, refusing leave to 
amenil. 
Cahlircll V. S/ailaroiia Fin- and Life IiiKuratice 
Co., 2R. &<}., 300; 
1 C. L. T.,70!». 

4. Amendment of Pleas rcfiised after vcr. 

diet for Plaintiff —Waiver required by condi- 
tion to be in writing— Striking out plaintifi" 
improperly joined — After a general verdict for 
plaintiff in an action on a policy of- insiu'ance, 



43 



AMENDMENT. 



44 



defendant moved nt the argument to add a plcii 
scttinij up the defence that the action hud not 
hcen l)r<night witliin six nionthw as re(|nir(Ml liy 
the conditions of the policy. 'I'he anicndnicnl 
was refused. (Su 2 R. & (i., .SdOi. 

The policy of insurance contained a r<indition 
that no re(iuirenicnt as to proofs f)f loss slion'd 
he Maivcd unless in writing. The jiroofs of loss 
were ilefective, and the Coin't Indd that tliere 
had liecn a waiver, hut as it was not in writing 
the verilict was set aside. 

CiihJii'ill y. SidihtiTiDn Firr (tiul Lil' /n-oirdiiri 
Co., .S Ft. \- (;.. '-'IS. 

/I'lP •((•■>■■((/ oil (i/i/i(C(/ /O /III Sii/a-) III! Ciiini nf 
Canada, where, however, the(nicstion of amend- 
nielit was not totiched. 

The Court lohl. as to the ]ioint raisfil fur tlie 
first time in the case liefore tlie Siipriiiie Court 
of Canada, that under the jirarlicr in .s'ova 
(Scotia, (4th 1!. S., v. !M, s. !M), wlicre the wife 
is impropi'i'ly joim'd as co-])laintitl' with tlif 
hiishanil, the suit does not aliiite, Imt tlic wife's 
name must he struck out of the record, and the 
case determined as if hrought hy the husl)and 
alone. 

Calilirill V. Sfdilitco/ia Fin ami Llj'i Iiisiiriiiin 

Co., 11 S.'c. R., •_'!•.' ; 

.*? C. L. T., !I4. 

5. DlsCrClion of JlUljte- I'lalntitl was ])cr 
nutted at thf trial to amend his declaration hy 
alleging tlie interest in tlie insiiraiiee to he in 
one M., along with the others originally name(l. 
in an action on a policy of insurance. 

J/i/il, that the dudge had the right to allow 
the amendment in his discretion. 

//«/;(.>■' (/ V. J'roriiliiici: Wu-'hiii'jtoii Ins. Co.. 

1 H. k{\.. :V.)X 



recovered jitdgment against defendant as admin- 
istrator ;nid that to the execution tlieieoii, tiie 
slieritf had retnrne(l that defendant had no 
gdcids or ciiattels which were, iVc. liut had jiaid 
the costs of the suit (tlie return Ijcing set out 
n rliotiiii]. and (lie declaration proceeded, 
•• ii-Ik ri III/ if (i/,/i((ir-' that tiic defendant hath 
eloigiiecl, wastt'd. and converted to his own Use 
giioils." &e. Defendant ilelimrred <in the 
grounds, tliat no f/< i'((-v/«i'//' w as aUeged or sug- 
gested ; tliat widle it was alleged to al)|>ear hy 
the return that defendant liail eluiuiied and 
wa-^ti;d I lie good.- 1 if the intestate, the reliirn, 
whiiOi was si't out i-i rliiit'nii. did not allege <ir 
suggest a il' nt.'ifori/ ; that it did not tollnw as a 
legal inference from the return tliat defendant 
had lieen guilty of a ili rii.-<ioril. and tiutlier tliat 
the ill ra'iUiril should he alh'ge.l as a tart and m.t 
stated as an inference. 

Ihlil, that tlu' ride iiiti to set aside the ile- 
murrer its irregul.ir must he made ahsolute. and 
that dcfi'lidant if emharrassed hy the deelaia- 
tion. shoulil ha^•e a|ii)lied under 4tli I!. '^.. e. 
04. s. 1l'4, to h.-ive it amendeil. ami \\a> pre- 
cluded liy the statute froir, demurring. e\ee)it 
after non-com])liaiice liy plainlill' w ith a judge's 
oriler to amend. 

Ritchie. !•;. .1.. ili-<-i ii/iiiij. 

.\lorr:<o,i V. Kdiiiliil:. •_' |!. \ C. 14S. 

Oil /i/i/iiii/ lit /III Sii/ii'i nil Ciiiir/ of Cmaiilu , 

111 III. an order setting aside a demurrer as 
frivoliius and irregular under the \ova Sentia 
Traetiee .\ct, l!ev. .^tats,. 4tll .-series, eh. !I4 
is an order on r. matter of )iraetiee and not a 
linal juilgmeiit a]i))ealahl«' under the 11th sec- 
tion of the .siuitreme and l*",\che(|Uer Court Ait. 

.\p])eal dismissed withotlt eii--ts. 

k'liiiilirl- y. .Unrri.^oii. -2 S. C. I;.. !•_'. 



«. Grounds of defence Defence of Ulesal- 

ity added — Terms of amendment — An amend- 
ment to the grounds of defence having heen 
allowed hy the .Judge of the County Court at the 
trial raising the defence of illeg.'dity under the 
Act in relation to fmious driving. 

//'/'/. that the aniemhnent was properly made, 
being <ine necessary for determining the real 
qtiestion at issue within the meainng of Order 
xxviii, Hide l-Jof .-.th R. .><., c. 104. 

.l/.<(), no terms having heen imposed in iillow- 
ing the amendment, that the Court eoe.ld luiw 
make .such an order as would do justice hetween 
the parties. 

Doraii V. Cliamhi r-s L'O N. S. R., (S R. ^: ( ;. ), .'iO!) ; 

!»C. L. T.. 7. 

7. No demurrer until after non-compli- 
ance with order to amend — 4th R. S., c. 94, s, 
124— I'laintitl'set out in his writ that he had 



8. Of grounds of iijipeal refused wlierc 

cause had hecome a remanet I'laintiils' iutinii 
was hrought in the County Court tn leeuver 
])rofessional fees as solicitors, attorneys ami liar- 
risters. The primipal (juestif)n of fact was as 
to tlie services euvered hy a sum of .'S|(l(( paiil liy 
defendant tn ]ilailitill's upon which the eviilenee 
was conllieting. The jndgment liehiw was for 
idaintitl's and the ilefemlant haviiigappealed a])- 
jilii'd after the cause had lieeli one term on tli^ 
docket and had lieeoiiie a remanet to amend the 
grounds of ap])eal under Section 104 of the 
County Court Act of 1880, hy adding tliegrouml 
that harristers had no right to recover for i)i(i- 
fessional services. The Court refused the amend- 
ment and held on the merits, thtit the evidence 
was not strong eiunigh to justify them in dis- 
turhing the judgment. 

.]/ol/oii if al. V. liriiiiinii, '2 R. * (i., 16'2 ; 
1 C. L. T., 663. 



45 



AMENDMENT. 



46 



9. On appeal— AmciUlmCIlt allowed - //'/</, <n\ appeal, tliat the .Tudge l)ol()\v was 
riaintitr was allowed, after aiyuineiit on appeal, right in refusinj,' t!ie aiuendiiieiit moved fur, in 



to aiiieuil a count inartistically drawn. 



the absence of any eviileuee to show tliat the 



X<((/ V. Allan it al., (i K. k (1., 44!) ; defendant would lie in a position to estaMish the 
(I (' L. T., .").'{(>. defenec' he sougiit to iiitroduee. 

AIko. that the rejeetio)i of the anieixlnient 
niij,'ht furnish good ground for a new trial if it 
had Ix^en uuuU' to ajipear hy atlidavit or fi'oin 
the evidence given in the eause that di'feMilant 
would jjrolialily lie in a ])osition to estulilish the 
lldiiil V. Iloi-kmll, '1 \, S. I)., 1!)<.». \ defence sought to lie set \\\>. 

I H(tlijh.c liaiikliiii Co. V. (Hills, •_>(»\. S. R., 

(S K. i\: (i.), 4(J(J. 



10. On second trial What amendment 

not allowed — On a second trial no iiuienduient 
adding or sulistituting a new cause of action or 
ground of defence will lie allowed. 



11. Power of Court to order at any stage 

-Order xix. Rules 17 & 19 -Order xxviii, 
Rule 1 -In an action for money had and received, 
defendant's pleas fell short of tlu' eN])licituess 
rnpiired hy order xix, Rules 17 a.>d I!), and < ''<urt will grant rule /nW f,„. .liscontinuance and 



13. Time williln wliioh to make Of D. , lar- 

ation, wlii'U not maile uitliiii twelve months the 



taxation ot costs. 

Tri iihtiliii \. Ti'' iildil/ii, •]iu\\es, lot). 

i 

14. Unnecessary lenfjtli ofpleadinss l^^'- 

claration, when of nuiiecessaiy length, or<lered 
to lie aini'lidcd. 

Wijoiliriirtli c. ]\'iiliritn\ .lames, lll.'i. 

15. When granted during trial When 

refused — Discretion of Judge —In an action on a 
mining the(iuestions in controversy between the ,„.oi„issory note defendant pleaded several |ileas, 
|iarties; but as the amendment, if a]>plied f<ir 
in the Cmiutv Court, would have avoided the 



would have warranted the entry of judgment 
for ]ilaintiH' on admissions in the iileailings. 

'riie .lu<lge of the County Court, before whom 
the case was tried, having dismissed the action 
without costs, jilaintilt' a]ipealed. .\t the argu- 
ment of the appeal an application uas niade on 
behalf of defiMidant for leave to ainiiid. 

Ifilil, tliat under Order xxviii, Kule I, the 
Court has power to allow an aineiulnienv of the 
jileadiugs at any stage, for the purpose of deter- 



uecessitj' <if the appeal, it could only be allowed 
on payment of costs. 

It was contended at the trial that defendant 



none of which denied the making or indorsing 
of the note, or asserted its invalidity in relation 
to the Stamp Acts. At the trial, before the case 
was opened, he moved for leave to add jileas 
under the Staiii]! Acts, asserting in his .itiidavit 



liad represented that the money .sought to be (|,,^f ,,„ ,|j^^, mdrniiig of the trial he had 



recovered was in his possession, and that as the 
action was brought in eonserpience of this repre- 
sentation and plaintitl' had suti'ered preju<lice, 
defendant was esto]iped from setting up this 
defence. 

//(/(/, that the (luestion of estoppel could not 
arise until the issue was settled lietween the 
parties by the amendment. 

liiirhCw Hull, •_'(» X. S. R.. (S K. ,t (1.), '1V.\. 

S C. I... ■{"., 4(HI. 

12. iterusal of .\mendmcnt of defence 



covered that the stamps upon the note had not 
been duly obliterated aicording to the provisions 
of the statute, ;!. defect of which he had not 
been previously aware. The jiresiding .ludge 
refused his ap])licatioii subject to the opinion of 
the court. 

//'/</, that the judicial discretion hail been 
))ropeily exercised, because (irstly the discovery 
of the alleged defect in the instrument might 
have been obtained by i\\w diligence before the 
trial, and secondly, and especially because the 
real i|iiestioii in cont ro\ersy lietween the |iarties, 
in absence of anything to show the party seek- uhich they both came iirepared in tiy, had no 
ing it could establish it — Defendant was sued relation whatever to the valitlity of the luite 



as niaker of a jiromissory note drawn by 



miller the Stamp Acts. The principle go\ein- 



payable to the oi'der of 1^. .1. H., and indorsed ing the exercise of judicial discrelinn in relation 

by the payee to the ]ilaintill'. .\t the trial to allowing amendments is not to permit them 

defendant moved to amend by adding ]ileas set- to be made where the etl'ei't will be to substitute 

tingout that the note was made for tlu^acconuno- a (piestion for trial v.hieh is substantially dif- 

dation of the jiayi'e, etc. The motion was ferent from that which the jiarties came lue- 

refused and judgment given for the plaintilf on pared to try. 

evidence of the making and indorsement of the .\lthough a jjroper anu'iidment cannot be 

note, in the absence of any testimony on the part refused at the trial when circumstances during 



of defendant in support of his pleas. 



its progress unexpectedly manifest a necessity 



47 



AMENDMENT. 



48 



forsueli an ■uiu'tuliiUMit, pi'iii('i))lo and coiivcii- 
iciico aliko ili'iiiiiiid that stieli a ini)tii)n slioulil 
not lie enlcrtaiiifcl in any ease iluring tlic trial. 
where, Kty observing iliie diligence, leave to 
amend might have been obtained at an ante- 
cedent peiidd. 

Till liitiik of Xova ScoHa v. Cfil/niirni, 
•2N. S. 1).,43S. 



III. OF RL'LKS. 

1. On Argument -A rule taken " on read- 
ing the judge's minutes " was allowed to be 
amended at the argument by inserting a refer- 
enee to all the jiapers. 

(.'rrii/ v. ,S7(,/ Co. <;/' C'lii'nld, 1 R. >S: <!.. 4;U. 

2 Objection not taken at trial Amend- 
ing consent rule --'riie Court will not. on the 
aigument of a motion to set aside a verdict, 
eiitert.iin an objection which was not taken at 
the ti'ial where tiie objection might have been 
remedied if taki^n at the trial. 

'i'iie ( 'ouit will permit the d'^fejidanl to amend 
the description in the consent rule after vcrdiit 
against him nixm payment of costs of former 
trial. 

(n'/lis V. ('<i,nph.n, .Tames. IS. 

3. Kllle for Appeal iluic fora].pe;\lallouiMl 
to be ameudcil by insciting in the recital of 
papers u])on wliicii it was gianted, a recital of 
a ci'rtain aliidavit. 

M,-I.„rni V. .I/.-.V.;/. ■-' R. .V ('.. 1). Ki-J. 

4. Rule for Commission amended Anend- 

inent of I'ule for I'ommission to examine ccrtiiin 
spei'ilied witnesses abroad grantcfl to enal)lc 
othei' witnesses to be examined under the com- 
mission. 

S<i/lrr\. Ifii'jlii.^. .lames, ■_'4S. 

5. Kulc nisi for Xew Trial liuU- nis, f,,r 

new trial, granteil by the .Imlge cm I'ircuit, 
allowed to be an)ended by inserting groinids 
brought to the notice of the Court by aliidavit 
on the first day of term. 

McCiillij V. Diibniini, :< H. kC.. 4S1.'. 

6. Rule nisi to deniolisli a bnildinK 

Information ordered to be Hied. I'arties pro- 
eeeded against under the piovisions of section 
fl.").")of the city laws, for infringement of the regu- 
lations relating to buildings, are eiititleil to an 
information us in the case r>f Citii of Jln/lt'iix v. 
Mrljinrii, I Old., tiSO, if they reipiiie it. when, 
if the court declares tiie structure a nuisance, 



the council may order its removal, and it is not 
necessary to re-sort in the first instance to the 
I'olice ( 'ouit, imder section ().")4. 

In this case an order iiini was obtained for the 
demolition of a building, on the gioinid that it 
had not been constructed in accordance with 
the jirovisions in the city charter relating to 
l)uildings. The ))roceC'dings were ordered to he 
amended liy tiling an information as again.st 
Seeton, the owner, onutting Hrookfielil, the 
contractor. 

//( v. City of Halifax and Sfcloii d al., 
.S R. &('.,.%.■). 

4. Rule nisi returnable In " November 

Term " — Amendment allowed subatituting 
"December Term" — On the reading of the 
minutes, it appeared that the nde /(/■-/ for a new 
trial had been made ret mnabU^ in the Xovendier 
Term. Objection having been taken, the Court 
allowed the I'ule to lie auieMd"d by substituting 
"December" for •'Xovendier," and the argu- 
ment iiroceeded. 

Lniiijli y it III. V. Xortlii rii Iiisiirmifi Co., 
.•{ R. <\: C., .")!(). 



IV. A1I.>«KLLAXK()US. 
1. Aliidavit for appeal from Magistrate's 

Court Detect in -Power of County Court 
Judge to amend -The aliidavit f(jr apjieal from 
the .Magistrate's Court wi,s defective, nol being 
heaiied in the cause, and t he words " before irie"' 
being omitted from tlie jurat. The .liidge of the 
('ouuty ('oiirt was satisfied that llie defects 
occurred through inadvertence, and without the 
fault of the ap|iellant. and without any intention 
to evade the re(|uiri'inenls of the statute, but dis- 
missed the ajipeal on the grounil that he had no 
|iowe|- to iiiuend the aliidavit. 
//'/'/, that h(' had such power. 

Woodirorth v. Iiiiii", (i R. i^ <>.. "J!)."!; 
t; C. I-. T., 440. 

'2. Appeal Appellant alloM'ed to lile new 

bond -The boml foi' an appeal, taken under Sec. 
KM) of the ( oiinty Courl ( 'onsolidation Act who 
given merely to pay the costs of tlie appeal, and 
not to resjiond the judgnuMit on ajipeal. so as to 
cover the costs below. ( )n motion to <lismiss the 
appeal the ( 'ourt ordered a new bond to be lileil, 
the a])|iellant to pay the costs of motion. 

Taylor v. liarlii, \i & (i., •J!tt). 
(iC. L. T., 441. 

3. Appeal from refusal of Jud^c of the 

Court to amend his minutes .Apiilicatimi was 
niaile to a .Judge cif the County Co\irt after an 



49 AMENDMENT. 50 

upliiiil hail Ipffii p.ifcctfd, tniinu'iiil hisiniimtes I 7, fosls Of linSUfCrssfillly 0|)|)08ing HIO- 

l>y aildiiig testimony ^''^'^'1 "n tlic trial liut notation for — Wlu'ii a nilc t'ni' an aini'mlmuiit is 

noteil on tlif niiuMti'S. 'I'iit; a)>|)tication was ojjposcd, tin' costs must lie paid liy the unstic- 

n'fusid on tile 1,'iounil that the dudgc had no ccssfiil paity. 

jiowiT to ;uncn<l after an apjjcal had liccn taken M<K(ui v. MrK'i;/. 2 'riiom., 7.'>. 

on the nK'iils. An a|)))eal iVoni this refusal was ' 

tali. 11 undei- ciiapter •->. Section iMt, of the Acts 8. Counter-claini for aiiioiiiit above (he 

of ISSd. ]t appear.'il that theevi.hMicehad lieen jurisdiction of the County Court cannot be 

tenderi'd at tiie trial and rejected as irrelevant, amended after plea objecting to it on that 

//./'/, /"*• -McDonahl, ('. .(.. there could be ground— In an action brought by ])laintitl' in 

no appeal from the rcfu.sal of the judge to ameml the County Court. r)n an awaid, t(j recover the 

his minutes after the appeal had been perfected, amount tiiereof, the defendant counter-claimed, 

Hven if the Court believed the learned judge to besides other items, for the sum of .■?4(HI, being 

have lieen wrong, it would not compel him to the value of a machine wrongfully converted by 

add evidence which he had rejected as irrdc- the plaintiff. I'laintitf rejdicd to the counter- 

viint. claim, among other things, that it was beyond 

l-liixbv, d., iIi'mi ii/lini. the jurisdiction of the Court, which in cases of 

/'w Wcathcrlic. d. -In cases where the tort was limiteil to .'S-J(Mt. 'I'hi' dudgeof the 

judge of tlic County Court refuses to amend his County Court i)ei'mittcil the defendant toameiid 

iuiM\itcs there is no appeal. his counler-claim fiu' damages, so as to bring it 

/''/ Higby, .1. -The al)])llc,ition was wrongly within tlic jut isdiction of the Couit, and gave 

made, the evidence having Ikhmi rcjecicil at juilgirieiit in his favor for f^'liHt ami the other 

the trial while \\h: application was to ha\e it items, in all for .■<-.'±.'.'J;i. less the amount found 

added as evidence, which had lieen r<'cciveil. but to bs due plaintitt'. I'laintitl' appealed, 

not eutercil on the minutes. //'/'/./»/• .lames .1., that the County Court 

/'. ;• Siriilh, .1. No appeal would lii' iiithi^ .ludLfe « as oidy aut liori/cd to givi' t he ilcfcndant 

iiisr. the bcuclit of his counter-claim to the extent of 

/'' /■ 'rhonipsou. .1. An appeal would lie as the amount of ])laiiitilfs <daim. bet that having 

the decision a|)pealed from was ImmiI on a allowed defendant more than that amount, thi' 

matter of law. vi/., the i]ucsticu\ u hel her the ajipeal uni>t be allowed. 

juilge had power to ameml his minutes after /'' '• McDonahl and l!itchic. ,1.1., that, after 

appi'al taken on the merits. the tiling of a ))lea, objecting to the counter- 

li'iiiiisi 1/ v. ('iiiiiiiii;lliiJiii, (1 11. .v. <:., "JO; claim as beyond the jurisdi'-tion of the Court, 

t)('. b. T. , l.'ts. the ( ouuty ( 'ourt .ludgi' hail uo juri^dici juu to 
amend it, by reducing it to an amount within 

4. .tppeal papers Ketlirned to ('(tunly the jurisdiction of the Court, the County Court 

Court for amendment Appeal papers sent .\ct, .">th 1!. s.. r. |(i.'>, s. 'J.'i. only permitting 

back to the .ludgc^ of the County Court in order such aiurndtiicul to be made in the absence of a 

to have the cci'tilieates amended by ruilinliiig plea to t he jurisdiction. 

the rule for appeal among the papers certilied, /liihiy, C/-'ii//l,iini' . ~ H, ,*y. t;.,'J."iO; 

the rule not having bci'ii certitieil by the judge. 7 ( '. b. T.. ."{47. 

I'' r Weatherbe. .1. that the papers were 

aliiady suiiiciently certitieil. ft. neroiidaiil rerusiiiju; to enter on his 

Wiiiilii •'fi r V. iiiihl" . •_* I!, it (b. SS : defence bidi)W I'laintill allowed to amend 

I C. I. 'I'., ."ib7. on a]>jieal New trial ordered -Grounds of 

refusal of eost.s to defendant Suit by guar- 

.■). On an appeal under (he LIrense .*e(, •li'^" of lunatic in his own name -Costs — 

the Supreme Court will allow an amendment In an action by. and in the name of the guardian 

to be made at the trial. of a limatic. for a ilcbt due the lunatic, the de- 

'J'iii//(ir y. .1/a, •</('(//. "J Tiioni., 10. fcndanl did not go into his defeiice, contending 

that the action was wrongly brought, and judg- 

«. liail-pieee I'owerorCouH (o amend by "i^"* '" t'"' Comity Court was given for j.lain- 

.allowing bail to justify -//.A/, that the objec- tiff. On a])peal, the Court allowed plainlilf to 

lion to a bail-piece, that neither of the bail had amend: and defemlants contending that there 

justilied in an amount ih)uble the amount of the "■>« '^ difeiice on the merits, a new trial was 

verdict, could be cured by aniendmei .. which ordered, but without costs, lii.st, because the 

the Court had iiower to grant. ""'"■ trial was an indulgence to defendant, as the 

TniniiiiK v. niiliih.f Hiis l/njhf Co., Court might in such a case give judgment for 

.'{ X. S. I)., 1,'i."). the )daintitV on the amended record; secondly. 



51 AMENDMENT. 52 

liiM'iuisc, liMil till' ilfffinl.uit riitiifil oil his lie- tiTi'il. IK'fiMidMiit unvc nutii'i.' uf iiiDtioii "on 

feiR'c ill llic iniirl ImIiiw. m new tii.il uniiM ii|i|)ciil fi-oiii tin' jiiil;.'iiii'iit "' of the .Iutl,L,'i', " iiml 

piissilily liiiVf liicii KiiiiiTcil iiiiiUTf.-Miiy l)y lii> tliat jiiilj^iiicnt lit' eliti'i'iMl fur tliu ilcfi'iKliilit, (in 

Kiirti -s. 1 hi' iriDuiii! that, u])iiii the thuliums, tlii' juilfiiiiiiit 

S'liuiiii, V. I'artir. 1 l;. \- (;., -.".l-.'. j^ wroiiLT." I'l.iiiitill' ii]) tii thi' close of tlu' i\\^)^\l- 

liirlit dill not move to set Msiih' tlie lilidiliu's, liut 

10. lU'lay ill applying for A judirinent ,,|,t;iinfd leav.- to move to iimciid, so as to leave 

liud I'eiii iiilered ii|, on veidirt: tliei" «a- ji,,. ,.,,urse open to hiiii, and he moved aeeofd- 

liotliiiiL; to show that a icroid had l^em lih.d, j,,j^.^ | )efendant after the af.u'mneiit moved to 

e\ee|itiii,i,' the faet that an ex.'eiition had oe^'ii ,.,|,„.,|,| hisiiolici' so as to eiiahle him to move 

iss.ie.l. More , ha n t!iiil\ years afterward- a to set aside the verdict. T.oth ameiidmeiits were 

rule /'/-; was ootaiiied for leave to tile a record ,.,11,, wed, there lieinjr no siu'iirise to either |)arty, 

therein iiiair ),r<, iitur, in ,,ider that it might he ,„„] neither havingi'oiiii.lained of any siieh thiii^', 

])rodiieed as evidence in a iiendinu .iction ,,r driven any vaUd reason why such amendiiient,s 

li.'lwcii the sons of t!ie oriLfiliiil |.:irtie. --tlie s||,,iild n,,t hfalhiw.d. The ( 'oiirt -et aside l.otli 

title to land l.eiic in .(ic-.li.iii. I'lic rule was vcr.lict aii.l lin.lin^'s at the .same time at which 

<lis,'iiar.t;.'d .>n th.' -r.vnn.l ..f the a|)|ili.'ation they gave jii.lL'nieiit allowing the amendments, 
lieiic' mid.' t.... V.Wv. aii.l hy a party in aiioilier Cr. l./liln,, v. S/,;,iii' i/. 7 I' >\- C, HCJ ; 

suit. 7 c. !.. T.. 14,-.. 

/,'. ;./ V. s„i!'/i. I x. .-<. i).. -jii. 
^, , , ,. , ,. l.». \(tn-Siiit VariaiuT Ju<l!!;<>'s Minutes 

H. Unm-iW Vmiirt for plailltltl -Ono ,oncl„siv,. as to what took ,>laee at trial Re- 

issue foun.l for delendant \ erdmt s.a aside ^.^^^^^^j „f j„a..e to ameiul - I'laitititf siie.l on a 

— D.jfoct not amendable 1 h.' iiirv t..uii.l a , ,' .,., , . ., .| 

■ • iiioii.v i...n.l. I hiM .' uasa \ariiinee between the 

general vei-.liet fur tilaintill': hut. in answer t.) , a , ,' . , , .• .i i i ^- *.; 

*■ ' .h'.darati.iii iiii.l the jiro..!, the ileelaratlon .setting 

(illesti.in put L. th.'iii li\- the ju.li;'.'. t.iiind .ili.' , i .• i j-.- e 

• ' . . - out till- wor.ls .)t till- .•on. nil. Ill iipim port. irnian.'e 

of till' i-aii's raised l.\ th.' iiU a.liiiL's tor the ^ . ■ i .. i i . i ■ i • . i r 

' .if « Inch the lion. 1 was 1. 1 liecoiiie vol. 1 instead ot 

defeii.lan'. //•/./. ih.n thi' L.'.'n.-ral vcr.lict for , . ,■ . ^ r ^i i i i »i i ■ 

th.> .)lilii,'at.>rv l)art .if the li.iii.l. aii.l the ])lain- 
lilaintilV must lie set aside. /'■ /• .lam.'s .!.. i hat .... ' • i -.i i » .. i .i 

I nil was 11. Ill-suite. 1 with a rule to set asi.h> the 

it c.illl.l lie amen. led. ,, , .. ^ i r . i ■ .ii- 

iion-siiit. (hi till' Inst .lav of term plaintilt 

.ihtain.'.l a rule ii)-:i t.ir an amen.lmeiit <it the 

ili'.dar.iti.m. ami that a n.-w trial he graiite.l, 

!•>. (irtMinds of appeal lleiay in moving ,,_,^.^,„^^, „„, .,,„,,„. „„ „,, ,,ial ha.l ref,is..,l to 

-Leave to amend refused I'laintill app..,,h.,l ^,^,.^__^ ^,^^, ,„„„,„,„„.„, ^, the argu.n.M.t. plain- 

from the .leeision ..f the Coiiiilx ( ourt .lii.L'i' .,,. i .. r i .i • ..i .. u\ i ... t 

till niov.'.l to disehai'L'e this rule with leave t.) 

Dee. .'{rd, |.S7!I. .iii t he 'jroiin.l thr.t it was ii iain-t ,. .• • •, . •. i , i i- .i 

move tor another similar t.i it. Imt a. I. ling the 

law an. I evidcii.c. On !).■.■. 14. ISMl. he ap- , i- .i ,. •• -ri .c i . :. 

' w. lids •• .111 rea.liin: th.' miniites. 1 lie alli.lavit 

lilii'.l tor li'av.' t.i amen. I the Lrr.iiiii.ls so as to .. , . .,,.. i » . i .i » .i i i i i 

' . .,t plaintill s .■.iiinsel state.l that theJn.lgehad 

rai^.' the .ju.'st i. Ill ot . I. ■t.'ii. hint s iiL.'ht 1.1 remove .■ . i . • » t.i i ; 

' i-.'tusi.l leax'e t.i insert, as one ot the l'I'iuiii.Is m 

certain articles as lixtur.'s. 'I'he aiii.n.lm.ait , i .. . i i . i i i e i 

th.' rule, th.it the am.li.lm.nl had lieeii retiise.l. 

was refuseil. ,,., . . r . i 

I his was contra. Iii'te.l. 
l./iii/iuir V. I'titilnr. '1 It. ,V- (I.. l,-i,-|. ij I I 1 . ^1 1 .1 11 1 

//./'/. that the rule iiiyi must he dis.-hargc.l, 

as ihc .Iu.Il'.'s i.iiiiiites were e.iii.-hlsive as to 

i;{. .Iiidicial diserction as l.KilldWiiis „,,^„ ,„„,^ ,,,,,,„ ,„ „,„ ,,i,K „ii,l the phiimitr 

The prni.apl.. ..'overnnig th.. .■xercise ot .|mliciai |^,^^, ,^.^ ,,^,|^,^,,,^. ,„„h., ,li.. statute f.ir th.. allcg,,! 

disereti'iii in r.'lalioli to .lUouiiiu' amen.liueiils »• i . . i ,i . .i .i :. .;ir ,...., 

r.tiisal t.i grant a rule; that t hi' jilaint ill wa.s 

is. n.it to permit tli.'m to ln' ma.h' u h.'ii th.' , ■ i , * * ,i ..;.,,„, 

I liroli.'ilv iKiii-siiiteil .111 ac.'.iiint ot the \ arian.'e, 

ett'tMjt will lie t'l suhstitiite a .jiU'sti.iii for trial i.. '. .i ■. ii .i , : i <• ...i, . 

' ami that th.' 11. Ill -sill I ..111 1. 1 li.it lie set asi.le t.ir Hie 

Which is snhstantially .lillcr-'iit fr.iiii that wlii.li ,„,,^,,,,| ,,,,,.„^^^, „,. ,|,„.,,„,,,, ,„^,,,„.t j,„, ,„,„,,„,. 

the pirti.'s cam.' prcpaivd l.i try. ^^_^,i^,_ ^.^.^.,_ ,,,„„„i„j, ,,h,intitfs aee.amt of the 

' _ matter to lie corre.t. 

~ "■ ' ' lldH/iix lliinkiiiii ('('1)1/111111/ v. Warriill <> ci., 

14. Motion to set aside .MidKinent .Vinend- . ^ (■'■ 

ed HO as to unahle to set aside verdict instead 

-Other side allowed after argument to move 1(J, On motion for SfVi Trial 'i'he plain- 
to set aside tindiin^s Tile jury f.iun.l .111 all the lili's pr.ic.' lings will n.it In' ameii.le.l .in an 
issues for defen.lant uli.reu|i.iu llu' diidge gave argument of a rule for a new trial. 
a verdict for tlu' plamtill'. ii.i ju.lgm.'iit was en- KHi r v. Co/i/i, .lames, 'Mi. 



53 AMENDMENT. 54 

II. row ITS (If Court to protect Interest of 20. Supplemental bill allowed, to recover 

tliiiil partie.s— 'I'lio statcim'iil of (.'liiiin priiyiMl money paid under protest to avoid the sale of 

tiiiit <iitiiin nioiH'V nIhiuM I>i' paid to tlu^ rirtou lands, after refusal of injunction to prevent 

r.aiik. liiit the ju(lL.'iiHMit as ciitcriMl autlioii/i'd sale -'riif tiriii (if l!o>,'cis iV: Sou made a deed of 

the iilaiiitilVs to I'liforcc iiayini'iit to tliciiiselves, lauds to a tfustcc for tlic bciiclit of creditois. 

it a|)pvariiii.' tliat an aiiK'iidincnt to tliat ell'tct 'i'iiref or four days afterwards defendants oli- 

liail iM'i-n ]ii'riMitled liy tlie learned jmlge liefori' tinned a jinlf,'nu'nt agiunst the firm, whieii tliey 

wlioiii 1 lie case was tried. reinrclcd to liind lands. 'I'iie next, or tlie day 

///'/, th.it tlie amendment so allowi'd enred followin;,' tiiat , an attailiment issued un<ler the 

tl lijirtion, lint, if it ajipeaied that tlu' inter- Insolvent Act of IST'i. liy virtue of wliieli l)laiu- 

esi of the liank. or of other parties interested ill tilt's I lecame assignees of the tirin, and as such 

the di-p"sition of the fund, reipiired llie inter- assignees took a conveyance of the lands in 

pii-itinii of liie court, tlic court hail tlie (|Ue~tion froni tlie trustee under tiie lirst deed. 

i)owcr to inaUe such order in reference tlu'reto The defendants lieing aiiout to sell the lands 

as the rights of parties or the justice of the case under their judgment, plaiiitiiVs applied to the 

i'c|Mired, without necessitating a new trial, if Court for an injunetion to restrain them from so 

not rc.|uircd liy the facts of the case. doing, hut the injunction was I'efuseil on the 

Kilrli'iii ,1 III. V. Mrl)i,,iiil(l it III., ground that the title to the lands was in )ilain- 

•J(» \. .S. 1!., (S K. A: (I.). \S\\\ tilt's under the eonveyani'es and that defendants 

S C. L. 'I'., .'IMO. aci|uired no lien umler their judgnu'Ut. 

l)cfendants having ag.iin ])ioceeded to sell, 
plaint ill's ]iaid theamomit of the jmlgment under 

IS. KelePence I).V consent XO power of protest and apjilied to a. Judge for leave to tile 

amcndiuent reserved in Error in award -Re- : u sup|)lemental lull praying that defendants ho 

ferenee back for amendment - Wlieii an decreed to return the money so jiaid. 

arhitrator makes a mistake in the heading of an //lA/, on ai)|)eal from ai der allowing the 

award in the Christ iaii name of one of the amendment asked for, 

jiart ics. the award will he referi'ed hack to him for /', ,• Wcathcrhe, .1 . , that theamendment should 

lUiirinhiiciil. although llu' time for his making In- allowed, as the most direct metlioil of testing 

tlie award has e\]iireil, and tiie reference was the sole ipiestion hetween the parties and put- 

hy consent of parties, and although no ])ower ting an eml to litigation. 

iif aiiiciHlincnt ^^as reserved in the rule of refer- l>,r McDonald, C. J,, that the relief prayed 

eii' c. for in the supi)lemental hill was rendered iieces- 

Aiiiii'<<t 1,1. '-. Co„l.-,l III., •_> Old., Ki.'i. ^.„., ,,.^. ^.i,.,.,„„stances arising out of suhse.pient 

i dealings with the suhjeet matter of the original 

suit, and as the suppleiTiental hill a])peared to 

1!». Rule absolute for In first Instance ^ ,„, ,„„,,,ss„rv to plae.. the parties properly before 

Taken after new trial ordered -Motion to re- „,^, ^.„,„,j •„„, ,„.,,,.,. ,,,,,„.,,,,,, ,■,,„„ ^-as rightly 

seind rule discharged I 'has were added hy ' ,„.„l^, 

ilct'ciidanl just as the cause was going to trial in />, ,. Hitchie, .J., the aniendnieiit should he 
ISTli. to which |>laiiititl'tlierefore hail no oiiportn- ,|,.„1^. as clearly in furtherance of the original 
iiily to leply. The veidict \\ as for |)laintitt', and i^ause of action. 

a rule to set it aside was dischaiged in 1S77. An Mcl)onald, d., (//«-»/(//;/. on tlie ground that 
appeal was taken to thi' .Supreme Court of all the (|Uestions, upon which the ai.plication to 



{'aiiaila. the residt of which was that a new 



tile the siipplenienlal stalenient proposed de- 



trrd was granted in Isy.S on the ground of im- ,„.|i,led. had lieeii fully adjudicated 

proper rejection of evidence and misdirection. j/,„_ ,i,at since the payment of the money 

After this decision was given ])laintiir ot.tained .i.efendants had signed a .satisfaction piece and 

an iinler alisoliite in the lirst instaui'C for leave theretiv released their lien. 

teaiiieiiil ills ileclaration and reply and demur ./,,/,„.., f al. v. liiirbotn- il nl.,- \\. ,^-(;., til ; 

to the addeil pUa, on iiaymeiit of costs, if any. , 7 C. I^. 1.. IT-. 

I'l'feiiilint asked for a rule to rescind lliis rule 

"11 the grounds, am<mg others, that the apjilica- 21. Amendment of^rounds of appeal from 

tiiiii was too late, tiiat it slioidd have heen a nde Probate Court Adding new ground on argu- 

'"-' ill the tirst instance, and that the amount of ment -On argument of an appeal from a decree 

ousts should have been settled in the rule. The of the Court of Probate, the Suiu-eme Court w ill 

rule to rescind was refii.sed, and the appeal allow an amendment, adding a new ground of 

fnuii such lefii.sal was disnussed with costs. appeal to those already taken, where the ground 

Sou/Ill r V. \\'iilliti-i , '1 \\. k (!., S(). sought to be added is not merely a formal one ; 



65 



AMERICAN WAR. 



56 



liut will j,'ivo the (ip])ositu si<li! tiiiiu to CDiisider 
wln'thi'i- they will go on with the argiinient. 

Ill re K^tati of liolttoii, '2 'I'limn., .'<. 



AMEKCEMKNT OF COl'MFES. 

1. E\|iciisc8 of militia railed out to (tiicll 

riot — NciihiU' thi' Dominion Ai^ts of lS(i,S, c. 40, 
and of 1S73. c. 4(), nor tth H. S., c. •_'], s. .")4. .>ni- 
])owcr tin- Supronio Court to iiiiu'ri!u n county 
for ihaigi's incurred in calling out th(' active 
inilitiii under the Dominion Act of 1S7."{, c. 4ti. 
to (luell a riot. 

Ill n Ann iy( nil lit ofCdj"' /in /mi Co., 
•_> K. ^V ('.. 41(». 

2. ( Icrii of License Action for illegal 

s?\e of liquor -Conviction ([Uashed for want 
of jurisdiction— Amercement to compen.sate 
clerk refused— 4th R. S., c. 75, sec. 28 — 
of. 5th R. S.. c. 75. .s. 40 I'laintill'. as .tcrk of 
license for otu' of the districts of the County of 
Cundicrlancl, lirougiit an action before two mag- 
istrales to receive a |)cnaity for liie illegal sale of 
intoxicating li(|Uors. Tiie niagistiates i-endered 
ii decision in ])laintitl"sfavoi', wldeii was(|uaslied, 
in the .'^uiireme Comt, where it was lirouglit liy 
I-' rlinrnri, foi' want of jurisdiction, on tiu' 
ground tliat one of tlie magistrates was i-clated 
to tile ))laiMtifr. 'I'iu' Muuii'lpal Council having 
refused to allow plaintill' his costs, apiilication 
was made under 4th Rev. .Slats., c. 7">, st'c. 'J.S. 
to ainiMce the county. 

//'/</, llial t lure lieing no jurisdiction in the 
justices to issui' process or to try the ca\ise, 
]»laintill' had acijuireil no right under the stat- 
utes to 111' conijiensalcd for his outlay. 

.Smitli and 'riiompsun, .I-I., ili-'-" ii'iii;i. 

.hirhsiiii V. 77(1 .\f iiiiiri/iii/ili/ at' ( 'iillllii r/(iiii/, 

ti K. .V (i., lilt : 
(iC. L. T.,44-J. 



AMERKAV WAK. 
Declaration «»r war by the Initcd Stales 

Effect of .seizure of vessel for infraction of cuh 
toins law before declaration — Cannot after be 
detained as enemy's property 'I'he declaration 
of war by the United .States did not place the 
two countries in a eom|)h^te state fif war till the 
ordei' for rejirisals l)y the Hritisli government. 
Onler for reprisals, 1.1th October, 18l'2. An 
American vessel, together with her cargo, was 



seized in the ])ort of llalif.ix by the colknlor of 
customs upon tiie 7th .hiiie, lSl'2, for an impor- 
tation into Xova Scotia eonti'ary to law. On 
the I'dtli .lime, ISl'J, the government of the 
United States declared war against (ireat 
Britain. The owners of the ship and cargo 
claimed their lespective ))ropcrlies. h w.is 
contended at the hearing, which took place on 
the .'?lst July, l.Sl'i, that the claimants, who 
were American citizens, were, by the declara 
tion of war, become eiieinies, and the ship and 
cargo enemy's piojierty ; that, therefore, the 
jjarties were discpialitied from appearing in 
a Uritish court of justice, and that the col- 
lector was entitled to retain the sliij) and cargo, 
of which he had the haiin liii possession, liy the 
title of occupancy, as belonging to an alien 
enemy. 

II' III. that until the King, either by express 
declaration, or by some otln^r manifestation of 
his hostile intentions, has ])laced his doniiniou 
in a state of warfare, the state of mutual ami 
reciprocal hostilities between any country and 
the liritisli dominions cannot legally com- 
nu'nce. When such manifestation is made. ,iud 
not before, the complete legal state of hostilit' • 
exists with all its conseipiences, and since ; h 
moment a man becomes an enemy all his ante- 
cedent rights ,n-e annihilated, it must of c-ourse 
operate upon all prece(liiig transactions. 

The subjects of Anu'rica cannot now (."ilst 
.luly. ISl'Ji be eonsidereil as alien enemies to 
every pur)icisc of law ; it cannot be said tiial 
I hey ari' disi|ualilied from appear-ingin a liritisli 
<'iiiul of justice, oi- that their propci'ty is liahle 
to be treated as ci'eniy's proj)erty without a 
sanction froui the Uritish goveriLinent. Tiny 
may possibly lie declareil to be enemies in 
fului'e. but their ))resent situation isambiguons. 
If the whole of this case turned upon this pniiit 
the ciaii'l would direct that it shmdd staml over 
till His Miijesty's instructions hail been received 
from Kngland. 

The ship entered the port and wa.s seized 
before the cleilaration of Wiir by the Uldted 
.States, the siibseiinent detention was involun- 
tary on the part of the owneis. Therefore, if 
the seizure ])rove to have been made without 
reason the j)arties would be entitled to have 
their property restored in the same state in 
which it was at tin' time of seizure. If the 
seizure was imp, opcrly maile the owners by such 
tortious po.ssession cannot be injured in their 
riglits. 

An alien enemy can appear toeliim property, 
where the ])roperty, as in this case, is not liahle 
as enemy's property. 

Th, Dart, Stewart, .'lOl. 



57 



APPEAL. 



08 



ANFMAIi. 
I. LiabilKy or owner For injuries done bj 

— Scienter In :m ai'timi liiim;,'lii in rcrdver 
(laiiia^'es f<ir injuries dciue liy defemlaiit's dn^' in 
liitiiig anil wiiriying plnint ill's sluf]) the only 
eviileiiee Id prove «•/(///</• was of ailiiiisNions said 
to JKiM' lieen made liy clefendaiit some years pre- 
viously, and thai on one (jeeasioii foui' or five 
years previously defendant's do;,' had l.'t'en sctii 
Willi another doi,' chasinj; or followiny sheep. 

'I'ln' learned ( '■mnty ( 'on rt .ludge lut'ore u hom 
the ia»e was liinl having dismissed the aetion 
(in the gi'oHMii thai tlu're was not siillieieiu ivi- 
ilenee of klumludge on the part of the defendant. 

Il'lil. thai there was no ground for disturliing 
his liniling. 

M'K.,r.;, v. Ilhi4:iiinr< , 7 K. kr,., L'd.'i ; 
7 C. L. T., •_'7n. 

'.'. I.iabilit) of owner Tor injiirit'x by 

vicious animiil - Scienter — I . an action to 
reeovei- damages for injuries iiillicted upon a 
mare o\\ ned hy ]»laiiitiir, liy defendant's hull, 
which resulleil in her death, the evidence toeon- 
neet the liull with the injuries inflicted u|)on 
tlie mare was that he was running at large in 
tile neightiorhood, and was of a vicious di|)osi- 
tinn.and shortly after the mare was injured had 
IiIiiihI on one (if his horns. Theie was al.so evi- 
dence that the defendant had prior knowledge 
of the character of the hull. 

The Judge of the County Court hefore whom 
the ease was tried having given judgment for 
plaiiilitl' for llie amount claimed the Court re- 
fu.scd to distnrli the linding. 
Aniol'lv. Dl<iij<luii, •_'(» X. ,S. R., (8 R. & (i.), :W,i ; 

8C. L. T., 448. , 



I. 

11. 

HI. 

IV. 

V. 

VI. 

Vll. 

VIII. 

IX. 

X. 



Al'PE.41- 

I ROM ASSES.SMKNT, .58. 

FROM CITY COURT, HALIFAX, 58. 

F liO.M C0MMI8SI0XKR OF MINES, 

-.0. 

FROM COMMLSSIOXKRS IN INDI- 
OKNT DERTOR MATTERS, 59. 

FROM COUNTY COURT, 60, 

FROM EQUITY COURT, 70. 

FROM JUSTICES OF THE PEACE, 

FROM PROBATE COURT, 80. 

TO THE PRIVY COUNCIL, 81. 

TO THE SUPREME COURT OF 
CANADA, 81. 



XI. MI.SCELLANEOUS CASES, 91. 



1. FRdM AS.SKSSMENT. 
1. Apiu'iil from where reiallvel) too high 

— Appeal from other asses.sinents - Rule lo 
((Hash an assessment of defendant's properly 
diseliarged with costs where defendant appealeil 
against his assessment iind showed that il was 
excessive relatively to certain others named. 
The proper remedy in such case, under tlu^ 
liy-laws of the town of Windsor, is to ap|)eal 
against the other assessments as too low. 

ir/;/;///;.- v. '/'(urii (if W'titdsur, ,'{ R. &. (i., '27>W. 



2. A|)peal to County Court from Munici- 

cipal Council Power of County Court on 
appeal as to di He rent items of assessment than 
those appealed from— By the Revised .Statutes 
(4th ."series, 1.S74) an appeal from an assessment 
was given to the Court of .Sessions. IulS7t> it 
was enacted that any ])arty aggi ieved hy the 
decision of the .Sessions coidd a]i|)eal to the 
County or Sui)reme Court. In l,S7!) the power.s 
and authorities of the .Sessions were "given to 
the Municipal (ouneils." 

Ill III. that the power given to the Council to 
hear a|)peals from the assessment under this 
statute was sulijeot to the condition that an 
appeal should li<^ to the County Court in the 
same manner as formerly from a decision of the 
Sessions. The appellant appealed to the County 
Court against an assessment of .S.'")(KM(, on "ships 
in other districts " which had lieeii built hut not 
registered in the County in which they were 
assessed and the County Court Judge on the 
authority of Kinny v. City of Halifax, decided 
that they were not liable, but as it was shown 
on the trial of the appeal that the appellant had 
a ship on the stocks partially built, he amended 
the assessment to cover half the value of the 
said ship. 

Held, that the judge wa. correct in his judg- 
ment as to the non-liability for shipping out of 
the county but that he could not on the trial of 
that apj)eal c(msider a diH'erent item of assess- 
ment, not submitted to the Court at all, as to 
the ship on the stocks, and the appeal must 
therefore be allowed. 

In re Asnesmnent of James Crowe, 3 R. ifc G., 301 ; 

2C. L. T.,607. 



II. FROM CITY COURT, HALIFAX. 

1. Default in City €ourt— Appeal— Cer- 
tiorari of summary cause — Supreme Court 
powerless — Defendant, in a cause in the City 
Court, filed and served his grounds of defence, 
unsigned. The magistrate, after plaintiil' had 



69 



APPEAL. 



60 



been sworn, dccidi'il tliiit tlio gnmncls wcif in- 
siitliciciit, and cliicincd jiidj;niiMit liy dffiiiilt In 
1)0 I'ntcrcd, IVftndiint liriiiij;lit the CiUise up 
by writ of rv rtiariiri. 

//</(/, tliat an a])|)cal lay fi'oni the jndmnont 
below, and, furtlni-, that notliinj; lould be done 
with the eause liniler the (•< /7/o;'f()'/ as the niattci- 
was ii suiniuiiry one, and the sunnnary jmisdie- 
tion of the Sii|)renie Court liad lieen taken away. 
J:'a>i>try. ('(ir-i/, I K. it (1., 111. 

III.-^KRO.M COMMISSIONKR OF .MIXK.S. 

1. Commissioner of Mines - Affidavit for 

appeal- W. M. made application for a lease of 
certain gold mining areas, which was opposed, 
and a contestation took place before the Com- 
missioner of Mines as to the rights of the con- 
tending apjilicants. Pending the contest and 
before the decision, W. II. died. Tiie decision 
being against the deceased, his widow, who was 
a))pointed soli,' executrix, gave notice under the 
statute of her intention to ajijieal, and made an 
afiidavit end)odying the requiiemeuts of the | 
statute, and tiled the bond recpiireil. The 
affidavit was made in Toronto before a Notary 
Public for the pi'ovince of C)ntario. 

Ill III, tiiat the atiidavit was not made in 
accoi'dance with the re(|uirements of the statute, I 
and that the appeal nmst lie set aside for irregu- 
larity, I 

Construction of r)th R. 8., c. 107, s. .">. 

lit llnlliii, •_'() X. .S. R., (s R. & <;.), ];)(( ; 
.SC. L. T., ;i7(). 

2. Appeal from Commissioner of Mines 

— Im])roper rejection of evidence- ( )ne of sev- 
eral a])plicants for a mining area pi'oduced evi- 
dence at the hearing before the Connnissiouer of 
Mines to prove that he was tiu' lii'st aj)]ilicant. 
In the course of the investigation a witness 
against the appellant was exauuncd, and while \ 
he was lieing cross-examined on a suliject of im- 
port.mce to the in(piiry, his cros:-.-examination , 
was stoj)|ied by the Conuuissioner. 

Ill Id., that this was sutlieient ground on which 
to sustain the appeal, and that thea|)pellant was 
a party aggrieved ; the ease ditiering from the 
case, Iv n Sjh llmtui, in that tlu're tlic apjilica- 
tions were simultaneous. 

//( re A/i/i'<tl SI. i,hiii Sin,/, :>, R. Si (i., 397. 



IV. —FROM COMMISSIONERS IN IXDI- 
(iHNT DHIvroR MATTKRS. 

1. Imlij^cnt Deotor process -Appeal from 

decision of Commissiouers where no County 



Court Judge in the County lies to tiie Ses- 
sions -An ajipeal from a decision of Connuis- 
sioners refusing to discharge an indigent delator 
was taken to tin; Court of .Sessions, on I lie 
ground that there was !no County I'ourt Judge 
in the County where the debtor was I'onlined. 
The justices having refused to hear the appi'id, 
on the ground that they had no jmisdirtion, 
anil an order having been ap|)lied for to compel 
them to do so. 

Ill III. that the aiijicd was properly taken. 

Construction of cliaptei' llS, ."ilh R. .si., s. •_'7. 
Armiiroiiii v. 'I'ril'iiii/, 7 H. i*^ <■•, !!•. 

'2. Indigent ])el)t(»r Appeal from Com- 
missioners—Appeal Court not properly or- 
ganized — A debtf)r was imjirisoned on process 
issued out of the County ( ourt. and was brought 
before ( 'omniissioni'i's. •.» ho ordered his discharge. 
An ap))eal was taken to a Couit organized under 
the County Court Act of ISSU, chajitei- L', section 
111, but the Older, though made by the Clerk of 
the County Court, was signed by him as I'lo- 
thonotaiy. Tlie j)roeeediugs were brought up 
by cf-rliorari iuu\ a ride taken to c|uash the '•(*•- 
h'orar!, on the ground, among othei's. that, as 
the spi^'ial Coin-t had not been regulai'ly organ- 
ized, it had no jurisdiction, and c ;7/i//y(;-/ would 
not lie. 

Ill III, that the n r/iomri must be ipiashed. 

Fliii'lur V. Chi^lii.liii. W I!. & (;., I ; 
•_'C. L. T.. (iuo. 

Rut si-e CERTIORARI. 

3. Indigent Debtor Appeal from Com- 
missioners —Appeal Court Defeudaut was im- 
pi'i.soned in the County Jail under ])iocess issued 
out of the County Court, ami detained under an 
order of Commissioners for tlie relief of Insolvent 
|)elitors. An ap])lieation was made to the .'Su- 
preme Court /// liaiiro for a summons to have 
the jirisoner brought U]) by way of appeal. 

Ill III, that tiie Court iiad no jui'isdiction to 

hear the cause, not having uu't wiliiin iru iLiys 

from thedate of theorder from whii'h tlie a]ipeal 

was sought. 

Broolcjiilil v. Sijmi's, 'A R.& (;., 17 ; 

L'C. L. T., tiOl. 

v.— FROM COUN'l'V COURT. 
1. Amount under $40 — Appealable 

amount — How made up — l,>itairi, whether 
under the County Court Amemlment Act <jf 
1877, c. (), s. '2.'), giving an appeal where tiu' 
judgment is over .'?4(), it is sutlieient tiiat there 
should be a judgment for costs to that amount. 

Aiiiiaud V. Tilt Mtrchaul'.i Bank, 3 K. &C., 329. 



61 APPEAL. 02 

•2. Power of .linlge of Coiiiily Coiirl (o ii|>"m ih.' .•vid.iuc >.„ ^nt up. th.' |.l;.iiiiiir wi.s 

grant appeal— Acts I.STM, c,'. !), ». U. intitliil tn luiovii' iigain.-t llic ilflVnd.mt. 

TIh' (iiiiMly (unit .liidm' '.''''"'''il i"i iil'pi'il H'l(/. tliiit im ca.-c liail lifiii .•-liUccl t'ni' tlii' 

iiikKt sfctimi 14 nf iliii|itcr il. Arts of |n7>>. in a npiijidii i,t llic Coiiil. 

fiuisi' migiiially Kinii^'lit in tiie ina;.'istialu's li' linnii \. //i niiiiiin. •2U S. S. W., 

court. 'I'll!' apiical was taken in .May, ISTM. is I!. ^;(;.l, (is. 

.siilisc(|inntly to tlic sl.ilulc lit that year, c'nali- 

lin« the CnMlity (■.mrt .lutlj.'.'> to ^'lant .appeals |i. Appeal illlOWCd, l)llt J II (I K III C lit for 

in all cases. plaintill, ii))pellaut. tor his claiiii lelu.-ied 

J/i/il, tiiat the .liiilge hail jinwer to (.'lanl the i n all aet ion on tile lonMiinn loiiiiis. tlie ('lainty 

njiiieal. < imrt jnilj.i'e noiisiiiteil the plaiiilill'oii the groiiml 

'riiiiiiKiA V. /ill//, ■_' I!. \ (;., l:!.i. (||;,( items for iiitoxiealin^' lJi|Uors in i|iiaiililies 

le>s tiaiii one jialjon Were III plaintill s claim, 

.. „ , . , .,..,., 4.1 tlioiiL'h not inelmleil in the aeeount Mieil for. 

.'{. Kiilo iiiiisl show that it Is granted ill ,,, ., . , , , ,, , i in 

..,-,, 7,1 riaintill. on the apiieal. claiiiH'il that lie slioiilil 

diticretion ot Jiiat;e In a iau>e umler >\i) tin- ' •. . 

,, , , , ... , have iiiilt.'ineiil, liavinL' proved Ins |)ait:cnlars at 

( oiintv ( oiiit Jnik'ti giiiiiteil a iiile lor aiipeul , . , , , ,. <• , ■ i . i 

, •' ,, r ,. , 1 the trial, lint the (ouit refn.seil It. anil t.'raiite(l 

in the followinL' torin : "(In iieariiiL' read, etc , , ,, ■ i i 

, , , , . ,! , , siiiiplv I he Usual oriler allow 111'' the alipeal. 

anil on nicitlon, 1 ilo onler that .A. I., have leave ' ■ ,, ,, ' .. i, > , . o..- 

, . , , , ., Mcdoiraii V. Uiilii'ii, A H. A: (i., 2()(). 

to appe.'il, and an ajipeal is liereliy ^'laiiteil iroiii 

mv decision, etc., to the ."supreine Conrt on the 

following grounds. ■■ Three .roun.ls were..., a,e,l, '• ««"<> Misrcdtal Of JlUlgllU'llt n - 

^, ,. , , . . , , ,., .1 . I'l.iinlili sued in the rounl\- (oiiit mi a Imil- 

tlie Inst lieing in general terms, the other two 

. .. ,. ..' ., ^ .1 1 • »• r 1 hond 'd\eli hv the three det'eiirlalits, who 

pointing distinctlv to the olijections relied on. "^ • 

,,,,,,. 1 ' ^. II *■ r '1 o t iv-w pleaded and liroved that the execution had 

lliln, that under .^ec. II. ot I hap. it, ot 1S,,S, ' ' . ,. , . 

,, 1 1 • ■ I _.o> 1 II lieen returned hefore the exiiiratimi of the sixty 

the ap])eal, lieliig m a cause under >W, should ■ ■' 

, -^ c ^\ ^ ■.. » 1 ■ ti 1- ilav>. within which it was made retuinaole. 

show on Its face that it was granted in the dis- 

f ., , , 1 . t „i;, , 'I'lie Connl V Court .ludgi! held that this was a 

cretioii ot the .liiilge and not as an ordinarv ■ '^ 

, 1 .1 . .1 if 1 . ,i" mere irregularitv. not toiudiiiig the merits, and 

ap])eal, and that the rule tor ajipeal was iiisiilii- r- ; • n 

. , could not lie taken adv.intage of hv lilea, and 
elellt. 1 "i ■ 1 

Mrh'iraii V. Oiitniiiu .S II. i\: (1., •_>(»!). he gave judgment against the three deteiidaiits. 

l)efilldalils ajipealeil. and ill tlleapjieal Imild 
recited the judgliieiit as a judgment against two 

4. Amount under ^40 (ase insuflleient- of the defendants. 

ly stated-Sent back for amendment In a //, /r/. tliai the ajipeal was irregular, and that 

case a|)pealed from the County Court, where h iiintioii was properly made in this Court inset 

the anioniit in dispute was less than ••-•4(t, no jt ;i.sid,., tiiniigh the papers had heeii certihed 

case was stated for the opinion of the Court, as .,,„i ,|„. l,,,,,,! aiiiuoved hy the County Court 

re(|uireil liy Tttli It. .'^., c. ID.'), s. !)(i. Itajipeared .Judge. 

that an application was made to the .Judge Wdt.-iini v, ILmil. W P«. & (■., I.'il, 

lielow to amend the statement of tiie case, Init 

that he refused to do .so, l.eing of opinion that ' j^^ ,j^,„„ „„ .,|,j,^..j, __ ,„suftlcient XCW 

the ease was .sufficient a. It st I. ,^^^^^j ^^^^^^^^^ ^^ ,^^ tiled - The hoiid fur an 

IhhL III)- Smith and Ritchii', .1.1., that the i . i , i . ,; . loo t ,\ i- ,. 

' ' , ajipeal taUeii under section KKl of the I ouiity 

ca.se .should he sent hack, in order that a proijer ,. . ,. r i .■ , \ . ... ,;, i,. , 

,' ' t ourt ( oiisolidatioii Act, was given merely to 

ease iniL'ht he made ui), to lie |>reseiited for the ,, ... i i . , i .i 

'^ . 1'''^' 'he costs ot ajijieal, and not to resjioiid the 

oonsideration of the Court. . ", . , . . i i 

luduinent on ajijieal, s<i as to co\ er costs lielow. 

/'<;■ McDonald, C. . I., that the case not lieiiii' , '' .. , i- , : .i , , i .i /• ..^ 

■^ (In motion to dismiss the apjieal the t ourt 

.stated as reouired hy the .•statute, the appeal , , , i . i ,i i ,i . n . . . 

' •' 'II ordered a new lioiid to he filed, the alijiellanl to 

was defective and incomplete, and should he set ., . i- »; 

I ' jiay the costs ot motion. 

<isiile with costs. ■,, , ,, ■ ,. t> c ,. .i..,. 

. , luylvr V. darui, (i J-!, iv d., i;!l() ; 

Ihrtrain v. Hi fri/iiaii, 7 K. v*c (i., '2+() ; ,. ,. i -e i,, 

7 C. L. T., .'US. I >....,. 

I 9. Canada Temperance Act — t'onvietion 

5. Amonnt under 840 Insuflleient state- under—Appeal to County Court- No appeal 
ment — In a case where the amount in dispute thence to Supreme Court — Costs — A convic- 
was less than .§40 the Judge helow certitieil to ' tion by a stii)cniliaiy magistrate was removed 
the Court the jiajiers and the eviilence t.ikeii by apjieal to the County Court, and there 
before him and submitted the question whether , ipiashed. 



03 



AlM'KAf. 



64 



//'/(/, (li.il iin ii|i|i(Ml liiy III 111" Sn|iriiiic ^ ( 'niiit ill a c.iiiM' oii^'in.ilili;,' in I he .Mii;,'islialc'.s. 
C'cilirt. iiM liiillc was expressly j.'iveli liV tlu' Aet ! ( 'oiirl, 

fleiitili;,' I lie .illell.iiiiiil ^'ivili),' tile a|i|ieal to the j Coo/mi v. . I/. ■/,,,(„, ;j U. .v ('., 17!). 

('(iuiit\ ( 'mil I, allhiiii,i;li lln' Acts ciialllij^ ami I 

(.iL'ain/iii.; I lie (niiiily Cuiiils ,.'ave a j^'eiwial |4, ('ailSCS a|)|H'ilI«'(l frOIII tlu> Majjls- 
U|)I.eal t..tlie.Sii|HVMieC..lirl. t rale's ,■.,„, i t,, the('Munl,\ Cmn I eamiolhe. 

Cdsts refused |Mre>|..,ii,lelil. as he sIh.uM have l,|,„|j_,||, |,_^, ,,|,,„,,| ,,, ,|,j^ {,',„,■>, 
llii.ve.l I.. (|Mash the ,i|.lieal al an earlier Ma,i.'e. ^ ( ■,,.-hrii,i v. I.i,r,;„ii, :{ I!. \- (' , \m 

.\/,'/).,„(i/<l v. M^Cinsh, :. I!. \- C, i. 



10. Canada T<'m|»«'ran«'t' Art, IHIS >'o ap- 

jieal IriJiii the I'diiiity C'lniit to the Suiireiiie 
Court miller till' provisions of \i. appeal lies 
til the Siipi line ( iiiirt fiinii tlii' ( ouiity ( 'mirl in 
t'iiscs iii'isiiii.' miller i he prnvisiims of the Caiiada 
TeMiperaliee Aet, \S~S. ami no sueii appeal can 
lie taken miller the lueal art prnviiliiij,' generally 
fur appeals I'rnni tliet'ipiinly I'omt. 

Mrl),,,,,,/./ V. .l/.r(( /.«•/(,:. R.\ C. j.fi.lloweil. 

V""" V. IIV.//;. 7 it. iV: •:.. -\ ; 

7 ('. !.. ■!'., .Vi. 

11. Canada Tomperanco Acl, isiS, s. 80 

— Suit tor penalty t^iiesitioii of fai't hefeii 
(liiiit Wiissiieil ill the Comity ( oiiit for the pen- 
alty of !:<RK) muler seetion SU. Ciinailii 'reiiipei- 
nnce Act. 187S, (Aets IS7.S, i'ai>. l(i. see. SO) iiml 
was iliseliargeil for want of eviileiiee that the 
lic|Uor Was solil hy him iiersonally or with his 
authority. On appeal the judgnient was sus- 
tained, tlioii;.'li the Court were stioiif.'ly of opinion 
tlmt, on the evideiiee, defendant should have 

It.l'll I'lll) V'll 't l>l I 



been eolivieted 



;{.•{.-> i 



'J'(ii//(/r V. (I'ltriii, tj H. & (i., 

tiC. L. T.,4.V>. 



1'2. Causes originating in Magistrate's 

Court— Appeal to the County Court -Defects 
in the .affidavit for .appeal — Power of the 
County Court Judge to amend — 'I'hc iitKdavit 
for ajipeal to the Magistrate's Court was defoe- 
tive, not hoing headed in the cause, and the 
words " before me" being omitted fron> the jurat. 
The ,1 udgo of the County Court was satisfied 
that the defects oecnrred through inadvertence 
and without the fault of the appellant and with- 
out any intention to evade the requirements of 
the Statute, but dismissed the appeal on the 
ground that he had no power to amend the affi- 
davit. 

Ilild, that he had such power. 

H'oodworlh v. Iniiiti, 6 R. & G., '295; 
GC. L. T., 440. 

13. Cause originating in Magistrate's 

Courts — No appeal from County Court — The 
Court will not hear an appeal from the County 



l.». (aikst's orltflnatln}; in MaKlMrate's 

Court Apiieal where no jiirisdietion helow 
Deposit of travelling fees in Magistrate's 
Court where siinimons i.ssued to be served out 
ofCounty ."nh U.S., e. Me.', s. •_', enacts that in 
iill ea-es where the defendant does not reside in 
theeounly where the smiiinons is is-ued, it shall 
lie inemiilieiit on the .Inst ice, hefore i.-siiing the 
writ, to reipiire the )ilaiiilill' to deposit with 
him a .-mii iipial to ten cent.-, per mile each 
way of llie ilistaiire between the rc-ideliee of 
the ilefeliilant and the plaee o| trial, "and ill 
ease such deposit shall not be actually paid in 
as aforesaid, and indorsed on bot h original and 
copy, the said writ and service shall he void." 

I'lainlill issued a smiimons in the magistrate's 
court against defeiidaiit to recover an ainount 
elaiined to be due for goods sold and delivered, 
but omitted to de|)osit, or to have indorsed on 
the original and copy of the writ a siiliicieiit 
amount to eo\ er defendant's tiavcUing expenses, 
as leipiired by the slalute. 

The magistrates admitted that the amount 
was iiisullicieiit, but permitted the ]ilaiiititl' ti> 
cure? the delicie.icy by depositing a further 
amount, and proceeded with the trial. De- 
fendant made no defence, and judgment was 
given for the [ilaintitf. Defendant ajipealed, 
and in the County Court application was made 
on affidavit for judgment in his favor on the 
ground stated. The ajiplication having been 
refused the case was tried on its merits, and 
judgment given for plaintiti'. 

This judgment was not appealed from, but a 
case was stated by the learned . Judge for the 
opinion of the Court, on the interlocutory appli- 
cation, as to the power of the magistrates to 
permit the defect in the summons to be cured at 
the trial. 

Jlilil, pi r Weatlierbe, J., that the question of 
the insufficiency of the amount did not come 
properly before the County Court Judge on the 
appeal, but should have ])ecn brought up by 
ceitiurari while the case was before the magis- 
trates. 

Per Smith, J., that defendant should have 
had judgment before the magistrates. 

Per McDonald, C. J., that the summons and 
all the jiroceedinga before the magistrates were 



n:. APPEAL. ()() 

Vdjil fol' iic>ii-<'i>iii]iliMiu't' with the statiiti', and '20. COSIn Oil Iippoal AllieiKlliK'Ilt >'(>W 

the iilipcal fi'iiiu till' vdiil ])i'()('i-i.'itiii^s I'luiM iidt triiil In <ii> ui'tion l>y iunl in tin' name of 

give tilt' County Coui't .lurlgc jurisiliction to the jruaidiaii of u lunatii', fof a ililit dui' thu 

aiijinliciitt' on tlin ((ul)j«.'it matter of the eaii.-i'. lunatie, the ilefendant did not go into iiis de- 

Mnjlii/I V. Miltitchii . 7 I!. .1 <i., --S : feme, eontendint.' tiiat tlie aetion was wrongly 

',('. I,. 'I'. . ;(■_'•_'. lironglit, iind MidgiiMiil in the County Court 

was givin for plaiiitilV. On appeal, the Court 

^ .,., A I I »• • .. allnucd plaintilt'to amend ; and, defendants eon- 

1«. CorliHcuIr Apiical paiicrs Notrcrii- . , , , ,, ., 

, , , ,, , tc ndiML; that there w.is a detenee on the merits, 

tied Appellant moved at one term to transmit i , ■ , 

, ,, ,. 1, .. , a new trial was ordercvl, hut without eosts, 

ihe papers to the ( olinlv ( oiirt at roll llood to . , , . , , , 

... , ,. , ' .. , ,,,, Inst, heeaiise the new trial was an indlilgeliee to 

he eeitilied, whuh was rehi.sed. I he motion , ,, , , . . , • , 

, , , , , ileteiidaiits, as tin) ( oiirt might 111 sueli a easo 

was renewed at the next term under the statute ... ,.,,.,. , , , 

. , ,,„, , • 1 1 , 1 1 • ,1 ;-'i^e linlg'ineiit tor the plaintill on the amended 

ot ISSd. which had liieii passed sllire Ihe last , ,, , , , ■ i .- i 

„„ f 1 I . II leeord : sfeoiiilly. oeeaiise, hail the deielnlalit 

lirin. Ihe eoiirt retilsi'd a rule. Appellant , . ,' ■ . , , 

, ,. . , , , , entered on his detenee in the ( omi lieloW, a new 

then moved to dismiss the appe.il. and a rule , ., , , , , , 

, ,, . . , I , trial would possiMv have I eeli rehdered uiillu- 

was granted dismis>iiiL; the appe.il with costs to ' • 

, . ' , eessarv liV Ins smvos. 

llir time the motion was made. i 'i ' ■ 

, ,. , .„ . ... S,,n,iiii, V. /'m,/. ,-, I I!. ^V •;., •-".l-_> X- »!».->. 

I ( . I.. I ., Iili.t, 

it. Crimliial casivs Lhiiior License .\et - 

17. CeHilieaU' .\ppeal piipers Sent baek No appeal (rem County Cou.-t Delendam, the 

to have oertilieate ameiuled .\ppeal pap,i> I'-l'ler ot a ■• sho|i liren.>e, was eonvieted hetore 

sent haek to the .lu.lge of the Count V Court in 'l"'-^'i|'<'"li'"y .Magistrate for the City of llali- 

ordertohave the eertilieate amended "l,v inelud- ''''^^ ""> I"' informal ion of .1. for having uiilaw- 

iiiL' the rule for appeal amon- the papers ...rti. fi'H.VaUowed li.|Uor sold hy him to 1„. .•onsumed 

lied, the rule not having Keen rertitied Ky the '" ""■ 1"<''"'-''^- iu vinl.Uion of llu' provisioi;,* 

liii|,,i. ' of till' l.iipior Li'i'iisi' .\(i of Issii. 

/V Weatherhe. d.. that tlu' papers Were al- '" ""' *'"""'>' ^'"'"l '"'' '''""'^f ^'"- ' '"^' 

ready sulliei..ntly eertilied. • '■''•''"" "■•"* -l"''-^li"'l ^^itl' eosts on the ground 

11" r//i v/, • V I'llilii •' r V (' ss • '''■'' ''"' i"'"i''ui'r. not having renouneed his 

I (. I .|. -..- I'laini to the line liefore lieiug swdiii as a w itiiess 

in the Court lielow. was incompetent as a wit- 

ncs.s and there was no finiher evidi'in'e to sup- 

IS. Costs .ippeal abanclOOed Kespond- I'orl ihe c.mviction. .\ further ajipeal heing 

ent entitled to what cost.s Appeal p.ipcis taken to the .Supreme Com t. 

w.re sent hack to the .ludge of the County //</'/. that the matter lieilig one of a eriminal 

Court to he inieiided. ami were amended, after nature there was no appeal from the County 

which the apiellaul aljandoiicd his appeal. Court to the .Supreme Cuurt. 

JIi/il. that till' respondent was entitled to his .lUtt. that the provisions of ."itli R. S., e. 10,'}, 

eii.-ls up to the day on which notice was given excluding I he informer in certain eases from giv- 

of the aliandonmeiit of the appeal. iiig evii'.eiice are not applicalile to suits lirought 

Mrl.Kiil V. Diiiihiji. •_' i:. A- (;., 4!l.'<. hefore the Stipendiary Magistrate of the City of 

Halifax, hut if they can lie held to ap|ily the 

duiL'e of the ( 'oiint V Court on trying theca.se 

19. Costs- SCCIirlly for- Discretion -.\p. ,/, ,;„,„ ,|,„„i,l havj leeeived the evhlenee of the 

peal -An appeal was taken from an order of a j,,,-,,.,,,,.,., |„, i,,,.;,,^, renounced all claim to the 

( ounty Court Judge discharging an order /,/../ for j,,,,,,,,,^. ,„,,■ „.^, j,,.;,,^, ^„..„.„ 

seeuritv tor costs, where it was shown that the ,, " i .i .i i f .i 

. ■ ' 1...1.. i.iw (,y/(f/, ,v . whether there was an appeal troiii the 

plaiiililh although resilient out of the rrovince, v.- r \i ■ . . . .i <• . c 

' Mi|)endiai\ .Magistrate to the t omit V I ourt. 

was a native and a Ihitish suhiect and had I'on- ,. " ; " i .i .i ■ ■ c -i.u 

■' V"" '' ' "'■"''". "hetlier the provisions of jith 

Mderahle real and personal estate within the ,j ,, ^. ,„;,_ ,„.^, ,,,,,,1,^,,,,^, ,„ ,,,,„,.cutioius 

jurisdiction, and there was .some ..videi.ce that ,„„,,.,, ,,,^, ^^,, „,- ,^^,. 

she intended to return. ,, ,.,, , ,,,,v- ^. ,, ,,, t> r ,, ; ,-,. 

,, V"" " V. sill jiiard, ■_'() N. Js. M., (S K. iV (■.), 4i(i ; 

//'/'/, that the granting or refusal of the stay ,, ,. r -j- „-.> 

of proceedings hy the County Coui't Judge was 

ii matter of discretion and that the discretion 22. Criminal CasCS — Xo appeal frOHl 

had heeii rightly exercised hy the .liidge. County Court -Defendant, a driver in the em- 

Ciinl V. ITh/n, 4 R. iS: (i., ».l phiy of the Halifax Street Railway Co., was 
.3 



67 



APPEAL. 



G8 



convicted liy t\\v Stipi'iuliary MagUHtratc fur the 
City iif Hiiiifiix lit" a vi'ilatiiiii nf llu' ('lia))lri cif 
tlif lU'visf.l Statutes, "Of (MUiUfs AKaiii^l 
lieligioii." |py luasioiiof having pfrforniL'il siTvilf 
laliDi' ill ilriviiig mw nf tiic inin|)aiiy'» eain on 
Siniijay. 'I'lii' timvictidii having' lucn sfl aside 
in the County Couit for distriet No. I. 

//</</, following (iuien v. S/ic/ininl. tlial thu 
matter lieiug of a eriiniual nature tliere was 
no appeal from the County Court to tlu' .Suprinu' 
Court. 

Vl(.W( V. C/,/nilll, !.'(» N'. S |{., (S P,. \ (1.), Jso ; 

!i C. L. T., •-'.■.4. 

23. Entry ("orllllort piiprrs not Hied 

Ajipeal from County (Hull (uinler Ail of ISTT, 
Chap, ti,) di.sini«!<eil, the cause not lieiiij,' <>iitere(| 
on the (locket, iiiiil no I'ertilied papers lieiiig on 

tile. 

II'A. . /.,./,■ V. I! rein,, I It. .V- C, l;i. 

'21. Entry Euilurc to enter Aeeountin^; 

for ■Appellant allowed to enter cause, on pay- 
ment of co.sts of rule to dismiss a|ipeal for non- 
entry, where the failure to enter it residte<l 
from misunderstanding lpet« eeii criunsel engaged. 
Jvluisliiii V. MrLnlii, H H. ,^ (i., .'{l : 
■J C. L. r., (KI.S. 

25. EilinK appeal papers Motion to .strike 

ofl' cause Papers not on tile Apjieal in causes 
originating in Magistrate's Court • Amount 
in dispute under $40 - A rule ///.«/ was taken 
April "Jiid, ISSl, to strike a cause oli'the docket 
on the ground that the p.ipeis were not on tile, 
anil that the cause hail originated in the City 
Court and the amount in dispute was less than 
$40, heing only .■?1(»..')(). It was shown hy 
atljdavit on the argument of the rule tliat the 
reason why the' )>apcrs were not on tile was that 
an application was ]iciiding in the Court helow , 
to amend the minutes. The rule iil-ii was after 
argument discharged. Another ride /(/</ was 
taken out De'emher 14th, IS.Sl, to strike oH' 
tlie cause and dismiss the a[)peal on the same ! 
grounds as liefore. The ])apers were not on tile ' 
at the time of taking out the rule ///.-.•/, hut were 
filed hefore the argument. 

Hi /if, that this was not sufficient, and that the - 
appei'l must he dismissed. | 

Boxsoin V. Coomhis, .S R. it C,., 2.") : ' 
•2V. L. T., (iOl. 

20. Ground not taken below— Xo appeal 

on — Jury in County Court— There can he no 
appeal on a ground not taken helow. 

Qiinfn , whether juries, in cases in the County 
Courts, other than those mentioned in section 



.V> of the .\ct, should he instructed to givu gen- 
eral verdicts, and whether the proper ]iidieilure 
is not toohtain their lindiiigson the controverted 
facts which the .Indge deems it proper to siihmit 
to them, after which the judgment in the cause 
should he gi\cn li,v the iludge iriespectivi' of the 
jury. 

^liidixirs V. Litiiili I", 4 K. \' (i., 'J.'Jtl ; 

i l^hiiiii V. .1/(7/1 /•, III., ;«ii. 

27. (irounds of appeal Amendment of 

refused I'laiutill's' action was hrought in the 
('oiintv Court to recover professional fee< as 
solicitors, attorneys and liarrislers. The piin- 
cipid i|Ue>lioii of fact was as to the services 
covered hy a sum of ."^KHt paid Ky defiliilant 
to jilaintitVs, upon which the evidence was cou- 
llicting; the judgment helow was for plaintill's, 
and defendant, having ajipealeil. applied, after 
ihe cause hail heeii one term on the dnrkct, 
and had hecome a remaiut, to amend the 
grounds of appeal under section Ilt4, of the 

County C t Consolidation Act of ISSO, hy 

adding the ground that harristeis had no light 
to recover for profes.-ioual services. The court 
refused the amendment, and helil on the merit.s 
that the evidence was not strong enough to 
justify them in disturhing the judgment. 

Mdffiiii il III. V. Ilri iiiiiiii, '1 It. .t (i., U)".2 ; 

1 c. J.. T., (iu;{. 

28. Grounds of appeal — Amendment or 

refused - Laches -I'laintilV appealed from the 
decision of the Ccninty Court .Judge, Decemher 
.Srd, 1.S70, on the ground that it was against law 
and evidence. On Deiiemher 14th, 1S,S0, he 
applied for leave to amend the gnninds so as to 
raise the question of defendant's righ*' to remove 
certain articles as tixtures. The lenilinent 
was refused. 

Laidlaw v. Taylor, 2 R. & (J., I'ltj. 

29. Minutes of County Court .ludse — 

Amendment of —Refusal to amend —No appeal 
from — Ajiplieation was made to a Judge of the 
County Court, after an appeal had heeii per- 
fected, to amend his minutes by adding 
testimony given on the trial. l)ut not noted im 
the minutes. The application was refused on 
the ground that the Judge had no power to 
amend after an appeal had been taken on the 
merits. An appeal from this refusal was tiikeu 
under Chapter '2, Section i)i), of the Acts of 
1,S80. It appeared that the evidence had been 
tendered at the trial and rejected as irrelevant. 
Held, per McDonahl, C. J., there could he 
no appeal from the refusal of the Judge to 
amend his minutes after the appeal had been 



(i!» APPKAL. 70 

pilfirtiil. Hvcii if tlif ('ipiilt lii'lifvod tliu thiit till! liiitch liadlicoil left uju'ii liy ii wrong. 

liaiMcil .Iml^'c 111 liavf lioi'ii widiig, it wniilil not iloir. TIiitc wmm no (ividtMU'L- of cotitrilnitory 

iciiiipil iiiiii to aild fviduncu wiiicli lie had ncgligunci'. 

rtjrttcd as ii ici.vant. //,/,/, that (tlio appeal lieinj,' under tiie Act of 

Kiu'iy, . I., .//.«'/('///;/. 1877) the Court eouid not review the deeision 

/'</• U'eatiierlie, .1.- In eases where the .ludne of tile County Court .lud^,'e on the weight of 

nf I lie County Court refuses to amend his niin- evidence as to ilefendant's occupancy (although 

iilcs, there is no appeal. it might, had tiiere lieeii no evidence, have said 

/'"■ Itiu'l'V, .1. —The application was wrongly that a non-suit should iiave lieeii ordered), i-id 

iM.idc, the evidence liaving l>eeii rejected at the that the jmlgrrient for plaintitl' for .':*7(» irp' oe 

ti ;.d, « hiie tlie application was to ha\e it ailded upheld. 

as evidence wlircji hail lieeri re(ei\ed, hrrt irol )'o/7,' v. Mrfjni,/li/i,i,',i K. i<; ('., IMi"). 
entered orr lire mirrirtes. 

/V,Smillr,.l.--.\o appeal wouhl lie in this ;j;{. QuostiWII Of fllOt - No H|)|ienl — ActS 
^■''^'■- I 1.S77, e. 6, H. 25 - Urrder section •.'.■> of the 

''"' 'I""!'!"- d. -An appeid would lie, as Alueiiding Cottrrty Court Act ..f 1877, chapter 

the dcci>i<Mi appealed frnin was l.aseil on a (I, the Court has no jurisdiction to reverse the 

iiialtcr' of law, vi/, : the ipiestiorr whether the decisiim of the County Court .Judge on disputed 
.Iiidge liail power to amend his minirtes after : (|uestions of fact. 

taken on tlie merits. ||-;,,. y /,,/,,„„, ;{ [{. ,\t ('., •_'!!!». 



aiiiieal 



Hitii!-" y V ('i(in)iii;iliiiiii, (i It. N; (!,, '_'<); i 

(iC. L. T., i;w. 34^ Question of fatt -Xo appeal Acts 

1877, c. 6, US. 25 & 26 - I'laintill' having heen 
.'to. Power of Jlldije to grant appeal eirgageil as tcailier' of languages for defemlant, at 
under Acts 1878, e. 9, ,s. 14 The ( ount y < nirrt '^ salary of .S7'K) a year, entered, verhally, in 
Jridge granted arr appeal uirder- section II of Fchruaiv, 1S77, into a new ni'i-angemeirt, for 
chapli'r- !l. Acts of |S7,S, in a cause origiuallv •*'•"''•*•. "itlr the pi'ivilegeof taUirrg private ))ir))ils. 
iiioiight in the Magistrate's Coltrt. 'I'lie appi.il Afterwards, in August, IS77, he wrote to clet'end- 
was taken in May. |S7!), sul>.sei|Uerrtlv to the i^"' '1'^'' '"^' wishcil to revert to the foi'mer 
statute of that year enaliling the Couiitv Couit ariangerrreirt, to which clefendanl niiule no writ- 
Judge to grant appeals in all cases, ten reply, iind there was eonilicting evidence as 
//■/il. thai the Judge liad power to grant the t'> whether' deferidairt ever' ver'lially agreed to 
appeal. retur'n to the old arr'angenient. 

Th(uiHi-< V, /.'(()/, •_' K. & (;., i;i.-). The .Judge of the County Court gave judg- 

irient for- the plaintitl', oir the luisis of .•<7ll() ))er 

.,j „ ., „ X. ^ . .... airnum, for' the (luarter fr-orn Xoveinher, IH77, 

at. Qiicsllonof fact Appeal dismissed- ,„Kei„n,rv is-s 

I ts lB/7, e. b, s. iio \\ hen, in an aiiireal tr'oin , , . , r ^i • i • ■ -i 

., ,, ,, , '' An airpeal was taken from this decision, ami 

the (.ounty (oiiit, there were no (iue.-.trons of ,, , , . i .. » •. i i i . i 

, , , ,. , . , the .ludge reiiorted that it had lieeii granted 

law, and the ( ounty ( ourt .Judge, acting as , . ,,,. . ^, ,, ^ ., . . , 

, , . , , . ". " under' sectu)ii J() ot the I ounty I ourt Anienil- 



both judge and jury, discredited the plainitli's 
story, and gave judgment for the defendant, the 
Cuiirt dismissed the appeal with costs. 



ing .-Vet of 1877. 

//('/(/, that the Judge, heing called ujion to 

. „ . exerci.se the ixiwei's of a jury, had the right to 

Cntlenw Sl,,,hins,-^Y{,. kV.,\)\. , • , ,, ,• r c / , r- i •• 

(lecrde the ipieslion ot tact, as he diil, giving 

due weight to the letter of plaintitl' and to 

32. Question of filCt- Weight of evidcnec <l''f»;'"l:>'if'* omission to reply to it, anil that the 

No review of deeision on — Acts 1877, c. 6, uppual must he dismissed. 

S. 25 — i'laintill' sutl'ered ini-'ries hy falling i Von Metzkc \. I'ddfield, \ \i. k i\., M. 

thriiugh a trap-door opening thr'oiigh the siile- ' 

walk into the cellar of defendant. The Judge 35. Question Of faCt— NO appeal — ActS 

of the County Court, before whom the case was 1877, c. 6, ss. 25 & :M, repeal Acts, 1874, c. 18, 

tried without a jury, found that the premises to s. 53~.Seetion .'{4, read in coniieetion with sec- 

whieh the trap-door was appurtenant, were in tion "J."), in the Act to amend the Act to establish 

the occupation of defendant, and there was County Courts (1877, e. (i) repeals the provision 

evi.kiuu which, had a jury been empanelled, of section 53, of the County Court Act of 1S74, 

woulil have re(;uii'ed to be submitted to them o. 18, allowing an appeal from the decision of 

tipun that issue. Defendant gave no evidence the Judge upon a question of fact. 

to the contrary, and did not attempt to prove i Dewar v. Murphy, 1 R. & G., 84. 



71 APPEAL. 72 

30. Question of fact— WelRht of evidence vessel l)eiiig out of liei- usual eoursc, sueii in- 

— Judgment reversed as against -Acts 1880, ference was open to review on a])peal. 

c. 2, s. 99— .luilgiiM'iit of County Court n.'veiseil Per \Veatlieil)e, J., diaseiitimj, tiiat us tliere 

on tlie weight of evideUL'e under (.'(junty Court was evidence enough for plaintitl' to i)revent a 

Consolidation Act of ISSO. non-suit, the Court eouM not. on ajj^eal, leview 

Miir/ilii/ V. Huiiio, '2 H. & (!., 17.') ; the linding of the .ludge on the facts where tile 

1 C. L. T., (i()'2. only gi'ound in tlie rule for ajjpeal was tliat the 

judgment \ias against evidence. 

37. Question of fact -Appeal on evidence Jinnett v Sutfin, r, R. ^t c., 202. 

from County Court Allowed - Acts 1880, c. 

2. s. 99 Ajipeal fi'oni the judgment of the 41. Kcfusal Of appeal bf COUnt}' Court— 

County Court allowed, on the evidence, with Appeal from refusal — County Court Act, 

costs, and judgment to he entered for ])laintitl' 1877, c. 6— Where a cause was tried at the 

l)ch)W witli costs. C(mnty Ccmrt Chambers, Deeendier ,")th. 1870, 

Milli't V. LiiriUii, 4 T!. \- C., ;)(»!). judgment jjronounced Deceniliei- •.'(Jtli, 1,S7'.>, and 

a motion for appeal made on the last diiy of tlie 

38. Welgllt of evidence -.ludsment of danuary term of the County Court, ISSU, which 
County Court sustained on -In an action of was refused. 

trover for deals, the fact of conver.-.ioii liy du- Held, that the appellant had not lirought liini- 

feiidant rested on evidence of the freight deliv- self witliin tiie terms of the County Court Act 

erer that the deals were delivered to one Mc.\., of 1S77. and that the appeal from the decision 

who acted as agent for ilefendunt, as well as foi- of the County Court Judge refusing tlie appeal 

DeW., to whom they were addresseil liy ])laiu- must he diMui.-sed. 

till'; that it was his duty to know wiio wei'e McDuiid/tl v. f'nii.-, 'A R. & (i., ].") ; 

the charterers of the vessels being laden at the 2 C. L. T., (iol. 
wliaif where the ik'als were delivered, and that 

he knew that ill this instance DeW. aid not get 42. KefUKUl Of IcaVe tO reply — Appeal 

the deals, hut that McA. checked them from from allowed— Acts 1877. c. 6. s. 25 — 'I'he 

the ears ami into vessels for the defeiid.iiit. C'ounty Court .ludge refused to allow plaintill', 

//(•/(/, that the County Court .ludge was right „t'ier liie expiration of thirty diiys from the 

in refusing to non-suit the jilaintilV. liliug of defendant's plea of payment into court, 

J'urdi/ V. M(if/ii />\ 4 R. & (i., .SlIS. to reply, that tiie amount paid was insuthcient. 

Defendant appealed under tlie County Court 

31>. Finding of County Court Judge on Amemlment Act of IS77. 

facts reviewed, and reversed — •'^tc/i/ien vt nl. v. JIM, tliat the rule had Ween wrongly refused, 

(riicdZfi ajiplied, 4 H. \ (!., .^U. and further, that as the refusal to allow a ri'pli- 

tlu'slcij v. Gnvdzn et td., 4 R. Jt (i., .'t.'iO. cation was decisive against the plaintill's claiii;, 

and therefore a liiial judgment, it could lie ap- 

40. Question of fact Reviewing tinding P'^"'*''^ f""" 

— On appeal- I'laintitlhrought action of trover ''"'"^ provisums of the County Court Act of 
and trespass for nets allegcl to have been run •><T7,jis to appeal, supersede altogether those 

over by the " M. A. Starr,'" of which defendant "f l*^'-*- „ ,> , „ ,. ., „ ,, ,, ,., 

... ... Mcl.nhc v. McKiUi, A R. & ( ., .s.l. 

was master, and judgment was given m the 

Countv Court for phiintitl'. 

n, i<h Weatherbe, J. , du.ontiwi, that the pre- 43- Kulc for appeal -Defective -Quaere, 

scnce of the steamer at the jdace where the nets "w^hether rule requires to be certilied-Appeal 
were fouled was no evidence of negligence, as fnim the County Court dismissed when the de- 
there was uncontradicted evidence that they f^-'inliuit, api'dlant, in taking out his rule, had, 
were not fouled in the place where they were through a clerical error, referred to the appeal 
set, but had drifted. '^^ ''*''"*'' ^'^'^'=" "" ^^^^ P^''* "^ ^'''^ plaintitf. 

lb hi, further, that a demand of satisfaction Qnnvre, whether the rule for appeal is among 

f,.r the nets destroyed was not a .sutlicient the papers re.juire.l to be certified by the Judge 

demand on which to ba.^e an action of trover for ""^^'^'' tl'i^ County Court Act of 1S74. 

the remnants of the nets taken on board the O Tool y. llouper, 1 R. &(i.,4S4. 
steamer and save<l. 

I'<r Thompson, J., that even if there were 44. KUi«: for inUSt bC granted — Bad 

cvidenet^ from which the County Court Judge where it read "upon filing security " — The 

had diawn an inference of negligence, from the Court declined to entertain an appeal from the 



73 



APPEAL. 



74 



('minty Ccnut in a cause (irigiiuuing in the Maj;- 
istnite's Couit, wliero tliu nile fur ajjpoal was 
tiikeii iipmi tiling .security, ami nut "giauteil" 
))V the .hidge, within the meaning of t^ee. S, 
ciirtl.. '-'I), 1S7!). 

J/f(."'.vo» V. Mil.^ui, •-' i;. \- C, I7C. : 
1 ('. L. T., (!(i4. 



up'in tile fi)ll()wing giouniU ' » • - unle.s.s 
cause lu the conlraiy lie shown liefoie the 
.Supreme Court in hnnro duiing the tiist fouf 
ilays, etc.'' 

Appeal (lismi.ssed. 
.I(ihi(yl(iii V. I'oi/iil:, 1 II. CC {'•., lUti, ilistinguisiied. 



t.'. Kiile nisi Tor appeal Trom (Miinty 

Court — Bad — Second Appeal — Laches — De- 

feiidant'.s a])peal from the decision of the Comity 
CiiU't in a cause tfied duly, 1S77, was taken in 
tlic Iniiii of a lule for leave to a))peal, unless 
cause to the contiafy siiould lie shown Kefoie the 
.Supreme Ciuift /// hitiifn. '{'he fide also pioviiled 
for a liond to he given. 

//'/'/, that the olijection to the form of the 
a|i|ical was fatal. 

An order for appeal was afterwanls granted 
liy the County Court .Itulge, Kehruary ■J'Jnd, 
1>7S, and the pajiers, certitieil .March 7th, wt'ic 
tiled .March lltli, IS7,S. 

//i A/, that this appeal must Kc dismissid on 
the grouiiil that it was perfeeteil without any 
permissive oi-dcr of this Court, wiien a \iiy 
uureasdlialile time had elajjscd lifter the verdict 
snuglit to lie ap]iealed from was given. 

W'ooill// V. LiCrn-, 1 H. i\: (J., 7. 

I(i. Uiilc nisi Tor appeai Troni Coiiiily 

C'uurt Fiat of Judge indorsed A rule for 
a|i]ical froiu the County Court was taken in the 
f Uowing form: On motion it is oidered that 
ail a\ipeal from the judgment in this cause lie 
allowed to the .Siipieiiie Court, and that said 
judgment he .set aside and nc«' trial gianteil, or 
jlldgdleiit he entered for defendant on the 
gniuiids following, that is to .say, etc., etc.; and 
that in the ineantimc all further proceedings on 
said judgment lie stayed, unless cause to the 
ciiiitiiuy he shown before the Siipreine Court at 
tile next Decemlier term, and that meautiine .".11 
]ini.cciliiigs he stayeil. The r .le was signed liy 
the clerk, liiit on the rule was indorsed a liat 
signed liy tlu^ dudge of the Coiiniy Court, eom- 
niuiidiiig the Clerk, on liond lieiiig tiled, to sign 
tile rule as of the last day of tiie sittings when 
it WIS moveil for. 

The Court refused to dismiss the apjieal on 
the ground of informality. 

.Ii,h,i^ii,i V. I'li.iiil: il III., 1 It. \- V,., lliti. 



48. Uule nisi for appeai Bad Appeal 

from the County Court dismissed w iicie the rule 
for appeal was in these terms : '• 1 do order that 
the judgment lie set aside on the following 
grounds, etc., etc., unless cause to the eontrary 
lie shown liefole the ,Su|irenie Court at Halifax 
within tlielirsi four days of the ensuing Decciii- 
her term." 

Ih iiii:<oii V. .hfk, •_' l;. it •;., 170; 
I C. !-. T., (iti:$. 

4J>. Kiile nisi for appeal-Bad -A rule fm 

an ajipeal from the ruling of a Judge refusing 
to allow nil e\aniiiiation of an agent ill regard 
to certain matters under the Aliscoiidiiig Delit- 
oi s' Act was taken in the following form : — It 
is ordereil that an appeal lie granted from the 
ruling of the presiding ■llidge given at the ex- 
amination, etc., on the grounds, etc., and that a 
reheariiii: of said agent lie had, unless cause to 
the contrary lie shown liefore the Supreme Court 
ill liiuiid at Halifax, within the tirst four days of 
the next ensuing term. 
Appeal dismissed. 

Doh.ii, V. Mi'Dounl'!, :{ K. \ (;., l-'7. 

.10. Hilie nisi below amended on appeal 

and made absolute — On appeal from the judg- 
ment of the County Court refusing to .set asiile 
a default w here the wt it hail not been personally 
served, the (.'ourt, under i-tule 14, Order "JS, 
amended the rule ni"! in the Court below, by 
adding a ground setting ou* that defendant liad 
a defence on the merits, and had satisfactorily 
accounted for his non-a|i]ieai"iiiee, ami made 
absolute the rule on terms <if a bond beinu 
given to the County Court Judge to respond 
final judgment, defendant to pay costs of argu- 
ment and apjieal, otliirwisi' appeal to be ilis- 
missed. 

Hiniihii V. MiXiill, ."■ K. .V <.., .-.41. 



i«. Itiiie nisi for appeal Trom lounl} 'il. Huie on appeal for entering up Judg- 

Court— Bad— .\ Kiile for an appeal from the ment in County Court-E.xcea.^ of jurisdiction 

• iiiiiity Court was taken in the following form : — The Court dismissed an ajipcal for irregularity 

" <>ii luaring read, etc., it is ordered that the in the form of the rule, and granted a rule direct- 

lU'feiiilaiit have leave to ap|)eal, and an appeal iiig the Clerk of the County Court to enter up 

IS lieiehy granted from the judgment, etc., judgment in the County Court for plaintitr. On 



75 



APPEAf. 



7a 



til M'l tlu' jiulgint'Mt :i>iilf, 

JI' ''/, that the unliT ui {\\v Sii|ii-t'Uir Cniirt tci- 
t'litiTiiiL; ii]( jiiilijiiu'iit was in cxcfss (if jurisi'ic- 
ti<iii, anil thf I 'lurk ut the Cniiiity Cnurt hai! nu 
atithoiity to eiiti'i' ii]i jii(lj,'nuMit. 



.y2. Sct-oir raisin;; (tiiCNtioiis iil' title 

Duoision tliat the Couit was excluded from 
jurisdiction a])peal!ible W heie a ('nun has im 
juiisili.'tiiiu III try a i|Uesliiiri nt' title, ilefeiidaiit 
caiiiiiii (Hist the jiiiisilietiiiii tu eiitei tain a. elaiiii 
iiiV(il\ iiiL: nil (|iiesti(in nf title, hy jileiKliiij: a set - 
(itl'thal inxdlves a i|Uesti(Mi (if title. 

All aetidii was hi'diiLrht in the .Ma^istiate's 
('(Pint and jiidnnient ;,'iven im ]ilaintiir. Tlie 
('(iiliity ("iiiii , .Iu(lj;e, (III appeal, deeideit thiit the 
i| nest inn ui title was in sol veil and the ('(in 11 was 
thefefiilc ■' excluded fl'dlii jurisdietidli." 

//■/'/. tiiat an appeal lay to the Supreme ( 'dv.it 
ffdin the deeisidll. 

Ci-i i'',ili'oii V. Liii'l<n}i, ;{ It. K^L- (i., iM.'f. 



.l:{. statin;; case nliere amount in disiuite 

under $40 -in a east' wlieie the aninunt in dis- 
pute was less tlian S4U the .Iiid,L.'e liehiw eertilied 
to the Cdillt the pa|ieis and the evideiiee taken 
liefiire him and suhmitted the (|iiestidii whether 
iipim the evidence so sent up, the plaiiitill' was 
entitled to recdver ai,'aiiist the defendant. 

Iltlil, that lid ease had heen stated for the 
opinion of tiie ( 'dint. 

I'.iiirniii V. Ifi rrhixtii, 'JO X. .'^. \{., 
(S 1^' .Vc (;.), (i«. 

34. Summary Causes - Decision of County 

Court final in —On appeal to tlu' ("ounty Court 
from a judgment and ediivietion liy two magis- 
trates under the license laws, the County Court 
Judge without trying the cause il< iioro ([Uaslied 
the conviction on the ground that it w.is a con- 
viction simply for violating the license law, 
witiiout stilting the particular iict of violation. 
An appeal was granted to this Court. 

Tlihl, that the judgment helow must lie 
atiirined on the ground that the conviction had 
rightly l)';en (juaslied, and further that the sum- 
mary jurisdiction heiiig alioli.slied the decision r)f 
the County (_'ouit was tiiial. 

Weatiieilie, d., (Ilxsinliii'j. 

Ilosi v. Jiiirb, 1 H. f{ (i., !»4. 

53. Time for appeal —Lateness -Appeal 

from an order of the County Court sustaining a 
claim against an insolvent estate, (lisniissed with 



t'osts, wlieif iiriieiedin..'-. wiTe iinl taken within 
the eight days limited liy .-tatute. 

/,' ,•■ Mnr'.H,'^ K^'nl,, •_' 1!. \- C, -MX ; 
I C. L. i'., ()ti4. 



\'i.-Fi;().\i i".<,icrr\' ( onn. 
I. K(|uity- .Ippeais from .ln(l.:;e in 

" Matters of practice" — Meaning of— 'I'lir e\- 
pres.-^idii "matters df practice" u.^ed in .s.,'e. 7-'>, 
iifcap. !l."i, U. .~s. ( llh series), ''(It I'rdeediili ill 
Ivpiity.' as not lieiiig suliject tn appeal, refers 
diily td tliii.-e malters uf mere i)rin-edure in 
wiiieh the diid:.'e has a disi.'ret inii, Imt nut in 
Vdlving any leL;al principle. 'I'Ik; decisidU of the 
.liidge in H(|iiily on the folldwing [loiiits was 
held lint suliject tn appcil ; - 

That the answer to the plaiiitill"s hill pin 
fessed td lie the personal answer nf llu' drfelid 
ant, liiit was imi signed !iy him. 

'I'lie fdlldwing grdiiiids of appeal were disal- 
lowed as involving mere matters of practice: — 

1. That no exceptions can lie taken to an 
answer in the K(|uity Court of Xova .Scotia, lnit 
all olijections must lie taken liy dcnuirrer. 

■_'. That none of the e.xceinidus td defeml 
ant's answer were taken in time. 

.'i. That the exceptions were not set dnwii 
fur argument in the time allowed, and could nut 
he so set down afterwards without an order. 

4. 'i'hiit the parts of the liill alleged to he 
insullicieiitly answered were not set hirth in the 
exceptidiis, nur referred to with certainty, 

(liduiid of appeal, that the judgment is con 
trary to law and eijuily, hhl too general. 

Ill III, that defendant, having undertaken to 
make an account part of his answer, could nut 
be heard to say that the hill did not ask for it. 

Where plaintilf took thirty-one exceptions to 
defendant's answer, on four of w liich defendant 
succeeded on appeal, plaintifT was ordered tn 
pay four thirty-tirsts of defendant's cost of ap- 
peal, and defendant twenty-seven thirty-tli'Pts 
of plaintiirs; the costs to he set oH'. 

Ihirkmr v. U'liUan , ."> R. ,& (;., 40.'i. 

2. Equity - Appeal from .Judge In - 

Allowance of — Certificate of Coun.sel — 'I'lie 
.allowance of an appeal hy the .Judge in Ivpiity 
does not ilispeiise witli the statutory rei|uiic- 
nieiit of a cortitieate liy counsel. 

The absence of such certificate is not a clerical 
error which can bo amended. 

{.hunt V. Doiwimi, (i H. «& (i., 19: 

(iC. L T.. i;t7. 



77 



APPEAL. 



78 



3. Equity "Time for appeal— From when 1 S., c. l, s. 8— Plaintiff institutetl an action luukr 
it begins to run — Tlii; tiiiiu witliin wliioli an is. '2H, u. 147, .Snl I?. S., before two Justices of 
rtl)i)i'al must be taken from a decision of tlie i the I'eace against defendant for an assault, and 
Equity Court, under 4th R. S., c. 95, see. 75, the Justices, on hearing the evidence, dismissed 
runs from the day on which the decision is pro- i his complaint, either deeming the offence not 
noiinccd ; and wliere a decision was pronounced j)roved, or so trilling as not to merit j)unish- 
on .Tuly "itii, 1S7.">, but the deciee, bearing <late nient. ]'laintiff tliereu])on a])i)ealed to tiie Su- 
Marcli "27111, 187(), was enrolled Ajiiil .'ird, 187<i, premcCourt, and the Judge pre.sidingatAnnapo- 
au ajjjjeal taken out on the last mentioned date lis dismissed his aj)peal, but gave him a rule 
w:ts iield too late. tiini to bring the case for argument before the 

Jiiirloii, Ailmr. v. liiu-ns, 2 K. &. C, .349. : whole Court. 

//eld, that in a case of this nature plaintiff was 
I not entitled to a))peal from the decision of the 
VII.— FROM JU.STICE.S OF THK PEACE. , Justices of the Peace. 

I Construction of .'{rd R. S., c. 1, s. S, 

C/icxle;/ V. (iramic, 1 X. S. 1)., l!tl. 



1. .\ffl<laTlt Tor appeal from Justices — 

Tlie aliid.ivit fiM' ai)pt'al from a .hislice of the 
Peace, in civil eauses, must be made before the 
Justice who tried tin; cause. 

Ciirnj V. A-</y(.s 4 H. & (i., .'il. 
Hut .«. ,->lh R. S., c. 1()2, s. ;«. 

>>. Aflidiivil r(»r appeal Trom Justices — 

Misconduct of Justices Difeiidaut deinanded 
an appeal from a judgment given against him l>y 
two .lustic'cs of tlie Peace, and tendered tlie 
proper fees to one of the .lusticcs for pieiiariiig 
the statutory allidavit for the a))|)eal. 'I'iie 
rtttidavit was jirepared, bm was svmhii to with- 
out having been signed, and tiie Magistrates at 
once issued executi(»i, under which defendant 
was arrested. Defendant made an aliida\ it for 



5. Justice of the Peace — Action a^ainnt 

for refusing an appeal -Finding of jury on 
question of malice —Plaint 'If Inoiight an action 
against a Magistrate for maliciously refusing an 
a]ipeal ; but, <in his direct exaniinalioii, stated 
merely (hat he iiad demanded an ajipeal, and 
tliat nothing further was said. Defendant >wore 
that he did not hear the a])]ieal demanded. 
Plaintiff's attiu'iiey swore that in the defendant's 
liresence he had asked plaintiff if he had not 
offered to make tiie alliilavit, and demaiuled an 
a))|)eal. to which plaintiff hail ie]ilied iliat he 
iiad done sn. The jury, in answer to tiie (pies- 
tioii « iiether the .lusticc had lieeii reipiired to 
))ivpaie an afiidavit, said " yes ; " and, in answer 
ajipial before a Magistrate who had taken no t'> th*' ((Uestion wlietlier the Justice iiad acted 
pait in the trial, and the .Fudge of the County "itli nialice, leplieil '• ap|)aielitly " ; and they 
Court, disliicl Xo. 1, set aside the jinlgmeiit of found a verdict for idaintitf 



the .Magistrate and (piaslied the snmmons and 
all proceedings thercuuiler. Piaintitf iiaving 
ap]iealeil . 

//(■/(/, tliat till' appeal must be allowed. Mis- 
conduct of the Magistrates cannot give an appeal 
independently of the statute. 

The statute gives no autliority to any Magis- 
trate to prepare the allidavit. other lliaii to tiie 
one will) lias heard the eause. 

Muir ft (il v. li'ti Ill-fill/, (i It. \- ( 

Bnt«. .-.til It. S., ,-. )(»•_', s. ;u. 



A rule being granted the verdict was set aside. 
MrKciizie V, AfrKiii/, -A I!. .V C, 1 •_'•_'. 



'i. Appeal from Justices Irrei^uliirltles 

Cured- Wiieu tlie magistrate lief'ore wiioui the 



0. \o service of summons - Walrer of 

want of service —Defect cannot be taken ad- 
vantage of V)y appeal -Certiorari proper rem- 
edy Dct'endaiit was ))roseciiled under • hapte'- 
lit, Revised Statuies (;hd series), for a lireach 
of the law relating to the sale of intoxicating 
'-''■ lii|Uors, There was im actual service upon him 
of tile writ of summons, and flic afiidavit of the 
constable verifying the return was infminal in 
being intiluleil willi tln' suinanies only of plain- 
tiff and defendant. Defendant having liecn 



case was tried promi.sed to see the necessary eonvicted in his absence, apjiealed. ami filed 
papers for iierfecting the apjieal filed, and after the neces.sary liond under the statute, 
iiriiviiig tlie bond said it Was all light, the ap- //,-li/, that when an ajipeal is taken and per- 
liillaiu will be entitled to his api)eal, tluuigh he fected from a decision of .histices of the F'eace 
lias M,it made the allidavit rei|uiied by law. in a summary cause, the judgment belnw is 

McKdji V. MiKini, '1 Thom., 7.">. thereby i';;.so facto vacated, and the case stands 

for a new trial. 
4. Assault - Action for before two Jus- Aho. that defendant having a))i)ealeil, and 
tices diamisaed — No appeal allowed — 3rd R. , thus virtually appeariMl, and having avoided the 



79 



APPEAL. 



80 



juilgiiiunt lit'low liy having taken an ini]i<irtant 
stcj) in the uause, it was not conipetent tn him 
to lepiidiiite the jurisdiction of tlie Court hclow 
on the ground of want of personal service. Had 
lie wisiied to avail himself )f sueh an ohjeetion 
he should not have a|)l)ealeil, hut should have 
sued out a wiit of ceifioriin. 

On a second trial no anieuduicul adding or 
suli>lituling a new cause of action or ground of 
<lefcMcc will he allowi'd. 

I'ei Willi ins. .1., dmeiifiui/. 

A judgment gi\en as tlu; judgmcul in this 
ease was, forms no exce))tion to the |)ri\ ilegc of 
a)>|pealiMg coiiferi'iMl liy the statute, and to issue 
a (7;7/«r»r( wouhl havi' heen uinieces.sary. .Judg- 
ment hy defaiilt having lieeii given, defeiulant. 
not lia\iiig heen duly summoned to appear, is 
entitled to an appeal. The want of service of 
the sunnnons alone is groiiiul f<U' reversing the 
judgment helow. A dissatisfied party appealing 
from ;i judgment so entered cannot he held to 
wai\'c hi.s right to contest the validity of the 
judgment, not having had an oppurimiity of 
opposing the claim wiiich the judgment recog- 
nizes. 

Ji'mid \. Itochirell, '_• \. S. ]).. l!l!l. 



this judgment, that no appeal lies ilireetly from 
the decision of the two Justices to the Snj)ieinu 
Court, tiie Court in a ca.se of this kiinl having 
merely the right of revis;on of the decision nf 
the sessions. 

/'• ;■ iUiss. .1., the <luty of the Supreme Coini 
is not to try the case, hut merely to say \\hether 
oil the es idi-uce gi\en hefore the twii .lust ices, 
their decision was right. l!ule ahsohiti'. 

Ori'iserra iifllif I'darfar Grrriifif/d \. 

On rscern of t/ic Pour for Gus/ifii, I Old., (ill."). 



VHI. — KKO.M I'HOiIAlK ((tfitT. 
1. .4iii(>iHlniont on appeal from I'robatc 

Court " Adding new ground of ajjjieal 
Terms — ( )n argument of an apjical from a decree 
of thi'Ciuirt of I'ldhale. the Supreme ('(unt will 
allow an anieiidmenl. adding a new gnumd of 
apjieal. \\ lieu imt merely formal, to those already 
taken : lait will in .such case give the opposite 
side time to consider whethei' they w ill go on to 
the argument. 

//( ri' r.stiiti'of Rdlstiiii. •_' Thoni., .'i. 



1. Xo witness prodiieed by plaintiff — 

The Coml will not grant an appeal w here no 
witnesses have heen produced hy the plainlill iu 
the ( 'ourt heh)\v. 
IJliss, J., tli-isi iitiiiij 

MrCiil/i/ V. n<ir,iJ,il/. C.ichran. Si. 

8. Objections to regularity of proceed- 

ing.s before Justices — When to be taken — 

t)lijcctions hy ap])ellaiit to the regularity of pro 

cecdings before .histiees ninst be bioiight to the 

nolieo of the Court during the tirst inuv days of 

the term, and before the cau.se comes ou for 

trial. 

Gid/uiiii V. Lfi/iierri', dames, l;-i!l. 

0. Order of Justices for removal of 

pauper No direct appeal from to Supreme 
Court — Two Justices issue^d a warrant for re- 
moval of a j)a.:per from the )>oor district of 
Greenlielil to that of (ioslien. At the next ses- 
sions for the district of .St. Mary's (w itliin which 
district both the districts of (ireentiehl and 
Goshen \.ere situate) nothing was done in the 
matter, but at the following session the ease was 
brought u]) and the sessions "dismissed the 
case w itliout decision, as not being legally be- 
fore them." An ajipeal was then taken to the 
Supreme Court and trial had at < iuysbor<iugh, 
before Desliarres, ,]., who gave judgment for the 
plaintiffs, contirining the order of the Justices. 
Hlld, on arguinent of a rule nisi to set aside 



2. Bond on appeal from Probate Court 

— Form of The .fudge of I'mliatc icfused I" 
grant an appeal from his decision, on thi' ground 
that the boiiil. although in the form given in the 
statute, dill not state what cause was |ieniliiig. 
The appeal was then granted by a .fudge of the 
Su|)renie Court at Chambers. 

//I'/tl, that the bond was in the pidpcr form. 
Ill ■/•(• Ii(i//i EKiair, •_> I!. \' O.. bSL' ; 
I C. I,. T.. (iti.S. 

3. Costs on appeal from Frobate Court 

- 'flic .Supreme Court, on appeal from the 
Probate Ciuirt, will exercise a discretion as to 
costs, and will in general give costs against a 
jiarty unnecessarily making or resisting a claim. 
Entdte (if A/e.i(iiii/(T Mrlkiiiuld, .lames. I'J.'i. 

4. Co.sts Probate Court -Appeal from 

— Costs as against unsuccessful executor - 
When a decree of a Probate Court is reversed a.s 
against an executor lie will not in ordinary cases 
be subjected personally to costs. 

EsMe of C. McDonnltl, .Tames, .'U'J. 

5. Grounds of appeal from Probate Coart 

—Those filed only considered— The Court will 
not consider other grounds of appeal than those 
contained in the statement filed in the registry 
of the Probate Court. 

In re Estate ofJamis IV. lioi pe, R. E. D., 11)2 



81 



APPEAL. 



82 



[X. TO TIIK I'KIVV t'DUNTIL. 

1. Appoiilablc amount How made up— 

All (inlir nf tifi' Muji'sly in CmiiiLil iillnwcd aii 
aplifal t'niiil the jinlgmeiit of the Sii|)rcniu Coiirt 
(if tliis I'l'iiviiK'i' to liiT.sflt' ill Her l'ii\y ('"Uiuil, 
"ill tiise siKJi j ilj^nK'iit, ik'eiff, (inltT, ur .soii- 
tcine shall involve diivelly or imlircetly any 
(•l.iiiii. ik'inaiiil or ([Ufstion to or respeeting 
|ii(i|ii'ity ill any civil rigiit aiiioiiiiting to or of 
I hu value of t'.S(K) stg. (t'.'lT.") euireiiey. )" The 
Mini to reeover u liirh the aetioii was liroiight 
was t'.'UO eiineiiev ; lait aihliiig interest on tiiis 



2. Appeal to Supreme Court of Canada - 

In matter of discretion - /■/('/(/. iimler .see. •_"_' of 
the .Siiprenie and ICxeheinier Court Act, no 
ajipeal lies fiiim the jnilgnieiit of a Court grant- 
ing a iie«- trial, on tlie gmiinil that tiie \erilict 
is against the weight of evidence, tiiat lieiiiga 
matter of discretion. 

liiKih V. /'//(' Affi-c/idit/.f' Murine Jjiit. Co., 

(1 It. >S: C, -JSS), 

1 .v C. Pv., 110. 

3. Appeal Original Court Hot a Superior 

Court Judgment not appealable -Supreme 



aiiiiiuiit from thedate of the writ until judgnient, and Excheqtier Court Act, s. 17. 

lni.',tlicr with the costs of the successful party. //,./(/. on motion to i|uash, tiial an appeal will 

increased tiie sum to (iver €."ilH) stg. Leave to not lie to the .Supreme Court of Canada in eases 

Mppeal was granted, the res])ondciit Ipciiii; at in wliich the court of origiiiiil jurisdiction is not 

lihcity to raise any iiuestioii with regard to tiie a .Superior Court, ami that tiie Court of Wills 

appealalile amount liefore ilie I'rivy Council. 

Tile ap])eal was not i>rosccuted. 

Pti/if y. l lie I'tvtoii Slv<niil)o(it ('oiii/niiii/. 

•-'Old.. ITii. 

-J. (Osi.s raiinot be added to make up 

appealal)le amount -VvjiWr', costs in a t'ause 
caiiiint he added to the anioinit claimed for tile 
piil|iiise of hringilig it up to the appealahle 
aiiiiiimt. 

Jinrii.i I'/ (il. V. Riilmrdi. 1 X. S. {).. ."iUi». 

». The PriTj Council will exerei.se its 



and Proliate for the County of Luiieiilpurg. .\'i>va 

Scotia, is not a Su])erior Court wiliiiii themean- 

iiig of the ITtli section of •■ Tiie Supreiiic and 

K.xcheipier Court \v\." (.SSVic, v. 11. s. 17. D.) 

i III rt- Will iif' IS tiiiii.1'1 Miinliicii, 

.•{ K. .^- C, 4'->7), 

Jiciniii.'i/i V. Kiiiillii'r/;, ;! S. C. 1!,. ~iH. 

A. Award Addin;; grounds or objection 

on appeal //(■/(/, tliat where tlie rule (//</, 
to set aside an award, specilies certain groiilid.s 
of (iliicction, and no new grounds are added \>\ 



discretion in deciding a case on its merit.s, way of amen.lment in tiie coi.rt helow, no otiier 

wiijioiit regarding .strictly the precise terms of ground of olijectiou to the award car, he rai.sed 

tiic pleadings. ,,„ appeal. 

MiLi-dii V. McKitii, not rvjmrtcil heloir, 0<//,v.t v. The Cilii of /falifax. \ S. C. 1!.. (140. 
L. 1!. .■) 1'. ('., .■(•_': : 

■_".» L. I".. ,•{.■.•_>. 5^ fji^p^ adding formal Judgment of 

I. Tlie I'rivy Council heard an appeal Court below to Hiring of appeal allowed to 

tinman niijer of tlie .Supreme Cmirl of Xova stand over till i-ase perfet'led by the addition of 

Srotia. settinga.side pleas and aUowedtheaiipeal l''*^' formal jmlgmelit of the Court below. 

cdiiditiniKillv. Keaniii/ v. Kcnn. ,///i Fih., IS7S, 

\ .)fcSivi'i'iwi/ V. WiiUiiir. •_• Old., XVI). Cas. Digest, .'l.S.S. 
\V<ill,i,; V. Mr.Siniioi/, L K. -2 v. ('.. 1S(». 

0. Case, adding formal rule of Court 

FOl! LIST OF CASKS Al'l'I'.ALKD TO THii below to- -Apjieal placed at foot of li.st for hear- 

I'KIVV COUXCIL— >•',. AI'l'HXniX. iiig to permit the rule of Court belov ajj^iealed 

from to be ailded ; oouirsel for respondent con- 

seiiting. 

Il'iil/(iie\. Sou//irr,.;'li Fill., is:s, 

X. lO THE SUPREME COURT OF •'''• '^'«''''^' •^^'^- 

1. Conviction for violation of license laws 

!• Appeal -Final Judgment—Demurrer— —Habeas Corpus, motion for —Judgment dis- 

Matter of practice- //eA/, an order setting aside missing not appealable when prisoner is dis- 

u dfnuiirer as frivolous and irregular under the charged before appeal— Jurisdiction -4th R. 

Xova Scotia Practice Act, is an order on a S., c. 75 and c. 99 — Costs— The prisoner, .Simon 

mutter of ])ractice and not a final judgment Fi'aser, had been convicted before K. A. Laurence, 

ivppeal.ihle under the 11th section of the Supreme Stipendiary Magistrate for the Town of Truro, 

iiiiil Hxcheiiuer Court Act. "f violating the license laws in force in the town, 

{^lorrisoii \. Kii)iflirk,'2R. fi C, US), and was lined .*40 and costs as for a third 

Adiidivk v. Morrisou, '2 .S. C. R., I'i. oft'ence. E.xeculion was issued in tlie form given 



83 APPEAL. 84 

in 4tli ]{. S., L'. 7">, iiiuU'r wliicli Fivisfr was appelliint, to recover one liuiitlred and twenty- 
committed to jiiil. Wliile there lu! was ooiiviet- live barrels of flour. The plaiiilitl's were in- 
otl of a fourth oU'enee and lined SSU and costs, ^ doisers of a bill of lading of the goods sneil for, 
and was detained under an execution in the ' whicli were held by tiie defendant as freigiit 
same form. Tlie matter came before tlie Su- agent of the Intercolonial Railway at Truro, 
preme I'ourt of Xova .Scotia on a motion to. The action wa.s begun on the !tth ilay of Ajiril, 
make absolute a rule HMi" granted by Weatherbe, I A. 1)., 18><l, and the goods wcrt' leplcvicd and 
J., undei' ttli 1!. ,S., (.', !K). " Of .Seeming the tlie writ was served ujion the defendant on the 
Liberty of the .Subject." The rule was (lis- same ilay. 
charged. A default was marked on the •J.")th April, ISSl . 

It ap])eareil that bifore the institution of tiie Sulisccjucntly, on the Kith day of .Sfptumber, 
appeal to the Supreme Ccuiit of Canada, the I SSI, the idaintiU's' attorney caused to be issued 
time for uhiiii tiie ap)n'llant iiad been iiii]irison- a writ of in(|uiry, under which damages were 
ed li.id expired and he was at large. assessed under tlie provisions of Uli R. S., c. 

Oh motion to dismiss the appeal for want of ((4, s. .")(>. 
jurisdiction, Ui'ld, that an appeal will not lie in .An ordi'r nixi for the ])urpose fif renioviiig the 
any case of ))idcct'diiigs for or upon a writ of default and letting in the ilefeiidaiit to del'c.al, 
habffm ciir/ius w hen at the time of 1 ringing the was taken out on the 1 1th October, ISSl . and. <.ii 
a))])eal tiie a])p<>llant is at large. 'argument, was discharged with costs by an 

,\l)l)eal disniisscd. The (pieslion of costs was order of Mr. Justice James, presiding at 
reserved and subseijiiently the ("oiirt ordered Chambers. 

that the ri'spondeiit slioiih! be allowed his gen- ■ Vroin the last named order an ajipeal was iiail 
eial costs of the a|)peal. ] to the Supreme Court of Xova Scot ia, w liicli 

(1)1 ri' Simon Frnser, I R & (!., XA), | contirmed the judgment. 

Finscr V. Tiipper. Jl^f Jiim , ISSO, I ,Scc. 7.'), of c. 'M, of 4tli R. S., eiiarts that " it 

Cas. Digest, •240. ' shall be lawful for the Court or a .liidge. upon 

such terms as to costs or otherwise as they 

sliall think lit, at anv time w itiiin one vear after 

8. Court E(|lially Dlvidod Now Trial ,i,„a judgment, to let in the defcndalit in any 
ordered Th.> Coint l„iiig cjiially divi.led, a ,^,.,i,,,, „r appeal to defend the .same, upon an 
new t rial was or.I.rcd. apiilication. supported by sati.sfactorv atiidavits. 

Thr C,mU'<l,ralu.n Lif,' Amnwtwi) of Cmmln .„.,.,„„„i„^, f,„. |,is noii-ai.i.earance, and dis- 
V. 07;o»/«'//. i;{S. C. R., •_>!«. ^.j^^_^jli^ ,^ defence up.m tlie merits witiitiie 

j particular grounds thereof : and atiidavits shall 

„ _, ., _ .... „ , , - ., Hot be receiveil in re])ly unless the Coiilt or 

ft. Elcrtlon Trl tion Extcns on of lime , , , „ ,, it,. 

^, . n T , T^ t> ^. Judge shall otiierw ise order. 

tor service -Discretion ot Judge -K. a. (J., ,, ,, ^i o ,• j r /~< i 

- .. , , , . On (ipiipiil to the Supreme ( ourt of Ciiuddii, 

c. 9. s. 10 — .\n order exteiidiii}.' lime for service ,, , , , , ■ i . i ir 

., , 7, , . , . y/,/f/, that ilie ludgmentaj)l)ealedfroni wasiiot 

of an election iietition (ilfd at Malitax from hve ., , . , .., . ., ■ r •> 

., .r 1 , ,11 'I hiial pidgmeiit within the meaning ot sec .1. 

days to hfteen (lavs, on the L'roiind that tlie re- , , '. /, , , . i . i- \^,-,\ 

' '^ f of tiie Supreme ( ourt AmeiKlnient .Act ot ISi'.l. 

spondent was at Ottawa, is a iiroper order for , , , , 

I , , . . , .',.,. and was not aiJlieaiable. 

tie .Judge to make in the exercise ot his discre- ,» . > . .i . !■ ^i /-. . ii . . ■ 

■ Held, nho, that it the Court could entcitiim 

tioii undel- R. S. C., c. !1, s. 10. , i .i ., e \ \ 

. ,„ , , the aiilieal. the matter was one ot lirocedure and 

.9(=«|W. . /,. /• Rituhie. C. J. and Jrelirv, J., that . ',' .... ., ,. .. , ,, ,. 

' , , r entirely within the discretion ot the louit 

the (ourt below had iiower to niakt^ rules for , , " ,,,./, ,. ,, . ■ , t 

, ' , , below, and this C ourt would not intertere. 

the service of an election iietition out of the , i i- • i -.i 

' Alipeal dismissed with costs. 

lUrisdullon. ,^ ,-r; ; • < d « , • 1,'v, 

Pif .Strong, J. — .-Vn extremely strong case ^., , ■ J, , i \- i ,o^. . 

, , , . , ,, (iladinn v. Cummun/s, .Ird i\oiendni\ /."^x,. 

should be sliov.n to induce the Court to allow " ,• i> . oi- 

l as. 1 iigest . _4.>. 

an a|)peal from the judgment of the Court below 

on lueiimiiiary objections. jl^ Interim injunction obtained ex parte 

Rolierlnon v. Laurie ef «/., 14 S. C. R., '2r-,S. _Order dissolving— No appeal from— This was 

an action of trespass, brought by the plaintilf 
10. Final Judgment -- 4tll KCT. Stats., C. against the defendants on the 10th of October, 
94, 8. 56 -Order of a Judge refusing leave to 1884. In the statement of claim plaintiff claimed 
defend, after judgment entered by default— damages for the alleged acts of trespass, and an 
Procedure — This was an action of replevin injunction to restrain the defendants from pro- 
brought in tiie Supreme Court of Nova Scotia | eeeding with the digging of trenches and laying 
by the plaintiffs against the defendant, and of pipes. 



85 APPEAL. 86 

An cr/mr/e rest niiniiig (inUr WiiH ^ri'aiitiMl liy t.1. Orrtor Of Court lipoil l(S OWIl ofllcrr, 

the Chief •Tiistici- of Xovii Scotia, nil tlir apiilim- when obtiunecl by a third jmrty, is a final 

tidii of plaintitV's counsel witlionl nolieo to tlie order appeilable under Sec. 11 oi' 38 Vict., 

defendant, and on tile atlidavit of t lie plaintitl' c. 11 — Interest on deposit in Court I'lidcr .'U 

alone. ^■ict., c. I'J, aiiil 'M Vict., c. l."{, the Mjni^teI• of 

On the ISth day of (Iclobci. notice of motion ].||),li(. Works of the I)oininion of ( aiiad i a))- 

was .served on tiie jdaintitr to set asi.le said ,„.„,„.iatc.l to the use of tiie DoiiiiMioii certain 

restraining order, and on aignineiit of tiie motion |.„„|,, ;„ v„rniontli ( •..iinty, known as " I'.iiiiker's 

liefore Mr. Jnstiee Tlioni)).son, an order passe.l jsland." In accordance witli said .Acts, on the 

on tiie '.'.'.ti: day of Octolier, I.S,S4.dissolvinj,'said -j,,,] Ajiril, A. 1). IST.'i, lie paid into the liaiids 

''i.i'i'"'i""- of \V., prothonotary at Halifax, the sum of 

Kroiii this order the jilaiiititV appealed to the .stJ.lsO as eoinpeiisation and interest, as ]iiovided 

.Viiprcnie Court of Nova S.'olia siltiny /// /w»c(> ],y ,i,„^,, _\^.ts, to be thereafter approiiriated 

On lliel.'4tii .laniiary, ISS.'., tliat Court made an ,,iiiont; the owners of said island. This sum was 

order dismissing tlie said appeal. |,,^j,l .^^ ^..veral times, by onler of the .'Supreme 

0„ fi/>/i'ii/ /n /Ik Siipnwi r,„irf <i/<'>nif,i/ii. (.,„„., „f _y,,^..^ Scotia, to one A., as own.r. to 

J/M, that theorder of the .Snpr.nie C.mrt of one (i., as iv.ortgigee, and to others eiiti'led, less 

Nova Scotia was not one from uliid, an .ii-peal „,„ ,i,,iiars. As the money had remained in the 

wmdd lie. hands of \V.. tlie lu-othonotarv of the Court, for 

hiiiriivi/ \ . J)i< /iSini, S//i A/Ill/, ISS.'i ,, ,, ,. ■ 11, .1 

• • .some time. M., attorney tor (..,ap]ilied to the 

(as. Kiliest. 'J.'lll. , . . <■ 1 c .1 /• . II- 

Sn|iremi' ( oiirt for .in ruder ot the ( ourt calling 

!'.!. liSU'llOS Poinf of prarlice -.\ can.sc njion \V.. the prothonotary, to imy over the 

liciiii.' tricil lieforc the .liidi.e without jury, a interest njioii (i.'s proportion of the moneys 

linding for defendant was lileil December ."ith. which interest (Fl. was intorined) had liceii le- 

aiid a rule beiiii; refused was taken out under c<Mved by the prothonotary from the bank wiieie 

llic>latut<' 1>ecemlier llth. w iiiih rule was. on he ii.id pl.iced tiie amount on deposit. W. re- 

.lanii.iry 4th. dis(ji;,ii.'ed. tiif liail-liond lieiiig sisted the application, on the ground that he 

difcilive. I'lainliir gave notice of appeal .lanii- was not answerable to the jiroprielor <if the 

ary I'itli, aiiil on the same day obtaineil a rule ))rineipal. or to the Court, for interest, but did 

)i/.</ for ,1 double ap))eal from the decision refusing not i!en\ that interest had been received by him. 

to L;i:iiit a riih iii.<i. and t lie decision pronouncing .\ rule ni-o was granted liy the ( 'ouit and made 

llic bail insnliicieiit. (.lanuary 4th.) The Court ab.solute. ordering the iirothonotary to )>ay 

discharged the rile on the ground. — as to the whatever i.ite of interest he received on the 

lir.-l appeal, that the notice was too late under aiiioiint. 

the I>oni. .\ct of bST.'i. c. II. s. "Jl. and, as to Hi'l(l~\. That the iirothonotary was not eii- 

ihe second, that it was an appeal on .i ]ioint of titled toaliy interest which the amount de]iosited 

practice, involving, it was true, a liiial juilgnieiit. earne(l while under the control of the Court, 

but a judgment given December ."it h. and left to That, in ordering the ]irothoiiotary to )iay over 

its operation by plaintitV's ilefault. the interest received by him, the Court was sim- 

Fti7:<itf/i V. Simioiiih, 'A I!. iS; (',. ilT. ply exercising the summaiy jurisdiction which 

1:{. Xew trial ordorcd by Court below ^■'"'■'' "^ "'" -^'Mx^^'i.ir Comts has ..ver all its im- 

Verdict against weight of evidence //W</, ""■''*''"' "*"'''''^- "'">"""•■• "'"' "^■"'y' •^•^■' 

that the Suineiiie Court will not hear an ai>peal '''•«''"''''.'/• 

when, the Court below, in the exercise of its -• ''"''^" t''^' '"'''■'■ ^'l'l"'''l'"l f'">". l'<'i"K ^ 

discrction.hasordered a new trial on the ground •'''^•i^'"" '"> '"' 'q'!''"^^-^''"" '-y a third party to 

that th. verdict is against thewei^dit of evi- ""' <"<"t. wa.s appealable under the llth .see. 

, I, ,,„,,, of .'{.S Vict., e. 11, Fournier, .1., f//s.<(')//im/, and 

lu<r,-k„ Woo/iei, Mills Co. v. .l/i«,s 1 1 S. C. R., !»1. '''•'■^^■I'^^'i''i". •!•• <li'l'if""f>'- 

( In re Ituiikcrs lnhnuK '.\ K. k ('., .'{(iT), 

14. Objcrtton taken for llrst time on n i//,m< v. r,Vv/(/(,?, .s s. ( . K., jo.}. 

appeal — In an action on a bail-bond, the defence 

was, that it, harl been altered after execution, 10. Queen's Counsel, HO pOWer tO ap- 

and that it was not in the form reijuired by the point— 37 Vic., c. 20 and 21, N. S., ultra vires 

statute. //"A/, /»/«/• «/t'/, that the objection as — Letters patent of precedence, not retrospec- 

tn the form of the bond being merely technical tive in their eti'ect — Great Seal of the Province 

and uiiiiieritorious, could not be taken for the of Nova Scotia — 40 Vic, c, 3, D- Appeal — 

first time before the Suiireme Court of Canada. Jurisdiction— My 37 Vic, c. 'JO, X. S., (IS74), 

{ilickif of fil.v. J]'(,o(la-or/het al., ' R. &(',., 'Mi), the Lieutenant-Governor of the Province of 

Woodirnrth v. Dlclii , 14 .S. C. R., 734. Nova Scotia was authorized to appoint Proviu- 



87 



APPEAL. 



88 



ciiil (illu'iTs uiidi'l- till' Miiiiic of lli'f Majesty's 
couiisi'l. Uiinicil ill tlif liiw fdi- tlic I'ldxiiuc. 
liy .T \'ic'., c. •_'!, \. S., (I.S74), tliu Licutinaiit- 
(lovfi'iior was aiitlioi'iwd tii grunt to any nitiii- 
lier iif tin- li.ir a patent nf plfecilcniv' ill tlie 
("dlll'ls lit' the l'l<i\ incc ot' \'(i\a Scotia. 

I!., llie re>|Hiliilclit , Mils a|)])iiililc(l liy llic 
( J(ivi'iiii>i--(lem ral on tliu I'Ttli I )L'it inlicr. Is7"_', 
timlfl' till' ureal Seal of Caiiaila, a (,liieeii's 
counsel. aii4 liy the iinifoiin praeliee of the 
Coiii't he had piviedeiiee over all nieniliers of 
the liar not holding |iatenl,s prior to his own. 
i!y letters patent, dated •.'(Ith of May, IsTli. 
under the lmi'iiI Seal of the l'ro\inee. and >igned 
liy tin' Lieiiteiianl -( iovernor and i'ldvineial Sec' 
ivtary, .several nieiiilpcrs of the liar u ere appoint- 
ed <,»IU'en's eoMllsel for Xova Seotia. and prered- 
ellee was granled to tlielii. as well astootiier 
(^•ueen's Coinisel appointed hy the (eisiinoi- 
(ielieral after the 1st of .Inly, |S(I7. A list of 
<^(lieeli"s ( 'oiin.vel to wiioiii precedenre iiad heen 
thus gi>-eii hy the l.ieiileiiant-l io\ eriic!i'. was 
jniliiished in the lioijttl (!a~vtlvt\i the '.'Tth May, 
l.STli. iuid the name of i;.. the rfs])(indeiit , was 
ineliided ill tin list, Init it gave preeedenee and 
pre-audieiiie Ijefore hiiii to several persons, in- 
eluding ajipellants, who did not enjoy it liefoie. 

rpoii alliilavits disrlosing the aliovt' and other 
faets, and on produeing the original coinniissioii 
and letters jiatelil, !■[., on the .'frd .laiuiary, 
KS77, obtained a rule //Mj to grant him rank and 
preeeileiiee overall (^liieen's ( 'oiinsel appointed 
in and for the I'rovineu of Xova Scotia since the 
'2(itli Deeeinlier, lS7l>, and to set asiile. so far as 
they atFected ii's precedence, the letters jiatent 
dateil the '-'(ith .May, lS7li. This rule was made 
alisoliite hy the Siipreine Court of N'ova .Scotia 
on the'JIith .March, 1S77, iiiid the decision of that 
Court \ias in snlistaiiee as follows: — 1. That 
tlielelte;s patent of precedence, issued liy the 
Lieutenant-* iovernor of Xova .Scotia, were not 
issued under the great seal of the Province of 
Xova ,Scoti;i : '_'. That .•{7 N'ie. o. ■_'(! ^S: 'JI , of the 
Acts of Xova .Scotia, were not nUra lircs ; 
3. Tlmt sec. L*. c. •_>], ;{7 \[c. was not retro- 
peetivc ill its ell'ects and that the letters patent 
of the 'Jdt.h .May, IS7(>, issiieil under that Act 
could not atlect the precedence of the respondent. 

On 'lie argument in apjieal liefore the Su]ireine 
Court of Canada the (luestion of the validity of 
the great sealof tlie Province of Xova Scotia was 
declared to liavc heeii settled liy legislation, 40 
Vie. c. 3, 1). and 4(1 Vic. c. 2, X. ,S. A pre- 
liniinarv olijcction was raised to the jurisdiction 
of the Cfiurt to hear the appeal. 

Held, 1. That the judgment of the Court below 
was one from which an appeal would lie to the 
Supreme Court of Canada. P'ournier, J., (lis- 
aentiny. 



•J. /'cr St rung. l''oiirnierandTasclicreau,.)J.— 
That c. •.'!, .'(7 \'ic. X. S., has not a retrospec- 
tive ell'ect, and that till' letters patent issued 
under the authority of that .Vet could not atlect 
the preceileiice of the (,>iieeirs Coiiiis(d a|ipoilited 
liy the ( 'row 11. 

;{. Per Henry, Taschereaii and <l\\ynn, .1.1. 
--That the liiitish Xorlh .\nierica Act has not 
investi'd the Legislatures of the I'idviiices with 
any control over Ilie appointment of (,>ueeii'8 
( 'oiiiisel, and as Her .Majesty forms no ])art of 
the I'ldvineial Legislatures as she does of the 
|)oniiiiion Parliament, no .\ct of any such Local 
Legislature can ill any niaiiner iin|)air or atlect 
her prerogative right toiqipoiiit (Jticen's Counsel 
ill ( .inada directly, or through her representa- 
tive the ( iovernor-< ieiieral, or vest such ])rero- 
gative right in the Lieiiteiiaiit-( loveriiors of tlie 
Provinces ; and that .■!7 \'ie. e. •_'(! and •_'! N'. S. 
are iilini cires and void. 

4. /'• /■ .Strong ainl [•"oiiiiiier, .1.1.- -That as 
this Court ought never, except in eases when 
such adjudication is indispensalilc to the ileci- 
sioii of a cause, to pronounce upon the constitu- 
tional power of a Legislature to pass a statute, 
there was no necessity in this case to e.vpress an 
opinion upon the validity of the acts in ipics- 
tioii. 

( Li rr I'rerclnwe of Jiitchic '2 R. it ('., 4.")0), 
LciHiirw llililiie, .'< .S, C. P,,, ,")7."). 

II. Kaihvay .Vets of Xova Scotla-Rall- 

way, appraisement of lands for -Order to set 
aside proceedings- Estoppel -Judgment not 
appealable This was an ap))lication to the .Su- 
preme Court of Xova Scotia, asking it to set aside, 
in a smimi.iry manner, the whol(Mi])i)i'aiseinent of 
land damages awarded to lie Jiaid by the County 
to the sexcral proprietors of lands in I'ictou 
County, whose lands had been e.xjiropriated for 
the line of railway extending from Xew (llasgow, 
in Pictou County, to the Strait of Canso, and 
known as the Eastern Extension. This appraise- 
ment was made on the assuui)ition tlvat uiuler 
the contract with the Xova Scotia goveijiment 
for the ciiiistruction of this line of railway, and 
the .statutes relating thereto, and providing for 
the expropriation of lands for right of way, etc., 
appraisement of damages or eonipensation to 
the proprietors, and payment thereof, the right 
of way was furnished to the company free, and 
the compensation for land damages was to be 
paiil after appraisement in the manner pre- 
scribed, by the custos of the various counties 
through which the line ran, issuing debentures 
for the amounts due to the proprietors, which 
debentures were to be redeemed by means of 
local taxation. 

Before tlie Provincial Government of Xova. 



«9 



APPKAL 



•JO 



Scdtiii liad c'litiTfil into tlic ccnitiMct for tlic 
constnictioii nf tlic Km.sUiii Kxtfiisiiiu line, iunl 
while tliey wiiv iiti,'iitiiitiiij,' lliircfor. lliu Novii 
Srotia L(jj:isliiiiiii', oil tlif 4ili Ajiril, l.s7(i, 

passcil i:. ,'i nt the Acts (if ISTl), In I'll- 
alilu llii; gdvoriiiiiciit to I'liliT into a coMti.ut 
for tliu coiistriR'tioii of tliis liiif of lailuay, ami 
made provision tluTi'liy for the |)ayiiifiit of a 
siilisiily ami ^'raiit.s of laml to tliosi.' uiulcrlakiiiL; 
it, aiiil for the cxiiroiiriatioii of laml for the 
i-i;,'lil of «ay for tiic liiii'. 

On lli(,' .same date, e. 74 <if llie A<ts of ls7(i, 
was pasNcd, and, in onler to incorporate and 
),'ive any eontraelors whose tender for construc- 
tion siionld thereafter lie accepted the same 
eorporalu jiowers and jirivileges as those iiieii- 
tioiied in V. 74, e. 4 of tile Acts of lS7t) was 
|)assed, 

i'.y sec. 'Mi of c. 74, ami also hy see. (i of i-, .'i 
of the Acts of IS7(i, certain sections of >■, ~l) of 
;{i(l It. .S., are incorporated in these enactments 
and iiiaile applicalile to this line of railway, 
which sections more particularly relate to the 
liiiide of aeipiiring lands for tiie rii,'lil of way, 
stations, etc., tile jirocediire for appraising 
<laiiuiges, and the mode of assessing the various 
counties f(jr the jiaynieiit of the amounts 
awarded. 

('. 7'>of .Srd R. .S. eoni])rises in consolidated 
form all enactments in force in Nova ."scotia at 
that date, relating to provincial railways. For 
convenience, the various railway eoniiiaiiies in 
Xova .Seolia, such as the Wimlsor and Annapolis 
Railway t'oni])a'.iy, the Western ('(unities Rail- 
way Conijiaiiy ( .^^ i c. ;{4, Acts of KSliS ; e. SI, 
Acts of l,S7<t), have, in obtaining their acts of 
incorporation, availed themselves of similar 
clauses from e. 7<l(jf ,'ird R. ,S., Iiy e.xiiress enact- 
iMcnt, without rejieating tlieiii in the Act or 
))idviding other niachinery for the e\|(ro]iriation 
of lands, and the ascertaining of land damages. 
Wiicii the 4tli scries of the Rev. .Slats, was 
]iieiiare(l, certain Acts of the Province not re- 
enacted were continued in force, and among 
them so mtich of e. 70 of the 3rd .series as was 
therein specitied (■■«i the Act to provide for the 
puhlication of the t'on.solidated .Statutes, .SOth 
Ajiril, 1.S7.S, 4tli R. S , jiage •_>). 

Mr. Harry Alibott, having entered into the con- 
tract with the government for the construction of 
this line, sought, under e. 4 of the Acts of 1 870, in- 
corporation and the benefit of the provisions of o. 
74 of Acts of 187(), and obtained a certificate of 
incorporation under the name of the Halifax 
and Cape Breton Railway and Coal Comp,iny. 

The Company was organized under this Act, 
iuid the right of way having been obtained under 
tiie statutes, the damages were appraised and the 
^V(irk of construction began and was carried on. 



In |S77 an order was made liy t he ( 'hicf .1 lls- 
ticc of the Supreme ( 'ourt of .Nova Scotia, on t he 
])etitioii of a number of the properly owners 
whose lands would lie atlected by the building 
of the railway, directing the ])roth(inotary of the 
1 oiinty to draw and strike a jury, under t he pro- 
\ isioiis of c. ~{) of .'ird R. .S., to appraise the 
lands and property taken for the purpiisc of the 
Ivistern Kxtciision Railway. 

In IS7S a rule ;/(.•!( was taken to set aside the 
whole proceedings, but a year later it was dis- 
charged on mot ion of the party who had obtained 

it. 

A (|Uestion having been raised as to llu^ 

validity of the incorporation of the (dmpaiiy 
under c. 4 of the Acts of I.S7ti, by the Local 
(lovernment, and legislation being about to be 
passi'd to remove such doubts, another rule was 
obtained in 1S70, on the gromid that llie Hali- 
fax and Cape Rretoii Railway and Coal Coinp.iny 
had no h'gal existence. After the .irgumcnt of 
this rule, and before judgment, elia|)teis lib and 
70 of the.\cts of 1S7!) were passed by the bcgis- 
latuie of Xova Scotia. After hearing the custos 
of the ( 'oiiiity by counsel liefore a committee of 
the Legislature, two sections of the Ad were 
added in the interest of liie County. 

'I'lie .Supreme Court of N". S. In/il, that tlie 
(.'oiintyof I'ieton was estojiped by these statutes 
last mentioned from disputing the a])praisement 
of the lands taken, and I ly tile issue of debentures 
by the County to ))arties to whom d.unages had 
been awarded for the lands appropriated to the 
railway, some of whicii had liccn iiidoised to 
third parties. 

Oil ii/i/ii'i/ t(i ill' Sii/iri nil Ciiiirl nf ('niinihi. 

Hill/, that the judgment of the Court below 

was not one from w liieh an appeal would lie, there 

being no finality about the order made by the 

Chief .Tust ice of the ('ourt below in |S77. whicli 

was w lull tills appeal sougiil to set aside. 

(Ill re I'ictoii Jidilw.:;/ Dnmiii/i.f, 1 1!. \ <I..44S), 

Hocldn V. Hiilifii.v mul C'li/ic Jiii'loii liiiilirmi 

(iiid Colli Com/xnij/, "ilh Oct. JSSii, 

Cas. Digest, -JH'. 

18. Rule rescinding ex parte order ex- 
tending time for service of petition — S. C. 
A. A. 1879, s. 10 — The petitioner, on an e.v 
parte application to a Judge of the .Su])reiiie 
Court of X. .S., obtained an extension of time 
for service of the jietition. but subse(|ueiitly, on 
application of respondent, on cause shown, the 
Judge rescinded the order asmado improvident- 
ly. (Jn a second application made p.iyj^fWe by 
jietitioner, supiiorted by atiidavits, the Judge 
made another order extending the time. The 
respondent then obtained from the Judge a rule 
nisi to set aside this second order, and such rule 



91 



APPEAL. 



92 



was iiiiiilc iilisdliilf l)y llif full ('i)nit, mi tlie 
griiiind tliiit iill tlic fiu'ts (in \\ liicli tlit' nucihkI 
ui)pli(iiticiii wiis li.isiil wore in tlu' kimw Icdgo nf 
the |i('titi<iii< r w lull tlu' lii.st <i|i|ilicatli>ii was 
iiiaiU'. 

Ilild, l^'cpiiiiiiii' iunl lliiiiy, .J. I., tlisxeiiliiiij, 
tlmt the rule of the Siipiuinu Court of N, S. was 
not a jiulgnii'iit, rule, iinlei-, or ilui'isioii, on a 
jii'i'liniiiiaiy olijwtion from wliicli an a|)|H'ul 
would lie under s. In, S. C. A. A., isTil. 

(Dickie V. U'twil Hill til, 4 K. & (J., l.'tO), 

iKiiii,s CiJ.,y, X., EUiliui, (.'>i,ir), 
Dichif V. U'ooilirorf/i, S S. ('. I!., !!(•_'. 



CliainlieiM the rule must he diawn up upon 
reading all felevanl allidavils w hicli were used 
there in olitaining tiie older ;/ii(. 

Foxier V. Vliainhi'iH, 1 R. k C, 254. 

2. Appeal from JlIStlC«-The atlidavit for 
ajipeal from a liustiie of the I'eaee, in eivil eases, 
must he made hefore t he .lustiee wlio tiied the 

eause. 

Ciii-rii V. Lc<r m, 4 K. & (1., .Si. 

Iiut NM .".th 1!. S,, e. \U-2, s. M, where it is 

provided tiial the atlidavit for appeal or fol' a 

« rit of capias may lie sworn hefore any .lustii;e 

of the I'eai'e. 



1)K KhIp or order setting aside ,|iidji!;inen( 

and execution -Appealalile -T. .1. W. sued l". 
B., and, on !llh .I'ine, IST.'J, F. I!, assigned iiis 
property under tiie Insolvent Aet of IS(i!l. On 
(ith August, 1". I>. lieeame a ]>arty to a deed of 
composition. On tiio 17th Oitolier, F. 11. plead- 
ed />»/.< (Iiirreiii vont iiin<uitf, that sinee action 
eonmienced lie duly assigned undt'i' tlie .U't, and 
that liy deed of eoniposition and diseliarge exe- 
cuted liy his creditors he was dis^/jiarged of all 
lialiility. On liie ISth .Voveinher, 1«7,'?, the In- 
solvent Court contirmed tiie deed of composition 
and F. H.'s ilischarge, hut F. IJ. neglected to 
plead this continuation, .ludgnient wa.s given 
in favor of T. J. W. on tlie ;i(lth .lanuary, 1S74. 
On .'iOth May, l,S7t), an execution under tiic 
judgment was issued, and on the l-'Sth .huie, 
lS7'i, a rule iiiai to set aside proceedings wa.s oli- 
tained ami made ahsolute. 

Jlt'ld, reversing the judgment of the .Supreme 
Court of Nova .Scotia, that F. 15., having neg- 
lected to plead his discharge liefoie judgment, 
as he might have done, was estopjied from set- 
ting it up afterwards to defeat the execution. 
Strong, J., (bm'ntiii:,', on the ground that the 
rule or order of the Court helow was not one 
from which an apjjcal coidd he lirouglit under 
the .Supreme and Kxche<|uei' Court Act. 

Walhce v. Jiussom, (•_' R. & C, 419), 
2S. C. R., 488. 

20. Stay of proceedings on appeal to 

Supreme Court of Canada— Amount of security 
— Wheie judgment is for defendant, and plaintill' 
appe.ding, wishes to stay execution for defend- 
ants" costs, he must give security for ^loO, or 
$'2'i0 in addition to the .S,")()0 prescrihed liy " the : 
Supreme anil Fxchecpier Court Act." 
Keiwei/ (assiynee) v. Dudnian, 2 R. & C, .370. , 

XI.--MISCELLAXEOUS CASES. 

I 

1. Appeal from Judge at Chambers - 1 

Upon an ai)peal from a decision of a Judge at 



:i. An appeal lies to the Supreme Cojurt 

from a conviction for penaltit's under the Do- 
minion Fisheries Act, l,S(i8, c. (iO. 
Smith and .McCuUy, .!.(., (h'MenliiKj. 

(iiieeii V. Todd, I R. &C., 02. 

\. Appellant become insolvent-Ordered 

to give security or assignee to intervene — 
I'laintitls liecame insolvent after an ajipeal was 
taken hy defendant to the .Supreme Comt from 
the judgment of the County Court, setting aside 
pleas. The ( 'oint granted an order preventing 
the cause from hciug proceeded with uidess 
plaintiH's should give security or the assignee 
should intervene. 

Evdns ct id. V. Foster, 1 R. & (•., 0. 

.1. i'anada Temperance Act, 1818 -Pro- 
ceedings of a criminal nature — Appeal from 
refusal of Judge to allow writ of certiorari — 

Ih'fendant having heen convicted of selling 
intoxicating liipior contrary to the provisions of 
the Canada Temperance Act, 1878, application 
was made to a Judge of the .Supreme Comt, at 
Chandlers, for a writ of certiorari to remove 
the proceedings into the .Supreme Court. The 
api)lieation having been refused, defendant 
aiipealed. 

Held, that the matter was a criminal one, from 
which there was no appeal. 

The appeal having been dismissed on a pre- 
liminary olijection, of which no notice had heen 
given, the order was made without costs. 

Queen v. Cril/ioun et <tl., 20 N. S. R., 
(8 R. k C), .39.5 ; 9 C. L. T., 02. 

6. Certiorari — Application for to single 

Judge and afterwards to Court — Discretion — 
Appeal — The defendants E. R. and H. R. his 
wife were jointly convicted hefore the Stipen- 
diary Magistrate for Police District No. 3 in the 
Comity of Annajiolis, for having wantonly, 
cruelly and unnecessarily beaten, ill-used and 



!).S 



APPEAL. 



di 



iilmsi'il II i)ikir "f "xeu, lliu propi'i-ty of .1. W. 1)., 
iiiiil fi>r siioh ort'eiioe were luljudged to piiy ii tiiu' 
(■f S'2>1 with .'?'2'-'.4tl for coHtH, iiiul, in ilffiiult, to 
lie iin|iris(mi'il, vt<:. Tlu! i-'iuisu oiiiiii! licfori' tlio 
( 'oiirt on iiiipcal from the refuwiil of a Jnd^'e to 
iillow IV writ of cer/ivrari, hnt a prdiniiiiiiry ol)- , 
jfitioii liivvinj; lieen taken to the a])peal in such I 
a rase, an a](])liialioM was made to t lie full Court 
for a vcitiorttii on the same yiounds and alli- 
ilii^its, 

WcA/, /)(■/■ McDonald, l'. J., and TownMheiul, 
.1., that it was open to the defendants to make 
surli an ap])lieation. 

Aho. that the otleiiee of wliieh the clefendanls 
were eonvieted was one wliieii was siii),de in its 
Mutui'i', and for which only one Jienalty eonld lie 
awarded, Imt that tlie awanl of one line aj,'ainst 
the t\\(i defendants was erroneous, and on this 
gi'ound, that the ccrtiiiriiri s\um\i\ issue. 

Per McDonald, .(., that the ordei- of the single 
.Indge eould not he got rid of exeept by way of 
appeal, the law eonstitiiting a single .Fudge in 
such eases a tribunal with original jniisdietion 
(■(jllal to that c)f the full Court. 

.•|/,sw. that the allowance or disallowance of 
the ccr/lon.-.'-l was entii'ely a matter within the 
dis<ietion of the Court or .fmlge applied to, ami 
sucii ilisiTetion having heeii exei'cised, the Court 
wonlil not lie justilied in overruling his onler. 

i<'r Ritchie, ,J., that the api)lieation to the 
full Court should iiot he cnteitained unless ii 
weie shown that the right of a)>i)eal had Keen lost. 

Aho, that the allowance or disallowance of the 
writ was a matter of discretion from which there 
was no ap|)eal. 

hi re Rice, 'iU N. S. 1^., (S R. \- ( J, ), -Jilf ; 
8C. L. 'I'., 4-l,S. 

t. Costs ill criminal cnsos- Order reriis< 

ing writ with costs held bad in criminal case 
—Application to rescind portion of order as to 
costs sustained— Defendaiit having Iteeu con- 
victed of an otl'ence under the Dominion Statute 
iu relation to cruelty to animals, an application 
was made to a .Fudge of the .Supreme Court for an 
order for a writ of rerfiorari to remove the con- , 
viction into the Sujjreme Court. 

An order having been made refusing the order 
apitlied for with costs. 

Held, that, the otfence being clearly of a crimi- 
nal nature, in the absence of any authority 
authorizing the .Judge to impose costs or of any 
hail or recognizance to pay them, the defendants 
coidd not he made to pay the costs of opposing 
the order for the certiorari. 

An application was made to the Court to re- 
scind that portion of the order relating to costs, 
a similar application having been made to the 
Judge and refused. 



Held, that there being clearly no appeal in 
such a case under the .Fudicaturc Actund H\des, 
the course adopted by the <lefendant's counsel of 
appljing to the Court to rescind «as the proper 
one. 

in re Hue, 'JO X. S. R.,t H R. .t (i.), 4;i7 ; 
OC. L. I'., IDS. 

8. t'osis Leave to enter uu payment of- 

Failure to pay— Appeal dismissed — Appeal dis- 
missed, M here appellant, ha\ ing neglected to 
enter the ajipcal in time, obtained a lule to enter 
the cause on payment of costs, which appellant 
failed to pay. 

' Jo/iiiKton V. McLean, 4 R. i\; (!., ',11, 

9. Kx parte order for e\ten.sioii of time 

for appeal Set aside - .Vn (jrdei allow ing [ilain- 
till'an extension of lime for appeal having been 
granted e.v fxiile, wher'j the )ilaiutiir was out of 
the jurisdiction, and defendant might have ap- 
plied for further security for costs. 'I'heonler 
was (juashed. 

Kut plaint ill', not having reieiveil notice of 
the decision from the I'ldthonotary in time to 
enable him to appeal, was allowed time for that 
purpose on giving sectu'ity. 

Jliircliiu v. Jitinliiii, I R. i\: (i., ■_'(!; 
7 C. L. 'I'., .VJ. 

10. Habeas Corpus — Order in nature — 

No appeal from — Section (i of cha[)ter !I4, 4th 
H. .S., giving an ajjjieal fiom the decisions and 
jmlgiucnts of a .ludge at L'handier.s, does not ap- 
ply to an order in the nature of a writ of Imbeds 
cor/ms granted by a. Fudge uiuler sec. ,Sof cap. !)!), 
4th R. S., '• t)f Securing the Liberty of the Sub- 
ject." 

In re A. L. McKenzie, •_' R. & (!., 4Sl. 

11. Xo one appearin;;: for appellant- Xo 

oneapl)eai'ing for ap|)ellanl, defendant, plain tilt's 
counsel was directed to argue the case on behalf 
of respondent. 

CItipnuin v. (ioeaza et <il., "J R. & (i., 181 ; 

1 C. L. T. , tJU.S. 

12. Kule granted dnrlng trial — Motion 

to rescind refused by full Court — Treated as a 
ruling of presiding Judge and to be reviewed 
as such — An order was made for a commission 
to examine a w itness dated on the day when the 
Court was sitting in banco and signed by the 
prothonotary in the usual form of orders granted 
by the Court. 

//(■/(/, that as the order was granted by the 
■Judge befoi-e whom the cause was tried, and 
signed by the prothonotary at his instance, it 



!).') 



ARUITIIATION AND AWARD. 



0(J 



lllllMt III' ciiiisidiifd iin iiii iitiliT lIlMili' Ipy tin' 

C'liiiit. Kijiiliy. .!., i/iii.<ni/iiii/. 

(Jiiir/; V. Tiriiiiiii/ vt tii. ,"> It. .V U., .Vi4. 

I'OI! LIST OK CASKS AI'I'KALK1> lO IIIK 
SL'l'NKMK (OIKI' OK CANADA 
.Sm AIM'KNDIX. 



AI'PKAKA\(K. 
1. Want <»f service «f rule -Waived b) 

ai)iii.'iiriiit; to tuku tluit obji-ction. On tlic ai- 
^'iiiiu'iit iif II rule iiiai tn (|liasli a ii'itioiiiri, llii' 
iittoiMi'v who hail taki'ii out tlio writ, on wiiidi 
III) attoiiii'yV iiaiiiL' appcart'd, stati'd that he did 
nut ap))rai' to show causf, liuoaiKsu tliu ink', as 
he roiitcndfd. had not lii'cn scrvud. 

Hflil, that the ohjci'tion to tlu' sfivifc of thi' 
I'ldf had lifun waivfd liy iIk' altoini'y's appear- 
ing. 



API'UAISEMENT. 
I. or lanilN-Keeond C'»sIn on ( ommis. 

sioncr.s wiic aplioinlcil inidcf an Ai t to leap 
praise lan<ls taken for railway purpo^es in Uigliy 
('iinnty,and it was pro\ idcd l>y I he. Vet that llie 
reappraisenient, "together with the eosts here- 
tofore ineurrecl," should lie a eounty eharge. 

Ilelit, that the eosts for serviees liefore the 
eoniinissioiiers for re-appraisen)ent could not Ke 
ta.xeil, iVM the Act provided only foi' those ineurred 
))rior to its )iassing. 

line Wi'slnn Coiiiilieii J{(n/iriii/,e.i /xn/r llnnli/. 

I It. \ (;., ITii. 

*i. Proof of Appraisers having been 

sworn Attachment— When the apprai.seinent 

shows that the appiaisers were sworn, and the 

Sheriff's return refers m theajipraisers' warianl, 

the sweaiing of the api)raiseis sullieiently 

appears. 

7/.e McirliiiiitK' Jinn/.- w The Steel Co. of 

Cdiiaild (I.iiiiitc(l), .") K. & (;.. -J.-iH. 

.SV«. <(/.so, SHIl'I'IXO. 



1. EfTeet of appearance on (iiiestion of 

jurisdiction I'lainiill. doing 'aisiness in the 
.State iif New N'olk, issued an altachineiil against 
dtfeiiilant, a dealer in preserved goods, residing 
in .Maine, as an alisent ilelitor. It appeared that 
defentlant had for several years eontinnously 
carried on Itusiuess, through agents, at .Salilu 
Island and other jilaees in Xova Seotia, which ; 
defendant admitted t hat he occasionally visited 
ill prosei'Utioii of his luisiness, remaining a few 
davs. One of the jilaintill's swore that a eoii- 
sideralile portion of the claim was for iiioucy 
ailvaiiced to eiiahle defendant to carry on his 
business in Xova .Scutia, and that he verily 
})elieved that a large part, if not ;hc whole 
claim, arose in X'ova Scotia. Defendant swore 
that no i)art of the claim in suit could lie for 
indelitedness contnicted in Xfiva .Scotia, and 
that he hail not carried on any business with 
plaiiititf within the Province since the date of 
the tirst item in the jiarticulars of demand. 

Held, liy Desliarres, .)., (who delivered the 
juuginent of the Court), that facts had l)een 
.■^worn to by plaintitl' which, if tiiie, gave the 
Court jurisdiction, that it was not for the Court 
to look at conllicliiig statements in the atlidavits, 
and further that defendant could not raise the 
«luestion of jurisdiction after having tiled an 
appearance. Wilkiius, .1., dmentini/. 

DuiUet) el ai. v. Jones, 1 R. & C, 300. 

3. To Writ of Summon8-&e PRACTICE. 



APPROPRIATION OF PAYMEXTS- 

Ste LIMITATIONS OK A('TlOXS AND 
SL'ITS. 



ARBITRATION AND AWARD. 

1. Appraisers- 10 Vic., c. 2, s. 19, N. S.- 

Urapire chosen after disagreement — A statute 
directed that each party should choose an ap- 
praiser, and that the two a])praisei's so chosen 
should select a third, and that the three so 
selected shoulil determine the matter in contro- 
versy, the decision agreed on by two of them to 
be binding. The two appraisers attempted, 
without appointing a third, to make the ap- 
])raisement ; but, disagreeing, finally a})j)ointed 
a third. An appraisement agreed upon by this 
third and one of the others was sustained. 

In re Keimji, 1 Thorn., 14. 

2. Arbitrator- Connected Mith suit at bar 

— An award was made by the arbitrator in 
favor of the defendant. Subseijuently to the 
award being made it was discovereil by the 
phiintiff 's counsel that the arbitrator, a juilge of 
the County Court, had, while at the bar, pre- 
pared and read an afhdavit o[)posing a motion 
made by plaintiti's counsel for a reference. 



!)7 



ARBITRATION AND AWARD. 



98 



Tilt' iirliitl'iitiT HWdi'e tlmt lie Imd no I'ufolli'c- 
tioii of tliu liriuiiKstaiui'.s wIrmi he coiisuiiUmI 
to iut, iilitl liiiil lieviT liui'ii consulted ii|ion lliu 
iiii'litMof tliu ciUl.Mi.', ami tli.it if In: liiul opposcil 
Ihu iiKitioii ri'fitnt'd to liti iiiul ilonu no, not ii|)on 
tlie ileft'ii<liint's ri'tiiiiit!!', nor im liis counsel, l)iit 
iiitrely iiH a fiiemlly aut for tliu tlufumlant'H 
iiitointv. Hfld, tliat tlio urbiti'utor was not 
clisijiialilii'il, 

M r Leila lulet iil. v. Ji'iiiieft, 1 R. & (',., ,J2. 

3. Arbitrator dl»i(|uallllcd - Having been 

retained as solicitor— Award set u.iide on the 
ground that one of the arhitrators was disijuali- 
tit'd, iiaving heen rcgidarly retained as solicitor 
of the estate of which the defendant was the 
executor, although said arliiliator liad not heen 
engaged as counsel or attiaiiey in tiie matter 
referred, ami did not concur in the award. 
Suiitiwr et al. V. Harnhi/l, Exccvlor, 

.SR. &C., 501. 

4. Arbitration -Jury demandod-Plea of 

negligence— Rule to refer upheld— Defendant 
iilij)ealc<l from an order referring a cause to 
arliitnition at the instance of plaintiH', on the 
ground that tliere was a plea of negligence in 
the conduct of tlio services for which the action 
was l)rought, hut it was not shown that the 
defence would really lie raised. It was also 
argued that the .Iiulge hail iu> jurisdiction to 
r'jfer the cause to arl)itration after a demand 
made for trial hy jury, but this grouiul was not 
taken in llie rule for appeal. 
Tlie appeal was dismissed. 

Euton V. lioue, ,3 R. & G., 274. 

a. Arbitration -Umpire cbosen after ex* 

amination of witnesses— Parties excluded — 

Ailjitrators chosen by the parties, after having 
exauiiued the witnesses on both sides, selected 
an umpire, refused to have plaintirt's witnesses 
reexamined before the umpire, but re-examined 
tlie defendant's witnesses, and gave an award for 
the defendant. The Court would not sujjport 
tlie award. The exclusion of the parties during 
the examination of the witness before arbitrators 
will not necessarily invalidate the award. 

Moore v. Powley, 1 Thom., (1st Ed.), 87; 
(2nd Ed.), 115. 

6. Award - Altering - Matters not sub- 

mitted — Witnesses not sworn — Waiver - 
Arbitrators having once made and published 
their award cannot subsequently alter it. 

An award will not be set aside on account of 
the omission of the arbitrators to decide on 
matters not submitted to them previous to the 



nuiking of the a«ard. If parties to an arbitra- 
tion kno>N'iiigly permit the arbitrators to examine 
witnesses without oath, antl do not object at the 
time, such f)inission is not a ground for setting 

aside their award. 

Iftuidvn V. Jhinii, James, 250. 

7. Award -Amount below $'20 -No Juris- 
diction in Supreme Court to order judgPicnt 
entered- Submission " that judgment slicadd be 
entered thereon with costs for the j)arty in whose 
favor the award should lie made." Award 
(made a rule of Court under 4tii K. S., cli. 109), 
contain!, ig the following findings ; — 

" 1. That it was not justitial)le for Watson 
Katon to adxertise doing business in the Colonial 
Market. 

" 2. That Stewart's rent should be increased 
one hundred dollars per aiuium. 

"3. That .Stewart should deliver no ♦ I^aion 
any of Eaton's guarantees then held by Stewart. 

"4. That the debts due and owing the late 
firm of Stewart & Eaton, amounting to .*8U.y4, 
be c(dlectcd by Eaton and retained by him for 
his own use. 

" '}. That tlie balance due an<l owing by 
Stewart to Eaton amounts to !iiil6.7li, which 
Stewart is to jjay to Eaton at once. 

" (). That the expenses in comiection with 
the arbitration and law expenses should be borne 
eipially by Stewart and Eaton." 

Ill Id, that the Court could not enter judgment, 
as the oidy amount directly awarded in money 
to be recovered l)y Eaton from Stewart was 
810.70, which being under 820, was below the 
jurisdiction of the Court. 

Ill re He/trtiin Utween Eaton atid Steimrf, 

2 R. & C, 392 

8. Award — Enforcing obedience to— 4th 

R. S., c. 109, s. 22, same as 5th R. S., c, 115, 
s. 22— The power conferred on the Court by 
Revised Statutes, chapter 109, section 22, to en- 
force obedience to an award made under a 
voluntary submission cannot be exercised by a, 
Judge at Chambers 
Sir William Young, C. J., dmevliiiij. 

Collie v. Moreii, 1 R. & G., 427. 

9. Award— Enterlngjudgment on— A rule 

absolute in the first instance will not be granted 

to enter judgment upon an award given under a 

submission which was made a rule of the Court. 

Young v. De ]Vol/, 3 N. S. D., 453. 

10. Award— Entry of Judgment upon— 

Costs — Plaintiff had a claim against defendant 
for counsel fees, which was submitted to an arbi- 
trator, who made an award in plaintiff 's favor 



99 



ARBITRATION AND AWARD. 



100 



for 8184, on which judgment was entered. Sub- 
sequently an agreement was entered into reciting 
a judgment for l?18-t witliout any reference to 
costs, and the matter was submitted to a second 
arbitrator, wlio awarded tlie plaintiff the sum 
of 8104 " in full of all claims and demands of 
eithei party against the other." 

I'laintiff entered judgment for the amount so 
awarded with 879.80 costs of the original suit, 
and 824.60 for interest, 

The Court refused to set the judgment aside. 
McDmiald v. McKtiizu', '20 X. S. R., 
(8R. &«.), '29L>; 
8 C. L. T., 449. 

11. Award— Entry of Judgment on— Dis- 
cretion of Judge as to costs — Judgment was 
entered for defendant in the County Court, with 
the general costs in the cause, on an award made 
in his favor. Tlie learned judge allowed an 
aj)peal on the two points ; 1st, as to wliether 
the plaintiff should have been allowed costs ; 
and, 2nd, whether the amount allowed was 
excessive. 

Held, dismissing the appeal, that what and 
how much the Judge should allow -was entirely 
a matter of discretion. 

Boiuiett V, Chesley, 7 R. & G., 184 ; 
7C. L. T,,249. 

12. Award — Failure to sustain grounds 

of attack — Plaintiff' sought to set a.-iide an 
award made in the defendant's favor on three 
grounds; (1), misconduct on the part of tlie 
arbitrator ; (2), refusal to receive evidence 
for the plaintiff; and (3), the examination of 
a witness for the defence in the plaintiff's 
absence. 

The Court being of the opinion tliat plaintiff 
had entirely failed on all his grounds the rule 
to set aside the award was discharged with 
costs. 

Layton v. McLean, 3 N. S. D., 545. 

13. Award— Flnalty of-Excess of autho- 
rity in giving costs — Rule of Court for refer- 
ence ordering inttr alia: 

I ft. " Tliat the arbitrators shall liave power, 
&o., to examine, &c., and make an award either 
separately or in one, of and concerning all 
accounts respecting the receipts and disburse- 
ments of moneys received from the interest, 
renting and sale of the Glebe and Church lands 
and the buildings thereon at I'arrsboro' by the 
late Rev, W. B. K., or his agents, or by the 
defendant as his executrix, and all and every 
matter connected therewith, or pending of and 
between the said Parish of St. G. and the said 



I W. B. K., or the defendant as executrix or 
.otherwise." Award "that the defendant do 
pay to the plaintiffs the sum of one dolhir in 
, full of tlie same. " 

j 1 b. "That the said arbitrators, & , shall 

have power to order judgment to be eateiod in 

this cause either for the plaintiffs or the defendant 

with or without costs, or to order judgment 

to be entered lioth for plaintiffs and defen<lant, 

i with or without costs, as they shall find the 

I several issues either for or against either party." 

Award "that judgment be entered for the 

plaintiffs for tlie sum of one dollar, and that 

I the defendant pay all the costs of the reference 

I and award. " 

[ 2. " That the said arbitrators shall liave the 
like power, &c., to hear, &c. , and make an 
award of ami concerning the receijit and dis- 
bursement of moneys received for the sale of the 
school lands at Parrsboro', and rents, issues and 
profits of the same and e^■ery matter connected 
therewith adjusting the accounts and settling 
the balance due thereon." Award "that tlie 
defendant is indebted to the plaintiffs as such 
executrix on tlie sai<l school moneys, in the sum 
of .81400, and tliat the said defendant do pay to 
the plaintiffs the said sum of 81400, and that 
judgment be entered for the plaintiii's for that 
amr)unt. " 

Held, tliat the award was bad as to submis- 
sion 1 a, in that it diil not exhibit on its face or 
by necessary implication from what api)eared on 
it that the several matters referred to in such 
submission were finally adjusted and settled. 

That the award was liad as to submission 1 b, 
inasmuch as the arbitrators had exceeded tiieir 
powers in giving costs of the reference and 
award. 

Tliat the award was bad as to submission 2, on 
the same ground as applied to the award under 
1 a, and because while it found against defend- 
ant as executri.x it directed judgment against 
her absolutely. 

Church WardtHH of Parrdiovo' y . Kiiuj, 
2R. & C, 383. 

On appeal to the Supreme Court of Canada, 

ILld, that the awards sufficiently specified the 
claims submitted and the various capacities in 
whicii such claims arose. That tlie first award, 
being against the defendant in lier representa- 
tive capacity, could not lie considered against 
her personally, and negatived any claim of that 
kind, and was also an adjudication against tlie 
defendant that she had assets ; and tiiat the 
finding in the second award that the defendant 
should pay 81 could be consideretl a finding as 
against her in her individual capacity for that 
sum, and, as to the claims of the plaintiffs against 
her for moneys received by her husband or by her 



101 



ARBITRATICy AND AWARD. 



102 



as executrix, as a finding against the plaintiffs 
on their claim. That the part of tiic second 
award, directing payment of tlie costs of the 
reference and award was bad, but might be ' 
abandoned. 

St. Oeori/e'x Parish v. Kimj, 2 S. C. R., 143. j 

14. Award— Finding beyond Jurisdiction 

— Publication — Absence of one arbitrator — \ 
I'h'intiff claimed tliat defendant was indebted to 
liini for work and labor in sawing logs of the 
defendant, and defen<lant claimed a set-otf. The 
matter was referred tf) arbitrators, who made 
an award in favor of defendant, and added a 
finding that the logs remaining unsawn were 
defendant's property. 

Ile/d, that this finding was outside of the 
jurisdiction of the arbitrators, but being clearlj' 
separable from their linding on the matters 
within their jurisdiction, was a mere nullitj' not 
ati'ecting the validity of the award. The sub- 
mission empowered the arbitrators, or any two 
of them to make au award. The tiiroo arbitra- 
tors sat and reail I'll the evidence, and adjourned 
to meet at Halifax ; but the award was executed 
by two of tlie arbitrators in the absence of the 
third, who diil not attend the meeting of which 
he had notice, and at which the award was signed. 
The award was filed on the same day with the 
I'nithonotary of the County in which the cause 
was pending, enclosed in an envelope ; and on the 
same daj" was opened by defendant in the ottice 
in presence and by the authority of one of the 
aibitrators. 

//' III, that the award was duly made and pub- 
lislicd. 

McDonald, C. J., dnhitanti., as to the power 
of the two arbitrators to make the award, in the 
absence of the third. 

C'reclman v. McMidkn, 6 R. k (t., 138 ; 
6 C. L. T., 450. 

15. Award— Irregularities on part cf arbi- 
trators — Waiver — Motion to set aside too late 
—4th Rev. Stats., c. 95, s. 42— Q., whether an 
arbitration is a "cause" within the meaning of 
— I'raser & Paint having terminated their part- 
nership business, referred all their disputes of 
every description to the award of two arbitrators 
and such umpire as they should select, before en- 
tering upon their duties as arbitrators. Author- i 
ity was given to the arbitrators, or any two of 
them, to enlarge the time for making the award, 
and the two originally appointed extended the 
time, and, after doing so, selected an umpire 
and entered upon the inquiry. Desiring to 
obtain all the information possible, the arbitra- 
tors, without the request of either party, called 
before them certain persons, neither of the parties 



being present ; but it appeared that the persons 
so called had no evidence to give aliout the 
matters in controversy, and no objection was 
taken by the party moving to set aside the 
award, who knew that the arbitrators had called 
such persons before them, but yet continued to 
attend and conduct the reference on his own 
behalf. The iiartncrship was indebted to Fraser 
j in the sum of .S")'2,840, and there was due to it 
by Paint .S'i,G'24, and the award directed that 
the assets should be held and managed by 
Fraser imder the inspection of the umpire, and 
that the sale of the partnership property should 
be made by him at such times and places as the 
um])ire shouM approve. The award was made 
'28th .Septendior, 187."), and no motion was made 
to set it aside until March, 1870, the objecting 
parties having in the meantime, with knowledge 
of the facts upon which lie based his objections, 
proceeded with tlie arl]itration. attended the 
1 sale of the property, and, at the request of the 
I auctioneer, furnislied information as to the 
boun<buics of the land. 

j III hi, that the provision in the award as to 

the sale of the property by Fraser, under the 

approval of the umpire, was not such a dele- 

' gatitm of authority as should invaliilate llie 

award ; that, although the arbitrators had acted 

unadvisedly, in calling persons before them in 

the absence of the parties, yet, as Paint had 

made no objection, but had afterwards proceeded 

witli the refcience, the olijection was not, in 

view of the lapse of time, entitled to much 

; favor ; that the two arl)itrators, in extending 

J the time, before appointing an umpire, had not 

i "entered upon tlieir duties as arbitrators" 

• within the meaning of the <.lause of the submis- 

, sion providing for the selection of an umpire 

: before so entering upon their duties ; tiiat the 

policy of the Legislature and the practice of the 

I Court required a party desirous of setting aside 

'an award, to move promptly; and tluu Paint, 

by his delay in moving, as well as by his tacit 

and active acquiescence in the award, had waived 

irregularities in the conducting of the arbitra- 

ti(m. 

In rt Fmxn- A- Paint, R. E. D., 68. 
On appial to the Su/innif. Court in banco, 
//fid, that the application to set aside the 
award was too late, not having been made with- 
in one month, as required by the statute, nor 
within the time allowed for moving for a new 
trial, as would be neces.sary had the submission 
not been made a rule of Court ; that the conduct 
of the arbitrators, altliongh in one respect indis- 
creet, wjis in the whole unexceptionable, and 
that the conclusions of the arbitrators were 
legal and within their authority. 

//eld, further, that under sec. 22, of cap. 109, 



103 



ARBITRATION AND AWARD. 



104 



4tli R. 8,, the Jiulge in K(iuity was warranted I amount at which the work \va.» so valued, 
in iirdering tluit, in case I'aint should refuse to witiiout making any deiluction for plaintiff's 
execute a deed rec|uiriMl to etlectuate a sale j payments. Second, that the receipt, although 



directed by the arl)itrators to )je made, the 

same should be made by a Master of the Court. 

(^himir, \.hether the matter was a "cause" 

within the meaning of sec. 4'2 of cap. 95, 4th 

R. S. 

/,( re Fiwn- & Paint, .S R. & C, 10. 

Opinion of Ritchie, E. J., on appeal, R. E. D., 



10. Award— Motion to enter Judgment 

on — Costs — It is not necessary to move for leave 
to enter u]) judgment on an award under a rule 
of reference in the cause. Costs of such a motion 
will not be allowed. 

Graham v. Graham, 2 Tliom,, 77. 



found l)y the jury to have been pi-epared by the 
plaintiti' in good faith, and signed by theilefend- 
ant witli a knowledge of its contents and of all 
the circumstances, was no bar to the defendant's 
claim on the award. 

Benmtt v. Murray, 1 Old., (514. 

18. Award — Rule nisi to set aside — 

Requisites of — In moving to set aside an award 
the rule nixi must contain the objections ou 
which the party intends to rely. 

Mt' Donald it al. v. Marmaml, '2 Thom., 79. 



19. Award -Rule nisi to set aside award- 
Requisites of — A rule nixi to set aside an award 
must contain tlie grounds of objection on which 
17. Award-ParOl evidence as to what j f,,^, j,,^,.ty „„„.j„g tl,e,.L.f„r intends to rely, and 



submitted to and considered by arbitrators 
Inadmissible — Receipt — Efl'ect of — I'laintitf 
and defendant entered into an agreement, by 
which defendant contracted to finish a certain 
vessel belonging to the jilaintitf. Before the 
completion of the contract the vessel was burned, 
and a difference having arisen as to the amount 
defendant had earned under the contract, plain- 
tiff and defendant entered into arbitration bonds, 
in which, after reciting the agreement, au<l that 
the vessel, before her completion, had been con- 
sumed by tire, the subject of the submission was 
stated as follows: "In conscpience of which, 
differences have arisen between the said J. B, 
(the plaintiff"), and the said A. M. (the defend- 
ant), a-1 to thiir accounts, and the amount thi 
laid A. J/. I" (ntitled to riceirf under xaid aijne- 
ment." Two of the three arbitrators made an 
award, in which, after stating that tliey had 
investigated the matter submitted for'their con- 
sideration, they awarded "That the said J. B. 
(the plaintiff"), do pay to the said A. M. (the 
defendant), the sum of £195, under his agree- 
ment, and the matters submitted to us." 

Plaintiff had, previous to the submission, paid 
defendant £184 on account of the work under 
the contract, and subsequent to the award he 
paid him a further sum of £.^, and took a receipt 
from him therefor, wiiich was expressed to be 
" in full of all dues and demands to date," not- 
withstanding which the defendant ha... '■et up 
the amount of the award as a set-off to a sepa- 
rate demand of the plaintiff. 

Held, Young, C. J., and DesBarres, J., rfw- 
•entiiifi — First, that parol evidence was inadmis- 
sible to show that the only matter submitted to 
and considered by the arbitrators was the value 
of the defendant's work on the vessel, under the 
agreement, and that the award was only of the 



must also lie drawn up on reading the award, or 
a copy of it. 

Grant v. Hall, '2 Old., 7-'. 

20. Award — Setting aside— Claim Im- 

properly allowed — Damages awarded — Mis- 
take— Award sent back for corre tion— /fcW, 

that an awanl could not be set aside at the 
instance of one of the defendants on the ground 
of a claim being improperly allowed against the 
plaintiffs. 

Hetd,/nrthir, that where one of the objects 
of the suit was to require defendants to submit 
their differences to arbitration under an agree- 
ment to do so, and by the rule of reference all 
matters in difference in the suit were submitted 
to their award, the award could not be set aside 
because the arbitrators awarded damages to the 
plaint ift"s. 

//< Id, further, that where all the parties and 
tlie arbitrators themselves admitted that a 
mistake had been made in re<iuiring one of the 
defendants, as part of the award, to pay oft" a 
certain mortgage, which should not have been 
re<iuired, the evidence of the arbitrators was 
receivable as to such a point, as well as on the 
point of their having taken into consideration 
matters not within their jurisdiction, and that, 
as the arbitrators had inadvertently made a 
mistake with reference to the mortgage, tiie 
award should be sent back to them to he 

corrected. 

Tremain et al. v. Mackintosh et al, 
R. E. 1).,447. 

21. Award-Setting aslde-Error of Judg- 
ment on part of arbitrators— Each of several 
matters submitted not decided separately— 
It is not competent to the Court to set aside an 



105 



ARBITRATION AND AWARD. 



106 



awiinl frir error of judgment on the part of arbi- ! 
trators in the iihseni'c of misconduct or mistake. ' 
An award will not he set aside or sent hack 
ff)r neglect on the part of the arbitrators to de- 
cide separately each of several matters referred 
to them, when it is not clearly expressed in the 
reference that the matters referred are to be so 

decided. 

nirkard.'< v. Bickanii, 3 X. S. D., 227. 

22. Award- Setting aside-Error orjiidg- 

ment in arbitrator not sufficient ground — 
Mistake— Must be apparent on face of award ' 
or admitted by arbitrator -Kiror of judgment 
in an arbitrator is not suUicient ground for set- ; 
ting aside his award. 

Tn set aside an award on the ground of mis- 
take on the j)art of an arbitrator the mistake 
must lie ap|)arent on the face of the award, or 
aihuittcd liy the arbitrator: and in tiie latter 
case it must also lie shown that the judgment of 
till.' ailiitrator was intliienced by it, and that if 
it iiail nut hiippencil lie \\iiulil have Miade a dif- 

fciciit award. 

Lijaiis V. Doiiocdii, '2 Old., ISO. 

•>;{. Award Setting aside Improper re- 
ception of evidence Where a cause was referred 
to ailiitration, ami tlie defendant obtained time 
to proceed to \e\v Ihiinswick to procui' addi- 
tional witnesses, and in his absence the ailiitra- 
tors receive<l a telegram containing statements 
favdi'ablc to the iilainlitl'. which the defendant 
swoi-e witiiout contradiction, inllueneed their 
decision, and the award \\as made against defen- 
dant before he had time to return. Hi/d, sulU- 
cient ground to .set aside the award. 

Al/i-'nii y. /)i shrisfi)/, Cocliran, !)1. 

24. .\ward — Setting aside — laelies - 

Irregularitj' -Ap])eal from an order discharging 
nu order ///>/ to set aside' an awanl made in favor 
of plaintilt's. The award j)rocee led mainly on 
evidence taken tinder a commission executed in 
Kngland, but this did not ajipearfrom tlieawar<l 
itself, niu- did it contain tiie grounds of tiie 
ailiitriitors" decision. This commission and tiie 
evidence taken thereunder had been rettiined to 
the prothonotary and opened by him in the 
presence of the plaintitl's" counsid alone, without 
any liotic given to defendant's counsel, then 
handed to tiie ])laint ill's' coimsel and by him pro- 
duced to tiie arbitiator. and tinder jirotest of 
ilefeudant's counsel, read to and considered by 
the arbitrator. But with the exception of this 
objection, defendant's counsel, although a period 
of eighteen months had elapsed since tlie award, 
had taken no steps to object to the mode in whieli 
tlie evidence under the connnission luid been 



taken, or to the legal character of that evidence, 
nor was any such pointed ottt at the argument. 
The arbitrator, however, had proniised to con- 
sider any authorities which defendant's counsel 
might present to him on this subject, and 
had made the award without having a further 
hearing, 

//(/'/, that the application was made too late. 

Appeal dismissed with, costs. 

Si/rtr it al. v. McCuUoch, 2 N. S. D., 104. 

25. Award — Misappropriation by firm— 

Against one partner for whole amount, both 
having shared in misappropriation — Defend- 
ant, a barrister, being in jiaitiiership with J. (1. 
T., the film, as solicitiu's for Mrs. McS., collect- 
ed certain large sums of money, wliich, instead 
of paying over to her, tiiey appropriated to their 
own use. I'laiutilt' having brought action for 
the amount, tiic iiuUter was referred to arbitra- 
tion, and an award made in her favor whi-li 
defendant now sought to set aside mainly oi. 
the ground that the award was unjust ami in- 
correct, because defendant was held liable for 
the total amount received by the tinii instead of 
■,s he contendi'd iiiily for tlic aninunt lie had indi- 
vidually misapin'opriated. Tiiere were other 
objections taken by ilefeiidant to tiie award ol a 
tecliuical eiiaiacter. One of tiiese was tiiat tiie 
other dcfeiulant had not signed tlu: reference. 
He had, however, attended the reference. The 
otiier objt'ctions were successfully met by alti- 
davits. 

Hihl, that the auard slmuld be sustained. 
MrS!r,<ii<!/ y. ]V((//nr, <>«/., -2 S. S. l).,8;i. 

20. Award Power of Attorney to enlarge 

time for m.aking— Additional ground of ob- 
jection, on appeal — I'laiutitl' broiiglit action 
against the defendant coi'])oratioii for extras in 
eo|isci|iielici! of deviations ordered by the City 
Kngineer from the ]ilan under which plaiiititf 
liad contracted to construct a sewer. A refer 
ence was entereil into, signed by the Recorder 
of tlie City and the attorney of the plaintiH', 
and made a rule of Court, wiiercby tlie matters 
ui dispute were left to two arbitrators named, 
and a third to be l>y tleiii eJiDseii. the award to 
be made on or befdi'i' tiie tirst day of May, " or 
on sucli further or ulterior day as tiie said 
arbitrators, or any two of them, shall from time 
to time indorse on this order." 'I'wo extensions 
were indorsed by twri of tlie arbitrators to tlie 
first duly and the tirst .September res|)ectively, 
and on the .'Ust August a further extension to 
the Sth .Septemlier was indorsed, signeil, not by 
the arliitrators, but by tlie Recorder and the 
plaintiff's attorney. In the award, which was 



lor 



ARBITRATION AND AWARD. 



108 



made on the 7th of Septemher, the arbitrators 
set out that tliej- had considered tlxe matters 
referred to tliem under the annexed rule "and 
the indorsements thereon." 

Hi III, on a motion to set aside tlic award, that 
the Recorder, as the attorney of the corporation, 
had ))o\ver to enter into the reference, Init per 
Young, C. J,, DeslJarrcs and McDonald, JJ., 
(Weatiicrhe, J., di-tmndnij), that the last enlarge- 
ment not having been made by the arbitrators 
as required by tlie rule, but by the attorneys of 
the parties, was invalid, and that the i.ssent of 
the arl)itrators thereto couhl not give them 
jurisdiction. Per Young, C. J., and DesBarres, 
J., that tlu'iv had been no waiver of the irregu- 
larity', as notliing ^\as done by the parties in the 
matter after the first of 8cptend)er. l\r Mc- 
Donald, .T., that the last enlargement was a void 
act and could not be waived. 

Hi III, Weatherbe, J., ilisxi.nl iuij, that not- 
withstanding tlie omission from R. S., fourth 
series, cap. 94, sec. .">, of the words contained in 
R. .S.. third series, cap. l;U, sec. S.SS, a .lu.lge 
at Chambers can make a lule »(■</ returnable in 
term. 

Onhs V. Till Ciiii of Hnlijhx, 1 R. & (!., 98. 

On nji/ii rtl /o thi Siijiriini C'oiirl of Canada, 

Held, reversing the j\idgnient of the Supreme 
Court of Xova Scotia, that when tlie parties 
through their respective attorneys in the action, 
consent to extend the time for making an award 
imdcr a ruU' of reference, such consent docs not 
o])erate as a new suliinissinii, l)Ut as an enlarge, 
menl of the time under tlie rule, and a 
continuation to the extended period of the 
authfirity of llie arliitiators, and therefore an 
award made within the extended period is an 
award made under the rule of reference, and is 
valid and binding on tlie parties. 

2. Tliat tile fact of one of tlie jiarties lieing 
a municij)al corporation makes no dill'erence. 

'•i. Tiiat in Xova Scutia, where tlie I'tile nisi 
to set aside an award specifies certain grounds 
of objection, and no new grounds are adiled by 
way of amendment in tlie Court l)elow, no otlier 
gi'ound of olijection to tiie award can lie raised 
on appeal. 

Ocdxs V. Till. Cii'j qj' Halijax, 4 S. C. R., 040. 

21. Aw ard - SrttliiK aside - Uiilc nisi — 

On reading rule of reference and award — 
When rule must be taken— Kide nixi to set aside 
an award disciiarged with costs, tliere being no 
imputation on tlie good faitli of the arbitrator, 
and his award appearing from tlie facts and 
pleadings to ))e just and reasonal)Ie. 

Tlie ajiplication to set aside an awanl must be 
made at the earliest opiiortunily after it has 



' been given, and the rule nln must be expressed 
' as having been granted on reading the rule of 
, reference and the award, etc. 

Harris v. McCormick, 2 N. S. D., 21. 

I 28. Award — Setting aside — Umpire- 
Appointment of— Hearing statement of ease 
not from witnesses, but from arbitrators — iJ. F, 
and J. M. , arbitrators, being agreed tliat a certain 
sum was due by the defendant, l)ut differing as 
to the parties by whom the action could be 
legally ))rought, by a memoran<lum indorsed 
.upon the submission, appointed J. \V. R. as 
I umpire. The latter having heard from the arbitra- 
tors the statement of facts in which they both 
, concurred, decided that the plaintiffs were the 
proper ])arties, and so awanh^l in conjunction 
I with tlie arbitrator with whom he agreed. 
I The defendant took exception to the award on 
' the grounds— 1st, that he had not ac(iuiesced in 
I the appointment of umpire ; '2ni\, that the um- 
I pire had not himself heard the evidence of the 
parties ; and .'h'll, tliat the defendant liad no 
notice of tlie appointment or opportunity of pio- 
I ducing testimony. 

I After argument tlie case was referred back to 
I the umpire with instructions to cite the j)arties 
^ before him to enable them to be heard witli their 
witnesses. 

Sir \V. Young, C. J., while consenting to the 
cause being referred liack, was of opinion that 
the award was sustainable, and tliat the rule 
for setting it aside should be discharged. 

Eit/oti >:/ al. V. CampUill, 2 X. S. D., :?I4. 

29. Award — Settling matter referred— 

Inability to decide conflicting statements not 
j referred — Wlien a reference iiad Ijcen made set- 
' ting out that differences had arisen relative to 
I the sale ami deliveiy of a cargo, and an awanl 
I was made ileciding that (|U»'stion, but stating 
that the ail>itrators could not entertain certain 
statement;* as to whether plaiiititl's were pur- 
chasing a.s principals or agents as these state- 
i ments weie entirely conflicting ami opposed to 
' each other. 

Hi Id, that the main ])oiiit as to the delivery "f 
I the cai'go having been decided, the award was 
good though no decision had been given relative 
to such statements. 

Sallir It al. v. Full, '2 Thorn., .'i.'ilj. 

30. Award Setting aslde-Mlstake-Afll- 

davit of arbitrator that he misunderstood 
certain portions of the evidence — Where one 
I of two arliitiators who had made a certttiu 
award, subse(|Ueiitly made an affidavit setting 
out that he intended to decide the case according 



109 



ARBITRATION AND AWARD. 



110 



to law, Imt on reconsideration of tlie matter, | fixing fees must he set aside, and the rest con- 
ami on repunisal of the minutes of evidence, firmed. 



he felt pursuade<l that in making the award lie 
inisunderstood the evidence in the matter, 
iiiiisniiRli as he took for granted that no evidence | 
was given of a certain fact, which, upon the 
minutes of tlie evidence being read before the 



In the. Mutter of the. Arbitration between 

Witr and Cunimiinjer, 2 R. & C, 173. 

33. Award to be ready in writing for 

delivery on a certain day — Arbitrators when 

( 'unit, by consent, appeared to be material luuX'i/unrti officio — Arbitrators acting under a sub- 
to be ill proof. mission requiring the award to be made in writ- 
Hihl, that the award must be set aside. I ing, ready to be delivered to the parties at a 
JJtsIiarrtu v. Landry, '2 R. & C, 14."). ; certain day, cannot, o.fter having nuidc an award, 

I set it aside and make a new one. An award in 
' such a case is complete when ready to be deliv- 
31. Award-Silent as to set OfT-Sufllcient ere.l, and (toes not rc(iuire delivery to give it 
if made de /miemisms—Aii awanl professed to i effect. After it is ready to be delivered the 
lie made of and concerning all the matters j .^i.ijitj.ators are. /»»'■// q/AV/o. 
referred in tiie cause or uiuler the order, and i Saii/ord v. Sanford, 2 'J'hom., 266. 

the arliitrator awar<lcd that the plaintitl' liad i 

no good causr of action herein against the 34^ Award -Two arbitrators out of thrcB 

defendant, and tiiat there was nothing due authorized to award— Absence of third— Fees 

from the .Icfcndant to the plaintiff herein. —Where the submission gives autliority to any 

//./'/. that it was no objection to the a\\ard („.,_, „£ (1,^ arbitrators to make an award, the 

that no specirie reference was nuide to a set off presence of the three at the time the award is 

claimu(l in the cause by tile defendant. siuned is not necessary. 
A'K.vN,// V. Coo/-, 5 R. & G., i;«. 



Wiiere the arbitrators, without authority fiom 
the submission, direct witnesses to be paid, that 
will not vitiate the award. 

Piirdi/ V. Burtiriihji, 2 Thorn. , 150. 

35. Award— I'nder snbniission provided 



3'2. Award sustained in part and rejected 

in part — Time for making award — Laches — 
One arbitrator absent at some of the hearings 

-Consent-An agreement, dated lilth Xovem- foy j^ policy of insurance— Court in action on 

bur, bs74, was signed by A. W. and .S. NV. I). C, policy cannot go behind award — Plaintiffs 

referring certain disputes concerning lands to |„„ught action ni a policy of marine insurance, 

tliice ailiitratiMs name.l therein, providing that ^,^■\^[^.\^ containe.l a clause providing that in case 

tile award siiould be made and signed on or ^f dispute the claim shouhl be submitted to 
befni-.,. liic lilth day of Febiuaiy, 1 ST."), and that | arbitrators. Defendants contended that the 

copies of it should be serve.l <m the p;uties piaintitls had no insurable interest, and the dis- 

withiii ninety days from the date of the agree- p^^y ^^.^^ ucconling to the terms of the policy 

iiient. 'I'he award was made and signed on the submitted to the arbitrators \\\\o made an award 

IXth day of February, IST,"), and copies of it ;„ fav„r „f the plaintiffs. 



.served (111 tiiat (hiy, ninety-one days after the 
(late (]f the agreeiuelit. 

///'/, that the objection, that copies of the 
award iiad not been served within liie time 
stipulated, could not Jirevail, as tiic award was 
iiuide ainl served within the time named in the 
iigieenii'iit for its being made ; and that even if 



Heltl, that the t'ourt could not go behind the 
award to ascertain whether ])laintitrs had an 
insurable interest. 

Trooji it al.v. Awhor Marine Iii'<iirnu<'e Co., 

3 R. (S: (i., -y.U. 

36. Estoppel by submission and award - 



the objections could have prevailed in another Other parties interested — The surviving exeeii- 

case, S. \V. 1). C., who raised it here, was guilty tor cited the ])aities interested in the estate of 

of /urliti ill allowing two terms of the Court to deceased to attend for the pui'iiose of a final 

'.uterveiie between the serving of the award and settlement, and a preliminarjMjuestion was raised 

his iHoiiou to set it aside. as to whether all matters in dispute had not been 

///'/, ((/«), that the fact that one of the arbi- settled by an award. The award in (juestion 

traloi's was not present during the whole period resulted fiitm a submission to which the executor 

of taking the evidence, could not be made ground and executrix alone were parties, and recited 

"1 o.ijeclion to the award when all the parties differences between those parties only. It ap- 

iiiterested consented to the arbitrator absenting peared that other parties than tlio.se were inter- 

'''""si'lf- ested in the estate, viz :-- -the chihlren and the 

Hi III, al!<o, that the portion of the award creditors of the testator. 



Ill 



ARBITRATION AND AWARD. 



112 



Held, that, whether the parties to tlie sub- 
mission were or were not estopped, as there were 
other parties interested, the .ludge of E'ro))ate 
shouM have over-ruled the preliminary objection 
and (leoided upon the evidence independent of 
the suliniission. 

In rt Estate of George Sinithf >■■•<, 3 R. & (i., 306 ; | 

2C. L. T., tiOtJ. ' 

37. Offlrini arbitrators — Appeal from- 

Intercolonial Railway Extension— Damages 
—Submission— Petition of right— 42 Vic, c. ' 
8. (Dom.) — Tile idaintill's proceeded against tiie 
(iovernment l)y ])etition of right for damages 
caused by tlie I. C. Railway extension destioying 
their roail and conijielling them to sell tiieirplant, 
&c., at a loss. TIh' Crown denuirred to the 
petitjiiu, and, the deniiurei' bi'ing aigued before 
Sir W. I>, ili<'iiards, ('. .)., juclgiiuiit was gi\cn 
aliowiiii.' tlie dennirrer on the grou.id that the 
only remedy for t lie company was by I'uference 
to ti'.e otlic-ial arbitiators. 

Tt was then agreed that tlie reference to the 
otlicial arl)itiators sliould be had, and the fol- 
lowing special tei'ins were agreed to : "^Vhereas, 
tiic Halifax Street Railway Company has made 
ii claim upon tlie (icjvernment of Canada for 
eompensatiou for damages alleged to iiave buun 
sustained by that company by M'as(]n of tiie con- 
struction of the Intercolonial Itaiiway, anil as 
the (iovcrmucnt and tlic comjiany have failed to 
agree as to such com])cnsation, the cimipany lias 
reipusted that such claim be referred to the 
otlicial arliitrators under tlie Statutes iu that 
bi'lialf; and, whereas, the (iovernment is will- 
ing in n tVr the claim to such arbitrators on the 
following ciinditioiis, to which the company has 
agreed, namely : 1. That the company shall, 
1)efore the ma;tei' is entered upon before the 
arbitrators furnish to the ( Jovermnent a state- 
ment of tile various claims which they make in 
the premises, ehissifying separately each kind of 
claim. '2. That the (iovermneut admit tlieir 
lialiility to niiike compensation to the extent 
onlj' to which they are bound liy law to make 
such coiripunsatioii. 3. 'I'hat the arbitiators 
shall deal with each kind of claim separately, 
repoiling their findings with respect to the 
facts comiected therewith, and as to tiie amount 
of compensation (if any) which sliouhl be made 
therefor to the company. 4. That either party 
shidl lie at lilierty to make this suliniission a rule 
of the Kxchciiuer Court jiuisuaiit to c. S of the 
Act, 4'Jnd Vic., (1M70), Canada, and to proceed 
under tiie provision of the said Act before that 
Court with respe(;t to tlu^ award, or any part 
thereof, as may be thought best. .5. That any 
judgment, order, rule <ir decision of the Exclie- 
quer Court i' the premises may be appealed 



from to the Supreme Court pursuant to the Oth 
section of the Act last mentioned. Therefore 
tlie Government of Canada and the said C<iin- 
pany hereby refer the said claim to the full 
board of arbitrators upon the terms an<l comli- 
tions above mentioned. And whereas, The Hali- 
fax Street Railroad ( 'ompany, in pursuance of 
the terms of the above cited order in council, ):as 
lodged with the (iovernment of Canada a claim, 
of which the following is a cojiy, vi/ : — 

"In compliance with section 1 of the reference 
in this matter, the Halifax Street Railroad Com- 
pany hereby furnish the following statement of 
their respective claims for compensation : I. 
The total loss of the railroad as a chartered 
jiroperty jiossessiiig exclusive jirivileges within 
the city, with all its plant and. real and jiersonal 
])idpeities, the estimated value of which was at 
the ilate of the (iovernment taking posses- 
sion of the track the sum of .S'_'t;i»,0(H). •_'. The 
Comjiauy claims, idso, damages for the dividing 
of liieir road into two portions rendering cacli 
valueless, and thus, in other words, destroying 
tiie whole value, .S'JtiO.IHHJ. 3. The Company 
claims also for damages actually done to the 
crossing, for loss in having to sacrilice hiirscs, 
plant and properties which were saciiliced in 
consequence of the act of the (iovernment, and 
for general depreciation in value of their leal 
property, and for loss of tlieir charter, and the 
privileges and rights guaranteed under it liy tlic 
I'rovhicial Legislature, SL'(i(l,(KKJ. 4. The Com 
pany claims interest at six jier cunt, per annum 
on the amount to be allowed for damages from 
the time of lucakiiig upthe track, say 17th May, 
ISTCi, up to the time of payment in hill to thi' 
Coiiipany. Tlierefnie tlie(iovermiient of Canada 
and the said Company hereby refer the said 
claims to llie full board of arbitrators upon thci 
terms and conditi<iiis above mentioned." 

The matter was liear<l on the above suliniis- 
sion liefore the otlicial arliitrator.s, and on the 
•JTtli August, ISSO, the following award was 
made. After reciting the omission and facts :^ 
1. We find, with regard to the first item of the 
claim, that the company are not entitled to 
recover for the loss of their railroad and its 
plant and real and jiersonal properties, because 
that railroail was neither totally nor partially 
lost by any actual interference of the (>oveiii- 
inent with tiie company's property. 2. We 
find, with regard to the second item of the claim, 
that the company are not entitled to be paid 
any compensation, because the government have 
not "divided their (the company's) railroad into 
two portions, rendering each valueless," or des- 
troyed the value of the railroad. We find, with 
regard to the third item of the claim, that the 
company is not entitled to any coinpensatiiui, 



113 



ARBITRATION AND AWARD. 



114 



because the Oovornment did no .ictiial ilaniage 39. Parol SubmlSAlon-RcqulsltCS— In or- 

tfi the crossing, ami liecauae tlio company were ! tier to sustain a i)arol sulmiission. there must be 



not olpligcil to saciitlce horses, plant, or jjroper- ' clear evidence that all the parties to it under- 
stood and intended it to operate as a reference. 
Dilap V. Fo.ifir it al., James, ,S,S5. 



tic-i, in consei|Uence of any act of tlie (iovern- 

nicnt, and did not sutler any dei)reciation in value 

of their real estate within the meaning of the 

Public Works Act, 'M Vic, Chap. 1'2, and did 

not lose their charter and the privileges an.l charged-Where a cause is, by consent of both 

rights guaranteed under it by any act of the ' Parties, referred to arbitration 

( iovernuient. 4. We tind, with regard to tlie 

fiiurtli ileiii of the claim, that notliing is due to 

the conipanv for interest. 

The plaintitt's ajipealed fmni this award, and 
Ml-. Justice Henry, in liie Kxchtipur diurt, 
gave judgment in tlieir favnr for .><S,(((MI. I'i'om 



40. Reference by consent — Ball (lis- 



H'/il, that tlie bail in the original action is 

discharged. 

Alli^oH V. Di ■■iHri-iuy, Cochran, l!>. 



this judgment lioth parties ap|)ealed. 

Iltlil, Henry, .1., ili.^.-n ulin'j, that the appeal 

of the Halifax .Street Railway Company should 

lie ilismissed with costs, and tlic appeal <if the 

Crown allowed with costs. 

HaCi/ux Sin- 1 Hdi/n-rti; ('(uiI/kihi/ v. 'Hi' l^hn'ii. 

J. ''It May, ISS.l, Cas. Digest, IS. 



41. Reference by consent-Xo power of 

amendment reserved in— -Error in award — 
Referred back for amendment — Where an 
arbitrator makes a mistake in the heading of an 
award in tiie christian name of one of liie ])ar- 
ties tiie award will be referred back to him for 
amendment, although the time for his making 
the award has expired and the reference was by 
consent of parties, and altliough no pf)wer of 
amemlment was reserved in llie rule of refer- 
ence. 

Aiiiii.-i If (tl. V. C'Kil: 'I <il., -2 Olil., lli.'i. 



:i8. Parol Siibinission Partition of land 

Award Conclusive upon certain ))arties— 'i'iie \ 

awardof arbili-ators in innsuanc.,' of a i>arolsub- 42. Reference ClanSC in ruU'S Of \OVa 

mission setting tind tixing a lioundary line is Scotia Building Society — Usury - I'lainlill's, as 
conclusive ipon tiu' parties consenting to and 
acting upon tlie awaid. 

In bs.'!."), two lirothers Markenzie ri'i'cived, 
under a deed from tiicir father, a certain lot of 
land, uiiich tliey continued to occupy togeiiier 



Trustees of tlie X. S. Permanent iJenetit Ihiilding 
Societ}-, advanced to defendant a sum of money 
on the security of live mortgages, the foreclosure 
of wiiich was sought in this suit. Defcmlant, 
in his answei', claimed tiiat he was entitled to a 
until IS.V.', when it was agreed lietween them release of a portion of the mortgagid property 

umler tlie (illi rule, iiroviding "that tlie Trus- 
tees shall lie empowered, by direction of the 
boartl, at any ])eriod, to release any portion of 
their witnesses a])peared. Tlie the property mortgaged, on being satislied, in 



tliil there should be a partition, but no u lalten 
submission nv bond v.as entered into. Arbitra- 
tors were aci/ordingly appointed, before whom 
and 



that the 



the brother- 
lot was divideil, and each o*' the brothers entereil manner before mentioned, 
into pos.session in se\eiahy of the jjorlion award- remaining portion of the ]Uoperty is of sutlicient 
ed to him. Fifteen years after, one of the value tri secure the society."' Defendant alleged 
brothers sold his portion to the defendant, and that the directors had refuseil sui-h release, 
then i-onibincd with his brotlu'r to deny the although the aiiiounts due under the mortgages 
separate hoMing, and thus render void his own had been largely reduced, and had further re- 
deed. The awaril was not produced at the trial, fused to submit the matter to arbitration, as 
but .secondary evidence of its contents was [uo- demanded by him mider the "iOth rule, [irovid- 
duced. It did not direct any conveyance to be ing "that the board, for the time being, * * * 
maile, nor was any executed by the Mackenzie's shall determine all disputes conceriung the 
to one another. On these grounds plaintiff affairs of the society, * * ♦ which shall or 
claimed that it was of no elfect. 



may hereafter arise between the trustees, offi- 
///'/, Wilkins. .T., '//<•« »//)/</, that tlicMacken- cers, or other shareholders of the society, • * * 
zies were bound by the submission which they and, if the decision be not satisfactory, refer- 
had thus recognized and acted upon, and that ence shall lie made to arbitration." Defendant 
the defendant having sntticiently established a : also pleaded usury, as invalidating the mort- 
spparate holding, the verdict for plaintiff should gages, the society having taken, by way of a 
be set aside. , l)onus or premium, a sum exceeding the legal 

Woodhnrij v. (t'nh n, 2 Thom., '2'ht, and [htri.ion v. rate of interest. 

Kins)iian, .James, 1, ap[)roved and followe<l. , //dd, that the rule providing for the partial 
Afwkenziii v. Ih-odk, 1 N. S. D., •24,S. j release of the property left the nuitter to the 



115 



ARMING. 



116 



discretion of the directors ; that the demand 
and refusal of sucii release did not constitute a 
"dirt'erence" or "dispute," which defendant 
could insist on having referred to arl)itration 
under the 'JOtii rule ; tliat, even in tlie absence 
of legislation, jilaintiH's were justified in taking 
the bonus or premium in addition to interest, 
the transaction lieing in the nature of an 
advance of partnersiiip funds, in wiiicii defend- 
ant was interested in common witii other mem- 
bers of the society ; and, were it not so, as the 
evidence showed that Iheplaintitl's were entitled 
to tile benefit of an act enabling them to take 
such premiums, altluuigh their rigiit to do so 
was not suflicientlj' set out, they wouhl be en- 
titled to amend tiie declaration or reply. De- 
fendant Iiaving alh'ged that tiie law had not 
been complied with in the organization of tlie 
society, relying on the objection tiiat the rules 
were not duly certified as re(|uired by law, 

Ilchl, tiiat, assuming tlie olijection to be prop- 
erly pleaded and sustaine<l by the evidence, it 



follow tlie award, as provided in the latter 
clause of the submission. 

Tory v. The Munirl/iality of Guyshoro, 
5R. &«J., 3-J. 

45. Swearing arbitrators— When arbitra- 
tors are directed to be sworn l)efore a magistrate, 
one of them l)eing a Justice of the Peace, may 
administer the oath to tiie others. 

In re Kenny, 2 Thorn., 14. 



ARMI\G. 

For self-defence -Lawftll — A vessel was 
found upon the liigli seas buloiiging to tlie United 
States, a nation professing to be at peace with 
all tlie w(U'ld, and in amity with (ireat Britain, 



armed and coiniiletely eciuipped for war, the cap- 

,, . , ., , , /. ,..•,,. ,, taiu assuming tile cliuracter, and performing the 

would not lie available, as tlie plaintitis could i , . ^ i , • / i 

. . ,, . ,. ., -^i ^ 1 duties of commodore, having otlicr armed ves- 

sels under his convoy, with a regular system of 



signals and martial discipline. 

//i/il, that to carry arms for self-defence, and 
the protection of person and pro))erty, under 
certain restrictions and limitations, is undoubt- 
edly one of the most sacred and imprescriptible 
riglits of mankind, whctlier considered as indi- 
viduals umler the law of nature, or in tlieir col- 
lective capacities, as memljers of established 
governments, under tiie law of nations. Tliat 
sucli armaments in tliemselves, and without 
reference to the particular purpose for which they 
may be intended, are not unlawful, is a princi- 
ple wliicli is implied and recognized in the cases 
of The Maria, The PaitUn, and The Elmhe. 
Nor is it of inucii conseipience wliether tlie ves- 



sustain their action on tlie mortgage without 
the aid of tlie statute. 

Abiwn et a/, v. Fnirhankn, 1 R. & C, 407. 

43. Statutory provision for arbitration- 
No action till after reference — When by a 
section in a statute it is provided tliat, in case 
of disagreement l)etween certain parties, such 
disagreement sliall be settled by arliitiation. 
Ill Id, that no action will lie for matters which 
ouglit, under tlie Act, to be referred to arbi- 
tration. 

McKenrJe v. McKay, '2 Thorn., 321. 

44. Subinlssloji -Provisions as to costs- 
Discretion of arbitrators not exercised — The 

parties entered into a submission by which they I sels ^vere armed by public, or only private 
referred all the matters in difference, etc., and .^^tiionty. Tliat is rather a <iuestion between 
provided that tlie costs of tlie cause, and of ti,e American (Jovernment and its own citizens ; 
the reference, or any matter relative thereto, ' ^■^g f,^,. .jg foreign nations are conceriieil, witliout 
should be in tlie discretion of the arbitrators ; ' .^ disavowal on the part of tlie (iovernnient of 
and, further, tliat judgment should he entered tiig United States, a permission either express or 
uiion such award for the amount thereof, and of | t^cit, must be presumed, because no subject can 
the costs of suit and reference in the same I j^e supposed to act so openly in violation of the 
manner as if the verdict of the jui-y had passed. : i^ws of his own country. 

The arbitrators made an award in favor of : The only question then is, tlie jnirport ami 
defendant, liut said notliing as to costs. 

Held, tliat the award must be set aside. 

Per Rigby, J., that the cause should lie re- 
submitted to the arbitrators. 

Per McDonald, C. J., dissen/in</, that al- 
though the provisions of the submission as to 
costs were in apparent conflict, the intention was, 
that in the event of the arbitrators not exercis- 
in;j their discretion as to the costs, they should 



ohject of such arming, and whetlier it be such iis 
is consistent with the duties of neutrality. In 
this case the vessel having carried contraband 
articles to the Island of St. Domingo, a colony of 
the enemy, Fi'ance, although a colony in a state 
of rebellion, was, with her return cargo, con- 
demned. Upon appeal the sentence of condem- 
nation was approved, 17th March, 1803. 

The Happy Couple, Stewart, 65. 



117 



ARREST. 



118 



I. 

II. 
III. 



ARREST. 

OX MESNE PROCESS, 117. 

IX OTHER CASES, 121. 

ACTIOX FOR ARREST AND FALSE 
IMPRISOXMEXT, 1'2-'. 



I. OX MESXE PROCESS. 

1. Affidavits as to abscoiHlIng- Conflict- 
ing— On a ink' to si't asiilu a (.iniias and uanool 
the liail-ltouil the ilufcndaut sworo tliat ho liail 
III) intention of leaving; the Province until after 
the (leterniination of the suit, aud then only for 
a sliort time and with tiic intention of returning. 
It ap|ieared on the other iiand tliat tlie defend- 
iiiit liad stated his inteution of leaving the Pro- 
\ incr; and iiad disposed of nil his property witli 
the exeejitiou of a portion of a farm of little 
value and was residing at the house of a brother, 

liavini' no home of his own. 

I 
The rule was disciiarged. 

Tallin )• V. CamiihfU, .3 X. S. 1)., TA'^. 

2. Affldnrit as to absconding -Must state 

grounds of belief — An atiidavit to hohl to Kail 
nuisl set out tiie grounds of plaintiff's belief tiiat 
defendant is about to leave the province. 

Iilmi-1 v. 0'/irii')i, James, 44.'5. 
Bariinfi-ad v. O'Xii//, .James, 44;i n. 

3. Affidavits denying absconding — Afli- 

davits in reply — Requisites — Where the 
defendant in tiie atfidavit on which a rule to 
set aside a cajiias is granted, swears positively 
that he was not about to leave the province at 
the time of his arrest, and had not, nor has any 
intention of doing so. the affidavit in reply must 
fiVAtii /(irli from wliich it can clearly be inferred 
that it was his intention to leave, or the rule 
will l)e matle alisolute. 

If lint v. fftirhir, 1 Old., TOO. 

4. Affidavit to hold to bail - Defects in 

—Waived by voluntarily giving bail — Objec- 
tions to the atiidavit to hold to ))ail, and to the 
Older for cajiias, are waived liy voluntarily 
giving bail and proceeding to plead, and cannot 
he afterwai'ds taken advantage of. 
Be Wolf ef at. v. Vineo, or Vineo, 1 X. S. D., 20. 

•5. Bail-bond — Cancellation of— Where 

defendant was pursuing ordinary calling and 
possessed of large property— And claim satis- 



celled, on the ground that he was jmi'suing his 
ordinary business as carriage maker, had a large 
stock of carriages on hand, had no intention of 
leaving tlie Province, and, moreover, being the 
holder of defendant's proniissoiy note, had 
issued a summons and capias upon it a few days 
before the present action was lirought, and had 
therein given plaintiff credit for tlie very claim 
sued for in this cause. 

Held, that the bail-bond should be cancelled. 
Mi/cev. iifewart, 1 X. S. D., .108. 

0. Bail — Bond on capias — Compliance 

with condition— A bail-bond was taken upon a 
ca])ias issued out of tiie Magistrate's Court, con- 
ditioned for the appearance of the defendant in 
the suit or liis authorized agent. The attorney 
ajijieared with a written authoritj- as "the 
autliorized agent," the ])laintitl' olitained judg- 
ment upon which an execution was issued and 
returned »r</( I >V ///(•( »0(-i. In an action against 
the security, 

//i'l(/, aliirmiin.' the decision of the County 
Court, tliat the surety's obligation had been dis- 
charged by the appearance of the agent, and 
that plainfitl' could not recover against him. 

Wiiijltt V. Reevi'S, 3 H. & C, 303. 

7. Bail -Order to hold to -Motion to 

set aside — Grounds of— Appeal from the deci- 
sion of a .Judge at Chambers, discharging a rule 
to set aside an order to hold to bail, aud to de- 
liver U]) the bail-bond to be cancelled. The 
grounds of appeal were first, that the plaintitV 
had no canst! of action against defendant when 
the arrest look place ; and secondly, that defen- 
dant did not contemplate such an absence from 
the Province as justitied the arrest. 

//('/(/, tliat defendant's affidavits did not 
clearly cstalilish the fact of iilaintili" having no 
cause of action ; and were further defective in 
not being sufficiently certain as to when his re- 
turn to the Province should take place. 

Quaere, •Af^ to whether our Practice Act en- 
ables the defendant, when arresteil to negative 
under atiidavit iilaintiti's cause of action. 

O'Duiinell V. Honciintan, 1 X. S. I)., 101. 

8. Capias - Affidavit for in Magistrate's 

Court— Capias issued liy Magistrates set aside 
on the ground that it was issued and the 
defendant arrested under it without an atiidavit 
of the grounds of plaintiff's belief, as reijuired 

' by chap. 21, of Acts of 1879, sec. 3. 

I McLean v. McKuij, 1 R. & (J., 383. 

i 

9. Capias - English bankrupt, privileges 



lied -Plaintiff applied to have his bail-bond can- i of in this Pi-ovince— An English certidcated 



119 



ARREST. 



120 



bankrupt is privileged from arroMt in tliis Pro- ] alfidiivit to liold to l).iil, unless its insufficiency 
vince for any ilcl>t proviiMe iukUt his Kimkruiitcy ' is expressly stated as a ground in liis order nisi, 
in Kngland. The piiuntitl", on the ITtli August, I Ibid. 

1804, had drawn at Uangor, in tiie Statu of 

Maine, in the United States of America, liills of 13. Caplas — Kclcase 0( dcbtor arrestCd 
exchange (i)ayal lie sixty days after date) on the under capias — Levy on goods in possession 
defendant, wiio was tlien a trader in London i of a third party under le.aae — Sale under such 
and resident tiicre. 'i'he defendunt accepted the levy will not pass title — NL having been 
bills of exchaii<.'c in Lomlon, Imt diil not pay aircsted under a writ of capias issued at the 
them. He was adjudged a liankrupt on the instance of the plaintitV out of the Magistrate's 
14tli Xoveni))cr, I8(i4, in tiie London Court of Court, gave a confession of judgment for the 
IJankruptcy and sulise(iuently obtained an order amount claimed and costs, upon whicli judg- 
of discharge. On tiie I'Jtli July, IStJli, being ment was entered and execution issued. After 
tlien casually in Xova Scotia, he \\ as arrested f)n the giving of the confession and entry of tiic 
a capias at the suit of tlie plaintitl' for the judgment, but before tlie issue of the execution, 
amomit alleged to lie due on tlicsc bills. M. was released from .orest by plaiutitr. Cer- 

//('A/, that tiie debt being provable under tlie tain goods of M. under lease for an uncxpiicil 
bankruptcy in London, and the defendant having , term, were soM uiuler the execution after hav- 
obtained an order of discharge f)r certificate ing been levied upon and returned to the lessees, 
from the Couri of liankruptcy there, he was On the same day that M. was released from 
privileged from arrest for tlic debt in this arrest, lie gave a bill of sale of the goods to ('., 
Province. , who sohl to defendant, plaintiH' iiaviiig clainicd 

Aim, that llie ordiT of discharge or ccrtiticato the goods, after tiie expiring of the lease under 
was " suthcicnt e\ideiiee of tiie bi;iikriii)tcy." the levy and sale. 



Constrttetion of Imperial Act. "24 and •_*,") Vic, 
c. 1.S4, ss. Kil and 'J(l.'{, and of i'luvincial Act, 
3rd R. S., e. l.T), s. -JS. 

Mills V. 5/;;////, -JOld., .'t-JS. 

10. Capias — Irroifiilaritics In order to 

hold to bail and attidavit— An order to Imld to 
bail anthori/ed the issue of a writ of capias 
out of the County Court of the Province of Xf)va 
Scotia. The Cfmimissioner before wlioiii tlie 
affidavit for the order was swf)rii siirned iiini- 



//(■/(/, tliat tiie voluntary discharge of M. by 
plaiiitifl' operated as a discharge of the judgment, 
and that no execution could issue subse(|uent!y. 

Aim, that even if tlie discliarge of M. did not 
operate as a discharge of the judgment, Jie sale 
of the goods whicli at IJie time were in tiie legal 
possession of anotlier, and not suliject to levy, 
was unautliori/cd, and would not pass title. 
Fraser v. Jenkins, '-'O X. S. H., (S R. & li.), 494. 

14. Capias— Writ of -Vilas— Second orij?- 



self "Commissioner County Court, County of inal— A .second original capias may issue upon 
Halifax." i the same aflidavit. 



Hvhl, iiisufiicient ground for setting aside the 
writ. 

Cttij of /IdUfa.v, V. Bentleij, (i R. & ( i,, -I'l ; 
OC. L. T., US. 

11. Capias -Master of packet -Leaving on 

short voyage — Tlie master of a packet a1)out to 
leave on a short voyage is not liable to arrest 
under capias. 

liimesv. O'Bncn, James, 44.S. 



Where the f)riginal and alias writs are not 
sutlicicntly connected, the Court will reject the 
alias cause as surplusage ami sustain the writ as 
a second original. 

Quaere, whether the rule is imperative that a. 
term must not intervene lietween an original 
writ and an alias, 

Hollmul V. Bovi/er, James, 4."). 



15. Order to arrest— For unliquidated 

12. Capias-Order to hold to ball-Suffl- damages-Construction of 5th R. S., c. 104, 



ciency of affidavit — When the sudiciency of the 
affidavit to hold to liail is attacke I, the rule is 
to set aside the order, and not the capias. 

Murphy v. Treu/iolni et <il., 2 Tliom., 228. 

Xo supplemental affidavit in support of the 

order 7iisi will be received after party appears to 

show cause against su(;h order. 

Ibid. 

A party cannot object to the sutfieiency of the 



O. 44. R. 1.— Defendant, an officer of the ship 
"Ivy" was placed in jail under an order for 
arrest in a suit to recover damages for an assault 
and battery committed upon plaintiff, a seaman 
on boanl the vessel while the ship was at sea j 
and also for wrongfully depriving the plaintiff of 
his clothing, etc. 

An application to a Judge at Chambers for 
defendant's release from arrest having been made 
and refused, defendant appealed on the main 



121 



ARREST. 



122 



ground that under order 44, rulo 1, tliere was no 
iim'nt for unlii|iiidiittMl daniii)j;eM. 

//('/(/, tliat tlie Words of tliu order anil rule 
relied on eniliraci'il the whole authority in rela- 
tion to ai'rest conforreil liy s. .SI, e. 1(4 II. .S. (4tii 
series), that it wan not to he assumed that the 
fianiersof the rule intended to de[)rive litigants 
of tlie right to arrest eonferreil hy that statute 
in the ahsenue of legislation, and that though tiie 
r\de was not clear in point of ex])ression, the 
learned .Judge at ('handlers had taken a prijper 
view as to its intention. 

])efen<lant's ajipeal wa.s dismissed with costs. 

Tlie words of the rule "in wiiieh the defen- 
dant is now liahle to arrest " refer to all eases in 
wliiih the defendant could have been arrested 
under s. .31, c. 94, R. S. (4th series). This view 
is aided hy the words of the order in relation to 
the security to he given. 

Mhlel V. Gordon, 7 R. & G., 518 ; 
8C. L. T.,r)9. 

16. Order to hold to ball— Requisites of 

— An order to hold to hail must specify a period 
within which a capias may be issued. 

Jiiinen V. O'lirieii, James, 443. 



II. IX OTHKR CA.SES. 

1. Arrest of defendant— Effect on mort- 

gage given by him to secure hia sureties— i 
Parker and Grant having recovered a verdict j 
against F., a rule iii-:i was taken out to set it 
aside. T. & E. I)e\V. & Co. became sureties to , 
respond the final judgment, and took a mortgage 
from F. to secure them from loss on account of 
their bond, and also to secure the amount of an 
existing indebtedness. The rule niti having 
been discharged and judgment entered against 
F., an execution was issued under which he was 
arrested and placed in custody. While he was 
in custody, and after the present suit was 
brought by plaintiff as assignee of DeW. & Co. 
against F. to foreclose the mortgage, and after 
said F. had answered, his estate was placed in 
insolvency, and C, his assignee, intervened and 
became a party. Parker and Grant also became 
parties, as interested in the subject matter. 

Jield, first, that the insolvency of F. did not 
prevent the plaintiff from proceeding with the 
foreclosure, and, secondly, that Parker and 
Grant had not lost their lien on the mortgaged 
property in consequence of their having arrested 
F. under the judgment. 

Tucker, Aisiff7iee, v. Creighton, Assignee, et al, 

R. E. D., 261. 

Set, «/«o-EXECUTION— SHEBIFF— 



HI. A( TIOX FOR ARREST AM) FALSE 
I.MI'RISON.MKNT. 

1. Arrest- Mailcious-Keasonable cause- 
Charge of Judge — Evidence of judgment — 
Improper reception of evidence — On tiie trial 
of an action foi' malicious arrest the .luilgeisnot 
required, wlien the evidcm.'e tcjuching liie facts 
upon whicii tile ciuestion of reasonable cause de- 
pends is eontrailiitory, to tell i\w jury whether 
or not tliere was reasonable o; proliahle cause 
for arrest, but ilirects them projierly in telling 
them that, if the}- tinil one way on the evidence, 
there is reasonable cause, if they find otiierwise 
there is not. 

No record being filed in the .Supreme Court of 
judgments in causes ajipealed from Magistrates' 
Couits, the termination of the jiroceedings under 
which tiie arrest was made issuliicieiitly pro'.ed, 
in support of an action for malicious arrest by 
the testimony of a competent witness who heard 
the judgnieiit on the appeal pronounced in open 
Court by the .Tudge. 

One hundred and fifty dollars not excessive 
damages for arrest and detention by a constalilo 
for lialf an hour, where the plaintiff was put to 
tiie expense of defending a suit before a magis- 
trate and prosecuting an appeal. 

Cox V. Gunn, '2 R. & C, .VJS. 

On aji/Kd/ fo fill Sujinnni Court of Canada, 

Hold, reversing the judgment of the Supremo 

(?ourt of Xova .Scotia, tluit such evidence was 

inadmissible, and was not proper evidence of a 

final judgment of the Supreme Court of Xova 

Scotia. 

Gxmn V. Cox, 3 S. C. R., "290. 



2. Arrest and imprisonment under con* 

viction— Action for — Conviction must be set 
aside— Xo action will lie for an arrest and im- 
prisonment under a conviction which has not 
been set aside. 

ilesservey v. Wallace, 1 N. S. D., 34. 

3. False arrest and malicious prosecn* 

tion — Action for— Proof of proceedings in 
Police Court — In an action for false arrest and 
malicious prosecution plaintiff proved that de- 
fendant delivered two gold rings to him to be 
made into one, that defendant refused to receive 
the ring so made, on the ground that the price 
was too high, that defendant afterwards de- 
manded the ring, which plaintiff refused to give 
up without payment, whereupon defendant 
caused plaintiff to be arrested and confined in 
the police office from Saturday till Monday, 
when, upon being brought before the Stipendiary 



123 



ASSAULT. 



124 



Magistrate in tlio I'dicc ('(.int. lie viis ilia-' ARTS AND SCIENCES. 

L'hargfil. 'I'lii' ('(iiiiily Court Judgf dircctcil a 

IinnNiiit and granttcl a ruh; for apiieal. ' IVtition praying liiat i.x'rtain paintings and 

I/M, tliut till.' noM Hiiit Mas irregular and prints, wliicli wire lapturnl on lioard tiiu Anar- 

must 111- .set aside, anil tiiat tlie following record ^ lean vesnel called the " .Maniuis du Soineruelt-a," 

of the Police ('o\irt «as .siillicient e\ iilence of niiglit l)e re.stcjred to the petitioner on helmlf of 

the teiininatii f the proceedings: " ,1. J. I a scientitic estahlishnient at I'hiladelphia. 

IJackstruni! ciiarge- stealing two rings (pros.] //cA/, that the arts and .sciences are admitted, 
J. Beck), discliarged, amongst all civili/cd nations, as forming an 

exception to the severe right.s of warfare, and as 
entitled to favor and i)rotection, Th"y are con- 
sidered not as the jieculiuni of this or of that 
nation, hut as the property of mankind at large, 
and as helonging to the common interest of the 
whole sj)ecies. Restitution of the property 
decreed. 

The Marquis de Somerueles, '2nd Case, 
Stewart, 482. 



liavhstntin v. livih, ,'> K. »&(;., ,">;<S. 

4. False Imprisonment Action for — 

Against magistrates— Convictions in the al- 
ternative - I'laintitl' was charged before the 
.Stipendiary Magistrate for the City of Halifax 
with lewd conduct and keeping a room, or house 
for prostitution, and was lined S.'iO ; and, in event 
of nonpayment, oidcred to he inipiisoncd two 
months, 'i'liere Mas evidence that the magis- 
trate ordered liim into custody, where he re- 
mained till tlu' line was pai<l, hut this was not 
put to the jury. The conviction had been 
removed by certiorori \xni\ quashed. 

//(■/(/, per McDonald, C. J., and McDonald, 
J., that the magistrate Mas not lialilc to an action ' Justification— 32 and 33 Vic, c. 29, s. 132, D. 
for false inipri.sonnunit. — Two assaults committed — One sued for — 



ASSAULT. 



1. Action for, against Police Constable— 



Per Rigby ami .Smith, .T.T., that the convic 
tion in the alternative was bad, and the impris 
onment thereunder unlaMfiil. 



Plaintiff waives one — The plaintiff having been 
arrested on vieM', and imprisoned by defendant, 
a police constable, and his superior oHi-cr 
Marfcr v. I'njor, 4 R. & (!., 49S. \ brought an action of trespass against the former 

j and recovered a verdict. The declaration con- 
tained only one count for an assault and false 
imprisonment, Mhile the two distinct assaults 
were proved at the trial, the second being the 
one connected Mith the imprisonment declared 
on. Hdd, that this m'.is a fatal objection, the 
plaintiff not being at liberty to Maive the 
assault first proved, and give evidence of 
another. Under Doni. Stat., 32 and 33 Vic, 
c. 29, s. 132, the defendant being a subordinate 
police officer, may give evidence to show- a justi- 
fication under the command of a superior officer 
without pleading such justification specially. 

Peppy V. Grono, 1 R. & C, 31. 



5. False imprisonment— Action for— Mas- 

ter of vessel detaining one of crew— The master 
of a steamer lying in Halifax Harbor, having cause 
to suspect plaintiff of stealing, and having pro- 
duced Marrants to be issued against him, con- 
fined the plaintiff Mhile the search Mas being 
made, in order to prevent him from communica- 
ting with the rest of the crew. An action for 
false imprisonment M\as brought. 

Held, that the master had acted within the 
scope of his authority. 

Leith V. Trott, 4 R. & G., 120. 

6. False Imprisonment— Action for- Re- 
moving party from premises— Defendant order- 
ed plaintiff off his wharf and sent for a police- 
man, who came and took the plaintiff to the 
lock-up M-here he placed him in a cell. 

HeUl, that defendant had a right to have him 
removed from the wharf, and was not responsi- 
ble for the subsequent arrest and imprisonment. 
Hubley v. Boak, 4 R. & G., 82. 

ARTICLES OF C LERKSHIP-FILING OF— 
See ATTORNEY. 



2. Action for before two Justices dis- 

missed — No appeal allowed — 3rd R. S., c. 
1, a. 8 — Plaintiff instituted an action under 
s. 23, c. 147, 3rd R. S., before two Justices of 
the Peace against defendant for an assault, and 
the Justices, on hearing the evidence, dismissed 
his complaint, either deeming the offence not 
proved, or so trifling as not to merit punish- 
ment. Plaintiff thereupon appealed to the Su- 
preme Court, and the Judge presiding at Annapo- 
lis dismissed his appeal, but gave him a rule 
nki to bring the case for argument before the 
whole Court. 



12.-) 



ASSEMBLY. 



126 



y/eW, that in a caso of this nature plaintiff' was 
iiiit cntitltil ti> a])iH'al from tiiu ilfciHiim of the 
Jiolicts of tlu' I'eiici'. 

t'oiisinii.'lioii of ;tnl K. S., u. 1, i*. H. 

Chedeij v. (irassie, 1 X. S. I)., 191 



:). EJcctlnv; person ft'oni building -Man- 

ner of ejecting— Mimdirection in not leaving 
(lUfHtion to jury— I'laintill' was ojected from a 
liuilding ill ))osNi'ssiou of ilcfi'iidant liy (lroi)i)iug 
liiiu fioiii a door or window upon a ))latform 
lii'low, in ct>nsc'(]Uont.s of which plaintiff "» wrist 
was fractured. The jury, in answer to (jucHtions, 
found that the injury was occasioned by defend- 
anl'.t act, liut tliat defendant before removing 
him had recpiested him to leave, and lliat, in 
effecting his removal, defendant did nothing 
more tiian was necessary for the purpose, 

//(/'/, that there should lie a, new trial, on the 
ground of misdirection in not leaving it to the 
jiuy to say whether the place at which plaintiff 
M as ejected was a fit and suitable place for the 
piii'))ose. 

We;vtherbe, J., dlisenthnj, 

Kdhj v. lihodM, 6 R. k (',., r>24 ; 
6 C. L. T., 542. 



4. Raising clenched fist ns though about 

to strike— Interference with Pewholder — Plain- 
till' and the two defendants, M. and H., were 
attending service in a church of which plaintiff' 
anil ^I. were pewholders and H. the cliurch- 
wardcn. M. conceis ing that plaintiff' had given 
him cause of ofFenoe and was interfering with 
his family, came to the door of plaintiff's pew, 
and, raising his clenched hand as though to 
strike plaintiff', ordered him out of the church, 
at the same time applying to him opprobrious 
epithets. Plaintiff' refused to go out until the 
serxice was over ; whereupon defendant H. ap- 
proached and also ordered plaintitl' to go out, 
saying that if he did not he would have him 
expelled. Plaintiff' thereupon, wishing as he 
alleged to avoid a disturbance in the church, 
Went out. Neither of the defendants had any 
personal contact with the plaintiff, or made any 
otiier show of force than as already described. 
Plaintitl' sued for damages for an'assault and for 
wrf>ngful interference with his right as a pew- 
liohldr in the church. 

The jury found a verdict against M. only, and 
acquitted H., and M. moved to set the verdict 
aside. 

Held, Wilkins, J., dissentivg, that M. had 

been guilty of a " disturbance in a church " and 

of an assault, and that the verdict should stand. 

In<jlefidd V. Merkel ct al, 3 N. S. D., 188. 



I ASSEMBLY, UOISE OF. 

1. Constitutional' powers of -To punish 

for contempt Exclunion of member for past 
oft'ence — Plaintiff', lieing a mend)er of the Iloaso 
of Assemlily of Nova .Sct)tia, in a speech made 
on the ffoor of the House, and while the House 
was in session, charged the Provincial .Secretary, 
also a iiieml)er of the House, with iiaving altered 
and falsified certain pul)lic records and grants 
of tiic Crown Land Department, after the 
signature of the (lovernor had been ap|)ended 
thereto. A connnittee appointed to investigate 
the matter reported that they found the charges 
altogethei unfounded, and that the evidence 
jiroduced had co.npletely exculpated the Hon. 
Pi'ovincial .Secretary therefi'om. A resolution, 
l>ased upon that report, was passed by vote of 
the majority of the House on April '28th, recit- 
ing the charge, the investigation, and report of 
the comnuttee, and concluding with an expres- 
sion of the opinion of the House, that plaintiff 
in preferring sucV. charge •,\ithout due prelim- 
inary investigation had been guilty of a breach 
I of privilege, and that he should lie dealt with 
I according to tlie rules and jiractice of Parlia- 
ment. Subsequently, on April 3()th, a resolution 
was passed reciting the charge, etc., and requir- 
ing the plaintiff to appear at the IJar of the 
House, and with the doors open, nuike an 
apology in terms dictated by the House. 
Plaintiff having declined to comply with the 
reipiirement, a roiolution was passed declaring 
his refusal to make such apology a contempt of 
the House, and requiring him fortliwith t' 
withdraw until such apology should be n'.ue. 
Plaintiff having declined to withdraw, n resolu- 
tion was passed to the effect that he iiould be 
removed by the sergeant-at-arms and kept 
excluded until he shoul ^ signify his willingness 
to make the apology required to the House. 
The resolution was at once carried into eft'ect, 
and plaintiff' brought action against the speaker, 
the sergeant-at-arms, au'l certain members of 
the majority that carried t'ne resolution. 

Htld, that the defendant's justification must 
depend solely on evidence connected with the 
subject referred to in the resolution, and that 
evidence of the misconduct on the part of the 
plaintiff on other occasions was irrelevant, that 
the House of Assembly, in passing its several 
resolutions, had in effect adjudicated upon an 
alleged contempt on the part of the plaintiff' in 
refusing to make the apology required, and in 
so doing had exceeded its constitutional power, 
that as there was nothing to indicate that the 
House had taken action on account of any 
unparliamentary or disorderly conduct of plain- 
tiff calculated to interfere with the performance 



127 



ASSESSMEiNT. 



128 



of its legislative duties, and as the jury had 
found, under the eliarye of tlie Judge, liiat, the 
exacting of tlie apology was for a past oU'enee, 
and plaintiil' was exulu(le<l because lie would 
not comply with the rcijuirement, the verdict, 
which was for the plaintiff, could not he dis- 
turbed. 

The 32nd rule of the House, prescribing tiiat 
in cases not otlierwise provided for the House 
shall be guided l)y the rules, usages and forms of 
tlie Imperial I'arliameiit, does not confer upon 
tlie Asseml)ly of Nova .Scotia the power to punish 
for a contempt. 

WoodiroHh v. Trooj) it nl., 2 R. & C, 84. 

(Pending appeal to Supreme Court of Canada, 
defendant Troop died. Landers, one of the 
other defendants, carried on the appeal.) 

On appeal to the SnpreniK Court of Canada, 

Held, aifirming the judgment of the Supreme 
Court of Nova Scotia, that the Legislative 
Assenibly of the Province of Nova Scotia has, 
in the alisence of express grant, no power 
to remove one of its meniliers for contempt, 
iniless he is actually obstructing the business of 
tlie House ; and W. , having been removed from 
his seat, not because he was obstructing the 
business of the House, but because he Mould not 
repeat the apology retjuircd, the defendants were 
liable. 

Kidky \. Carxon, 4 Moore, P. C. C. 63, and 
Doyle V. Falcono; L. R. ]. P. C. App. 328, com- 
mented on and followed. 

Lander-i v. Woodiuorth, 2 S. C. R., 158. 



ASSESSMENT. 

L OF BANKS, 127. 

L IN CITY OF HALIFAX, 129. 

in, OP DYKE LANDS, 129. 

IV. IN NEW GLASGOW, 131. 

V. OF RAILWAYS, 132. 

VI. FOR SCHOOL RATES, 136. 

VII. Of SHIPPING, 139. 

VIIL REMEDY WHEN RELATIVELY 



TOO HIGH, 141. 



I. OF BANKS. 

1. Act Incorporating town of \ew Glas- 
gow—Acta 1875, c. 49, as. 46 and 52, 4th Rev. 
Stats., c. 21, a. 67- Certiorari —The Act of In- 
corporation of the town of New Glasgow, in 
section 46, provided that the corporation should 



assess, collect, and pay over wiiatever moneys 
were recjuired for poor-rates, and all other (ex 
cept school) rates, and should have within tiie 
ti)W)i all the powers relating tliereto vested in 
the sessions, grand jury, town meeting, etc. 
The r>2d section empowered the town council to 
make by-laws and rules touching all matters 
witliin tlieir authority, including rules for regu- 

^ lating tlie mode of assessment anil levying tiie 
same, which by-laws, when approved l)y the 

. Governor-in-Couiicil, should have the force of 

i laws. Tiie ))V-laws so made defined iiersonal 
property for tlie purposes of assessment, so as to 

I comprehend all goods and chattels, and provided 
for the trial of appeals from tlie assessment. 
They contained a further provision, that the 

j roll, when finally passed, should be valid, and 

j bind all parties concerned, notwithstanding any 
defect or error committed in or in regard to it. 

i The Bank of Nova Scotia, doing business at 
New Glasgow through a branch, ajjpealed from 
its assessment, and the appeal having been heard 
in the mode provided by the by-laws, the assess- 

I iiient was coiitirmed, and a warrant issued, in 

I pursuance of which a levy was made on books 

1 of account of the bank, and on a number of 
promis.sory notes, the properly of the bank. 

! The bank having thereupon brought the assess- 

i ment and wai'rant up by certiorari, 

\ Held, that sec. 67, of cap. 21, R. S., did not 
apply to the case, being confined eo nomine to 
proceedings of the sessions, that the levy on 
promissory notes was good, that the provision 
of the by-laws making the assessment final and 
binding, notwithstanding defects or errors, 
did not prevent the Court from reviewing it 
under writ of certiorari, and that the certiorari 
would lie in such case if the affidavit disclosed 
sufticient grounds, the scope of the writ being 
wider here than in England. 

The Court, after ruling as above, quashed the 
certiorari, without costs, sutKcient grounds not 
having been shown for setting aside the assess- 
ment. 

In re A'<'<f'<'^ment of the Bank of Xora Scotia, 
by the Tov:n of New Glasgow, 3 R. & C, 32. 

2. Banks — Personal chattels, definition 

of— By chapter 45, R. S., (3rd series), "Of 
County Assessments," section 15, it was enacted 
that the words " personal estate " and "personal 
property," for the purpos>3.s of the act, shall be 
understood to include all such goods, chattels, 
and other property, as were enumerated iu 
Schedule A, thereto annexed, and no other, the 
only portion of Scliedule A applicable was as 
follows: "All personal chattels of every kind 
and description at their actual cash value." 



12!) 



ASSESSMENT. 



130 



The Hank of N'iiriiinutli li.i\ in;: lici'ii iissonscd 
Vilnlcr '.lie aliovf euiU'tini'lit, ,is jicisanal fstati', 
f(ir SL'O.dOll, the avfi-agu aiiiiMiiit nf lasli cu liaiid, 
aihl till- Sl()U,(MMt casli lent out, 

//(■/(/, that the hank was liahlo tn lie assessed 
for the average amount of slock on hand and 
the value of ))ei.son;il propeitj-, exehisive of 
stock lull not for the amount of cash lent out. 

The oliMi^e •• personal chattels" means rjiily 
such thinu's as animals, liou>ehoId stulV, money, 
jewels, corn, ganiielits, and eveiylliing else that 
eaii lie put ill iiiniioii and tran.^feifed from ))!aeu 
to ]ilace, liut does not ineliule eho.-es in action, 
notes of hand, lioiiils, anil seeiifities for money 
loaned or due, v\hieli may he- I'ealized U])oii hy 
action or >iiit. or ctherwise. 

/„ ,-. I'lir li'iiil: I,/ Yiiriiinnlli, -J X. .S. {).. .'{(IS. 

:!. liiiiiks - Tax oil Dominion notes 

Authority of Local Le<;i.slature to impose — 

'i'lie l.oeal Legislature has authority to enact a 
law imposing a tax on tlie dominion notes held 
liy a liauk as i)ortiuii of its cash reserve, tiiider 
the l)omiiiion Act relating to " lianks and liank- 
iiig," i;il \'ic.. c. ."i, s. 141, and iiider llie liy- 
lans of the town of \\'iiid.-.or such property was 
held to he jiroiierly in<liidcd liy the assessor.s in 
their valuation. 

Tlv Toti-ii of \]",iid<or V. Tin: Comm< i ial 

liiiiik of Wiiidior, 3 R. cV C, 4--'(». 



II. IX (TTV OF HALIFAX. 
1. tity of Halifax Acts of IS«4, c. 81, 

s. 370, N. S. — Reqiii.sitea of -The requisites 
of section .STO, of the City Act, chap.Sl, Acts, 
]SI)L are not suilieiently complied with liy a 
certiticate stating merely that the defendant has 
hccn assessed in a particular amount, of which 
he has had notice, and that the amount is due 
and unpaid. Tlie certiticate niiisl go further, 
and show that the amount has not lieeii collected 
and paid over under the warrant of distress pro- 
viileil for hy section 309, 

T/ie Oil!/ of Halifax v. Ikunr, 1 N, ,S. D., (it». 

.S'm, ?(/vo, Iifra, \"1I., -. 



in. or DYKK LANDS. 

1. Dyke Lands - Acts 1808, c. 24 - Itli 
Rev. Stat,i., e. 21, 13. 16; cf. 5th Rev. Stats., 
c. 58, s. 5 -4th Rev. Stat., c. 40, s. 15, same 
as 5th Rev. Stats, c. 42, s. 15— Under Act ISdS, 
cli. -Jt X. S., the Windsor & AnnapoILs Railway 
Company arc liable to be assessed for the niain- 
tenaiico of the dyke protecting the marsh over 
which the track of theii- road iJasMCs, owned by 
5 



them, section Hi of chapter "JI, 4tii I'ev, Slats., 
ap])lyiiig only to county assessments ; and re- 
course need not be had to the land itself under 
section ir> of eha])ter4<(, 4tli Rev. .Stats., as that 
section i-efers only to the original construcliou 
of the iljke where the owner has ntit consented. 
liroirn v. Windsor ^- .liiiiiipolix Itailiniii Co., 

•_' K. & (i., t.'{(»; 

•JC. L. T., •JH-J. 

2. D.vkc Lands - Assessment when rate 

exceeds $1.50 per acre utli Rev. Stats., e- 
42, s. 8 — The commissioner of a dyke made a 
rati' amounting to more than ."^l.-'iO jier acre, 
willioiit calling the proprietors together under 
the statute, .'itli I!. S., call. -*-' ''^■'-- '*^- 

//fill, that he had no power to do so. 

(Jiiiirrc, I" r Hitchie, .1., whether the conimis- 
sioiHi could levy an assessment foi' costs. 
hi re Jlixlioj) iJiihc, -'0 X. S. 1!., (s It. i\: (;.), tj,"). 

3. Dyke Lands Hate Dainai^es, how 

valued - Cost.s included in rate 5th Rev. 
Stats., c. 42, .s. 20 -A dyke rate assessed liy the 
commissioner included, be-ides the legitimate 
expenses, three sums: (1), for damages to lands 
of one of the owners, valued by assessors ap- 
pointed by the owners, instead of being agreed 
upon or valued by freeholders, as ]ioiiiled out in 
section "JO of chaptei' 4'2, I!. S. ; (2), costs 
] incuri'cd by the commissioner in liringing an 
I unsuccessful action for dyke rates against one 
of the ]iroprietors ; (.'{), commissions on the 
whole sum, including the above items. 

//(•/'/, that items 1 and 2 could not be allowed, 
and that their disallowance involved a reduction 
of item .'{ ; that, therefore, the rate must lie 
(piasiied with costs. 

J/t'ld, farther, that the objection that tie writ 
of icrtiiiriiri \\i\ti too late, was not available at 
the present stage of tiie proceedings, but shouhl 
have been taken on a substantive muiion to 
quash tin; writ. 

In re Bishop />///.■?, 2(1 X. S. R., (>S R. i*c ( 1.), 2ti;?; 

8C. L. T., 44G. 

4. Dyke and marsh lands -4th Kev. Stats., 

c. 40, s. 27, aame a.s 5th Rev. Stats., c, 42, s. 37 
— The Wickwire dyke, being constructed out- 

I siile of, and atlording valuable protection to, the 
Grand PriS dyke, previously constructed, an 
appraisement was made under the statutes then 
in force, identical in terms with 4th Rev. Stats., 
e. 4(1, s. 27, by which the proprietors of the 
CJrand Pre dyke were required to pay to those 

1 of the Wickwire Dyke £19 annually. This 
sum, so settled, was annually paid by the pro- 
prietors of the Grand Pre marsh as long as that 



131 



ASSESSMENT. 



132 



niarsli iccimvciI any pmlcTi inn frnni tlic unlcr .ill oilier rales, mmiI i,()iifcrri;il u[)on tiiu coriiora- 
(lyke. Ill iHi;!), ,1 liiaxy ^'ale and uiiuMially lion all llii' ifiHcrs I licri'tofori; vi'hIiMl in tlirj 
'iij,'li tiilc l.'inlii: ihc iiiilcr ciyUi- ami sn)ilner;;eil .Scssinns, ( ir.ind .) iii y amlTow n Mi'i'l inj/s, willi 
tilt; \V'ii:k«iic: niar>li, ami llic- ilykc was iiol, |)(iwcr to make liy lii^-.s hiilisl il iiliiig HHxr.s.'^niciil 
fully ri'pairi'il until H7 1 , «liiii tin- iiropric'lorM in lii-u of .slatuti; lal.or, and to make, all rules 
called a. meet iii;^ of I he |)ro|)ilel ors <if I lie « linle necM-.s.sary for tlie creating' and (.ondiiet of I lie 
level, liad freeholder.^ ajipointeil as liefore, and police and niiiiiiei|ial court, of llie town, ami lor 
ohtajiied from I hem an au ai d of .■'■JIM), to l>e paid rei.'iilat iiij^' I he mode of asHcssment, and levying 
iinmiallv h\' the |)i iipi leior- of the Craiid I'le l)ii' same, and t.'c'iierally for all purpoM-s eon- 
dyke. ne(;l.(Ml uilh or ailed in;.' the internal manage- 

/'(•/■ I'itehie. Iv .1., ineiil. c,r ;.'o\eriiment oftliel.oun, 

//</(/. thai the priipriei.ii.-, of tlieCrand I'ri' //r-A/, thai ilie corporation could not, under 

mar.-h craihl iiol lie cdlcij upon lo coiiiiiliiilc i h,.,-e pro\ i.-ion,-, i->talili>h a ('ouit of Appeal 

towards tin- repair,- ol I he Wickuire il\kc he ;,|,,| Hi. vision, \Mtli reference lo assessiiielils, 

yond I he a.nniial sum oricinally sell led. Ilelend \i ilh pou ei 1 o admilii-l er oath.-^. 

ants lia,\iiit; contended thai they could not l.c 1,'ndcr a li\ lau of i he 'lou ii of \eu (;las;.'ou, 

rci|uircd to c.,nl rilaite al a 11, a,- I licii nia r,-h ua,- pro\ idin;.' I li.i I all rciland pcr.-onal eslat e in I la; 

•inly part ially eiic|o-cd and nol prolecleil l,y the |.,un should he lialile lo t.ixation, 

Wickuire dyke; and, fiiilher. llial llnrc had /A-A/, that In.-iirancc and h.nik stocks ouiad 

hcen n rcL'ularit ic.- in 1 he or!L.'inal pi occcdin;.'.. |,y rc,--idc-iils of I be lou n, in companic,- not, doing 

//'/'/, that lia\inL.' .Hi|iiie.-ced in the annual lur-iness in thelouii. ueienot liahlc lo as.se.^.s■ 

|iaynicnt,- tor upuaid- ot lueiily In e yen ,-, I hey n^cnl. 

oonid not now rai,-e such a ipiesl ion. iuid ihai W here I he .\,- (■,~,-uicnl llo'l was amendeil hy 

the alleged irre;.'ularit ie.- could only lia\cliecn ihefoiirt of |!e\i-i(ni. a, commit t,ee chosen from 

lakeii advaiila-e of hy ,< /■//., /■((;•/. I he ( oiincil, pnr,-ua lit toa hylaxv.foi' I he piir- 

II ir/.ifii r \ . (iiiiilil, I!. 1'!. l).,'Jl."i. pip.-c of review ing t he assessinenl, ami the aelimi 

( )ti iiiiiKiil IKiiii llic Jiiiliii: id I'.ijiiilil, .if llie('oiiil of |;e\i-ioii was conlirined hy tlio 

lhl<l,\ ha I I he ,-l at llic con hi not he a -econd lime Council, 

invoked, and Ihil I he proprieloi.- of thcCi.iiid //./r/. thai a uril of -v ,^''i/";'/, addre.-scMl t'l 

I're dyke ciaild not he called upon toconlrihulc il,,. ('(,iirl of lle\i-ioii and the 'I'ouu ( 'leili, 

aiiyt hing heyond the sum of 1 1!), originally .-ei - ,.(iiihl he su,-tained, though otherwise if it hid 

tied. hefendants having conicnded thai thej |,een a,ddre.^scll only to I lie ( 'oiirl of l!e\ision. 



could not he rei|iiil'ed lo conlrihute al all, as 
their dyke was not protecied in u hole liy the 
Wickuire dyke, Ihlil, that having ac(|iiie.sced 
in the annual p.iymcnt from 1>>IS dounviards, 
and set out in Llieir aiisu er t hat, I hey liadolleriil 
and wfVf willing to pay the amount after 1 S7 1 , 
when the repairs uerc conipleled, il uas loo 
lale for' them now lo raise ,• mih a c|Ui'sliori. 

//..''/ y-i/- .McDon.dd. .1., though the de<'isiori 



Fruurr iV Ji'// \ . '/"ini of Am- fi/n.si/'nr, 

I. i:. .V <;., -..Viti. 

S' < , f(A<o, siijiiii , '., I . 



\-. OF l;.\l^w.\^ s. 
1. Kiillway I'rovinclal Kxcniption from 

:ird Ri;v. Stats., c. 45, h. IG; <:f'. TAh Rev. 
dill nol pKieecd upon that ground, that defend- J^tatH. c. 58, ». 5 -The Windsor- it Arinapnlis 
arris wer'i; at iiliei'ly to insist, a.s a good defenci;, [{..^il^ay is a, l'ro\incia,l {Railway within llit 
upon the faci that the necessary irotices of ,,,|.,t,|j||j_, ,,f chapter 15, l!c\ised .'Statutes !.')i'l 
ineetings for the appoini merit of appraLMMs, i\:c., ^,.,.i,.^)_ i'()f County As.sessrrrerits," .sei:. Hi, aii.l 
liad not Im'Cii legally given to <ill the proprietors j^, ,,x,.,|ipt from assessment iindi'r tin: Act. 
of the inner dyke. ' 'I'li,, ^i.,,,, ^,.^y „f ,.xe),ipii.,n depends upon tin.' 

Wichmn: el iil. v. (jimlil <l. nl., .S |{. & ( '., ItW. f.^,.,^ whether the road is or' is not a portion of 

the l'io\incial liailuay, 
l\- l\ NKW (M.A.SCOW. TheCounfi/ofAniinpoliswT/K-Wiiif/formid 

Ainifip.'j/ls Jldiiiraii Co., '1 X. S. D., •'(!•(. 

1. New lilasj^ow \o power to establisli 

Court of Appeal and Riivisioii Stock of com- 2. IkallHJiy damages 'iOVIC, (■•!•' ^« **• 

panicH not doinj,' huHJncHH in the town held fry Jury aHH(;.Hning on wrong principle Vriidict 
part'CH in the town 'i'he act incorporating the Het -wide Where a party having a parol license 
Town of New (ilasgow empowered I lr<! I'oipnia- to cut trees, appealed froirr the appraiferiielit 
lion to vote, hbhchh, collect, receive, appro|iiiate, , made under tire Act, 'JO Vict., (;ap. I.'l, toaiulmi'- 
aiid pay the inoneyH reijuirod for poor ralcH and | vm a,HHenHnrenlH for railway danrages, aird a jiii> 



i;j3 assessment. \u 

(111 lliiit ;i|)|)i:.il iiMSi-.HMcil (l^uiiiit.'1's on a NMoii^' f-if t lii' i-,\[ii(i|)ii;ii inij ol hiijil fuMlic li^^'hl of wav 

|,|ll|ri|,|l-. t'li- (III- line. 

//'W, ih.il the Coiiit, woiilil ;>i'l :i.--iili' I lic- \ I'r- Oiillic ,-aini' dale, •■. 71 dlllii' Adh ol I sTd, 

<l|rl (ill I III' ^.'IhiukI of cxcc^.sivc i|aijiaj;c.i Ijavjiij,' was |),i.s.-,r7l, iiijil, in onlcr ta ii)c()r|)iir:il i- iiiiil 

liiM-ii >,'ivcn. nis>; any i-oni rartoi.s wIjo.mi- Irndi'r' for consif lu;- 

I'l III il ji \ . Till Cihi iif lliilifiij-, •2'\'\iii\u., 1 )•_'. lion slioiili! t.ljcrcaflci' ln' iiicc|)|(.(l iIk; sanii: 

'■oi |ioi:ili- pouii.-, iinil )iii\ ilij.'is as IIiom- nii'ii- 

!{. liailna.V(laiiiaK<'s Costs ofn'-aiipraisi!- nonci ii, ,.. 71, ,-, \ ,,\ \\n- a.i,, ,,f i.s7(i uan 

ini'llf ot'laiiii.s Act.H 1H7H. ':.ii.'i ( ■orririii.-.--ioiM'i - |)'i--i'il. 

will- apiioinliil ini'lcr r. ,';."), Ad > of ]S's. to i c l!\ ^i'-. .'i'i of .■. 71, and -.A^n \,\ mi'. i; i,f i-. .'{ 

,i|>|irai.-i' liinili laUcn for railu:i\ |ini))o,-i- iij ot tin- Arl^ot I S7ti, iir Inin Miljon:-, of c 7I» of 

|)i;.'l)\ ( 'oiiMl y, ai]i| jl ua,-, |)i i )\ irlii I liy l!i'' A' I 'ii'l U. >. , arit iniorpor a I cd in tlioc i ii^irl nicni.s 

lli.il llii ic a|i)iiaisrnicnl , "loyitiicT willi llii^ anil maili- a|)|)|jralil(- lo llii.^ line <if i\iilw;ty, 

(■n>i~ liiicliifoir inrnriid ' slionM In' a i-onnly ulili-li ^cilinns ujoii- |iarl irii|:iily relate to tin; 

'■li.ilL'i'. Ilioile of ;ii'i|i,iii|i;; I. mil-, |i,r the ri;.'lit of uav, 

ll'lil. Ilial the rost.s fof sei'vice.s liefori: I lie "la I ion- . el e. , I lie pjoi-eil iii c tof a |i|)i;' '>in'_' 'lani- 

( oiiiJiii-ionei - lor re :i|i|)iiii-^eiiienl eoiilil iiol lie aee-, ;,i|i| ||||. moile of .■is.'^e.ssin;.' the varion.4 

ta \ei|, MS I lie All |ll o\ iileil iinl\ for I lio>e jliein lei I eoNnI ie- jur | |ie pay nuiil of I lie ;i MlOIUli - ll u i nliil. 

|il lol til il- |ias.-in'_'. ('. 70o( ."jril {;. .S. e(iiii|)i i.~e.- in lOiiMilnlaleil 

/// /r 111 -/'/■// ( 'iiiiiilit ^ Uniliiii fi. toini all eiiiiii piieiii.-, jn fiiiie in Nova Seotia at 

ir jiiiili llnrilii, I \\. k (.,, I7l>. llial ilale, i ela t in(^ to |)io\ ilieial lajivvay.s. I'o!' 

' on\ euieiiie, t II" va liolis |ail\\;iy <'oiil|)a nii- in 

J. Kail'.vay A<1s or .Nova Srolia Kai^ .Nova Si-oil;,, sialiah th.- WinilMir^iml Aiina|,i, lis 

way. apiiraisemcnl, of lanil.s tor Ordi'r lo set llMiKvay ConipMiiy. ilie We.-tei n ( ounl ie- llail- 

a.-:|i|e proceedintM K.sfoppel .Jtldmiient. not way ( ■onipany (.<(•(■.•.. 'SI, .\.|>i,f |Mi>S; e. SI, 

I'ppealaljle 'Ilii. u as an applie.it ion lollieSii Ail- of IM70I, iia\ e. in oliliuniii- lliiir ,ii Is of 

plinii( olll! ol .\ii\,i .S, iitia.iisklliL' it to.-el a.-ide, ii.ii ,ipi ,ia I inn , a\all(ii t liini-il viv- of siniilaf 

HI a -iiiiiinaiy iiiannep, tlie u hole a ppi ,,i-eininl of .jaii.-i .-, fr.,ni .-. 7U i.t ;iiil |;. S., I.v expie- .-, enael - 

laiid i|aiiia(i(-K ;iwa|iled to he iiaidhy the Coiinly inenl. wilhoiil i epe.il iii;.i ihem in ||ie.\,i op 

III I iie .several pioprieloi,- of lands in I'iitoii piiAidiii;.' other liiai hiiieiy for the e\piopii,i,||oii 

( iiiilily, who.-,e I. mil, had lieeii i\ propriati-il tor i,l lands, and the ,a,-iei tainiii;; of land dain,i;res. 

llie hue of railway exleniliri;,'troiii .\eu(ila.-~;^o\v, When Ihefth .series of the |{ev. .Slats. wa.s 

II; I'irioii County, to the Strait of Can.so, and prepared, eertaiii Ails of Ih.. I'lovinee not re- 

kiio'.Mi asthe Ivislern Msteiision. 'Ihis appiai,-e enaiited were eonliniied in fone, and animij,' 

nil III wa- niaile on the assiiinpt ion lliat under t hem .-o niiii-h ofe. 70 of the .'jrd series as was 

llie rolill.iel wilhlhe .\o\;i .Srolia l'ov el nnient I hei em ,-pei||ieil (x/-e t he .\il to piovjije foflJKi 

fill the roust met ion of ihi.slineof railway, and piihliial ion of the Colisolidaled ,S|alii!e-, ;J0| Ji 

the -laliites relalinj,' theieto, anil providin;; for .\pril, !.S7.'{, 1th !!. S., paj/e -J,, 

the e\|,ii,priatioii of land- for rifilit of way, etr., Mr, Harry .\ hhot I , havinj.' enteieil into thiion- 

appiai.-inieiil of damage's or compensation lo tract w itii the Koveiiinieiit lor t he coiislruet ion of 

the pinprielois, and payment thereof, the rij,dil this line, sonj/ht ler e. | of I he Acts of 1 S7(;, in- 

ot way was furnished to I he lonipany freehand eorporal ion and I he heiielit of I he provisions of !•. 

Ill'- iiiliipen-ation for land daiiiat'cs was to In- 7 I of Acts of IS7r(, and ohtained a eeit itieate of 

I''"' "'''I' appraisenient in the manner pie inrorporat ion under Ihe name of the lialifa.x 

.'•iiiheil. hy 111,; ,;iistoH of the- varioii.s coiinlies and Cape lireton llaiKvayaiid Coal Cimp.my. 

tliioiiL'h whicli the line ran, i.ssiiinj.' delicnt iir e.s The Coiii))iuiy \\ as orj,'aiii/i;(l under this Ad, 

''"' •'"' ■iiiioniits d 111' to the proprietors, which and t he ri;.'ht of w ay haviiig linen olitaiiied under 

li'hilitiires were to he redei^nied hy means of I he statutes, t he dama^.'es were applaisiMl and the 

Incal taxation. worU oi const riict ion he;.Mn ami was carried on. 

Itehiii; the I'lovimial ( iovernineiil of .Nova liilS77 an ordi'r was made hy I he Chief .lii.s- 

iSi.'otia had entered into the contract for Ihe I ice of I he Siipreine Court of Xo\a Scotia, on tliD 

const ruit ion of th(! Kustern Ivxteiision iilU', and pelilion of a niimlier of the iiropetty owners 

wlnleilie^ w,i|(^ iiej,'otialinj' iherefor, the .Nova wlios,; lands would Ihi all'<ji;t(j<l l.y the Imihlint,' 

Scotia, l,e^;isiatuic-. on lln^ Itli April, lM7<i, of t hc^ railway, direct in^,' the prolhonotiiry of t hi; 

ImnHcil c. ;; ..f n,,. \,.^^ ,.)■ \^-^■^ ,,, ,.||;||,|,. n,,. County to draw and Ktrikiia jury, under the pro- 

g'lviMiiiiii.iit to enter liilo ,1 (■onlract for Ihe con- \ JHion.s of c 7't of .'ird I!. ,S., to appraise the; 

Nlriictiiiii of thi.s line of railway, ami ii.ad<; iaiul ami properly taken for the pui|iofie of tlio 

I'lovisii,!, ih,,|.,,|,y f,„. the payment of II sulisidy Kastern Kxtension liailway. 

"■lalj-'iaiits of land to those undertaking it, and In |S7H a rule iiIm was lakfli lo set ii.-ide llio 



135 



ASSESSMENT. 



136 



wiidln i)i'<)i;ec'(liiigs, Imt a year later it was dis- 
cliai'i,'oil on iiKitioM iif the jiaily \\ lio liail (ililaiiicd 
it. 

A ijiu'sticiii liaviu^' ln't'ii faiscil as to llic 
valiilily iif tlio iinorpnialidii of lliu Coiiiiiaiiy 
uiiiKr c. 4 of llie Ai-ts of 1S7(I, liy the Lmal 
( iovelMiiiclit, and lcL;i>lal ion lifiiii; alioiit to lie 
pa.ssc'il to fi'inovi; siifh iloulits, anotlicf fide was 
oKtaiiicd in lS7!t, on tiio yiiniiid that tiic Hali- 
fax and Cajii' I'.rvlon Flailway and ('(jal ( 'oinpany 
liad no ieiial existiMice. Aftff the ai;i.'iniiciil of 
this I'tile. and liuforu judgment, eliapteis (i(i and 
70 of the Acts of 1S7!) were jiassed liy tlie f^egis- 
lattlfe of N'ova Seotia. After iieariiig theetislos 
of the Couuty liy counsel liefore a eoniinillee of 
the Legisiatiife, two sections of the ^\.et weie 
added in the inteiest of the Coiiiity. 

The Sujneme Couil of N. S. , held, tlial the 

County of I'ictou was estopjied liy tiiese statutes 

last mentioned from dis|iuting the a()])raiseinent 

of the lands taken, ami liy the issue of delienltires 

by the t'onnty to parlies to whom damages had 

been awariled for the lands ap])ropriated to the 

railway, some of whiidi had liei'n indorsed to 

third i)arties. 

Inn I'iv/oii J^fii/irai/ -Dtniiiii/cs, I It. I'v: < i.. US. 

Oil (i/i/i'(t/ to till Sii/iriiiii Court vj Cuiiuilii, 

IIl/iI, that the judgment of the Court lielow 

was not one from which an ajipeiil woidd lie, 

there lieing no linality alioul the order made liy 

the Chief Justice of the Court below in IS77, 

which was what this appeal sought to set aside. 

Hockiii y. llidifdj and (ape Jircfoii liadwaij 

and Coal Cunipan;/, .'■''/// Oifoher. IS'Sd, 

Cas. Digest, •24-2. 



5. IJailway damages -3r(l Rev. Stats., 

c. 70, ss. 44-59— Objections to assessment — 
Q'he Act incorporating the comiiany for the ei.in- 
.slruction of the Xictaux and Atlantic Railway 
provided that the laml recjuired for the road, 
&(.:., shotild lie furnished gratis to the coui])any, 
■who were aiithoii/ed to exercise all the powers 
necessary for locating and completing the rail- 
May ; and the company was empowered to build 
the road " under the powers, authorities and 
p"o\isions of this Act," (the Act of Incorpora- 
tion) "and also of chapter 70, R. S., 3rd series, 
of Rroviiicial (iovernment Railways, so far as 
the same shall he ajjplicalile to such railway." 

Held, that although sections 44 to 50 of chap, 
70, providing for appraisement of the lands 
taken, and assessment of the county, were not 
expiessly eniboilied in the Act of Incorporation, 
they were available for the purpose of making 
the appraisement and assessment. 

Held, further, that the objection, that the 
application for a jury \\as made to, and the 



order granted by, the Court on Circuit inslead 
of a Judge of the Court, and the olijectiou that 
the renin' was n<it tiled within thirty ilays, were 
obviated by section 5'J of cha|)ter 70, ])roviding 
that l)roceedings should not lie set aside upon 
any mere technicalit_N . 

Ill Id. fnrtliir. X\\-A\ the olijcction, that ))lans 
anil specilications were not on lile as rei(iiired 
by st'ctiini 47 of chapter 70, wliei; the order 
passeil. even if it c<iidd lie raised by tln' parties 
whose lauds had lieen seized, could not lie taken 
by the eoimty authorities at whose instance 
pr<iceedings hid been taken, and that the same 
principle a]i])lieil to the eonleution that the Act 
contemplated <inly one a])praisement , and that 
all the plans ami specilications for the whole 
line must be tiled belore the order. 

In re yicliiiij and A/liiidic liail irnj/, 

•2 R. >S: (;.', •-'5-_'; 
1 C. L. T., 707. 



^'I. rOR SCHOOL RATES. 

1. Sc'luiol Act 18«5, 0. -28, \. S.-The 
Court held thai "all future assessment^.," in 
sec. 8 of Acts iiS(i5, c. •_'«, N. S., retVrred to 
assessments made <ifl(r the assessments conteiu- 
]ilateil in sec. 7 <if same Act. 

/)( re Pinco vt ai, 2 (./Id., 17S. 

2. School— Appeal t«» Sessions -Poner of 

Sessions to set aside assessment -Where the 
; groumls of an ajipcal from an assessment for 
scluMil rales are simply matters of detail the ap- 
peal should lie ]irimarily to the Court of Ses- 
I sions and not to the Supreme Court. 
' The Court of Sessions has power to set aside 
I whole as.sessment where it manifestly appears 
that it has been irregularly and therefore ille- 
gally made. 

In ro A.fsfgsniciit •'-ic/iool Jtato, 

I iScctiun ,'/•'■> An/ii/onis/i, ',il\. S. 1)., I"-'-. 

I 3. Scliool- Construction ttli Kev. Stats., 

' C. 32 — M., Son & Co. carried on business in the 

City of Halifax, and also at Redford, in the 

County of Halifax, owning and occupying pro- 

, perty liable to assessment for school ])urposes in 

i both places. The members of the lirm resided 

I in the City of Halifax. I'revious to llie asso.ss- 

imentof bSS'i the hrm made an assignment for 

the general benefit of their creditors t<i plaintiff 

who was carrying cm bnsincss at Bedford uiuler 

the tirm name at the time of tlie'assessmput, but 

also resided in Halifax. A portion of the ))ro- 

perty at ISodford assigned to plaintitl having 

j been levied upon for rates claimed to be due for 

! the snpport of schools in that section, 



137 



ASSESSMENT. 



138 



Ilvhl. \Vi-:itlicHif, J., iHiMiilhui, tli.U iiftfT 
the iis.sii.'iinH'iit, uiiik-f lii'viwcMl StiUulL's (4tli 
series), rhiiptfr ."i'i, sictions .■)4 iiiid M, the pro- I 
pei'ty lev ied iii)im was lialik' tn assessiiieiil in ihe 
section in «liieii the (H'l^'iiiul nuiiers hisl lesideil. 
(Iralidm v. Monaijhnn, .") R. \; (i., ISO. 



4. School - Liability of nartmoiitli for 

school rate — 4th Rev. Stats., c. 32, ,s. 52; of. 
5th Rev. Stats., c. 29, s. 43 —Act incorporating 
Town of Dartmouth— 1873, e. 17, r.s. 27 & 28, 1 
N. S. — The Alt ine()i|)iiialiny the Town of 
]_)urtinoiilh |)|-oviileiI that the Town Council 
shcmlil iia\e jini.'iilielioii over the .-in|)|)ort and 
regulation of the |nil)lic schools, regulating the , 
assessments and eiilleeling the assessments, and . 
that they should vote, assess, eolleet, receive, 
appropriate and |)ay whatever moneys were 
rei|iiired for county assessments, poor, school, 
and other rates and assessments, and should 
have within the town all the ])owers relating 
thereto vesteil in theSe.ssions,(irand,liiry, Sehoid 
Meeting and Town Meeting. I'.y another section 
it was enacted that, after tiie ])assing of the 
Act, the town shonhl lie set olf into a sc])arate 
scliool section, and shoidd have the ex])endilure ; 
of all rates raised within its limits for the i 
Schools of the town, as also of all government | 
and school grants for .such schools, w liich grants 
should he paid to the town. 

HM, that notwithstanding these enactments, 
the Town Council was lionnd to assess and pay 
overdo iheCoiuUy Treasurer its ratalilc jn-opor- 
tion of I he assessment of thirty cents |)cr liead, 
prc)vi(leil for liy 4th l!ev. Stats, c. \\1, s. ."rJ. | 

In vv Diirtnwntli Sr/iool Axrii'ssiiiPti/, 

■A R. X- ('., 147. 



."i. ScliDol -M.UHlainiis Kli Kcv. Stats., 

C. 32, s. 52 -.\ Hill 11(1(1 iiiHx was applied for at j 
the Instance of the .Sessions for the Cotmty of 
Halifav. to compel the Warden and Council nf 
the Town of Dartmouth to assess, oji the 
property of the town lialile for assessment, the 
sum of .'~il.">.!l7() for its proportion of county 
soh-)ol lales for the years |S7.'i 7S. nndei' section 
r>'2 of 4tii Itev. Stats., c. ."{-J. 

Hclil, that the Wardc^n iind Town Council 
iiilgjit to have assessed in eac-h ye.ar for the pro- 
l"irtion of the county school assessnient payalile j 
liy lli(aouii, liul that in view of the, \ct to amen:! | 
tile .\cl Id ineor|)orate the town (.Vets. IS77. ' 
e. 40). section .S(» of which provided that the' 
Sinn to he voted at tiie annual meeting of thi' 
town liir the estimates, inchaling ordinary and j 
extraordinary exi)enses, should not exceed in ! 
«»y year the sum of S|,"),(MKI, there was a dilli- 



culty in the cay i f issuing the mnnihiiunx, as 
asked for. 

Qanere, whether there should have lieen a 
relator. 

Per .lames, ,T.— The City of Halifax is not 
exeinj)ted liy chapter 32, 4th Rev. Stats., from 
eoutrilintion to the eountj' school rates, hut is 
e(iually liahle with the Town of Dartmouth. 

The Supreme Court of Xova Scotia, without 
determining whether tlie re([uire(i assessment 
was possil)lc, and was ohiigatory when the writ 
was issued, made the rule tiisi for a mmuhtmus 
ahsolute, leaving these (|Ueslions to lie deter- 
mineil on the ii'tnrn of the writ. 

(itii'i'ii V. I'own Cunniil of Dintmnntli, 

I R. & (;., 4(12. 

On ii/>/)t''ii to till' Supreme Court of Cunniln, 

//e/(l, Strong and (iwyiuie, ,JJ., dmenting, 
that the granting of the writ in this case was in 
the disc'etion of the court below, and the exer- 
cise of tliat discretion cannot at present be 
(juestioned. 

Pi-r Ritchie, C. .1.— That the Town of Dart- 
mouth is not, hut that the City of Halifax is, 
exempted hy 4th Rev. .Stat., c. 32, from contri- 
luitiou to the countj' sciiool lates. 

(juven V. If'ari/i'ii and Couiii'ii of the Toirn 
of DartiiioHtli, !) S. C. R., ,")()!). 

C. Scliool - Miinici|iality of County of 

Halifax -Liability of Town of Dartmouth for 
school rates to Municipality— Assessing pre- 
sent rate-payers for rates of previous years — 
IIil'l, Ritihie, C. .]., (lisseiitini/, that the Town 
of Dartmouth is not liable to contribute to the 
assessment for the support of schools in the 
.Nriniici]iality of the County of Halifax. 

Ill III, iilii).. that if so liable, a writ of iiidiiiliniius 
loulil not issue to enforce the payment of such 
contribution, as the amount of the same would 
be uncertain and ilillicidt to be ascertained. 

/fi'lil, iil.<ii, {hi\l the ra,te-))ayers of ISSti emdd 
not beassesseil for school rates leviable in ])revi- 
nus years. 

//r/il. jwr Ritchie. C. .1., iliMciiliiKj that only 
the City of Halif.ix is exenipl from such contri- 
liulion, and that the Town of DiMmoiuh is 
liable. 

'I'Ik \\''ir(l(ii 1111(1 ('(iiiiicil (),'' tli( 'I'liirn of 
liiniiiKiiith v. 77e V"'"- "" '^'' ri/dtion 

(i/llli M Kllici/ill/ill/ (if till ('(iKIlfl/ llf llllli- 

/(I.C. ( Xdl ,■( 1,1, 1-1,(1 l„l(,ir), 14 S. ( ■. R., 
4.">. 

[N'oTK. 'I'his case was throe times licfore the 
.'^upremc ( ourt of ('anaila. 

1st. I )n appeal from the decision of the Su- 
preme Court of Vova Scotia reported, 1 R. & ti., 
402. .\ppeal leported, !» .S C. R.,."iO;). 



139 



ASSESSMENT. 



140 



2iiil, On rtii))oal fniin dccisioii reported, i) R. 
& (1., .Sll. Not reported on appeal, where it 
was /(( A/, tliat tlie preliminary olijeetion that a 
dennurer would not lie to the return to a man- 
damtismnst he overruled, and it was deeided that 
the ease must he heard on the merits. 

3rd. Two appeals, heaid togetiier, fiom de- 
cisioiLM not reiiortiil lielow. Ap])eals reported 
14 S. C. R., 45.] 

I. School -Powers of Trustees to call 

special meeting— Seot ion .'14, suh-seition S, of 
the cliapterof I'uhlie [nslruetion, 4th K. .S..ca]). 
.S'J, i)rovided tiial it siioidd he the duty of the 
trustees to call a special meeting; of the sec- 
tion, due notice heing ).'iven l>y the school or 
r)therwisi', for tlie jiurpose of, iS;c., and for any 
other necessary |)urj)ose. .Section 'A~ rccjuircd the 
trustees, upon tiie rei|uisitioii of a majority of 
the ratcjiayeis, to convene a special meeting of 
the ratepayers for the ])urpose of voting money 
or adding to any amount previously voteil. At 
tile annual meeting of .Scliool .Section "Jll tlic 
money rc(|Uiic<l foi- scliools was not voted, and 
the meeting instructed tlie trustees to call 
another meeting for tlie purjiose, wiiich tliey 
(lid, hut acted umler the iinpres.sion tliat tlie 
meeting must he called under a re(iuisitinn. as 
provided hy sec. '.i~. The matter was l)ronglit 
up hy cirtiorari, and a rule iiini taken to set 
aside the assessment, the attidavits on liotli 
sides heing drawn on the assum|)tion tiial tlic 
meeting could only be calle<l under section '.i', 
retiuiring a requisition from a majority of rate- 
payci's. 

Jfi/fl. that no such iei(uisition was necessary, 
that the trustees could call the meeting of their 
own motion, and that, wiiether the reipiisitioii 
was signed hy a majority of ratepayers or not, 
the action of tlie meeting was legal and valid. 
//( /•< Sfhoo/ Sif/ioii, Xo. ,.'.'', :i R. & ('., 'iOT. 



VII. OF SHIl'l'IXc. 
1. 8lil|)|)in;i;~A|)|)eal to loiintj ( oiirt from 

Municipal Council -Power of County Court on 
appeal as to different items of assessment than 
those appealed from — By the Revised .Statutes 
(4tli Series, IS74), an ajuieal finni an assessment 
was given to the Court of Scssimis. In I.S7() it 
was enacted that any jiarty aggrieved hy tlie 
deeision of the .Sessions <()iild apjieal to the 
County or Supreme Court. In ls7!t the powers 
and authorities of tiie .Sessions were " given to 
the Municipal Councils." 

//elil. that the power given to the Councils to 
hoar appeals from the assessment under this 



statute was suhjeet to the condition that an 
appeal should lie to the County Court in the 
same manner as fornieily from a decision of the 
.Sessions. The appellant ajipealed to the County 
Court against an assessment of .*>ri(KK>, on "ships 
in other districts" which had heen hiiilt hut not 
registered in tin: County in which they were 
assessed, and tlie County Court tludge, on the au- 
thority of Keinii/ V. Tin City of Halifax, deeided 
that they were not liable, but as it was shown 
on the trial of the ajuieal that the apiiellant had 
a ship on the st;)cks )iartially built, he amended 
till' assessment to cover half the vahie of tlie 
said ships. 

llilil, tiiat the judge was correct in his judg- 
ment as to the non-liability for slii])ping out of 
the county, but that he could not on the trial of 
that ajijieal consider a ditl'erent item of assess- 
ment, not submitteil to the Court at all, as to 
the ship on tiie stocks, and the appeal must 
tlierefoi-e be allowed. 

In rv Aiti^isi^iitvitl ofJamps Cruivi\'^ 1!. ki'i.. 'M)\ ; 

•_'C. L. T., (ioii. 

2. City of Halifax Vessels not registered 

there Owner residing there Not assessable 
for city r.ates — Halifax City Charter of 1864 
-37 Vic, c. 30, sec. 1, and 27 Vic, c 81, ss. 
340, 34.7, and 361 N. S. - K. resided and .lid 
business in the City of Halifax, and owned ships 
w iiicli were not icgistered at theCity of Halifax, 
and wliicii had never visited the port of Halifax. 
Under tlie authority of ,S7 Vic, c .'{(), sec. 1, and 
•27 Vic, c. SI, sees. .'UO, ;U7, .SOI, the asse.-^sois 
of the City of Halifax valued the ])roperty oi 
K., and included therein thi' value of said vessels. 

Ciidcr the laws in force in relation to tlieCity 
of Halifax, I)ecenil)er 1S77, //'/'/, that vessels, 
the owner wlicreo' resided and did business in 
the city, but whicii were not registered in Hali- 
fax, and had nevei' been in the port of Halifax, 
were not asses.sablc for city rates. 

Kiiiuy V. Thf Citij of Halifax, 1 R. \- C. I!'.). 

0)1 a/>/ii(i/ Id thi Sii/in mi- Coiirf of Cainiiln. 

Held, that vessels owned hy a resident, hut 
never registered at Halifax, and always sailing 
abroail. did not come within the meaning of tiie 
words, " whether such shijw or ves.sels he at 
home or abroad at the time of assessment,'' and 
therefore were not liable to be assessed for city 
taxes. 

Till ('ill/ of Halifax v. Kniiiij, >S S. C. K., 107. 

3. Shipping -Ship registered at llalifav 

-—Owned in Guysboro' County —Absent at time 
of assessment — Not assessable in Giiyshoro' 
— Iff III, that a vessel registered in the ])"rt of 
Halifax, and owned by a trader resident at Isaac s 



141 



ASSIGNMENT. 



142 



Harlior, and not at tlic time of the aHses.s- 
iiifiit in tiie District of Isaac's Harbor, or the 
County of duysboro', was nf)t assessable in the 
District of Isaac's Harbor for county rates. 
James, J. , (lisseutiiii/. 

Li re Ejfie Stveet, 3 R. & O., 3S0 ; 
3 C. L. T., 44. 



VIII. REMEDY WHEN RELATIVELY 
TOO HIlJH. 

1. Too high relatively— Proper remedy- 
Town of Windsor — Rule to quash an asHes.s- 
nieul of defendant's i)roi)erty discliury;ed witli 
costs, where defendant appealed against his 
assessment and showed that it was excessive, 
relatively, to certain otliers named. The proper 
remedy in sueli ease, under the by-laws of the 
Town of Windsor, is to apjjcal against the other 
assessments as too low. 
Wujifiiis y. Till Tod'ii (;/■ ir//;(/.<o;',3 K. & (;., •J.')(). 



ASSIGNMENT. 

L FOR IJEXEFIT OF CREDITORS, 141. 

II. OF ClIOSES IX ACTION, 14S. 

HI. UXDI'Ui IXSOIA'KXT ACTS, l.-.O. 
sm. rr/o, IXSOLVEXT ACTS, 1S«9 and lSi5. 

IV. fi;aui)L'lext. i,m. 

V. MISCKLLAXKOUS. 1,->S. 

su, aho, BILLS OF SALE -DEED. 



I. i'OR BENEFIT OF CREDITORS. 
1. Assignments and bills of sale — Kc- 

quirements as to tiling and aflidavit.s- Con- 
struction of Acts of 1883, c. 11, a. 1 ; cf. oth 
B, S., c. !I2, s. 4-W. Met;., O. .Mc(i., and X. L,, 
of Yarmouth, traders, by deeds of assignment 
(.v., 11. it <,'.), assigned to plaintitl all tiieii- real 
ami personal estate in trust for creditors. Tiie 
assignment A. was made f(U' the general benefit 
of creditors, and tlie assigmneiits R. and C". for 
the heneHt of certain preferred ci editors, the 
residue only, if any. being assigned for the 
hcnefit of creditors generally. Rearing even 
(uite with tlie assignments, tiie assignors exe- 
ctited i-cparate bills of sale of their respective 



I personal property (I)., E. ami F. ) to the plain- 
■ tiff, subject to the trusLs contained in the deeds of 
; assignment. N^eitlierof the deeds of assignment 
were tiled with tlie Registrar of Deeds at Yar- 
mouth ; tlie bills of sale were filed, but were 
' not accompanied witli affidavits under the Act of 
I 1HS3, c. 11, s. 1 (R. S. mil series, c. 0'_>, s. 4.) 
I Defendant, us Siieriif of the County of Yar- 
mouth, levied on the property included in the 
I bills of sale and assignments under executions 
placed in his hands by judgment creditors. 

//e/rf, alijrmingtlie judgment of Thompson, J., 
Weatlierbe, J., dissent iti<j, that the assignments 
referred to in the l)ills of sale E. and F., setting 
out the considerations and trusts on which they 
were made not being of the character of defeas- 
ances, and it sullicientlj' appearing that no 
interest remained in tlie grantors, and tiiat tiie 
sales ami assignments were made for the beiielit 
f)f creditors, such assignments were not reijuired 
to be hied as jiart of the instrument of transfer. 
/'i /• 'I'iionipson, J., ill tlie judgment ailiniied : 
(1.) That neitiier tiie bills of sale nor assign- 
ments re(juired to be accompanied Mitii the atli- 
davit provided for in A<ts of ISS3, c. II, s. 1, 
that enactment only ajiplying to bills of sale for 
securing debt.s or advances. 

("2.) Tliat the assignment A. did not re(|uire 
to be filed, as it was an assignment for tlie gen- 
eral benefit of cre<litors. Tiie assigmneiits H. 
and C. were liable to be defeated by execution 
crcilitors, for want of tiling. 

(3.) That tlie assignments R. and C. not 
being in the nature of <lefeasances, wliicli are 
reipiired to be tiled, and the bills of sale !'',. and 
F. being ab.solute conveyances, and fully cqiress- 
iiig all tliat was material to tlieir cliaracter as 
such, the provisions of the Act in reference to 
tiling were sulistautially complied witli, and the 
Slieritf was not justified in levying upon or sell- 
ing any |)art of the ])ropeity included in the 
assignment A. or the liills of sale E. and F. 

(4.) 'i'lie assigumeiit .-\. was good without 
tiling, and D. was only auxiliary to A. 

Dnrku V. Flint, 7 R. it (i.. 4S7 ; 
8 C. L. T., 19. 

2. Assignee of debtor for beneiit certain 

creditors Assents to debtor's instructions to 
pay certain other creditors as well — Where 
such payments will exliaust whole fund in 
assignee's hands, the assignee has nothing 
which can be attached A cieditoi' to wliom 
an absent debtor liail assigned all his goods, in 
trust for the benefit of certain creditors, re- 
ceived 11 letter from the debtor directing pay- 
ment of surplus proceeds to certain other cred- 
itors. Assignee expressed liis willingness to 
comply willi such directions. 



143 



ASSIGNMENT. 



144 



Hi'ld, tint iiol liiiviiii,' autficient to jiuy the 
partius muiitioiiuil in tlio letter, there was noth- 
ing thill coiilil lie Hltiiolied in the hiinds of the 
assignee iis agent. 

Mit-Jir V. Jliinit', I Thoni., (l.st eil), .'W ; 

(•2n.l eil.), G4. 

8. Coiiipositioii (Iced Acceptance of 

composition Efl'cct of- -Defendants were the 
makers of two promissory notes to A. & Co., 
■which the latter inilnrs<Ml to tiie Halifax Iliink- 
ing ('oni])any. liifore the notes lieeame ilne, 
both tlefenilaiits ami A. & Co. lieuanie insolvent, 
A composition deed was exeeiiteil between ilc- 
fendantsand their ereclitois, by wiiieh the latter 
agreed to receive eight shillings and ninepenee 
in the pound, in full of their respective debts. 
This ih.'ed was not executed l)y the II. IJ. Co., 
but the ('om))any took new notes from the de- 
fendants, endiraciiig at this ratio all their claims 
against the defendants, on jiiomissory notes, 
including tlie two notes in (piestion, and gave 
the following receipt : " Halifax lianking Co.'s 
Office, Halifax, '-Mth April. 1 S.W. — Received 
from Messi's. Salter ,*v' Twining the sum of one 
hundred and twenty-two pounils ten shillings, 
currency, being the conipo.sition of eight shil- 
lings and nini'|)ence in the pound, on tiieir two 
notes of hand, in favor of Messr-s. Allison & Co., 
amotniting to f'JSt), and discounted by Messrs. 
Allison fc Co. at this baidv, the notus being 
retained for the purpose of receiving a divi- 
dend fidui the estate of Allison & Co. — X. T. 
Hil.l,, Cashiir." 

The cashier of the H. 1*.. Co. stated, "that 
the notes were left in the ban!; by defendants, 
of their own accord; that had the notes lieen 
required by the defendants, they would have 
been delivered to them, the bank considering 
the defendants wholly dischaiged of any further 
claim on them on aecomit of these notes." He 
also stated that there was no reservation. It 
appeai'cil, howe\'er, that one of tiii' dcft'ndanls, 
at liie time the notes were so left, said : "The 
bank is fully entitled to I'cceive tiie whole 
amount of the notc>, and xiitli tliat considera- 
liou 1 leave them with you tor the i)Ur])ose of 
recovering from Messrs. Allison (A. i\: Co.) the 
dill'ercni'e from their assets."' 

The H. 1). Co. subse,|uently obtained ten 
shillings in tiie pound on tiu'faceof the notes 
from the estate of A. & Co. (neither A. v^ Co., 
nor their assignees, it would a])pear, being 
aware, at the time, of the transaction between 
defendants and the bank), and the action was 
brought by the assignees of A. & ('o. to recover 
from defendants the balance due on the face of 
the notes after crediting the i'l'Jli 10s. 



IIoliI, pov Voung, (!. J., Desl'iarres and Wil- 
kins, JJ. (Bliss and Dodd, dj., r/Mse/(^//(//), that 
the H. IJ. Co. had absolutely discharged the 
defendants from all liability on account of the 
notes, and that the action could not be niain- 
taint'd. 

I'er Wilkins, J. — That by the accej)tance of 

the composition, the H. 15. Co. became virtually 

Jiarties to the coni[)osition deed, and bound by 

all its terms. 

Linmon et. nl. v. Sallirr it ill., 1 Old., 70 i*l: T.'U. 

4. Creditor allowed to come in after time 

limited in deed-^-A debtor, on the •J'Jnd Marcii, 
bSli-l, made a deed of assignment in favor of all 
his creditors who should execute the deed within 
three months. Notice thereof was jjublished in 
the "Royal (iazette," at Halifax, to the eti'ect 
that all creditors wishing to participate in the 
as.sets of the estate should execute the deed 
within ■'ic three months. All the crcditor.s, 
excepi tin plaintiff, did execute it within that 
time. Th • i)laintitf took a note from the debter 
on the '2nd June, l.Sti4, for the amount of his 
claim. The ))arties benelicially interesteil, who 
were represented by the i)laintill', resided in 
Knglanil, though the plaintiff himself resided in 
Halifax, and they had no notice of the a.ssign- 
meiit until the three months had nearly expired, 
and as soon as possible thereafter they gave tlie 
jdaintiff authority to conu: into the assignment 
and execute the deed, but the assignees and tlic 
othci' creditors refused to allow him to do so. 
The thi'ee months had then expireil, but there 
had been no distribution of the ])roceeds of the 
estate. 

IIilil, under the s])ecial circumstances, tlieie 
having been no lU'gligonce on the pai't of the 
))lainlitf or the parties whom he rciiresenteil, 
and no ilividend having been paid, that, in 
e(|uity, tlie plaintiff was not precluded from 
coming in and sharing with the other creditors 
in the distribution of the estate, and that lie 
should be allowed to execute the lU'cd. 

Halihuitoii v. Dcllolfc ct nl., •_' Old., ;!sl ; 

1 X. S. I)., VI. 

5. For beiieRt of creditors Filing - 

Delivery at Registrar's house — Neglect to 
index and mark - Effect thereof - Removal 
from ottice - Attachment of goods during such 
removal -Replevin against Sherifl'-.\n assign- 
ment \\as made to ))laintitf for tiie beiiclit of 
creditors, which the assignee, having tiken 
ivisscssion of the estate and effects, delivered to 
the Registrar of Deeds at his house, at .S A. M., 
with instructions to record it as a deed, ami file 
it as a bill of sale. The Registrar ilid not imirk 



Uo ASSIGNMENT. UG 

it "lili'il," or lilo it :i« ii 'lill of s.'ilc, ov iiuinlicr, iiiuiit of all his |)iii|KM'ty, real ami pcrsinial, to 
cntii, 111- imlcx it in the Ixiok ki'pt liy iiiin for tlie (k'foiiilaiit, lM)rsytli, in inisl for tln' iMiictil 
t'Utry of liills of salt', Imt ii'coriliil it in till' usual of l)aviclsou's I'lciliiois, luid suili trust duotl 
wiW as a df.t'd of liuul. It icniaiiR'cl in his was exccutcil liy Davidson, Korsyth, unci one of 
(itli.f until Dt'ii'ndiof .">, when it was. witiiout Daviiisou's nuditors. and sulisuqiiently liy a 
a! \ iustiiution.s from plaiutill, si'ut hy mail lo numluT of oiIrt i-I'imUiois. At the time of uxe- 
tli« itsiilenee of the jilaiutiir, who was not then eution of this deed, Forsyth had no notice of 
at liniiie, and who did not jjersoually learn that the mortgage to the |ilaintitls. h'orsylh took 
the deed had lieeii returned until the (ith Janu- jjossession of the goods in the store, and refused 
arv. On the !)th. January i)laintitf' returned the to deliver them to the pluintitl's, who demanded 
i1i(m1 to tiie Registrar. In the interval, the them on Dee. 14tli., default having lieeii inado 
vdiiils were seized tiinler an attachment issued in the jiayiiienH under the mortgage, and the 
on the "-'"Jud Ueeendier. and an execution n|)on |ilaiutill> brought this suit foi- the recovery of 
a juilu'inent ohtaiueil "Jud .lanuarv against the tlie goods and an aeeount. Previous to the 
us.-iu'Hoi'. eomuu'neemeiit of the .suit, Foi'syth delivei'ed to 
If'/i/, that the a.ssigument was of the I'lass the plaintitl's a small poi'tion of the goods in the 
ri'(|uiring to he tilecl under ea]). S4, R. S., 4lh store, whieii, as he alleged, were all that re- 
series, that the delivering of the instrument at inained from the stoek on tlu' iiremi.ses in May, 
tlie i!egjstrar"s house, with iustrnetions to file, ISSO. 

was sullleient ; that the removal of the deed //< A/, /» r Rigliy, Ji.nu'S and -McDonald, d.T., 

from the olhce could not, under the ciri'um- W'ealherhe, J., (/iMiii/lm/, that the contract in 

stances, he taken advantage of l>y an attaching regard to the aftei' ac()Uired goods was sk) uncer- 

nr execution creditor, who knew of lis having tain, that the Court would not decree it.s specific 

hcc:i ill the otHce ; and that rejilevin for the |ierforniance. 

goods could lie maintained liy the assignee Per Weatherlie, .]. — An agreement not to 

against the Sherill'. record a hill of sale is not a fraud. 

/Vs-Z/ec V. lik/iop el. oL, '^ R. i^ C, ATA. MvAUtster et nl. v. Forsi/t/, el uL, ,'1 1!. & (i., l.")l. 

«. For general benellt of l-rcdltors by 0,i nppenl to the Supreme fnurt of Cunmln, 
chattel mortgagor — Chattel mortgage of after //eld, atiiMuiiig the judgment helow, .Strong, 
acquired property — Agreement not to register .J., dis-'ieii/iiii/^Umi the legal title to the projierty 
—Legal title of tru.stee in goods mortgaged— vested h\ the ilcfeiidants must juevail, the i)lain- 
Equitable title of mortgagee — Priority.— In litis' title heing merely eijuitahle, and the eijui- 
May, ISSd, the defcudaut, Davidson, heing in- tics lietweeii tlie parties heing ei|Ual. 
(Iclitcd to the plaiiititis in the sum of 8S,(lfM», I'er llitchie, C .). — While the arrangement 
gave ihciii a chattel mortgage on all his stock in not to register the deed, and keeping the same 
Uailc, clialtels and ell'eets then being in the store secret, thereby enabling Davidson to obtain 
iif said defendant Davidson on ( iianville Street, ci'edit as the ostensible owner of the stock in 
ill the i.ily of Halifax ; and by the said mortgage the ordinary coiirsi' of business, and with the 
the said defendant further agreed to convey to stipulat ion that he should comcy all goods sub- 
tile plaintitt's all stock which during the con- sc(|Ueiitly jiiirchaseil on the strength of such 
tiiuiaiiLC of the said indebtedness he might credit to the )ilaiiititl's, was a transaction, to say 
liiucliase for the purpose of stibstituting in place the least of it, of a most i|uestioiiable character, 
<it stuck then owned by him in connection with it cannot be disputed, under the evidence, that 
\n-i ^:\h\ liiisiness. These goods were never so tliedv'"dof 1,'Uh Dccciiiljcr was a /wjif^y/V/^Urans- 
cnuvcyed to the iilaiiilills. IJy the terms of the action on the part of Korsyth, Fordham, aiul 
iiiiirtgagc the debt due the ))laintill's was to be the other (Mcditors of Davidson, without notice 
paid ill ihii'c years, in twelve ei|ual iiistalnieiits of the exi.-tcnce of the mortgage, or any notice 
ill spccillcd limes, and if any inslalmeiils should whatevt'r of any claim on ihe (larl of the plaiu- 
hoiuijiaid for lifleeii days after becoming <liie. litis thereunder. 

the whole amount then due the ])laiiititfs would 'I'hi' (piestion raised is iioi between plaintitfs 

hecniiio iimneiliately payable, and they could and Davidson, but bclwetn plaintiffs and h'or- 

tako iiii.ssosioii of and sell the said mortgageil syth, as trustee, and Fordham and the other 

guilds, ft was further agreed between the said creditors of Davidson, and, in fail, a simple 

ilcfcMilaiit ami the plaiiititis that to .save the ipiestion as to which shall lia\ e )iriority, the 

iHisiiioss ci'eilii of Davidson the said mortgage creditors under the mortgage or the creilitors 

Was not to he Hied and was to lie kept secret; under the assignment lo Forsytii. liy the mere 

and it was not tiled until Dec. l'_'lh, ISSl. On agreement of the deeil of May, ISSO, to convey 

tliu b'ith Dec, ISSl, Davidson made an assign- all stock Davidson might purchase, no property 



147 ASSIGNMENT. 148 

or title in any sui'li L'nods imsscil in pliiiiititlH. M., issnoil ii writ of excentinn mulcr wliich 

But V)y till' dccil (if Dl'^i'ihIiit lUtli, ISNl, tin,' ilufeiidant, ii.s Shcritl', Icvii'il upon the HliariH innl 

title and the pioiierty in these gocids, tlien in ]H(icfe(h'(l to neil. Prior to the sale, iilaimitl' 

the possession of Pavidson, vested alisolutely in appeared before the Uegistrnr of Shippinj,', mul 

Forsyth, and Fordhani, a ereditor, lieinji a ))arty after making a declaration of ownership wns 

to tiie died, the relation of trustee ami ccftiii entered ii]Kin the register as owner of tliesliarcs. 

r/iio trust was estalilished between Forsyth and //M, that idaintitl' had no (MHiitahle right 

P'ordhani and the other ereilitors of Davidson, which eoiihl he so asserted or wiiieh eoiild pre- 

wherehy Ftirdhaiii ami tlio other creditors nc- vail over the judgment creditor and the levy 

(iuire<l a heiu'licial interest under it. As soon made liy the defendant. 

as Foidliam signeil tiie deed, Forsyth ceased to Moffult v, Fi ri/iixoii, (i K. fc (1., L'17; 

Ilea mere mandatary of Davidson, and an oner- (J ('. 1... 'I'.. 441). 
ous trust was ininosed on him, creating a duty 

to the creditors which he could not cast off. «' Pren'rciitliil - Ri'slstration- Srd Kov. 

This relaticm l.eing estahlished, it was a consid- ^*-'^*'- '-" ^^^' «• ^~^^- '^^^ ^^'^^ ^*''^*«" «' ^'^' 

„.. ,; f .1 1 , 1 ■ , I s. 1 — A iireferential assiL'innent, no matter Imw 

eration for the deed, wliicli was no longer ' . . ^^ 

,. 1.,,, . , ir I I 11- 1 1- ,\ i> -lu \ slii'ht or meritorious the preference may lit, 

voluntary. {/Irirltinil v. Jiiii/<K, l.> (). I!., (IS.) ^ i j ^< 

rpi . f ., 1 ■ ,.,,. 11 and thout'li niade for the beiietit of all tiie 

1 liereforc the plaintitls, having only an eipn- . * 

, 11 , ,.1 I ., 1 f 1 . 1 1 .-.i creditors of the assimiiir, is not an " as.siL'ii- 

talile title, ami the iletcudants a lei;al title, *= ' *• 

, -.i . .. .Ill .-.1 J 1 nient for the I'eneral lienetit of all the crcdiliii.s' 

wiliHHit notice, the leg.il title must prevail. '^ 

The case is governed in principle liy Jo.^rp/> v. witlm' tlie meaning of the sixth secti.iiHif chap. 

Lj/ons, :« W. I!., 14(i. S.r. uUo, HnlU,^ v. "" '''''''^''^ Statutes, and has, theretoie no 

71 / .- .1,1 w n ,,),. ertcct until rci'istered. 

livhintoii. Si \\ . I!.. 4_(i. "^ 

1) w 1 -I'l 11 1 111' 1. lUiifhx. .V(ti'7/( /•,'_' Old. , 1. 

/(/• Henry. .1. I here would he no dithciilty '' ' ' 

in arriving at the coiicliisioii that McAllister 

ought not to jirotit liy an arrangement intended 

ohvionsly for his own henetit, to enalile David- U. OV t'HOSKS IN ACTION. 

son, liy false pretences, to olitaiii further credit 

from parties outside. The second hill of sale 1. I'hOSCS 111 actloil ActiOIl brOIIRllt bjiis- 

■was one which the Shitiite of Xova .Scotia was signee in name of assignor of -I!. & .1. as-ii'iml 

intended to prevent. Hut the law in relation to to (J. ik T., who assigned lo plaintitV. The 

the transaclion was properly hiid down by the assignment included a 'lebt due by dcfcinliiu 

Chief Justice, and su.stained by the cases he for goods sold and delivered, riaintill' sued in 

referred to. the name of H. i*c .1. T<i prove delivery, a paper 

MrA/tifti r V. Forsjilh. 1l' .S. ('. R., I. «as put in evidence, which purported to lie a 

Leave to apjieal to the I'rivy Council was bill of huliiig of the goods, but tiiere was no 

applied for on two grounds : — suthcicnt evidence of the signature. An accmnit 

1st. That the judgment involved matters of "as rendered defendant of the amount due R. 

general public interest. & J., together with a demand of payment by 

•2nd. iJeeause the judgment was wrong in O. & T., the as.signees. A copy of the accomit 

law and at variance with the Knglisli authorities, and notice, and a letter written by defendant to 

Held, that it was not of sutlicient public in- T., one of the assignees, in which he acknow- 

tcrest to warrant leave being granted, and that ledged receipt of the notice and made an offer 

the judgment did not appear to be siitficiently to compromise, were also put in. 

wrong to justify the Privy Council in interfering Ihid, Thompson and Rigby, JJ., dii^iutUKj, 

after the parties had elected to appeal to the that there was no siilheient evidence, eitlier of 

Supreme Court of Canada. Xnt ri/iorlcd. goods sold and delivered or of account stated, 

to enable plaintitf' to recover. 

■J. For the beilOflt of creditors -Interest Po- Thomjjson, .T.— Where an action is 

in shipping not transferred bj' — Rights of brought by an assignee in the name of the 

judgment creditors as against assignee — Mer- assignor, and the assignment is pleailed, a 

chants' Shipping Act — Execution — Replevin — replication is good, setting up that the action 

W. H. M. made an assignment to jilaintitl' for is brought by the assignee. 

the benelit fif his creditors, rif his entire proper- Jium'« y ct id. v. Cunnhnjlmm, R. i^ C., .'l.ii 

ty, incluiling a number of shares in the schooner (i C. L. T., -490 
G. W. Moore, but no bill of sale of the shares, as 

required by the .Merchants' .Shipping Act, was 2. ChOSeS In aCtiOH - Assignment Of- 

either executed or delivered to phiintilf. 1). & —3rd Rev. Stats., c. 124, ss. 63 and 65- 

M. having obtained a judgment against W. H. Resulting trust — Notice — Where it maybe 



149 ASSIGNMENT. 150 

j,Pfve(l— All iisHit'iinu^nt of II rlclit iiikU'I' cliaiittT W. ('. A., altlimigli it (i))j)«'iii'C(l tliiit suit was 

I'Jl Ki'v. Stilts. (Hill Muiifs), .sL'rtiiiiis (i,S and 05, , ln'otiglit tor tlii' iiunctit of \V. (". A. 

iiiiiv 111' iiiailf liy I>ai'ol as wi'll as liy ilct'il. /'« c 'riioiiipsoii, J., that the property ami 

Sui li nil aMsigmueiit is not liail liccauso of a money sueil for were not the jti'operty or money 

It Milt in;.' trust in favor of the assignor, or if of (ijaintitrs, hut of S. k M., who were not 

niiiilf fur tlie iinleiiinity of tiie assignee without estoppeil liy joining (as ereilitors) in the con- 

ail lutiial ailvanee. ^\'here tlie Aet reiniireil veyanee to i)laintitr.s. 

iiiitiii' of iiu assignment to lie " serveil on the I'l r Higliy, J., that the defemlanl hail sua- 

]iai'ty III he sued, or left at his last plaee of tained his statutory plea that before action 

alii.dr," the delit had lieen assigned to \V. ('. A., liut 

//./'/, w laif the delitor was an attorney, that that it would liave lieen eomiiiteiit to jilaintifls 

a iKitiie served iipon iiiiii Ky leaving at liis ollice to reply that tliey were suing for tlie lienetit and 

iiisti'ad of. ill the words of the Aet, "at his last witli tiie eoii.sent of \V. ('. A. 

]il,iLC of ahode," was within the s)iirit of tiie Tliuni/i-'oii <t at. v. Acldittr->i . (11!. »<; (i., 1 j 

Alt. (IC. L. '1'., 136. 

O'l'miiKn- V. I)'m/-v, ;i N. S. I)., 71. 

;j. (hoses In action InstninM.nMin|)rop. , n,„se m action Attacliniont Issued by 

eriv treated as a.s.signnient oi >arah howler, . i. i ■ i.- xr !• c 

" assignee of chose in action- .Notice ot assign- 
piiviniis In her death, executed in presenee , \^ r • r ai.\ t> 

' . ' ment unnecessary before issue of~4th Kev. 

il tuo Witnesses, an lllsl niliielil wiiirli eon- ,^. , _. „._ ,,, . .,,. . t 

, , . ,, . , . ,, Stats., e. 94, s. 3o7—l'laintitl, as assignee of J. 

t.iliieil the tiillowilig lirovisioii, siilp.-.taiitlallv : , ,, , , i i- i . ■ i i. i ^ 

^ ' ,,,.,' •^- .\K 1).. to \\hom deteiidaiit was indelite(l, at- 

— •■ I liii iiiiistitiite mv dauj-diter, A. M. rowler, , , i r .t i i i i. i 

,. . taehed eei'taili goods ot tile delitor: eliattel 

IMV attoiiiev. tor herself and ill her name to ,, . i i ■ ,■.!■• .. i 

mortgagees sought to set aside iilaiiitilt sattaeh- 

liieiit, on the ground that tiie debt was not 

'•justly due "and "]iayalile 'to |ilaintitr, as there 

, T , ,, , had lieen no iiotic(^ gi\en liy plaiiitill' under 4th 

liiv Imsliiess coriesiioiideiiee that 1 should have ,, ,,, .,._ 

' , , , .„ . rtev-. Mats., e. !t4. s. .i.n. 



cdllri't all iiioiieys. delits and rentals w hieli are 
or shall lir iliir tii me, or had lieen detained 
Iriiia iiic whin I was alive, and to rondiiet all 



(li'iie when alive, and [ hereby ratify whatever ,, i , , ' ■ . i 

,,,,,.,, ' //'/'/, that notice was not neee.s.sary in order 

iiiy said attoinev shall lawfully do, &c., and I 



will lici' whatsoever I have in the house." The 



to eiudile iilaintitr to attach. Cf. ."itli, R. S., c. 
104, t). Ixi. 



iilaiiitill', A. M. Powler, treating this instrument ' ,, ,, , •> d c .. i/,- 

' ... /Vow//-, v. J/Mcy-ao*, .1 II. & (i.. 4(1.). 

a.< an assiginneiit ot fliosi s Ik (tclioii sued defeii- 

ilaiit on a promissory note made in favor of 

Sarah Fowler, and for rents of hmd occupied as III. UXDKl! IN.SOFA'KX'r M"\'S. 

lur tenant. 'I'iie verdict for plaint Iff was set 

iisiile by tlie Court. 1. Assignee — Kc-opcnlns onler for (lis- 

Foirl, /• V. A'AA rkiii, •_' F!. & ()., 1 44. charge of, after time for appeal has expired — 

Commission of assignee -The assignee in bis 

4. Chose in action — Right to sue In name final account charged commi.ssion on .■?7,4(IO, the 

of a.ssignor of- -4th Rev. Stats., c. 94, s. 356 — gross proceeds of real estate sold under fore- 

'>\ . ('. A. made a liill of sale of goods to .S. i.*t closure, the whole of which, with the exception 

M., anil shortly after made a eonveyance of the of S14 surplus, was paid over by the Sheriff to 

same piojierty to plaintiffs in trust to pay off the attorney of the mortgagee. The order for 

thi'ileht secured to ,S. & .M. by their bill of sale, the assignee's discharge passed Dec. '20th, 1877, 

ami to pay off also all <ither creditors signing and on .Fan .'?rd, !87S, the Coiintj- Court .Judge 

the (l.eeil, aiiioiig whom were S. Ik. W. I'laintilfs granted an order //is/ to re-open the order for 

liaii licfdie suit assigned the debt for which they discharge, in order tliut this sum of .s;7,4(X) 

Wire now suing to the original assignor, W. C. should be deducted from the amount on which 

-V. The .Tudge before whom the cause was tried assignee's commission was charged. The .Judge, 

gave a verdict for defendant. after argument, discharged the order ///.-./' on the 

Hi III. that the rule /(/>■/ for a new trial sboulil grouml that, the eight days for appeal from the 

be iliseliarged. order discharging the assignee having expired, 

Pir MclJoiiald, t'. ,T., and McDonald, .F., that the assignee was beyond the summary jurisdio- 

tlit prior assignment of ,S. & M., was no defence, tion of the Court. 

as S. it M. had joined in the deed to plaintiH's, Udd, that apart from any legislative Act 

wit that plaintiffs could not maintain an action , conferring it, the .Judge had power to re-open 

m their own name under 4th Rev. .Stats., c. 94, . the order for the discharge of the assignee, for 

S' 3.50, having assigned the cause of action to ; the purpose of reducing his charge ; that, in 



151 



ASSIGNMENT. 



152 



addition, the Judge had the power, under sec. ' 
28, sub sec. Ii, of the Insolvent Act of 1875 ; j 
that the aasignee was not entitled to commission . 
on the §7,4(X), and that the judgment on the 
order iiiti. must he reversed. 
In re E-sfafa of Grant, Iii^olrait, .3 R. & C, 538. 

2. Assignee under Insolvent Act— Rights 

of before judgment to property attached — 

Writs of attachment against the mortgagor, as 
an absconding debt(jr, were issued, and delivereil 
to the slieritt" on May '20th. An appraisement 
of the mortgaged premises was made, and copies 
of the writ, witli the a2)[)raisement and descrip- 
tion of the land, were registered on May •21st. 
On the same day a writ of attacliment, under 
the Insolvent Act of 18(i!), was taken out against 
the mortgagor, but was not delivered to the 
sheriff until after he had registered the docu- 
ments connected with tiie proceedings under the 
Absconding Debtor's Act. 

Held, tliat tlie claim of the ns^signee of the 
estate, to the surplus proceeds, must prevail 
over that of tlie attaching creditors. Section 
24, of c. 79, 4th R. S., is controlled by the In- 
solvent Act. 

Almon el a/, v. Grat/ et a/., R. E. D. , 6. 



3. Assignment under Insolvent Act after 

attachment issued, but befoi'e judgment — j 
Assignee entitled to money paid into Court ' 
as proceed.*? of sale under order in the attach- 
ment suit— Plnintirt', on tlie IGtli August, 1 875, 
issued a writ of attachment against defendant, 
an al.jconding debtor, tlie affidavit of debt des- ; 
cribing him as a tr;ider. Defendant's goods 
were attachoil August .'JOtii, and, pursuant to a 
judge's order, niailc September 4th, were sold 
on Septend)er I.')th, and the inonej was paid ! 
into Court on October 7th, to respond tlie plain- ' 
tiff's judgment, after which, on the litlh Octo- ' 
ber, proceedings were taken under the Insol- 
vent Act of 1S75, to put defendant's estate in 
compulsory liiniidation, and the estate jiassed 
into the liiinds of tlie assignee. I'laiiitill' claimed 
a lien under his attachment. 

Jfil'/, that tiie assignee was entitled to the 
money paid into Court. 

Hiinis,;/ V. Hnre, ;{ R. k C, 4. 

4. Insolvcnc) Ketentlon of an amount 

by assignees in excess of amount paid toother 
creditors, disallowed -Duties of Masters in 
taking an account— Plaintitl' having become in- 
solvent, made an assignment for the benetit of 
creditors, whereupon one of the creditors was 
appointed assignee. The business was recon- , 



veyed to plaintiff on his undertaking to pay a 
composition on the amount of his indebtedness 
for the payment of which another of the defend- 
ants became surety, and plaintiff subsequently 
executed several assignments to defendants to 
secure advances. Defendants having taken pos- 
session under the last mentioned assignments, the 
matters in difference ))etween jilaintift' aiid de- 
fendants were referred to a Master, with instruc- 
tions to " take an account and report the sum 
due from either party to the other of them." 

Tiie Master having reported int'tr alia that the 
defendants, after paying the other creditors of 
plaintiff their respective claims at the rate of 
sixty-two and a lialf cents on the dollar, had 
paid to themselves the full amount of their 
claim, and that being of opinion thai; defendants 
were not entitled to any greater rate of diviileiul 
on tlieir claim than that paid to the otlier 
creditors, he had ('isallowed the surplus with 
interest, and had credited the same to the 
plaintiff'. 

Held, that under the authorities (Hhjijhm v. 
Pitt, 4 Exch., 112, and Hoivdm v. Haiijh, II A. 
& E., 1035), the Master was justified in nriking 
the reduction. 

Aho, that if he had failed to act as he did it 
wouhl have been the duty of the Court, under 
the authorities referred to, to give the plaintiff 
the benetit of the amount overcharged. 

Mcllreilh v. IJoii/l et al., 7 R. & C., .'Ul , 
7 C. L. T., 4()G. 

On appeal (o the Supreme Court of Canada, 

Held, that the tlecision of the Supreme Court 
of Nova Scotia, confirming the report of the 
Master on the reference must be reversed on 
the groimd that the Master had exceeded his 
authority and reported on matters not referred 
to him. 

Doidl V. Mcllreith, 14 S. C. R., 739. 



o. Assignment under Act— Prior assign- 
ment of insurance policy — By delivery — 
Interpleader — M. lirotliers, prior to making an 
assignment under the Insolvent Act, transferred 
cei'tain ))olicies of insurance to the plaintiff, to 
wIkuii they were larg'.-ly indebted for adviinces. 
The assignee having claimed the insurance, the 
insurers applied for and obtained an inter- 
[ileadci'. 

Hehl, that though policies are usually assigmil 
in writing, a mere verbal assignment, with de- 
livery, gives the assignee an e(|uital)le right to 
the proceeds. 

..l/io. that in cases of interpleader, a court of 
law may consider the e([uitable rights of the 
parties. 

Mantiinij v. Hiuvniaii, 3 N. S. 1)., 4"2. 



153 



ASSIGNMENT. 



154. 



0. Insolvent debtor — DisChnrge from ' concurrence of the assignor, and of consequent 
custody — Subsequently acquired property — loss; and also that the de))ts assigned were of 



Personal property— Fraud —Insolvent Debt- 
or's Act of 1846— The Court will review a ver- 



real A'ali.ie. The claim of an aswiguee of the 
e(juity of redemption in mortgaged prendses. 



diet negativing fraud in an assignment of per- for surplus j)ro(.ecds remaining after the sale of 
.soiial property, and set it aside when contrary premises on foreclosure of the mortgage, is not 
to a strong prepondei-ance of evidence. I barred liy twenty years' possession of the pre- 

Tiie insertion of tlw nsuti] ru/iias (td ya/isfuci- mises by the assignor, who claimed under the 
(»(/»//( clause will not vitiate an execution against : mortgagor, the moigagee having by the fore- 
a party who has been discharged from custody closure suit asserted a paramount claim to the 
as an insolvent debtor. ' possession, and the premises Iteiiig sold under 

The language of the Insolvent Debtor's Act that claim. 
(if lS4(i, which permitted a plaintitf to take, i Sunhli . The fpossessicn of the assignor of an 
under executi<m, property xnlxi^qiuiitly ucquirtd '\ equity of redem])tion is not adverse to the as- 
liy ilic insolvent, hdd, not to restrain a plaintiff i signec. unless shown to be in opposition to his 



from taking, under execution, gf)ods fraudu- ' will. 

Icntly assigned l)y the insolvent previous to his i 

discharge under the Act. 

An assigmnent of goods to a trustee, for the 

licnclit of certain speciKed creditors, gives no ,, , . ,., _,„. . „, , 

,,.,,,, ,.. i 1 attaching creditor— Effect of bankruptcy on 
lc:,'u. right to those creditors, uiuf.^s assentca CO ", . ... ,,, . . ,. 



Collin.-. V. R,:id d al., 2 Old., -252. 



9. Rights or creditors' assignee as against 



liy them, but the property remains subject to 
tiic control of the assignor, who may at any 
time revoke the trust. 

(^hKuri, whether creditors, to signify their 
assent, must execute the assignment, or wliether 
tlieir assent may be implied from other circum- 
stances. 

\\'here personal property is assigned lioiia 
fill to pay a debt due the trustee, who accepts 
the inist, its revocation may be implied from 
suliseiiuent conduct of the parties wholly incon- 
sistent with the trust. 

Fttlraiu r V. Sairyrr (f al., .James, 277. 

(. Insolvent debtor assigns equity of 

redemption on discharge from arrest —Assignee 
becomes a trustee — Debtor must be made 



agency — Wife's equity to a settlement — .J. C. 
died about the year KS(>2, possessed of a fund 
amounting to t'8,ti.S8 2s. 4d., which he devised 
to trustees upon certain trusts in favor of his 
daugliter and others, and, upon failure of such 
devises, then to Ids nieces or their lawful issue. 
The original devises in the will having failed, a 
rule was passed in the Fquity Court, on a suit 
instituted by the trustees, liy which it was 
ordered tiiat a portion if the fund should be 
distributed and paid by the trustees, in certain 
proportions, among the next oi kin of the said 
J. C. 

M. W.. being entitled as one of the next of 
kin, Mith J. S. W., her husliand, executed a 
power of attorney to S., empowering him to 
receive the money condng to her by virtue of 



the .said will. On the .Srd April, iJSfiS, ,S. re- 
party to foreclosure suit-An assignment by ^.^.j^.p.^^ ,,,^,1^,,. ^..^jj p„„.gj._ j,,g ^„„, ^f ^^(y2^, 
tl,e mortgagor of Ids equity of re.lemption,mi.ler ,,.,,i,,,,^ „„ t,,^ .,..j,„„ ,i^y^ .^^.J^g attached in his 
the In.solvent Debtor's Act, makes the assignee a ,,,,,„i^ ,,^. p_ ^^ „„ p,.,,,.^,,^ i„„„ed against .1. S. 
trustee for ium, and leaves in him a reniaitdng \y ^ ti,J |n,sl,and, as an absent or absconding 



interest, in the natiirc of an e(juity of redemp- 
tion, sullicient to entitle him to be made a party 
to a foreclosure of the mortgaged premises. 
The ndc or order to s-A\ must be annexed to the 



debtor. On the 2.Srd February previously, .1. 
S. ^V. had been adjudicated a bankrujit in Eng- 
land, and a crt'ditors' assignee was appointed. 
Notice of this was received by JS. on May 21st, 
mortgage, .,r else contain a description by which ij^jj^^ ,,„t „„ „„iico of the bankruptcv had been 
the iiren.ises intended to be sohl may be known. , ..eceive.l by E. 15. at the time of the issue of the 
Mai/hiir v. Fill, .James, 108. attii.,hmen\ process. S. was notified by M. W. 



8. Insolvent Debtor's Act -Liability of as- 
signee-Equity of redemption —Surplus y • 
ceeds— Possession of assignor of equity not ad 



i on July 2itth, 18(i8, that she claimed the fund in 
question in her f)wn right, and she followed this 
up by a suit in eijui'v. 

Ihid, on a ease prtj)ared, tiiat the creditors' 



verse to assignee— In (U'der to mak^' an a.s.signee I assignee was entitled to the fund as against 
under the Insolvent Debtor's Act liable for not ' E. 1'.., the attaching crcflitor. 
onllecfing the assigned debts, there must be dis- | /iVW, aho, that the bankruptcy of ,1. S. W. 
tiuct proof of neglect, or of positive forbearance , determined the power of ,S. to receive the fund ; 
on his part towards the debtors, without the that it had not been reduced mU> possession. 



155 



ASSIGNMENT. 



156 



and that it, therefore, must he treated as if 
still remaining in the liands of the trustees. 

Held, also, that the creditors' assignee was 
not entitled to the fund without making pro- 
visions for tlie wife, and that the latter heing 
entitled to tlie fund as a rhoxe in action, was 
justitied in coming into ecjuity for her protec- 
tion. 

Hdd, a/so, tliat as J. S. \V., the hushand, 
was a Ijaniuiipt, and tl>e sum in controversy not 
large, and M. \\., ttie wife, heing without any 
provision i)y a settlement made before or at the 
time of htr marriage, the taxable costs l)eing 
lirst pai('. the balance of the fund should be 
paid or secured to her for her own benefit. 

Jto/nr V, Shannon, '2 X. .S. D., 14G. 



IV. FRAUDULKNT. 

1. Deed in ft-aud of creditors set asldc- 

Evidence of fraud— Statute of Elizabeth— T. 
L. caused a deed of certain real estate to be 
made to a trustee for tlie benefit of his wife. 
The title of tlie real estate was in liis son \V. F. 
L. ))y whom tlie deed was made, but it was 
proved that altliough the property .vas purchased 
and the consideration money ^^aid by \V. F. L., 
who was then a minor, yet his father had erected 
part of a doulde liouse o)-. the propei'ty « ilh the 
consent of Ids son, and tliat tiie deed from the 
latter to the trustee was made witii the fatiier's 
concurrence. At the lime of tlie conveyance in 
trust, T. L. was indebti'd to the i)laiiititls, and 
had been "going behiiid-liand " for some time. 
There '.as no consideration for the trust deed. 

Ili.ld, that the trust deed had tlie eH'ect of 

"delaying and liindering" creditors witiiin the 

Statute of Klizabetli and wasconseijucntly void. 

Uoull tt a/. V. LInlon tt at., (i R. & ti,, 38; 

6 C. L. T., 139. 

2. Frandulentlj assigned property— At- 
tachment of sustained — Defendant applied to 
set aside a writ of attachment, levy and sheritt's 
return on tlie ground that tiiis Court had no 
jurisdiction because the property attached was 
not tiiat of the defendant, having be»'n conveyed 
to a trustee in trust for his wife some time pre- 
viously. Affidavits were read in reply to shew 
tiiat the trust deed was maile fraudulently and 
in contemplation of insolvency. 

The rule was discharged with costs. 

Thompson v. EIUk, 4 R. & V,., 307. 

3. Frauduleti' Conveyance — Assignment 

under Insolvent Debtor's Act— An action was 
brought against one of the <..- fendants, the sou 



of the other defendant, for breach of promise of 

' marriage, in which a judgment was recovered 

and recorded. Previously to the conmienceinunt 

of sucii action, the son had paid for and olitaiiicd 

a deeil of certain land which was not recordeil, 

1 and it was alleged in plaintiff's writ or bill that 

I fearing an adverse judgment in the breach (jf 

j promise suit, the .son had destroyed the ohl deed 

: and ])rocured a deed of the property to lie muile 

to his fatiier wliicli was ante-dated ,so as to iiiako 

. it appear to have been delivered before the com- 

niencement of the action for breach of promise, 

although, in fact, it was ma<le afterwards. Oii 

being imprisoned under the judgment in the 

breach of promise suit, defendant, the son, was 

set at lilicrty on condition of his assigning his 

interest in the property t > the plaintitt' in tliis 

action as trustee for tlie plaintiff' in the breach 

of promise suit, whicii he did. A suit in K(|uity 

was then brought, in whicli plaintiff prayed thiit 

tlie defendant the fatiiei', should l)e deciced tii 

I convey the land in question to him and account 

I for tlie profits. The E(juity Judge, considering 

that the destruction of the old deed and suli:»ti- 

tution of the new one was a ccnitrivance b..'t\v('cn 

I the fatlicr and son, granted the relief prayed for, 

I and the full t'ourt having arrived at the same 

conclusion on the facts, afhrmed the decision uf 

the Judge in Kijuity. 

I (iraham v. Chisholm tt uL, 'J R. & ti., .'i.S ; 

1 C. L. T., lill. 



4. Fraudulent conveyance— 13 Filiz., c. 3 

— 27 Eliz., c. 4 — What conveyances not with- 
in the Acts— A Court of Equity will not, in 
favor of a juilgment creditor, vdio has olitained 
an assignment under tlie Insolvent Debtor's 
Act, of a fatiier's property, treat as fratidiilunt 
and void, under the Imperial Acts of 13 Kliz., 
c. 5 and 27 Eliz., c. 4, deeds made by the father 
to his son of all his jiroperty, where sucii ikeds 
were made in consideration of valuable past 
services, and bound the S(m to the payment of 
certain sums to the fatiier's other ciiildreii, and 
his grand ciiildren, and the jurj' found that the 
deedswerenot executed witli intentto defraudthe 
' ere<litors ; although at the time the deeds were 
made the judgment creditor had olitaiucd ft 
venlict against the father, whicli verdict, liow- 
ever, tiie father believed, and was advised by 
coimsel, would not be sustained and did not, in 
fact, ripen into a judgment until a year aftc"the 
execution of the deeds. 

Foxttr V. Fou-kr ct af., 1 Old., T.'i."!. 

Conveyances made under such eircumstaiioes 

are not mere voluntai'y conveyances witiiiii tiie 

meaning of the Acts referred to. 

Ibid. 



157 ASSIGNMENT. 158 

A voluntary conveyance Ijy one not indebted I deed of assignment made with a similar object 

at the time, not in embarrassed circumstances, I in view, and containing such a provision. 

and not made with a fraudulent intent, cannot i Tht Union lio.iik v. Whitman et al., 

be impeached in Eiiuity by a suljsequent creditor. 20 X. .S. R., (8 R. & (i.), 194; 

Ibid. 8C. L. T.,;W1. 

I Atlirmed on appeal to the Supreme Court of 
The existence of a single debt wdl not, y/f'c w, i j^,,^j^,^^j,^ g ^^ j^ ,j, ^13 

invalidate even a voluntary convcj-ance, at tlie 

instance of a prior, or of a subsequent creditor. 



Ibid. 



7. Resultingtriist— Stipulation for release 

I held good, although surplus to be paid to as- 
signor after payment of executing creditors — 

5. Fraudulent or void-As against Credi- ^^^^""^ °^ fraud-An assignment was n.a.le to 

tors-Question for jury- One J. R., a-, old ti creditor who, with two others was p.efcrred. 

.^, ■,. 1 ],„,i, „ 1 ,tu ,..1 11 After payment of the preferential claims tiie 

lUiiii witli a wite and lUiugliter, lioth wlioUy or ' •' ' 

, ,,• 1 1 *, . ;.,t..,» 1:11.., !*• , residue was to ))e paid ratably to the several 

iif.irly blind, anil two miant children, being ' ■' 

, , . i 1 • It 1 f -1 1 creditors wlio sliould become parties by execu- 

uiiable to sujjport himself and family, conveyed * •'. 

,, , . . 1.1 „.,. . 1 , , e liuL' the deed, and who, on so executiiii', rc- 

alllu.s j)i'()pertv, real anil personal, except a tett » . ' ' _^ , =;' 

, . ..1 '1 • »•«• I ; 1 -1 leased iill claim against the debtor. Tiieassignee 

:ihcc|). to the plaintitts. Ins son and sou-iii-law, * ° 

,. . c .1 • .■ 1 • ir 1 wu-i then, after payint; all the liabilities iiiidir 

on cdudition ot their supportiiii; himself and . ' 1 .' fe 

^ ., ,.,, 1 r 1 » „ 1 " i. ii t- //(( /;(.<^*v(/»'»', to pay the suri)lus to the assignor, 

family. 1 he defendant, wlio was at the time > i 1 o 

.',.., • . T, / ,, Hi III, a good assignment in the absence of 

nt iiiakms.' tlie assignment a creditor for a small /.,-,,,,, 

.■,..,'., , 1.1 1 I proof of traud, or which the burden was on the 

amount, obtained a judgment and took, under ' , • , , 

I ■ 1 1 1 • ii • parties attacking the deed, 

execution, a pair ot oxen included 111 this i ' ° .,•>,, 

rp , • ..„. , .. c ^ 1 At/ion v. Arauhakl, 

assii'nment. Jo plaintms action ot tiover, de- 

, f . , 1 , ,. , , ,, . I ■ , , i 20 X. S. R., (8 R. & G.), -yU. 

fendaiit j)leaded traud, ami the Jiirj-, having had ' > \ /> 

the laiestion of fraud faiilj' put to them at the ! „ „ 

trial, found for plaintiffs, negativing frau.l. ^' Prcfcrential-Consideration-Fraud- 

11. hi, that the verdict coul.l not be disturbed. Assignor continuing in possession-Preferen- 

i'-,].. .. I ..I ,. '/••, .> T> ( /• -<•! tial to a bona fide creditor valid — When the 
uiaiiiy it at. v. 1 iiut, 2 R. & C, .)0l. 

j consideration expressed on the face of an assign- 

i ment is larger than the actual debt due by the 

a n I.I ^ ».. <■• 1 . , . debtor to the assignee, it is not necessarily 

6. Resulting trust - Hinder ng and de- . , , . ^ ^ 

1 JM 10 t:<i- ,- f 1.. ^. o fraudulent. 

laving creditors— 13 Eliz., c. 5— A. \\ . C. & „„ , , , . . , , ,. 

, , 1 .■ . .,,,,, llie declared intention to exclude any credi- 

N)n made a deed ot assignment to the defend- , <• ,. .,, , , 

^ ... , ^, . , , , tor or class ot creditors, will not render .such an 

ant, \\ ., ot their real and i)eis(jnal property, 111 . ,., 

» .,-.,, i., r A • 1-. r,M assignment invalid. 

trust tor the beneht of their creditors. The r-T . ... . , , 

, , 1 1 .1 . ■ u ^ r , 'he assignor contmuing m possession of the 

(Il'imI pc-ovided that certain hist preference cred- , . , . , • , , 

, , , , • , . r ,, . . , goods assigned is not a conclusive liailtje of fraud, 

itors should be paid 111 full ; that certain secoml ,, , ^ , . , , , 

c T, , ,, , , .,.,,, J* rami or no traud is a (luestion that belongs 

preference creditors should next be paid m full, ' .• , , . 

1 .1 . .1 1- , , ,, , ', entirely to the jury, 

and that other creditors who should become' ,,, „ „ , „., ,, ,„,, .i^. 

larratt v, ISau-ytr, 1 Ihoni., (1st Ld).,20; 



(2nd Ed.), 4G. 



parties to the <leed should next be iiaid yco rata, ' 
wilhoDt preference or priority, and that the ' 
balance, if any, should be reconveye<l l)y the 1 
assignee to A. \V. C. & Son. The deed con- 
tained a provision that the assignee should not I V. MISCELLAXEOUS. 
be liable or accountable for more money and I 

etl'ccts than he received, nor for any loss or ■ 1. Assignment Of bond tO CO-SUretieS — 
damage wliich might happen in reference to the Demurrer — Demurrer to declaration by obligee 
trusts lueiitioned, unless it should arise through ! on tioiid assigned to co-sureties who had paid 
his m\ii wilful neglect. It also contained a pro- i defendant's debt, overruled, 
vision reipiiring a release of all claims against 1 Exchani/e Bank v. lirown, 2 R. & C, 335. 

the debtors from the creditors executing the ' 

deed, and excluding all creditors who should : 2. Duress, Conveyances procured by set 

not become parties thereto. i aside— M. J. S. made an assignment to T. M. J. 

IJilil, that the deed was void as hindering ' in trust, fw' the benefit of his creditors, subject 
and delaying creditors within the meaning of 13 to a prefei'ence in favor of J. M. S., his father, 
bli7,., I cp. i'l. A resulting trust such as that j for a large amount. M. J. S. was arrested at 
created in favor of the debtor, will vitiate any ■ the instance of Montreal creditors from whom 



159 



ASSIGNMENT. 



IfiO 



he had purchased goods a short tiiiit; jneviously 
to tho milking of the assigniiii'iit, charged with 
having prociiifil goods under false ])relenees. 

As a condition of procuring his son's release, 
the father was induced to make an assignment 
of his pieferential claim for tlie i)enctit of the 
creditors, and also to assign for the same i>ur- 
pose, and fia- the purpose of defraying the 
exp' js of the sou's anest, a mortgage which 
he h'-ld on the pi-operty of one T. M. 

Jlitil, tliat the fatiier, umler the circum- 
stances under which the assignments were 
made, was not a free agent, hut that the assign- 
ments were void, as having lieen procured liy 
duress, and umst he set aside. 

Jonen lif a/, V. Joliiix iJ a/.. "JO X. S. I!., 

(8 R. .V (i.). .'iTS; 
t»t'. L. T., (M. 

Oil rippifi/ /o /III Sii/iri nil ('niii'f oj' Cnii(«l(i, 
Ifilil, atKrnnng the judgment of the Court 
holow, tlial llie nature of the proceedings and 
the evidence clearly showed that the criminal 
jjrocess was only used for the ])urpose of getting 
S. to Montreal to eualile the creditors to put 
pressure on him in oi-dcr to get their claims 
paid or recured, and the transfer made hy the 
father under such circumstances was void. 
Short IJ d (il. V. Joii(.< it «/., 1.1 S. C. R., ;!t)8. 

3. Equitable- Uarnisliee process— Estop- 
pel — Plaintiir held a judgment against one 
George Cuttcn, an<l was ahout to sue Ryerson 
and Moses, whom he understood to he C'utten's 
piirtncrs. liefore doing so he consulted one of 
the defendants liy whom he was informed tliat 
there was a lialance of some .S-jTi'O due from the 
defendants to Cutten for work performed for 
the defendants on the ^Vcstern (uunties Rail- 
way under a contract, and defendants suggested 
that tjiia amount might he made availahle to 
satisfy the plaintiffs claim if there was a gar- 
nishee law. I'laintitrsattorney. on the strength 
of this representation, issued garnishee process, 
when defendants pleaded, denying that there 
was any deht due. 

//'/(/, that the defendants were estopped hy 
their representation.s from denying their indel)t- 
edness to Cutten. 

Previous to the garnishee process heing issued, 
Cutten had drawn an order requesting defen- 
dants to pay all sums connng due to him under 
the engineer's monthly certificate, tooneK.vllam, 
but there wa', no evidence of any indebtedness 
of Cutten to Killam. 

Hild, that this was not such an equitable as- 
signment as wouhl prevent the garnishee pro- 
cess from operating on the fund. James, J., 
dissentiwj. 



Pir Smith, J. — The onus is on defendants to 

show consideration for the order. This has not 

been done. }\(iii ruiisliit that there are not huf. 

licient funds in ilefendant's hands to satisfy 

both claims. 

F!/:raiiilo//i/i v. Shaiilij it a!., 

•2R. & a., 190; 

1 C. L. T., 70,-,. 

On n/i/iiit' to '/(( Sii/irtmi Court of Caimdii, 
lliiil, aliirming the judgment of the Supieme ■ 
Coui'l of Nova Scotia, .Strong and (1 Wynne, .IJ., j 
di-i.iniliii'l, that the defendants were estoi)pe(l liy 
their representatirni fr(,... denying their indclit- 
edness to Cutten ; and that there Mas nut 
evidence of such an assignment as would i>ie\ cut 
the attachment from operating on the fumt. 
Appeal dismissed with costs. 

Sliaii/i/\: Fi>:rniiilo//ili, .,'Stk A/iri/, bSS'i, 
Cas. Digest, l.")!!. 

4. Equitable, of fund- Prior order for 

payment of — Plaintifl's claimed to be entitled to 
a sum i)aiil into Court by .Messrs. Ryersun & 
Co., under an assignment of it from If. M. 
Oakes. Previously to this assignment Oakes 
had given an order to Dunn & Vaughan on 
Ryerson for the amomit, which had been pre- 
sented, and t(j which no objection wa.s taken, 
' the order was given to Dunn & Vaughan for 
supjdies furnishe<l by them for a vessel, the sale 
of which by Ryerson hral created the fund, anil 
was given in pursuance of a promise when the 
sui)plies were furnished, that they should be 
paid i')r out of the proceeds of the sale. 

//(/(/, that Dunn & Vaughan were entitled to 
a decree for the amount of the order, with costs 
against the plaintifTs. 

Odbs ,1 at. V. I!i/i:rson i-.t uL, R. E. D., 4S7. 

5. Execution of deed of-Elfcct of note 

appended to signature — Receipt of composi- 
tion — The plaiulitf executed a release to the 
maker of a certain promissory note, on wliieh 
defenihint was sued as indorser. The release 
' was in the most general terms, which were ail- 
nuttedly wide eniaigh to include the note .siieil 
on, but it was signed in the following form :— 
"The Exchange Rank of Yarmouth, N. S., for 
and in respect of and only for and in respect 
of the several claims, notes, bonds and secur- 
ities, for money mentioned and referred to 
in the schedule of the Exchange Rank of 
Yarmouth, N. .S." The notes sued on were not 
included in tl'.e schedule. 

Htid, that the teinis of the signature did not 
control the general provisions of the release, and 
that plaintiffs could not set up that their execu- 
tion of the instrument was void, after having 



IGl 



ASSIGNMENT. 



162 



recuivL'd money from tlie estate on tlie .strength 
of tlie iissignment. 

7'/tr Exr/KDiiji liaiikw lildhni, 
r)R. &(!., oWX 

On a/'/iia/ to Prinj Coinici/, 
\nt every attempt hy a form of execution to 
restrain tlie full operation of a deed ean be 
treated as a non-exeeution of it. Where a deed 
of iissignnicnt by <lelitors to a trustee for the 
lieiiftit of all creditors who sliouhl execute tlie 
deed was executed by the plaiiitifl's, who a[)- 
jieiided a note that tlicv executed only in respect 
of certain claims scheduled to the deed and 
aiiiiniMtiiig to t;7.'J..").SI, and it n,ppeai'ed that sub- 
se(|Uciitly thereto, they receiveil a sum of iiuiney 
fiiiiii the trustee by vii'lue of their execution of 
the deed, 

/fi/il, that the plaint itf's were liound. The 
note ilid not amount to a refusal to execute ; and 
the plaiiititis having received payment under ihe 
deed could not be heard to I'epuiliate it, and 
deny their execution. Wi/b'nsoit v. Aiin/o-Ca/i- 
foniinii (!o/(l Miiiiii;/ Com/Kan/ (IH, Q. B, , ''2H) 
held t) be inapplicable. 

Til' Exchaiiiji Haul: of Yurmonth v Bklhui, 
10 App. Cas.,'273. 

0. Inartificial instrument construed as 

assignment -Surplus proceeds —Contest for — 
R. M. ,'C Co. sought to have surplus pniceeds 
arising out of a sale under foreclosure applied 
to a rccoiiled judgment held by them against 
the mortgagor. The judgment was recorded in 
Miiy, 1S74. I'laintilf's mortgage had been re- 
i<irded in 186!), and a, prior mortgage of the 
s;inie jiroperty had been recorded in I8."),">. I)e- 
fuiidiiut having become insolvent, his assignee, 
ill order to jirevent the saciitice of the jiroperty, 
piiid off the mortgage last mentioned uiid the 
iiitciot on plaintirt's mortgage, receiving from 
tliu holders of the mortgage which he paid an 
iiistranuht in which, after reciting payment of 
the 1 riiicipal and interest, it expresseil that the 
bond was delivered up to be cancelled (which, 
however, was not cancelled, Imt was produced 
with the mortgage), and that they remised, re- 
leased, and ((uitted claim to him, as assignee, 
the land therein mentioned, and all the right 
which they had as executors, and all sums men- 
tioned therein, to have and to hold to the said 
K., as assignee as aforesaid, his successors and 
a.S8ign3. 

H<ld, that this instrument, though inarti- 
ficiuUy drawn, was open to the construction that 
It was a satisfaction of tlie debt as between the 
executors and the assignee, but conveyed to the 
latter all their interest in the mortgage as 
against subsequent incumbrancers; but that, 
6 



even assuming that it was a release of the mort- 
gage, and not an "'.signment, the assignee had a 
prior claim to the surjiliis ])roceeds for the 
amounts he had advanced on the mortgage to 
prevent foreclosure and sale, suliject to a credit 
for any amounts received by him for rent of the 
j mortgageil premises. 'i"he assignee had also 
recovered judgment against the SheriH', who 
bad been indemnified by R. M. & Co., and they 
lieiiig entitled to a lien on the land if their judg- 
ment against the defendant was established, if 
not to a dividend on', of defendant's estate, it 
was agreed that tlu'y should be relie\cd of the 
assignee's judgment against the .Sherill', and that 
the amount should go against their judgment in 
the event of its being held valid, or if not, then 
against their dividend. 

llil'l, that the assignee, under this agree- 
ment, had also a irior claim on the surplus 
proceeds for the amount of the judgment against 
the Sheritf, and that R. M. & Co. were entitled 
only to the balance. 

liouil v. I IhI I'll ill son It ul., R. E. 1)., 44.3. 

7. Mortgage recorded -Tlien attaclinicnt 

— Then assignment of mortgage --Attaching 
creditors do not acquire priority over assignee 
-4th R. S.. c. 79 ss. 19 and 22, same as 5th 
R. S., c. 84., ss. 18 and 21— The defendant, 
holding a mortgage on certain real estate which 
was duly recorded, assigned the same to the 
plaiiitili's, after which defendant purchased the 
eiltiity of redemption, and the deed was duly 
recorded. Attachments were then issued against 
the defendant as an absconding debtor, and the 
attaelinients, as well as the judgments entered 
thereon, were placed on record liefore the as- 
hiignmeiit of the mortgage. The attaching credi- 
tors claimed, under 4th Revised .Statutes, e. 70, 
s. 19 and i2'2, to have priorilj-, as against the 
assignee of the mortgage. 

Jli/d, that the mortgage remained a lieu on 
the property, whether the assignment was re- 
corded or not, and that the attaching creditors 
had not the priority claimed. 

limjinond vt a/, v. Ilirhards, R. E. 1)., 4'23. 

8. \otice of assignment — Must specify 

exact interest assigned — When a party takes 
an assignment of a chose in action, to enable the 
assignee to bring an action under 18 Vic, c. '23, 
the notice must specify the exact interest of the 
assignee under the assignment. 

Ward V. McDontdd, 2 Thorn., 422. 

9. Right to a grant— Mortgage of— Assign- 
ment — Right of mortgagee as against grant 
taken out by mortgagor's assignee — T. A. and 



163 



ATTACHMENT. 



164 



J. A. were entitled to receive grants of certain 
Crown Lands upon which the price liad been 
paid to the government. Before taking out 
their grants tiiey mortgaged their rights to 
phiintitt". iSubse(iuently they became insolvent, 
and made a general assignment to defendants 
for the benefit of their creditors. The defen- 
fendants as such assignees, applied for the 
grants, and had them made out to themselves, 
selecting lots in difi'ereut localities from those 
indicated in the original application, but the 
money paid for them was that paid on the 
original application. On the plaintiff seeking 
re-payment of the amount loaned by him to T. 
A. and J. A., the defendants refused to satisfy 
his claim. 

Held, that as assignees of tiie A.'s, they had 
only succeeded to sucli rights as the A.'s pos- 
sessed at the time of tlie assignment, and those 
rights having been mortgLsjed to plaintiff, his 
claim should first be satisfied Ijcfore they could 
deal M'ith the land granted to them. 

Stephens V. Tiriniuij et al. 3 N. S. D., 445. 

10. Suit brought by assignee in name of 

assignor — Where the attorney of the assignor 

was the assignee, held, tliat action might be 

maintained in the name of the assignor. The 

assignee may brnig suit in the name of the 

assignor. 

WaUh V. Hart, 2Thom., 400. 



ASSOCLlTIOJf. 
Marine Insurance— Right to retain money 

due an association collectively for deljts due by 
an individual member of the association denied. 
Seeton et at. v. The Merchants' Bank, 

6R. &«., 113; 

GC. L. T.,442. 



ATTACHMENT. 

I. OF DEBTS, 164. 

II. OF THE PERSON, 16,). 

III. IN PROCEEDINGS AGAINST ABSENT 
OR ABSCONDING DEBTORS— 

See ABSENT OR ABSCONDING DEBTOR. 

IV. UNDER INSOLVENT ACTS— 

See INSOLVENT ACTS. 



I. OF DEBTS. 
1. Attorney's lien for costs— On a motion 

on l.iehalf of plaintiff under the Ganushee Act 
for an attachment of all debts due the defendant 
by M., a lien for his costs was set up by the 
attorney who had entered the judgment for the 
defendant against M., but >\o notice had been 
given by the attorney to M. , nor had any effort 
been made by him to secure his costs. 

Held, that the claim of the attorney could not 
prevail over the attachment. 

Cock V. Bliss, 1 R. & C, -M. 



2. Estoppel— Equitable assignment -Gar- 
nishee process — Representation of indebted- 
ness by defendants — Plaintiff held a judgment 
against one (ieorge Cutten, and was about to sue 
Ryerson and Moses, «hom he understood to he 
Cutten's partners, licfore doing so, he con- 
sulted one of the defendants, by whom he was 
informed that there was a balance of some 
.$2,7<X) due from ti>e defendants to Cutten, for 
work performed for the defendants on the Wes- 
tern Counties Railway luider a contract, and 
defendants suggested that this amoiuit might 
lie made available to satisfy plaintiff's claim if 
tiicre was a garnishee law. Plaintiff' 's attorney, 
on the strength of this representation, issueil 
garnisiiee process, when defendants pleaded, 
denying that there was any debt due. 

Ihld, that defendants were estopped l)y their 
representation from denying their indcbteihiess 
to Cutten. 

Previous to the garnisiiee process being issued, 
Cutten had drawn an order, requesting deleiul- 
ants to pay all sums coming due to him, under 
the engineer's monthly certificates, to one Kil- 
lam, but there was no evidence of any iiideht- 
edness of Cutten to Killam. 

Htld, that this was not such an equitahle 
assignment as would prevent the attachment 
from operating on the fund. 

Fitzrandolph v. Shauly et al., 2 R. & G., 199) 

1 C. L. T., 705. 

On appeal to the Supreme Court of Canada, 
Held, affirming the judgment of the ,>5upi'eme 
Court of Nova Scotia, Strong and Gwynne, JJ., 
dissentiiKj, that the defendants were estopped hy 
their representation from denying their indeht- 
ediiess to Cutten ; and that there was no evi- 
dence of such an assignment as would pieveut 
the attachment from operating on the fund. 
Appeal dismissed with costs. 

Shanly v. Fitzrandolph, iiSth April, 1882, 
Cas. Digest, 159. 



1G5 



ATTACHMENT. 



166 



3, Insurance, policy of— Amount payable <lay of term for a contempt committed during 
under, when attachable — A garnishee order the term. IJut tiie rule will be dischatged if 
was made April 7th, at the instance of plaintiti', iieaded " In ri ," &c. when tliere is no such 
attacliiiif,' an amount allegeil to lie payable to matter depending in the Court. 
(Icffiidaiit under a i)olit!y of insurance. On ap- 1 In >•« Peti^r floss, 2 R. & C, ">96. 

plication by tiiu agent of tiie company for delay, ' 
on tlic ground that the loss was not admitted 
ami that he wisiied to get instructions from his 
company, an f)rder was made that tiie garnishee 
sliould not ))« rc(iuired to repay the money until 
the further order of the C'lnirt, and that in the 
meantime tiie debt should remain attached. On 
lltli October, tiie company, having in the mean- 
time admitted the debt and paid it over to the 
a.^sigiiee of the claimant, tlie Judge made an 

order h/v/ for tiie payment of the money to the' _ . . ,i n • /^ ; 

,.,.,, . , , On anpealto fhn Prifu Council, 

jiiil'Miicnt cieditor whicli lie afterwards made 

absolute, holding that the garnishee, after as- '^ ''"vrister, being also an attorney of the Su- 

senting to tlie or.ler of April -iSrd, was estopped, P''«""^ '-■""'»■' °f ■'^ '-'"'""y- '"'"^ ''^''" '^ «•"*•"' "' *''« 
until the order was rescinde.l, from raising the ^•°"''t' ^^'■"^6 a letter, as such suitor, to tiie 
fiuesti.ni tliat a p.dicy of in.surance couhl not be ' <^'''''-'f Justice, reflecting on tlie administration 



2. Contempt of Court-Letter to Chief 

Justice, by barrister, who is also a suitor — A 
letter written by a barrister to a Judge, charg- 
ing the Judge and the whole court with jiar- 
tiality in eases in which he was a party, is a 
contempt of court, for which the court may, of 
its own motion, suspend him from practice. 

In r,-^ T. J. Wallaic, 1 Old., 654. 



of justice in the court, and amounting to a 
contempt of court, whereupon tiie court sus- 
pended him from practising in (he court. 

Huld, that although courts of justice have 
power to remove tlieir otHcers, if guilty of crime 
or moral dolin((uency, rendering tlieni untit to 
be entrusted witli a professional status, yet, in- 
asmuch as the ott'ence in (juestion was committed 
by liim in his capacity as a suitor, and not as an 
officer of the court, punishment l)y tine or im- 
prisonment was tlic appropriate puiiislimciit, 
and the order suspending him from pi'actice was 
directed to be reversed. 

Wallaif, in re, L. R. 1 P. (.'., -283; 
30 L. T. P. C, 9. 



giu'nislieed, and that the proof of loss having 
been satisfactorily madC; the amount became 
attachable as an existing and acknowledged debt 
wliicli tiicgarnisliee iuid paid over to the assignee 
at Ills jieril. 

Ill Id, tlial the policy was not attacliable under 
liie garnishee order issued in April, and that 
iKitliiiig had afterwards occurred to alter the 
legal relations of the parties. 

Po/iham V. Cdhoon, 3 R. & (J., 277. 

4. Teacher's salary not attachable -Plain- 

tltt' obtained a garnisliee order wiiich was made 
alisoliite on the IStli June, without notice to the 
defendant, to attach the salary payable to the 
defendant as school teacher in the town of Pic- 
toii, foi tlie (iuarter ending August 1st. 

ILIil, that there was here no debt, but only a 
portion of a sahiry, and that salary not attacli- 
alilc under tlie Knglish rule, and the policy of 
tiie Provincial .Statute ; and that as the rule of attach -Rule nisi for— Requisites— Service of 



3. For disobedience to injunction -Inju- 
rious character of acts of disobedience — 
When demand necessary before proceeding to 



■On an application for attachment for disobe- 
dience to an injunction, the party against whom 
the attachment is .sought cannot lie permitted to 
raise the question whether the acts which con- 
stitute the disobedience are or are not injurious 
to the party who has obtained tlie injunction. 

Before application for attachment, a demand 
is only necessary when something is lequired to 
be <lone, as money paid, deed executed, etc. 
A rule aid for an attachment for breach of an 
vita for attachment— A rule for attachment for i injunction need not state that it was granted on 
contempt i ' Court committed during an ad- reading the injunction. All that is necessary is 
jounied te: m (adjourned under 4tli R. S., c. 94, 1 to produce the injunction in court. 
*• 11), can be moved for on the last day of such Personal service of a rule nisi is waived by 
term, and it is no objection to the rule that it is , appearance. 

made returnable to the next term. A rule nisi \ The Starr Mannfarturinq Co. (Limited) 
foi' an attachment can be moved for on the last I v. Fairbanks, 3 N. S. D., 46. 



the iSth June had been passed without notice to 
tlie defendant, and without argument, it must 
he rescindeil with costs. 

Frasti- V. Mc Arthur, 3 R. & C, 498. 



II. OF THE PERSON. 



1. Contempt of Court-Intituling afflda- 



167 



ATTORNEY. 



168 



4. In Admiralty Court -Coniniitinent for 

contempt — Party iirn.'.stud liy tlin process of the 
Court of Admiralty, for rescuing a vessel ami 
cargo out of the custody of the Marshal ami 
officers of the customs, preseuls a hunilde jieti- 
tioii for discliaigc, and is released. 

Eiior/i S/uinrooil's Cam , Stewart, I'J.'J. 



ATTORNEY. 

1. Admission to the Bar— Motion for— Acts 

1880, c. 13, s. 6— Order of Court, Slst May, 
1881 — Under an order pursuant to the Act of 
18)S((, ])ioviding tiiat a session slioulil l)e held 
for "calling, arguing, and disposing of the 
causes remaining on the docket." 

Ililtl, that tlie only motion that could be en- 
tertained, except motions relating to causes on 
the docket, was a motion for admission to the 

Bar. 

lit A(l)nii<ion to Iht Bar, 2 R. & G., 3()« ; 

•2C. L. T.,yii. 

2. Articled clerk -Filing articles — The 

court refused to allow a law student's articles of 
clerkship to be tiled, nunc pro tuiir, where they 
had not been tiled at the time of their execution. 
//( re A/ijiticnlioii of llVf/w, 

2R. &L'., 383. 

3. Attorney and client— .Action to recover 

amount claiined for professional services — 
Speci.^.1 agreement — Delivery of bill not 
necessary — Pleading — Practice — In an action 
brought by plaintitTs to recover anamount claimed 
to be due for professional services as solicitors 
for the defendant, the jury foiuid that the de- 
fendant did not contract with the plaiiititl's by 
retaining them to execute professional business 
for him as alleged. It appeared clearly from 
the evidence that in two cases the plaintiffs had 
been so retained, and in a thiril case the retainer 
was admitted, but defendant swore that at tiie 
time nis atl'airs were in the hands of C, his 
assignee, and that he said to S. , one of the plain- 
tiffs, "I am not acting personally, nor am I 
going to pay any money personally, but it must 
come by and through the a'signee and inspector 
and out of the funds in their hands," and fur- 
ther, "I told him distinctly that no personal 
obligation was to attach to me. " 

Held, that the denial of the retainer was not 
sustained by proof of the special agreement 
alleged. 

Also, that the special agreement should have 
been pleaded, and threw the burden on defen- 



dant of proving atiirmatively, not oidy the .soiiice 
from which the finids to pay plaintitK-i were to 
come, but also that such funds hail not come 
into defendant's hands. 

Kitchie, .1., lUssi iiliiiii. 

Under the practice in tiiis Pi'ovincc, tiic de- 
livery of a )>ill of costs as rei|uired by ,'{ .liuues, 
I, cliaplcr 7, is I'ot necessary, costs liciiij,' re- 
coverable as any other debt. 

.V(f/;/(- (/•(>/•»/ al. V. Fuirliaiikx, 7 R. & (;., 399; 

7 f. L. T., 435. 

4. Attorney and client -General retainer 

— Compensation for professional services — 

1 PlaintitI' was I'elaineil as solicitor of the defeinl- 

ant company in arianging for the right (jf May 

and all other mattei's connected \\ itli tlicir works 

I on the Kastern Kxtension Railway. He rendered 

' accounts from time to time for services I'endered 

in obtaining titles to land througli wliicl[ the 

railway ran, and other services as attorney iiinl 

: barrister, amounting to about .S'JIX) a year. 

I These accounts included cash outlay for inivel- 

ling and other exjjenses, but no charge was iiuide 

i in tlieui for consultations, advice, corrcs|)iiiiileiac 

and other professional work. The dofendaiu 

company being about to transfer their road to 

the (Jovernmcnt of Xova .Scotia, plaintill' made 

a demand for further compiMisation for liis pro- 

i fessioual services. His right to sucli coiu|)eii.*a- 

I tion was admitted, and an account rendered 

for services at tlie rate of .'51IKKJ a yi.ar. 

Xo exception was taken to the charge as being 

I excessive, and plaintiff was requested to act for 

the company in connection with ritlicr legal 

l)usiness. Tiie airiount claimed by plaintitf was 

included as actual outlay in accounts sulmiittcd 

; l)y the defendant company to arliilrators 

I appointed to determine the amount to lie paid 

the defendant by the (iovernment iif Xova 

.Scotia, and no objection was made to tlie charge 

by the company until after the rejection of the 

amount by the arbitrators, as not included in 

the class of charges to be paid by the Province. 

H<M, tiiat in view of the extent of the 

plaintiff's practice, and the fact that his retainer 

would exclude him from all business adverse to 

the company, the amount claimed by him was 

not excessive, and that the rule to set aside the 

verdict in plaintiflf 's favor must be discharged 

with costs. 

Fra^tr v. Halifax and C. B. Ry. Co., 

6R. <S;0.,23; 

6 C. L. r., 138. 

5. Attorney and client-Solicitor's lien for 

costs— Satisfaction piece alleged to have been 
given in fraud of— Held good in absence of 



169 



ATTORNEY. 



170 



proof of collusion— Costs — Appeal from a 

ilecisinii ii'fiiniiij,' to sot asiilo a satisfaction jiitw 
alk'U<'il •" ''"^''' '"''^" given in fraud of tlie 
plaint ill' 'h solicitors for tlie purpose of depriving 
tliciii nt' their costs. I'laintitl' iiad obtained a 
juilL'incnt iigaiust defendant, from wliicli defend- 
ant liad apjiealed. While the ap])eal was pend- 
iiii.', (inc K. T., without tlie knowledgo of plain- 
titl's solicitors, for an apjmrently inade(|uate 
consideration, obtained an assignment of the 
juilfrnieiit from the plaintiff, and a satisfaction 
liiiii. under the authority of which the judg- 
ment was discharged two days later. 



risters and counsel, that the charges were not in 
the tariff and, tiierefore, not recognized liy law. 
Per .Johnstone, J., in tiie t'ounty Court, if 
the contention be sustained, it will revolution- 
ize professional ))usiness in this I'rovinct;, Imt I 
do not think tiie Fnglish rule in its strictness is 
applical)le to the circumstances of this province, 
where the division betw een attorney and barris- 
ter is not recognized ; and the Legislature would 
seem to have been of the same ojiinion, for, in 
the attorneys' fees, they allow eounsol fees to be 
taxed whicli are taxed for the attorney, and 
cainiot be considered in the light of honorari- 



It did not api)ear that there was any collusiim j ums. The Knglish rule, as I apprehend it, is, 
fin the ])uit of the plaiutiH' and defemlant to i that a barrister cannot maintain an action for 
(l(']irive the solicitors of the former of their j remuiu'iation for advice or advocacy in matters 

of litigation, but this docs not a|)ply to matters 
unconnected with anil not ancilliary to litigated 
business. 

Motion ef n/. v. ninniaii, '2 R. & ('.., 102 ; 

1 C. L. 'W, G(j.3. 



Hilil. that tlic ajipeal must lie dismissed, but 
in vii'iv iif the pccidiur initure of the eircum- 
slanucs v.ilhout costs. 

MiFar/iiiii V. Siii:ih, 7 I!, vt (1., .")41 ; 
SC. L. T., 04. 



0. (hose ill acdon Assi$;niiiont of -No- 
tice of- 'Last place of abode — //> /</. that where 

the debtor was an attorney, that a notice of ],y y\ ,^ jj,,,, f„(. ||jj, 
i.-siiinnuiit oi' the debt served u))on him by 1(miv- 
ini: it al his (iliicc instead of "at his last ])lace 
(if iiboilr. " the words u.sed in the Act, was with- 
in till' sjiirit of the Act. 

O'Connor V. 1I'm/,s .-{ X S. 1)., 71. 



». ('0lll|)laint against — A complaint was 
mailc aiiaiiist .M., an attorney of the Court, that 
a pcrsiiii named l'\, havinj; been bi'onght befuie 
t'. and S.. .justices of the Peace, under the 
Insdlvcnt law, M., who ajipeared as attorney 



9. Costs— lien for costs- On a nioti<m on 
behalf of plaintilf under the (iaruishee Act for 
an attachment of all debts due the defendant 
costs was S(;t uj) by the 
attorney who had enteied the judgment for the 
defendant against ^I., but no notice had been 
given by the attorney to M., nor had any effort 
been tr.ade by him to secure his costs. 

/Ic/il, that the claim of the attorney could 
not prevail over the attachment. 

Cork-v. Ji/U'^, 1 R. & v., '2m. 



10. Power of, to refer to arbitration— 

Power to consent to extend time for making 
award -A I'ef'erence was entered i:,to, .signect by 
fdf v.. agreed to carry out an arrangement by (1,^ K^'coi-der of the City of Halifax au'l the at- 
which 1'.. on condition of receiving his dis- torney of plaintiff, ami made a rule of Court, 
cliaigo, a^'rced to give the creditor a warrant of ^yhereby the matters in disjuite in the action 



attorney, to enable him to enter up a judgment 
in liic Siipienic Court to bind aiiy property he 
(F. iniiixht then have. It was alleged further, 
that the warrant and judgment were to be 
I'liCDnlcil bet'ori! the discharge took etl'ect, but 
thill, aftti' the discharge, and befoie the judg- 
ment could be recorded, M. recorde<l a deed of 
all the real estate of F. to P., and also recorded 
a bill of Side of the ))er.soiuil jji'operty of F. to 
liinisi'lf. There b'ing conti-iidictory affidavits, 
tlie rule was discharged with co.sts. 

In re C. K. Mor-<r, 1 N. S. D., .S88. 

8. Fees of barristers— English rule— in 

an action for an account due plaintiffs for pro- 
fessionid services, as solicitors, attorneys iind 
barristeiM, one of the grounds of defence was 
that the claim was for services rendered as bar- 



were left to two arbitrators niimed, and a third 
to bi' by them chosen, the award to be made on 
or before the 1st day of May, or on such fiu'ther 
or ulterior day aa the said iirbitrators, or any 
two of them, should from time to time indorse 
on the order. Two extensions were indorsed by 
two of the arbitrators to the 1st July and the 
1st September respectively, and on the .'Ust 
August a further extension to the Stli .September 
was indorsed, signed, not by the arbitrators, 
but by the Recorder and the plaiiitifl'"s attorney. 
In the awaril, which was made on the 7th Sep- 
tember, the arbitiators set out that they had 
considered the matters referred to them under 
the annexed rule, " and the indorseinents 
thereon." 

Jleld, on a motion to set aside the award, that 
the Recorder, as tlie attorney of the corjioration, 



171 AUCTION. 172 

hail power to enter into tlie reference, but /<f>" some of tlie lotH nnnonnueil in presence of two o' 

Young, C. J., DesRiirres ami McDonald. JJ., the defendants, tliat if any one wanted to Ituy he 

(Weatherl)e, J., (//.-I* «^//(.'/). tiiat tlie last enlarge- should come to liis otKce anil lie would lie pre- 

nient not having lieen made l>y the arhitrators, pared to treat for the purchase of the iKilaiicc 

an reijuired liy the rule, Init by the attorneys of I'laintiflT purchased a lot at private sale from tlic 

the parties, was invalid, and that the assent of auctioneer, and a memo, of the transaction was 

the ariiitrators thereto could not give them juris- signed liy the auctioneer and the purchaser, 
diction; //'/• Young, (.". .1., and DesHarres, J., //iV^/, that even assuming an acijuiescencf of 

that there hud been no waiver of the irregular- the two defeiuhints who were present at the 

ity, as nothing was done by the parties in the invitation given by the auctioneer, binding iipon 

matter after the 1st of September; /« c Mc- themselves and the other defendant, yet a.s tiwt 

Donald, .1., that the last enlargement was a invitation was only to come to his oHice wliere 

void act, and couM not be waived. he woulil be prepared to treat as to the balamc 

Oaken V. Tht'Citij of Halij'ax, 1 R. & (i., 98. of the lots, the ac(|uiescence tlid not give liim 

Oil npiical to the Siqirdii,- Court o/Cniiada, 'i"y authority to bind the defemlants l.y a pii- 

//»/(/, reversing the judgment of the Supreme ^'^ *"' *"' ^'' 
Court of Xova Scotia, that AJiere the parties, , ^^»'' '■- l'm'r<f»'., 1 R. & C, .Vi. 

through their rcs])ectivc attorneys in the action, 
consent to extend the time for making an award 

under a rule of reference, such consent docs not 2. Deposit - RCCOVerj' Of— A purcluispv at 
operate as a new submis.-iion, but is iiii enlarge- 'm auction cannot recover the deposit <iii his 
ment of the time un<ler the rule, and a coiitiiiu- "wn refusal to carry out the contract, 
ation to tlic extended period of the authority of Ji/acl,- v. (.'ismr, •_' Tliom., 157, and 
the arbitrators, and therefore an award made Omy v. Whitman, 2 Thorn., 1,">7, followeil. 

within the extended period is an awar<l made Liiiilxinj v. Zirlrka; 2 N. S. 1),, KWI. 

under the rule of reference, md is valid and 
binding on the parties. j 

2. That the fact of one of the parties being ' 3^ AllCtlOlICCP - liability Of- Where an 
a iminiciiial corporation makes no diliereuce. auctioneer received an article with .■istiuctic.ns 

.1. Tlii.t in Nova Scotia, where the rule iim. „„t j„ ^^.n jj ,„„,^.,. ,^ ^.^,.^,^4,, p,.;^,^^ /„/,/_ ,|,,,t jf 
to set aside an award specifies certain groun.ls j^^. ^^.jj j^ f,„. ,^ j^,^^ ^,„„ ,,^. ^^.jjj ,,j. i;,^,,!^, j„,„.j|,^, 
of objection, and no new grounds are added by ,,,|,„j ^\^^. ],,^j, 

way of amendment in the court below, no other j^^^^^„ ,. chumhrlaiii, 1 Thom., (1st VA ), .I; 
ground of objection to the award can be raised /.2„|) j.;,] j 7 

on apjieal. 1 

Oah- V. Thi City ofJIulifax, 4 S. C. I!., ()40. I 

4. PuflTcr— Employment of-Sult for spe- 
ll. Salaried-Costs— The Ordinances of the cific performance— Tiie fact of pullers Idiig 
City of Halifax authorized the Council to ap- eniploj'ed by a vendor at a public sale of a 
point a Recorder at a salary in lieu of all fees number of lots, although none were proved to 
for services, and made it his duty to act for the ' have bid on the particular lots which tlic vendee 
city as counsel and attorney. agreed to purchase, was lield to be a good gnnind 

Hill, that notwithstanding the Recorder was of answer to a bill by the vendor for spucitic 
a sal iried officer and could not have taxed costs performance ; and a Court of Equity, in -such a 
against the city as between attorney and client, ease, instead of requiring dofeudant to prove 
the plaintiffs were entitled in a suit in which that some of tiic orgaiiizfil putters had !>idon 
they had succeeded to tax his costs as attorney ' the jiarticular lots, miglit '-ell call upon the 
against the defendant. plaintiff to prove that none had lad or been in- 

The City of Halifax v. Homaiix, 2 R. & (i., 271; structed to bid thereon. Even though defend- 

I C. L. T., 708. ant sign the conditions of sale, a Court of Kiiitity 
will not necessarily compel him, in a suit for 

specific perff)rmance, to complete his purchase, 

where a mistake made by the plaintitl' or liis 
AUCTION. agent in plans circulated and used at the sale 

had misled and prejudiced him, but will leave 
1. Auctioneer — AutilOrlty of— An ai c- the plaintiff to his remedy in a Court of Coin- 
tioneer was instructed to sell land in lots by mon Law. 
auction for three defendants, and after selling \ Jennings v. Hart, 1 R. & C., l"- 



173 



BAIL. 



174 



AVERAGE- 
.S(c INSURANCE. 



AWARD- 
fl,e ARBITRATION AND AWARD. 



BAIL. 



1. Appeal Ball -May be filed without 

notice Must justify— When— In taking out 
rules to set aside verdicts, the bail may 1)e tiled 
without notice, l)iit must justify when they 
enter into the recognizance, — tlie justification 
may he oral liefore the Judge or Prothonotary, 
iiuil wlieu made sliould he noted in the recogni- 
zance. The justification may he dis])ensed with 
liy tiie opposite party, and the substitution of 
one hail for two may he in like manner assented 
to, anil no notice of such bail having been given 
shall he rccjuired. 

Sutticient hail means substantial bail, eitlier 
aecepted hy the opposite party or prepared to 

justify. 

Kochnll V. HoHs, 1 N. .S. D., 183. 

2. Appeal -Insiifflclent if the words " to 

respond the judgment " omitted — Where a rtde 
was taken under the .statute to set aside a ver- 
ilict, and the words " to respond the judgment " 
lUil not a])pear in the bail-piece, the Court pro- 
noimced the hail wholly insutlicient. 

Forsyth v. Symonds, ;? R. & C, o\. 

3. Appeal -Notice Of ball — Rule »/•</ for 

new trial discharged, no notice of bail having 
been served during the Term or Sittings, as 
required hy Rules of Court. 

Qnao-e, whether the addition of a deponent 
is indispen-sahle to an affidavit of justification. 
Acadia Co-o/itration Soriefy v. Frasfr, 

3R. & C.,100. 

i' Appeal— Objection to ball at argnment 

too late— A preliminary <^bjection was taken at 
the argument that the bail was defective. 

Hdd, that muler the present system of print- 
ed cases, the objection was too late. 



I Per Rigby, J. — That as the material neces- 
sary to enable the Coiu't to eonsidei tiie objec- 
tion waH not included in the ease as furnished, 
the objection was not open to the plaintiffs. 
OcDnmon v. Jodfcy, 2 R. & C., 314 questioned. 
McDonnell t' «/. v. MvMcMter, 3 R. & (»., 372; 

2C. L. T.,605. 

.1. Appeal -3rd Rev. Stats., c. 134, s. 107 

—Does not extend to the Crown— Ciiap. 134, 
3rd Rev. Stat., "Of l'le»,ding8 an.l I'ractice in the 
Supreme Court," sec. 197, in reference to the 
filing <»f bail in cases where the Judge has re- 
fused a rule nm for an appeal, and an appeal is 
taken under the Statute, is confined in its ope- 
ration to jH-ivate parties, and does not extend 
to the Crown. 

Qiwen v. Rycrson, 2 N. S D., 276. 

0. Appeal -Shareholder ball In an action 

against Company — Barrister, not practising 
— Failure of bail to justify — May be amended 

— Application was made to set aside a bail-piece 
entered into on behalf of defendants, on an 
appeal, on tiie groumls, — • 

Fivft, That one of the bail was a defendant in 
the action ; 

Scroiifl, That he was a barrister and attorney 
of the Court ; 

Third, That neither of the bail had justified 
in an amount double tlie amount of the verdict. 

Held, as to the first objection that the fact of 
one of the bail being a stockholder in the defen- 
dant Comijany did not incapacitate him from 
becoming bail. As to the secemd, that not hav- 
ing practised for nearly half a century, the 
objection did not apjdj' ; and lastly, that the 
third objection could be cured by amendment, 
which the Court had power to grant. 

Trtmnine v. Halifax Gas TJijht Co., 

3N. S. D.,135. 



j 1. Appeal from County Court — Defects 

I in bond — Irregularity in return of execution — 
I Plaintiff sued in the County Court on a bail- 
I bond given by the three defendants, who plead- 
j ed and proved that the execution had been 
returned before the expiration of the sixty days 
within whicii it was made returnable. The 
County Court Judge held that this was a mere 
irregularity, not touching the merits, and could 
not be taken advantage of by plea, and he gave 
jiulgment against the three defendants. De- 
fendants appealed, and in the appeal bond 
recited the judgment as a judgment against two 
of the defendants. 

Held, that the appeal was irregular, and that 
a motion was properly made in the Supreme 



175 



BAIL. 



176 



Court to sot it aside, tliougli the papert; had 
been certified and the bond approved by tlie 
County Court Judge. 

Waf'<oii V. Jfriit'i/, .S R. j;- a., 1.31. 

8. Bond conditioned to render defendant 

to Sheriff ot" Halifax — Execution placed in 
hands of Sheriff of Annapolis where venue of 
action was —Held properly so — Amendment — 
Indorsement of execution — Tlie original plain- 
tiff, wlio diu<l after the eoninienceniciit of the suit, 
the action i)oing continued bj' his adniinistratois', 
issued at Ainiaj)olis a writ of capias against one 
Cutler, returnable at Annaj)c>lis, directed to the 
Slieriir of (,|ueens or any other Slieritf, under 
vliich Cutler was arrested by the .Sherifl' of 
Halifax County, in his bailiwick, and lield toliail, 
defenilant becoming surety, and tlic condition of 
the bond being that (^utler should be rendered 
into tlie custody of the Sheriff of Halifax. 'I'lie 
declaration in tiie suit against Culler was on a 
bill of exchaiige draw n by Cutler and others and 
dishonore<l, witli particulars ajjplicalilo to such 
a count, togethei' with common counts laying 
the indebtedness in Cutler and said others, but 
after issue joined common counts were added, 
laying the indebtedness in Cutler mily. .uid jiar- 
tieulai's accordingly. .ludgnicnl \\a.> . •■overeil 
against Culler, and an execution issued direi'ed 
to the Sherilt'of Annajiolis in the usual form, but 
without any indorsement especially directing the 
Sheritt' to take the body. Xo execution was 
placed in tlie liandsof tlie Shcrill' of Halifax, and 
the .Slicritf of Annapolis, after holding the execu- 
tion sixty (lays, returned iioi/ o/ inn iiIh". 

IIi/il, tlmt tlie cx(Hnition had hccn i)r(>])eily 
placed in the hands of the Sherili'of Annapolis 
County, in which the venue in the original actimi 
■was laid, and not in Halifax, where the arrest 
was made ; and that the objection as to the 
amenilmcnt of the writ couhl not ])revail, as there 
was nothing before the Court to show the nature , 
of the del it sworn to in the afiiilavit on which' 
the cajiias issued, or that the plaiiititV hail not i 
recovered on the declaration as originally framed, [ 
but that in order to enable plaintiH'to liringaetiou | 
against the defendant as bail, a writ should have ' 
been placed in the Sheritrs hands with instruc- 
tions indorsed to take the body of the princij)al. ' 
(lartvM V. lilnrl; .S \\. k ('., I'.'!). ■ 

ft. Bond given by i)risoner with surety to 

obtain jail limits Cannot be transferred by 
indorsement as a bail-bond—The defendant j 
having been arrested on an execution, obtained j 
the jirivilege of jail limits, as fixed by an order! 
of Court, under 4th H. S., c. 'J"2, s. 7, and gave a [ 
bond witli a surety to the Sheiitf, who assigned j 
it to plaintitf. I 



Held, that the bond could not be transferred 
by indorsement as a bail-bond so aa to vest a 
right of action in the tran.sferee, and that four- 
teen days' notice of action must be given by the 
assignee. 

(Jiianx, as to legality of the bond. 

Jioiic V. Pnmhnjasl, 1 R. & (i., .'isj. 

10. Bond instead of bail-piece.— Rule m4 

under the statute for a new trial discluirgcd on 
the ground that a bond was filed instead of a 
bail-piece. 

McKi'.ium v. Tracy, ] R. & (i., ,'i'jL'. 

41. Bond instead of bail-piece on certi- 
orari — ('■ j/inmrl to remove a convicti'in for 
violation of the License Laws in the City of 
Halifax (|uashed on the ground that a liond liud 
been tiled instcail of a bail-piece. 

Till Ciiij of Han fax v. Lmke, •_' R. & (!., 14i 

12. Certiorari— Bond Breach of Condi- 
tion—Action for— Failure to prove breach- 
During the ])cnding of a cir/iorari to remove ;i 
conviction of the ilefcndant for .selling liiniois 
contrary to law, defenilant was again convicted 
and lined -SlJ'i.SO, inclusive of costs, which was 
reduced below .S-0 by part paj'inent, and action 
was brought ill the County Court tor tliclial- 
ance, on a bond conditioneil that dclciidunt 
would not sell " during the ])cndency of the ap- 
peal'" from the first conviction. 1'here was no 
evidence that he sold li(|Uor personally, Imt it 
appeared that lif|Uor had been sold on the pre- 
nnses by a woman who was not shown to be 
the defendant's wife, child or .servant. 

llihl. that the breach of the condition of tiie 
bond had not 'oeen ])roved. 

(/»(/(/•(', whether even a sale ])rovcd to liiivc 
been made by defendant's wife, child or servant 
would be a breach of the conilition. 

Queen v. MrKeir.lr, 1 R. & (;..4SS. 

1». On Capias -Condition in Bond Dis- 
charge of surety — A bail-bond was taken upon 
a ea])ias issued out of the Magistrate's Court 
conditioned for the a)ipearance of the defendant 
in the sint or his authorized agent. The attor- 
ney appeared with a wiitten authority aa "the 
authorized agent." and the jilaintilf obtained 
judgment upon which an execution was issued 
antl returned iinii (-7 inri iitii-i. In an action 
against the surety, 

Ihlil, affirming the dt^cision of the C"unty 
Com't that the surety's obligation had licea dis- 
charged by the appearance of the agent and 
that plaintiff could not recover against him. 

\\'ri;i/i' V. Neeres, 3 R. & C, 563. 



177 



BAILMENT. 



178 



BAILMENT. 
1. Bailee, may maintain action against 

wi'ongdoer — Plaintiff was ontriisti;il witli the 
possession of oertiiin goods ))y the ownur, who 
WHS aSout CO leave the Province, to he forward- 
ed to h in. Witli this intention the goods were 
sent to a wharf to lie slii, jied l>y a vessel then 
lying there, l)Ut theie was no formal delivery to 
the master or any one on hoard. The defend- 
ant, who showed no justification, eaused the 
goods to he taken and sohl. 

//'/(/, tliat until the assent of the master of 
hail-pieee not a sufficient answ ;r to a plea of ^i,^, ^.^,^, ,,i ,,, ^.^^,,^.■^yo the goods was siiown, they 



14. In criminal matters -Principals can- 
not, accessories it ay be bailed — Prisoners 
cluuved with murder cannot be admitted to hail 
exoc|)t undei' extreme circumstances, — other- 
wise with accessories after the fact. 

(^hl(<:^l V. Mnr/ihy iJ a/., James, 15S. 



15. Order to hold to ball Affidavit for 

and setting aside— X' > AKKEST. 



10. Record must be filed Production of 



mil li'l fn'oril — No execution issued before 
action— In an action on an aih'ged recognizance 
lit liail. set out in plaintiti's declaration as 
ciitcri'd into hy the defendant-^ to rcspund a 
juili'iucnt to he finally given on a rule ;//>/. taken 
mictcr the Stiitute vindcr the formei- practice, 
the ilrfcnilauts admitted tile making ni the hail- 
])ii'rc. wiii.'h was signed hy them lieiore R. T. 
W., as Coiuiuissioner. admitted to ))e such, \v iio 
iilsii look tlu'U' alhdavits of justiticalion, and. 
liiiiii; Protliouotaiy, had tlu'iu tiled with liic 
iiuil-piece, hut the recogiii/ance was not ivduced 
til writing, nor did it ap|)ear u])on any record of 
the t'oiM't. 

IK'tVudanls pleaded, among other things, that 
tiu'ic was no record of the alliged recognizance 
of liail reuiaiuing in the Court, as it was set out 
ill the |)laintilVV declaration. 

/.'■A/, that the ])rodiictioii of the liail-piei-e 
alone, worded "to ]-esj)oiid the judgment to lie 
tiiiiilly given hcieiii on a rule »/•-■/ for a new tiial 
niiili'i' the Statiiti\" was not sutlicieiil [iroof of 
tlif plea. 

It lieiug ailiiiiueil that no execution had liecii 
i^sllell, 

Ifild, (-(/mi. that it defendants could avail 
tlii'iuselves Hi' that defence. ]ilaiiititi's ciuild not 
I'L'cover; hut that the defence \\as not ax'ailalile, 
nut liaviiig heeii pleaded. 
Mri;.. .1 al. V. l',,-l.-:ii-^>f(tl., -JO \. S. H., 

(s i;. .V (i.), 1.-.4: 
SC. L. T., .•!7.'). 



remained in the possession of the plaintiff as 
s|)ecial owner, so as to enable liim to maintain 
an action against a \Mongdoer. 

Sn,i/„r</ V. noir/i.-<, :! X. .S. 1)., ;«)4. 

2. Gratuitous Misfeasance or ncjsllgcnce 

— Plaintitl' and ilefemlant held notes of 1). S. tS: 
Co., of I'liiladeljiliia. for .■<l(;(Xt and . ■<+()(»() respec- 
tively. Uefoie maturity c)f the notes, defendant 
undertook, with consent of the plaintiff, who 
indorsed the note held by him for that ])iirpose, 
to present the notes to the makers in Philadelphia 
for discount, but there was no agrcen.ent e.\- 
]»ressed or implied for any ciiiiimissinii or reward 
to he paid to defendant. The makers declining 
to discount the note, defendant left them with 
\'an H., to he retained subject to order of the 
owie-rs. \',ui li. deposited the notes in a sealed 
eiivelo))e in t lie Corn I'Acliange Xational P>ank, 
lint afterwards, becoming embarrassed, fraudu- 
lently took the ))laintitf"s note from the envelope, 
got it discounted by the makers and a[)pr()piiated 
I lie proceeds to his own use, and afterwards 
tailed. Defendant ascertaining the fact of the 
failure, or tVsiriiig it, went on to I'hiladclphia 
and secured his own note. 

}/i/il. that defendant, lieing a niandataiy, or 
bailee without rewaril, had not been guilty of 
such negligence or misfeasance in dealing with 
the i)laiutitV's note as to render him liable in an 
action for the loss resulting from \'an If. '.s breach 
of trust, thefts being no evidence that the advan- 
tage he gained in saving his own note resulted 
n. Heforence to arbitration, discharges from collusion witli Van II., and the evidence 

bail -Whi'ii a cause, by consent of both ))arties, 

is fffeireil to arliitration. 



showing, although the fact was not brought out 
in the pleadings, that the defendant liacl put his 
//'''/, that the hail in the original action is own note in the same hazard with that of the 



discliarged. 

'''' \\ ilkius, .1. — When a inisoii liecomes 
respnnsihle as hail, he contemplates lieing liable 



jilaintilf. 

Wilkins, .!., (//•<«»//»;/, that the ih'fendant, in 
depositing the jilaintilf 's note w itli Van H., was 



ttccniiliiig to the usual lej^al proceedings ; if that not acting within the scojie of his authority as 

usual iiKiile is altereil, and the matter in dispute bailee, anil was liable for the conse(|Uences of his 

18 left to aiiiicahle arrangoinenl. as in arbitra- act, but that, as the verdict was in U. S. cur- 

tioii, the position of the bail is changeil. rency, it should be set aside. 

A/lisoii V. DeMHristv/, Cochran, 1!). Ifn-ritv. Shijili/i/, 1 R. & C., 1, 



179 



BAILMENT. 



180 



3. Gratnltous-Lien for repairs -A watch 

was left by one Von .Sclioern witli tlie plaintiff 
for repairs and when culled for two days after- 
wards was not ready, wliereiii)on plaintiff loaned 
to Von Si-'lioern a watch to lie kept till the 
repairs were coini)lctcd. The watch so loaned 
becoming out of repair in Von Schoern's iuinds 
was taken l)y him to defendant for repair and 
defendant loaned Von Sclioern another to nse in 
tiie meantime with which Von Sclioern abscond- 
ed. IMaintiff learning that his watch was at 
defendant's shop, demanded it ; defendant re- 
fused it, setting up a lien for repairs. 

Held, attirming the decision of the County 
Court, that the loan of tlie plaintitVs watch to 
Van Scliorn was a mere gratuitf)us biiilment 
existing during the mere pleasure of the lender 
passing no special projjerty to Von Sclioern, and 
that defendant couhl not set up any lien for the 
repairs. 

An order for appeal was signed by the Judge, 
setting out a number of grounds, but the Judge 
in his certificate left it to this Court to say 
M'hether an aj)peal could be allowed in an action 
of tort where the judgment was muler foi'ty 
dollars. 

Jfilil, that the appellant could not beconfincd 
to this single ground of a])])eal, the Judge hav- 
ing a discretion mider tiie Act of IfSTS, c. 0, s. 
14, tf> allow an appeal on any jioint of law or 
praetice in any matter tried or aigucd before 
him and having granted an order setting out the 
grounds on which the api)ellant wished to rely. 
Mrlhnmhl V. St!v'<hii, .S H. A: C., ."vJO. 

4. Hirer of property — Misuser — when a 

])erson hires a horse with a wagon seated for 
two i)eisons and takes three, he is liable as ffir 
a misuser if the horse die. 

C(ui ji V. Airhilinld. '1 Thoiu., 4. 

3. Misuser of property lent Terminates 

bailment — Trover maintainable — Tinver is 
maintainable by the owner of jjiopcrty, where a 
third pai'ty, to whom the owner has given the 
use of the property, has sold it witiiout author- 
ity. The rule is, that wliere there lias lieen a 
misuser r)f the thing lent, there is an end of the 
bailment, and trover is maintainable. 

S'lhliij V. Sihhii, '2 X. S. 1)., 3'2."s, 

6. Right of bailee to hold goods for un- 
paid purchase money — I). S. stored a lot of fish 
with defendants, which he afterwards sold to 
R., giving liim a memorandum heailed " R. 
bought of 1). S." signed by the latter. R. 
piiid half in cash, and gave S. a note for the bal- 
ance, which w as indorsed by defendants, and 



! retired by them at maturity. R., after the sale, 

: became insolvent, and plaintiff, his assignee, 

, produced at the first meeting of creditors a 
statement of as.sets, the first item of which was 
"2.% bbls. mackerel stored at Black Brothers," 

' defendants. One of the defendants atteinleil 
the meeting and saw the statement, remarking 
to those present that h" was not aware of any 
fish of R's stored witli them, but he gave no 
such intimation to the assignee or inspecler, 

[ and, long after, the defendants made a claim on 
the estate for the amount of tlie note, stating 
that they held no security, and a dividend was 
paid them. The assignee having brought au 
action of trover for the fish, lecovered a ver- 
dict. 

//(/(/, that the defendants had no right to re- 
tain the tisli, no claim of lien having been .set 
up, and that by bedding the note ami claiming 
f(n' the amount on the insolvent estate. t!iey 
would have lost all right to retain possession of 
the fish, if they had ever had any sucli right. 
Hart, A'^-'iijiiii , v. Troop it n/. , 2 R. & <i., ;<•")! ; 

•2C. L. T.,9.). 
Oh (ip/H(i/ to till Sii/iri nil Court of Cninnln, 
//'/f/. .Strong, J., (II--1I iitiiiij, that tlie ajipel- 
lants having failed to prove the riglit of piopiity 
in themselves, upon wiiicli they relieil at the 
trial, the respondei.t had, as against the aiipil- 
lants, a right to the immediate possessinn of tiie 
fish. 

. 2. That S. hail not stored the fish willi ap- 
pellants by way of security for a debt due by 
him, and as tlie appellants had knowledge iliut 
the fish sued for were included by the iiisulvcnt 
in the statement of his assets, to wliicii state- 
ment they made no objection, but proved against 
tlie estate for the wliole amount of iiisdlvent's 
note, and received a dividend theieon, t! ry 
could not now claim the fish or set up a claim 

j for lien thereon. 

! Troop V. Hart, 7 S. ('. I!., .'d'.'; 

j -JC. r.. T.,i.'.-d. 

1 

I. Warehouseman — Respo.sibility of- 

W'heu a warehouseman retains for a coiisiilcialile 
sjiace of time a delivery order in his possession, 
without giving notice to the party sciuliiig it 
that the property is not the property of the 
i i).irty by whom the order is made, he will be 
I ])ersouallj' responsible for the goods contained in 
such delivery order. Wilkins, J., ilis.ii iitiinj. 

Pir Haliburton, C. J.— There is no similarity 
; between the jireseiitatiem of a bill of exchange 
I for acceptance and this case. In the cour.e of 
I business, the bill of exchange must be returned 
I to the party presenting it ; but that is not the 
I case with an order upon a warehouse keeper to 



181 



BANKS. 



182 



deliver gnoils in his custody. If he keep the 

order witiiout giving any answer to it, the party 

wlio sent it has a right to conclude tliat he has 

iriiide tiie transfer of the property, and tiiat he 

retains tiie order to show his authority for so 

dding. 

Tiriiiiiiij V. Oxil y, "2 Thorn., 18. 



B.INKS. 



1. .isspssmcnt of-Act inrorporatins town 

of New Gla.'jgow -Acta 1875, e. 49, ss. 46 and 
52 -4th Rev. Stats., c. 21, s. 67 -Ccrtiumri— 
The .\ot of Ineorporation of tlie Town of New 
(llasirmv, in section 4(>, provided titat the corpo- 
riitiiin sliduld assess, collect, and pay over what- 
ever moneys weie re(iuired for jtooi'-rates, ami all 
otlier (except sdiool) rates, and should have 
wit'iin tlie Town all the pf)wers' relating thereto 
vested in the ."Sessions, (Irand Jury, Town Meet- 
in;.', etc. The ."v2d section empowered the Town 
CiMuieil to make liy-luw.s ami rides touching all 
iniiliers within their authority, including rides 
fur regulating the mode of assessment and levy- 
ing the same, whicli hy-Iaws, when approved I)}' 
the Coveinor-in-Coiincil, should have the force 
(if law. Tlie l>y-laws so made dctineil personal 
pniperty fur the purposes of assessment, so as to 
ciiMiprelieiiil all goods and chattels, ami proviiled 
f(ir tile trial of appeals from the as.sessmeiit. 
They rnntained a further provision, that the 
mil. when finally pas.sed, should he valid, ami 
liiiid all parties concerned, notwithstanding any 
ilofeet nr error coinniitteil in or in regard to it. 
riie Rink of Xova .Seotia, doing husine.ss at 
Xowtdasgow through a branch, appealed from 
its ;issessmeiit, and the appcil having heen heard 
in the iiKpile provided ))y the hylaws, the assess- 
ment was eontirmed. and a warrant issued, in 
piiisiianee of which a levy was made on hooks 
'if iinciiuit of the hank, ami on a niimlier of 
praniissdiy notes, the ])roi)eity of the iiank. 
rile li.iiik lia\ ing thereupon lu'ougiit the assess- 
inent and warrant up hy rerfiomrl, 

U.1,1. that see. (iT, of cap. '21. 4th H. .S., did not 
apply to the ease, heing conlined to iioiiiiin- to 
pnji'ceilings of the .Sessions, touching rates, tliat 
the levy on promissory notes v as good, that the 
provision of the hy-hiws making the assessment 
tiuid and liiuding, notwithstanding defects or 
errors, did not prevent tlie Court from review- 
ing it under writ of cirtiomri, ami tiuit the 
'•nilomrl would lie in such a case if the atlida- 
vit iliselosed sutiicient grounds, the 8Coi)e of tiie 
writ lioing wider hero than in England. 

The Court, after ruling as above, quashed the 



I'l-rtiorari, without costs, sufficient grounds not 
' having been shown for setting aside the assess- 
ment. 

In rii Axxi-ismint of the Bank of Xova Scotia, 
by the Toirii of Xew Ola^jow, 3 R. & C, 32. 

2. Assessment of— Personal chattels, defl- 

i nitionof— P>y cluipter 4."), H. .S., (,Srd series,) "Of 

County Assessments," section lo, it was enacted 

I that the words "personal estate " and "personal 

! property, "for the jnirpo.ses of the act, should be 

I understood to include all such goods, chattels, 

and other property, as were enumerated in 

.Sehedule A, thereto annexed, and no other, the 

only portion of .Schedule A ajiplicable was as 

f<dlows : "All personal chattels of every kind 

and description at their actual cash value." 

The IJank of Yarmouth having been assessed 
under the above enactment, as ]ieisonal estate, 
for.S2(».(((M(, the average amount of cash on hand, 
and for .S10«»,(HK> cash lent fmt, 

Ifihl, that the bank was liable to be a.ssepsed 
for the average amount of stock on hand and 
the value of personal pi'operty, exclusive f)f 
stock, but not for tiii' amount of cash lent out. 
The phrase " personal chattels " means only 
such things iis animals, household stutl', money, 
jewels, corn, garments, and everything else that 
can be put in motion ami transferred from place 
to place, hut does not include clioses in action, 
notes of hand, bonds, and securities for money 
loaneil or due, which may be realized u[)ou by 
action or suit, or otherwise. 

Ill /•( Thi liniikaf Ynniioiith,-! X. S. J)., 308. 

3. .Assessment of -Tax on Dominion notes 

-Authority of Local Legislature to impose — 
The Local Legishitiire has authority to enact a 
law imposing a tax on the Dominion notes held 
l>y a liaiik as portion of its cash reserve, under 
the dominion .\ct relating to " Hanks and Hank- 
ing," (34 Vic, c. ■"), s. 14), and un<ler the liy- 
laws of the town of Windsor such i)ro])crty «as 
held to be propeily included by the assessors in 
their xaluation. 

77(1 Toiri) of W'iiiil.iiir V. Thi Coniiin m'n/ 

hunk of Wliiihor, 3 R. & (J., 420. 

4. Calls - Notice -tircular -A call was 

made by the Directors of the ])laiiitil1' bank. 
Hy the resolution providing for the calls, the 
mailing of a circular to each sharehohler was 
made an essential part of the notice. Tiio 
cashier swore that circulars liad been prepared, 
printed in part, and that it was the tluty of the 
junior clerk to till tiiem up and mail them. 
The clerk swore that he had tilled them uj) and 
mailed them, but, on eross-exiiiiiination, said lie 



183 



BANKS. 



184 



liad not i-fiul the print, iiiul did imt know wliiit 
it was about. Defendant diil not deny tiiat lie 
had received a cirfidiU'. Tlie Couit having 
power to draw inferences cf fact as a jury, 
found tiiat nolii'es had l)een mailed in sutheieiit 
tiiiio, as re(|uireil l>y the Ael. 

Till Jiftiil: o/ Lii; r/iiio/ v. /lii/iloir, 

.'{ i{. it t'., '2m. 



5. (alls Time Tor making (oniputa- 

tion of intervals - Declaration .\m art inn was 
lirought liy the plaiiitilV h;iid\ as assi;:Mee. undei- 
tile Insolvent Ait of 1S7.">. of the 15;ink of l.,ivei- 
])ool, auainst tlu' deftudanl . foi' a call of MMI |icr 
cent, on his stock in the said Hank of Livcipool. 
The only evidence of the niakinn of the call was 
a noti<'c jiiililishcd in the dn-.dti of the 17th of 
tiannaiy. and following issues, as well as in the 
local papci's dated the HHh of .January. Iiy 
which a nuniher of calls were ni;ide. payalilc at 
inter\ als. 

ll'l.l. that Ihe calls .■ould not all he Ic-ally 
made al <oie lime, aiirl none rould le,L'ill\' he 
made lint within ten days after the i\|)iration 
of six months from the sus])ension of paytaenl 
liy the liaid<. And ftnther, that in com|)ulinj,' 
the statutoiy intervals lictuccn <alls. tlu' time 
must he rei'koned exclusively of the day on 
which the ])ri'vious call was ])ayal>lc. 

!'■ r Wciitlicrlii'. .1. 'I'lial the insolvency oi 
the IJverpool |>aid< ai\d the iusnflliieiicy of 
as.sets should have heen allcLTed, anil fuilhcr. 
that a eerlilicate of the County Court .ludLtc, 
after the allegeil niakinu ami noliei' of the calls 
a])))rovin,!.of the plaintilV liaidi so actini: through 
their cashier, was not a siitlicici.t conipliancc 
with sec. (i. eh. ;{I. of .'i!» Vic. 

/'. /• .McDonahl, d. That the declaration was 
sullicicnt. hut the calls were irrcLTular for the 
reasons a hove stated. 
Th' liiiiik III' Xi'ra Sriitiii. Ay-^iilim V. I'liflu x, 

4 l^ \- (I.. -J!!,-.. 



dator rested wholly with the Court. Weatherhe 
and Smith, .J. I., ilis.ii iiliini. 

Ill Till Jlaiik of Lirurjioo/, (i I!, it (;., ."nil. 

On np/iia/ to flir Sii/irniii Coiirl of ('minihi, 
Jhlil, that sections •_' and I! of the Winding- 
up Act. 47 N'ic, c. .S!», providing for the wind- 
ing-ii)i of insolvent companies do not apply to 
hanks, Imt an insolvent hank whether in process 
of liiiuidation or not at the time it is sought to 
hring it under the \Viuding-U[) Act, must he 
wouiiil up with the preliminary proceedings 
provided for hy ss. !MI to !(»■_' of 4.'. Vii., c. •.':), 
as amende<l hy 47 \'ic.. c. .'!!>. ."Strong iiiul 
(I Wynne, .1.)., <//-<'/,//»;/. 

Miitl \. Till ll'iiit (>/' Xiii'd Sriihn, 
ill n llfiiil: iif l/'i'i'iiKiii. I i S. C. 11. , lui). 

t. >l»ii(>} deposited Dranii out impro- 
perly Liability of party relea-sing bank — 
Defendant. D. McD., being part owner, nilh 
l)liiintill'aud the other defendants, (.f ,i niui|iif, 
was authori/eil by the othci' owners to sell lirr. 
and clid >o, depositing plaintilV's share of the 
jiroifcds to his own credit, in the I'ictou I'.aiik. 
I'laintilV wrote to one S. C. in tlu'se teiin> :— 
" I want yr)H to put my share of the iiiolicy in 
the bank, to my ere<lil. I have written |).. 
(mi'aning ' ). Mel).), stating that 1 have .lutliur- 
i/ed yon t i ilo so." S. C. ha<l, before llii- Klti.T 
came to h m. drawn the money from the hank, 
the man.igcr having ailvauced it to him on liis 
owiichc(|uc: b\it .lefendiiut. D. Mc|).. npnn the 
letter licing shown to him by S. ('.. signal ii 
release to the bank from any claim on acconii? 
of the |)ayiuent of the inoiU'y to S. C. 

//.A/, that D. McD. was not justilieil in re- 
leasing the bank ; that in doing so he assenu''! 
the liability which the baidc had incurred ''V tlie 
unwariantable payment to .S, C. of the nflU'V 
)ilaceil ti. his (.McD's) credit, and that |iliintlff 
was entitled to a decree for the ainotml of his 
share de])osited in the baid<. 

/i'i;/;/v V. MiDuiinlil il III.. I!. K. I' • IT. 



5. Insolvent - Winding up- Xotieo of 

Acts 1S82. e. 23. hs. 99-102 (Dom,) Notice of 
a])plication to w ind up an insolvent baidi under 
the DouiiiMon Act of ISS2 by publication in the 
Caiiniln 0'n~.clli and Hiiijal (Intilti' oi tlic I'ro- 
vince. and in twcp Halifax and two I.,iver])ool 
papers, held sutlicicnt. 

/'./• McDonald. C. J., and McDonald, J.— 
Tlait .sections 9!> to KfJ of the Act of 1SS2 (e, 
23, Dom.), did not ap))ly to the j)re.sent ease, 
where the proceedings were to wind np an in- 
corjioratod bank declared insolvent under the 
Act of 1H7.">; and that the appointment of a liipii- 



8. Money deposited in banii Wife's 

separate i)roperty Use of interest by hiishaiid 
with wife',s knowledge <i. K. Hisscl, by his 
will, be(|Ueatlied to his daughter, Maria Mathe- 
son t;2<KM», "for herself ami her children, i.-siie 
of her marriage, now or hereafter living, tc l"-' 
exempt from any ilebts or liabilities of lier 
hu.sband, Donald Mathe.son, shouhl he frem 
accident or misfortune hereafter becoiuo enihai- 
rassed, w ith power in his executors to invest the 
same at her desire in good secinities with 
inter'»8t for her and her ehihlren's heiietit. 
subject to a deduction of t'870 due the te.stator 



185 



BANKS. 



186 



liv Doiiiilil MiitliL'tion. 'I'lio pliiiiititr, tugellifr 
with Malla.-iiiii, luNtiitor's widow, iiinl jiiKitliL'i 
wtit! a|i|iiiiiittMl uxt'i-utors. 'I'lio tfstiitor died in 
ISIil. tiiiif I'l'inj; at tiiiit tiiiiL', iiiid at tlie tinii' 
lit till' iiiakiii)4 of liio will, oliildivii of liis 
'an!:litci' liviiijL.'. lull till' i-state was not sottli'd 
iiMtii Sipttiiiliir. IS71, when Matlie;-on dtpositi'd 
in tlif rcopii's Kank .^tifMIO, lieing thu lialiincu 
(it the liirjiii'st dm: his wife after deducting the 
aiiioiiiit due I'V him to the estate, w ith interest 
to till' date of the deposit. In the same month 
lie made an assignment under the Insolvent Aet 
(if istlM. During the ten intervening years the 

ai ml liail heeii used hy him in his liiisiiiess, 

and fnr his family, though without the know- 
kilu'e "1' sanction of his wife, and entries were 
made liy him from time to time in aeeotints 
I'ciideied to the widow (who with himself ehietly 
manai.'1'd the husiness of the estate) of sums 
ici'iivid as interest on his wife's legacy, ainount- 
iiiL' ill all to the whole interest that would he 
iliK' tlii'ieon. 'This was not authori/ed hy his 
wife, l.ut she did not ohjc'ct to it, or ajiply for 
tile inteii'.-t herself. Defendant Hhindress, as 
a>siL'ni'e. having elaimed the fund deposited in 
till' People's liank, 

I[ilil. that the children took an interest under 
the will, hut that, independently of their inter- 
c,^t. as there was no evidence that .Mrs. Mathe- 
.■(nn had sanctioned the use of the money hy her 
Inisliaiid, jilaiiitill', as trustee for her and her 
liiildrcn, was entitled toan aliioiint ei|Ual to the 
halaiii'e of the legacy, after deducting the deht 
line hy Mallu'soii ; hut that the assignee was 
(lititli'd to the amount depositeil f(jr interest 
tliiicoii, as the Court must jiresiime the ac(|iii- 
I'si riK c nf tile wife ill the hushaiid's receipt of 
till' interest from year to year, in the ahsence of 
very clear evidence to the contrary. 
11 mil' r V. '/'/(' I'm I'll '■< Hank af Halil'itx tl a/., 

U. K. 1)., !»1. 

9. Money paid by mistake Liabiiily to 

refund Privity - R., of Varmoulli, having 
ciiiisigiicd tish to Antigua, instructed his agents 
totransniit jiroceeds hy cahle to the 15aiik of li. 
N. A., in Halifax. The agents, 'h.rough their 
clt'ik, applied to plaintitl' hank for a cahle 
'Imft for 8;<,(KH) on \ew York, for which they 
gave their own check, and received an order in 
cypher to Maitland, I'helps & Co., in New- 
York, to piiy the amount to credit of Rogers to 
the Rank of B. N. A. The latter hank then, 
with the con.sent of Mailhmd, Phelps & Vo., 
communicated with the defendant hank that 
their account "was credited with !ii!S,0(K), pay- 
ment hy Maitland, Phelps & Co., advised from 
Colonial Bank of Antigua, account Rogers." 



The defendant hank at once charged the amount 
to the New York agency of the Hank of 1>. N. 
A., anil credited the amount to Kogeis oii ac- 
count of overdue hills. 

Ill /(/, that although the money had come into 
the hands of the defendant liank owing to the 
mistake of Hogers' agent in not tiaiisniitting the 
money to the Hank of 1». X. -V. at Halifax, a.s 
instructed, the jdaintitl's liai", no title to it, hav- 
ing heeii paid hy I'lOgers' agent for their draft, 
and not heing liahlc to letiiin the money. 
VVii Coloiiiul Iktuk v. Tlu Hxfhtimii Jtiiiik, 

.-. R. 1^ (i., --MS. 

Oil ii/ijiiii/ III Ihi I'riri/ Ciiiiiifil, 

The plaintitl' hahk, liciiig under instructions 

from R. to remit his moneys to a hank at JIali- 

fax, through the mistake of it.s agents, paid 

them to a New York hank for transmission to 

the defendants, who, on being advised thereof, 

debited the New York hank, and credited li. in 

account with the amount thereof; and lieing 

i afterwards advised of the mistake, claimed to 

I retain and use the moneys in reduction of R.'s 

account with them. 

j III III, that on being advised of the mistake, 
the defendants were hound to repair it, and 
I that the plaintitl' bank had a suliicieiit inlerest 
I in the moneys to recover them as moneys re- 
ceived to their use. 

('uloiiial /iaiik v. Exiliaiiiji Hank of Yannonlh, 
L. R. II App. Cas., S-t. 

lU. Qiioriini of Baiili Directors Power of 

to make calls lly the Dominion Act of IS7I 
(.■{" Vic.,c. ."), s. .'{'J), not less than three Dircctor.s 
were constituted aiiiioriim for the transaction of 
business. IJy s. 'M\ it was provided that Direc- 
tors should be elccteil by the shareholder.s at the 
annual meeting, and that vacancies should be 
tilled in the manner provided liy by-laws, which, 

M)y another section, a majority of the Directors 
for the time being, was empowered to make, but 

I « hicli had never in fact been made. In March, 
1S74, three of the Directors appointed onelnnes 

I a Director to till a vacancy, and in .September, 
187-t, a call was made by four Directors, one of 
whom was limes, who seconded the resolution. 
IIilil, that although Innes was not legiilly a 
Director, the call was valid, three of the Direc- 
tors who made it being legally (jualitied. 

The Dank of Liverpool \. Jiii/rloir, 

3 H. &C.,236. 

11. Shares-Right to transfer-Insolvency 

—Perpetual injunction to restrain suit -Plain - 
titr, the holder of a number of shares in the Rmk 
of Liverpool, sold the same to S. and forwarded 



187 



BANKS. 



188 



to him a power of attorney autliorizing tlie 
rcgiBtry of tlie transf<'r. At tlie same time lie 
forwarded to tiio inaiiagcr of tlie bank his stock 
eertitieates to lie caneelli'd on the transfer lieiiig 
rcgi&tered and iiotitied the liank of the transfer. 
S. paid the consideration for the shares, and 
received the transfer, wliicli he forwarded to the 
manager whom he recjuested and authoii/.ed to 
regi.ster his accejitance. The hank deelineil to 
register the transfer until afterpayment of a cer- 
tain loan olitained hy tlie Hank of Liverpool from 
the Hank of Xova Scotia, which had heen pro- 
cnred in pursuance (jf a resolution jiassed at a 
meeting of shareholders at which plaintit!' was 
present, and which (lurixirted to hind the share- 
holders to hold their shares without assigning 
them until the jirincipal and intei'est due on 
such loan had lieeii fully paid. In the mean- 
while the hank retained the papers, promising 
that when the loan was rcjiaid the transfer 
would he duly entered. .Suliseiiuenlly the Hank 
of Liverpool hecame insolvent and assigned to 
the Hank of Nova Scotia. 

Ill III (on the authority of .S'»iiV/( V. Th< Hank 
of Xora .Sfotici, 8 ,S. ('. R,, "mS, there heiiig 
evidence that the loan was efl'ected on otlier 
.securitj than the resolution, and that the resolu- 
tion was never acted u])oii), that the pluintitl' was 
not deprived hy the passage of the resolution of 
the legal right to transfer his shares and to have 
tiie tiansfer registercil in the hooks of the hank. 
Jidtvi y. 'I'iii Hun/: (>/ Xvra Sio/i'a, 

liR. & <;., '2.->4; 
(iC. L. 'i., 44:5. 

12. Sha.eholdcrs Rights of -The Banliing 

Act. 34 Vie., e. 5, sees. 19 and 58 Resolutions 
by Directors and shareholders not binding on 
absent .shareholders^Equitable plea Hank of 
L. brought an action against S., the defendant, 
as .shareholder, to recover a call of 1(( per cent 
on twenty-tive shares held by him in that bank. 
Hy the 7th plea, and for defence on equitable 
grounds, defendant said, "that before the said 
call or notice thereof to the clefendant, tlie de- 
fendant made, in good faith ami for valid 
consideration in tliat behalf, a transfer and 
assignment of all the shares and stock which he 
had held in the Hank of L. to a person authorized 
and qualified to receive the same, and the defen- 
dant anil the transferees of tlie said shares or 
stock did all things which were neces.sary for the 
valiil and final tran.sfeiring of the .said shares or 
stock, but the said plaintiH's, without legal excuse 
iind without reason, refused to record such trans- 
fer, or to register the same in the books of the 
bank, or to recognize the said transfer, and the 
defendant prays that the said Hank of L. shall 



be compelled and decreed to make and complete 
the said transfei', and to do all thing- ie(|iiiie(l on 
its jiart to lie done to make the .said tniiisfur 
va'id and ett'ectual, and that the .said Hank of L. 
be enjoined from further prosecution of tiiissuit." 
'I'Ik' plaintitTs tiled no replication to this plea, 
but at the trial of the action, which took place 
before .James, .1., without a jury, they attempted 
to justify the refusal to permit the transfei' of 
the shares upon the ground that at a special 
general meeting of the shareholders of the liank 
of L., held on the'JGth.hine, 187.S, it was resolved, 
"that, in the opinion of the meeting, the liank 
of L. should not bo allowed to go into liquiila- 
tion, but that stejis should be taken to olitain a 
loan of such sum as may be neces.saiy to cnaliie 
the bank to resume specie jiayments, and tliat 
the shareholders agree to hold their shares witli- 
out assigning them until the principal and inter- 
est due on such loan shall be fully paid, ami to 
execute, when required, a bond to that ell'eet." 

The defendant was not present at the nieeting 
when this resolution was passed, and it ap])caied 
from the evidence that the Hank of L. etlccted a 
loan of .'?8(»,<KM) from the Hank of N. S. iqioii the 
security of one H., who, to secure hiiii^clf, took 
bonds for lesser aniounts from other shaiclioliUi-s, 
including the defendant, whose bond was re- 
leased by H. when the defendant sold his shares. 
This he did in 1877 to certain persons tiieii in 
good stamling, and powers of attorney, executed 
by defendant an<l the purchasers respeetiM-ly, 
were sent to tiie manager of the liank of 1,.. in 
whose favor they were drawn, to ciialde liiin 
to complete the transfer. Tlie Directors of tiie 
liank of L. refused to [lermit the transfer, hut 
the defendant was not notified of their rcl'u.sal, nor 
dill they make any claim against him for any in- 
debtedness on his part to the bank ; and it ap- 
peared also from the evidence that suhsc(|nently 
to the resolution of the "itith of June, 187.'i, and 
prior to tlie sale by defendant of his shares, a 
hirge miinber of otiier shares had been traiisfeiied 
in the books of the bank. In October, 187!*, tlie 
Hank of L. became insolvent, and the Hank of N. 
S. the plaintitts, obtained leave to intervene and 
carry on the action. 

At the trial a verdict was found by tlicliulge 
in favor of the defenihints ; but the .Siqireine 
Court of Xova Scotia, .James, .1., ilix^inliiiij, 
made absolute a rule iii«i to set aside the ver- 
dict. 

The Hank oj Xova Scotia, Axshimc, v. Smith, 

4 K. kV,., Uti. 

On appeal to the Supreme, Court of Canada, 

Hild, reversing the judgment of the Supreme 

Court of Nova Scotia, that the resolution "f the 

\ 26th of June, 1873, could not bind shareholders 



189 



BARRATRY. 



190 



iKit prt'seiit at tliat nieuling, even if it liad heeli 
iutiil upon, and under the facts disclosed in 
eviiUine till' (lefeiidant coulil not Im deprived of 
Ills k'"id liglit uiiilcr tiie ISaniiing Act to tiaus- 
fer iiis share!*, ami to have the transfer recorded 
ill tlic hooks of the hank ; and tlie "th plea was 
tliurifoic a good ciiiiitahle defence to the action. 
/'. ;• Stning and (iwynne, .).). — It is doulnful 
wluthcr llie strict rules aj)plied in Kngland to 
n|iiitahle defences jileadeil under the (.". L. I'ro- 
cicliire Act should lie adopted with reference to 
siiL'li (licas ill Nova Scotia, where hoth legal and 
eiiiiitahle remedies are rtdininistere<l l>y the same 
('(lint and in the same form of procedure. 
Smith V. Till Bank of Xorn Sculta, 

H .s. c. R., r).")S. 
13. Shares — Transfer of Estoppel ~ 

Action was hroiiglit against defendant as trans- 
ft'i'ce of shares in the pluintitt' hunk, for calls, 
'riicre was no valid transfer of the shares under 
the Act, hut dcfeiidaiit had paid ..'alls, given a 
ruccijit foi a dividend, coinhiiied with otiiers in 
appoint iiig a proxy, anil liciiig present at the 
trial, and, hearing all this evidence, had not 
imiihiccd any evidence or otl'ered his own testi- 
mony ill reply. 

JI'liI, that he iiiusl he treatecl as a sharc- 
IkiUKt. 

77.1 Jlaiih of Lin ri'onl v. liiiji/oir, 
•A R. & C.,-Ja(i. 



iScotia, 0. 10-t of 1874, "To facilitate ariange- 
menla between Railway Companies and their 
creditors," the Windsor k Annapolis Railway 
Company ])roj)osed an arrangement whereby the 
8o-eulled R debenture stock of the company then 
bearing interest at the rate of six i)er cent, was 
"abrogated and deterniined," and in lieu there- 
of the holders of said stock were to receive 
allotments of new stocks thereby created, bear- 
ing lower rates of interest, and otherwise (litter- 
ing from the stock for which the}' were suiisti- 
tuted. 

Held, that an mucii of the Act of 1874 as was 
necessary to the contirinatioii of the proposed 
scheme, was within the legislative authority of 
the Legislature of Xova .Scotia. 

Weatherbe, J., ilisseiiliiii/ from the judgment 
of the majority, hehl that the ])roposed sclicnie 
could not be conlinneil, chietly on the ground 
that the undertaking of the company extended 
beyond the limits of the Province. 

J\'i Wiiidior i(- Ainiuiiolit I'aihray, 

4 R. k{i., WVl. 

3. Agent's autliority determined by bank- 
ruptcy of his principal. 

Sk AS81CXMEXT, HI., !). 

4. English bankrupt Debts due hini in 

Nova Scotia cannot be attached. 

///// v. ^'c<o'/f(//, ;{ Miird. Kpit., 149. 

s v., «/>.., ABSENT OK ABSCONDING 
DEBTOR, IV X 



BANKRIPTCV. 

1. English Bankruptc} Act. -Count} Court 

Judge acting in aid -Appeal -A County Court 
Juilge was applied to, to act in aid of and as 
luixiliury to the London Itaiikruptcy Court in 
relation to property of an English bankrupt 
sitiiatcil ill his district, and made an order ac- 
conliiigly. 

//'/(/, iMcDonald, C. J., diss, ii/lii;/] that no 
appeal would lie fnnii such order to the Supreme 
Omit, cither under the Insolvent Act of Canada, 
which had given certain powers to the Judge in 
iffficiice to insolvents, or under the County 
tnuit acts, inasniuch as his order was not made 
by reason of any jurisdiction conferred by those 
acts, Imt by reason of the Imperial Iknkruptcy 
Act, whieli did not give such appeal. 

H' Carrill, ,x jiurt,: O/iddoii, .^ R. & (i., 410. 

2. Bankrupt and Insolvency-Vltra vires 

-Scheme of arrangement— Un<ler the provi- 
siwia of the Act of the Legislature of Nova 



5. Pi'ivileged from arrest in Nova Scotia 

for debt provable under his bankruptcy in 
England. S,, ARREST, !.,!». 

(1. For cases under Insolvent Acts, 1860 
and 1875. sm INSOLVENT ACTS, 1869 AND 
1873. 

7. For cases relating to indigent or insol- 
vent debtors, &c. *,■ INSOLVENCI. 



BARGAIN AND 8.UE- 

I. OF LANDS— ,>Ve DEED. 
II. OF GOODS— *e SALE. 

BARRATRY- 
See INSURANCE. 



191 BARRISTER- AT- LAW. 

BAKRISTFK-AT-LAW. 



192 



Uy lettfr.s patfiit, diiti-cl •-'(itli May, 187ti, iiiiilcr 
till' j^leat M'.il of tlie I'l-ovilici', aii<l .sigiml by 

1. Associate Counsel KlRllt to be heard thf LiiMiti'iiantdnvoinor ami I'n.vimial Suca- 
— Asscpiialf odimsi'l lias no rifjjlit to hv heanl if, tai-y. sevfial iiieiulpuis of tlie liar were uppoiiittd 
on till' opciiiiiL,', tlif Coint lUvidew it uiineocssary (^liiooii's o(ainsd for Nova Scotia, and iirfcfdfiiue 
to call upon ri'-'iioMdciit. ^^'i^'"* f,''''"''-''' '" tticni, as well as to other (,,liatiiij 

//iilili If V. /)'«((/.■, ;{ it. &. t!., -;<9. counsel a])|»ointcil l(y the (!ovcrnoi-(!fncral alter 

the Isl of duly, IHIi". A list of (,luefcn'» Luiiiisel 
to whom jirecedence luid been thus given hv the 

2. Law StlHleilt FllinS articles ~- The Lii,„te.,„„.t-<;ovenior, was iMtlilishcd in" the 
Court ivfu>cd to allow a law students articles ^j^^^^^^/ (•,^._,„, „f tlio JTth .May, l!S7t). and the 
of a])|)reiiticeshii) to he tiled, iiiiiir jifo """■> | mi,"ne of H., the respondent, was included in the 
where they had not hcen liled at the time of ^ n^t j^t jt gave pieceilence and pn; audience 
their execution. hetore him to several |)ersons, including apijeli- 

/// re Af/'Untfloii of H'm/'s -2 K. k C, '.W.i. ,^^^^^^ ^^.,|,, ,jj,j „,,, j.„j,,y ■^^ \,^,(„^.^._ 

Upon atiidavits disclosing theahove and dtiier 
;{. tJlieen'S Counsel — Powers of Local ^ facts, and on producing the original eonnuissldii 

Legislature to appoint — Letters patent of i and letters patent, R., on the ;jrd .laiuiary, 
precedence —Chapters "id aiul"_'l of the N. S. Acts ! 1S77, obtained a ride iiisl to grant iiim rank and 
of iS74. respecting the ai)pointinent of C^Jueen's J precedence over all Queen's counsel appoinled 
Counsel and the regulation of jjrecedence at the J in anil fur the I'rovince of Nova Scotia since the 
I'.ar of X. N. liy the Lieutenantiiovernor of the 
Province in Council, are Ixfrit (v'/v--, Imt the 
latter is not to he construed as retrospective 
in its etl'ect. 



-dth Decendjer, 187-, and to set aside, so far as 
they ad'eeted R. 's precedence, the letters patent, 
dated the litith May, lS7r). This rule was made 
alisolute liy the .Supreme Court of N'ova Sculia, 
.lames, J.. <li':>" ii/iiiii, as to the latter Act not j on the "Jlith March, 1877. A lueliminary ohjec- 



being retrospective. 



tion was raised to the jurisdiction of the .Snpienie 



The old (ireat Seal of the Province— that in i (,'ourt of Canada to hear the appeal, 
use since 1S,S7 — used on ])atents a|)p()inting , //i/d, — 1. That the judgment of tlie Couit 
Queen's Counsel* and regulating precedence at 1 liclow was one from which an appeal Would lie 
the l>ar in !S7ti, ceased to be the (ireat Seal of | to the Supreme Com't of Canada {Fonnii' i; J., 



the Province on tlie cransmission of a new (Jreat 
Seal to the Lieiitenant-Oovernor in Decemlier, 



disxfii/iiiii). 

*2. Per .Strong, Pournier and Taschercaii, .JJ. 



180!), though not adopted or proclaimed by the : _x]uit c '21, of 37 Vie., (Acts 1874 of N. S.) 
Lieutenant-Covernor in Council. dames, J., ),;,„ ,„,t .^ retrcjspective ellect, and that the 

<''"'-'"'"'f' ■ letters patent issued under the authority ef lliat 

Wilkins. .T.. agreeing, but ex])ressing the .^^^.^ ^.„„i,| ,„„ ,^i5(.^.( ti,^, |„.ecedence of the 
opinion tluit the presence of a (ireat Seal on the _ Q„een's counsel appointed by the Crown. 

document in (rtieslion, atlixed by the iiroper | ., „ ir -i' i i,. it 

' . ' .'13. /'</■ Henry, lascliereau and dwynne, .J.I, 

othceis, raised a coiielusive pi'esuiiiijtioii as to ,,„ , ^, n x- • . . , » • » i .i , 

' ' — Ihat the B. N. A. Act has not nivcsted the 

''''^'''" •', .,,.,. . ., „ . Letrislatiues of the Provinces with any control 

over llie ai)i)ointnient ot (,|ueens counsel, ami as 

„ , , ^, . ^, , Her Majesty forms no part of the I'roviiiiial 

On (niiiKil to /h< Suiirunti Court ot Cantata, ' , . , . , , <: i iv • ■ d „ 

'' ' * ; Legislatures, as she docs of the Doinmion I'ai- 

By 37 Vic, c. '20, X. S,, (1874) the Lieutenant- I liament, no Act of any such Local Legislature 

flovernor, of the Province of Xova .Scotia, I can in any manner impair or atl'eet her pierog- 

was authorized to appoint Provincial officers ; ative right to aj)point (^tueen's counsel in Canada 

under the name of Her Majesty's counsel learned i directly or through her representative, tlie(iov- 



in the law for the Province. By 37 Vic, c. '21, 
N. .S., (1874), the Lieutcnnnt-tiovernor was 
authorized to grant to any member of the bar a 
patent of j)recedence in the Courts of the Pro- 
vince of Nova Scotia. R., the respondent, was 
appointed by the (lovernor-(ieneral on the 27th 
December, innler the great seal of Canada, a 
Queen's coimsel, and by the tiniform practice of 
the Court he had precedence over all members 
of the bar not holding patents prior to his own. 



ernor-deneral, or vest stich prerogative right in 
the Lieuteiiant-tJovernors of the Provinces ; and 
that .37 Vic, c. 20 and 21, N. S., are ultra vim 
and void. 

4. Per Strong and Fournier, JJ. — That as 
this Court ought never, except in cases when 
such adjudication is indispensable to the de- 
cision of a cause, to pronounce upon the consti- 
tutional power of a Legislature to pass a 
statute, there was no necessity in this case for 



nr.i 



MILLS OF EXCHANGE AND PROMISSORY NOTES. 



194 



tlu'iii t" •"'Pi''^'* '"' "I"'"'"" "1""' ''"-' viiliility iif sliuki'ii in iniiiiy ussenliiil points. TIk order 
the Alt ill i|iitNtiiiii. was qiuiHliuil on u])puiil iiiul a new trial granted. 



I.,y„;r V. I,'ll'-lni. .•! S. ('. K., C.Ttl. 

4. Qiioph's (oiiiisoI Preccrtpiu'c of 

11. h.iviiii: lifiii :i|)|M)iiit'/il ii (^'lU'cn's (,'onn.si'l 
iiinU'i' a iiiiiiiiiis>ic>n fi'nm tlio ( lovi'i'iior-l icneral 
of CiMiailii, iiis |)ri'(fili'iict' was (|iiosli(iniMl hy W., 
wild was liis SI iiior at tile liar of Xova .Scotiu, 
liul lu'lii no a)i|ioiMliiR'iit as (^lueun's Counsel 
cithiT finiii tJK' ( loviTiior-( iciirral or tin- Lien- 
tciuiiil (liiMiiinr. W. liiovi'il to liave liis cause 
iiitcic'il on till' ijiickct ]irior to :liat of I!. 
■jia' motion was disiiiissiMl. 

Loril/i/ V. hii/i/, ;{ X. S. 1)., ,".(Hi. 

,i. Mcinbrrs of Kar i^ot presumed to be In 

Court, except on first day of Term --Counsel 
fur ]ilaiMlill' moved for a rule to eontinue an 
iipiHvil cause. 

TIk' CoiMt : We will give yon a rule nlxi. 

('cuiiM'l ju'esseil for a rule aKsolute, as tlie 
rule was unopposed, and altlioiigli tlie defeiid- 
;iiit's attorney was not in court, still he ought 
til lie juesent, ami the Court would presume 
him t'l lie so. 

/'./• llaljliiirton, ('. .1.— After the tir.st day of 
'IViin, Lreiilleiucn of the liar are not expected 
t'/ )n- ill attendance here unless they have j)ar- 
ticiilar liusine.ss. 

Skhiiii:)- V. Laii' , .James, \i47. 

S- , a/.<o, ATTORXKT. 



On r^'ifM of I'oorv. MiLfllaii, .'{ N. S. 1)., 95. 

3. Filiation, order or Meaning of words 

"likely to become chargeable to any town- 
ship " -4th R. S., c. 35, 8. 1--Defendant objected 
to an order of tiliation maile at the instance of 
the Overseers of the I'oor for Macean, on the 
ground that, altlioiigh ilio mother was resident 
at Macean when the child was born, the legal 

J settlement of the mother was the Township of 
Parrs) loro, 

1 Hi III, that the father was liable to the plain- 
till' township, the words "likely to become 
chargeable to any township,'' being eijuivalent 
to '■ likely to neeil relief from any township." 
OnrMirx of Poor v. /Mrii/ioii, 4 K. & d., 58. 



BEQlEST-SVe WILL. 



BIGAMY- Sm criminal LAW. 



BILL 



BASTARD. 

1. Affiliation — Ordei of— Appeal from an 
onler ef tiliation. It appear.s that the defend- 
ant liad been previously convicted of the same 
ofl'ence before two Magistrates, that they had 
tiii'ii iiiuile an order of tiliation upon and against 
liiiii. uml that he had entered into a bond to abide 
tliiit (inler. This order, however, seemed to lie 
■'iich as the provisions of the statute did not 
wariiint. A second order was sulise<iuently olj- 
tuineil, from which defendant ajipealed. The 
jmy. altliongh instructed by the .Judge not to 
loiiriim this second order by their verdict, found 
i'giiiiist the defendant. 

//fW, that their verdict must be set aside. 
Onmmo/lht Poor for St. PafrirkS v. Foi/h, 

1 N. S. I)., 197. 

2. Order quashed and new trial ordered 

U" an application for an order of filiation, 
"lere was no clear .idinission on the part of the 
f^Piiteil father and no fact of intercourse sworn 

" ""^''P' ''>' the mother, whose evidence was 



I. OF COSTS-*.! COSTS. 
II. OF LADIN(i-.SV. SI1IPPI\«. 
III. OF PARTICULARS-.SVe PRACTICE. 



BILLS OF EXCilANOE AXD PROMISSORY 
NOTES. 

I. ACCKP'l'AXCl], 195. 

II. ALTERATION, 196. 

III. CONSIDKRATIOX, 197. 

IV. EVIDKNCIC, 204. 

V. FOREIGN LAW, 207. 

VI. INDORSEMENT, 208. 

VIL INTEREST, 2P2. 

VIII. NOTICE OF DISHONOR, 213. 

IX. PLEADINfJS, 214. 

X. PRESENTMENT, 218. 

XI. STAMPIN(i, 219. 

XII. MISCELLANEOUS, 224. 



BILLS OF EXCHANGE AND PROMISSORY NOTES. 



196 



/'()• Mc'l)i)ii!il(l, ('. .!., (lix^iiiliiKj, tliiit tlicre 
uiiH cviili'iuc of till' ri'<Ti))t of II (oiisicU'iiilile 
N\iin of iiioiH'y, tiy ilffi'iuliiiit, out of tlic u.-si'ts 
of the estiitu, iiiid that, in tlie alini'lici; of u tiillir 
aoromit of (!X)ii'ii(liliircs tlian liail ln'cn yiven, 
(Iffi'iiilaiit wiiM jii't'tlutlcil from (Iciyiii;; that liu 
WUM in finuls iit tiiu time lie aeeepted tiic liill, 
I 'oi '<!•'* 1 1 al. V. T(i!//nr, 7 H. iS; <!., .')s,"i. 



I. ArCKPTAXCK. 

1. Conditional Fiilfllmcnt of condition 

Burden of proof TruHteea— I'. F. it Co. made 
an aHsignment of tiieir eNtate to tnt.stee.x, for 
tlie l>enetit of their creditors, giving power to 
the trustees to carry on tlie Inisine.ss witli a 
view to its .settlement, and for such purpose to 
make or j)rocm-e advances, which adviuieus were 
to he a first lien on the jiroceeds of the estate. 
The trustees carried on the husiness for a time 
in fidlilment of the terms of the trust, hut wjmc 
finally ohliged to place it in insolvency under 
the Insolvent Act of 187.'), the defendant heing 
appointed assignee. 

At the time of the assignment to the trustees, 
C. V. k Co. were indehted in a large smn to H. 
B. \V.. and hetwecn the date of the assignment 
antl the insolvency, this amount was consider- 
ably increased for goods sujiplied for the pur- 
pose of carrying on the husiness. 

After the insolvi'Ucy defendant, as assignee of 
the ('State, accepted .in order drawn hy H. J5. 
W. in favor of plaintitls, in these words : " Ac- 
cepted : payable when in funds as a first ])refer- 
ence mit of the estate of C. F. & Co." The 
evidence showed that defendant received the 
Sinn of 81S,0(K) out of the estate, and applied 
the lunownt to satisfy the chiim of the trustees 
for advances made in carrying on the business ant, a Xova Scotiau re.si<Ient in Pans, gave an 
of the estate, wliich it was insntlicient to meet, accommodation note bearing date "Halifax, > 

S., (Jth, 187.">," payable to M. on demaiul, ami 



II. ALl'KRATION. 

1. After stamping: -At the trial cxcciition 
was taken to the reception or the note, on tin- 
ground that it was not suflicieiitly stamiicd. 
The note had been drawn up, signed and .stuiii])i'il 
in the defendant's absence. When it was ten- 
d.ered to him, he required an alteration to lie 
made in the date, which was done by coiniiuui 
consent. 

//»/(/, that the alteration did not neucssitate 
a restaniping, because it was at most a mere 
correction of an error, and was made before the 
note was delivered. 

Hl/f V. MvLiod, 5 R. & (i., '.'Sn. 

2. Correction of manifest error— Dofenl 



Ilild, that the evidence did not show such a 
fulfilment of the condition upon which the ac- 



enclosed it to M, on the lltli .June. Tlie (ith 
ceptance was ma,kras'ur,nake the' defendant of Jnne being Sunday, M., on receipt of the 
liable upon it to the plaintiirs ; I "otc, altered the 6 to 8. and inserted at the top 

That the trustees, under the assignment, l.a.l the wor.l ".Tune," which lia.l been <nmtle,l. 
a first lien for the amount of the advances made l IMd, that, as the liability of the maker was 
by them, an.l might have interfered to prevent { not increased, the not' being payable on cle- 
defen.iant from treating moneys received, as "land, and the alteration was made to correct a 
received by him as assignee, until their claims manifest mistake on the part of the maker, the 
had been first discharged. ' note was good. , „ «• r ifO 

The .lefen.lant was not bound to go into par- '■ Th, Merrhanfs' Rank v. Shrhn,,!, 1 R. & (,.,4,U 
ticulars, and show to whom, and when, and 

under what oircnmstances, the money was paid i 3. ElfPCt Of -Question for the Jaf}' Son* 
by him ; but that the burden was on plaintiffs ^ suit— Action was brought on a bill of cxeli,.iige 
of showing misappropriation of the funds. ^Irawn by defendants. The bill, with the ac- 

Ritchie, J., dU-<cntinii. i ceptance, was proved and read without ol.';ei- 

PoUe.r.1 et al. v. Taylor, 20 N. S. R., | tion, when plaintiff rested ; whereupon defoti- 

(8 R. & (i.), 302 ; j ant moved for non-suit on the ground that there 
7 C. L. T., 4.S4. I was no evidence of .stamping, and because of an 
alteration unexplained on the face of the hill. 
2. Conditional — Evidence — Defendant, as ; Plaintitl' was then recalled, and gave evidence 
assignee of the estate of C. F. & Co., accepted a i as to double stamping and cancellation. Defen • 
bill " payable when in funds as a first preference ant gave evidence as to the alteration iii tfie i . 
out of the estate." i contending that the date had been altered rom 

Held, that in the absence of proof that the 27th August to the 17th August. After plain- 
defendant was in funds in the amount sought to , tiff had been recalled to rebut, the .Judge pro- 
be recovered before action brought, plaintiff j posed to submit to the jury the view that, i t « 
could not succeed. | plaintifl' had received the bill from the acceptors- 



197 BILLS OF EXCHANGE AND PROMLSSOKY NOTES. 



198 

hewoiiM liet'iititlLMl tort'cdvi'i, iK'caiisii it would j plaiiitiff'.s cDii.sent out of custody, and sulwe- 

lie imposHilik' for tlii' alteration to liavu taken (|iifntly gavo a note for the del)t, /«/((!, sutlioient 

pliiic iifti'r Hie l>ill had left dcfciidiint'r hanrls consideration to Hiixtain action on note, 

and hcfore it reached the plainliU' and hecanie j Jlivkmaii v. Xii-ickir, I Thoni., '200. 

an iiviiilidile hill ; hut if from the defendant, he ' 

could .,ot. I'laintilfs counsel then said he would' 4. „e„very Of decd -^ KvldCnCC Varying 

sulmut to a non-suit, an.l the .hulge gave hnn a ^ terms of note inadminsible -Defendant u.ado 

rule to set It aside, ! n pronns.sory note in favor of i.laintitt' for part 

//'/'/, that the view which the diiduo had i ,,f *i,„ ,„.„ : 1 . »: ,• 1 1 , 

*> I "I the coiisideration money mentioned in a deed 

ijidiHised to sulimit to the jury was incorrect : I ,,f ,„.„.,,;,, 1,,., 1 c . 1 • .-ir , ■<■ 

', ' , , ' ''lOr certain land, from ])laintiti and wife to 

tliiit piimitill was not iirecluded finm moviiij/ to ' ,i,,f,.,.,i,...4 i>i ;. »•«•> •.. m .' 1 

' , , 1 •"'b'-^ ileti'iidant. I'laintm s witness, MeK., proved 

set till' iiiiii-siiit aside, and that the evidence as ' ,ii.. .>,..i.: f *i . i.i • • 1 i- 

, , , , the niaking ot the note, the sii'iiiiiL' and sealiiu: 



to nltbiatioii of the date and cancellation of the 
stiiiiijis. «iia for the jury. 

Dumrllk v. J)ari(.i it uL, 1 K. & (i., 159. 



Ill, CON.SIDKRATION. 
1. .tbsCIICe of Novation -A., who was in- 



of the (h'cil, l.y plaintitl' and ids wife, and the 
delivery of it to defendant, and testified, fur- 
ther, that it was agreed between the parties 
that the deed was to he left at the house of a 
certain .Justice of the Peace, for the purpose of 
having the phiintid's wife examined separate 
and apart from her husbanil, as to her release 
of her dower, and the fact of such examination 
and acknowledgment of ielea.se of dower certi- 
fied, and that the note was not to he recoverable 



(khtcd t()])laintitrs, sold defendant a threshing- | 

iiiauliiiii', and in payment for the same received i ""til sucli examination and certificate were 
from the defendant a proini.ssory note, which, 1 "''ide. The wife, it appeared, refused to go 
at A,'s i'e(|ue.st, was made jiayahle to the plain- p"-'f"''^ "■ dustice and acknowledge a release of 
tiffs, A. forwarded the note to plaintiffs, in I •"-'■' 'l«»w «>'• 

part iwyment of their account against him. A. | If' Id, that the delivevy of the dcecJ consti- 
wasiiot acting as plaintifl's' agent in .selling the ' tilted a good consideration for tlie note, and 
iiiacfiiiic, (lid not inform them of the transaction, j that no parol evidence of an agreement to vary 
and had 110 agreement with them that the note ; the terms of the note should have been received. 
should he taken in their favor. j The ilefendant's couii.sel desired at the close of 

//(/'/, that the plaintiffs could not recover, plaiiitiffs ca.se to recall tlie witness McK. to 
because tlieie was no consideration for the note , examine liim as to what he meant when he spoke 
moving' finiii plaintiffs to defendant, and no evi- of the delivery of the deed, having alreaily had 

the opportunity of cross-examining him on that 
Cosxitf ,t al. V. Cook, ") R. k O., 84. | point. The .Judge who trie.l the caii.se declined 

to allow the witness to be recalled for that pur- 
pose. 

Htltl, that it was a matter within the discre- 
. tion of the .fudge and that he liad exercised the 
discretion wisely. 

Ontliam v. (,'ra/uun, '2 R. & (,'., 265. 



(leiice to support a novation. 



2. Cossit V. t'ookc distinguished— Plaintiff 

was one of a miiuher associated for the purchase 
of a lish-liap, and advanced the whole of the 
purchase money. McC, one of the associates, 
sokl half his interest to defendant, and a note 
signed hy MeC. and defendant was delivered to 
Iilaintilf to he credited on McC.'s debt to plain- 
till' on account of the purchase, plaintiff having 
refused to take defendant's note without secur- 
ity. 

Bid, that there was good consideration for 
tlie note ; that Mie case did not come within the 
decision in Co^.itt v. Cooke, 5 R. & G., 84, and 
thiit plaintiff could recover. 

Si>iniity v. Matthews, 20 N. S. R., 

(8 R. &G.), 105; 
8 C. L. T., .375, 

3. Defendant after discharge ft-om arrest 

gives note-Debt held sufficient con.-dderation 
-'\\here the defendant had been discharged by 



5. Failure of-Contract for sale Of shares 

in a ship — Partial destruction of subject- 
matter of the contract before acceptance- 
Introduction of a new element — Defendant 
was the drawer of a bill of exchange given in 
payment for certain shares in a vessel called the 
"Lawrence Delap," then discharging cargo at 
New York. Payment of the bill was resisted, 
on the ground that, at the time of the comple- 
tion of the contract and the transfer of the 
shares, the vessel had been totally destroyed by 
fire and had ceased to exist, and that there was, 
therefore, no consideration for the bill at the 
time it was delivered. The evidence showed 
that on the morning of the day on which the 



199 



BILLS OF EXCHANCJK AND PROMISSORY NOTES. 



200 



liiU wiis lU'liviic.l mill the tiaiir^fip iiiiulf, tin,' //r/r/, a/vo, tlu! iii>tf>« not lieeiu«ri«inally legally 

vu»»i;l todk liri', mid tliiil liifiiif tliu Ininsfi'i' Mtuiii|M'il, tlmt tlio pluiiitilV, us iit^ i»,'fiiim;linliler, 

WiiH iimili', liiT liiiist li.ul f.illi'li, ll.i' inside liail if ill all. at tiic linir of the niaUiuK of tiie iidtw 

litM'M j.'lltti'd, till' deck.-. l)lirnfd iilld imll of the and was tjicn'foie ^■c^^ni/.illlt of the eilillliistaiueK 

BideH. In tills cciiiililicin the vessel wan lowed Mil rounding I lieif exeeiilion. eoiild not valnlatu 

(lilt into the liarhoi and senttled. The hull was them hy doiil.le Htuin|.iiig. under Act of IMTO, 

sulisiMiiieiilly raised and snld, tiie jirice realizuil oap. l.S, NiiliHuution 1'-'. 



lleill^,' i:<.')l)0 less tiiaii the eosl (if raisinj.; it. 'I'hi! 
hulk was Hiiliseiiiieiilly converted into a uoal 
bar;.'!'. 

Ill Id, iiigliy, •),, ilii^i iiliiiii, tliat there was 
not si.ch a total failure of eonsideralion as to 
form a defeiiee to an aclinii cm the liill. 



IIV(^ rs V. MrCii/hirh, •_> K. ii ('., 74, 

8. Innorcnt holder not afTcrted by niint 

of statute of frauds Defendants |iiiiili;iseil 
a (|uanlity of j^'rowinj,' trees, and ;,'iive in |),iy- 
ineiit tiierefor their promissory note, wiiicii, 



'i'he m^(,'otiatioiis for the sale were euiiclucled .ifter jiassinj; thron^di liie hands of Iwd ntliiT 
by eoriespondence. On .luly !Hii, IHM.'t, [ilain- lioldds, and after it lieeanie due, was iiiildisud 
till' wrote tjiat he was prepared to make tiie t„ ti,,. pluintill' for \alue and without iintitf. 

To an aetion liy plaintitl' to recover the amimiil 
of the note, defendants pleaded, ailionj,' otiiur 



transfer on payment of a specilied price. On 
the lllh, defeiulant telegraphed plaintill', "will 
see you tirsi next week : ])ay for ten shares 
Dehip and take title." 'I'iie lire and delivery of 
the liill took ))lace on the i'.tth. 

J'l r Wealherlie, .[.That the contract was 
completeil liy telegram of the lltli, and that 



tliini,'s, -- 

I. That they were imluci'd to make the imte 

liy fraud ; 

'2. That there never was any coiisideriitiiiii 

for tiie note, inasmiieh a.s the trees, in paynieiit 



the iiroperty would pass, iiotwithsiuntlinj,' tiie for wliich it was >,'ivcn, were not of the ihanuter 
postii.iuement of the time of payment l>y the and numlier represented, and were wnitiiless 

and unmerehantuble ; 

3. That the note was not jiroperly stampul. 

A defence was also raised under tlie .Stiilute 
of Frauds, on the grounds, — 

1. That the trees weie goods and liierclwn- 
dise, and there was no receipt or acceptance nf 
the gootls, and no part ])ayment 



defendant. 

/'• ;• Kigby, .1. —Tile iioslpoiieinent of the time 
of payment introduced a new element, which 
would re(|uil'u acceptance to constitute a com- 
plete contract. 

Whitman v. Parktr at a/., ti 1*. k (!., l.V) ; 
(IC. L. T., 448. 



6. Failure Of-Remedj for partial millire 2. That the contract havmg been made ii. 
—It is not open to the ilefendant to impeach 1 reference to growing trees, reipiired a note or 
tlie note f.i whicli he is sued unless there has memorandnin in writing. 



been a total failure of consideration, liis proper i jt appeared from the evidence that liicie was 

remedy for any partial failure being by cross- ' ,,(j ^yarranty as to the condition of the trees; 

action. I that the defendants had an oiiportimity of 

Bmndi<,<! v. Ihlaunj, •_' X. S. D., ()2. i e^,^,„i„i„j, them before making the contract, ami 

I that they asked to be relieved, after the contract 
7. Failure Of-Stamplng-DOUble by party ' ^,^g completed, on another than the niisrcpresen- 
st becoming holder— Plaintiff, representing i tj^tjj,^ alleged. 



first 

himself to be the agent of owners of land which 
defendant had occupied as a squatter, for twenty- 
six years, induced defendant to sign several 
promissory notes, stating that he would give 
defendant a deed of the land, defendant to give 
liiin a mortgage for balance of purchase money. 
Defendant never received the deed nor gave the 
mortgage. 

Held, that the plaintiff had failed to prove 
consideration for the notes. 

Held, aim, that although there was no plea 
of insufficient or illegal stamping yet as evidence 
of illegal stamping had lieen received at the trial 
without objection, the question of the legality of 
the stamping was for the consideration of the 
Court. 



allege 

Held, (1.) That the plea of fraud and mis- 
representation was not ma<le out; 

(2.) That the contract for the sale of tiie 
trees had no connection with any interest in land i 

(.3.) That the defendants could not set up 
want of consideration for the note at a defence 
to an action by an innocent holder. 

McDonald, C. J., dixxentimj, on the ground 

that the contract was one on which the original 

payees could not recover under the .Statute of 

Frauds, and the plaintiff stood in the same F^i- 

tion, the note having been indor.scd to liim after 

maturity. 

Mcintosh v.McLeod tt al., R& <^'- '-^' 
6C.L.T.,449. 



201 



HILLS OF EXCHANGE AND PROMISSORY NOTES. 



•202 



ft. iPStnlllyof lilquorsold Appropriation in suit Im.l Ih'ch aiww l.y .U'feii.lmit's futlifr to 
of imymeiit ;Jr(l R. S., c. 19, h. 16— Actinii on ii i)liiiiititl", out of iilfeolion ami rogiinl for phiin- 
|iiiiiiiiss(irv iiofc. Krffiiif, timt till' iiiiisidciii- tilT's niothi'i-. I>ctViiil,iiit plciulcd tliiil tlic iioUi 
tidii for till' iiotP ocmnisti'il in l)ait of cluirgcH for wiis olitiiiticd liy fraud ; that lit tlic tinio it wii s 

niiidf, liiw father was in a statu of mental iiiilie- 
eility ; and that ihori' was no good or valualile 
I'onsidi'ration, On the trial, tho dufiiu'c of 
want of consideration was not urged, anil tiio 
jury found foi plaintilf on tlie otlier two issiicM. 
Jf(/il, that there must lio a now trial, contin- 



ing tlie imiuiry thereat to the iiuestion of con- 
linhr V. Rend, 1 N. S. D., 109. 



iiitiixic'iitiii),'lii|unrsHiilil l)y [ilaintitl' to defendant, 
ill (|ii;Mititii's h\Hs tlian one gallon. 

//'/'/, tli.it iiiiiltM' the provisions of the Licenno 
Act, JU'visid Sialutes, (.Srd series), e. 10, see, l(i, 
tliu note waij void, tiie ett'eet of the Act lieing to 
leiiiliT sucli sales of liquors actually illegal. 

////'/, that till' law would not permit payineiits 
iiiaile liy llie ilelitor on aeeoiint to lie appropria- sideratioli. 
teil liy the ereditor to eliarges for liquor thus 
sold, even though theapproiiriation he made with ! 

tiie ikhtor's consent. 18. Movingft'oni paycc to mnkcr — A 

Siiiit/i V. .Ucl'Jarlnrii, 1 N. S. I)., 209. deed of land was madt; liy a farmer to one of his 

I sons, who, at the father's request, gave his 

10. Lrgality of Srd Rev. Stats., C. 19 - i promissory note to his father, jiayal.le to the 

I'laintilt' supplied defendant witii merchandise, other lirolhers respectively, the arrangement 

iind aiiiongotlier things, with intoxicating li(|Ui)is lieing made for the purpose of distriiuiting tho 

ill i|iiaiJtities of less than one gallon at one and estate of the father without a will. The notes 

till' .liiiiie time. Defendant, on the other hand, ' were lodged hy the father with anothei' person. 

sii|ipliiilpliintill'witharticles which were placed Ift/il, that the ]>ayees could not recover on 

to his credit ill plaintiffs hooks of iiccount. On the notes, for want of consideration moving 

11 sctileiiH'ut of accounts, plaintill' struck out of from them to the maker. 

his luciiiiut all charges for liquors sup]>lied as , 

iilii've and, with defendant's consent, deducted a 

likcaiiioinit from the latter's credits l.y way of ^^ ^^^^ g,^^„ ^^ ^^^1^^^^ ^^ ^, p,^ 

liayiiunt for the liquor. Defendant ha-nigg.ven ^-^^ ^^^ ^^^^ ^^^ ^ j^^^ ^,, ^ ^^^^^^ ^^^_ 

ii iiidiMissmv note tor the lialance. „• j ■ j n. • xt 

' , , , ' riage, and assigned after marriage — No con- 

llilil, that the note so given was not void „;,i„_ a /. i . i .1 

, ,, . , " sideration — L. made an assignment under the 

"•■■I'v IJevised Statutes, (Hi. I Series) C'liai)ter 10, t 1 * a *. t loeo • • • , ;• 11^ 
.. , ^ . '. .' Insolvent Act of I ShO, assigning /;//(•*• r(/(rt a del it 



Forsyth v. Fomjth, 1 K. & (i., .380. 



lii'iii;; iieitlier for nor to secure intoxicating 
lii|iiiiis ill any quantity as forbidden hy tlie /■ 
St;i«ute. The Statute lieing restrictive of the 
ciiiiiiiioii law and of a penal character !• ust re- 
etive a restrictive construction and on no account 
sliimlil he construed to mean anything other than 
tho plain ordinary meaning the worda would 
convey. 

Snulh V. .VcEat-htrn, ;j X. S. I)., ;j.j & 270. 



11. Misrepresentation as to quantity of; 

land sold— 111 an action on a ))romissory note 
given ill payment for huid purchased by defend- 
ant from pliiintill', the defendant relied on an 



of .SlOO due him by Mrs. 0'I5. Subsequently, 
married Mrs. O'H. After the marriage, t"s 
assignee pressed for a settlement of the §100 
debt, and Mrs. C. (formerly Mrs. O'U. ) gave 
the assignee a note for the amount, in wliii h the 
defendant joined as surety. 

Ifi III. that the defendant was not liable on the 
note, as there was no consideration for Mrs. C'a 
making it. 

McDaiild V. McMiihiii, 2 R. & C, 405. 



I 15. Partial failure of-Evidcnce of cir- 
cumstances under which note was given, ad- 
alkgud misreiiresciitatiim as to the quantity of i missible— 'I'he defendant A. at an auction of 
liiiiilcoiitaiiied in one of the lots sold. ''''>' '"''^ off the unsold portion, estimated at 25 

y/i^W, there being no evidence that the mis- j ^""''' 'it •'?1-' P^'f ton, and gave to plaintiff his note 

, for J^.'lOO, on the understanding tliat if the quan- 
tity sold fell short of the estimated amount a 
proportionate deduction wouhl be made from the 
face of the note. The quantity liaving been 
largely over-estimated, 

Htld, that it was competent for the Court to 
receive evidence of the circumstances under 
which the note was given to show a partial 
failure of consideration. 

Fi.'iher v. Archibald et al., 2 N. S. D., 298. 



rcprusentation, if made at all, was made falsely 
w with intent to deceive the defendant, or to 
iniliiee him to do that which he otherwise would 
not have dor.e, that the defendant could not 
sueceeil, 

///// v. McLeod, 5 R. & a., 280. 

t2. Moral obligation -JTew trial -A purely 

moral obligation does not constitute sufficient 
consideration for a promissory note. The note 



203 



BILLS OF EXCHANGE AND PROMISSORY NOTES. 



204 



16. Recovery of, on count for money paid 

— I'lie iioteH sued on were given in renewal of a 
previous note which was given in consideration 
of plaintiff retiring a bill of exchange on which 
the defendant was liable as drawer. 

Held, that if the plaintifl's could not recover | 
on the notes they could recover on the count for 
money paid, wiiioli was the original considera- 
tion. 

Soutlur It a/, v. ]Vallarc cl a/., '20 N. S. R., 

(8 R. &(i.), 509. ' 

Aflirnied on appeal to the Su])renie Court of 
Canada, Wallace v. Soutlur, 9 C. L. T., "210. 

17. Verbal agreement for sale of land— 

Vendor takes posses.sion — Wlieie tiie consider- 
ation of a promissory note was the purchase of 
land of wliich the maker took possession, 
tliougli there was no written agreement for tlie 
sale of the Kind, and the consideiation was not 
expressed on the face of tiie note, tlie maker 
cannot set up as a defemje the want of consider- 
ation. 

(imy V. Whitman, 2 Thorn., 1.57. 

18. Evidence of verbal agreement for 

sale of land inadmissible to show considera- 
tion — Where a note was given to plaintitf in 
part payment of jmrcliase money of lands, under 
an agreement for sale and purcluise not reduced 
to writing, /((/(/, tiiat tlie evidence could not be 
given of the consideration, and tliat plaintiff 
could not recover the amount "f the note. 

Black- V. (t'csiiir <t al., 2 Thorn., 1.57; 
Llii(l-ii.ii/ V. Zii'icki-.v, 2 N. S. 1)., 100. 
[Note. — In the argument of (Irayx. Whitman, 
which was decided after /Slack- y. Gtsncr d al., 
the former case is distinguished from tiie latter 
by the fact of the maker of tiie note going into 
possession. The Court in the former merely 
said that it was clear there must be judgment 
for the plaintiff.] 

19. Want of Jfegllgence-Action on a pro- 
missory note. Defence, no consideration. W. 
& McC. obtained a judgment against S., and 
under an execution issued on this judgment ami 
a prior execution the Slieritt', in Feliruary, 18.59, 
levied on the goods of .S. and sold them at a 
great sacrifice. After satisfying tlie prior exe- 
cution there remained in the .Slieriff's liands a 
balance of ,i;(iO, which he did not pay over to 
W. & McC , and it ajijieared tiiat they never 
took any stejis to compel liim to ilo so, S. on 
several occasions attempted to get an account 
from tiie Sheriff, but failed. S. subsec|uently 
made several payments on the judgment debt. 
In September, 1864, S. was arrested at the 



instance of W. & McC. , and, to avoid going to 
jail, paid £70 in cash, and gave two notes, one 
of which was the note sued upon. The defence 
set up was, that the notes were witiiout consid- 
eration, as if S. were credited witii the balance 
in the .Slierift"s hands, the judgment debt would 
be more than paid. 

Held, that as through the negligence of the 
judgment creditors the remedy against the 
Slierift" had Ijeen lost, tliey, and not the debtor, 
must suffer the loss, and that tiierefore the note 
was without consideration. 

Coleman v. Dunlap et, al., 1 N. S. I)., 216. 



IV. EVIDENCE. 

1. Contemporaneous agreement— Cannot 

control note — The defendant and one Bnsliell 
applied to tlie plaintiff, a l)roker, to raise some 
money re(piire<l by liushell, who owned Iwni; 
stock, and had an asset due from Almon & 
Mackintosh amounting in the whole to 8,"04. 
Plaintiff' sold the bank stock and obtained tlie 
balance of the sum required by discounting a note 
for .S2()0, made by defendant to tiie order of 
Bushell, indorsed by him to plaintiff. Contem- 
poraneously with tlie note a memorandum was 
signed by plaintiff, defendant and Bu.shell as 
follows : "A note received from F. Bossoin for 
.^JtiO, the conditions of which are that said note 
is given and to be paid by the first dividend of 
tile estate of Almon k Mackintosh, and if the 
first dividend does not amount to 82ti(), the 
balance shall be paid on tlie day of maturity of 
said note, so that Rusiiell shall not be called on 
to pay any money whatever to protect said note, 
and that the amount of Rushell's account lie 
transferred to Jenkins ami to be held by him as 
colhitei'al for saiil note's payment, and lie alone 
to draw said diviilend and place to credit of 
said note for .S2G0., and the transfer made by 
Bu.shell to .Tenkinsis to be tranferred toBossom 
when Jenkins has received in full the sum of 
.S504." Plaintiff retired the note and sued tlie 
defendant for the amount. 

/Jild, reversing the decision of tlie County 
Court, that the agreement did not control tiie 
note so as to alter its character as a promissory 
note between the ])arties and prevent tlie plain- 
tiff from recovering. 

Wealherbe, J., <lis.-<enliv;i. 

Jenkins v. lioMom, 1 R. & (j., 540. 

2. Evidence proving the note an accoin> 

modation - Common counts — Plaintiff, O'C, 
brought an action to recover from defendants) 



205 



BILLS OF EXCHANGE AND PROMISSORY NOTES. 



206 



W. ami E., money paiilto retire iiii acconiinodca- ' relation whatever to the validity of the note 
tioii iiuif for .'*().S8.17, made liy O'C. in favor of under the Stamp Acts. The principle governing 
W. mill indorsed liy W. and K., and negotiated the exercise of judicial discretion in relation to 
liy K., (lilted iliinuary 0, 1874, the declaration allowing amendments is, not to permit them to 
cuutaiiiiii" tlie common counts and a count on a be made where the etl'ect will be to substitute a 
giianuitee. Tlie note was afterwards renewed question for trial which is substantially different 
for>'4.'iS, Ajiril l.Stli, 1S74, jilaintiff having paid from that which the parties came prepared to try. 
the ililli Tcni-e, and a memorandum was produced Although a proper amendment cannot be 
(lilted April l.'kh, 1S74, signed by both W. and refused at the trial, when circumstances during 
E., cuitifying that the .$4;i8 note was more its progress unexpectedly manifest a necessity 
accdinniodiition to K., but at the maturity of the for such amendment, principle and convenience 
note for s4;iS, plaintitf was obliged to retire it. alike demand that such a motion should not be 
Detendiint H. withdrew his plea • at the trial. ; entertained in any ciise during the trial, where, 
Defendant W. admitted signing a ])a|)ei' dated by observing due diligence, leave to amend 
Miiv Kith, 187.'?, certifying that a note for .S778 might have been obtained at an antecedent 
nt that (laic Wiis made by pliiintitV for accommo- ! period. The note having been read in evidence 
(liitiiiM. iind tliiit he \V.. was to pay the same ' at the instance and on the motion of defendant's 
williiiul rec(nu>c to jiliiintitV. W. admitted also ; counsel, 

thiit the origin of the note for .S().S8. 17 wasanote ! Hild, that he was thereby estopped from 
for 877S or .■<78(l, Imt thonglit that the memoran- ' denying its validity. 

The plaintiffs, as soon as the defect in the 



duin of Miiy loth. 187.'}, referred to a ditferent 
note from the one last mentioned. The jury 
found tliiit tlic .S778 iiotc referr(-'(l to in the 
nieirioi'iindiim of Miiy loth, 187.S. Wiis the origin 



note was discovered, affixed stamps of double 
the proper value to it in open Court. 

Hild, Wilkins, J., (li-^-iciitiiiii, that under sec. 
(if tlie transaction out of which the suit arose, I 12, chap. 9, of the Dominion Act of 1867, they 
the .><():iS. 17 note and the 84.S8 note being simply ' had satisfied the requisitions of the statute. 



renewiils of tiie .'5778 note, and the jury found 
for plaiiititl' for the iiniount claimed. 

//'/(/. that the evidence of the memorandum of 
Miiy 10th, 187.S, was admissible, that the liability 
of W. under that undertaking was not dis- 
ciiiU7.'e(l l)y tiie fact that both he and K. after- 
wards signed a certificate inconsistent with it. 



The Bank of Xova Scotia v. Chipmau, 

•_> N. 8. D., 4.38. 

4. Note received in evidence — Too late 

to object to insufficiency of stamping — Inter- 
est where note made in Nova Scotia payable 
in Boston — Place of payment determines — 



and tliiit tlie verdict could be upheld under the ! A written promise made in Xova .Scotia, to pay 
O(jiiiiiion counts for money paid. 
O'Connor V. Wallnci ct 



I, 



! a certain sum of money in Boston, in United 
(7 a/., 1 R. it C, 0"2. I States currency, is a promissory note. 

I A verdict for plaintiff for •'?'2(i70, " with inter- 
3. EflTeCt of defendant reading note in jest," is a verdict on which judgment may be 
evidence - Amendment — Stamping — In an entered up, though the note on which the action 
iietioii on ii promissory note defendant pleaded was brought, payiible in Boston, U. S., specified 
seveiid ])leiis, none of which denied tlie making no nite of interest, the rate of interest at the 
or iiiildising of the note, or asserted its invalid- place of payment, at the time of the trial, to l)e 
ity ill relation to the .Stiinip Acts. At the trial, ' ascertained by a Master of the Court. 
hefore tlie case was opened, he moved for leave After a promissory note has been read in evi- 
to iidil pjeiis under the Stamj) ^Vct, asserting in deuce, it is too late to object to the insufficiency 
Ills iilKdavit that on the morning of the trial he of the stanqis. 

had (liseovered that the stamps upon the note Soiithtr tt nl. v. Wallavi'., 2 R. i^- C, 548 ; 

had not been duly obliteratcil according to the 1 C. L. T., ooO. 

provisions of the statute, a defect of which he Tlevcrsed on appeal to the Supreme Court of 
had not been previously aware. The presiding Canada, 2 S. C. K., .')08. 
Judge refused his application, subject to the 

opinion of the Court. 5. Varying Hotc -Inipropcri)' received— 

//'W, that the judicial discretion had been Plaintiff sold a mare to defenihmt for the sum of 

properly exercised, becau.se, 1st, the discovery 8140, in part payment of which he accepted an 

of till alleged defect in the instrument might order, drawn by defendant on Albert (Jraves, 

have lieen obtained by due diligence before the for .«i80. 

triid ; iind 2nd, and especially, ))ecause the real To an action by plaintiff on the original cause 

questi(m in controversy between the parties, of action, defendant pleaded, among other pleas, 

wliieli they both came prepared to try, had no "non-presentment for payment, no notice of 



207 



BILLS OF EXCHANGE AND PROMISSORY NOTES. 



208 



dishonor, mid effcots in tlie luiiids of (inives, 
to the .iinonnt of the l)ill, at llie time it Ijuuiime 
due." The issues tluis nii.sfd were not put to 
the jury, their attention being directed to issues 
on the count for the origiu'il cause of action, 
and to eoiiHicling .statements of liie parties as to 
the terms or conditions on whicii the order was 
received l)y phiiiititf. 

Tlie evidence of plaintiH', for whom tlie juiy 
found, was : " Tiie onhT was not talien as a jiay- 
ment. I said I'd take it, and try and yet it ; if 
so, well and good; if not, I must have my money." 

HtJd, that the effect of tliis evidence; being to 
vary tlie note, and control its legal o])eration, it 
was improfierly received, and that the rule for a 
new trial should, therefore, Ix; made a!)solute. 

/'(-/• Wilkins, .J., fZ/xvi /(////(/. -It having bc^en 
foimd by the .jury tliat plaintitV did not accept 
the order on (iraves in jiaymcnt of liis demand, 
his remedy on tlie contract was not suspended 
or aflfected by his taking tiie bill. 

/».'//'-• V. Alhii, 1 X. S. I),. 101. 

6. Vcrbiil asrceiiicnt as to when nolo 

should become due -Inadmissible — Fraud — 
To an action on a promissory note given for the 
value of shares in a registered vessel, transferred 
by bill of sale from plaint itF to the defendants, 
the defendants set up as a defence an oral agree- 
ment that the note should not become due until 
the actual delivery of tiie iirojierty, wiiich, as a 
matter of fact, had been seized in execution before 
defendants obtained actual possessimi. 

Ibid, tiiat the alleged agreement could not l)e 
admitted to vary tiie terms of tlie defendants' 
nncoiiditioiial written ]iromise. 

Defendants acce|)t CI land regislcred tiie transfer 
of the shares, and deiiiandiMl possession of \\\k 
vessel, assertintr tlieir riglit as houaliilc owners, 
yet they attempteil to set u[) fiviiid as an answer 
to this action, not specifying whi'tliei such fraud 
was against themselves or ai;ainst a liiird pai'ty. 

H'lil. that defendants could not sustiiin the 
verilict in their favor on this point witliniii >liiiw- 
ing that they were imhiccil liy fiaud of the plain- 
tiff as against tlieiiiselves to make tlie note in 
(piestion. 

Tinjlor V. .M.rni-lniu if. a'.. .'{ 1!. \- t'., !!»(»■ 

Si( , f(/.>Yi. sii/ rfi, 111. 4, 1."), 17 and IS. 



not be invoked to determine the liability of tjie 
maker, aitiioiigh, at tlie time of making, llm 
maker, a Xova Scolian, was lesidenl in Paris. 

Thi Ml rrliniitK' liiiiik v. Slir/iinj, 
\ R. Scii., 4;i!). 



VI. IXDOMSK.MHNT. 

1. Iii(1ors#>d by parties as President and 

Secretary of a Company -Company not incor- 
porated at time of indorsement - Evidence 
of subsequent incorporation not admissible - 
In an action lirouglit by indorsees of a promis- 
sory note signed by defendants as I'resideiit ainl 
.Secretary of a Company tiie.ludge of tiie County 
Court found lliat at tlie date of the note the 
Coni))any was not incorporated, and rcji'deil 
evidence otl'ercd by plaintill' to show that at 
the time of negotiating the note the Conip;iny 
was incorporated. 

The judgment for ))laiiitill' was appealed frmn 
and the appeal dismissed. 

Juri/lili </ a/. V. 1,'uir/i ;/ , / ii/., li R. \ C, L^l. 

2. Indorsee v> Maiier .Motion to add 

pleas refused — Defemlant was sued as maiier 
of a promissory note drawn by him payable to 
the order of L. .1. H.. ami indorsed liy thepayw 
to the plaintill'. At lhe> tiial defendant moveil 
to ameiiil by adding pleas sitting out that the 
iiott! was niaile for the aeeomniodalion of tlk' 
payee, \.i-\ The niotiiai was refused mid juilu'- 
ineiit given for the jilaintilf on eviilence of llie 
making and indorsement of the note, in tlieali- 
seiice of any testimony on the jiart of defeinlaiit 
in support of his jileas. 

//(/«/. on ai)|ieal. thai the .ludge below was 
right in refusing the amemiiiient moved for, in 
the absence of any e\ ideiiee to show that the 
defeiid.int would be ill apo>ilion to estalilish 
the defelie'c he .sought to ilitlodiiee. 

.■l/.<o, that the rejection of the ameinliiieiit 
might hii\'e been good ground for a new trial if 
it had been made to appear from atlidavit. nr 
from the evidence given in the cause, that ile- 
feiidatit would |irobalily lie ilia liosition to estali- 
lish the defence sought to lie set il]i. 

Tlir Hitlilh.f liaiihiiiii Co. V. (lilli^; 
•_'i» X. ,S. R.. (S R. .\: (i.l. tilii. 



V. FORKKiX L.WV, 



I 3. Indorsement By ono of several exec- 
utors of note payable to testator -Sulficieiit 
1. Cannot aflTeCt note dated and to be used -I'laintiir sued on a piomi.'^.sory note made pay- 
in this country -^ able tei X. M. or order, and, after his deceasi', 
llild, that the note being dated at Halifax, indorsed to plaintilf by one of X'^. M's exi'cu- 
and meant to be used tiiere - lieing given )iy one tors, and not by all of them. 
British subject to another, and having no relation Held, that the indorsement was sutticieiit. 
to foreign transactions, the French hiw could; Aliiwnx. t'ocX-, '2 Thoni., '-'ti''' 



20!) BILLS OF EXCHANGE AM) PROMISSORY NOTES. 210 

4. Iiulorsenicnt Fopsery -Proceeds ap- iii^' m.iil wliioli .•loscii on tin; siunc dny. Tlio 

propriated to use of insolvent Hrm Right of iIimwci' iivcr-litjld tlio Mil on tliiU il;iy, :inil a'so 

holder to rank - ( Iniliani, tin' uotivi- nicinl>ir on a following iiiiiil day, ami, on the ■">tli N'oveni- 

of the in-iolviMit lirni. made a luunlier of ]>roni- her. sold the hill for fidl value to the i)laiiititl', 

issorv notes in the liini name in favoi' of one; who remitted it the same day. The liill was 

'riionias Kraser, hy wiioni the notes ))inported aeeepted, lint the aeeeptor.s haviu),' failed heforo 

to he iiiilorsed, lint the indorsements were all of it matured, defendants were sued as imlorsers, 

them folded. The notes were prt.'seiited to the Defendants pleaded, among othei' things, that 

ilaiuianls and negotiated hy (Irahani, who re- they were disehargeil of tluir liahility, hy the 

eeived the umney on them, and a large ])art of delay in jiutting the hill into eir<ulation. A 

the proceeds were appropriated to pai-tuersliip motion having lieeii made to set aside tlu^ pleas, 

piu'poses. it wa.s oontended on behalf of defendants, that 

llilif. that, although the I'.ank could not the <|Uestioii of undue delay or negligencushoidd 

ciaiiii on the notes, it could rank fiu' the amount lie left to a jury. 

of tlieui as money paid. j //,/,/_ netting aside the pleas, that the holders 

Uilh. Mii»f r of driifidw ,{■ .UrKai/, ,(;:, ,,f ,|„. i,iii_ i„,i„j^, entitled to reasonahle time, 

■• "■ ^ ^ ■■> '—'' theic was nosuoh delay as to constitute a defence 
in law. 

5. IlUlorsCP -.ICfion against -ContradlC- .l.ihnstoue, K. J., was of opinion that the ca.se 
torvevidenee-Prepondenmce -Action against was one whiih did not come within the 71st 
ilrteud int as indorse!' of a proini.s.sory note made .section of the Practice Act (Revised .Statutes, 
hy the tirni of ]•'.. H. & Sons. Two issues of fact .'{rd series), and that the defendants were entitled 
Wire siil)iniltcd to the jury at the trial, and to suhmit llu'ir <lcfences to a jury. 

t'nimd in 'avor of the defemlant. I'laintitf ////''''' ' ' «'• v. l\'i 'niori <iiil., I X. .S. 1)., ,"1(14. 
appealeil fimn the lindings. 

The evi.lence hcin- in some respects contra- ^^ IlMlOfSerS nOt liable as HKlkerS - 

(lici.iry. hut the pr.'ponderanc.^ l.eing in favor Stranger to the note indorsiny -Liability of - 

of defendant, the C.-nrt dismissed the appeal A proniiss,,ry note was in the following form : 

with costs, and referred the cau.se back to the .. j;;]; ■|'i„.,.,, nuuiths after .late 1 |U'omise to 

.liidi;e licfore whom it was tried, for liual judg- ,,,|y ,>^ \i 'p |> |> |,' \\" (• ,f ;^l '\\ [{ 

""'"'■ directors of the Liveipool Insurance As.sociation, 

77,. ( ■uiKiiK rrhl li,i,ih- 0/ II V»(/.so/' v. liori/< ii, ,„. ,„.,i^.,._ ^,.,.^,|, |„„„l,.t.,l and seventeen (lounds, 

•JOX. .S. R., (.S R. .t (i.), .-U.-); vahrn rc'cived. Liverp.M.l, .Ian. loth, IS.H," 

• ' • '" '-i-'*^- iiiicl was signed by Archibald J. ('am)ibell, and 

indorse<l by Colin Camplicll, .M. McLearn and 

«. Indopseps become Insolvent and make dohn Campbell. The Directors di.l not imhinse 

a comjjosition with holders Latter can only the note. The four parties to the note were sued 

prove against makers, also insolvent, for bal- as maki-rs. Default was entered against Archi- 

aui-e after deducting composition -I'laintitls bid<l .1. Campli(dl. The othei- tlirec pleadeil tliat 

Well' hoMcis of a note madi- by I!. C. i\: Co. an<l they iiid not maile the note. 

iu.lnrsed by M. R. >\: Co. .M. R. i*t Co. liecanu' H'lil. following, (Ininull v. Ilirh'i-I, .". Ad. 

iii-iolvcut and ert'ected a composition at fifty I'ents and l-'llis, 4."ili, that tin: three defendants were 

(111 tile (inlLir, including; their indorsenu;nt for not liable as makers, Wilkins. .1., '//sm /////i;/. 

11. ( '. ,^ Co. K. C. it Co. also becoming insol- /'< ;• DesUarres, ,1. — The defeiidanti ought to 

vciu the plaintitl's sought to prove against their be regardeil as guarantors ami declared against 

esi.itc fill' the full amount of the note. on their collateral undcrtakinL,'. 

///'/. that they could oidy prove for the bal- Morion it al. v. Cnuijiln// it «/., Cochran, o. 
.111CC afte!' dedtu'ting the composition received 

tv in M. R. ,\: Co. j,^ Indopsement by stranger to note - 

I hi Hiudo/ liritish Xorth Ann r„n v. Hnr,;,/, Subsequent indorsement by payee -Innocent 

.{X. S. D., 41(1. holder -Defendant's two S(uis purchased a ves- 
sel from one I'ettipas foi' which they gave their 

7. IndorseP Liability or Delay in put- note payable to IVttipas, or order. The defen- 

ting bill of exchange into circulation -Pleas — dant wrote his name on the back of the note in 

Setting aside —Defendants, on the Stli October, the same ilirection as the writing in the body of 

iHliS, iiiildised a bill of exchange drawn by S, S. the note inside, and it was afterwarcls taken to 

oil H. it Co. of Liverpool, Kng., thinking, but Pettipas who wrote his name across the liaek of 

not stipulating, that it was to be forwarded by the note. I'ettipas then handed the note to 



211 BILLS OF EXCHANGE AND PROMISSORY NOTES. 212 



plaintiff to whom lie wiis imlclitud, iiiul pliiintifF 
siieil the ilefeiiilant on the note, alleging that 
I'eltipiis indorseil the note to thedeteiulaiil who 
imhu'sed it to the plaintiff. 

Ilild, that the jilaintiff could leeover the 
amount of the note. 

Ptr James, .].— 'I'luit plaintiff, not knowing 
the factti, liad a right to assume that the note 
WHS indorsed lirst liy I'ettipas and afterwards 
by defendant. 

/'()• Desllarres and Smitii, J-J.-^'I'liat defend- 
ant, by placing his name on the hack of the 
note and allowing it to pass into the lianils of 
the payee, tr) l)e liy liim tiansferred to wiiom he 
])leased, waslial)le to plaintiff as liuna J'lli holder 
without notice. 

MrLniii V. <;ariii',\ ■_' i{. .S: C, 4.Sl> ; 
•_'('. L. T.,-.'(iL'. 

10. Indorsee — Stranger to note Not 

liable -(i. W. B. having ])inchase.i a <|uantity 
of goods from the liiin of 15. iC M., gave them 
in payment therefor a promissory note made by 
himself payalile to the older of 15. it M., ui)on 
the ))ack of which the defendant for' the accom- 
modation of ( !. \V. 15. iuul indorsed his luime. In 
an action by ])laintill', s\irviving jiartnerof the 
lirm of 15. it M.. against defendant, there being 
no evidence of an intent on the part of defcml- 
ant to stand in tlu' ordinary relation of an in- 
dorser to the payees. 

//'/'/, tiiat defendanc was not lialde. 

Hums v. Siwir, :\ X. ,S. 1)., 530. 

11. Indorsement, special Bill specially 

indorsed cannot be transferred except by in- 
dorsement — Replication to plea of indorse- 
mer' -Tender — A liill of exchange drawn by 
tile Amherst l5oot & .Shoe Co. on the firm of 1). 
& Co. was indorsed " Pay to tiie order of the 
Bank of NovaSootia, .\mherst," and by the agent 
of the liank at Amlierst " I'ay to the order of the 
Bank of Nova Scotia, Halifax, for collection." 
The bill was accepted by 1). i>: Co., but was not 
paid, and was returned to Amherst. While the 
bill was still in the hands of the agency of tiie 
bank there it was juirchased by defendant and 
vas handed over to liini, but witiiout any in- 
dorsement being made other than tlio.se already 
on the bill. Defenihint being sued by plaintitl' 
as assignee of 1). it Co., who had become insol- 
vent for a balance of account due tiiat firm, 
pleailed the liill liy way of setoff and tendered 
an amount us the balance due the estate of 1). it 
Co. 

As to the plea of set-off ])laiiitiff joined issue 
without replying specially. 

//dd, pe.r McDonald, Smith and Weiitherbe, 



J J.— That the bill having lieen specially indorsoil 
to the bank could not be transferred to the ile. 
fenilant except l)y iiidor.-cincnl. 

Per McDonald, C. J., and Ritchie, J.— Tliat 
if plaintitl' wisiied to deny the indorsement lie 
should have replied sjiecially, and tiiat liy 
merely jfiining is.^ue he could not put defendant 
to proof of tiie indorsement. 

Per Smith, Weatherbe and llitchie, .hi., 
McDonahl, C. .)., concurring, that tlie teiidiii- 
made by defendant was bad. 

porii/>li V, Lniinim', ' \\. k (i., 14H; 
7C. L. T., 174. 



VII. INTER EST. 

1. Determined by rate at place of pay- 
ment—A verdict for ]ilaintiff for .S'JtiTft, "witii 
interest." is a verdict on which juilgment iiniy 
be entered up, though tlie note on whicii tin- 
action was brought, payable in Boston, U. .^., 
sjiecified no rate of interest ; tiie rate of interest 

I at the jilaceof payment, at tiie time of tlie triul, 
to be ascertained by a Master of the Court. 
I Sour her if at. v. Il'a//acr, '2 R. vVc ('.. .MS; 

] I C. L. T. , .uii. 

j On apiiKil lo th< Sii/mmi Court of CiiikhIh, 

I Held, reversing the judgment below, iiilfr 

alia, that the jury should have lieeii directed iis 

to interest. 

•2S. C. R.. :\%. 

2. 'ind Rev. Stats., c. 82 - More than 

legal interest —Penalty for taking— I'laiiititl. 
with his lirotiier, tlie Rev. (i. P., entered iutoa 
promissory note N'ov. ;{Otli, IStiT, by whicli tiiey 
agreed to jiay to the order of I), it Co., the 
defendants, .'?14(R), with interest, in one year 
after date. When the note fell due, interest at 
the late <jf six ])er cent, was jiaid upon it, ami 
the note was allowed to lie over. On Dec. .'inl, 
180!), plaintitl' paid another year's interest, witii 
two per cent, additional, which defendants de- 
manded for extending the time. 

Hi Id, that the additional charge so niailc wms 
within the prohibition against taking more tlwn 
legal interest, contained in chapter S'J, Heviscil 
Statutes ("ind .series), and that defendants weiv 
liable to the penalties therein imposed. 

Pattirsim v. />»//'»->- 1/ al., 3 X. S. D.. -■-■ 

3. Usury Defence of-Evidence of usurj 

— To an action on a promissory note ilcfciiiliiiit 
pleaded usury. The note was expressed to he fur 
the sum of C4(», but the evidence went to sliow 
that defendant actually receivetl oidy i"3Si 



213 



BILLS OF EXCHANGE AM) PROMISSORY NOTES. 



214 



iilthfuigli he piiiil inturcst upon the liu-Lfor iiiiioiint ' 3. Givcn b)" tclegraill -Proof - A judgineiit 

foi- tlio space of two yeai's. . wii.s given for ileft'mlant in un iution hy iiidorssr 

//./'/, that the transaetion was usnriou.s, ami , against inih)i-.see, there heing no proof of the 

tliat )ilaintilleouhl not leeover. eontents of a notice said to have been sent by 

Ilutihiiisun V. Dill, •! X. .S. D., 448. telegiapii, or of the telegram iiaving been re- 

cciveil. 

4. Isurj Defoiicc of - Xo evidence of ''I'lgnHMt sustaine.i. 

loan —Action l)y indorsee against maker on a-, MrLtuii v. (larniii-,'i It. & (;,, 270. 

]iroMiissory note expressed to l)e for the amount | 

.,f f4fi Ills. M. Defence, usui'y. The note had ' 3. Walver of Adiiiission of liability— 

l)cci] transferred from the jiayccs to the ])laintitr Verdict sustained with costs, thougli declara- 
for the Slim of CM. it liciiig tlicii overdue, and tion alleged notice, and evidence only showed 
(icfi'iidant's lial)ilit\- iipfin it aiiKiuntiiig, witli waiver— In an action against dt'fcmlant as in- 
interest accrued, tr) i'4'J 13s. .'jd. 'I'liere being dorser of two promissory notes, tlie defence 
iiothiiiL' to show tliat the transaction partook in . rcbed on was want of notice of dishonor. The 
any degree of tiie nature of a lo m, and tlie jury evidence of notice was insiitticiei'.t, but defendant 
h;iving found that it was in fact a hnun litl, sale ' admitteil that he otl'eied to settle the notes in 
uf tlic note for what the parties considered its another w;iy tiian liy payment, 
iiiaikct.dile value, /Jilil, that tills oiler was evidence of an admis- 

//./•/. Wilkins, .(., ili'.^.<, ii/lii./. that liie L'sury f*'oii of lial)ility aiiKUinting to waiver of notice. 
Act iiad noapiilicatinii.aiid that plaintiU'siioiild Tiioiigii the dechiration alleged notice, and 
recover the t'liil aniomit. evidence oidy juoved waiver of notice, the t'ourt 

llVe. /')'■/■ V. 67(> >/'//,•_' .\. .S. 1)., 4<.l. lefuseil to distiirli tlie verdict or lo deprive 

plaintill's of their light lo costs. 

Watirinit h'lii/iiii' Co III I'd II ;/ v. ('Iirl.ifli', 

(» K. iV: (1., 10!) ; 
OC. L. T., 441. 



Mil. XOTICK OF DI.SHOXOR. 

1. Dishonor of note n^lven in payment by 

agents tor goods sold to principal -No need 
of notice of dishonor to principal, he not being 
a party to the note —Conditional payments - 
riiiiiitilf .sold to defendant a i|uantity of hides, 
.«oiiie of which, under the defendants instrnc- 
tioiis, were delivered to his agents, A. & Co., 
who gave to plaintitl' their note for the amount 
'hv him. Plaiiitill' tiiereupon entered in his 
hiiok : ••.Settled by note of .^I'J;)." A. iS: Co. 
having become insolvent, the note was dishon- 

(ItVil. 

//'III. tiiat tiie jury were not warranted in 
loganling the entry in plaintiH's book as evi- 
ilciKc of anything Iml a conditional jiaynient. 

.!/"'/, that defendant not being a party to tiie 
note, tiurc was no necessity to give him notice 
of dislionor. 

Aiiilirxnii V. An-hihahl, W X .S. |»., 88. 

2. ForeijcR iiote-Notioc must state that 

note has been protested— .A ))i..missory note 
iiW'lf ill this Province, and payable in .St. John, 
N. !>., is a foreign bill. 

When tiie notice of dishimor does not state 
tliiU a foreign bill has been protested, the in- 
tlorser will not be liable. 

Muiuy v. I/all, '2 'I'hoin., 401. 



l.\'. I'LKA1)I\(;.S. 

1. Action aj;uinst two out of three makers 

—Declaration must allege that maker not sued 
is out of the jurisdiction When: plaintitl' sued 
two out of three makers of a joint and several 
l)romissorj note, alleging the making by the 
third, but not alL-ging that lie was out of the 
jurisdiction of tin Court. 

//'/'/. that this was a fatal objection to ])lain- 

titl's declaration, and that it did not rei|uire to 

be j)leaded in abatement or raised by demurrer. 

A'»vv.// V. (;rriiit If fil.. •_' H. .t C., 409. 

2. Action on notes with a count for trauA 

Subsequent insolvency Plea puis darrein 
continuance and protest that there was no 
fraud -Plaintirt' brongjit an action, February 
■JOtli, 1870, on two promissory notes, with a 
count for fi'aud, under section i.SOof the Insol- 
vent Act of 187."). Defendant )iuil becr)me in- 
solvent in December, 187."), and obtained from 
his ereilitors a deed of eoin)>osition ami discharge, 
which wasduly contirmed .September Kith, 1S70, 
jneviously to which date plaintitl" had accepted 
a composition on the notes sued on ; but [ilaintitT 
had not signed the deetl. Defendant having 
pleaded March 8th, 1870, added a plea .Septenil»er 



21; 



BILLS OF EXCHANGE AND PROMISSORY NOTES. 



116 



'i.'itll, 1S7S. sftliliLT il|i tlifilccil iuiil tilt' iii'copt- 
aiK'c of a cfniiixisitioii, Imt diil tint jilead the 
(liscliiii'gc /iiiii i/iimiii (■■ '^'iiiiiaiiri . liis cinmscl 
iippfolu'liilitiLr tliiit till' ('ileit lit sncli ii plea 
would lie to coiifi'ss tlip ffaiid iliaiircd in tlic 
dcclai-atioii. Tlio cause wastficcl in A|iiil. ISSd. 
\v1k'i\ a vei'dlrt was found fof tiic plaintifl" fof 
the liiilaiicc of tin- iioti's sued on, Init tlio jmy 
ai'f|uitt('il the ilefendant of the eliai'gc of fraud. 
Defendant tiien tool< a fule ///•</ to stay ])foeeed- 
ings, on tlie ground tiiat tlie delit had lieen 
(liseiiai'god. Rule ///>/ disohai-god with eosts. 

Pr/- Ritchie. K. ,r., tiiat the defendant coiihl 
have ])leailed liie disc lai'ge /)»/.< ilitrniii rniititiu- 
niicc. with a simple protest that there was no 
fraud. 

//'irriiKjioii V. Wtttir. 2 R. ^t f!., 183; 

1 C. L. 'P., t)«3. 

3. Count for money paid Kecovcry on 

where failure to recover on note -The notes 
sued on Mere given in lenewal of a ])revious note 
wiiieli was given in consideration of plaintifl".s 
retiring a liill of evcliaiige on which the defen- 
dant was lialile as di-awcr. 

//(Ii/, that if the plaintilTs could not recover 
on the notes they oonld recover on the count 
for money paid, which was the original consi- 
deration. 

Sntilfii r (t (tl. V. ]V(tll(tc' itnl., 

•JON. S. R.. (,S R. X- C), nOO- 
The decision in this cas'o was aliirined on ap' 
peal to the Supreme Court of Canaiia. 

W'nlUirr V. SoHf/i't: !t ( '. L. T., "210. 

4. Dorlarnlinn Indorsee v. maker -In an 

action on a promi soiy note, iiy the imloisee 
against the liiaker. the declaration should allege 
that the note was indorsed liefore it liecaine 
due. 

Cli!i„iiri,i V. /i'<Vc/,/, , -J Old., 710. 

5. nefenoe of a.i;reenient with payee 

Wliere the .Ictciiilant in suili an action rcjii's on 
an agreement with the (layee as a defence, the 
plea shoidd allege that the note was inilorsed 
after it hecame due. 

6. Defence of no eon.slderntion - A general 

plea of no consideration or no value, not stating 

the particular facts v.iiich show the want of 

consideration, is good in this Province. 

ThUI. 

1. Defence to action on note, where de- 
fendant admitted something due thereon, 
allowed to stand, upon defendant's paying 
into Court amount admitted due — Plaintitl' 



.sued on a promissory note for .^TO.'J."). aiil ijc- 
fendant pleiideil the usual plea.s, denying tlie 
making, consideration, etc. I'laiiitifl' a|i|)liL(l 
at ('hamhers to have the jileas set aside as false, 
frivolous, and vexations; and in ojiposiiig his 
motion, defendant ])idduced an atlidavit, in 
which he admitteil indebtedness to the niiiomit 
of >-'4-. 72, Imt no more, and alleged that iii.s 
])leas werj not jileaded for the purpo.se of dclny, 
Imt that justice might he done. The .liiilgc at 
-Chandlers .set the pleas aside, and dcfciHJant 
appealed, 

//< /'/. that t he apjieal wouhl lie sn.staiiieil, pin- 
viding tlie defendant jiaid 842.72 into ('imrt 
within ten days. Otherwise ])laintill' shoiiM 
retain his judgment. 

Bill V. Ciilman, ;? N. S. I)., ;).V.'. 

8. Joinder of Count on biii of e.vrhanKe 

with one of a criminal nature -3rd R. S.. c. 
134, s. lilt -Insolvent Act. 1869, s. 92- 
Demurrer -t'hd R. S., s. ll!t, c. 134. in refer- 
ence to joinder of clitl'erent causes of action in 
the same suit, ajiplies only to civil suits, and nut 
to proceedings of a mixed civil and ciimiiuil 
nature. 

PlaintitVs fourth count was as folkiws : "That 
the said hill of exi'hange and jiromissory antes 
aliove declared upon v.ere cliscounted hy the 
plaintitl, and the money advanced to theciefenii- 
ants therefor was so advanced upon the icpiu- 
sentation of tlie said T. (1. IJudd, that the saiil 
tirni of ^Vln. F... l)odge cV: Co., the defendiuils, 
hail assets to a large amount over and almvc all 
their indehtedness at the time .said advances 
were made, and the |)laintitl' says, that in tiuth 
and in tad. the said \Vm. L Dodge i*c Cii.. the 
defendants, had no such assets, as the said T. 
(i. lludd well knew, and the .said defcmlaiits 
olitaineil the discount and advances dcclartil 
upon liy false and frivolous representatimi.s, ami 
under false pretences." 

//<l(l, had on deiiunfer, 1st, because itdiil net 
alleg" "hat Rudd obtained the discovuil ami 
advances on the bill and notes di'clarcil iiimn, 
with intent to defraud the plaintitl'; 2iiil. he- 
cause it did not allege that the debt hail nut 
been jiaiil; and 3ril, because it did not allege 
the otl'ence charged agiunst <ir act connuitteil liy 
Riidd to be contrary to the statute. 
I The Bank of /irih'sh Xorlh Anin'i'n 

\ V. liudd ft al., 3 X. S. I)., 97. 

0. Joint and several note Four promiS' 

sors -One dead— Three sued— Fact of fomth's 
death not alleged —Defect how taken advan- 
tage of— Action was brought on a joint ami 
; several promissory note made hy four promts- 



i\: BILLS OF EXCHANGE AND PllOMLSSORY NOTES. 218 

surK, "iif of wlioiii Wii« ili'iid. Till' Hclioii was liy ii third |iiiit_v 'iinl iissiniicil tn (luffiiiliiiit 

|ji(iuj;lit iigiiiiist tlie lliii't' .siii\iv(ii-.s, llic lU'claiii- ul'ttT llu; iiiiiiiiuiui'iiK'iit of i)laintitl"s aitinii. 

tiiHi Mttiii;.,' nut till' iiotu as iiiadi' \i\ tin: lliruo /A /</, tliat tlic plra was liad. Iai'Ii il (iliMil- 

iltft'ud lilts, iiaiiiiiig tliuiii, " Ingutlic'i witli ciiiu ulile the jik'a CDiild only lu' I'l tlio fiiitliur 

Jdliii Niiss," tliu deceased promisor, luit it did iiiiiinteiiaiice of the aition. and not in liai to tlie 

iiiil iidd tiiat he was dead, or .sliow any reason whoh' aetioii. Assiiuiiiig tiit'assi;.'iiiiHiil loliave 

«hv in' liii'l iKit lieeli made a defendant. A heeli in j^ood faith, clcfeiidaiit iiiJL;lit |Hissil)|y 

vii'lirl uas taken for phiilitilt liy eoliselit, and a , have got the iieiieli' of i; on appliialion to tliu 

mil' to set it aside. coiiil in tiie exercise of its eijuitalile jiirisdirtion. 

//./(/. that tile ohjeetion was one tliat shoidd A/r /),„ii,/,l v. A'. '■'//', 4 I!. \ C, i!)l. 

Iiiivc lieeli taken liy plea in alialeiiient, and could 

iiitt lie made a ground of ohjeclion to the verdict I 

t'lililaintiir. X. I'ltlvSKXTMKNT. 

M<K,,,i V. A'f/.v, ;( U. it C, •_'.-i(i. 

1. Evidence of Notary TroJest I'laimitl' 

10. Xollce of non-aCt'Cptailt'C Dt'IIIUrrer hroughl action against defendants as indoiser.s 
for failure to allege — I'laintitl's, as indorsees, of a foreign hill of exehiinge due Felniiaiy l.'Uli, 
suiil defendant as drawer of a foreign hill, al- ISTT. The Notary who protested the hill gave 
lei.'iiig that the hill was duly ]iresent(^d for le- evidence that he cleinandeil ])aynient, and pro- 
(ijilaiicc and dishonol-ed, and ilefendant had tested it on the l.'ith. He denied that he had 
lint any etlects in the liand.s of the drawees, nor , recei\ed it hefore that dale, and declared that 
any leasonalile ground for expiM'ling that he he was not at the drawee's ))lace of hioiness on 
wnuM have, or that the hill would he honored, ■ the I'Jth, hut the note on the hill " l'"eliiuary 
ami that defendant hail sustained no damage liy 1 Kith," had originally heen writicii l-'ehriiary 
icasoii of having no notice of the noii-aeeeptance. ] rjih. A jiiotcst was ]iia in ]iroof, dateil l-'eh- 
Dcfiiidaiit deimirred on the ground that ])laiiititi' ruary l.Stli, without the Notary's seal of otiiee, 
was hi mild to give notice to defendant of non- ' and also a jjidtest dated Felnuary I'Jth having 
uirciitaiice, or hold the liill till due and again i the .seal atlixed. The lattei- had heen sent with 
ini'si'iit it for payment hefore suing, ami to ' the hill to the plaiiililV, and their attorney 
allege accoi'tlingly. Demurrer overruled. then corresponded with the Notary whose ex 

Staiitii r <l itl. y. Ifoirall, ',\ M. is. i'., -i'u. planation led him to sup))i>se that a clerica. 

error had heen made, whereupon he enclosed to 

11. Payable at particular place -Action the Notary the protest of rdiruary i-Jth, with 

by indorsee against indurser Necessary to the draft attached, and the Notary afterwards 
state place in setting out note in pleading- returned the new protest amended, dated Feh- 
Alsc presentation and notice of dishonor In ruary l.'ith, and the old jirotest of Feliriiary 
an action hroiight hy plaiuliff as iiidor.see against 1-th. 'i"he Notary in his evidence said nothing 
ikfciiilaiit as indorser of a promissory note, it of this corresj)ondenee, and failed to explain the 
appeared I hat the note was made payahle "at erasure of " I'Jth " ahove referied to. I'hiintitf, 
the Merchant's Hai k, Hawkeshury."' There was on the trial hefore a Judge without a jury, 
luiallegiition in tie statement of claim to show aeeejjted a non-suit with leave to move, and 
that the note wai- made payahle at that place, the Court, after argument, discharged the rule 
or that it was did,' presented for payme.'it there, for a new trial, holding that the evidence of 
or that any notice of dishonor was given to ^ the Notary lieing mireliahle proof of a due 
(lefeiiilaiit. presentment had failed, and further that the 

llilil, that in the alisenee of such averments ' protest of Fehruary 13th was defective for want 
ami ]iiiiof, plaintilf could not recover. ' of a seal. 

.l/-r), that under the present system of plead- ■ The Merchaii'"' Hank v. Spiwn;/ <t al., 

iiig it was not ineumlient upon defendant to ' ' '•' '"• 

ileny facts essential to plaintiff' « right to recover | ,^ ^^^ payment-//'/'/, that as it was proved 
mile.«s such fauts were alleged in the statement | j|,,^^ ^,,^ „„j^, ^^.^.,.^ i„ pUuntilFs oliiee, where 



of chinii 

/;/v. O(//u:.'<,'.>0N. .S. R., ( 

9c.L.T.,i2o.!;™;:^;,^; 



I they were made payahle at the time they be- 
/>»•//«,/ v. «///,',..,•.>() N..S.R.,(SU.&(i.),4-.>;}; I ^.,^„,g j,,^.^ „„ „t,,^.,. j„.„„f „f presentation was 



I 



Sontht-r </ al. v. Wnllai'i' at al., 

12. Plea of set-off arising alter action on 20 N. s. R., (8 R. & o.), 509. 

note-To an action on a promissory note, defen- 1 Affirmed on appeal to the Supreme Court of 

ilant pleaded, hy way of set-off, a judgment Canada. 

for a greater amount recovered against plaintitt', i WcUlare v. Souther, 9 C. L. T., 210. 



219 



HILLS OF EX(;HANCJK AND PROMLSSOKY NOTES. 



220 



3 For pajmcnt AKt'iiry of Ituiik lioldlnjr 

note for collection Two pioiniMsory imtcs m.iili' 
payiililf lit the liaiiU iif \ipvii Scot ill «frc placfil 
ill the liMliils cit' tJR' ii;,'i'iit (if the liulik <it Kent- 
villf fill- iiilUiliciii. 'I'lif agflit ti'stiliuil thai the 
iKili'S ill c|iiistiiiii " iM'if ill the heail (iltiie lit 
Halifax wiieii the;, hci aiiif diie, ami aftef they 
bocaine line W'.e letiinieil tome." 'I'lieie wa.s 
no eviileiiie that ihedefeiidaiit or anyone repre- 
sent Iiil; him «as at llu' place where liie liote.s 
were made payahU' to m(!et his eiii;agenieiil. 

Hi III. that tiie liaiik. iiniler tiie evidence, was 
the u^reiit of tile payee to rcceivt^ payment and 
not of the m.iker to |iay. 'I'lic jndgmciit for 
plaiiitiir helow was conliiined and the rule dis- 
charged witii costs. 

I'lilhii V. Siiii/oril. » It. X- (1., •_'4--'. 

4. Plea traverslns Evidence -In an net icn 

liy the indorsees against tiie indorser of a ]ii<i- 
niissory note the defendant pleaded, traversing 
the allegation of picseiitnieiit. The mes.sengcr 
of the hank that iield the note .swore that he 
presented it at defendant's otHce, where it was 
jiayalile, lictween .'{ and l p. in., when said otHce 
was closed. The defendant denied the jiresent- 
inent and deiiieil that the ollice was closed, Imt 
did not deny that he had been inforiiied of the 
presentment next day, and he did not deny or 
refer to the staleineiit of one of the [ilainliirs 
that on his showing the defendant the notice of 
dishonor the defendant had iiromised to give a 
good note in nlace r>f the dishonored one, or else 
sujiply good.? to the ainoiint of it. The County 
Conrt .Judge .set aside the plea as false, Sec, on 
the strength of the uncontradicted evidence of 
this promise, 

Jlild, on apjieal, that the only (|iiestion for 
the Court under the pleadings was whether the 
note had heen actually presented, and that 
plaintitl's could not he said to have estahlished 
the fact of presentment as there was a contra- 
diction. 

Eniiis ii (il. v. Fo"/!)-, 1 K. it <!., 60. 



XI. STAMPIXt!. 

1. After making by agent - Plaintiffs 

brought ac'tion as indorsees of a promissory 
note made by defendant, indorsed by Collie & 
Spencer, for whose accommodation it had been 
made, to ('. J. Morton & Co., who indorsed it 
to 8ylvanus Morton, by wliom it was indorsed 
to the plaintiffs. The note was stamped to the 
full amount required when it came into the 
plaintiff's hands, but it had no stamps on it 
when signed by defendant, who swore that tiie 



initials on six of the nine stamps appeari^ig on 
the face of tiie note were not his initials, ainl 
had not lieen placed there by his antlMniiy. 
He statt'd, however, on cross-exaniiiiation, llmt 
Collie said w lien the note was signed tiiat lie 
would put stamps on it at his ollice. To ilijs 
defendant made no objection ; and Coilii! sW(]iu 
that the initials were made by a clerk in hU 
ollice on the very day llie note was signed. 
Hi III, that the note was legally stamped. 

JJiifti" 1/ al. V. MiLkiiii, -.l \{. ,\i ('., -J.V.I. 

2. After (rial begun iMaintiUs, as snouas 

the defeil in the stamping of tiie note sued mi 
was discovered, allixed double stauijis to ji in 
opi'ii court. 

llilil, Wilkins, .1., ili'i-ti iilidij, that nudcr s, 
I'iof c. !l of the Uoniinion Acts of 1S(!7. tliey 
had satislied the retjnisites of the Statute. 
'/'/(( Bank of Noni Sfodn \. Chl/iman, 

•iX. S. 1).,4;!S. 

3. After acrcptanre and indorsement- 

Pleading -Defeiidiiiit pleaded as a set-oil to 
plaintitf 's claim a l)ill of exchangt^ acce[ite(l hy 
plaintitf and indorsed to him. Plaintill' replied 
that the bill at the time of its acceptance ami 
indorsemeiit was not stamped according to law. 
Defendant deiiiuiled. 

JIilil, that the replication was good, and that 
if the stamps were allixed after the acceptamii 
or indorsement, it was for ilefendant to ivjciiii 
the facts which jnstilied him in .subsei|Uemly 
aliixing them. 

linihrd al. v. Emnx, .S X. S. 1)., 171. 

4. Agency for purpose or stamping- 

I'laintilf .1. H. Trooj), along witi/ C. .1. Tiucip, 

maile a note to defendant for a delit due to 

defendant by C. .}. 'I'roo]). The jury found tliat 

there were stamps on the note when signed. It 

appeared that the stamps afterwards became 

detached and defendant said, " I afhxed the 

stam|)s to the note wlu'ii it was lirought back to 

me by C. .1. Troop and obliterated the stauijis.'' 

This was not done in plaintilf's presence nor liy 

hi.s direction, nor by the direction of C. .J. 

Troop. 

Hilil, that although the assent of C. J. Troop 

might be implied, he could not be accounted the 

agent of his surety for obliterating the stamps, 

and that neither his direction nor his a.ssent 

would have satisfied the Statute 31 Vic., C. 9, 

1867. 

Trooii V. Troop, 3 R. & C, ."ifiS. 

5. Alteration In erasure of stanips-Pre- 

sumption against— On a note dated May 2/, 
1873, the stamp was cancelled by writing thereon 



221 



HILLS OB' EXCHANGl-: AM) PROMISSORY NOTKS. 



222 



'21. •"'. "•'• It :i|i|H'iU'(Ml cm tlic t'lUf cif the stamp 
iis if tlir liL,'iiri' " .'< " liiul liccii Miitti'ii iittiM' the 
'■L'," iiiiii ii lien illiiwn tlM'iiii,L;li it, Imt llic "7" 
aiiiiiMiiii iiiii'iiisiil. It w.is ill cviclciicc, uiicoii- 

|l;li|i( Ird, tliat till' lll(tl\ wlu'll |lllSl'llt('il tl> 

iiliiiiilill lin'iliscouiit, wasstiiiiijii'il lis it ajipeaii'il 
oil till' tiial, anil tlii:ri' was iiii ])lt'a alleging a 
tiMiliiilli'lit alti-iatinn. 

//./i/, til, It t lie ( 'dint rciuM nut pri'suiiiit that 
ilif .-I, imp hail lii'i'ii ))r('\ imisly usiil nn an iii- 
striiiiiiiil ilali'il '-'.'^rd May anil framliilenlly 
ic iiM'l. ami that the veiilict taken fur plaintill' 
liv . I'lisi'iit must staiiil. 

Miinlorli V. fm-'ir •! n/., I U. .'^ ('. , .'{(l.'t. 

(>. it) payee Jitter deliver} Note Inad- 

inissilile asacknowlecljpnent to har the statute 
- Etl'ec'i of paynicntH by indorser in action 
against maker Account stated --I)ofenilanl 
luiide a note of hanil to S. , wliieh was inilorseil to 
|]l;iiiitill, who received payments cm account of it 
fidiii time to time from the indoisei . I)efeii(lant 
made no ])aynients, hut after six yeais from the 
ilate of the note made a new note to jilaintill 
for the halaaee due on the original note, the 
stiiini) on whieh, hearing date identical with the 
ilate of the note, was for the single duty, and 
was alllxcd liy jdaintiir on the day suliseijuont 
to the delivery of the note to him. 

Ilil'l. that the stamiiing was insutlieient, and 
that the note could not he I'eeeived on the trial 
as an ackiiow ledgment to take the case out of 
the Statute of Limitations; that the payments 
hy tile iiidorser did not inure to prevent the 
o])eiiitioii of the Statute as against the maker, 
iiiiil that the mere striking of a balance as be- 
tHceii the parties did no' '-.nstitule an account 
i-tated to take the case out of the .Statute. 

Mil'uirithji. V. Iliiiitn; li K. \: C., '2H9. 

1. Cancellation of stamps— A promissory 
note \\as duly stamped, but the maker had, by 
Wiiv of iiuicelli.ig the stamps, simply written 
liis initials upon each stamp without aildiiig the 
ihite. 

JIdd, a sutticient cancellation. 

MiX(i/\. M,-I„tosli, -iX. S. D., (57. 

8. Cancellation of - What sufficient — 

'\liere three stamps were affixed to a note, the 
three making up the amount of stamp duty 
piyahle on it and the figures 5, 16, 73 corres- 
ponding with the date of the note, were written 
across the three stamps (which were affi.\ed one 
alwve the other, the middle overlapping the 
iower one) so that a small portion of the tigure 
5 " and nothing more could be discerned upon 
the lower stamp. 



H'ld, that the stamps were sntiieiently can- 
cel led. 

Miiiilu,!, V. /;. ir..//; ./ '(/., •_' K. >V ('., '-'SO. 

0. Defective Kecover) of amount of ron- 

Hideration on a count for account stated. — 

Where a promissory note is defect i\e for want 

of a stain)) the plaiiitilfmay recover the amount 

of the consideration on a count foi- account stated 

not withstancling that the consideration is for an 

interest in land. 

/•'/v«/ V. Iii-ii(iiii)i,;\ \. ,S. I)., 40. 

10. Double stamplngafter repeal of Stamp 

Act — Right of— At the time the note came into 
the hands of plaintitf it was insulliciently 
stamped, and plaintilf, iniinediately on becoming 

i aware of the defect, atlixed double stamjis. 'I'he 
Dominion .Stamp Acts, including the Act in 
reference to double stamjiing, were then rejiealed. 
Jt was contended that the note was void for 
want of proper stani|)s, and that by the repeal 
of the All, the right to double stamp had been 

I taken away. 

I //ihl, that the note was propcM'ly double 
stamped by phiintitf, and that the objection to 

I his right to double stamp could not jirevail, the 
right to double stamp continuing not withstand- 

! iiig the Act. 

' Mi-Iiilosh V. .]/<■/.< 0,1 ,/ f//., (i R. Sc C.., I'JS ; 

(iC. L. 'i'., 749. 

I 11. Double -- Alteration - Action was 

! brought on a bill of exchange clrawn by defen- 

I dants. The bill with the acceptance was proveil 

j and read without objection. « hen plaintiff rested, 

whereupon defendants moved for noii-suit on the 

grouiicl that there was no evidence of stanijiing, 

and because of an alteration unexplaiiu'd on the 

face of the bill. I'lainlitf was then recalled 

and gave evidence as to double stamping and 

cancellation. Defendants gave evidence as to 

altciation in the bill, contending that the date 

I had been altered from L'7th August to 17tli 

I August. After the plaintitf had been called to 

rebut, the .Judge jiropo.sed to si'bmit to the 

jury the view that it plaintilf hail received the 

bill from the acceptors he would be entitled to 

recover because it would be impo.ssible for the 

alteration to have taken place after the bill had 

left defendants' hands and before it reachwl the 

plaintiff and became an available bill but if 

, from the defendants he could not. Plaintiff's 

counsel then said he would submit to a non-suit, 

and the Judge gave liini a rule to set it aside. 

Held, that the view whieh the Judge pro- 
posed to submit to the jury was incorrect, that 
I plaintiff waa not precluded from moving to set 



2-->:i 



HILLS OK KXCHAXUK AND I'KOMISSOIIY NOTKS. 



i-n 



till' 111)11 siiil M^idc and tliiil llic fvidilirc iis tii 
alti rat ion of tlic iliiti' ami caiiii'llal jnii ni ilic 
8taiii]is was I'lir ilic jury. 

Ihniti-ilh V. Ddii,, ,1 (il., 1 I!, it (i., I.")!>. 

Vi. Double Ihioi. Acts 1m;(», (np. la 

Wlii'if I Ik |ilaiiilill Ipciii;,' the payi't' "f ii liiU of 
<'Xiliuii^;t', iliawii ami aiccptcil witliniit liriii;; 
(*taiii|Hil. « as iiiiawaii' cif 1 lie necessity <it stanips 
lii'ilig allixeil t(i I lie Kill at tiie time of reeei\ iiij; 
it, lull at'terwanls iliseov ci ilii; tlie neeessity ut 
the staiii|is ami their ealieellatiun, allixed staiiipH 
to doillile the aiiMiiiit of tile proper duty hefoie 
aetioii liidiiutiit against the aeeeptor. 

Hi III. that there was a sutlieieiit eoiiipliaiiee 
with the terms of the Stamp Art.. Cap. !• of tiie 
Aets of iMiT, as aiiiemldl l)y Caji. l;{ of the .\ets 
of Is7t» (the Art of 1S74 not l.eiiiy in force when 
action was liroiiglil ). to lencU'r the hill valid and 
Miistaiii the action. 

MrL'ihiii V. li,ith,\ 1 i;. A: f., ;(,-.. 

13. lloiibic by parly who became liQider 

at time of making Consideration I'laiiitill'l 
representing himself to he the agent of owiiur.s 
of land which defendant had oeenpicd as a 
sipiatter for twenty six years, iiidmed defeiidiint 
to sign several promissory notes stating that he 
Mould give defendant a deed of the land, defen- 
dant to give him a mortgage for halaiii'e of pur- 
chase money. l)efenilaiit never received the 
deed nor gave the mortgage. 

Ill III, that the plaintitV had failed to jirove 
consideration for the notes. 

Ill III, also, that although there was no plea of 
inse'licienl or illegal .staiii|)ing, yet, as evidence 
of illegal stamping had heen received at the 
trial without olijection. the <iuestion of the 
legality of the stamping was for the considera- 
tion of the Court. 

I/ilil, uho, that the notes not heing originally 
legally stamped that the plaintill' as he lieeanie 
liolder, if at all, at the time of the making of 
the notes and was therefore cogni/ant of the eir- , 
cuinstaiiees surrounding their execution, could | 
not validate them hy tlouhle stamjiing under 
Act of 1870, Cap. i;i, Siih-.Seetion I'J. \ 

IVattr-i v. MiCiilloch, 2 H. & ('., 74. 

14. Double by payee-Cannot cure defect! 

— The payee '.n a note not legally stamped at | 
the time of iii'iking it could not cure the defect 
by subsequent double stain|)ing umler Sec. 12 
of Cap. 14 of the Dominion Acts of 1870. 

Exson. t:f id. V. Oain/iliull, '2 R. & C, 577. 

15. Double ~ Replication ot to plea ofi 

defective stamping — Defendant pleaded defec- i 



ti\e stain) ling and cancella'ion, to which |ilaiiitiir 
did not reply, and on the trial the cashier of tlic 
|ilailltill' li.ilik double slampeil the note, and in 
his e\ idclice stati-d tiiat he hiid just then lie- 
lome .iware of thi' ilefect of stamps. 

//'''/, that the cashier was the |ierson «liM>f 
knowledge was to be tested to dcteimiuc' tlic 
right to ilonble stamp, and that (although /nr 
\'oiing. ( '. .1., the more prudent course was to 
reply the double stamping) the want of a repli- 
cation was not sutlieieiit ground for a new trial. 
Till .Miiilmiil'i' llaiihw ■'^/ir'iinj ; 
I U. >\: <;., 4:!ll. 

lA. Too late to object to Insufllclcncy 

after note read in evidence .\ftcr a pioinis- 
sory note has been read in evidence it is loo late 
to object to the iiisutliciency of the stamps. 

.^oiitli. ril III. V. Wdlliiii, •_• It. .V C. .".IS : 
I C. b. I',, .Vi(i. 
The jiidgmi'iit in tlii.s case was reversed on 
appeal to the Suiireine Court of Canada. 

ii'((//((c, V. .Soiiiiiir ii III., •_' s. c. |{., :m. 



MI. MI.SCKLLAXKOU.S. 

1. Company Note indorsed by oil]cer.s of, 

before incorporation — In an action brought liy 
indorsees on a ])roniissory note signed liy 
defendants as I're.siilent and .Secretary of a 
company, the .Judge of the County Court found 
that at the elate of the note the conijiany was 
not incorporated, ami rejected evidence oH'ci'i'il 
by plaintill' to show that at the time of 
negotiating the note the company was iiicur- 
poratcd. 

The judgment for plaintill' was a])pealed from, 
and the ajipcal dismissed. 

Jnriliui it al. v. Jloirln/ <i al., 3 II. it (b, "-'44. 

2. Description of notes in schedule In In- 
solvency— I'laintirt' sued on a note nunle hy 
defendant to .lolin T. Kraser, for .$70.80, ami 
indorsed to liiin. Defendant pleaded a discharge 
in insolvency, to which plaintitf rejjlicd that the 
debt had not been scheduled in compliance with 
the Act. The schedule containeil the follow- 
ing : "John T. Frascr's note, .S7-2.00." 

Ilild, that the schedule did not sufficiently 
describe the note, which, being ncgotiahle, 
should have been scheduled as " ncgotiahle 
paper, the holder of which is unknown." 

Hittt V. Sittherlami, '2 R. & «i., 1!" : 
1 C. L. T., 01)4. 



225 BILLS OF EXCHANGE AND PROMISSORY NOTES. 



226 



3. Drawn for amount of freight to be ' oonseiiuenoo of the adminsioii |)liiiiitiff rufiiiiiied 
earned Not strictly a bill of exchange, but fiom inking prooucdiiigH iigainst (Jravu.s f(ir 
an iipiu-opriation of freight -Tlu' plaintitV niadf foigiM-y. 

liiigc iidvami's' to defendant, <pwn.T of the brig //,/,/, tliat defendant's (FainswoitirH) eondiict 
(', Liivetl, and reeeived a l)ill of excliaiigu anionnteil to an ach)|ition and ratitieation of the 
ihivwii hy tiio cai)tain of the vuhhoI in his favour signatures to tlie notes, and tlial lie was liable 
fur llie full aliir)UUl <if the freigiit to be eaiiu'il theiicm. 

Iiy tlif voyage on whieli she was then jiroeeed- ; /'«/• Weathel'be, .)., that the ease on tlie point 
in;;. The liill was ihawn upon Haling BroH., ! of detriment or alteration of position came within 



who iiilvaneed thi^ amount of it to plaintitf. 
Tlie ve>sel failed to eoniplete her voyage, and 
tlie insurers on freight paid only for average to | 



the eases of rif:r(niilo//ih v. Shiiiilij il <il, 2 
K. iV (!., 1!t!t, and A'/(/;//i/s v. ll7(///;'», L. K., 
") (,». I'.. (1(10, and that on this |(oiiit tiie plaintill" 



the iiiiiouut of about one half the bill of ex- j was entitled to judgment. 



i.li;iiiu'e, wliU'U was eriMlited. Defenilant being' 
c;illeil oil to pay the Jndaliee Jileaded laelies in 
i'('l:ition to the bill. I 

//'/'/, llial the bill in (|iie>tioii eould not lie 
trealeil >lrielly as a bill of exeliaiige, lint ratiier 
ail ,i|ipi(ipiiaiion of ilie freight whicli had Schedule - Replication -To an aetioii on a pro- 
|iailiiilly faileil. Defendiiiil was held liable to niissory note defendant jileaded ///^i ;• «//« a dis- 
iiiake up the detii'ieiiey. 

Itl-'ll I I III. V. /,../■ 



T/n i'liioii llitiiky. Fttnisirovth 1 1 ni, 

7 I!, k <;., S-_»; 
7('. L. T., 144. 

fl. Insolvency - Defence of discharge 



II. 



.\. S. 1).,472. 



eharge under the Insolvent Act of 1S7.">. Jn the 
schedule of liabilities a ilebt due jilaintitl's was 
set out " W. A. X. aliout .'^7.''>0." 

Ill Id, that this was a siitiieieiit (^oiupliiiueu 
1 on a ))romissory note brought ^^'''h the statute, but that if otherwise the de- 



1. K(|iiltnl)lc defence Selling aside pleas 



feet in the sehediile should liave lieen iiiaili' the 
suliject of a replication wiiieh in this ease iiad 
not been pleaded. 

Xaiifta (/ a/, v. Ma^bH, 7 |{. A; (i. 



— In all aellol 

liy tlie iiiiloisee, defendant pleadeil on ei|uital)le 

L'niiiuils, that the note Imd Iji^'u made iiieiely to 

iiialile the jiayce, who had indorsed it to plain- 

tilf. to raise money on it, and the ])lca set out 

"liar lireiuiistance.s connected with the note by 

Way (It ei|iiitable dcfeiiee, alleging tiiat plaiiititl' 

liail knowledge. I'laintitl', in his aliiihivit tosel tection order -4th Rev. Statrf., Caj). 86 

asiile the pita, denied knowledi.'e of the fact "L'tion on a proniissoiy note againsl a married 

I'tlieil oil, and defendant in reply .isscrted his "'""•'" defendant pleaded coverture, to which 

lilaiiititl' replied, setting cait an order for protec- 
tion in conscijuencc of desertion by her liusband, 



Married woman \ote made by 



, .■)47. 
I'ro. 

In an 



lielief that plaintill' had knowledge, and that 
plaint ill' and .said payee had been very mucli 
mixed 111) with each otiier, .ind "he considered made under Kcv. .Stats,, 4th .Series, t'ap. 8(j, 



it almost ini])ossii)le, but that jilaintill' shouhl 
have know 11 the true history of the note' 



Defendant rejoined tiiat long licfore the making 
of the note sjn,. returned to her husband, and had 



//'/'/. tliat the ])lea iiiust be set aside, the ' since lived and cohabited witii him, and was so 

essential allegation of scienter being denied by ' living and cohaliitiiig at the time of making the 

plaiiititr. and that denial not controvcited by the ""*''' ■I'l'l 'be desertion had wholly ceased, as 

ilcfeiidaut. plaintill' Well knew. The facts set out ill the 

Knm/irh- v. Arlinn; '_> !{. & ( i., .S(J7. rejoinder were fully proved. 

I Jlild, sustaining the decision of .Johnstone, J., 
5. Forged signature - Katlflcation of— i of the rounty Omit, tliat the plaintill'cimhl not 
I'he ileleiidaiit Farnswortb was sued as maker | recover. Weathcrbe, J., ilissiiiliii;/. 
of two promissory notes which purported to I Siiicfair v. WakiJuM <f a/., \ R. & C, -IGo. 

Iwve been ninde by Farnsworth and indorsed by 

one Craves, who was joined as co-defendant. ' 8. Mistake in description Of payce-ln an 
-Vt the trial defendant swore that he had neither ! action on two promissory notes given to .J. ,S. & 
signed the notes in (juestion nor authori/.e.l any- ! Co. by defendants in payment for certain dredge 
one t.) sign them for him. This fact was admit- i machinery, one of the ground.s taken in opposi- 
cilaiid was found in his favor, but it appeare.l tion to plaintiff .s' right to recover was tliat the 
"at previous to the trial, wlicn payment of the \ notes sued on were drawn payable to J. S. & 
notes was demanded, Farnsworth stated that he ; ,Son. 

ia<l signed tlie notes for the accommodation of , Held, that as it was clear from the evidence 
us co-ilefciidant ({raves, and made an offer of ■ that plaintiffs were the parties to whom the 
payment provided time was given, and that in i defendants intended to make the notes payable, 



Ill 



BILLS OF EXCHANGE AND PROMISSORY NOTES. 



228 



ami iiM tlie niiNtiiki', if miy, in tlii! dcHiTiption of 
till' plaint itVn wan inaclc liy tlu' (li'fi'ii<liiiit.s who 
had tile iiciiilit of the iii.uliiiiii'\ , the ilcftml- 
antM could not avail thi'MiHi'lvcs of thi' mix- 
dL'sc'iiption to t'suape liability. 

Siiiilliir it III. V. Wolhtii it III., 
•Jd X. S. H., (H H. it (i.), .'lOK. 

On ii/ijii(il to till Sii/iriini Court of CiuhuIu, 
111 III, tliat, it liiing i.li'ar liy tlio fvidence that 

the plaintitl's wiTu the peiHons desiynated as 

paycL'x, they eould recover. 

Wallacr V. Souther, 9 ('. L. T., 'JIO. 

9. Note given In payment of premium 

Necessary to show that it was received as 
payment to sustain action by assignee of 
maker against co-owner for share of premium 

— I'laiutilfs iisHigiioi'gave his pronii>i«ory note for i 
the amount of a ])i'cniiuni on a. policy of nuirine ; 
insurance on a vessel, of which said assignor and ' 
the dcfcinlant, witli others, were part owners. 
The note was never paid, and the policy stipu- 
lated that in the event of the premium not heing 
paid, tlie company migiit cancel it. Plaintitl', 
as assignee in liankiujitcy, sued the defendant 
for his share of the premium, as money paid. 

Ill III, that whatever might be phiintitfs rights 
had the note been acceptcid as a payment, and 
the defendant released, there could he no action 
for money paid in the present case. 

linrihtij I't al. v. (loorh, '2 Esp., 'u\, distin- 
guished. 

JJickk V. Bttnlhorn, 3 R. & (i., 387 ; 
;U'. L. T., 43. 

10. Note received In payment of account- 

Plaintitl's wrote to defendant, August loth, de- 
maniling payment of an account admittetl to be 
due. Defendant replied, forwarding a promis- 
sory note for the amount, with interest and 
bank discount. Plaintiffs handed the reply, 
with the promissory note, to their attorneys, 
who wrote August 27th for a settlement, but 
did not return the note, which had not matured 
when plaintiffs brought action for the amount 
of the account. 

Held, on appeal from the judgment of the 
Chief Justice, at Chambers, setting aside a plea 
founded upon the acceptance of the note, that 
there had been no acceptance of the note in pay- 
ment of the account. 

Brown et al. v. Harris, 1 R. & G., 13. 

11. Notes entrusted to gratuitous bailee 

— Misfeasance or negligence — Plaintiff and de- 
fendant held notes of D. S. & Co, , of Philadel- 
phia, for ^1600 and $4000 respectively. P " re 
maturity of the notes defendant undertook, 



with consent of the plaintitl', who indorsed tlio 
note held by him foi' that puipose, to |iicstnt 
the notes to the makers in I'liiladclphia for i||.s. 
count, b\il there was no agieeiueiit exitresscil w 
implied for any commission or reward to be paid 
to defendant. The makers declining to iliscmini 
the notes, defendant left them both with Van 
H. to be retained subject to order of the owners, 
Van H. deposited the nrites in a sealed envelope 
in the Corn Kxchange Xational liank, but aftti'- 
wards, becoming embarrassed, frau.iiilcnily limk 
the plaintiff's note from the envelope, got itilis- 
c<iunteil by the makers, i.'id ni>pro|)iiiiteil tlio 
proceeds to his own use, and afterwards failed. 
Defendant, ascertaining the fact of the failure, ur 
fearing it, went on to I'hiladelphia and secured 
his own note. 

7/(A/that defendant, being a mandatary, or 
bailee without reward, had not been guilty of 
such negligence or nusfeasance in dealing with 
the plaintiff's note as to render him liable in an 
action for the loss resulting from N'an H's, 
breach of trust, there being no evidence that 
the advantage he gained in saving his own note 
resulted from collusion with Van H., and the 
evidence showing, althougii the fact was not 
brought out in the pleadings, '.hat the defen- 
dant had put his own note in the same hazard 
with that of the plaintiff. 

y'(/-\V;ikins,.)., ilLfsi iitliii/, that the defendant, 
in depositing ))laintilf's note with Van H., was 
not acting within the scope of his authority 
as bailee, anil was liable for the consciiucnccs of 
his act, but that, as the verdict was in U. S, 
currency, it should be set aside. 

Harris v. Shtffidd, 1 R. & C, 1. 

12. Note given as security Substantial 

fulfilment of agreement upon which given— 
R. took a prondssory note from McL. and McI)., 
the defendants, by agreement between him and 
them as security until McL. should give him a 
mortgage of certain lands. McL. and his wife 
e.Kcctited a mortgage of the lands to R, in the 
usual form, and McL. brought and tendered it 
to R., -^ho was then very ill, but did not read it 
to him. R. then said to McL., " You had bet- 
ter take the mortgage over to A.'' (the registry 
office was situated there) and when you bring 
me back a certificate that it is left in the office, 
you will get the note." McL. took the mort- 
gage to A. and had it registered, but this was not 
till a fortnight after R.'s death, and about three 
weeksafter theabove conversation. No interme- 
diate incumbrance, however, intervened. McL 
obtained the certificate, but did not bring it to 
K.'8 administrators. R. died intestate, and his 
administrators brought action on the note. 



22f) BILLS OF EXCHANGE AND PROMISSORY NOTES. 230 

ll.lil, tlmt McL hail Hulistiintially fiillilleil «i|«,(MN( .liii' liy M, tit tliu pliiiiitKrs. Tlic notes 

till' iij^'itrmuiit lii'twffii liiiii.siilf, MlI)., ami wcti- not iiu'iitiidicil in tlu' aicmint at all. 
R., unci tlio jury iiaving founil for the ilefi-n- ' /A/*/, tliat tlii' i'i|nital>Ii' doitrinc ax to piioiity 

iliints (tliu nuuKtion of the iloliviTy of the of paynu'nts diil not ajiply «o aH to ilLsuliargo 

iniirth'iigi' to K. in lii.s lifL-tiuii! havinj,' lioun left tin.' notus as cIiIit oltiigation.t. 

to tluMi), anil having also found that McL. Thi M< rrhuii/x' /{aitk v. HI irfiiii/, I li. &(',., 4^Q. 
intril in iH'i'feot gnoil faith, tiie Coui't rufiiHi;il to 

dLstuih tia vtidiLt. Ifl, Promissory note delivered up ns paid 

McKeirJr ,1 ul. V. Mrhaii e.t n/., -JOld., 324. by mistake -Evidence of mistake admissible 

—Action maintainable upon the note- In an 

13. Xote pujubic in currency -Currency 

of country where payable -Thu notes wcro 
(Icclaivd on a.s payalik' in I'nitt'd .States currency, 
wliile till' evidence slio\»ed that tliey were pay- 
able in ciniency. 

/fi/il, tiiat a.s they wei'e made payaltlc in tiie 
United .States, and tiio word " currency " in that 
cii.sc woidil be held to mean curiency of the 
United States, tlic variance was not material. 

Furlho; that the objection if available sliould 
have been pleaded. 

Suullii r 1 1 al. v. Wn/larti et al., 
'-'OX. S. R., (8 R. &(;.), -.00. 



adjustment of accounts lietwecn phiintitl' and 
defendants a promissoiy note made by defend- 
ants in favour of [ilaintilf was delivered up to 
them with a receipt in full indorsed upon it and 
signed by plaintill. Inuuediately after the ad- 
justment the plaintitl' discovered that a mistake 
had been made in the settlement and at onco 
applied to have it rectified. This was lefused 
and he then brought action on the note. On 
the trial the defendants produced tiie note uiuler 
notice to iiroduce, and the plaintill' having testi- 
fied that he had put the indorsement on under 
a mistake tendered evidence of the mistake 
itself. The Judge rejected the evidence aiul 
Atlirnied on appeal to the Supreme Court of : also evidence of wiiat one of the defendants had 
C'""i«li''- said wh'jn informed of the mistake, and charged 

Wallacry. Sou/lin; d V. L. T., 210. the jury tliat phuntitl's only remedy, if any, 

t was in Ei|uity. 

14. Order conditional— Proof of Condi*' ^^''''' ^^''kins, J., (IUiihHi,,/, tiiat tiie evi- 

tion— New trial— (.'harles IVescott drew on j '^'^"''''-'*'''""''"i"'^''''"^""'e'-''''vcdand that |)laintiflF 
plauititl' in favor of defendant the following : ^""1"' maintain an action at law upon the note 
order : " Please pay Henry Chapman, or order, ' "* ^*'''l '^*' l>roceedings in Ecpiity to rectify the 



the sum of forty jMiunds currency, payable out ' mistake. 

of the first moneys received by you on my ! 

ftccount." Plaintitl' accepted by indorsement in | 

the following terms : " Accepted to pay when I I - 

collect a sufficient amount out of .Mr. l>rescott'.s ' ^ executors of a deceased insolvent for pro. 

! ceeds of goods sold— Plaintiff s consigned goods 
to the defendants to be sold and the proceeds 
handed over to D. S. D. S. being indebted to 



Atkiii-ion V. Gould H al., 2 N. 8. D., 482. 

17. Promissory note as set off In action 



debts to pay the .same.' Defendant chiimed, 
in adjusting accounts with plaintiff, that the 
plaiutitr should credit the amount of the order. 

Held, that without proof of money of Pres- 
cott's having come into the hands of the 
plitintitt' he could not be made liable for the 
amount of tiie order. 

New trial ordered where the testimony of the 
parties was contradictory, and the writings pro- 
duced corroborated plaintiff against whom the 
verdict was found. 

Fvlkrton v. Chapman, 2 N. S. D., 470. 

15. Payment, priority of— Applicability of 

equitable doctrine— The note sued on, with 
others, was given to M. to assist him in his busi- 
ness in Halifax, and was indorsed by him in blank 
and given to the plaintiflFs, not for discount, but 
to be held by them as security for advances. 
Accounts were put in shewing advances amount- 
ing to §95,000, and resulting in a balance of 



defendants gave to them a promissory note for 
the amount and died leaving his estate in an 
insolvent condition. An action having been 
brought by the executors of D. S. in the name 
of plaintiffs to recover the amount arising from 
the sale of the goods, 

Hdd, that defendants were entitled to offset 
the amount of the note given by D. S. 

Chisholm et al. v. Chisholm et al. , 

3 N. S. D., 85. 

18. Renewal— Promissory note— Estate of 

deceased partner held liable for unpaid bal- 
ance after lapse of four years, the estate not 
having been settledand no prejudice appearing 
— Laches— Novation — Parties to proceedings 
in Court of Probate— Defence of non-present- 
ment must be raised by answer or counter- 
allegation — Plaintiff deposited the sum of 



231 



BILLS OF SALE. 



282 



S949.55 with the firm of W. I. & Hon, on whioh 
interest was paid annually, and received as an 
acknowledgment the promissory note of tlie firm 
for the amount, dated July 1st, lS7t), payable 
one month after dale. W. I. died in July, 1880, 
after which the business of the firm was con- 
tinned by C. I., the surviving partner, who was 



19. Renewal of note— Action on original 

—Before maturity of renewal— At the mi'.tiuity 
of defendant's note to plaintiff for iJ'iti.S.T") the 
defendant gave plaintiff a renewal note for Sl'iO, 
and promised to pay tlie balance in cash next 
morning, which plaintiff said was all riglit, but 
on the same day the original note was sued, 



also executor of the estate of the deceased. In - plaintiff still liolding the renewal note, which 
July, 1882, C. I. wrote in the name of the firm i was a negotiable instnnnent. 
to i)laintiff enclosing the amount of interest I Hdd, reversing the decision of Johnson, J., 
then due on the noti^ and suggesting that if [ that the plaintiff could not recover on tlie note 

sued (in. 

Murray v. Oastoiiguay ef a/., I H. & (i., :il9. 

20. Two mailers— One dies before trial- 
Appeal taken against judgment in favor of 
deceased without suggesting his death — An 
action was brought on a promissory note against 
tlie two makers, one of whom was dead at tlie 



plaintiff i:onchideil to allow the money to remain 
in their hands he had lictter have the note re- 
newed as it would bo running six years tlie fol- 
lowing July and there was some doubt wliether 
or not the payment of interest would keep the 
note in force over six years. 

In conseiiuciice of this plaintiff delivcicd up 
the original note and received in return a new 
al 



note similar in all respects excc))t the date and time of the trial. A verdict was found in favor 
a slight difl'crciice ill the amount. In Kcbriiary, of the deceased defendant, but again.-it the 



1884, C. I. failed in laisiuess and plaiiitiH' filed 
an attested claim against tlie estate of W. I., 
the deceased partner, for the balance due him, 
four years having elapsed since the death of 
W. I. 



other maker of the note, and a rule to set it 
aside was taken out on the jiart of the plaintitf, 
naming both the makers as defendants. 

As there was no such cause in existence, one 
of the original defendants being dead, the rule 



Jl/il (1). That plaintiff was entitled to claim was discharged with costs, 
against the estate of the deceased partner, not- (/anna it ul. v. X>ihj «/ al, 2 R. & (1., ISO, 

withstanding the delay, the estate not having : 

been settled in the meantime and it not appear- 

ing that those interested had been in any way 
prejudiced. 

(•1). That in the absence of proof of an express 
agreement to that efl'ect. the facts ami conduct 
of the parties would not warrant the inference 
that plaintitf, in taking the new note, intended 
to discharge the estate of the deceased partner. 

('^). That there was no such introduction of a 
.stranger into the contract, or new term or con- 
dition incorporated into it as to create a 
novation. 



BILL OF L.VDING 
Su. SIIIFPIXG. 



BILLS OF SALE. 



(4). That the Court of Probate had jurisdic- 
tion to decide on plaintiff's claim, notwithstand- 



1. Acts 1883, c. 11, s. 1, rcqiilring affl. 

davit to accompany bill of sale, but containing 
no negative words, and silent as to effect ot 
non-compliance— Act held merely directory— 



ing tliat the sxirviving partner was not made a ^ ^^^-^^^^ ^j^^ j^ „ot ^ creditor cannot avail 
party to the proceedings. \nma^\i of fraud-In an action for the rccovciy 

Quatr,-, whether the surviving partner could „f .,, i,^,.^,^ aefendant relied on a bill of sale from 



be made a party to proceedings in his own right, 

(5). That there was sutficient evidence to estab- 
lish the claim without proof of presentment of 
the note at the i)lace where it was made payable, 
but if that were necessary and the executors 
wished to rely on such a defence it should have 
been raised by an answer or counter-allegation 
which the practice of the Court of Probate 

allows. 

i?e Estate Ives, ex parte CamphcU, 

7 R. & G., 108 ; 

7 C. L. T., 146. 



J. A. W., a former owner. 

Plaintiff', who ha<l purchatod the horse, with- 
out actual notice of the liillof .sale, from 1!., »ho 
purchased from J. A. W., relied on the fact 
that the bill of sale, when registered, was not 
accompanied by an affidavit of the party giving 
the same, or his agent or attorney, as reiiuiicil 
by Chapter 84 of the Revised Statutes, 4tli 
Series, as amended by Chapter 11 of tl'u Acts 
of 1883, section 1. 

Tlie section of the Act requiring the affiilftvit 
contained no negative words, and was silent as 



233 



BILLS OF SALE. 



234 



to the effect of the want of the affidavit on the 
bill of sale. 

Hfid, that the words of the Act were merely 
directory. 

Aho, that even if the bill of sale was fraudu- 
lent, as was attempted to he shown, that would 
be of no avail to the plaintiff, who was not a 

creditor. 

Mcliride v. Ward, 7 R. & G., 115 ; 
7C. L. T., 148. 

2. Bills of Sale Act-5th R. S., Cap. 92, 

Sec. 3, not applicable to foreign contracts — 
The plaintiff company leased a sewing muohine 
to McB. at Belfast, Maine, taking a bill of sale 
by way of security. The lease was made upon 
a written imdertaking that the machine was not 
to be removed from tl'o liouse in whicii it was 
pLiced without the written consent of the com- 
pany. Mel?, subsequently removed to Truro, 
N. S., taking the machine without having ob- 
tained .such written consent, and pledged it at 
Truro to the defendant. 

Plaintiff having bronglit an action claiming 
the return of the macliine and damages for its 
detcutiini, the ground was taken that the plaiii- 
tili's bill of sale bad not been registered in this 
Province in compliance with the requirements 
of the Revised Statutes, c. 9'2, s. ,S. 

JIi/il, tliat the provisions of the Act relied on 
were not applicable to a bill of sale made be- 
tween ])arties and in respect to a subject matter 
out of the Province. 

Al-^o, tliat tlie removal of the machine to this 
Province without the plaintiff's consent was an 
act of trespass, which precluded any subse()uent 
(lealiujis witii it on the part of the lessee from 
affecting tlie plaintin''s right. 

SliKjisr Seiriiii/ Machine, v. McLeod, 

•20 X. S. R, ; 

(8R. &(i.), 841 ; 

»C. L. T., (iO. 

3. Rill of sale of logs from one tenant 

in common to third party— Verbal agreement 
between workmen of other tenant and third 
party as to ownership of logs cut — IMaintitl' 
cl^i'.aed to be owner of certain logs under a bill 
of sale from his fatlier, (J. M., who was tenant 
in connnon with the defendant of the lands on 
wliicii they were cut. The trees from which the 
logs were cut had been felled by personsemployed 
by defendant to perform that service, and the 
logs bore liis nuirk. Plaintifi' relied largely on 
an agreement wliieh, he contended, was made 
l)et\vcen the workmen of both parties and agreed 
toby defendant, to the effect that whatever logs 
each of the parties " fixed " they were respec- 
tively to retain. Defendant and his son denied. 



and there was no evidence to show that he had 
ever made or sanctioned any such agreement. 

Ile/d, that as defendant's right to the logs cut 
on the land by his laborers could not be affected 
by an agreement between the workmen, plaintiff 
derived no title under the bill of sale, and having 
had no legal possession of the logs sued for, the 
rule for a new trial must be made absolute with 

Mitchell V. Lauf-., 1 N. .S. T)., ,'>18. 

4. RIU of sale of after acquired property 

j Xoriis arlii-^i iiit<rr(')ii( lis — Equitable title can- 
i not be set up by plaintiff in replevin — Plain- 
tiff replevied from the Sheriff of Halifax 
County property seized under execution as the 
I property of one Baldwin, and claimed title 
! thereto under certain l)ills of sale ccmtaining 
provisions that made the conveyances applicable 
' to after acquired property. The goods were all 
ordered by Baldwin after the date of the bills of 
I sale, and nothing had been done by plaintiff by 
{ way of asserting a riglit of possession. 
i Hi III, tliat in the absence of any nonit artict 
i)ifi rrciiiiiin, plaintiff bad not the legal title, and 
that he could not, in this suit, rely on an equita- 
ble title. 

O'KtUx. R>n, 4R. &(;., 419. 

I 5. Defects in aflldaTlt accompanying — 

The affidavit attached to a liill of sale under 
wiiich plaintiff clain\ed tiie return of oertwin cat- 
tle taken by the Sheriff under execution j)urpor- 
;ed to l)e swf)rii befrne a .Fusiice of tiie Peace 
and was signed by the Justice, but not by the 
grantor. The bill of side having been executed 
under the Acts of ISS;^. 

Hild, that it ^^■as not avoided by reason of 
defects in the affidavit or ))y want of an affidavit. 

Siovomli V. Mor.si:, 20 X. S. R., (8 R. & (;.), (iO. 

6. Evidence -Property mixed — Replevin 

— Wbei'c plaintiff replevied certain logs fronj 
defendants under a liill of sale, and among those 
rightfully belonging to him were a number be- 
bmging to defendants, which the latter had 
mixed up witii them under the belief that they 
were all their own. 

//(/(/, that there should be a new trial, in order 

that defendants might have an opportunity of 

proving what i)art bebmged to them, and what 

to the plaintiff. 

I Sffn-art v. Wheeleril «/., .S X. S. 1)., 414. 

1. Filins— Delivery at Registrar's house 

— Neglect to index and mark —Effect thereof 
— Removt'.l from ollice— Attachment of goods 
during such removal— Replevin against Sheriff 
—An assignment was made to plaintiff for the 



23; 



BILLS OF SALE. 



2£3 



benefit of oreilitors, wliieli the iissignei', having 
taken ])ii!<sessi(in of tlie estiite anil clients, deliv- 
ered to the Kegislrar of Deeds at ids lionse, at 
3 A. M., with instructions to record it as a deed, 
and tile it as a liill of sale. 'J'lic Re;L'istrar did 
not Diarli it " tiled," or tile it as a liill of sale, 
or niind)er, enter, or index it in the hoolt kept 
by liiiu for entry of liills of sale, but recorded it 
in tlie usual way as a deed of lanil. It remained 
in his otlice until Decendier .">, wlien it was, willi- 
out any instructions from jilaintitl, sent Ijy mail 
to tlie residence of the plaintiff', wlio was not 
then at lionie, and wiio did not ])ersoiially learn 
that tlie deed had been returned until the (ith 
January. On the Otli January plaintiff returned 
the deed to the Hegistrai'. In the interval, the 
goods weie seized under an attachment issueil 
on the "ilind Decendiei', and an execution upon 
a judgment olitained "Jud January against the 
assignoi'. 

//(/(/, that the assignment was of the cl.iss 
re(iuiring to be tiled under cap. S4, H. .S., 4tli 
series, that the ilelivering of the in.strument at 
the !iegistrar"s iiouse, witli instiuctioiis to file, 
was suliiiient ; tliat tlie removal of tlie deed 
from the office could not, inider the cii'cum- 
stances, be taken advantage of by an atlacliing 
or execution creditor, who knew of its having 
been in the otliee ; and tiiat re))levin for tin: 
goods could be maintained by tlie assignee 
against the Sheritl'. 

Fi'yiiir v. /Si^hoji il a/., .") H. it (>., 4.")1. 

8. Filing- Kctiiiirements as to fliiiig and 

aftida v'its Construction of Acts of 188;i, c. 11, 
s. 1; cf. 5th R. S., e. 92, s. 4 W. Met;., (). 
Mc(i., anil \. !<.. of Yannnutli, traders, by 
deeds of assignment (A., 15. iV ('.) assigned to 
plaintitV all their real and personal estate in 
trust for creditors. 'I'lie assigniiieiit A. was 
niaile for the general benefit of creditors, and 
the assignments 15. and ('. for the benefit of 
certain preferred creditoi's, the residue only, if 
any, being assigned for the lienetit of creditors 
generally. IJearing even date with the assign- 
ments, the assignois executed se|)arate bills of 
sale of their res|)ective peismial property (I).. K. 
and I'M to the jilaintift', subject to the trusts 
contained in the deeds of assignment. None 
of the deeds of assignment were tiled with the 
Registrar of Deeds at ^'ailiiouth ; the bills of 
sale were tiled, but were not aeconipanied with 
affidavits under the Act of 188.'}, c. 11, s. I, 
(R. S. ,"ith series, c. 9'2, s. 4). Defendant, as 
Sheriff of the County of Yarmouth, levied on 
the jn'operty included in the bills of sale and 
assignments under executions placed in his hands 
by judgment creditors. 



//*=/(/, atiirniing the judgment of Thomp.son, J., 
Weathei'be, .T., (Us>ti iiliiiij, that the assignments 
referred to in the bills of sale K. and L'". , setting 
out the considerations and trusts on which they 
were made not being of the character of defeas- 
ances, and it suthciently appearing that no 
interest reir.ained in the grantors, and that the 
sales and assignments weie made for tlie benefit 
of creditors, such assignments were iiot reiiuireil 
to be tiled as part of the instrument of transfer. 

/'(/• Thciiip.son, J., in the judgment afhinied : 

(1.) That neither the bills of sale nor assign- 
ments rei|uireil to lie acconi)ianied with the alli- 
davit jirovided for in Ac' ' of )88.'{, c. 11, s. 1, 
that enactment only applying to bills of sale fur 
securing debts or advances. 

('!.) Tiiat the assignment A. did not reijiiire 
to l>e tiled, as it was an assigmneiit for the gen- 
eral benefit of creditors. The assignnients 15. 
and C. were liable to be defeated by execution 
creditors, for want of tiling. 

(.S. ) That the assignnients ]>. and ('. imt 
being in the nature of defeasances, which are 
reipiired to be tiled, and the bills of sale IC. and 
F. biMiig absolute conveyances, and fidly exjiiei-s- 
iiig all that was material to their character as 
such, the ])rovisions of the Act in reference to 
tiling were substantially coni)tlied with, and the 
Sheriff was not jiistilied in levying upon or sell- 
ing any part of the property includei! in the 
assignineiit A. or the bills of .sale K. and V. 

(4.) The assignment \. was gooil witlnmt 
tiling, and 1). was only auxiliary to A. 

]),ifb< V. /■///(/, 7 R. >V- <;.. 4S7; 
8('. L. I'.. 19. 

0. Fraud In, matter wholly for Jury \\ lan 

ipiestion of fraud arises on a liill of sale tn a 
creditor, it is exclusively for the consideratieii 
of the jury. 

Tarriiii \. Sdir,/.,; 1 Thmn., (1st Hd.). 'Jd: 

C-'ud Kd ), -W. 

10. Fraud against creditors -In an action 

of replevin again^ct the assignees of one 1).. tn 
I'ccover certain goods claimed by plaintitV uiicier 
a bill of sale made mole than thirty days liefoie 
his iiisotvency, the. fudge of the County Court 
found for the ilefeiidants on the ground that the 
bill of .sale was given in eonteiii|)lation of insol- 
vency, and was an imjust jirefereiice, having the 
ertect of iinpeding, olistructing and delaying 
creditors. 

The decision of the .Ttidge being borne out l^y 
the oireunistances attending the insolveiicy, ana 
the relationsliip existing between the parties, 
iHul the Judge below having had the fuitlier 



237 BILLS OF SALE. 238 

iii.viiiitiicc of liciiiinj,' ami seeing tlie witnesses, goods conveyed under a liill of sale. Tiie su.m- 

tlif (inirt refused to distiirl) tlie tiuding. niary ]>roeeedings tiierein provided for are ol ii- 

J'iiiio V. (Iar(v.u il a/., '_'0 X. S. R., gatory only in tlie ease of duties devolving on 

(8 R. & fl.), '24!) ; ' the iissignuu by virtue of the Act. 

S ('. L. T., 4(M». /'iiiio v. il(irn:a <t a/., (J R. & (1., 487. 

If. Fi niidiilrnt consideration -To an aution i 14. Grantee not affected bj notice to 

of trcivi'i iigainst defendant, as Slierlti', for goods grantor of an execution outstanding, where 

mIzimI iindrr execution, ilefen<Uinl pleailcwl at- made bona fide and for valuable con.sideration 

talking a transfer from tlie execution delitor to — Affidavit -I'laintiff claimed a horse under bill 

tlir |il:iintitl', his fatlier-in-law, us fraudulent, of sale from McL. , which was taken liy the 

'I'lic transfer was by bill of sale niatle on the slierill' under execution. At tlie time the bill of 

(lay mi vvhich tiie sumnioiis in the I'ause in whicli sale was niaile and tiled the sheritl' had tin; writ 

till' CM cutiiiii was aftei waiils issue(l was served of execution outstanding in his hands against 

"11 ijji- ililitiir. It was made without the know- McL., of which the latter hail notice, but no 

IciIlt nr 'ipusent of the plaintitl' in the absence levy hail lieen made, and it was clear that the 

of iiiiy person repicseiiting him. ami the eon- bill of sale was received by iilainlitl' huiitt jiile. 

sidciaiiiiu was ,i delit alleged to have been incur- for valuable consideration and without notice. 

nil siiiiif nine years before for board to the llild, that the title of the jilaintitr was not 

ililitnr'> uitc and children, and sundry articles affected by the notice to MiN. ; IIdIkdh v. 

ami Mivires such as a father might naturally Thilii'^^iiii, L. R., 'J (,). !»., ti4"_' distinguished 

(.iiiilrilnile to his daughter's coinfoi't without \ Al-"! sustaining the judginenl below, — 

cxptiiatioii of jiaymeiit. (I.) That the only amount i'ei|uiied to be 

ll'hi. that the verdict establishing fraud in sworn to in the at!ida\it is the actual amount 

the transfer could not be set aside as against secured, not including the nominal considera- 

oviilniic, tion, and 

Mrhniinld y. l'( i-'iiix.iiiii^ 1 R. A:(i., 7l>. (-.) That the omission of the description of 

the occupation of the defendant from the body 

12. Fraiidulpiit 13 Kiiz., c. .1 -27 Ellz., "'' "'" ""'''■•''*' '"^ "'" ''' ^'''''^ ''"*'"'''• *'"' ""''''^''^ 

0.4 The owner of a horse made a fraudident '""'.^ "'^"l'' ">'t "H'ourt. 

l.illof sale of it to his son. the ilcfemlant, for Cn„„u,,ihaM v. Mo,:., .'H\ X. .S. R., 

tlir purpose of protecting it from the claims of: ''^ '''• '*' *'■*• "*^- 
cn^ilitnis. Defendant took delivery of the horse 

and atiii wards .sold it. sub.se<|uentiy to the l.i. (irantor remaining; in i)os.scsslon — 

fmiviyame to the defendant. l>iit before the Posse.S8ion to sustain replevin — I'laintilf 

saiil sale, the father conveyed the horse, by a liroiight replevin against defendant, a sheriff, 

hill nf s.ile, to his daughter the jilaintitf. for a for goods taken on execution but claimeil by 

liilit l.iiiiii n'lh due fiom him to said plaintitl'. |(l.iintilf umler a registered liill of sale from the 

111 ail action of trover by the daughter against party against whom the execution issiu'd and 

the -oil tortile alleged ' cinveision of the horse, who was sntfered to remain in possession. 'I'he 

■hill, reversing the decision of tlu' County priiici]ial iiuestion on the trial was tln^ /ci//"//''/'-* 

Cinit, that although the lirst conveyance was of the bill of sale, and the jury having found for 

fiaii.lulciitly made to defeat the rights of ci-edit- t\\r ))laiiitill'. 

"I'saiKJ was Void as against them, under l.'l l'',liz., //>/'/, notwithstaiuling suspicious circumstaii- 
•'. "i. till' grantor could not imparl any title to ces, that their verdict eould not be set aside. 
t!if plaiatitf. who coidd only appiopriate it to .l/«<, that the plaintitf, who had had a .syni- 
llif >alist'action of her claim by virtue of some bolii; delivery and had a right to immediate 
lif-'iil j>!icess, and that the )>laintilf eould not possession, had siitlicient jiossession to maintain 
attack the conveyance under 'Si Mli/.., c. 4, as the action. 
tliat ilid not apply to pi rsonal pio|)i'rty. MrXdh v. Sdiri/i r, ,'{ X. S. I)., ;]H. 

Vimiig. ('. .1., and DesRarres. .1.. ,lissn,liti<i. 

Mono V. Moorr. I R. \- <!., .vj... ^^^ (jp„„t„p representing property as his 

- Plaintiff making similar representations - 

13. (irantec under, may bring replevin Plaintiff estopped from recovering from 
again.st assignee under Insolvent Act of 1875 - grantee Defendant accepted a bill of sale and 
• wtmii l'2."» of the Insolvent .\ct of IST.'t does received delivery of a horse, cart and harness 
lint prevent an action of iei)levin against an from McC. to seeme advances made on the 
assigiiei. in itLsolveiiey to recover possession of faith of representations by both ))laintilT and 



289 



BILLS OF SALE. 



240 



Mi;('. tliiit llic |)i'ii|i('rly wii-< lliiil "f McC, iuid 
tliiit |iluintiir IiikI iki chum to it. 

//'/(/, that clefciiiliuit hail a linht tci retain the 
property, at all t-venls until he was paicl. 

(Mn- V. f V(;v// (/ «/., ;{ \. S. I)., 7<l. 

1«. Hiring leuHc or aKrrcmciit for sale 

Construction of 5th R. S., i;. 92, s. 3 Latlies 

- In MM ai'lion (pf trover for a pair of oxen the 
leaified .Tuil.ue of the County Couit founil the 
following facts: ( '. II. I>., the owner of the 
oxen in ilispiite, deliveTcil tht'in to II. under an 
aj,'reetnent that the latter \sas to have theii' use 
for a year or more for their keep. H., pri'teiid" 
inji to lie the owner of the cattle, oxecuteil a hill 
of sale of iheni to the defendant, who perinitteil 
If. to remain in pos.session. H. afterwards re- 
tuined the cattle to < '. II. I)., the owner, « lio 
then srdd them to pliint ill', who was a hoiia jii/< 
puieha.ser for value without notiie. 

/{•ill. l)er McDonaM, ( '. .!., that there lieihg 
evidenee to sustain tile (inclines of the .liidge 
lielow, or the evidence on the part of the ilefiii 
dant not lieing of a ciiaracter to induce tiie 
Court to iitverse thcni, the ai-rangenu'Ut iriade 
liy C. H. I), with II. was not a hiring lease or 
agreement for sale within the letter- or the spiiit 
of th.' Kills of Sales ,\.-t, c. (C_>, .".th It. .^., s. :{. 

/'(/• Weatherlie, .1., that though the evidence 
for the ih'fciidant as to liic terms upon which 
the cattle weic held hy H. was of a suspicious 
character, it would ha\e necessitated tjie giant- 
ing of a new trial h.iil not the ilcfcndant, liy 
])erniitting the cattle to remain in the possession 
of |)Iaintifr for IS months after the puTchase, 
caused the latter to alt-.-r his jHisition hy incur- 
ring <'\penditure in regard to them and liy lieing 
prevented from taking steps Iokccuic the return 

of his nKincy. 

A< (/■/.< V. IhiiloK, 7 K. vS: C, 2.'r> ; 

7 C. L. T., .TJ.t. 

18. Iliriii;; or sale with rlKht to iiurrliasc 

Not a 1)111 of Hale Does not re(iiiire to be 
filed -Usury -C. I', olitaincd a piano from I.'. 
& S. on hire, with the privilege of purchasing it 
for .S't.''t>, liy paying certain instalments within a 
cei'tain time. .Among other conditions of a 
written agreement ent»'red into liy C. I*, at the 
tinu' of reiciving the piano Wei'c, that it should 
remain the property of I'. ,^ S. until fully Jiaid 
for, that in default of any instalment they 
might resunu' possession without jirc^vious de- 
mand, and that C. I*, should pay interest upf»n 
the purchasi' money at 7 per cent. C. I*. |>aid 
only two instalments amounting to .SI.V), and 
then became inBolvent. On I'. & S. eltiiniing the 
piano, they were opjxised by H. I..., a creilitor 
of C. P., who claimed uuder an asHignment inude 



to him by C. I', as secui-ity for his debt, ami 
rei'ei\cd by him without any knowledge of this 
agr'eemcnl with I'. i\: S. This assignnn'Ut was 
duly tiled and registered. The .linlge in Insul- 
veni'V ilecideil against the ilaim of I'. <V S. 
upon the groinids that the agreement with lliein 
was void foi' usury, interest at 7 per vv\\\. bein;^' 
provided for; that having left the |»iano in ('. 
I'.'s jMisse.ssion after tlu^ time for his i)aying for 
it h.id expired, they could not set up their ciaiiii 
against a tiniiii llili pun-liaser, and that lln'ir 
agreement should hiive been tiled and regisleicil. 

On appeal to the Supreme (ourt, 

//'/'/, that thi' I'sury Statute did not ,i|i|ily 
at all, as it was not the case of a loan but n iipn 
ditional sale ; that the claim of I', it S, w.imiuI 
Jirejudiced by their not having taken inuk ihc 
piano ,is soon as the lime was u]i ; that ('. I'.'s 
agreement with them, not being in tiie natiiie 
of a bill of >ale, did not rei|Uiie to be I cgis- 
tered, and that I', .'i; S., should ha\e Ijie piiiiio 
on paying to II. I,, the aniount they iiad rv- 
ceivcd on its account from ( '. I'. 

When oblaining the rule ///•« fidiii tiic .Iml^'c 
in Insolvency, I'. »t S did not produce the 
original agrei'Uient of ( '. I'.'s with them. 

Ill hi, that tliey were not i..,reby piecliiilcii 
from producing it at the arguiiient of ilie iiili; 
or aciiiunt ing for its nonproduction. 

In iIk nirin.rnf I'l/b , W \. S. D.. :((•.'. 

W). PrtTerrnllal ConNidcration Fraud - 

Assignor eontinuing in po.ssession I'ret'eren- 
tial to a bona fide creditor valid \\ In ii iIh' 
consider alion expressed on the face of an as!^i>.'ii 
incut is larger than the actual ibdil due liy \\v 
delitoi- to the assignee, it is not nece»Muily 
fraudulent. 

The ile(!larcd intention to exclude any cinii- 
lor or class of credilois, will not icndci- such an 
assignment invalid. 

I The assignor continuing in possession of thi' 
I goods assigned is not a conclusive badge ol fiiUiil. 
I'raud or no fraiul is a question that liclnn).'s 
i entirely to the jury. 

T'liidlf v. Siiin/ir, I Thoni., (Isl Ivl i., '31 ; 

C.'iid l'A.),Mi. 

20. Property granted by bill of sale- 

Then assigneil Sold by assignee at auction- 
Replevin against assignee without making 
purchaser party I'laiiitill' held a bill of sahnf 
a pair of oxen from .McL., the owner, win) cmi- 
tinned in possession, the bill of sale beiiii; ilul) 
recorded and upheld as valiil by tiic jury. 
After making the bill of side, McL. was arrested 
at the suit of defendant, and, on sweaiiiig mil 
, of jail, assigned the oxen to the dufendunt, who 



241 



HILLS OF SALE. 



242 



sdlil lliciii at iUUt'iMi In \V. ; \vlicifii|)iiii III); 
plaiiiliil', iiiidiT a writ rif replevin ii;,Miiisl 
(IctiiiiliUit, look llic oxen (iiil of tlif poNSi'Msioii 
cpf W.. who WHS no parly to the suit. I'luiiitiH' 
liiiviii^' olitaiiicci a Vfiiliit, tlii^ Coiiil nvt tin; 
Miili< t aside with costs, iioiisiiitcd thf plaiiititi', 
tivitij,' tiic dtfftidant the costs of action luit not 
of trial, and din^tcd th(; liond to lie put on tile, 
sulijcct to the order of the; < 'ourt or a .Judge. 

/-'WSTC V. /{nin, ;< |{. .<t ('., (11. 

'it. l'()Kscs8ion or Kninteo ConNtriictlon 

of Revised StatuteH (4th series) chap, 84 
('hiiplcr SI, of the |{i'\iseii Statutes (Ith series), 
"Of th<' prevention of frauds on creditors liy 
se<n't iiiils of sah'," section I enacted that 
"ivery liill of sah; • « • wliereliy the 
ii>>iL'Mec shall have power * * " to lake 
pii-scssion of any property * • ♦ .shall he 
lilcd »ilii the l<e;{istrar of |)(;edsof tin; Comity 
* * ' ritherwise such hill of sale as against 
" * * sherili's • • * seizing tin; property 
iinilci- proios of law, shall only have priority 
and lake eli'ecl fioin the time of the tiling 
lliirciif." ' 

ll'/il. not to apply tti a case wiiere the' 
(iiMiilce, micler a liill of .sale not tiled, had gone; '< 
into ait iial possession of the properly jn'ior to J 
the seizure liy the sherilf. 

Mrhai, V. Jii// It a/., :> H. iV: <;., ]->H. 

22. Shipping Levy by creditors on Nbarcs 

of unregistered owner Bill of sale by regis- 
tered owner Fraud and collusion Evidence ] 

\V. S, and 15. iV !•". S. piocured supplies from , 
panics in ,S|. .lohn, X. It., and llalif.i.x, N'. S., 
to he used ill , ;e ci.:islruction of a vessel, 
vvliiili. iifief her <-oinplet ion, was registered in 
llic name of I!. S. ; to the parlies in St. .lolin, 
\\'. .S., and to those in Halifax, I!. ,S., wlio.si; 
iiiiiiic alone appeared upon tin; register, was 
iipicseiiled as owner. Actions were liroiighl 
liy the SI. dohu creditors against W. S. for the 
giii'ils supplied on his credit, and judgments 
<ihliiiiiiil, and executions issued, under which 
llic Vessel was levied upon and sold as tlu; pro- 
]iiity iif \V. S. While |lie vessel was in the 
ciLsliiily of the sherilV, and prior to the sale, 15. 
S. executed a liill of .sale in the form reijiiired 
liy the Act to the plaintill", one of the Halifax 
criiliiciis, who immediately had the .same regis^ 
tciiil. and received formal delivery of the vessel 
fimii I!. S. The Hherill' sold all the interest of 
^\. S. ill the ve.ssel to defendant, and delivered 
I' hill of sale of the same which was not 
rciiiiilid. I'hiintitr thereupon hrouglit an 
action of replevin, which eame on for trial, but, 
in conseiiueuce of the length of the eauHe and , 



insntlicient time, could not lie condudeil. At 
the suggestion of the presiding .Indgi' a rule was 
entered into, by which it Was agre(;il that a 
verdict should pa.sH for )>laintitr, with power to 
the Court to d(;terniiiie and draw tin; same infer- 
eiiees fifim tin; evidence that a jury might do, 
and either enter a verdict for p'aintiiror defend- 
ant or ord(;r a non-,snit, as they might think lit, 
and also w ith power to determine the ei|uitieH, 
if any, and to order a sale of the vessel and 
payment of tin; |irocc<;ils into court to abide the 
juilgment. 

//</'/, first, /iif Sir \V. ^■oung, C. .1., Des- 
r.aires and l)oild, .M., (.Johnstone;, K. •!., 
ilDiilih'ini, ami Wilkins, .!., ili-isi iiliini), that 
15. .S., being the registered owner, was not pre- 
cluded by the levy of executions against W. S., 
fiom giving a bill of sale to the plainlitV and 
transferring to the latter a possession siillicient 
to support replevin. 

Al-iii, under till; authority of L'tin v. />(>r-<ui/, 
I Old, ,'i7."i, that replevin would lie. 

.Second, /iir Sir \V. N ouiig, ( '. •!., .lohnstoiie, 
K. .1., and l)esl5arres, .1., that the registry of 
tin; ve.ssel )it;ing only /irinin. j'(ici> evidence of 
t it le, and there li(;iiig evidence of fraud and col- 
lusion b(;tweeii \V. .S. and 15. .S. in regard to the 
registry in order to defeat tin; creditors of the 
fnrnier, that under the eiiuitable powers loii- 
ferr(;il by the rule the Jiarties atrecled by the 
fraud should be restored to their just ri'lations 
to the vessel, and tin; St. .loliii and Halifax 
i;reditors In; ailniitt(;d to a ralalih; )iarticijiatioli 
in the pioceeds. 

/'' ;• Wilkins, . I., that to draw inferences of 
fraud, uiili;sK they art; irresistible in their char- 
acter, for the purpo.se of annulling a registered 
/iriiiKi jHfit tilh; to a I5ritisli ship, is beyond 
any jndii ial competency. 

Pi r Dodd, .F., that fraud was not sulliciei.tly 
proved to avoid the /iriiiinjhiii title conft'rred 
by the registry. 

(;,■'! Ill V. /,'i,l,ir/yi,ii, •_> >■'. S. I>., -Ml. 

2.3. Stilpping No bill or sale made by 

owner on selling Still not liable on aetion for 
lo8H of cargo after sale Where a part owner 
of a ship soil! his share to the other jiart-owner, 
and no bill of .sale was exe(;uted at the time, nor 
was any entry of the transfer made on the 
register, 

//(/il, in an action brought against him for 
the loss of iron shipp(;d on board the; ves.sel after 
such sale, that he was not liable. 

FowliT V. Jiordin, Cochran, 79. 

24. Shipping Rights of Judgment credi- 
tors aa against assignee where no bill of sale 
under Merchants' Shipping Act— Execution — 



243 



BOND. 



244 



Replevin— W. II. M. miido an iiKsignmcnt to' 
plaintitT f<ir tlie benefit of lii.s cicditin-s, of lii.s 
entire propeity including' ii nunilni- of slmrcs in 
the scliooner (1. W. Mnme, liiit no liill of sale 
of tlie shares us reijuiieil hy tlie Mereliunts' 
Shipping Aet was eitlier exeeuteil or ilehverecl 
to phxintitl'. 1). iV M. having ol)taineil a jndg- 
nient against \V. If. M., issueil a writ of excen- 
tion umU'i' whiih defendant, as Siicrill', levied 
npon tlie shares iind pmeeeded to sell. I'rior to 
the sale, |ilaintiti' a]i|ieareil lu't'ore the liegistrar 
of Shii)piMg. and after making a deelaration of 
ownership was entered n])on the register as 
owner of the shares. 

llrhl. that plaintitl had no ciinitalile right 
whicii eould lie so asserted or whieli could pre- 
vail over the jmlgment ereditor ami the levy 
made hy the defend. int. ' 

Majrutt v. J'n-;lii>-'i. (i H. i^t (i.. '217 ; 
tiC. L. T., 44(i. 

25. rnccrtaint) in ilcscrlptlon Void fur 

— riaintill' elainuil a cow nndi^i- a liill of .sale 
from one M.. hy «liii'li .M. conveyed to the 
plaintitr " (.)ne red co\\ four years old, v.iliied 

Ht.S'-'l." 

//</(/. that the clescri|>tion was insullicient to 
pass the pro[)erly iu the cow, as it did not in 
any way distinguish the cow so that she cudd 
be identilied. 

Iliiijhnti v. Mr( 'o/hiiii. 
•J(i X. .s. H., (SU. .V C), -202; 
S C. L. T.. .SSI. 



BO.\KD OF HEALTH. 
Contract of iMibllc aKrnts Individual lia> 

bility for breach At a meet ing of t he inhaliiianis 
of .'"Sydney defendants were a|ii>oinleda coiuniit- 
tee to aet as a Hoard of Health, in conse(juence 
of an outbreak of smallpox. They were sulwe- 
(piently ap])ointeil as such Hoard by the Men- 
tenant-! iovernor, umU'r Uli K. .'^., e. IMI. and 
nmde a contract with plaintiii' for medical sir- 
vii'es while the disease should continue in the 
jilaee, at a tixeil rate jx r dii in. 'I'lu'y dispensed 
with his services before the ilisease had been 
eradieateil. In an action for wrongfid dismissal 
the jnry found that ))laintiH' diil not know at 
the time of the contract of the appointment by 
the Lieutenant-! iovernor of the delcndauts to 
be a Board of Health, and that the contract was 
made with them in their individual capacity. 

Ill III. thai the action was ix roiilrar/ii, that 
defendants, whether acting Infra rinx or iilim 
r/n.vof their authority as a Hoard of Health, 
w^'re to be reg.irded as ])ublic agents, not indi- 
vidually liable on the contract which they had 
made on behalf of the public, and that the liiul- 
ings of the jury were not warranted by evidence 
that the contract was iruule by defendants with 
plainlitrin the ordinary way in which a eontract 
would be made by jiidilie agents. 

Verdict for ))laintill' set aside. 

MrKiiii V. Moon .^ a/., 4 H. \ C. :\%. 



26. Wronsfiil removal of goods coverrd 

by Liability of partner foi- lortioiis act of 
co-partner — Defemlants sold a quantity of goods 
to H. who. ])revions to receiving ilclivery, made 
a bill of sale to jilaintilt's, covering after aci|iiired 
pro))erty. I'laintitVs. after the goods had been 
<lelivered, went into possession. 

The goods Were removed by one of the defen- 
dants without the knowledge of his jiartnei'. 
Judgment wa.>i given in the t'ounty Court against 
both defendants as for a wrongful removal. De- 
femlants having appealed. 

Tile apjieal was dismissed with costs. 

Shdljnril il (tl. V. Xi/.^(iii 1 1 ft/., 
20 X. .s. K., (S K. i«v: (i.), ;i2;i ; 
!(C. L. T., 02. 

See, a/,so, ASSIGNMENT. 



BLOCKADE- 
.Su SHIPPING. 



BOND. 

1. Action on appeal bond broiiglil \)i 

Clerk of License under 3rd R. S., c. 75 Defence 
did not make -Clerk not liable for costs In 
an action brought in the .Supreme Court by the 
Clerk of License on an apjieal bond |)urpoitiiig 
to be made by the defendant ami another on an 
appeal against a eonvietion under '.UA K. >■• 
c. 7.">, "')f Licenses,"' &c.. a verdict was fnuml 
for defendant on the grouiul that he hail imt 
executed the bond (Ui which the suit was 
brought. 

JIdil. that the Clerk of License was not liahlc 
for costs of suit. 

Quii.ii V. .UiuTdi/, I U. .V- ('.. ■'■'*• 

2. Action on bail-bond Burden of proof 

i — Act I equiring bond to be filed merely di- 
rectory -Effect of alteration before delivery 
— 5thR. S., c. 104, O. xliv. R., 13-In an ao- 
tirin against defemlants as sureties on a hail- 
bond, the defence ehielly relied on was that the 
bond was vitiated by material alterations made 



24.-. BOND. 246 

tliuitiii iiftfi' its fXfculioii, ami witliDiil tliu plaiiititV to pi-dvc that iliffinlaiil's wift-, who 
privily of ilofi'iiilants, l.y the erasui*' of llie gave cvidi'iicc for the clfffinliiiit as to tin' ticat- 
ilale iMcritioiicil for the a|i|)faraiice of tlie defun- ' iiit'iit of the ti'staloi' in (IclVinlaiifs hoiisi', liad 
('ant. ami tin; siilistitiltion of another ilate. lieen al).sent a !oni.'iT peiioij tlian .slie liail testi- 

//.W. alliriMing tlie judgment of liiteiiie, J., tied, and tliat lier eviileiKc was for tliat reason 
tlial llie allei^fd alteration lieing noted in tiie unreiialije. 

alli>l,ilinn rlaiise, tlie luilclen was npoii tiie de- //,/,/. tliat as tiiere was am|)le evidenee iuile- 
fiii.laiil-of siiowiiii.' ilial it was niaih'siil>se(|ueiit peiidcn. of tliat of defendant's wife to warrant 
t'l the exeriitioii of the lioiid. part liiilarlv in the lindiiii; of the jury, it eoiild not lie distiirl)ed. 
view of the faet that defeiiilants did not eall as I'liiiiiiinihiiiii v. Miihinii ii, \ \\. ic ( '. ,S89. 

a Hiliiis> tlieirown eounsel. who was an attest- 
ing' «iliie,-s to the lioml, and in a position to '*' -*t'<loil (Ml bOIld foP rallhrill (llsolliirse 
|in.vr ul„.ii the alteration, if any, was made. "''duty liy piihlie oiKcial-Fraiid Negligeiu'e 

/'.-• mirhie, ,1,, ill III.. judL'nieiit appi.aled Li'i'^ilitv of surety - Proximate eaiise — 
ficin, llial the elaiise of the statute le,|uiriuj,'^.'**''l'l"^' In an a, tion .-.Lrainst defendant as one 
luil-linii,!.-. to he lile.l is merely diivetory, ,in.l "* ""' ■"•"■'"i'''^ "" 'i '"'lid purport in^' to have 

tint fiihire t nply with it" will not Vender '"'''" ^'i^*^'" *'"' "'^' f''ithful diselmrge of the 

thclKiiHl invalid. duties of tlie aj.'ent i>f the ( iovernnient .Saviiij;.s 

.1/.,,. that assuniinu that th.. hond was altered '' '^""'^- "' Anna]M)lis, it appeared that tlie hoiid 
alterexeeution, hy niakinua ehan-e in thedate ■""' ''"' '""i'l'i^'i' "'' ju-stiliration required to 
at wliirlitliedefei'.dant was to appear, .Mieli an "''■'""•""•^ '* "'■''' ^'-""•'' ''>' "''' defendant in 
alt.ial ion, if ni.idehefoiv the hou.l was. lelivered '''""'" = ''"" 'I"' '"""1 ^'t t lie tiiii.. was without 
tLth.'Sheritr. ,ind h..fore it eaiiie into the eiis- "'■"'"■ 'I'lt'' '"' ■I'liount. .iii.l that th.' afli.lavit was 
t.Kly of tlie pl.iintill', wonhl not vitiate the l.oml ' !""^'"''' '^"'""- ''''' '"""' "''- ■■"il'''<'li'ently hll.'.l 
.jr allonl a .lefenee to th.' a.tion. I '" ^"'' ''""''l'-' •'"■ iummnt authorized l.y defeii.l- 

;>;./;. ./ -./. v. \V,„„l,r,.,-tli ./ <il.. 7 l;. ^S: <;., <m : ""*• ''"'"' '''*^ atlidavit, after havjni,' l,i.en lill..d 

-(. f^ 'I' 14^ ill- was oertitie.l as sworn l.y a .lustiee of the 

.Alliniieil on ajijieal to th.. .Siipr«.ni.' Court of ' ^''"^'''■ 
Ciiiiii,];,. Ihlil. MrDonahl, ('. .].. i/i'.-:,, ii/iii:i. that the 

\V,,nihi;,rlh r. /</,■/,■,',, |4 S. ( '. U.. 7;{4. '"""' ''''^ '"J-' ''i'*^'" ■'^•^'•'pted on th.. faith of the 

eertilicat.' of the dnstiee, and the e..rtitie,ite not 

3. Adioii on bond al suit Qiiron Kolalor !"''"^ '"r',' '"'V"'"'" ':'' •,"";':' ''>' '''•'""■'^""- "'« 

ordered to be added to be responsible foreosts '■>'"■'■ '.""''l '"" '"' "'-I'' "'^'''1<' '"• "'>' ''-'t'"'' "f 

■n 11.' . 1 1 II «■ . ' I'e olhc.'l'. 

— llieil.rlaratloii set out a lion.l to Her N ai.s- ,, .„ , ,, ,, . ,, .,,., 

ty, .oii.lition.il tor ilie ilue perfornianee l.v ,, ,. , 

, . , . , . , . ' . • () ( . L. 1 ., 4.)4. 



!)n iijiji'iil III tl,i Siijifi 11)1 < 'iiiir/ III' ( 'itiiiii/fi, 



il..f.iiilaiil .if his .liities as jruardiau of the 

(Stall, of a liinatie. Defen.Iant Jilea.led an ..iiuit ■ 

alil..pli.a,andask.'.!f..rtlie..ipiitalil.. int.ifereiu.e ^^'''l. r.'V .rsiiii: th.. judirnieut of the Court 

ef the Ciiiut. .\ v,.|,|i,.t havinj; ln.en f.nihd for '"'•""• tl>'if 'l'^' making' of the li.m.l was the 

tlcltii.laiil, an.l a rule taken t.i set it asi.le, the ''*-'"' '-'•^"■''*'' "^ ''•'< aeeeptan...., an.l the defendant 

('"lilt liel.l that before proceeding to give ju.lg- '"^''"i^' e.st.ippe.l, the Crown was ..utitl.Ml to ju.lg- 

laciit as to whether there shoiil.l b.. a new trial ""''i'- 

"!• not. the name of some person .sh.mM l„. ''■ '• '''"■''•!'• " *'• I- 'I"-- -!:'• 

iiuii.aiu...,i as r..h,t.ir, t.i be responsible f,>r ...sts «. .\clmlnlstratlon bontl - KctUm on - 



iuiil u'ave l..ave to tlie Att.irn.'V-t ieiieral t.i 



Etpiitable defenee that detieieney of as.set8 



"""'"' ""■ l"-""'-'''!'".-'^ ae....r.lingly. resulted from administratrix trading with the 

'Ji'"i, V. /hnii/ihr,,/. •_> R. \- ('.. liiM). assets, with knowledge of creditors, instead 

ofsettlingestate Estoppel But only against 

4. Action on bond for inalnlenant'C VCP- consenting creditors An a.tion was brought 

diet tor defendant sustained .\n action w.is at eonm law by the .Indge of Probate against 

'i''%'lit (in ,1 bon.l made by .h.f,.ndant eon- an administratrix an.l sur.'ties f..r n..t faithfully 

'litiorie.l f„r the suitable maintenanee ..f th.. a.lmmisteiiiig. The a.lministratrix ina.le .le- 

rliinitiirs t..stat..r. the original plaintitl'. ami fault, ami th.' sureties pleaded an eipiitable 

|l|niiiyfoundaveidiet for defendant. A rule .lefenee that the administratrix had, with the 

"^•" was taken to set the vcr.lict aside ..n several knowle.lge of the creditors, at whose instance 

grounds, but the only groun.l relie.l ..n at the the suit was brought, ontiniie.l trading instea.l 

argument was the rejection of evi.lence ten- of settling tlie estate of the intestate, an.l that 

<"crtat the close of defendant's case by the the deficiency of assets ha.l resulted from such 



247 



BOND. 



248 



triulinj;. The jury found tlie issues raised by ' taken under section 100 of the County Coiuts 
tliis i)lea in favor of the defendants, and the : Consolidation Act. was given merely to ])ay the 
cause was then referred to the Ktiuity Ciunt, costs of ai)iieal, and not to respond tiie judgment 
where tiie learned Judge held that the creditors ' on appeal, so as to cover costs helow. On 
were estopped l>y tlieir consent, and a decree 1 motion to dismiss the appeal the Court ordered 
was made in favor of tlie defendants with costs, a new liond to he tiletl, the appellant to pay tiie 

(.»n appeal from this decree, the Court lulil, costs of motion, 
tiiat, however this eijuitahle defence migiit avail Taijlor v. Onrin, <) R. & (1., •JflO; 

against tlie eieditors so assenting, it atVorded no | 6 C. L. T. , 441. 

answer to tliose, if anv, wlio had not aecjuiesced ; ^^ . . - ^ , .. ^. 

and the cause was referred to a n,aster to ascer- "• Assignment Of bond tO CO-SUrC 68- 
tain whether there were any creditors unaflected Demurrer-Denu.rrer to declaration l.y ohhgee 



on hond assigned to co-sureties who had jiiiid 
defendant's deht, overnded. 

Kirhrni'if Bank- v. liroini, '2 R. & C., .TO. 

1*2. Attachment -Exccutlon-No bond for 

—Execution set aside — Where an exec\ition is 

taken out on an attachment against an alisent 

or alisconding delitor, without the hond foisiicli 

execution having lieen allowed hy the Court or 

a .ludge, tlie Court will set it aside hut witliniit 

I. r •. 1 -1 . .1 „„ I >i. ,♦ costs, thouL'h tile bond lie actually made ami 

forfeited, resisteil payment on the ground that >-'■'." b J 

, , 1 .1 1 11 11.,, 1.,.,,.. .,1.,. tiled hcfore the issue of the execution, and the 

when lie siu'Uecl the liond lie did not know who > <-• 

, ■ „. , ,, ,„ sureties unexceptionable. 

Ins co-surety was to he. ' ,, , ,^, i .«. 

„,,,., , r . , ., • i A ail V. Ca-'ird , 1 Old., 40,). 

//i I , that 111 the absence of fraud this was no ^ - k. . v^ , 



by assent or knowledge who were entitled to 
adininistratiiui. 

Siiilin-html if uL v. Wi/mou ft al., 

•2R. >t 0., .S.-^; 

•_' C. L. T., it.-). 

I. Appeal bond Defence of one surety 

that at time he signed bond he did not know 
who his co-surety was to be— Defeinlant, one 
of the sureties on an a])])eal bonil which became 



defence. 



Sinifh V. Mi-Xil/, 3 X. S. 1)., .SIT. 



8. Appeal bond on appeal fk-om Justice 

of Peace -An attorney one of the sureties- 
Waiver of claim against surety— An ajipeal 
being taken from a magistrate's decision, the 
defendant and one \V., an attorney of the 
Supreme Court, became sureties on the appeal 
bond. On the ground of W. being a surety the 
bond was held irregular and the appeal dis- 
missed by the .Supreme Court. I'laintitl' then 
resorted to his original judgment, and the exe- 
cution being returned unsatisfied, sued defendant 
on the bond. 

//(/'/, that he could not recover, as by the 

course he hail taken he had waived all right or 

claim against defeiidaiil under the appeal bond. 

.]f<X,!f v. .]fnnhoii-ie, H X. S. D., .314. 

0. Appeal f^om Probate Court -Form of 

bond on — 'rhe.finlge of Probate refused to grant 
an appeal from his decision, on the ground that 
the bond, although in the form given in the 
statute, did not state what cause was pending. 
The ajipeal was then grante<l by a .Judge of the 
Supreme Court at Chambers. 

H(:/il, that the bond was in the proper form. 
Ill ri Hath E.ital», 2 R. & (i., 182 ; 
i C. L. T., 663. 



13. Bond by creditor's assignee- liabili- 
ty of sureties— Costs refused the Crown -R. 
being ajjpointed creditor's asignce of an insol- 
vent estate, gave a bond as security for the per- 
formance of his duties with the names nf T. 
and R. J. & Co., of which tirm he was a iiieiii- 
ber, as sureties. R. had no authority to sign 
the tirm name to the bond, but there was no 
allegation or proof or anything on the face of 
the bond to raise an implication that it was 
signed by T., on any condition or reservation 
that it should be also signed by R. J. & Co. 

Held, that T. was liable. 

The bond given by the assignee umler the 
Act, was tr) the Crown, and in the Court below 
judgment was for the plaintiff with costs. 

The Court on appeal refused to allow costs to 
the Crown either of the trial or of the apiH-'al. 

McDonald, C. J. dlsseii/iiiij, on the ground 
that security for costs had been given by the 
Crown, and that this distinguished the case 
from cases in which costs are neither alloweil to 
nor given against the Crown. 

Qiiixn V. liiimnty tt al., 7 R. & *■•> 1" ' 
7 C. L. T., '.'45. 



14. Bond for sale of land - Failure to 

complete purchase — Agreement to apply 
money paid on account of purchase to rent- 
Recovery baclc of money paid on purchase in 
10. Appeal-Insufllelent bond— New bond excess of rent-Defendant entered into a bond 
ordered to be filed— The bond for an appeal , to plaintiff under seal, in which it was recited 



249 BOND. 2r)0 

that plaiiitit}' luul agri'i'd to jJiuvliiisL- from wliilo, liy iiii anieii(1ineiit iiftoi' tlie oomiiience- 
ikftiiiliiiit 11 tnict of hind for 81,"J<K) with inoiit of tlie suit, judgiuunt was rucovert'd oi: u 
ill tiit^t, iin follows: Oiiu year's iiiturcsl to liu " bill i:f salu dated lliu 1st August, ISSl, <u', in 
|iaiil ill one year from dato of Ixmd ; one year's the alternative, under an assignment dated on 
iiili list ill two years ; and one year's interest, the I'Jth .lanuary, ISS.'i." 

tni,'.tliei' with the prineijial, in Ihi-ee years. It 'I'lic condition of the lioiid of indemnity liound 
Wits fiutlier s]ieeitied that if default should he the defendants "from time to time, ami at all 
niiiile ill tiic payment of the priiieijial or interest times hereafter, well and sutlieienlly, to «ave 
as iiLTei'il upon, ))laiiitilV should heeome a tenant iiarmless and keep indeinnilied tiie .said .SJieiiH' 
tddefeiiclaiu at an amitial rent of .':i!7l.', and tliat * * * from and against all losses, costs, eharges, 
all |iayiiients made liy plaintitl', or n])on certain daiiiaj^es and expenses * « * )iy icason of 
speiilieil notes of iiand imlorsed l>y way of selling the said j)roperty so sei/eil » * « ^^^,l 
si'oiiiity for the puivhase money, should he also from and againsl all actions * * * or any 
applied to the iiileiest <ir rent as the I'ase might procedure at law' or in eipiity, w iiich now, or 
he. .\iiuthii' part of the agreement stated tiiat shall or may at any time lie lirought. ciiiimieiiced 
wlialevir sums wi'ie ap|)lied, as aforesaid, the or pnisecuted lightfnlly or wrongfully against 
rciiiaiuiler sliould lie ap]»lied to reducing the the said .Slierill' * * * for or liy renMUi or 
jiiiiicipal siiiii. And, further, that in the event means of the selling of the said property." 
lit plaiiititr failing to pay as aforesaid, and //</'/, that the words of the condition were 
.siineiideriiig up the premises at the end of the sullieient to protect the plaintill', and were not 
thire yiiirs. idl ]iaymeiits made in that ease controlled hy the words in the recital, in such a 
liiiiig applied Inwards rent at the rate aforesaid, way as to limit the lialiility of the defendants to 
till' said uiite and the said indorsed note shall lie a claim under the particular liill of sale therein 
given liy the said defendant, \'c. meiitiniied. 

J/i/il, that the plaintitf was entitled to A/^<i, that the recovery nf tiie judgment in 

I'l'iiiver the aiiHiuiit that he had paid defendant respect to tlie mattei' against wliii'h plaintill' had 

rivi r and aliine the amount appropriated towards heeii indeinnilied, gave liim a right of action, 

the iiiit for the ])eiiod for which he occn|)ied. and that he was not oliliged to wail until jiay- 

I[ohii( •< y. I)(ii-:<n,i, .'ill. i*t (;., 01. nient of the amount of the jiidgiiienl had lieell 

enforced liefore commencing his suit. 

l.». KoiUllllSfeJUl Of bail-plCfC-liule ///s/ lioim^ll x. Ilifrhi, .t„l., 

miller the statute for a new trial discharged on -" ^' ''^- ''•' ('"^ ''• •''^ ''•)> --^'* » 

tliegrniiud tliiit a liond w.is tiled iiisteail of a '*^ ^'- '-'■ 'i'-i ^S'tJ- 

liail-pii'ce. 

MrK, ,n,n v. /', ., .y, 1 K. .^: < i. , .'«»-'. js, „„„„ ,„j,,,p ,„ ,1,^,.^ obHsCCS .ICtlOII 

l)v two where third dead — Death .should be 

10. UOIHI Instead of bail-piece on eerti- aileged-A lioud was nuule to three obligees, 
"''"'T' "',"""'' '" '''■'""^■*^' '^ eoiiviclion for one of whom had died before the action, which 
vinlatiou of the License '.aws in the City of was brought by the surviving rd.ligees and the 
Halifax, i|iiaslied on the ground that a bond had executrix of the decca.sed obligee. At the trial 
beuii tiled in.stead of a bail-piece. plaintillV coiin.sel obtained leave to strikeout 

Th Cil,, of Halifax v. L,ak;, ■_> H. & (i., 14l>. the name of the executrix. There was no alle- 

gation in the writ of the death of one of the 

11. HOIUl of indeillllity-- Action on by obligees, but evidence of the fact was given at 
Sherirt' I'laiiitiif, as Sheriff of the Omnty of t''^-' f''''' 

.\iiiiap(ilis, sueil the defendants on a joint and It' Id, that the omission in the writ was fatal, 
sivcial hond of indemnity given by them to '^"^^ that the verdict by consent for plaintitl's 
iiiilwiiiiify him against all h)sse.s, &e. incurred '""«* ^^ set aside. 

ill ri's,n.,.t „f tiiy j,.^]y „f ^.j.,.j,^jn ,),.,)])erty taken -Z^'"''^' ^' «'• ^'- ^^n''«, •'? R- & ('•, 3"> ; 

''V liiin under a writ of execution, issued on a 2 C. L. T., G03. 

jii'lgiaeiit recovered by defendants against \V. i 

!'• s., the pn.i)erty having been claimed by D. i 19. Building Contract -Bond fof payment 

B. miller a bill of sale. of price— Departure by plaintiff from terms 

lif ])roperty having been sold by plaintitf of contract— Sureties released— In an action 

"iiiler the execution, he was sued by D. B., and against the principal and sureties on a bond to 

judgment recovered against him. the plaintiff for the payment of the costs of a 

1 he bond of indemnity recited a "bill of house which the plaintiff was to build for the 

sa e, dated the ■ day of August, 188.'}," principal, it appeared that the work was not 



2.-) I 



BOM). 



2o2 



(lour ill Ntriit |iiirsiiiiii( (• "f tlir ;i^,'i('(iiuiit iiinl 
Kpi'iiliciiliiiii^*. 'I'lic jiliiiiH ri't'tiifil to iiilluMdii 
ti'int iiiiil wliii'li Wile |>iirt <if it. well' imt |iiil in 
eviililiic. 'I'hr IMiMiii ciiiplDynl liytiir ilispci' 
tfir iiiiiiicil ill liic ciiiitiiut, wlici wns to .su|Hiiii- 
tc'iul \\w wiiik, Mils r*ii|Hi'.s('(li'(l liy iiiiotinr \>y 
Jilliilitill' wilhciiil the icpiistiit 1)1' I lie (Icfi'liiliilil.s. 



liiyiii^,' till' inili'liti'iliii'Ns in Ciitlfi' only, uiii' jiar- 
tiiiihirs ;ir<iiiilin(.'ly. ■Iiulj.jiiicnt w.is rcinvi'iixl 
iii.',iiiisl Ciitli'i', iiii"! nil cxiM iitii'ii issiicil (iiii'ii(>(l 
liv ilic .Sliiiill (it .\iiiiii|)(ilis ill till' iLsiiiil liiiiiii 
liiit witlimil iiiiy iiiciiiisiiiHiit i's|Hiiiilly ilii'cciiiig 
the ."<li(i ill' to liikf till' liddy. Nncvccutidli was 
pliucil ill the liaiiiis cif tiic .Slirrill (if Halifax, 



/A/</, thill iiliiintill' ii.ulil only rr.'ovir on ii ami tlir .sjiciill' of Aniiii|ii>lis. iiftiT lioMiiiH the 



tpiaii'iii:! /inriilf. iiiiil tliiit, iis tliiTi' wiiH Hot 
sulliiiiiit tviiUiiri' to iiiiilili' tin' jiirv to ililcr 



I'Xi'fUtion sixty <liiy.-<. ii'tiiincil iiov til iiinnhix. 
//'/(/, timt till- I'Xi'ciitioii linil lici-n |iio|Hily 



mini' liow t'iir ilif coiitniit liiul Ufiii ilfpiirtfcl iiliiii'il in tlio linnils "f tlii' SliiTilV of AniiiiiMilin 
fioni, iiiid. iis the Miritifs <oulcl not \n- lioiiiid County, in wliirli tlie vcmif in the oiigiiiiil lutinn 
liy the iipiioinlnicnl of tlif new iiis|ii<tor, tin 



veniict for pliiintill iiiiist lie sft iisiiio. 

/■''/rl, V. /.'//.•/,/, ,f 1,1., ;t It. iV (i., 



wiis liiiil, iiiiil not ill Ifiilifiix, w liiTi^ tlii' ariuxt 
wiiH niiiili' ; mill thiit the olijiMtion as to the 
■K»7. iiiiiinilnicnt of the writ I'oiilil not prevail, iis 
there Wiis nothiliL.' hefoie the Coiiit to show the 
iiiitureof the ilelit sworn to in the iitiiilavit on 
w liieli the eapiiis issued, or thiit the plaintill' had 
■< /-/('(oY/zv to remove ,1 ,„,i reeoverud on the deeliiiation as originally 
fiiiined, liilt that in order to eniilile iilainliir to 
liriiij,' iirtioii iigiiinst the defeiidiint as hail, ii writ 
should have lieeii placed in the .Slieritl 's hiiiids 
with iiisti'iietions indorsed to take the Imily of 
the ]irineipal. 

(Umi'M V. nUuk, ;< K. I't C, I'.'D, 



20. Ccrllorarl Itoiid Breach of ('<»ii(lt 

tion Action for Failure to prove breach 
Duiillj,' the peiideiuy of 

conviction of the defendant for selling intoxicat- 
ing liijiiors contrary to kiw, defendant wasagiiin 
convicted iilld lilieil ,"<■_'•_'. S((, iliclllsi\e of costs, 
which wiis reduced lielow •"*'-'<> hy piirt payment, 
and action Wiis Kroiight in the County Court for 
the liiiliince, (III ii liond conditioned that defen- 
diint would not sell ••during the pendency of i 
the aiipeal " froiii the lirst conviction. There I ^ „ „_, _ „ ., 

I .1.111 , 11 li, .,„.. .>„.. 22. Cond ton to pay over money Equit. 

was no evidence tli.it he had sold iKpior per- , , , , ,, , . i x. x, i- i i 

,, , .. 1 .1 . r 111 able defence— Robbed ot the Hunilo a (Icdi- 

sonallv, liiit It iippciired thai liniior had lieeii , . , , tt .r ■ i-.- i ,• 

, ,■ , . I ,, rivlioii on a bond to Her Majesty, comlitumcil tor 

sold on the premises liv ii Wdinaii who was not ^. , , .• i 

, 1 .1 1 f 1 ' ,• f 1 1 1 t , the performance by one of the deteiidiiiits »t 

shown to lie till! defendant swite, child or servant. ' ' •' 

//(/(/, that the lirciich of the condition of the 
bond held not been proved. 

Quarrv, w hetlier even a sale proved to have 
been niade by defendant's wife, child or servant 
wouUl be a breach of the condition. 

(Jmtn V. McKciirJi, 1 R. k O., 488. 



the duties of collector of rates, iiiid llic iui- 
mediate payment over to the County Tieiisuiir 
of .such rates whenever the sums icceivwl 
umoimted to l?MK>, defendiints jileaded. on 
eiiuitiible grounds, that while the -said cdllector 
was travelling on the tjhieen's highway w itii the 
sum of .'*.'Wtl lawfully in his possession fur the 

21. Conditioned to render defendant to ' P">P"^e of ,,i.ying it over to the County Tm- 

Sherift- of Halifax-Execution placed in hands >^<"'^'-. '>^-' ^' ■'•"• "'"'""t "">' f'"'" "'' "'"" "^ '''"' 
of Sheriff of Annapolis where was venue of ««''Cf, forcibly and feh.niouslyrobbedof.saidsum. 
action-Held properly so-Amendment-In- ! '/''''- "» demurrer, that the plea was go-nl. 
dorsement of execution-Tl.e original plaintiff, j '•"" <^" ^'^ <^'«''" '"» ' ' "/- •"' K- * <- •' ■"'■ 

who died after the commencement of the suit, I 

the action being continued by his administrators, j 23. GIven by prisoner With Surety tO Ob- 
issued at Annapolis a writ of capias against one J tain jail limits — Cannot be transferred by 
Cutler, returnable at Annapolis, directed to the indorsement as a bail-bond— The defemliiiit 
Sheriff of Queens or any other Sheriff, under ' having been arrested on an execution, ohtaineil 
which Cutler was arrested by the Sheriff of j the privilege of jail limits, as fixed by an order 
Halifax County, in his bailiwick, and held to bail, ; of Court under 4tb R. S., c. 22, s. 7, ami gave a 



defendant becoming surety, and the condition of 
the bond being that Cutler shouhl be rendered 
into the custody of the Sheriff of Halifax. The 



bond with a surety to the Sheriff, who assigned 
it to plaintiff. 

Htkl, that the bond could not be triinsferrcd 



declaration in the suit against Cutler was on a by indorsement as a bail-bond so as to vest » 
bill of exchange drawn by Cutler and others and right of action in the transferee, and that four- 
dishonored, with particulars applicable to such , teen days' notice of action must be given by tli« 
a count, together with common counts laying \ assignee. 



the indebtedness in Cutler and said others, but 
after issue joined common counts were added, 



Qitaere, as to legality of the bond. 

Hone v. Prtnckryast, 1 R. A Ci., 385. 



2.':? 



BOND. 



2:)-i. 



24. Bond Kivrn (o Miinlripnilt} as scrur 

ity for ottictT No weals attixtnl by HiirutieH 



wliffciii he wiiH jiiiiioil liy live .siirclics ini' his 
licli'lity ami '^khA cniidiiit, tlio |Miiiilly of the 



Atlixcil liy i)riiicii)iil hffore dflivcry Suretii'w ImhhI hrin;.' s|u,(M((i, aiid ihf ((iiiililiiiii itviting 
eMtopptd from ntttiiif{ up want of Ht-aU after that ciich «iiifty wum IhxiikI in thr siini of .liM.fKK). 
acceptiince of homl Di tVnclaniM signeil their , Thu nislilcr liccanie a ilcfiuiltiT in ii very liirgo 
iiiime.". ax sureties to an nnexeented hond for amount, and the plaintilf entered into negoiia- 
llif fiiithfid disehar;;e liy M. of his duties as tio?is with K., ono of the snieties, which 
,liili and treasurer of the plaintitV Munieipality, resulted in an a|,'reeiuent between thein, where- 
l)iit alli\ed no seals. M. suliswiucntly attached ' l.y K. undertook to pay oiielifth of the l>alaneo 
Hiids and his own signature to the bond and due upon the bond, after the dediution of cer- 
foruarded it by mail to the Warden of the tain credits, and pave his note for the amount. 
Miniicipalily. "' ' -' • • ■■■- ■ ... 

/l</il. /" /• \'.'eatiieilie, .(.. and .\b'|)onald, .1., 
thai the bylaw under which the Imnd was 

tak.ii was /»/,Y, ,/,v.,, and tiiat the defendants , „,,, „,„., ..^ 

wcic est<jpped from denying their .'•eals after pleas, one beinj,' that the liond was a several, and 
tiic plaintilf had accepted the instrument from not a joint and .several bond, and seven picas 
M. as security. ' ' ' • . . . 

/'.;■ .M.Donal.l, C. .r., ami Ritchie, ■[., that 

defendants were lialde as guarantors on the ^^ ,_, ^ v ......wt, ..„.. 

i.-tnuneut, having signed it with the knowledge ; made no attempt to distmb it. K., alone of 



.Sulisei|nently, plaintid' sued upon the liond, 
<icditing in their particulars the smn K. had 
promised to jjay. but had not paid up to ilate of 
the tiial. K. pleaded to thi' writ a niimlKr of 



III e(|uitablc grounds. The jury found for 

jilainlitr in a less amount, however, tlian they 

laimed, but they actiuiesced in the verdict, and 



that it was to be used as security 
Miiiiii-iiKililij nf Shilhiirui v. Mfir-i/irt// I f. nl. 



On (i/iji'ft/ to fhf Sit/>remc Court of Camula, 
//'/'I, Ifenry, J., hfnitanli', that as the re»- 
pniidcuts had proved a prima facie case of a 
liiiiid jiropcily execuleil on its face, and neither 
tlic suliscribing witness nor the {irincipal obligor 
was calle(l at the trial to corroborate the evi 



the defendants, resisteil the venlict, contending 
j that the bond was a several obligation, and that 
7 U. i^t <!., 171. i the receipt given by the plaintitl to him at tiie 
7(". L. 'I'., -'4«. time of the settlement between them being in 
proof, should be considi^icd as payment to that 
extent on his own account. 

//('/(/, that K. having invoked its oijuitablc 
jurisdiction, the Court had full power to deal 
with the case, tliat the bond was a joint and 
several iddigatioii, that if K. had actually paid 



iis called ai me iriai lo coironorate tlie evi- ^ • " ' "•^>"">>.> j<.ini 

■lice of the appellant who had not negatived ""^ '^"""iiit mentiom'd in the recei))!, he might 
ic <lu<' execuli<m of the bond, it being ,j„ite ' '"^^■•^' «''"""'l ^"•' '^'""l''i''"f- but that m)t having 
■ ■ with his evidence that it was duly '1""^-' '*«' t'"' verdict for jilaintilf must stand, 
the onus of nroviiiL' want of exei.n. I ^''" '^""^' »/ ^'"'"- ''^''■"'''« v. Forniaii ,1 



lie 
ll 

consistent 

executed, the onus of proving want of execu- 
tion was not thrown oft' the a2)pellant, and the 
rosi«iudents were entitled to recover. 

Mar^lialt v. Muiiicijia/ity of Shillmruc, 



al., 
J X. S. 1)., 141. 



2a. Heir, liability of on bond of ancestor 

—Bond not a charge on real estate, although 
naming heir— An action was brought against 
the heir of an obligor on a lioiid whereby he 
liound iiimself and his heirs for the maintenance, 
among others of the plaintitt'. 



21. Liabilit} of surety to contribute— 

14 S. C. R., 7.37 ; .Surety hehl not liable for c(mtributi(m where 
7C. L. T., l.SO. i there was no liability shown on which money 
should have been paid by the co-surety. 

Carmy v. /'hakii, 4 R. & G., 126. 



28. MIsrecital of Judgment in— Plaintiff 

sued in the t'ounty Court on a bail-liond given 
by the three defei)dants, who pleaded and proved 



Ifdil, that the coinnum law principle under ; ^^^*' *^''<' «xecution had been returned before the 
which the heir having assets from his ancestor i expiration of the sixty days within which it was 



made returnable. The County Court Judge held 
that this was a mere irregularity, not touching 
the merits, and could not be taken advantage 
of liy plea, and he gave judgment against the 
three defendants. Defendants appealed, and in 
the appeal bond recited the judgment as a judg- 
ment against two of the defendants. 

Held, that the appeal was irregular, and that 
M, Joint and several obligation— Eqnit- a motion was properly made in this Court to set 
3le defences— PlaintifTs cashier gave a bond I it aside, though the papers had been certified 



could be made liable on such a bond was entii'cly 
inapplicable to tlie position in which the statute 
of distributions placed him in this Province. 
That the bond, although naming the heir, was 
not a charge on real estate, and that the action 
could not be sustained. 

M<-Ldla)i V. McLel/an, 1 R. & «., 80. 



.)i) 



BOND. 



2.-)6 



tuiil tlio liniid iipiHoved l)y tliu ('i)unty Court ill .lo pica was pleailed, under which defunduiit 

jiidj,,.. gavf ovi.liiK't' that tho St'orotary nf the Soiicty, 

Watinii V. U'liDj, ."{ l-t. w'c (1., I.'H. ujxm dcfi'iidaiit asking for a icU'a.Mc of liis IkihiI, 

replied tliat it would ho a g<)o<l deal of expenxu 

20. Of public Ofllrers Crown no lien on and notliing wouM ever come again.st liini, and 

real estate for '.ueh bond Tile SiutulcM ;{;ni. M, no application Mas thereafter inaile to jjini fnr 

c. .Sit, and l.'l Kliz., c. 4, which gave the Ciown ^\^^^■^ nv lines, the uotici'.s lieing sent to tiie piir- 



a lien upon the real estate of certain jiuiilic otli- 
cers as a security for the fullihnent of tiieir 
bonds, are not in force in tiiis I'rovinci'. 

I'liimLi V. hiil:.<tiii 1 1 III., .lames, "JHT. 

»0. Mortsitgc ForcclosHPe and sale 



cliaser. 

Ill III, that tlie Secretary hail no power tn 
make the arrangement alleged, to whicii the 
Miiectois hail not assented, and that tiie defeii- 
daiit, heing a menilier of the .Society, was houinl 
to know the limits of the Secretary's authority; 



Purchase by mortgagee and sale to third that, altiiougii the rules of the Society restrictid 



party Aetion on bond for balance due 
Plaintiff held entitled to recover At a sale 
of mortgaged jiroperty held pursuant to an 
order of fiMcclosure and sale, plaintill', the nioTt- 



them to the advancing of money upon real estate 
security, there was nothing to pieveut tliciii 

fi 1 taking the defendant's bond in adilitioii. 

even if they could not lake the bond nf u 



gagee, liecame tiie imrchaser for a sum less tiian sipanger. That the fact of a sale under fn eilo- 
tlie amount of tlie iiioitgage. | sure did not prevent tiie Society from sii ag hu 

riaintilf conveyed the property to a third : the ))ond, so long as tlu'y held the land. Tliat 
party and subsei|ueiitly sued on tlii' bond given ; tl^. decree against the defendant could not in- 
collaterally with the mortgage to recover the elude tiie costs of the fort^closure suit, to wliicli 
l)alance due after crediting the lU't sum for ; la- was not a party, but that he was not entitlcil 



wiiicii llie property was sold al tiie Siierill's 

sale. 

Ililil, McDonald. ('. .f. and Weatherbe, .1., 

ihihitatiii , tlial plaintitl' was entitled to recover. 

K< iiiiij V. ('Iiixholiii, 7 H. i*i "., 407 ; 

S ('. L. T., li-2. 

On n/i/iiiil /n >hi Siijinnii Cmir/ i<t' Cniiinln, 

//(/(/, tliat tlie mortgagee was not ))roliil)iteil 

from proceeding on the bond to recover the 

re.-idlle of liis delit. 

ChUhuIni V. Knnii/, I'i/h Fi liriinn/, ISS-'i, 

(."as. Di.'. -Jits. 



to credit for tlie ])ioceeds of tlie foreclosure sule, 

as tliey did not amount to the costs in tiiat suit, 

and that the trustee.s were the piojier plaiiitill's. 

AInioii ii (il. V. n,i.<i'h, I!. H. D.. 'Ml. 

33. On Capias Condition in Bond Dis- 
charge of surety— A l)ailbond was taken ii|"iii 
a capias issued out of the .Magistrate's Ciiiiit 
conditioned for the apjtearance of the defenilaiit 
in the suit or his authoii/ed agent. Tlie attm- 
ney appeared witli a written authority as ■'the 
aiillioij/cd agent" and the plainlitf olitaini'il 



judgment upon which an execution was i-siiiil 

31. Mortgagees rigllt of, on bond -Col' j and returned noil 111 iiiriiiiii^. h\ an attiim 
laterally given, //i/'/, tliat a muitgagce « ho against the surety, 

has foreclosed and sold and liought in the lanil at llilil, allirniiiig the decision of tlie Cmimy 
.SherifTs sale and is in possession of the land j Court that the surety's obligation had been tlis- 
can rank upon the estate of the mortgagor for , charged by the ajipearanco of the agent ami 
tlie balance (hie on liond after deducting the that plaintilf could not recover against him. 
proceeds of sale, and cannot be coin])elleil to Wriijht v. I'l-irr.t, .'} R. & C., Tili.'!. 

give credit for the actual value of the land. 

He E-siafv of Chandkr, 5 R. & G., 78. 34. On Issuing writ of certiorari -4th ii. 

S., c. 75, ss. 25 & 26— Aetion on— Indorsing 

32. Mortgage— Bond— Building society— ; name of relator— in an action on a n rlwmrl 



Mortgagor sells equity of redemption— Fore- 
closure— Action on bond — Parties— Defendant, 
a member of the Nova .Scotia Kuilding .Society, 
obtained an advance and gave his mortgage and 
bond, after which ho sold his equity of redemp- 
tion, and a suit was brought to foreclose the 
mortgage without making him a party or giving 
him notice. The land was bought in by the 
Society for a sum less than the costs in the fore- 
closure suit. An action was then brought 
against the defendant on his bond. An cquit- 



bond, under 4th R. S., c. 75, Schedide E., the 
defendant obtained an order uisi for the indor- 
sation on the writ of the name of a person to lie 
liable for costs, under the practice established 
by Queen, y. McKarchcr, 3 R, & C, 3;J7. Be- 
fore the rule was made absolute, the plaintitl 
iiulorsed the name of the Clerk of License, ami 
gave the defendant notice. A rule was after- 
wards obtained, making the rule nixi absolute, 
and giving the defendant ten days to plea'l. 
Plaintiff, after the rule was made absolute, 



SoT 



BOND. 



258 



iii,l,.rsiMl the imiiie of the Clerk of Liuenso a Held, that tho quo^itioii was pr()])erly left to 

Rccml time, hut tliil not give the (lefeu.l.ii.t the jury, ,111,1 that the venlict bIk.uM not l)e 

liotiuf of tlie seooiul iiiiior.satioii, uiiil after tlie diMturlietl. 

expiiati..n of ten days, marked a default for Tiio Healing and delivery of a Ixmd are jnit in 



want of a plea. 



issue l>y a i>lea that the defendant "did not 
jr any suuli liond " as tliat de- 

IlazM V. Dijns, •_' H. & C, 'M. 



J •• l"^'" i-iini/ iinj iiuiuiniiiui, mil iioi 

iri./, iliat the default had lieeii regularly make and deliver any sueli l.ond " as that de- 
iiiiirkni. clared on. 

ijii'f ,■) , as to tlie (iraetico established by (^itttn 1 
v. MrKnri/i.r, .'l R, it V., .'J.'JT. I 

V»"«v. C'ur/ir, 1 K. & (!., .'K)7. 



37. Sureties on bond of ofllccr holding 

„. .. , ^ , . annual office— Liability ceases at the end of 

.}... Relator ordered to be IndOfNCd on the year-J. a. H. was ai.i.ointe,l Treasurer 
writ m action ou bond at Huit of the Queen - for tlie Cnunty of (,>Meens on the l.-.th of Marcli 
la a,, action on a bond to the l,>ueen under .■. m->, giving a l.ond in the .sum of .S4,0(J(), with 
,.. "I »th II. .S., an attorney was named on the sureties, for the performance of the duties of his 
will, hut It was not shown at whose instance, or : otli™. He c.mtinued to hold the oHk.e until the 
fur wlins. advantage the acti..n was brought. l,-,tl. March, 18tiS. Having failcl to account 
ill.; (ni.it passed an order staying the action ^ f.,r and pay over certain moneys received by 
umilplaiMtitls attorney shoul.l indor.se on the him as such treasurer after the first year for 
win the name of the Clerk of License, or such , which he was appointed to the ollice, an action 
(itlar person at whose instance the action was was brought on the boiul 



I'Mniglit, to respond the judgment 



J^i/<l, that the ollice of County Treasurer, 
<M": V. Mrh-arrhn; :i K. & C., ;«7. under .3rd R. ,S., c. 4.-,, s. 1, being an annual 

office, the bond made by J. A. H., and the other 
defendants as his sureties, did not extend beyond 
the first year he held that ollice, and as there 
was nothing to shew that there was any <lcfal- 



80. Secondary evidence of-SealIng and 

delivery— Wliat sufficient to put in issue- 
Finding of jury— Where the plaintitr, the widow 



of J. H., suing on a bond for maintenance made "^'^t'"" ''"I'ing tliat year, there must be judgment 

for the defendants. 



til her lite husband ami herself, testitied that 
slie JKiil the bond in ))osscssiou after her luis- 
baiid's death, that she gave it to her own son to 
he recorded, and had not .seen it since ; and the 
smi testitied that he had sent it by tlie magis- 
trate to get it recorded and had not since seen 



The ANonuy-G'iiitml v. Ilimcoii et a/., 

1 N. «. D., 485, 

38. To secure a debt payable in instal- 

.^„. ments— Whole to become due on default in 

It, luid the document was traced to the office of one payment — Not divisible — Jurisdiction 
the Uegistrar of Deeds, who testified tliat some County Court— Defendants entered into a bond 
one siipiK.sed to be entitled to it had got it out j to the plaintitl" and his co-executor to secure a 
of liis jjos^ession, and that he had searched in debt of .•?8I(), payable by instalments, the first 
his otHoe in vain for it. A paper sworn by the ' of which, amounting to .slGl.40, was overdue ; 
Kei,'istiar to be an accurate copy of the registry ' hut the condition of the bond referred to a 
was admitted as secondary evidence. I mortgage given contemporaneously with it, 

//'-/'/, that the evidence was properly received, hvhicli contained a covenant that on default 
The bond contained the usual attestation clause ' iiwde in tlic payment of any instalment, the 
asto .sigiiiiture and sealing, and defendant had pvholo sum unpaid should immediately become 
iieknuwledgcd several times that he had executed I <lii« and ])ayable. Action was brought in the 



iihond to J. H., but plaintiff's son said he did 
not think the original, which he saw, was sealed. 
The eojiy from the registry contained no indica- 
tions of a seal, and the defendant, whose evidence 
t>n some essential points was inconsistent with 
tluit of phuntitr's witnesses and the proven facts 
of the ease, denied that he had ever delivered a 
sealed hon.l to J. H. The question as to the 
scaling was left to the jury, who found " that 
t'le document in evidence was identical in pur- 
port with that signed by the c.3fendant, which 
ne denied," and they found a verdict for 
plaintiff. 

9 



f~f — — -— 

County Court for the amount of the instalment. 
Held, that the judgment of that Court, which 
was for plaintiff, could not be sustained for M-ant 
of jurisdiction, the debt being indivisible for 
8810, and recoverable only in the Supreme 
Court. 

Bath V. Detmison et al., 3 R. & C., 303. 

39. Variance -Judge's Minutes conclusive 

as to what took place at trial— Non-suit— 
Refusal of Judge to amend— Plaintiff sued on 
a money bond. There was a variance between 
the declaration and the proof, che declaratioa 



259 



BOUNDARIES. 



2C0 



setting out the words of the condition upon per- 
formance of which tlie bond Wiis to become void 
insteiul of tlie obligatory part of tlie Ixjud, and 
the plaintiff was non-suited witlj a rule to set 
aside the non-suit. On the first day of term 
plaintiff obtained a rule iiini for an amendment of 
the declaration, and that a new trial be granted, 
because tlie Judge on the trial had refused to 
grant tlie amendment. At the argument, plain- 
tiff moved to discharge this rule with leave to 
move for another similar to it, but adding the 
words " on reading the minutes." The affidavit 
of plaintiff's counsel stated that the Jiulge had 
refused leave to in.sert, as one of tlie grounds in 
the rule, that the amendment had been refused. 
This was contradicted. 

Held, that the rule vini must be discharged, 
as the Judge's minutes were conclusive as to 
what took place at the trial, and the plaintiff 
had his remedy under the statute for the alleged 
refusal to grant a rule ; that the plaintiff was 
properly non-suited on account of the variance, 
and that the non-suit could not be set aside for 
the alleged refusal of the Judge t(5 grant the 
amendment, even assuming plaintiff's account of 
the matter to be correct. 

Halifax BankiiKj Compauy v. Worrall O al., 

4 R. & G , 482. 



BOODAKIES. 

1. Admissions as to— Wlicn binding— The 

admissions of a husband as to the boundaries of 
land held by him in right of his wife, are not 
binding upon his wife after his decease. 

UesBarres, J., diastittimj. 

Any admission of boundary to be binding 
must be made with a full knowledge of the 
facts, and this knowledge is a question for tiie 

Dill V. Witkinn, James, 113. 

2. Boundaries described in deed— Des- 
cription of— A lot of land conveyed Ijy defen- , 
dant to plaintiff by way of mortgage, was ' 
described as bounded by lands of A. and B. 
which had been previously conveyed to them, ' 
being originally parts of the same lot. The 
lines of the lot conveyed to plaintiff were des- : 
cribed by measurements, but tiie termini were 
stated irrespectively of the measurements thus, \ 
" 2.50 feet or until it conies to property of P '> ', 
The measurements were wrong, and resulted in 
the frontage on the street being much less than i 
that represented. | 



I Held, that the measurements werq^nere mat- 
j ter of description, and that tiiere was no breach 
of the covenant of « /■'••/«. 

j Almoii ct al. v. Woodill, R. & (J,, 1,3; 

j G C. L. T., 1,37. 

^ 3. Conventional line — Where a conven- 
tional line is established it concludes the parties 

■ to it. 

lioM et al. V. McKeiizii', :i X. .S. 1),, 69. 

' 4. Conventional line -When the owners of 
I adjoining lots of land agree to abide by a cw- 
tain boundary between them, though tiuit Ijimii- 
I dary is inconsistent with their docuiiieutary 
title, their agreement will lund tlieiii and pre- 
clude them from setting up any other lioumlary, 
Woodherry v. G'ate'i, 2 Thorn., '2m, 

a. Conventional line — Acquiescence for 

number of years— Cannot be disturbed, al- 
though shown not to be true line— Where the 
owner of a lot sold a part, and in the dtuil to 
the grantee, described the dividing line as luii- 
iiing in a certain direction by compass, an<l the 
course of the line was fiointed out on the land 
agreed to and aetjuiesced in for a numljtr of 
years, 

Jleld, that sucli line could not be distuilieil, 
though shewn not to be the same as tlie line 
got by running accordnig to the direcliciiis :a 
the deed. 

McLean v. Jacobs, 1 Thom., (1st Kil), (i; 

(2ndEa.),!t, 

6. Conventional line-Assent given under 

mistake as to facts -M. R. being :'.l")iit to 
make a conveyance of land to V. R. . went on 
the land in company with V. R. and ti.ved the 
starting point from which the line was to run. 
A deed was made accordingly. After the death 
of M. R., plaintiff, his widow, wilii tlie tun- 
sent of V. R., got a surveyor to run the line, 
which was done from the starting jioint iwli- 
cated by M. R,, lint, in consequence of an ermr 
of the surveyor, on a course five <lcgiees ilitlerent 
from that mentioned in the deed. \. K. wai 
not present when the survey was nimle, Imt 
substMiuently assented to the line iis run ni 
ignorance of the fact that a mistake had k-cn 
made. V. R. conveyed to defendant acoonling 
to the description in his deed. 

Held, that the assent given by V. K. to the 
line as run by the surveyor was not sutiicicut to 
establish a conventional line. 

All the facts being before the Court, and it 
appearing that the plaintiff could not eueceed if 
the case were sent to a new trial, judgment was 



261 



BOUNDARIES. 



262 



ordered to be entered for the defendant with 
costs. 
Milltr V. Ton/mill, 17 Q. H. I)., ()0;{ foUowud. 



9. Conventional line— Evidence to estab- 
lish—Answer of jury to question — Verdict — In 

an action of tic'spass to land tlie defendant proved 



Roach V. M'aj't;, 7 R. & (i., 330 ; \ the establi.shnient of a conventional line with the 
7 C. L. T., 377. ' person fioni whom plaintiff claimed, giving the 
/oc»v in (jncstion to defendant. Plaintiff and 
defendant both prove<l sulweqnent acts, indi- 
cating ownership, performed liy them rcspect- 



7. Conventional line ~ Established under 

mistake - I'laintifl' and clefandant were owners 



respectively, of adjoining lots in the fifth and \ '^^-'^y- "" ^^": '"''"'■ '''" *'"-' 'l"^'«l"">- " if '^^ <■•' 



sixtli ranges of the Addington or Hartshorne 
Oniiit, a large tract of land, comprising '23, (KK) 
iKies, which, for convenience <jf sale, was 
divided into ranges and suli-divided into lots. 
Both claimed directly or indirectly under Harts. 
liornc. I'laiiititf olitained his deed in IS4(» from 
Piisliec, to wiiom Hartshorne had conveyed in 
1S.S7. Defendants, after lieing in possession for 
ten yoais, under an agreement to purchase, 
derived title ilircctly from Haitshorne in 18,")4. 
Tlie descriptions in tlie deeds were vague, merely 
referring to the lots as containing 1(K) acres, to 
tlieir nuinliers, and to the nund)ers of the ranges 
in wliicli tiiey were situated. Plaintiff em- 
pkiycd a surveyor to run liis lines in 1841, two 
years before defendant went on, and the latter, 



when proprietor of the land of plaintifl', had met 
C. <J. and the defendant on tlie land in (|Ucstion 
and agreed with them, as trustees of the A. Church 
property, that the western sideof the stone wall 
sliould be tile Western line of the land known as 

j the A. Church property," the jury returned this 

j answer : " he (.S. (!.) said so,'' and found a ver- 
dict for plaintiff'. ,S. (i. did say so in his testi- 
mony at the trial and was not contradicteil. 

I //'/(/, that the verdict must be .set aside. 

j Onrhatf v. iloosihy, 2 R. & C, 235. 

I 10. Conventional line — How established 

— Where parties iifdding adjoining lands meet 
upon the land and fix a Ijoundary between their 
lots by ver)>al agreement, such agreement will 
be binding upon them, notwithstanding the 

Is 



for some years, both by words and acts, recog- I , i " i ' r ,i '', 

, , ,. , , ' » boundarv agreed upon may varv from the dec 

iiizeil tiie Ime between them, as claimed by , ', i ■ i .i !• , ' , i 

,..„,., ,. , •'or plans by which the parties ho d. 



plciintill', as being the true line, but it appeared 
tliat this line was not in fact the true one. 
//'/'/, that defendant having acted under a 



y>«c,''.<o» V. Klii-inntii, James, 1 & (i9. 

11. Conventional line -How far binding - 



niisaiiiachcnsion of tlie facts, and being unac- , _/riie awar.l of arbitrators in pursuance of a 
fiuaintcd at the time with the real boundary of ' pa,.„l sidmiission setting and fixing a boundary 
iiis lot, there was nothing in tlie acts or .leclara- ii„o, is conclusive up.m tlie par;ies consenting 
tionssomade to establisli a conventional line, to and acting upim tlic avNard. 
iudqicMdcnl of right. ; j,, i^r, the two McKenzie brothers received, 

/'((• l)odd,J. — The principle in ]\'oo<l/ii >•>•;/ \\ under a deed from their father, a certain lot of 
(?«/'.<, and DarliOH v. Kinsman, should not be '' land which they continued to occupy togetlier 
e.xteiidcd beyond those cases. until 1S.V2, when it was agreed between them 

McDonald v. McDonald tt al., I N. .S. 1)., 42. ; that there should be a partition, but no written 

submission or bond was entered into. Arbitra- 
; tors were accordingly ajijioindd, liefore whom 

8. Conventional line — Estoppel — There ; the brotliers and theii' witncs.ses appeared. 'J'lie 
king some nncertaii.ty as to the line dividing tlie { lot was tlivide.l and each of the brotliers entered 
lands of two adjoining owners, they mutually \ into possession in .severalty of the jiortion awar- 
agrccd i„ liave a survey, and for that purpose, i de.l to him. Fifteen years aftei', one of the 
each appointed a surveyor to represent him. | brothers sold his portion to the defendant and 
These surveyors, atten.led by the parties and | then comliined witli his brother to deny the 
others, met on the sjiot, and liaving read the | separate holding, and thus render void his own 
deeds, fixed, by mutual consent of the parties, ' deed. The award was not produced at the 
aeertaiu line as the boundary between the two trial, but secondary evidence of its contents was 



pnipertics. 

fMl, on the principle laid down in ]Vood- 
Ixrry v. Gafus, 2 Thomson, 2,^0, and Davison v. 
Kinmuii, .Tair.es, 1, that an estoppel was 
thereby created, which prevented the parties, 
or those claiming under them, from setting up 
any other boundary. 

Reid v. Smith, I N. S. D., 262. 



given. It did not direct any conveyance to be 
made, nor was any executed by tlie McKenzies 
to one another. On these grounds plaintiff 
claimed that it was of no ett'ect. 

Hi Id, Wilkins, ,J., dismnliiii/, tliat the Mc- 
Kenzies were bound by the submission which 
they liJid thus recognized and acted upon, and 
that the defendant, having sufficiently estab- 



263 



BRITISH NORTH AMERICA ACT. 



264 



lishcd !i separate holding, tlie venlict for plaintiff i 
should he set aside. 

Woodlii rri/ v. d'nli ■•', '2 Thonisoii, "J.V), and 
Dari-toii V. Kiii'<ninii, .lames, I, apju'oved and 

followed. 

M<-K<,r.!' V. lii-odi,, 1 N. S. 1)., '2^V 

I 

12. Fixed by tenunts of moieties.— Ten- 
ants of moieties of a lot made an agreement as I 
to their lioundaries. 'I'liey were siihsecjuently 
turned out of possession by the owner and took 
deeds from him. 

//(/'/. that tlie agreement eould not afTect 
their riglits after they heeame owneis. 

/'/•((«*• V. Kirk; -2 Thom., -290. 



17. Hater lot -line on seashore - The 

grantee of a water lot, hounded on the shore, is 
entitled to take up to higii water mark, ami tiiat 
line of his grant ehanges with the gnuhial 
eneroaelnneiit or retirement of the sea. 

/v'voM V. Mai/hirry, 1 Thom., (Lst Ivl.), 144; 

(•2ndKd.), 1S6. 

18. Uhere a party conveys a portion of 

ills land to another witliout deseriliing it liy 

metes and liounds, they l)eeome teiiiiiUs in 

conunon. 

^/-•.V/r7 V. MrXi'/. roehraii, :«. 



BOTTOMRY - 
.S'< SIllPPINti. 



BREACH OF PROMISE OF MARRIAGE 
Su IIISUAND A>D WIFE. 



13. Natural boundaries - Courses, dis- 
tances, &c. — Order in which they govern — If 
courses and distances are given to reacii an 
object, and they will not reach that object, the 
rule is to go to the object as the most certain, 
and to alter tlie courses or distances accordingly. 

In an action of ejectment, defendant relied 
upon a certa'n beech as being a corner boundary 
of his lot, but neither the comer nor distance 
mentioned in his grant would take him to it, j 

witluait the alteration of one or other. It being ' 

clearly ]H'oved that the beech had always been ; 

considered thecornerboundiiryofdefi'ndant's lot, BRITISH \ORTH AMERICA iCT. 

//'/(/, tiiat defendijut's line should be extended 

beyond the length mentioned in his grant, until 1. Bankruptcy and insolvency -Winding- 

it struck the beech. up Act- Acts 1879, c. 32--I!y an Act of the 

MrPhirson it nl. v. Cnimroii, 1 N. .S. 1)., 208. Legislature of Nova Scotia, i)rovision was iniule 

for the winding-up of comi)anies in gciuial, 

14. Natural boundaries In grant not as- ^^'hm-c a resolution to that etiect was passd i.y 

certainable -What governs Where the posi- the company, or where the Court so ordma at 

tion of the natural boundaries described in a the instance of a contributor, on its l>ciiii; niaJe 

grant cannot l)e ascertained, and there is no t<> aiyjiear that such order was just and niiiit- 

proof of the original survey, the limits of the nl'lf- The Act could be enforced although no 

grant ciinnot be exten.led by implicationbeycmd debts were due by the company, l)Ut cmihl not 

the courses ami distances mentioned in it. ''^' i"illcd into operation by a creilitor. 

TiriiiiiKjV' 'SI, nils, 1 Old., .31)0. ^f''<'' tl"i'' tl'« Act did not j.artakc of the 

character of an in.solvent law, and was within 

15. Natural boundaries, lines and corners the legislative atithority of a Provincial Legis- 
established, first reg.arded — Courses, distances, lature. 

quantity, etc. — In tixing tlie boundaries of land In re The Wallace-JIuesti/i Orey S/oiic Co., 
the highest regard is to be had to luitural K. K. P., 401; 

lioundaries, lines actually nni and corners .S ("art., TA. 

actually marked in preference to statements of 

course, distance, or iiuantity of land contained 2. Bankruptcy and InS0lvency-3» VIC.f. 

in the descriptive part of the conveyances. I 104, N. S— I'laintiil's had .security on the uiiilei- 

FrcDierv. Cameron, James, 189. taking of the defendant company, futuic calls 

on shares and all tolls and money arising from 

16. Proof Of identity of lot in ejectment : the undertaking, for .f200,000 as a first lien. 
— I'l oof that witness knows the land in dispute, Messrs. Roberts, Lubbuck & Co., an English 
that defendant lives on it, with proof of two of firm, had a lien on tlie rolling stock for i''Jri,UOO, 
the boundaries, held, sutHcient proof, in eject- and there were alwut £70.000 due to unsecured 



mcut, of the identity of the lot claimed. 



creditors. Defendants, under c. 104 of the Acts 



McXair v. Muuro, James, 340. , of 1874 of the Legislature of Nova Scotin, en- 



265 



BRITISH NORTH AMERICA ACT. 



2G6 



titled. "An Act to facilitate arrangements Incorpnrntion Act of 1881, cliap. 1, sec. 14, a 

U'tween Railway Companies and their credi- County Court .liiilgc wlio is <lis(|ualitictl fr<in» 

tors," [Sir. Acts 1S7"), page 1), tiled a scheme, trying a ])elition in a contested munici])al elec- 

wlieri'liy preferential stock to tiie extent of j tion may call in another County Court Judge to 

iT.'i.iMK) was to he created, to he a first charge ilo so. The jurisdiction of County Court Judges 

(111 liiitli tlic undertaking, calls, tolls, &e. and does not depend upon their connnissions, which 

the n)lling-stock, and this, or the money are only descriptive of the tril)muil over wliich 

ciiiiiiiii; from it, was to he applieil to tiie such .ludges are ap])ointed to ])reside, hut ujion 

piiyiiiciit in full of Messrs. Koherts, Luhhuck iS: enactments of the Provincial Legislature, wliich 

Co., and certain unsecured debts specitied ; may deline, enlarge and extend the district. 

stock III the extent of t'.'{r)(),(XK> was then to be within which the Judges sit as it sees lit. 



ercaicil, to he a subseiiuent charge on the under- I 
tiikiiif;, Ac. and rolling-stock, and was to be ' 
issued at par to the existing debenture holders ; 



Croi-e V. McCunbj, 6 R, &G., 301. 



5. Debtor, power to provide for discharge 



in lieu of the .lebentures they then held, which ^f_^^ y^^ ^ g^ jj S.-The Act of the I'rovin- 
Mire to l)c delivered up to be cancelled. Plain- 



cial Legislature, 1878, c. 8, jiroviding for the 
relief of debtors imprisoned on process out of 
County Cfpurts is not ultm riri'!'. 

Juhiiston V. Poijiit-: it a/., '2 R. & (i., 193 ; 

•J Cart., 416. 

0. Doni. Iniand Revenue Act — Vice* 



tills (ilitaiucd an order for the appointment of a 
receiver, which defendants obtained a rule »/.-■■( 
to rescind. The Court, considering that the act 
was u/irn (//•»,<, as it dealt with the subject of 
iiisiilvciKy, and fui'ther, that the scheme tiled 
Mils unreasonable, as its object was to secure 

otlar creditors at the expense of .lebentme Admirl^ CourT"ProhibiVioVrto-Tl.e IcgiZ 

holikis having a tirst lien, discharged the rule 

«(>( to rescind l)ut, in view of the possible rjveisal 

(iftlie judgnient on ajipeal. otlered to modify the 

nidii- ii]ip(iiiitiug the leceiver, by directing him 

to pay the amount to be received to the Heceiver 

(leinial, to abide the further order of the Court. 

ilm-iliich V. ]Viud'<or i(' Aiiiia/ifi/l.-< Rdi/n-in/ 

Coni/niii/, K. K. I)., 1.S7 ; 
.S Cart., :jti8. 

3. Banliriiptry and Insolvcnoj— Property 

and Civil Rights— 37 Vic. c. 104, N. S - Under 



tion of the Dominion rarlianient (31 Vic, e. 8, 
s. 1.")))), giving the \'ice-Adniiialty Court juris- 
<liction in cases for the collection of pciuilties 
for illegal distilling, is ii/tin ri'/vs, and the 
Vice-Admiralty Court, as an infei'ior Court, 
may be restrained by the Supreme Court by writ 
of prohibition. 

Atty.-(li n'l of Cauada v. Flint <fal., 

3R. & (;.,4.-).3. 

On ii/>/)i(i/ /o /Ik Sii/inm' Caiirf of Caiiaila, 

Hilil, that so much of sit. l.")!!, of 31 Vic, c. 
the |ii(ivisiniis of an Act rif the Lcgi^dature of 8 (Doininioii Inland Itcveiuic Act, 18(i7), as 
Xova Scotia "to facilitate arrangements be- gives the Court of Vice-Admiralty jurisdiction 
twi'cii Itailway Comjianies and their creditors," in cases for the collection of penalties for illegal 
the Wiiidsiir and Annapolis Hallway Company ilistilliug is intra rinx. The judgment of the 
proposed an arrangement whereby the so-called Supreme Court of Xova Scotia reversed. 
1> debenture stock of the Company then bearing Att)j.-(!i nl. ot Canada v. FUnt <t a/., 
interest at the rate of 6 per cent, was " abro- ' Itlth January, JSS^, Cas. Digest, S'24. 

gated and dcterinincd,'' and in lieu thereof the 

hohlers ,.f said stock were to receive allotments j, JnsOiVCnCy - CIvli rights - 32-33 VlC, 
of new stocks thereby created, bearing lower p. ig^ g. 59 Dom— Section .■)n of the Dominion 
rates of hiterest, and otherwise ditTering from Insolvent Act of 18t)!) nrovided that no lien 



tlie stock for which they were substituted. 



or privilege upon the property of an insolvent 



ff'M, Weatiierhe, J., dissfntlii;/, that so much should be created for a judgnient debt by the 
of the Act as was necessary to the confirnia- [ ig^ue or .lelivery to the sheriff of an execution, 
tion of the projiosed scheme, was within the ,„. i,y levying upon or seizing thereunder the 
legislative .luthority of the Legislature of Xova \,,fy^^^t8 ,„, ^,^^^^^c „f n,, i„s„lvent, if before the 



Scotiii. 



He Windior d- Aniiapo/i.i /{aihcay, 

4 R. &(i.,31'2; 3 Cart .387. 



4. Constitution of Courts — Act enabling 

in certain cases a Judge of County Court to 
call in another Judge — Under the County 



payment over to the plaint itl' of the moneys 
levied the estate of the debtor had been assigned 
or placed in liijuidation under that Act. 

Ill-Id, to be within the competence of the 
Dominion Parliament. 

Kinney v, Dudman, 2 R. & C, IP ; 
2 Cart., 412. 



267 



BRITISH NORTH AMERICA ACT. 



2G8 



8. IntoxicatInK ll(|Uf>rfl -Power to regu- 
late sale of -Trade and commerce -Mode of 
testing validity of clause imposing conditions 
for obtaining licenses — KiiiutiiH'iits (if the 
Legislature of Xova Scotia prohibit ing the 
retail of intoxicating; lii|U<)fs by nilici'iisoil ven- 
dors, ami prcsci'ibiii},' pciialliiis for such tiuli- 
censi'd vcniling, arc within the ])o\vcr of that 
Legislature by section }f_' of the li. N. A. Act, 
sub-section S) ; and it would be no clefence to an 
aotiou for such penalty to show that the legis- 
lation under which the sessions were autiioiized 
to refuse to grant licenses was ultra rinx. The 
pro])ei- course in such case would be a uiandauius 
to the sessions to coui])el the granting of the 
license. The legislation contained in 4th K. S., 
c. "•'>, sections .S'J and .S.S, is not tilira rins, al- 
though it may to a certain limited extent ati'ect 
trade and coniuierce. 

Kii/i V. MrLi iiiKlil, '1 K. i^ ('., ."> ; 
'2 Cart., 4tK). 



9. Procedure The Canada Temperance 

Act gave an ajjpcal to the County Court, but 
provided for none from County Court to 
Supreme Court The County Court Act (N.S.) 
gave a general appeal to the Supreme Court 
from the County Court -//-/</, that liie latter 
Act could not be invoked to sn]i])ort the right 
of appeal from the County Court in a ca.-ie under 
the Caiuida Temperance Act. 

Mrl)(,„a'<l V. .1/.r»,\7i, .-) R. & C, 1. 
(JiKin V. ll'o//i, 7 K. & <i., '-'4 ; 

7C. L. T., :.:?. 



10. Provincial legislature Power to 

authorize the imposition of license fees on 
insurance companies -Construction of British 
North America Act, s. !t2, sub. sec. 9— Tiie Pro- 
vincial Acts of I8S.S, c. "JS, sec. '_'.'{, jirovided 
that in the case of insurance com]ianies doing 
business in the City of Halifax, the proi)erty of 
the companies within the city should be liable 
to assessment in the same way as t!u' projierty 
of other rate ])ayeis, and also, that every such 
company should, in addition thereto, ])ay an 
annual license fee, and that where any com|)any 
was engaged in more tlian one branch of busi- 
ness, it shoulil pay a license fee for each branch 
of its business. 

//(/(/, that the right to empower the impo- 
sition of such license fees was witliin the powers 
of the Provincial Legislature, under .section })2, 
sub-section 9 of the British North America 
Act. 

The City of Halifax v. The Wiinli'.rn Anxumnre. 
Comjiaiiy, 6 R. & G., 387. 



11. ()neen's Counsel -Power to appoint- 

37 Vic, c. 20 and 21, N. S., n/'m ric.v— Letters 
patent of precedence, not retrospective in their 
etl'ect- Great Seal of th' Province of Nova 
Scotia— 40 Vic, c. 3, D.— Appeal— Jurisdiction 
--My .S7 \'ic., c. '20, \. S. (1874), the Lieuteiiiint- 
(iovei'lir)r of the I'rovince of Nova Scotia was 
authorized to a])])oint jirovincial oHicers nailer 
the name of Her Majesty's Counsel, learned in 
the law, for the Proviii"'e. By 'M Vic, c. 'Jl, 
(bS74), the Lieutenant (iovernor was autliorizwl 
to grant to any nuMidier of the bar a ])atent uf 
preceileiice 'u the Courts of the I'rovince of 
Xova Scotia. 

H., tlie respondent, was appointed by the 
(iovernor-Cenei'al on the ■J7th Decendter, I87'J, 
under the (Jreat Seal of Canada, a (Jucon's 
Counsel, and by the uniform juactice of tile 
Com't he had j>recedence over all mendicr.s of 
the bar not holding j)ateuts pi-ior to his iiwn. 
By letters patent, dated '-'(ith of May, 1876, 
under thetiieat Seal of tiie Pi'ovince, and sif,'iieil 
by the Lieutcnant-(!ovei-noi' and Provincial ."sec- 
retary, several mendiiMsof the bar wei'c a])i)oiiit- 
ed t,lueen's Comisel for Xova .Scotia, and prcccil- 
ence was granted to them, a.s well as to (itiier 
(^hieen's Counsel a))pointed by tlie Covcrnor- 
(icneral after the 1st of .Inly, 18(17. A list of 
(j)ueen"s Coun.sel to whom precedence had been 
tiuis given liy the r^ieutenant-Ciovcrnnr, was 
))ublished in the lioiial (liv.illi of the l.'7th May, 
187t), and till? name of K., the resiiondcnt, was 
induch'd in the list, but it gave precedence ami 
preaudience before him to several jjersniis, iu- 
cluiling appellants, who did not enjoy it before. 

Upon aHidavits disclosing the above and other 
facts, and on iiroducing the (original conuiiis.sicm 
and letters patent, B., on the .'ird .January, 
1877, obtained a lule /(/</ to grant him rank and 
])receilence over all (Queen's Coun.sel ajipointed 
in and for the Province of Xova Scotia since the 
■Jtith Decemlier, 187-, and to set aside, sn far as 
they atl'ecteil H's i)rece(leiiee, the letters ])atenl 
dated the •2(itli May, 1870. This rule was niatlc 
absolute by the .Suprenu' Court of Xo\a .Scotia 
on the'iOth .March, 1877, and the decision of tiiat 
Court was in substance as follows:—]. That 
the letters patent of precedence, issued by tiie 
Lientenant-(!overnor of Xova .Scotia, were not 
i.ssued under the (ireat Seal of the Province of 
Xova Scotia ; '1. That .'{7 \'ic, c '20 and 21, of 
the Acts of Xova .Scotia, were not ultra riri^; 
3. That sec '2, e. 21, of .'{7 Vic, was not retro- 
spective in its effects, and that the letters (latent 
of the 2f)th May, 1870, issued under that Act 
could not ati'ect the precedence of tha resjiondent. 

On the argument in appeal before the Siipreiiic 
Court of Canada the ijuestion of the validity of 
the great seal of the I'rovince of Nova Scotia was 



269 



BRITISH NORTH AM?:RICA ACT. 



270 



declared to have liceii sotUoil liy legislation. 40 
Vic., c. 3, 1). nn<l 40 Vio., c. 2, \. S. A jtie- 
liniiiwrv '»l'jci-'tion wiis niisoil to the jurisiliotion 
of the Coui't to lieiir the appeul. 

///'/. I That till' j-lcli;iiieiit of t lie Court l)i'lc)\v 
was iiiu' fiiim which an a))i)i'al would lie to the 
SupiciiR' Court of Caiiaila. i-'ouniier, .)., r/i.i- 
tfiiliii'j. 

'2. A;' Stroiii;. I'ourniei' and 'raschereaii, J.J. 
— Tiiat 0. 21, ',i~ Vic, X. S., has not a retrosj)ec- 
tive fH'cct, and that the letters jiatent issued 
under tlie authority of that Act eould not atl'ect 
the lireci'ilcnce of the (.hieen's Counsel a]ipoiiited 
hy tlio < rown. 

•S. /'•/' Henry, 'rasi-herean and (iwynne, .1.1. 
— That tlie l!iiti>h Xorth America .\it has not 
invtstecl the I,i',L;islatur>'s of the Provinces with 
any imilrnl over the a|)|)ointnien; of (,>ueen"s 
t'liiuiM'l, and a.s }Ier Majesty forms no part of 
tlie I'riivincial Legislatui'es as she does of the 
DnMiiuinii I'ailiament, no .Act of any such Local 
Lcu'islatiMc can in any manner impail' or atl'ect 
litT |)reni;.'ative riiiiit to ap])oiiit (,Mieen's Counsel 
in Canada direclly. or tlirouj;h her representa- 
live tlie (iovernoi'-Ccnei'al. or vest such prero- 
.'ative right in the Lietitenant( io\ernois of the 
IVovinecs ; and that 'M Vic, c 20 and 21 X. ,S. 
M- iillm /•/»•'« ;inil voiil, 

4. !'• I- StroU".' and Fomnier, JJ. — That a.s 
this Coni't otiLtht never, except in cases when 
sui.h aiijialication is indispensalde to tiie deci- 
siiin iif a cause, to ])rononnce upon the coustilu- 
lidiial pciwer of a Legislature to pass a statute, 
there was no nece.ssity in this case to express an 
"piniiiii njion the validity of the acts in ipies- 
tinn. 

(Ill n I'm; ill ii<; o/ llilrhii . 2 R. cV ('., 4.">0|. 

L'liiiir V. It'll rhii , '\ .S. C. K., .■)7."> : 

1 Cart., 4,S,S. 

\'l TiiXiUioii of Kanks Tax on noiiiinlon 

notes Authority of Local Lesislature to im- 
pose- The Local Legislature ha.s authoiity to 
iiiuct a law imposing a tax on the Dominion 
notes iiehl hy a hank a.s ])ortion of its ea.sh 
reserve, under the Dominion Act relating to 
"Hanks and I'.anking," CM Vic.c ."), s. 14), and 
under the hydaws of the Town of Wiud.sor 
sueh property was h.dd to be jiropeily included 
hy tlie assessors in their valuation. 

Tiiini of ]Viii(/xoi- V. Till' Commi rvinl 

Jlaiik- of W'imlior, ;j H. & (i., 420 ; 
3 Cart., T,-,. 

13. Windsor Branch Dispute as to Dc- 

murrer -Legislative authority -I'laintiHs' hill 
»«oiit the Act of the Legi.slaturo of Xova Scotia 
Ci*), c. 1,3), proviilmg for the eon.strui.tion of 



the Winilsor ancl .Annapolis Railway ; the agree- 
ment of November 22, lH(i(i, between the Com- 
mis.sioner of Railways for Xovii .Seotia, and 
Messrs. I'unehard, liarry & Clark, for its con- 
struction, containing a stipulation that jirior to 
the ojiening of the road, a trattic arrangement 
should be made between the parties for the 
mutiuil use by the Province an<l the eomjmny 
f)f tlu'ir res|)e-:tive lines of railway from Hali- 
fax to Windsor, and from Windsor to Annapo- 
o!is ; tile Act of the Provincial Legislature 
incorporating the com])any (18ti7 c. 'M\), of 
«hicii the .\ct tirst mentioned and the agree- 
ment in pursuance thereof were made a part 
and the agreement of the (iovernment of Canada 
(succes.sor to that of Xova Scotia in relation to 
the line from Halifax to Windsor), with the 
plaintilFs made Se))tember 22nd, 1H71, pi'ovid- 
iiig that the company should, with exceptions 
not touching tiie matter in hand, have the ex- 
clusive use of the Windsor Branch with station 
accommodation, etc. and the use, as far aa 
rei|Uired, of tiie Trunk Line from Windsor 
.lunction to Halifax, the com))any to pay over to 
the (iovernment monthly one-third of the gross 
earnings of the government lines, the agreement 
to continue twenty-one years, then renewable, 
but to terminate in the event of the coni])any 
failing to ojierate the railways between Halifax 
anil Annapolis. Plaintitls alleged that, having 
certain e(niitable claims again.st the (iovernment 
of Canada, tiiev allowed their ])aynicnt.s due 
under the agreement of Septendier, 1871, to fall 
in ariear. Imt paid them off in Xovember, 1872, 
after wliii h, undei- similar circumstances they 
ag.iin allowed them to fall in arreai', in conse- 
i|Uence of which the (iovernment threatened to 
resume |)ossession of the road, unless payment 
\Nas made on or before October 1st, 1,S7.'J, which 
peri. Ill was afterwards extendecl to Xovember 
1st. 187.S: that on the 22nd October, 187.S, a 
Minute of the Privy Council of Canada was 
p.issed. of whicji no notice, ollicial or otherwise, 
was given to the plaintitls, by or on behalf of 
the (iovernn-ent, reciting that the company owed 
the (iovernment .*:{(>,0(Ht, and had failed to 
operate the Windsor Hiancli, and reeomniending 
that the (iovernment should immediately jiro- 
ceed to operate the road lietween Halifax and 
Wind.sor : that afterwards, on the 20th .lune, 
IS7.">, an agreement was entered into between 
Her Majesty th? (^>ueen, represented by the 
the Mini.ster of Public Works, and the plaintiff 
company, whereby the company agreed to 
ehange the guage of their railway and release all 
claims against the ( iovernment to .Inly 1st, 187.'), 
and in consideration thereof, the debts alleged 
to he due to the (iovernment by the company up 
to January Ist, 187">, were extinguished, and it 



271 BRITISH NORTH AMERICA ACT. 272 

was (li'diircd that tlie iigicciiii'iit iiikUt wliiili lu'loiigs exi'liisively to tl'c Logisliitiiri> nf Xi,v,i 
tlie (.■oiupiiiiy lield iiiul woikod the Branch Line Scotia, muU'r the ICJnd sec. of tlie II. X, A. Ad, 
ciintinucd in fnll force and ctl'cct, t'xccjit as thus suli-sci\ 10, that road licing a local woik iinil 
nioditicd. IMaintitl'ii alleged that tiiey had con- not L'oniing w illiin any of the classics cxct'iitic! 
tinned in possession of sai<l Windsor liraneh i by the section referred to, and therefore tliu Ait 
until August, IH77, when the superintendent of the Dominion Parliament, 1.S74, cap. ID, « 
of ( iovcrnment railways took forciMe posses- »///•« (•/(•(.<, (.lames, J., r//«(»^';/;/ n.s to this 
sion, and prevented them from using the liranch. i)oint). 

The road was aftcrwanls transferred hy the Do- Ritcliie, H. J., adhered to the views ciiihodieil 
minion ( Joverinnent to the defendants on the i in the judgment appealed from, wliicli, .«,i. 
•J4tli Scptendier, I.S7", sm h transfer lieing lpase<l 11. K. I)., '2S~. 

on the authority of the Dominion Act of I.S74, Wiiiil-^or il' AiiiKi/iii/i" Hal/irui/ CoiiipHiii/ \\ 
c. 1(). Defendants demurred to this writ. Wi <tirn Coniiliii Itaihray Couiiiany, 

Hi Id, that hy the agreement of Septcndier, i .'HI. i'c ('.. .')7t'i. 

1S71, the Wimlsor ISiancii was in fact leased to 

theplaintiti'sfortwentv-oneyears, that the only !*• B* >'. A. Act, 1S67, S. 108 rowcf (if 
event upon wiiich the ( iovernment was author- Dominion Legislature-Windsor Branch ;)„ 
ized to re-enter was a failure to operate the road ''"' l'<''«iiiig of this cause <m the cvidciia: m 
between Halifax and Aniiajxplis ; that the .state- objection was taken on behalf of tiic Aunnay 
ment in the .Minute .if Council that plaintill's < iencral of Canada that the agreemeiu of .Scptcm. 
ha.l failed to operate the road could be contro- '"■'■- '^"'- l>'<>vi.ling tiiat tiie company sl„ml.l, 
verted in this suit, and liiat without making the "'"' «'tain exceptions, have the exclusive use 
Crown or the ( iovernment, represented by the "f Hie Windsor liranch, with station accmm,,. 
Attorney-Ceneral of Cana.la, a party to the i '•'''^''">' ''^^••' "'"' l''^' "*'^'' '"* *"'"' "'* n''l>'iii'l. "' 
suit, and having been denied by tlie plaintitis, the Tnink line from Windsor .Tnncti.in to 



cuu 



must be taken for the purpo.se of the argument Halifax r-' >"/"•'(, i:!j, was not binding cm tl 
on the demurrer to be untrue; that. i,„U.pLn- , '^'""'"'""' ^"vcrnnicnt, because the radrna.lfi 
dently of the Act of I ,S7-J. the .mly interest that ft''l'f'''< '" Windsor was a iirovinci d piil.lw 
c.mhl be transferred to the defemlants by the ^^■'"•'^' •""' -'-^ ■">"^'' l'^'-^''! to tlic Dimiiiiimi 
(iovernment was the ( Iovernment 's reversionary <i<'vcrnmcnt inidcr liie 1!. \. A. .\rt. nut us 
interest in tiie road, subject to the plaintiliV ordinary (iovernment property, but subject to 
lease : that the Ad of 1S74 did not directly and '^ ""^t which the ( iovernment was bound stiidly 
in term.s, divest the plaintitls of their rights, ami '" fidlil and which reiiuired that it shmild lie 
must be held as intended simply to .sanction the "'"ked for the pnblie beneHt in accnluice 
transf-r to the defendants of sucn interest as the ^^''1' '''i' t-'rms of the Act un.lcr which it was 
(iovernment itself had in the road ; that the built and subject to tlic engagements whi.l, InuI 
plaintilfs had no adequate remedy at law, by l>ecn entered into l,y the Provincial (i.Aciiiimnt 
.«.•/,■. yrovVix or i)ctiti(m of right, a.s tiiey did not '""I r.cgislatnre, and that the terms .,t tlm 
seek redress against the Crown or the(iovermnent ^'greenuMit did not carry <nit this trust, as l.y 
of Canada, and it was not in the power of the "i^' l>'<>vi-*i'>ns of the Provincial Act of IS(I7, 
(i.pvernment of Canada or the Crown to give ^'mbodying the contract between the (iovcm- 
then, the relief .sought for, -nor by ejectment, ment an.l the promoters of the plaintitfcoiupaiiy, 
because, assuming that ejeetmeiit would lie in '' was niutually agreed that prior to the opcnin- 
respect to the rights claimed by plaintitls to "f '•"' '"'"l =^ ^''i'^"' aiTangcmcnt sho,il,l l,e 
operate the railway un-ler tiie agreement of '"•"'''' f""' ""' ""itnal u.se by the (lovcnnniit 
1,S7I, plaintitls c.mhl not by that action obtain ''"'^ t>"' ^■"■ni.any of their respective lines, 
any relief in respect to tlie original agreement,"''''^'' stipulati..ii ha.l n..t been cairicd .mt in 
with the provincial government as to running *•'« "gieement, as there was no provision in u 
powers, and this gr.nin.l of demurrer being to f'>r <i trafiie arrangement. 

the whole writ, even if applicable t.) part ..f the ^''''^ ^liat the agreement embo.lied all the 

writ, must be overruled, as it could not be g.io.l ^'''^'''''t'"' provisi.ms of the original cntract. mv\ 

in iiart an.l ba.l in part. *■'"'' the (iovernment not having iiisistcl mi 

Wimhor and Aiiim/,olis h'adira,/ v. ' •"■^'•"8 '•""ning powers over plaintiffs' r.ia.l was 

IVrshra Count l,.s Jiudirai/, R. k. D., --'87. '"* '''"''•''"" ''"''y l'l'>'"t>*^'s si"-""!"! '"^ .leprivc.l ot 

running powers over the Halifax an.l Wimlsur 

Oil npi>mltothcS;>,pr.m<CourtofXor»Srotia, 11,,^^ x>\\t that on the other han.l the groiiml 

Hild, infer a/ia, that the power of legislation stated applied with great force to the action .if 

as to the Windsor Uranch, i, e., the line of rail- ; the Dominion Legislature under the Act of 1874, 

way between Windsor and Windsor Junction i inasmuch as the Dominion Government having 



27!? 



CAPIAS. 



274 



takfii till' rnail. uiiclcr the provisimis (if an 
Iiii|)friiil Act, clotlifil wilii a trust, tlie Domi- 
njiin LciiisliituiH' «iis llicri'liy rustiuiuecl fiDiii 
adiiiL' ill violatiiiii of tliat tiiist. 
Th' Wiiiil-'or (iiiil .liiiiii/'o/i's /'alhrai/ Co. 

V. '/'/(< ll'i "'i ril ('dilii/l' t li'di/irfii/ Co., 

n. K. I), :w.3. 

Oil '(f/i' III In till Siijifi nil ( 'iiiirl (;/' Xora Si'olia, 
llilil, that thf aj:;rci'iiu'nt was lU'vertlit'luss 
valjil aiiil liiniling u])<in thu Dniiiinion (invt'iii- 
meiit. the imhlic interests Imviiig liecn pi'otected 
l.y it> pidvisidiis to the .satisfaction of tlio (Jov- 
irnim-iit. 

ir. <!■ .1. Hdihriuj Cii. V. ir. C. Ilailimi) Co., 

2 H. .ic (l,,'2.S(t. 

Oil (ij, III III Id llli I'liri/ Coilliril, 

liichithe 15. X. A. Act, I8(i7, s. H>H, lea.l in 
fipiiiii'ctinii with the ."U'd schedule thereunto, all 
niiiwiiys helonging to the Province of Nova 
Sciitiii. including the railway in suit, ))asse(l tf) 
aiirl liccanie vested on the 1st duly, IStiT, in the 
lliiniiiiion of Canada: luit not for any larger 
iiitirest therein than at that date ludonged to 
llu' Province. 

The railway in suit lieing, at liie date of the 
statutory transfer, suliject to an oMigation on 
the part of the I'rovineial ( iovernment to enter 
iiitnatratHc arrangement with the respondent 
iiiinpaMy. the Dominion < iovernnient, in piir- 
>iiiiMcc of tiiat oKligation, entered into a further 
iigieement relating thereto, of the 'Jl'iid of Scp- 
ti'iiilicr, 1,S71. 

','""''•(, whether it was iillrii /v'/v.v uf the 
Dniiiinion Parliament, l>y an enactment to that 
elft'ct, to extinguish the rights of the respondent 
cciin))any under the said agreement. 

r.iit. lull/, that Dominion Act, ;!7 Vic, e. 1(5, 
ili'l iMt, upon its true construction, j)nrpoit so 
tiiilii, ami although it authorized a transfer of 
tlie railway to the a]>:)ellant, it ilid not enact 
Mall tiansfer in derogation of the ivsjiomlent's 
rights under the agreement of the "J-ind of .Sep- 
temher, IS71, or otherwise. 
Til' 11'/ %/./•(( (Joiiiitics Ii(tihi-(iii Coiiijxnn/ v. 
'/'/(' ]ViiiilM)r <t' Aiinniiolk Ji'iii/ircii/ Co., 

7 App. (,'as., 178 ; 

ol L. J. P. C.,43; 

40 L. T., XA ; 

I Cart., SO?. 



" //( /'/•/•.*, a Ptiitish sulijeet forfeits every 
right, which lu! would be entitled to in that 
ca[)acity, liy residence in a foreign country. If 
(Ileal lii'itain were in a state of peace, iluiing a. 
war i)etween Franco and Spain, an Knglishmaii 
who inhaltited either of those countries woidd 
he liable to have his ])ropertj' seized liy the 
respective enendes, as much as the nattiraPhorn 
subjects of the country. His British allegiance 
would afford him no protection. Per.sons resid- 
ing in a country, reaping the advantages of the 
trade of that country, and contrilmting to the 
welbbeing of that ccmntry, mtist for the purpose 
of trade be considered as belonging to that 
country." Sie Statitks, Imperial, .S.S (ieo. III., 

e. ")(), y/o.</. 

Till Xaiiri/, Stewart, 49. 
Sir, «/>o, AlIEX. 



BKOKEK. 
Obligation to Coniniiinlcate facts to cus> 

tonicr — NVhere a stock liroker sells shares on 
his own account and not in the ordinary course 
of business to a customer with whom he has had 
previous dealings as a broker, and who may 
therefore rely on his j\nlgment, it is his dnty to 
eommunicate the fact to the purchaser. The 
absence of such a communication is sutficient 
ground to set aside a verdict. 

Sairi/i r r. Cray, .S X. IS. D., 77. 



BVILDINO SOt'IETY- 
SVe ARUITKATION AXD AWARD, 42 
BOXD- 
MORTGAOE. 



BRITISH SUBJECT. 



Britisli subject resident abroad — EflTect 

of stich residence— The <iuestion of what rights 
and privileges a British sul)ject forfeits, as sach, 
by residence abroad, discussed. 



BURGLART- 
-9.fi CRIMINAL LAW. 



CALLS- 
See BANKS- 
COMPANY. 



CAPIA8- 
Sec Arrest. 



27i 



CANADA TEMPERANCE ACT. 



270 



CARGO - 
sv. SHIPPING. 



CANADA TEMPERANCE ACT. 

1. Appeal - None from County Court to 

Supreme Court— A convict imi l)y a Mtii)cii(liiii-y 
niagistriitc was rfiii()V<'il l)y ajipeal to the ('ouiity 
Court and tlicre (|uaslu'il. 

llihl, that no ai)|)ciil lay to tlio Sujiicmc 
Court, as none was expressly given l)y the Act 
creating the offence and giving the aj)peal to 
the County Court, allliougii the Acts creating 
and organizing the County Courts gave a general 
appeal to tlie Supieine Court. 

Costs refused to respondent as he should have 
moved to (juasli the a|)])eal at an earlier stage. 

MrDoiinlil v. MrCiilxli, ."> K. & (i., 1. 

2. Appeal None to Supreme Court from 

County Court under the provisions of Canada 
Temperance Act, 1.S78— Xo appeal lies to the 
Supremo Court from the County Court in cases 
arising under the provisions of the Canaila Tem- 
perance Act of 1878, and no such appeal can he 
taken under the Local Act providing generally 
for .'i])peals ti'om the (^ounty Court. 
McDonald v. MrCiiith followed. 

(?«««» V. Wolfe, 7 R. & C, '24 ; J 
7 C. L. T., -).S. 

3. Authority of Commissioner to allow 

writ of certiorari must be shown— A writ of 
certiorari vas issued to remove a conviction 
under tlic Canada Tem|)erance Act. Tiie writ 
was allowed hy a (^onunissioner, and it was not 
shown that there was no .Supreme or County 
Court .Tudge in theCounty, (Acts 18S2, c. 10, s.'2.) 

I/ild, that the writ must he set aside, as it 
was not shown that the Commi8si(mer had juris- ! 
diction to issue it. i 

Pe.r McDonald, C. .J., and Weatherbe, J., 
that the indorsement, "allowed, security having 
been tirst given and tiled," was not sutticient. 

Corhi'tt v. O'lhJI, 4 R. & ({., 144. \ 

4. Bringing Act in force — Preliminary 

proceedings — Irregularities in — Cannot be 
raised after issue of the proclamation, and the 
holding of election — Mandamus to Justices of 
the Peace — Application was made to the Court 
for a writ of mandamus to compel two Justices 
of the Peace for the County of Cumberland to 
issue a warrant against defendant for a violation 
of the Canada Temperance Act, 1878. 



The .lusticcs had ileclined to issue the wnrrunt 
on the ground that the notice to the .Secrutiiry 
of .State referred to in sections 5 and (i of tlie 
Act and refjtiired to be tiled in the ollice of the 
.Sheritl' or P,egistrar of Deeds of, or in tlic 
County, was not regularly tiled, there being two 
Registrars of Deeds in theCounty of ( 'umber- 
land, one at Andierst and one at Parrsbuni, and 
the notice having been deposited oidy witii tiie 
former, as a conse(|Uenee of which the Justices 
considered that the sul)sc(|uent proceedings were 
irregidar and that the Act was not in force in 
the County. 

The proclamation iiaving issuc<l and tiio elec- 
tion having taken jihue and resulted in the 
adoption of the Act. 

//'/'/, that as the ell'ect of going lieliind tlie 
election wr)uld be to create dilticidties and mis- 
chief, the language of the Act must be rejfank'd 
as directory and not mandatory, and that tiie 
maiidamtii ajiplied for nuist issue. 

/'(/■ McDonald, C. J., and Uitcliic, ,1., that 
the (loveruor in Council being constituted the 
judicial authority to determine wbether the ])re- 
liminaries diret'ted by the Act had been coniiilied 
with, and having determined in the aHinnative 
and issued the proclamation, the regularity of 
the preliminary proceedings could not be (jucs- 
tioned. 

Queen v. ///<■/,•>■, 7 R. & (i.. S9; 
7 C. L. T., 14.3. 



5. Conviction under Canada Temperance 

Act — Proclamation bringing Part II. into 
force— Day not fixed — Defendant was convicted 
under one of the penal provisions of Part II. of 
the Canada Temperance Act. 1878. The ])riivi- 
siou for bringing that part into force enacted, 
that after a poll had been held in any County, 
the Oovernor-tieneral in Council might declare 
that the second part should be in force and tiike 
effect in such County "upon, from and after 
the day on which the licenses for the sale of 
spirituous liquors then in force in such County" 
.should expire, and that upon, from and after 
that day, the second part of the Act should 
become and be in force, and take effect in such 
County. In the County of Kings, where the 
offence had been committed, the poll had lieen 
held, and the Governor-(teneral in Council de- 
clared by proclamation that the second part of 
the Act should be in force and take effect 
"upon, from and after the day on which the 
annual or semi-anuiuil licenses now in force in 
said County will expire." There were no 
licenses in the County, and there had been none 
for years previously. 
Held, that the conviction must be quashed, 



277 



CANADA TEMPERANCE ACT. 



278 



as no I 



or hy 



lay liml liccn fixed eitlter 1>y tlip statute' Hrhl, that the magistrate liacl exceeded liis 
y proclamation for )>riiigiiig tiie second part jurisdiction in making the conviction in the 



of the Act into force in Kings I'oinity. 

Queen v. Li/oiix, .") K. & O., 201. 

6. ronvlctlon must show where offence 

committed— A conviction for selling intoxica- 
ting; liciiior contrary to tlie ))rovisii)ns of the 
Caiiiiilii Temperance Act, contained no reference 
to tiie Act, did not .show wliere the otfence 
w.is committed, and merely adjuilged that the de- 
fiiidiiit piiy SKH) for selling intoxicating liijuors. 

//M, had. 

Till' iiifiirmation and warrant cannot he looked 
at lo .SIC tiiat an oll'ence has liccn committed. 

U'ood/orh- V. J>ir/,i> , C, \\. & (i., Si) ; 
lie. L. T., 142. 

«. Conviction - Certiorari —Court niuy looli 

at evidence, when sent up, to determine juris- 
diction -Certiorari quashed— Practice— Defen- 
ilaiit was convicted hefore the Slipcndiaiy 
Magistrate for the Police District of Yarmouth, 
of iiaving unlawfully sold intoxicating liciuor 
contrary to the provisions of the Canada Tem- 
pcriiiice Act, 1878. 

A writ of cef/ior(iri having issued, the niagis- 
triite sent up tile minutes of the evidence taken 
before him, as part of his return, instead of 
returning the facts, 

/AW, following //r(»Y.s- v. //fo/, ti R. & C, 42, 
that tlic evidence being licfoi'e tlie Coiu't, it 
niiglit l)e looked at to determine the (juestion of 
jurisilictinn. 

It appealed from the minutes of evidence that 
(lefeiiilant, who was keeper of an hotel or hoard- 
ing house, had gone out and purchased or 



ah.senco of the defendant, and that the convic- 
tion must therefore he set aside. 

Also, that under the Canada Temperance Act, 
sec. 107, it is imperative ujion tlie magistrate to 
adopt the jirocedure specially made for cases 
under the Act, the express provisions in that 
section taking the matter out of the ordinary 
couise laid down in the .Summary Convictions 
Act. 

Qiiein. V Sa/tfr, 20 X. S. R., (H R. it (i.), 206 ; 

8 C. L. T., 380. 

9. Costs included In conviction -Defend- 
ant ^vas convicted for .selling intoxicating licjuor 
contrary to the provisions of the Canada Tem- 
|)erance .Act, 1878, and adjudged to ])ay the sum 
of ^M, to he paid and applied according to law ; 
also, to pay the informant the sum of !?G. 14 
costs ; and if such sums were not jiaid forthwith 
that the .same he levied hy distress and sale of 
defendant's goods ; and, in default of distress, 
that defendant he imjuisoned in the common 
jail for the space of thirty days, unless the 
sinns and charges of the distress and commit- 
ment, if any, were scxnier paid. 

//(/(/, /«'»• Ritchie, J., that there was sufficient 
ground for a ci r/inmri. 

Per Weatherhe, •(., that the conviction was 
bad. 

(Quaere, whether umler the practice the writ 
of crrlioravi should not have been allowed in the 
tirst instance without any rule nisi. 

Queen v. Ward, 20 X. S R.. (8 R. it (.1.), 108. 

10. County Court prohibited from pro* 



procured li<iuor for her hoanlers, with money ceeding with n rh'omri to remove conviction 
given her for that ])urpose, acting meiely as a under Act — Reference by Judge at Chambers 



messenger, and w ithoul making any profit. 



to Court ill hn)i'' — .\ conviction under the Camida 



Hild, that this evidence was not sutKcient to Temperance Act was removed ti> the County 

support the conviction. Court by rertiornri. The prosecutor applied to 

','«""■(, whether ))oints which had been <lis- a .Judge of the Supreme Court it Chamliers for 

cussed on the application for the writ of rertio- a writ of prohibition, to prohil)it the County 

ron'couM be brought before the court a second Court from further proceeding on the wrtiorari. 



time on the motion to quash the conviction. 

Quint v. McDonald, 7 R. & <i., .S.Sfi ; 



and the order vixi for the writ of prohibition 
was, by a Judge presiding at Ciuimbers, refer- 
7 C. L. T. , 37(5. red to the Court in haiir. Defendant's counsel 
I objected that the Judge at Chambers could not 

8. Conviction for third offence, made in *"> '<^f«' t''*" application. 

absence of defendant, set aside— Procedure-- : ^t/d, that the writ of prohibition must be 

Defeniknt was convicted in her ab.sence of a third ' allowed, but without costs. 

offence again.st the Canada Temperance Act, , Qneenw O'Xei/, 20 X. S. R., (8 R. & O.), 530. 

1878, and was sentenced to imprisonment for 

sixty (lays in the county jail at Annapolis, and | H. Jurisdiction— ExCCSS Of— First Offence 

topay the sum of .?9.33 costs to the prosecutor, —Defendant was convicted of a first otTence 

and in default to be imprisoned for a further i under the Canada Temperance Act, 1878, and 

term of fifteen days. | for such offence was adjudged to pay the sum 



279 



CANADA TKMPERANCE ACT. 



2o0 



(if .'is.'iO iuicl iiists, iiiid if tiic siiiil sfVfi'nl Slims WHS liiiil (111 tlu' j^romiil tliMl tlio jipiuilly iiM|Kiscil 

were iiiit paid furtliwitli iluit tliv saiiiL' lie levii'd was in cxt'oss of tlmt iiiulinri/fd l>y tluj Act,,iiiil 

liy distiuss aiiil suit! of tho goiids uiid cluittuls of if for ii st'i;oiiil otl'fiK.i', on tliu ground tliiit il m;u 

(left'iiilanl, and in ilefault of .sii(li<ifnt ilislruss iniide in tliu iiliMunuu of tliu defendant and witii- 

that tile ilefi'iiilant lie iiiijii isoned in tlie eoninion <iiit imtii'e. 

jail for the space of three inontlis, unless the said A motion having lieen made to aiiieiiil iho 

several sums and all losts and charges of siuh eonvirtioii iiiider the Act, sections 117 and IIS, 

distress niid of the i-oiimiitiiK'iit ami conveying liy reilucing the ainoiint of the line, 

of the defendant to jail he sooner paid. Ihltl, that the power of the Court to make 

III Id, that the conviction should not have such amendment was taken away liy the wnnls 

gone fnrthi'r than to impose the line and costs, "f secticui 117, "provided there is evidence to 

lea\'ing siilise(|iieiit jiroceediiigs in the matter jirove such ofl'ence and no greater penalty is 

for a further application to the same or another imposed than is aiitliorizeil liy such Act. " 
justice. 

<Jii(i' n , whether imprison; ^Mit could lie awar- 
de<l in such a case for a lirst oH'eiice. 

Qiiiui V. On; •_'(» X. ,S. K., (S U. ^t <;.), 4'.'(; ; 

!•('. L. v., llil. 



I'i. Jurisdiction -Inrormalioii and war- 

r.ant must show facts giving jurisdiction 
Constable— 111 an action for the conveision of a 
(piantity of intuxicatiiig li(|Uiirs the defendant, 
P., justified as a constalile, acting under a 
warrant purporting to have heen issued hy a 



.!/«), that the latter part of section 117 iiiimt 
lie read as if liie words " for the ofTence charj^'uil' 
were added. 

'the ground having heen taken, on the pari nf 
the proseciitioii, that the writ of e.xecutiiin, nn 
which tlu^ motion to ijuasli the conviction was 
liased, had not heen sueil out w ithin six inmitlij 
after the date of the conviction, as reipiireil liy 
the Knglish Statute, l.'Hieo. ■_». c. IS. 

//'/'/, that the statute is not in force in tliij 
I'ldvince, not lieing oliviously applindilc iiinl 
neces.sary to our coiicliiioii, ami the legisliitiiie 



Justice of the Peace under the provisions of the : "^ ^'''^ Province, in legislating uiion the suhjeot 
Canada 'remperaiice .Vet, 1.S7.S, and the deteu- 
dant .\I. as his assistant. 



'I'lie facts necessary to give jurisdiction did 
not ajjpear either in the information or warrant, 
and tiie warrant was issued liy one justice, con- 
trary to .section 10,S of tho Act. 

Ililil, that the conviction was had. 
AI-", that the constahle lieing a trespasser, 
his assistant could not justify under iiiiii. 

Nothing will lie intended in favor of the juris- 
diction of an inferior court. 

(InllUiiii- V. I'l/ir^oii 1 1 a/., 'itt N. ,S. f!., 

(SR. .\: (;.),•_>•.'•.'; 
SC. L. T., ;{!I7. 

13. Penalty in excess of tliat antliorizcd 

by Act — Motion to amend conviction— Con- 
sti'uction of sees 7 17 and 118— ^Imprisonment 
in default of distress -Objections by siibstivn- 
tive motion— Defendant was convicted for un- 
lawfully .selling intoxicating lifiuor contrary to 



(if ct rfiorari, having adopted the provisions nf 
many Knglish .Statutes while omitting to re-in- 
act tile piiivisions of the Act in (|iiesti(iii. 

.l/«), that the object ion, if available, iiuist iiave 
been taken by a substiintive motion to .set iisiile 
the writ of n rh'orari, and not in opposilimi in a 
motion to (jiiasii a conviction returned in ulicili- 
ence to the writ. 

The magistrate making the c'onvicti<iii liaviiii; 
imposed two months' im]irisoninent in default 
of distres.s, 

Ifi/il, that his jurisdiction, so far as iclateil 
to the trial and conviction, ceased when homaile 
the conviction ami imposed the jienalty. ami 
that he had no authority at that time to tix any 
term of imprisonment. 

After the conviction application may he niaile 
to the same or to any other justice in the same 
territorial divi.sion for a warrant of distress, 
whereupon the justice applied to will coiisiiler 
the eflect of the warrant upon the defendant 



, . . and his family, but if he decides to grant the 

the provisions ot the Canada Temperance Act, ■ ,. ■ ^ c ■ ■ .,.,w,„h 

,„_ ' , ,. , iv-i.wt c ,-i,_i,, , \y.j,.rm,t, can iiniKise no term of inipri.soiinient 

J8/S, and adjmlged for such otieiice to forfeit' 
and pay the sum of J^KX), and also to pay tlie 
prosecutor .'?7. 10 for his costs, and if such sums 
were not paid on or before a day appointed it 
was ordered that the same should be levied by 
distress of the goods and cliattels of the defen- 
dant, and in default of distress that the defendant 
should be imprisoned for the space of two months 
unless such sums were .sooner paid. 

Held, that the conviction, if for a first offence, 



until after the return is made and he kn<iws the 
amount remaining unpaid. 

I{(!){iia v. //yd,, 9 E. C. L. & E. R., 305- 
distinguished. 

Queen v. Porter, 20 N. S. R., (8 R. &(;.), 33'2; 

9 0. L. T.,37. 

14. Proceedlnss under Act held to be of 

a criminal nature— Defendant having been con- 
victed of selling intoxicating liquor contrary to 



281 



CANADA TEMPERANCE ACT. 



S82 



tilt' piDvisiDiis of tliu ("aiiiulii Ti'mjR'riiiioe Act,! 
](*TH, ai)i)li<'iiti<)ii WHS iiii'.ik' to a .liidge of tlic 
Siiiniiiif (diiit, lit Cliiiiiilpcrs, fur ii \Mit of 
iiriiiii'iii'l to luniove the jH'ovet'dinj^s into tlie 
,><ii|iiTiiii' Coiiil. 'I'Ik' iijipliciition haviiii,' liei'ii 
refused, ilufi'lidiillt ii|)|»'alcil. 

//./(/, tliiU tlu! iniUtt'i' was 11 criminal one 
fi.iiii wiiic'ii tiieri' was no appnal. 

Till' iippwil liaviny l)oen ilisniissLMl on a piu- 
Iiiiiiiiiiiy iilijci'iion, of which no notice iiad liccn 
givLii, tlif onk'i- was made witliout costs. 

Qui I II V. ('nUiiiniiil a/., 
20 N. S. H., (M K. i\; (1.), ;«).■); 
!»('. L. 'I'., «•_'. 

13. rroseciition for violudon oriirovisloiis 

— Iicfiiidant was |)nisccutcd foi' scMing iiitoxi- 
wtiiig Uiiuor contiai'y to tlie ])rovisions of tiie 
Ciiiniila Tcni]icrancc Act ISTM, and was dis- 
tliiirgcil for want of evidence that tiie liquor 
\v;issiil(l liy him personally or with his authority. 
On iipjical, the judgment lielow was sustained, 
diiiiigii the Court were strongly of opinion that, 
(111 lliu evidence, defendant should have been 
(.unvictud. 

Tai/lor V. (;ariii, OR. & C, 3,3,-); 
(if. L. T., 44,->. 

16. Pruseriitluiis under Witness -Arrest 

for disobedience of summons to appear and 
testify- E.scape and pursuit— Jurisdiction of 
.Magistrate to call witnesses — Power to ad- 
journ hearing — I'laintill' was .summoned to 
iipiicar as a witnes.s for tlie prosecution on the 
triid (if an information for a violation of tlie 
t'iUiiidii TcMi|)eraiice Act of 187.S. He was 
served witli tiie sunimons, and was paid the 
regular fees for travel and attendance, hut dis- 
(ilieyed tiie sunimons and made no excuse. The 
Magistrate, hefore wiumi tiie information was 
laid, issued four wai'rants in succession to liave 
lil.iintill"arrested and hrouglit liefore hiin to testi- 
fy, and adjourned tlie hearing of the cause from 
time to time for that puri)o.se. Plaintiff evadeil 
arrest under the first three warrants, but was 
wrested under the fourth. Having escaped, he 
was rearrested by defendants who gained access 
t'la iumse in which he had taken refuge, by rais- , 
iug a window. On his refusal to give bail, he ] 
was placed in jail. | 

ffdd (1.) That as the Magistrate had juris- [ 
(littion to enter on the enquii-y as to the fact of ; 
the proclamation of the Act, and whether licen- | 
ses were outstanding or not, he had authority to 
Mmpel the attendance of witnesses. 

('-). With regard to defendants opening the 
^vindow and entering the house to make the ar- 
fwt. (a). That the prosecution being a crimi- 



nal proceeding, the warrant was not suliject to 
tiic limitations which attacli to civil process, 
but had many of tlic charactei istics of an attuch- 
ment for which it was a substitute. ()>). That 
the evidem.'c showing a jirevious arrest and an 
escajie, the defeiiilanls might lawfully enter tlie 
house ill fre.-li jmrsuit, 

(.'{). Tliat the placing of tiie plaint ill' in jail 
under the eircunistances was justiliable. 

(4). That section 4<» of the .Summary Con- 
victicuis Act is not intended to prevent more 
than one adjournment or, if so, tlie plaintiff 
could not take the objection. 

Miss, n,/, ,• V. I'urki V il al., (1 K. & ( i,, '2:i7 ; 

(>(', L. 'J'., 444. 

17. Stipendiary Magistrate held witliin 

13 Geo. 2, c. 18, s, 5— Defeiulanl was convicted 
before the .Sti])eiidiary Ma^'islrate for t'ornwallis 
Police District of a violation of the I'anada 
Tenil>eraiice Act, IMTS, and the coiniction 
having lieen brought up by cirtiomri, the Court 
was moved to set the conviction aside on the 
ground that the Act was not in force when it 
was made. 

The order for the n rfiorurl was not moved for 
until after the lapse of twenty-two months from 
the date of the conviction. 

//'/'/, that ill making llie conviction the Sti- 
pendiary Magistrate was exercising the functions 
of a Justice of the Peace, and conseiiueiitly that 
the Imperial Act, bStieo. 'i, c, 18, s, r>, limiting 
the granting of the writ of eer/ior(tfi to si.x 
montiis after the date of the conviction, applied. 
Tlie motion was refused witli costs and a jiroce- 
ih iiilo ordered. 

The (juestion was not raised whether the Act 
of 13 (ieo. "J was in force in this Province, but 
merely whether the Stipendiary Magistrate was 
within the Act. -Vet (/itttii v. I'orlci; "JO N. .S. H. , 
iio-2. 

Queen v. McFadihn, 6 1{. & (1., 420 ; 
OC. L. T., o-SS. 

18. Stipendiary Magistrate wlio is also a 

J. P. can act as such under— 'J'lie Stipendiary 
Magistrate of New (ilasgow sat as a Justice of 
the Peace with another Justice to try a case 
under the Canada Temperivnco Act, which pro- 
vides that trials may be had before a Stipendiary 
Magistrate or any two other Justices of the Peace 
for the County. 

Held, that no disqualification was intended 
by the word "other," and that the conviction 
was gooil. 

Weatherbe, J,, duhilanfe. 

Queen v. Graham, 6 R. & G., 455; 
6 C. L. T., 537. 



283 



CARRIERS. 



iH 



CAKKIKKS. 



without tt jury, fouiul tliiit i\w jjixxls Imd been 

(liuiiiiged ill liciiig liiudud, iiud giivu judgintnl 

fcir plaiiitilV. 

I/iltl, that till' lauding of the g Is at the 

railway wluilf diil not tlischafgu the dtt'iiHlaiits, 
— . . , and llmttk'fi'udauts were liahlu uotwithstaiidiiig 

the valiu' of luT trunk which xlie alleged had ,1^, exceptions in thehill of lading, for tin 



1. Action iiKnlnst by passenger for loss of 

luggage Questions of tact for jury alone- 

IMaintitV, a passenger from Halifax to I'oitlaml liy 
one of defendant Company's HteanieiH, sued for 



the hands of the Company 'h i,, ti^. g„<ids l.y rain, whether caused in the 
aervanlH and a check given her therefor. l)i^ _,f i„,„iin„ ,„. ('voiii tin. driiiiiinuM i.l' tin. si 



been plaeeil 



fendautsi denied receipt of the trunk, and gave 
evidence that the plaintitl' had received the 
check not from them, hut from the caliman who 
had driven h.'r to the wharf. At the trial, the 
learned .ludge wan inclined to grant a motion 
for a nonsuit, hut consented to hear defendant.s 
evidence, and take a verdict suhject to the 
opinion of the Court, whereupon a verdict wa.s 
rendered l>y consent for plaintiil' for the full 
amount claimed. The question was purely one 



le uijiiry 

L' net 

if landing or from the drippings oi the sliei',, 
over which ])laiutitl' had no control. 

I'lr Weathci'lie, .)., dixicutiiiij, that liie m\\. 
signees not having taken the goods from aioni;- 
side, they had lieen landed liy the niiisltriiiul 
depoHited in the eompany'H wareliouse ut the 
consignee's risk of injury from rain, tlicre luiiig 
nothing in the liill of lading to limit tht^ siiiij- 
owner as to the place in the port of Halifii.K at 
which the gocids were to he landed liefme lieiiig 

U'liosited in the company's wi 



— . - ,n ,,w.^,i.v,., ... ...V- ^ y,...j ^ .rarehouse; ami, 

of fact, the only point of law involve.l lieing as f,„,j|,^,,.^ that the verdict should he set aside 

J. _ ...1.. i.\ al... ..l..i..*llV ..mrlit fifkf it\ llllfit Iwutl) 



to whether the plaintilV ought not to have heen j 
non-suited. 

//</'/, that there should he a new trial as the 
case was one for the jury oidy and not for the 
Court to decide. 

Sfimiiioii V. Thr Xcii: EiKjluiid and Nora 

Scotia Sltdnifhip Co., 3 N. S. D,, 184. 



lecause th-re was no legal evidence in siippoit 

of the ground upon which it was based, namely, 

that the goods were injured in the act of landing 

them. 

Itohtrtsou V. Dominion S. S. Co., 

1 R. &(i., 149. 



2. Bin of liidlni? -Exceptions in Liability 



3. Carriers -To what extent they may 

exempt themselves from responsibility for 



Z« Dili Ul lllUlllfj JJ.«V|H1"".J ■" mjM..wii.ij w-v — i-w - 1 ., 

of shipowners -I'hiintitf shijjped a (piantity of injury in absence of legislative enactments- 
iron on defendants' steamshi)), and took a bill In the absence of legislative enactnicuta of n, 
of lading containing these words: "hiss or dam- restraining character, a railway or steamlxiiit 
age resulting from . . . leakage, breakage, company may impose su.di terms upon the imh 
rust, decay, frost, rain, injury to or soiling of lie as to exempt the company from rcspmisiliiliiy 
wrappor-s or packages, however caused, ... for injury, however caused, including tlierelui- 
excepted. The goods to be taken from along- [ gross negligence and eveti fraud or disi.iniiesty 
side by the consignee immediately the vessel is on the part of their servants. 

- ... , . ,, •,! 1 : r-, I .. riU... II 1 '/' I 



Dod.^oii v. The Cnuid Trunk Raiin-uij Co., 

2 N. s. I)., m. 
4. Exemptions— Common Carriers -ton- 



ready to discharge, or otherwise they will be 
landed by the master and deposited at the ex- 
pense of the consignee and at his risk of tire, 
loss or injury in the warehouse provided for that .. ^ 

purpose on the company's wharf at Halifax, or ; tract made with agent— Agent's eraployeea- 
sent to the public store, as the Collector at the \ Power to do certain acta— Ordinary course of 
port of Halifax shall direct." The steamship business — Liability of principal in case of 
proceeded, (jn her arrival in port, to the railway [ loss— A number of cases of wine were ilolivercd 
wharf, and in order to get at goods to be there i to S. & Co., defendants' agents, at the port "l 
discharged, the plaintiff's goods were taken out | Antwerp, to be forwarded to plaintiil at Hid ■ 
and dcpositeil in a shed on the wharf. I'laintiffi fax, X. S. The bill of lading was signed by 
was aware of the arrival of the ship and paid [ S. & Co., pp. (!. K., and described the goods as 

, . , ,. ..,!.. , • 1 _i_ 1 lu;,.,, The 



the freight, but could not obtain delivery at the 
railway wharf, as the approach was unfit for 
teams, and the agent of the ship afterwards sent 
the goods in a lighter to Corbett's wharf. The 
goods were injiu-ed by rain either on the railway 
wharf or in the shed. One of the plaintiff's wit- 
nesses gave evidence, not objected to, tliat a 
clerk of the agent for defendants had stated to 
him that the goods had come out of the. ship in 
the rain, and the Judge who tried the cause, 



shipped in good order and condition. Hie 
goods were shipped from Antwerp by a steaiiK-r 
running to Liverpool, G. B., and on then' 
arrival at that port were reshipped on bwiid 
one of the defendants' steamships for Halit'iix. 
On their arrival, plaintitt' was notilicd of tiie 
fact by C. «& Co., defendants' agents at Halifax. 
and was required to pay the freiglit and take 
delivery. C. & Co. also demanded and received 
from plaintiff his share of a general average loss 



2H5 CARRIERS. 286 

coiwi'iiuent to itii accidfiit t(i tlie sliip on tlio //(/(/, tlmt (Iffoiulants woro liiilile iiotwith. 

voyago. On exiimiiiiilion of tlie goods previous stiiiidiiii; tliu npuuiul contnut that the inaeliinery 

U) iklivi'iy, it was found that si'Vi'ial of thu was to l)c rairiL'd at thu owni'iV rink, 

ciwshail litrn tanipiTL'd witii, and a niiinlier of //</(/ ahti, tiiat tiiis was not a suit " for in- 

luittlcs uf winii emptied of tiieif eonli'iits. (1. demnity for any damage or injury sii<5t;'.ined liy 

K., liy wh<im tlie signature of S. ^^ Co. was reason of the Railway " under see. 'JO of tin" N. 

utiixeil to the hill of lading at Antwerp, hail no S. Railway Act of 1880. 

wiiltih iiutliorily to ch) so, Imt was the eldef IV hitman v. Tht H'e.^t<rii Coitiilin liu'diray Co., 

clerk mill proxy of the lirm, and acted in the 5 R. &,(!., 405. 
usiwl I'Durse of Imsiness. 

//,/-/,/,.,■ .Jan.es, .) that the bill of lading «. t'ommon - Evldeiice of delivery of 

ImvuiK been produce.l l.y the plaint itl at the gooda - Constructive delivery - Where the 

requcl of defemlants- agent at Halifax, and .Judge in charging the jury told then, that "put- 

Imvmg heen lecogni/.ed l.y then., and they hav- ting out of co.,sidcration all udniissions that had 

a,g aHMa..ded and receive.l fn.n, plaintilY his ,,,„„ ,„ntradieted, which ..n that account ho 

inopurii,,.. ot the gene.al ave.age loss, the thought they shoul.l dismiss from considerati.m, 

paper,, whet.her properly signe.l or not, must the plaintirts were in his oph.ion clearly e.ititled 

lie ticateil as the contract under which defend- to recover " 

ants leceived and carrie.l the goods ; that y/, /,/_ that this was not a n.isdirectU.n. 

(lefe.Mlants were hound l.y the adn.ission i,. the ^vhor.•e the plaintilf gave evidence, uncontra- 

l.ii! ot ladmg that the goods were receive.! in ,,i,te.l, that defen.lant, the captain of a vessel, 

S;.K„l„.-,kra..d condition, a..d the goo.ls hivving t,.ld her to send her goods t, a certain wharf. 

l,ee„ ta,„pe,e.l with while in their possession, ,^,„, ti,.it she set them there. 

... ti.e ahsence of evnlcnce to l.rii.g them within /y,y,/, that there was evidence of a construe 

the exen.pt.ons i„ the hill, defen.lants were tive delivery to the .Icfendant, which i.nposed 

''«"' M I 11 T , on 1. in. the duty of hioking after the plaintiff's 

/o' McDonald, J.-lhat the appointn.ent of goods and taking then, on l.oa.d. 

S. .\: Co. as defendants' agents authorized then. MorrUon <:t al. v. Thon,r-on, '.' R. &. C, 411. 
to peifciiin all things usual in the line of liUoi- 
iiess ill which they were eniployed, and involved 

power lu do particular acts l.y others within the ^' f OmmOll - EvIdeilCC Of delivery Of 

scope of iheh' l.usiness. That (J. K. as their good.s-Diflerence in liability for freight and 

chief elerk was conipetent to sign the name of Personal luggage-l'Iaintilf, a travelling agent 

the lir... to bills of huling in the ordinary course ^"'' '' '"•"■'''•''"'t'l^' '''"'. ''^'"y '^''""t to wiil from 

of Imsiaess, without any written authority to •'^'- ^''''"''' *" Halifax m defendants' steamer, 

•lu so. took two trimks ami an ordinary packing-box 

That the .signature to the bill of lading havii.g '""' '-•''^•"' "'^il^'l <'"- '^H tl"''-'i= containing sani- 

beea proved to have been ma.Ie in the usual P''^' "^ merchandise, to the wharf where defen- 

co.u.se of business, n.ust be taken to have been '''"'^'' ''^"'"'^ ''"" '>''"*''' '""' «''''^ '"" ^"'"''" ""^ 

aiuhori/ed by the defendants, especially as the ''"'' "' '''''"'«" "^ ^'•''" "'"' belonging to the 

evi,lenee sliowed that it was afterwards adopted ''•''''•''• "'""°'' '" ''"'''^ ^''ip-i^'ity 'li'l "ot appear. 

ana acted upon both by S. & Co. and by the "*" ''"^ ""'' ^""^ *'"-' *'""^'** *"^''" "" ''°'"'''- '^'''® 

defeailants' agents in Halifax ; that defendants *'''" *''""''' '"'''''' ''^'^•'^'^"'^'l '^^ Halifax, but not 

were bound to bring theniselves within the ^''^ ''"''" 

exenipiions contained in the bill of lading, and, '''""''■«' whether there was sufficient evidence 

having failed to do so, were liable. "^ delivery of the articles to authorized agents 

„ „,, ,, of the defendants. 

Hoiinev. The Jfoiilreal S. S. Co., w//.i t.i •. .■ i ., ^ ,■ 

^ ' iic/if, that the eviilence sustamed the finding 

7 P f ^,p' '"^IT-' "^ ^'"^ J"''y ^'"^"^ <^''<' a"°^'« (being freight) were 

. . I., Jia. (.(.gyived by defendants, not as freight, but as 

I personal luggage, and that defendants were not 

5. Common carriers -Xegllgcncc of— In- '''*^^'''- 

jury to goods before the journey— Limitation Hctmillon v. Amjlo-Frcnch S. S. Company, 
of actions arising from injury by railway— I 2 R. & C, 352. 

Plaintiff delivered a planing Machine to defen. ■ 

Jants to be carried between two Stations. In : 8. €onimon - Measure Of damages fOf 
Pi'^cing It on board a car for that purpose defend- injury to goods delivered to— PlaintiflF delivered 
ants servants injured the machine by negligence | to defendants a roll of oil cloth to be conveyed 
or want of proper appliances. | by them as common carriers. On arrival it was 



287 



CARRIERS. 



288 



found to be damaged, and the plaintiff refusing 
to receive it Iji'ouglit action for its full value. 
The defendants paid a small sum into Court. 
The amount of damage was variouyly estimated 
by different witnesses, the higliest estimate being i 
only one-third the alleged value of the roll. Tlie 
Judge at the trial directed the jury that if they 
thought the damage exceeded tlie amount paid 
into Court they should find for the ])laintitl', 
otherwise for defendants. He furtiier directed 
them that if the oil cloth was not seriously dam- 
aged, but easily repairable, the plaintiff was 
bound to receive it and claim oidy damages, but 
if too seriously injured to fulfil the jnuposc for 
wliicli he reijuired it, he might claim its wiiolo 
value. 

The jury found a verdict for the fidl value of 
the roll, after deducting the sum paid into Court. 

Held, Wilkins, J., di.^si-iitiiiii, tluit there had 
been a misdirection ; that the plaintiff could only 
recover damages to tlie extent of the injury he 
had suffered and not the full value of the oil 
clotli, and that the rule for a new trial should ' 
be made absolute unless the plaintiff would con- 
sent to have the amount of the verdict reduced. 
Payment into Court does not admit the full 
claim of plaintiff, Imt only the liability of de- 
fendant to the amount so paid in, aiul if the 
plaintiff would recover bej'ond that amount lie 
must prove that he h entitled to do so. ; 

Dodije V. Windmr lO Aiiiiajio/is Ita'diray Co., j 

•2X. S. U., 537. : 

9. Condition on ticlict— Negligence -Evi- 
dence — Verdict —Plaiiitifi' lirought action to re- 
cover damages for injuries caused to her luggage 
on defendant's steamship, in consequence of tiie 
breaking of a dummy or side-light, which, al- 
though not constructed according to tlie latest 
patents, was such as had been in use for vessels 
of that class. The ticket for the passage was 
issued under the Imperial Act, 18 and 19 Vic., 
c. 1 19, whicli required comlitioiis forming part 
of tiie contract to appear on the face. On tlie 
face of plaintiff's ticket was a direction to " see 
back of ticket," and on the back was printed a 
condition that defendant was not to be responsi- 
ble for loss resulting from shipwreck or disaster 
of the sea. The carpenter swore tliat he had ex. ' 
amined the dummy every day before the day 
when the injury was discovered, and had seen 
it at ten o'clock on the morning of that day. The 
only evidence of negligence on his part consisted ] 
of unsworn statements of the captain and other 
officers, as testified to by one of tlie witnesses, ' 
that the damage had been caused by the negli- 
gence of the officer whose duty it was to visit 
and inspect the luggage room. j 

Held, that the plaintiff was bound by tiie con- j 



ditions, and tliat the verdict for plaintiff, liased 
upon the imperfect construction of the (luiiiiiiy 
and the negligence of the defendant's scivarit, 
must be set aside. 

Wood v. Allan, 1 R. , (i., 477. 

10. Conveyance of persons — Estimating 

damages for injuries — In actions aguinst tai'- 
riers of jiasseiigers for injuries, there seem to Ije 
no well defined rules for estimating daiiiagi.-.>i ; it 
is a matter to lie submitted to tiie sound discre- 
tion and judgment of the jury, the actual loss to 
the plaintiff, present and prospective, lieiiig the 
lowest amount which they are justified in giviiii' ; 
and the Court will not set aside an assessnieiit of 
damages liy a jury where there is no evidence to 
show misconduct of the jury, or that tliey acted 
upon a wrong principle, or from a corrupt motive. 
\Vlieie oral evidence was given of an oti'or read 
to the witness from a card by the manager of a 
railway, the wonls iiaving been taken down Ijy 
the witness in his pocket-book, wiiicli was after- 
wards lost, and the card having been retained 
by the manager, it was held that the evidence 
was admissible, not as evidence of an otter in 
writing, Init as evidence of a verbal otler, of 
which it was competent for the witness to si)eai< 
either from a minute in Iiis pocket-book or from 
recollection. 

Blanchavd \\ IP'iiulior & Annajjolis Unihray Co., 

1 R. k ('.,%. 

11. Conveyance of persons — Injuries - 

Negligence — Verdict — Plaintiff, a passenger 
travelling by the Windsor & Annapolis Railway 
from Annapolis to RicliiiKmd, fell while aligiit- 
iiig from the train at the latter place and sus- 
tained injuries, to recover damages for wiiioli 
he brought an action against the Company, 
charging them with negligence in respect to the 
lighting of the station, and the jirovisiou of sale 
means of transit of passengers from the cars to 
the platform. The evidence on these points 
being contradictory, and the jury having fouiul 
for the defendant, the Court refused to disturh 
tlieir verdict. 

CurwiH V. WiinUor tl; AnnajioliH Jiai/irai/ Co., 

3 N. 8. b., 49.'!. 

12> Evidence, conflicting as to negligence 

— Plaintitf brought an action against defendants 
for injury to her luggage on defendant's steam- 
ship, caused by the breaking of a dummy, or 
side light, and the alleged negligence of defen- 
dant's servants. Conflicting evidence was given 
on the question of negligence, and a general 
verdict was found for the plaintiff, which the 
Court refused to disturl). 

H'ood V. Allan, 3 R. & U., '^H- 



289 



II, 



CERTIORARI 
CATTLE - 

INML'FUKS TO, HY DOiiS, &c.— 

Sec ANIMAL. 
INJURINO— 

Set CRIMINAL LAW. 



290 



I 2. Appeal, risht of, not exhausted-8uPt< 

inary cause— No jurisdiction in Supreme Court 
to re-hear on certiorari— Defeiiilant, in a cause 
in the City ("ouit, tiled ami served liis grounds 
of defence unsigned. 

Tile Magistrate, after tlie plaintiff had l)een 
sworn, decided lliat tile grounds were insudi- 
cient, and directed judgment ]>y default to be 
entei'ed. Defendant )ii-ougiit tlie cause up by 
writ of certiorari. 

Hilil, that an ap])eal lay from the judgment 
beh)w, and further, that nothing couhl he dime 
with the cause under the certiorari, aa the mat- 
ter was a summary one and the summary juris- 
diction of tiie Supreme Court had been taken 
away. 

/Vc Young, C. J., we have always held that 
ctrtiorari does not lie when there is an appeal. 
Eaijar v. Carey, 1 R. & ( J. , 49. 



CEKTIOKARI. 
1. Adjournment of proceedings obtained 

on ground of absence of witness— Then proceed- 
ings removed by certiorari — Service of rule 
im to quash —Waiver — Defendant, brought 
liefore Justices of the Peace on a charge of sell- 
iiii; intoxicating liquors contrary to law, obtain- 
ed 11 continuiince after the investigation had 
been paitially gone into, alleging the absence of 
a material witness, liefore the day to which 
the trial «as continued by the Justices he sued 
out a writ of ctrtiorari to remove the proceed- 
ings to the Supreme Court. A rule nixi was ob- 
tained to quash the certiorari which was served, 

not on the attorney whose name appeared on tliary Magistrate for Police District No. ;{, in 
the pwcipe for the writ of certiorari, but on his the County of Annapolis, for having wantonly, 
late partner. Xo attorney's name appeared on cruelly and uimecessarily beaten, ill-used and 
the writ itself. Xothing was done on the return abused a pair of oxen, the property of J. \V. D., 
day of tlie rule nisi, but afterwards a rule was and for such offence were adjudged to pay a tine 
obtaimd fidiii a Judge at Chambers to enlarge of 8'2(), with !S±i.4(j for costs, and, in default, to 
it and have tile cause placed on the docket for be imprisoned, Ac. 

the tiien next term. On the argument of this I The cause came before the Court on appeal 
rule the attorney of defendant stated that he from the refusal of a Judge to allow a writ of 



3. Application for writ to single Judge, 

and afterward to Court — Practice — Dis- 
cretion — Certiorari where right of appeal 
not lost— Tlie defendants E. R. and H. R., his 
wife, were jointly convicted before the Stipen- 



didnot appear to show cause be<;ause tlie rule 
as lie contended had not been served, and that 
if the service was held to be good he wanted an 
opportunity to appear. 

Hihi, that the objection to the service of the 
ride iiad lieeu waived by the attorney appearing, 
and tiiat noi uthority being shown to justify the 
issidiigof the certiorari after the commencement 
of the investigation and before judgment, the 



Certiorari, but a preliminary ol)jection having 
been taken to the appeal in such a case, an appli- 
cation was made to the full Court for a certiorari 
on the same grounds an<l athdavits. 

//(/(/, /ler McDonald, (\J., ami Townshend, J., 
that it was open to defendants to make such ap- 
plication. 

A/xo, tiiat tlieolfence of which the defendants 



were convicted was one which was single in its 
grounds disclosed in the allidavit for certiorari i nature, an<I for which only one penalty could be 
I'Miig merely formal or frivolous, and the Su- awarded, but that the award of one tine against 
Feme Court having no power to try the cause the two defendants uas erroneous, and, on this 

ground, that the ctrtiorari should issue. 

Per McDonald, J., that the order of the single 

Judge could not be got rid of except by way of 



a""v, as its summary jurisdiction had been 
a'tlished, tlie certiorari should be (juaahed and 
the cause remitted to the Justices. 



■''wrc, whether the writ of ft>v;omr/ was not 'appeal, the law constituting a single Judge, in 
<f eetive for want of the name of an attorney. ^ such cases, a tribunal with original jurisdiction 

Hatiierlie, J., dissciitiu;i, held that the orig- equal to that of the full Court. 
""1 rule nisi had expired and could only have 
wea revived by a motion in term, a Judge at 



Aho, that the allowance or disallowance of the 
certiornri was entirely a matter within the dis- 



^^amltcis having no power to deal with the ' cretion of the Court or Judge applied to, and, 
'Ject;aml further, that there had been no j such discretion having been exercised, the Court 



*»'«r of the want of service. 

Jiloit V. liichardii, 1 R. & G., 203. 
10 



would not bo justified in over-ruling his order. 
I Per Ritchie, J., that the application to the 



291 



CERTIORARI. 



292 



full CVmrt should not be entertained unlesa it 
were sliow u that tiie riglit of iippeal liad been 
lost. 

Alao, that the allowance or (lisallowance of 
the writ was a matter of discretion from wliicli 
there was no ai)i)eal. 

1,1 >;■ Hire, '20 N. .S. R., (S R. &(;.), '2'M ; 
8C. L. T., 44S. 

4. Assessment amounting to more than 

Sl.oO j)cr acre made by a Commissioner of dyke 
was brought up by ar/iorari and ((Uasiied. 
In n: Hisho), Dyh, 'JO N. S. R., (« R. &(!.), 

O.'^ it •_'•):{ ; 
8C. L. T., 44ti. 

5. Asscssnient bronght up bj writ of— 

An assessment of a vessel registered in tiie port 
of Halifax and owned liy a trader resident at 
Isaac's Harbor, in the County of (Juysboi'o", was i 
made in the district of Isaac's Harbor for County 
rates. 

A rnle »/•.(' was made absolute to remove the | 
assessment, and on a special ease the Court 
decided that the vessel was not liable to be so 
assessed. 

Ill re Ejlic, Sinet, 3 R. & G., .S80 ; 
3C. L. T., 44. 

6. Attachment granled for refusal to 

obey writ of— Matter treated as already in 
Court, although writ not returned —Intitul- 
ing affidavits- A writ of arliorari having lieen 
issue 1 out of the Supreme Court, to tlie Chief 
Conmiissioner of Mines, tlie Comndssioner de- 
clined returning or obeying the writ, for reasons 
which the Court held iiisutlieient, and a rule uiii 
for an attachment was thereupim granted. 

The rule was opposed on two grounds, the 
second being that tlie allidavits upon which the 
rule was gianted were intituled in the cause. 

//</(/, Wilkms, .)., di.'<s,iili,iii, that although 
the writ »i orliomri had not yet lieen returned, 
the matter was already in the Court, and there- 
fore the afiidavits were riglitfidly intituled. 
In re Clyde Coal and Miniii'j Company, 

'2N. S. D.,r)6. 

7. Ball— Defect In— Allowance of writ 

affected by right of appeal, or want of jurisdic- 
tion to inquire into facts anew -Order for muat 
show jurisdiction— Imperial Act, 13 Geo. II., 
c. 18, whether applicable to this Province — 
Queen v. McFadden, 6 R. & G., 426, reviewed 
— A writ of cirliorari was issued on bail taken, 
not as j)re8eribed by the Statute, " to respond 
the judgment," but upon a condition forbidden 
by the statute, viz., that the rendering of the 
body should exonerate the bail. 



If(/d, that the writ ought not to have lietii 
issued. 

Ifi/il,j'iirlhi r, thut the writ slionid not liave 
been allowed, as there was a right of a))|Kal ex- 
isting in the Conrl l)elow, of which the (leteiiclant 
had not availeil himself, or accounted f(ir iiis 
failure to do so ; and also as tlie sumniaiy juris- 
diction of the Supreme Court had lieen lakin 
away, so tliat the facts couhl not be iiii|uiieil 
into anew oi' tiie case satisfactorily disposed of. 

.l/.vo, tiiat the onler allowing tlie nrtiomri 
was bad, as not showing on the face (jf it tlie 
facts necessary to give jurisdiction to tlie Com- 
missioner by whom it was granted, and that tlie 
olijection was suliicieiitly taken in the notice of 
motion to set aside the writ when it slal>il that 
the order for the writ did not show on the fate 
of it that tiie Commissioner who graiiteil the 
same had jurisilictioii to grant the same. 

(Juaeri , whether tlie Imperial Act, ]'.\ (leo. '.', 
cap. 18, applies to this Province. 

(^hiirn v. Mi-Faildin, (J R. & G., 4'2fi, leviewed. 
Wallaee v. King, 'M X. S. R., (8 R. & (i.), -.'S.-J; 

8 C. L. T., 419. 

8. Bond Instead of bail piece lllcd-Writ 

quashed — Re-arrest of defendant after writ 
quashed — Cirliorari to remove a convictidu l"i' 
violation of the License Laws in the City uf 
Halifax (luashed on the ground that a Ikju.I IkuI 
been tiled instead of bail. 

The defendant having been released en the 
issue of the nrliorari, and re-airested on the 
original warrant after the n rliomrl was ([uaslieil, 
the Court granted a rule under the Statute "Of 
Securing the Liberty of theSulijcct" uu terms 
that defendant shouhl bring no action. 

The City of Halifax v. Leake, "2 R. & (i., 141 

9. Bond on appeal or on Issuing writ of 

certiorari — Action on — Indorsing name of 
relator on writ in action — 4th R. S., e. la 
ss. 25, 26 and 39.— In an action on a hoiid to 
the (^lecn under 4tli R. S., c. 75, s. l'."), an at- 
torney was named on the writ, but it was not 
shown at whose instance or for whose advantage 
the action was brought. The Court passed an 
order staying the action until plaint it! "sattorntv 
should indorse on the writ the name of the 
Clerk of the License or the other person at 
whose in.stance the action was broiiglit, tores 
pond the judgment. 

Queen V. MeKareher, 3 K. & C, 33/. 

Proceedings similarly stayed in Qmoi v. Cartir, 
but the correctness of the order staying quM- 

tioned. „ u o on: 

Qwttn v. Garttr, I R. « l"'. *'' 



29.S 



CERTIORARI. 



294 



10. Bond Oil certiorari- Indorsing name! ihM, timt in making tlio conviction tiie sti- 

of relator -4th R. S., c. 75, ss. 25, 26 and 39— i pcn.Iiary Magistrate was exercising tlie fnnctions 
111 iiii aitidii on a nrtioruri lioml, nnder 4tli ! of a .liistice of tlie Peace, and cons^iuently tiiat 
R. S.. c. 7."), "t)f Licenses," tile defendant j tlie Imperial Act, 13 Ceo. 11., c. IS, sec. 5, 
oljtaiikd an order /((W for the indorsation on limiting the granting of the writ of r.jV /omW to 
tho writ of the name of a person to he six months after the date of the conviction 



liable for costs, under the practice estahlislied 
liy V'"'" V- .Vr/uirr/iir, 3 R. & C, .S.37. I'.e- 
fnio the rule was made alisohite the ])laintiti' 
iiKiorsKJ tiie name of the Clerk of License and 
gave tlic defendant notice. A rule was after- 
wanls ohtained making the rule ///>/ alisohite 
ami ^.'iviiig tiie defendant ten days to plead. 
Piaiiitiir. after the rule w.is made ahsidnte, in- 



applied. The motion was refused with costs, 
and a jimci ih nito ordered. 
''>io''y> •'■> 'li'"''" iifiii'J. 

'Jiiuii V. MiFaddtn, 6 R. & (J., 4'.'6 ; 
6C. L. T., .-).•«. 

13. Canada Temperance Act, 1818-Con. 

(loisfd tlie name of tlie Cleik of License a second I viction for third offence made in absence of 
time, Imt did not give the defemlaiit notice of defendant set aside -Procedure under Hawea 
till' sfcdiid indorsation, ami. after the exi)iration v. Hart confirmed Defendant was convicted 
of tell ilays, marked a iletault forwant of a plea. , i" her ahsence of a third otl'eiice against the 
II-I(I. that the default had heen regularly Canada 'remperance Act, 187H, and was sent- 
miukfiL 



enceil to imprisonment for sixty days in tho 
county jail at Annapolis, and to pay the sum 
of .>«il.;{.'{ costs to the prosecutor, and in default 
to 1p(! imprisoned for a further term of lifteen 
<lays. 

llil'l, that the Magistrate had exceeded his 

ji'.-isdiction in making the conviction in the 

iruig tlie pendency of an W/o,vov to, emove; ahsence of the defendant, and thai the convic- 

a.onvution ot the defendant for selling intoxi- tfon must therefore he -set aside. 

eating liquors contrary to law, defendant was Aho. that under the Caim.laT. 

again convicted and fined .S'_>>_>.S(I, inclusive of 



Qmn-i . as to the practice estahlislied l.y 
Qntiji V. Mi-K(nr.h, r, .'{ R. it ('., xr,. 

•imni V. C<ir/,r, 1 R. i*t ()., ;{()7. 

11. Bond on Is.suins writ of certiorari- 

4tli K. S., c. 75 - Condition -Proof of breaches 

-Duri 



costs, whieh was reduced helow si.'(l hy a part 

piiyiiiint, and action was brought in the County 

Conit for the balance <m a bond conditioned section takiii« the 

that (iiteiidaiit woiiM not sell during tlie pen- 

iliiay of tlie appeal from the first convicticm. 

There was no evidence that he had sold Honor 



'emperance Act, 
sec. l(»7, it is imperative upon the Magistrate to 



adopt the procedure specially made for cases 
under the Act, the express provisions in that 
matter <mt of the ordinary 
course laid down in the Summary Convictions 
Act. 

/'"■ 'ri'wnshend, J.— The decision in [fames 
IKMSonally, but it appeare.l that li.pior had been v. Hnr>, (i R. & (J., 4-.', settles the right of tho 
M.Moi, the premises by a woman who was not C.mrt on a motion to .,uash a c.mviction to 
sho«i, to he defeiulant's wife, child or servant. i,„,,ii, ., i„to the matter so far as to be satisfied 
^/".tliat the breach of the condition of the whether the Court beh.w had jurisdiction or 
boml had not been proved. „„t_ 

<.'""■/■'. whether even a sale proved to iiave i Queen v. Saler, 20 N. S. R., (8 R. & <i.), 206 ; 
iKen niade hy a wife, child or servant would bo I 8 C L T 380 

a bleach of the condition. I ...... 

\h>f(n V. MrKor.k, 1 R. & C., 488. ' 

.., I 14. Canada Temperance Act, 1818 — No 

1^. I f rllorarl -Must be applied for within ' appeal from refusal of Judge to grant cn-tioraH 
M months trom eonviction -Imperial Act, 13 toremove conviction under the Act~-Proceed- 

b f 1 '^ ^^' ^^^' ^ '~ ^"^^^ ~ Procedendo ings held to be of a criminal nature— Defen.lant 
- etendant was cimvicted before the Stipen- ^ having been convicted of selling intoxicating 
l^wry .\n,gist,ate for Cornwallis Police District j li(,uor contrary to the provisions of the Canada 
[*'":'""" "^ *''« <-''i'>'i<la Temperance Act, Temperance Act, 1878, application was ma.le to 

iS, and the conviction having been brought ' a Judge of the .Supreme Court at Chambers for 

P >> crlmrari the Court was moved to set a writ of cirtiorari to remove the proceedings 
j^convKtioi, aside .,n the ground that tiie Act j into the Supremo Court. The application 
fonr." ,"'/""'" .^* '"^" '*' ^^■'^'' """*'^- '^"'"^' "'■''*•''■ having been refused defendant appealed. 



e m-Uomri wa» not moved for until after 
'6 lapse of twenty-two months from tho date 
<" the conviction. 



Hirld, that the matter was a criminal one, from 
which there was no appeal. 
The appeal having been dismissed on a prcli- 



295 



CERTIORARI. 



296 



miliary objection, of wliioli no notice iiail l)een rcail as if the wonls "for the ofTence cliarycj" 
given, tlie order was made witiiout costs. were atldcd. 

',>((( tH V. Citlhoini it a/., 'JO N. .S. H., Tju' niagislratc making tlie conviction having 

(8 R. & (1.), .S!).") ; imposed two montlis' inipri-sonmeiit in dcfiuilt 
9 C. L. T., 62. of distress, 

][i/(l, tlial ids jurisdiction, so far as rclatoil to 
15. Canada Temperance Act -COUntyCOUrt *''« f''»l '""l conviction, ceased when hv ma.Ie 
prohibited from proceeding with <v rllornri to tl>« conviction and imposed tiie penalty, iiiul 
remove conviction under Canada Temperance tluit he ha.l no antliority at that time to lix any 
Act -Reference by Judge at Chambers to,t«nn of imprisonment. After tlio conviction 
Court /// 'miir~A conviction under the Canada application may be made to tlie same or to any 
TeniiKiance Act was removed to the County : otlier Justice in the same territorial division for 
Court by nr/lorari. The prosecutor applied to 'i warrant of distress, whereupon the Justice 
a Judge of the .Sujjreme Court at Cliambeis for apjilied to will consider the ctlcct of the warrant 
a writ of prohibition to juohibit the County upo" t'le defendant and his family, but if lie 
Court from further proceeding on the r<rliomri, \ decide to grant tlie warrant, can impose no 
aiidtlieorder((/.s/forthewritof prohibition was term of inipri.sonment until after the rctuin is 
by a .Ju<lge prcsi.ling at Ciiambers referred to ""I'i^ '""I l"" knows the amount remaining 
theCourt (h/otw. Defendant's counsel objected unpai.l. /.'<;//«« v. Jlyde, 9 E. C. L. .V: K. K. 
that thc.ludge at Chambers couhl not so refer 30.") distinguisiied. 
the application. i V'""^'' ^'- J'orlu; -JO X. .S. R., (8 R. & (i.), Xf2; 

Ht/il, that the writ of prohibition must be | 
allowed, )>ut witiiout costs. 
Qiinii V. O'X'i/, 20 N. S. R., (8 R. & (i.), 530. 



J 



9 C. L. r. 



0/. 



17. Canada Temperance Act -Excess of 

i jurisdiction — First ofl'ence — Defemlaiii was 
.. _ . _ , . J01.0 n convicted of a Hrst otl'ence under the Canada 

16. Canada Temperance Act, 18 J8 -Pen. ,,, ».,«-„ w i * 

,, . n ii . 11 • 1 1 » i 1 enii)erance Act, 18/8, and tor such ottence was 

altv in excess of that authorized by Act— ,. , , , , ,.„ , , 

,, ,. . , ... /-, 1 i- adiuilgeil to iiay tlie sum ot Jj.iO and costs, anil 

Motion to amend conviction — Construction,..' .,, w,l 

,,_ ■, -..r^ T . 1-11. ,,' it tlie said several sums were not liaid torthwith 

of sees. 117 and 118— Imprisonment in default ^, , ,, , i ■ i i i- . , i r 

„,., T -ijiir./-. TT 10 i) that the same be levied bv distress anil sale of 

of distress— Imperial Act 13 Geo. II., c. 18, not 

in force here — Objection by substantive motion 

— Defendant was convicted for unlawfully selling 

intoxicating liipior contrary to the provisions of 

the Canada Temiierance Act, 1878, and adjudged ,, , , ,• , i- . i r .i 

, . ., , ,, - all costs and charges ot such distress ana ot tne 

for such otJence to forfeit and pay the sum ot ."^ ,.,,,.. 

§100, and also to pay the prosecutor S7.19 for 

his costs, and if such sums were not paid cm or 

before a day appointcil, it was ordered that the 

same should be levied l)y distress of the goods 



f 
the goods and chattels of defendant, and in de- 
fault of sutKcicnt distress that the defendant be 
imprisoned in the common jail for tlie space of 
three months, unless the said several sums and 
all costs and charges of such distress and of tlie 
commitment and cimveyiiig of the defeiulant to 
jail be .sooner jiaid. 

//(■/(/, that the conviction should not have 
gone further than to impose the tine and costs, 

, , , , , , , , , , . ,0*1. t leaving suliseiiiient iiroceediiigs in the matter 
and chattels of llie defendant, and in default of ■ * , ' ,. '. ,° ,, 

, 1, , r 1 . 1 1 1 1 • , for a further application to the same or another 

distress that the defendant should be imprisoned ; ' ' 



for the sjiace of two months, unless such sums 
were sooner paid. 

Held, that the conviction, if for a first offence, 
M'as bad on the ground that the penalty imposed 
was in excess of that authorized by the Act, and 
if for a second offence, on tlie ground that it >vas 
made in the absence of defendant and without 
notice. 

A motion having been made to amend the 
conviction under the Act, sections 117 and 118, 
by reducing the amount of the fine, 

Held, that the power of the Court to make 
such aniendnieiit was tf.ken away by the words 
of the section 117, " provided there is evidence 
to prove aueli offence and not greater penalty is 
imposed than is authorized by such Act." 

Also, that tho latter part of sec. 117 must be 



Justice. 

(,>»«( re, whether imprisonment could he awar- 
! (led ill such a case for a first olFence. 

(imen v. On; 'JO N. ,S. R., (8 R. & <i.), 4'.'6; 

9C. L. T.,119, 

18. Certiorari -No steps witbtn a year- 
Rule absolute in the first instance to (jiiash li 
i-erliorari on the ground that no steps had been 
taken within a year. 

Qwtn V. RineH, 5 R. & G., 8/. 

19. Certiorari -Return day-None In writ 

of ceWi'omn— Writ of certiorari quashed ami 
in-oc.edendo awarded where there was no return 
day mentioned in tho writ. 

Devem v. Oavaza, 4 R. & G., loi' 



297 



CERTIORARI. 



298 



20. Costs on certiorari refused -Grounds having any jn.licial functions to perform, and a 
of refusal— Rule to 4iiasi> ci c^iorrtri made at)so- claim to exercise tlie othce of School Trustee 
lute ii-liltiiii/ rox/x, on tlie ground that plaintiH"s cannot, tiierefore, he tested by this writ. 

liLilit lo a cirfiomri had been uplield in point of Quashed with costs. 

liiw, liut tliat tlie atKdavit on which it was In re AnicMinent of John Cameron , 

graiitfil (lid not disclose sutlicient grounds. 2 R. & <i., 177. 

Ill ri: Assc.'i.smeiit of Bunk of X. S., „, m ^. « ,^ n ^ it r,% 

Vk &c .s' Direction of writ— Costs— New Glas- 

■'■"■ gow— No power to establish Court of Ai)peal 

21. Costs Included in conviction under *"'^ Revision -Stock of companies not doing 
Canada Temperance Act, 1878- Conviction business in the town held by parties in the 
(,iia.shfd-I)cfcuduut was convicted for selling town-The act incorporating the Town of New 
intnxioiiting li(iuors contrary to the pr(.visions '•lii^'g-'w >-'mpowered the corporation to vote, 
of tlu' ("ana.Ia Temperance Act, 1S78, and ml- "*'*'^''*-'' *-'"""*' '•fceivo, appropriate, and pay the 
jiulniMl to pay the sun) of .*,-.(), to be paid and '"""eys required for poor rates and all other 
.pplica according to law, also to jiay tlie infor- '''^f^'*'' ""'' fonfci-re.l upon the corporation all the 
inaiit tiic sum of .•?(). U costs; ami if such sums I*""'''** tlif'otoforc vested in the .Sessions, (! rand 
ucrc M.it i)aid forthwith that the same be levied •'"'">' '^'"^ '''"«" Meetings, with power to make 
l,v aisiicss and sale of defendant's goo.ls, and in ''J-lii^s substituting assessment in lieu of statute 
.Idaiih (.f distress that defendant be iinpiisoned ''''""'' f^"'' ^o make all rules necessary for the 
in tiic common jail for the space of .SO days, ^^'wvting and conduct of the police and municipal 
imkss the sums and charges of the distress and *-'"'"'* "^ ^he town, an.l for regulating the mode 



cmnmitmcnt, if any, were sooner paid. 



of assessment ami levying the same, and gene- 



gr'jwiid for a ri rfiomri. 

I'' r W'eatherbe, J.,that the conviction was bad. 

',"'•'"'', whetlier under the practice the writ 
of r, ri iorari siiould not have lieen allowe<l in the 
first i.istance without any rule nisi. 



HJil, i„r Ritchie, .1., that there was suffioient '■"">' ^<"' '^" liurpo.ses connected with or aflccting 

the internal management or government of the 
town. 

ITilil, that the corporation couhl not, under 
these provisions, establish a Court of x\])i)eal 
aii<l Revision, with reference to assessments, 

V""" V. Wiird, -JO X. S. R., (8 R. & (i.), 108. ^*"^'' P"^^'^'' t<> administer oaths. 

Under a by-law of the Town of Xew (ilasgow, 
22. County Court issuing writ of— Notice IHoviding tliat all real and per.sonal ])roperty in 
of application for writ— 13 Geo. II., c. 18, s. ."» — , tlie town should be liable to taxation, 
A writ (if CI r/iorari to remove a prosecution; //</(/, that insiu-aucc and bank stocks fiwned 
for «'lliiig li(|uor contrary to the provisions of ' by residents of the town, in companies not doing 
the I'ldviucial License Act, 4th R. S., e. 75, , '"'S'"<-'ss in the town, were not liable to asse.ss- 
from the Magistrates' Court into the County , ment. 

I'oiut. was (|uashed by a Judge of the latter Where the assessment roll was amended by 
Court (111 the grounds, 1st, that liie parties ap- the Court of Revision, a committee chosen from 
plyiiij,' for the writ did not give the six days' the Council, pursuant to a by-law, for the ]!iir- 
notiic (if tluir intention to the Justices, reiiuired l>osc of reviewing tlie assessment, and the action 
liy l.'Hico. II., c. 18, s. .') ; and, •Jnd, because ; of the Court of Revision was contirmed by the 
tiny iliit iKit swear that they did not .sell li(iuor ' Council. 

cniitfai'y to law. ffi/il, that a writ of (•'■?-//o/Y(r/, addressed to 

.\ii iippcal from the decision of the County ] the Court of Revision and the Town Clerk, 
Court , I udgt- was dismissed with costs. I could be sustain(!d, though otherwise if it had 

McDonald v. h'ontin, 7 R. & (i., "i.") ; i been addressed only to the Court of Revision. 

7 C. li. T., .V2. /*'(• .Sir William Young, C. J. — As sonu ilonht 
rests upon the firm, the rule nisi, to (juash the 
assessment, kc, will be made absolute irilhout 
costs, 

Fraser ib licit v. Town of X( n' Glasijoic, 

1 R. .S:(;., 'JoO. 



23. Delay in moving to quasli writ - 

Costs Rule absolute granted to (piash a ci rtio- 
rni-i, !iin witlumt costs, six years having elapsed 
K'fon' iiidtion made. 

7'/it City of Ilaliftx v. Hartlitiid, 

•2 R. .& (i., 116. 

24. Direction of writ to parties liaving 

10 judicial duties to perform— School Trustee 
-Costs— It is a fatal objection to a writ of 
nrtiorari that it is not addressed to parties 



'26. Dom. Acts 1873, c. 12», ss. 53 & 116 - 

Sections Xi & 11(5 of Chapter I'Ji), Dominion 
Acts of 1873, do not take away the jurisdic- 
tion of the Supreme C^ourt by way of certiorari, 
IlawM V. llart, '2 R. &, (J., 427 ; 
2 0. L. T., 312. 



299 



CERTIORARI. 



300 



27. Evidence Power to look al CVUlCnce, ' expressly liel.l tlmt the only pmpo.si' foi- which 
when sent up, to determine jurisdkLion— Con- I you could look at it was to seu wliutiur tlieie 
viction quashed — Practice — Dofiiulanl was was any evideiioo. 



convicted licfore the Stipendiary Magistrate for 
the Police District of Yaruioiitli of having un. 
lawfully sold intoxicating li(|U<)r contrary to the 
provisions of the Canada Temperance Act, 187S. 
A writ of ,■! rtiofdri having issued, tlic Magis- 
trate sent up the inin\itcs of the cviilcncc talvcn 
before him as |)art of his retiu'ii, instead of ic- 
turniiig tile facts. 



Vhm« v. Lyo)i><, 5 K. i^ <;., iui, 

30. Certiorari - Finality of Magistrale's 

judgment — Power to review— No evidence- 
Jurisdiction limited as to class of persona- 
Collateral fact necessary to jurisdiction — 
I'laintilV contracted with one Feltmate. wiio 
jiiofcssed to he the owner of a vessel, to sail her 



//</'/, following //am s v. Hurl, ti R. & O., fj, as master at a stijiulated rate of wages. After 
that tlie evidence lieingliefore thcCourt itmigiit the la])se of six months, Feltmate, who had up 



be looked at to iletermine the (juestion of juiis- 
diction. 

It appeared from tiic minutes of evidence that 
defendant, who was kcept'r of an iiotel oi' lioard- 
ing house, had gone out and purciiasi'd or pio- 



to tliat time been on hoard, left tiic sliip. ami 
plaintiH' discovered tiiat he was not the owner, 
the possession of tlie sin'p iiaving lieen deiiiaiideil 
by tlie ihfentlant, the real owner. I'liiiutilf 
tlien sued defendant for wages as master, before 



cured li(|Uor for her boarders with money given ; the .^Stipendiary Magistrate, under the CanailiiUi 

Statutes of IST.S, c. |-2!t, ss. ,V_» and .')!t, wliith 
enable a master to sue for wages <lue iiim. nut 
exceeding .S'ilM). 

H<lil, that tiic .Sti])endiary had no jurisdie- 
tion, ami that tlie judgiiicnt could be reviewed 
on ri rliorriri. McDonald, C. .]., and Higby, J., 
(/I.t.<i nfiii;/. 

l'( )• 'riiompson, J., and .Smith, J. — That there 



her for tiiat purpose, acting merely as a messen- 
ger and without making any jirolit. 

JIilil, that the evidence was not snilicient to 
supjiort the conviction. 

Qiiiiin, whether jioints which had been ilis- 
cussed on the a|)plicatioii for thew ] it of <> r/iomri 
could be brought before tlie Court a second time 
on the motion to "[iiasli tlie conviction. 



(Jim II \.M<J)oii(i/il, 7 K. .V (i., 3.S(i; i was no evidence of a contract upon which the 



7 ( . L. T., .•!7(). 

28. Evidence Right to look at where re- 
turned with writ — I'rocecdings were taken 
before the < 'ommissioiier of I'ublic Works and 
Minos to forfeit certain gold mining areas. 
They were removed by m-/ inrnri nni\ a rule was 
taken to set aside the forfeituie. 

The juidimiiiary jioinl was taken that on 
rertiiirnri the niinutes of evidence taken by the 
Magistrate cannot be received. An aliidavil 
may be piddiued to shew what was (iroveil 
before the Magistrate. 

/'<rRigby, ,]., wliere tlie Statute, in a case 
like this, says that the Magistrate shall take 
evidence, and he docs so and returns it to this 
Conit. 1 think we can look at it. 

( 'oiinsel contended that where a conviction is 
valiil on its fac<^ you cannot go liehind it and 
look at the evidence. 

J'lr McDonald, C. .1., that is new to me. 

/'i r Weatliei lie, .1., tiie practice is the other 
way. 

Qnnii V. A7,-.';, 4 R. k (i., l.SO. 



action could be based. 

/'' /• Weatlierbc, .J. — Tiial the ca.st caiiu with- 
in the i)riiiciples as to a jurisdiction given In try 
cases between ])eisons of a s])ecitied class or 
classes, and the Magistrate had no evideiii'c of 
either of the two classes suing and beiu.' ■^ueil 
res])ectively in this case. 

In this case there is a most elaborate iliseus- 

sion of the eases in which fi rtinrnri will lie to 

reiaove proceedings before inferior courts where 

the derision of such courts is mailc liiuil hy 

statute. 

//(("■,., V. IJurt. () 11. \ (;.,4i; 

(iC. L. T,. 1411. 

31. (rrounds taken In rule to (|uash writ 

— Party confined to these - Notice to Justice 
where acting as a Statutory Court Atiidavit 
required before issue of writ Acts 1879, e. 12, 
s. 1. N. S — Distiualitication of Magistrate 
through interest The defendant was convicted 
licfore F. \. Laurence. .Stiiicndiary M igistiate, 
prcsiiling in the Town ( ourt of Truro, of selling' 
intoxicating liquors contrary to law. The iSli- 



])eudiary .Magistrate was a ratepayer of the 
29. Evidence - Kight to look at on town, ami received a lixe.l salary as stipendiary, 

certiorari — Counsel contended that ({Uestions as payable out of the funds of the town, to which 

to the sulficiency of the evidence below can be half the penalty imjKised became payable. 

raised on ni/inniri. ', Ihld, that the Magistrate was disqualitied by 

/'( /• Rigby, d. — In Tht Colonial liaiik of Auk- : interest from acting in the matter. 

fralana v. Willau, L. R., 5 P. C., 417, it was i Rut see now .')th R. S., c. 109. 



301 



CERTIORARI. 



302 



Tlie giDiiiiil was taken in tlie rnlc to (juasli 33. Improvidontly !S8UC(1 -Appeal not CX- 

\hei-(rtlnrnri that the l)on(l tiled was irre<,'uhir I hausted — 3rd R. S., c. 45, s. 67 — Assessment — 
ami liml ill '^iili^tanfe and form. Cir/iorari — Wiiero every material fact in the 

///(/, tliiit under tliis ground the objection afHdavit upon which a certiorari was founded 
coulil not lie taken that a bail-piece should have I was negatived iji the afUdavit on the other side, 
lit'cn iilccl instead of a hond. 

The i< rliiirari was attacked on the gromul 
tliiit nil notioe had heen given to the Magistrate assessment are sinijjly matters of detail, the 
as i(i|iiiri'il liy the Iu\perial Statutes, I.'! (ieo. II., j aj)peal should he primarily to the Court of 
c. IS, liut no such grouiul was taken in the rule, j .Sessions, and re.sort should not be had to the 

//'/(/, tiiiit this gi'oinid could not he taken at [ .Supreme Court hy <•< rtiornri in the fir.st instance. 
tilt' argiMiR'Mt. 

iinni i-i . whether the rule re(|uiring notice ap- 



Hilil, that the orh'orari must he (luasheil. 
Where the grounds of an appeal from an 



The Court of Sessions has power to set aside 
I a whole assessment where it manifestly appears 
plieil to tills case, where the.lustice acted as a ' that it has heen irregularly and therefore illeg- 



speuial Statutory Court and not simply as a 
Justice (if the Peace. i 

Tlie ground was also taken that the atKdavit i 
rci|iiiiTil liy e. 1'2 of the Acts of l.S7!> (stating 
that tlic ikfeudant had not sold intoxicating 
liiHinrs contrary to law, as charged in the sum- ' 
iiiHiis), hail not heen made, 

//</'/, that the Statute did not apply where 
the piiicccilings were rorfuii iioii jm/in-. 

Jlilil,/iir/h< r, that in cases such as the pre- 
sent, nriiorrtri would lie after judgment, not- 
withstaiiiling the general rule that in civil cases 
i-'i-iini-iiri will not lie nfter judgment. 

Ih I'l.l'arfh' /•, over-ruling^ '/v(»7r // v. .1 xilirxon. 



ally made. 
I„ r< -l.ss 



'<m<)if School Itatc, Section 4-\ 

Auiiijotiish, ;i X. S. 1)., \-2'2. 



34. Improvidciitly issued - .Ippeal not 

taken -4th R. S., c. 21, s. 61 -School— Powers 
of Trustees to call special meeting -Section 34, 
suh-section S, of the cliaptcr of I'ulilic Instruc- 
tion, 4lh R. .S., cap. '.\'l, provided that it should 
he the duty of the trustees to call a special 
meeting of the section, due notice being given 
by the .school or otherwise, for the i)iiri)ose of, 
itc, and for any othei' necessaiy purpose. 
X. S. I)., .'{S.-y, that it is no objection to the 1 ''Section .S7 leiiuired the trustees, upon the re- 
writ of a W/«m/7 that an appeal also would lie. <inisition of a majority of the ratepayers, to 
7V/7'"' V. Miir/'lii/. ."{ 11. & <;., 173. convene a sjjecial meeting of the ratepayers for 

the ])urpose of voting money or adding to any 
32. Imperial Act, 13 Geo. II., C. 18, not in amount previously voted. At the amuial meet- 
force in this Province -Objection to '/(V/ocnic/ on ing of School Section "29 the money reiiuired for 



ground of lateness -Must be taken by substan 
tive motion -The ground having been taken on 
thu part of the ])rosecutioii that the writ of 
ei rlinrnri im which the motion to iiiiash the coii- 
Vktiim was based, had not been sued out within 
six niuntlis after the date of the conviction, as 
ft'i|uhvilliy the Kngllsh Statute I.Stieo. II., c. IS. 
H'I'I, that the .Statute is not in force in this 
I'rnviiicc. nut being obviously a|)plicalile and 
luressiry tu our condition, ami the Legislature 



si'IkioIs was not voted, and the meeting Inst ructed 
the trustees to call another meeting for the [lur- 
po^e, which they did, but acted under the im- 
prtssion that the niecting must be called under 
a re(|iiisitlon, as ])rovideil by sec. .S7. The 
matter was brought up by c rtiornri, and a ride 
;//</ taken to set aside the assessment, the afti- 
davits on both sides being drawn on the assump- 
tion that the meeting cotlld oidy be called under 



section .S7, rei|nliing a iei|ulsltlon fi'om a niajor- 
ot this I'ruvince, In legislating u])on the .subject ity of ratepayer.". 

m ficfitiran, having adopted the ])rovisions of Ifilil. that no sucli ri'i(uisitlon was necessary, 
many Hngllsh Statutes, relating to (v/V/om;-/, that the trustees could call the meeting of their 
ivhilu iiniitling to re-enact the jjiovisions of the | own niotiou, and that, whether the ie(|Uisition 
-Vet In i|uestion. When the Local Legislature was signed bj' a inajority of ratepayers or not, 
lias legislated upon any particular subject, rela- the action of the meeting was legal and valid, 
tivo to which an English statute had previously 
wistcil, the Provincial ami not the Kngllsh 
statute iinist govern here. 

•■!'■"). that the objection, if available, must the law which govei'us such cases. -1th R. S., 
lie taken by a substantive motion to set aside c. .'?'2, s. t")4 provides that moneys voted, "in 
'lit; writ, and not in opposition to a motion to default of ])ayment of the same,' shall be collec- 
Viash the conviction. ted under and by virtue of 4tli K. S., e. 21. 

CiiecH V. Porter, '20 N. S. R., (8 R. & (J.), ,S.V2 ; I That chajyter gives a remedy to the party ag- 

9 C. L. T., 57. ; grieved by appeal to the Se.sslons, but provides, 



Pir McDonald, .1., there is another view of 
the ease which Is fatal to the a rtiornri. and 
that is that it was not issued in accordance with 



803 



CERTIORARI. 



304 



(e. 21, a. Ci'2), tliiit .such iippeal sliall not delay tlip J/i/il, tlmt tiie party taking out the writ Iwil 
collection or recovery of tiie .sum a.s.-iessed upon a riglit to imv the same title in suhscciucut pro 
tlu! appellant, The policy of the Statute is to ' ccediiigH in tiie Supreme Court. 



enforce tlie innnediate payment of the ni<iuey 



asses.sed in hotli cases, giving the appellant the taiiiiug tlie forfeiluie to tile tlieii' atlidavils (in ii 
rigiit to have the money restored to him if he lie 
impropi rly assessed. But in this case that Court. 
polit'V and the plain meaning of tiu^ law aie 
defeated, when, l>y issuing a writ of nr/iornri. 



A rule was granted to compel the parties .sus. 
lining tiie forfeiture to tile tlieii' atlidavils (in ii 
day previous to the hearing, to he named hy tiie 

Que II v. TiJiiii, 'J R. ct (;,, .'joj, 



the collection of the money is stojiped liy a few 
in iiumliers. The remedy liy removing cases of 
assessment to tiiis Court by ctrl'mrari \n given 
bye. 'Jl, s. (i7, but not at the time or in the 
manner in which it is sought here. To my 
,nind it is clear that tiie parties who instituted 
tiiesc proceeding.s should, if aggrieved, liave re- 
sorted to the remedy of ajipeal given by c. ■_'!., 
s. (il of 4th It. .S., " without jircjiidice to tlie 
whole or any i)art of the assessment." 'i'iiis 
view of the law, if I recollect ariglit, was talicn 
by the Court in the case of a c* /■//«/■«;•/. In n 



School Sn'i'irm 



;? X. .s. I)., i-_>-.>. 



//( *•( Sriwol Srrlioii, Xo. .:U, .S R. i^ ("., --'07. 

35. Intituling aflidavits, before return— i 

EtTect of this and other acts — Writ sued out 
for purpose of delay — After the tVuirt, witli 



37. Jurisdiction or Commissioner to issue 

i-(r/i<imri under Acts of 1882, cap. 10, must 
be shown — ^A writ of rir/lornrl was issiuMJ to 
remove a conviction undei' tlie Canada Tciiipei- 
aiict^ Act. Tlie writ was allowed by a ('(iiniiiis- 
sioiier, and it was not shown that there was no 
.Supreme or County Court .Judge in the county. 
(Acts of 1SS2. caj). 10, sec. •_'.) 

//'/(/, that the writ must be set aside, as it 
was not shown that the Coinmissioner had jnriii. 
diction to i.ssue it. 

/'</• McDoiiahl, C. .1., and Weatlu rhc. .1., 
tiiat the indorsement "allowed, security liaving 
been first given and tiled," was not sutHcioiit. 
Corh,// V. O' /),//, 4R. & <;., U4, 

38. Jurisdiction of Supreme Court to re- 



full knowledge that a writ of nrflorari had not view proceedings of inferior Court, even where 
been returned, received atiidavits on the part of those proceedings are declared final by Statute 
plaintitT intituled in the cause and granted a rule —1st R. S., c. 89, s. 9— An enactment tlmt iiro- 
lu'sl thereon, and defendant apjieared by counsel ceedings of an inferior Court shall be liiial, dn 
and resisted the rule upon an athdavit of defen- 
dant also intituled in the cause. 

Hi III, that it was too late to rai.se the objec- 
tion that tiie cause was not properly before the 
Court and that tlie Court had no power to adju- 
dicate thereon. 

Pir DesHarres, .T. (who delivered the judgment 
of the Court), when I tind that the writ remained 
in the hands of the Magistrates, to whom it was 
directed, for a whole year, without any efl'ort 



not take away the jurisdiction of the Sii|iienie 
Court to review their proceedings uiulcr a writ 
of rirliorarl. 

liarnahy it al. v. (lariUmr ct at., . lames. 'M. 

1st R. S., C. 80, S. 0-" If any oversecis on 
behalf of the township, or any otlicr iil'I.<oii, 
shall feel aggrieved by any proceedings lunlui' 
this chapter, such f)verseeis or person may ap- 
peal to the next Sessions to be held for the 
being made on the part of the defendant to have ^.„„„jy „.,,^,,.^ ^,,^ towiishii, is or the person 

shall reside, and the Sessions shall hear ami 
determine the same, and their order shall Me 
final." 



it returned, and that when sent to the olfice of 
the I'lothonotary to be tiled without any return 
upon it, no application was ever made to the 
Court to enforce obedience to it, I think there 
is great reason to presume that in suing out the 
writ of etrtiorari, the object of defendant was 

delay. • . . , ■ i- . 

Nnml V. Flnrin, 2 N. S. D., 80. j "On I'm-tiorari of a conviction the iiituriiwtwn 

I and warrant cannot be looked at to see tlwt an 
offence has been committed. 

Woodloi-k V. Dirkic, 6 R. & O., SO; 
6C. L.T.,14i 



39. Jurisdiction — Wiicrc not siiown on 

conviction — Cannot look at information, <S:c., 



36. Intituling affidavits Proceedings be* 

fore Deputy Commissioner of Mines brought 
up by certiorari — Filing affidavits — Proceedings 
before the Deputy Commissioner of Mines to 
forfeit certain mining areas were brought up by 
certiorari. The parties applying for the for- 



40. Magistrates disqualllled -Costs-Con- 
viction for cruelty to animals (juaslied, one oi 



feiture intituled the process below " The Queen ■ the Justices being the father of the coniplaiiw't' 
V. Tohin." \ Costs in this case, which was brought before tlie 



305 



CERTIORARI. 



306 



f'dtiif l>y rirfionirl, ix-fuscd against tlie Magis- 
tniti'.-i, tint giiiiitud agaiii«t tliii coiiiplainant. 

Ill rt D. Barry Hohnan, W 11, & C, 375. 

4t. No certiorari Nhoiild issue in a civil 

suit witliout a sufficient affidavit— Intituling 
affidavit -Scope of writ— Appeal— Bail— 3rd 
R. S., c. 75, s. 24, " the award of such Justices 
shall be tinal and conclusive," not sufficient to 
take away jurisdiction to grant writ of— No 
ariiumri slioiild issue in a civil suit witliout an 
iitKilavit showing sufficient grounds tlun'ofor in 
tliL- I'stiiimtion of the Court oi'.ludge wlio grants 
it. ami which may he controverted on other 
iirtiiliivits on motion to set aside the ci-r/iorari. 
The atliilavits for the writ shoidd not he intituled 
ill the cause. The affidavits, after the cause is 
liiinii;lit ti)), must he so intituled, 

The writ of nr/lnrari has a wider scope in 
this country tiian in England, and is often issued 
lifter jiiilj,'iiient, and for small sums, hut should 
not he issued when the statutalde right of appeal 
hiis not hceii lost or defeated. It is not so res. 
tricteil in this country as not to remove any- 
other than judicial acts. Sufficient liail must he 
given to respond the judgment to he finally 
given in the cause ; and if the Commissioner 
hiis any doulit as to the sufficiency of the hail, 
he slioulil leiiuire them to justify. The con- 
ehiiliiij; clause of section '24, chapter 7"), 3rd 
R, S,, does not take away the jurisdiction of 
this Court, 

linriinliy it at. v. ilardiinr it a/., James 
»ltiallirmed. 

Craii-hy v. Aiiilcrioii, 1 N. S. 1)., 38."); 
3 R. & C, .37. 

42. No Jurisdiction in inferior Court — 

Cirtiorari will not lie — The defendant, an in- 
solvent (lehtor, under arrest on an execution 
is.'iied out of the County C(mrt, was discharged 
liy two Coininissioners under the Act of 1878, 
chapter S, sec. 4. Under that sectitm the plain- 
tiff iippealed to tlio .Judge of the County Court, 
wliile |)iotesting against his jurisdiction. 

//(/'/, that where there i.s no jnrisdicti(m in 
the inferior Court, which was the plaintiff's 
contention in this case, the whole proceedings 
iire void iiiid nrtiorari will not lie. 

O'Briin V. Walsh, '28 U. C. (,>. B., .394, fol- 
lowed. 

O'Connor v, Condon, 3 R. & G., 2. I 

[Note.— In O'Connor v. Condon and Fletcher 
V. Chixhohn no attempt seems tohaveheen nuide 
to nuirk the distinction between the case where 
nniomri is sought to remove proceedings from 
an inferior Court, on the ground of want of 
jurisdiction, in order to continue such proceed- 



ings in the Court to which removed, and tlio 
case where they are removed on the same ground 
in order to ((uasli them. 

O'/iritn v. MWi/i decides that the proceedings 
cannot be removed to continue them where there 
is no jurisdiction below. 

O'Connor v. Condoniuul Flitchirw Chixholm, 
decide that they cannot in such case be re- 
moved to (plash tiieiii, and give as authority 
O'lirim V. D'a/v/i.] 

43. No Jnrisdlction in Inferior Court— 

Certiorari not proper remedy — A debtor was 
impri.soned on process issued out of the County 
Court, and was brought before Coniiiiissiouers, 
who ordered his discharge. An appeal wa.s 
taken to a Court organized under the Act of 
1880, c. 2, sec. Ill, but the order, though 
made by the Clerk of the County Court, was 
signed by him as Prothouotaiy. Tlie proceed- 
ings were brought up by nrllorari, and a rule 
taken to quash the rirtiorarl, on the ground, 
among others, that as the S]n;cial Court had not 
been regularly organized, it had no jui'isdiction, 
and ri^rtiorari would not lie. 

Hi III, that the niilornri must be (juashed. 

Fktrhir V. ChUwlm, 3 R. & (i., 1 ; 
2C. L. T., (iOO. 

44. Not talien away by enactment tiiat 

proceedings of Inferior Court shall be final— 
An enactment that proceedings of an Inferior 
Court shall be final, does not take away the 
jurisdiction of tlie .Supreme Court to review 
their proceedings under writ of n rtlorari. 

Barnaliij it at. v. (lardini r it at., James, .306. 

45. Notice— Certiorari quashed for want 

of — Notice of motion for appeal from County 
Court— How headed —Certiorari to remove 
proceedings from M.agistrate's Court to Coun- 
ty Court quashed for want of notice — Notices 
of motion for appeal from the County Court 
must be headed in that Court— A writ of co-- 
tiorari to remove a prosecution for selling liquor 
contrary to the provisions of the Provincial 
License Act, from the Magistrate's Court into 
the County Court, was quashed by a Judge of 
the latter Court, on the grounds— 1st, that the 
parties applying for the writ did not give the 
six days' notice of their intention to the Justices 
retjuired by 13 Geo. II., c. 18, s. 5; and '2nd, 
because they did not swear that they did not 
sell li(iuor contrary to law. 

An appeal from the decision of the County 
Court Judge was dismissed with costs. 

McDonald v. Hmmn, 7 R. & G., 25. 



307 



CERTIORARI. 



308 



4«. Objrrtlons that writ not directed to an ..nlcr for a writ of ,• r'iomn Xi> rciiiuv.' the 

perdona exercising jurlicial funotions — Sub- ciuivie'tidii intci tlic Suprcint' Cimit. An order 

stantive motion Riyht of appeal to be conai- liaving liccn iiiailc ii'fiisinj,' tlic ihiUt appllLMl fur 

derecl when granting; writ- Ituli' to (piasli an witii uomis, 

nsHossmuiit rcnutvcd into tlii' Siiprcnif Court l)y //«/</, that tlic oflfciicc licliig dearly of a crim- 

rpr/iiiiftrl.' '\'\\r assissnicnt had liccn ajipcalcd inal nature, in tiie absence of any autlioiity 

against on the ground that it \Nas too high rela- aiithori/.ing tho.liidge to impose costs, or of any 

tively to otiicrs, to the Court jirovidcd for by liail or recognizance to ]>ay thcni, the dcfendiuit.i 

sec. 1(1 of tlu' by-laws of the Town of Windsor, could not be mailc to ])ay tile prosecutor's costs 



and by that Court conlirnicd. The assessment 
was afterwards eonlirmed by the Town Council. 
Counsel contended that this was not a case for 
a writ of nrfiornri. because the matter com- 
plaiiu'(l of did not arise from the exercise of 
judicial finictions. 

/Vc McDonald, . J.— .Should not that point lie 
made the subject of a substantive motion ? 

'I'he objection was raised that an appeal siiould 
have been taken from the assessment of tiic 
others as too low . 

l'( r McDonald, d. — Can we review the assess- 
ment of thf others, who have never been 
brought before the Ciant of Appeal. 

J'lr Weathcrbe. .1.-1 do not .see that tiic 



of opposimi the order fo|- the fr/lornri. 

An application wi's made to the Court to 
rescind that portion of the or<ler relating to 
costs, a similar application having been ])rcvi- 
fUlsly made to the Judge and reftlsed. 

//'/»/, that there being clearly no apjieal In 
smdi a case, the coursi' ailo))tecl by the dcfcinl- 
anis' ciumsel of a]>i)lying to the ( ourt to lesiiin! 
was the proper one. 

/;. /{In, •_>(» X. s. ]{. (s n. ki\.t, 4;t7; 



!K'. L. T., llts. 

50. Proceedings brought up by certiorari 

to have veeogniz.ancea e.streated— DclViKliiit, 

having been convicted in the I'olice Court ot uii 

appeal is an estoppel. It is always proper to assault, cntere.l into a recognizance witii two 

consider the fact of a right of appeal existing sureties to keel) the jieace. Afterwards lie wus 

when granting a writ of nrliomri. convicted of a .second assaidt, and the Attonicy- 

Rule discharged with costs. (ieneral had the proceedings brouglit up l.y 

iriiUlhi^ V. To'ni of Wiiiir^ot; .S P.. & (!., •2:>i\ rn-liomri. wliereuiion, 

Tiie Court, holding that the mode of pniLi'dl- 
47. Objections to writ on ground of late- '■'« '» iM^-'land to estreat recognizances was 
nesa— Must be taken by aubstantive motion- wholly inapplical>le|t() this Province, sauctioiial 
Objccti./U that a writ of n rfioniri was too latL 
should be taken on a substantive motion to 
quash the writ. 

In re Bi.-<hoi> J);/b,-20 X. S. K. (S R. & (;.),-2(i.S; 

,SC. L. T., 44(1. 
Qmeii v. Povt't; '20 X. S. K. (S II & (i.), .S.V.' : 

itC. L. T., .">:. 



the course pursued in (Jmiii v. Thomii^on, - 

Thorn., !l. 

(^hK.in V. liroiru, 1 R. & (i., al. 



51. Quashed -Insufllclcnt grounds and no 

return—Right of appeal must be exhausted- 
Writ of f(}iiorari ijuashed, the atlidavil on 
which it was issued not disclosing sufliciL'iit 
.__,_ ,. i.i.w 1 urounds and there bein'' no leturn to the writ. 

48. Order for writ granted b) .Judge- «^' ' ,^ ,^ , .'?. , , , i .i,,t , 

T , J , ^ • • 1- i 1 ;„ /'*• DesHarres, ,J. -We have ilcciclcd 111 at a 

Indoraed by Commisaioner aa directed in ' , 

^ J . , --, ,. • ,1 parly h.iviug an oi)i)ortiniitv to appeal iinist 

oraer — Order irregular — Crr/iomn (luasiied ' ■' „. ,.„,', 

, ,, , . , , I 1 . 1 avail himself of It, anil, if he docs not, '■'W'oinci 

when the order was granted by a .Judge and ' 

the writ inilor.sed by a Commissioner, who was ^^ ' '" ^' 

,.,,.,, i' ., ■ , .1 V Tin: Joiru 0/ /'irfoH y. Jli'Doimiil, 

directed in the order to indorse upon the writ • o u v. c 'iU 

the amount for which bail was tiled, itc, t)ie ' 



Court holding that the .Tudge had no power to 
order a Coinmissioner to indorse the writ. 

Dtniii.-'on V. Jack, •_> R. & (i., 17-' ; 
1 C. L. T., Win. 



.12. Reading papers returned with writ 

when they are detached, but evidently had 
been annexed to it— Counsel, in support of rule 
iilii to (piash certain procc-' lings of the Se.s.'-ions 
49. Order In criminal case refusing writ for the County of Halifax, in granting licenses 
of '■( r'iomri, with ooata, held bad- -Application for the sale of intoxicating li(iuors outside of the 
to reacind the poi'tion of order relating to costa city, proceeded to read the writ r)f crtiomri 
sustained — Defendants having been convicted and the papers sent up with it. Counsel oppos- 
of ai> ottence under the Dominion .Statute in , ing rule, objected to the papers being read, on 
relation to cruelty to animals, an aiiplication the ground that they were detached and there 
was made to a Judge of the Supreme Court for ^ was nothing to identify them. 



m CERTIORARI. 810 

Till' Cinirt iilloWH tlii'in tci lit- icail, as tlu'y 'I'licy iniitiiint'cl a fiii'tluT )>iii\isioii, that tlio 

hiid fviilciilly lidi'ii aiiiit'xt'cl til the writ. loll, when finally jiassfil, shniihl In' valiil, ami 

//( n l.iqitur Li<'iii.M., ('oiiiily a/ J/(i/i/ax, iiiml all pactius I'luioi'iiieil, nntwithstaiiiliiij,' any 

1 R. i^ ('., '-'."i". (It'fuut or error coinniittcil in or in rcgaril to it. 
'I'lio Hank of Nova Suotia, iloinj,' hiiHiiu'xs at 

5;{. Betiirii -None on writ -Papers sent N»'w (ila.s;u'ow tiiri)nj,'ii a iiranoh. appiaicii from 

back to Magistrates — Where no retnrn wan its asscssnient, ami t lie ajipeal having lii't'n iieard 
ni.iik' liy tliu Justices on a writ of (■(r/iorari in the nioile proviileil l>y the hy-laws, the assess- 
iliiw'ti'd to them, the Court helil the ohjeetion inent was coiitirmeil, ami a warrant issueil, in 
fatal, ri'fuseil to i,'ive jnilL;nu'iit on the merits, puisuanee of whiih a levy was niaile on iiooka 
ami (liieiteil the papers to lie sent liaek to tile of aeeount of the hank, anil on a numlier of 
niiiL;istiiite.-i, til ileal with as it might be thought j promissory notes, the ])roperty of the bank. 
l]i..>t, ' The hank having thereupon lirouglit the assess- 

Mo-li'f V. Doraii, .'< R. & ('., 184. ,|„,m .^,„^ „„,.|.ant up by <■' r/iorari, 

I Jf</i/, that see. (i7, of c. '21, R. S., diil not apply 
34. Rule absolute In llrst Instance to set \ u, the case, being eontineil 10 nomine to proceed- 
aside writ, no steps having been taken for a , i„j,„ „f the .sessions touehing rates, that the levy 
year -Where a niotinn is made to ipiash n ' ,),i pronussory notes was good, that the provision 
(crfifirtiri, on the ground that no step has lieen „f the by daws making the assessment tinal and 
tiiki-n within a year, the lule will be iiljsolilte i i,j,„|i„g^ notwithstanding defects or errors, did 
in tlio first instance. j „„t prevent the Court from reviewing it under 

TIf L'ihj of Halifax v. 17//. /V, W R. kC, .")4 ; „.,.it of n r/iorari, and that the r, r/ioruri would 
Till Ci/i/ of Halifax y. I'or/ir, Ih. \\^, j„ ^ueh ease if the atKdavit disclosed .sufH- 

cient grounds, the scojio of the writ being wider 
.1.1. Rule nisi or Rule absolute In first |,eie than in England, 
instance- -Discretionary with Court- Jt is dis- '|'i,y Cmi-t. after ruling as above, (jiiashed the 
crt'tioiiiiry with the Court, on an application for ,■< r/iorari, without costs, sutiicient grounds not 
a writ of n r/iorari, either to grant the writ in l,,iviiig been shown for setting aside the assess- 
tlif first instance or merely a rule ni4 therefor. |,n,nt, 

//( /'■ T. J. Wallari', 1 Old., .V2."). /,, ,.,, ,.l.„f'.«/,(.;/r of Ihe Jiaiik of Xora Si-o/ia, 

III/ /III' Toirii of Xiir (rlani/oif, 3 R. & ('., li'2. 

50. Rule nisi to quash writ made Iiy a 

Judge returnable before the Court on circuit 58. Statute restricting writ -/'"■'rhompsoii, 

—No power to grant .such rule — A .liidge at ,1. — Although the .lustice's decision is made by 

Chainlicis has no power to make a rule »/</ to the .Statute tinal, we could, on n r/iorari, say 

i|iia,sli a writ of c. >7/oc«)v' letuiiiable before tlie that he had assumed a jurisdiction which lie 

Cinut 1)11 circuit. could not exercise. 

/•Jllio/I V. Mi-Doiialtl, ;$ R. & (i., •iS.S. Hairts v. liar/, R. & (i., p. 45 ; 

I (iC. L. T., 14(». 

•i«. Sot aside wlien sufllcient grounds lot I 

disclosed for issue of ~ Statutes restraining -^^ Sum.ni.iry ♦•ause brCUght U|) by Cer- 

writ-4th R. S., c. 21, s. 67-'riie Act of iiicor- tio,.ari on grDund that Judge of County Court 
l.nrati(m of the town of Xewtdasgow, in .section h^d refused to take down certain evidence— 
46, inovidc'd that the corporation should as.sess, Order ni^i to set aside writ-Order for writ 
colkut, and pay over whatever moneys were ghould also be attacked— A motion was made 
ii(|uircd for poor-rates, and all other (except to set aside a nr/iorari tak-'ii out in a summary 
sdiool) rates, ami should have within the town y,^,,^^ t,,ie,i ;„ ^i,^. Co.mty Court, the ground for 
all the powers relating thereto vested in the ^1,^ ,.„.,/„;.„,./ i.ejng that the .Judge had refused 
Sessions, (Jrand .Jury, Town JVIeeting, etc. The to take do\^•n certain evidence. 
Mil srctioii oiupowered the town council to tj^^, (-,,,^„.j j,gf„j,j.,j t„ amend the minutes of 
make by-laws and rules touching all matters the County Court .Judge, but as to the .'.-(yiomW, 
|villHn tlieir authority, including rules for regu- 1,^^ that 'it was safer and better that the rule 
Wiug the mode of assessment and levying the to set it aside siiould include a motion to set 
same, which by-laws, when approved by the ,isi,ie the order for the o'r/iorari as well as the 
(.ovenior-in-Couiicil, shouhl have the force of t.,,y/om?'/ itself. With the consent of the parties 
laws. The by-laws so made defined personal ti,e rule to set aside the «;V/oran was discharged 
property for the purposes of assessment, so as to ^yith costs. 

comprehend all goods and chattels, and provided | Doyle v. Gallon/, 2 R. iV (!., 86 ; 

lor the trial of appeals from the assessment, i 1 C. L. T., 567. 



311 



CHOSE IN ACTION. 



312 



60. Under writ of, Court can review 

queationa of law. not of fact - Halifax City 
Charter -Acts 1864, c. 81, 8. 140-\Vlicic cc.ii- 
victioiiH liy tlic Stipeiiiliiiry Magistrate of thu j 
City of Hiilifiix, iiiulor swiioii 140 of the City 
ClmrtiT, iiri; Imniglit up liy virtiontri, the Court 
I'iin review iiiiy matter of law, l)iil eaniiot inter- , 
fere with liis dfciHioii in respect to tiie factst. , 
Qiiii II V. Li nj H a/., 3 R. & C, 51, 1 

61. Waiver Right to certlorarl-Counsel, 

arguendo. An atliilavit for an appeal was made I 
wiiicii wan not perfected. 'I"he defence, on 
teclinical groiin<ls, was waived by taking steps 
toward an ai)peal. It is too late to apply for a \ 
cirfiomri after an apparent iicquiescence in the 
jurisiliction of tlie Court. 1 

Per Highy, -1.. delivering judgment of tlie ] 
Court, there was also a contention tliat l>ecause 
the defendant appeared at the trial tiiere was 
a waiver. liy the appearance he may iiave 
waived the irregularity in tiie sunuuons, hut 
could not have waived tlie irregularity in the 
conviction, which was a sul)se(iuent matter. 

Slarr v. JJvaJts, 4 R. & CJ., 84. 

62. Where there was an appeal allowed 

by Statute, but none taken -Writ of, sus- 
tained notwithstanding — Three Magistrates, 
fornnng a part of tiie Court of Sessions, by 
whom the return of a precept issued under 'ind 
R. .S. c. 62, for laying out a road is to be de- 
cided, are not the tiiree disinterested freeholders 
couteniphited by that Act. The proceedings of 
the Sessions were brought up by ruiiorari. 
Objection was taken that cirliorari was not the 
proper mode of (juestioning the proceedings, but 
that an appeal should ha\-e been taken under 
sec. rt of 2 R. S. , c. &2. 

Per Wilkins, .7., the only question here, it 
seems to me, is whether the parties ought not 
to have appealed from the decision of the Ses- 
sions, as provided for by the Statute. But it 
would be a mockery of justice to compel them 
to resort to that course. For after that appeal 
it would be competent for the parties to bring 
up the proceedings here, and the objection now 
taken would be open to them. 

Court were unanimous in making absolute the 
order to quash the proceedings. 

Queen v. Chapman, 2 Thorn., 292. 

63. Writ of— How allowed. -Quaere, whe- 
ther, under the practice, the writ of certiorari 
should not have been allowed in the first instance 
without any rule nid. 

Queen v. Ward, 20 N. S. R., (8 R. & G.), 108. 



64. Writ quashed where there has been 

laches — Waiver — I'roceedings having Iwica 
taken to lay out certain roads under ciiapltT 60, 
Revised Statutes (.3rd series), all the rei|iii»itcs 
were complied with and the report duly cuii. 
tirmcd by the Sessions. Kighteen montiis Huh- 
seijuently plaintitr, through whose properly the 
roatl passed, apjdied by writ of n rHoniri to 
have the proceedings reviewed and set aside t)y 
the .Supreme Court. He hatl not appeared hufure 
tlie Sessions nor made tiiere any objection to the 
conlirmation of the report. 

Ili/d, that having omitted to do so, and the 

proceedings iiaving been contirmed by a court 

of competent authr)rity having jurisdicti(jii in 

the matter, iiis application siiould be refusfil. 

Doijijill V. Tremaiu et a/., 3 N. S. 1)., 419. 



CHAILENGE- 

OF JURY IN CIVIL ACTIONS— .SVf Jl'RI, 



CHAMBERS, JUDGE8'- 

See PRACTICE. 



CHAMPERTY AND MAINTENANCE. 
Doctrine of, largely modlfled by modern 

cases — The doctrine of maintenance ami tlwm- 
perty is largely modified by the modern cases. 
Allan et al. v. McIIefey, 1 Old., 120. 



CHARACTER- 

I. GIVING SERVANTS -*e MASTER 
AND SERVANT. 

II. DEFAMATION OF --S'ce DEFAMATION. 

III. REPRESENTATIONS AS TO-Ae 
DECEIT. 



CHOSE IN ACTION. 
1. Action by asslgnee-Notlce-Conslden- 

tion - Forbearance to sue — Defendant »« 
indebted to plaintiff's assignor, and upon 
demand of the amount by the assignee acknow- 



m 



COLOR OF TITLE. 



314 



ledgeil the iiidcbtodness and roiiuested time for 
mymoiit, jiromisiiiji in considurivtion of tho for- 
liearaiiff to |niy thu amount to tho plalntit!'. 
Pl(iintitr»uiny for the debt, objection waa taken 
that liu was obliged a^ assignee to give fourteen 
diiys' notice unilor tlie statute. 

//(/(/, that tiie forbearance to sue was good 
consideration, and tliat [daintiH' couhl recover 
on an account stated. 

Pai-ioii-i, Axiiii/net, v. MacLeau, 5 R. & (J,, 45. 

2. Novation— Wlien A. is indebted to B., 
and ('. is indebted to A., and tiie three parties 
meet togctiier, and A. agrees tliat C. shall pay 
U. tiie amount due by him to A., which C, agrees 
to di), A. cannot afterwards revoke such order. 

MitchM ft a/. V. TurnhuU, H aL, 2 Thorn., 250. 

3. Assignment of— 

Su ASSIGNMENT, II. and V., S & 10. 



eating liquors. The Magistrates rendered a 
decision in plaintiff's favor, which was (juashed, 
in the Supreme Court, where it was brought by 
rer/iorari, for want of jurisdiction, on the 
ground that one of tho Magistrates was related 
to tho )>laintitf. The Municipal Council having 
refused to allow plaintitf his costs, application 
was made under 4th Rev. .Stat., c. 75, sec. 28, 
to amerce the county, 

//(/(I, that there being no jurisdiction in the 

; justices to issue process or to try the cause, 

plaintitf hail acijuired no right under the 

statute to be compensated for his outlay. 

Smith and Thompson, .I.J., f//W»/N/;/. 

Jart-'Oii v. The Muuicipalilji of Cnm.hi'rlaml, 

I OR. &(;.,119; 

«C. L. T., 442. 



CLERK- 

ATTORNEY'S-A'ee ATTORNEY. 

CITY BUILDING ACT 
CITY OP HALIFAX- 

See HALIFAX, CITY OF. 



CLERK OF LICENSE. 

1. Liability for costs— in an action brought 
in the Supreme Court ))y the Clerk of License 
on an appeal bond, purporting to be made by 
the defendant and another, on an appeal against 
a conviction under chapter 75, 4th R. .S., "Of 
Licenses, &c.," a verdict was found for the 
defendant on the ground that he had not execu- 
ted the bond on which the suit was brought. 

Held, that the Clerk of License was not 
liable for costs of suit. 

Qme.n v. Murray, 1 R. & C, 58. 

2. Clerk of License — Action for Illegal 

sale of liquor— Conviction quashed for want 
of jurisdiction — Amercement to compensate 
clerk refused-4th R. S., c. 75, sec. 28-cf. 5th 
^ S., 0. 75, 8. 40— Plaintiff, as clerk of license 
tor one of the districts of the County of Cumber- 
land, brought an action before two Magistrates 
to recover a penalty for the illegal sale of intoxi- 



COLLISION- 
Ste SHIPPING. 



COLORE OFFICII. 
Action for money taken — A pedlar was 

informed that he would not be allowed to sell 
oil in the town of Dartmouth without a license, 
and rather than stop his business or contest tho 
right, he paid the fee. 

The County Court .Judge helil that the money 
having been paid voluntarily, couhl not be 
recovered. 

Held, reversing this judgment, that the money 
could be recovered back under the count for 
money had and received. 
Hancock v. Town of Dartmouth, 2 R. & G., 129. 



COLOR OF TITLE. 

1. What necessary to give, under void 

deed — To acquire a colorable title to land under 
a void deed, there must be open and continuous 
acts of possession of some part of the land em- 
braced within the deed. Where the deed relied 
on as giving color of title gives no boundaries, 
description, or designation of the land, it can 
have no effect beyond the actual occupation or 
improvement, 

Boyd V. Milieu, 3 N. S. D., 292. 

2. Per Dodd, J.— Possession by descent 

is possession under color of title. 

Smyth V, McDonald etcU.,1 Old., 274. 



315 



COMMISSIONER. 



316 



CLUB. 

1. Halifax Yacht Ciiib Winding up Act 

does not apply to — Tlie petitioner, as adniiiiistra- 
trix, recovered judgment against tiie Halifax 
Yaclit Club, and issued execution, which was 
returned unsatisfied, there being no assets. She 
then resorted to tiie individual liability of tho 
corporators, uniler 4tli K. S., c. o.S, s. l.S, liut tiie 
iSupr- iiie Court decided tiiat the section did not 
ajiply to such a corporation. Petitioner tlien 
applied to have the affairs of the company 
wouml uj). 

Hdd, that the Provincial Act in reference to 
winding uj) of com])anies, differing from tho 
English Act in that it was ex])res.sly made ap- 
plical)lc to chilis, could lie invoked for the pur- 
pose of winding up the Halifax Yacht t'lub, but 
that, as there was no individual liability, and it 
was admitted there were no assets, the prayer 
of the petition sliould not bo granted, as it 
would only create needless litigation. 

//( >•(. Tht JIa/ijhx Yacht C/iih, K. E. I)., 473. 

2. Execution against nicnibcr of, execu- 
tion against club having been returned unaat- 
isfied — An ajiplication having been made for 
leave to issue an execution against an individual 
nienilier of the defendant club, an execution 
against the club having been returned un!.atistied, 

Ifi/il, that section l.S of cliapter ii.S of 4lh 
R. S , created no new liability on the part of 
members of a corporation, but merely provided 
that tliey should not 1)C relieved from any liabi- 
lity tint would have attached to them as part- 
ners, if unincorporated ; that the members of 
defendant club would not, if unincorporated, 
have been liable as partners, and tlie statute 
v/asnot intended to apply to such a corporation ; 
and, even if this were not the case, that tlie 
plaintiff could not hold an individual member 
liable without proving that he was a nienilier at 
the time of tlie return of the execution issued 
against the club. 

Rule Hi.fi for leave to issue execution dischar- 
ged, but without costs. 

Scolt V. Royal Halifax Yacht Club, 

IR. &G.,3'22. 



COMMISSION- 
EXAMINATION OF WITNESSES VNDER- 
-Stt EVIDENCE. 



COMMISSIONER. 

1. A Commissioner who is in practice, 

I and lawfully recognized by the Court us an 
officer exercising a function so important, is 
within the meaning of section 123 of the Insol- 
vent Act, 18G9, " a Commissioner appointed l,y 

the Court." 

LatKj v. Fonmau, "2 X. S. I)., 546. 

2. Aflidavit sworn before J. P. when Com. 

missioner at his usual residence within three 
miles — Where the alHdavit on w hicli an attacli- 
ment was grounded was made before a Justice 
of the J'eace, and it appeared th'it a Conimis- 
sioner for the County was, at the time, at liis 
usual residence, and within three ruiles of tiie 
place where the athdavit was made, the procetil- 
ings were set aside. 

Knodd V. Hist, '1 Tlioni., 14i). 

3. Power of Court over— On a motion to 

set aside an order of a ('ommissioncr refusing to 
discharge a debtor held to bail under tliu onlcr 
of another Commissioner, the Court claiming a 
controlling power over its Commissioners, pusseil 
a rule absolute, discharging the defeiidiiiits 
without costs. 

Hoiicrs V. 7%e>-.>-, '1 R. & (i., 495. 

4. Of Sewers— Appointment of-riiintiff 

and defendants were, by commission from the 
Lieutenant-< iovernor, appointed Commissioners 
of Sewers for the township of Falnumth. 
Plaintiif had been selected by proprietors repre- 
senting two-thirds in interest. Commissioner of 
the village dyke. 

Hi Id, that plaintitT alone could maintain an 
action against defendants, although at llio time 
of his selection, and when the work was done, 
defendants were named with him in the execu- 
tive commission. 

Dneidson v. Lawrence et al. 1 N. S. D., .'12. 

5. Presumption as to appointment -3rd 

R. S., c. 72, 8. 2— Effect of not being sworn 
into office — Plaintiff's, as Commissioners of 
Sewers for the district of 15. and M., brougiit 
action against the defendant for certain dyke 
rates assessed on the owners of marsh lands m 
that district, for constructing and repairing 
necessary dykes, etc. Defendant pleaded tiiat 
plaintiff's were not Commissioners of Sewers for 
that district. The Act regulating the appoint- 
ment of such Comnii.'-;si(niers provided that 
on being app<iinted they should be sworn into 
office by a Justice of the I'eace, and tlwt 
such swearing should be entered in the Com- 



317 



COMPANIES. 



318 



missiontTs' book of rcuonl. It appeared that | 97, s. 26— Cf. 5th R. S., e. 104, O. 47, R. 1 - 

only one of the plaintiH's luid fiiltilled tliis When llie uppraisenient shows that tlie apprais- 

rcciiiii'oiiu'iit, 

ini.'-sioiiei-s for .several years. 

Ill III, that in llius di)'eeting as to tlie entry of 
the sweiuiiig it was not intended by the Legis- 
liitme to sliut out ail other proof of ([ualitication, 
anil that tiicre was sutlicient evidenee aside 



hilt all three had acted as Com- ' ers were sworn, and the Sheriff's return refers 

to the appraisers' wariant, tile swearing of the 
ajipraLsers sutti':iently ai)pears. 

"Serviee on the agent of process to appear," 

in sec. 26, cap. 07, R. -S., (4th ueries), means 

service on the company's agent of process reqiii- 

fidiii tiii.s to afford tiie presumptif)n that the ; ring the com))any to appear. Levy under the 

nlaintifl's were legally ap])ointed and duly ' attachment under that chai)ter may lie made 

iiutliotizcil to act in tiiis as.seasment. I before service on the agent. 'Die levy is effec- 

Hubril ul. v. JlcFar/diie, 2 X. S. 1)., JJ-t. tual from the time of seizure of the property 

and not merely after appraisement and selection 
6. Of Streets —Appointment of -Rotation of the property to be held to respond the 
svstein continued — .Section 10 of chapter 4U, judgment. 

4iii It. .'^., providing for the retirement of Street The Muxhaul-i Bank v. 77" Sli:il C'o7n/iany 
('(imiiiis.sionors by rotation, applies to tlie ap- ' of Cuiiaila (Liiaiii il), ."> R. & G., "258. 

noiiitmcnt of C'ounnissioners by the Municipal i 

Cor.iKil nmfaiu mii/aiidl-i. 2. Wlndlng-up Act— Winding-up order— 

.McDonald, C. J., di^Kintinij. , Jurisdiction over foreign companies— 45 Vic, 

LtttiMty V. DUIon, ti R. iS: (i., 14(i ; c. 23, D. — Requisites of order — II' Id by .Smith, 
6C. L. 'P., 449. Weatherbe, Rigliy, and Thompson, JJ., that a 
company, though incorporated in (ireat Britain, 
can be made the subject of a winding-up order 
in tile Supreme Court of Nova Scotia, imder 
the Winding-up Act of 18S2 (Canaihi), when the 
company is carrying on business in Nova Scotia, 
ami has its management here altogether or in 
part. 

/'( )• McDonald, J. — The Court has jurisdic- 
tion to make such an onler when an Act of the 
Proviiii.ial Legislature has confened on the com- 
pany the right to hold lands in Xova .Scotia. 

McDonald, C. .L, diifiidiiuj, on the ground 
tiiat tile Winding-up Act does not and could 
not confer jurisdiction over foreign companies. 

Ilild, by McDonald, C. J., and McDonald, 
.Smith, and \V'eatherbe, JJ. , that a windhig-up 
order must name the permanent li([uidator, and 
cf>uld therefore only be made after notice to 
creditors, coiitributories, &c. 

Kigliy and Thompson, JJ., dis-ohiiiKj. 

Ill rt H/tc/ Coiii/Kini/ of Canada (Limited), 

5 R. & (i., 17 & 49. 

On aiijiad to Ihn Sii/mme Court of Canada, 
Hild, reversing the judgment of the Supreme 
Court of Nova Scotia, Founder, .J., diiifmiUinij, 
that 4.") Vic, c 'J.S. , was not applicable to such 
company. 

Tilt Mtirhanlt' Bank of Halifax v. C.'llcsjiie, 

10 .S. C. R., :n'2; 
4C. L. T.,27G. 

3. Winding-up order set aside on tectanU 

cal grounds — New order granted upon same 
petition held good — An order was made for the 
winding up of the company, and. under that 
order, a provisional liquiilator wnsi appointed. 



COMMON LAW. 
Common law — Statu'ies, English — How 

far in force in this Province — Tiie Statutes 
;i;j H., S, c. .'iO, and Ui Eliz., c 4, which 
gave the Crown a lien upon the real estate of 
cci'tciin public officers as a security for the fultil- 
niunt of tlicir lioiids are luit in force in tiiis Pro- 
vince. Tiic revenue laws of Kngland are not 
iippliciililc here except in so far as our Legislature 
lias seen tit to adopt their provisions. 

The whole of the English common law will be 
recognized as in force here, excepting such parts 
lis are obviously inconsistent with the circum- 
stances of the country ; while on the other hand 
none of the statute law will ije received except 
.such p.irts as are oliriowly a/i/iliaihlK and nextn- 
mry. 

The increasing lapse of time since tiie settle- | 
ment of the Province should render the Court 
niKie Lauliou in recognizing English Statutes 
which have not been previously introduced. 

Uiiiacke v. Dirk^iii ct a/., James, 287. 
See, aim. Queen v. Porter, 20 N. S. R., 
(8R. &(i.), ;ir)2. 



COMPANIES. 
1. Suits against — Service on agent - 

Attachment against companies — Levy and 
appraisement — Construction -of 4th R. S., c. 



319 



CONSTABLE. 



320 



The order was set aside, as notice had not been 
given as required by statute. Notice was tliere- 
upon given, and a new order taken, witliout 
any further petition. 

Held, tliat no new petition was necessary. 
In re Steel Company of Canada (Limited), 

5R. &G., 141. 



COMPOSITION. 
1. Acceptance of dividend by creditors 

who have not signed — Defendants were tlic mak- 
ers of two proniivSsory notes to A. & Co. , whicij the 
latter indorsed to the Halifa.ic Hanking Company. 
Before the notes became due both defendants and 
A. & Co. became insolvent. A composition deed 
was executed between defendants and their cre- 
ditors, by wliich the latter agreed to receive 
eiglit shillings and nine pence in the pound in 
full of their respective debts. Tliis deed was 
not executed by the H. H. Co., but they took 
new notes from the defendants, embracing at 
this ratio all their claims against the defendants 
on promissory notes, including the two notes in 
question, and gave the following receipt : — 

Halifax Banking Company's Office, 

Halifax, '2At\\ April, 1858. 

Received from Messrs. Salter & Twining the 

sum of one hundred and twenty-two pounds ten 

shillings currency, being the composition of 

eight shillings J'.nd ninepence (8s. 9d.) in the 

pound 0.1 their two notes of liand in favour of 

Messrs. Allison & Co., amounting to £280, and 

discounted by Messrs. Allis(m & Co. at this 

Bank, the notes being retained for the purpose 

of receiving a dividend from the estate of 

Allison & Co. 

(Sgd.) N. T. Hii.L, Cashier. 

The cashiei' of the H. B. Co. stated " that the 
notes were left in the Bank by defendants of 
their own accord ; that had the notes Ijeen re- 
quired by tile defendants they would have been 
delivered to tiiem, the Bank considering the 
defendants wholly discharged of any furtlier 
claim on them on account of these notes." He 
also stated tliat there was no reservation. 

It appeared, however, that one of the defen- 
dants, at tlie time ti^e notes were so left, said : 
"The Bank are fully entitled to receive tlie 
whole amount of the notes, and witli that con- 
sideration I leave tlicm with you for the purpose 
of recovering from Messrs. Allison & Co. , (A. & 
Co.,) the difference from their assets. 

The H. B. lo. subsecpiently obtained ten shil- 
lings in the pound on tlie face of the notes from 
the estate of A. & Co., (neither A. & Co nor 



their assignees, it would appear, being aware, at 
the time, of tlie transaction between tlie tlcfeu- 
dants and tlie Bank), and the action was biought 
by tlie assignees of A. & Co. to recover from 
defendants the balance due on tiie face of tlie 
notes after crediting tlie £\'22 10s. 

Held, by Young, C. J., DesBarresand Wilkins, 
J J., (Bliss and Dodd, J J., dix^entiiiij), that 
tlie H. B. Co. had absolutely discharged the 
defendants from all liability on account of the 
notes, and that the action could not be iimin- 

I tained. 

Per Wilkins, J., that by the acceptance of the 
composition the H. B. Co. became virtually 
parties to the composition <leed, and bound hy 
all its terms. 

j Lawsou ef al. v. Salter et a/., 

i 1 Old., 79 & 731, 

j 

2. Private stipulations witli particular 

creditors — The defendant being indeljted to 
plaintiff on a promissory note, and also for a 
j separate debt, plaintiff executed a letter of 
; license in his favor for the other debt, 
J reserving the note. The license, which pur- 
ported to be executed Ijy the creditors gene- 
j rally, was in fact ex. cuted l)y plaintiff" alone. 

Held, that the license was ineffectual, aiul 
did not bar plaintiff's claim. 

Mooney v. Domom, James, 'Jo4. 

See, also, ASSIGJfMENT-INSOLVEXT ACT. 



CONSTABLE. 

! 1. Action for assault against Police Con- 

1 stable — Justification— 32 and 3.3 Vic,, c, 29, 

s. 132, D. — Two assaults committed — One 

I sued for — Plaintiff waives one — Tiie plaintiff 

, having been arrested on view, and imprisoiied 

by defendant, a police constable, and his siipe 

I rior officer, brougiit an action of trespass against 

I the former aii<l recovered a verdict. The declu- 

! ration contained only one count for an assault 

! and false imprisonment, while the two distinct 

assaults were proved at the trial, the scciiml 

being the one connected with the iniprisDnnient 

declared on. 

Held, that this was a fatal objection, the 
plaintiff not being at liberty to wai\ o the assault 
first proved, and give evidence of another. 
Under Dom. Stats., 32 and ,33 Vic. c. 29, s, 132, 
the defendant being a suijordinate police otfioer, 
may give evidence to show a justification umler 
the command of a superior officer without plead- 
ing such justification specially. 

Peppy V. Orono, 1 R. & C, 31. 



321 



CONSTRUCTIVE SERVICE. 



2. Action against— No action lies against action for the oonversion of ii (juantity of intoxi- 
aconstalilo for the execution of ii warrant, how- eating liquors tlie defenilant, P., justified as a 
ever ilcfcclive, wliere the magistrate issuing tlie constalih', acting under a warrant purporting to 
warrant iias jurisdiction. liave been issued l)y a Justice of the Peace lunler 

McOrtijor v. Pal/tr.son, 1 Old., U'll. the provisions of the Canada Temperance Act, 

IS78, and tlie defendant M. as his assistant. 

3. Assault upon a Constable— Construe- The facts necessary to give jurisdiction did 
tion of Dominion Acts of 1869, chapter 20, sec. not appear either in the information or warrant, 
39— Peace officer in the due execution of his and tiie warrant was Lssued by rtne Justice, con- 
duty held to include constable serving civil tiary to section 108 of the Act. 

process -Chapter 'JO, section .S9 of the Dominion Hi/tl, that the conviction was bad. 

,\els of 1809, provides that "whoever assaults | Also, that the constable being a trespasser, 

any . . . peace ofticer in the due execution his assistant could not justify under him. 

of his duly . . . or assaults any person with Xothing will be intended in favor of the juris- 

iiiteiit to resist or prevent the lawful a])prehcn- diction of an inferior court. 



siim or detainer of himself or any other person 
for any oflcnce is guilty of misdemeanor and 
hall be liable," etc. 

Defendant was convicted under this Act of 
an assault upon a constable in the due execution 



Gallihiw V, Pi/tr.ion t/ a/., 20 N. S. R., 
(8 R. & <;.), 222; 8 C. L. T., ;J97. 

7. Notice of action under 32 and M Vic, 

c.29,s. 131, D — In action against police constable 
of his duty. Ihe constable had an execution f,., ^^.^.^^^ ^,„,i f^^,^^. i,„j,,i,onnient, without no- 
aguin-st -lefcndant, who pointed out a horse as i ^i.e „f action as re,,uired by sec. 1.31 of c. 29, 
being all the property he possessed. The con- ^^o ,,„.i ..^3 yj,..^ j,i^^i„titr cannot succeed. 
stal.le being of oi«nion that the horse was not p^^,^,^ ^ ^,,.^,,^_ 1 p_ ^ ^^ ^ 3,_ 

surticieiit to satisfy the execution proceeded to 
aiTcst, and was assaulted in doinL' so. c c<„i.v u., n„„ <~i.i. «» * j 

„,, ^ .,, T i„- I , Tr ' ^' Sale by Constable after return day— 

y/i/f/, /orNinith, Jamesand \\ eatherbe, JJ. — . , ,„ ,. .1 1 • 1 1 , , r 

„. , ' ,, , , '""'A constable seize<l a horse under a warrant of 

Ihat the constable, though serving civil process, : ,];„.„„„„ o., 1 .„. 1 ... i* 11 ti 1 t 

. , . , , ° ° '■ ' . Mistress, and eiuleavored to sell the .same l)efore 

Celine within the meaning of the words peace ,i,„ „..„„„ k. * ..i . 1 ^ 

,, , , , ° I vv jijg return day of the warrant, but was pre- 

omccr, and that the conviction must be attirmed. »„ 1 *.. 1 • 1 • n 1 i.i r 

M T> I , r. T i,r,. ,, T ,. . i vented from doing so, chiefly by the party from 

McDonald, C.J. , and. McDonah, J., f/(N.sc/i/i«r/. ' ,..,^ »i „ , \ , \, , ... 

' > > ' " J- I whom the horse was taken. Subseciuently to 



the return day the constable sold the horse. 
//(-/(/, that the sale was valid. 

W/ieatoii V. Franditvilk, 2 X. S. I)., 288. 



CONSTRUCTIVE SERVICE. 



Qiittn v. Laii/:, 7 R. & G., 1 ; 

7 C. L. T., 50. I 

4. Dulles of-A constable to whom a war- 
rant is intrusted for the collection of a school 
assessinciit, the warrant containing recitals that 
tlie assessment was "made in conformity with 
law," etc., is iiiider no obligation, in order to his 
fJiDtection, to institute every inijuiry as to the j 

legality, or the existence of the assessment re- , Constructive SCrVlCC- Affidavit fOr— Plain- 
fcneil 1(1, or as to demands having heen made on till" obtained in the County Court an order, under 
the parties named in the schedule, or as to their 4tli R. .S., c. 94, s. 44, for construclive service 
■;c;ng dtfaiilters. His sole, single, unmixed duiy of a writ of summons on the defendant, who was 
13 to oliey the nuindatory part of the warrant absent at the time in England. The affidavit on 
wlieiowilh he is charged. which the order was taken was substantially in 

J/',(.'n;/oc V. Paflirsoii, 1 Old., 211, atliiuied. these terms :— " That said defendant is absent 
I'iiico V. Shair t/ a/., 1 X. ,S. D., ;i02. from the Province, and is, as I am informed and 

believe, in ( ireat Hritain, so that personal service 

3. Execution substituted for warrant— , cannot b.; effected upon him, if at all, without 
The rioviueial Statute, ."{4, (Jeo. 3, c. 1,"), pro- 1 great expense and incimvenience ; that I have 
tectiug utlicers ami others, their assistants, act- | a good and available cause of action against de- 
ing under the warrant of a Justice, extends to, j fendant ; that H. P. is the agent and partner 
anil inehidcs them, when acting under ant.vccu-- of the defendant in this Province." 
tion substituted for such warrant. \ Hdd, reversing the decision of the County 

Stamaii,Jml, v. Be Wolf, 1 Tlioin., (2d ed.), 193. ; Court, that the alfidavit was tiot sufficient, but 

j that it should have set out the facts and circuni- 

6. Inrorniation and warrant must show stances necessary to make it "appear to the 
facts giving jurisdiction to justify — In an 1 satisfaction of the Judge," exercising his own 
11 



323 



CONTRACT. 



324 



judgment in the matter, tliat the case came 
witliin the terms of tlic statute providing for 
constructive service 

Foster V. Roome, 3 R. & C, .S44, distinguished. 
McLellau v. Baldiviit, 3 R. & C, 554. 
See, aho, PRACTICE. 



CONTEMPT. 



1. Powers of House of Assembly to punish 



for- 



^ee ASSEMBLT, HOUSE OF. 



2. Barrister charged with— A letter writ- 
ten by a Barrister to a .Judge, ci\iirging tlie 
Judge and tlie wliole Court with partiality in 
cases in which lie was a party, is a contempt 
of Court ; for which tlie Court may, of its own 
motion, suspend him from practice. 

In re T. J. Wallurc, 1 Old., 6.-)4. j 

Order suspending from practice discharged on i 
appeal to the Privy Council on the ground that 
" the offence" was committed l>y an individual in 
his capacity of suitor, in respect of his supposed j 
rights as a suitor, and of imaginary injury done 
to him as a suitor, and had no connection what, 
ever with his piofessional character, or anj' thing 
done by him as an advocate or attoriiej-, and 
to otfences of that kind there had been attached 
by law and long practice a definite kind of 
punishment, viz., fine and imprisonment; and 
that *-here was no necessity for the Judges to 
go further than to award to the offence the 
customary punishment for contempt of Court ; 
that tliere was nothing which rendered it expe- 
dient for the public interest, or right for the 
Court, to interfere with the<^a?!(.s of the indi>'id- 
ual as a practitioner of the Court. 

Walku-e, in re, 1 Old., 6(56; 
L. R., 1 P. C, 283. 



CONTINUANCE- 

See PRACTICE. 



CONTRACT. 
1. Action for breach — Party entitled to 

sue— Interest in the profits— Agency— Amend- 
ment by adding plaintiff- Party joined must 
consent in writing — Order 16, Rule 10— L. W. 

brought an action to recover damages for the 
breach of a contract, made by defendant, for the 
supply of a quantity of canned lobsters. 



It appeared that in making the contract, 
plaintiff was merely acting as .'gent for M. L. 
\V., and that he had no personal i'lter' st in the 
transaction beyond the fact that his reimuiera- 
tion was dependent upon the amount of profit. 

Ifi/(l, that the understanding between ]ilain- 
fiff and M. L. W. as to the mode in which 
j)Iaintiff was to be remunerated for his services, 
could not enable the latter to recover in his owa 
name for a breach of the contract. 

Leave having been grante<l, on an appliciitioii 
made for that purpose, to ameml, by adding the 
name of M. L. W. as plaintiff, 

Ifild, that miller the wording of Order 16, 
Rule 10, such an aniendment could not lie imule 
in the absence of a written consent by tiie party 
to be Jf)ined. 

Wnrzbtir,/ v. Wehh, 7 R. & (i., 414. 



2. Action for goods sold and delivered- 

Offaet — Contract made by agent — Authority of 
agent — Judgment of County Court Judge 
reversed — Appeal from a judgment fif the 
County Court Judge for district No. 1. in favor 
of defendant, in an action by plaiiititl's for the 
price or value of goods ordered by dcfciulaut 
through an agent employed by plaintitt's to 
solicit orders, in the course of their Inisiness, 
Defendant set up, as an offset, a contra account 
for an advertisement of plaiiititl's' business in a 
newspaper of which defendant was proprietor. 
Plaintifl's had previously advertised in defend- 
ant's paper, but the time had expired, and the 
order for the goods sued for was obtained by 
the agent agreeing to continue tlie advertise- 
ment. 

It appearing that the agreement was made 
without authority, the appeal was allow ed with 
costs and the judgment below reversed. 

Oland et al. v. Bertram, 7 R. & G,,?12; 
8 C. L. T., 6). 



3. Agreement among owners of vessel as 

to management of vessel, &c. — Plaintifl's fur- 
nishing supplies, &c., without notice of— Plain- 
tiffs had for some ye.ars furnished outfits and sup- 
plies for a fishing vessel of which defendants were 
part owners. In 1866 it was agreed among tl:e 
owners that J. McC, one of them, shonld man- 
age the vessel on his own account, jiaying »" 
expenses and that the otliers should receive cer- 
tain proportions of the proceeds, but of this 
agreement plaintiffs had no notice. 

Held, that defendants were liable for goods 
supplied by plaintifl's to J. McC. in the usual 
way after the agreement. 

liyemon et al. v. Lyons et al., 2 N. S. D.,4j- 



325 



CONTRACT. 



326 



4, Agreement, construction of— PartiCU- | tilings omimeratcd in tlie schedule annexed, or 
lar words, terms and phrases — Defendant lield | tliose added to or substituted for them, passed 



iv niott^itge (if teitain propei'ty in the possession 
of the mortgagor, and agreed, by letter pre- 
paRil Iiy tiie plaintitl', altliough signed l)y the 
(lefeniliint to sell to the plaintitl' all the interest 
and title of defendant to said premises with 
all securities, collateral or otherwise held by 



to Wylile, Ifart i^ Co., and that tile word 
" things " eould not be held to embrace the gen- 
eral stock in trade, but nuist be limited to pro- 
perty ijusihjn lif.wrix with that descrilied in the 
words preceding and connected with it. The 
word "plant," when used in reference to a, 
saiil (lefeiidai't in respect of siiid mortgage ; also manufactory, was probably applied in tlie first 
a curtain i)olicy of insurance, itc, the defend- : instance only to such apparatus or machinery 
ant guiiraiUeeing good title, and tliat said niort- I as was afKxed to the premises, but a more 
gage was a Hrst encund)rance, &c.. Afterwards extended meaning seems now to be given to the 
plaintitl', having given defendant his cheijue , word, ami the plant of a manufactory endiraces 
for ^.'idO on account, the defendant signed a ' all the apparatus or machinery, whether fixtures 
receipt substantially in these terms : "Rcceiveil or ('thorwise, by moans of which the business is 
from T. K. Jenkins the sum of five hundreil carried on. 



ilollars on account of tiie purchase of all my in- 
terest and title in tlie mortgage on Stephen 
property. * * I have sold saitl mortgage of 
SS,(XKI, together with the securities, collateral 
or (itlierwise, held l)y me * * * an,! l„ilf 



//( ri Jfoiiti/oniiry, an Iiisolri nt, 

K. E. D., 154. 



0. Agreement for sale of lands Kescin. 

ding by parol before breach— An agreement for 
the interest of the a<ljoining property south, and ^,,^. ^.^^ „f j.^^,,^^ go„,l „„,|„. ^^^ Statute of 
insurance policy and receipts on saiil property, p,.,i,.,ij,^ ,„,^y ,,e rescinded before breacii of it by 
am! all other securities, * * * balance to p_.^,.„,^ provided there is a total abandonment of 
be paid as soon as possession is obtained by ^,^^ ^^.,^^^j^ contract, and not merely a partial 
T. K. .Jenkins." The Coiu't having, under a , ^^..^^.^,^. ,,f g^„„^ „f j^^ t,,,,„„ . „„,, ,ioes the vah- 
rule, power to draw mferences as a jury might ,,i^,, „f ^„^.,^ rescission .lepen.l on the existence 
do, Ir.hl that the p.is.session referred to in this ^^j .^ consideration. 

agreement was possession of the securities men- ; Bardaij v. Proa.-<, R. E. I)., 317. 

tioned and not of the land, and they non-suited I 
the plaintitl' in an action of damages against de- ! 

fcndant for not perf.inning his agreement bj 1' Actlon fOr WOrk and labor-Counter- 

dtlivering possession of the land. claim— Rectification of conti : 'it— Amendment 

Juikim v. Sluliiiij, 3 R. & C, 510. , of pleadings-Laches, accounting for— In an 

I action to recover an amount claimed to be due 
j for work and labor done, defendant sought to 
5. Agreement— Construction Ot~Ejii>idem plead by way of ofi'set or counter-claim, an 
;/«://.W» -Definition of "plant" — The insolvent amount which plaintitl' had agreed to pay for 
conveyed certain property to ^Vylde, Hart & Co., , every day that his contract should remain unexe- 
liy an instriunent, reciting that he had agreed to I cuted after the date fixed for its completion. 
give them security on all his real estate, /Vawi' ' The words "per day" having been ondtted 
(im/ Hi((-7i/Ho7/, m the city of Halifax, and after from the contract, defendant applied to the 
conveying certain lands he conveyed all that and | equity side of the court for a rectification, and 
those the )Hrt(7i/H(C(/, /)?iyy/(»((«^< ajfrf ^/n'«;/N speci- I obtained an order staying proceedings in the 
lied in the schedule hereto annexed, which sche- ' meantime. 

iMe was iicaded, " Plant in the Machine Shop," i An order, rectifying the contract by adding the 
and was fotuid to contain, not stock on hand or : \\ord3 omitted, was granted on the '27th May, 
articles manufactured, but only such articles as i 188."), but no step was taken by defen<lant to 
wotdd enme under the designation of machinery, ; amend her pleadings until October following, 

when an application was made at Chambers for 
leave to amend by filing the coimter-claim. 

Defendant's counsel accounted for the delay 
by alleging on affidavit that he could not have 
counter-claimed prior to the rectification of the 
contract, and that subseiiuently he was delayed 
by the absence of witnesses from whom it was 
necessary to obtain certain information. The 
application for leave to amend having been 
refused, 



implements and thhuix of that nort. A subse. 
qjciit part of the instrument provided that all 
the machinery, impkmmtx and thiiiy.^ which, 
'liirmg the continuance of the security, should 
be tixeil or placed in or about the land described 
'1 addition to or substitution of the said machi- 
nery, implements and things described in the 
schedule annexed, should be subject to the 
'tiists, &o., expressed in the instrument. 
f!ild, that under the instrument only the 



327 



CONTRACT. 



328 



Ildil, 1)11 appeal, that altliougli the dehiy after 
the making of the order luul not been satisfac- 
torily accoiinteil for, the refusal to ])erniit the 
aniemhiient on terms was not jnstilieil by tiiu 
circumstances of the case. 

The jiower to anienil is so plainly intemled to 
allow all mistakes and erroi's made in jileadings 
to lie I'eetiticd in the absence of v}iilii liih ■■<, and 
under such conditions as to juevcnt injury to 
the oj)posing parly, that tlie court will hesitate^ 
except unilii' very exceptional ciriMimstanccs, to 
refuse an aiiiemiinent to either party where sucii 
injtn'y would not occur, or where, if f)ccuring. 
it coulil be compensated for. 

/'(/• McDonald, ('. .!., i/issi n/iiKj, that the 
defendant was guilty of undue anil unexplained 
delay, and was not entitled to the ann'iidnient 
applied for by reason thei'eof. 

Sij)iiom/s if al. V. Fixliirifk, 7 R. ifc <■., 4.S7 ; 

7 C. L. '1'., -i.SS. 

8. Agreement respecting lands -Admln- 

istratrx with will annexed, purchase of real 
estate by, when personal assets of testa- 
trix sufficient to pay oft' encumbrance - Sub- 
sequent parol agreement to sell part of said 
land, null — Compensation money for land, 
right to, and how to be treated— 4th Rev. 
Stats, c. 36, s. 40 — A. McMinn was nioit- 
gagor of a lot of land. After his death tiie 
mortgage was forech>sod, and his widow, Mrs. 
McMiun, bought the lot in December, 184'J, for 
fOO.'i, the sum of t;7-"> of this amount being 
advanced by her daughter, Mrs. A. McKean. 
Several small ])ayments were made by Mrs. 
McMinn to Mrs. McKean, and in lsr)4, one part 
of tlic land being sold, t'4(Ht were paid ovi'r out 
of tlic ju'oceeds of the sale to Mrs. McKean, 
•who soon afterwards agreed with Mis. McMinn, 
that for tiie balance due, some H'lM or more, she 
would take a small house on part of the land 
with a small piece of land adjoining. Mrs. 
McKean went into possession of tiie house and 
land agreed upon in 1S.")4, and remained in jios- 
session until 1S7-, when that land and iv consider- 
able portion of tiie lialaneo of Mrs. McMinn's 
land were taken by the (lovernment for public 
purposes. 

JIi/il, that out of the appraised value of the 
lands paid into Court by the (iovernment, Mrs. 
A. Kean was entitled to a sum e([ual to the 
balance due her at the time of the agreement in 
1854. 

In re Hoxpkal for Insane, 2 R. & C, 501. 

On appeal to the Supreme Court of Canada, 

About 1837, Andrew McMinn devised his 
lands to his wife, Mary McMinn, for life, with 
remainder to Maria Kearney. Letters of admin 



' istration with the will annexed, were grunteil to 
I the widow. At the time of testator's dciUli, tiie 
lands Were miirtgaged for tlLVI. A suit tofure- 
close this mortgage was ili.stituted after the 
' testator's death, and it was alleged tliat luiderii 
a forechisure was obtained, and the piopeity 
sold, and purchased by the adininistratiix for 
i'!K)5. There was evidence that the adiiiiiiistia- 
trix received personal assets of tlie lestiitor 
I sufficient to iiave iiaid otl'the mortgage, iiiul slie 
chosen so to ajiply them. The sum of t'7'.'.')5as 
'. lent to the administratrix by Ann Keaii, her 
' daughter by a former marriage. Tlie ailiiiinis. 
tratrix then sold the jiroperty to the public 
authorities for £17.")0, out of which she |)iii(l her 
daugliter €4(K). From IS.IS, the dauglitcr, witii 
the leave of tlie administratrix. occu))iL'il aliout 
one i|Uarter of an acre of the land, until in 187.1, 
under tiicautliority of an Kxprojiriatiiui .\ct,siie 
was ejected from it, the Commissioner tiikiiigin 
all three acres and three-tenths of this piuiwrty, 
the balance being in the occupation of Muiii 
Kearney and her husband, Francis Kuiinity 
(tlic a|)pellanls). Tiiese three acres ami liiree- 
tenths were appraised at $2,310, and tliiit m\\ 
was paid into Court to abide a decision as to the 
legal or ei|uitable rights of the parties les] 
lively. Ann Kean claimed a title to tiie '.viiuit 
of the laud taken, under an alleged jiarol agree- 
ineiit with her mother that she should liiive the 
hind in satisfaction of tlS'-T), the residue uiipai'l 
of the h)an of the t'l'lT^, and obtained a iiile )»•: 
for the payment to her of the sum of .'?i.',3IO,tht 
amount awarded as compensation for tiie Liiii. 
In May, 1S72, the administratrix executtil an 
informal instrument under seal, inir|MiilinL' to 
be a leiise of her life estate to the ajipellaiitsin 
the whole proiierty, reserving a rental of .r^* 
a year and liberty to occupy two rooms in : 
dwelling-house then occupied by her. 

On a motion to make this rule absolute, several 
atiiilavils were tiled, including those of liieap- 
pellant.s. On the 18th .January, IS:."), tlioimitttr 
was referred to a master to take evidoiae ami 
report thereon, subject to such report litiii; 
modiHeil by tlie Court or a .Judge. The muster 
reported that the appellants had the solelefi! 
and eiiuitable rights in the property. On iimtwn 
to contirm that report the Court made anor.Iei 
apportioning the .^-',310 between Ann KwinaiiJ 
the appellants, the former being declared eiititkl 
to be paid §1,015.61, and the latter, on filing 'M 
written consent of Mrs. McMinn, tlie resiaueo! 
the *-2,310. 

Held, on appeal, 1st. That the administratra 
having personal assets of the testator sntfieien^ 
to discharge the mortgage, was bouml in >« 
course of her administration to discharge f 



■ saii 



329 



CONTRACT. 



33 



encuniHrancp, and that the parol agreement 
maile liy lifi' with her ilauglitur was null and 
void. 

'Jnd. That when land is taken nnder autho- 
rity of legislative provisions, similar to 4th 
Rev. Stats. N. 8., c. 36, s. 40,^e< aeq., the com- 
pensation money, as regards the capacity of 
married women to deal with it, is still to be 
regarded in K(inity as land. 

K<arii<ii ft a/, v. Kean tt ctL, 3S. C. R., 332. 

9. Agreement to purchase land — Part 

payment— Rescission of contract without men- 
tion of return of money paid— Money recover- 
able— Wliero A. entered into an agreement to 
purclwse land, and paid part of tlie purcliase 
money to B., and it was subse(iuently agreed 
between the j)arties that the l^rgain should be 
rescinded, and nothing was said at the time 
relative to tlie return of the money paid by A. , 
k. '\» nevertiioless entitled to recover the amount 
back fron) B. 
Wilkin.'f, J., fllA'oiitiiif/, 

Cnin/ilii/l v. //< iitli:r-:oii, 2 Thorn., ,'},']."). 

10. Brand-Warrant J -Evidence of breach 

of, as proof of failure of consideration— Plain- 
titi's .sold to defendant a (jnantity of ti.sli, packed 
in Ijarrels and luilf barrels, in.spected by one of 
tlie plaiiititfs, not being a sworn inspector, as ! 
provided l>y statute (R. ,S., 3rd series, cap. 85), i 
anil by him branded "(Udf Herring, Split No. 1,'' 
the statutory description of inspected lierring. ', 
Before punliasing, defendant examined a few 
barrels which were opened, and saw none 
iinsniuid. The tish were shipped to Koston, and ', 
on inspection there tiiey turned out bad, with i 
the exception of four barrels, and were returned I 
to Halifax, where they were again inspected. 
There was strong evidence that tlie (isli, wlien 
sold, (lid not correspond with the brand, and 
the jury in answer to a (piestion put to them by | 
the Judge, found that the fish, when sold, were ! 
not as a whole, properly cured and merchantable ; I 
bu^ to another question, whether the fisii were ! 
fraudulently put up for the purpose of deception, | 
they made answer in the negative. A verdict I 
passed for the plaintiffs for §350 ; the claim ; 
being about 81100. ' 

Ml, that the brand, "Gulf Herring, Split, | 
No. 1," amounted to a warranty that the fish; 
were cf the quality commercially known under i 
that denomination ; that it was not necessary 
tor defendant to bring a cross-action on the 
warranty, but that ho could give evidence of 
fte breach of the warranty as proof of failure of 
consideration, and that the verdict should be set 
!«ide with coats. 

Mader et al. v. Jones, 1 R. & C, 82, 



11. Building, bond for performance of— 

Quantum tneniit — In an action against the 
principal, and sureties on a bond to the plaintiff 
for the payment of the cost of a house, which 
the plaintiff was to build for the principal, it 
appeared that the work was not done in strict 
pursuance of the agreement and specifications. 
The plans referred to in tJie contract, and which 
were part of it, were not put in evidence. The 
person employed by the inspector named in the 
contract, who was to superintend the work, was 
superseded by another by plaintifl' without the 
consent of tlie defendants. 

//r/d, that plaintiff could only recover on a 
qtiaiUiim meruit, and that, as there was not 
sufficient evidence to enable tlie jury to deter- 
mine how far tiie contrcic had been departed 
from, an<l as the snreiies could not be Iwund by 
the appointment of the new inspector, tlie ver- 
dict for plaintiff must be set aside. 

Filch V. RItrhit H al., 3 R. & G., 407. 



12. Building contract -Liquidated dam- 
ages— Ky a written agreement between plaintiff 
and defendant, plaintiff agreed to repair a build- 
ing owned by defendant, the work to lie com- 
pleted by a certain day under a penalty of $25 
per week for every week tiiat the building re- 
mained unfinished after that date, said S25 per 
week to be settled and stipulated damages for 
delay. The contract was not completed at the 
date specified, nor for some time after. The 
plaintiff sued the defendant for .S.S84.25, the full 
balance claimed to l)e due him under the con- 
tract. 

The defendant paid S1S4.25 into court and 
claimed to set off §25 per week for eight weeks' 
delay in completing the contract. 

Tlie learned Judge below found the $25 per 
week mentioned in the agreement to be liqui- 
dated damages, but held that the work was sub- 
stantially done at the expiration of three weeks 
from the date mentioned in the agreement, and 
therefore only allowed the defendant §25 per 
week for three weeks. The defendant ap- 
pealed from that part of the judgment appor- 
tioning the damages. On appeal to a divisional 
court the judgment of the lower court was sus- 
tained. Defendant appealed to full court. 

Held, that defendant was entitled to offset 
the .S25 per week for the full period of eight 
weeks, it appearing from the evidence that cer- 
tain portions of the repairs were incomplete 
until the expiration of that period. The fact 
that the defendant moved into the house, before 
the repairs were complete, was not a waiver of 
his right to claim for the full period during 
which the repairs remained incomplete. 



331 



CONTRACT. 



332 



Judgment wns orrlered to he entered for the' 
defendant for all the costs, including those in 
the Court helow. 

Norton v. Tohin, 20 N. S. R., 

(8 R. & G.), 169 ; 8 C. L. T., 377. 

13. Caveat emptor— Breach of contract , 

— Action for non-accounting in the sum of £800» 
and also for non-payment of a promissory note 
for £100. Defendant pleaded fraud and niisrup- ; 
resentation, and that the vessel, the subject of 
the contract, had not been completed by plaintiff 
according to tlie terms of tlie agreement between 
them, but was unseawortiiy, and also a set-oH" 
for expenses incurred in conaetiuence thereof. 

It appeared that plaintiff, being engaged in 
building a vessel in .Tuly, 1804, transferred her, 
while on the stocks, to defendant by bill of sale, 
and at the same time gave him a lease of the , 
building yard. The vessel was completed by | 
defendant and in July, 18(55, was delivered to 
him and he signed an agreement to pay for her. 
There was no warranty required or given, and . 
no proof of any fraud or misrepresentation on 
the part of plaintiff. ' 

II(/(I, that as the defendant had liad tlie fullest ' 
opportunity of inspecting tlie vessel wiiile in 
progress of completion, and of exercising his 
own judgment upon iier, the maxim ran at ( mplor 
applied, and he was excluiled from giving evi- 
dence as to her being unseawortiiy. 

A'so, that it was not open to the defendant to 
impeach the note unless there was a total failure 
of consideration, iiis proper remedy for any par- i 
tiai failure )>eing by cross-action. I 

Al--<o, that evidence under the plea of set-oflFi 
was properly excluded. 

/intndii/c V. Ddaniy, '2 N. S. D., 02. 

14. Charter-Party— Agent's authority- 
Ratification of agent's acts ^ Defendants in- 
structed tlieir agents at New York to charter a 
ship to carry certain goods thence to Sydney, ' 
C. B. The agents chartered plaintiffs' sliip, an<l 
the voyage was cariie<l out, and tlie goods iluly 
delivered and received by defendants. On the 
way to Sydney the vessel called at Halifax, I 
where one of the defendants, wlio iiad previously ! 
received the charter-party, visited her. He 
was also present at Sydney when the goods were 
delivered. On neitlier occasion did he make ! 
any olijection to the freight ]iayal>Ie under the 
charter, but subsequently refused to pay it on ! 
the ground that the rate was too high, and that 
his agents had exceeded their autiiority in enter- 
ing into the charter-party at that rate. 

Hd'l, that not having made any objection 
either at Halifax or Sydney, though fully 
acquainted with the rate of freight agreed to be 



paid, and having received the full benefit oi the 
contract, he had tliereby ratified it, and must 
fulfil his obligations thereunder. 

Loomer tt al. v. Starr el al., .3 N. S. D., 4,')(| 

15. Charter-party — Entire voyage -a 

vessel M'as chartered by defendants "for tiiefol. 
lowing voyage, viz. : From Halifax to Montreal, 
there to discliarge the cargo laden on boiinl ami 
to load a return cargo, and thence to proceed to 
St. John's, Newfoundland, or to Halifax, at the 
opticm of the charterers. If ordered to St. 
John's, Xewfoun<llanil, then at said ])oit to dis. 
charge cargo and load a return cargo of dry fish 
in bulk for Halifax, and on final deliv>ry of 
return cargo at Halifax to end tlie voyage,'' the 
charterers to pay on the return of vessel to 
Halifax tlie sum of Is. 4d. per net cwt. for 
sugar to Montreal ; 2s. per barrel for Hour to 
Halifax or St. John's, and from the latter port 
9d. per qtl. for fish to Halifax. After the 
plaintiff, who was master and agent of the 
vessel, delivered the cargo at Montreal, it was 
agreed between tlie plnintitT and defeiidaiits, 
and such agreement was indorsed on the cliartw 
party, that in consideration of the sum of i'i.i 
the plaintiff would proceed from Montreal to 
Harl)or (irace, Xfld., and load his return cargo 
tjiere, or at .St. John's, as the chi'rterer.s sliouU 
direct. The vessel loaded at St. .lijliir.<, awl 
was lost on her voyage from thence to Halifax. 
H'kl, that it was an entire voyage, and that 
the plaintiff was not entitleil to recover. 
Wilkins, J., dUxentimj. 

Leratta v. Salter tt al., 2 Thom., 3i'. 

16. Common speculation — Broken off- 
Party authorized at first to enter into negotia- 
tions cannot, after broken ofi', renew on his 
own account without notice to his associates- 
Wliere a party lias been autliorized to enter into 
a speculation on tlie joint account of liiiiiself 
and others, and the negotiation has been broken 
off, he cannot afterwards renew it on his o«ii 
account, and purchase for liis own heiielit, with- 
out first notifying the other parties, so as to 
give them an opportunity of uniting with him 
in the purcha.se it so di.sposed. 

Allan ef al. v. MrlLffn/, 1 Old., l-'O. 

II, Conflicting Evidence- The plaintiffs 

and defendants lieiiig interested in certain gold 
mining areas, and Jiaving certain claims against 
the government arising in connection tlierewith, 
it was agreed between all the parties coiiceineJ, 
to refer the matter to arbitration. The plaintiffs 
alleged that in prosecuting their claims before 
the arbitrators, they rendered such services to 
the defendants as enabled tliem to successfully 



333 



CONTRACT. 



334 



Mtablish tlicir right to a share in the award, and 
that, for tiieso services, as well as for a portion 
of the legal expenses ineurroil, the defendants 



promisei 



1 to reimbnrse them. This two of the 



ilefonilants denied, and the evidence on this point 
was very conflicting. There was no evidence 
that at any one time, all the defendants being 
present together, or tliat each of them separately, 
made any such promise to the plaintilFs. The 
defendants were not in any way responsible as 
co-piu'tnci's. 

HM that the verdict for pluintififa must be set 
aside. 

Dkhi it al. V. De Wolj'v. et a/., 1 X. S. ])., '224. 

18. Consideration —Warranty— Authority 

of agent -Wliere tiie plaintitl', having merely 
aiiautliority as agent of tiie patentees of a cer- 
tain invention to make proposals or offers to 
suoii persons as he should think fit, to bring the 
inventinii into use, receiving from tlie patentees 
oiiefoiirtli of the royalties or profits for his ser- 
vices, entered into an aj.reement with tlefendant 
wiiereiii it was recited that the patentees had 
disposed of one-fourth interest in tlie patents to 
piaintitf, and whereby plaintiff disposed of one- 
lialf his interest in the patents to tlie defendant 
in consideration of the sum (jf .SIMX), $4()0 of 
wliiili was afterwards paid, 

//(/(/, tliat the verilict in favo'- of the plaintiff 
in an action brought to recover the balance of 
the consideration money couhl not be sustained 
without jiroof that the defendant a&sented to tlie 
agreement witli full knowledge of the only in 
terest to wii.ch piaintitf could lay claim in rela- 
tion to the patents. 

QiKifn, wlicther the piaintitf could succeed 
even after bringing home sucli knowledge to 
defeuilaiit. 

Wilkins, J., (li.isciifhiii, although his opinion 
ilid not nec^essarily conflict with tlie above pro- 
positi(ni, as he considered tliat "the parties, 
wiien tliej' contracted, had the same knowledge 
of all the facts." 

HarriiKjIon v. lii'i/nohh; 1 R. & C, l.'U. 

19. Consideration on agreement for sale 

«f lands— Failure of— iividence — In order to 
recover back money paid by plaintifi' under an 
agreement for sale of lands to him on the ground 
of failure of consideration, plaintiff must give 
evidence of the terms of the agreement to en- 
litle him to recover. 

McDonald v. McDonald, James, 41. 

20. Construction of— Improper rejection 

of evidence—,]. C. (J., being indebted to the 
piaintitf, tdlegraphed defendant as follows: "I 



owe Daniel H. Pitts ?1 ,400. • ♦ • Will give 
you deed of property and confession of ju<lgment 
if you accept amount," &c. Defendant on the 
same day replied : " Forward me the security 
and will accept draft at the time you mention." 
The orders were presented for acceptance, which 
was refused on account of the non-arrival of the 
securities, but defendant said that when the 
securities arrived he would accept. The title 
to tlie property referred to was in A., to whom 
a balance of .iJ.SOO was due on account of the 
purchase money. Plaintiff, in order to complete 
the title, gave his note to A. for the amount so 
due and procured a deed to be made in the 
name of defendant. The deed was tendered to 
defendant, but he refused to accept, partly on 
account of the delay and partly because the 
title of the property was not in J. C. C. at the , 
time of tlie request and promise to accept. 

There was some evidence of a distinct contract 
between plaintiff and defendant that if the for- 
mer would procure the deed of the property the 
latter would accept, but tlie learned Judge who 
tried the cause instructed the jury that the only 
contract was tha': expressed in the telegram of 
J. C. C, and defendant's reply thereto, and that 
this was a contract upon which the plaintiff 
could not maintain an action, and withdrew 
from the consideration of the jury the evidence 
as to a contract between plaintiff and defendant 
and the (piestion as to the reasonableness of the 
delay. The jury found for defendant, and a 
rule for a new trial was taken under tlie .Statute. 

//(•A/, ;)fc8ir W. Young, C.J.,' Johnstone, K.J., 
and DesBarres, J. (Dodd and Wilkins, .IJ., dis- 
•icn'inij), that the rule for a new trial must be 
nia<le absolute. 

Pi/I.-: v. Tay/or, 2 X. S. D., ;}78. 



21. Construction of figreement to release 

a mortgage — Plaintiff brought action to redeem 
a mortgage, setting out an agreement in writing 
by the defendant to release it on being paid one 
half of tlie principal of the mortgage and 
interest in twelve months, plaintiff agreeing to 
give up certain claims against the defendant. 
The master construed the agreement, according 
to plaintiff's contention, as re(juiriiig payment 
of one-half the lialance due at the time of the 
agreement, while defendant contended that it 
meant one-half the original principal. Evidence 
was given in support of both constructions. 

Ilihl, that, independently of any evidence, 
the master's view of the agreement was incor- 
rect, and that there was no necessity of referring 
the case back to the master, as the Court had 
the materials for ascertaining the amount due. 
Spinney v. Pwj-i/ey, K. E. D., 398. 



335 



CONTRACT. 



836 



22. Constraction of agreement - Rednclne 

verdict or new trial — Tlie (kfontlanta entfreil 
into tlic following iigrecini'nt with tlio plaintitrs : ' 
"And the said L. Hiirkner and Francis Kllers- | 
haiisen do hereby, in considenitioii of the 
premises, promise and agree, on or before the 
first day of .Inly, A. 1)., 18()8, to form a com- 
pany to work a coal mine within said area and 
elsewlicre, and for otlicr pnrposes, and to deliver 
to said f. Hniiter Dinar and Tliomas R. Fraser, 
at that date, paid np shares in such company to 
the amount of .^SOOO ; and, further, that in the 
event of said L. Burkner and Francis Kllers- 
Iiausen not forming such company, and liaving 
the same in practical operation according to 
law, and delivering such paid up shares as afore- 
said, at the datt? aforesaid, tliat then tlie said 
L. Hurkner and Francis Kllersliausen, tlieir ludrs 
or assigns, shall at that date pay to tlie said I. 
Hunter Duvar and Tliomas R. Fraser tlie sum 
of .*SfKM»in cash." 

Tlie defendants obtained an Act of incorjiora- 
tion in the .State of Maine, ami also another in 
the Province of Xova Scotia, but tliey did not 
comply witli tlie terms of tlie latter Act, which 
conscijuently never took effect. Tlicy formed 
a company, issued stock, and went into opera- 
tion under the Maine Act. Plaintiffs declined 
to accept tlie stock issued under tlie Maine Act, 
and brought this action for tlie purcliase money 
as payable in cash. Venlict for plaintiff's for 
full amount. 

Hi Id, tliat defendants had fulfilled the agree- 
ment as far as " forming a company and having 
the anie in practical operation " was concerned, 
but tliat the sliares were not such as were con- 
templated by the agreement. New trial ordered 
unless plaintiffs consented to reduce tiieir ver- 
dict to such an amount as the Court considered 
chares under a Provincial Act, with the usual 
statutory provisions, would be worth. 
DxLvar et al. v. liurkmr et nl., 2 X. S. D., 460. 



23. Contract made with agent — Agent's 

employees — Power to do certain acts — Ordin- 
ary course of business— Liability of principal 
in case of loss — A number of cases of wine were 
delivered to S, & Co. , defendants' agents, at the 
port of Antwerp, to be forwarded to plaintiff at 
Halifax, N. S. The bill of lading was signed by 
S. & Co. , pp. G. K. , and described the goods as 
shipped in good order and condition. The 
goods were shipped from Antwerp by a steam- 
ship running to Liverpool, G. B., and on their 
arrival at that port were reshipped on board 
one of the defendants' steamships for Halifax. 
On their arrival, plaintiff M'as notified of the 
fact by C. & Co., defendants' agents at Halifax, 



nnd was requireil to pay the freight and take 
delivery. C. & Co. also demandeu and received 
from ])laintiff his share of a general average loss 
eonsecjuent to an accident to the ship on the 
voyage. On examination of the goods previous 
to delivery, it was found tliat several ef the 
cases had been tampered with, and a number of 
bottles of wine emptied of their contents. (!, 
K., by whom the signature of S. Sc Co. was 
affixed to the bill of lading at Antwerp had no 
written authority to do so, but was the chief 
clerk and proxy of the firm, and acted in the 
usual course of business. 

//i/fl,/)ir James,.!., that the bill of Imliiig 
having lieen produced by the plaintitf at the 
request of defendants' agents at Halifax, and 
liaving been recognized by them, and tiicy hav- 
ing demanded and received from jilaintitr his 
proportion of the general average loss, tlie 
paper, whetlier jji-operly signed or not, must 
be treated as tlie contract uiiiler wliicli ikfeiid- 
ants received and carried tiie goods; tlwt 
defendants were bound by the admission in the 
bill of lading that the goods were received in 
good order and condition, and the goods having 
been tanijiered with while in their posses.si(m, 
in the absence of eviilence to bring them within 
the exemptions in the bill, defendants were 
liable. 

Per McDonald, J. — Tliat the appointiiieiil of 
.S. & Co. as defendants' agents authorized them 
to perform all things usual in the line of busi- 
ness in which they were employed, and involved 
power to do particular acts by others within the 
scope of their business. That (!. K. as their 
chief clerk was competent to sign the iiaiiiu of 
the firm to bills of lading in the ordinary course 
of business, without any written authority to 
do so. 

That the signature to xhc I'H of lading having 
been proved to have been made in the usual 
course of business, must Ije taken to have been 
authorized by the defendants, especially as the 
evidence showed that it was afterwards adopted 
and acted upon both by S. & Co. and by the 
defendants' agents in Halifax ; that defendants 
were bound to Viring themselves within the 
exemptions contained in the bill of lading, and, 
having failed to do so, were liable. 

Bonne v. The Montreal Ocean S. S. Co., 

7R. &G.,3K; 
7 C. L. T., 175. 

24. Contract not to be performed witblo 

a year— Statute of Frauds— Defendant, yvevi 
ous to the Ist of April, 1876, engagcc! with 
plaintiff by parol, as clerk, at a fixed rate per 
annum, with a share of profits of a separate 



337 



CONTRACT. 



338 



iiranchof thebuHincss. On February itth, 1877, 28. Contractor for thc Construction of a 

(U'feiiiliint ankod for and obtained a fortnight's Branch Government Railway, held to be an 
It'iive of iilweiice, wlien an accounting was gone "employee" within Dom. Acts, 1881, c. 25, a. 
intn, ami plaintiff gave defendant his promissory ! 109 — The Dominion fiovernment Railways Act 
note, (which lie afterwards paid), for the balance of 1881, c. 2.">, s. 100, prctvides that " no action 
of his salary up to tiie end of the year, April Ist, ' shall be brought against any officer, employee or 
1S77. Defendant did not return, and phiintitT servant of the department (of Kailways and 
lirmight action for non-fulfilment of his contract Canals) for anything done by virtue of his ortice, 
of service and for money had and received. j service or employment, except within three 

HM, that although the plaintitl could not montlis after the act committed, and upon one 
recover on the co»mt for tlie non-fulfilment of month's previous notice tn writing." 
(iefeiiilant's contract, as that was not to be per- Defendants entered into a contract with the 
formed witliin a year, he could recover on thc ' Crown, represented by the Minister of Railways 
muiiev count, us the defendant had received pay- and Canals, for the construction of a branch of 
iiieiit fur services to be performed witliin a few j the Intercolonial Railway at Dartmouth, N. S,, 
weeks, (from tiie time of giving the note), and \ and in the prosecution of tlieir work under the 



wliicli services defendant diil not render. 

Wkr V. LflM,,, ;j R. & C, 209. 

23. Contract to advertise for a year— 

Pliiintift' declared on a contract to publish an 
aihertist'iuent for defendant for a year to occ\ipy 
11 stipulated s])ace for .'iii'iOO per annum, defendant 
to have thc j)rivilege of changing thc advertise- 
ment. I'icvious to the expiration of the year 
ilefenilant ordered the advertisement to be dis- 
continued. No furtlier advertisement was pub- 
lished for defendant, and the space was filled 
witii other matter. 

IJild, that plaintitT was entitled to recover 
for the wliole year, including the period during 
which no advertisement was published. 

Annand v. lireininii, .S R. iV G., >32. 



26. Contract to carry cargo after close 

of season— Breach of, not excused by master 
deeming it imprudent to set sail— When the 
owner of a vessel contracts to carry a cargo after 
the customary season for leaving the port, he is 
not excused because the master deems it impru- 
dent to set sail. 

Jionkn et al. v. Churchill, 2 Thorn., 187. 

27. Contract to deliver machine In work« 

ing condition— Plaintiff contracted to deliver to 
defendant a mowing machine, to be delivered in 
a satisfactory working condition, and brought 
the maching to defendant's field where, in the 
course of a trial, which he proceeded to make, 
a wheel became broken, which plaintiff promised 
to replace. Five witnesses swore that the wheel 
was a material part of the machine, and there 
was some evidence that it was not. 

Held, that plaintiff could not recover the 
price, as the machine was never delivered in a 
satisfactory working condition. 

Lawlor v. Mumford, 4 R. & G., 35. 



contract entered upon the phiintitf 's hind, 

An action having been brought against defen- 
dants for breaking and entering, 

Jhld, that defendants wer'j "employees" 
within the meaning of the Act, and entitled to 
the protection given therein. 
McDonald, C. J., diiixiniiiiij. 

Kmrmnj v. Oah ■•< if al, 20 N. S. R., 

(8 R. & (J.), ;io. 

29. Corporation — Seal — Resolution of 

governing body— "It is a general principle 
that a corporation aggregate cannot be bound by 
anything in tlic nature of an agreement relating 
to real property, except uniler seal." 

" There arc cases wiiere a corporation may be 
bound by a icsolution of the governing body, 
even in case of a sale or purchase of Uuid, as 
where the corporation has agreed by resolution 
to purchase it and has entered into possession," 
etc. 

Jinm// V. Sinclair, 1 R. & C, .392. 

30. Corporation— Contracts with— Jfeces- 

sity of sealing — Absence of, must be pleaded 
— Defendants were created a body corporate for 
the purpose of being invested with the title of 
the County Court House, Halifax, with power 
to enlarge and improve the building for the pub- 
lic use and to provide all necessary accommoda- 
tion for the Courts, the Municipal Council, etc., 
and to make such contracts as were necessary for 
that purpose from time to time. 

Defendants employed plaintiffs verlmlly, to 
make certain alterations and improvements in 
the building, coming within the class of work 
that they were authorized by the Act of Incor- 
poration to perform. 

HeM, following Clarke v. Cuck/ield Union, I 
App. Cases, that as the work done was within 
the ordinary range of duties of the defendants a> 
contract under seal was not required. 

Also, that if the absence of a contract under 



339 



CONTRACT. 



340 



seal would havj boen a Talid defence it must | cured legislation which rendered it impossilile 



have been pleaded in order to enable defendants 
to avail themselves of it. 

McIntoMh et al. v. Coinmi^iioncrx of Court 
House, Halifax, 20 N. S. R., (8 R. & G.) 430 ; 

9C. L. T., 118. 



for them to hand over bonds of the character 
stipulated. Defendants relied on one of the 
statutes so procured, namely, the Act of the 
Legislature of Nova Scotia, cap. 66 of 1879. 

Held, that the Act aflForded no defence to the 
plaintiffs action for damages for the nou-fulfil. 
ment of tiie agreement. 

After pleading to the declaration, defendants 

added pleas as to one half the amount of tlie 

mortgage bonds claimed, setting out, in different 

assigned the same to the 



31. Damages for breach of— Pleading— 

Impossibility— Plaintiff set out in his declara- 
tion an agreement between one Harry Abbott 

and the Government of Xova Scotia for the con- f„rn,8^ that plaintiflF ha.l _ 

struction and equipment of the so-called Eastern Government of Xova Scotiarand given Hon 7 
Extension Rai.' way from New Glasgow to the c. Hill, then Provincial Secretary, authority to 
Strait of Canso.a transfer of Abbott's interest in ^ .-eeeive them, and that the Canada Improvemont 
said contract to the Halifax and Cape Breton Company ha,l accepted tiie order and becme 
Railway and Coal Company, a contract between ,,ound to deliver said bon.ls to the Covernnunt 
the company last mentioned and the Canada „£ y^^a Scotia, and that the suit was not brought 
Improvement Company, by which the latter !„„ ,,ehalf of the said Government, or with tieir 
were to construct and equip the road, an.l a | eo„sent. Plaintiff repaed, denying the fact of 

that there was no con- 

e assignment was inaile 

subject to a condition that there should lie no 

Scntia 

plaintiff, which 

condition was violated. The Court, having 

. , , power under the rule to determine the fact, found 

tions, including a suit by the plaintiff to recc er | that the plaintiffs version of the agreement to 
damages or alleged breach of the agreement i a.^ign was sustained by the evidence, an.l gave 
made by h.n, for the construction of the road, : j„ag,„ent for the plaintiff, adding,- under ti>e 
and a final compromise an.l settlement embodied ■■ power given in the rule to increase the verdict, 
m the agreement upon which the present action | -interest from the date of the agreement between 
was brought. By this agreement the Canada . defen.lants and the Government, which resulted 
Improvement Company contracte.l to deliver to 
plaintiff, so soon as the same could legally be 



contract betweensaid Canada Improvement Com- ' the assignment, allegincr 
pany and the plaintiff, un.ler which the plaintiff sideration, an.l that the 

was to construct and equip the road, receiving, s^i^je^t to a condition tl „ 

as the work progressed, payment in casli and legislation by the Legislature of Nova Sc: 
bon.lsof the Halifax an.l Cape Breton Railway adverse to the interests of the plaintiff, wl 



and Coal Company, as in tlie agreement set forth. 
The declaration then set out a series of transac- 



in the legislation under which it became impos- 
sible to perform the covenant to deliver the 
issue.l (to which end the two companies,— both bon.ls. 

being parties to tlie agreement an.l .lefendants a,:,,jor,, v. The Halifax and Cape Bnton 
in the action, -ovenanted to use every dili- Bailwn,/ and Coal Co. ef al., 4 R. & G., 4.36. 



gence), eighty thousand dollars in good, suflicient 
and available first mortgage bonds .)f said Halifax 
and Cape Breton Railway and Coal Company, 
which should be a first lien on the Pictou Branch, 
— to be handed over by the Dominion (Govern- 
ment in aid of the construction, — on the Eastern 
Extension, and also on the said Halifax and 
Cape Breton Railway and Coal Company, ani' 
the property mentioned in the company's Act of 
incorporation. The Halifax an.l Cape Breton 
Railway and Coal Company also covenanted for 
the han.ling over .)f said bonds by the Canada 
Improvement Company at the time and manner 
and of the ciiaracter and description stipulate.l. 
The agreement contained covenants and on.li- 
tions on the part of plaintiff as to tiie perform- 
ance of which there was no dispute. The 
breaches alleged were that the .lefendants failed 
to deliver the bonds as stipulated, that tliey di.l 
not use .lue diligence as stipulated, and that they 



Affirmed on appeal to the Supreme Court of 
Canada, 16th Feliruary, 1885, Cas. Digest, 434. 

Leave to appeal to the Judicial Committee of 
the Privy Council, refused April 3id, 1886. 

32. Evidence of— Secondary evldence- 

Plaintiflf was employed by tiie manager of the 
.lefen.lant company in August, 1874, as an engi- 
neer, and on the 21st September, 1874, the 
manager wrote him thai his services would not 
be required after the 26th September, to which 
.late his account was made up an.l paid. On 
October 6th, 1874, the secretary, in London, 
wr.)te to the manager in London.lerry, iitstiuc- 
ting him to cancel the notice to leave above- 
mentioned an.l stating that it had been agreed 
that plaintiff should receive pay from the date 
of his predecessor's departure, at five dollars a 
day, " the term of his permanent service to be 



had entered into agreements and sought and pro- ! fixed by the board when the salaries of other 



841 



CONTRACT. 



342 



officers were discussed." This letter was shown 
to the plaintiff by a clerk of the company, who 
gave plaintiff a copy, which was compared with 
the original in presence of the manager. 

//(/fZ, that the secondary evidence of this 
letter, on non-production of the original, was 
properly admitted by the Judge, and that witli 
a letter of similar tenor, bearing the same date 
and addressed to the persons conducting the 
company establishment at Londonderry, it war- 
ranted tl'.e verdict found for the x)laintiff on the 
basis of a permanent engagement. 

Gray v. The Steel Comjxiny of Canada, 

1 R. &G.,434. 



33. Fraud — Parol evidence- Principal 

and agent — Defendants contracted witii plain- 
tifT for the purchase of a steamboat, the nego- 
tiations for the purchase being carried on 
partly by letters between the defeiulants on 
the one hand and the plaintiff and his agent 
on the other, and partly by verbal communi- 
cation between the defendants and the plain- 
tiff's agent. Tiie boat was delivered at Sum- 
merside, Prince Edward Island, to the plain- 
tiff's agent (who was authorized by the 
defendants to take delivery of her there for 
thcMi), and l)y him taken to Pictou, the domicile 
of the defendants. Tlie defeiulants examined 
her inunediately on her arrival at Pictou, and 
finding tliat she did not answer the representa- 
tions made of her by the plaintiff''s agent, 
forthwith notified both the plaintiff and his 
agent tiiat they would not take delivery of her. 
An action was brought for the price, to which 
the defendants pleaded never indeljted, never 
delivered, and misrepresentation and fraud on 
the part of the plaintiff and his agent, etc_ 
The learned Judge who tried the cause permitted 
evidence to be given of the verbal representa- 
tions of the character of the boat made ))y the 
plaintiff' 's agent to the defendants, and the jury 
foir.id a verdict for the defendants on the pleas 
of fraud and misrepresentation, etc. (iross 
misrepresentation by tiie plaintiff's agent of the 
character of the boat were distinctly proved, 
but there was no proof that the plaintiff himself 
made any false representations, or was aware at 
the time of those made by !)• .igent. 

Held, first, by all the Judges, tiiat although 
the contract was partly in writing, parol evi- 
dence was projierly admitted to prove the fraud. 

Secondly, by all the Judges, that tlie jury were 
justified in finding fraud, as tiie principal is 
bound ijy the declarations of his agent, antl the 
fraud of the agent was therefore, in law, the 
fraud of the principal. 

Thirdly, by all the Judges, that the fraud 



was such as to justify the defendants in rescind- 
ing the contract. 

Fourthly, by Young, C. J., Johnstone, E. J., 
DoddandDesBarres, JJ. (Wilkins, J.,rf(.y.se?i^j«(/), 
that the notification given by the defendants to 
the plaintift'and his agent was a sufficient rescind- 
ing of the contract, and that it was not necessary 
in order to rescind it tliat the defendants should 
return the ooat to 8uniinerside, or oft'er to return 
her thither. 

Poiie V. The Pictou Steamboat Company, 

2 Old., 18. 

31. Fraudulent will not be aided by the 

Court — In an action for money had and received 
the defendant pleaded, by way of set-off, a pro- 
missory note given by plaintiff to defendant. 
Fr.un the evidence it was apparent that the 
transactions between the parties, out of which 
the present cause of action arose, were intended 
to defraud the creditors of plaintiff, and that 
plaintiff and defendant were in pari delicto. 

Held, that such being the case, the plaintiff 
shouhl not be aided by the Court in enforcing 
his contract, and the verdict for him must be 

set aside. 

Blake v. Stewart, 2 N. .S. D., 70. 

35. Gaming contract — Involving infrac- 
tion of law— Notice to atakeholder not to pay 

! — Wliere a contract is made to run a race, in- 
volving an infraction of law, and one of the 

i depositors, being a party to the wager, notifies 
the stakeholder while the money deposited as 
a stake is in his hands and ))efore the race is 

j run, not to pay it over to tlie other party to the 
wager, the stakeholder in paying over the money 

■ does so in his own wrong, and is responsible for 
it to the party so notifying, or his personal repre- 

I sentaiives, w\io may bring an action to recover 

lit. 

I Ryerxon v. Derby, 1 R. & C, 13. 

36. Guarantee— Bond given to Munici* 

pality as security for officer — No seals affixed 
by sureties— Affixed by principal before deliv- 
ery — Sureties estopped from setting up want 
of seals after acceptance of bond — Defendants 
signed their names as sureties to an unexecuted 
bond for the faithful discharge by M. of his 
duties as clerk and treasurer of the plaintiff 
Manicipality, but affixed no .seals. M. subse- 
([uently attached seals and his own signature to 
the bond and forwardeil it by mail to the War- 
den of the Municipality. 

Held, per Weatiierbe, J., and McDonald, J., 
that the by-law under whicii the bond was 
taken was intra "iren, and tiiat the defendants 
were estopped from denying their seals after 



343 



CONTRACT. 



344 



the plainti.T lincl accepted the instrument from 
M. as security. 

Per McDonahl, C. J., and Ritchie, J., that 
defendants were liable as guarantors on the 
instrument, having signed it with the knowledge 
that it was to be used as security. 
MtmicipaJity of Shellmriie v. Marihall tt al., 

7 R. & O., 171 ; 
7C. L. T.,248. 

On appeal to the Sii(>reme Court of Canada, 
Held, Henry, J,, henitanle, that as the re- 
spondents had proved a prima farie case of a 
bond properly executed on its face, and neither 
the subscribing witness nor the principal obligor 
was called at the trial to corroborate the evi- 
dence of the appellant who had not negatived 
the due execution of the bond, it being quite 
consistent with his evidence that it was duly 
executed, tlie onus of proving want of execu- 
tion was nf)t thrown off the appellant, and the 
respondents were entitled to recover. 

Marshall v. Municipality of Shelhurnc, 

14 S. C. R.,737; 
7C. L. T., I. TO. 

37. Guarantee - Consideration not set out 

in declaration — Demurrer — Action upon a 
special contract in the nature of a guai'antee 
alleging " that defendant gave a special promise 
and made a special agreement to pay the plaintiff 
the amount due from one 1). McI., the father of 
defendant."' Defendant demurred because among 
other grounds the consideration for making or 
giving tlie special promise or agreement was not 
set forth in either countof plaintiff's declaration. " 
//<:ld, that there should be judgment for de- 
fendant upon the demurrer. 

Campbell v. Mclmar, .3 N. S. D., 287. 

38. Guarantee -Construction of— Defend- 
ant, in writing, requested plaintiff's firm to 
supply to F. R. " the outfit for his boat," then 
being built by F. R. and D. R. jointly, and 
promised to see that they got their money. 
The goods were first charged to F. R., but 
afterwards to F. R. and D. R. jointly, to whom 
other goods were sold, being supplies for a fish- 
ing voyage. Several months after the date of 
the guarantee a balance was struck at $303. 10, 
for which a joint and several note was given by 
F. R. and D, R., who also executed a bill of 
sale of the boat to plaintiff's firm, the consider- 
ation mentioned being $400. The plaintiff 
stated that the note was only taken as an ack- 
nowledgment of the debt and that both the note 
and the bill of sale were held only as security. 

I/eld, James, J., dinKenfinf), that the Judge 
was warranted, as the bill of sale contained no 



release, in finding for the plaintiff for the value 

of the goods supplied as outfit for the boat only. 

Scott v. Crockett, 2 R. & 0., 410; 

2C. L. T.,107. 

39. Guarantee— Construction of— Pleading 

— Plaintiff was applied to by D. J. M., defend- 
ant's son, for goods on credit to a large amount. 
The goods were selected, but plaintiff declined to 
deliver them unless he was furnished by defuiul- 
ant with a guarantee to cover any transactions 
which plaintiff might have with the son. The 
required guarantee was given on October l.'kh, 
18B5, between which time and December .Slat, 
1806, D. J. M. was debited with goods amounting, 
with interest, to the sum of §934.04, and crudit- 

' ed with payments during the same time amount- 
ing to .*i72f».50. The balance of .$207. ")4, tiius 
left, was disposeil of by being transf<irrcd to tlie 
debit side of an account with the finu of 

; McDonald & Cameron, of whi(^h D. J. M. then 
became a member, and upon the credit side of 
the latter account several payments were ere- 

, dited t.T a larger amount than the balance so 
transferred, at a time when nothing was due 
from the firm. 

To the plaintifTs declaration on the guarantee 
defendant pleaded, among other things, tiiat 
D. J. M. fulfilled to plaintiff the contract for 
which defendant became his surety. 

ffeld, that the defendant was entitled to 

I judgment. 

! Held, aluo, that the defence set up in the pica 
was sufficiently pleaded. 

Goods having been selected by D. J. M., and 
their delivery withheld until the guarantee was 
given, and there being thus material upon wiiich 

I the guarantee might operate in the plain literal 

I meaning of the language contained in it, 

Semhle, that the guarantee applied to the 

I goods so selected, and was not a continuing 

' cue. 

McDonald v. McDonald, 2 N. S. D., 136. 

40. Guarantee— Fraud- C. being largely 
indebted to plaintiff an agreei.jejt was entered 
into in December, 1869, that on or before May 
Ist, 1870, all accounts should be settled and 
adjusted between them, and that then C. should 
pay to plaintiff the full amount found due to 
him on such adjustment in three and six months 
from the said May 1st. It was further stipu- 
lated in the agreement that in event of C. tailing 
to adjust and settle the accounts on or before 
the day mentioned, then plaintiff might cause 

I an adjustment to be made by one F. by May 

15th, or as soon thereafter as the same could be 

I completed, which adjustment should be as bind- 



345 



CONTRACT. 



346 



ing upon the parties as if made by them in per- 
son, iind the amount found due thereon to be 
paid as before s' ipuliite<l. The perforniiince of 
this agreement on tlie part of C. was guaranteed 
by the defendants without any limit being 
stated as to their liability thereunder. No 
adjustment of tlie aceounts lieing made in 
Pecenilier, 18Gi(, C. and one of tlie defendants 
souglit in April, 1S70, to efieet a settlement 
with plaintiff, but eould not succeed, owing to 
plaintiff's conduct, and on May 10th the whole 
matter was handed over by plaintiff to F., who. 
however, was prevented from giving his inunedi- 
ate iitteiition to it, and did not maku his award 
until December '22nd, IS70, when he found that 
tiicie was due to plaintiff the sum of .$10,924 CO. 
riaintilf having sued defendants on their guar- 
antee, they pleaded fraud and misrepresentation, 
anil that plaintiff I'.ad by his own conduct 
released them from their liability. In support 
of the first defence they introduced .strong 
evidence to prove that at the time of the signing 
of the guarantee phiintiff had largely under- 
estimated the amount of C's indebtedness to 
him, in order to induce them to enter into the 
guarantee. This plaintiff denied. 

ILhl, that whether or not plaintiff had de- 
ceived tliem as to the amount of C's. indel)ted- 
ncsH to him, they were relieved from all liability 
under tlie guarantee because he had by his own 
conduct so delayed tiieadjustinont between him- 
self and C as to materially alter their position, 
the agreement being that, on the amount being 
ascertained, C. should pay plaintiff in three and 
six months fiom May 1st, whereas F's. award 
was not made until more than tlie six months 
had fully expired, and this delay dis;liarged the 
defendants. 

Tlie declaration was so framed as to allege 
that defendants as sureties were liable to pay 
to phiiiititl' in one sum, on the '22nd December, 
what liy the agreement declared upon and whose 
pciforinance they had guaranteed C. their prin- 
cipal was bound to jiay in two sums on 1st of 
August and 1st of Xovember, respectively. It 
also contained a count on an account stated. 
Defendants demurred to tiio whole declaration. 

Hi Id, that there should be judgment for defen- 
dants on the first count, and for the plaintiff on 
the second. 

Adams v. McFarlane t.t al., 3N. 8. D., 379. 



41. Guarantee given to firm— Action by 

individuals— Failure to prove that plaintiffs 
composed firm— Plaintiffs' declaration contained 
a count upon a guarantee to a firm given by de- 
fendant, and on the faith of which goods were 
alleged to have been supplied to the person 



tiierein named. Defendant demurred to the 
count, and it was adjudged bad because it did 
not thereby appear that the ]daiiitiffs were the 
persons who composed the firm when the goods 
were supplied under tiie guarantee. 

Xifol e( al. V. HKurij, 2 X. .S. D., 40. 

42. Guarantee and indemnity — Plaintiff 

was lessee to defendant K. W., who, being in 
embarrassed circumstances, on the •29th August, 
187.'}, assigned the rents to J. W. and A. R. W., 
to wlioni he was indebted in the sum of .^SSOO, as 
security for the debt. Under the assignment 
plaintiff made three payments of rent to J. \V., 
after wliicli E. \V. asserted a claim to the rents, 
and plaintiff" paid him iJlOO, one month's rent, 
on the 1st .Seplemljer, 1S74, taking from W. \V. 
and the other defendant, X. Mel)., a guarantee 
of indemnity against any claim from J. \V. At 
this time plaintiff had a private account with 
J. \V., who was in his debt, and on the 3rd of 
the same month he permitted J. W. to deduct 
from tlie amount due him (plaintiff') i^KK), taking 
a receipt from him for a month's rent up to the 
31st of the previous month. Plaintiff' then sued 
E. W. and X. McU. on their guarantee of in- 
demnity. On the trial plaintiff' admitted that 
he knew the matter was in dispute when he 
allowed J. \V. to deduct the §100, and that he 
knew J. W. had said he had no claim on E. W. 
HiUl, that plaintiff should not have allowed 
I J. \V. to deduct from plaintitt''s account a debt 
I due, if at all, to J. \V. and A. R. W. ; that the 
I liability to J. W. and A. R. W. was not so sat- 
; isfactorily shown as to make defendants liable, 
and that the nonsuit directed by the Judge who 
tried the cause must be sustained. 

Eaton V. Wr'mhl it al., 2 R. & C, 508. 

43. Guarantee- Varying terms of agree- 
ment guaranteed — H. K. R., having been em- 
ployed by defendant to liuild a vessel for him, 

I employed plaintiff as a tiub-contractor to plank 
j her. Defendant executed and delivered to 
plaiutiir a guarantee, based upon an agreement 
between the latter and H. K. R., for the per- 
formance of the sub-contract, which had been 
drawn up but not signeil. A clause varying 
its terms having been added to the agreement 
subsequent to the giving of the guarantee, 

Hdd, that the effect of the variation was to 

relieve defendant of liability on the guarantee. 

Thtlmkau v. Uytrson, 3 N. .S. D., 221. 

44. Of lilring — Evidence — Phxintiff had 

been in the employ of the defendant Company 
under Gould, their Chief Engineer, at tlie rate of 
#5 a day, for the time he was actually engaged. 



347 



CONTRACT. 



.S48 



On the tit h Oct., 1874, Treniayiic, the London 
Secretary of tlie Company, wrote to Harrison, 
then num.tger in Xova Scotia, in tiiesc teinis : 
" It has heen agreed tliat (iray shall receive pay 
from the Company as from the day of Mr. 
Gould's departure from tiie works, at !?.") per 
day, the terms of his permanent service to be 
fixed by tlie board, when the salaries of other 
oflicers are discussed." Tiiis letter was shown 
to plaintitl' by a subordinate servant of the 
Company, but without the consent of Harrison, 
who swore that tlie whole matter had been left 
in his hands to deal with by the Board of 
Management in London. Harrisoi. repudiated 
the terms contained in the letter of Trenuiyne, 
and between the 6th Octolier, 1874, and the 4th 
January, 187.">, by himself, and through Dudgeon, 
the treasurer, wrote to plaintiff, informing liim 
tliat he was to be paid only for the time that he 
was actuidly employed. The jury found for 
plaintitr, allowing 8") per day for every day from 
August 3rd, 1874, to April .SOth, 187"). 

JI(/(l, l)y Young, C. J., (with whom (Smith, 
J., concurred), that the letter of Tremayne not 
having been intended to be seen by plaintiff, did 
not constitute a cimtract witii him, or if it did 
that it liad been formally repudiated afterwards, 
and that tlie verdict must be set aside ; by Wil- 
kins, .1. (with whom McDonald, J., concurred), 
that the plaintitl' iiaving seen the letter of 
Tremayne without any fraud on his part, and 
having adopted and acted iipon it, was entitled 
to the amount awarded by the jury. 

(Jnatn, whether, the Court being equally 
divided, there could be any judgment. 

Gra;/ v. The i^tttl Company/ of Canada, 

3 R. & C, 24. 



45. Implied assumpsit— Patient at elec- < 

mosynary institution — Plaintiff, who at the 
time was visiting surgeon of the City Hospital, , 
j.erformed a surgical operation upon the de. 
ceased, of whose estate defendant was adminis- 
tratrix. Dr. McFatridge had been attending 
deceased, in his illness, with Dr. Parker as con- 
sulting physician. The latter advised the de. 
ceased to have the operation performed in the 
hospital, telling him that plaintiff, as house sur- 
geon for the time, would perform the operation, 
and he (Parker) would assist. Deceased assented 
to the operation being performed by the plain, 
tiff, and it was performed successfully. 

Held, that, although the hospital was prima- 
rarily an eleemosynary institution, yet, as there 
was no by-law prohibiting the house surgeon 
from charging for services rendered to patients 
able to pay, and who resorted to the institution 



for the sake of better attendance, etc., plaintiff 
could recover on an implied assumpsit. 

Farnll v. McLuroi, 3 R. & C., 75. 

46. Impossibility of performing contract 

— Where a party entered into a contract to 
build a coifer-dam, and there is no sustaining 
substratum, an action will not lie for the work 
and labor performed in attempting to complete 
the contract — Where tiie plans furnished to the 
party contracting represent the existence of a 
suflicient substratum, which does not in fact 
exist, and his labour is thus rendered uscki'Si, 
he can only recover damages for the work iloiie 
before that fact was discovered. 

Distinction between a warranty and a repi'e- 
sentation, and between a representation induuiiig 
a contract and a representation forming part of a, 
contract, discussed. 

mn V. Fraxir, '2 Thom.. 294. 

47. Lease — Lease maile in foreign country 
not subject to provisions of 5th R. S., c. O'ij s. 3. 

S^t BILLS OF SALE, 2. 

SiiKjer Sewiiiii Machine v. McLeod, 

•20N. S. R., (8R. &(J.), 341; 
9C. L. T.,()0. 

48. Memorandum — Construction of- 

Specilic performance— Demurrer— Practice— 

Defendi'"t drew up and placed in the liands of 
Allan .. jal estate agent, a memorandum in the 
following form : "I will sell ten acres of land, 
including the water lots, as also two and three 
(juarter acres of land belonging to Judge John- 
stone, adjoining, for the sum of four hundred 
and thirty dollars per acre, ecpial to S5,48"_'.50, 
or £1370 12s. 6d., and on which sum I will 
allow you a commission of two per cent." The 
memorandum then specified the terms of the 
sale. Allan entered into a written agreement 
with plaintiff for the sale of the land on the 
terms mentioned. The agreement not being 
carried out, plaintiff brought a suit for speoilio 
performance, setting out the two agreements. 

Held, (1), That the memorandum handed to 
Allan was a power to sell on the prescribed 
terms without restriction as to purchaser, if the 
terms could be obtained. 

(2). That plaintiff's rigiit to a specific per- 
formance rested entirely on the defendants 
memorandum ; that defendant was no party to 
the agreement entered into by Allan, and tliat 
when the latter brought into the agreement 
anything that went beyond the memorandum he 
exceeded his authority. 

(3). That the agreement could not be im 
ported into the memorandum, and the latter 



349 



CONTRACT. 



3o(> 



being of a vague and uncortain character, and 
nnt siitlicicntly describing the hinds, »pecitic 
perfiiiiiiiiiKC I'liuhl ni)t lie t'nf<»rct'd. 

;!i(l H, S., c. 134, sees. 01 to 70, apply equally 
to ik'iniirix'1's in equity as at common law. 

Honi-ihy V. Johiixloiie., 3 N. S. D., 1. 

49. Memorandum — Consideration — Pro* 

raise to pay the debt of another — Plaintiff had 
a ilaiin against defendant ami also a chiini against 
ilffi'iitlant's brother. Defendant having agreed 
til assume both debts signed a memoiandum as 
fdUiiws:— " 1881, Oct. 21, to bal. per settlement 



sailetl two days a'.ter the mailing of the letter, 
and was lost on the imssagc. The master, in 
his testiniony, said: "I told McKenzie (plain- 
tiff's manager) I wanted something to show the 
coal was insured, and he gave me this paper 
(the bill of parcels). I asked whce it was 
insured. He said that was Mr. Campbell's 
business. I told Mr. Campbell about my desire 
for insurance. He said he would give no one a 
cargo of coal unless he insured it himself." 
Witness also said he would not have signed the 
note unless he suj)posed the cargt) was insured, 
and W(uild not have sailed. iJefciidants having 



iit tills date, •'?8(>.(K(. I acknowledge the above j refused payment of the note, and a verdict 

having been foun<l in their favor, it was, 

Had, on a nuition for a new trial, that though 
the master of the vessel might not unreasonably 
have supposed that plaintiff had undertaken to 
effect insurance, there was no such contract as 
to vary plaintiff's right to payment for his 
property sold and delivered to defendants at 
their reijuest and order. 

To constitute a contract there must be the 
mutual agreement of both parties, and not the 
notion of one party only ; and there must be a 
mutual and common apprehension of the subject 
1 matter. They must not honestly difl'cr in their 
meaning ; without such mutual agreement and 
understanding there is no contract. 

Camphi/l V. McCasMl tt al., 1 N. S. D., 36. 



ammiiit to be correct and promise to pay it 
fdi'tliwith." 

Hilit. not 11 account stated. Aho, that to 
ciialile plaintifi' to recover as on an original 
contract a consideration for assuming the bro- 
tiler's debt should have been shown. 

/•Vast/- V. McLmd, 6 R. & C!., 286 ; 
6C. L. T.,4-)2. 

50. Misrepresentation — Effect of, od 

contract — 111 an action on a promissory note 
given in payment for land purchased by defen- 
dant fidin plaintiff, the defendant relied on an 
iillegeil misrepresentation as to the quantity of 
land cdiituined in one of tiie lots sohl. 

Urlil, there being no evidence that the mis- 
representation, if made at all, was made falsely 
or with intent to deceive the defendant or to 
indiue him to do that which he otherwise would 
iKit have clone, that the defendant could not 
succeed. 

inn V. McLeod, 5 R. & O., 280. 

51. Mutuality— Vendor of cargo renders 

account, including charges for insurance — No 
insurance effected— Cf>rgo lost— Vendee liable 
for price of cargo— Defendants, being owners of 
tiie lirigt. Roderick Dim, addressed a letter to 
plaintiff, owner of the Campbellton coal mines, 
re(iuesting him, in case their vessel proceeded 
t(i Big Uras D'Or to load, to furnish a cargo of 



52. Novation— Where A. is indebted to B., 
and C. is indebted to A., and the three parties 
meet together, ,iiid A. agrees that C. shall pay]}, 
the amount due by him to A., which C. agrees 
to do, A. cannot afterwards revoke such order. 

Mitchell ct al. v. Turiihn/l el al., 

2Thom., 2r)0. 

53. Parol agreement to deed form in 

return for maintenance— 3rd R. S., c. 89, a. 6 

— The plaintiff entered into a parol agreement 
with defendant, whereby, in consideration of hia 
maintenaiv;e, which was to be secured by defen- 
dant's bond, with two sureties, he undertook to 



aial to the captain, taking his note, or selling in j give defendant a deed of his farm. Neither the 
such manner as plaintiff was accustomed in such 1 bond nor deed were given, but plaintiff lived 
cases. Defendants, as owners, guaranteed pay- j with defendant and was maintained by him for 

several years. Then trouble arose between them 
and plaintiff went away and brought an action 
to recover the farm. Defendant pleaded an 
equitable defence. 

Held, that under chapter 89 Revised Statutes, 
section 6, the Supreme Court had full power to 
determine the etjuities between the parties, and 
that upon the defendant paying the costs of the 
suit and giving the required lx)nd, the plainti£f 
should execute a deed to him of the form. 

Punch V. Chisholm, 3 N. S. D., 469. 



ment, and requested plaintiff to insure amount 
of cargo. Plaintiff, in compliance with defend- 
ant's request, supplied the coal, and took a 
promissory note for the price, covering, also, a 
charge for premium of insurance and policy. 
On the same day he mailed a letter to his agents 
at Halifax, enclosing the note of hand and bill 
of lading of cargo, and re(|uesting the agents to 
effect insurance for the amount of the note. 
Ihis letter was proved to have been received, 
Ijut no insurance was effected. The vessel 



351 



CONTRACT. 



352 



54. Part performance of— Statute Oflwliich tlie Court refused to interfere to j.ro- 
Frauds — Thougli the .Statute of Frauds requires | tect. Also, tliat tlie restriction containr 1 in 
the transfer of an interest in lands to ))e made the agreement between the parties, in if\, of 



in writing, the parol agreement for the sale or 
transfer liaving been partly performed, is en- 
forceable in ecjuity. 

Mahou V. McCidly,, 1 N. S. I)., 3-23. 



55. Fatent medicine— Assignment of ex- 
clusive right to manufacture and sell within 
certain limits — Perpetual injunction to re- 
strain violation of agreement— Quack reme- 
dies and nostrums — Restraint of trade — 
Defendants assigned to plaintiffs the exclusive 
right to manufacture and sell, witliin the 
Dominion of Canada, the Island of Newfound- 
land, and tlie West India Islands, a preparation 
designed for tlie treatment and cure of pulmo- 
nary diseases, known as "Puttner's Eniulsiim 
of Cod Liver Oil." Defendants reserved the 
right to manufacture and sell the emulsion in 
the United States, but agreed, as part of the 
consideration for the purchase by plaintiff's, that 
they would not sell the emulsion, or any other 
emulsion in tlie preparation of wliich cod liver 
oil was used, or ^^■llicll was essentially or sub- 
stantially the same as that assigned to plaintiffs, 
within any part of the described limits. Sub- 
se(|uently, the defendants commenced the manu- 
facture and sale, in Canada, of an emulsion 
which, thougli sold under the name of " Budd's 
Emulsion,'' was essentially and substantially 
the same as that assigned to plaintiffs, aiid in 
the preparation of which plaintifi's' emulsion, 
thoi-<,'h varied from so far as to create a scien- 
tific, but, for trade purposes, an immaterial 
dift'erence, was largely imitated. Wliile the 
copying of any of the particulars specified in 
the trade-mark was avoided, appearances, names, 
and other indicia were adopted in such a way as 
to have tlie effect of causing defendants' emul- 
sion to be bought as that sold to plaintiffs, and 
to lead the pulilic to believe that defendants' 
emulsion, if not the real and only genuine 
"Putt'ier's Emulsion," was essentially and sub- 
stantially the same. 

A perpetual injunction having issued to re- 
strain the manufacture and sale of " Budd's 
Emulsion," 

Held, on appeal, that defendants were guilty 
of a clear violation of their agreement, and that 
the injunction must be sustained. 

Also, a large number of leading physicians 
having testified that they were in the habit of 
prescribing cod liver oil emulsion for the use of 
their patients, and that it was a highly useful 
article, that the preparation could not be 
classed with nostrums and quack remedies, 



the subject-matter of the contract, was not 
unreasonable or void, as in restraint of trade, 
Irish tt al. v. Putt iter tt at., 7 II. & G., 40 j. 



56. Penalty for non-fkilfllment of con- 
tract — Plaintiff' was sub-contractor to defend- 
ant, who was eiigage<l in the erection of a large 
building. Defendant was under agreement with 
the owner of the building to have it fiiii.'ilud 
within a certain time or to pay a penally for 
each week tiiereafter, and, when contracting 
M'itli plaintiff', it was agreed upon Ijetwcen tiitm 
that, if tiie penalty should be incurred through 
the dilatoriness of the plaintiff, the amount of 
the penalty should be deducted from tlie sum to 
be paid by defendant to plaintiff under the sub- 
contract. The completion oi the building was 
delayed for several weeks, and the dcfciidiiut, 
alleging that this was the fault of the plaiiititf, 
withheld the amount of the penalty when set- 
tling up with him, and, upon being sued there- 
for, pleaded that fact, to which plaintiff' replied 
that the tlelay was not caused by his dilatori- 
ness, but by defendant requiring him to do 
extra work, and also by defendant not being 
ready for him when he began to work. 

The jury found for the plaintiff on all the 
issues thus raised. 

Iltld, that the. verdict should not be disturbed. 
Scott V. lirunton, 3 N. S. D,, 40o, 



57. Personal contract terminated by 

death of either party — The plaintiff', by agree- 
ment under seal, contracted tc serve tiie testator 
in the business of bookseller and stationer, as he 
shouhl direct, for a term of three year.s, only 
two of which had expired at testator's deatli. 
i It was also agreed that testator should pay the 
plaintiff, in consideration of such services, a 
fixed yearly salary ; but no mention was made 
in t)ie agreement of the personal representative 
of either party, nor any provision made therein 
in case of the death of either party liefore tiie 
expiration of the term. 

The testator by his will directed his executors 
(the defendants), on his decease, to dismiss the 
plaintiff, which they accordingly did. 

Hdd, that the agreement was a mere personal 
contract, determinable by the death of either 
party, and that no action could be maintained 
against the executors by the plaintitT for his dis- 
missal, nor for the insertion in the will by the 
testator of the clause directing it. 

Grant v. Johmon et al., 1 Old,, 493. 



3.53 



CONTRACT. 



354 



58. Privity or contract— Plaintiff's prop- | inliahitants of Sydney defendants were appointed 
orty, with tliat of many otiiers, was taken for a ooniinittee to act as a Board of Healtii, in 
riiihiiiy 11111 poses, and an appraisement was conseijiienee of an outbreak of smallpox. Tlicy 
iiiiiile miller chapter 41 of the Acts of 1877. were subseiiueiitly apj)ointed as such Hoard I ly 
Tiie ilefeiiiliint, who was Custos of the County, the Lieutenant-Governor, under (.'hapter "JO, 
ami two otJR.r .Justices, were appointed hy the R. .S., (4th series,) and made a contract with 
.Sessions a cimiinittee to carry out the provisions plaintid' for medical services while the disease 
of tiie Act, chapter 4'2, of 1877, for the l)orrow- should continue in the place, at a fixed rate jur 
ing of money to pay the land damages. They illim. They di.spensed with his services tiefore 
arranged with the Union Hank for the money, the disease had lieen eradicated. In an action 
at tlic rate of interest limited in the Act, but . for wrongful dismissal, the jury found that plain- 
some doliiy occurring before the awards were I till' did not know, at the time of tlie contract, of 
tileil, the rate of interest rose .so that they were the ajipointmeiit by the Lieutenant.(;ovei,ior of 
oMigi'il to submit to a di-scouut of two and a the defendants to be a Hoard of Health, and that 
Imlf ]it'r cent, on the County debentures, at the contract was made witli them in tlieir 
wiiit'li rate the" took the money, which was individual capacity. 

jilaLcil to the joint credit of the Custos and //i/il, that the action was )x rotifrar/ii, that 
Truiisiuvr. l''or convenience in paying it out, it defendants, whether acting intra (•/;•(,« uv ultra 
was (liawii by a joint cheque and placed to the ('(Ve.-' of their authority as a JJoard of Health, 
ciedit of tlic defendant, the Custos, who pro- \ were to be regarded as pulilic agents, not indi- 
ccodeil to pay the amounts awarded, deducting ' vidually liable on the ciuitract which tliey luul 
the twoaiiil a iialf percent. A balance remained made on behalf of the public, and tlial the 
!\fter paying all the claimants, which the defend- findings of the jury were not warranted by evi- 
iint paid over to the County before this action dence that the contract was made by defendants 
waslironght, in the Magistrate's Court, to I'eco- with plaintiff in the ordinary way in which a 
vc'i' from defendant the two and a half per cent, contu 1 would be made by public agents. 
The County Court .hidge, on appeal, held that Verdict for plaintitl' set aside. 
there was no privity of contract between defend- McKay v. Moon- tt at, 4 R. & (J., 3:iG. 

mit and ])laintifl', and non-suited the jilaintill", 
kit granted an a])peal undci- section 14 of chap- 
ter 9, Acts of 1S7.S. 

The Court held that tlie .Judge had power to 

grant llie appeal, but dismissed it on the merits. 

Thomas v. /iai/, '2 R. & ()., ]Xy. 



59. Proml.se to pay for services rendered 



62. Purchase at auction — Deposit Re- 
covery of- Plaintill' gave his note for the dc])osit 
reipiired on '\ purchase at auction, but subse- 
quently refused to carry out the contract, and 
sought to recover the amount of his note. 

//(/(/, on the authority of liluck v. Oisnir and 



to pauper -Where the defendant, an Overseer ! ^''■''^ ''• "'/"''««".'-' Thom., l.-)7, that he cotdd 
<if tlie Poor, signed a paj)er agreeing to .see the I '-°* '"ecover. 

pkintitf paid for services rendered to a transient I Limlsa;/ v. Zinrbr, '2 X. S. 1>. , 100. 

pauper, held liable, although his co-overseers [ 

icpudiated the obligation. 63. Purchase of goods from agents — 

D( unison v. Di'/, Cochran, H3. Biils rendered in name of agents — Suit by 

en »-«„#• „p 1. .. .. iprincipala— Defemlants had dealt with H.il: Co. 

,iJ w. . / ""'?"f '^'•*" ""*'" ••"' ^ f'"' «""•« *""«' ""t l<"owi..g then, to be agents 

tit e-When defence of alienage not available f„, pi,i„ti,r, but consi.lering the.n as princfpals, 

-Ihe law requires strict proof from the parties , the bills rendered to them by H. & Co. being 



ivlio set up an alienage as against title. 

Suiihl,-, that as long as .sufficient estate remains 
vested in an alien he may maintain ejectment 



ilways in their own name. Having purchased 
V quantity of plaintitrs, goods from H. & Co., a 
bill was rendered to cheni in H. & Co. 's name, 



Vi<aere-Pf. Wilkins, J., as to an alien devisee :,,,it subsequently another bill was sent in the 
m trust to sell. i t i • ^-o. ir i- r. i • , 

p ^ T , , „ ^ ^ : name of phuntiff. H. ic C o. became insolvent 

/>--. Johnstone, h. .J. It is not competent to | ^f^^, aelivery of the goods, and defendants did 



:» party who goes in under a contract to purchase 
to avail himself of the defence of alienage. 

Williams bt al. v. Myers, 2 N. S. D., 157. 



81. Public agents.- Individual liability 

lor breach of contract -Board of Health.- , .^.j ...... . 

special finding set aside— At a meeting of the \ defendants 
12 



k'cry 

I not pay them for them, as they had a contra 
account. On being sued by plaintitf, they 

. pleaded the contra account, and pi;.d the difFer- 

) ence into Court. 

I The evidence at the trial was very contradic- 
tory and conflicting, but the jury found for 



855 



CONTRACT. 



356 



//</(/, that the verdict sliouhl not ho dis- 
turhcd, and that the payment into Court ■was 
no Hthnixsion of defendants' lial)ility beyond the 
amount |)ai(l in. 

liiiird V. AndifKon et tiL, .S N. S. D., 181. 

64. Rescission— Evidence to support ver* 

diet— Particulars of demand— Instructiona to 
Jury — I'laintirt' and defendant entered into a 
contract tliat plaintitt' should taite <lefendant'8 
mill for a period of five years, put the same in 
repair, etc., and that defendant should furnish 
supplies, etc., and pay for all lumber cut at 
specified rates in tlie months of July and 
Deeendier of each year. Defendant failed to 
pay idaintifi" a sum of .S800 due him on one of 
the December .settlements, and plaintiff having 
demanded the money of defendant's manager 
was informed that there was none for him. 
Plaintiff tiierenpon .said he would have to give 
up the mill, in reply to which the manager said 
that that was " what the old man expected." 

Plaintiff and defendant's manager then went 
over the books, and a balance was agreed upon 
as due plaintiff, part of which was paid, and for 
the balance of which the action was brought. 

In addition to the above there was evidence 
of a statement by defendant that he wished to 
get rid of plaintiff, who was getting "played 
out," and of his instructing his manager to keep 
$1000 back from plaintiff. 

Held, Weatherbe, J., dubifanfe, that there 
was evidence to support a finding by the jury of 
a rescission of the contract, and a promise to 
pav plaintiff the balance earned. 

Held, aluo, objection having been taken to the 
suflBciency of plaintiff's particulars that the 
verdict could be sustained under the item " To 
amount due plaintiff from defendant for work 
and labor, and under the common counts, 
$1,131.28." 

Held, aluo, that the Judge was right in 
instructing the jury that evidence was of no 
importance of a conversation after the rescission 
in which defendant said he was urging plaintiff 
to go back to work and plaintiff made no reply. 
Tracey v. Yotmg, 5 R. & G., 381. 

On c/ppeal to the Sujrreme Court of Canada, 
Held, that for the reasons given in the Court 
below, the judgment should be affirmed. 
Appeal dismissed with costs. 

Yotmg V. Tracey, 17th February, 1S85, 

Cas. Digest, 82. 

65. Recovery for work in addition to 

contract — CoBts of argument disallowed — 
In an action on the common counts, defendant 
pleaded that the work was all done under a 



contract. It was clear that the original con- 
tract (which was for the construction of a holler) 
had been materially depiirted from, and a liirge 
amount of work done tliat was not inihukMl in 
j the contract. Defendant's agent swore that all 
the money paid was paid on the contract. 

Held, that plaintiff was entitled to recover for 
the additional work, but not on the ground that 
the contract iiad been rescinded, and jiluiutiff 
having contended that the verdict for detiinlam 
should be set aside on tiiis untenable gnniiul, 
no costs of the argument were given. 
AIcKay v. The Glace Bay Jliiiimj Conijiany, 

OR. &0.,r)28; 
«C. L. T.,-)«. 

66. Resolution of City Council accepting 

ofl'er— Not a contract— "Signing" and " issu- 
ing " debentures — Phiintift' otfered to the city 
'I site on Locknuin street for a City Hall, 
to be erected under Acts of 1874, cap. .').'), for 
.?3r),000, payable in city del>entures. 'I'lie City 
Council resolved to accept the offer, and that 
the Mayor be authorized " to have debentures 
issued " for the purchase of the site, anil that 
on the necessary documents being completed 
such debentures be handed over to plaintiff, a 
copy of the resolution being enclosed to the 
plaintiff by the City Clerk, but without any 
instruction or directions to that effect from the 
Mayor or the City Council. At the time the 
offer was made by the plaintiff the title to the 
land referred to was not in him, and there were 
mortgages over it to a considerable amount, but 
plaintiff said in his evidence that he luul made 
arrangements so as to be ready to have the pro- 
perty transferred when the Mayor should perform 
his duty, and he tendered to the Mayor an un- 
executed deed of the lots which were to form 
the site, and required him to carry out the 
resolution of the Council. Defendant refused 
to sign or issue the debentures, and plaintiff 
prayed for a writ of mandamus to compel him 
to do so. 

Held, that the resolution of the Council did 
not constitute a contract with the defendant, 
and that in order to the validity of such con- 
tract a document under the seal of the Corpora- 
tion was necessary ; that even had the agreement 
been formal and binding, plaintiff had not a right 
to require the Mayor to carry out the resolution 
of the Council until he had first secured a title 
to the lands to enable him to perform his part 
of the agreement. 

Per Ritchie, E. J. — "Signing" is not 
" issuing." 

Per Wilkins, J. — "Issue" means to put 
forth 80 as to bind the party issuing. 

Jennetl v. Sinclair, 1 R. & C, 392. 



357 



CONTRACT. 



358 



67. Sale of business— Written agreement 

—Prior verbal agreement for sale of " good 
will " inadmissible —Where a jtiirty enters into 
a written agreement, under seal, for the sale for 
a certain amount of all his right, title, share and 
intcri'st in a certain business, evidence is ina<l- 
missilile to prove a prior verbal agreement for 
the sale nf tiic "good will" of the business for 
a sum in additicm to the amount so specified in 
the written agreement. 

Liiiilhij V. Lacnj, II L. T., N. S., 273, dis- 
tinguished. In that case the prior collateral 
agreement was not interfered with by the sub- 
8e(|Ueiit written agreement. It was a parol 
condition on which the wi'itten agreement 
depended. 

Auxlin V. Boone, 2 Old., 149. 



68. Sale or birlns witb rigbt to purcbase 

—Not a bill of sale— Does not require to be \ 
filed— Usur\ C P. olitained a piano from P. 
& .S. (in hire, wirli the privilege of puroluising it 
for !*3.")0, by paying certain instalments within a 
certain time. Among other conditions of a 
written agreement entered into by C. P. at the 
time of receiving the piano were, that it should 
rjjnrtin the property of P. & S. until fully paid 
for, that in default of any instalment they 
might resume possession without previous de- 
mand, and that C. P. should pay interest upon 
the purchase money at 7 per cent. C. P. paid 
only two instalments amounting to §150, and 
then became insolvent. On P. & S. claiming the 
piano, they were opposed by H. L., a creditor 
of C. P., who claimed under an assignment made 
to him by C. P. as security for his debt, and 
received by him without any knowledge of the 
agreement with P. & S. This assignment was 
duly filed and registered. The Judge in Insol- 
vency decided against the claim of P, & S. 
upon the grounds that the agreement with them 
was void for usury, interest at 7 per cent, being 
provided for ; that having left- the piano in C. 
P.'s possession after the time for his paying for 
it had expired, they could not set up their claim 
against a bona fde purchaser, and that their 
agreement should have been filed and registered. 

On appeal to the Supreme Court, 

Held, that the Usury Statute did not apply 
at all, as it was not the case of a loan but a con- 
ditional sale ; that the claim of P. & S. was not 
prejudiced by their not having taken back the 
piano as soon as the time was up ; that C. P.'s 
agreement with them, not being in the nature 
of a bill of sale, did not require to be regis- 
tered, and that P. & S. should have the piano on 
paying to H. L. the amount they had received 
on its account from C. P. 



When obtaining the rule nisi from the Judge 
in Insolvency, P. & S. did not produce the 
original agreement of C. P. witli tlieni. 

Ht/d, that they were not thereby precluded 
from producing it at the argument of the rule 
or accounting for its non-production, 

In tht Matter of Pyke, 3 N. S. D., 342. 



69. Sale of goods — Consignor and Con- 
signee — Rescission of Contract — Non-accept- 
ance—Bill of Sale— On the 14th duly, 1«86, 
plaintifl' forwarded a lot of hides to J. L., 
Pictou, to wiiom he had been in the habit of 
making sales for a number of years. The hides 
were not ordered l>y J. L. , but were shipped on 
the presumption tiuit he would receive them as 
on previous occasions, subject to inspection and 
approval. On the oth August, some days after 
the arrival of the hides at Pictou Landing, one 
of the servants of J. L., finding them there, and 
without any special instructions to that effect, 
conveyed them to the tannery. J. L. being in 
financial difficulties at this time, ordered the 
hides to be placed in a warehouse belonging to 
D. L., to be held for the benefit of the consignor. 
At the same time he telegraphed plaintiff as fol- 
lows: "In trouble; have stored hides ; appoint 
some one to take charge of them." Plaintiff at 
once proceeded to Pictou and saw J. L., who 
told him that he might make himself easy about 
the hides, that he had placed them in D. L.'s 
store for him, and that he would get them. 

On the 12th August, 1886, J. L. executed a. 
bill of sale to the defendant Bank, covering all 
the hides, etc., "owned by the said J. L., or 
stored by him in any building, warehouse or 
storeroom of D. L., or in his keeping." 

The defendant having sought to hold plaintiff's 
hides under the bill of sale, 

Held, that there had been no such acceptance 
of the goods by J, L. with the intention of 
taking possession as owner as to pass the pro- 
perty. 

Harvey v. The Pictou Batik et al. , 

7R. &G., 196; 7 C. L. T., 130. 

On appeal to the Su}>reme Court of Canada, 

Held, affirming the judgment of the Court 
below, that the contract of sale between J. L. 
and H. was rescinded by the action of J. L. in 
refusing to take possession of the goods when 
they arrived at his place of business, and hand- 
ing them over to D, L., with directions to hold 
them for the consignor, and in notifying the 
consignor who acquiesced and adopted the act 
of J. L., whereby the property in and posses- 
sion of the goods became revested in H. ; and 
there was, consequently, no title to the goods 



359 



CONTRACT. 



360 



73. Sale of lands— Condition precedent- 
Action for consideration money — In mi iigree- 
nieiit for tlie sale of liuuls, where it was stipii- 
lilted, tliiit when the limd was surveyed the 

plaintiff should give the defeudaut a h I for ii 

dee<l, or a deed on ))eing secured the \)urclmse 



in J. L. on August I'Jth, when the hill of sale ; bargain, tiiat the agreement was duly explained 

was made to tlie hank. '• to him ut or before the execution, that 1). did 

Till I'irloii ISaiikii III. V. llarnijy not depreciate tlie value of the farm to him, 

14 8. C. H., 017. I knowing it to be of greater value tiiiiii the 

amount of tlie jjurehase money ; but they also 

70. Sale of goods - Merchantable char, f"""'' *'■« ^'^i"*' "^ »''« f'^"" ^" ''« "^^ ';'"' «'"" 

acter-l'lnintiffs were the eonsignees for sale ! 1>- '""l «"J""'«'l "» T. seercey as to the hargam. 

ofacargoof oats, eonsisting of 0,<MH) bushels, I A^'^''. «•*««- <)., '/'■-""".'/. that 1). Wiu, 

imported from Xew York by parties residing at ^"titled to a deeree for spee.he per onnance. 

Cornwallis. The oats were stored in bulk on ''< >• '^l'^^. J- tlmt ho should rather Ik. left t„ Ins 

boanl a vessel lying at the Market wiutrf. j ••«>»«'ly ''y '»«"°" f"'' ''7'^"'' "f ^"''^'•'^f , 

PiaiutitVs had engaged an auctioneer to sell the I ^><"''l' ^'- ' ">■""' ' *"''■• '• 

cargo at auction, and a sale had been advertised. 

Subseiiuently to this one of the defendants called 

npon plaintiffs and undo some general incjuiries 

in regard to the character of the oats, their color 

and weight, and finally agreed to take them off 

plaintiffs' hands. There was no sale by sample, 

and no stipulation on the part of the vendors, 

whose conduct was fair and open, that the oats ; money. 

were tit for any particular purpose. | //'/'/, that the survey was not a comhtion 

Defendants, on tlie evening before the appoint- precedent wiiicii wouhl prevent the ijhuiititr 
ed day of sale, intervened as purchasers, and | from recovering tlie coiisid ration money, 
gave the auctioneer instructions under which lie | -l^om- v. Hmston, Cochran, 01, 

acted. Aftoi' a large i|uaiitity of the oats (some 

l,r«(K» bushels) had been disposed of, the balance 73, Share in flsh Cailght — EvIdCIlCC - 
remaining in the vcissel's hold were discovered I'laintitl's claimed to lie entitled to fish in a cer- 
to be musty. tain berth, innler regulations made l)y the 

To an action for tlie unpaid balance of tlie Sessions ou the autliority of an Act of the 
purchase money, defendants pleaded substanti- Lcyislalurc. Under the evidence the (.'imrt 
ally that the contract was for a cargo of tmr- iuferred that defendants were authorized liy 
chaiilah/e oats, being in the iiidd of the vessel the jilaintili's to shoot their seine, — jilaiiititt's to 
and iiicajiable of ins])cction. A verdict havii g have half the lish caught, — and having tlono .so 
been found for defendants, the defendants secured a catch of fish, of which 

IImI, that tlio nature of the transaction pre- plaintiffs claimed half under the agreement, 
eluded the idea th.at a iiiereliantable character Ili/d, that the plaintiffs were entitled to iialf 
was an understood condition of the contract. ! the fish caught, and that the relief which they 
Both parties had eijual opportunities of iiispec- ' sought, namely, that defendants should deliver 
ting the cargo, and the vendors sold and the to them their share of the proceeds or accoimt 
buyers bought the specitio visible thing. The ' to them, and in the meantime should be 
rule for a new trial was therefore made absolute. 
Francr ef al. v. Sailer it al. , 

1 N. .S. D., 424. 



71. Specific performance— Sale of lands 

— T., by wi'itten contract, agreed to sell to D. a 
farm for .£200, but subseiiuently refused to 
execute the deed, and forcibly ejected D., who 
had been put in possession. D. brought a suit 
for specific performance, to which T. pleaded 
several pleas, attacking the agreement on 
various grounds, but raising no distinct issue of 
circumvention or fraud, though by way of recital 
in his fifth plea he stated that he had been 
over-reached, and that D. had by undue advan- 
tage endeavored to obtain his property for an 
inadequate consideration. The jury found that 
T. was not incapable of making a provident 



restrained from selling, etc., was jiropeily 
sought in this Court. 

Do'jtrty tl al. v. Power ct al., R. E. D., 419. 

74. Sharing in fish caught-School offish 

—Plaintiff and defendant entered into a contract 
to fish, each in a distinct berth, and each party 
finding his own seine, boat and fishing gear, 
The evidence was conflicting as to the contem- 
plated duration of the agreement, but the Court 
arrived at the conclusion that it was confined to 
the taking of a school of fish in each berth. 
Evidence was given as to the meaning of the 
term school, as used in such contracts, hut it 
was vague and contradictory and such as to 
oblige tl'.e Court to construe the agreement 
independently of any alleged usage. Defendant 
caught iourteen barrels of mackerel in his berth, 



361 



CONTRACT. 



362 



of wliii'li 1>P fe'n,vo jiliiintiff seven ; and plaintiff, | tract, plaintiff should be left to his remedy at 



sliditly iiftor, cauglit ten barrels in his berth, of 
wliich ho j,'avo defendant five. Plaintiff then 
aliaiiiliinod liis berth and went elsewliere to fish, 
iiml never returned to it. Defendant, in his 
berth, ciui>,'ht two hundred and fifty barrels, of 
wliii'li ()l:iiiititl' I'iainieil iialf. 

Hi III. that tlie plaintill' was not entitled to 
participate in tiie defendant's catuh of fish. 

Fuicion V. Xoonan, B. E. D., 377. 



law. 

Bill dismissed without costs. 

Meat/her v. The Qw.cu'n Inm) aiicc Co. , 

R.K.I)., 3-27. 



77. Specific performance — Misrepresen* 

tations made verbally before written contract 
— Plaintiff brouglit suit to eomi)el the perform- 
ance by defendant of a contract in writing for 
I the purcluisc of a house. During the negotia- 
J.I. SpCCinc performance-Agreement to tions defendant asked expressly as to the 
hquidate mortgage- H. & K. C'olp, being the 'Iniinage, which plaintitf assured him was 
owners of certain lau.ls, subject to a mortgage ' perfect, but wliieh in fact was seiiously defec- 
of 8'.'.(ltM!, and indel)te.l to otlier parties in tiio tive. It appeared tliat tlie representations had 
sum (if mn, entered into an agreement witli J. l^een made by the plaintifl' in good faith and in 
Hul.li'y and ('. A. Wiiitmaii, whereby, in con- ' ignorance of the facts, and tlie liouse being 
siduiation of the latter agreeing to li(iuidatc tlie "''eupied defendant couhl not inspect 



nini'tgiige and tiie other delits, the parties first 

nii'iitioned agreed to deed to them the real 

estate uieiiticmed in tiie mortgage. It was 

fuither agreed that Hubley, Wliitman and IJ. 

Oilp, t!ie defendant, should carry on a lumlier- 

ini; l.iisines,, on tlie property. Tiie debts were *'"»- '^n'l *!>"■*' ''^'"8 material representations on 

acLuidiiigly paiil, aii.l the piaiiitills and defend- the faith of wliich defendant entered into tlie 

ant c.uducted the business, but defendant re- i contract, they constitute a defence, although 



t for 
himself. Nothing waa said about the matter in 
the written contract. 

JIc/il, that in the suit for specific performance 
the verbal representations made previous to the 
written cmitract must be taken into considera- 



181. 



fused to sign the deed of the property, den'ed | plaintiff <lid not know them to be untrue. 
tlii't a partnership ha.l been entered into as; T/wmwii. v. Lowjard, R. E. 1)., 

alk'gi'il, and claimed that the agreement had i 
been procured by misrepresentation, which he | 

faikii to prove. '8. Spcciflc performance - Where dam* 

//./-/. that the plaintiffs were entitled to spe- ages already obtained— Where, in an action 
ciric performance of the agreement. f"!" specific performance of a contract, the plain- 

Whilmau tt a/, v. Coin R. E. D. 471. ' tiff claimed and obtained damages for the non- 
fulfilment thereof, the Court refused to decree 
specific performance. 

McAijy V. Gray, Cochran, 52. 



16. Speciflc performance — Insurance — 

PlaiiititV brought this suit to compel defendants 
to deliver to him a policy of insurance for !?tjOO, 
alleging that they had received his premium on 
the '27tli Xovember, 1S77, and undertaken to 
insure his house for a year from that date, and 
to deliver a policy to that effect. The building 
was destroyed by fire in December, 1877. De- 
fendants alleged that they had been induced to 
enter into the contract by the misrepresentation 
of idaiiititr that the Building Society were about 
to advance !?()00 on the property, and that thej' 
had undertaken to insure it, not for plaintiff, 
but for the Society. At the hearing, plaintiff's 
counusel asked for a decree for a policy, and also 
for the payment of the money. 

Htid, that, even if such relief could be grant- 
ed, it could only be upon a bill asking for it, 
whereas plaintifl" had, in his writ, asked only 
for a policy ; and further, that as the evidence 
was directly in conflict on the point as to mis- 
representation, and 08 to the term of the con- 



79. Statute of Frauds— Building attached 

to land — Action to recover tiie price of a certain 
building, and plea that the contract of sale was 
not in writing signed by the defendant. 

The plaintiff gave in evidence that the build- 
ing in question was erected on land to which 
neither of the parties claimed title, and that it 
rested on stone pillars, which the plaintiflf 
built. 

Held, insufficient to give the building the 
legal character of a chattel, and that therefore 
the contract was void under the third clause of 
the Statute of Frauds. Had the plaintiff 
showed that the building rested on the pillars 
solely by its own weight, without being affixed 
to the pillars or connected with the soil, the 
case would ■ till have been within the fourth 
section of the Statute. 

McKmzie. v. McDonald, 2 N. S. D., 11. 



363 



CONTRACT. 



364 



80. Statute of Frauds — Non-compliance 

with — A verbal agreement between A. and B. 
that B. ahall take a net in payment of his debt, 
although intended as a final agreement by the 
parties, is not a sufifieient compliance with the 
Statute of Frauds to transfer the property to B. 
McKenzic v. Robert nan, 

James, 234. 

81. Statute of Frauds— Not allowed to be 

an aid to the perpetration of a fraud — Plaintiff' 
and defendant agreed orally that defendant 
should advance the consideration money and 
take a deed of certain lands for plaintiff', who 
should have fourteen months to repay the con- 
sideration money, defendant occupying the lands 
meanwhile in lieu of interest for the money ad- 
vanced, and that defendant should execute a 
bond to re-convcy the premises to plaintiff" on 
payment of the consideration money. Defen- 
dant took the deed l)ut did not execute the 
bond, went into possession of the land, and 
made improvements upon it, and when plaintiff, 
within the time stipulated, tendered the con- 
sideration money and demanded a reconveyance 
of tiie premi.ses, refused to execute a convey- 
ance, claiming the premises as his own, under 
his deed. 

Hthl, Jiat the Statute of Frauds could not be 

set up as a defence to aid the defendant in the 

perpetration of a fraud, but that the plaintiff' 

was entitled to a reconveyance of the premises. 

Amero v. Atntro, R. E. ])., 9. 

82. Statute of Frauds— Recovery on com- 
mon counts where party could not recover on 
agreement not complying with Statute— Plain- 
tiflf, who had purchased defendant's stock in trade 
and leased his premises at S., gave defendant 
his note for S'200 in consideration that defendant 
would sell the godd will jf his business to plain- 
tiff, and woidd not interfere with him for the 
term of five years. This agreement was not in 
writing. Defendant, within the period of five 
years, returned to 8. and set up business there, 
so as to interfere with plaintiff. 

Held, that while plaintiff" could not recover 
for breach of this agreement, not being in 
writing, and not to be performed within one 
year, he could recover under the common count 
for money paid, and that his verdict for §200 
must be sustained. 

Meek v. Gosh, 2 R. & C, 243. 

83. Substantial ftalfllment of— Mortgage, 

delivery of — Registration — R. took a promis- 
sory note from McL. and McD. (the defendant), 
by agreement between him and them, as secur- 
ity, until McL. should give him a mortgage of 



certain lands. McL. and his wife executed a 
mortgage of the lands to R. in the usual form, 
and McL. brought and tendered it to R., who 
was then very ill, but did not read it to him. 
R. then said to MoL., "You had better take 
the mortgage over to A. (the registry office was 
situated there), and when you bring me back 
a certificate that it is left in the office, you will 
get the note." McL. took the mortgage to A., 
i and had it registered, but this was not until a 
fortnight after R.'s death and about three weeks 
after the above conversation. No interniwliate 
encumbrance, however, intervened. McL. ob- 
tained the certificate, but did not bring it to 
R. 's administrators. R. died intestate, and his 
administrators brought this action on tlie note. 

Held, that McL. liad substantially fultilled 
the agreement between himself, McD. and R,, 
and the jury having found for the defendants 
(the question of the delivery of the mortgage to 
R. in his lifetime havhig been left to them), and 
having also foimd that McL. acted in perfect 
good faith, the Court refused to disturb the 
verdict. 

McKen-Je et al. v. McLean et al., 2 Old., 324. 

84. Substantial performance— Measure of 

damages — Supervision — Where there i'-- a 
substantial performance of work under a special 
contract, though not in strict accordance with 
it, and there is no fraudulent or wilful deviation 
from its terms, the contractor is entitled to 
recover for the work done, the measure of 
damages in such a case being the agreed price, 
less siich a sum as it would take to conii)lei u tlie 
work according to the contract. 

Where a plaintiff has done a large portion of 
his work under a special contract, under the 
supervision of the defendant's inspector, who, 
though he complained of portions of tlic work, 
and forliade the plaintiff' to proceed, stated tliat 
he did not suppose that the work would be 
stopped, and the defendant has himself con- 
tinued to superintend and direct the woik, 
after such expression of disapproval, he cainiot 
afterwards refuse payment for the work done. 
Mcintosh et al. v. Culteii, 2 Old., '268. 

86. Usury— Admission parol evidence to 

vary written agreement — Defendant being 
about to 3nter into business, entered into a 
written agreement with plaintiff" in the follow- 
ing terms : — 

"Halifax, 13th January, 1851. 
"Memorandum of Aijreement between J. f" 
Barss, of Wolfville, and Samuel Stronn, of Hali- 
fax. It is agreed as follows: Whereas, the 
undersigned, Samuel Strong, is about entering 
into the dry goods business on his omti account, 



365 



CONTRACT. 



366 



and finding liis capital insufficient for such pur- 
pose, has applied to the subscriber, J. VV. Barss, 
for tiie loan of one thousand pounds currency, 
and also for a letter of credit to his agents at 
Liverpool, (i. B., Messrs. J. S. D. & Co., for one 
tliousand pounds sterling, and for which money 
advanced and credit given, with other assist- 
ance in business, and for the risk incurred by 
tlie said J. AV. liarss in advancing the aforesaid 
sums to the said Samuel Strong, agrees to pay 
to the said J. W. Barss, for the above consider- 
ation, tlie sum of three hundred pounds cur- 
rency p;r annum, payable half yearly on the 
SOtli June and 31st December in each and every 
year during the continuance of this agreement, 
tiie first payment to fall due on the .SOth June 
next ensuing. And it i.s further agreed by said 
Samuel Strong, that \\ hen it does appear that 
the prolits of his business in any year exceed 
one tliiiusand ])()und.s currency, then he will, in 
addition to the foregoing, pay sixty pounds per 
iiniuini lis interest on the one thousand pounds 
aliove ]ianied as advanced to him. The above 
agreement to (Continue for five years from this 
date (unless otiierwise mutually determined), 
and tlien eitiier party desiring to withdraw 
tlieiefroni shall specify the same three months 
liievions to the termination of this agreement. 
Tile said J. W. Baiss shall consider himself in 
no wise liable for any of the transactions of the 
said Samuel Strong, and in no case to be consid- 
eiecl as a partner in liusiness beyond l)eing his 
ciedilor in the smn speeitied above. 

(Sgd.) John- \V. Bauss. 

(Sgd.) Samckl Stuo.vo." 

The £100(J first referred to was advanced, 
ami the letter of creilit given, and subseMjuentlj- 
another iKXJO was iidvaneed. One amoimt of 
f lOfXt, alleged to have been that first advanced, 
haiing lioen repaid, a seconil agreement was 
entered into in regard to the remaining £1000, 
hy wliieh defendant w\as permitted further to 
retain it on paying interest at the rate of ten 
per cent, per annum. In connection with this 
agieement, the defendant gave the notes which 
were the subject of the action. 

At the trial, the plaintiff contended that the 
transaction was a mixed one, involving other 
things which he did under the agreement, be- 
sides permitting defendant to retain the money. 
The defence turned entirely on questions of 
usury. The jury found a verdict for plaintiff 
for £1200, being less than half his demand. 

HM, per Young, C. J., that the question 
whether the parties intended to evade the 
Statute in regard to usury, or whether the 
intention was to compensate the plaintiff for 
other services rendered, was for the jury, and, 



it having been fairly left to them, their verdict 
must be decisive. 

DesBarres, J., concurred. 

Per Dodd and Wilkins, JJ.— The plaintiff 
was estopped from goin'^ outside of the agree- 
ment, and showing that the money was lent on 
other considerations than those expressed. 

The Court being ecjually divided, no rule 

passed. 

Bars.1 V. Slroiig, 1 N. S. D., 450. 

86. Verbal agreement for sale of land- 
Vendor takes possession — Where the consider- 
ation of a promissory note was the purchase of 
land of which the maker took possession, 
though there was no written agreement for the 
sale of the land, and the consideration was not 
expressed on the face of the note, the maker 
cannot set up as a defence the want of consider- 
ation. 

Oral/ V. Whitman ef ah, 2 Thorn., 157. 

87. Verbal agreement for sale of land 

inadmissible to show consideration — Where 
a note was given to plaintiff in part payment 
of purchase money of lands, under an agreement 
for sale and purchase not reduced to writing, 
hchl, that evidence could not be given of the 
consideration, and that plaintiff could not re- 
cover the amount of the note. 

lihirk V. Gemer et a!., 2 Tliom., l.")7 ; 
Limlmy v. Zwid'er, 2 N. S. 1)., 100. 
[XoTK. — In the arg.iment of Ch-ai/ v. Whitman, 
which was decided after lilack v. Oemier ef al., 
the former case is distinguished from the latter 
by the fact of the maker of tlie note going into 
possession. The Court in the former merely 
said that it Mas clear there must be judgment 
for the plaintiff.] 

88. Verbal agreement to pay for work 

done for another — Verdict — Defendant made a 
verbal agreement with plaintiff to pay him for 
any work which R. might recjuire him to per- 
form. Plaintiff performed work for R. accor- 
dingly, and procured from him an acknowledg- 
ment in tho fcdlowing form, which he presented 
to defendant : " Balance due Mr. William Cox 
from Alexander Ross at this date, one hundred 
and fifty dollars. (.Signed.) Alex. Ro.ss." At 
the trial a verdict was found in plaintiff's favor, 
and a rule taken to set the same aside. 

He!d, that although the paper signed Ijy R. 
was not in form sue', a paper as lie ought to 
have prepared, or as plaintiff ought to have 
accepted, it was sufficient, after verdict, tc show 
the amount and value of the work done by 
plaintiff for R. , for which defendant had agreed 
to pay. 

Cox v. Elliott, 3 N. S. D., 509. 



367 



CO^ VICTION. 



368 



89. Warranty of goods— Breach of Evi- 
dence — A contract amounting to a warranty of 
goods sold is violated if the articles, owing to a 
secret defect existing at the time of sale, after- 
wards become deteriorated in value. 

The sale of No. 1 salmon witiiout express 
warranty amounts to a warranty that the tish is 
in the condition prescribed by law for lisli of tiuit 
brand. 

Jlnrih/ it al. v. Fairhaiiku i-t a/., James, 432. 

00. Charter party -*f SlllPPIJffi. 

«1. Contract of service -.SVe MASTER 
AND SERVANT. 

02. Contract of Insurance -SVe INSUR- 
ANCE. 



CtlNTROVERTED ELECTIONS 
S,-e ELECTION LAW. 



CONVENTION OF 1818. 

1. Its articles are to be construed with a 

view to tlie surrounding circumstances, and 
according to tiie plain meaning of the words 
emi)love<l. 

Th( J. If. Xlrkrr.'^oi,, Y. A. 1)., p. 100. 

2. Violation of Convention and Dominion 

Fishery Acts — Evidence of— An American 
fishing schooner was seized liy one of the cutters 
appointed l>y the Dominion (iovcrmneiit for the 
protection of tiicir fisheries, for being engaged 
in catching tisli witliin the limits reserveil by 
treaty and by the Dominiim Fisliery Acts. The 
evidence on the part of tiie prosecution was to 
tlie effect that, when boarded by tiic cutter, 
there were fish freshly caught upon the schoon- 
er's deck, and every indication of tlie crew 
having been very recently engaged in the man- 
agenu'ut of their lines. The only evidence 
offered for the defence was, tiiat the fish iiad 
been caught merely for purposes of food. 

ITih/, that the vessel sliould be forfeited, 
with all iier tackle, stores and cai'go. 

The IVampatucl; V. A. D., 75. 

3. Violation of— Evidence to prove — A 

case of very similar nature with Th( Wampa- 
tuck{\, A. 1), 7.">). tiie oidy ditl'erence l)eiug in 
the evidence adiluced. For the prosecution it 
was proveil that the vessel was lying-to in the 
very position fi>r fisliing ; that the crew were seen 
casting and hauling in their lines and throwing 
out biiit ; and that, when boarded, there were 
several lines over the rail, fresh bait upon the 
deck, aiul other signs of recent operations. 



Held, that there was sulKcient evidence to 
warrant a forfeiture of tlic vessel. Sic. 

The A. //. Wamoii, V. A. 1).,83. 

4. Violation of— Evidence — The vessel 

proceeded against in this case was found liy ono 
of the cutters in the midst of a mackerel tloet, 
witiiin tlic prescribed limits, ami overiiiuiled, 
but afterwards permitted to go ; but, on fiutlier 
information being received, was seizwl on a 
subser|uent day in an adjoining ])ort. The only 
material evidence against lier was tiiat of tiie 
crews of two other fisliing schooners, who testi- 
fied that they liad seen lines and bait throw .Hint 
from tiie suspected vessel, and that her iiion liiul 
continued ti'ying for mackerel until the unttcr 
canu^ u]). Tiiis evidence was furtiier strenj,'tli- 
ened by admissions of the men, going to sliow 
that tiiey iiad actually taken mackerel. 
Ill III, that the vessel was forfeited. 

rill- A. ./. Friddliii, Y. A. 1>..S0. 

5. Violation of- Evidence -The treaty bj 

whicli tlie United .States formally rciiiiiiin,'eil 
the liberty tiiey hail liitiierto enjoyed, of lisliing 
within the prescribed limit of three mariiic milts 
of any of the bays or hai'liors of the Doiniiiioii 
of Canada, contained the following |ll■ovi^o: 
"Provideil, however, that the American lisiiiT- 
men shall be pcrmittecl to enter such bays ur 
harbors for the purpose of shelter and lepaiiiiig 
damage therein, and of ])urcliasing wood anil nl 
obtaining water, niiil for no olhir jiiir/iii'" "■//'('■ 
i^ri'i:" The J. H. Xickerson entered the IJuyoi 
Ingonisb, in ("ajie Ureton, for the alleged pur- 
pose of obtaining watei', itc, liut the cviilence 
clearly showed that the real object of her entry 
was to obtain bait, and that a (luantity "f liiiit 
was so proeureil. She was seized by the giiverii- 
ment cutter after she had been wai ind otl', ami 
while she was still at anchor, within tiirec 
marine miles of the shore. 

Ill III, that she was guilty of prociiiiiiL,' l«it 
and preparing to tish witliin the ini'Miilied 
limit, and must therefore be foi'feited. 

The J. If. Xlrhn:<r>i,, Y. A. 1).,!W. 



CONVENTIONAL LINE. S,c BOUNDARIES. 



CONVERSION. SV' TROVER. 



CONVICTION- 

I. SUMMARY. See JUSTICES OF THE 

PEACE. 

II. QUASHING. See CERTIORARI. 



869 



CORPOEATION. 



370 



COKPORATIOy. 

1. Corporation, foreign — Attaclinicnt 

against— Service of prooeaa on agent— Collu- 
sion by agent— Defiiult set aside and defend- 
ant alloweil to appear and plead where it 
appe'.ired that justice between the parties 
mifht be more eft'ectually done — Enlargement 
of time to appear and plead— Power of Judge 
at Chambers to allow -I'laintitr, on the '2M\ of 
August, ISS,"), olitiiini'il jiiilgnient by (k-fiuilt 
ngainst tliu (U'tVndant company, a company 
incDipoiiitoil in tiie >State of IMassacliusetts, 
owiiiiii^'ii gold mining propinty at Isaac's Harlioi', 
in tlie ridvinec of Nova Scotia, the wi'it of 
sumiiions having been suived upon S, as agent 
of the eoniijany. On the same day an exeeu- 
ti(in was issued, a writ of attaeliment and suni- 
inmis to agent iiaving been issued on the 7tii 
August pieeeding. Tiie defendant company 
applied on alliavit to set aside the judgment 
nnil execution, and for leave to appear and 
plead, on tiie ground that S. had acted in collu- 
sion with the piaintitl' for the purpose of obtain- 
hig the judgment ; that the amount for which 
judgliient was entered was not due ; that S. 
neve" instructed or informed tiie executive or 
managing otHcers of the eom))any that the writ 
of siinnnous had been issued, or that he liad 
beep served with any process in the suit, and 
the ii)ni|)an}' had been ke[)t in ignorance of tiie 
pidcceilings taken against it. Tiie defendant 
fiirtlier denied the right of S. to sign certain 
pioniissoiy notes, wiiicli formed j)art of the 
alkgi'il ( ause of action. An order having been 
made l)y the learned C'liief Justice at Chambers 
setting aside the default and allowing the 
defendant to apjiear and plead, 

//'/'/, tiie utlidavits lieing lengthy and contra- 
dictory, and the Court lieing of r.jiinion that 
justice could be more effectually done between 
the parties after a trial, that tlie order must 
be atliinicd and the appeal therefrom dismissed. 

'^iie time for appearing and pleading iiaving 
been enlarged by several successive onlers 
granted on liearing atKda\its urging tlie neces- 
sity for furtiier time and accounting for delay, 
wliicli orders were also appealed from, 

I/(ld, that under Order 00, Rule 5, the Judge 
at Chambers had power in his discretion to 
extend the time oven where the application was 
not made until after tlie expiration of tlie time 
previniisly appointed or allowed. 

liryiiohLt V. acdtihar Gold Miiiiiif/ Co., 

1 R. fi a., 466; 
8C. L. T., 17. 

2. Distinction between membership in 

and part ownership of corporation property— 



I Plaintiff, in 1874, agreed with a number of 

! Halifax merchants to subscribe §4000 towards 
a steamship enterprise, and assist in getting a 

i suitable ship, provided he should be master. 
He was appointed master, and the wages were 

' fixed at iJl'iOO. Tlie company was incorporated 
in I87."i, by Act of the Dominion Parliament, 
and the plaintiff received stock to the amount 
of iiis contribution. After running for some 
time, it was found that the enterprise was sink- 

; iiig money rapidly, and in 1876 a new arrange- 
ment was entered into, by which the plaintiff 
was to sujiply the ship with men, and provisions 
for the passengers and crew, and sail her as 

i commander, for .^(WXt a month, afterwards in- 

' creased to itO.'iO. The ship had been originally 
accustomed to remain at .St. Pierre forty-eight 
hours, but the time was afteiwards lengthened 
t.'j sixty hours by the company, yet the plaintiff 
insisted on remaining only forty-eight hours, 
against the express directions of the comjiany's 
agents at St. Pierre, ami was otherwise dis- 
obedient to the agents, and treated them w ith 
gross insidence, in conseiiueiice of which be v.a.s 
dismissed from tiie service of the company. 
There was a verrlict of .S'2(KK) for plaintiff'. 
If</'/, that the dismissal was jiistitiable ; that 
the plaintiff was not a part owner of the ship, 
and could not exorcise, indopeiulently of the 
corporation, any power whatever over the prop- 
erty of the company, having no interest what- 
ever in the ship, but only in the stock of the 
company, and the case must therefore be ccm- 

' sidered as the ordinary case of a master dis- 
missed by the owners. 

Sir \V. Voung, C. J., dix^tifiinj, luld, that 
while the plaintitf would have had no redress 
had he been in the ordinary position of a ship- 
master dismissed hy a majority of tlie owners, 
his position was that of a part owner, and he 
was entitled to compensation. 

Guildford v. Aii'i/o-Fn iich Sf<am>:hi/i Co., 

2 R. & (;., 54 ; 

I IC. L. T.,5o4. 

Oil ajijual to the Siiprinie Court o/ Catindu, 
H(ld, 1st, that even if tlie dismissal had been 
wrongful, the damages were excessive, and the 
case should go back for a now trial on this 
ground. 2nd, jur Ritchie, C. J., and Fournier 
and O Wynne, J J., that the fact of the master 

' being a shareludder in the corporati(m ow'ning 
the vessel, had no bearing on the case, and that 
it was proper to grant a now trial to have the 
question, as to whothor the plaintiff so acted as 
to justify his dismissal by the owners, submitted 

I to a jury, or a Judge, if case be tried without 

a jury, 
I Gni/dford v. A)i;/lo-French S. S. Co., 

i 9S. C. R.,303; 2C. L. T.,250. 



371 



CORrORATION. 



372 



8< Grant to— Where a grant was lUide to i Held, Strong, J., dUtcntimj, that where the 
" the Governors, President and Fellows of j commanding oiiicer died pending such action, 
King's College, at Windsor, in the Province of ; the proceedings could be continued by iiis pur- 



Nova Scotia," and an action of trespass was 
brought by " the (iovernors of King's College, 
Nova Scotia," (the real name of tlie Corporation), 

Held, that the grant was prima facie nuide to 
the Corjioration. 

Governors of Kiiiy'n College v. McDonald, 

2 Thorn., 106. 



5. Mortgage of property of, by directors 

— Practice on making calls— The directors of 
a company incorporated under Acts of lS(i'2, 
Chapter 2 (Hev. Stats., 3rd series, ''*)), intit- 
uled " An Act for tlie incorporation and wiiniiiij; 

_ . . „ ,, , , "P "f joint stock companies," have iiowir to 

— Requisition must strictly follow the words ^. .. . *i . . „ * e ,\ < i 

,^ _ , . ,. X mortgage the property of the conii)any to ilis- 

of the Act— Liability of Mumcipalsty to pay , . ii;, *; e i i .i i i ii 

y_ •; •'..'■' charge oliligations tor winch tlie ."hari'lKiliUis 



sonal representative. 

Crewe-liead v. County of Cape Bnloit, 

14 S. C. H.,1 



4. Militia called out in aid of civil power 



for services— The Militia Act, Acts of 18G8, 
c. 40, as amended l»y tiic Acts of 1S73, c. 4(5, 
and tlie Acts of 1879, c. ,V>, authorizes tiie call- 
ing out of the militia by the senior otlicer present 
in any locality, in aid of the civil power, for the 
purpose of preventing or suppressing riots when 
thereunto rccjiiircil, in writing, which writing 
ahall express on the face thereof tiic actual 
occurrence of a riot, disturViaiicc or eiiiergcncy, 
or tlie anticipation thereof. When so called 
out the liiibility to pay for the services of the 
militia is imposed upon the Municipality in 
which such services are re(iuired. 

Several coniiiaiiies of niilitia in the Munici- ! 
pality of Cape Ihcton were called out in pursu- I 
ance of a reiiuisitiod, which read: " It having ; 
been represented to us that a disturbance has 
occurred and is .still anticipated at I/lngaii, be- 
yond the power of the civil j)ower to suppress, 
you arc therefore hereby ordered," &c. 

Ill Id, that in order to make the Municipality 
liable for the iiuunteiiance and pay of the 
militia, the re(jiiisition mast comply strictly 
with the Statute, and that as it failed to ex- 
press on its face the actual occurrence of a riot, 
disturbance or emergency, or the anticipation 
of any, but only .set out a representation that 
a disturbance had occurred and was still antici- 
pated, which representation might have been 
found on investigation to be unwarranted by 
the circumstances, the Municipality was not 
liable. 

Head v. I'he Municipal it y of Cape lireton, 

7R. &Ci., 200; 
7C. L. T., 349. 

On appeal to the Supreme Court of Canada, 

Held, that the requisition was sufficient. 

The Statute also provides that the Mimiei- 
pality shall pay the expenses of the service of 
the militia when so called out, and, in case of 
refusal, that an action may be brought by the 
officer commanding the corps, in his own name, 
to recover the amount of such expenses. 



are liable, and would continue liable in tlnir 
own persons, if there were no mortgage. The 
power to borrow nKJUey implies tiie power to 
mortgage. In making calls upon conliilnitDiifs 
summonses will be granted by a dudge t" the 
several parties reijuiring the amounts fur which 
they are liable to be paid within a s])eciticil time 
without costs unless resisteil. 
In re Xaih lirirk d' Polti ry Mainifacliiriinj Co., 

3 X. S. l).,'2.-.4. 

6. Municipal corporation— Liability of for 

j negligence— I'laintitr while crossing, on Iiuih'- 
Itack, a bridge within the municipality, received 
injuries found to have resulted from tlic mgli- 
gcnce of the corporation and its o'iii'crs, 

//fid, that the defendant cor|)oratinii wiis 
liable; that the fact of the bridge bciiij.' on a 
liighway was no defence, or if a defence slioiiM 
have been ]»leaded ; and that no notice of iclinii 
was necessary. 

Mct^nurrii- v. Thi MiniiciintHty nf St, .!/«/•// '.<, 

.-. K. .V (;.,4!«. 

7. Municipal — Injury by derectlrc nMt- 

walk — Liability of^ I'huntitt' fell ami brnke a 
leg in consecjuence of the defective coiiilitimi <>i 
a wooden sidewalk in the 'i'own of New i'-hn- 
gow. The sidewalk had been constiintcil hv 
private subscription previous to tlie iiRui pi na- 
tion of the town, and at the time of the aicideiit 
many of the planks were cracked and rctteii. 
A judgment having been given in favor of 
plaintitl" for .S.")00 the Court refused toilistiiib it. 
Grant v. The Toicn of Xtw Glaymr, 

6 R. it 0., »'■ 
6C. L. T.,14'.'. 

8. Municipal Incorporation-By-law pro- 
viding for expropriation of lands for street 
pu/poses held ultra rin.v— Chapter 54, of the 
Acts of 1874, incorporating the Town of I'ictou, 
conferred upon the Town Council "power to 



373 



CORPORATION. 



374 



control the making, inaintaii'iiig, improving and 
altering tiie roatls, streets," Ac. . . . " of the 
town, anil the laying out of new onos if neces- 
sary," anil also to make by-law? touching all 
matters within their authority, out gave no ex- 
press authority to expropi'j.ite lands for street 
purposes, or to make by-hv.is in relation thereto. 
Till' Act of Incorporation gave the t'ouncil the 
same ])o\vcr in relerence to the expropriation of 
lanils for street purposes as were formerly vested 
ill the Sessions. 

The Town Council passed a liy-law for the 
cxpiopriiition of lands rei|uircd for street pur- 
poses, ami proceeded under it to expropriate land 
of tiie ]ilaintitr. The liy-hiw ))rovideil for tiie 
a]>pi'iuseiiieiit of lands taken liy three ajjpraisers 
appiiiiiteil liy t'.e town instead of l>y one 
appraiser ajipointed liy the town, and one by 
tile owner, as under the Statute, 

]hl(l. per Smith, \Veathcrl>e and Hitchie, J.J. 
—That the by-law was ultra rinx the powers 
of the Council, 

McDonalct, .1,, di'^-riilhiij. 

}'' )• Kitclie, .1, — Tlie making; of by-laws for the 
ex]irHpiiiition of land is an extreme |)iiwcr and 
shonlil not be held to be given bv implication 
unless iilisohitely nece.s.siii'y to enalilo tlie Coun- 
cil to jHitorni the duties imposed upon tiiem. 
In the |preseiit case no such necessity ajipearcd. 

(;;//;- v. Tin Town of J'ir/oii, 7 H. * <i., I'.'S ; 

7 C. L. T., 147. 



0. Municipal Liability for injuries caused 

by detects in bridge Notice of defects -Re.s- 
ponsibility for negligence of commis.sioner— 
Negligence in not appointing surveyor of 
highways- Judgment set aside and new trial 
ordered .\n action was brought against the 
ikfeiidiiiit Mnniciiiality for injuries sustained by 
liliiiniills lorsc, I'csiilting in its death, caused 
liy the ilet'citivc condition of a bridge on a ptdilic 
riMiJ in tlic Municipality. Thf. evidence showed 
tiiat tile covering of the bridge was more than 
cigiit yi'ars old at the time of tlie accident, and 
reipiiieil renewing, .\l.so, that the un.safc cou- 
ililioii of the bridge was known to the connnis- 
sioiier appointed by the Municipal Council to 
repair tlie road upon which it was situated, but 
that lie delayed repairing the bridge for over 
three months, and did not touch it until after 
the aeeiilent. 

II^I(I, that the defendant was respimsible for 
the negligence of the commissioner in not reco- 
vering tlie bridge and making it safe. 

That the Municipality having had notice of 
the ilefective condition of the bridges on the 
foail, in order to relieve itself of responsibility, 
should have shown that the bridges had been 



1 examined and all the necessary repairs done to 
; make them safe. 

That the Municipality was further guilty of 

negligence in omitting to appoint a surveyor 

! of highways for the district in which th<j road 

was situated, who, it must be assumed, would 

^ have repaired the bridge whe , it became unsafe. 

Judgment foi- defendant was set aside and 

new trial ordered. 

Diamond v. T/ii Munifiiiality of East Hanix, 
■20 N. S. R., (S R. &(i,), 9. 

10. Municipal corporation — Liability of, 

for negligence -Efl'ect of reserving a case for 
Court— riaintitr recovered a verdict for .S.'KtOO 
against the defendants, foi- injuries caused by 
falling over an nnrailed bridge, under a charge 
l>y which the jury was instructed that the acci- 
dent resulted from the iindoiibtcd negligence of 
those on whom the duty lay of keeping the 
briilgt^ in a safe condition, and tiiat the liability 
of the defendant was a matter of law which he 
would leave to tlic full Court. 

Ifehl, that the only question reserved for the 
Court was whether, assuming the accident to 
have resulted from negligence, as put to the 
jury, the defendants were liable, and that if the 
defendants were dissatislied with the charge as 
to negligence, they slmuld have rciplired that 
issue to be put to the jury, and should have 
iiKliided inisdireitioii in the ground for setting 
! aside the vcnliit, Weatherbe, J., concurring, 

Tliomi)siin. .(., i/!x<iiifiiiii,lii/il. that this was 
a reseivatinii of a mixed iiuestion of law and 
fart, and that in the absence of evidence to 
satisfy the Court as to the negligence of the 
defendants, the verdiit could not lie upheld. 
McDonald. C. J,, concuiiiiig, 

fyiifsDii V, 77/1 Miiiiiii/ia/if!/ of Cnfrhixf, r, 

OR, fed., .-.49. 

On a/i/tiaf to fh'- Sn/intni' Court of Canaila, 
Ifi/il. .Strong, .T., ili-'iinliiiii, that the ])laintiff 
wa-- entitled to retain his verdict, 

/'' /• Strong. .1,, iliiirnliiKi, that there was not 
siitiicient evidence of negligence to warrant the 
verdict, and the case reserved for the Court 
being on ([uestioic- of fact as well as law, a new 
trial might have been ordered, notwithstanding 
the objection was not takon either at the trial 
or in the nde nisi. 

Co/rhisfer v. Wa/.so7i, lOth March, ISK',, 

Cas. Digest, 98. 

11. Municipal corporation -Obligation to 

guard dangerous places on public roads— Neg- 
ligence —Verdict of Jury set aside for contra- 
dictory and inconsistent findings— Disqualifi- 
cations of jurors— Plaintiff sustained severe 



375 



CORPORATION. 



376 



injuries by falling over a precipitous einbnnkinent ' 
adjoining tliu public liigiiway. The locality was 
known to ho iliingcrous, but no precautions had ' 
been taken to guard against accident by fencing 
or otlierwi.so. It was udniitted that in the 
absence of contributory negligence on his part 
plaintill' was entitled to recover. The jury 
found that there was such contributory negli- 
gence, but they also f(mnd that the road 
reipiircd protection between the travelled track 
and the edge of the blull", but yet that it was 
safe after dark fiU' anyone who used ordinary I 
care, and in tlic face of contradictory evidence 
tiiat plaintill' had sustained no damage, assum- 
ing that he was entitled to recover. 'Die 
findings of the juiy, and the verdict for defend- 
ant liascd upon them, were set aside with costs. 
Sr-mh/c, that Chapter 100, of .">th Revised 
.Statutes, removing certain disciualitications of 
Judges, .Justices of the t'eace, or persons em- | 
powered l)y law to exercise judicial functions 
does not apply to jurors. 

Kill'/ v. T/ii Mniiifljxtlitii of Kiiii/i, j 

7 U. \- (!., fiS; j 
7C. L. T., 11!!.! 

12. Muniripal - Prescription aj;ainst tlic 

Crown— Right to maintain drains leading from 
private property to drains on the public high- 
way—Liability of Municipality for negligence 
of surveyor of highways -Obligation of Muni- 
cipality to preserve private rights —Remedy 
by mandatory injunction — Plaintitl" was tlic 
prr>])rict(>r of land wliich for a jHTJod of thirty 
years had been drained into an oi)en drain 
jjarallel to and within the limits of the public 
highway, and thence by a covered drain across 
tlie highway to a river. The defendant's sm-- 
veyor altered the open drain by converting it 
into a covered drain, which was no larger than 
one of plaintill's drains running intfi it. As the 
result of the change two of plaintiff's drains 
were entirely stopped up and the drainage of 
his liouse and land seriously impaired. 

Ifi/i/, that a sudicient prescri])tion was pi'oved 
to entitle plaintitf to the use of the o))en drain, 
either as against the C'rown or a private person, 
for the pur])ose claimed, consistently witli the 
rights of the |)ublie to the unrestricted use of 
easement of jjassage and corresponding right to 
have the way ethiiently u)>held. 

vl/«n, that it was incundient upon defendants 
to show that the end desired by them could not 
have been etliciently secured without trenching 
upon plaintiff's riglits. 

Al.io, that under a prayer for a decree to 
" re-open and re-cimstrnct the said drain or 
gutter, and .said drain under the highway afore- 
said, so that it will drain the lands of the plain- 



tiff in as full and ample a manner as it did l)e. 
fore the grievance complained of," plaintill' was 
entitled to a mandatory injiniction to rcstoio 
him to the condition in which he was before the 
grievances complained of took place, 
McDonald, C J., (lii-iintiiiii. 
Jiiuii.ion V. Mitiiifiinltlji nf East Iluntt, 

(ill. &(}., 71 ; «C. L. T., 141, 



13. Municipal - Kailway damages Lla. 

bility of a municipality to pay damages on 
account of a railway running wholly through 
another municipality in the same county- 
Construction of Chapter 70, R. S., (3rd series) 
— Lands for stations and roadway fur tlie 
Eastern Kxtension Railway were exj)r(ii]riattil 
under tlu; provisions of t'liajjter 7<>, of the 
Revised ."^latiites, (.'{rd series), which were iiimle 
applicalile by C'liajjler 74, of the Acts of 1871). 
Cliaptcr 70 proviiled, among other things, for 
ihe expropriation of lands for laihvay iMuimscs 
and foi- compensation to tlie owners theriiiif, thu 
amount payalde foi' buildings destroyed, huids 
taken, etc. being made a county charge. .Sec- 
tion .'■>4 provided that thet'ustos of tile county 
should <lcliver to each party a certilicatc cif the 
amount to which such party was entitleil luukr 
the ap|)raisement, which should authoii/c >ULh 
party to receive the amount with intcnsl. m\\ 
which should be a charge u|)on the county toi' 
all the moneys payable thereunder untd fully 
discharged. .Section .■).'"i provided that the 
damages appraised ami estal dished sliould lie 
apportioned ))y the Sessions amongst the tnwn- 
ships, districts and places in each county iuul 
district, and that the ])roportion of each towr- 
.shi]), district and jdace, should r)e assessed ujion 
their inhabitants, and should be levied .uid col- 
lected and paid over on the same priMcipIe iis 
county rates. 

r>y " Cluipter 2!), of the Acts of 1.S4I), the 
township of .St. Mary's was set off out of the 
County of Guyslwro' as a separate and distinct 
sessional district, and by Chapter 1, of tlic .\ct3 
of lH7!t, the district of .St. Mary's, ami the 
remaining partof thcCountj' of (iiiysborn', were 
placed under separate Municipal Councils, aiul 
were known as the Municipalities of Ouysboro' 
and St. Mary's. 

The lands ai)propriated for the pmposes of 
the Eastern Extension Railway lay wholly in 
the Municipality of (Ouysboro', and the damages 
were appraised and paid to the proprietors of the 
lands taken by means of an assessment imposed 
by that Municipidity upon the ratepayers resi- 
dent within. Proceedings were then taken to 
collect from the Municipality of St. Mary s » 
proportion of the damages so paid. 



377 



CORPORATION. 



378 



///(/, that tlie inliabitants of the plainViH' U-otn tlio iipgligcnce nf the corporation ami its 
Mrriici])iillty, l)y reason of tiieir being iniiabi- oHicers. 

t.iMts of tiif County of (luyslmro' were lial)le to fft/i/, tii:it the defenilant corporation was 
)u assessed in connnon with the otlier inhabi- liable ; tliat the fact of tiie ))ridge being on a 
taiils nf the County for tlie payment of the bigiiway was no defenco, oi', if a defence, should 
(laiiia^jt's, but that tiiere was no liaijility to re- | have l)een pleaded, and tiuit no notice of aulion 
fuiiil to the plaintitV Municipality any portion was necessary. 
(if !•>• aniouiit ailvanced by tliat Muiuci])ality. 
'!'■■>: Miiiiii'ii"t^i'!/ of <liiii<hnro' v. Thf Muni- 

ri/Ki/i/y of St. Mari/''!, 7 H. & (J., l.'U ; 
7C. L. T., 173. 



14. Miinlripal ~ Xiilsance in the high- 
way special damages- -Whether city liable 
for non-repair of streets damaged by ice or 
snow -Notice of action — Lawful traffic— Tiie 

l)iiiuiiial streets of Halifax were in audi a con- j 
(litioii frniM acciiiiudiition of ice and snow hard- 
cMiil into iiicgulaiities of sui'face, tliat the 
lilaintitl', owner of a line of oiiiiii))USMes, liad ids j 
veliieles iiijincd and .suH'ercd loss of custom. 
Tlie nniire|)aii' continued during tlie greater 
]iait lit' tlie wiutei- and after full notice to the 
city aiiliiorities. 

llilil, 1st, that tlic city wa.s .iable for plaiii- 
till's injuries ; 'Jnd, that negligence had been 
proved ; .'{rd, that tiie plaintitl' was not guilty 
of cniitributory iiegligciiee in not using other 
stioL'ls instead of those conijilaincd of ; 4tb, lliat 
niitiee of action by plaintiti's attorney was 
sutlieieiK and unobjectionable, althougii in tlie 
alteiiiative as to aiiiciids being paid. 

Wlieie an individual or corporation is liable 
to iiiilictiuent for non-repair, an action will lie 
at tlie suit of one who suffers .special injury. 

Livbility is not, in all cases, to be inferred 
fiiiiii eiiai'luieiits ))hiciiig tlie liigiiway under 
ik'fciiilaiit's control. Tlie ohiiijatinii must liave 
been imposed on or transferred to defendant. 

Xii distinction exists between nonfeasance 
and malfeasance, in relation to such liability. 
Il'ff //,-.,• V. Cilij of Halifax, 4 R. & (i., 371. 

On ui'jKnl to the Supreme, Court of Canada, 
ll'i'l, 1, Ritchie, C. J., dUieiitiinj, that it was 
the duty of the corporation to keep the streets 
in good repair ; and, "2, (Jwynne, J., dhxentbuj, 
that the plaintitf was entitle<l to retain his 
verdict, having proved special injury, and the 
damages awarded not being too remote nor 
excessive, 

•ludgiiient of the Supreme Court of Nova 
Scotia affirmed, and appeal dismissed with costs. 
The City of IMifax v. Walker, 

Kith Ftbriiary, ISSo, Gas. Digest, 98. 

15. Notice of action— Plaintiff, while cros- 
sing oii horseback a bridge within the Munici- 
pality, received injuries found to have resulted 



Mctjnarrie v. The MnnieiiiuHty nf St. 

Mary'-<, ."> R. & (J., 493. 

10. Right to remove member for crime- 
Quo warranto — Where a party elected as alder- 
man ill October, IS(i2, had been several times 
convictcil of drunkenness, assaults and disor- 
derly coiidiu^l lietween the years IS.'iOiind l.S(5'2 
but there was no .such conviction for six months 
j previmis to his election, and no evidence that he 
was a common drunkard. 

Ill III, that the (^ity Council had no power to 
declare his election a nullity, and tf> direct that 
another alderman should be elected in his place. 

A corporation has no power to remove a iluly 
elected nicmlier of its own liody f(n' crimes com- 
mitted previous to his ekM'tioii. 

It is not necessary in this Rroviiiee, on an 
application for a quo irarniiiio iiiforniation, that 
an atfidavit should be filed by the relator stating 
that the iiintion is made at his instance. 

//( re Thoillns S/ii lire, 1 ()1<1., X]3. 



17. Sale by corporation - Conversion by 

Sherift" -Sale under order of Court — 4tli Rev. 
Stats., N. S,, c. 97 and c. 53, sec. 15.— Tlaintiff 
purchased all the jiersonal prapeity of the L. 
Coal MiningCo'y., after lhe(\)mpanv had become 
hopelessly insfdvent, receiving a bill of sale 
signed by the agent of the C nnjiany, but not 
sealed with the coi'poratc seal, proved to have 
been possessed bj- the Comjiany, He took pos- 
session of the goods at the time of the sale, and 
remained in possession until the cause of action 
indicated l>elow arose. 

Held, in action against a Sheriff for selling 
the goods under an order of the Supreme 
Court, following a levy under a writ of attach- 
ment against the L, Coal Mining Company, that 
rnder the provisions of chapter .^S, 4th R, S., 
section 15, the use of the corporate seal upon 
the bill of sale was not necessary. Wilkins, J., 
difsentiiKj. 

Held, on demurrer to the defendant's plea, 
which set out the attachment and levy of the 
goods as and being the goods of the L. Coal 
Mining Co.," and the sale of the goods, " being 
the property of tie L. Coal Mining Co." that 
the plea was bad, as it did not allege that the 
goods were not the goods of the plaintitf. 

Wilkins, J., dMnentiiifj. 

Bradley v. McLean, 2 R. & C, 584. 



379 



CORPORATION. 



380 



On appeal to the Supreme Court of Cannila, 

One H. institutt'il proceedings against tlie L. 
C. M. t'o'y, till' ollii'fr's of which lesiiloil in tlie 
Unitt'il States, Iml wliicli did hu .iness in Xovii 
Sco'.ia, and, on the 'Joth Ma' , 1872, caused u I 
writ of attaclinient to lie issued out of the | 
Su])fi'nic Court at Andierst, under tiie Absent , 
and Aliriiondiiig Dclitois' Act of Nova Scotia, 
directed to tiie a|)))elhint, the Higii SiierifT cf 
the County of Cuniberhmd. Under this writ, i 
tlie ii|)j)cllant seized certain ciiattels, as iicing 
the ciiattels of tiie said Coniiiany. On tlie 12tii , 
Novcinlier, 1872, an order was issued out of the 
said Court, directing the ajipellaiit to sell, and 
ai)i)ellaiit did sell said thattols as hcing of a 
perishalilc nature. On the 11th Dei:enil(er, 1874, 
a discontinuance was filed in the said cause liy 
H. On the .Sdtli May, 187G, the resjiondent 
coninienced an action against the appellant for 
the conversion of the chattels in question, con- 
tending .-hat the Company, having failed in its 
operations, and lieing desirous of winding up 
its affairs, and heing indebted to him, liad sold 
and conveyed to him the said chattels by a cer- 
tain memorandum of sale, dated July 5th, 1867, 
"signed on behalf of the Comitany," by one 
" Hawley, agent." To this memorandum a seal 
was afh.xed which did not purpoi't to be the seal 
of the Company. The appellant pleaded to the 
declaration that he did not convert ; goods not 
plaintiff's; not possessed; and also a special 
plea of justification, setting forth the proceed- 
ings by H. , and that he had seized and sold the 
goods as the goods of the Company, in obedience 
to the attachment, and order issued in said 
proceedings. The respondent replied, setting 
up the discontinuance. The apjiellant rejoined 
that the proceedings were not discontinued, and 
that the discontinuance was not filed till after 
the sale. He also demurred, on the ground that, 
being bound to obey the order of the Court, he 
coulil not be affected by the discontinuance. 
At the trial a verdict of S500 damages was ren- 
dered for respondent. The appellant obtained 
a rule nini to set aside verdict, and the rule and 
demurrer were argued together. The Court 
below refused to set aside the verdict, and gave 
judgment for plaintiff, on the demurrer. 

Held, that the appeal should be allowed ; that 
the plea of justification show'ed a sufficient 
answer to the declaration ; that the replication 
was bad, and that the verdict must be set aside 
and judgment be for the defendant on the de- 
murrer. 

Ptr Ritchie, J., dissenting. — The seizing 
under the attachment, and not the sale, con- 
stituted the conversion ; that there was suf- 
ficient evidence to show that the chattels in 



question had been transferred by the Company 
to respondent, and that under sec. 1,"), cap. 53 
of 4th Hev. .Stats., the sale of the chattels did 
not re((uire to be under the corporate seal of the 
Company. 

I'tf Strong, J. —The sale, and not the suizuii', 
was the conversion comphiined of, and to this 
the order of the Court was a suHicient an.swer. 
Soiilili-, a mere taking of the goods of a tliiid 
person under mom attachment against a dcftii- 
dant to keep them in midio until the tciiniiiii- 
tion of tiie action, is not a conversion. 

7Vc Henry, J.— The order for the sale would 
not have been a justification for the original levy 
on the goods, as well as for the sale, if they liad 
been the property of the respondent, but tlie 
evidence failed to show a sale by the Coinpaiiy 
to the respondent. .Such a sale woulil rciiuiie 
to be under the corporate seal of the Conipuny, 
and did not come witiiin the meaning of sec. 15, 
cap. 53 of 4th Rev. Stats. 

McLean v. Bradley, 2 S. C. R., 5.35. 

18. Suits a$;ain8t-2nd R. S., c. 134, Fart 

II., 8. 1 — The provisions of the Practice Act, 
which enable proceedings to be taken in the 
Supreme Court against a defendant abroad after 
service, do not extend to suits against corpora- 
tions. 

Belloni v. Sydney and Louisbury Nailiray Co., 

2 N. S. D., 73. 

19. Trespass by Individual corporaton- 

Plea — Corporation may sue its members— 4tli 
R. S., c. 32, s. 20— Two of the defendants and 
another were duly elected school trustees in 
October, 187.3. In December the defendants, 
without the concurrence of the third trustee, 
removed the school house from its then site. 
No school was maintained during the winter, 
though efforts were made by the trustees to 
maintain one. In June, 1874, the Comniissiou- 
ers of Schools for the district including section 
16, dismissed the three trustees, and appointed 
three others, assuming the power to do so under 
4th R. S., c. 32, s. 20. The newly-appointed 
trustees brought an action of trespass against 
the two trustees who had removed the school 
house, and their servants, for such removal. 

Held, that, under the circumstances, the Com- 
missioners had no right to dismiss the original 
trustees and appoint others ; and that even if 
their appointees had been legally appointed 
trustees, no action would lie at their suit against 
defendants for acts committed during their term 
of office 

Trustees of School Section 16 v. Cameron, 

2 R. & C, 328. 



381 



COSTS. 



382 



Onapixal to the Supreme Court of Canada. 

J. C. and J. A. C, while Trustees of School 
Si'itiuii X<). Hi, Soutli District of I'ictou County, 
ami N. ('. ii.s tiieir servant, entered upon the 
siiimil plot lielonging to their section, removed 
ihu siiioril liouse from its foundation, and dea- 
ti'ivi'd a portion of tiie stone wall. .Sul)sef|uently 
the trustees of said school section lirougiit an 
notion of trespass qtiarv r/uiisvm frujit and dt 
hoiiiK nsportutis against the said J, C, J. A. C, 
ami \. ('., for injury done to the school house, 
tile property of the section. The defendants 
[ileailiMl iiitir alia justification of the acts com- 
])laimil of, asserting tiuvt tiie acts were legally 
|ii'ifonncd liy tiien; in their capacity of trustees. 
,Siilj-sec. 4 of s. 80, c. .S'J of 4th Rev. 8tats., de- 
clares that the sites for school houses shall he 
(ktined hy the trustees, subject to the sanction 
of the three nearest Commissioners residing out 
of tlie section. In this case tlie sanction of the 
tiiree nearest Commissioners was not obtained. 

Hild, on appeal, that under 4th Rev. Stats., 
e. .S2, J. C, J. A. C, and N. C. were not 
authorized to remove the school house from its 
site in the manner mentioned. That defendants 
having sul)se<iuently abused their right to enter 
upon the lands of the corporation by an overt 
act of spoliation, the plaintifTs, who are a corpo- 
rate body and are identical with the corporation 
wliich existed at the time of the trespass, can 
maintain trespass against the defendants for the 
injury done to the corporate property. That 
wiien an action is brought in the name of a cor. 
poration without due authority, it is not suffi- 
cient for the defendants to plead that the 
plaintiffs did not legally constitute the corpora- 
tion, but in such a case defendants ought to 
apply to the summary jurisdiction of the Court 
to stay proceedings. 

Pictou School Triwfees v. Cameron, 

2 S. C. R., 690. 

Sie, also, BANKS-COMPANIES - 



COSTS. 



!• Abandoned rule— Motion to discbarge 

rule must be made in order to get costs— 
Though notice of the abandonment of a rule be 
given, yet the party receiving such notice must 
move to have it discharged in order to obtain 
his coats. 

Swan V. Pryor etal.,2 Thorn., 13. 

3> Accounting on dissolution of partner- 
ship—where plaintiflf prayed for an account on 
the dissolution of co-partnership between him- 



self and defendant, alleging that a balance was 
due him, but the Master's report, showing a 
large balance to be due to ilefetidant, was sus- 
tained, except as to a comparatively small item, 
//lid, that the defendant was not entitled to 
a decree ii'ilh costx as the pluintiit' had succeeded 
in establishing his right to one half interest in a. 
mill, which was disputed. 

1,'odtt V. Lelilanc, R. E. D., 75. 

3. Action for penalty-Default and exe- 
cution issued — Costs on setting aside— Where 

! in an action for penalty for taking clothes of a 
seanum of H. M. Navy, there was a default and 
, execution issued thereon, and the defendant 
i moved to set aside the default on the ground of 
: the ignorance of the party as to the time within 
whicii he was required to plead, and produced 
! an artidavit of his innocence, the default was 
I set ajide on payment of costs actually incurred in 
consequence of the default, and on giving secu- 
rity for payment of the penalty, with costs. 

Queen v. Jliilhj, 2 Thom,, 230. 

4. Administrator— When liable for— To 

make an administrator liable to pay costs out 
of his own pocket, the notice required by Acts 
1853, c. 12, s. 10, must be given, and f.-aud on 
his part must be shown. 

In re Ralxton, 2 Thorn., 195. 

5. Agent of absconding debtor entitled 

to costs of motion to discharge — Before the 
passing of 10 Vic. c. 24, the Court had power 
to discharge a person as agent of an absconding 
debtor, the first term, when the creditor did 
not give any notice of his intention to require 
a personal examination. The agent in such case 
is entitled to his costs of motion of discharge. 

Creif/hton v. Cook et at., 2 Thom., 78. 

6. Amendment of rule— Tbe Court will 

permit the defendant to amend the description 
in the consent rule after verdict against him, 
upon payment of costs of former trial. 

Gillis V. Canxphell, James, 48. 

7. Amendment opposed but allowed — 

Unsuccessful party must pay costs — Where a 
rule for an amendment is opposed the costs 
must be paid by the unsuccessful party. 

McKay v. McKay, 2 Thom., 75. 

8. Appealable amount— Costs cannot be 
added to the amount claimed, for the purpose 
of bringing it up to the appealable amount. 

Bums el al. v. Richards, 1 N. S. I). , 509. 



383 



COSTS. 



384 



9. Appeal abandoned - Respondent en- 
titled to what costs— Appeal piipelH weru sent 
back to tlie .liulye of tlie ('i)mity Court to lie 
aineuilcd, tviid weru ainuiuled, uftur wliicli tlie 
a]i]H'lliint aliaiidoiu'd his a]i|ieal. 

Ill III, that the respondent was entitled to his 
costs lip to the day on which notice was given 
of the alianilonnient of the appeal. 

Mi-Uod V. Diui/ap, •-' K. & (!,. 4im. 

10. Appeal Costs of /'- >■ KiyUy, J. — 
Costs do not follow, as a matter of course, 
where the apjii'al is sustanied. 

J'l r Weatherhe, .1, — Costs of the appeal follow, 
as a matter of course. 

Ill ft A/ijiial S/i jihi II Siriit, ■'{ R. \: (i., ;{i)7. 

i 

11. Appeal Costs withheld from success- 
ful party for irregularity lielow- Wiieru the 
resj)ondent succeeded, on a]i|ii'al, liut there ap- 
peared to have liccn some irrc;4ul:irity on his 
part in the proceedings helow, the extent and 
importance of which were uncertain, costs \\ere 
not allowed. 

Maliriii V. (id III 1)1011, 4 H. it <!., '2'A'2. 

12. Appeal from County Court — Appeal 

from the judgment of the County Court dlowed, 
on tlie evidence, with costs, and judgment to bo 
entered for iilaiiitill' lielow, witli costs. 

Mi//il V. Lon/h/, 4 1!. ScO., 300. i 

I 

13. Appeal from decree of Probate Court 

setting aside will —Costs diiected to lie ])aid 
out of estate. 

Ill rt L'sfafi: of Phil, .S R. & C, 307. 

14. Appeal from Probate Court — Costs 

given to successful party liefore the Judge of 
Probate, except costs unnecessarily incurred. 

In ri E^iu'i of Siiiiji-soii, .'< li. A' {'., 'S7u. 

13. Application for discharge of insolvent ; 

— Where the discharge was refused on appeal, [ 

costs were onlered to bo paid out of the estate. ] 

III re Ilutfhinton, Insolvent, 3 R. & C, 40. ! 

16. Attorney's lien for — Attachment — 

On a motion on behalf of plaiiitirt', under the 
Garnishee Aot, for an attachment of all debts 
due the defendant by M, a lieu for his costs was 
set up by the attorney who had entered the 
judgment for the defendant against M., but no 
notice had been given by the attorney to M. , 
nor had any effort been made by him to secure 
hia costs. 

Held, that the claim of the attorney could 
not prevail over the attachment. 

Cock V. lilisH, 1 R. & C, 299 



17. Attorney's neglisence - Liability for 

costs —'I'lie Court will not, on a sumnuiry ii]ipli. 
cation, holil an attorney liable for costs for neg. 
ligence, unless such negligence is clearly and 
unequivocally iiroved, 

Elliolt ,t nl. v. Ldddi, '2 Old., ITo. 

18. Award set aside — When one of two 

arbitriiiors who hail made a certain award, siil). 
seiiui'iitly made an ailidavit that he intemleil to 
decide the case according to law, but on recon. 
sideration of the matter and on reperusal of tiio 
ininutes of evidence, he felt persuaded tiiiit in 
making the award he misunderstood tlie evi- 
dence given in the matter, inasmuch us he UmV 
for granted that no evidence was given iif u 
certain fact wliicii, upon the ininutes of the 
evidence being read before the Court, by cim- 
sent, ai)peared to be material and to lie in 
])roof. 

Hi III, that the award must be set aside, luit 
without costs. 

DfuBarri'i v. Lnndri/, '2 11. iV ('., 14.'), 

15). Changing venue — Costs - The ( (nut, 

being of opinion that the cause could he iiiine 
conveniently tried in another County than tlmt 
in which the venue was laid, made the rule to 
change the venue absolute, witii costs. 

//arrii v. Fader, 2 Old., ."iTl. 

20. Corporation — Liability of members 

of for costa— Motion for rule nisi for costs nf 
the day for not proceeding to trial, against the 
individual members of the corporation of St. 
Paul's Churcii in Ainlierst. Costs hud heeii 
taxed and execution issued against the corpoia- 
tioii, but returned unsatisfied. Ap))licatioii iiad 
been made to the oflicers of the cor])oratioii fur 
jiayment of the amount, wliich they had refused, 
although they had funds in their hands. Cliiip. 
87 of 1st Rev. Stats., s. 13, provided that the 
individual members of the corporation sliould 
not be lialile beyond a specified amount. Tlie 
rule was drawn reijuiring them to show cause 
why the execution shoulil not issue agiiinst the 
individual members of the corporation, and also 
that proceedings lie stayed. 

Per Haliburton, C. J.— Take yonr rule for 
the execution only, or else, in the alternative. 
You cannot have a cumulative reniedj'. 
Church Wardeiin, ifcc, Amhemt, v. Davison, 

James, 106. 

21. Costs of re-appraisement of lands - 

Commissioners were appointed under an Ac* to 
re-appraise lands taken for railway purposes m 
Digby County, and it was provided that the 



:is.) 



COSTS. 



386 



leappraisiiiM'iit, " togetlier with the costs liiTi)- 
tiifiiii' iiiriincil." shoulil lie a Coiiiity i'lmi'>;i'. 

Ilild, that thi' coKtH fur survicuH liufmi' the 
Coiiiniissioiii'rH for n!-ii|ij)i'iii»L'im'iit coiihl nut lie 
tiixiil, iis the Act |)riiviikMl mily for tlio.se iiu'ur- 
iiil |)iinr to its |),iHMiiig. 

Ill Iv \\'i^'> ni L'oiiiitiin' Ititihniji, 

Ex- imt-ti Hardy, 1 K. \- (i., 17(1. 

'*'2. Costs on exrt'pllons to answer In 

Equity Wlii'if iilaiiitill' took tliiity-oiii' extt'i)- 
liiiiis to ih'ft'iiiliuit'.s iiiisuur, on four of which 
liil'uiiilant >.iK(.'t't'ih'il on iijipfiil, pliiintilJ' was 
(inlcii'il to ]M\y foiii' tiiit'ty-liists of (li'fcnihint'H 
iiists (if a]i|K'iil, iind .lefcnihint twenty-seven 
thirtytiists of ]ilaintiflF"s, tlie costs to he set olF. 
liiirhiin- V. Il'ii/hm. ."i H. it (i., ."i()4. 
Tiiis case was appealed to the .Supremo Court 
(if ('aiiada, hut tiie aj)peal was disposed of on 
iniitioii to dismiss. 

23. Costs rcniscd Sueressrui pari) (nking 

untenable ground llihl, that plaintill was en- 
litlcd III ret'ovcr for additional work, hut not on 
tlK';.'iinin(l tliat the continct had lieen rescinded ; 
ami |ilaiiiliir liaving contended that the verdict 
fur ilfft'Milaiit should he set aside on thi.s unten- 
alili' yrmnid, no costs of th" argument were 
givi'ii. 
M'Knij V. Tht fllarc liay MiiiiiKj Com/xin;/, 

H. (.t (i., 528 ; C. L. T., 043. 

24. Costs -Where no Jurisdiction, Ac.— 

('ii,-.ts refused to the respondent, as there was no 
jiiiixlictioii in the .Supreme Court to ent"rtain 
the aiipcal, and no api)lication to have the appeal 
-I't aside. 

Jh-Doiiald V. MvCuish, 5 R. it (J., 1. 

25. Declaration claim reduced by set-off 

below to - I'laintifl' entitled to declaration 
i.ost3-\Vlieii a suit is hrought for the recovery 
cf 11 .Sinn (iliove i'iO, and the plaintitF ohtains 
jiiilguieiit for a sum helow IT), by reason of de- 
faidant's set-off being allowed, plaintitt' will 
iitvertheless be entitled to declaration cosis. 

McKtiizie. V. Lomj, 2 Thorn., 208. 

2«. Default talien off-Plaintiff opposing 

liable for costs— \\'here plaintitf, having marked 
'' I'efanlt, unsuccessfully opposes the taking it 
< he A ill be liable for tht costs of making the 
fule absolute. 

Morxe V. Chemutf, 2 Thorn., 234. 

21. Discontinuance — Plaintiff gave notice 
w 'liscontinuance, but no rule had been filed, 
13 



and when defendantH had attempted to ta.\ 
theii costs the ])lainli(l' had objected. 

The Cixnt granted a rule iiixi for the plaintiff 

to show cause why the suit should not be dis- 

continiu'd. and the defendants aUowed to ta.\ 

their costs. 

I Trnholm v. Tn nhohn il al., ,\iw\vn, l(W. 

28. Eacli party to pay his own costs on 

iippeal from I'roliate Court, as neither party 
api)eare(l to have iirought the case, " In n: KMatt 
\oJ' MiKnij" 1 Old., 131, to the notice of the 
Court lielow. 

Ill n Sf,j,h<ii /';< !■•.■, Will, 2 R. & C., .308. 

29. Ejectment— Where defence limited to 

part of land claimed -Where a defendant in 
ejectment first pleaded denying the i)laintitt"8 
right to the possession <,f the ii-hnli of the land 
claimed, liut afterwards obtained leave to amend 
his j.lea, so as to limit his defence to a }Kirt of 
the land oidy, and that the amended plea slumld 
lie treated as if pleaded in the tirst instance, and 
the jdaintiff then signed judgment for the resi- 
due, and discontinued as to that jjart covered 
by the ])lea, 

//'/'/, that the ijlaintifF was entitled to costs 

on his judgment for that portion of the land 

! disclaimed by the amended i)lea, and the <lefen- 

dant to jtidgment, with costs, for that jxirtion 

for which he defended. 

Fairbanks v. Rokx, 1 Old., 13. 

30. Election petition-Setting aside with- 

I out costs — Novelty of points on which de- 

j cided — Election petition was .set aside without 
costs, as petitioner had succeetled on nearly all of 
the eighteen grounds taken against hnn in the 

I rule h/.v/, and the two grounds on which he had 
failed came fairly inider the head of new jxiints 

i of practice. 

Woodivorth v. Borden, 3 R. & C, 571. 

31. Entry of Judgment on award -Discre- 
tion of Judge as regards costs— .Judgment was 
entered for defendant in the County ("ourt, with 
the general costs in the cause, on an award made 
in hia favor by arbitrators. Plaintiff was al- 
lowed the costs of certain issues found in his 
favor. The learned Judge allowed an appeal 
on the two points, 1st, as to whether plaintiff 
should have been allowed costs, and 2nd, whether 
the amount allowed was excessive. 

Held, dismissing the appeal, that what and 
how much the Judge should allow was entirely 
a matter of discretion. 

Bonnett v. Chenley, 7 R. & G., 184; 
7 C. L. T., 249. 



387 



COSTS. 



m 



32. Executors -Costs on action to com- thence to Supreme Court- A oonviciion l,y u 
pel release of mortgage where unopposed — Stipi'inliiiry MagiNtnitu wiim rciiuived liy m|.|hii| 
1). iiiiulo a morlniigu to ilfffiiiliiiits' lostutcr to tlii' t'ouiity fouit, luid there <iiiii»lif.l. 
to Heeiiro the piiyim-iit of tliree proinisHory //i/d, tiiat no appeal lay to the Supitme 
iiotis. 'I'lie notes wire pui.l anil handed over Court, an none was expressly pven hy tiic.Vt 
to 1>, iipwanls of twenty years l.efore this creating the otlence anil giving tlie appeal to tlit 
action was l)rouj,'lit hy 1)., to compel defcn- County Court, altiiougii the Acts creatini; iind 
danlH to execute a release of the luortijage. organizing the County Courts gave a gciiml 
During tiie sulise(|Ucut period no payments were appeal to the Supreme Court, 
made Ity 1)., or demanded of him, and tlie estate Costs refused to respondent, as he shoidd imve 
of tlie testator was settled witliout any reference ^ moved to iiuasii the appeal at an earlier >tiigL', 
to tlie mortgage as an outstanding deht duo tho j MelhiuM V. McCuith, ,'i H. d. C, 1. 

estate. After liringiiig the action 1). hecame i 

insolvent and made an assignment irnder the 3;^ Misleading plCU—AttornC}° tlircnlvneii 
Insolvent Ai't, and Ids assignee intervening, y,{i]^ costrf— Wiiere in ejectment the defemliint, 
untler an order of tiie Court, hecame plaintill' in i,y i,jj, yt\ua, purports to defend for a part ot llie 
the suit. land dainted in tiie plaintiff's writ, hut in fiict 

JJdtl, that defendants must he decreed to deserihes a diHerent lot, the plaintiff will lie 



execute a release of the mortgage, though witli- 
out costs, they not having opposed the proceed- 
ings of ])laintitr. 

Bt//, .-L1.S1;/ ;«:».', V. liroini it uL, R. E. D., 20. 

33. Execution set aside-Attorney Issuing 

ordered to pay costs— Wliere an attorney hene- 
ficially interested in a jiulgment issued an exe- 
cution, more tiiaii *2() years after entry of the 
judgment, for an amount including '20 years' 
interest on the judgment, and there was nothing 
to shew that i\ny execution had been returned 
within a year after judgment, the execution was 



entitled to judgment. 

Pir i51iss, J. — If such a plea be put in with 

the design of misleading, I shall endeavour tn 

makf the attorney pay the costs out of his ciwii 

pocket. 

Hmlhj V. Shfrmati, 2 Tiioin., 4lti, 

M<:Muri<tit\i v. Graham, 2 Tiifiiu., 417. 

38. Mortgagor seeking to redceni-Costs 

— General rule, tiiat the party seeking to reileem 
must pay the costs of suit, adhered to. In ca.ses 
of positive misconduct on the part of tiie mort- 
gagee, he may not only be deprived of costs, Imt 



Bet aside and attorney ordered to pay the costs, i ordered to pay them ; yet, in all ordinary cases, 



White V. Dimock; 2 Thom., 234. 



34. Hardship of case and novelty— Rule 



the rule is clear and well established, that the 
mortgagor (or his assignee), seeking to redeem, 
must pay costs even when the mortgagee (|iies- 



discharged without costs, on account of the tions unsuccessfully, but on a reasonable doubt, 
hardship of the case and novelty of the points his right to redeem, or extends his claim beyoiul 

what the Court finally decides he is entitled to, 
I'aije V. Chambers, 1 R. & G., p. 24i. 



raised. 



Qmtn V. Murray, 1 R. & C, 58. 



35. Insolvent estate — Orders as to set 

aside — Costa to be paid out of the estate — 
Where the Judge of the County Court for 
District No. 2, Lunenburg, passed two orders, 
one postponing a meeting of creditors called to 
consider an offer of composition, and ordering 
the assignee to retain the estate until discharge 
applied for ; and the other, ordering a meeting 
to be held at Halifax, the Court, holding that 
the Judge could not order such a meeting out 
of his jurisdiction, set aside both orders, as both 
had a common object, and directed the costs of 
the appeal to be paid out of the estate. 

In re SiUherland, 3 R. & C, 89. 

36. LacbeB in moving to quash appeal- 
Costs — Canada Temperance Act— Conviction 
under— Appeal to County Court— No appeal 



9. New point— Costs withheld on decision 
of new and doubtful point. 

Weeks \ Bonham, 2 R. & C, 3". 

40. Jfew point — Costs withheld -Rale 

made absolute, without costs, the point being 
now first raised and decided. 

CummiiKjH v. Broxon, 2 R. & C, 303, 

41. Non-payment of costs of day bf 

plaintiff does not entitle defendant to a con- 
tinuance — The non-payment of the costs of the 
day to the defendant, even when he produces 
an affidavit that he will be unable to produce 
his witnesses again in consequence of his ina- 
bility to pay, is not sufficient to entitle him to 
a continuance. 

Cosey V. WUliama, 2 Thom., 184. 



389 



COSTS. 



390 



42. Not allowed agalnnt stranger to 40. On rule absolute-Allegation of bad 

record -TliL' lourt will not iil low costs iigiiiiist faith not suntained — Kulo nmtle iilisolutc on 

11 party w Iki 'lot's not iipiit'iir on the ruconl. piiymcnl of coats of resisting it, wlicro one of 

.\fi-l)oiia/(l V. MrDoiiu/il, Coclinin, 8{t. the grouii'ls was lui'l fiiitli, which the moving 

party fiiilcil to cstiililish, ami where tlic plaintitF 

43. XollCC of countermand of notice of resisted the motion only to relieve himself of the 
trial- Motion for costs of tei'm, upon atliihivit charge of luul faith, which he did suecessfully, 
timt Milipci'Miis were issued on liehiilf of defen- Sinlf/nr.t v. Sinilfi, 1 II. & (i., .Vw, 
(iiiiit, iind costs incurred after notice of trial 

xcivcl and l.efore it was t^ounlermanilcd, 30. POWCr Of Probate 88 tO t'OStS — Will 

//(/(/, allidavit iiisullicient in not setting forth disputed— Testator's will was attacked by the 

fait.-< til shew that tiiere was a necessity for in- trustees of the Methodist Church, (luysl)oro' (to 

curriiig costs |)rior to the notice of countermand, whom the testator had left the hulk of his estate 

McAlinoiit V. Jioiidrol, James, 338. hy a previous will), on the ground that undue 

I and improper intiiiences had been used. The 

44. Ofterni— The I'OUrt will not grant costs Judge of Probate decided that such influences 
(if tiic term for not i)rocecdiug to trial when it had not been made out with sutlicient clearnead 



Hjipcars that the defendant was not ready for 
trial when the cause was called. 
In cnnsiilcring an aj)plication for costs of the 



to avoid the will, and directed the costs of all 
parties to be paid out of the estate. The decree 
as to costs having been appealed from, the 



term the Court will act upon their discretion i Court held that the .Judge of Probate had no 



upuu the circuinstances of the case. 



power to decree the payment of costs out of the 



liroini V. U'a/luci', James, 204. | estate, and could only award them to lie paid 
Crij)f,i V. Marriof, James, 266. I by the party against whom his decision was 

j made, but that this Court, on review, could 
4a. Of term for not proceeding to trial— ! direct what costs should be allowed, and from 

Cu.sts of term granted to defendant, cause not i what fund. The parties were accordingly direc- 
beiiig at issue for want of replication, as plaintiff ted to pay their own costs up to the time of the 



could have joined issue and compelled the defen- 
dant to go to trial. 

McDowjall V. McDonald, James, 269. 

46. Of Term, for not proceeding to trial 

—A rule staying proceedings unti' the parties 
iiail nuitually delivered plans, will not prevent 
defendant, who has complied with the rule, for 
moving for costs of the term against plaintiff 
for not proceeding to trial, the plaintiff not 
liaving complied with the rule. 

O'Connor v. Fisher, James, 269. 

47. Of the day— A cause bad been set down 

for trial liy a special jury, at the instance of the 
plttintitf 's attorney ; but, the venire not having 
been issued in time, ten only of the special jury 
attended. The plaintiff offered to try the cause 
with nine of the jurors who so attended, or with 
the common jury, but the defendant refused to 
consent, and the cause was continued. 

Held, that the defendant was not, under these 
circumstances, entitled to the costs of the day. 
Zink V. Zinl; 1 Old., 721. 

48. On notice to Sheriff to amend his 

return— A mere notice to a Sheriff of an inten- 
ded motion to amend his return, will not e ititle 
aim to costs of aflSdavits to oppose motio? for a 
rule Jim. 

Creighfon et cU. v. Daniels, James, 304. 



decree, and the appeal was sustained, with costs 
to be paid by the trustees. 

In re Hefeman Extate, 3 R. & C, 486. 
Ill re Estate of Simpson, 3 E. & C, 357. 

51. Probate Court— Appeal from — Costs 

on— Discretion of Supreme Court aa to costs 
— The Supreme Court, on appeal from a Probate 
Court, will exercise a discretion as to costs, and 
will in general give costs against a party uiii.e- 
cessarily making or resisting a claim. 

Estate of Alexander McDonald, James, 123. 

52. Probate Court — Appeal from — Costs 

on — When a decree of a Probate Court is re- 
versed, as against an executor, he will not in 
ordinary cases be subjected personally to costs. 
Estate of C, McDonald, James, 342. 

53. Probate-Costs on appeal and below 

— Appeal from the Judge of Probate having 
been dismissed, costs were withheld because the 
Judge improperly condemned the party who 
appealed in costs as to the contestation below. 
In re Simpson, 3 R. & C, 357, and In re 
Heffeman, 3 R. & C, 486, distinguished. 

Re Estate McKilligan, 4 R. & G., 496. 

54. Proof of will In solemn fbrm— Costs 

on appeal dismissed — Upon proof of testator's 
will, in solemn form, the Judge of Probate 



391 



COSTS. 



892 



decreed that it had been duly executed, and he 
made the costs payalile out of the estate. On 
appeal, the Court held tliat the will had been 
shown to have been duly executed, and that the 
due execution had been jn'ovud of a codicil which 
operated as a republication of the will. The 
appeal was therefore dismissed, but without 
costs. 

Weatherbe, J., dl-'smliiif/, as to the fpiestion 
of costs, considered that the oppeal sliouhl be 
dismissed with costs. 

In re EMatb of Roche, 3 R. & C, 550. 

53. Recorder of City of Ilalifiix acting as 

attorney— Costa— Tlie City Ordinances author- 
ized the Council to appoint a Recorder at a 
salary, in lieu of all fees for services, and made 
it his duty to act for the City as counsel and 
attorney. 

Held, that notwithstanding the Recorder was 
a salaried officer, and coidd not have taxed 
costs again.it the City as between attorney and 
client, the ])laintitfs were entitled, in a suit in 
which they liad succeeded, to his costs as attor- 
ney against tlie defendant. 

City of Halifax v. liomans, 2 R. & G., 271 ; 

IC. L. T.,708. 



56. Reference— Costs of— A cause was re- 
ferred to a Master to ascertain what amount 
was due on a judgment upon which plaintiff iiad 
issued execution, directing the Sheriff to levy 
for $4." I. The Master reported only 862 due, 
and exceptions being taken to the report, it 
was, after argument, confirmed. 

Held, that defendant was entitled to the costs 
of the reference, although plaintiff did not, at 
the time of issuing the execution, know what 
amount was due, in consequence of payments 
having been made to his attorney, who had left 
the Province. 

Lynch v. O'Brien, R. E. D., 396. 

57. Re-taxatlon — Where the objection raised 
on re-taxation was not brought to the notice of 
the Judge who first taxed, the proper course is 
to apply to him at Chambers, not to tlie Court, 
for re-taxation. 

Bamahy et al. v. Oardner et al, , 

James, 107. 

58. Re-taxatlon— Application must first 

be made to Judge who taxed bill — Retaxation 
will not be granted by the Court without pre- 
vious application to the Judge who taxed the 

bill. 

Tupper V. Wright, James, 303. 



5». Rule nisi discharged without -«nie 

uixi for leave to issue execution discharged, but 
without costs. 

Scott V. Jx'oyal Halifax Yacht C/iili, 

1 R. & (J., ;iJ-j, 

60. Rule nisi dIscharged-Costs-C ounsel 

contended that a rule must be discharged \\ itli- 

out costs, that does not ask for costs. 

Per Bliss, J.— That is not our rule. Our rule 

is that costs should follow unless otherwise 

ordered. 

Coirlliii/ V. LeCain, 1 Old., 717. 

61. Rule nisi to set aside default should 

ask to be let in "upon payment of costs"— 
In an appeal cause defendant was let in to dcfciul 
after judgment against him, under section 'JO of 
the Practice Act of 18.")."?. 

When the rn/c iiixi did not ask to be let in to 
defend " upon payment of costs," the i)lainliff 
was held entitled to costs of opposing the appli- 
cation. 

Doy/c V. Timmiiif, 2 Thorn., •2»'i. 

62. Rule to enter Judgment on award - 

Costs of rule— Mot i(m for leave to enter up 
judgment on an award, under a rule of reference 
in the cause. 

Bliss, J., thought the motion unnecessary, but 
granted the rule. 

Costs of the rule were refused on taxation. 

Graham v. Graham, 2 Thoni., 7". 

63. Security for costs— Defendants' appli- 
cation for security for costs refused, tlie groumls 
alleged in their affidavit being positively denied 
by plaintiffs' affidavit. 

The A thole Lodije of Freemasons, Halifax, 

V. Williamson etal.,\ N. S. D., I'l- 

64. Security for costs — Absence - Insol- 
vency—Where one of two plaintiffs is absent